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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Callaghan [1789] NSWKR 2; [1789] NSWSupC 2

criminal libel - seditious libel - Governor Phillip, evidence by - convicts, expiry of sentences - food supplies

Court of Criminal Jurisdiction

Collins J.A., 31 July 1789

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb. 1788 to Oct. 1794, State Records N.S.W., 1147A[1]

[117] The Precept being read, and the court duly sworn, John Callaghan, of Sydney Cove, in the County of Cumberland, labourer, was indicted for that he on the evening of Tuesday the 28th day of July, between the hour of six and seven, in the 29th year of our Sovereign Lord George the 3rd of Great Britain, France and Ireland, King, Defender of the Faith, etc. at the place aforesaid, did, in the presence of his Excellency Arthur Phillip esq., Governor in Chief and Captain General in and over the territory of New South Wales, and John White esq., Principal Surgeon of the settlement established in the said territory, then and there devise and utter an untruth and falsehood, to the prejudice of his Honour Robert Ross, esq., Lieutenant Governor of the aforesaid settlement, and Major Commandant of the troop, therein stationed. Which untruth and falsehood were to the following purpose: "that the said Robert Ross esq. had informed him, the said John Callaghan, that there were two years' provisions in store for him the said John Callaghan, and every body else in the settlement", thereby endeavouring to imply from the authority of the said Robert Ross esq. that he the said John Callaghan was intitled to receive his usual ration of provisions from the [118] store, although he the said John Callaghan might not do or perform any bodily labour, or personal service towards the good of the said settlement, such declaration being a gross and scandalous falsehood to the great wrong and prejudice of the said Robert Ross esq. Lieutenant Governor of the aforesaid settlement and against the peace of our said Lord the King, his Crown and Dignity.

            The prisoner being arraigned and pleading not guilty, his Excellency Arthur Phillip esq. was called in, and being duly sworn, deposed as follows, I sent for the prisoner, between the hour of six and seven in the evening of Tuesday the 28th instant, having received a petition signed by six people, the prisoner being one, his name standing first in it. When he came, he pointed out to him that his word would not be taken as to the expiration of the sentence, and asked him if he had not been informed of that by the Judge Advocate. I then asked, if he had not been told by any other person. I asked if he had been with the Lieutenant Governor. He said yes, I had asked him what his crime was, for which he was sentenced. He said a burglary, and all his answers to these questions, and to the representation made to him, that until it was known from authority that his time was expired, as he must be supplied with provisions, he must labour, and his manner of giving these provisions, made me think [119] that he did not merit the indulgence that was intended for him, and those who said their times were expired, and he was told by me (the deponent) that he should not share in these benefits intended for the others, adding that those whose times were expired would be supported by government if they were industrious and chose to settle untill they could support themselves. That the prisoner said he was not farmer. I asked what he wanted, and whether he had offered himself as a soldier. He said no. The question was repeated, what do you want? He replied to go away, or return home. That, I told him he should as soon as it was known that his time was expired, that he should be furnished with provisions, and need not fear the being obliged to pay for them: but that while he was to be considered as a servant of the Crown (or words to that effect) though his time might be expired, no assurance would be given him of any payment for his labour. And this I said as I had been informed by the Judge Advocate that when he called on him, to say his time was expired, he had said something of