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

Address to Jury, 1841

Willis J.

Source: Port Phillip Patriot, 18 April 1841

BEFORE HIS HONOR, THE RESIDENT JUDGE.

AFTER the proclamation for the suppression of vice had been read, the following Jury of inhabitants were impanelled:---Skene Craig, J.M. Chisholm, D.S. Campbell, George Cavenagh, John Carey, James Dredge, J.O. Denny, John Dunbar, J.M.Darlot, John Dinwoodie, John Caulfield, and Henry Condell, foreman.

His Honor then delivered the following charge:---

GENTLEMEN---On opening the last Criminal Sessions, I strongly urged the advantage and necessity of a constant and rigid adherence to truth. My advice seems to have been disregarded, for as we are told by higher authority, "there is nothing that tends so much to the subversion of all truth as defamatory papers and pamphlets."

They deserve (says this author,) the utmost detestation and discouragement of all who have either the love of their country, or the honor of their religion, at heart." "I have not stuck (he adds,) to rank those who deal in these pernicious arts of writing, with the murderer and assassin. Every honest man sets as high a value on a good name as upon life itself, and I cannot but think that those who would privily assault the one, would destroy the other, dare they do it with impunity." Such are the sentiments of that great and good man, Mr. Addison, himself a contributor to the most celebrated periodical publications of his day, but the Spectator was written to instruct and to amend society---and the Tatler contained not private slander nor public abuse. There never did, nor ever will live that man on earth, whose life could be secure from misrepresentation. They who hate the truth , must never be expected to love those who insist upon it, and of those whom they do not love, they will be tempted to speak evil. Hence the propriety of that sacred declaration, "Woe unto you when all men speak well of you." For the world at large will never speak well, but of those who make all things easy, and give them no disturbance--- those who care for nothing but themselves, and speak smooth things , and these alone will be well spoken of. I believe that to evil-speaking, to ill-timed reproach, and unfounded calumny, not only the greater part of the vexations of life, but many of the crimes that disgrace humanity, may justly be ascribed.

Nor can I imagine that he who echoes a reproach, repeats a slander, or disperses a libel, is much less desirous of mischief than the author; nor that those who take pleasure in hearing or reading such scandals, fall very short of the guilt of the first composers.

"If calumnies (says St. Gregory) have always been the delight of the hearers, and a gratification of those persons who have no other advantage over honest men, is not he who takes pleasure in reading them, as guilty as he who composed them."

It is an uncontested maxim, that they who approve of an action, would certainly do it if they could; that is, if some reason of self-love did not hinder them. Cicero tells us that there is no difference between advising a crime, and approving of it when committed. Thus the Roman law subjected the approvers and authors of libels to the same penalty. If calumny were more generally discouraged, those who pander to the base appetite of the unworthy, by making it a trade , would soon find it so little profitable that self-interest would make them silent. The violation of any one Divine Commandment we know will be as fatal to us hereafter as the breach of any other; why then do we daily reprobate and condemn the robber and the murderer, and not equally denounce the bearer of false witness , the libeller, and the slanderer?

I will not allude to the libellous attacks which have been made upon me, both in my public capacity as Resident Judge of this District, and on my private conduct in domestic life; but I will advert to a cowardly publication of no very distant date, (August, 1840,) in the form of a prospectus of the life of the editor of one of the newspapers of this district, who, as such, is in some sort a public character---and who, it might not have been unreasonably supposed, from having himself been thus attacked, if from no other motive, would have abstained from all aspersions on others. But the injury is not limited to the individual abused, it extends its baneful influence to the whole community. Could it have been surprising if His Excellency the Governor, after the speech, for instance, of Mr. George Arden, as reported in the Port Phillip Herald newspaper of the 1 st of January last, should have declined that visit to this District, which I rejoice to say is now about to be hailed with so much enthusiasm? This speech, in a passage I will not repeat, clearly imputes (as I read it) "tyranny, and uniform and relentless oppression" to his Government, and to Governor Gipps personally, "that he shuts his ears to the complaints of the people, and is vindictive, arbitrary, and unjust." If this were true , who, I ask, would emigrate to this colony---who would live under such a government as this speaker described? But if it be false , AND FALSE IT IS, what can be thought of the author and publisher of such slander---of slander so unmerited by the exalted individual, and so injurious to the best interests of the colony?

I have seen enough of colonial service, and have had sufficient experience, I think, to enable me to form some opinion as to the merits of a colonial Governor; I have known at least seven or eight Governors, and I verily believe, from ample opportunity of observation, that a more honest, straightforward, indefatigable representative of a British Sovereign---one more quick to perceive, or more rigorous to act---one more laboriously anxious for the prosperity of every part of the colony---one more free from partiality for any particular place, or for any special congregation of colonists, than His Excellency Sir George Gipps, never ruled a British Province. There are points in which, were my opinion required, I should respectfully dissent from His Excellency. But his certainty of aim---his steadiness of will---his single mindedness---his noble unswerving onwardness of purpose---give a value to his acts beyond all price. Whatever may be his object, he sees it clearly---he sees the straight road leading to it, and along that road he ever keeps advancing, heedless of all clamour, and removing every obstacle with a firm and equal hand. He seeks not that popularity which now follows him.

