1990 DEBT RECOVERY AND INSOL VENCY LA W 49

New South Wales creditors ’ autonomy in a way which was never evident in England. Later reforms in both England and New South Wales reinforced or revived that autonomy of creditors. The reforms also restricted the autonomy of debtors, the essence of which was their right to remain in gaol protecting exempt property. That eventually disappeared in England, but it was never very evident in New South Wales where the autonomy of both parties was strongly limited by the Court of Civil Jurisdiction. When the English state eventually strengthened, it did so at the expense of debtors more than creditors. By the middle of the nineteenth century both jurisdictions had laws which favoured creditors. DEFAMATION LAW AND THE EMERGENCE OF A CRITICAL PRESS IN COLONIAL NEW SOUTH WALES (1824-1831)

Brendan Edgeworth

Introduction

arly one morning in March 1827 two men met in a lonely field at Homebush on the outskirts of Sydney. One of them was Robert Wardell ELL.D., part-owner of the Australian newspaper, editor and barrister. The other was Colonel Henry Dumaresq, personal assistant, confidant and brother-in-law of Governor Darling. Their purpose in meeting was to fight a duel provoked by an alleged libel of the Colonel appearing in the Australian one week earlier. The Colonel had issued a challenge to the editor after reading an article which claimed that he had improperly supplied a file belonging to the Australian to the Sydney Gazette, the official newspaper in the colony at the time. The old adage has it that the pen is mightier than the sword. Fortunately for the two protagonists that day it proved mightier than the pistol too, for despite three attempts to hit each other from a distance of thirty paces, they both emerged unscathed. At this point Robert Warden’s second, and co-owner of the Australian, William Charles Wentworth, prevailed upon him to tender a verbal apology. Thereupon,

50 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 51

“[h]onour being satisfied, the parties mounted their horses, courteously saluted each other, and rode back to Sydney and breakfast”.1 Paradoxically, this episode, an illegal one at that, was significant in the develop­ ment of defamation law in the colony for a number of reasons. In the first place it marked a deterioration in the relations between the press and the Governor at the very time when he was contemplating a legislative scheme to regulate their activities. Second, it demonstrated how ancient rituals continued to set the terms of the conduct of public affairs in early New South Wales. Third, it was one of a sequence of reverses suffered by the hapless Governor in his contest with the newly-arrived, critical and “independent” press. However, it is not possible to understand the complexities of the ensuing struggle over the freedom of the press in New South Wales in the late 1820s by focussing exclusively on the dynamics of particular conflicts between the Governor and the newspaper editors. It is also necessary to address the peculiar constitutional framework within which those conflicts were acted out. Today, it is usual in popular imagery to see the press as a fourth estate, a distinct arm of a pluralistic, democratic and responsible polity. By contrast, the fledgling colony of New South Wales in the 1820s did not have a division of constitutional labour that allows ready application of these modem concepts. In­ deed, to apply contemporary notions of legislature, executive, judiciary and press would positively hinder analysis of the political and legal disputes of the time. Insofar as the political structure of the colony was defined by the New South Wales Act of 1823 an examination of that Act must be the starting point for analysis of the dramatic differences between early New South Wales and modem New South Wales, dating the latter for the purposes of this analysis from the establishment of a democratically elected Legislative Council in 1856.2 The Act of 1823 reflected the changed nature of the colony by the 1820s. No longer simply a convict settlement, it could boast geometrically increasing commer­ cial and agricultural activity evidenced most visibly in the development of Sydney Town as a busy seaport. The majority of the population were still convicts, but given a total mainland population in excess of 24000 by 1820, there was good cause for reformers such as William Charles Wentworth to advocate the introduction of such political institutions as would satisfy the needs of a population aspiring to be free citizens rather than passive subjects of the Empire. After an extensive official inquiry undertaken by Commissioner Bigge in the early 1820s two reports were produced which proposed the system later embodied in the Act. The representative institutions demanded by Wentworth and others were notably absent from the mode of governance envisaged by the Imperial Parliament. Instead, section 24 of the Act provided for the establishment of a distinctly undemocratic Legislative Council: its members were to consist of from five to seven persons nominated by the Crown. Further, what legislative powers the Council did have were rather limited. They could not initiate legislation, for instance. This power was vested exclusively in the

1 O’Halloran, Some Early Legal Celebrities (Second Series), 10 Jnl. OF THE Royal Aust. Historical Soc. 301,345 (1924). 2 4 Geo. IV c.96; and Constitution Act 1955 (N.S.W.). 52 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

Governor. Also, the British authorities could approve a law even if it had been rejected by the Legislative Council, while section 25 of the Act conferred on the Governor an emergency power to make laws independently of the Legislative Council in cases of actual or threatened rebellion or insurrection. In addition to these very clear limitations on local law-making, the Crown explicitly retained a general power of disallowing any colonial laws. This power could be exercised by the Secretary of State for the Colonies.3 This was not all. The Governor’s powers were subject to one other significant limitation: the Chief Justice’s role in the process of legislation. By section 29 of the Act, no law could either be presented to, or passed by, the Legislative Council unless the Chief Justice had previously certified that “such proposed law is not repugnant to the Laws of England, but is consistent with such Laws, so far as the circumstances of the said Colony will admit”. Importantly, this provision required the Chief Justice to act ex officio and not in the course of judicial proceedings in granting his approval. As will be seen later, this enlargement of his role in the legal affairs of the colony was to prove very significant in the context of the later struggle between the press and the Governor. The Chief Justice’s powers did not stop there. He was also a member of both the Executive Council and the Legislative Council.4 It followed that any Governor would be very dependent on his Chief Justice for support in political as well as legal matters. Formally, at least, the repugnancy doctrine was the only substantial restriction on the Legislative Council’s powers: as long as its proposed legislation was not inconsistent with the laws of England, its legislative power was unlimited. However, the history of the late 1820s is marked by a dramatic ineffectualness on Darling’s part in his attempts to impose a legislative muzzle on the press. Furthermore, when this strategy failed his attempts to achieve the same object in the courts through use of common law criminal and seditious libel were only marginally more successful. The aim of this paper is to examine the causes of this dramatic contrast between legal doctrine on the one hand and legal practice on the other. My argument is that only an examination of the political and social contexts of the various legislative measures and judicial pronouncements can reveal the reasons why the law changed as it did. But before any analysis of the case law and statutes can be undertaken it is necessary to survey Governor Darling’s early relations with the press.

Darling's First Encounters with the Press

or the first quarter of a century of the colony’s existence there was only Fone functioning newspaper, the Sydney Gazette. Modelled on the London

3 Id., s.30. For further details, see A. Castles, An Australian Legal History chap. 7 (Law Book Co. 1982). 4 Id., s.29; and Instructions to Governor Darling, July 17, 1825, Historical Records of Australia [H.R.A.] 1/12 at 109 (Commonwealth Parliament 1922). 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 53

Gazette of the seventeenth century, this paper operated more as an official publication than a newspaper in the modem sense. It was owned by the Crown, a considerable portion of its columns were given to disseminating official information, its editor received an annual stipend of £60 as Government Printer and, most importantly, he was obliged to submit every copy to the Governor’s secretary for approval before publication.5 Unsurprisingly there is no record of the paper ever having attracted official disfavour. It was not until 1824 that the first genuine, critical newspaper, the Australian, appeared. In 1826 it was joined by the Monitor and in April of the following year the Gleaner arrived, hi a rather short time, therefore, the colony had acquired a fourth estate of sorts, and some thirty years before it saw its first democratically elected political institutions. This peculiarity of historical development is an important factor in understand­ ing the relations between the press and Governor Darling. When the Australian was first published there were no laws in the colony, excepting criminal, seditious and civil libel, for the regulation of the setting up and functioning of newspapers. To be sure, the Gazette was subject to censorship but this was by virtue of the editor’s contract of service with the Governor. This being so, the two owners, Robert Waidell and William Charles Wentworth - both practising lawyers as it happened - did not feel the need to seek official permission to publish. Nor did Governor Brisbane see any reason to intervene. The presence of some uncensored competition soon provoked the editor of the Gazette to approach Brisbane to request the lifting of censorship from the Gazette. Since the editor had been reasonably content to publish only what caused the Governor no offence, it was almost predictable that the reasons he gave for introducing a more liberal regime were greater efficiency of production and wider distribution rather than the principle of editorial freedom. The Governor agreed and with a sense of self-congratulation commented in January 1825 that the experiment of press freedom had been a beneficial one.6 It was now the case that the press was subject to fewer legal restrictions in Australia than it was in England where a number of statutes regulating advertisements, imposing stamp duties and requiring licences had been in place for some years.7 The irony that the press was legally freer in a convict settlement than it was in the country of origin did not go unnoticed for long. Colonel Arthur, the Lieutenant- Governor of Van Diemen’s Land, for instance, advised Brisbane to license the press when the question of removal of censorship was first mooted. This advice was ignored. Later, possibly at the instigation of Colonel Arthur, the Colonial Secretary, Earl Bathurst, advised Governor Brisbane to take steps to introduce a system of regulation along the lines of the English model.8 Brisbane, however, felt that there

5 R.B. Walker, The Newspaper PressinNew South Wales 1803-1920,4 (Sydney U.P. 1976). 6 Id. at 7; H.R.A., 1/9 at 470-71, Brisbane to Bathurst, January 12,1825. 7 These were the notorious “Six Acts” passed in 1819, described by one commentator as due to “panic-stricken Toryism”: C.H. Currey, Sir Francis Forbes 202 (Angus and Robertson 1968). generally, W.H. Wickwar, Struggle for the Freedom of the Press (Allen and Unwin

