Francis Forbes - Correspondence mainly relating to liberty of the press, 1825-1828

Francis Forbes - Correspondence mainly relating to liberty of the press, 1825-1828
A 748

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Copy

No 5

Downing Street
July 12th 1825

Sir

I have had the honor to receive a Despatch from Sir Thomas Brisbane dated the 15th January last No. 21 – inclosing for my perusal a collection of newspapers published in New South Wales in order that I may be enabled to judge how far the abolition of the restrictions which formerly existed on the freedom of the Press in that Colony is calculated to promote the welfare of His Majesty’s Subjects resident there.

It is unnecessary that I should make any particular comment
upon

Lieut General Darling
&c &c &c

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upon the content of these newspapers. It is however impossible not to perceive, from the most cursory examination of them, that the entire exemption of the Publishers from all restraint of the local Government, must be highly dangerous in a Society, of so peculiar a description.

I should however be unwilling even while the Convict Population preponderated so greatly in numerical amount over that of the free settlers to subject the Editors of these publications to restrictions at variance with the spirit of the law in force in the Mother Country.

But you are aware that, even in England, no person enjoys that absolute discretion with regard to the
publication

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publication of newspapers, which, as I collect from Sir Thomas Brisbane’s Despatch is claimed by the Editors of the Journals which he has transmitted. Various restraints on this liberty have been imposed by the Acts of Parliaments 38th Geo.3.c.78, and 60th Geo 3rd, and [indecipherable] Geo 4th. C, g. By referring to those Statutes you will observe that the names of the Printers, Publishers, and Proprietors, must be delivered on oath, at the Stamp Office, and printed in every successive newspaper; and that the Publisher must enter into a Recognizance or Bond to the Crown, with two sureties for the securing the payment of any Fine which may be imposed on him, upon conviction for a blasphemous or seditious libel.

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I should apprehend that, for reasons which it would be needless to point out, neither of these Acts of Parliament extend to New South Wales, but I am not aware of any reason why you should not, with the advice of the Legislative Council of that colony, promulgate a Law to the same effect, and extending somewhat further, the principles which those Acts of Parliament have sanctioned.

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enacted, that no Newspaper be published without a license, to be applied for to the Governor, that such License, should in no case be made to continue in force for more than One Year from its date, and that it be made resumable before the expiration of the year, if an order to that effect be issued by the Governor with the advice of his executive Council, the reasons for every such order of resumption being first duly entered on the Minutes of Council and transmitted for His Majesty’s information through one of His Principal Secretaries of State by the first opportunity. You will further propose, that every such licence should be, ipso facto, forfeited upon the conviction of the Publishers,
Printer

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Printer, or Proprietor for any blasphemous or seditious Libel. The Licence ought as in England to bear a Stamp but, as it is resumable, with a Duty not exceeding One Pound, and each number of each successive newspaper ought also to be subjected to a Stamp Duty. The produce of the duty thus to be raised would most properly be declared applicable to the defraying the charges of printing public Acts, proclamations, and orders. The Colonial Treasury might thus be relieved from the charge unexpectedly thrown upon it by the Government Printer having been deprived of the exclusive right of publishing a Colonial Newspaper, in consideration of which he was formerly content to execute
this

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this branch of the Public Service, without a direct pecuniary compensation. In fixing the amount of the Stamps you will therefore so regulate the scale of the duty, that the produce of it may be adequate to provide for this charge

I have the honor to be
Sir
Your most obedient
Humble servant
“signed” Bathurst.

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12 July 1825
(Bathurst)
re the Press

The Licencing question

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Copy

No 5

Downing Street
July 12th 1825

Sir

It is unnecessary that I should make any particular comment upon the content of these newspapers. It is however impossible not to perceive, from the most cursory examination of them, that the entire exemption of the Publishers from all restraint of the local Government, must be highly dangerous in a Society, of so peculiar a description.

But you are aware that, even in England, no person enjoys that absolute discretion with regard to the publication of newspapers, which, as I collect from Sir Thomas Brisbane’s Despatch is claimed by the Editors of the Journals which he has transmitted. Various restraints on this liberty have been imposed
by the

Lieut Genl Darling
etc. etc. etc.

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by the Acts of Parliaments 38th Geo.3.c.78, and 60th Geo 3rd, and [indecipherable] Geo 4th. C, g. By referring to those Statutes you will observe that the names of the Printers, Publishers, and Proprietors, must be delivered on oath, at the Stamp Office, and printed in every successive newspaper; and that the Publisher must enter into a Recognizance or Bond to the Crown, with two sureties for the securing the payment of any Fine which may be imposed on him, upon conviction for a blasphemous or seditious libel.

You will therefore avail yourself of the earliest opportunity of proposing to the Legislative Council the enactment of a Law founded, in general, upon the provisions of the Statutes to which I have referred. You will further propose it to be
enacted, that no Newspaper be published without a license, to be applied for to the Governor, that such License, should in no case be made to continue in force for more than One Year from its date, and that it be made resumable before the expiration of the year, if
an

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an order to that effect be issued by the Governor with the advice of his executive Council, the reasons for every such order of resumption being first duly entered on the Minutes of Council and transmitted for His Majesty’s information through one of His Principal Secretaries of State by the first opportunity. You will further propose, that every such licence should be, ipso facto, forfeited upon the conviction of the Publisher Printer, or Proprietor for any blasphemous or seditious Libel. The Licence ought as in England to bear a Stamp but, as it is resumable, with a Duty not exceeding One Pound, and each number of each successive newspaper ought also to be subjected to a Stamp Duty. The produce of the duty thus to be raised would most properly be declared applicable to the defraying the charges of printing public Acts, proclamations, and orders. The Colonial Treasury might thus be relieved from the charge unexpectedly thrown upon it by the Government Printer having been deprived of the exclusive right of publishing a Colonial Newspaper, in consideration of which he was formerly content to execute this branch of the Public Service, without a direct pecuniary compensation. In fixing the amount of the Stamps you will therefore so regulate the scale of the duty, that the produce of it may be adequate to provide for this charge

I have the honor to be
Sir
Your most obedient
Humble servant
signed “Bathurst”.

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Private

Sydney 1st December 1826

Sir,

I have the honor to acknowledge the Copy of a Despatch, which your Excellency did me the honor to enclose, dated Downing Street. July 12th 1825, containing the outline of a law proposed to be submitted to the consideration of the Council and having in view the restraining of the abuse of the Press in the Colony – I feel obliged by the opportunity given me of offering some remarks on the proposed law, which would not be open to me, when called upon to certify my official opinion upon it, preparatory to its being laid before the Legislature. For the sake of perspicuity, and to afford facility of reference to the several points, I will throw my remarks under different heads –

1. It is proposed that no newspaper shall be published without a license from the Governor, which license shall be resumable by the Governor, under circumstances, which, however guarded yet do, in fact, reduce the act of resumption to one of mere discretion of the government – How far a local act, to such an extent, would not be “repugnant to the law of England, but consistent with such Laws, so far as the circumstances of the Colony will admit,” is a question, upon which it is unnecessary at present, to offer a definitive opinion – It will however readily be admitted, that
it is

His Excellency
The Governor
&c &c &c

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it is a question open to argument and one upon which different , and even opposite opinions may be entertained. On a recent and rather memorable occasion, the Late Lord Ellenborough is reported to have expressed himself as follows – “ the law of England is a law of liberty, and consistently with this liberty, we have not what is called an imprimatur; there is no such preliminary license necessary. “(State Trials. Vol. 29 page 49.) I have made this quotation not as decisive of the point under consideration, but to shew that the question is fairly open to a difference of opinion.

2. I am inclined to believe that it would be more agreeable to His Majesty’s Government, to have the proposed law passed in the Colony, that to have its provisions discussed in Parliament, and if it were practicable, I am convinced of the propriety of the discussion being confined to New South Wales. But I fear this is impossible – Had your Excellency proposed this law on assuming your government, it would have cast a shade of unpopularity over the first act of your Administration from the effects of which it would have become exceedingly difficult to restore it – I am confident that it would have caused meetings of the people, and that Petitions to Parliament would have been deliberately prepared, supported by a sufficient number of persons, and accompanied by a sufficient body of arguments, to enable members on the
opposite

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opposite side of the house, to make a popular, and even plausible stand against the measure, when the new bill comes under the consideration of Parliament – To have kept the discussion out of Parliament would, your Excellency must feel, have been impossible – it would have come on and then, not as a question of simple expediency, to be determined by an abstract view of the condition of the Colony – but in the angry tone of accusation and complaint – the Chief Justice would have been charged with certifying, and the Council with passing acts, contrary to the fundamental laws of the constitution, and in defiance of the limitation expressly put upon their powers – These charges would have been supported and aggravated by Members of Parliament, high in the estimate of public opinion for their talents and learning; and the effect, whatever might be the result of the measure itself, would have been not merely injurious to the character of the local authorities, but destructive of that ruling influence over the minds of the people, without which government is resolved into mere force – I make these remarks with confidence, - they are now opinions, but they would have been facts – and I am sure that your Excellency agrees with me in the view I have
taken

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taken of them upon hypotheses –

3. I assume that the question of the press cannot be kept out of discussion in Parliament, if any measure of restriction should be resorted to before the preparing of the new act – I therefore submit to your Excellency whether it will not be more expedient to suspend any legislative measure either until the new act is passed, or until it will become too late for any querulous petition from this Colony, to disturb such measures as His Majesty’s Secretary of State may deem it proper to bring before Parliament – and I would humbly, through your Excellency, press upon His Majesty’s Government the expediency of introducing the restrictions into the new Act, in preference to exposing the local government to the odium and opposition which the measure; however called for and essential to the peace of the Colony will not fail to bring upon us –

I have the honor to be, &c
Private

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Private and Confidential

Governt House 2nd April, 1827

My dear Judge, The result of the Trial for Libel, which took place last week, has induced me to think, that measures for restraining the Press, cannot with safety to the Colony, be any longer delayed – that trial has furnished ample proof, if the reports in the Newspapers be correct, that there are Individuals here, who do not pay much regard to the sacred nature of an Oath – It must therefore be difficult, if not impossible under present circumstances, to identify the Editors with their papers, while the greatest danger may be apprehended from the scandalous and seditious nature of the Libels and Statements they are in the habit of publishing – The period is now past, which you thought, when I consulted you last, it would be prudent should expire, previous to any steps being taken – and the intemperate tone of the papers has increased to a dangerous, if not an alarming degree, since that time – I shall therefore be obliged to you to give the subject further consideration and let me know, how far you feel yourself at Liberty to sanction a Bill for carrying into effect the measures directed by Lord Bathurst, in his Despatch, dated the 12 July 1825.

I should

His Honor
Chief Justice Forbes
&c &c &c

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I should then propose having a Bill prepared, and should submit the subject to the Executive Council.

I remain, My dear Judge,
Most sincerely Yours
Signed Ra Darling.

Copy of answer

2.d April 1827

My dear Sir,

I shall be quite ready to certify any Ordinance which you may desire to be prepared, and to have laid before me, so far as I am authorized by law.

I beg to remind your Excellency that I have now been sitting, without intermission, for upwards of two months, in the Supreme Court, and I am quite worn out – I shall not be able to attend Council after tomorrow, until I can recruit my health by the only means I have found effectual, country air, and relaxation from the arduous business of the Court

I beg to remain
My dear Sir, Fs.

Government

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Government House 11th April 1827

Secret and
Confidential

Sir, I have the honor in reference to my letter of the 2nd inst: marked Private, on the subject of the Press, and to your answer thereto, to transmit the accompanying Drafts of two Bills which have been prepared in conformity with the Instructions contained in Earl Bathurst’s Despatch dated the 12th of July 1825, which bills I propose bringing under the consideration of the Legislative Council, with as little delay as possible, after they shall have been certified by your Honor, agreeably to the 4”Geo:4.” Ch.9.6. Sect 29.

I have the honor to be
Sir,
Your most obedient
Humble Servant
Signed Ra Darling,

To His Honor
The Chief Justice
&c &c &c

Copy of

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Copy of answer to the foregoing.