Virtue regulae xxxxxxxxxxxxxxx

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Was the Governor, or his Government, such as Mr. Arden is reported to have described, His Excellency would incur a responsibility not only to the legitimate power of the nation, but a responsibility from which no earthly power could absolve him, a responsibility to conscience and to glory, a responsibility to the existing world, and to that posterity which men of his eminence cannot avoid, for glory or for shame; a responsibility to a tribunal at which Governors and Ministers and Kings and Parliaments and even nations themselves, must one day answer. I believe, however, that he has but little to answer for. History will record his fame as a Governor, his virtues as a man are already embalmed in the bosoms of his friends, yet he has been thus [xxxxxxxxxxxxxxxxxx], and may again be slandered if scandal be permitted. But, however despicable, however loathsome to all good men, the prevalence of slander must always be, yet its blighting effect on the character of the place whence it emanates is not perhaps the least evil. Believe me, gentlemen, the character of this province must be greatly injured by it, injured wherever a British ship can sail, or an English newspaper be read. The peace---the reputation---the interest of the community---the cause of religion---and the voice of justice, loudly calls upon us to abate this nuisance. Think not in doing so we shall trespass on the Liberty of the Press , we shall but secure its freedom, and purpose.

"In what," (says Mr. DeLolme) "does the liberty of the press precisely consist? Is it a liberty left to every one to publish any thing that comes into his head, to calumniate and blacken whomsoever he pleases? No---the same law that protects the person and the property of the individual, protects his reputation." (Constitution of England, page 2??1).

But what is liberty itself without [?????????]? "It is," (says Mr. Burke,) "the greatest of all possible evils, for it is folly, vice, and madness without tuition or restraint." Are we then to submit to the licentiousness of the press? Are we to be ruled by the editor of a newspaper, or by the laws of our country?---by a man whom may possess a press and types, and prostitute them to unworthy purposes, or by those laws and that government which it is alike our duty and interest to respect and revere?

That great Judge, Lord Ellenborough, (himself a man of liberal principles as they are called), in White's case for a libel on the Duke of Cumberland (15 th March, 1613[??]), thus addressed the jury---

"Was it to be endured that this journalist should erect his tribunal, and should summon whom he pleased before his spurious jurisdiction, while the laws of the land were in full operation? Was such a spurious jurisdiction to be suffered to impute crimes, and then to put a string of questions to the accused? I know it is much the habit of the journals of these times to erect themselves into a tribunal, and to call upon every man to whom they may impute a crime, to obey their tyrannical despotism, and to answer the charges preferred against him. I declare, that sooner than submit to be [????? chised] in this way, I would rather live under the arbitrary rule of the tyrant of France, for I should deem that preferable to living under the arbitrary despotism of these journalists."

Such was the language of one of the greatest magistrates of his age. How far it is in the interest of the public that libels on those entrusted with the administration of justice, should be suppressed, will be met by the extract I am about to read from the sentence of the Court of King's Bench passed by Mr. Justice Ashurst, on Lord George Gordon, for libel, on the 18 th Jan. 1?68 [??].

"As to that part of the libel (said he, which reflects on the Judges themselves, they would pass it over with that contempt which it deserves but that it highly concerns the good of the community that the dignity of the law, and the administration of justice, should be maintained against the attacks of evil-minded people, who endeavour to bring them into contempt. By endeavouring to asperse those who are entrusted with the administration of the laws, they at last are apt to bring the law itself into contempt, and to undermine the foundation of all government."

It is the boast and pride of England, that the Judges are [??????????????] and independent. If, then, our laws are to prevail---our government to be respected, if that peace is to be preserved which we are this day assembled to protect, if we desire to live as Christians---to raise the character of the province, and to advance its interests; let us remember and act upon the Divine commands--- to love our neighbour as ourselves---to do to all as we would they should do to us---to honour and obey the Queen and all those in authority under her---to bear no malice nor hatred in our hearts---and to keep our tongues from lying and slandering. Acting upon these principles, we shall no longer suffer our eyes to be offended, nor our ears to be polluted, by such calumnies as those which seem already to have obtained such encouragement and circulation; we shall refuse to countenance and to do our utmost to suppress all libellous and calumnious publications, we shall put to silence all rumours detracting from our neighbours fame, we shall reverence the doctrine of our holy religion, the law of God, and of our country. Thus shall we advance the course of peace and virtue, and slay the hydra slander, which otherwise, in the words of our inimitable bard,

[xxxxxxxxxxx] might with a foul intrusion enter in,

And dwell upon our graves when we are dead.