8 Despatches, Lord Bathurst to Governor Darling, Vol. 20, July 12, 1825, at 485-91, Mitchell 54 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 was no obvious reason for changing the present regime since he had not received any significant criticism from the press. Consequently, the press enjoyed compar­ ative freedom from interference for the balance of his term of office. When Brisbane came to be replaced by Ralph Darling in 1825, however, Earl Bathurst’s reiterated instructions fell on more fertile ground. Arriving in the colony with specific advice to curb the press, Darling was immediately confronted with specific grievances about alleged instances of press licentiousness. First, he was asked by both John Macarthur and Archdeacon Scott to institute prosecutions for criminal libel against the editors of the Sydney Gazette and Australian respectively for the harshness of their criticisms: the former’s treatment of convict labourers was seen to be objectionable, while the latter’s ecclesiastical administration was judged to be inept.9 With understandable caution, he refused to take any actions on these complaints preferring to get a grasp of the overall balance of forces before im­ plementing any concerted strategy. More particularly, he was reluctant to antagonise a press that at that time was serving him rather well. “As the government has experienced no attacks”, he wrote in a despatch to Colonial Under-Secretary Hay on July 24,1826, “having, on the contrary, been most honorably spoken of on all occasions since my arrival, I mean even by the Australian, I am satisfied you will agree with me that it would be injudicious to provoke attack by the levy of an insignificant tax, which the editors would probably feel and resent as an unjust return for the support they have afforded, and which has been the most important from the popularity of the paper. The state of the Press in the sister colony affords an example which I am unwilling to profit by, and though I should be the last to yield any important right, or suffer the character of the government to be compromised, I should reluctantly risk the favourable report of a well-edited journal, and think its loss but ill compensated by the paltry amount of an obnoxious tax”.10 One commentator concludes that Darling had in effect “two policies for the Press of this country, a policy for the well-behaved and another for those he considered licentious”.11 The appearance of another newspaper, the Monitor, under the editor­ ship of Edward Smith Hall on May 19,1826 also met with Darling’s satisfaction. Indeed, he noted shortly afterwards that its claims to independence might even be at odds with its overtly pro-government stance: “it professes to be independent, and I am sure it is so, though it speaks of the government in very favourable terms”.12 A second example of a general feeling of discontent about the press emerges from Darling’s correspondence with his Attorney-General, Saxe Bannister, concerning Darling’s relationship with Robert Wardell.13 Shortly after his arrival, Darling had had a dinner party for the Chief Justice, Law Officers and Gentlemen of the Bar.

Library [M.L] MSS. 9 Rose, The Administration of Governor Darling, 8 Jnl. OF THE Royal Aust. Historical Soc. 49,128,131 (1922). 10 H.R.A. 1/12 at 437-46. 11 Rose, supra note 9, at 133. 12 H.R.A. 1/12 at 326-28; Darling to Hay, 25 May 1826. 13 H.R.A. 1/12 at 437-46; Darling to Bathurst, 24 July 1826. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 55

The Attorney-General refused to attend specifically because Dr. Wardell had been invited. He later wrote to the Governor claiming that “the recurrence of libellous calumnies”, particularly in the Australian, meant that the Governor, by mixing with the editor - even in his capacity as a practising barrister -, would induce the public to feel that libels are not disapproved of by the government. Darling dismissively replied that he did not feel that it was within the bounds of the Attorney’s duties to be telling the Governor who could sit at his table.14 Within six months, however, things had changed considerably. The trickle of criticism of the administration had become a flood, particularly after the death of a young military recruit, Sudds, was considered to have been caused by the Governor’s cruelty.15 As a result, Darling began to set in train a range of measures designed to reduce dramatically the scope for newspapers to criticise his government. As events unfolded, however, even at this comparatively early stage in his term of office, it was too late for him to turn the clock back to the time when the social structure of the colony was more suited to militaristic command rather than political rule.

The Emergence of a Public Sphere

A. General

he ensuing history of the tussles between the governor and the press was decisively affected by some structural features of the colony when he Tarrived. As noted above, Darling’s initial strategy was one of appeasement. But it was an appeasement of competing modes of constitutional order as much as rival factions. On the one hand, Macarthur and Scott - not to mention Saxe Bannister - were committed to a constitutional framework which criminalised public scrutiny of official behaviour per se. This is established, among other things, by their embrace of criminal and seditious libel as appropriate means of silencing dissent. The defence of truth is not available in the case of these libels. Whatever else truth may mean, in the context of defamation law it implies, as a defence, that revelations of fact, publicly aired, will be immune from suit, regardless of the status, importance or wealth of those adversely affected thereby. Where seditious libel and criminal libel form part of the law, however, status occupies centre stage. Indeed, as far as these crimes were concerned the relevant common law maxim was “the greater the truth, the greater the libel”.16 This makes these doctrines relevant to constitutionalism in two ways: first, they establish a formal inequality as between different classes of citizens; second, they set the terms on which state/individual relations are acted out.

14 Id. 15 H.R.A. 1/12 at 761-63; Darling to Horton, 15 December 1826. 16 “As the woman said, She would never grieve to have been told of her red nose if she had not one indeed.”: Hudson’s Star Chamber, cited in J.F. Stephen, A HISTORY OFTHE CRIMINAL Law of England, Vol. 2,381 (Macmillan 1883). 56 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

One of the most famous analyses of the constitutional significance of these crimes was suggested by James Fitzjames Stephen in his The History of the Criminal Law of England. The emergence of seditious libel, he argued, is based on the view that “the ruler is regarded as the superior of the subject...[and] it must necessarily follow that it is wrong to censure him openly”.17 As noted above, this principle had nothing to do with the question of whether the charge or criticism was true or not. The countervailing constitutional principle identified by Stephen was that the ruler was an agent of the people. A direct consequence of this latter view was that the power he exercised was seen to be in a real sense both delegated from, and authorised by, the people. In order for this delegated authority to be properly exercised, the ruler must be legally open to censure. Freedom to criticise was therefore a funda­ mental constitutional principle. It followed that both seditious and criminal libel were twin pillars of the “ruler-as-superior” form of constitutionalism. On the other hand, civil defamation may be considered quite consistent with notions of account­ ability and popular sovereignty for, by rendering liable only those who make false allegations, virtue may shine unsullied while corruption may be freely assailed. In addition to the issue of the competing conceptions of rulers, these different philosophies entail fundamentally different social structures. Where the ruler is inherently superior, society is effectively split into two parts: the state as the formal organisation of political power and civil society as a private sphere where economic and familial relations take place. This was certainly the model of Australia that the “Exclusives” such as Macarthur wanted to entrench. Committed to creating in Australia a class system which would mirror the clear divisions in England, their strategy was directed at conferring on wealthy pastoralists an almost aristocratic identity, whereby their economic power would be conjoined to a monopolisation of political office. The “Emancipists”, by contrast, placed little importance on convict or transportee status. Accordingly, their economic aspirations were a form of bourgeois pastoralism,18 but located in a constitutional order of formally open and accountable political institutions. This is not to suggest that the likes of William Charles Wentworth were committed to universal suffrage and other institutions normally associated with a liberal democracy. But it is important to emphasise that the reforms that were urged by the Emancipists represented a decisive shift from the quasi-feudal, quasi-military order embraced by the Exclusives. A society so re­ formed can be seen as having a three-fold division: a state and civil society as above, but supplemented by a distinctive public sphere which mediates between state and society. This “mediation” involves the active involvement of private persons coming together to form a public. The press is both an agent and element of this public sphere in that it simultaneously enunciates and reflects public opinion. Jurgen Habermas traces the emergence of such of a public sphere from the aristocratic

17 Id. at 299. A related constitutional formula expressed this difference as being between popular sovereignly and crown sovereignty; the former concept implies that both power and authority originate in, ascend from, ruled to ruler, die latter sees both components flowing the opposite direction: T. Nairn, The Break-up of Britain 40 (Verso 1979). 18 O’Malley, Class Formation and the 'Freedom’ of the Colonial Press, 7 Media, Culture and Society 427-444 (1978). 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 57 structure of feudal society of the High Middle Ages. It is not meaningful to talk of a public sphere in the context of feudalism, he argues, insofar as the nature of feudal, lordly authority lay in its capacity to be “represented”.19 It is important to emphasise that the term representation as used here has a meaning altogether different from that which describes the functions of present-day politicians. By contrast with the latter, the status of the monarch, duke or lord was publicly represented in the sense that it was presented or paraded before a public so that they might acknowledge his innately superior being. Put another way, the lord did not represent the people; he was represented before them. This form of public representation is completely unlike a sphere of political communication. The elements of the latter begin to appear with the emergence of a class of cultivated “men of letters” around the end of the seventeenth century, whose status derived from their contribution to the world of letters. Far from being able to rely on a store of noble attributes, their social standing was directly related to their ability to earn respect As the phrase suggests, the time had passed when they were able to command it The social structures which demonstrated the arrival of this new discursive space were the coffee-houses, clubs, journals and periodicals which mushroomed in the early eighteenth century. In such forums, Terry Eagleton writes, private individuals assemble for the free exchange of reasonable discourse, thus welding themselves into a relatively cohesive body whose deliberations may assume the form of a powerful political force. A polite, informed public opinion pits itself against the arbitrary diktats of autocracy; within the translucent space of the public sphere it is supposedly no longer social power, privilege and tradition which confer upon individuals the title to speak and judge, but the degree to which they are constituted as discoursing subjects by sharing in a consensus of universal reason. The norms of such reason, while in their own way absolute, turn their back on the insolence of aristocratic authority.20 These developments in England were mirrored in Germany by the appearance of Tischgesellschaften (table-societies) and by the salons in France. Correlatively, the influence of the court declined, and with it its own peculiar form of publicity. As Trevelyan notes, But after the Revolution the glory of the Court grew dim. Neither the political position of the Crown, nor the personal temperament of those who wore it was the same as of old. Stem William, invalid Anne, the German Georges, farmer George, domestic Victoria, none of them desired to keep a Court like Queen Elizabeth’s. Henceforth the Court was the residence of secluded royalty,

