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

Boston v. Laycock [1795] NSWKR 3; [1795] NSWSupC 3

rule of law - military defendants - assault - appeal, Court of Appeal - court structure, reform - imprisonment for debt - felony attaint - pigs, control of

Court of Civil Jurisdiction, and Court of Appeal

Collins J.A., Governor Hunter, August 1796

Source: Historical Records of Australia, Series 1, Vol. 1, 602-643 [1]

GOVERNOR HUNTER TO THE DUKE OF PORTLAN

(Dispatch marked "separate," per store-ship Britannia; acknowledged by the Duke of Portland, 30 of August, 1797.)

My Lord, Sydney , N. S. Wales , 26TH Aug., 1796.

A Court of Civil Jurisdiction having taken place soon after my arrival in the colony, in which a free settler was plaintiff and four persons of the military were defendants.

When the minutes of this Court were laid before me, I thought there appeared on the part of the defendants so very indecent a degree of warmth, and the consequent want of that respect which is at all times due to a Court of Justice, that I mentioned at the time my determination to send the whole proceedings to England, and to lay it before your Grace, and also to request that I might be indulged with the opinion of the Crown lawyers upon it. This trial, my Lord, was, I believe, amongst the first of its kind which had happened in the colony, and from that circumstances occasioned considerable bustle.

After the Court had decided, the plaintiff had occasion to return, from going on his way home, and claim the protection of the Court from insult and violence.

One of the defendants (a private soldier) was advised by his friends to appeal from the verdict of the Court. I say advised, my Lord, because the man did not appear to me to know the meaning or intention of an appeal, and therefore I did not conceive it to be a motion of his own. A decision on that appeal is herewith inclosed.

I cannot allow myself to close the letter on the subject, my Lord, without taking that opportunity of observing that I strongly suspect there are some person or persons in this colony (whose situations are probably respectable) extremely inimical to the necessary influence and authority of the civil power, and to that respect which is due from the public to the civil magistrates.

I have thought it necessary to mention thus much that it might not create surprise hereafter, shou'd I, contrary to my wish or inclination, have occasion to be more circumstantial. I shall be happy to understand that we have not in the present instance being deficient in that attention and justice which is due to all who decently and respectfully submit their claims or complaints to the decision of the law. I must farther add, my Lord, that I look forward with hope that the time may not be far distant when our Courts will be settled more immediately upon the plan of those in our mother country. I have,&c.,

JNO. HUNTER.

[Enclosure]

PROCEEDINGS of the Court of Civil Jurisdiction held at Sydney on the 3rd 7th 8th 11th 15th 29th and 30th Days of December, 1795.

[Precept summoning the Court.]  

By His Excellency John Hunter Esqr. Captain General and Governor in Chief, in and over His Majesty's Territory of New South Wales and its Dependencies etc. etc.

WHEREAS it is directed by His Majesty's Letters Patent under the Great Seal of Great Britain, bearing date that Second day of April in the Twenty seventh year of His Majesty's Britain, that there shall be a Court within the Settlement in New South Wales, to be called the Court of Civil Jurisdiction, which Court is to Consist of the Judge Advocate and two fit and proper persons inhabiting within the same, to be appointed by the Governor for the time being, or of any two of them, whereof the Judge Advocate to be one.

You are hereby required and directed to attend as Members of the said Court tomorrow, being the 3rd of this Instant Month December, at Ten of the Clock in the forenoon, to hear and determine all such Pleas as may be brought before you, pursuant to that Power and Authority given to such Court and expressed and recited in the said Letters Patent.

For which this shall be your Order.

Given under my Hand and Seal at Sydney this 2nd Day of December, in the year of our Lord 1795.

JOHN HUNTER (L.S.)

THE JUDGE-ADVOCATE.

WILLIAM BALMAIN,ESQR.

GEORGE JOHNSTON,ESQR.

By Command of His Excellency,

DAVID COLLINS, Secy. To the Colony.

[Proceedings]

AT A COURT of Civil Jurisdiction assembled by Virtue of a precept under the Hand and Seal of His Excellency John Hunter Esqr. Captain General and Governor in Chief in and over His Majesty's Territory of New South Wales and its Dependencies etc. etc. etc.

Present :- The Judge Advocate, William Balmain, Esqr, George Johnston Esqr.

The Precept being read and the Court duly sworn, -

MR. JOHN BOSTON, came before the Court and stated that he had a Complaint to allege against Mr. Thomas Laycock, Mr. Neil McKellar and William Faithful and William Eaddy, all of the New South Wales Corps, for assaulting his person on Thursday in the Afternoon, of the 29th day of October last, and delivered a written paper, which he subscribed and swore to, before the said Court, containing the particulars of the Assault, praying for redress, and estimating the injuries he received at Five Hundred Pounds Sterling.

THE COURT granted a Writ, to bring before it the said Thomas Laycock, Neil McKellar, William Faithful, and Williams Eaddy, to answer to the said complaint.

Adjourned, there being no other business before the Court, until 10 O'clock, on Monday the 7th Day of December.

COPY of the paper No. 1 above referred to.

Unto the Honorable the Judge-Advocate and Court of Civil Judicature, of the Territory of New South Wales; The Complaint and Memorial of John Boston free Settler, against Thomas Laycock Quarter Master, Neil McKellar Ensign, William Faithfull and William Eaddy, Privates, all belonging to the New South Wales Corps.

By the appointment of Government, the Plaintiff came into this Country, along with his family to forward its improvement. In common with every Inhabitant, he has every claim upon Public protection, but peculiar to a few, he has several upon Public Patronage. - If he is to meet with insult and outrage, or meeting with them, if these are to be unnoticed, he cannot either pay attention to those objects, nor prosecute them with advantage, for which he exposed himself to much inconveniency, and Government incurred so much expensce. The demand of Justice, in the present instance, has a reference to his future situation, must determine his residence here, and must resolve whether his Voyage has been fruitless or advantageous to himself or the Community: Independently of these Considerations he feels it an incumbent Duty for him to demand on the part of the whole a severe punishment upon those complained on, as from their respective situations, they were bound to oppose illegal Violence, and to protect those against whom any outrage might have been committed.

Upon the 29th Day of October last, when in his own House he was informed that some person had shot, in a close adjoining to a Tenement belonging to Captain Foveaux a sow his property. He accordingly went thither, and found dead in the manner mentioned a very fine Sow, considerably advanced in Pig. By some bystanders, he was informed, that the persons who had done it, was gone out of the Close by a Gate at its bottom; He accordingly ran round there exclaiming with some walk, who is the damned Rascal; The Memorialist replied, the man that shot my Sow, immediately the said Laycock called William Faithfull and told him: That fellow pointing the Memorialist had called him a Rascal, and he commanded him to thresh him, as long as he could; Faithfull asked the Memorialist if he called him a Rascal, which he answered by another question, if he had shot his Sow. Laycock again commanded Faithfull to beat the Memorialist: Faithfull for this purpose advanced from the yard, and the Memorialist, in order to defend himself, seized from the hands of Collins a by stander an Axe without a helve which as Collins was unwilling to part with the Memorialist immediately gave up; Neil McKellar here upon commanded the aforesaid Faithfull to knock down the Memorialist, with a Gun which he had in his hand; Faithfull obeyed his Orders, and struck the Memorialist, with the Gun, upon the back part of his head, with such Violence, as bent the Ram Rod and would undoubtedly have produced death, if it had fallen upon any other part of the head; The Memorialist attempted in self-preservation to seize the Gun, exclaiming in the meantime Murder, and calling for Assistance, McKellar observed that the Gun was loaded, and desired it to be taken away; This was done by Laycock, Mrs. Boston terrifyed and alarmed had run to the spot, Laycock with savage brutality repeated his Command to Faithfull, desiring him to beat the Memorialist as long as he could stand. In the same breath he ordered William Eaddy to thresh the Memorialist as long as he had life, and push'd him for that purpose towards him, asking him if he would allow that fellow to call a Soldier a Rascal; Eaddy advanced to put the Order in execution. The Memorialist overpower'd by force and by numbers, alarmed by the cries of his Wife and placed in the most imminent danger, accomplished his escape through the back door of Mr. Bloodworth's garden.

These facts of the Memorialist offers to prove by unexceptionable evidence, He lays his damages at 500 pounds sterling, nor does he think the Court will be of opinion, they were too highly estimated. The injury was aggravated by the situations of the persons who committed it, and of him who suffered it. A Justice of the Peace and a Military Officer, commanding private and armed Soldiers, to murder an unarmed individual, for their express words can imply nothing else, deserve the severest notice, Trifling censure is, or trifling damages would merely lead to repetition. This outrage is not confined to the person of the Memorialist, through him its strikes, all who may have come here with similar views, and if reparation, ample and substantial, is now denied, will operate upon all who may hereafter be disposed to emigrate from England.

The Memorialist has heard it surmised, that a Counter prosecution, is to be brought forward against him, as having been the first assailant. If with view to terrify him this has been thrown out, it has failed of its purpose; He is so conscious of the proprietary of his Conduct, if, there were no more material reasons, to desire an investigation upon this very account. He cannot allow himself to think, that any will be so daringly wicked as to reduce in this Court, to support an untenable Plea, a train of Perjured Witnesses. If he should be attempted, the Memorialist confides in the consciousness of his having it in his power, by Characters directly the reverse, and superior to suspicion, to overthrow their Testimony, and to consign them to merit a punishment and infamy.

The Memorialist concludes by expressing his firm belief, that from the impartiality and justice of this Court, he will receive compleat reparation, for the injury he has suffered, and ample protection for the future from similar outrages.

JOHN BOSTON .

Sworn before the Civil Court of Jurisdiction this 3rd Decr. 1795  DAVID COLLINS, Judge-Advocate.

Monday, 7th December, 1795

THE COURT met pursuant to Adjournment, Mr. Edwd. Abbott. came before the Court and made the following Affidavit: -

I Edward Abbott do swear, that George Legg, late a Settler at Norfolk Island but now residing at Sydney in the Territory of New South Wales , is indebted to me in the Sum of Thirty seven pounds Sterling, for value received, and which he unjustly detains.

EDWARD ABBOTT.

Sworn before the Court of Civil Jurisdiction at Sydney , this Seventh Day of December, 1795.

DAVID COLLINS, Judge-Advocate.

 

A Writ was granted to arrest George Legg, for the Sum of Thirty seven Pounds.

The Court adjourned until 10 o'Clock on Tuesday morning the 8th Day of December 1795.

Tuesday 8th December 1795.

The Court at the Motion of the Defendants in the Cause, Boston versus Laycock, McKellar, Faithfull and Eaddy, was further adjourned until 10 Clock on Friday morning the 11th of December.

Friday 11th December 1795.

THE COURT met at 10 of the Clock, in the forenoon, pursuant to its last Adjournment.

MR. THOMAS LAYCOCK, MR. NEIL MCKELLAR, WILLIAM FAITHFULL, AND WILLIAM EADDY, being brought into Court, by virtue of the Writ, which issued on the third of December, the following declaration was exhibited, by the Judge-Advocate:-

JOHN BOSTON, settler, residing in the Town of Sydney, in the County of Cumberland, in the Territory of New South Wales, cometh before the Court of Civil Jurisdiction, on the 11th Day of this instant Month of December, in the year of Our Lord One thousand seven hundred and ninety five, and complaints against Mr. Thomas Laycock, Quarter Master in the New South Wales Corps; Neil McKellar Lieutenant in the same Corps, and William Faithfull and William Eaddy Private Soldiers in the same Corps, of a plea of Trespassed in assault and Battery. For that Whereas, on Thursday the Twenty ninth day of October in the year of Our Lord One thousand seven hundred ninety five, when he is said John Boston, was in his own house, at Sydney aforesaid, he was informed that some person had shot in a Close adjoining to a tenement belonging to Captain Forveaux, a Sow, the property of him the said John Boston; He accordingly went thither, and found dead in the manner mentioned a very fine Sow, considerably advanced in Pig; by some bystanders, he, the said John Boston was informed, that the Person who had done it, was gone out of the Close, by a Gate at its bottom. He the said John Boston accordingly ran round there, exclaiming with some warmth "who is the damned Rascal that shot my sow"; He was asked by Mr. Thomas Laycock, whom he called a damned Rascal. He the said John Boston replied, "the man who shot my Sow" immediately the said Mr. Thomas Laycock, called one William Faithfull, and told him "that fellow, pointing to the said John Boston, had called him a Rascal" meaning of the said William Faithfull, and commanded him the said William Faithfull to thresh the said John Boston as long as he could. The said William Faithfull asked the said John Boston, "if he had called him a Rascal" - which the said John Boston answered by asking the said William Faithfull, "if he had shot his sow." That the said Mr. Thomas Laycock again commanded the said William Faithfull to beat the said John Boston. That from this purpose the said William Faithfull advanced from the yard, and the said John Boston, in order to defend himself, seized from the hands of wine Edward Collins, a by Stander, an Axe without a Helve, which said Edward Collins, was unwilling to part with, the said John Boston immediately gave up. That here upon Mr. Neil McKellar, commanded the aforesaid William Faithfull to knock down the said John Boston as long as he could. The said William Faithfull asked his hand. That the said William Faithfull obeyed his Orders, and struck the said John Boston with the Gun, upon the back part of his head, with such violence as bent the Ram Rod thereof, and would undoubtedly have produced the Death of the said John Boston if it had fallen upon any other part of the head. That the said John Boston, attempted in self-preservation to seize the Gun, exclaiming in the mean time Murder, and calling for assistance, the said Mr. Neil McKellar observed that the Gun was loaded. And desired it to be taken away, which was done by the said Mr. Thomas Laycock. That Mrs. Boston wife of the said John Boston terrified and alarmed, had run to the spot. when the said Mr. Thomas Laycock, repeated his Commands to the said William Faithfull "desiring him to beat the said John Boston as long as he could stand." That in the same breath he ordered one William Eaddy to thresh the said John Boston as long as he had life, and for that purpose pushed the said William Eaddy towards him, asking the said William Eaddy if he would allow that fellow, meaning the said John Boston, "to call a Soldier a Rascal." the said William Eaddy advancing to put the Order into Execution, the said John Boston finding himself overpowered by numbers, alarmed at the cries of his wife, and himself placed in the most imminent danger, accomplished his escape through the back door of one James Bloodworth's Garden.