Secret and Confidential

Emu Plains 12th April 1827

Sir,

I have the honor to acknowledge the receipt of Your Excellency’s letter of the 11th instant, accompanying the draft of two bills, prepared in conformity with Instructions from Earl Bathurst – It will not be necessary for me to enter into the legal reasons which appear to me to be opposed to so much of the bill as relates to a previous license for the Press, resumable at your Excellency’s pleasure – But I beg leave to recall to your Excellency’s recollection that many months have elapsed since I availed myself of the private communication which your Excellency made to me, of Earl Bathurst’s Despatch dated July 12th 1825, to state rather intelligibly what would be my sentiments, in the event of being pressed to give an opinion upon the question, how far a license as proposed in His Lordship’s despatch, could be considered as reconcilable with the laws of England, and I then took occasion to suggest the expediency of referring my letter to His Lordship, together with the measure itself, for further consideration, and eventually, perhaps, for enactment in the new bill which
it is

His Excellency
The Governor
&c &c &c

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it is understood will come before Parliament during the present Session – I was anxious to avoid setting my hand solemnly to a Certificate, that a measure recommended by so high an authority as the Secretary of State, is repugnant to law; and I was equally solicitous to learn what might be the opinion of His Majesty’s law officers upon a question much too large and momentous, to place upon the individual responsibility of so humble a functionary in the administration of the laws of the Empire, as myself – How far your Excellency may have acted upon my suggestions, your Excellency can best tell – but assuming that the matter may have been referred to the Secretary of State, I may be allowed to submit to your Excellency for consideration, how far it may be expedient to re-open it here, until the further sentiments of His Majesty’s government may be known – To the adoption of so much of the Statute law of England as facilitates the proof of publication in case of libel, and inflicts additional penalties on conviction of blasphemous and seditious publications, there can be no objection, and I shall be ready to certify such parts of the bill immediately – But before I certify my opinion upon the other parts, I beg leave to submit to your Excellency the doubts I entertain of the expediency of pressing them to a decision in this stage of the case.

I have the honor Fs

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Government House. 14th April 1827

Sir, I have had the honor to receive your letter of the 12th inst. On the subject of the proposed Bills respecting the Press. I recollect perfectly what passed when this subject was formerly discussed and had not the papers persevered in their mischievous endeavour to bring the Government into hatred and contempt, and in fact, succeeded in exciting a strong spirit of discontent amongst the Prisoners, I should not have thought it necessary to agitate the question at the present moment – It is on these grounds, as stated to you in my private letter of the 2nd inst: that I have been induced to bring the matter forward at this time, considering as I do, on the most mature reflection, that the safety of the Colony is endangered by the present licentiousness of the press; and, that under this circumstance, it would be inconsistent with my duty, to wait the result of the reference which has been made to His Majesty’s Government, and which cannot possibly be received for several months.

It of course rests with your Honor to judge, as far as you are concerned, whether the proposed Bills are consistent with the Laws of England, so far as the circumstances of the Colony will admit -

As far as I am competent to determine, they
appear

His Honor
The Chief Justice
&c &c &c

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appear to be fully justified by present circumstances – That it was the opinion of His Majesty’s Government two years ago, that the state of the Press called for the4se measures, is evident by the Secretary of State’s Instructions to me on leaving England; and I must presume that His Majesty’s Ministers acted advisedly in giving those Instructions – The order, as your Honor is aware is imperative on me, and concurring, as I do, in the expediency of the measure which it directs, I cannot longer abstain from using my best endeavours to carry it into effect - It is my duty – It will be a painful one if it impose on you the necessity of an ungracious act – But delay is pregnant with danger, and private feelings must yield to the exigencies of the times –

It therefore only remains for me again to transmit to you the enclosed Bills, in order to their being certified, should you, on reflection, consider them consistent with the Laws of England, under the proviso pointed out in the Act of Parliament; or that I may be distinctly informed of your Honor’s objections, should you still see reason to decline certifying the Bills –

It appears to me, it will be necessary to my own justification, should these bills not be passed, that I should be in possession of your reasons for objecting
to

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to them;

1st. Considering as I do, the proposed measures to be highly expedient, in fact essential to the tranquillity, if not to the safety of the Colony, which His Majesty has been pleased to entrust to my Government.

2nd. His Majesty’s Government having directed these measures which you as Chief Justice are required to sanction, and

3rdly. The Chief Justice of Van Diemen’s Land having certified Bills under similar circumstances, the powers granted by which, as you are aware, exceed those proposed to be vested in the Government of this Colony, by the bills now under consideration.

I have the honor to be
Sir,
Your most obednt.
Humble Servant
Signed, Ra. Darling

Copy

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Copy of answer

Emu Plains 16th April 1827

Sir,

I was absent when your Excellency’s letter of the 14th instant arrived, or I should have replied to it last evening. With the Instructions given to your Excellency on leaving England, I of course, am unacquainted; but regarding these in the light your Excellency does, it would be improper in me to wish that any motives of private feeling should induce your Excellency to defer an Act which is considered to be of imperative duty. I may appeal to my letter addressed to your Excellency some time since, with the view of being transmitted to Earl Bathurst with some confidence, to prove the sincerity of my desire that your Excellency should be saved from all responsibility for deferring the proposed Bill – The opinion which I then entertained and more recently expressed, still remains unchanged, that it would have been better not to press any discussion on the objectionable parts of the bill, until the further pleasure of government should be known – and in the mean time, have tried the effect of local acts passed in conformity with the English Statutes, and a vigorous enforcement of the laws in being of the success of such measures, I have entertained the fullest confidence – the laws of England have been declared sufficient to restrain the licentiousness of the press by the most eminent judges in
England

His Excellency
The Governor
&c &c &c

Note in column opposite’letter’ 1st Dec. 1826 and line down to end of page probably refers to the letter.

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England; they have proved themselves sufficient, on the most alarming occasions; and until their effect to be fully tried here, it is impossible to assume with any thing approaching to conviction, that they would not be found equally efficacious in this Colony, where the jury are Military Officers appointed by Your Excellency, and not likely to be impressed with erroneous notions of the liberty of the Press – Your Excellency is perfectly aware that up to this moment, there has not been a solitary instance of prosecution for libel, by His Majesty’s Attorney General, although the safety of the Colony is supposed to be endangered by the licentiousness of the Press.

In compliance with your Excellency’s requisition, I have certified such parts of the enclosed bills as it appears to me I can safely do, without impinging the restrictions imposed by the Act of Parliament – the other parts I cannot as at present advised, of course certify – as the Act does not direct the manner in which I am required to certify, I must claim the right of exercising my own judgment; and of leaving myself open to better advice if upon maturer consideration, aided by the opinion of the King’s law advised in England, it should appear that I entertain an erroneous view of the duty enjoined upon me by Parliament – this duty I consider as too sacred to be compromised at the requisition of any power upon earth – it comes within my private knowledge, that when the measure of confiding so large a discretion as that of legislating, to five individuals, was
discussed

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discussed in Parliament, it was distinctly stated by His Majesty’s Ministers, that in the ~~judgment~~ discretion and honor of a professional Judge, there would be a safe guarantee against any encroachment on the laws of the land.

Your Excellency has required of me that in the event of not certifying the Bills, I should distinctly inform your Excellency of my reasons for objecting to them as necessary to your own justification – I am sure, Sir, that nothing is nearer to me than to furnish your Excellency with every justification – but I cannot discover how the grounds of my opinion upon a [indecipherable] point of law, can touch the question of your Excellency’s responsibility – It appears to me that your Excellency is under a misapprehension of the duty imposed upon me, from observing the particular words of the Act scored under in Your Excellency’s letter – and as it is of importance to have a clear understanding upon this first principle, I will endeavour to make myself more plainly understood by stating the abstract principle, and putting a parallel case.

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to the laws of the realm - This restriction is coeval with the first Colonial Legislatures, and has been the fertile subject of many decisions and many legal opinions, before this Colony was discovered. Supposing the legislature to have passed the proposed bill, it would still have been for the Supreme Court to judge of its legality, and the duty of the judges to disallow it, if it had appeared to them to be opposed to the law of England – It was expressly to obviate this inconvenience that the particular clause, requiring the Chief Justice to certify his opinion before any law could be laid before the Council, was introduced into the Act of Parliament – In framing this clause, I have occasion to know that it was thought the first words of limitation, “not repugnant to the laws of England,” were not sufficiently restrictive, and that the second words, ‘but consistent with such laws,” were added ex abundantia - Your Excellency will from this perceive that my first duty is to see that the proposed law is not repugnant to the laws of England, in pave materia; and if it be not, then to see that it is made to conform to such laws, as nearly, as local circumstances will permit – This is the view I have always taken of the duty imposed upon me, and in illustration of its correctness I will now put a parallel case – Supposing that His Majesty had, in virtue of His prerogative, created Courts of Justice in this Colony, such courts must have proceeded
according

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according to the course of the common law, and tried all issues of fact by means of Juries – should such mode of trial have been found inexpedient, it would not I apprehend, have been competent to the local legislature to have authorized a different mode of procedure, and recourse must have been had to the British Parliament – to provide against this very difficulty, Parliament passed the Clause in the New South Wales Act, expressly sanctioning a mode of proceeding unknown to the laws of the realm – and upon the same principle it follows that recourse to Parliament will be the only effectual mode of legalizing the proposed limitations upon an equally recognized right of British subjects, the free right of discussing all matters in which their interests, either public or private, may be concerned – With the policy of restraining, or extinguishing such right, I have nothing to do – My duty is first to consider, when any law is laid before me, whether it be repugnant to the law of England, and if it be, of course I cannot certify that it is not –

I have the honor to be &c

Sydney

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By His Excellency Lieutenant General Ralph Darling Governor of the Territory of New South Wales and its Dependencies, with the advice of the Legislative Council.

An Act to regulate the Printing and Publishing of Newspapers and Papers of a like nature, printed to be dispersed and made public and for the prevention of Blasphemous and Seditious Libels.

Whereas matters to bring the Government of this Territory and the administration thereof into hatred and contempt have been frequently printed and published within the said Territory: For prevention whereof, and of the mischiefs which may arise from the printing and publishing of Newspapers and papers of a like nature by persons unknown; and for the prevention of the printing and publishing of blasphemous and seditious libels, Be it enacted by His Excellency he Governor of New South Wales and its Dependencies, with the advice of the Legislative Council That from and after the day of no person shall publish or cause to be published within the said Territory, or its Dependencies, any Newspaper or other Paper containing public News or Intelligence, or serving the purpose of a Newspaper, printed within the said Territory, or any of the Dependencies thereof without having obtained such license to e the Published of and to publish the same as is hereinafter mentioned
II. and

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II. And be it further enacted by the authority and with the advise aforesaid, That every such License shall be in writing, and shall be granted by the Governor or other person for the time being administering the Government of the Colony and shall be signed by the Colonial Secretary for the time being or other person acting as Colonial Secretary.

III. And be it further enacted by the Authority and with the advice aforesaid that every Licence to publish any such Newspapers or other such Papers as aforesaid be made for and remain in force during such time only not exceeding Twelve Calendar Months from the date thereof, as shall be therein expressed – Provided always that if any Proprietor or any Printer or Publisher of any Newspaper or other such paper as aforesaid shall be convicted by Verdict or Confession or judgement by default followed by final judgment or outlawing of composing printing or publishing or of causing or procuring to be composed printed or published any blasphemous or seditious libel which shall be printed or published in the Newspaper or such other paper as aforesaid of which he or she shall be a Proprietor or Pinter or Publisher – Then and in every such case from and immediately after such conviction and judgment or outlawry all and every Licences and
License

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License to any person or persons to be a publisher or publishers of the same Newspaper or other such paper as aforesaid then subsisting shall become and be absolutely void.

IV. And be it further enacted by and with the advice aforesaid that it shall and may be lawful to and for the Governor or other person for the time being administering the Government of this Territory by any order to be by him made by and with the advice of the Executive Council to revoke any License which shall or may have been granted in manner aforesaid for the publishing of the Newspaper or other such paper as aforesaid before the expiration of the period for which the License was granted the reasons for every such order of revocation being first duly entered on the minutes of the Council and transmitted for His Majesty’s Information through one of the Principal Secretaries of State by the first opportunity and thereupon such license shall become and be thenceforth absolutely null and void any every number or copy as well as the then already printed Impression as also of every other Impression of the same Newspaper or other such paper as aforesaid which shall be published after the license to publish the same shall be so revoked shall be deemed and taken to be published without License Provided always that
a Copy

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a copy of such order or revocation signed by the Clerk for the time being of the said Executive Council shall be left at the House at which the Newspaper or other such paper as aforesaid to which such order shall relate is printed and that notice of the same order of revocation be publicly given in the most usual manner of publishing Government orders or Notices.

V. And be it further enacted by the Authority and with the advice aforesaid that if any person shall knowingly and wilfully publish or cause to be published or shall knowingly or wilfully either as a Proprietor thereof or otherwise sell vend or deliver out any Newspaper or other such paper as aforesaid such License to publish the same as is required by this Act not having been first obtained, or after such license if previously obtained shall have become forfeited or have been revoked as aforesaid, such person shall forfeit and lose for every such act done the sum of over and above all other Fines, forfeitures and Penalties.

