Enforcing the laws of England

Initially, the Bills were passed. However Chief Justice Francis Forbes refused to certify the licensing sections and the introduction of a four penny stamp duty.

Forbes argued that the main issue at stake was not whether New South Wales should be allowed a free press, but 'whether Parliament has delegated to the Governor and Council the power of placing the press under a licenser'. Such a power could only be exercised by Parliament, which did not yet exist in the New South Wales Colony.

By the laws of England, the right of printing and publishing belongs of common right to all His Majesty's subjects, and may be freely exercized like any other lawful trade or occupation. So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject.

(Forbes, 1 May 1827, Historical Records of Australia, Series 1, Vol 13, pp 290-297)

Governor Ralph Darling's attempts at legislating were at odds with the fundamental British laws of the land. Darling overstepped his powers as a Colonial Governor, acting against common law.

The Governor was forced to rescind the Act. The authorities at Westminster later upheld Forbes' opinion. 

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Letter from Francis Forbes to J R Wilmot Horton, 14 June 1827, Francis Forbes - Correspondence mainly relating to liberty of the press, 1825-1828, Manuscript, A748. 

Transcript, Letter from Forbes to Wilmot Horton, 14 June 1827, Manuscript, A748

[Page 97]

Copy of correspondence respecting the 4th Stamp Act.

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

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

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

this

[Page 98]

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

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

[Page 99]

imposed, should be openly, clearly, and truly stated – If any latent purpose be entertained – if a tax be professedly imposed for one object, and covertly intend another and different object, it is contrary to the letter of the act – it is a breach of faith with Parliament – it is an abuse of the trust confided to the Council – it is derogatory to the government – That such could not be the motive of the Governor or Council, I will cheerfully concede – I believe that they had not attentively considered the Act of Parliament, and did not foresee the consequence of their own act – But that another purpose was meditated than that which the act itself professed, will not be required of me to prove, in this place – it is not denied by the government, as will appear by me correspondence with the governor, of the 31st Ultimo – it has been admitted, without hesitation, by such of the Council as I have conversed with upo0n the subject – and the irreconcilable disproportion between the known expence of printing the acts and orders of the government, and the duty imposed upon the papers, has made the true state of the case unfortunately too apparent to the public.

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

[Page 100]

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

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

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

[Page 101]

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

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

[Page 102]

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

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

> Read more about the correspondence in the Library's catalogue catalogue link