[contempt of court - law reporting - Chief Justice, separation of powers - Crown mercy - press freedom - Pedder C.J., criticism of]

In re Melville

Supreme Court of Van Diemen's Land

Pedder C.J., 6 November 1835

Source: Hobart Town Courier, 13 November 1835[1]

The Attorney General then moved for an attachment against Mr. Henry Melville, the publisher and proprietor of the Colonial Times, for a contempt of Court, in an article published in his journal of the previous Tuesday. An article which he, the Attorney General, conceived most calculated to bring the public administration of justice in that Court into ridicule and contempt - an article which reflected in the grossest and most unmeasured terms on the Judge who tried the case alluded to, on the crown officer who conducted the prosecution, the jury, and, in fact, everyone who was concerned in the administration of justice in that case. The Attorney General read the article, commenting in the most forcible and effective manner on the several points as they presented themselves. He described the publication as one which entailed disgrace on every one in any way connected with it -- he would say, that if any one of the prisoners’ counsel countenanced the assertion, that the jury was packed, he reduced himself in the Attorney General’s opinion to the level of Robert Bryan, the cattle stealer, himself. Here Mr. Gellibrand observed, that he did not think that the Attorney General had any right to allude in that manner to the prisoners’ counsel, indirectly accusing him of countenancing the publication. The Chief Justice did not think that the Attorney General meant to reflect upon Mr. Gellibrand. The Attorney General resumed, he did not suppose that Mr. Gellibrand had any thing to do with such assertion, he could not believe it possible that he had. He the Attorney General was astonished at the course pursued by those who advocated such principles, he was astounded that they should be asses enough to stultify themselves by drawing the inference that because Robert Bryan was convicted of cattle stealing Mr. Samuel Bryan must necessarily be compromised by it. Why, if the wicked and corrupt government, as theses persons are pleased to call it, had drawn such an inference, what would they have said then. He confessed that he did not understand their arguments at all, why one of these appeared to be because Mr. Samuel Bryan had a quarrel with the government, no person of the name of Bryan could possibly be guilty of any crime whatsoever. The article stated that the jury had been packed. Now what were the facts - the prisoner had applied by his counsel to have the case tried at Hobart town, on the ground, that there existed a strong prejudice against the prisoner on that side the island, and that owing to the gentlemen who usually composed the jury at Launceston being half-pay officers and resident settlers, they might possibly be influenced by the public feeling. He, the Attorney General, did not feel justified in acceding to this request, but wrote a letter to the prisoners’ counsel - here the Attorney General handed his official letter book to several gentlemen who read the letter alluded to, stating that in order to obviate the difficulty he would recommend the Lieutenant Governor to put at the head of the precept the names of all the full-pay military officers resident on that side the island. The Governor had adopted his suggestion, and the first seven in the precept were full-pay officers doing duty for the time with their detachments, and who could not be supposed to be prejudiced in any way, and on the trial the jury were called as nominated in the precept. It appears, that the clerk of the court had at first began to call the jury as numbered by the Under Sheriff and not as they were named in the precept. The Solicitor General, who conducted the prosecution, was aware of the arrangement between the Attorney General and the prisoners’ counsel, and in fact had the correspondence with him at Launceston, and consequently told the clerk of the court to call the jury as in the precept, which was manifestly to the prisoners’ advantage. Here the Chief Justice inquired of the clerk of the court why he had called the jury as he at first did, Mr. Mortyn said he did so from a list numbered by the Under Sheriff from 1 to 7, although not taking the names as they immediately followed each other in the precept. It appeared from the information afforded by several gentlemen, that the usual course at Launceston had been for the gentlemen nominated in the precept to agree amongst themselves and communicate to the Under Sheriff who would sit on each day, to enable the others to attend to their private affairs, and not keep them in unnecessary attendance, and that the Under Sheriff had acted in the usual manner and with a zeal to save the government expense, as the half-pay settler officers received pay while in attendance whether they sat or not, whereas the full-pay officers were only paid for the day in which they sat, so that by having half-pay officers on the jury the government must be a gainer. The Attorney General continued - Mr. Thomas Lewis, Mr. Bryan’s friend, and others, had preferred a charge of perjury against the witnesses who gave their evidence on the first trial of Robert Bryan, and they reflected upon Mr. Littleton, the Police Magistrate at Launceston, for refusing to proceed on the information. Why he, the Attorney General, thought that it would serve all those who were concerned in preferring this charge against the witnesses perfectly right if they were tried at the bar of that court for a conspiracy to pervert the course of justice - he made no exception whatever, and he did not know whether he should not feel it his duty to place them there. This charge of perjury was made while, to the knowledge of those preferring it, there were other informations of the file of the court against the prisoner, Robert Bryan, on one of which he had since been tried and convicted. The whole tenor of the publication had a tendency to bring the administration of justice by that court into the greatest ridicule and contempt. It commented on the Lieutenant Governor’s going over to Launceston, and stated that he drove over in his carriage the Chief Justice who did not usually proceed to Launceston. That the Puisne Judge had intended to go - in fact, had a carriage built for the express purpose of carrying him there and endeavoured to produce an impression that Robert Bryan had [?] had a fair trial. The Attorney General [conc]luded his most able arguments by moving [?] attachment.

The Chief Justice said, "I believe I am mentioned by name, Mr. Pedder, or the Chief Justice."

The Attorney General -- "Yes."

The Chief Justice -- The imputations upon me are of such a nature that I shall decline giving any public opinion on this case - but I will acquiesce in Mr. Justice Montagu’s decision.

Mr. Justice Montagu - I think the publication complained of is one of the most wicked, false, deliberate, malicious libels ever published:- It charges the Government, the Chief Justice, and the Jury, and many others, with corruptly, partially, and wickedly conspiring to convict a prisoner. It is false in almost all it states. Nothing more gross could have been concocted in any Heathen country. I am clearly of opinion that the attachment should issue.