not being called on to pay for his provisions, and this expected to be paid for his labour. As the value of the provisions far exceeded the value of his labour, he replied and with some degree of assurance, that he had been told two years' provisions were sent out for him as well as for every other. I again pointed out to him that every one was to work. The prisoner again said, that he had been told two years' provisions were sent out, and seemed to imply that he thought himself intitled to provisions though he did not labour, or to be paid for his work if employed. I asked him who told [120] him so, meaning who could give him the information he had received respecting the provisions. He begged that he might be excused telling, as it was a confidence placed in him. I repeated the question, additionally that if he did not name the person he should be ordered into confinement and that he should be punished. He persisted in refusing to answer the question, saying he hoped it would not be insisted on. I then rang the bell for the Orderly Serjeant, to carry him to the guard house and when the door was opening, or after moments before he said, ¿your Excellency, it was the Lieutenant Governor". I believed and told him that nothing of that kind could have been said by the Lieutenant Governor, that he was advancing a falsehood. He said the Lieutenant Governor gave me to understand as much. I treated these assertions as infamous falsehoods and Mr White the surgeon in the course of this conversation had several times told him that he must be a villain to say that any officer would place a confidence in him, and when he named the Lieutenant Governor addressed himself to me in words pointing out what a scoundrel or villain the man must be. After exhorting him to go quietly away until he should be sent for again, the prisoner went out. I went for the Adjutant of the detachment. By him I sent my compliments to the Lieutenant Governor and begged him to speak with him. The Lieutenant Governor came with Captain Johnston; the Adjutant Lieutenant Long and Mr White the surgeon were with me. When I told the Lieutenant Governor of the prisoner's insolence in making [121] use of his name, which I thought merited punishment, the Lieutenant Governor said the man had been with him, and accused Mr White of saying, that it must be the Lieutenant Governor who told him so, meaning the information respecting the provisions. And at the same time, the Lieutenant Governor repeated what he had said to the prisoner, when he first came to tell him his time was out, when Captain Johnston was then with him; and the advice he gave him respecting the petition, to send it by one person this the Judge Advocate, and not for six or seven to go over with it. I had never doubted that the prisoner advanced a falsehood, and thought his accusing the surgeon added to his crime. The Provost Martial was sent for, to confine him, but the Lieutenant Governor observed that the Adjutant would send a Corporal for him and lodge him in the guard house; which was done, and I afterwards ordered irons to be put on him, and directed that the Judge Advocate should examine him the next morning. This was agreed on between the Lieutenant Governor and myself, and I had some doubt at that time how far his crime was cognisable by a criminal court. Captain John Hunter, Commander of his Majesty's Ship Sirius, was desired to attend the man's examination with the Judge Advocate, as he had frequently acted as a Justice of the Peace, and this was done at the request of the Lieutenant Governor. The prisoner appeared to be perfectly sober. [122] When the Surgeon came in I ordered the servant who announced him, to send the prisoner also. The servant said he believed he was not there. He was told to inquire of the Orderly Serjeant, who immediately brought him to the door. A complaint in the side and in the breast had made me frequently send for the Surgeon, and I had then sent the Orderly Serjeant to desire that either Mr White or one of the Assistant Surgeons would come over to me. I was then in some degree of pain, and when the Serjeant was going I told him to bring over the prisoner Callaghan.