That by the said assault and battery committed on him the said John Boston, with force and arms, the Day and year above written, by then the said Mr. Thomas Laycock Mr. Neil McKellar - William Faithfull and William Eaddy, the said John Boston saith. he is injured and damaged to the value of Five hundred pounds, and thereupon he brings suit to the Court of Civil jurisdiction.

The declaration being read. And the defendant having severally denied the Charge and Complaint contained therein; The Plaintiff, John Boston, previous to his calling his Witnesses, read the following papers which he delivered in, after reading them.

[Copy No. 1]

Lately after I arrived in this Country, Mr. Laycock sent an imperious Letter ordering a Sum of Money to be paid which was not due.

To this Command so arbitrarily imposed without Authority, and so unjust in its nature, I could not yield obedience. This refusal among other harsh expressions drew from Mr. Laycock, on the public Wharf, that of Swindler. This occasioned me to send this Letter which received no answer; I was averse to trouble your honor, and deeming my Character sufficiently vindicated by the Silence of Mr. Laycock, I took no further steps;- I think it necessary here to observe, that I was recommended to Government as an honest man, by Gentlemen of Character, and fortune, and who would not have presumed to said so, had they not known me to be such; that I was recommended I believe is known to His Excellency Governor Hunter.

However it would appear that malice was not exhausted, in the mind of Mr. Laycock, it will be proved that the place where the pigs trespassed not his own was a place where they could do no damage to provoke him, where there was no fastening to keep them out, and that they shot the best pig in the herd.

This Conduct so inconsistent, with that of a Gentleman, and of an Officer, proves in the strongest manner, that it was no attention to the police of Sydney , which prompted Mr. Laycock to assume this Office, but the desire of gratifying his revenge, upon a man who knowingly never had injured him: The next morning after shooting the Sow Mr. Laycock met my man selling the Pork when it in an exulting manner, and with a laugh of self approbation he asked him if he was selling Boston's Pork, which plainly shews that the destroying my property and assaulting my person, was not the effect of momentary passion, but a thing done with deliberation and approved of upon reflection. I cannot help thinking the conduct of Mr. Laycock's highly injudicious, was injurious. In attempting to draw a line of distance between the Civil and Military branches of the Community, and to impel the latter against the former; That such were his intensions, and such his attempts will admit of no doubt, from considering that words which he used and the manner in which he acted, in the evidence which will be produced.

I beg leave to observe to this Honble. Court, that it is with the utmost reluctance I give the Members trouble. Security for myself in future and for that of the other Inhabitants in this Colony, by the extent of the Damages I may recover, are the only motives which I had for this prosecution.. with the utmost confidence I confide in the impartiality of this Honble. Court.

[Copy No. 2]

Sir,

Please to pay the bearer, James Manning, or his Order the above Balance, and his receipt shall be your Discharge.

WILLIAM LEWIS.

Sydney Cove, Jany. 7th, 1795.

Jas. Manning being a Servant of Mr. Laycock's and distressed, Mr. Laycock desires this Bill may be immediately settled.

[Copy No. 3]

Sir,

I arrived at New South Wales with an unblemished character; I am a man of Business, and my bread and that of my family depend on my preserving it unspotted.

You have endeavoured to deprive me of what is dearer than life, and them of support, by having the audacity to say on the Public Wharf in the hearing of numbers that I had robbed or swindled William Lewis of his property I demand of you to prove your words or as publickly recant them; if you do not, at the much wished for arrival of Governor Hunter when a Civil Court of Justice shall be open to every one, I promise you I will prosecute you a defamation.

JOHN BOSTON.

Examination of Witnesses.

Mr. JAS. ELLIS, called by the Plaintiff, was sworn:- Q. by Plaintiff . - Do you recollect a letter being sent by Mr. Laycock to Mr. Palmer about 8 months since, to pay some Money?

A. - Yes it was an order, a peremptory Order, to pay Money - which he wondered at, not knowing that Mr. Laycock was a Magistrate; He saw Mr. Boston 's answer, observing Mr. Laycock had called him a Swindler.

Q. - Was you in the house when a Man came and informed me a Pig was shot in Captn. Foveaux's Yard?

A. - Yes

Q. - Do you remember that the Man did not say who shot the Pig?

A. - No, he did not.

Q. - Do you know the Pig that was shot?

A. - She was worth about 7 or 8 Pounds, independent of her being with Pig.

Q. - Do you know the place where the Pig was shot, Whether any damage could be done in it?

A. - There had been some wheat sown in it - it had been used as a Stable, and Horses had been turned into it.

Q. - Can you speak to the Security of the Gate?

A. - Yes-I found that there was not any latch on the Gate, but only secured by a piece of Iron Hoop at the top.

Question by the Court . - What was the size of the Close?

A. - About a Quarter of an Acre .

Q. - Can you tell how much wheat was on it?

A. - If there was Forty Rod in Cultivation there was at least Ten that had none.

Q. - Did you see Mr. Laycock's letter to Mr Boston?

A. - Yes and Mr. Boston 's answer.

Q. - What tone of the day was it that the Sow was Shot?

A. - I think after dinner.

Q. - Was it the first time that Mr. Boston's Hogs had been in the Close?

A. - Know they had been frequently there, and some had been wounded, but we cannot say they had been beaten or wounded there.

Question by the Defendant Mr McKellar. - Can you speak positively as to the fastening on the Gate?

A. - I cannot as to when the Hogs went in, but I can say positively when they came out, there was not any latch on.

Q. - Can you take upon you to say, whether the fastenings where taken away, or whether they were broken down by the Pigs going in?

A. - I cannot speak to that.

Q. - Can you take upon you to say whether the Hogs were ringed and yoked agreeable to an Order given by the Lieutenant Governor in the absence of the Governor?

A. - They were not yoked, they had rings put in their noses the day before, but they often worked them off.

CAPT. JOSEPH FOVEAUX, called by the Plaintiff, was sworn: -

Question by Plaintiff. - Had Mr. Laycock at any time asked you permission to shoot those Pigs when in your Close?

A. - No.

Q. - Did you not use that Place as a Stable, and had not the Horses been turned into the Wheat?

A. - It has been a Stable.

Q. - Was it not kept purposely for the Horse to graze in?

A. - It was.

Q. - Had not the Gate been always fastened with an Iron Hoop ?

A. - Yes - always and your Pigs had been frequently driven in - I had often desired they might not be shot, but they were driven in constantly.

MR. NICHOLAS DEVINE, being called by the Plaintiff, was sworn: -

Question by Plaintiff . - Do you recollect my running on the afternoon of the 29th October round the Close, and exclaiming with some warmth where is the damned Rascal who shot my Pig?

A. - I Recollect seeing Mr. Boston and Mr. Laycock, talking together with much warmth - I heard Mr. Boston say it was a rascally business, of affair Mr. Laycock said, Do you call a Soldier a Rascal - Mr. Boston said, it was a Rascally act - they then came up to the Garden Gate - Mr. Laycock called down a Servant of Captain Foveaux's who came - on which Mr. Laycock turning to Mr. Boston, said to the Soldier, here is a fellow calls you a Rascal - take him and thresh him well, the Soldier asked Mr. Boston why he called him a Rascal - he asked him if he had shot his Sow. Then they talked with greater warmth - and some words passed which I do not recollect - but I heard Mr. Boston say it is a lie. a damned lie. By - I suppose the Soldier told him the Hogs had been driven in. On this Mr. Boston came upon the road when he met a man of the name of Collins, having an Axe without an Helve, and a piece of Corn Stalk - He then attempted to take the Corn Stalk from the man which he resisted - (It was a stalk of Sugar Cane and not a Corn stalk) - by which it was broken and then Mr. Boston grasped at the Axe, - and got the Axe from him, but the other persisting he should not have it, he gave it up to him; at the time I heard Mr. Laycock say to William Faithfull (soldier he had called down) - ye, will you suffer yourself to be called a Rascal, why do you not go and thresh him: - The Soldier then rushed pretty quick by him with a musquet in his hand - holding the butt end with both his hands - and struck Mr. Boston with the Musquet on the back part of the left side of his head; Mr. Boston then seized the Gun and both had hold of it, when some one in the Crowd said it was loaded - on which Mr. Laycock came up and said it being loaded, it must be given up - and took it from them. Having down which, Mr. Laycock turned to the Soldier William Faithfull and said, now thresh him well, they then fought some time together, until they got up beyond Skirvings gateway and Mrs. Boston thrust open the Gate, and came on the road, saying to her Husband get in, get in, you will be murdered, and endeavoured to separate them which was done. On this I heard Mr. Laycock urge William Addy to go up and thresh Mr. Boston and pushed him towards him with his Elbow, William Addy run up towards Mr. Boston who was retreating towards Bloodworth's Gateway - William Addy put himself into a Posture to strike Mr. Boston , who ran within Bloodworth's Gate, to which he was followed by Addy, but I did not see him strike Mr. Boston , he followed him very close, but I did not see him give him any blow. I heard Mr. McKellar say, that he (without mentioning and name) was a damned Rascal, and deserved a good threshing. I did not observe Mr. McKellar at first. - I saw some Serjeant there afterwards, and heard Whittle say There was a Society of them who deserved a good threshing and who should get it - and he mentioned the names of Ellis and Pearce. - Towards the latter end of the Business, many had assembled - the Crowd there had increased, from the time the blows had been given.

Question by the Court. -- Did you see anything in Mr. Boston 's hand, at the time of the assault, besides the stalk of Sugar Came?

A. - No - and that was broke in taking it from the Man who had it.

Question by the Plaintiff . - At the time I'd jump back upon the Road, did you not hear Mr. Laycock say to William Faithfull thresh this fellow?

A. - I do not know that was the cause of your jumping on the Road, but I heard Mr. Laycock tell the Soldier to thresh you, will you suffer yourself to be struck.

Q. - Did not the Soldier give me the first blow?

A. - Yes, I have said so.

Q. - Did not I cry Murder?

A. - Yes.

Question by the Defendant Laycock . -

Q. - How near was you to me at the Beginning of this Business?

A. - I was on the Road, coming from my back gate, walking down, and I saw them coming towards me - I was about the middle of the Road.

The Witness not perfectly recollecting the distance nor situation, and wishing to measure the road, he was sent out attended by Captain McArthur.

The Question answered by Mr. Divine - when I first saw them coming towards me. I was 73 paces from them.

Q. - Do you recollect what part of the road I stood in when he first saw me?

A. - Nearly about the Centre of the Road from the Bridge coming up from the Spring.

Question by Mr. McKellar . - When Mr. Boston got the Axe into his hand did he make any attempt to strike the defendant Faithfull with it?

A. - I did not see him make any use of it, or attempt.

Q. - How did Mr. Boston obtain the Axe - whether by Violence or by what means?

A. - By Violence.

Q. - Did Mr. Divine see any necessity for that Violence being used?

A. - He (the Plaintiff) wanted something to defend himself from Faithfull.

Q. - What Violence did you see offered by Faithfull to the Plaintiff to justify that Violence?

A. - None.

Q. - If you saw no Violence offered on the part of Faithfull, what induced you to form any Opinion that the Plaintiff wanted to defend himself from Faithfull?