The Chief Justice then adverted to the motion for arrest of judgment. His Honor thought that there were no grounds whatever. He was perfectly aware that it was a question of life and death, and he had anxiously considered it ever since the trial. The prisoner had challenged a juror on the grounds of interest, he, the Chief Justice, did not think the objection made substantiated; the prisoner and his council appeared by their silence to acquiesce. The prisoner’s counsel never asked for triers, as his Honor conceived he should have done at the time. His Honor had consulted Mr. Justice Montagu, who viewed that matter in the same light.

Mr. Justice Montagu - I do not know that I can say anything more than that I perfectly and entirely agree with the Chief Justice that there are no grounds for an arrest of judgment.

…

Tuesday, Nov. 10.

The Attorney General moved for a return of the writ of attachment against Mr. Henry Melville.

The writ was returned.

The Chief Justice. - The course to be pursued now is, I apprehend, for Mr. Melville to be brought up either to be committed or to enter into sureties to answer interrogatories.

Mr. Melville was brought up.

The Attorney General then handed in the interrogatories for the examination of the defendant.

The Chief Justice. It is now at your option, Mr. Melville, either to be sworn to answer the interrogatories or at once confess the contempt.

Mr. Melville. I do not know, your Honour, what the interrogatories are.

After some discussion on the course to be pursued -

The Chief Justice said, Mr. Melville must be sworn to answer the interrogatories - if he chooses to admit the contempt it is another thing.

Mr. Melville was sworn accordingly.

The Attorney General then moved that Mr. Melville be committed unless he find sureties to answer the interrogatories before the Master.

Mr. Melville was then committed, to be brought up on Friday next.

…

Mr. Hesse then said, that Mr. Melville was prepared with bail. Mr. Hackett and Mr. Charles Thomas Smith then were bound in the sum of £100 each, and Mr. Melville in £200, that Mr. Melville should answer the interrogatories before the Ma[tter] and appear before the court on Friday (this day).

Pedder C.J. and Montagu J., 13, 17 November 1835

Source: Tasmanian, 20 November 1835[2]

CONTEMPT OF COURT

We copy from the Colonial Times, the following Report of the proceedings in Mr. Melville’s case:-

SUPREME COURT

Friday, Nov. 13th, 1835

Before Their Honors Chief Justice Pedder, and Mr. Puisne Justice Montagu

The Attorney General moved for a return of the master’s report of the answers given by Mr. Henry Melville to the interrogatories filed by him in the Court on Tuesday last, and as the master was in Court, that they should be read to Mr. Melville, and he be asked whether they were his answers.

The Interrogatories were here exhibited and the Master attested the answers attached were those given in his presence by Mr. Henry Melville. The Attorney General wished Mr. Melville to be asked if he acknowledged those as his answers.

Chief Justice. - And suppose he should deny it, after the master has asserted that they are, what then?

Attorney General. - I will first move that they be read.

The Clerk of the Court then read the interrogatories, and also the answer, as given by Mr. Melville before the master; stripped of their legal jarjon, they merely proved that Mr. Melville was the author, printer and publisher, of the objectionable article.

Chief Justice. - Mr. Melville, do you acknowledge those answers to be your own

Mr. Melville. - I do, Your Honor.

Attorney General. - Then nothing more remains than for me to apply for judgment to be passed, and if I were strictly to follow the law, I should only have to apply to the Master for that, but I beg to make the motion to Your Honors in this case of Contempt.

Chief Justice. - Mr. Melville have you any thing to say in your defence.

Mr. Melville. - May it please Your Honors. I have been brought before the Court under an Attachment, as I am given to understand, for publishing matters reflecting on the Chief Justice and a Military Jury, on a late trial at Launceston. I beg to crave the indulgence of the Court, and a patient hearing of the circumstances under which the article complained of was printed and published. I wish to preface my observations by stating, that I have conducted one Journal, and printed several, for a period of very nearly six years; and, I assert, fearlessly, that I have done so in a respectable manner, as the records of this Court will prove, for, no proceedings, either Civil or Criminal, were ever prosecuted against me for any alleged libel, or other matter, contained in the publication under my immediate control. I have, throughout my career as an Editor, been shielded by the truth; and I have spared neither labour nor expense in seeking to benefit my Fellow Colonists. With reference to the proceedings against Mr. Robert Bryan, (now so intimately connected with my own case, that, in defending myself, I must necessarily make many observations upon them), I assert that, as in other cases, no expense was spared to obtain a correct report of the trial, and, lest any error should, from partiality or party feeling, get into the report, two individuals were employed to take notes of the proceedings, and a correct copy of their report was inserted in the Colonial Times of the 3rd of this month, and which I have every reason to believe to be a faithful and accurate report. Feeling that the life of a Fellow Colonist was at stake, under circumstances which, in my opinion, called for public observations, the article which has been brought before the notice of your Honors was published. I am under the painful necessity, (for painful it must be to me to advert to the facts, standing as I do before one of the Judges who is placed in the situation of judging in the matter) I say I am placed in the unpleasant situation of observing upon facts, which are contained in the article published; and which facts, I am confident, cannot be refuted! I will, however, read the publication complained of, and, as I proceed, comment thereon as summarily as the importance of the charge laid against me, will allow.

