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2-009 (Raw)

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author,male,Sydney Gazette,un addressee
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Decisions of NSW Supreme Court
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The Chief Justice. Gentlemen, this is an information presented by the Acting Attorney General, against the defendant, Robert Howe, Editor and Proprietor of the Sydney Gazette, for a libellous attack contained in that Journal, of the 14th instant, on the character of Saxe Bannister, Esq. in his office as Attorney General of the Colony. Mr. Bannister, now an Advocate of this Court, but lately holding the high office of Attorney General, opened the case, and, I must say, it was painful to me to hear him take so enlarged a review of public events connected with this Colony, as he thought proper to do, and the more painful as the nature of the prosecution did not require that latitude. Mr. Bannister, however, as a private Barrister, thought himself at liberty to take the range he did, and I would not interpose, though, as I have already said, it was painful to me to hear those observations on the Government which he deemed it necessary to make; as he should have recollected, there were other persons connected with, and who held offices under Government, who though they happened to differ in opinion with him, were, it is to be supposed influenced by motives equally pure as those which he assumed, and who had not an opportunity of vindicating themselves. I have thought it necessary to make these preliminary remarks, in order to prevent such a course of proceeding being drawn into a precedent, and serving as an example for future irregularities. The charge resolves itself into one of a very simple nature, namely, whether the publication in question, is, as it it [sic] is alleged to be, injurious to Mr. Bannister, in his office as Attorney General of this Colony. I state to you, gentlemen, that any writing having a tendency to degrade a man in society, or to blacken his character, is a libel, but that a libel against a public officer is visited with greater severity, inasmuch as it is, in fact, an attack on that Government of which he forms a part. It is, however, the right of the public to discuss the acts of a public officer, provided it be conducted within the legitimate bounds of fair discussion; but if, on the contrary, it degenerate so as to impute bad motives and wicked conduct, it is then no longer fair, it is libellous. Laying down these remarks as applicable to the matter before us, I now proceed to examine the particular parts of the paper which has been put in evidence; but, before I commence those observations which I may find it necessary to offer, I think it but fair to read the whole of the article through; for, though particular passages have only been laid in the information, it is still the right of the defendant to have the entire read, and therefore, instead of giving it piecemeal, I will read the whole through, and then proceed to offer my remarks on those passages which are laid as libellous. [His Honor then read the entire of the article from the Gazette of the 14th instant, and continued.] A portion of this writing has been selected as the grounds of the present prosecution, and, as you, gentlemen, may not be in the habit of seeing instruments of this nature, I will explain to you that, in informations for libel, it is usual to apply to each passage what is called an inuendo, setting forth the meaning which the party who conceives himself libelled believes they bear, and it is for you to see whether that construction so put upon them is, in your opinion, correct. The information is divided into two counts; the first count extracts a larger portion of the article as libellous; the second count refers only to one particular part. It charges that the defendant, Robert Howe, devising and intending to asperse and defame Sax Bannister, Esq. did publish certain defamatory matters of and concerning the said Sax, and which are contained in the words and figures following, that is to say, "An Attorney General, not that we would have any gentleman act contrary to his own political principles, should never allow any party, or faction, so to operate upon his mind and give a bias to his views, which would tend to effect a disunion between the immediate members of the government, which it is so desirable should ever harmonize, as a well-tuned instrument, however diversified might be its strings," The sense put upon this passage is, meaning thereby, that the said Sax Bannister had allowed some person to put a bias on his mind, so as to create a disunion between the members of the Government. But, gentlemen, does this passage bear the meaning which, by inuendo, is given it? Do you consider it meant that the Attorney General did allow such a bias to be put upon his mind? The charge is taken from the first part which states that, an Attorney General should not do certain things, and the inference put on it is, that Mr. Bannister had! Now, I must own, I do not think the passage will bear that construction. The