A. - Because he had been before desired to strike him.

Q. - What conversation did you hear previous to the altercation respecting the Axe with Collins?

A. - I heard Mr. Laycock tell the Soldier, to go up and thresh Mr. Boston, saying will you suffer yourself to be called a Rascal by him.

Q. - Did you hear Mr. Boston say that all the Soldiers were thieves and rascals, and abused them very grossly?

A. - I did not.

Q. - was the Croud so great at the beginning of the Business that had I been there you could not have seen me?

A. - There was not any Croud at first - I did not see you at the beginning.

Q. - was it possible, if I had been there that you could not have seen me?

A. - If you had been there I must have seen you.

Questioned by the Court. - On the Oath you have taken, did you hear Mr. Laycock, when urging the Soldier to thresh Mr. Boston say at the same time, will you suffer yourself to be struck?

A. - I did not.

The Witness begged to amend that question, to which went put to him before he said Mr. Laycock had said, will you suffer yourself to be struck.

Q. - What was the cause of the difference that when you was at some distance you heard what past, but afterwards when nearer you could not hear?

A. - Because Mr. Boston spoke so loud and distinct at first that every one could hear afterwards they spoke quicker.

EDWD. COLLINS, being called by the plaintiff was sworn: -

Questioned by Plaintiff . - Do you remember seeing Mr. Boston coming with some warmth, and exclaiming who is the damned Rascal who shot my sow?

A. - Yes.

Q. - State to the Court what followed?

A. - The Pigs were in their Garden of Captain Foveaux where the Sow was shot - and Mr. McKellar was in the Garden with Faithfull driving the Pigs into one corner; at this time Mr. Laycock came and asked Faithfull if he had shot one - Faithfull replied he had shot one - Mr. Laycock told him not to shoot any more, one was sufficient. He (this Evidence) had an Axe and a Piece of Sugar Cane in his hand, which Mr. Boston wrenched out of his hand - that he asked him for the Axe, which he gave up - that Mr. Boston was still raging and making us [sic] of the word Rascal, Mr. Laycock asked him who he called Rascal - he said any person who shot his Pig - in the mean time Faithfull had gone up the Garden towards where the Pig was shot, with that Mr. Laycock called him back, telling him here is a man calls you a Rascal - if you stand and here yourself called a damned Rascal, you are a fool if you do not give him a good licking - Boston and Faithfull stood wrangling together for a Minute, on which Faithfull struck Boston with the Piece, with such force that the Ram Rod flew out after he had struck him, which was on the back part of the head, Mr. Boston lifting up his hands hollowed out Murder - with their struggling together, after he recovered himself from the Blow he caught hold of the piece and Mr. Laycock went up, saying the piece was loaded, and took it away from them. Mrs. Boston came and parted them and persuaded him to go home. - That having got rid of Mrs. Boston , the Plaintiff struggled with Faithfull scratching his face and was near proving too many for him, when another Soldier came up, to whom Laycock said will you suffer a Soldier to be called a Rascal, and then Mr. Boston ran away, before the Soldier could catch him.

Question from Plaintiff. -Do you recollect hearing Mr. Laycock tell William Eaddy to follow me when I ran away?

A. - No I do not.

Q. - Do you recollect Mr. Laycock telling Faithfull to thresh me as long as I had life?

A. - No.

Q. - Do you remember seeing Eaddy advancing in an attitude to strike me?

A. - Yes.

Q. - what time was it that I took the Axe from your hand, was it before or after Faithfull was called by Mr. Laycock to thresh me?

A. - He had been called and was coming.

Q.. - Did you hear Mr. Laycock call Faithfull to thresh me, before I took the Axe out of your hand?

A. - Mr. Laycock had called him, and before he came to him, Mr. Boston had take the Axe from me, and I had gotten it back.

Q. - By whose Orders did Faithfull strike me with the Gun?

A. - I did not hear any order him to strike you with a Gun.

Q. - Did you hear McKellar give any Orders to thresh me?

A. - No I did not - I did not hear Mr. McKellar say anything at all.

Question from the Defendant McKellar . - How did I appear to be driving the Pigs into the Corner of the Garden?

A. - For to get them together, for him to shoot again.

Q. - why do you suppose it was for that purpose?

A. - Because the Gate was open, and you were driving them into one Corner, before Mr. Laycock came.

Q. - Did you hear me speak to Faithfull, and if you did, what did I say?

A. - No I did not.

Q. - Were Mr. Laycock or me present when the Pig was shot?

A. - No - I think Mr. Laycock come out of his own Garden afterwards.

Question from the Defendant Laycock . - When you first saw me, where was I, and who was with me?

A. - You was coming towards the place where the Pigs were, and was alone.

Q. - Did you see me walking with Mr. Boston at the Bridge near the spring?

A. - No.

Q. - when you first saw Mr. Boston , which way did he come?

A. - Round Keeling's the House nearest to the Bridge.

Q. - Did you see Mr. Boston come the same way that I did?

A. - Yes.

Q. - When Mr. Boston came up, where did you first see me standing?

A. - At Captain Foveaux's Gate.

Question fm. Boston . - Did not Mr. Laycock meet me when I came up?

A. - I do not recollect, Mr. Laycock was standing at the Garden Gate.

Question from Defendant McKellar. - whether he supposes either of the Defendants knew whose Pigs they were which were shot?

A. - I do not know that either McKellar or Laycock did, for on being asked by Laycock, I told him they belonged to F. Palmer.

Q. - In what manner was the Axe taken from you by Boston - whether by force?

A. - Not much force, I rather let it go - he gave it up again on my asking for it.

Q. - Did Mr. Boston strike Faithfull?

A. - Not before he struck him with the Piece.

Q. - How or with what did Boston strike Faithfull?

A. - With his hands - they were both fighting together when the Piece was taken.

Q. - Was it possible he could use any Weapon when striking Faithfull without his perceiving it?

A. - No he had none - not even the Sugar Cane.

Q. - Did Mr. Boston cry Murder loudly or faintly?

A. - Very faintly.

Q. - Did they fight afterwards?

A. - they did not fight any before.

Q. - Did Mr. Boston seem to fight from choice or in his own defence?

A. - In his own defence.

Q. - Does he suppose that Faithfull would have done any Injury to Mr. Boston if he had not run away?

A. - No he could not - the other man possibly might.

Q. - Did it appear to you that either myself or Mr. Laycock encouraged Faithfull to injure Mr. Boston so as to endanger his Life?

A. - No - no more than to thresh him; there Piece might have taken his life from him certainly, in the manner he hit him with it.

Q. - Did you hear Mr. Boston abuse the Soldiers, and Faithfull in particular?

A. - No - no otherwise than by making use of the Word Rascal to Faithfull.

Question from Defendant Laycock . - Did you suppose I ordered Faithfull to beat the Plaintiff, out of any malice, to him, or because he had called the Soldier a Rascal?

A. - Because he had called the Soldier a Rascal.

Question from Plaintiff . - Why did I call Murder in a faint voice?

A. - Weak from the Blow.

Q. - Did I appear to tremble?

A. - Yes - you did.

Question from McKellar . - What time was there between Mr. Boston 's receiving the Blow and Grappling with Faithfull?

A. - A very short time.

The Court here adjourned until 9 O'Clock on Tuesday morning, the 15th instant.

 Tuesday, 15th December 1795.

THE COURT met pursuant to their last adjournment.

MARK TURNER called by the Plaintiff, being sworn: -

Question by Plaintiff . - State to the Court what you know of the Transaction of the 29th Octr.

A. - I was coming by the Paling when the Soldier was going to shoot the Sow - I saw him shoot it - he loaded the Piece again to shoot another - the Defendant Laycock came up and asked him if he had shot one, he said yes, - he then told him that was Damage enough - Mr. Boston now came running up crying where is the Damned Rascal who shot my Pig - repeating this, saying if he had been made acquainted with the Circumstances he would have paid any Damage -- Mr. Laycock then called to Faithfull telling him the Plaintiff had called him a Rascal, and bade him thresh him - the Soldier struck the Plaintiff, and the Plaintiff struck him - he attempted to take a Piece of Sugar Cane from some bystander, E. Collins, and an Axe which he had in his hand and which he got from him, but gave up again; - that he saw the Soldier strike him (the Plaintiff ) with the Musquet - that Mrs. Boston ran out and persuaded the Plaintiff who had cried out Murder, to make his Escape which he effected.

Question Plaintiff . - Did not I give the Axe back to Collins before the Defendant struck me with the Gun?

A. - Yes you did.

Q. - Did you hear Mr. Laycock tell Eaddy to thresh me as long as I had life - I had called a Soldier a Rascal?

A. - No - I cannot recollect that I did.

Q. - Did you see Serjeants Jamison and Whittle?

A. - They came when the Business was nearly over.

Q. - Did you see Mr. Divine there?

A. - Yes.

Question by Defendant McKellar. - With what did Faithfull strike Mr. Boston , before he got the Musquet?

A. - I saw nothing in his Hand but the Musquet.

Q. - On what account did the defendant strike the Plaintiff?

A. - Because he called him a Rascal - and Mr. Laycock had therefore told him to give him a good threshing.

Question by the Court . - You saw the Defendant strike the Plaintiff, what had he in his hand at the time?

A. - Nothing when he was first struck.

Q. - What was the first blow given with?

A. - With his hand.

Q. - Had Faithfull then his Musquet in his hand?

A. - Yes.

Q. - Which Hand held he the Musquet in?

A. - I do not recollect.

Q. - What occasion the Defendant to strike the Plaintiff with a Musquet?

A. - On account of his having caught at the Axe - several People calling out to the Soldier to knock down the Plaintiff for so doing: I am positive that Blows were given with the Hands, before that with the Gun.

Q. - Who gave the first blow?

A. - the Defendant, and with his hand. I apprehended the motive of the Soldiers striking the Plaintiff with an Musquet was the People crying out to him to knock him down.

Q. - At the time the Soldier with the Musquet structure Plaintiff, had he any thing in his Hand?

A. - Nothing.

Question by Plaintiff. - Did you hear Mr. Laycock or Mr. McKellar, say knock him down with the Gun?

A. - No I did not. I did not hear McKellar say any thing. did not see Serjeant Major Hudson there.

ANDREW CLARK, called by the Plaintiff, was sworn: -

Question by Plaintiff. - Do you remember anything of the Affair of the 29th Octr. ?

A. - Yes - I was in Bloodworth's yard, and heard a Gun go off - I went out and saw a Sow dead, in the next yard but one to Mr. Bloodworth's - Mr. McKellar and the Soldier Faithfull were walking in the yard, I then heard Mr. Boston crying out what Rascal had shot his Hog without letting him know it - Mr. Laycock then spoke to the Soldier telling him the Plaintiff had called him a Rascal, and bade him give him a flogging - I then saw the Soldier strike Mr. Boston with a Gun - Mr. Laycock took the Musquet away - and then the Plaintiff and Defendant Faithfull had a Contrast together - Mrs. Boston then came and got her Husband away.

Question by Plaintiff. -Did you hear any body cry out knock him down with a Gun?

A. - No - I do not recollect.

Q. - Did you hear Mr. Laycock tell Eddy to thresh me?

A. - No.

Q. - How far was you off?

A. - About Forty Yards.

Question by Defendant McKellar. - Where was you when you heard Mr. Laycock tell the Soldier to beat the Plaintiff?

A. - In Mr Bloodworth's yard.

Q. - What word did Mr. Laycock make use of when he bade the Soldier beat Mr. Boston ?

A. - He bade him come down and give him a good threshing.

Q. - Did you see any Blows passed before Faithfull struck the Plaintiff with the Musquet?

A. - No I did not.

Q. - Had there been any Blows pass, you must have seen them?

A. - There might have been blows which I might not have seen.

Q. - With what Tone of Voice did Mr. Laycock tell the Defendant to thresh the Plaintiff?

A. - I cannot exactly say - he did not speak very loud.

Q. - Did he speak in the tone of People in common Conversation?

A. - Much louder.

Question by the Court. - What had Mr. Boston in his hand when he was struck?

A. - I did not see him have anything in his hand.

Q. - Did you see Collins there?

A. - No - I did not see any one in particular there.

Q. - How near was you to the Parties at this time?

A. - I was in Bloodworth's yard all the time.

Q. - Had Mr. Boston struck the Soldier before he received the Blow with the Musquet?

A. - I did not see him - I think I should have seen it if he had.

Q. - For what cause did the Soldier strike the Plaintiff?

A. - I suppose because he called him a Rascal.

Question by Plaintiff . - What distance was there between Faithfull and Laycock, when he called him to thresh me.

A. - Mr. Laycock stood at the bottom of the yard, and Faithfull halfway up.

EDWARD COLLINS, called in again by the Plaintiff was sworn: -

Question by Plaintiff . - Did you see Serjeant Whittle, Jamison and Hudson there?