            Question from the court. Was it possible to mistake the words the prisoner made use of when speaking of the Lieutenant Governor?

            Answer. No, for he twice repeated the Lieutenant Governor's name; once saying, it was the Lieutenant Governor and when I disbelieved him he said the Lieutenant Governor gave me to understand as much. There was no possibility of mistaking him.

            Question from the prisoner. Did not Mr White mention the Lieutenant Governor's name to me before I made mention of it myself?

            Answer. No, the Lieutenant Governor's name was never mentioned, but when I first spoke to him of his having been with the Lieutenant Governor and the Judge Advocate. At the time the prisoner mentioned having received the information from him, the Lieutenant Governor was one of the last that I thought would have been named by him; and I exhorted that he would never have name as an officer any thing more than an overseer.

            [123] Question. Did not your Excellency when you rose from the table in warmth, ask me, what the Lieutenant Governor said to me?

            Answer. No. Some immediate time had intervened in which the Lieutenant Governor's name had not been mentioned, and nor did I rise in any warmth, though offended at the prisoner's manner of speaking. Nor was the Lieutenant Governor's name ever mentioned by me but as I have before declared.

            John White esq., Principal Surgeon, being sworn deposes that he saw the prisoner at the Governor's house on Sunday evening the 20th instant. That the conversation the prisoner had with the Governor was respecting his time being out. That he remembers to have heard him say he had been creditably informed there were two years' provisions in the store for him and every person in the settlement. The prisoner was asked by the Governor who informed him of that circumstance. He said he was informed by an officer. The Governor asked what officer. He answered, I hope your Excellency will excuse my giving up his name, or telling; it would be wrong when a friend put confidence in my breast. That he (the deponent) being surprised at hearing him mention the word officer, told him to be very careful how he mentioned the name of an officer. The Governor then insisted on his giving up the name or he would have him confined, and said it was very unlikely an officer would put any confidence in such a fellow or rascal. The Governor got up to ring his bell, to call for the Orderly Serjeant to have him confined, if he did not give up the name; on which [124] he said, ¿it was his Honor the Lieutenant Governor¿. The Governor on this seemingly very much displeased, dismissed him with these words ¿go about your business ¿ return to your work "I think you are a great rascal, and the indulgence that is intended to be and have those men who say their times are out shall not extend to you; and your conduct shall be looked after, and if you behave ill you shall be severely punished". He remembers to have heard him mention the Lieutenant Governor's name more than once during the conversation. That he never expected to hear him mention it as having given him any information, but as he had lived formerly with an officer, supposed he would have mentioned his name. The prisoner was then ordered away. The Governor then instantly sent for the Adjutant, who was directed to let the Lieutenant Governor know he wished to speak with him. That Mr Long returned, and shortly after the Lieutenant Governor came in accompanied by Captain G. Johnston. The Governor then said he troubled Major Ross to [comment] on what the prisoner had related to him. After mentioning the circumstances, the Major said, he felt himself very much obliged to the Governor for that the prisoner had been with him, and related a circumstance of Mr White, that if a knife had been applied to his throat could not have more surprised him. Which circumstance was, that he told him, on being urged by the Governor to give up the name of the person who told him there were two years' provisions in the store, Mr White jumped up, and said he would be [125] damned if it was not the Lieutenant Governor. The Governor said, looking at the deponent, who never was more our friend in his life, I beg Mr White's pardon, because he is present, but had he or any other person in my presence, made use of such an assertion, I would have put him under an arrest, and send him home.

            This deponent is positive upon the oath he has taken, that upon being urged to give up the name of the person who told him, he said it was his Honour the Lieutenant Governor.

            This deponent does not remember to have heard the Governor ask the prisoner what the Lieutenant Governor said to him, but recollects that he asked him if he had attended himself to him as a soldier, and that the prisoner said, he had not.

            Question from the prisoner. What question did the Governor ask me when I made him the report of working for the Lieutenant Governor for half his allowance?

            Answer. I do not recollect that any question was asked, but I heard the prisoner say, that the Lieutenant Governor told him that he could not expect him to work for him, for that if he did, he must give him half his allowance, and he could not live on the other half himself; or words to that effect.

            Question. Do you recollect what the Governor said, when he went to ring the bell?

            Answer. I think as the Governor was going to ring the bell, he said, ¿if you do not tell or give up the officer's name, I will confine you¿.

            Question. Did not the Governor himself name the Lieutenant Governor and say ¿come tell me, what the Lieutenant Governor said [126] to you¿?

            Answer. To the best of my recollection, he did not, and it was after he went to the bell, that the prisoner himself mentioned the Lieutenant Governor.

            Question. Did you not yourself, in turning round in the chair, mention the Lieutenant Governor's name at the time the Governor went to the bell?

            Answer. By the oath I have taken, it did not, nor at that time was I thinking of him. I might mention it afterwards in surprise, on hearing him make use of it. I expected fully to have him mentioned the late Captain Shea with whom he had lived.

            Question. Did not the Governor seem in a passion when he rose from his chair?

            Answer. He seemed displeased at something that had before passed, but warmed more so when he mentioned the Lieutenant Governor's name.

            Captain James Campbell, of the Marines, being sworn, deposed that the prisoner came into Major Ross'. He was then sitting reading when the servant came in and said the prisoner wanted to speak to the Major, who desired the servant to send him in. On his coming in, the Major asked him what he wanted. The prisoner said, he had been at the Governor's and wished to inform the Major of what passed there. That a conversation took place between the Governor and him, about there being two years' provisions in the store for every person here. That the Governor wished to know from where he had received such information. The prisoner declining to answer that question, said that Mr White who was present, got up from his chair, and [127] said he would be damned, if it was not the Lieutenant Governor. This deponent can not recollect any further conversation with the prisoner, but Major Ross expressed a desire of going to the Governor to know the reason of such assertion. That very soon after the Adjutant came from the [camp] with his [company] and he wished to see Mr Ross. The prisoner appeared perfectly sober.