VI. And be it further enacted by the authority and with the advice aforesaid that every person applying to the Governor or other person for the time being administering the Government of the Colony for any such License shall at the same deliver to the Colonial Secretary or Acting Colonial Secretary for
the

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the time being at his office such affidavit or affidavits or affirmation as is or are hereinafter required to be delivered to the said Colonial Secretary or Acting Colonial Secretary previous to the printing and publishing of any Newspaper or other such paper or aforesaid -

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Private

Sydney 1st December 1826

Sir,

I have the honor to acknowledge the Copy of a Despatch, which your Excellency did me the honor to enclose, dated Downing Street. July 12th 1825, containing the outline of a law proposed to be submitted to the consideration of the ~~Legislative~~ Council and having in view the restraining of the abuse of the Press in the Colony – I feel obliged by the opportunity ~~afforded~~ given me of offering some remarks on the proposed law, which would not be open to me, when called upon to certify my official opinion upon it, preparatory to its being laid before the Legislature. For the sake of perspicuity, and to afford facility of reference to the several points, I will throw my remarks under different heads –

1. It is proposed that no newspaper shall be published without a license from the Governor, which license ~~is made~~ shall be resumable by the Governor, under circumstances, which, however guarded yet do, ~~in the legal sense of the word~~ in fact, reduce the act of resumption

His Excy
The Governor &&&

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to one of mere discretion of the government – How far a local act, to such an extent, would not be “repugnant to the law of England, but consistent with such Laws, so far as the circumstances of the Colony will admit,” is a question, upon which it is unnecessary at present, to offer a definitive opinion – It will however readily be admitted, that it is a question open to argument - and ~~it is probable that~~ one upon which different, ~~views~~ and even opposite opinions may be entertained. ~~by lawyers upon the point.~~ On a recent and rather memorable occasion, the Late Lord Ellenborough is reported to have expressed himself ~~in the following words~~ as follows – “ the law of England is a law of liberty, and consistently with this liberty, we have not what is called an imprimatur; there is no such preliminary license necessary. “(State Trials. Vol. 29 page 49.) I have made this quotation not as decisive of the point under consideration, but to shew that the question is fairly open to a difference of opinion.

2. I ~~am inclined~~ intend to believe that it would be more agreeable to ~~the view of~~ His Majesty’s Government, to have the proposed law passed in the Colony, than ~~in the British~~ to have its provisions discussed in Parliament, and if it were practicable, I am convinced of the propriety of the discussion being confined to New South Wales. But I fear this is impossible – Had your Excellency proposed this law on assuming your government, it would have cast a shade of unpopularity over the first act of your administration from ~~the effects of~~ which it would

[Page 36]

have become exceedingly difficult to restore it – I am ~~equally~~ confident that it would have caused ~~popular~~ meetings of the people, and that Petitions to Parliament would have been deliberately prepared, supported by a sufficient number of persons, and accompanied by a sufficient body of ~~facts~~ arguments, to enable members on the opposite side ~~in Parliament~~ of the house, to make a popular, and even plausible stand against the measure, when the new bill comes under the consideration of Parliament – To have kept the discussion out of Parliament would, your Excy must feel, have been impossible – it would have come on and then, not as a question of simple expediency, to be determined by an abstract view of the condition of the Colony – but in the angry tone of accusation and complaint – the Chief Justice would have been charged with certifying, and the Council with passing acts, contrary to the fundamental laws of the constitution, and in defiance of the limitation expressly put upon their powers – These charges would have been supported and aggravated by Members of Parliament, high in the estimate of public opinion for their talents and learning; and the effect, whatever might be the result of the measure itself, would have been not merely injurious to the character of the local authorities, but destructive

[Page 37]

of that ruling influence over the minds of the people, without which government is resolved into mere force – I make these remarks with confidence, - they are now opinions, but they would have been facts – and I am sure that your Excellency agrees with me in the view I have taken of them upon hypotheses –

3. I assume that the question of the press cannot be kept out of discussion in Parliament, if any measure of restriction should be resorted to before the preparing of the new act – I therefore submit to your Excellency whether it will not be more expedient to suspend any legislative measure either until the new act is passed, or until it will become too late for any querulous petition from this Colony, to disturb such measures as His Majesty’s Secretary of State may deem it proper to bring before Parliament – and I would humbly, through your Excellency, press upon His Majesty’s Government the expediency of ~~passing~~ introducing the restrictions into the new Act, in preference to exposing the local government to the ~~popular~~ odium and opposition which the measure; however called for and essential to the peace of the Colony will not fail to bring upon us –

I have the honor &

[Page 38]

Private and Confidential

Governt House 2nd April, 1827

His Honor
Chief Justice Forbes

[Page 39]

to the sacred nature of an Oath – It must therefore be difficult, if not impossible under present circumstances, to identify the Editors with their papers, while the greatest danger may be apprehended from the scandalous and seditious nature of the Libels and Statements they are in the habit of publishing – The period is now past, which you thought, when I consulted you last, it would be prudent
should

[Page 40]

should expire, previous to any steps being taken – and the intemperate tone of the papers has increased to a dangerous, if not an alarming degree, since that time – I shall therefore be obliged to you to give the subject further consideration and let me know, how far you feel yourself at liberty to sanction a Bill for carrying into effect the measures directed by Lord Bathurst, in his Despatch, dated the 12 July 1825.

I should then propose
having

[Page 41]

having a Bill prepared, and should submit the subject to the Executive Council.

I remain, My dear Judge,
Most sincerely Yours
Ra Darling.

2 April 1827
(re draft Bill)

Copy of answer

2.d April 1827

My dear Sir,

I shall be quite ready to certify any ordinance which you may desire to be prepared, and & to have laid before me, so far as I am authorized by law.

I beg to remain
My dear Sir, Fs.

Government

[Page 42]

Government House 11th April 1827

Secret and
Confidential

To
His Honor,
The Chief Justice

[Page 43]

under the consideration of the Legislative Council, with as little delay as possible, after they shall have been certified by your Honor, agreeably to the 4”Geo:4.” Ch.9.6. Sect 29.

I have the honor to be
Sir,
Your most obedient
Humble Servant
Ra Darling,

[Page 44]

Copy of answer to the foregoing.

Secret and Confidential

Emu Plains 12th April 1827

Sir,

I have the honor to acknowledge the receipt of Your Excellency’s letter of the 11th instant, accompanying the draft of two bills, prepared ~~as your Excellency states~~ in conformity with Instructions from Earl Bathurst – It will not be necessary for me to enter into the legal ~~ground~~ reasons which appear to me to be opposed to so much of the bill as relates to a previous license for the Press, resumable at your Excellency’s pleasure – But I beg leave to recall to your Excellency’s recollection that many months have elapsed since I availed myself of the private communication which your Excellency made to me, of Earl Bathurst’s Despatch dated July 12th 1825, to state ~~my sentiments~~ rather intelligibly what would be my sentiments, in the event of being pressed to give an opinion upon the question, how far a license as proposed in His Lordship’s despatch, could be considered as reconcilable with the laws of England, and I then took occasion to suggest the expediency

[Page 45]

of referring my letter to His Lordship, together with the ~~whole question~~ measure itself, for further consideration, and eventually, perhaps, for enactment in the new bill which it is understood will come before Parliament during the present Session – I was anxious to avoid setting my hand solemnly to a Certificate, that a measure recommended by so high an authority as the Secretary of State, is repugnant to law; and I was equally solicitous to learn what might be the opinion of His Majesty’s law officers upon a question much too large and momentous, to place upon the individual responsibility of so humble a functionary ~~as myself~~ in the administration of the ~~British law as myself~~ laws of the Empire, as myself – How far your Excellency may have acted upon my suggestions, your Excellency can best tell – but assuming that the matter may have been referred to the Secretary of State, I may be ~~permitted~~ allowed to submit to your Excellency for consideration, how far it may be expedient to re-open it here, until the further sentiments of His Majesty’s government may be known – To the adoption of so much of the Statute law of England as facilitates the proof of publication in case of libel, and inflicts additional penalties on conviction of blasphemous and seditious publications, there can be no objection, and I shall be ready to certify such parts of the bill immediately – But before I certify my opinion upon the other parts, I beg leave to submit to your Excellency the doubts I entertain of the expediency of pressing them to a decision in this stage of the case.

I have the honor Fs

[Page 46]

Government House. 14th April 1827

His Honor,

The Chief Justice

[Page 47]

the question at the present moment – It is on these grounds, as stated to you in my Private Letter of the 2nd inst: that I have been induced to bring the matter forward at this time, considering as I do, on the most mature reflection, that the safety of the Colony is endangered by the present licentiousness of the press; and, that under this circumstance, it would be inconsistent with my duty, to wait the result of the reference which has been made to His Majesty’s Government, and which cannot possibly be received for several months. It of course rests with your
Honor

[Page 48]

Honor to judge, as far as you are concerned, whether the proposed Bills are consistent with the Laws of England, so far as the circumstances of the Colony will admit -

As far as I am competent to determine, they appear to be fully justified by present circumstances – That it was the opinion of His Majesty’s Government two years ago, that the state of the Press called for these measures, is evident by the Secretary of State’s Instructions to me on leaving England; and I must presume that His Majesty’s Ministers acted advisedly in giving those
instructions

[Page 49]

instructions appear to be fully justified by present circumstances – The order, as your Honor is aware is imperative on me, and concurring, as I do, in the expediency of the measure which it directs, I cannot longer abstain from using my best endeavours to carry it into effect - It is my duty – It will be a painful one if it impose on you the necessity of an ungracious act – But delay is pregnant with danger, and private feelings must yield to the exigencies of the times –

It therefore only remains for me again to transmit to you the enclosed Bills, in order to their being certified, should you, on reflection,
consider

[Page 50]

consider them consistent with the Laws of England, under the proviso pointed out in the Act of Parliament; or that I may be distinctly informed of your Honor’s objections, should you still see reason to decline certifying the Bills –

It appears to me, it will be necessary to my own justification, should these bills not be passed, that I should be in possession of your reasons for objecting to them;

1st. Considering as I do, the proposed measures to be highly expedient, in fact essential to the tranquillity, if not to the safety of the Colony, which
His

[Page 51]

His Majesty has been pleased to entrust to my Government.

2nd. His Majesty’s Government having directed these measures which you as Chief Justice are required to sanction, and

I have the honor to be
Sir,
Your most obednt.
Humble Servant
Ra. Darling

[Page 52]

14 April 1827

(Darling to Forbes)

The Press

[Page 53]

Annus Octavo

George 1V Regis No.

I, Francis Forbes Chief Justice of the Supreme Court of New South Wales do hereby Certify that the following Clauses of the annexed proposed Law in Ordinance, that is to say from Clause numbered Seven to Clause numbered Twenty Six, inclusive, are not repugnant to the Laws of England, but are consistent therewith so far as the circumstances of the said Colony will admit
Signed,
Francis Forbes.
16 April 1827

By His Excellency Lieutenant General Ralph Darling Governor of the Territory of New South Wales and its Dependencies, with the advice of the Legislative Council.

An Act to regulate the Printing and Publishing of Newspapers and Papers of a like nature, printed to be dispersed and made public and for the prevention of Blasphemous and Seditious Libels.

Whereas matters tending to bring
the

[Page 54]

the Government of this Territory and the administration thereof into hatred and contempt have been frequently printed and published within the said Territory: For prevention whereof, and of the mischiefs which may arise from the Printing and Publishing of Newspapers and Papers of a like nature by Persons unknown; and for the prevention of the printing and publishing of blasphemous and seditious libels, Be it enacted by His Excellency the Governor of New South Wales and its Dependencies, with the advice of the Legislative Council. That from and after the day of no person shall publish or cause to be published within the said Territory, or its
Dependencies

[Page 55]

Dependencies, any Newspaper or other Paper containing public News or Intelligence, or serving the purpose of a Newspaper, printed within the said Territory, or any of the Dependencies thereof without having obtained such license to e the Published of and to publish the same as is hereinafter mentioned

II. And be it further enacted by the authority and with the advise aforesaid, That every such License shall be in writing, and shall be granted by the Governor or other person for the time being administering the Government of the Colony and shall be Signed by the Colonial Secretary for the time being or other person acting as Colonial Secretary.

III. And be it further
enacted

[Page 56]

enacted by the Authority and with the advice aforesaid that every Licence to publish any such Newspapers or other such Papers as aforesaid be made for and remain in force during such time only not exceeding Twelve Calendar Months from the date thereof, as shall be therein expressed – Provided always that if any Proprietor or any Printer or Publisher of any Newspaper or other such paper as aforesaid shall be convicted by Verdict or Confession or judgement by default followed by final judgment or outlawing of composing printing or publishing or of causing or procuring to be composed printed or published any blasphemous or seditious libel which shall be printed or published in the Newspaper or such other paper as afore
said

[Page 57]

aforesaid of which he or she shall be a Proprietor or Printer or Publisher – Then and in every such case from and immediately after such conviction and judgment or outlawry all and every Licences and License to any Person or Persons to be a publisher or Publishers of the same Newspaper or other such paper as aforesaid then subsisting shall become and be absolutely void.