A. - I saw Serjeant Whittle, Jamison and Ikin come there after you had been struck with the Piece; I saw Mr. Divine there.

THOMAS RUMBOLD, called by the Plaintiff was sworn: -

Question by Plaintiff. - Inform the Court what you saw of the Affair of the 29th of October.

A. - I was at Serjeant Ikin's, and saw a mob by Skirvings - Mrs. Boston ran out I saw Faithfull and the Plaintiff struggling - I heard Boston use the word Rascal, and heard Laycock say to Eaddy will you suffer a Soldier to be called a Rascal thresh him the Plaintiff; I saw several Blows pass, and some from Faithfull to Boston after Mrs. Boston had separated them.

Q. - Did you hear Mr. Laycock tell Eaddy to follow me and thresh me?

A. - I did - he said are you a Soldier and suffer yourself to be called a Rascal, run after him and thresh him, on which the Plaintiff ran away.

Q. - Did you see Serjts. Whittle, Jamison and Hudson there?

A. - I did not see Hudson there, I saw the other two.

Question by Defendant McKellar. - Did you hear the Plaintiff make use of any approbrious language calling the Soldiers thieves and Rascals?

A. - I heard Mr. Boston make use of the word Rascal, but do not exactly know who he applied it to.

Q. - Did you hear him use the word often?

A. - Only once - just when he was running away.

Question by the Court . - Did you see any Blows struck with the Musquet?

A. - No.

GEORGE CARMAN, called by Plaintiff, sworn: -

Question by Plaintiff. - Inform the Court what you know of the Affair on the 29th Octr. Last.

A. - I was close by the paling when the Pig was shot, I saw Faithfull there loading his piece a second time - there was three more pigs in the yard, then came Mr. McKellar, and he was followed by Mr. Laycock. - I then heard Mr. Boston coming in a great passion, saying what damned Rascal is that who has shot my Pig - Mr. Laycock then called to the Soldier, saying do you hear, this man calls you a Rascal, do you take that - give him a damned good threshing. On which the Soldier ran out with a piece in his hand, to beat the Plaintiff, and I saw him strike the Plaintiff with the Piece on his head, and the Ram Rod flew out, I saw this through the Paling - and knowing that the piece was loaded I was afraid some accident might happen, I then went away.

Q. -What kind of piece was it?

A. - A Musquet.

Q. - What was done to it by the Blow?

A. - It was crooked or bent, the man who had it to straighten, brought it to me.

Q. - Who repaired the piece?

A. - Thomas Hodges.

Q. - Did he tell you he was desired not to say he had repaired the piece?

A. - No.

Q. - What did the man say to you about it?

A. - He said he had it to straighten, it was bent.

Question by Defendant McKellar . - Where was the Soldier and Mr. Boston at the time, the former struck him?

A. - At the bottom of the yard, without the Gate.

Q. - Did you see him strike him?

A. - Yes.

Q. - Do you know if the Piece was bent by the Blow?

A. - Not of my own knowledge, I was told so by Hodges.

Q. - Were there any Blows struck between the parties before that with the Musquet?

A. - I am positive there were not - they were not in the same place together.

Q. - When did the Soldier lay down the Gun, which you say he took up to beat the Plaintiff?

A. - He put it down when he opened the Gate to let the Pigs out.

Q. - Did he let the Pigs out?

A. - Yes, after Mr. Laycock had told him not to shoot any more.

Q. - Can you shew the Person to whom Mr. Laycock addressed himself, when he bade him thresh Mr. Boston .

A. - Yes, - the Soldier nearest to me.

Q. - How do you know who Mr. Laycock spoke to - did he call him by name?

A. - No he did not.

Question by the Court. - Did you see the first blow struck and with what?

A.  - I did - and with the Musquet, I saw the Ram Rod fly out.

Q. - What effect had the Blow on the Plaintiff?

A. - I do not known - he sung out Murder.

Q. - You saw 3 Pigs in the Close besides the one that was shot - were they of inferior value?

A. - They were much smaller.

Q. - Was it a fine Sow that was killed?

A. - Yes, I saw the Pigs kicking in her as she was dying.

Question by Plaintiff. - Did you see the Musquet before it was repaired?

A. - No, I did not.

Question by Defendant McKellar . - If Faithfull struck Boston immediately on his coming to the Gate?

A. - Yes, immediately.

Q. - What effect had the Blow immediately on Mr. Boston ?

A. - He staggered but I do not know if he fell.

Question by Laycock . - Did you hear me tell the Soldier to strike with a Gun?

A. - No, I did not.

The Plaintiff, having no other Witnesses to call.

Serjt. Willm. Jamison was called on the part of the Defendants and sworn.

Q. - Relate to the Court what you saw of the Business of the 29th of October. A. - I was then in Serjt. Whittle's House and saw Boston coming along raving, he asked of 2 Soldiers where is the damned Rascal who has shot my Pig; - I know not what they said - but heard Boston say, "he would cut off his head by -" he then went towards Captain Foveaux's Garden - I then went out and had a view of Boston - I saw him strike Faithfull at the end of Captain Foveaux's Garden - he retreated and Faithfull followed and struck him with the Musquet - I heard Boston call out murder 2 or 3 times for the space of 2 minutes, I could not see him, for some paling - when I came up they had both hold of the Musquet. Boston struggling to get the Musquet from him, calling Faithfull in the meantime you damned Rascal Mr. McKellar interfered and endeavoured to take the Musquet away saying it was loaded - he could not. Mr. Laycock did - and at that Moment Boston struck Faithfull on the Nose and his face was all over Blood - they then fought with their Fists - Boston getting the better of Faithfull. Mrs Boston then came and interfered and was able to hold them both at arms length from fighting - she said to Boston , he demeaned himself for so doing - he made Answer my dear Mrs. Boston I fill myself very much hurt by a Parcel of Rascals - their Officers are no better -Mr. Laycock immediately said mind Sir what you say - Boston replied if you encourage it you are no better - Mr. Laycock turned about and said, are there any Soldiers taking notice of this - Eaddy was then proceeding to get to Boston - he then ran up the Ally which leads to Bloodworth's House - Mrs. Boston intercepted Eaddy catching hold of him by the Frill of the Shirt - Mr. Laycock then said he was a good enough in fellow, and deserved a licking - Mrs. Boston replied you are a pack of Thieves altogether. Upon the Oath I have taken I saw the Plaintiff strike the first Blow.

Question by Plant . - What distance was you from the Soldiers whom you saw me speak to?

A. - About 40 paces.

Q. - What distance was you from me?

A. - Half that quantity.

Q. - Where were the Soldiers when you saw me call after them?

A. - A little above the Road leading to the Barracks. - you was on the end of the bridge leading over a Spring.

Q. - Do you know for certain I call'd to the Soldiers?

A. - I do - I saw the Soldiers but paid more attention to you.

Q. - How do you know I call'd to them?

A. - You hailed to them there was not any other person present.

Q. - You have said that you was at Whittle's door - why did I not call to you instead of the Soldiers?

A. - You did not appear to be in a direction with me, but with the Soldier, who answered you.

Q. - At what place did the Affray happen?

A. - Near as possible to Captain Foveaux's Garden Gate.

Q. - Where was I running to when I came round exclaiming etc?

A. - You appeared to be going over the Bridge but made a full stop.

Q. - Had I any thing in my Hand to cutt a Man's head off?

A. - Not that I perceived.

Q. - How near was you to me when I struck Faithfull?

A. - About 40 Yards, there was to the best of my recollection 3 people present, one a Soldier.

Q. - Did Mr. Laycock meet me before I got down to the bottom of Fouveaux's garden?

A. - No.

Q. - Where did I go then?

A. - You went as far as Captain Foveaux's Garden Gate.

Q. - Did I go within?

A. - I cannot swear.

Q. - Where was Faithfull?

A. - In the Garden coming down.

Q. - How soon did I strike Faithfull after I came there?

A. - Not exceeding a Minute - after appearing to me to have some discourse with either Faithfull or Laycock - I did not hear the discourse.

Q. - How did you know it was a discourse?

A. - I heard you loud enough talking to either one or the other - you was talking loud enough to be heard distinctly 100 yards; You damned Rascal, you have shot my Pig.

Q. - Was I within or without the Gate when I struck Faithfull?

A. - I cannot say on my Oath.

Q. - Did you not hear Mr. Laycock tell Eaddy to thresh me?

A. - No.

Q. - What did he say?

A. - He turned his head over his shoulder, and said is not there any Soldier who takes notice of this etc.

Q. - Are you certain that Mr. Laycock did not tell Eaddy, and shoulder him asking him if he would suffer a Soldier to be called a Rascal.

A. - I am positive I did not hear such Language - there was a great Mob.

Q. - Did you hear Laycock tell Faithfull to thresh me?

A. - No I was too far off.

Q. - Did you come over the Bridge alone?

A. - Serjeant Ikon followed - I came alone.

On. by the Court . - How near was the Plaintiff to the 2 Soldiers ?

A. - About 60 Yards, they turned about and answered him; no other person was present, he was standing on the Bridge stamping and storming: when I saw the Blows I made haste to the Spot.

Q. - With what did the Plaintiff strike the Defendant the first Blow?

A. - A piece of Bamboo or a piece of Sugar Cane, which he broke over his head.

Q. - Had he anything in his hand when you saw him on the bridge?

A. - Nothing.

Q. - Did you lose sight of him from there until you saw the Blows?

A. - No.

Q. - Can you tell us how he came by this Piece of Bamboo?

A. - He tried as he went along to take up one of the Paling - he did not get any up, and cannot say how he came by the piece of Sugar Cane.

Q. - What had Faithfull in his hand when Boston struck him?

A. - The Musquet.

Q. - Did Faithfull immediately strike Boston on receiving his Blow?

A. - Mr. Boston retreated four or five paces and Faithfull followed and struck him.

Q. - On the Oath you have taken, the Plaintiff with the piece of Sugar Cane, in his hand struck the Defendant the Blow, who had a Musquet in his hand?

A - He did.

Q. - On what part did he hit him?

A. - On his head - I saw the wound - it bled.

Q. - Did you see that Plaintiff take a piece of Sugar Cane from any one?

A. - No.

JAMES BIGGS, called by the defendant, sworn: -

Q. - State to the Court the Circumstances which you saw on the 29th of October?

A. - I saw the Plaintiff coming along in a riotous manner - we met - I heard him call to a Soldier; Hollo you Soldier, where is the damned Villain of a Rascal who has shot my Pig; I told him it was shot in Captain Foveaux's Garden - he went thither - Mr. Laycock was at the Gate - the Plaintiff asked him where was the damned Villain of a Rascal who shot my Pig; Laycock called Faithfull who came - Mr. Boston asked him if he was the damned Rascal who shot his Pig - Faithfull said he was, why do you not keep him out of the Garden - he called Faithfull a damned Blackguard Rascal, he then drew back from him and clapped his hand on one of the Paling, but could not move it - he snatched a piece of Bamboo or Sugar Cane from a Man who was passing by, and running at Faithfull, struck him over the head - he drew back from Faithfull and Faithfull followed and struck him with his Musquet - he closed with Faithfull and attempted to get it from him, but was prevented by Mr. Laycock and McKellar who took it away saying it was loaded, Mrs. Boston came and separated them, keeping them at arms length - the Plaintiff abused the Defendant, saying d - his Soul, he would be revenged of the Soldier who shot his Pig - Mr. Laycock then asked if there was no Soldier present Eaddy said yes here is one - Mrs. Boston caught hold of Eaddy by the Shirt and tore it; when he got into the passage of Bloodworth's Garden, you said you are all a d - parcel of Rascals together.

Question by Plaintiff . - You saw me coming along, where was you at the time?

A. - Close by you.

Q. - Did Mr. Laycock call to any one when I asked who was the damned Rascal that shot my Sow?

A. - He called to Faithfull.

Q. - What did Mr. Laycock say to Faithfull?

A. - He told him there was a man who called him a damned Rascal - and nothing else - I came down with you.

Q. Who struck the first blow?

A. - Faithfull, he struck the first blow with the Musquet after he had been struck.

Q. - Where did I get the Sugar Came?

A. - You took it out of a Man's hand.

Q. - Who was present?

A. - Mr. Laycock and myself - I did not see any other - I paid attention to you.

Q. - Did the first blow happen within or without the Gate?

A. - You gave him the first blow upon the threshold of the Gate.

Q. - What time passed before I struck Faithfull from my coming to the spot?

A. - A Minute - you left the place after that you struck him.

Q. - Do you remember Mr. Laycock shouldering up Eaddy and telling him to thresh me?

A. - I heard no such word.

Q. - Did I leave the Gate immediately on striking Faithfull?

A. - Yes you drew back 3 paces into the Road.

Question by Ct . - When Mr. Boston asked Faithfull if he had shot his Sow where abouts was he?