            The prisoner being put on his defence said on Tuesday morning last he and five men more who said their time were out, wrote a petition to the Governor, and delivered it to the Judge Advocate. [Upon] recollecting something he wished to add to it, he applied for it again, and was told it went inclosed to his Excellency. That on this he returned home, and remained there till between six and seven in the evening. His Excellency sent Serjeant Baker for him, on which he came over with him and waited in the yard for some time, until Mr White, the surgeon came, and called the servant and asked him if his Excellency was at home or busy. That he (the prisoner) was immediately sent for, and went in to the Governor who asked him his name, and said "you say your time is out". He replied it was seven years since the time of his conviction. The Governor asked him who he was with concerning his time. He replied with the Judge Advocate. He asked him, if he had or had not been with any one else. Not recollecting himself he told him, he had not. He asked him whether he was not with the Lieutenant Governor or not. He begged his Excellency's pardon and said he was. [128] He then asked him, if he had not proffered his service to the Lieutenant Governor together as a soldier. He told him so. He seemed to doubt having asked him twice or thrice if he did not. He said "your Excellency if I had I would not deny it, and that he was wrongly informed (he made bold to say) who ever told him so". He then asked him what he was brought up. He answered [the sec.]. He then asked him what he wanted. He then told him he wanted nothing but the privilege of a free man as his time was expired. He said, it should be no such thing, for he did not know that his time was expired, and as he and the other convicts who worked now, did not earn half their provisions. Supposing he was paid for his labour, who would pay Governor for his provisions. He replied, he was informed, there were two years' provisions in store for him as well as every other person. The Governor then asked him, who informed him so. His Honour the Surgeon General then turned round and asked him "was it not the Lieutenant Governor?" He had before this begged of the Governor to excuse his naming the officer who had told him so, and that a Friend had put confidence in him. The surgeon then turned round and asked him whether it was not the Lieutenant Governor. He answered no, and the Governor then rose from his chair, bidding him tell him directly, whether it was the Lieutenant Governor told him so, or what officer it was. He was going to mention the name of the officer whose mouth he had heard that it came from, when Mr White, bade [129] him mention who it was, and whether it was not the Lieutenant Governor. He was staggered at seeing the Governor rise from his chair in a passion. His Excellency then calmly asked him what the Lieutenant Governor said to him when he went to him concerning his time. That he said, on the morning that he went to tell the Lieutenant Governor that his time was out, he asked him how he meant to get his livelyhood. Lieutenant Davey was present. That he replied he wished to live independent of the store house if he could, by working for different officers. The Lieutenant Governor then said, suppose the Governor should allow such a thing and that you were to work for me, and I was to give you half my allowance, I could not live on the one half, nor you could not I suppose live on the other. Having told this to the Governor Mr White said you are a damned equivocating rascal; on which the Governor desired him to return to his work, and that the privileges allowed the other people whose times were out, he should not partake of. He was then dismissed. He then went over to the Lieutenant Governor and acquainted him of what had passed between the Governor and him. On his mentioning the surgeon's name, the Lieutenant Governor seemed surprised. Having told him what passed, the Lieutenant Governor asked him, if there was any thing more. He said, he was to work as usual. The Lieutenant Governor said, it was very well. He could not act contrary to the Governor's orders any more than he could. That he then went away.

            [130] John Master (called by the prisoner) was sworn. Question from the prisoner. Did you not tell me there were two years' provisions in store for me and every body else?

            Answer. I did, having been informed so by Elizabeth Lock, whose time being out, I went and asked her.

            Question. Did not Elizabeth Lock tell you, that it came from the Judge Advocate?

            Answer. She did. That he went to her, hearing her time was out, and asked her what had been said to her about it. That she told him on expressing her fear to the Judge Advocate that she should be made to pay for her provisions, he told her she would not be made to pay for them, as there were two years' provisions in store for her and every body else. That last Wednesday being certain she said so, and wishing a person to back his evidence, he called John Power to go with him, and both together questioned her as to what she had before said. When she replied, the Judge Advocate told her there were two years' provisions for her, and that she was not to starve. That she said, she asked about her working when the Judge Advocate told her, there was no work for her at present. She would draw her provisions as usual, whether with her husband or by herself.

            Question from the court. When did you first make application to Elizabeth Lock?

