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

R. v. Marshall [1801] NSWKR 1; [1801] NSWSupC 1

assault - criminal procedure, directions to re-open case - judicial competency

Court of Criminal Judicature

Atkins J.A., 29 and 31 July, 1 August 1801

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb 1801 to Dec 1808, State Records N.S.W., 5/1149 [1]

[23] ...Proceedings of a Court of Criminal Judicature held by virtue of a Precept under the hand and seal of his Excellency Philip Gidley King esq., Governor and Captain General in and over his Majesty's territory of New South Wales and its dependencies etc. etc. etc.

Present: the Judge Advocate.

Members: Lieutenant Colonel Patterson New South Wales Corps

Lieutenant Grant, Royal Navy

            Captain John Piper

            Captain Neil McKeller

            Lieutenant Thomas Davis

            Ensign Hugh Piper.

            The Precept being read and the court sworn, Mr Marshall objecting to the competency of the court, the court was cleared when it was resolved to proceed on the trial of the said James Marshall.

            Mr Marshall having objected to one of the members, Captain McKeller, for shewing as he asserts an improper warmth when the above objection was made, the court overrules it as Captain McKeller only expressed his disapprobation to Lieutenant Marshall's denying the competency of the court.

            The indictment being read no 1. The prisoner pleaded not guilty when Edward Abbott esq. being duly sworn deposes [24] read the paper no. 1 and called...

[The next 14 pages consist of witnesses giving similar evidence in relation to the first count of assault on Captain Abbott. That is, Marshall struck Abbott with a cane and the mark left a bruise.]

[39] ... Lieutenant Marshall objecting to the competency of the court it was ordered to be cleared when the court were of the opinion that agreeable to the charter they should proceed to trial.

            Lieutenant Marshall objects to Captain McKellar on the same grounds as stated in the prosecution of Captain Abbott; overruled. He likewise objects to Lieutenant Davis for having made use of opprobrious language concerning him on board the Harrington some other place some days previous to this trial. The objection overruled.

            The indictment no. 2 being read.

            John McArthur esq. being sworn opened his prosecution by an introductory speech in which making use of some language that the prisoner thought tended to prejudice the minds of the court and audience objected it. The court was cleared when they were of opinion that Captain McArthur should proceed but avoid any expression that might tend to that effect.

            John McArthur esq. delivered into court no. 6. and called James Tennent esq., who being sworn deposes that he met Captain McArthur somewhere in the neighbourhood when Captain [40] McArthur addressed me by observing this was a very disagreeable business. On demanding an explanation he informed me of a report in circulation respecting Lieutenant Marshall having appropriated or rather exchanged some articles belonging to Lieutenant Crawford for others not equally good of his own. That as court officer of the Corps and consequently executor of the deceased, he was obliged to bring it forward. I expressed my total ignorance of the transaction. While we were there speaking Lieutenant Marshall came up, when the conversation respecting that business became general or at least commenced between Captain McArthur and Lieutenant Marshall. From what passed I already observed that some communication had taken place between those gentlemen, either by writing or by Captain McArthur calling Lieutenant Marshall but cannot say which. In doing which Captain McArthur said that he had acted a friendly part as one brother officer would do to another in acquainting him with the reports that were in high circulation through the colony, but that now it would be necessary to investigate the business in his official capacity. Lieutenant Marshall denied the intention of doing [41] any thing improper and Captain McArthur observed that there were strong corroborative proofs, and the servant had declared that his master Lieutenant Marshall had ordered him to charge the gun. Some more conversation took place when Captain McArthur turned away and commenced a conversation on another subject with me apparently to avoid Lieutenant Marshall. Captain McArthur and myself walked towards Nicholls' house, went into it and continued our conversation on indifferent subjects.

            Questioned by prosecutor. Do you not recollect that I observed to you I had called on Lieutenant Marshall to inform him of reports in circulation?

            Answer. I think he said you had called on him.

            2. Do you recollect my informing you that I had heard other property besides the gun had been withheld?

            Answer. I do.