19 J. Habermas, The Structural Transformation of the Public Sphere: An Inquiryinto a Category of Bourgeois Society 7 (Thomas Burger trans. Verso 1989). 20 T. Eagleton, The Function of Criticism 9 (Verso, London 1984). The case of R. v. Frost, 22 State Trials, 471 is a good illustration of how far seditious libel was at odds with these new developments. The accused, an attorney, was convicted for stating in a coffee-house that the constitution of the country was bad, that he favoured a more egalitarian society, and that there should be no monarch. James Fitziames Stephen concluded mat though “[h]e seems to have been more or less drunk at the time , he was sentenced to six months imprisonment, pilloried, made to find sureties for five years and struck off the rolls: STEPHEN, supra note 16, at364-365. 58 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

pointed out from afar, difficult of access save on formal occasions of proverbial dullness.21 The new location of “publicity” was the town rather than the court, and its social structures, the salons, coffee-houses and journals, were matched by a novel form of “publicity” which had three defining characteristics: first, as noted above, the ground rules for admission “disregarded status altogether. The tendency replaced the celebration of rank with a tact befitting equals”.22 Secondly, issues previously beyond the purview of polite discussion were thrown into question. The court’s and Church’s monopoly of the publicity of representation was shattered: “The private people for whom the cultural product became available as a commodity profaned it inasmuch as they had to determine its meaning on their own (by means of rational communication with another), verbalise it, and thus state explicitly what precisely in its implicitness for so long could assert its authority”.23 Thirdly, even though the mass of the population did not in practice participate, the general public were in principle included. This new public of discussants could never close itself off entirely and become consolidated as a clique; for it always understood and found itself immersed within a more inclusive public of all private people, persons who - insofar as they were propertied and educated - as readers, listeners, and spectators could avail themselves via the market of the objects that were subject to discussion.24 This emergence of a diffuse public attendant on the commercialisation of cultural production marks the appearance of a new social category. This appearance of the public sphere in the social realm soon came to be complemented by corresponding developments in the political realm. In England, from the Bill of Rights onward, all communications in Parliament were protected by absolute privilege. This defence, however, did not extend to reports of such proceedings. Initially, reports of the votes became available.25 Then, by the last quarter of the eighteenth century, when illegal reports of parliamentary deliberations ensured the Morning Chronicle the widest readership in London, the pressure increased for general access to Parliament.26 Originally journalists could only gain entry illegally as members of the public. In 1803, however, the Speaker officially provided a place for them. By 1834, there were separate stands installed for reporters in the newly refurbished Houses of Parliament. As Habermas concludes, this was just “two years after the first Reform Bill had transformed Parliament, for so long the target of critical comment by public opinion, into the very organ of this opinion”.27

21 G.M. Trevelyan, Engush Social History: A Survey of Six Centuries from Chaucer to Queen Victoria 338 (London, 1944), cited in Habermas, supra note 19, at 32. 22 Habermas, id. at 36. 23 Id. at 37. 24 Id. 25 L. Hanson, Government and the Press 1675-1763,81 (Clarendon Press 1936). 26 Habermas, supra note 19, at 61. 27 Id. at 62. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 59

At the same time, the press emerged as the corollary of this publicisation of the political realm in the social realm. This was a process that took close to a century to complete. In England censorship came to an end with the lapsing of the provisions of the licensing legislation in 169528 and despite many subsequent Parliamentary and judicial attempts to restore it, the press came to be by the end of the eighteenth century the most important institution for public rational-critical debate. As a result, “the ongoing commentary on and criticism of the Crown’s actions and Parliament’s decisions transformed a public authority now being called before the forum of the public”.29 The history of seditious and criminal libel is absolutely central to this process given that while they remained part of the panoply of state powers, they operated as a means of effectively quarantining political decisions from public scrutiny.

B. The Position in NSW in 1825 This schema may assist in making some sense of the struggles over the press in New South Wales after Governor Darling’s arrival. First, it is clear that on the Governor’s arrival, there was an active and established, if depleted, public sphere: it had the relevant social institutions but was a long way from having their political accompaniments. Not only had censorship been removed from the Gazette, but as we have seen, there were two newspapers, the Australian and the Monitor, which were clearly committed to bringing political power to account. Second, the Gazette itself, though still in the late 1820s very close to the Governor, fulfilled a nurturing role in the formation of this public sphere. It was after all addressed to a public, informing them of matters of public interest. The prospectus of the first editor, George Howe, proclaimed that the Gazette would contain five classes of informa­ tion: shipping schedules; General Orders; law reports; agricultural extracts and moral and religious admonitions; general news “and every other description of Matter that may appear calculated to inform, amuse or interest the Inhabitants or remote reader”.30 The first editorial added that “We open no channel to political discussion or personal animadversion”.31 Though its content was clearly distinct from the sort of critical commentary published in the Australian and the Monitor, it could nonetheless be seen, at least by 1824, “to serve the people as well as the Government”.32 In doing so, it constituted, just as those periodicals, pamphlets and journals which appeared in Europe a century and more before, a two-fold break with the forms of publicity characteristic of feudal societies: first, it functioned only marginally as an organ of “representation”. Though its tone was regularly one of fawning obsequiousness to gubernatorial authority, it did so by means of offering good reasons for respecting him and his works. Second, it represented a transitional element in the development of the public sphere in the colony, since the paper’s

28 Walker,77ie Newspaper Press in the Reign of William ///, 17 HlSTORTCAL Jnl. 691-709(1974). 29 Habermas, supra note 19, at 60. 30 Walker, supra note 5, at 3. 31 Sydney Gazette, 5 March 1803. 32 Walker, supra note 5, at 3. 60 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 largely administrative content was as much directed to encouraging initiative and providing advice as it was to controlling commercial and social activity. What differentiated this type of communication from the edicts of earlier rulers was both its regularity and its content. As a consequence, this zone of continuous adminis­ trative contact became “critical” ... in the sense that it provoked the critical judgement of a public making use of its reason. The public could take on this challenge all the better as it required merely a change in the function of the instrument with whose help the state administration had already turned society into a public affair in a specific sense - the press.33 34 To the extent that the Gazette, as an oigan of public authority even from its earliest days, addressed a public not merely as a collective recipient of obligations from above but also as a joint-venturer in social affairs, it rendered public authority itself problematic. Little wonder, then, that when the genuinely more critical Australian appeared it was able to boast within a year of its first issue that its circulation had already outstripped that of the officially-favoured Gazette * An embryonic public sphere, therefore, faced Darling on his arrival. The measure of its strength, or weakness, would soon be put to the test.

Darling and the Press: Initial Skirmishes

n the absence of a statutory regime for controlling the press, Darling had at his disposal only one real weapon: the common law. By coincidence, this Ihad been the position of the government in Britain a century earlier, where a range of Parliamentary initiatives against the press had proved to be ineffective and politically counterproductive.35 Successive British governments were none­ theless greatly assisted by creative extensions of the definition of the crime of seditious libel by the Chief Justice, Sir John Holt in the first quarter of the eighteenth century. Along with criminal libel, this formed part of the received law of the colony on settlement.36 Even with a much-broadened crime, however, the Crown found to its cost that prosecutions could still come to naught through technical deficiencies in its conduct of the case. The crime was rather more difficult to prove after the enactment of Fox’s Libel Act of 179237 which restored to the jury the power to decide the general issue - a power that judges, particularly Holt C J., had arrogated to themselves in the course of that century. This Act also formed part of the colony’s received law.

33 Habermas, supra note 19, at 24. 34 Australian, 6 October 1825. 35 Walker, supra note 28. 36 Castles, supra note 3, esp. chap. 19. 37 32 Geo. HI c.60. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 61

There were three forms of libel relevant both to the press and private citizens at this time: seditious libel, criminal libel and civil defamation. All were employed variously during Darling’s term, but seditious and criminal libel provided the Governor with the greatest opportunities to restrain the press. The essence of the crime of seditious libel was that officials of the government, individually or collectively, were criticised in their official capacity by a member of the public and that such criticism had a tendency or was intended to incite sedition. Not only was the defence of truth unavailable but there need not be any defamatory element at all. This is indicated by James Fitzjames Stephen who defined it as “blame of public men, laws or institutions, published with an illegal intention on the part of the publisher”.38 The crime originated from an earlier offence of scandalising magis­ trates. In the hands of Chief Justice Holt it was extended to cover government officials generally.39 As for the position in New South Wales, seditious libel was particularly signifi­ cant by virtue of the fact that the enactment of the Libel Act in 1827 conferred on the Supreme Court the discretion to banish second offenders from the colony.40 Unsurprisingly, it became the focus of the most important cases. The crime of seditious libel as defined above was capable of catching almost any criticism whatever of a public official as long as a mysterious something called “illegal intention” could be proved. In the celebrated case of R v. Duffin and Lloyd, for example, the accused were convicted of “seditiously devising, contriving, and intending to excite and stir up divers prisoners to escape, by publishing an infamous, wicked, and seditious libel”.41 The libel in question was in the form of a placard hung on the wall of King’s Bench prison. On it were inscribed the words, “This house to let. Peaceable possession will be given by the present tenants on or before the first day of January, 1793, being the commencement of the first day of liberty in Great Britain”. What made seditious libel additionally attractive for prosecutors in England was that such prosecutions were not on indictment but by means of a distinctive criminal information filed ex officio by the Attorney-General. Originat­ ing in Star Chamber proceedings, they were preferred for their speed and flexibility as they circumvented the grand jury which in prosecutions on indictment determined whether the charge was fit to be tried.42 The situation was rather different in New South Wales, however, as there were no grand juries in the Supreme Court. As Bigge’s Report recommended, and section 4 of the New South Wales Act 1823 duly provided, the prosecution of all crimes and misdemeanours in the Supreme Court be “by information in the name of His Majesty’s Attorney-General, or other officer duly appointed for such purpose by the Governor”.