[Page 58]

have been granted in manner aforesaid for the publishing of the Newspaper or other such paper as aforesaid before the expiration of the period for which the License was granted the reasons for every such order of revocation being first duly entered on the Minutes of the Council and transmitted for His Majesty’s Information through one of the Principal Secretaries of State by the first opportunity and thereupon such license shall become and be thenceforth absolutely null and void any every number or copy as well as the then already Printed Impression as also of every other Impression of the same Newspaper or other such Paper as aforesaid which shall be published after the license to publish the same shall be so revoked shall
be

[Page 59]

be deemed and taken to be published without License Provided always that
a Copy of such order or revocation signed by the Clerk for the time being of the said Executive Council shall be left at the House at which the Newspaper or other such paper as aforesaid to which such order shall relate is printed and that notice of the same order of revocation be publicly given in the most usual manner of publishing Government orders or Notices.

V. And be it further enacted by the Authority and with the advice aforesaid that if any person shall knowingly and wilfully Publish or cause to be Published or shall knowingly or wilfully either as a Proprietor thereof or otherwise sell vend or deliver out
any

[Page 60]

any Newspaper or other such paper as aforesaid such License to Publish the same as is required by this Act not having been first obtained, or after such license if previously obtained shall have become forfeited or have been revoked as aforesaid, such person shall forfeit and lose for every such act done the sum of over and above all other Fines, forfeitures and Penalties.

VI. And be it further enacted by the authority and with the advice aforesaid that every Person applying to the Governor or other Person for the time being administering the Government of the Colony for any such License
aforesaid

[Page 61]

aforesaid shall at the same deliver to the Colonial Secretary or Acting Colonial Secretary for the time being at his office such Affidavit or Affidavits or Affirmation as is or are hereinafter required to be delivered to the said Colonial Secretary or Acting Colonial Secretary previous to the Printing and Publishing of any Newspaper or other such paper or aforesaid –

A true copy,
H. Dumeresq
Private Secretary

[Page 62]

14-16 April 1827

(Draft Newspaper Bill)

[Page 63]

Copy of answer

Emu Plains 16th April 1827

Sir,

His Excellency
The Governor
&c &c &c

[Page 64]

In compliance with your Excy’s requisition, I have certified such parts of the enclosed bills as it appears to me I can safely do, without impinging the restrictions imposed by the Act of Parliament – the other parts I cannot as at present advised, of course certify – as the Act does not direct the manner in which I am required to certify, I must claim the right of exercising my own judgment; and of leaving myself open to better advice if upon maturer consideration, aided by the opinion of the King’s law advised in England, it should appear that I entertain an erroneous view of the duty enjoined upon me by Parliament – this duty I consider as too sacred to be compromised at the requisition of any power upon earth – it comes within my private knowledge, that when the measure of confiding so large a discretion as that of legislating, to five individuals, was discussed in Parliament, it was distinctly stated by His Majesty’s Ministers, that in the judgment and honor of a professional Judge, there would be a safe guarantee against any encroachment on the laws of the land.

[Page 65]

Your Excellency has required of me that in the event of not certifying the bills, I should distinctly inform your Excellency of my reasons for objecting to them as necessary to your own justification – I am sure, Sir, that nothing is nearer to me than to furnish your Excellency with every justification – but I cannot discover how the grounds of my opinion upon a rude point of law, can touch the question of your Excellency’s responsibility – It appears to me that your Excy is under a misapprehension of the duty imposed upon me, from observing the particular words of the Act scored under in Your Excy’s letter – and as it is of importance to have a clear understanding upon this first principle, I will endeavour to make myself more plainly understood by stating the abstract principle, and putting a parallel case.

The laws of England are the laws of the English colonies, so far as they can in fact be applied – and where they cannot, there is no law – To meet the unforeseen occasions of a distant Colony, legislatures are created with the power of passing local ordinances, not repugnant to the laws of the realm - This restriction is coeval with the first Colonial Legislatures, and has been the fertile subject of many decisions and many legal opinions, before this Colony was discovered. Supposing the legislature to have passed the proposed bill, it would still have been for the Supreme Court to judge of its legality, and the duty of the judges to disallow it, if it had appeared to them to be opposed to the law of England – It was expressly to obviate this inconvenience that the particular clause, requiring the Chief Justice to certify his opinion before any law could be laid before the Council, was introduced into the act of Parliament – In framing this clause, I have occasion to know that it was

[Page 66]

thought the first words of limitation, “not repugnant to the laws of Eng?” were not sufficiently restrictive, and that the second words, ‘but consistent with such laws,” were added ex abundantia - Your Excy will from this perceive that my first duty is to see that the proposed law is not repugnant to the laws of England, in pave materia; and if it be not, then to see that it is made to conform to such laws, as nearly, as local circumstances will permit – This is the view I have always taken of the duty imposed upon me, and in illustration of its correctness I will now put a parallel case – Supposing that His Majesty had, in virtue of His prerogative, created Courts of Justice in this Colony, such courts must have proceeded according to the course of the common law, and tried all issues of fact by means of Juries – should such mode of trial have been found inexpedient, it would not I apprehend, have been competent to the local legislature to have authorized a different mode of procedure, and recourse must have been had to the British Parliament – to provide against this very difficulty, Parliament passed the clause in the New South Wales Act, expressly sanctioning a mode of proceeding unknown to the laws of the realm – and upon the same principle it follows that recourse to Parliament will be the only effectual mode of legalizing the proposed limitations upon an equally recognized right of British subjects, the free right of discussing all matters in which their interests, either public or private, may be concerned – With the policy of restraining, or extinguishing such right, I have nothing to do – My duty is first to consider, when any law is laid before me, whether it be repugnant to the law of England, and if it be, of course I cannot certify that it is not –

I have the honor to be &c

16 April 1827
re License

[Page 67]

Parramatta, 10th May 1827

Sir,

I have the Honor to acknowledge the receipt of your letter of the 9th, accompanied by a letter dated the 1st instant, addressed to Earl Bathurst, which, together with its enclosure, shall be forwarded as you desire, by the first opportunity to His Lordship.

I beg however to point out to you previously, that the Clause respecting the Granting of Licenses to which you allude, was framed with a view that the Licenses should be demandable as a common right, and that the right of granting them should not be confined to such persons only as the Governor may deem proper, as stated in the 9th and 10th Pages of the paper which accompanied your letter.

I return the Paper, that you may see the Passage to which I allude – I have also marked a passage in the 14th Page, which has reference to the same point.

Though I have given this explanation, I am not aware, in the view taken of the case, that it is of any importance, whether it was intended that the License should be granted as a matter of right, or at the pleasure of the Government.

I have the honor to be
Sir,
Your most obedient and
Most humble Servent
Signed / Ra Darling

[Page 68]

Copy of answer

Sydney 11th May 1827

Sir,

In reply to Your Excellency’s letter of yesterday’s date, I do myself the honor to state that the point raised by your Excellency was previously considered by me; and after renewed attention to the clause respecting the granting of a license, it does not appear to me to admit of any other interpretation than that which I have already given it – It was clear to me, that the Despatch of Earl Bathurst which contained the outline of the bill, intended that the granting of a license should be discretionary in the Governor – it was equally clear, that the Van Diemen’s Land bill, from which Your Excellency’s Bill was copied in substance, put the same construction on Lord Bathurst’s Despatch, and in express terms limited the granting of the license to such persons as the Governor should think fit – and although Your Excellency’s bill uses a less obnoxious form of language, yet being interpreted by the known rules of law, it will not admit of any conclusion.

1. By the second clause, the license is required to be granted by the Governor, and signed by the Colonial Secretary – If it were intended to be demandable of common right, why was the Governor’s sanction required, as a preliminary to the ministerial act of the Colonial
Sec -

[Page 69]

Secretary? –

2. The Governor of the Colony is during the tenure of his office; not amendable to process of law – if the Governor should refuse to grant a license to any person who should demand it, there would be no legal means for compelling it – and in law, that is not considered of common right, which does not admit of a legal remedy.
[Note in margin: ‘1 Cowp. 172-3

3. By the fourth clause the governor with the advice of the Executive Council, may revoke such license at discretion – there is no provision that a new license should not be demanded – but to admit of another license being demanded, would of course render the act if revocation nugatory – and therefore the Governor would, in the excise of an essential discretion, refuse to grant a license to any person from whom it had been withdrawn – But this would be to exercise discretion – and if discretion might be exercised in such a case, it might as lawfully be exercised in some other case – and then it follows, as an unavoidable consequence, that the Governor may exercise his discretion in any case – and the granting of a license resolves itself into what it was intended by the tenor of the whole bill, a discretionary Act of the Governor.

Under these impressions I beg to enclose the Document as it originally stood, and I request that your Excellency will be pleased to forward it by the earliest opportunity

I have the honor to be &c

To, His Excellency
The Governor
&c &c &c

[Page 70]

1827

Liberty of the Press’

Attempt to force the Chief Justice
To certify to bills repugnant to
British Law in reference
To restraining the liberty of
The Press –

Dec 1826
April, May 1827

Darling & Forbes
(re License).

[Page 71]

Parramatta, 10th May 1827

Sir,

I beg however to point out to you previously, that the Clause respecting the Granting of Licenses to which you allude,
was

His Honor
The Chief Justice

[Page 72]

was framed with a view that the Licenses should be demandable as a common right, and that the right of granting them should not be confined to such persons only as the Governor may deem proper, as stated in the 9th and 10th Pages of the paper which accompanied your letter.

I return the Paper, that you may see the Passage to which I allude – I have also marked a passage in the 14th Page, which has reference to the same point.

Though I have given this explanation, I am not aware, in the view -- taken of the
case,

[Page 73]

that it is of any importance, whether it was intended that the License should be granted as a matter of right, or at the pleasure of the Government.

I have the honor to be
Sir,
Your most obedient and
Most humble Servent
Ra Darling

Copy of answer

Sydney 11th May 1827

Sir,

In reply to Your Excy’s letter of yesterday’s date, I do myself the honor to state that the point raised by your Excellency was previously considered by me; and after renewed attention to the clause respecting the granting of a license, it does not appear to me to admit of any other interpretation than that which I have already given it – It was clear to me, that the Despatch of Earl Bathurst which contained the outline of the bill, intended that the granting of a license should be discretionary in the Governor – it was equally clear, that the Van Diemen’s Land bill, from which Your Excy’s Bill was copied in substance, put the same construction on Lord Bathurst’s Despatch, and in express terms limited the granting of the license to such persons as the Governor should think fit – and although Your Excy’s bill uses a less

[Page 74]

obnoxious form of language, yet being interpreted by the known rules of law, it will not admit of any conclusion.

Under these impressions I beg to enclose the Document as it originally stood, and I request that your Excellency will be pleased to forward it by the earliest opportunity

I have the honor to be &c

(signed) F.F.

To, His Excellency
The Governor
&c &c &c

[Page 75]

Sydney 28th May 1827

Sir,

In answer to your Excellency’s letter of this morning, which I have only this moment received in consequence of being in Court, I have the honor to inform your Excellency that in the bill proposing to levy a Duty upon Newspapers which was transmitted to me for my certificate, the amount of the duties and penalties were left blank, and I returned it as I received it, with my certificate which, of course, only went to the general principle of a tax upon newspapers, reserving to myself, when the bill should again be laid before me, to consider how far any tax when specified, might consist with the provisions of the law –

By the New South Wales act, sect. 29. it is required that no proposed ordinance
Should

His Excellency
The Governor
&c &c &c

[Page 76]

should either be laid before the Council, or passed, without a certificate, under the hand of the Chief Justice, to the effect required by that act – I perceived by the Stamp Act, officially published in the Sydney Gazette, that the amounts of the duty and of the penalties had been inserted after the bill had been transmitted by me with my certificate affixed – Consequently Your Excellency will perceive that I have not certified the act in question, in the form in which your Excellency has promulgated it as a law –

There appears to me to be another objection, arising under the 27th section of the New South Wales act – the ordinance proposes to raise a fund for a specific purpose, and imposes a Duty so far beyond the amount which in fair calculation can be reasonably required for printing the public acts, orders, and proclamations of the Government, that it does appear doubtful to me, how far the ordinance
is

[Page 77]

is consistent with the section of the act alluded to –

Entertaining these doubts, I did not mention them to your Excellency until I had considered the subject so frequently ~~in my mind~~, as to warrant me in stepping perhaps a little beyond the exact path of Duty which had been laid down for my guidance – I can only express my readiness to cooperate with your Excellency in any steps which your Excellency may be advised to adopt, as far as I can. –

I have the honor to be
Sir
Your Excellency’s most obed. ‘Serv’
Francis Forbes
Ch Justice N.S.W.