            3. Do you recollect my assigning that as a reason why I should be obliged to make further enquiries concerning it that I otherwise should be inclined to do?

            Answer. To the best of my recollection Captain McArthur assigned as a reason for being obliged to investigate the business more strictly than he felt inclined to do [42] in his situation as court officer which imposed upon him the duty of executor of the deceased.

            4. Do you recollect on my turning away from Lieutenant Marshall I assigned as a reason that I was engaged?

            Answer. On Mr Marshall desiring Captain McArthur to send for the servant, Captain McArthur then observed that he was then engaged.

            5. Did you not consider this as a civil excuse for delivering any further conversation with Lieutenant Marshall?

            Answer. I considered it as a wish to shew Lieutenant Marshall.

            6. Do you recollect after outgoing into Nicholls' house Lieutenant Marshall joining us?

            Answer. I think he did.

            7. Do you not recollect Lieutenant Marshall resuming the conversation respecting the application to his own use of Crawford's effect?

            Answer. I think the conversation was resumed but cannot recollect what passed.

            8. Have you no recollection of Lieutenant Marshall requesting me to write him a letter in which I should state the reports then in circulation?

            Answer. I do not recollect such a request but cannot say when it passed.

            9. Do you recollect my refusing so to do and stating as a reason that having recovered Lieutenant Crawford's property, he had no further intent on the subject?

            [43] Answer. I do not recollect Captain McArthur's declining to write but cannot recollect the reason assigned for such refusal.

            10. Do you recollect Lieutenant Marshall urging me more strongly to write to him on the subject?

            Answer. Lieutenant Marshall asked Captain McArthur two or three times to write to him.

            11. Do you not recollect my telling Lieutenant Marshall that it would be better for him to tell his own story, that he could do it in softer terms, for that he could only repeat the reports then current which were very harsh.

            Answer. I recollect Captain McArthur speaking about the harsh reports then around.

            12. Do you recollect joining in opinion with Lieutenant Marshall that I should write?

            Answer. I do not think I did, cannot recollect it.

            13. Do you recollect that in the course of the conversation that happened that day between me and Lieutenant Marshall I said that it was unfortunate that he had exchanged the counterpane from Lieutenant Crawford's bed for a horse rug as it tended to corroborate the proof that he had exchanged the gun also by design?

            Answer. I do recollect something to that effect.

            [44] 14. Do you recollect Lieutenant Marshall saying that he had exchanged the counterpane to pay himself debt?

            Answer. I recollect Lieutenant Marshall saying that there was some debt between him and Lieutenant Crawford. He did not deny having exchanged the counterpane for the rug, he said they had frequently agreed on the passage that the survivor should take all.

            15. Did I not immediately observe to be lamented that Lieutenant Marshall that when this business was first mentioned to you did not assign that as a reason and that you cannot pose it now?

            Answer. You said something to that effect to the best of my recollection.

            16. From the time of the decease of Lieutenant Crawford to the instant you are now speaking of did you ever hear of this claim before?

            Answer. Never.

            17. Did not you hear Lieutenant Marshall say on the 23rd instant after he had struck Captain Abbott that he would treat me in the same manner?

            Answer. I heard Captain McArthur's name mentioned but cannot say what it was but believed it was of a threatening nature.

            18. What reason have you to think the language used by Lieutenant Marshall was threatening to me?

            [45] Answer. From the manner of Mr Marshall's expressing himself and from what I initially heard.

            Question by court. Were the deceased Lieutenant Crawford and Lieutenant Marshall in habit of intimacy during the passage?

            Answer. Yes they were.

            2. Had they separate appartments in the ship?

            Answer. They lived in one cabin.

            Edward Abbott esq., Captain New South Wales Corps, being sworn deposes upon some reports being spread that Lieutenant Marshall had concealed or withheld the effects of Lieutenant Crawford. Captain McArthur went to Lieutenant Marshall to enquire if there was any foundation for the report. He appeared to me to be very guarded to give credit to those reports. Captain McArthur saw Lieutenant Marshall and conceived that there were grounds for these reports, one of which was Lieutenant Marshall's substituting a gun of his own in the room of Lieutenant Crawford which gun was sold at auction, but proved afterwards to belong to Lieutenant Marshall.