[Mr. Melville read the article, commenting on various passages; but as the Attorney General in his reply intimated that he read the article merely because he might reprint it with his comments, we forbear inserting either his observations or the article itself. No unworthy motive actuated us! - Ed.] He then continued - Your Honors, I am confident, will make every allowance for the situation in which I am placed; I could have no motives of malice, and I declare, most solemnly, that I was not actuated by any unworthy feeling, but simply by a desire to further the welfare of my Fellow Colonists. In publishing the article in question, I referred to His Honor the Chief Justice, holding a place in the Executive Council; and, also, to his having decided on ex parte statements, when sitting in that Council. I referred to His Honor sitting on the Bench, after having so decided, when matters have come before him as Judge, which he had already, as an Executive Councillor disposed of; and I maintain that this junction of the two offices, is an evil to the Colony. I might here observe, that the Chief Justice Forbes, at Sydney, refused to sit in the Executive Council, not wishing to place himself in such a precarious situation as that in which His Honor the Chief Justice now appears. I repeat, Your Honors, that the junction of these two offices is an evil to the Colony, and were some men gifted with the powers of these two offices, the most calamitous - the most terrible oppression might be the result. This is an evil which I cannot think the British Government ever intended should be permitted to exist, because such an union of power is unknown in Great Britain.

His Honor the Chief Justice interrupted Mr. Melville, by remarking that such power was known in England, for Judges were Members of the Privy Council.

Mr. Melville. - But Your Honor, they never sit as such.

Chief Justice. - I suppose they sit when they are summoned.

Mr. Melville. - Perhaps Your Honors will allow me to read an extract, in which Lord Eldon’s opinion on the junction of the Executive and Legislative in the same individual, is strongly commented upon. This extract, Your Honors, is taken from the parliamentary report of a speech of his Lordship, in 1806:-

"It was not enough that the Administration of Justice should be perfectly free and uninfluenced by Government, it should be beyond the reach of suspicion; and be so exercised, as to give perfect satisfaction to all His Majesty’s subjects. The jealousy upon this particular which existed in the mind of every man, was sufficient to weaken the confidence which ought to be placed in the Judicial Character. When he himself, although in no situation where his giving advice could in any way affect any individual, had been solicited to give his opinion upon cases of Sedition and Treason, he had invariably declined doing so. But God forbid he should be in a situation to have been so consulted, had he also been in a situation to have tried any individual concerned. A case might occur where the Cabinet Council might think it proper to prosecute some libel against the Government, or in plain English, against the persons composing the Administration, were such a case to occur, could it be said, could any Peer in that House be found, who would venture to assert, that the parties concerned could be fairly tried, if the Judge, who was to try them, was a part of the Administration prosecuting for libel upon himself, as such part of such Administration. The Members of the Cabinet were the responsible advisers of the Crown, and as such could be impeached; and the Chief Justice might be so impeached, and be engaged in defending himself, when his presence might be required in his Court. As a Minister, the King might be addressed for his removal - while as Chief Justice, His Majesty could not remove him. What said Baron Montesquieu, that eminent and able writer? What said that admirable writer, Judge Blackstone? That it was always highly adviseable to keep the Judicial, the Legislative, and the Executive functions asunder! There could be no union more dangerous, than that of a Judge, and a Member of the Executive Government!!!"

And now, Your Honors, I will put a case for your consideration; I will suppose a trial is about coming on in one of the Assize Towns in the Mother Country; I will imagine the Lord Lieutenant of the County interested more or less in the proceedings that are to come before the Court. Suppose this Lord Lieutenant meets the Judge of the Circuit on the border of the county - suppose he invites the Judge to his castle, where he entertains him, and the next day this Judge proceeds to decide the case, wherein his host of the morning, is interested - what would follow such unusual proceedings; - it is scarcely necessary to tell Your Honors, that rumours prejudicial to the impartial administration of justice would obtain. If such happened, would not the country newspapers be filled with the descriptions of the visits to the castle and the trial? Would not the public prints state the facts - and would not the Editors of the Journals be compelled to comment on such visit, and on such trial - more especially if it were decided in favor of the Lord Lieutenant of the county or his friends? But, Your Honors, I have not commented on the Launceston Trial; I have merely recorded the facts, and left the public to draw the conclusion.

In the case of Mr. Robert Bryan, I did not more than I considered it my imperative duty, as a man! On reading over the trial, without speaking to a single individual on the subject - without being influenced by others, I came to the conclusion that this man’s life was placed in jeopardy, mainly owing to the evidence of three convict constables. I read that Mr. Bryan was deprived of the right of peremptory challenge, and deprived of that method of trying his challenge for interest which had been recognized by the Court in Hobart Town. It was but natural for me then, believing as I did, that Mr. Bryan was innocent of the offence, that I should express myself in strong terms when discussing this important affair. In publishing the article objected to, I am fully of opinion that I have done no more than I was in duty bound. I had been informed of certain facts; these facts were strong together without any conclusions being drawn by me, prejudicial to the Chief Justice, or to the Jury, or the Court, or to any of its Officers, in any way whatsoever. The Attorney General will not deny but that the proceedings of a Court of Justice are fair subjects for discussion; and so long as facts are adhered to, and no malicious motives apparent, I affirm that a Journalist, with any regard for the public welfare, has a right to come forward and state those facts, and comment upon them. I have, however, not gone this length! As far as respects the Court, the Chief Justice, and the Jury, I have stated certain undeniable truths, and left the reader to form his own conclusion; and as I have explained, in reading over the article, few, and very few are incorrect - even to the very letter. No man in the Colony can regret more than I do, that such facts should exist, as would allow the Attorney General, or any man, to draw such conclusions as are imputed that I have made; but I again deny that I have ever drawn such conclusions, or, at all events published them.