Here, under ordinary circumstances, gentlemen, I should have concluded, but I owe a debt of gratitude which, I trust, you will permit me freely to discharge; that debt is due to my friend Mr. H.F. Gurner, who has, almost constantly since my arrival in New South Wales, acted as Registrar in the courts in which I have presided, and whose services, as a government officer in this district, I am now about to be deprived of. If there be any merit in the primary formation of this Court, much is due to the assistance of my friend, who, though he now leaves me, I have the consolation to know, will, as an attorney, still remain an officer of this court, and as such, I do not doubt, be an example to those in the same branch of his profession, of industry and perseverance, of integrity and diligence, and to all, in whatever rank of life they may be, of "an honest man, the noblest work of God."

At the conclusion of His Honor's address Mr. Cavenagh, who was on the Jury, requested that, after the remarks which His Honor had just made, he might be allowed to retire.

Judge Willis---Certainly, Mr. Cavenagh.

Mr. Francis Dutton was called on the Jury, and Mr. Cavenagh retired.

Two Geelong cases were then called on, but counsel not having received instructions to defend in sufficient time, His Honor adjourned the cases, but at the same time observed that in future he would not postpone any case where the prisoner had the usual warning to take his trial.

Willis J., 15 July 1841

Source: Port Phillip Patriot, 19 July 1841

Before His Honor the Resident Judge.

On the opening of the Court the Deputy Registrar read the proclamation for the encouragement of piety and virtue.

On taking his seat His Honor observed that at the time of holding the first Criminal Assizes in this province, he had stated, it was the duty of all magistrates to attend the Criminal Sessions, for the purpose of giving such information as might be required in these cases, where they had been concerned in the previous examination, and for which neglect he had the power to fine them; he (Judge Willis) held several depositions taken before Mr. Simpson, a Justice of the Peace, who was not as supposed the Acting Police Magistrate, he never having qualified himself to hold that office before him, which he should have occasion to allude to in his address to the Jury. Why was not Mr. Simpson in attendance? Mr. Fenwick, the Police Magistrate from Geelong was present, and he (Judge Willis) thought it was the duty of Mr. Simpson to have attended also, he would not be treated with such disrespect! Mr. Simpson had better be sent for.

The following jury were then impannelled, Owen Morgan, John M'Coll, Donald M'Lachlin, John MacIntosh, William Mortimer, William Marshall, Robert Ormond, John Orr, Donald Gordon M'Arthur, James Malcolm, Thomas Marshall and George Porter, foreman.

His Honor then delivered the following address to the Jury:---

Gentlemen,---Nothing is more common (as I have elsewhere observed) than to hear those who are in a great measure ignorant of the criminal law of England, charge it with numerous hardships, and indiscriminate rigour; whereas, all who have studied it minutely, agree that it wants nothing to make it admired, but to be understood. It is so agreeable to reason, that even those who suffer by it cannot charge it with injustice; so adapted to the common good as to permit no vice to go unpunished which requires to be restrained, and yet so tender of the infirmities of human nature as never to refuse any indulgence which the safety of the public permits. It gives the Sovereign no power but that of doing good, and deprives the people of no liberty but that of doing evil. By this law all crimes are accurately defined---penalties (so far as they reasonably can be) are fixed and determined---accusations are public---trials are in the face of the world---torture is unknown---and every real or supposed delinquent is judged by such of his equals against whom he can find no exception, nor even personal dislike.

The object of this law is the protection of our persons and our property. The violation of it may be attributed either to a bad disposition---the pressure of want---the facility of commission---or to ignorance. A bad disposition is most frequently generated by neglect of true religion which teaches man to set God always before him; so much so indeed, that in the accusation of any very serious crime the prisoner is charged with "not having had the fear of God before his eyes." The pressure of want is, under Providence, in this district, rarely felt, nor do I ever remember, since my residence in this colony, any case to have come before me where want alone had been the parent of guilt. The facility with which crime may be committed naturally induces precautionary measures for its prevention, and the endeavour to check its progress by the example of punishment. But the chief source of all crime is, in my opinion, ignorance . It has been ascertained beyond all question, that the vast majority of criminals are those who can neither read nor write, and who have been equally neglected with regard to religious instruction. The security of the gallows has been justly rejected as worse than insufficient for the suppression of guilt. Transportation to one at least of our penal settlements in this hemisphere seems to have been shorn of its terrors; and the whole of the present system of secondary punishment is acknowledged to be a problem whence no safe nor satisfactory conclusions have been hitherto deduced.