            Questioned by prosecutor. Do you recollect that the gun that was proved afterwards to belong to Lieutenant Marshall was similar in order to the one belonging to Lieutenant Crawford and how much?

            [46] Answer. It was inferior. I cannot tell the difference of their values in money. Lieutenant Crawford's gun was mounted into silver with a potent chamber and appeared to be of considerable value. Lieutenant Marshall's gun was what was generally [declared] a common gun.

            2. Was not the whole of my conduct throughout the whole of the investigation that took place in consequence of that moderate and forbearing towards Lieutenant Marshall?

            Answer. I think particularly so because I know he chid one of the gentlemen who took up to the cause too warmly.

            3. From the time that the investigation took place at the government office relative to the conduct of Lieutenant Marshall on the exchange of the gun and other effects, did I ever speak to him, associate with him or offer any offence until the morning of the 22nd instant when I informed you of the gross unprovoked and insulting conduct of Lieutenant Marshall towards me in the street?

            Answer. To my knowledge certainly not.

            4. State to the court what I informed you of that insult and where it took place?

            Answer. Captain McArthur came to me and said that he had met Lieutenant Marshall not far from the colonel's house, who accosted him saying that he was about to leave the country in the Albion. Captain McArthur informed [47] me that he replied whatever was agreeable to himself must be to him a matter of indifference or words to that effect. When Captain McArthur was going away [not] prevented by Lieutenant Marshall asking him where his gun was, Captain McArthur told him that he knew nothing about it and that it was business he must settle with the auctioneer. Lieutenant Marshall said it was a lie and like many others he had told him. Captain McArthur replied and attempting to go away holding his hand up with a small stick he had, if your intentions are to insult you have effected your purpose. Lieutenant Marshall said if you shake your stick at me I will knock you down. Captain McArthur said if you attempt to do that I will order the centry to pin your neck and heels to the ground.

            5. Do you recollect I informed you that Lieutenant Marshall at the same time called me a rascal?

            Answer. I do

            6. Did you understand when I told you I held up my stick I did not do it in any threatening manner; that held it up merely as a sort of gesticulation intending to inform him it was my intention to go another way?

            [48] I fully understood you so, like a person who holding a stick in his hand would do in a degree of warmth, but without any intention of insulting him.

            7. State to the court what steps I took after I gave you this information?

            Answer. As I have said he came to me very much hurt at the insult that had been afforded to you. As you did not provoke Lieutenant Marshall you desired I would as your friend take a letter to him which letter contained a challenge.

            8. State to the court whether you recollect the language of that challenge and if you do not the general manner whether it was temperate and such a one as an officer ought to write?

            Answer. I recollect the general purport of it, which was as Lieutenant Marshall had grossly insulted him he required that he would give him satisfaction of a gentleman in one hour's time. That there was no language unbecoming the gentlemen in it.