I consider the present harsh proceedings against me, as unprecedented in this quarter of the world. I am satisfied that this is the first time any such proceedings have issued in Van Diemen’s Land. Without being made aware that any Motion was to be brought before the Court - without being at all aware that I had committed an offence, a warrant was issued to apprehend my person, and as I was informed, incarceration in jail would follow such apprehension, as no bail whatever would be accepted. I do complain most bitterly of such unprecedented severity of proceeding. I am convinced the Attorney General, or whoever it was that caused the warrant to be issued, was perfectly satisfied that I held a considerable stake in the Colony, and that I was not likely to refuse obeying the ordinary mandates of this Court. In order to shew Your Honors, that I have some reason to complain, I beg to refer you to the course adopted in a somewhat similar proceeding, which lately occurred at Sydney. I allude to the case of Messrs. Stephen and Nichol. The Court of New South Wales, instead of adopting the harsh proceedings which have been adopted towards me, issued a rule against both these gentlemen to appear. Mr. Stephen made his appearance before the Court, and after hearing counsel, he was committed to the custody of the Sheriff, until such time as he answered certain interrogatories, and was allowed to be at large upon bail. But Your Honors, no attachment was issued against Mr. Nichol, until he refused to appear upon the ordinary process. I would wish particularly to direct the attention of Your Honors to the case to which I have just alluded. These gentlemen were officers of the Court - they were Attornies! As Editors of a newspaper, they had discussed some proceeding of the Court and committed Contempt. These gentlemen were supposed to be well versed in the law - well acquainted with what might be permitted to be said, without imposing on the dignity of that Court, to which they belonged - I am ignorant to what lengths a public Journalist may proceed, without committing Contempt of Court. These gentlemen committed their offence, being personally interested in the subject they discussed; I am in no wise[sic] interested (otherwise than as I ought to be, as a man) in the saving the life of Mr. Robert Bryan. Mr. Wentworth, who appeared as Council for these gentlemen, said, "he confessed there were imputations contained in the articles published;" - I maintain that in the one article referred took I impute nothing. Mr. Wentworth said "there was no direct attack upon their Honors, as Judges, but merely upon them in their private capacity." I have made no direct or indirect attack; I have neither censured the Chief Justice’s character as a Judge, nor as a private gentleman; but even had I been guilty of the offence these gentlemen were, (who were legally acquainted with what was Contempt) I should deserve a less severe punishment, because I am no lawyer. After their Honors had duly considered the offence these gentlemen had committed, the Court called upon Mr. Francis Stephen to appear for Judgment. His Honor the Chief Justice, after a brief preface, sentenced him to pay a fine to the King of £50, and to fine sureties for two years, himself in £200, and two sureties in £100 each. Mr. Nichol was called up and discharged, the Court being of opinion, that he was not actually identified with the offensive matter published. Such a fine was just and proper, for an individual whose knowledge of the law was such as ought to have pointed out to him the impropriety of his conduct; but I again repeat, I was actuated by none but the best of motives, when I published the article complained of; and even had I committed Contempt, my ignorance of the Law should also be considered by Your Honors. I feel for the situation in which Your Honors have been placed, by the very extraordinary course pursued by the Attorney General, which compels you to be Judges and Jury, and, I may almost add, prosecutors on this occasion; and it is a matter of regret that that officer did not proceed in the customary manner, - by criminal information. Lord Erskine, on a celebrated state trial said, "it is the peculiar excellence of the English Government, the right of being judged by the country in every criminal case, and not by fixed Magistrates appointed by the Crown." I have to lament, that in proceedings like the present, this peculiar excellence of the English Government is nullified, and the Judge made to be the Jury in his own cause. Lord Erskine continued, "the safety of individuals and the public freedom actually depend upon the well-known immemorial right of every defendant to throw himself upon his country for deliverance, by the general plea of Not Guilty. By that plea, which in no case can be demurred to by the Crown, or questioned by its Judges, the whole charge comes before the jury on the general issue, who have the jurisdiction co-extensive with the accusation, the exercise of which, in every instance, the authority of the Court can neither limit, supersede, control, nor punish. Whenever this ceases to be the law of England, the English Constitution is at an end! And its period is arrived already, if the Court of King's Bench can convert every crime by construction, into contempt of its authority, in order to punish by attachment."

Without further reference to the matter imputed to be a Contempt of Court, I now leave the case in the hands of Your Honors, with full confidence that Your Honors can come to no other conclusion, than that I have not overstepped the duties of a public journalist.

After observing, that if what had been published was a contempt, it could only be constructive contempt, and that there were no records of any proceedings since the Revolution, of constructive contempt being acknowledged by any Court, Mr. Melville awaited the decision of their Honors.

His Honor the Chief Justice addressed Mr. Melville, stating that himself and Mr. Justice Montagu would consider further on the subject, and ordered him to come up for judgment on this day (Tuesday.)

Mr. Attorney General then rose and addressed the Court nearly as follows:-

"May it please Your Honors, I was not aware that Mr. Melville had finished, or I should have proceeded to address a few words to the Court, previous to the decision of Your Honors."

Chief Justice. - But I think Mr. Attorney General that we should first be satisfied that you are entitled to reply.

Attorney General. - Your Honors know that if I had thought fit, I might have addressed the Court in aggravation of punishment, previous to hearing the defence; I have not done this - I have not stopped Mr. Melville in his defence, and I hesitate not to say that many of his remarks in extenuation of the Contempt are without the slightest foundation; they reflect on me, in my official capacity - they reflect on the Court, and they reflect on the proceedings altogether; and I contend I am certainly entitled to a reply.

Their Honors consulted for a few minutes, when Mr. Justice Montagu said, "Mr. Attorney General we are ready to hear you."

The Attorney General then commenced. - May it please Your Honors, I hope, and indeed I think, I shall be able to confine myself to the sole object of this application to the Court, in the few words I am about to address to it.

Mr. Justice Montague. - You are entitled to reply upon the whole case.