[Page 78]

28TH May 1827

No. 1 answer

(re Stamp Act)

[Page 79]

Government House,
30th May 1827

Sir, I do myself the honor to enclose for your consideration the Draft of a Proclamation which I propose issuing on the subject of the Act of Council No 3- and request to be favoured with your opinion, whether the proposed measure is legal?

I have the honor to be
Sir
Your most obedient
Humble Servant
Ra Darling

To
His Honor
The Chief Justice

[Page 80]

answer

Sydney 30th May 1827

Sir

I have the honor to inform your Excy that supposing the act of Council No 3 to be law, your Excy cannot legally suspend its operations – But as I may venture to assume that the Council would assent to any bill legalizing such a step, which Your Excy might hereafter propose, there would in such case be a cause of the irregularity, under the supposition I have put –

I feel such delicacy in advising your Excy after what has unhappily passed – but I think the measure of suspension would have been better, in many respects, as coming thro’ the medium of an act of Council –

I have the honor to be

His Excy The Gov

[Page 81]

30th May 1827

No 5 - [indecipherable]
Proclaim

Letters re Trials
For libel, stamp duty
On Newspapers &c &c

[Page 82]

Appendix

Correspondence with the Editor of the Sydney Gazette –

Sydney 7th June 1827

Sir

You will oblige me by informing me of the following particulars – Whether you have made any change for printing the acts, proclamations and orders of the government, in your papers – what has been the cost to government, of printing the same in the Govt form – what number of papers you dispose of weekly; and, as nearly as you can tell, what may be the several distributions of the Australian, the Monitor and the Gleaner per week –
I remain &c
(signed) F. Forbes

To Mr. R. Howe
King’s Printer

[Page 83]

7 June 1827

[Page 84]

Gazette Office, Sydney
June 9, 1827

Sir

In doing myself the honor to acknowledge the receipt of your communication, of the 7th instant, I beg leave to state, for your information, the following particulars:-

1. I have never made any charge for printing the Acts, Proclamations, and Orders of the Government; but, if the Government were to pay for the same, £ 800 per annum would be the expense, more or less; in return for which, however, and my long services, I had long time flattered myself, that the Home Government would have been pleased to have bestowed upon me the solicited appointment of King’s Writer.

2 – The cost to Government, for printing the Official Notifications, in a book may be averaged at £ 120 per annum, and no more.

[Page 85]

3. – The number of copies of the Sydney Gazette struck off, weekly, are close upon 2000, but I will say 600 of each paper, which, published three times a week, will amount to 1800 copies.

4.- As for one pleased to ask my opinion as to the number of copies printed by the Australian, the Monitor, and the Gleaner, upon good authority, they may be safely introduced as follows:-

The Australian published twice a week, 600 of each number – in all 1200;

The Monitor as yet only once a week, upwards of 500 copies; and

The Gleaner, somewhere about 200.

I must beg leave further to add, that the above facts, so far as

[Page 86]

they relate to my own Journal, are embodied in my remonstrances upon the Act of Council, No 3, and appear also in the Gazette of the1st of February last, as well as in many other numbers of the June paper

[Page 87]

This page missing.

[Page 88]

No. 3

Sydney 11th June 1827

Sir

In reference to the subject I lately addressed you upon, may I beg to be informed of the following particulars -

1. What may be the expence of printing and delivering your Gazette – that is, suppose the price to be a given sum, what proportion does the expence bear to such sum –

2. What, in your opinion, would have been the operation of the duty of 4.d upon your paper, in reference to the sale; and how far would it have checked the circulation of the other papers, or have suppressed any of them –

I am
&c

To Mr. R. Hume

[Page 89]

11 June 1827

[Page 90]

Gazette Office, Sydney,

June 12, 1827

Sir

Since I despatched my letter of this morning to you, it has occurred to me that I omitted to notice a most important part, which goes to strengthen my conviction as to the fatal effects this would inevitably have been argument on the operation of the Stamp Act is this. So universal was the outcry against the measure – so uniform the expression of disapprobriation – this the Colonists had determined, as far I could judge to the extent of one and all, upon not receiving a Newspaper of any kind, bearing the Stamp, to enter their houses; an issue had gone so far as to signify their intention, to that effect, in writing to my office; of which fact I thought it

[Page 91]

my duty to apprize the Honourable the Colonial Secretary at the time, by way of proving the Calamity which threatened the Sydney Gazette – as also the other Journals

I have the honor to be

Sir,
Your obedient Servant
R Howe

His Honor
Chief Justice Forbes
& & &

[Page 92]

Gazette Office, Sydney,
June 12, 1827 -

Sir -

In hastening to reply to your communication that reached me this morning, I beg leave to state, for your Information –

First - The expense, per annum, of conducting my Gazette, on the present scale, and no alteration has occurred since December last, may be safely estimated at £ 1500 per annum, which is something better than one-fourth of my receipts.

[Page 93]

Correspondence with Home Sydney Gazette about Stamp Act
12 June 1827

[Page 94]

the Gazette, though, at the same time, rather than allow the Government to be even so remotely inconvenienced I was willing to publish the Government Orders & other Notifications as usual, in any shape His Excellency might be pleased to suggest. After close calculation upon the subject, I found no reason to vary in my conclusions; and it was only on account of my personal regard for, and weighty obligations to, Mr. Mcleay, when a child in England, that I became persuaded to try the measure.

Third - As to the check this would have been imposed upon the other Journals, it would have been most effectual. They might have crawled on for a month or two, or perhaps three, but one step further they could not well have advanced – inasmuch as it would have first doubled their expenses in the same proportion

[Page 95]

as I fear it must affect myself. The Monitor and the Gleaner must have died almost instantly though the Australia, from its more abundant resources, might have survived two or three months, but not longer.

I am sure you are satisfied Sir, whilst I am giving you this solicited Information, the most material facts of which have already appeared in print, this you will not suppose I am by any means inclined to dispute with the Government as to the propriety of any measures that it may have thought expedient to adopt

I have the honor to be,
Sir,
Your most obedient
Humble servant,

His Honor
Chief Justice Forbes
&c &c &c

[Page 96]

12 June 1827

(Howe, to C.J.)

No. 1

[Page 97]

Copy of correspondence respecting the 4th Stamp Act.

Sydney 14the June 1827

Sir,
I have the honor to inclose the copy of a correspondence between the Governor and myself, relative to an act imposing a duty of four pence upon newspapers published in this Colony – this act being intended as a sequel to several other provisions regarding the press, which have been partly recommended by Earl Bathurst, I have felt it a duty to transmit my reasons for not certifying it, and to address this letter to you; as there are circumstances which do not appear upon the correspondence but which are necessary to be known, in order to form a correct judgement of the whole case at issue.

His Lordship under despatch dated July 12th 1825, was pleased to instruct the Governor to propose a Stamp duty upon newspapers, which should be declared applicable to defray the charges of printing the public acts, proclamations and orders; and that in fixing the amount, the scale of the duty should be so regulated, that the [indecipherable] of it might be adequate to provide for such charges. A Bill was accordingly prepared, and the preamble was as follows “whereas it is expedient to “provide a fund for defraying the charge of printing the ‘public acts, proclamations, “orders and notices of the Government, by means of some stamp duty upon newspapers” – the bill then went on to provide, that the duties so granted should be a fund for payment of all charges and expences which should be incurred by the government of the Colony for printing the public acts, proclamations, orders, and notices, during the current year, and that the surplus (if any) should be applied to the expences of the police – The amount of the duty was left blank, in order, as I conceived, that the Council should regulate the scale according to Lord Bathurst’s instruction and with reference to the purposes professed in the Bill – Under

J.R. Wilmot Horton Esq.re M.P.
&c &c &c

this

[Page 98]

this impression I certified it in the blank form it was laid before me, and returned it to the governor on the 16th of April – On the 2.d of May the Council met to consider the Bill, at which time Mr. Justice Stephen being ill, I was necessarily engaged in the Supreme Court. I understand that no accounts or estimates whatever were laid before the council either to shew the expence of printing the acts and orders of government in the last year, or the probable amount which would be required for the current year – nor was any inquiry made into the number of papers in circulation or the probable produce of any rate of duty – the Council merely took into consideration how they could restrain the publication of newspapers consistently with law, and after some discussion whether the duty should be sixpence or fourpence, the latter was finally adopted because that being the amount of the English duty, it could not be repugnant to English law – Upon this simple principle they fixed the duty, according to the English scale, without reference to the circumstances of the Colony, without regard to the purposes set forth in their bill, contrary to the tenor of Lord Bathurst’s instructions, and contrary to the express provisions of the New South Wales Act –

The 27th Section of the Act of Parliament directs that [in the margin, 4 Geo 4 C.gb.-]
The purposes for which every tax or duty may be imposed, shall be distinctly and particularly stated in the body of every law or ordinance imposing such tax or duty – In furtherance of this very necessary check, the 31st clause directs that all laws and ordinance made by the Legislative Council of the Colony, shall be laid before both houses of Parliament, within six weeks after the commencement of each Session – The policy of these careful provisions of the Act, is too obvious to be misunderstood – Parliament had conferred very large powers upon a very small body of individuals – it had delegated to them the very delicate trust of taxing the people of a distant Colony – it was anxious to guard against abuse, and as the means of enabling itself to see how far this power was exercised with justice and moderation, it required that every purpose, every intention with which any tax was
imposed

[Page 99]

imposed, should be openly, clearly, and truly stated – If any latent purpose be entertained – if a tax be professedly imposed for one object, and covertly intend another and different object, it is contrary to the letter of the act – it is a breach of faith with Parliament – it is an abuse of the trust confided to the Council – it is derogatory to the government – That such could not be the motive of the Governor or Council, I will cheerfully concede – I believe that they had not attentively considered the Act of Parliament, and did not foresee the consequence of their own act – But that another purpose was meditated than that which the act itself professed, will not be required of me to prove, in this place – it is not denied by the government, as will appear by me correspondence with the governor, of the 31st Ultimo – it has been admitted, without hesitation, by such of the Council as I have conversed with upon the subject – and the irreconcilable disproportion between the known expence of printing the acts and orders of the government, and the duty imposed upon the papers, has made the true state of the case unfortunately too apparent to the public.

With these facts before me, I intimated my doubts to the Colonial Secretary, with the view of bringing the subject under the consideration of the Governor and the Legislative Council – I must refer to the accompanying correspondence to explain my views upon this point – The governor, I was led to hope, from his convening the Council, had acceded to my advice; but the Council after remaining in attendance two days, were adjourned without anything being submitted to them; His Excellency stating in his letter to me, that the Council having agreed to the act as it stood, he was not aware of the object of any further discussion, or that it could with propriety be entered into – I regret however, that my recommendation was not adopted; of its propriety, no legal doubt can be maintained; it would have afforded me an opportunity of explaining my objections to the Council, it would have enabled the Council to reconsider their Act, and to have modified it so as to meet the instructions of Earl Bathurst. Five of the
Members

[Page 100]

Members ( not in the government) have stated to me that their assent to the bill was given by surprize, and that they had been since convinced it was ill-advised and illegal.

I fear that the Governor considers he has some cause to complain of my not mentioning my doubts at an earlier period – Had an opportunity been afforded me I could have satisfactorily explained the reason of my unwillingness to commence the subject. It was impossible for me to anticipate such a step as that of publishing the act, before it had received either my certificate or signature, which had become necessary in consequence of the essential alterations introduced by the Council. As soon as I read it in the Gazette, I foresaw the whole train of embarrassment it would occasion, and I determined not to stir the question of its validity, but to wait until it should be regularly brought before the Supreme Court, where my opinions would be strengthened and my responsibility divided, by Mr. Justice Stephen – This was a very natural determination, and what few judges, situated as I was, would not have adhered to. But upon mature consideration I thought I should save the government and its officers from vexatious – proceedings – proceedings, by stepping a little beyond the line of prudence, and disclosing my doubts to the Colonial Secretary – For this I am entitled to the gratitude of the local government instead of its complaint I have shielded its acts from exposure, by taking upon myself a most serious and undivided responsibility.

