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

R. v. Webb [1794] NSWKR 1; [1794] NSWSupC 1

seditious libel - convict discipline

Court of Criminal Jurisdiction

Collins J.A., 25 September 1794

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb 1788-Oct 1794, State Records N.S.W., 5/1147A[1] 

[387] Thomas Webb of Liberty Plains in the Country of Cumberland, settler, was brought before the court charged for that he on or about, Friday the nineteenth day of September, in the year of our Lord one thousand seven hundred and ninety four, at the place aforesaid, in the county aforesaid, a certain false, scandalous, seditious and libellous writing against Francis Grose esq., his Majesty's Lieutenant Governor of the territory of New South Wales, falsely, maliciously, scandalously and seditiously, did frame and cause to be made, and in the name of him the said Thomas Webb then and there did cause to be writ and published in the form of a letter and sent to the said Francis Grose esq., the tenor of which said writing is as follows: sir, (meaning the said Francis Grose esq.) after pursuing every means that is in my (meaning himself the said Thomas Webb) power, and not receiving any answer to my satisfaction, I (meaning himself the said Thomas Webb) would wish now to inform you (meaning the said Francis Grose esq.) that it is through the false reports of treacherous people that I have received all this usage, and your Honor (meaning the said Francis Grose esq.) knows that I have not had stock, assistance for a house, nor seed, or slops like any settler, and I think it is very hard for a woman (meaning the wife of himself the said Thomas Webb) to live long separated from her husband, (meaning himself the said Thomas Webb) and for all these frivolous advantages that have been taking is through an ignorant woman (meaning the wife of himself the said Thomas Webb) asking of a sentry for four shillings eight pence. Sir (meaning the said Francis Grose esq.) I hope you (meaning the said Francis Grose esq.) will look into this, for if I (meaning himself the said Thomas Webb) do not receive the satisfaction I (meaning himself the said Thomas Webb) could wish, I (meaning himself the said Thomas Webb) am fully determined to put it in force in England, and to have it tried by the law of my King and country. Sir, your (meaning the said Francis Grose esq.) humble servant Thomas Webb (meaning himself the said Thomas Webb) which said falsely seditious, scandalous, and malicious libel, the said Thomas Webb did [388] cause to be delivered to the said Frances Grose esq. to the evil example of all others in the like case offending, and against the peace of our Lord, the King his Crown and Dignity.

Thomas Webb on his arraignment pleaded not guilty.

Ebenezer Sampson being sworn, deposed that he has lived about seven weeks with Thomas Webb, the prisoner, as a hired servant; that he was directed from his service on Friday last the 19 September, being ordered to be situated from the public stairs; by order of the Lieutenant Governor for carrying a letter to the Lieutenant Governor, from Thomas Webb, which letter was written by him (this evidence) on the afternoon of the preceding day, Thursday, the 18th September, which letter was written by the order of the said Thomas Webb.

(The original letter was shown to the evidence, and deposed to being the same that he wrote).

That after writing the letter he folded it up and gave it to his master who returned it to him in the morning, with directions to him to deliver it to the Lieutenant Governor. That while he was writing the letter, he occasionally stopped [389] to read it to him as he wanted to see if the prisoner approved of it; that he wrote the letter as surely as he could in his master's words, if he has in any place not exactly made sure of them, he has used other words to the same effect. That the paragraph "Sir, I think it is punishment enough, as a man is been flogged to death" was dictated by the prisoner, who [must of] alluded to a convict who had been punished about a pair of shoes that his wife, the prisoner's, had bought from someone who had stolen them. That on Friday the 19th of September he delivered this letter to Mr Gibbons the Lieutenant Governor's servant.

That from having read over different paragraphs of the letter occasionally as he wrote it, to the prisoner, and from having read the whole over when he had finished it, to the prisoner, he could not possibly be ignorant of its contents.

That he was ordered by the prisoner to give the [390] letter to the Lieutenant Governor himself, but not being within, he gave it to his servant.

That the prisoner ordered him to put his (the prisoner's) name to it.

            Question from the Crown. Did the prisoner mean to throw any reflection on the Lieutenant Governor?

Answer. No, I do not think he did, but only meant to excite the Lieutenant Governor's compassion towards the prisoner's wife. But that is only my opinion, as the prisoner did not tell me he meant as reflection on the Governor.

            Matthew Gibbons, being sworn deposed, that the witness, Ebenezer Sampson, came to the Lieutenant Governor's house, on Friday the 19 September and gave him a note or letter for the Lieutenant Governor which he gave him. He does not remember there being any question asked.

John White esq., Principal Surgeon of the settlement, was sworn. Question. Is it customary to punish the convicts not in the presence of a surgeon?

Answer. I have been frequently called [391] to attend punishment. I believe there are some slighter punishments at which a surgeon does not attend, trifling punishments of 25 lashes, or any that would not enganger a man's life. But at serious punishments, myself or an assistant always attend.

Question. Have the punishments overseeing the Lieutenant Governor's command been more severe than usual?

            Answer. No. I do not think they have. My reason for thinking so is because whenever I have attended I have never suffered a prisoner's life to be endangered, but have always rather leaned to the side of humanity. That when a prisoner has in my opinion not been able to bear the whole of any punishment, I have suspended it and on reporting it to the Lieutenant Governor he has approved of my consent and requested me to continue it. [This paragraph edited by pencil, apparently in contemporary handwriting.]