The Attorney General resumed. - "I have most attentively considered - I have listened to every word that Mr. Melville has addressed to the Court, and really I am totally at a loss to discover any one ground which can be in any way constructed into an extenuation of guilt; what has he attempted to show? Why, that this most libellous - this most atrocious production, is not a Contempt, but that I have endeavoured to construct it into one; but has he shown this? No! And then he tells you that he wrote it for the benefit of his Fellow Colonists, and he considered it a duty he owed to them as a Public Journalist, and that he did it with the purest motives. If Your Honors can by any means so construe this extraordinary production as to bring your minds to the conclusion that it is a fair - Bona fide publication, that it is the language of dispassionate argument, I say if Your Honors can believe this, I will abandon my application cheerfully; but I am confident you cannot; it is impossible for Your Honors to arrive at that conclusion; I therefore contend that which you have heard from Mr. Melville, to day, is the most gross attempt at justification of what he has published, that it is possible to conceive. Had he attempted to defend himself by a confession of his having been led into error with regard to the facts stated in his paper, he would then have been entitled to have some ground of extenuation; but no! He comes here, defends or attempts to defend himself, not by dispassionate argument, but by attempting to substantiate those gross falsehoods which he has already sent forth to the world, and how does he do it, in language calculated to vilify the Court - calculated to impeach the honor of a Jury, and calculated to throw disgrace and obloquy on the Administration of Justice in this Island. Then he next gives you his opinion or throws out hints, or insinuations relative to the Union of the two offices of Chief Justice and a Member of the Executive Council. Now what has that to do with the case at all? I believe the only place in which that is adverted to, in the article, is the following. "The Chief Justice decided there was no ground of challenge." &c. Is this, I ask, any argument to prove that Mr. Melville was justified in publishing what he has? I am for my own part entirely at a loss to conceive what it has to do with the subject at all; but he has gone further in his article, he says - "Remember, reader, this is the same Judge that recommended the first proceedings against Mr. William Bryan." Now is it not clear that his intention was to insinuate that the Chief Justice decided without due consideration; I do not say that he goes so far as to insinuate that he decided unfairly; but really it is too bad to come here and address himself to this Court, upon a subject that no doubt is open to discussion, and which, if he had written a good article upon, he would doubtless have received credit for, but I repeat, it is too bad to offer such a ground in extenuation of such gross abuses; it was no doubt open to Mr. Melville to comment on the conduct of the Chief Justice, or any officer of the Court, so long as he did so fairly, reasonably, and dispassionately; and had he done so in this instance, it would not have been complained of - it would have been more reasonable, even if he had complained of His Honor not appointing triers, as is customary when objections are made to Jurymen; but really would not this have been too flimsy, a pretext too absurd a justification for Mr. Melville to set up? And then he talks about "a miserable quibble." Really if the prisoner nor his council made no application to the Court to appoint triers, why should Mr. Melville have objected to the course pursued? Then Mr. Melville complains of the nature of the proceeding instituted against him. I can only say, it is a course frequently resorted to in England - but I again say, that if I am wrong in maintaining that both the article in this paper, and the defence from beginning to end, do contain a most gross libel upon the Court and its officers, I will abandon it immediately, but if I am right, I contend that such (in this Colony), unprecedented a production ought to meet with the most summary punishment the law can possibly point out; and I can produce law to bear me out in this assertion - he then complains of his case not going before a Jury; in answer to that, I assert there was no case for a Jury to decide upon. The Contempt is on the very face of the article, from one end to the other; again, I say, if I have done wrong, let it be abandoned. [The learned gentlemen here quoted some law authorities, to bear him out in what he had done.] He then resumed - At Sydney, the proceeding in the case referred was just the same - the Attachment was granted without any motion at all, and they confessed the Contempt immediately, the Judges then ordered them immediately to be committed until they should be brought up for Judgment nor was it till after a long address from the defendant’s council that the Judges would allow them to put in bail. Now what has Mr. Melville done to day? - he says he considered the life of a fellow creature was at stake - no doubt of it - and he considered it called for observation by him as a public Journalist - he should have done it, then, so as to elicit truth, and not have attempted to bring the Court of Justice and all concerned with it into the utmost possible contempt. He then says, he employed two reporters to take down the trial, now I listened to this part of his defence with the greatest attention, for I am informed that the report is any thing but a fair report - and from looking over the depositions, I believe it to be a biassed and a prejudiced report - I should very much like to know if the two reporters he says he employed were bona fide reporters, or whether they were not the particular friends, or perhaps the relatives of the prisoner. This point I acknowledge is of the utmost importance, because, I consider if the reporter errs and renders an incorrect report, the printer is not to be blamed for that - but I deny that a printer has a right to employ to take reports, or to receive reports, from such persons as are not fit persons, or are not likely to furnish true and correct ones.

Judge Montagu. - Do you then consider that because the reporter may err and furnish an incorrect report, that the printer has a right to publish it and be exculpated in so doing?

Attorney General. - No. But I think if it could be proved, it would alter materially the position of the printer. Now, as to the falsity of the report, he says, Fogherty was placed at the bar, and that there was no evidence against him. That I deny. This is as much as to say that I, by virtue of my office, have placed that man upon his trial, without adducing any evidence against him; but, I do not appear here to ask for punishment for any libel Mr. Melville may have committed upon me, or any insinuations he may have thrown out respecting me in my official capacity - my character alone is sufficient to shield me from any such imputations, and, if such was not the case, I would never come into this Court to seek it. I neither seek a justification, nor do I want it; for my character is sufficiently well known, that Mr. Melville, or Mr. Any body else may say what they please of me, and call my integrity in question as much as they please, and I am confident he will not find six out of twenty that will believe him. Fogherty was not only charged with receiving fifty pounds of meat; but there was evidence, strong evidence - distinct evidence, and conclusive evidence, that he assisted in killing the beast.

Chief Justice. - The evidence proved, that he was only present after the beast was killed, with a bucket.

Solicitor General. - Yes

Attorney General. - But you see this is all omitted in the report - it is a garbled report - it is a perverted report - it is falsely stated, and the most material part of it omitted altogether; but, I contend, there is enough even on the face of this report, to prove that Fogherty was mixed up with the affair.

Chief Justice. - There was, if I recollect right no evidence, that he was present when the beast was killed; I believe he was charged with killing, with intent to steal; but I directed the Jury that the beast having been stolen before it was killed, he could not be found guilty on that count, as he was not proved to be present till after the beast was killed.