            Answer. About four months since.

            John Power (called also by the prisoner) was sworn. Question. Did you hear E. Lock tell J. Martin there were two years' provisions in the store for her and [131] every body else?

            Answer. No, I heard hardly any thing about it.

            Question. What did you hear?

            Answer. I heard her say, when she came to the Judge Advocate when her time was expired, that she was told to go home and rest herself contented, there was no work for her to do, until the Governor heard further from government. Then the Governor would reward her for what work she had done, if she was employed at all.

            Question from the court. When did you hear this?

            Answer. On Wednesday morning at half past eight. That he saw her again the same day at the same place where he had seen her before. Martin and Sparks were with him, and the former asked him to come over to the Judge Advocate. They then came over to the Judge Advocate. The woman, Martin, him and Sparks.

            Question. Did you not say to her, to mind what she said?

            Answer. Probably I might bid her mind speak the truth.

            Question. Did you not tell her you would swear to what ever she said?

            Answer. No I did not.

            Elizabeth Lock (called also by the prisoner) being sworn deposes.

            Question from the prisoner. Did you, a day or a day or two after you had acquainted the Judge Advocate that your time was out, say to John Martin, that he had told you there were two years' provisions in the store for yourself and every body else?

            Answer. No. I never said any such thing. I said that [132] I had been told to go home, and content myself until the fleet came out, when I should be as the other free people were.

            Question. Do you recollect asking the Judge Advocate whether your husband was to pay for your provisions?

            Answer. No, they asked me if he was to pay for my provisions. I told them no, I was to draw my provisions as usual.

            Question from the court. When was the first time, Martin made application to you?

            Answer. Last Tuesday night at 9 o'clock when she was in bed. Martin came and asked for her husband. She said she believed he was at the saw pits. He said no, he had been there. He then said he wanted to ask her a question, which he would do and the next morning that he came at that time, and asked her what the Judge Advocate said to her, when she told him her time was out. She answered, that he bade her go home, and content herself, untill the return of a fleet from England, and she added, if you speak to Martin, so the same it will be as well for you. That he then went away, and returned at 11. Power was with him, but did not come in. Martin said, he was come by express order from the Major, to bring her to him. Who wanted her to tell him what the Judge Advocate had said to her about her time being out. She replied that she supposed the Major knew already. He said yes, they told him, but he wanted to hear it from her. She then came away with them. By the way, [133] Power told her that he was sent by the Major as an evidence of what she should say to Black Martin. That as they came on, he said to her, you know I have heard you say so 20 times (not specifying what) that he could swear to it. Only he wanted her to come and say it herself. That as she came over the bridge, she met the prisoner's wife Elizabeth Kelly, who said "come along, you are the Major's friend. Mind what you say¿. She asked her what she was to say. Kelly replied, "you know better than I can tell you". That as she stood at the Judge Advocate's gate, Power called her on one side and told her to mind what she said, it would be the better for us all. That she asked him if he wanted her to swear false. He made no answer, only laughed at her. She does not know what they wanted her to say. She never heard or conversed with Martin untill Tuesday night last. She does not recollect that Martin ever asked her if her husband was to pay for her provisions. Upon the oath she has taken, she was never told by the Judge Advocate there were two years' provisions in store for her and every body else.

            Guilty, to receive 600 lashes, on his bare back with a cat of nine tails, and to work in irons for the space of six months from the date hereof.

David Collins, Judge-Advocate.

Note

[1] This curious case was caused by a lack of information in the colony. Callaghan claimed that his sentence of transportation had expired, but that could not be proved without the records from England. In that uncertain position, did he have to continue compulsory work, and what was his right to provisions from the government's store? After telling what Governor Phillip thought was a lie, Callaghan was charged with a crime, but what that crime was is not entirely clear.

            Governor Phillip gave evidence against Callaghan, and in doing so showed the nature of convict administration at its very beginning. In the subsequent abridged version of Collin's Account of the English Colony of N.S.W., edited by Collins' wife Maria, references to this case were omitted. Nagle contends at 146: "[m]aybe Collins on reflection realised the unfairness of his and the Governor's actions".

            See Nagle, Collins, 139-146.

 

Published by the Division of Law, Macquarie University