I have carefully avoided mixing up the question of the press itself, with the amount of the stamp duty – that is a distinct question, and requires distinct legislation – with equal care I have abstained from passing my opinion too freely upon its licentiousness – my opinions may become judgments; and I must take care, not to prejudge cases, which I may be
called

[Page 101]

called upon to try – My views however, are not unknown to the government. The laws of England should be strictly enforced; if they are insufficient to repress the evil, the punishment should be increased upon the principles of English law; if that also be found ineffectual, then the press should be silenced altogether – But before as strong a measure is resorted to, let the fact precede the law; let the occasion justify its expedience; let a sufficient basis be laid in actual experience and undeniable proof – When this is done, then the freedom of the press may be legally suspended – but let it be done fairly and openly; let the reasons of the act be stated truly, so that the inhabitants of the Colony may know why they are deprived of the privileges; that Parliament may see and judge of its propriety; that His Majesty’s Ministers may be prepared to justify it. Upon these plain principles my opinion has been formed, and by them I have always regulated my advice – That it has not been followed, I can only regret. I cannot but think that a few convictions, in the calm and regular course of justice, would have a much more decisive effect in repressing the licentiousness of the papers, than all the pains and penalties we have enacted – The one carries with it the opinion of society, and produces a strong moral restraint – the other wears rather the appearance of an act of power, and is sure to invite candidates for the crown of martyrdom –

With the same desire of confining myself to the points at issue, I have not alluded to the circumstance of the whole subject being, as I have been led to believe, referred to Earl Bathurst, as far back as December last; and that in legislating upon it in this Colony, we should run the hazard of interfering with the enactments of Parliament, or the maturer measures of government. It was not allowable to me to take this circumstance
into

[Page 102]

consideration as a ground for declining to certify the Bill; but it is too material to be overlooked in forming an opinion of the general inexpediency of pressing the question to extremities in the Colony, at this moment, ignorant as we necessarily are of what may the ultimate views of His Majesty’s Ministers.

I have the honor to be
Sir, &c &c &c
Signed/ Francis Forbes

[Page 103]

Correspondence referred to in the foregoing Letter

Immediate

Government House 28th May 1827

Sir

The Colonial Secretary having informed me that your Honor had expressed some doubts as to the regularity of the Act of the Legislative Council, N.5, for imposing a Stamp duty on Newspapers, I request you will be pleased to state to me the doubts you entertain on the subject of the Act in question, that I may have an opportunity of judging of the steps necessary to be taken on the occasion.

I need not point out to you that the subject is of a pressing nature, as the Act to which I allude will come into operation on the 1st of next month.

I have the honor to be,
Sir, &c - &c - &c

Signed, Ra Darling

His Honor
The Chief Justice
&c- &c- &c

Sydney 28th may 1827

Sir,

In answer to Your Excellency’s letter of this morning, which I have only this moment received in consequence of being in Court, I have the honor to inform your Excellency that in the bill proposing to levy a duty upon Newspapers which was transmitted to me for my certificate, the amounts of the duties and penalties were left blank, and I returned it as I received it, with my certificate which, of course, only went to the general principle of a tax upon newspapers, reserving to myself, when the bill should again be laid before me, to
consider

[Page 104]

consider how far any tax when specified, might consist with the provisions of the law.

By the New South Wales Act, Sect. 29 it is required that no proposed Ordinance should either be laid before the Council, or passed, without a Certificate, under the hand of the Chief Justice, to the effect required by that Act – I perceived by the Stamp Act, officially published in the Sydney Gazette, that the amount of the duty and of the penalties had been inserted after the bill had been transmitted by me with my certificate affixed – Consequently Your Excellency will perceive that I have not certified the Act in question, in the forming which Your Excellency has promulgated it as a law –

There appears to me to be another objection, arising under the 17th Section of the New South Wales Act – the ordinance proposes to raise a fund for a specific purpose, and imposes a duty so far beyond the amount which in fair calculation can be reasonably required for printing the public acts, orders and proclamations of the Government, that it does appear doubtful to me, how far the Ordinance is consistent with the section of the Act alluded to.

Entertaining these doubts, I did not mention them to Your Excellency until I had considered the subject so frequently, as to warrant me in stepping perhaps a little beyond the exact path of duty which had been laid down for my guidance. I can only express my readiness to cooperate with your Excellency in any steps which your Excellency may be advised to adopt, as far as I can.

I have the honor to be
Sir,
&c &c &c
Francis Forbes
Ch. Justice N.S.W.

His Excellency,
The Governor
&c - &c - &c

[Page 105]

Government House 29th May 1827

Sir,

I have the honor to acknowledge the receipt of your Letter of yesterday and beg to observe, without entering into the question of a any irregularity which may have taken place in passing the Act of Council No. 3. as adverted to in your Honor’s letter, that, the measure being conformable to my own views, as also to those of the Legislative Council, which gave due consideration to the several provisions of the Bill, the only course which appears to be open to me, is, to forward to you a fresh Bill, framed conformably to the Act above alluded to, and which I accordingly have the honor to transmit, in order to its being certified as required by the 29th Section of the 4th George 4th Ch: 96

I have the honor to be,
Sir &c &c &c
(signed) Ra Darling

His Honor,
The Chief Justice
&c &c &c

Sydney 29th May 1827

Sir,

I have the honor to acknowledge your Excellency’s communication of this day, inclosing the draft of a new bill for imposing a duty upon newspapers, the principle of which I can feel no difficulty in certifying – As your Excellency is already in possession of the doubts I entertain of the legality of the amount of the duty, with reference to the declared purposes of the bill, I beg most respectfully to suggest that the measure should be resubmitted to the Legislative Council, without any specification of the amount of the tax – I shall then have an opportunity of entering into those examinations which are indispensable to a right adjustment of the amount of the duty
with

[Page 106]

with reference both to the public interests, and the private income of individuals – I feel the less difficulty in recommending this cause, because it is the one that must naturally have been adopted, if I had received the first bill, before its promulgation, and returned it with my objections – and as it would seem to be consistent with the duty vested in the Chief Justice, independently of his being a member of the legislature

I have the honor to be,
Sir,
&c &c &c
(Signed) Francis Forbes

His Excellency
The Governor,
&c &c &c

Government House 29th May 1827

Sir,

I am this moment honoured with the receipt of your letter, and beg to state in reply, that the Bill has been submitted to you in its present form, from an impression that you considered it incomplete when Blanks were left.

The Bill is as open to discussion in the Legislative Council, as if the amounts of the proposed Duties and Penalties were no inserted – I cannot therefore discover any objection to its being submitted to the Council, as it now stands

I have the honor to be,
Sir, &c &c
Ra. Darling

His Honor,
The Chief Justice
&c &c &c

Sydney 29th May 1827

Sir,

I was in the act of replying to your Excellency’s last communication of this day’s date when I received a summons to attend the Legislative Council tomorrow at one o’clock

It appears to me that a discussion which must be very
Troublesome

[Page 107]

troublesome to your Excellency and which is very painful to me may at once be put an end to by adopting the following suggestion – the first bill which I certified in blank, leaving the amount to be filled up by the Council is still in statu-quo and not in any manner invalidated by a premature publication of it as law – the publication is in fact a nullity and leaves the bill just where it was not having yet completed the several stages through which it must press before it can become a law according to the provisions of the New South Wales Act. My letter of yesterday contains the grounds of the objections which have presented themselves to my certifying the bill in the altered form returned by the Council – Your Excellency therefore has a sufficient case raised to submit the Bill to the Legislative Council for reconsideration, in order if possible that the several functionaries may agree in forming a suitable law.

The new bill which Your Excellency enclosed me this morning being a literal copy of the former as amended by the Council falls of course within the same principle of objection and your Excellency must perceive that I cannot consistently certify it.

I have the honor to be,
Sir, &c &c &c
Francis Forbes

His Excellency
The Governor
&c &c &c

Government

[Page 108]

Government House 30th May 1827

Sir,

I am this moment honoured with the receipt of your second letter of yesterday and beg to state in reply, that the Legislative Council having agreed to the Bill, as it now stands, I am not aware of the object of any further discussion on the subject, or that it can with propriety be entered into.

The publication of the Bill took place in consequence of its being understood, that you had assented to the several additions and amendments, though from the circumstances of the moment you did not affix your Certificate a second time to the Bill, after the Blanks had been filled up.

[Page 109]

Sydney 30th May 1827

Sir,

In answer to your Excellency’s letter of this mornings’ date, I beg to say that my last communication of yesterday was sent to Your Excellency’s house last evening, and by my orders directed to be left on your table, in order that your Excellency might receive it as soon after your return from Parramatta as possible this morning.

Your Excellency is pleased to state that the publication of the Bill took place in consequence of its being understood that I had assented to the several additions and amendments, though from the circumstances of the moment, I did not affix my Certificate a second time to the bill, after the blanks had been filled up – This is a grave charge, and it would not become me to make it by pointing out Your Excellency’s duty under the Act. I beg leave however, to take issue on the fact, and to say that I never did directly or indirectly authorize any such understanding of my having assented to the amount of duty, which is the essence of the Bill.

I have the honor to re-inclose it to Your Excellency, and to inform your Excellency that I cannot certify it in its present form, for reasons which I have stated in my letter of yesterday

I have the honor to be
Sir, &c &c
(Signed) Francis Forbes
Ch Justice N.S.W.

His Excellency
The Governor
&c &c &c

[Note – Another letter from the Govr. Inclosing draft proclamation suspending the Act, & the reply – both dated 30th May – are omitted here]

Sydney

[Page 110]

Sydney 31st May 1827

Sir. The occasion on which I received your Excellency’s letter of yesterday’s date, was too urgent to admit of my answering it in more than general terms at the time – I therefore avail myself of the earliest moment to inform your Excellency of my motive in recommending the Bill for imposing a Stamp duty to be submitted for reconsideration of the Legislative Council. In order to prevent misapprehension, I must beg your Excellency’s patience while I take a short retrospect of the events connected with the bill, up to the date of my letter to your Excellency.

Your Excellency did me the honor to inclose the Copy of the Bill, while I was in the Country on the 11th day of April last, for my Certificate. The professed purpose of the Bill was to provide a fund for defraying the charge of printing the public acts, proclamations, orders and notices of the government, by means of a Stamp duty on newspapers – the amount of the duty was left blank with a view, as I conceived, of leaving it to the Council to fix such a rate of duty as would be adequate to the professed objects for which it was imposed I returned the bill in the same form as I received it, with my certificate, which of course only went to the general principle of the legality of such an act as that which was submitted to me – the bill was laid by Your Excellency before the Council about the 23rd of April, read a first time for the sake of form, and postponed for consideration until the second of May. That month is, by the rules of the Supreme Court, appropriated to the delivery of the gaols, and your Excellency is aware from the pressure of business in the Court, that its appointed sittings cannot be
altered

[Page 111]

altered without producing great derangement throughout the4 whole course of its proceedings – It happened, unfortunately, that on the day of opening the Court, Mr. Justice Stephen was seized with the gout and obliged to retire, and the whole business necessarily devolved upon me – On the morning appointed for the consideration of the bill, the members of the Legislative Council met pursuant to adjournment, and while I was sitting in Court, I received a message by the Clerk of the Council, stating, as I understood him, that the Council were waiting for me – I of course desired him to inform the Council that I was engaged in the Supreme Court – upon which I understood the Clerk to say that the Council wanted my opinion as to the propriety of introducing a clause to make it a transportable offence to counterfeit stamps on newspapers. I have but a very indistinct recollection of the answer I gave – for I was in the act of trying a serious case of capital felony – [Note in Margin - Wm Webb since executed] – but I am told by the Clerk that I desired him to say I saw no objection to such a clause, and that he reported the same to the Council – [ On the following morning, just as I was about going to Court, I was honoured by a call from the Colonial Secretary, who spoke to me as he has since told me, upon the subject of the act generally, but as I only recollect, from the impression it has left, with reference to the new Clause, added at his suggestion by the Council. I cannot be held answerable for loose opinions given in this way – any man versed in the abstracting business of the law, must know that they are frequently mechanically pronounced, while the attention is engaged with another subject – If I expressed any general assent to the Stamp duty of fourpence, as Mr. McLeay supposes I did,
I

[Page 112]

I can only say that it was so utterly unconscious on my part, that I desire to be understood as using the most solemn form of adjuration which can be used, in declaring that I have no recollection of giving such assent, and that my minds’ attention was never for once seriously drawn to the amount of the duty, until I saw it promulgated in the Sydney Gazette.