Attorney General resumed. But, let us see what are the charges made by Mr. Melville. He has this day appeared to defend himself against a charge of contempt; in that defence, he has made an attempt to justify his conduct, or at least, I suppose, he intended to attempt to extenuate it at any rate, and in so doing, I observed he took especial care to read the whole of his article through from beginning to end, commenting, as he proceeded, and attempting to justify his publishing it. Now, really, I cannot possibly believe, that he considered it necessary to read this most atrocious libel to the Court for the purpose of so doing, I really cannot think he is so very foolish. Let us look at the immense scope this production embraces - first, he commences by calling the attention of his readers to the origin of the difference between the Government and Mr. William Bryan. Now, what has or what can Mr. William Bryan have to do with this case at all? I am at a loss to find out, unless it was to prejudice the minds of the public against the decision of the Jury, and to insinuate that they were directed to convict Mr. Bryan if they could. Then he inserts a long article from a work he tells you is in a state of publication, respecting "Mr. William Bryan, an Irish Gentleman, &c.;" after which, he tells you, that people will not be surprised to hear of a charge being preferred against Mr. R. Bryan for cattle stealing. I really do not think there is a man breathing that could, unless he surrenders his reason - his common sense, yes, and his common honesty too, I say I do not believe, there is a human being breathing that would be foolish enough to assert, that Mr. W. Bryan’s character was impeached, because his nephew was a cattle stealer. Can anything be more absurd? Next the comes to the charge of Fogherty. Now, I do not think Mr. Melville likely to be one that can conceive, that any gentleman holding the high office of Attorney General, could act with so much imprudence, he must be convinced that any man holding such a situation, would have some little regard for his standing in society - would have some regard for his honor as a gentleman; at least, that he must be possessed of more discrimination, then to dare to put a man upon his trial for his life without evidence. Has he not the evidence before him - has he not the depositions forwarded to him from the Police-office? Are not those depositions all preserved - and if at any future period he is asked why he put such a man on his trial, is not his justification found upon the face of them - and if not, what is the consequence? Would he not immediately lose his place - and would he not richly deserve it? Really, it is most gross, disgraceful, and indecent, to lay such a charge against so high a Public Officer as the Attorney General, who, at any rate, is entitled to the respect due to a gentleman, and by virtue of my office, setting courtesy and every thing else aside, I consider I have an indisputable right to that title, and I really think I am entitled to it both by my birth and education. - But, if I have done what I am therein charged with, what Mr. Melville would impute to me, I never can have had - have not - nor ever can have a right to that appellation. What is slander - is falsehood - is such base injustice no crime? Why, really, before I could believe a man could be found base enough to accuse me of such crimes, I must be brought to believe that Mr. Melville has poured so long over the pages of his Colonial Times, that he is at length rendered unable to discover one character from another. Then he says, when Lieutenant Dutton was called, an independent Colonist, the Solicitor General stopped the proceedings, &c, saying "never mind, call the Jury afresh, as they are nominated - he should have said, as they are selected by the Governor." Here then you have it insinuated that there was the Governor, the Attorney General, the Solicitor General, the Chief Justice, and the Jury, all brought in as conspirators against an unfortunate individual, who, I doubt not, neither of them had before heard of; and who, I have been informed, was brought up to the trade of a carpenter. Mind, they are not employed to convict Mr. W. Bryan, who has nothing whatever to do with Mr. R. Bryan, or ever had, I am given to understand, any more than bearing the name of Bryan; really, this is too bad, to insinuate that the whole Government were concerned in a dire and gross conspiracy, that they nominated a Jury for the sole purpose of finding this obscure and unfortunate man guilty. Then he tells you, Major Wellman was first called, he is objected to; not because of any opinion he had been heard to express relative to this trial, but because he has, as Mr. Melville tells us in his defence, two sons in Government employ; and so we are to believe that because a gentleman happens to have two sons in the employ of Government, he is to be prevented from giving an honest and unbiassed verdict. Is this, I ask, doing good to society - is this a fair and legitimate argument? That a gentleman against whom no charge of a dishonorable nature has ever been made, should be objected to on such grounds. Is this the view Mr. Melville would give us of human nature? How debasing is the bare idea! Would he have us think so vilely of each other as this? Why, if such publications were tolerated, it would tend to pull us all down from whatever rank, honor, or station, we may hold, to the very level of the worst of creatures. No man could ever promulgate such sentiments, unless his heart was prostituted, and his mind must be as base as his heart. Yet, to such a view must we come, if we suffer ourselves to be tried by the standard of the Colonial Times. Then he says, the Chief Justice decided there was no ground of challenge; and here we have the next scene in this drama - "a dinner." Seven military men and gentlemen are to be bribed to give a verdict against the accused by being provided with a dinner and a few glasses of wine. Is it anything so very extraordinary that the officers should dine with His Excellency when he was at Launceston; but is not the conclusion to which the reader of such an article would naturally arrive, that they were invited in this instance, merely to be instructed as to the verdict they should give on the trial, if such is not the insinuation, why put in such a trivial circumstance at all, if it was not meant to found something of insinuation thereon - this then is another part of the foul conspiracy played off, if we believe the statements of Mr. Melville. Then he proceeds to talk about the necessary of blackening Mr. Bryan’s character before the British Parliament. I have certainly heard of souls migrating after death, but I must confess I never heard of their migrating during life time, and I never knew until I read the Colonial Times, that Mr. William Bryan had been charged with cattle stealing - but really this is a kind of logic I do not at all understand; I confess I cannot comprehend it; it as much as to say that if Mr. Robert Bryan was transported to Norfolk Island, that we should not be surprised to find Mr. William Bryan there in his stead. I cannot for one moment imagine, how the soul of one can have migrated into the other. Then after a long article which has been before published, he has Printed in italics - "The grossest perjury is most evident." Now all this, I hesitate not to say, is most shamefully exaggerated - and what conclusion can be drawn from such statements, but that the Jury thus nominated and selected thus prepared - thus bribed by the entertainment the day before, and thus packed in the Court, gave a verdict contrary to the dictates of their own consciences. The Jury were not placed there by a Colonial Act, but by British Law, and they have a right to protection from such calumnious insinuations. Is this I ask a spirit of fair discussion? Is this legitimate enquiry? Is this unprejudiced, and dispassionate argument? Is it not I ask, the very contrary? Is it not insinuating that the case of Robert Bryan, was a case got up, and that the Jury were a party to it. If such publications as these are to be tolerated - if such gross and malicious falsehoods - if such vilifying and atrocious publications as these are to go unnoticed, and unpunished, the Supreme Court had, in my opinion, better be at once abolished, and all crimes of whatever nature, go unpunished. Is it not casting a stigma on the community - is it not degrading this Community in the eyes of other Communities - is it not telling them that perjury is not only tolerated, but encouraged, and that in Van Diemen’s Land, justice is never done - are not such statements calculated to stir the community up to sedition, and raise them into rebellion, because they cannot obtain what they consider they have a right to. I ask, could this community stand one day, if such statements were believed, if they were, would not the whole Island be in arms against the men, who could dare to degrade themselves, by acting as the Colonial Times, insinuates the Chief Authorities have done - to be tried by a Judge, prejudiced by the Lieutenant Governor by a nominated, selected and packed Jury, and to have our dooms fixed, before being put on our trial, is it not monstrous, the bare idea of such atrocities. I do not mean to charge that this has been Mr. Melville's object in publishing this, but such is the conclusion to be drawn from such insinuations, if it could be for a moment believed that such things were practised, if any man could be found in the Colony base enough to assist in such a prosecution. I can only say that for one, I would be the first that would take up a musket, and advise every one to do the same, and level it at the breast of the first man that could be guilty of so base a crime, so that the lie is given to such insinuations direct, for they well know that they can obtain justice, and my firm belief is that it is as libelous, as dangerous, and as seditious a production as it is possible to have penned. Then he proceeds to tell you, that the Governor drives the Chief Justice over in his own carriage, and that they lived together while at Launceston - really I could smile, but that the subject is of too serious a nature - is not this as much as to say, this was a prosecution of the Government, and that the Governor took the Chief Justice over in his carriage to contaminate him on the road, and so he was prevented from doing justice. It is really monstrous; am I to be told that, because a Judge or any gentleman of a Jury had dined with my adversary, the day before I was tried, that he was not fit to try my case and to do justice? Am I to believe, that because I am to be on the Jury on a certain day, that I am to keep aloof from all the prisoner’s prosecutors, if this is to be the case, if this is the conclusion we are to come to, an end, will very soon be put to all mutual intercourse and interchange whatsoever. If human nature is so debased and degraded as this, I think the sooner we all retire to a cell, so as to prevent all communication with each other the better. As to the sentence passed upon Mr. Bryan, I don’t believe the Chief Justice ever heard of Mr. Robert Bryan before, and I think I can state the reasons of the sentence of death being passed upon him. When the Act alluded to passed the Council, the Chief Justice stated in the Council, that he should pass sentence on all the cases of cattle stealing that came before him, and I believe this is the first case on which His Honor has sat of the kind, since the passing of the Act.