A. - He was standing by the threshold of the Door.

Q. - Where was Faithfull?

A. - Within side of the Gate.

Q. - Did Mr. Boston look up the Garden when he spoke to him?

A. - Yes he did, he struck him with the Barrel of the Musquet.

SERJEANT THOMAS WHITTLE, called by the defendant - sworn: -

Q. - Relate to the Court what you know of the business of the 29th October?

A. - Serjeant Jamison was in my House - I saw the Plaintiff coming along asking who was the d - Rascal who had shot his Sow, he would be d- but he would cut his Head off - Serjeant Jamison and Ikon went out and I went with them, but returning for my Hat before I got to the place the business was over.

SERGEANT OBEDIAH IKIN, called for the Defendants, sworn: -

Q. - Relate what you know of this affair?

A. - I was at Whittle's - heard the report of a Musquet - looked out to see where it came from - heard a voice saying where is the d - Rascal who has shot my Pig - went out soon after I saw some people assembled at the bottom of Bloodworth's. The first I saw of Faithfull was when he was coming from where the Crowd was his face was very much covered with Blood - I asked him how he came by it, he said the Plaintiff had struck him with a stick nearly as thick as his wrist and had cut him in the forehead - I perceived a Cut under the Hair. The Plaintiff was within the Gate of the Close - Mrs. Boston was endeavouring to get him away.

Question by Plaintiff . - How long before you left Whittle's House did Jamison go out?

A. - About 5 or 6 Minutes. I did not leave Whittle's with Jamison.

Q. - At what time did you come to the Gate?

A. - At the time Mrs. Boston was entangled with you - at the time you was using the work Rascal.

Q. - Did Faithfull tell you I had given him a bloody nose?

A. - Yes the blood was rubbed all over his Face - the wound was bleeding.

Question by Deft. Laycock . - After I had said to Mr. Boston the Soldiers were neither Thieves or Rascals, when reply or gestures did Mr. Boston use?

A. - He held up his hand and replied they are Rascals.

HERBERT KEELING, called by the Defendants, sworn: -

Q. - When you gave information to the Plaintiff that his Pig was shot what answer did he give?

A. - I informed him it was shot in Captain Foveaux's Garden - his answer was then he would shoot him.

Question by Laycock, - what information did you give Mr. Boston respecting his Sow being shot?

A. - I informed him his Pig was shot in Captain Forveaux's Garden. I explained to him, hearing what he had said respecting Captain Forveaux that it was the Man who had the care of Captain Foveaux's Garden. I heard him say as he passed the Paling, where is the Rascal who shot my Sow.

Question from the Plaintiff. - Do you recollect what time Sergeants Jamison and Whittle came to the place?

A. - When I got there Mr. Boston and his Wife were turning into the Garden, I believe the Serjeants came there at the same time I know Ikin did - Ten Minutes elapsed from his coming round the Paling to my coming to the spot where the affray was, I observed Whittle and Jamison there rather above me, and Ikin had just crossed over.

The Evidence on the part of the Defendants here closed.

The Court was about to adjourn when the Plaintiff informed them James Biggs who gave his evidence after Serjeant Jamison, was seated without the place where the Court met, and within hearing of every word the Witness Jamison said.

The Court then adjourned until Eleven O'Clock on Tuesday the 29th Instant.

Tuesday, 29th December, 1795.

THE COURT met pursuant to their last Adjournment.

The Defendants requesting to call another Evidence - it was admitted.

GEORGE WILSON, was called in and sworn: -

Question by Deft. McKellar. -- Relate to the Court what you know of the transaction 29 Octr. Last?

A. - I was standing at the Corner of Herbert Keeling's Paling, about 3 or 4 O'Clock on that day - when I saw the Plaintiff strike the Defendant Faithfull with a stick - and afterwards saw Faithfull with a piece - I then left the place and saw nothing more.

Q. - Do you suppose it was a stick he struck him with from its appearance?

A. - It looked like one, but I was not positive, being too far off.

Question by Plaintiff . - At what part of the business did you come up?

A. - At the time you struck the Soldier with the stick - you were standing by the Soldier - almost by the side of Captain Forveaux's paling - it appeared like a stick I stood 60 or 70 yards from you, - a slight stick of 3 feet long. - Cannot say whether the Soldier had struck you before - you were standing 8 or 10 yards from Captain Forveaux's Gate, I do not know whether above or below the Gate.

Question by Court . - On the Oath you have taken, did you see the Plaintiff strike Faithfull a Blow with a stick previous to his receiving a Blow from him with a musquet?

A. - On the Oath I have taken, I did.

Q. - How long was you in coming from the Mill, to Keeling's paling?

A. - About 10 minutes.

Q. - Had the Soldier his hat on?

A. - I cannot say. I do not know whether any Blows had been given before the Plaintiff struck the Soldier.

THE PLAINTIFF here addressed the Court in the following Memorial: -

Memorial for John Boston.

The Memorialist, without affectation, is extremely sorry that upon an occasion of this kind, he should find it necessary to trouble this honorable Court.

The duty which he owes to his Family. and to himself, impose upon him this obligation - of the defendant Mr. Laycock he has no knowledge; he never was concerned with him in any transaction and he cannot possibly conceive how that Gentleman could form any malice against him, yet certain it is that Malice was formed at a very early period; In proof your honors are referred to a true Copy of the Correspondence herewith produced.

The Memorialist imagines that his Answer to what he must call very illiberal and unauthorised letter to Mr. Laycock. was neither unbecoming his Character as a peaceful Settler in this: in nor as a Gentleman; - to this correspondence the only one of the Kind, which ever existed with the Defendant, the Memorialist would not have alluded, if he did not think it afforded a key, to the transaction which is now the subject of investigation.

Relying upon the candor and justice of this Court, the Memorialist thinks it unnecessary to enter into minute detail of the proof;- he however thinks proper to state the following observations.

1st The Order of the Government undoubtedly was to empower the person injured, to shoot any Pigs trespassing upon his ground.

But it invested this power with no third party. The Officious interposition of another in which as he suffers no wrong could have no interest must be ascribed to the motives than to a regard for the law, and for the police of the Colony; - The correspondence above alluded to in Mr. Laycock unfold these Motives - In the case of the other Defendant Mr. McKellar they are not so obvious:- to the Memorialist they are absolutely unknown to him Mr. McKellar is an utter stranger. and perhaps upon this very account. his volunteering as an Auxiliary of Mr. Laycock enhances his guilt.

2dly. The Memorialist has admitted in Court, and now freely and frankly admits, that upon the first information of his Pig being shot, he uttered words of Passion. He puts the question to your Honors; was human nature in such circumstances culpable: were they uttered in presence of the Defendants; could they provoke their Passion - The proof presents the Answer; But the name of Captain Foveaeux has been introduced; Captain Foveaux is a party foreign to this cause, the proof therefore is inconclusive - but supposing it had been Captain Foveaux, or even any one of your Honors, these words uttered in the Moment of impression in the absence of the parties could not have justified the Assault.- With contempt the Memorialist has heard the Plea urged by the Defendants, that their Conduct was influenced by a jealous regard for the Honor of the Corps; what was the Honor of the Corps concerned in the pitiful dispute about the slaughter of a Pig, but to be serious can your Honours believe, that at that Moment the idea of the Corps entered the mind of the Defendants; he respects, he highly respects the honor of a Soldier, and he must be pardoned for asserting that when a petty fogging attempt to introduce that Honor in this Mode, is made something more than reprehension is due. - He respects the Honor of the Corps, and he believes no privates would have exposed themselves to the present situation of Messrs. Laycock and McKellar.

3dly. Attempts have been made to prove that the Witnesses for the Memorialist have perjured themselves, the candour and the good sense of your honours will perceive in these discrepancies if any such there be, the proof of their veracity. Have they erred in the great circumstances, have they contradicted themselves in proving that the first blow was given by the defendants; have they contradicted themselves in proving that the Memorialist was the person assaulted, not the assaulter, who can be accurate to admeasurement of paces, accuracy would imply the suspicion of a preconcerted story.- Humble as the Memorialist may be he is yet superior to the Defendants, and he will not plant his witnesses in contravention to the Order of the Court and to the laws of Justice to listen to each other's tale.

4thly. Since the term perjury has been brought forward the Memorialist with concern must recriminate the charge upon the witnesses of the Defendants, he appeals to the recollection, and he summons's the indignation of your honors; what was the testimony of Mr. Biggs in contradiction to every witness, this person in asserting that the Memorialist was the first aggressor confutes himself, the memorialist struck the first blow, first it was with a stalk of Indian Corn, secondly with a Sugar Cane, Thirdly, Mr. Faithfull was struck, and fourthly Mr. Faithfull himself was the first person who assaulted the Memorialist; 5thly That the Memorialist never left the field of action and 6thly that he did not leave it to go in quest of such hostile weapons as sugar canes and stalks of Indian Corn.

Perjury is a crime too serious for redicule, the miserable wretches who must answer to this charge demand pity. Superior guilt must hang over the heads of those, who have prompted them on the perdition of their souls.

To conclude, the Memorialist however much he regrets the occasion yet feels a satisfaction in having instituted this suit, The impartial, and the dignified conduct of your honours during the trial, have proved to the Colony, that justice is open to all, and that none are superior to the laws, with this idea he instituted the process, and having accomplished this object, whatever the determination may be, he remained satisfied in the conscientiousness of having discharged his duty, to himself, his family and his country.

JOHN BOSTON.

After which the Defendants requested the indulgence of a Day, which was granted them, to prepare their Reply.

George Legg was then brought before the Court at the suit of Edward Abbott Esqr. To answer to a Debt of Thirty seven pounds - the Plaintiff offering to give the Defendant a general release, on his paying him the Sum of Twenty pounds the Defendant stated he should be able to pay that Sum in a few Days. He was remanded to the Custody of the Provost Marshall.

The Court then adjourned until Eleven O'clock tomorrow the 30th instant.

Wednesday, 30th December 1795.

THE COURT met to its last adjournment.

THE PLAINTIFF addressed the Court and delivered the following Paper:-

Additional observations for John Boston.

The plaintiff rests satisfied, in the full conviction, that the investigation of truth, is the object of this Honorable Court: such likewise is that, which he with the utmost sincerity professes, he therefore will avoid all captious objections, to the admissibility of the Evidence, of George Wilson brought forward yesterday.- He will make no remarks upon the improper, not to say, suspicious conduct of the Defendants, introducing such testimony, after such a period of time had intervened from the assault to the commencement of the prosecution. from the commencement during the various stages of its pendency until the period, when after having made every enquiry, and after having called every weakness, and they could surmise to have had any knowledge of the transaction, they declared upon their part the proof to be finally concluded.

The Plaintiff is persuaded, that giving the utmost force, to the deposition of Wilson , however favourable it may be to the Defendants, it must be totally unavailing to Messrs. Laycock and McKellar before however he states his reasons for so thinking he must beg leave to make one or two observations, which induce him to imagine the testimony of this man can be of little service to any of them.

First it can be of little service to any of the Defendants, before it stands, stamped with the brand of perjury, upon its face, of perjury not conjectural, but real knot the consequences of argumentative deduction, but of occular inspection. - Your Honors will recollect that this man swears he was standing at the Corner of the Paling of Herbert Keeling's Garden, when he saw the Plaintiff at the Gate at the bottom of Captain Forveaux's enclosure, strike the Defendant Faithfull, will you be pleased to grant a Commission to any one or two persons, whom you may judge proper to inspect the local situation, and to report whither they think it possible, for a person placed where the Witness says he was, to behold the transaction, the plaintiff says it was physically impossible; - In what light then will your honors estimate the veracity of a man, whose testimony must contradict the senses of all, who have seen or shall see this spot of ground - It is necessary for the plaintiff to observe to your Honours, that in matters of much higher kind than the present dispute, falsehood has always been most victoriously refuted, when it has chosen to appeal to physical circumstances. The External senses of the men then determine, and not conjecture, which may be only the consequence of a preceeding illfounded supposition.