I had, of course supposed that the bill must be regularly laid before me for my certificate, before it could be passed, and then would be the time for me to read it with care, and determine upon the legality of its provisions – How could I for an instant suppose that this ceremony would be dispensed with? I understand that as soon as the Council had agreed upon the amount of the duty, the bill was transmitted to your Excellency, and by your Excellency, returned to the Council; by whose directions the King’s Printer was ordered to attend the Council office, a fair copy immediately made, and sent off for publication in the Gazette of the following morning – and all this without the slightest consideration of the office which I as Chief Justice had to perform, and contrary to my declared opinion in Council, only the week before, in te presence of the Colonial Secretary, that any alteration in any bill rendered it necessary to be re-certified by me –

Your Excellency has been pleased to inform me that the publication of the Bill took place in consequence of its being understood that I had assented to the several additions and amendments, though I did not affix my certificate a second time to the bill, after the blanks were filled up – Your Excellency, of course, assumes such to have been the understanding, upon the statement of the Colonial Secretary – for with no other person whatever had I ever interchanged a word upon the subject – Now it is supposable that Mr
McLeay

[Page 113]

McLeay may have misunderstood me, that I may have given an unconscious assent to the Bill, that my opinion might even have been inconsiderately given – but I may be permitted to ask, could it be assumed that I intended to give a judicial opinion upon the amount of a tax, without having had the means of referring to the data upon which it was adjusted, or of judging how far it was conformable to the act – upon a felony, without reading over the clause which created it? – Your Excellency has had some experience of the exactness with which I endeavour to discharge my official duties, upon what occasion was I ever known to do business in this way before? I deny that I ever did assent to the bill as filled up by the Council, or that the Colonial Secretary ever was upon any occasion, authorized by me to give my assent to the bill, or to pledge my certificate to its legality – The wise provision of the Act of Parliament which requires my hand-writing, was intended to guard against this sort of misapprehension and misunderstanding, and why it was dispensed with on this single occasion is more than I can imagine –

It is too apparent to admit of doubt, that the stamp duty would be followed by other consequences than that of providing a fund for the purposes it proposed – a few incontestable data must fully establish this fact – It is stated by the Government printer in his remonstrance to the Council, that hitherto it has cost the public nothing for publishing their acts and orders in the papers; and for the printing them again in a form to be bound up, the charge, as appears by the first half of last year’s expenditure, does not exceed £ 120 per annum – To raise a fund for defraying this, or some other reasonable amount, the bill proposes to levy a duty of 4d. upon every newspaper published within the Colony – Now it appears from the same statement that the number
Of copies

[Page 114]

of copies of the Sydney Gazette distributed weekly, is, upon the average about two thousand – Supposing the actual number sold to amount to eighteen hundred copies, and to them add twelve hundred of the Australian, and five hundred of the Monitor, which appear from the respective statements of those papers, published some time since, and which I have heard upon enquiry to be the correct amount, and this will give an aggregate number of one hundred and eighty two thousand papers dispersed in the course of the year, upon which a duty of fourpence ought to realize a revenue of three thousand pounds and upwards – an amount so extravagantly disproportionate to the object proposed by the act, that it were absurd to suppose the duty was imposed merely for such purposes – that this amount of revenue would not in fact be raised, I perfectly well know, and this is the point I wished to arrive at - The Colonial Secretary in our communication upon the subject last Sunday morning, admitted that in consequence of the high rate of duty that the sale of the newspapers would be so depressed, that it was calculated they would not realize a revenue of more than five hundred pounds per annum, and that such a sum or thereabouts would be paid by Government as an annual stipend for the printing of a Government Gazette – By the admitted operation of the duty, then, the publishers of newspapers would be deprived of their trade, and the government paper would be the only one worth the trouble or expence of publishing. I speak of this merely as a consequence of the stamp act – I do not ascribe it as a motive - but the effect is precisely the same, and renders the duty oppressive and contrary to the provisions of the law, and every admitted principle of taxation –

It is stated by Mr. Justice Blackstone, as the
law

[Page 115]

law, that “the things to be arrived at, are wisdom and moderation not only in granting but also in the method of raising the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare and at the same time most consistent with the liberty of the subject; who, when properly taxed contributes only some part of his property in order to enjoy the rest”. In furtherance of this legal principle, the New South Wales act provides that the purposes for which every tax may be imposed, and to which the amount is to be appropriated, shall be distinctly and particularly stated in the body of the law, imposing such tax – Bringing the fourpenny stamp bill to the test of the law, and looking at the broad facts before me, how was it possible to shut out the conclusions that the bill had other objects in view than such as was openly expressed, and in its consequences must work the ruin of those persons whom it professed merely to tax? And how can this be reconciled either with the general principles of English Law, or the provisions of the New South Wales Act?

I beg not to offer a few words in explanation of my reasons for recommending the matter to be resubmitted to the Legislative Council – I was willing to believe that the premature publication of the bill had arisen from an irregularity in the Council Chamber, and that your Excellency in reassembling the Council, would have an opportunity of stating my doubts about the legality of the bill, in the amended form they had returned it. The Council could then either have reconsidered it or not, according to their discretion – In doing this, I am not aware there would have been any deviation from the New South Wales Act - your Excellency makes laws with the advice of the Council – so does His Majesty with the advice of Parliament –
These

[Page 116]

These words were used adviserly, and although they do not convey an originating power, yet it is competent to the Council to recommend the form in which they will receive a bill; and equally so to the Chief Justice in pointing out his legal objections to advise the Governor, or the Council, as to the form in which he would be prepared to affix his certificate to any proposed measure of legislation – I will add that I had another object in view – it was that your Excellency should afford the Council an opportunity f reconsidering their own proposed tax – Your Excellency will bear in recollection that our local laws must be laid before Parliament at stated periods, and in the exercise of the very extensive and delicate trust reposed in the few Members who compose the Legislature of this Colony, Parliament will naturally look for more than an ordinary degree of moderation and discretion and I do not think that our Stamp Act would have been such a law, as His Majesty’s ministers would have desired to place upon the tables of Parliament –

I hope if any expression have escaped my pen in writing this hurried letter, which your Excellency may deem in the slightest degree improper, that your Excellency will attribute it to any cause rather than a wish to offend. I have had an overwhelming duty to perform, I am sure Your Excellency has had a painful one – with every sentiment of high respect,

I have the honor to be
Sir, &c &c &c
(Signed), Francis Forbes

His Excellency
The Governor
&c &c &c

Parramatta

[Page 117]

Parramatta 2nd June 1827

Sir,

I had the honor to receive your Letter of the 31st ult. Soon after the breaking up of the Executive Council on that day As the subject was incidentally discussed on that occasion, which you could not be aware would be the case, when your letter was preparing, it cannot be necessary for me to reply to it in this place, particularly as I am not aware I could add any thing to what I have already offered.

I have the honor to be,
Sir, &c &c &c
(Signed) Ra. Darling

The Honorable,
The Chief Justice
&c &c &c

[Copy of letter on page 82 and 83]

Appendix

Correspondence with the Editor of the Sydney Gazette, with reference to the same subject

Sydney 7th June 1827

Sir

[Page 118]

as nearly as you can tell, what may be the several distributions of the Australian, the Monitor, and the Gleaner per week

I remain, &c
(Signed) F. Forbes

Mr. R. Howe
King’s Printer

[copy of letter on page 84]

Gazette Office, Sydney
June 9, 1827

Sir

In doing myself the honor to acknowledge the receipt of your communication, of the 7th instant, I beg leave to state, for your information, the following particulars:-

1. I have never made any charge for printing the Acts, Proclamations, and orders of the government; but, if the government were to pay for the same, £ 800 per annum would be the expense, more or less; in return for which, however, and my long services, I had long time flattered myself, that the Home Government would have been pleased to have bestowed upon me the solicited appointment of King’s Printer.

2 – The cost to Government, for printing the Official Notifications, in a Book may be averaged at £ 120 per annum, and no more.

3. – The number of copies of the Sydney Gazette struck off, weekly, are close upon 2000, but I will say 600 of each paper, which, published three times a week, will amount to 1800 copies.

4.- As you are pleased to ask my opinion as to the number of copies printed by the Australian, the Monitor, and the Gleaner, upon good authority, they may be safely estimated as follows:-

The Australian , published twice a week, 600 of each number – in all 1200;

The Monitor as yet only once a week, upwards of 500 copies; and
The Gleaner, somewhere about 200.

I must beg

[Page 119]

I must beg leave further to add, that the above facts, so far as they relate to my own Journal, are embodied in my remonstrances upon the Act of Council, No 3, and appear also in the Gazette of the1st of February last, as well as in many other numbers of the same paper.

I have the honor to be
Sir, &c &c &c
(Signed) R.Howe.

His Honor,
Chief Justice Forbes
&c &c &c

[copy of letter on page 88]

Sydney 11th June 1827

Sir,

In reference to the subject I lately addressed you upon, may I beg to be informed of the following particulars.

1. What may be the expence of printing and delivering your Gazette – that is, suppose the price to be a given sum, what proportion does the expence bear to such sum.

2. What, in your opinion, would have been the operation of the duty of 4.d upon your paper, in reference to the sale; and how far would it have checked the circulation of other papers, or have suppressed any of them.

I am,
&c &c &c
(Signed) Francis Forbes

To
Mr. R. Howe

[Page 120]

[this is a copy of letter on page 92]

Gazette Office, Sydney, June 12, 1827 -

Sir -

In hastening to reply to your communication that reached me this morning, I beg leave to state, for your Information –

First - The Expense, per annum, of conducting my Gazette, on the present scale, and no alteration has occurred since December last, may be safely estimated at £1500 per annum, which is something better than one-fourth of my receipts.

Second - In my opinion, as you are pleased to elicit it, the operation of the Duty of Four pence upon my paper, in reference to the Sale, would have been fatal to my interests with which fact I was so impressed, this I candidly confessed to the Honorable the Colonial Secretary, a few days before the Act has to come into operation, this, in the event of the Duty being exacted, I should be unable to proceed with the Gazette, though, at the same time, rather than allow the Government to be even so remotely inconvenienced I was willing to publish the Government Orders & other Notifications as usual, in any shape His Excellency might be pleased to suggest. After close calculation upon the subject, I found no reason to vary in my conclusions; and it was only on account of my personal regard for, and weighty obligations to, Mr. McLeay, when a child in England, that I became persuaded to try the measure.

Third - As to the check that would have been imposed upon the other Journals, it would have been most effectual. They might have crawled on for a month or two, or perhaps three, but one step further they could not well have advanced – inasmuch as it would have first doubled their expenses in the same proportion as I saw it must affect myself. The Monitor and the Gleaner must have died almost instantly though the Australia, from its more abundant resources, might have survived two or three months, but not longer.

I am sure you are satisfied, Sir, whilst I am giving you
This

[Page 121]

solicited Information, the most material facts of which have already appeared in print, this you will not suppose I am by any means inclined to dispute with the Government as to the propriety of any measures that it may have thought expedient to adopt.

I have the honor to be,
Sir, &c &c &c
(Signed)
R. Howe

His Honor
Chief Justice Forbes
&c &c &c

Gazette Office, Sydney June 12 1827

Sir,

Since I despatched my letter of this morning to you, it has occurred to me that I omitted to notice a most important fact, which goes to strengthen my conviction as to the fatal effects that would inevitably have been consequent on the operation of the Stamp Act. It is this – So universal was the outcry against the measure – so uniform the expression of disapprobation – that the Colonists had determined, as far as I could judge, to the extent of one and all, upon not allowing a newspaper of any kind, bearing the Stamp, to enter their houses; and some had gone so far as to signify their intention to that effect, in writing to my office; of which fact I thought it my duty to apprize the Honorable The Colonial Secretary at the time, by way of proving the calamity which threatened the Sydney Gazette – as also the other Journals.

I have the honor to be
Sir, &c &c &c
(Signed) R. Howe

His Honor
Chief Justice Forbes
&c &c &c

[Page 122]

14 June 1827
(Forbes to Horton)

Correspondence respecting
The Fourpenny Stamp Act

Sydney New South Wales
18th Feby 1818

[Page 123]

Sydney New South Wales
18th Feby 1818

Sir,

I beg leave to refer your attention to a letter addressed by me to Lord Bathurst, on the 1st day of May last, and the [indecipherable] accompanying that letter, which were assigned by me for declining to certify the clauses of a bill, proposed by the governor, for placing the press of the Colony under a licence – You will three find an opinion expressed by me, with some confidence, that the laws of England, if properly enforced would be found sufficient to restrain any temporary excesses of the Papers, until the subject should be reconsidered by the Secretary of State, and such measures adopted as a maturer consideration of all the circumstances of the case would suggest. After I had communicated that opinion, through the Governor, two prosecutions were commenced against the publisher of the Australian for libels upon the administration of General Darling – The issue of both those prosecutions has been rather extraordinary – and I feel it necessary, as well in justification of the opinion I had expressed, as forming a proper sequel to the communications I had the honor to address to your predecessor in office, to

The Honorable
The Under Secretary of State)
Colonial Office)
London)

[Page 124]

state the circumstances which caused those particular trials to take an unusual turn, and in both instances to go off without the jury being able to come to any conclusion –
To you Sir who live in the [indecipherable] atmosphere of England, it would be unnecessary to point out the carefulness of our laws in providing for the impartiality of juries . If it be true “that all the vast apparatus of our government has ultimately no other object or purpose but the distribution of justice, or in other words, the support of the twelve judges;” it is more especially certain, that our lawgivers have bestowed upon this portion of their elaborate work, the most minute and anxious attention – The labours of the last sessions of Parliament bear ample testimony to this truth; and the acclamations with which Mr. Peel’s jury bill was received by the House of Commons, shows that the voice of the public is in perfect accordance with the wisdom of Parliament – [ The end, the whole machinery, the very invention of juries has this single purpose in view, that persons indifferent to both parties, should be called in to determine the matters in dispute between them – In furtherance of this end, it is provided by law, that the officer entrusted with the nomination of the jurors, should stand in the most perfect state of [indecipherable] the merely having an action depending with either of the parties, for any supposed