[His Honor the Chief Justice said it was not.]

The Attorney General here read a quotation for Starkey, on the liberty of the Press.

He then resumed, if such publications were suffered to pass by without summary punishment, that it would be any thing but beneficial to the individual publishing them; and now I have discharged my duty as a member of the community, and it only remains for Your Honors as the Judges of the land, to fulfil yours, and keep justice free from any taint or suspicion that may hereafter be cast upon it, and to support that dignity which the British Courts of Justice boasted as being invaluable.

Their Honors after a few minutes, said they would take until Tuesday next(this day) for consideration.

Mr. Henry Melville appeared this day, to receive the judgment of the Court. His Honor, Chief Justice Pedder, after making many comments (which will be inserted in our next) on the article in question, said he should pass a more lenient sentence upon him from the consideration that the case had been brought before the Court under a Writ of Attachment, which compelled the Judges to act both as Judges and Jury; had it come before him under any other circumstances, he should have considered it his duty to pass a much heavier sentence. His Honor then said, "the sentence of the Court upon you is, that you be imprisoned in His Majesty’s gaol at Hobart Town for twelve calender months - that you pay a fine of £200 to the King - and that you be bound for your good conduct, for two years, yourself in £300, and two sureties in £150 each - and that you be further imprisoned until the fine be paid."

Pedder C.J. and Montagu J., 13, 17 November 1835

Source: Tasmanian, 27 November 1835

The following is the report of the judgment upon Mr. Melville delivered by His Honor the Chief Justice, copied, we repeat, from the Colonial Times, where alone any report of it has appeared:-

SUPREME COURT - Sittings in Banco

Before their Honors the Chief Justice, and Mr. Justice Montagu

Tuesday, November 17

On the opening of the Court this morning, the Court-house was more thronged if possible, than on any former occasion, with the most respectable persons of Hobart Town, and many from the surrounding neighbourhood - it having been understood, that Mr. Henry Melville was to be brought up for judgment, the Chief Justice said.

I presume you are here for the purpose of receiving judgment of the Court.

Mr. Melville - Yes, your Honor.