            9. Note to the court in what manner this letter was received and what steps took place after its delivery?

            Answer. I went in quest of Lieutenant Marshall and found that he was at Nicholls' house. I asked Nicholls [49] if Lieutenant Marshall was in the other room and if he was that I should be glad to speak to him. He went in to deliver my message and on his coming out left the door open for me to go in. Lieutenant Marshall was sitting down on a sopha. I took off my hat and addressed myself to him saying I have something to say to you. Lieutenant Marshall replied that I might speak out as he had no secrets. Seeing that there was another person in the room I urged the request to speak to him alone, upon which the third person went out of the room and shut the door. Lieutenant Marshall received a letter from me which contained the challenge. Sitting after reading it he said to me I will meet McArthur and the whole Corps. I felt myself extremely exasperated at the manner of his receiving me and of the threat against the Corps. That I said with some degree of warmth you shall have enough of it. After he had read the challenge he got up saying there was too little time as he was not prepared. I answered that I was authorised to give him time to get his friend [50] until 5 o'clock in the afternoon. This gave him about four hours more to prepare himself to meet Captain McArthur, and they requested that he would send his friend to me without delay. I then went out. About half an hour afterwards I was walking towards my own home with Captain McArthur when I was accosted by Mr Jeffries, a young man who I had seen at the shop employed as I suppose by Captain Tennant to sell his effects. He delivered me a letter from Lieutenant Marshall to say that he was his friend and that he would meet Captain McArthur at the time appointed. I objected in at least some a manner as I could Mr Jeffries going out with Lieutenant Marshall as my co-equal. After some conversation he rather appeared to me to be satisfied with my objections. I requested that he would tell Lieutenant Marshall what I had said to him and that I should wait his answer. From afterwards I received a letter from Mr Jeffries saying that he had not been able to see Lieutenant Marshall yet but hoped that would not prevent [51] meeting taking place between Captain McArthur and Lieutenant Marshall. Not hearing from Lieutenant Marshall, I wrote to him to say that I had made objections to Mr Jeffries which I had requested him to take him and was now awaiting for his answer. About 3 o'clock I received a letter from Mr Marshall expressing his surprise that I should have any objection to Mr Jeffries and desired me to name two gentlemen and Mr Jeffries to represent. I answered that I felt awkward to name his friend, but to shew him that I was not willing to start any further objection I proposed Captain Tennant as a gentleman I could have no objection to, also came out in the same ship with him, premising that it was not my business to point out who his friends ought to be. A little after 4 o'clock in the afternoon Lieutenant Marshall addressed a letter to me saying that he had received my impertinent letter which he thought was an evasion on my part. That he should let the matter rest where it was and should resume it wherever he saw Captain McArthur again. [52] I heard no more of the matter for that time. About half past 9 o'clock the same night one of my servants came to my door and awoke me. I had then been in bed and asleep three quarters of an hour. He said he had a letter for me. I desired him to lay it on the table and the next morning on opening the letter to my great surprise it was from Mr Jeffries, the purport of was to express his surprise that I had not brought Captain McArthur on the ground, and desiring that I would give him an explanation as early as possible. I felt myself very much hurt at this letter by on the part of Mr Jeffries whom I had told before that I could not have any correspondence with as the friend of Lieutenant Marshall, considering him according to the rules of duelling not my co equal. I must here remark that was the purport of my conversation with him and not the express words as here written down.

            11. When you received a letter from Lieutenant Marshall wherein he stated he should drop the business until he saw me, did you not clearly understand that he thereby declined seeking for such a person as a friend as you thought yourself satisfied in receiving as such, and did you not as closely understand that he declined meeting me [53] as he engaged to do?

            Answer. Most certainly, and if the court entertains any doubt of the letter will be produced.

            11. What do you understand by Lieutenant Marshall saying he would drop the business with a determination to resume it wherever he met me?

            Answer. To insult you the first time he saw you.

            12. Do you recollect my being very much hurt on Lieutenant Marshall proposing no proper person to attend him as a friend, and do you recollect my asking about the whole of the officers individually whether they would go out with me to meet Lieutenant Marshall with Mr Jeffries as his friend?

            Answer. I do and not one would go out.

            13. Do you recollect Lieutenant Marshall at the time when he has attacked you in the street after 23rd instant saying he would treat me in the same manner?

            Answer. Yes he did desire me to tell Captain McArthur that he would serve him in the same manner he had done myself, and soon afterwards I learnt that he attempted to put his threat in execution.

            Question by Lieutenant Marshall. Do you recollect in the examination on oath before the magistrates that I did not give him the servant orders for to exchange the gun?

            [54] Answer. Certainly I do recollect Lieutenant Marshall saying so.

            2. Have you had any conversation with Captain McArthur while the court was last cleared?

            Answer. Yes, but not since my examination as a witness.