Question. Do you [recollect] that when the Lieutenant Governor took command, he ordered the [implementation] punishment, or cat o' nine tails, to be reduced in their size?

Answer. I have heard so, and believe they were.

[392] Question. Do you know of any such circumstances as a man having been flogged to death in this place?

Answer. Never.

Question. Has there been any reason to suppose that a prisoner has died of the punishment he received?

Answer. In my opinion there never has.

Question. Is it possible such a circumstance could have happened without your knowledge?

Answer. Very unlikely indeed; and several very ... offenders have escaped punishment, from my having pointed out some infirming of the body to the Lieutenant Governor.

Mr Edward Laing, Assistant Surgeon to the colony, was sworn. Question. So is it customary to punish the convicts, except in the presence of a surgeon?

Answer. No, except in very slight punishments. Sometimes 25 lashes where the prisoner might be a strong healthy man. Twenty five have been given without a surgeon.

            Question. [393] Have the punishments during the Lieutenant Governor's command been more severe than usual?

Answer. I do not remember ever seeing a punishment before that time.

            Question. Do you know of any order for reducing the cats after the Lieutenant Governor took the command?

Answer. I do. I represented to the Lieutenant Governor that the cats used for punishing the convicts, were heavier than those used in the regiment, and he ordered them to be reduced to the same size.

            Question. Do you know of any prisoner having been flogged to death, or having died of the punishment?

Answer. No.

            Question. If such a circumstance had happened you must have known it?

Answer. I think so. I have attended the hospital regularly for two years now, and if such circumstance had happened, have known it.

John Archer assistant to the Provost Marshal being sworn deposed that he assisted [394] a prisoner of the name Haynes, being brought in for selling a pair of shoes to the prisoner's wife, which he had got from a prisoner of the name of Flemming and that he was punished with 30 lashes, not being able to take more; he was ordered 100. After his punishment he was there four days in the watch house and complaining of being ill he was sent to the hospital. He complained a shortness of breath; thus he afterwards learnt he was dead, three weeks afterwards he believes.

Question to Mr White. Do you remember a man of the name of Haynes being in the hospital?

Answer. I do; and remember that he died of a consumption. He was brought from the watch house to the hospital, being a weakly man, and not able to undergo his punishment. I remember him well; he had labored many months under a dysenteric complaint before he was taken up.

            Question. Do you think he died in consequence of his punishment?

Answer. I do not, and think if he had succumbed to the lash he would have died at the time. He died of a consumption and that the [395] death was not brought on by his punishment.

            (The register of crimes and their punishments, being produced, it appears that on the 22nd of February last, Michael Haynes was ordered 130 lashes, for selling a pair of shoes stolen by Flemming.)

            Question from the prisoner to Mr White. How long was Haynes kept in the hospital, from the time he received his punishment until he died?

Answer. I do not remember, and repeat my former opinion that he did not die in consequence of punishment. Methinks as far as my memory serves for no more than three weeks; he was led about daily.

            Question. Was Haynes under the surgeon's inspection, while he was in the hospital?

Answer. He was a patient, and of course expected to attend daily. Many patients sometimes get out without sanction and many are allowed to go and live in the huts where they may be more comfortable; but this man was under medical treatment and I remember frequently giving him medicines to take to the farm where he lived.      

            [396] The prisoner in his defence says that not having received the encouragement he was promised when in Ireland, he thought himself injured, which induced him to write the letter to the Lieutenant Governor, and which he did in hopes the Lieutenant Governor would attend a little more to him as a settler. That he was told by Haynes at that time before he died, that his punishment had killed him.

            Guilty. To pay a fine of fifty pounds sterling to the King. To find two sureties for his good behaviour while he remains in the colony, each surety to be bound in thirty pounds, and the prisoner to remain in the custody of the Provost Marshal until he has paid the fine and found the sureties.

Note

[1] This case was heard during the inter-regnum between the departure of Governor Phillip and the arrival of Governor Hunter. At issue was whether the intermediate government was excessively harsh in its imposition of punishment. Nagle writes at p. 236 in his detailed analysis of the case that Webb "was found guilty on his trial on a charge which revealed no facts establishing a criminal offence and tried by a bench, all of whom were bound to Grose by an oath to follow his 'orders and directions according to the rules and discipline of war'". The key question is whether this judgment should be defended for protecting an infant and vulnerable colony from potentially destabilising criticism, or whether the notion of the rule of law and an independent judiciary was grossly eschewed by not allowing a free man to make an appeal to the government that he and his wife had not been treated fairly.

Richard Atkins, David Collins' successor as Judge Advocate, commented in his journal "a man of the name of Webb was fined at a criminal court fifty pounds for writing what was thought an improper letter. The court was not competent to take cognisance of it, as it is the jurisdiction of a civil court". Atkins appeared to overlook that libel was a matter for both criminal and civil law at that time.

See Nagle, Collins, 229-237; Collins, Account of the English Colony in N.S.W., 346; R. Atkins, Journal of a Voyage to Botany Bay and South America, 1791-1810, Mitchell Library, MSS 737, 181.

We are indebted to Clare Jones for her meticulous transcription of this document.

 

Published by the Division of Law, Macquarie University