In the second place the plaintiff must observe , that altho there may be no direct contradiction, yet there is extreme improbability in the remaining part of the witness's deposition. To prove by who the first blow was given, was circumstances highly material; To prove this highly material circumstance after the defendants had declared all their Evidence exhausted, this witness was adduced Ingenuity seldom counterfeits truth with exactness, The witness saw the plaintiff give a blow, he saw no more, except the return by the Musket: Cross examined the Witness cannot declare whether the blow was the first blow which constituted the assault , or whether it might not have been the effect of self defence, in consequence of one proceeding form the Defendant Faithfull. - Four witnesses of veracity , Mr. Divine, Collins, Clerk, and Carman deposed the first blow was given by Faithfull; The deposition of this witness can in no respect contradict theirs. Biggs has sworn that the Assault commenced on the part of the Plaintiff, but the perjury of Biggs has been already remarked; with regard therefore to Jamison Little remains to be observed, his Deposition cannot surely support in contradiction to that of Five others unimpeached, the testimony of one so bearing in itself and so inconclusive.- There is another curious circumstance to be observed; Wilson merely saw the blow and that returned and saw no more. could no curiosity have prompted him to remain a Spectator of the further affray, must he merely turn his Eyes towards that particular point of it, and shut them to the rest. - It is not in human nature; It is not credible; It is not possible, and again he saw the blow struck 10 yards from the Gate of Captain Forveaux's Garden. he saw the Plaintiff. He saw the Defendant Faithfull, who saw the Gate at the same time. But did not know whether it was Ten yards within side the gate without side the gate, above the gate or below the gate. - It is impossible had he been so particular as to know to be 10 Yards from the Gate, he must have known in what direction he has sworn it was Ten yards from the gate; Jamison and Biggs have sworn it was upon the Threshold of the gate; but the Plaintiff doubts not he has proved to the satisfaction of this Honorable Court that no such circumstances ever happened. and that he was assaulted and not the assailant.

In the third place, give the utmost force to the testimony of Wilson . admit the Plaintiff to have been the assailant upon Faithfull, does this justify the Defendants Messrs. McKellar and Laycock. the first in driving the Plaintiff's pigs, up into a corner of Captain Forveaux's inclosure for the purpose of being shot at as a mark; and both in ordering armed Soldiers to murder an unarmed Individual; Let it be allowed as Officers and above all as Magistrates, they felt resentment, in seeing the Plaintiff become guilty of a breach of the Peace upon Faithfull, yet what should have been there Conduct, not to have made an Assault upon him, not to Order Soldiers to knock him down with loaded muskets, but to have arrested him and to have taken the proper steps to have brought him before this Honourable Court to have answered for his Conduct; Let the assault upon Mr. Faithfull be considered to have been as great and grievous as it possibly could have been can it justify aggravated by rank and by Office an Assault still more atrocious upon the part of the Defendants Messrs. Laycock and McKellar . Dismiss Mr. Faithfull from the prosecution. Let him bring an Action against the Plaintiff. Let the Plaintiff be amerciated in the highest damages, yet this little can avail the other Defendants , against them no verbal provocation is proved against them no real Injury is substantiated , as Officers, as bound by their characters as magistrates, to have preserved the peace every witness concurs in proving that they have been, its violators, Upon this great and comprehensive view of question, your honors will be convinced that the Defendants Messrs. Laycock and McKellar have little reason to triumph in the evidence of Wilson. Dismiss Faithfull from the Action, he was a poor subordinate agent, from him the plaintiff would scorn to receive command strikes with irresistible force against the other Defendants.

The Plaintiffs had put this branch of the Argument, in what he concedes to be the most luminous point of view, and has drawn from it the fairest conclusions.

With submission to the Court and to intrude the least possible upon their patience, he thought most proper, and most respectful last night to draw up his observations, upon the evidence of Wilson . And that Defendants have demanded time and have obtained leave to answer the Memorial which he presented yesterday. The present observations may perhaps preclude the necessity of any reply. to their answer. But if he should deem replying necessary he trusts from the Justice of the Court. He will receive the Indulgence.

The Plaintiff wishes to meeting investigation in every form: his Character, his future happiness in the Colony, and above all the happiness, the security, and the interest, of his family require it.

That full, fair, and free investigation is likewise the object of your honors he knows with truth. and in this he reposes with confidence.

JOHN BOSTON .

The defendant Neil McKellar then addressed the Court, and delivered in the following paper: -

When I first received information that a prosecution was commenced on the business now occupying the attention of this court and that I was amongst the number of persons accused, I felt concern, surprise, and indignation.- Concern, that it should appear I had submitted to see a Soldier so shamefully ill treated, with out pursuing some instant measure for the punishment of the Aggressor, - and surprise, and indignation. that so flagrant a Offender as the Plaintiff. Should be permitted triumphantly to come forward as an accuser.- The portion of astonishment however which then existed in my mind. has been since totally obliterated by the acuteness of my feelings at the very extraordinary conduct I have witnessed in this Trial towards me, and the persons with whom I am accused. The Plaintiffs first attempt is to prove by the evidence of Ellis, the Malice of Mr. Laycock, all he has sworn is, that a note was written to the Plaintiff by Mr. Laycock demanding the payment of a debt, due to one of his Servants; - how the simple act of demanding payment of a Debt, can by the most forced construction be tortured to imply malice, I cannot conceive, unless it is admitted, that it is malicious to demand Money from a Man, who you cannot but know, does not possess a single Shilling.- I should have considered this part of the accusation, and the evidence produced in support of each unworthy the smallest remark, did I not deem it necessary to notice, that its introduction drew both from the Plaintiff and Ellis, a direct and scandalous libel on the Governor of the Country at the time they alluded to, by declaring that the administration of Civil Justice was suspended.- It ought not however to excite surprise, that men should libel and defame every established and regular Government, whose boast and pride, is their design to subvert the Constitution of their Country.

It has been stated that Faithfull shot the Plaintiff's Pig without Authority, or cause for so doing.- and that he was the instrument of Mr. Laycock who is said to have incited him to this undertaking from malevolence and a desire of injuring the Plaintiff.- How different is the truth as substantiated by evidence: - we have proved that the Pig was shot because it was at large, unyoked, unringed, and in open contempt of the standing orders of the Government; that it was shot - not in malice - or in wantoness, not at the instigation of Mr. Laycock, but because it was amongst others destroying the property of Faithfull's Master; Fences or fastenings were no Security against the levelling practices of this animal, - practices, which I conclude are carefully and industriously inculcated in every part of the household of its Master.

The declaration states, after the altercation had commenced between the Plaintiff and Faithfull, that Faithfull advanced towards him to strike with the Musquet; - that the Plaintiff seeing this, seized from the hands of a bystander an Axe to defend himself,- in proof of this the two evidences Divine and Collins, have been produced, to swear that Faithfull did strike the first blow with the Musquet,- a third evidence on the part of the plaintiff, has positively sworn, that blows were given by Faithfull before he struck with the Musquet; - here is evident contradiction - yet is one not less false than the other - for they all absolutely perjured themselves.- and had I not been included in the prosecution, I would have testified it on oath- we have however fortunately the evidence of three persons in contradiction. - I must observe that the evidence (Divine) admits he stood at seventy three yards distance from the parties, yet he pretends to repeat the Conversation that passed between them; - It cannot be necessary for me, particularly to observe, on the equivocal manner that this evidence adopted, as I have no doubt but it has left a proper impression on your minds. - The other persons who have been produced in evidence on the part of the Plaintiff. are of a description that would be inadmissible in any Court of Justice in England and therefore I trust, and I expect that their tale will not be received with that degree of Credit - that measure of belief, with the evidence of a respectable Serjeant in the Army. I laid no stress on the evidence of the two Convicts Biggs and Wilson, in our favour because I have seen on this trial the danger of listening to a Convict.- I have heard every one of them on the Plaintiffs side, swearing to a certain and deliberate falsehood.

Serjeant Jamison has sworn that he clearly saw the Plaintiff Boston strike Faithfull first; he has declared that he heard him furiously swearing he would cut off the head of the person who shot his Pig - that he heard him call Faithfull a d - rascal, his whole Corps rogues and thieves and his Officers no better.

Mr. Laycock who had been drawn to the place by the discharge of eight Gun hearing those, threats all this abuse and seeing the Plaintiff strike Faithfull, was provoked, he admits to tell Faithfull, the Plaintiff deserved a threshing, and he was a full not to give it to him.

Had you Gentlemen, witnessed the insolence of the Plaintiff, or had you heard the abuse which he uttered, situated as Mr. Laycock was, you would not have given him to complain of what he has now complained, but you would, I am satisfied, have broke in his bones, and the provocation would have highly justified that Act.- I must beg to call your attention to the situation of Faithfull in this business - An order has been given by the Commander in Chief, that all Hogs,unyoked, and unringed, straying at large about the Town, were to be shot.- This order was considered as a Law, and no one who suffered by it.. ever had the temerity to resist its operation; - it was particularly addressed to the Soldiers. No Soldier therefore could pass a Hog in such Circumstances, without either destroying it, or subjecting himself to the Charge of contempt and disobedience.

Faithfull then in shooting this Hog, was only doing his duty, and obeying the Orders, not only of his Commanding Officer, but of the Chief Magistrate, and his situation may with proprietary, be likened to that of a Constable, or Peace Officer in England, would any Peace Officer who found himself interrupted in their Execution of a Magistrate's Order, or insulted for having executed them, hesitate to lay the offender at his feet. with his Staff, he is Mace, or whatever other Weapon his Office required him to carry; no he certainly would not - and the law would not only justify him for the Deed but in addition punish the person who had so interrupted or insulted him - If the Soldier then, is not to find an equal degree of support and protection in executing the Orders that are giving him in this Country. what a miserable situation are we reduce to. - we are worse circumstanced than the slave, the Convict, or the Rebel that we are sent to Guard, if we disobey our Orders we are subject to Military Punishment, if we obey them, and that obedience should give offence to any Vagabond adventurer, we are humbly to receive his abuse, or his blows, or if we resent, to submit to fine imprisonment or rebuke; this I solemnly trust is not our Lot. Nor cannot be what we are doomed to suffer - and the decision of this Day I humbly hope, will remove from our minds the dread of it, and by the example which will be set, prevent us from a repetition of the insults we have borne. - It has been asserted that we designed to create an invidious distinction between the Soldiers and the Civil inhabitants.- If it is meant that we intended to preserve a distinction between the loyal and determined supporters of their King, their Country and its laws - and the base and abandoned miscreants, whose secret purpose, is the destruction of the one, and the overthrow of the others.- then do I not hesitate to acknowledge it. - for, much should I lament ever to see a nearer connection between the Soldiers, and men like the Plaintiff, than may be supposed to exist betwixt Virtue and Vice;- Truth and Falsehood, for as opposite I know them to be in their principles, and I trust they will be found so in their practice.

I have said nothing of myself or Addy, because there is nothing alleged against us, where the remark, by either of the Evidences; It must therefore appear clearly to this Court that the Plaintiff could have no motive for including in this prosecution, either Addy or myself, but to deprive Mr. Laycock and Faithfull of the benefit of our testimony, which had I been at liberty to give, would have fully contradicted the evidence that has been produced in support of the prosecution. - Most cheerfully and most solemnly would I have called on almighty God to witness that I spoke the truth, in swearing that Boston struck the first blow, and that all the evidences who have sworn differently, having my belief, perjured themselves.- This dishonest artifice more powerfully establishes the Guilt of the Plaintiff than any observation on his Conduct that I have the ability to make; for had he been an innocent unoffending man, why resort to so knavish a Practice to suppress my evidence; His Conduct in so doing I am satisfied cannot escape your observation. and I doubt not but the consideration of it will have its due wait with you. In your decision.- I have but little to reply to the Plaintiffs observations on the evidence, for it would be to insult my own understanding to imagine his remarks such as they are can effect any change in your opinion.- I cannot however forbear to say, that the respect which this man has expressed towards the Corps, is more insulting to it than any abuse he could utter. - for a man who has publickly drink choose a Murder of his King. to the annihilation of the Constitution of his Country, cannot profess friendship to a Soldier without disgracing him.

NEIL MCKELLAR.

And in the name of the Defendants Laycock. Faithfull. and Addy.

The Plaintiff requested the indulgence of another day. to answer that Defendants. - the Court was cleared. and when the Plaintiff was again admitted he was informed that as every evidence had been gone thro' and remarked on by both Parties. and to replies being made by him. the Court could not see any advantage that might accrue in permitting him the indulgence of another Day. which they thought would instead of a listed taking the subject only be made that Vehicle of trespassing on the time of the Court for the purpose of Aerimony and Retort.

The Court was again cleared to deliberate upon the Verdict.

They found a Verdict for the Plaintiff against the Defendants Thomas Laycock and William Faithfull. and adjudging them to pay each to the Plaintiff the Sum of Twenty Shillings. A Verdict was found for the Defendants Neil McKellar and William Eaddy.

The court was opened and the Judgement pronounced by the Judge-Advocate in the following terms Vizt:-

The Court has taken a close investigation and accurate comparison of the evidence, adduced on both sides, Plaintiff and Defendants in this Action, and have found the weight to be in favor of the Plaintiffs so far as his Action respects the Defendants Laycock and Faithfull.

Nothing against the Defendants McKellar and Eaddy has been proved to the Court.

In apportioning the Damages, we have taken into Consideration the situation of the Parties and their Circumstances which attended the Assault.

