Australian Dictionary of Biography

Robert Wardell (1793-1834), barrister and newspaper editor, was born in England. He was educated at Trinity College, Cambridge (LL.B., 1817; LL.D., 1823), and had been a barrister of the Middle Temple for two years standing when, on 28 February 1823, he applied without success for the newly-created office of attorney-general in New South Wales. Had he, not Saxe Bannister, been appointed to the position, General Darling may have been spared much vexation and resulting proceedings that blemished his administration. In 1824 Wardell sailed with his mother for Sydney. Passengers with them in the Alfred included John Mackaness, the newly-appointed sheriff, William Charles Wentworth and Dr and Mrs William Redfern. Wardell sued the owner of the ship for subjecting him to 'a wet and comfortless cabin', and denying him 'sufficient nourishment and refreshments' on the voyage, and was awarded £200 damages and £4 16s. 2d. costs.

On 10 September 1824 Wardell and Wentworth were admitted to practise. Thereupon they at once moved the court for a rule calling upon the local attorneys to show cause why they should not be required, as Wardell said, 'to confine themselves to their own profession'. Having heard argument for and against this proposition, Chief Justice (Sir) Francis Forbes declined, at this stage in the legal life of the colony, to sanction it. Wardell did not allow the matter to rest, and in September 1829 the Supreme Court made a rule dividing the profession, subject to the proviso that it should not take effect until His Majesty's pleasure anent it was made known. In consequence it did not come into force in the colony until 31 October 1834, by which time Wardell was dead. It is evident, however, that, although they practised in their respective offices as attorneys, both Wardell and Wentworth preferred to give opinions and conduct cases in court.

When he and Wentworth became acquainted in 1819, Wardell was editor of the Statesman, a London evening newspaper, and they brought with them materials for the purpose of starting a newspaper in Sydney. On 14 October 1824 their newspaper, meaningfully designated the Australian, was put into circulation. It was to be published weekly and its price was 1s. 'These gentlemen', reported Governor Sir Thomas Brisbane, 'never solicited my permission to publish their Paper'. They were not bound in law to do so. Their brusque action was a typical Wentworthian gesture of independence.

'A free press', proclaimed the Australian in its first editorial, 'is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate influence, frustrate the designs of tyranny, and restrain the arm of oppression'. Until he voluntarily vacated its editorial chair on 27 June 1828, Wardell was the Australian. Through its columns he gained the prominence which secures for him a place in the history of his decade. Read today, his articles repel by their prolixity, undertone of sarcasm, and frequent notes of arrogance and condescension. His favourite medium was satire: sometimes light, often heavy, generally wounding. Yet he could go directly and unerringly to the pith of a matter, and state and elucidate a proposition with concision and precision.

He applauded when the chief justice so construed section 19 of 4 Geo. IV, c. 96 as to make imperative the empanelling of an ordinary jury for the trial of free persons arraigned in Courts of Quarter Sessions. On this decision, handed down on the day that the Australian first appeared, the editor wrote, 'We cannot but consider it as a most auspicious coincidence'. The next question related to the composition of such juries. Wardell and Wentworth were of opinion that emancipists, otherwise qualified, should be eligible for the jury box, and they then strove without success to achieve that end.

They were also to the fore as the legal advisers of Captain Mitchell of H.M.S. Slaney when, to the consternation of Governor Brisbane, he seized the Almorah for allegedly breaching the monopoly of the East India Co. So, too, in September 1825, recrimination reached boiling point when Dr Henry Grattan Douglass, William Lawson and Dr McLeod were presented for indictment at the Court of Quarter Sessions at Parramatta by a Grand Jury, whose foreman was Hannibal Macarthur; the two friends were briefed: Wentworth on behalf of the men presented, Wardell on behalf of Macarthur. The pressure was speedily reduced by a judicious Act of Indemnity, but the editor of the Australian snarled very audibly when thus denied his bone.

During the first year of the Darling régime Wardell, cultivated by Henry Dumaresq, the governor's brother-in-law, adopted a benevolent attitude towards the administration. Yet, basically, his views on public issues of current moment, such as the institution forthwith of an elected assembly and the abolition of military juries, were irreconcilable with those of Darling. When in 1827 the death of Private Sudds was exploited by Wentworth for political purposes, the Australian joined in the hue and cry. Darling's resulting attempts to implement his instructions to control the press evoked articles in the Australian, and a letter thereto, transparently written by Wardell but signed Vox Populi, which led to his prosecution by the governor for criminal libel.

'Wardell', wrote Forbes, 'is a very good lawyer, whatever may be his other sins'. Because he was 'a very good lawyer', the barrister was apt to reach the same conclusion as to the illegality of some of the measures of the government as did the chief justice. In this identity of expert professional opinion, Darling unwarrantably detected collusion. Obsessed by what became a fixation, he lent a ready ear to those in his entourage who whispered with intent that the chief justice gave Wardell undue latitude in court and summed up with a bias in his direction.

The upshot of His Excellency's prosecutions of Wardell strengthened his fixation; at the end of each of the two major trials, the jury could not agree on a verdict and, by the consent of the parties, was discharged. The passages cited in the respective informations were undoubtedly libellous, but the Crown law officers, even when assisted by the competent attorney, James Norton, were no match for Wardell and Wentworth; and the governor's own maladroitness, as pressed upon the attention of the jury by the defence, helped to tip the scales of some of them in favour of the accused.

In those days another weapon was available to a gentleman who felt that his honour had been aspersed: duelling had not yet been proscribed. Twice Wardell was called out, once by Saxe Bannister, and once by his erstwhile friend, Colonel Dumaresq. On neither occasion was either party injured, but the rencontre with Dumaresq was in itself sufficient to put Wardell beyond the pale of Government House. Yet two years later when the newspaper campaign against the governor again flared up, Darling, bitterly conscious of the professional deficiencies of Attorney-General Alexander Baxter, approved the engagement of Wardell on behalf of the government. Such are the compulsions of necessity. Wardell accepted the briefs, justified his engagement, and was paid fees which startled the secretary of state by their amount.

By 1834 Wardell was a man of substance. Apart from his lucrative practice, he had speculated to advantage. His holdings included an estate at Petersham of some 2500 acres (1012 ha) which was more highly valued, inter alia, for its stands of timber. From 25 cultivated acres (10 ha) of it he garnered 500 bushels of good quality wheat in 1830. Early in the afternoon of Sunday, 7 September 1834, astride his hack, he left his cottage at Petersham to inspect his estate. Near the Cook's River boundary he spotted an unauthorized little humpy, from which on his approach emerged three strangers who, he suspected, correctly as it transpired, were convicts unlawfully at large. After a few inflamed exchanges, John Jenkins, the leader of them, shot him. His body was found next day. The three men were arrested about a week later. The youngest of them turned approver and the other two were executed. An expertly finished marble tablet, on which is moulded, in alto relievo, a side view of the head of Wardell, may be seen on the southern wall of St James's Church, Sydney. It is said to be a good likeness.

Wardell was a bachelor, but he was one of a family of six; through two nephews and a niece, strong ties were established between his kinsfolk and those of two of his close professional friends and a client. One nephew, Thomas John Fisher, married the eldest daughter of W. C. Wentworth; the other, Rev. Charles Frederick Durham Priddle, married a daughter of James Norton. His niece, Margaret Anne Priddle, married George Fairfowl Macarthur who reopened The King's School in 1868. He was a son of Hannibal Macarthur. Wardell's mother, to whom by a will made in 1824 he had left everything of which he died possessed, had died in 1830. Administration with the will annexed was granted to W. C. Wentworth on 16 October 1834.