38 Stephen, supra note 16, at 359. 39 Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661 (1983). 40 8 Geo. IV no. 2, s.20. 41 22 State Trials 318. 42 Hay, Contempt by Scandalising the Court: a Political History of the First Hundred Years 25 Osgoode Hall L.J. 431,437 (1987). 62 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

As will be seen below, criminal libel was to prove an even more repressive tool. As stated in the case of R v. Beare,43 the crime consisted in the publication of defamatory statements which were calculated, or had a tendency, to cause a breach of the peace. Mere spoken words which defamed could not be criminal.44 As Holdsworth points out, by the middle of the nineteenth century in England, the use of these crimes to silence criticism was on the wane.45 The torts of libel and slander were also relevant but will not be discussed here because they were barely significant in the ensuing controversies, particularly when compared with seditious and crimi­ nal libel. This legal framework appeared to provide ample ammunition for silencing the more offensive forms of press criticism. However, there was a serious logistical problem facing the Governor in any attempt to secure convictions: a breakdown in communication between himself and his Attorney-General. By early 1826 their relationship had deteriorated to such an extent that, as Darling described in one of his despatches to the Colonial Secretary, Lord Bathurst, he was only prepared to correspond with him on “strictly official” matters because of “his perseverance in obtruding offensive observations”.46 It may be recalled that the Governor felt moved to reprimand Bannister less than three months after arriving in the colony for his advice that the Governor should not dine with Robert Wardell. The Attorney- General’s refusal to join the rest of the legal fraternity had clearly embarrassed the Governor. By this stage Darling had lost faith in his professional as well as his diplomatic abilities. In the same despatch in which he had provided details of the strained nature of their communications he reiterated a criticism of Bannister that he had made before: that he was not up to the task of making charges stick.47 Clearly, this measure of personal suspicion was going to be a serious obstacle to developing a coherent strategy towards die press. Sure enough, it gave rise to a very serious disagreement in the very first seditious libel case. In early August, 1826, Bannister initiated a prosecution against Edward Smith Hall, editor of the Monitor for a number of libels.4* The first alleged libel appeared in the leader of the issue of July 14. It claimed that emigrants had been disappointed by the government’s failure to honour bonds which promised them servants in proportion to the size of the land they had been granted. The leader of the issue of July 21 was seen to be the source of more seditious libel, where local legislation relating to licensing hours was described as “a great invasion of the best and most sacred rights of Englishmen” and a statute dealing with bills of exchange was characterised as “a like invasion of the people’s ancient customs”.49 No suggestion was made that any officials, individu­ ally or collectively, were in any way to blame. To his great dismay, the Attomey-

43 1 Ld. Raym. 414 (1699). 44 R. v. Langley 6 Mod. 124 (1704). 45 W. Holdsworth, A History of English Law, Vol. V, 338 (Methuen 1932-1966). 46 H.R.A. 1/12 at 528. 47 Id. at 531. 48 Id. 49 Monitor, 21 July 1827.

k. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 63

General received a letter from the Governor on August 14 requesting that the trial be suspended and not proceeded with without further instructions, because of the “altered tone of the Monitor”. The Governor went on to argue that he did not want to “enter into a contest with a newswriter, the result of which... would, I had reason to believe, have been very doubtful”.50 This remark is revealing: it suggests that, notwithstanding his obvious desire to silence dissent, his formal powers and status were no longer so invulnerable as to allow him to roll back the advances of a now entrenched public sphere. Where his natural inclinations urged legal repression, his political judgment wisely counselled a diplomatic compromise. Despite this, the Attorney-General, in a letter of August 19,1826, continued to urge for prosecution seeing it as useful to “diminish the libelling terror by the example of the Editor” and to “counteract the evil effects of his comments”.51 He added that there was a “universal impression in the colony ... that the Australian newspaper has been equally open to public prosecution; and it is thought... by unprejudiced persons, as much as by the adherents of the various Parties, that the Government is afraid of the latter Newspaper”. The result, as he saw it, was that a new and needy editor was being assailed [Hall] while the newspaper owned by a lawyer [Wardell] was being ignored.52 Significantly, Darling attempted to defend himself against this charge by suggesting in the same despatch that the Attorney- General had failed to appreciate that the articles in the Monitor were of a seditious tendency, “calculated to disturb the public tranquility”, while the articles in the Australian, though offensive, were intended to expose behaviour by individuals which was “obnoxious to the community”.53 Yet it is difficult to see exactly how Darling could have come to this particular conclusion on the evidence. After all, the Australian had, for many months, been making serious criticisms about the governance of the colony in terms very similar to those of Hall. For instance, the Australian was just as vehement in its criticisms of the Sudds affair as the Monitor had been. Also, both had adopted a consistently Emancipist stance, which, given Darling’s staunchly Tory politics, made them necessarily oppositionist.54 Darling added, unconvincingly, that Bannister’s antipathy to the Australian was due to personal resentment toward the Editor of the paper, with whom he had had a falling out, rather than any sense of public duty. What can be made of these claims? Well, for one thing, it is clear that there is much in the Attorney-General’s point that Darling was being unfairly selective in singling out the Monitor. Indeed, later in the same despatch Darling even admitted that the Australian was “remarkable in its opposition to the Govern­ ment”.55 Other communications seem to corroborate this.56 Further evidence

50 Id. at 529. 51 Id. at 530. 52 Id. 53 Id. at 529. 54 See, generally, O’Malley, supra note 18; Walker, supra note 5, at 11. 55 H.R.A. 1/12 at 528-35. 56 See e.g.f H.RA. 1/12 at 749-53, 761-63,765-66. 64 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 seems to indicate that Darling felt that the Monitor merited special treatment. In a letter to Under-Secretary Hay of September 12,1826 - only one week after his decision to abandon the earlier seditious libel action against Hall - Darling wrote that the Monitor's editor “is no doubt endeavouring to establish himself with the Lower Classes of the Community ... a majority of whom are Irish Catholics”.57 A measure of Darling’s resolve to deal particularly harshly with Hall was his expressed intention not to allow Hall to purchase land because he was a “very ill-disposed, if not a dangerous person”.58 This apparent bias in treatment of the different editors is to be explained as a result of both a fear of failure in a libel action against Wardell and Wentworth, and also a more general fear that the Monitor's rather different readership - largely convicts - might be stirred to revolt by its Emancipist politics. It should be pointed out, of course, that the Australian was also Emancipist in its outlook, but its readership was of a rather more respectable complexion, and was much greater in number (1500) in 1826 than the Monitor (500).59 Put another way, the class dimension of this preferential treatment is clear. The Australian represented the face of the reformist propertied classes; the Monitor, by contrast, stood, at least in the eyes of many Exclusives, for something much more threatening. Also, in reality, they were much more powerful. This explains Darling’s more tentative approach to the editors of the Australian: they really did occupy positions of significant power in the colony at the time. Darling’s lame excuses for not prosecuting them bear witness to this. Fortunately for the Governor, Saxe Bannister resigned a short time after this dispute, but not before making one attempt at getting a conviction of seditious libel against Robert Wardell. The alleged libel occurred in the issue of the Australian dated October 18, 1826. The leading article reported the news of Bannister’s resignation in a somewhat sarcastic manner, describing it as “the most rational blunder [he] ever committed”. On October 18 and 19 Bannister wrote to Darling claiming that the article was libellous,60 and suggested that the case be carried on at the expense of the Crown on his behalf as Attorney-General. Once again they disagreed, the Governor arguing that as the libel had occurred after Bannister’s resignation “the Government could not interfere in such a case without establishing a precedent, which might subject it to serious inconvenience”.61 Accordingly, Bannister had to bring a criminal defamation action on his own behalf in the Supreme Court. As if to substantiate the misgivings that Darling had about his competence, his claim for damages of £1000 was rejected by Justice Stephen on the grounds that though the plaintiff had adduced evidence that partly proved that the defendant, Wardell, was the editor of the paper, no evidence had been provided of publishing,

57 H.R.A. 1/12 at 779-80. 58 Id. 59 Rose, supra note 9, at 149. 60 H.R.A. 1/12 a 667-77. 61 Id. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 65 or that the paper had been published and sold by the defendant Accordingly, a verdict was entered for the defendant.62 In the meantime, the hapless former Attorney-General had initiated an action against the editor of the Gazette, Robert Howe, for another alleged libel published to mark his resignation in the issue of October 14, 1826. The article, after noting Bannister’s resignation, went on to detail the duties and conduct of an ideal Attorney-General, and insisted especially on the necessity of refusing to join any political party or to express any political views. It then stated that Bannister had allowed “the enemies of the late administration to influence his enlightened mind to the prejudice of Sir Thomas Brisbane” and imputed his removal from office to the influence of the Macarthur party.63 This was also a case of private prosecution for criminal libel as the Governor again refused to interfere. The defendant was acquitted. The episode had the effect of convincing the Chief Justice that his own earlier estimation of Bannister as incompetent and unreasonable had not been quite right - he was also mad: “if I had entertained doubts of Mr. Bannister’s sanity before, they were confirmed on that occasion”.64 Forbes’ reason for so damning a judgment was that the editor had “not intended to libel but to laud him”.65 Given the wording of the leader this interpretation seems a curious one. At the very least, however, it suggested that the Chief Justice was not inclined to be overly protective of sensitive plaintiffs and prosecutors in defamation actions. The experience of the Governor in his early skirmishes with the press was unquestionably a dismal one. First, his strategy of non-interventionism worked only so long as the press was happy with his administration. It certainly failed to keep them on side beyond the honeymoon period immediately following his arrival. Second, his decision to discontinue the prosecution of Hall, a strategy adopted both to reward him for favourable sentiments expressed about the government from the commencement of the prosecution and in the hope that this would induce a more emollient attitude in the future was equally unsuccessful. Third, the private prose­ cutions of Hall and Wardell had not only resulted in humiliating defeat for Bannister but they had also given confidence to the press and publicised the rift between the Governor and his Attorney-General. Fourth, the Governor was now beginning to despair of the efficacy of seditious, criminal, and civil libel ever being useful in a struggle against an ever more vocal and critical press, especially the Australian with its two lawyer-owners, Wardell and Wentworth. In a despatch to Under-Secretary Hay in early 1827 Darling lamented the lack of efficient law officers capable of conducting libel actions against them. In detailing the problems faced by the Crown in a forthcoming seditious libel action against Wardell for allegedly defaming the Chairman of the Quarter Sessions, he

62 H.R.A. 1/12 at 277-87; Darling to Bathurst, 8 May, 1827. 63 This affair demonstrated the extent of Bannister *s low esteem in the colony. It seemed to provide the opportunity for all relevant parties to offer criticisms of his entire term of office as Attorney-General. 64 H.R.A. 1/12 at 669-79; Forbes to Horton, 15 December, 1826. 65 Id. 66 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 concluded that Mr. Moore, the “locum tenens of the Attorney-General cannot speak, and when called on, merely brings the matter forward”.66 His Solicitor-General inspired no more confidence: he “does not appear capable of expressing himself in an intelligible manner”. Nor did the impending arrival of the new Attorney-General give cause for optimism, Darling lugubriously predicting that “the Government will be worsted in every contest”.67 Given this measure of despondency about action in the courts it was inevitable that Darling would dust off the Instructions of Earl Bathurst of July 12,1825, so as to give himself greater power to dim the glare of the critical spotlight that now exposed his every move. That his spirits were at such a low ebb and that he was feeling that measures even more extreme than common law crimes were called for was rather more a measure of the strength of the public sphere as demonstrated by the various social forces prepared to defend it than a reflection of the incompetence of his law officers.