            3. Did you sir at any time after my arrival in this colony prior to the affair of the 23rd instant attend any meeting or meetings of the officers of the New South Wales Corps to consider the kind of manner in which I should be treated by them?

            Answer. I have attended no meetings of the officers on your account prior to that date you mention, but on the evening of the 22nd I desired my servant would go to the different officers and tell them I wished to speak with them and this was to know their opinions respecting another person which in their course of conversation brought Lieutenant Marshalls name to be mentioned.

            4. What was the purport of the conversation when my name was mentioned with respect to myself?

            Answer. I have said that when their opinion was given respecting the person I allude to naturally brought your name in question. The officers' opinion were from themselves [unasked] that Captain McArthur [55] had been too harsh in calling Lieutenant Marshall out, whose conduct had been such as not to be considered by them as worthy to be call out by Captain McArthur.

            5. Do you not think it very extraordinary that they should have found out in the evening after Captain McArthur had refused to meet me agreeable to his appointment that I was not a person to be attended upon?

            Answer. I believed they had discovered that long before that evening.

            6. How came it that you was the bearer of a challenge to a person (who had been so unworthyly thought of) and one of the same Corps who could not be actuated by the same lack of passion that Captain McArthur was, without remonstrating with Captain McArthur at the impropriety of the measure?

            Answer. I confess this is the only part of my conduct that I have reason to find fault with myself.

            7. Do you recollect any meeting had taken place subsequent to the 23rd and in which my conduct was mentioned?

            Answer. I have already answered that, no.

            [56] 8. Did not you at the time you brought a challenge stand in the passage and call me out in a angry impervious tone of voice, before I knew who the person was that was asking for me?

            Answer. I have before said that I desired Nichols to tell Lieutenant Marshall that I wished to speak to him and at his, Nichols, coming out again and leaving the door open for me I suppose to go in, took off my hat, seeing another person there say I wish to speak to you.

            Question. Did you see me the time that he was speaking to Nichols?

            Answer. I know that Lieutenant Marshall was in the room and out of politeness desired Nichols to knock at the door, to say I asked to speak to him that I might not interrupt any person who might have been with him.

            10. Did you not move that twice or thrice before you came in sight of where I sat and asked me to come to the door to speak to him?

            Answer. When the door was opened I came to it and seeing another person there I certainly two or three times said out of delicacy that I wished to speak to him, not wishing that the person who was present should know the occasion of my visit.

            [57] 11. On Captain Abbott's name being announced to me, did I not request you to walk in, that the person would leave the room and give him an opportunity of saying what he chose in private?

            Answer. Now I observed a degree of behaviour in the third person to leave the room when I saw that he was going out I then went in and the third person shut the door upon us.

            12. At this time did not Captain Abbott make a reply in the passage of a similar sort to what he had done before that I should come out?

            Answer. I have before said that I was on the [well] of the inner door of the room Lieutenant Marshall was in and repeated my question to say I wished to speak to him. As I perceived there was a backwardness in the third person to leave the room which occasioned my not going in but when I saw the third person go out I walked in and the door was shut.

            13. Had you not given me great reason to suppose that it was some menial servant that was sent with a message to me before his name was announced which was the occasion of the cool way in which he was received by me?

            [58] It is impossible for me to know Lieutenant Marshall's thoughts. The message I sought by Nichols was to say I do wish to speak to you. As I did not hear him deliver the message I do not know in what manner it was communicated to him, for Nichols went into Lieutenant Marshall's and shut the door upon him.

            Question by the court. Did the conversation which passed between you and Captain McArthur when the court was last cleared and alluded to by Mr Marshall in his second question to you relate to Lieutenant Marshall?

            Answer. It did not.

            2. Was it from any backwardness on the part of Captain McArthur that he did not see Mr Marshall at the time appointed?

            Answer. I have already pointedly said no.

            3. What was the reason he did not meet Lieutenant Marshall?

            Answer. Because no one would go out with him if he took Mr Jeffries as a guard and Lieutenant Marshall's letter to me saying that the matter would rest there or then present as I have stated in evidence fully before.