[Page 125]

injury to person or character, is in itself sufficient grounds for objecting to any return of jurors made by a Sheriff so situated – in the clear and conclusive language of Lord Mansfield “the Law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the professions of mankind in the decision of any mater of right – If therefore the Sheriff be, in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity or pervert his judgment, and therefore will not trust him – The minuteness of the interest will not relax the objection, for the degrees of interest cannot be measured; no line can be drawn but that of a total exclusion”- Such are the principles of the law with respect to the returning of juries in England – principles which are founded in universal justice and are equally true in New South Wales, however local circumstances may vary the particular form of their application – [ From certain peculiarities in our society, juries in the Supreme Court are not returned from the same class of persons, nor in the same manner as they are at home – they are composed of military men, and are nominated at the discretion of the governor – It would be out of place to enter into the reasons of this departure from the antient common law, further than to state, as mat-

[Page 126]

ter of fact, that Parliament had it solely in view to preserve the purity of justice by excluding from the jury list, persons who had been attainted of crime – This was the avowed object of His Majesty’s advisers in proposing the New South Wales Act, and it was the clear and obvious intention of Parliament in passing it – It is however a great innovation upon the established law of juries, and can only be justified upon the plea of necessity – It will be conceded that the trust conveyed to the Governor, is one of great delicacy, and requires on his part, the most scrupulous care, not merely to discharge it with fidelity, but to avoid the appearance of turning it to an impure purpose, either by selecting particular persons as jurors, or by taking any active part in particular prosecutions – [there is also another peculiarity in our local law, which gives additional force to these observations – the Attorney General is invested with very extraordinary powers – It is in the discretion of this officer to place any person upon his trial for a capital felony, without disclosing his informer, without previous examination before the magistrate, without the intervention of a grand jury, upon his sole fiat - this is, indeed, a formidable power; and I am warranted in saying that it was not contemplated in the first draft of the bill which I had the honor to lay
before the Secretary of State; and would seem to have escaped the vigi-

[Page 127]

lance of the law advisors of the Crown – In the hands of an upright and honourable Attorney General, there would be but little fear of any great abuse – the very excess of the powers conveyed by the law, would operate as a restraining principle, and confine them to a discreet and temperate exercise – But in proportion as the powers placed in the hands of an Officer of the Crown pass beyond the limits of constitutional law, they carry with them a corresponding responsibility; and it follows as a necessary consequence, that he should be left to the free and uncontrolled exercize of his own judgment and discretion – [ Last of all would it become the Governor to interpose his high authority, in the form of a mandate on an instruction – to do this, were, in fact, to become the prosecutor – to render the jurors nominated by him, open to legal objection, and liable to the worst suspicions and, in short, to corrupt and sully the very sources of justice – [These remarks apply to all prosecutions instituted in the Supreme Court; but they apply with peculiar strength to the cases more immediately under consideration – The two prosecutions against the editor of the Australian , were for libels upon the Governor - Altho’ the injury in contemplation of the law was to the public, yet it were impossible to suppose that the governor had no private feeling in the case – The point for trial was in

[Page 128]

itself important – it placed in issue the powers of the government on one side, and the privileges of the subject on the other. Every consideration of justice, of law, of policy, of right feeling, required that the government should scrupulously, even ostentatiously, preserve itself from the semblance of every interference, direct of indirect, with cases so peculiarly and delicately situated –

The two prosecutions were commenced in June 1827 – at that time there was an acting Attorney General , the present Attorney General not arriving until July following – In consequence of the delays attending a change of officers, the trials of these cases did not come on until one in September , and the other in December – The matter charged as libellous in the first prosecution was constructive, and I have occasion to know, that a conviction was not anticipated by the officers of the Crown of the success of the last, more confident expectations were formed – The subject was a letter signed Vox Populi, which appeared in the Australian of 25th May 1827 – The trial of this case was appointed for December – I must turn a little back to preserve the order of time, and mention circumstances according as they occurred –

You will have learned from my communications to Mr. Wilmot Horton, that I had been a short time before, applied to by the Colonial Secretary in the

[Page 129]

presence and apparently with the assent, of the governor to try the Editor of the Australian, for a libel upon the Master of the Supreme Court – This I declined, at the time, merely observing that I could not select particular cases, but that Mr. Justice Stephen and myself would take all such cases as came before us in the usual rotation – I rather thought that Mr. McLeay was not sensible of the impropriety of his request – It was not until I had afterwards discovered that the zeal of the Colonial Secretary had led him to mention the circumstance of his private application to me with so little discretion, that a report of it became public, and that I was pressed by the Governor, in a way which appeared to me inconsistent with my oath of office, that I was induced to write to the Governor upon the subject – I must beg to refer you to the correspondence which passed on that occasion – My only reason for mentioning it in this place, is to explain the cause of Mr. Justice Stephen and myself sitting together in these particular trials – it was to counteract any improper impression from the government’s having applied to me, to try the Defendant, in preference to Mr. Justice Stephen – He felt it due to ourselves to make this arrangement – but the circumstance which gave rise to it was unfortunate, and occasioned some embarrassment, at the trial –

On the 28th of November the Governor

[Page 130]

published an order, professedly in compliment to Col. Stewart, the Lieutenant Governor, on his embarking with his Regiment to India – The order will be found in the Sydney Gazette, accompanying this letter – the concluding paragraph is as follows – “the conduct of Lieut. Governor Stewart, and of every other officer who has done his duty by discountenancing the individuals who have labored even to the latest moment, to degrade and vilify the government, will be duly appreciated, as those who have acted otherwise, will be made strictly accountable for their conduct” – [One of “the individuals” pointed at in the order, was understood to be Dr. Wardell; but who were “the officers” alluded to, was not implied in the terms of the order, and that the cause of it was the having failed to discountenance Dr. Wardell, and other persons who had opposed the government – It might without any violent distortion be applied to the last jury who had virtually acquitted the Defendant on the first prosecution, or it might be applied to the officers impanelled to try him on the second information – It was addressed to the officers generally, and might be supposed to call upon the military, in an especial manner, to imitate the example of Col. Stewart, and deserve well of the government by doing all within their power to put down an individual who had rendered him

[Page 131]

self obnoxious – It were unnecessary for me to say that I do not put this interpretation upon the order alluded to – the question is not what I might have supposed, or the government intended; but what construction the order itself might bear, and the consequences which might result from such construction, however erroneous it might be – viewing it in this light, I am not prepared to say that it might not have entered into the contemplation of the last jury, and materially affected their opinions – that some feeling of this sort had found its way among them is certain, for after they retired from the Court to consider of their verdict, they bound themselves by a solemn oath, not to reveal each other’s opinions –

On the 14th of December, another order or notice appeared in the Sydney Gazette, in which the Defendant was designated as a ‘factious individual,” and the Governor declared it to be “derogatory to his character, to continue to be the member of any society, to which he belonged”- The occasion of the last government order was some proceedings of the Turf Club, at which the governor had felt himself offended – I must refer to the Gazette for the particulars of this affair – How far the governor’s anger had been justly excited on that occasion, was for his own determination – he was the only judge of his own feelings – but at the moment of trying a prosecution against the publisher of the Australian, for a libel

[Page 132 ]

upon his administration, to give vent to his feelings with form and manner in which they appeared in the Sydney Gazette, was to follow the example of the accused party, to adopt his precedent, and apparently to sanction it, by converting the official paper of government, into a medium of attack upon his character – [From the time that the information against the Australian had been placed upon the files of the Supreme Court, the Sydney Gazette indulged in the most indecent allusions to the pending trials – Inasmuch that Mr. Stephen and I found it necessary to address a letter to the Governor upon the unbecoming interference of this paper – I have the honor to annex the correspondence which took place – The Governor in his answer, disclaimed all right to interfere with the Gazette, and considered its affecting to be the organ of government, “a trick of the trade”. But with deference to His Excellency I would beg to submit that it is not sufficient for the government to say it leaves the Sydney Gazette at liberty to practice such an imposition upon the public, and still retain its title and patronage – How far it might think fit to interfere, as a question of policy – but of its power to do so, there can be no doubt – the Gazette is, in fact, government property – it was founded by government – It might naturally be expected that while the government had directed a vigorous course of prosecution against the conduct

[Page 133]

tors of the opposition journals, it would restrain its own paper within the bounds of moderation, and prevent its indulging in that daily strain of irritating language, which it perpetually held to the Editors of the other papers – The effect of this line of conduct was, in a certain degree, to identify the government with its own indiscretion; and to expose it to this charge, that what it sought to put down with a strong hand in one paper, it tacitly overlooked in another – that it left the government paper free to abuse Dr Mardell, but it would not suffer Dr. Mardell to abuse the government – This was certainly no legal ground of justification for the Defendant, but it was a popular argument, not entirely destitute of plausibility, which it were difficult to deprive of its force upon public opinion, and consequently of its influence upon the Jury – In a small society, such as this, every thing becomes the subject of private conversation; and opinions are insensibly formed upon the passing events, which forestall the judgment, and render it impossible for mere men of the world, such as juries are necessarily composed of, to counteract, in forming their verdict – I do believe that the conduct of the Gazette with respect to Dr. Mardell, and especially during the trials before the Court, had a very improper effect upon those trials, and tended to prejudice the cause of the Crown –

[Page 134]

On the 22d of December, the last trial came on – a preliminary objection was made to the array of the Jury, upon the ground that the governor had nominated the Jurors, and that His Excellency was not indifferent between the parties – The Court overruled the objection, observing that the prosecution being commenced y the Attorney General, ex officio, it could not, without indecency, be presumed that the governor had in any way interfered in it – The defendant shortly after produced in Court, a letter worded, as nearly as I can recollect, as follows – “Sir, I have been instructed by the Governor, to commence a prosecution against you, for

(See page 15)

[Page 135]

(15)

a letter in the Australian, signed “Vox Populi” – This letter was signed by the Attorney General, and addressed to the Defendant – I was not prepared for such a letter – In the case of the Archdeacon and others, the Governor had declined interfering with the duties of the Attorney General, and left him to use his own discretion – I approved of that determination; and it was not until I heard the letter read in Court, that I was induced to suppose the government would interfere in any particular case – The effect was embarrassing in the extreme – It was now evident that the Governor united in his own person, the incompatible functions of returning officer and prosecutor - the first principles of Juries, the forms of law, all the anologies of justice were broken down – it was impossible to trace in a prosecution so situated, any affinity with the pure and unsuspected course of trial at home – it placed a powerful appeal in the hands of the Defendant – and it put the jury upon the point of honor, the most likely, of all others to betray the judgment of men, educated in the jealous principles of the military profession –

[Note in margin] Sir Coke lett. 157 – (n) this would be principle cause of challenge to a person, & [indecipherable] to the retaining of office.

To these causes, Sir, I attribute the want of unanimity in the Jury, in the late trials for libel I regret that they should have occurred, but I cannot hold myself in any measure answerable for

[Page 136]

the consequences – I had many reasons for desiring that the question at issue between the government and the papers should follow the usual and regular course of justice – very extraordinary remedies had been proposed, to restrain the press, which I conceived to be irreconcilable with the law, and consequently incompatible with my duty to sanction – I had recommended that the laws in being should first be tried; and I expressed in a confident anticipation of the success of the experiment – I had pledged my professional opinion upon the issue, and it was but natural that I should wish to redeem it – and I do not feel that the opinion which I originally formed, has been at all weakened by the event of the trials – on the contrary, I am the more confirmed in believing, that if the press be left to the corrective power of the Courts, undisturbed by those extraordinary anomalies which attended the late prosecutions, it will be found amply sufficient to restrain its excesses – the newspapers have already assumed a more moderate tone; and the community at large have arrived at a juster notion of the time limits of allowable discussion ~~This - not~~ So far at least a great object has been accomplished; andthe merit of it is entirely due to the government, incausing the laws to be put in force – I could have wished

[Page 137]

(17)

it had stopped there, and left the rest to the regular officers of the Crown –

In conclusion of this letter which is longer than I intended, I beg to refer to the report of the trial of Dr. Mardell, in the Sydney Gazette altho’ it is not in all respects accurate, it will be found to contain a pretty fair report of the ~~trial~~ proceedings on the trial -

I have the honor to be, Sir
Your most obed.t humble Servt.

[Page 138]

Correspondence on the Press

Letter to Under Secretary in reference to Lieut Officers and the trial by Jury. Alluding to Dr. Mardell’s case

[Transcribed by Robin Matthews]