result, at least, was regretted for many subsequent years. Since the inauguration of the convict system it was recognised, and widely subscribed to, that the Comptroller-General must have a powerful control over the felons in his charge. His authority was as supreme as that of the captain of a man-of-war. In 1870 a ticket-of-leave man named Young was returned to the Establishment under a warrant from the Comptroller-General, issued, it is believed, because of something Young had written reflecting on the management of the Fremantle Prison. Mr. S.H. Parker, solicitor, was instructed in October by the prisoner's wife to apply for a writ of habeas corpus to test the legality of the imprisonment. Mr. Parker had an interview with Young, who was disposed to await the result of an appeal for mercy to the Governor before taking proceedings. It was soon learned that the Governor did not intend releasing Young, and when he applied the Comptroller declined to allow Mr. Parker to visit the convict in prison, explaining that "inquiry had been made of the said H.W. Young, and that he declined" to see Mr. Parker. Mr. Parker visited the prison, but was refused access to the prisoner, whereupon he made the affidavit in his own person on which to found the application for the writ. The Comptroller-General complained, and Judge Burt, when the question was brought before him, adopted the complaint. Mr. Parker was accused of suppressing evidence; he omitted to set forth the Comptroller's statement that "inquiry had been made of the said H.W. Young," &c. In vain did Mr. Parker explain that he omitted the statement because he deemed it immaterial to the matter at issue, and declare that the only important fact for the Court was that he was refused access to Young, the reasons or motives of the Comptroller for making the order having nothing to do with the question. Judge Burt entered judgment against Mr. Parker, imputing malpractice and misconduct to him, and fined him.
Mr. Parker now wrote a letter, which was published in the Inquirer, quoting from Judge Burt's judgment and the statement of the Comptroller, and asking:—"Why was it that while I was censured for the introduction of what the judge called 'hearsay evidence,' the Comptroller-General's affidavit, which continued equally as much 'hearsay evidence,' was allowed to pass unchallenged?" Among other trenchant things it was averred that Mr. Parker was more earnest than the judge was impartial. The opposition paper, the Gazette, also espoused the advocate's cause, and scathingly animadverted on the judge and the Comptroller-General. Said the editor:—"It may be the law as regards convicts that they have not the rights of a free man, but it is nevertheless repugnant to the feelings of an Englishman that any man, whether convict or free, should be cast into prison without being first taken before a magistrate and heard in his defence, as was the case with Young. It was to procure the man that privilege that Mr. Parker first interfered, and we have not the slightest doubt in doing so that he had the good wishes of every right-thinking settler of all classes. No one will accuse us, we hope, of any desire to bring authority into contempt, although we do express an opinion that the Comptroller-General was badly advised in taking the action he did, and inducing the Government to sanction it .... Proceedings were taken, which rightly or wrongly are construed by the public into a desire to punish Mr. Parker for having done what he believed to be the duty of every honest citizen—his best to defend the first principles of liberty—the liberty of the subject and the protection of his property."
The more serious nature of the whole proceeding now began. Stirling Brothers, editors of the Inquirer, and Mr. A. Shenton, editor of the Gazette, were called before Judge Burt, upon his order, the first for publishing Mr. Parker's letter, which was characterised as libellous in its tendency, and grossly reflecting on the administration of justice in the Supreme Court; the second, for publishing a scandalous and libellous leader. Mr. G.F. Stone, solicitor, on behalf of the Messrs. Stirling, pleaded that his clients regretted their too hasty insertion of the letter, and that "they had no intention of inserting anything libellous, and must throw themselves on the merciful consideration of the Court." Mr. Shenton pleaded his own case. He failed to see where his article was either scandalous or libellous. He always understood that the actions of public men were open to fair and legitimate comment, as well as being subjects of public interest, and he was not aware that any exception was made in the case of a judge after sentence had been passed. He regretted what had occurred, and "must leave" himself in the judge's hands.
Judge Burt, in delivering judgment, said that his position might appear arbitrary and unusual—a judge sitting in judgment on a case in which he was personally attacked—but he had divested himself of all personal feelings. It was his duty to the sacred institutions of justice to exercise his power. "Sad indeed," he continued, "would the fate of the country be whose judges should administer justice under fear of the lash of the press." A judge's decisions were not likely to satisfy everybody, and the judgment seat must be protected against the attacks of newspaper editors and others. He believed that the Stirling Brothers had been led into their position by the influence of others, and moreover, they had given up the name of the writer of the letter. Nevertheless, the Court adjudged them guilty of high contempt, and sentenced them to imprisonment in the common gaol at Perth for thirty days. Mr. Shenton's offence, he decided, was of a graver nature, and he therefore administered a fine of £100, and sentenced him to imprisonment for two months in the common gaol. Mr. Parker was subsequently brought before the judge and fined £100.
Messrs. Stirling and Shenton went to gaol, but after much persuasion they consented to publish apologies in the Gazette, and were released. The Express, another and younger newspaper, adverting to the question, declared that the whole community was "seriously alarmed at the discovery of what a fearful engine the laws apparently provide and place in the hands of the sole judge." Upon his release Mr. Shenton petitioned the Governor praying for a remission of the fine; the Colonial Secretary wrote that His Excellency declined to interfere in the case. A second time Shenton petitioned, asking that the petition be laid before the Executive Council, but to no purpose. The Gazette now averted that the Chief Justice was seeking to crush the paper by insisting that the fine be paid, when he was aware that the editor could not meet the liability; a letter from Judge Burt was published threatening an attachment unless the amount was at once paid. Petitions against the judgments of the Chief Justice in the cases of Messrs. Parker and Shenton were forwarded to the Secretary of State, who declined "to take any steps in regard to them." Finally, weeks later Mr. Shenton's fine was remitted, but not before his death on 16th March, 1871. The imprisonment inflicted on this gentleman, who had so long and fearlessly edited the Gazette, so affected him as to hasten his death. For twenty-three years he had owned and edited the newspaper; during that period be had rendered many substantial services to the colony, and sincerely advocated its rights. He died at the age of fifty-five years. The Gazette said "It is right that the truth should be told, that these proceedings very materially affected Mr. Shenton, both in mind and body. He was deeply wounded at the unmerited punishment that had been inflicted on him, and was unable to recover from the sense of