May I not venture then to urge the experiment of eradicating crime by education, by instruction in religious knowledge and industrial training, (without which no population can be virtuous and happy,) and by constantly impressing on our fellow subjects those truths which offer the strongest inducements to refrain from sin. A knowledge of the divine law will lead to an acquaintance with the laws that are derived from it, viz., those by which we are governed. The infirmities of the best among us, the vices and ungoverned passions of others, the instability of all human affairs, and the numberless unforeseen events which the compass of a day may bring forth, sufficiently evince that to know what the laws of our country have forbidden and the deplorable consequences of wilful disobedience, is a matter of deep and general concern. No rank,---no elevation in life,---no uprightness of heart, no prudence nor circumspection of conduct, should induce a man to conclude that he may not at some time or other be deeply interested in the knowledge of this science.

"It would be strange," says Mr. Locke, "to suppose an English gentleman should be ignorant of the law of his country. This, whatever station he is in, is so requisite from a Justice of the Peace , to a Minister of State, that I know no place that can be well filled without it."

I go still further, and believe it to be essential that in every station in life that knowledge of the law should exist, which teaches what it commands, and what it forbids.

"Est enim unum jus, quo devinaia est hominum societas, et quod lex constituit una; quae lex est ratio imperandi, at quae prohibendi; quam qui ignorat, is est injustus sive illa est scripta {????????} sive nusquam."

More especially is a knowledge of the law requisite for those who are intrusted with its administration, that they may know the jurisdiction they possess; and how to determine such matters within their jurisdiction as may come before them---for I know of nothing more important than that those in judicial situations should never exceed their authority, nor act without sufficient previous legal qualification.

When on a very recent occasion in another, and inferior court, in which by virtue of my office as judge of this court, (and not merely as a barrister elected by others or nominated by the executive,) according to a local enactment, it is my duty to preside; I declared, "that rather than exercise that jurisdiction which I in my conscience believe the court would not under the circumstances have possessed, I would retire." I did so to express in the strongest manner the imperative necessity of avoiding any possible excess of jurisdiction, and of making those who had associated themselves with me on the occasion, aware of the view which I had taken of the subject; and I honestly declare that no disrespect, nor disregard for their opinion was ever contemplated, or intended.

When I remembered the inconvenience, to say the least, of the unwarranted proceedings (as I believe them to have been) at the January Quarter Sessions previously to my arrival, and that perhaps the best plea for such proceedings was ignorance of what constituted the sufficiency of the necessary authority to bring the cases before that court, a point which had, as I am informed, been discussed on that, or on a previous occasion---when I bore in mind what, according to my information, had been the conduct formerly pursued at the Court of Quarter Sessions for this district by a practitioner in that court, I felt it my duty when addressing that gentleman, strongly to express my opinion, and to declare that "I was not sitting there as a common chairman ; that I was not a Barrister who had never had a brief, nor one called to practice at the bar of a colonial court." I made these observations solely on public grounds , and as concerning the interests, and business of the public; and however I may regret what I conceive to have been their necessity , yet I can never allow any personal delicacy to interfere with what I honestly deem requisite to declare in the due discharge of my official duties.

I lament also that no later than Tuesday last, I should have had occasion to allude to the assumption of a style of office, in a public proceeding, by a gentleman who had not in my opinion legally qualified himself to sustain it. That gentleman some time since resigned altogether an office which he had previously very creditably discharged. Subsequently to his peremptory resignation, he again (no doubt from the best motives), acted in his former capacity, without taking those steps, which, having once denuded himself of office, were in my opinion absolutely requisite again to enable him legally to act, or assume the title which he did in an affidavit which he himself wrote. Had he merely desired to have his resignation accepted, when the government, whose officer he was, should have nominated a successor, no difficulty would have arisen. This matter was brought under my particular notice in consequence of an official communication respecting this office which I very recently received. These instances will show, I think, the necessity of a sufficient acquaintance with our laws by those who undertake their administration. But to put it in a still stronger light by a few extreme examples. It is laid down in our books,

"That if a Judge ignorantly condemns a man to death for felony when it is not felony, for this offence the judge shall be fined and imprisoned and lose his office. If a judge who has no jurisdiction of the cause, give judgment of death (and probably the same would hold with regard to an illegal sentence of transportation or any other sentence of an equivalent description,) such judge is guilty of felony. And if Justices of the Peace, on indictment of trespass, arraign a man of felony, and judge him to death, and he is executed, it is felony in them."

To you, gentlemen of the jury, an acquaintance with the law that governs the cases that may come before you, cannot be profitless. Even to the unfortunate persons who may be put upon their trial such knowledge may enable them more easily to obtain what the court according to its ancient form always prayed for them, (namely,) "a safe deliverance." May the Almighty giver of all good grant us such a knowledge of His law, as may protect us from all wickedness and dangers; and enable us in such wise as to understand and act upon the laws of our country, that we may duly carry them into execution so as to suppress the prevalence of crime, and promote His honor and glory.

Published by the Division of Law, Macquarie University