Forbes and Darling disagree

Bills to impose a license on the press and collect duties on each issue of a newspaper were placed before the New South Wales Executive Council in 1827. The Executive Council had not been formed to debate or approve bills, but to advise the Governor on policy matters. This did not deter Governor Ralph Darling. Nor did the opposition of Chief Justice Francis Forbes. Darling even took the opportunity of Forbes' absence on a holiday in the country to expedite the approval of the bills.

The New South Wales Executive Council fully endorsed the draft of the stamp duty bill and agreed that it be submitted to the Legislative Council. The bill was passed, the Governor assented and the law was enacted.

> Read the draft bill (items 52 to 62) in the Library's catalogue Catalogue link

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Letter from Governor Darling to Chief Justice Forbes, 14 April 1827 and reply, 16 April 1827. Francis Forbes - Correspondence mainly relating to liberty of the press, 1825-1828, Manuscript, A748.

Transcript, Letter from Governor Darling to Chief Justice Forbes, 14 April 1827, and reply, 16 April 1827, Manuscript, A748

[Page 46]

Government House.   14th April 1827

Sir, I have had the honor to receive your letter of the 12th inst. On the subject of the proposed Bills respecting the Press.  I recollect perfectly what passed when this subject was formerly discussed and had not the papers persevered in their mischievous endeavour to bring the Government into hatred and contempt, and in fact, succeeded in exciting a strong spirit of discontent amongst the Prisoners, I should not have thought it necessary to agitate
the

His Honor,

The Chief Justice

[Page 47]

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

[Page 48]

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

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

[Page 49]

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

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

[Page 50]

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

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

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

[Page 51]

His Majesty has been pleased to entrust to my Government.

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

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

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

* * *

[Page 63]

Copy of answer

Emu Plains 16th April 1827

Sir,

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

His Excellency
The Governor
&c &c &c

[Page 64]

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

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

[Page 65]

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

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

[Page 66]

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

I have the honor to be &c

16 April 1827
re License