writer then goes on to observe on various abstract propositions, and sums up all in these words, "thus it will appear, in our humble opinion, that an Attorney General should be a good lawyer, if an orator, so much the better - a lover of virtue and religion - an enemy to every species of vice - a stickler for justice - a friend of humanity - an enemy to oppression - and the staunch and most steady prop of the administration." This is the sum of what, in the writer's opinion, should be the general qualifications of an Attorney General, and would it, then, be just to say, it was therefore meant that the late Attorney General was not all this? Gentlemen, I do not think it fair to put such a construction on it. It is an abstract view, as I take it --- a hypothetical position of what an Attorney General should be. The writer says, the Attorney General should be the Governor's lawyer, and also states how, according to his notions, he should act; but I do not think, therefore, that the natural inference should arise that Mr. Bannister did not do all this. Such a construction would be quite irreconcilable with the latter part of the same article, in which the writer pays so many handsome compliments to Mr. Bannister, for his amiable and upright conduct in public and in private life. I must own, I cannot think myself that the passage bears this construction; but you, gentlemen, are the judges, and while I state to you my general impression, if you should be of opinion that the meaning put upon this paragraph is correct, and that the writer in pointing out the qualifications which an Attorney General should have, meant to insinuate that Mr. Bannister wanted these qualificasions [sic], if it appears to you that the praises which are subsequently bestowed are ironical, are insincere, though I must say that, throughout the whole of the article, in pointing out the abstract qualifications of an Attorney General, it would be unfair to suppose it to be therefore meant that the late Attorney General failed in those qualifications, but still if it should be your opinion that such was the meaning the writer intended to convey, then the passage is libellous. With respect to bias, that charge may be perfectly innocent. It is a common expression to say, that a man acts under a bias, under influence. If, however, an officer in a public situation suffers a bias to take possession of his mind, it is, no doubt, highly discreditable to him, and therefore criminal to charge him with it. But then the question is whether it was wilful, and I leave it to you, gentlemen, to say, whether, in your opinion, the meaning put upon it is the true one. I am of opinion, however, that it was not intended to be distinctly charged that he did so wilfully; for, in another passage it is stated to have been unconscious, and certainly if it were unconscious on his part, it was not criminal in a public writer to say so. We now pass on to the next alleged libellous passage which charges that "Where parties find that a Governor is impenetrable to other than open and fair representation, their movements will obviously incline towards his legal adviser, and if the Attorney General should be so unfortunate as not to have his eyes wide open, and to possess too much credulity, the inevitable result will be, that anarchy and dissension will creep in, to the injury of good will and good government, and it will be ten to one, in the event of the Governor being a firm and inflexibly just Ruler, that the Attorney General, sooner or later, becomes the victim of that party who may have sacrificed him either to their disappointed ambition, or because such political schemes could not be brought to bear which would tend to the pecuniary injury of all - themselves excepted." Now I can hardly call this a conveyance of a charge, even if it were so, which the law considers libellous. Is it libellous to charge a man with credulity? Certainly not. It may not be true, it may be his weakness, it may be misfortune. If it were insinuated that the credulity ascribed is voluntary, is wilful, the case would be otherwise, but with respect to the mere charge itself, I do not think it libellous, and I have, therefore, no hesitation in disposing of this part of the question altogether. "We have already observed that we would not suggest that an Attorney General should meanly crouch to the dictates of any Governor, supposing those dictates should be contrary to British law, and, of course, dissonant with his own views; but whilst this concession is tendered, we must observe, it is only the duty of our Attorney General to advise, it being the Governor's province to rule, which brings us to the declaration that an Attorney General even, however high in rank, and legally constituted his mind, still it is his duty, or else why does he take the office, to forego the expression of private feeling, so that the Governor act not contrary to law, and with a view to the ends of public justice: An Attorney General, therefore, by adhering to this line of conduct, would avoid many quicksands and shoals,
The Jury left the box, for about five minutes, and returned with a Verdict of --- Not Guilty.