The Legislative Strategy

arling’s professed reason for not making more use of the common law was the failure of prosecutions early in 1827 against Robert Wardell for a Dcriminal libel on William Carter, the Chairman of Quarter Sessions, concerning the Sudds case and against Edward Hall for a seditious libel on Archdeacon Scott.68 The Gazette dutifully complained that the court’s decision to allow the accused a postponement of proceedings in the former case was an indulgence granted to no other journalist.69 There is substance to this frustration as it not only provided a disgruntled editor the opportunity to take up cudgels in relation to a number of other matters in the meantime, but more importantly indicated that the judiciary were not entirely reliable when it came to delivering favourable judgments. Darling therefore resolved that the best method of controlling the press was by means of the tried and tested licensing and stamp acts. This approach had two further advantages: first, there was no need to draft new Bills, since Colonel Arthur had sent him copies of draft licensing and stamp Bills from Van Diemen’s Land; second, those Bills had already been approved there by Chief Justice Pedder as being consistent with English law. The first Bill amounted to a two-pronged attack on the press, the first being a system of licensing, the second registration. The Bills were forwarded to the Chief Justice for his certificate on April 2,1827. To his surprise, the Chief Justice refused to give his certificate on the grounds that the specific provisions dealing with registration were repugnant to the laws of England, and were therefore in breach of the provisions of die New South Wales Act of 1823. His opinion clearly conflicted with the earlier judgment of the Chief Justice of Van

66 H.R.A. 1/13 at 81-2. 67 Id. 68 Rose, supra note 9, at 143. 69 Sydney Gazette, 3 September 1827. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 67

Diemen’s Land and brought him for the first time into direct conflict with Governor Darling. This was to be the pattern of their relationship for the remainder of the Governor’s term. The Chief Justice gave a number of reasons for not certifying the licensing bill. In the first place, he felt that Earl Bathurst’s Instructions did not so much envisage the enactment of a local statute, as the recommendation by the Legislative Council to Parliament that it should enact such laws. Second, the law of England conferred the right of free speech on all subjects; this could not be removed by the local legislature. Every freeman has an undoubted right to lay what sentiments he pleases before the Press. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man and to make him arbitrary and infallible judge of all points in learning, religion and government.70 For good measure, he added that, on the authority of Blackstone and Lord Ellenborough, press licensing and liberty were irreconcilable. On close examination, the Chief Justice’s refusal appears to be based on a very generous reading of the law of England at that time. There was a Licensing Act in force there, but it only provided that whenever a licence was revoked, the Minister in Council or the King should be notified wherever possible. There was certainly no right reserved to the subject “to lay what sentiments he pleases before the Press”. This was particularly so in respect of the balance of the notorious “Six Acts” of 1819, which imposed draconian restrictions on the press. This is not to suggest that Forbes was unprepared to entertain any limits on press freedom. Were the safety or peace of the colony threatened by press licentiousness, he emphasised, he would not hesitate to certify restrictions as consistent with the law of England. But such a state of affairs did not exist in the colony at this time. Consequently, he asked “how is it possible that I can become party to the scheme of reducing the Press to a sterile adulatory creature of the local government, knowing as I full well know the purposes to which it would be turned?”71 That Forbes’ conclusions were rather more than an exercise in dispassionate statutory interpretation is suggested by correspondence between himself and Darling in the early part of 1827 when the issue of licensing was first mooted. In what is perhaps his clearest expression of a philosophy regarding the appropriate ambit of public political commentary in the colony, he identifies the uniquely local obstacles to a free press. In a letter to the Governor on February 6,1827, he emphasised that I have already given you my opinion that a free Press is not quite fitted to a servile population; it is excellent, indispensible in a free State, because of its tendency to counteract that eternal propensity of our social natures to make slaves or dupes of one another, but for that reason perhaps it is not suited to a state of society where half of the community are worked in chains by the other.

70 Forbes to Horton, 1 May, 1827; M.L. A1819 at 141-2. 71 Id. 68 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

The direct tendency of the Press is to equalise mankind and the direct policy of our little State is only an enlarged prison discipline: the first is to set all free, the last to hold half in servitude... Yet I must not leave out of account that the other half of the people are free and that as an abstract right they are conse­ quently entitled to the laws and institutions of the parent State.72 These responses demonstrate why Forbes opposed for political and philosophical reasons Darling’s legislative scheme, preferring instead a strategy of occasional prosecutioa A statutory regime which conferred an unrestricted power on the Executive Council to revoke licences at will would have put the future of a critical press seriously at risk, in particular since the Governor and the members of the Legislative Council (who included Archdeacon Scott and John Macarthur) could not be trusted in the Chief Justice’s mind to act in an unbiased manner.73 The common law, however, as it stood at the beginning of the nineteenth century not only ensured that the press could continue to function even if at times editors were convicted of criminal and seditious libels, but it also meant that the judges would have exclusive jurisdiction to determine such questions. The Chief Justice’s opin­ ion, therefore, reserved the power to regulate the press to the only branch of government that had thus far demonstrated any commitment to safeguarding the public sphere. This commitment was demonstrated even more clearly in respect of Darling’s second bill which concerned the imposition of stamp duties. Earl Bathurst’s instructions of 1825 had advised that a stamp duty of up to fourpence (the amount specified by the relevant English legislation) for the purpose of defraying the cost of government printing was legally permissible. A proviso was added: “In fixing the amount of the stamps you will therefore regulate the scale of duty, that the produce of it may be adequate to provide for this charge”.74 Forbes estimated that this duty would raise something in the order of £3000 per annum, whereas the government’s annual bill for printing was £120. Accordingly, the purpose of the Bill was to put the papers out of business. Once more Forbes called Blackstone in aid to proclaim the impropriety of this measure. Darling, however, was not to be easily thwarted this time. With Forbes absent from the meeting of the Executive Council which considered the bill (he was deputising for Justice Stephen at the Supreme Court at the time) it was passed without dissent and immediately transmit­ ted to the Chief Justice for his assent by the Colonial Secretary, Alexander Macleay.75 There is some dispute about the state of this bill when presented to Forbes: was the duty of fourpence specified or not? Forbes certainly certified the bill but later claimed that there was a blank space where the amount of duty was to be specified; on another occasion, he maintained that he issued his certificate in a moment of absent-mindedness.76 The members of the Executive Council insisted that the bill

72 Forbes to Horton, supra note 65, at 84. 73 Forbes, Draft Letters on the Press, M.L. B207 at 1-25. 74 H.R.A. 1/12 at 16-17. 75 Rose, supra note 9, at 151. 76 Id. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 69 was complete when presented to him. Whichever account was the correct one, however, Darling was faced with a recalcitrant judge once more. All was not lost at this point, though. Formally the bill had become law since it had been passed by the Legislative Council unanimously. However, events suddenly began to overtake the Governor. By section 32 of the New South Wales Act each member of the Legislative Council was obliged to take an oath of secrecy in respect of all its proceedings. There is perhaps no feature of the constitutional structure of the colony more antithetical to the principle of publicity discussed above. Indeed, this absence of a public sphere in the political domain made the principle of a free press in the social domain an even more crucial imperative for those wishing to develop open and accountable institutions in the colony. If there was no political forum in which the most important deliberations on matters of public significance in the colony could be the focus of genuine public debate, all that was left was the press, its social corollary. The Australian got wind of the details of the bill. Immediately the entire press, including the Gazette, railed against the proposed measures. Furthermore, the Australian's criticisms echoed those of the Chief Justice.77 For Darling, there was only hope now: that Forbes would publicly state that the bill was both duly passed and was not repugnant to the laws of England. On the contrary, for three weeks he maintained a distant and austere silence. With public outrage at a high pitch, he finally wrote to the Governor advising that the Act had not been legally passed as he had not assented to a duty of fourpence.78 Knowing that Forbes was opposed to the levying of this sum, Darling sensibly decided that any further action in this regard was useless. This episode showed not only the ideological gulf which separated Darling and the Chief Justice on the issue of press regulation, but also that there was evidence of a disturbing conspiracy between the judiciary and the press, most particularly the Australian. In his next despatch to the Secretary of State for the Colonies, the Governor accused both Forbes and Justice Stephen of being responsible for the leak.79 C.H. Currey, in his meticulous study of Forbes’ career argues to the contrary by pointing out that the arguments advanced against the Act in the Australian were the sorts of arguments that any legally competent person would make.80 Further­ more, the Secretary for the Colonies, Sir George Murray, concluded that there was a “total absence” of any evidence to suggest that there had been any communication between Forbes and the press.81 Whatever the truth of the matter was, Forbes was censured by the Secretary for his general course of conduct in this affair.82 More significantly, however, the Governor was, at this stage, in an even weaker position than ever, with judges, press and significant sections of both free and convict

77 Id. at 152. 78 Id. 79 H.R.A. 1/13 at 259-64; Darling to Bathurst, 18 April, 1827. 80 Currey, supra note 7, at 221-228. 81 H.R.A. 1/13 at 357-8. 82 Id. 70 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 population resenting his aggressive policies toward the press, the colony’s solitary institution for bringing public power to public account.

Darling, the Press and the Courts: Phase Two

ith his legislative strategy in tatters, Darling had no option but to return to the courts in view of continuing hostility from the press. The Gazette, Wof course, was excepted as it continued to give support wherever possible to the government. Darling could not have been especially sanguine about the pros­ pects of success. True, he had a new Attorney-General and Solicitor-General, but his recent joust with the Chief Justice over his proposed Bills, not to mention the fact that he sincerely believed that the papers had received confidential material from the judge,83 was beginning to suggest a new and disturbing coalescence of oppositional forces. Given the critical temper of the Australian and the Monitor at this time, the first case of seditious libel was not long in coming. On September 29,1827, the trial of Robert Wardell began. The charge was that the defendant printed and published a false, scandalous and seditious libel of and concerning Governor Darling in the Australian of August 3,1827. The jury could not agree on a verdict so the defendant was discharged.84 On December 22 Warded found himself back in court, again accused of seditious libel for a letter, signed Vox Populi, published in the Australian of May 25. This trial also resulted in a disagreement of the jury and Warded’s acquittal.85 Perhaps predictably, this induced a sense of despair in Darling of ever getting a conviction for either seditious or criminal libel. In his despatch to the new Secretary for the Colonies, Viscount Goderich, he expressed his surprise at the result of the two cases. The report which he received from the Attorney-General and Solicitor- General explaining the failure of the prosecutions was enough to make him decide to abandon any further prosecutions.86 They claimed that they failed on two grounds: (1) the defendant was “adowed by the court too great a latitude in his address to the jury”; (2) the judge’s summing-up and directions to the jury were much too favourable to the defendant. The Chief Justice had in fact in the previous prosecution of Warded, informed the jury that it was the defendant’s right to observe on or find fault with the government as long as he did so with decency and without imputing criminal motives.87 The publication in question in that instance had concluded that the Governor was guilty of an act of illegal tyranny and oppression in the Sudds case. Even more significantly, the judge went on to instruct the jury that they, being military officers, might very wed be biased in favour of the governor and that they