The Plaintiff has acknowledged the existence of an Order to shoot all Hogs which should be found trespassing without Yokes or Rings - he must have known that so long as that Order remained unrepealed he was liable to the consequences of it. - he must also have known that his Hog could only have been shot in pursuance of that order, and therefore that whoever was the person. he had done nothing more than Act in Obedience to Authorised regulation on the Settlement, and ought to have bridled his Passion.

We know that the Military is a School of Honour , and that no term save that which brands him with the want of courage, can be more harsh in a Soldiers Ears than that of Rascal. - This however does not amount to a justification of the Assault, and it is the duty and province of Courts of Justice to protect from personal outrage all those who are in the Kings peace.

It does not appear that anyone ordered the Soldier to make use of a loaded Musquet, as a weapon to beat the Plaintiff with - that act is therefore wholly his own - but to tell a man who has been brought up in Habits of Obedience to the Orders of an Officer. to beat another. while he had the Musquet in his hand. was unguarded and unadvised.

The Court have therefore found a Verdict for the Plaintiff against the Defendants Laycock and Faithfull, and have adjudged them to pay each to the Plaintiff the Sum of Twenty Shillings.

After which the Defendant Faithfull signified his Resolution of appealing to the Governor.

The Defendant William Faithfull in the Action of John Boston. under a Conviction that he has in no instance acted contrary to Law, feels it but Justice to himself to protest against that part of the Sentence which relates to him, and to signify to this Court his intention of making an appeal from it, to His Excellency the Governor.

his

WILLIAM X. FAITHFULL

mark

The Court then broke up.

On the 5th of Jany. the following Appeal from the Judgement of the Court was Interposed.

Sydney , New South Wales ,

5 th Jany., 1796

The Memorial of William Faithfull. Private. in His Majesty's New South Wales Corps of Foot. to His Excellency Governor Hunter Commander in Chief. etc. etc. etc.

Your Memorialist humbly sheweth that in an Action commenced at the Suit of John Boston, a free Settler, a verdict has been given by the Civil Court of Judicature (composed of David Collins Esqr. George Johnston Esqr. And William Balmain Esqr.) Against your Memorialist, and the Sum of Twenty Shillings awarded as Damages.

Your Memorialist under a Conviction that the Civil Court in pronouncing such a Sentence, has neither exercise true Discretion, sound prudence, or been guided by the established Customs of the Law and Equity,- has availed himself of his right to protest against the decision made by that Court,- and humbly to appeal to your Excellency for the revision of the Sentence that has been uttered against him - and for that Justice - for which he has hitherto contended in vain.

Your Memorialist trusts, that an examination of the Trial will satisfy Your Excellency of the incompetency of the Evidence on the part of the prosecution. - that their contradiction of each other will fully establish their guilt. - and that a comparison of what they have sworn, with what has been produced in exculpation, will convince, that your Memorialist instead of being the aggressor, and deserving punishment. - was greatly ill treated, and meriting redress.

Your Excellency will instantly perceive, that the Prosecutor has included with your Memorialist, in his action Mr. Neil McKellar, and William Addy for no other purpose than to deprive him of the Advantage of their testimony. - which had they not been prevented from giving, would have incontrovertibly established that he was most grossly abused, and violently struck, before he lifted his hand against the Prosecutor.

Altho' your Memorialist entertains not a doubt, but that your Excellency will be satisfied of his innocence, and condemn the practice of the Prosecutor, in suppressing by such dishonest artifice the most respectable Evidence which he had to produce in his behalf - Yet will your Memorialist not confine himself to this alone, as the sole ground of his defence. - or as the only motive of his appeal from the Sentence of the Civil Court .

Your Memorialist humbly conceives, that in shooting the Pig of the Prosecutor he was acting in immediate obedience of the Orders of the Government. - that when executing this, or any other Order of the Commander in Chief, his situation is similar to that of a Peace Officer in England, when obeying the orders of a Magistrate.- It has been admitted by the Prosecutor that he called your Memorialist a "d - rascal" and uttered other violent words in great passion, merely because his Pig was destroyed. - and without other provocation.

Your Memorialist therefore humbly contends, that a Peace Officer in England would without hesitation, if called a d - Rascal for executing his Orders, have levelled the insulting Offender at his feet.- that the Peace Officer in so doing would not only, be justified in the Eye of the Law but would have it at his option still more severely to punish the Culprit both by fine and imprisonment.

Your Memorialist therefore most humbly trusts that as his duty was literally the same as that of the Peace Officer. he will be considered as entitled to an equal degree of support and protection; - that the Convict, all men of such turbulent and unquiet dispositions as the Prosecutor, will not be encouraged to repeat their insults by a Confirmation of a Sentence, which certainly casts the Soldier out of the Protection of those very Laws he is ordered to execute, and of which, in this Country, he is in a great measure the Guardian.

With the most perfect confidence in the exemplary and known justice of your Excellency, I appeal for a re-version of the Sentence of the Civil Court of Judicature - whatever may be your decision, it will carry with it too much respectability to admit of a doubt of its propriety; and your Memorialist trusts if he shall be found to be ignorant of the Law - that he will at least prove, he knows the first duty of a Soldier, you silently and respectfully to obey.

his

WILLIAM X. FAITHFULL

mark.

By His Excellency John Hunter. Esqr. Captain General and Governor in Chief in and over His Majesty's Territory of New South Wales and its Dependencies etc. etc. etc.

To the Provost Marshal and his Deputy of the Territory of New South Wales .

It being provided in the Letters Patent for establishing the Court of Civil Judicature in the Territory of New South Wales, that if either party shall find him or themselves aggrieved by any Judgement or decree to be given or pronounced by the said Court, he or they may appeal to the Governor of the Eastern Coast of New South Wales.

And whereas in the Suit pending before the Civil Court of Judicature, held at Sydney, upon the 3d, 7 th , 8 th , 11 th , 15 th , 29 th and 30 th days of december last, between the parties John Boston. Plaintiff. and Thomas Laycock; Neil McKellar --- William Faithfull and William Addy Defendants, an Appeal upon the part of the said William Faithfull from the Judgement of the said Court pronounced upon the said 30th day of December last, has been laid before me - This is to command you to summons the said John Boston, to appear on Monday next the 11th of this Instant Month of January at the hour of Eleven O'clock in the forenoon, before me to hear the said suit determined - and in the meantime to lodge answers in writing to the reasons of Appeal between this and that date; This you are to do by serving without delay a true copy of the said appeal, an Execution of which you are to return.

Hearin fail you not at your Peril.

Given under my Hand, and Steel, at Sydney in the County aforesaid, this Seventh Day of January in the year of our Lord, One thousand seven hundred and ninety six.

JNO. HUNTER

 

I Henry Brewer Provost Marshal of the Territory of New South Wales served upon John Boston free Settler in Sydney Plaintiff a true copy of the reasons of appeal of William Faithfull Defendant from a sentence of the Civil Court of Judicature between the hours of Ten and Eleven of the Clock this 5th day of January 1796, in obedience of the above summons.

HENRY BREWER.

Witness JAMES ELLIS, JAMES KENNEDY.

By His Excellency John Hunter Esqr. Captain General and Governor in Chief in and over His Majesty's Territory of New South Wales and its Dependencies etc. etc. etc.

To the Provost Marshal and his Deputy of the Territory of New South Wales .

Whereas in the suit pending before the Court of Civil Judicature held at Sydney on the 3d, 7 th , 8 th , 11 th , 15 th , 29 th and 30 th days of December between the parties John Boston Plaintiff, and Thomas Laycock, Neil McKellar, William Faithfull and William Addy Defendants, an appeal upon the part of the said William Faithfull one of the Defendants aforesaid, from the Judgement of the said Court pronounced upon the said 30th Day of December last, has been laid before me; this is to command you to summons the said William Faithfull to appear on Monday next the 11th of this Instant Month of January at the Hour of Eleven O'Clock in the forenoon before me to hear the said suit determined.

Hearin fail you not at your peril.

Given under my Hand and Seal at Sydney in the Country aforesaid, this Seventh Day of January, in the year of Out Lord One thousand seven hundred and ninety six.

JNO. HUNTER.

Sydney , 11th January, 1796.

PROCEEDINGS had before the Superior Court of Civil Jurisdiction in the appeal of William Faithfull against the Verdict of the Inferior Court in the Cause wherein John Boston was Plaintiff. Thomas Laycock and others defendants.

Present: -- His Excellency John Hunter Esqr. Captain General and Governor in Chief.

The Appellant and Respondents being present in Court the Appeal was read.

The Governor then addressed the Appellant.

This memorial is an appeal from the Verdict found by the Court before which tried the cause between Mr. John Boston Plaintiff and Mr. Thomas Laycock, Mr Neil McKellar, William Faithfull, and William Eaddy all of the New South Wales corps defendants.

The language of this part of the Memorial is in mind Judgement extremely indecent and not consistent with that respect which is due to a Court of Law and Justice; - Its Members are here directly accused of not having been governed in their proceedings by true discretion, sound prudence, or been guided by the established customs of Law and Equity; these accusations I conceive to be of a serious nature and a direct content to that Court, which I think would scarcely have been allowed to pass unnoticed in any Court of law in Great Britain; the Members of that Court are not however disposed to pay any attention to this mark of Contempt from the person whose Memorial it is, I have therefore Judged it necessary to remark it, it would in my opinion have answered every end the Memorialist could have had in view to have declared that his mind was not satisfied with the Verdict found by that Court, assigning in the language of moderation. his reasons for claiming his right of appeal in from the Sentence to a higher Court.

I am next led to take some notice of what the appellant observes respecting the situation of a Soldier here - He says that a confirmation of the Verdict found by the Court before which this cause has been tried, does certainly cast the Soldier out of the Protection of those very laws he is ordered to execute, and of which in this Country, he is in a great measure the guardian. By this declaration of the appellant it appears that he has intirely misunderstood the case in which he is so materially concerned, he seems to believe that the damages awarded to the Plaintiff was meant by the Court as an indemnification for the loss of his Sow; It is a pity that he should not have been in this particular set right by some of his friends who knew better; In shooting the Sow circumstanced as she has been described to have been without Ring or Yoke he considered himself as executing an Order at that time existing in the Settlement, and has not therefore been cast in damages for doing what he conceived to be his duty - The prosecution is founded upon a supposed assault, and not for the loss of the Sow, how far that assault has been proved I have yet to give my opinion. In the meantime I had to observe upon the Soldier feeling himself cast from under the protection of the law by a Confirmation of the Verdicts already given, that this opinion of the appellant is founded in total ignorance of the British Constitution and laws, because the Soldier ought to know, that he is as much and as safely under the protection of the laws by which we are Governed in this Country as any man or description of Men within its limits, and altho' , the Soldiers as well as the Seamen in His Majesty's Service are subject in their respective Characters as Soldiers and Seaman to Martial law, they are nevertheless amenable to the Civil Power in all matters Cognizable by that power - no man within this Colony can be out of the power or lose the protection of the Laws under which we live, from the meanest of His Majesty's subjects up to the Commander in Chief or first Magistrate, we are all equally amenable to, and protected by the laws.

I hope and trust most confidently that the Civil Power will be found at all times in this as in our Mother Country to have the Energy sufficient for the protection of the Person and property of all who reside within this part of His Majesty's dominions.

Ever since I could read or could think I have admired the wisdom with which British laws have been framed; Under those laws we leave, and I trust they will be ever found equal to the purpose of the most perfect Justice.

The appellant refers in his memorial to the situation of a Peace Office upon duty, and says with some appearance of Confidence, that he conceived his situation at the time he alludes to was a Similar one; this opinion of the Appellant can scarcely require any observation from me, it is so extremely absurd to suppose that a Man with Fire Arms in his hand can possibly be considered under a British Governments as a Peace Officer --- the other badge of his Office, and if arms are considered necessary for preserving the Peace, he then applies for the aid of the Military who are upon such occasions to be directed by him.

I have said so much on the language and opinions held forth in this Memorial; merely to undeceive the Appellant in some of his Ideas of right and Wrong.

JNO. HUNTER.

I am now to hear the respondent's answers.

On His Excellency's concluding, the following answers to the Appeal of William Faithfull were interposed by the Respondent.

When the Respondent instituted this Action, his object was to vindicate the Public Justice of the Colony, to impress the Conviction that the Laws were equal to all, and that no rank in life could by impunity justify their violation.

This object in the Sentence is now under the review of your Excellency was fully accomplished: - Its consequences became important as they presented to the most humble, and the most friendless, the Idea of a well guarded security.

The decision of the Court of Civil Judicature according, the respondent presumes to say, with the feelings of good men impartial in its principle, and dignified in its expression, has been stigmatised by the appellant as neither exercising true discretion, sound prudence, or being guided by the established custom of law or equity; the respondent disclaimed as the arrogance of assuming the character of the Advocate of the Court; that Court stands too high either to be affected by the Appellant's invective, or to require the aid of the respondent's defence: - In these answers the respondent will confine himself to very few observations; - In the course of proceedings the Appellant has drawn a line of distinction between the witnesses adduced on either side, to his own he can finance in all the respectability and all the credibility, and in language surely not dictated by the sentiments of humanity, has insulted misfortune; because the major number of the respondents witnesses may be convicts, they are not to be heard, and if heard, not to be believed.