The Chief Justice. - The Court will therefore proceed at once to give judgment. I shall first mention that we give no judgment upon that part of the case which relates to third Interrogatory, your answer to which was given under protest. With respect to the article itself, I shall not read it all through, but remark in the first place, that the Court entirely agrees with the Attorney General, that it is a most heinous misdemeanor and contempt, and I tell you that if you had been proceeded against by information, the punishment would have been far more severe. I say this, because the other day when you appeared before the Court to make your defence you had an opportunity of shewing that your statement was fair, if you could, or at any rate, of stating your regret, if you had discovered that you had been misinformed, but you did no such thing, you up to that moment appeared to justify the publication, and to contend that it was an endeavour to correct abuses, in fact that you had not outraged decency and propriety. It is impossible to look upon the article in that light, it can bear no such construction. We, who have to deal with it, take a totally different view of it. You remark on the Chief Justice being a member of the Legislative Council. Now, Sir, if you had confined yourself to discussing with candour the proceedings at the trial, - I will go further, if you had overstepped and committed errors in your remarks, you would not have been subjected to the proceedings now taken against you, but if you - if any man chose to go one step further, and mix up this Court with the Government, and insinuate that the Court is base enough to lend itself to the Government for the purpose of injustice, it then becomes a contempt. Your meaning is plainly this, that I, as member of the Legislative Council had given an opinion adverse to the interests of Mr. William Bryan, and that because I had done so, I could not do justice in this Court. A little further on you mention Fogherty, and clearly insinuate that he was included in the information to prevent the other prisoners from having the benefit of his evidence, although the Attorney General knew perfectly well that there was no case against him. Then you go on to say, "after two of the Jury had been called &c." and draw base conclusions from that You have had ample opportunity of shewing that all this was fair if you could. We, I repeat, take a totally different view of it, there is no comment whatever, but a strong of scandalous insinuations which clearly have for their object to create a belief, that the Government have done injustice to Mr. William Bryan, and are afraid of the consequences, and so for the purpose of justifying themselves, a case is got up (this is your own expression) against his nephew. There are the most scandalous insinuations against me personally. You have insinuated, moreover, that the Jury lent themselves through wickedness or weakness to the Government, that they were bribed by a dinner from the Governor. Now, if any man of honest, of common sense, will say that this article can bear any other construction then that which I have given it, I will be content for the future to be supposed not to have the common sense of the meanest of mankind. I knew nothing of the case, and I believe that I can say as much for my colleague, Mr. Justice Montagu until it was brought before us. If we had, it would probably have been our duty to have taken notice of it, and to have ordered our officer to issue an attachment. As it is, we have to do our duty, and we should be guilty of a dereliction of duty to our Sovereign and to society if we did not treat this case as one of vital importance. The Attorney General was quite right when he said it was calculated to lead to treason. The last time that you were before the Court, you read through the whole offensive article, commenting upon it as you went on, and I am at a loss to discover for what purpose you did so, unless for that of republishing it, in order that persons who had never read it might then hear it. It was in your power then to have confessed your error and to have expressed contrition; but you exulted in that which you had done; in my opinion your conduct then was a gross aggravation of your offence. I should be sorry to misquote you, sir, but I will read some of your expression from notes which I took at the time - you say your statements cannot be refuted, and again, respecting myself, you conducted yourself in a manner exceedingly insulting - you said that you were in error in stating that I accompanied the Lieutenant Governor to Launceston, as I only went as far as Ross with the Governor, but you added, however, to that, that I lived with the Governor the whole time I was at Launceston, - so that as I had not the honor of a seat in His Excellency’s carriage the whole of the way, I was to be influenced by being his guest. You spoke about constructive libels; - I have heard so much of this nonsense from you and from others, usque ad nauseum, that I did hope that common sense would have prevented you from repeating it. You must be aware, sir, that to constitute a libel, it is not necessary that there should be direct accusations, insinuations are quite enough, especially when they are so plain as yours. I repeat, that had you been proceeded against by information, the punishment inflicted on you would have been severer. However, it is absolutely necessary to punish such publications, especially in the present state of the Press in this Colony, the repeated outrageous attacks upon the Government and every person connected with it. It is now my duty to pass sentence upon you: - The Court sentences you to be imprisoned in His Majesty’s gaol at Hobart Town, for 12 calendar months; to pay a fine to the King of £200; to enter into recognizance for your good behaviour for two years, yourself in £300, and two sureties in a £150 each, and further, that you be imprisoned till the fine be paid. Is the Sheriff in the Court?

Sheriff. - Yes, sir.

Henry Melville is committed to your custody in pursuance of that sentence.

Mr. Melville was then removed to the gaol.

Notes

[1] See also R. v. Bryan and Stewart, 1835. For Melville see E. Flinn, ‘Henry Melville (1799-1873)’, ADB, vol. 2, p. 221-2 and E.M. Miller, Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney: Sydney University Press, 1973, pp. 43-53. While he was in gaol Melville wrote The History of the Island of Van Diemen’s Land from 1824-1835. The Melville case prompted the resignation of Chief Justice Pedder from the Executive Council, J.M. Bennett, Sir John Pedder: First Chief Justice of Tasmania, Sandy Bay: University of Tasmania, 1977, p. 26.

[2] See also True Colonist, 13 November 1835 (short report plus editorial comment). Given what happened to Melville, the True Colonist expressed reluctance to say much about the Bryan case, but did so in any event at great length. It also published extracts from the interrogatories put to Melville: True Colonist, 27 November 1835. See also Cornwall Chronicle, 21 November 1835 (editorial, criticising both the decision and punishment, and the general government of Lieutenant Governor Arthur); and Hobart Town Courier, 20 November 1835 (two reports).

Melville was the printer and publisher of the Tasmanian.

For the case on which this action was based, see R. v. Bryan and Stewart, 1835.

The Tasmanian commented on this on 27 November 1835, claiming that the newspaper accounts of the trial differed from one paper to the next. The Hobart Town Courier and the Colonial Times each accused the other of inaccuracy. The Tasmanian attacked what it saw as the unlimited power of the court to punish contempt.

On 17 December 1835, Melville also pleaded not guilty to an information for libel on Pedder C.J., published in the Colonial Times: Hobart Town Courier, 25 December 1835.