83 See supra note 79. 84 Sydney Gazette, September 1827. 85 Id., December, 1827. 86 H.R.A. 1/13 at 719. 87 Id. at 724. See also reports of the case in Sydney Gazette, 1 and 3 October, 1827. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 71 should bring down a verdict that a “Jury of the Country” would be likely to. The Law Officers determined that this sounded the death knell for their case as it had a decisive effect on the jurors. Accordingly, they advised that it was pointless to initiate any further prosecutions for libel “unless they are of an excessively gross nature”.88 Insofar as the Governor felt that the criticisms he was presently bom­ barded with were already excessively gross, he concluded that the judges were decidedly set against him as well. This perception was fuelled by a letter sent to him on December 31 after the conclusion of the trials by the Chief Justice and Justice Stephen. They offered some general observations on the conduct of the trials: Considering the freedom allowed by the Law in animadverting upon Public Measures and the latitude which daily usage at least has tolerated, we do not think that the cases selected for prosecution in this Colony would have been deemed of sufficient importance to have demanded a state prosecution in England.89 The significance of this statement is that the judges felt that the colony’s peculiar constitutional and sociological structure did not in any way justify a lower level of freedom of speech. The judges did not stop there. They were particularly disturbed by the conduct of the Gazette in its reporting of the trials. Clearly demonstrating some detailed study of the paper’s style, their letter identified nine separate issues of the Gazette which had had in their opinion an improper influence on and prejudiced the administration of justice. In particular, they felt that the editor of the paper had in each of the offending articles assumed the guilt of the defendant before the conclusion of the trial. They added that while they did not wish to imply that the Governor had guided the editor of the paper, to the extent that it continued to bear the insignia of official authority it is difficult for the public to disbelieve that the editor is controlled, or at least his conduct is not restrained by the governor.90 This letter effectively amounted to a reprimand to the Governor, and the most serious one to date, especially as the judges added that they felt that the prosecutions may have had the effect of actually “lowering the tone of the Press”.91 But it represented something more significant in the colony’s historical development The judges in this instance were affirming a number of constitutional precedents hinted at in the tussles between Darling and the Chief Justice over the licensing and stamp bills. In the first place they were asserting a two-fold independence: (1) their own independence, by construing the relevant substantive and procedural law very strictly against the prosecution, thereby frustrating the Governor’s political objec­ tives; (2) the independence of judicial proceedings from official interference by suggesting that the Gazette reform its reporting of trials so as not to reflect a faith in the rightness of the Governor’s case. This latter recommendation can be seen as a belated response to Wentworth’s request that the editor of the Gazette be cited for

88 Id. 89 Id. at 720. 90 Id. at 721. 91 Id. 72 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 contempt. Darling’s response to the judges that censorship had already been removed from the Gazette92 only served to demonstrate how out of touch he was with the changed climate of political sentiment of the time. The judges ’ disapproval of Darling’s bungled clampdowns on open criticism of official behaviour marked another step in the process of entrenching the colony’s public sphere.

The Press in Retreat?

fter the last case against Wardell, and the declarations of the Attorney- General and Solicitor-General that they would attempt no more libel Aprosecutions unless they were “extraordinarily flagrant”, no further prosecutions were commenced until the latter part of 1828. This was despite vigorous criticism of both the administration and the Exclusives in both the Monitor and One, Australian. In the course of the year, Darling received more bad news about his licensing legislation: the Law Officers of the Colonial Office had agreed with the Chief Justice’s ruling that the first six clauses of the Libel Bill were indeed repugnant to the laws of England.93 With that particular avenue permanently blocked, it seemed, the Governor was once more left with the courts as his sole means of bringing the press to heel. The first prosecution took place in September 1828. The case involved an article in the Monitor concerning the Archdeacon of Sydney, T.H. Scott. Some weeks before, the editor of the Monitor, Edwin Smith Hall had been locked out of a pew in St. James’ Church, Sydney. There seems little doubt that this was an act of retaliation against the editor for his public criticisms of the Archdeacon. The irrepressible editor promptly broke the lock and climbed in. For this he was prosecuted for criminal trespass at the instance of the Archdeacon, who also took the precaution of boarding over the top of the pew to ensure there was no repeat of the incident. In the issue of 12 August 1828 Hall claimed that the Archdeacon’s ministry was marked by extreme incompetence. Perhaps mindful of his resolution not to bring a prosecution unless a case involved a libel of an “excessively gross nature”,94 the Attorney-General determined that this might just be the sort of case where an attempt to secure the first success against the press for a libel of a public official could be successful. The recent arrival of a newly-appointed judge, Justice Dowling, may have made this decision somewhat easier. Not only was the prosecution successful, but the judgment of the court (Forbes C.J. and Dowling J.), delivered by the new judge, signalled a distinct change of

92 Id. at 722-723. 93 H.R.A. 1/14 at 276. By contrast, a Stamp Act was declared to be not repugnant to the laws of England even if the duty was set as high as 4d. a copy, but with one proviso, namely, that it “must be bona fide levied with a view to Revenue, ana that the amount must not be regulated by the supposed advantage which might arise from suppressing or impeding the publication of Newspapers in the Colony”. As such, it was of little use to Darling. 94 H.R.A. 1/13 at 725. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 73 attitude on the part of the judiciary to press practices. Noting that the leniency of the Archdeacon was the only thing that prevented the court from passing “such a sentence as would have subjected you to considerable inconvenience”, Justice Dowling went on to conclude that this particular publication was “a most indecent and scandalous libel upon the prosecutor”.95 The judge was sensitive about the appropriateness of making general criticisms on matters not before the court, adding that Although the Court may not with propriety take judicial notice of the general character of the public Press in this colony, yet it would be affectation, if in so small a community, it claimed to be ignorant of the passing transactions of the times.96 Ignoring his own advice, he then proceeded to offer a critical review of the conduct of the press over the preceding months. The judges of this Court cannot abstain, on the present occasion, from observ­ ing, that the public Press has on frequent occasions in latter times, exceeded those bounds which fairly and justly belong to its province. Why these excesses have not been brought under the cognizance of the law, the Court stops not to enquire nor does it cast blame on any body for the abstinence which has been evinced in passing over such transgressions... Judging from the general tone of this vehicle of public opinion, marked as it has been by too many instances of great indiscretion to say the least, little hope can be entertained that the community of this settlement, now emerging from the cloud of penal obscurity, will enjoy the radiant advantage of His Majesty’s paternal protection, or attract the sanguine popularity and sympathy of die British public... Unless therefore the Press of this colony assumes a different tone, and its conductors manfully check the impulses of personal vituperation and study to represent the people of this Colony in their true colours, they will have to bear the consequences for the loss of the many advantages which subjects of the Crown possess every­ where.97 Hall was fined twenty shillings and required to enter into a recognisance of £500 to be of good behaviour for twelve months. The real significance of the case, though, was the express resolve of the court to clamp down in future on “indiscretion” and “personal vituperation”. Furthermore, to the extent that the judgment suggested that earlier indiscretions had not, as they might have been, successfully prosecuted in the courts, the government was given the unambiguous message that the judiciary was now prepared to take a more active role in regulating public discussion. This is not to say, however, that they were abandoning a commitment to free speech. This was clear from some general comments made by Justice Dowling in this case. If I may speak for my learned friends as for myself, there is no inclination on the part of the Court to put restraints upon the fair and just bounds of the liberty of the Press. As the medium of diffusing useful knowledge, and improving the

95 The Notebooks of Justice Dowling (hereinafter Dowling), Vol. 14, at 98, State Archives Office, Sydney. 96 Id. at 99. 97 Id. at 99-100. 74 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

condition of man, the public Press is the most the powerful and efficient instrument hitherto known in the history of the world.98 Nonetheless, the Court was prepared to modify this general principle because of the unfavourable impression created in Britain by regular press criticism of the colonial administration. It is important to note in this context that local politics were always simultaneously conducted in that country in the form of petitions to the Colonial Secretary, representations to politically sympathetic MP’s and so on. This was a direct consequence of the acutely dependent status of the colony at this time, but there was a more pressing need to be transmitting favourable impressions in early 1829: the Imperial Parliament was in the process of considering extension of the New South Wales Act. Consequently, any evidence of unrest in the colony might risk significant future legislative restrictions upon the local fledgling public sphere. Dowling directed considerable attention to this issue in his judgment by pointing to the fact that the persisting conflict between the press and the administration was a subject of great notoriety back home. Above all this was due, in His Honour’s opinion, to the editors’ failure to understand the proper boundaries of a legitimate public sphere. In this case, Hall’s conduct was characterised as a personal attack based on a private feud. By ventilating this matter publicly, the accused had wrongly attempted to make his private interest a matter of public concern. As the judge emphasised until condemned by the law itself, it ill becomes any private man to take it upon himself to ridicule the sacredness of their characters by holding them up to ridicule and contempt. The law, which is made for all, will not endure this assumption of authority in a private individual....99 In his clearest statement on the basis of the dividing-line between the two spheres, he concluded that Hall’s arguments that “liberty of the press considerations” should exonerate him might have had greater effect “[h]ad you acted in good faith in this respect, in your character of a public writer on public grounds, and for the benefit of the community at large”.100 Even though the press was being reined in here - after all, it was the Archdeacon’s administration, a matter of public interest, that was being criticised -, these statements nonetheless demonstrate a measurable commitment to a critical public sphere. The extent of that commitment could be seen to have faded considerably by the middle of that year with the editors of both the Monitor and the Australian languishing in gaol after libel convictions. One cannot ignore the influence that the new judge, Justice Dowling, had on this change. Indeed, he presided at each of the successful actions against the editors over the next eighteen months. His approach to the law of libel was clearly more favourable to the Governor than the practice of his brethren had been, though it is hard to say conclusively whether the cases would have been decided differently had he not sat on them. What is suggestive, however in this context is the advice which he received from various quarters before he left England. Barron Field, for example, warned