Will the appellant reflect for a moment upon the situation in which she stands upon those, with whom he is surrounded, with whom he must have continual intercourse, and without whose concurrence the detail of life could not be transacted.

If the testimony of convicts is to be rejected, the Civil and Criminal administration of the Colony must be suspended, necessity imposes their claim to admissibility, the circumstances which are to determine the credibility not of them alone, but of witnesses of every description, reside in the bosom of the Judge - necessity in the present instance acts in no respect in opposition to the common law of the land.

It is not the punishment but the crime, not the effect but the cause, which incapacitates a man from delivering his testimony in a Court of Justice - the respondent asserting the competency of his Witnesses to be heard. is entitled to demand to their evidence the most entire credit; their language is simple and uniform, consistent in all its parts, and mutually supporting and supported; their collective voice proves with irresistible force, to material articles - first that the verbal injury, the opprobrious proceeded not from the respondent, Devine, Collins, Clerk, Carman, and Turner. prove that the term rascal was merely used in a hypothetical sence, without any individual application:- who was the rascal that shot my sow, and I call him a rascal who shot it, are the only words proved to have been uttered in the hearing of Faithfull, previously to the blow with the Musquet.

If words of Passion are then to justify retaliation by a blow the plea even in this point of view cannot avail the appellant; --- But the respondent contends in the second place that his proof is equal by convincing to substantiate what is more material, the first blow being struck by the appellant.

It is an established rule, for the existence of society prescribes it in the law of every civilised country, that no verbal injury can justify a real assault, and should a Peace Officer in return for approbrious language commits a real assault, he would be more culpable than any other person in breaking the Peace, which it is his duty to protect and keep, if it were otherways the consequences would be most horrible; - no Standard can estimate the feelings of men smarting under contumelious reproaches.

Every man would claim to himself the application of that standard, and society would be stained with daily bloodshed. But the case of the Appellant is peculiarly unfavourable, when a blow has been struck, the law upon account of the provocation may excuse the return, but at the same time the law jealously appreciates the proportion and the instrument: - if the respondent had struck the Appellant with a Piece of Sugar Cane, he never could have been defended, for using in return an Instrument so far beyond, every Idea of comparison, as a loaded Musquet. - If death had been the consequence, and what was more probable, the appelland must have answered to the charge of Murder.

A new and curious doctrine has been broached by the Appellant that in this Colony he stands precisely in the situation of a Peace Office in England , his Musquet his staff of Office and his privilege, to level the insulting Offender who may have called him a Rascal, at his feet.

The appellant a Peace Office; who invested him with this Character, by what act has he been recognized by the Civil Authority.

The Appellant is a Soldier as such he is under the express control of the Civil Power, and he must be taught that an interference in the Civil Administration without the express and special command of the Civil Magistrate, is a breach of what are deemed the most constitutional laws of Britain, must involve him in crimes of no inferior guilt, and must subject him to superior punishment.

He has presumed to tell your Excellency that he acted by the command of a Superior Officer, and in a strain of triumph. he concludes his appeal by proclaiming that he will at least prove he knows that Duty of a Soldier is silently and respectfully to obey.

Never were the walls of a Court of Justice, polluted with a position so horrible; - in charity it is believed that Appellant has not weighed the full import of his Principle - no authority, Civil or Military, can justify a crime. Aware of this, that very Officer who commanded the Assault has at least, in a mode becoming and respectful, acquiesed in the censure of the Court, limited as the scope of the respondents reading, may be he yet can remember, the Officer who commanded the Guard upon Charles the 1st. pleading the order of the then acknowledged Civil Authority of the Country. and that plea, upon the principle now laid down, over ruled.

The Appellant has recourse to another ground, the dissenting from the judgement of the Court.

He pleads that public Order issued by Major Grose, that Order is in the following words.

"Head Quarters July 17, 1793.

"All hogs seen in the Streets, that are not yoked, and have not rings in their noses, are ordered to be shot."

Feeling too high a respect for your Excellency's Character and disdaining as much as any man possibly can do, the appearance of a quibble, the respondent must be pardoned for making upon this Order one observation, which appears to claim some degree of force; - This Order is then merely and Act of Police;- it extends to a nuisance upon the public Streets, but not for what removed from them, may yet implicate considerable individual damage.

In this latter case the person aggrieved is left to his own remedy; the common operation of the law takes place, and the public force is not armed to revenge is wrong.

In the former case the public is alone aggrieved, every member of the Community, Convict, Soldier, and Settler is invested with the power of destroying the common nuisance; - it is presumed that for this reason, such a violent mode was adopted as that of shooting these animals; from their running about, no individual could specify particular damage, but it is otherwise when they enter into a Close, and destroy his property, the damage can then be accurately enough ascertained, and the detention of the animal, is the best security for its reputation; - the Order then of Lieutenant Governor Grose cannot justify the Defendant in shooting that Sow; and in all probability may not exempt him from restoring its full value in some future prosecution.

The respondent must further observe, that every order of a penal nature, whether it effects a man's person or his property must be strictly and severely interpreted; - the common principal of law never permits a constructive extension.

The respondents Sow under the Order could have been shot upon the Streets but nowhere else; and it is confessed the animal was not upon the Streets when it was killed; indeed if the strictest interpretation was not to be adopted, most mischievous consequences might follow; a thousand artifices for many purposes might be employed to decoy these animals in such a situation, and the prospect of impunity would be rendered more certain.

The respondent will conclude by making a few observations upon the exculpatory proof, offered for the Appellant. of that proof there was little need for speaking in terms so pompous.

Perjury is a charge serious and heavy, and however strong his suspicions might be, unless they amounted to indisputable, certainty, no motive could induce the respondent to exhibit it against any witness - He hopes the candour of your Excellency will find him free from blame, when he asserts the exculpatory proof, for the appellant, labours under difficulties which no mean ingenuity can remove.

The testimony of Jamieson is in direct opposition to the full and unequivocal evidence of five witnesses and received little support or respectability from the deposition of Biggs or Wilson: - is Jamieson to be credited. when he swears in opposition to Divine, Collins, Clerk, Turner and Carman that the respondent gave the first blow with a Sugar Cane; Collins the person from whom the respondent received the Sugar Cane, swears pointedly and positively, that it was returned back to him, before the Appellant struck the blow with the Musquet, or wonderful that Serjeant Jamieson so late in coming and at such a distance from the field of action could perceive what none else could discover, who were present at the affray, from the commencement, and in immediate contact with the parties; the same person swears to language which the respondent declares he never uttered, and which those who were the spectators of the whole action never heard.

But Mr. Biggs is called upon, to support the Testimony of the Serjeant, Mr. Biggs who contrary to the Order of the Court planted himself in secret anxiously to hear that Deposition of Serjeant Jamieson, for purposes to himself best known, faithfully to commit it to his Memory; yet even that memory recently assisted as it was, seemed upon the cross examination to play a treacherous part, and to have seduced him into danger; - the manner in which Biggs answered the question, who struck the first blow, will be long remembered by the Court, and by the spectators; It was Faithfull he answered - he paused and his precipitancy struck upon his mind, and with wonderful address he extricated himself from the contradiction. It was Faithful after he had been struck with the Sugar Cane. - Wilson leads up the rear of the supporters of Jamieson's veracity, Wilson whose perjury, nor does the respondent shrink from the term, stands demonstrated by physical evidence, who swears that he was a spectator of the affray in a situation which precluded the remotest possibility.

Is your Excellency then to reverse the Sentence of the Court, pronounced upon ample deliberations, and founded upon the depositions of five unexceptionable, and unequivocating evidences.

Are Messrs. Jamieson, Biggs, and Wilson, to stigmatise five men against whom the appearance of contradiction, cannot be insinuated, with a violation of their Oath.

The Appellant complains that the respondent by including Messrs. McKellar and Addy, as parties have deprived him of their Testimony as Witnesses.

The respondent solemnly affirms, that if he knows himself, he is utterly incapable of an artifice, so mean and so dishonourable;- he considers Messrs. McKellar and Addy to have been parties to the assault, and as such accused them; - The Court has dismissed them from the accusation, and he acquiesces in that Sentence, with respectful Silence.

The respondent regrets, and will ever regret the cause which occasioned so much trouble to the Magistrates of this Colony.

The imperious call of duty to himself and his family, and the community, oblige him to prefer his complaint, silence would have provoked a repetition of the injury. Its consequences might not have been confined to himself alone, but by encouraging licentiousness upon the one hand, and removing the hopes of redress, upon the other, Impressed the idea of general insecurity, extinguished public spirit, and impede the progress of public industry.

Whatever the final result of this suit may be, one great and salutary lesson has been inculcated; that no rank can afford a protection for crimes, and that none are so humble as to claim in vain the justice of the laws.

He was anxiously avoided as much as he possibly could any notice of the proceedings of the Appellant and has associates before the original Court.

He has anxiously avoided as much as he possibly could any notice of the proceedings of the Appellant and has associates before the original Court.

In the proper place they will claim a serious attention, as he solemnly pledges himself to institute and prosecute with perseverance, which can only be allayed by a final termination, a criminal charge, founded upon the week and wicked, but atrocious calumnies which they contain.

The respondent concludes, by deploring the extensive litigation from a cause so trifling, in which he is now involved, contention can afford him no pleasure.

He trusts that he is known, to those whom opinion he venerates, and he perhaps flatters himself with no deceitful idea, that they are convinced the circumstances of the present moment embitter those Days which should have been devoted to other objects and to other pursuits.

JOHN BOSTON.

THE GOVERNOR then delivered his Opinion in the following words: -

It is quite unnecessary for me to make any observation on the argument urged in this reply, my Judgement in the Cause being all that is now wanting.

After a careful and most serious investigation of the minutes of the Court of Civil Judicature, before whom the Cause between Mr. John Boston, plaintiff, and Mr. Thomas Laycock, Mr. Neil McKellar, William Faithfull, and William Eaddy, all of the New South Wales Corps, defendants, has been tried, and the decision of the Court in that cause, from which decision William Faithfull, one of the defendants, has claimed his right of appeal to a higher Court. I am come here to give my final opinion upon that cause - a cause which I conceive to be of considerable importance to an Infant Colony.

I have already said, in my observations upon the language and opinions held forth in the Appeal, all that I conceived necessary to impress upon the minds of those who may have been present a due respect of those laws by which everyone in this Colony is protected in his person and property, and to satisfy all who, altho' residing here at present, may hereafter live in some other part of His Majesty's dominions, that however distant from the Mother Country, they are nevertheless under the protection of the British laws, and they, whatever may be their rank or profession, amenable to them.

I have not lightly passed over or carelessly pursued the minutes of the Court in this cause, but I have considered in the most serious manner the very solemn Oath which I took before I entered upon the duties of my Office in this Country that I wou'd see, to the best of my Judgement, the most perfect Justice administered to all His Majesty's Subjects, residing within this Territory - by that Oath I am now to be governed, and by the different Evidence I am to be led to the truth; were my knowledge of law equal to my desire of Justice, and my powers of Eloquence equal to my love of truth, and I were at this moment so situated as to have occasion to give my Opinion to a Jury who were to decide in this cause, I should have much to say, much to remark, on some part of the Evidence given upon this occasion.

But, as I stand here, forming a complete Court in my own person - a situation which, I confess, I do not envy, but from which as a part of my duty I will never shrink, taking Justice for my object and conscience for my guide - I have only, therefore, to satisfy my own mind how far the Verdict appeal'd from has been a just one - it will on that account be wholly unnecessary in me to make any remarks upon the Evidence, but to come at once to the point of decision, which I do by declaring that, in my Judgement, the assault complained of has been fully proved, and that I do not only confirm the Verdict already found by the Court in which this cause was tried, but I must add that I have thought it a lenient one.

JNO. HUNTER.

Note

[1] See also 8-30 December 1795, State Records NSW, 2/8147; Historical Records NSW, Vol. 2, 399; HRNSW, Vol. 3,87-89.

This is one of the most important court decisions before 1800. Was NSW merely a prison, controlled by the military? Was it a place of law, in which everyone, soldiers included, was subject to the same basic law? Behind those questions was the challenge posed to the military by the independent figure of John Boston. See Bruce Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict NSW, Federation Press, 1996, ch 2; T.G. Parsons, "Was John Boston' s Pig a Political Martyr? The Reaction to Popular Radicalism in Early New South Wales" (1985) 71 Journal of the Royal Australian Historical Society 163.

Published by the Division of Law, Macquarie University