98 Id. at 98. 99 Id. 100 Id. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 75 him about the “convict press” which “slandered three to four times a week” those who refused to countenance moves to independence from the mother country.101 More significant perhaps is the advice of William Huskisson, Secretary of State for the Colonies, who more or less urged him to see his role as much a political as a legal one: However honestly the Judges... might act in adhering to the strict line of judicial duty, it must be borne in mind that, although such a spirit of precise deportment might be justified in the well established machine of the maternal government, it was not quite compatible with the conditions in a distant Colony where the military Governor had no collateral assistance to guide his administration.102 As his judgment on the case R. v. Hall above suggests, this advice may have been ringing in his ears as he heard the case. On the 10th of April, 1829 Darling successfully secured the conviction and imprisonment of Hall. In the issue of the Monitor dated 22nd of November, 1828, Hall had alleged that Darling had used undue influence in the appointment of the jurors at his trial for criminal libel on the Reverend Scott.103 He was found guilty in this instance of seditious libel and sentenced on the 20th of the same month to a term of imprisonment of twelve months. The day was not a happy one for Hall as he was also sentenced to three months’ imprisonment for a conviction on the 15th of the month of criminal libel on F.C. Crotty, the commandant at Port Macquarie.104 The sentences were expressed to be served cumulatively. On the 14th of April, Edwin Hayes, the part-owner and editor of the Australian after its sale in 1828 by Wardell and Wentworth, was tried and convicted of seditious libel for further criticisms of Darling over his conduct in the Sudds affair. This conviction marked the high-water mark of Darling’s success against the press, for not only did he succeed in securing a sentence of imprisonment against the editor, he did so despite the very able defence of Hayes mounted by W.C. Wentworth.105 More important still, he was also assisted by a rather generous direction to the jury from Justice Dowling. Despite informing them that “[t]he liberty of the press exists in full force and effect in this colony” and that political discussion if free and fair is within the bounds of the law, he nonetheless added that “if a public writer... says or insinuates that the Governor acts from any partial or corrupt view, or with an intention to oppress any individual or class of men, I apprehend the writer would subject himself to the penalties of the law”.106 This too evokes the advice he received before taking up his position in the colony.

101 Dowling, The Judiciary: from the Foundation of the Colony to the Death of Sir James Martin, Fourth Chief Justice, with Biographical Sketches, 2 Jnl. ofthe Royal Aust. Historical Soc. 89,102 (1909). 102 Currey, supra note 7, at 306. 103 H.R.A. 1/15, Introduction at viii. 104 Id., and Dowling, Vol. 17, at 122. 105 Id., and Dowling, Vol. 17, at p.99. 106 Dowling, id. 76 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

With the editors of both opposition newspapers behind bars, Darling could be forgiven for feeling that the tide had turned. More significantly, for the first time since his arrival he seemed to have at least one judge sympathetic to his concerns about press licentiousness. The public sphere which had proved to be so obstinate in the face of his attempts to restrict it over the last two years suddenly looked to be fettered in the most comprehensive manner imaginable. He had certainly won a few battles, but had he won the war?

The Press Fights Back

ayes was sentenced to six months imprisonment, required to enter recognisances of £1000 and fined £100. However, the severity of the Hpenalty brought him immediate sympathy. The fine was paid by a group of prominent men, one of them being Francis Stephen, son of Justice Stephen.107 Further, both he and Hall were not subjected to the usual rigours of a prison regime. Hall, for example, was allowed to wear civilian clothes and both men were permitted to carry on their editorial responsibilities uninterrupted. Predict­ ably, they continued to subject Darling’s administration to regular criticism. For his part, Hall found himself back in the Supreme Court in December on trial for four more criminal libels. The first concerned an article published only fourteen days after receiving judgment for his libels on Darling and Crotty. In it he alleged that Alexander Macleay, the Colonial Secretary, had wrongfully altered a date on a paper in an earlier court case. The court found that this had indeed happened, though as Justice Dowling pointed out at the trial, citing many English prece­ dents, this was no defence to a criminal libel. In terms reminiscent of the Chief Justice in the case of R v. Wardell,10® he urged the military jury to decide the issue as if they were “plain citizens”.109 Hall was found guilty. On the same day, December 24,1829 he was also found guilty of a criminal libel on James Laidley for accusing him of incompetence and impropriety in relation to certain tenders for salt pork.110 He was sentenced to six months’ imprisonment for each offence. Three days earlier Hall had been found guilty of criminal libel on F. A. Hely, the principal superintendent of convicts and for another criminal libel on Darling. The sentences in these latter cases were one month and nine months respectively. All sentences were expressed to be cumulative. To make matters worse, on the 19th of the same month, a motion was granted in the Supreme Court to estreat the recognisance of £500 given by Hall to be of good behaviour for twelve months following the judgment in the trial for libel on the Reverend Scott.111

107 CURREY, supra note 7, at 369. 108 See supra note 88 and accompanying text 109 Dowling, Vol. 29, at 147. 110 Id. at 114. 111 Dowling, Vol. 17, at 51. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 77

As the recurrence of prosecutions suggests, the press was not completely silenced by these draconian sentences. Indeed, Hall had resolved to remain in gaol until the end of Darling’s term of office and to continue his attacks on the Governor’s administration. When Darling received advice that he had no power to confiscate Hall’s presses11* he appeared to be faced for the foreseeable future with an implaca­ bly oppositionist and unsilenceable foe. Furthermore, the press and their supporters had begun to set in train a range of complementary strategies to make Darling’s administration more accountable. First, an impeachment of Governor Darling was initiated by W.C. Wentworth early in 1830. Its immediate effect was to spur more than one hundred of Darling’s supporters to prepare and sign an address which expressed that “it was with deep regret that we have long observed every measure of your Excellency grossly vituperated by licentious public writers in a manner, calculated to inflame the minds of the lower orders of the community against your Excellency’s administration”.112113 In his acknowledgment of the address, the Gover­ nor described the impeachment as “a gross and absurd compound of base and incredible calumnies”. After both address and acknowledgment were reproduced in the Gazette of July 7th, 1829, Wentworth was granted a rule for a criminal information against the publisher and editor, the Reverend Ralph Mansfield. On September 30th he was convicted of criminal libel, fined £10 and was ordered to be imprisoned until the fine was paid.114 Second, Hall initiated a number of civil defamation actions himself against the editor of the Gazette. In respect of the above address and acknowledgment he was awarded damages of 40s. against Mansfield. On April 2nd, 1829 Mansfield was ordered to pay Hall a further £50 for a libel in the Gazette which preposterously suggested that Hall had connived at an assault on Darling one Sunday as he was leaving church by an aggrieved settler named Shelly. In a third action against the editor of the Gazette he was unsuccessful.115 Notably, his successes were of a rather lesser magnitude than those of Darling, but, as was foreshadowed by Justices Forbes and Stephen in their letter to the Governor, the judges were not prepared to see the Gazette used as a vehicle for the expression of Darling’s personal prejudices.116 Third, Darling was beginning to lose the battle at the Imperial level. Domestic affairs generally in early New South Wales cannot be understood in isolation from developments in Britain. In particular, political influence at the Colonial Office could be a decisive factor in shaping policy in the colony. The appearance of an independent press played a significant part here since copies of all newspapers found their way back to die Colonial Secretary. Furthermore, local politics were to some extent conducted through the Secretary in letters, petitions and complaints which would be regularly despatched to him in the hope that he would interfere in or

112 Currey, supra note 7, at 376. 113 H.R.A. 1/15, Introduction at ix. For details of the impeachment proceedings, see id., at 800 et seq. 114 Id. at x. 115 Id. at xv. 116 See supra note 80 and accompanying text 78 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 override decisions of local officials. This was not merely a reflection of the constitutional structure of the colony; it also demonstrated its acute dependency. The comments made by Justice Dowling in the first successful trial of Hall, noted above, confirm just how significant this latter condition was.117 By 1829 the Colonial Office was beginning to consider that Darling’s aggressive approach toward the press was both unproductive and undesirable. For instance, the Colonial Secretary, Sir George Murray, commented in his despatch dated November 10, 1830 that the cost of legal bills for the period 1829 was quite excessive.118 Consistent with his expressed lack of confidence in his law officers, Darling had taken to engaging the services of Robert Wardell and Foster. Of course, the choice of the former gentleman may have had something to do with wanting to prevent him appearing for the defence.119 At any rate, notwithstanding the successful verdicts, there was still official displeasure, and the Colonial Secretary finally suggested that a commission be set up to examine ways of bringing down the costs. More importantly, the climate of political opinion in Britain was in the process of rapid change at the time. By 1829, the Tories, already in power for over a decade, were witnessing a dramatic loss of popular support. Under the leadership of the Duke of Wellington, their strategy of widespread political suppression - clearly manifested in the “Six Acts” of 1819 - was beginning to provoke widespread resentment in the face of a buigeoning reform movement.120 This posed a serious problem for the Governor. Though it would be too simplistic to see his style of governance as merely an expression of a Tory politics - he had been intimately connected with prominent Tories before leaving England121 - he nonetheless very much shared their world-view and was heavily reliant on his politically sympathetic superiors. As Britain lurched toward the Reform Bill and the bourgeois ascendancy and democratic liberalism that it entailed, Darling’s attempts to impose a set of shackles on the local press at the very same time they were being dismantled by the Mother of Parliaments began to appear particularly retrogressive. As events in New South Wales in the 1830s and 40s were to show, the now dominant class were no friends of a genuinely libertarian or egalitarian order. However, - and this is the key to understanding the particular composition of political forces facing Darling - all social and economic classes other than the Exclusives had both a common political enemy and at least some shared political objectives. Despite the rhetoric of univer- salism, the most outspoken Emancipists had no philosophical or political objections to a constitutional structure which, with a public sphere firmly in place, was to allow their class an unprecedented prominence. This fact merely demonstrates the gulf between a constitutional order which formally provides for equal participation, yet substantively, in practice, denies it. Nonetheless, during the period examined it

117 Dowling, Vol. 14, at 98-100. 118 See supra notes 66-7 and accompanying text 119 Rose, supra note 9, at 140. 120 See generally, Wickwar, supra note 7. 121 : , B.H. Fletcher, Governor Darling: A Governor Maligned (Oxford U.P. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 79 represented a decisive political advance on the autocratic and militaristic regime that Darling and the “Exclusives” stood for. The emerging prominence of a newly-dominant political alliance presented itself to the Governor in a number of ways. First, he was faced with impeachment proceedings initiated by W.C. Wentworth in respect of the Sudds affair. Though he was eventually cleared of any impropriety, the process hung like a dark cloud over the last couple of years of his administration.122 Second, the disaffected editors and their sympathisers were beginning to build up a considerable constituency of support in England.123 Third, and most important, was the occasion of the disallowance of a local statute introducing further restraints on the press. In January 1830 Darling succeeded in having an act passed to amend the Libel Act of 1827.124 As noted above, the Chief Justice refused to give his certificate to the first six sections of this bill.125 Consequently only its more harmless provisions appeared in the final act. The fact that the gaoling of the editors of the opposition papers appeared to have had little discernible effect on their willingness and ability to heap trenchant denunciations on his administration induced the Governor to resort to a more draconian expedient. In keeping with the corresponding Imperial statute of 1819, section 9 of the new Libel Act provided that the penalty for second conviction of seditious or blasphe­ mous libel would be banishment from the colony. However, though Darling seemed to have learnt his lesson from his earlier tussles with the Chief Justice regarding the repugnancy doctrine, he was quite incapable of anticipating the changing political climate in Britain. One effect of the latter was the repeal of the banishment clause in the Imperial act in the following July. This meant that no sooner was the local act successfully on the statute book in New South Wales than it was rendered repugnant to English law. It therefore had the dubious distinction of being the first piece of local legislation to be disallowed by Imperial authorities, in this case by the Colonial Secretary, Viscount Goderich.126 Furthermore, Goderich advised Darling that such heavy-handed measures were inappropriate and ordered him merely to “enforce the existing Law firmly but without harshness”.127 In the face of official disapproval of his strategy of silencing dissent, in addition to the widespread unpopularity of his increasingly autocratic rule, Darling was forced to consider compromise. The proclamation of the accession to the throne of William IV provided him with the opportunity of making a major concession without obviously appearing to have been forced to do so. Accordingly, on the 6th of November, 1830, he pardoned Hall and released him from gaol. If a related purpose was to silence him, it failed miserably

122 Currey, supra note 80, chap. XXXIII. 123 Id. See, for example, the account in the Sydney Monitor of December 18,1830 of the “deafening cheers which...evmced the feeling of both sides of die House” on the occasion of the response to the trenchant criticisms of the colonial judges by one Mr. O’Connell in the House of Commons, cited by Ferguson. Edward Smith Hall and the 'Monitor', 17 Jnl. of the Royal Aust. Historical Soc.163,181 (1931). 124 11 Geo. IV no. 1. 125 See supra notes 70-73 and accompanying text 126 H.R.A. 1/16 at 11; 6 January, 1831. 127 Id. 80 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 for very soon afterwards Hall was attributing his release to the forces of reform driving a recalcitrant tyrant to make concessions,12* and both his paper and the Australian continued to express criticisms of official behaviour whenever they saw fit Soon after this, Darling was recalled to be replaced by the more liberal Governor Bourke, who refrained from attempting to place restrictions on what the press could publish. This is not to say that Darling’s recall was exclusively attributable to his policies toward the press. However, it is clear that the twilight of his term saw what ascendancy he had gained over the press gradually eroded by a combination of forces at home and in England. These forces, above all, were united in a firm commitment to the notion of an active, critical and open public sphere. Darling’s mistake, and that of most of his ever-diminishing band of supporters, was to presume that rather than engaging with their opponents on this new terrain, or, put another way, in open, public rational-critical debate, he relied on a form of domination that had by now become illegitimate. It was precisely the processes of change marked embryonically by the appearance of the Sydney Gazette in 1803 which induced this perception of illegitimacy. There is perhaps no clearer example of how far the hapless Governor was out of step with changing circumstances than his incredulous response to one of his supporter’s suggestions that he ought to take on his enemies of the press by setting up his own publicatioa128129

Conclusion

he above account gives rise to a number of issues concerning the relation­ ship between three different factors: (1) legal doctrine; (2) legal practice; T(3) the public sphere. Indeed, the essence of the struggle between the press and the administration, in its many guises, can only be understood in terms of their interaction. The legal doctrine relevant to the press in the 1820s bore all the vestiges of a society where rulers are regarded as innately superior to their subjects and that it is wrong to utter public criticism of them. Beyond that, this quasi-feudal concept of authority is antithetical to any sense of citizens having any inherent sovereignty or claim to it. In the Anglo-Australian context, sover­ eignty was seen both to emanate from and reside in the Crown. The conse­ quences of such a conception of public authority stretch far beyond constitutionalism. To the same extent that this notion of “Crown sovereignty” tends to characterise the people as subjects rather than citizens, it likewise feeds a particular perception of publicity, in the sense of public interaction between ruler and ruled. As has been seen, publicity in a feudal context amounted to little more than the occurrence of those occasions where monarchical authority was paraded before the public. In the same way that subjects were passive recipients of regal commands, in an analogous fashion public occasions were opportunities

128 Ferguson, supra note 123, at 195. 129 H.R.A. 1/13 at 96-102. 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 81 for those same subjects to acknowledge or affirm the innate majesty of the ruler by appropriate displays of respect and adulation. Obviously, such events are totally unlike any form of political communication. Seditious and criminal libel were legal doctrines which embodied the feudal form of publicity. By effectively characterising all criticism as insolence and subjecting it to criminal penalties, they were both the legal expression of the idea of the inherently superior nature of the ruler, and they operated as a blocking mechanism on the emergence of institutions where public authority might be brought to account. As we have seen, those doctrines were alive and well in New South Wales in the late 1820s. A more detailed focus on such crimes would suggest, particularly in the light of the many convictions and imprisonment of the editors of both the Australian and the Monitor in 1829, that the communicative structures of the colony at that time shared some common features with feudal societies. When the provisions of the New South Wales Act are also taken into account, especially the sections dealing with the Legislative Council and its appointed rather than elected membership, not to mention the secrecy of its proceedings, it is easy to see an Antipodean serfdom. Indeed, this is the gist of the thesis of one commentator, Robert Pullan.130 Yet despite the existence of these particular legal doctrines, the formal legal regulation of the press in Australia at the time was somewhat less restrictive than was the case in England. For one thing, the repressive “Six Acts” did not extend to Australia. Also, attempts by Governor Darling to introduce local versions were deemed contrary to the laws of England by the Chief Justice and were therefore invalid. Repressive as it was, then, there was a glimpse of the light of tolerance which was still obscured in the Mother country. However, this formal legal doctrinal picture was dramatically contradicted by the realities of (1) legal practice and (2) the operational public sphere in the colony at the time. If legal practice is defined in realist terms as the antithesis of “law in the books”, or, “what lawyers do in fact”,131 then libel law in New South Wales in the 1820s looks a little less repressive than a glance at the books would suggest First, a complete breakdown in communications between Darling and his Attorney-General in 1825-26 frustrated the earlier prosecutions. Second, the fact that the owners of one of the newspapers, the Australian, were extremely competent lawyers, and very well-connected at that, made the Governor that little bit more reluctant to initiate prosecutions. Third, a generally libertarian judiciary, at least in the early years of the period examined, when faced with prosecutions, construed the common law of criminal and seditious libel narrowly, gave directions to the jury which often favoured the accused, and, in the case of the Chief Justice when legislation appeared for certification, construed the repugnancy doctrine broadly so as to frustrate attempts at silencing the press altogether. To that extent it can be convincingly argued that the law was at least somewhat autonomous from the politics of the

130 R. Pullan, Guilty Secrets (Methuen 1984). 131 See, generally, W. Twining, Karl Llewellyn and the Reaust Movement (Wiedenfeld and Nicholson 1973). 82 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

Governor, and that the formally sanctioned oppression embodied in legal doctrine was substantially modified in practice. As has been seen, this picture changed somewhat with the arrival of a judge apparently or arguably more willing to find middle ground between the Governor and the Chief Justice on questions of restrict­ ing the press. As for the third element here, the public sphere, it was clearly a functioning and vibrant feature of the colony at that time. As has been seen, such a social space did not exist in feudal societies. The appearance of such a sphere has been examined in some detail in the cases of both England and Australia. In England the process spanned the course of the eighteenth century, notwithstanding the persistence of those various residual feudal laws such as criminal and seditious libel. In Australia this transformation proceeded in a dramatically accelerated fashion. The evidence for this is manifold: first, from 1824 onwards there was a genuinely vocal and critical press in the sense that it was a forum where public power was regularly brought to account before the (reading) public. Second, the press commanded substantial and widespread public support, reflected as much as anything in Darling’s repeatedly manifested nervousness about confronting it for fear of stirring up popular dissent but more specifically by acts of solidarity with the editors by, for instance, the paying of the fine of Edwin Hayes in 1829 in response to a public appeal. Third, in contrast to their Imperial colleagues, clear and consistent support for the principle of the free press was repeatedly shown by the local judiciary. Fourth, clear political groupings - Emancipists, Exclusives - ensured that it was institution­ ally possible for private persons to come together to critically evaluate matters which affected the public. In this way, the actual communicative structures of the colony exercised a decisively corrosive influence on its formal legal structure. There is pethaps no clearer recognition of this than in the judgment of Justice Dowling in the first conviction for criminal libel early in 1829 when he referred to “this setdement, now rapidly emerging from the cloud of penal obscurity”.132 The most important example of this was a sequence of events occurring in the twilight of Darling’s term. He was ultimately forced to back down by pardoning Hall, his finally certified Libel Amending Act was disallowed by the British government, and on his removal he was succeeded by the more liberal Governor Bourke. Seditious and criminal libel, still on the books, were destined to remain there, their status now being occasionally-employed emergency measures. As Darling’s ship sailed through the heads in October 1831 while 4000 revellers at W.C. Wentworth’s Vaucluse House “refreshed by copious potations of Wright’s strong beer and ‘helewated by the fumes of Cooper’s gin’, did justice to their kind hosts’ tables loaded with comestibles, roast beef, and mutton”133 it was possible to conclude that at least one group of British subjects had succeeded in carving out for themselves in an albeit imperfect and primitive form “a distinct discursive space, one of rational judgment and enlightened critique rather than the brutal ukases of an authoritarian politics”.134

132 Dowling, Vol. 30 at 300. 133 Walker, supra note 5, at 19. 134 Eagleton, supra note 20, at 9.