            Court adjourned to 10 o'clock 1 August.

            [59] 1 August court met pursuant to adjournment.

            Ensign and Adjutant Robert Minchin being sworn, deposes that on the morning of the 23rd of July between the hours of 10 and 12 I was walking with Captain McArthur between the Orphan School and Colonel Patterson's house. I saw Lieutenant Marshall walking down the far side of the parade. He got about half way down and looking round towards where Captain McArthur and myself were, he Lieutenant Marshall immediately changed his direction and shaped his course towards us. He was coming with a smart pace and had in his hand a large club. When he came within five or six paces of Captain McArthur he raised his club over his shoulder. From that and the manner he grasped it together with his appearance, I imagined he intended to give Captain McArthur a severe blow. Captain McArthur being of the same opinion immediately drew his sword and asked him if it was his intention to assault him in the same manner he had done Captain Abbott the same morning, and told Lieutenant Marshall that if he advanced he would sear him through. Lieutenant Marshall seeing Captain McArthur in a posture of defence immediately brought his stick to the ground saying to Captain McArthur you will not sear me through now. [60] Lieutenant Marshall then made use of the most abusive language. Captain McArthur asked him if he thus abused for prevented him from calling the dead and gave him in charge to the centry. I then ordered a file of men to take him to the guard house.

            Question by prosecutor. Had you any other reason his menacing approach and furious countenance for supposing that he intended to strike me with his club?

            Answer. Having heard him that morning say to Captain Abbott that he would serve Captain McArthur in the same manner he had done him, I saw he was now going to put his threat in execution.

            2. How did he assault Captain Abbott|?

            Answer. By assaulting and striking him with the bludgeon he then held in his hand.

            3. What distance do you suppose I was from Lieutenant Marshall when I drew my sword?

            Answer. I think about three or four paces.

            4. Was he advancing hastily towards me in a direct line?

            Answer. He was.

            [61] 5.   Do you not suppose that had I delayed a minute drawing my sword I should have received a very fierce blow?

            Answer. It is my opinion he would from the manner Lieutenant Marshall advanced towards him.

            6. Do you know whether when reports were first articulated to the disadvantage of Lieutenant Marshall I endeavoured to check them or to promote their circulation?

            Answer. As far as I could always learn it was Captain McArthur's wish to check them.

            7. Will you state to the court the situation I held at the time Lieutenant Marshall assaulted me on the 23rd July?

            Answer. The then Commander the New South Wales Corps in the absence of the Lieutenant Governor.

            8. Will you point at the exact spot where he assaulted me?

            Answer. At the end of the court officer's house.

            9. Was it or was it not immediately within the reach of my own personal centry and on the edge of the regiment grounds.

            [62] Answer. It was on the centry post.

            10. When you heard a challenge had been given by me to Lieutenant Marshall for his insulting language on the 23rd, do you know whether I avoided the meeting or Lieutenant Marshall declined meeting me?

            Answer. I saw some letter which passed between Lieutenant Marshall and Captain McArthur and from there I understood that Captain Abbott, Captain McArthur's friend had declined meeting Lieutenant Marshall's friend as a coequal, and that produced a letter from Lieutenant Marshall the purport of which was that Lieutenant Marshall would then [dress] the business with a determination to renew it as soon as he met Captain McArthur or words to that effect. In consequence of Captain Abbott refusing to meet the person appointed by Lieutenant Marshall as his friend, Captain McArthur asked as he believes all the officers that were then at head quarters if any one of the officers would go out with him as his friend and that one and all refused on the same grounds that Captain Abbott founded his refusal on.

            [63] 11. What did you understand Lieutenant Marshall meant when he wrote that he would resume the business where ever he met me?

            Answer. From the letter I saw from Lieutenant Marshall I am of opinion he meant to assault Captain McArthur.

            12. Do you recollect an observation made by Captain Tennant in whose ship Lieutenant Marshall came from England, that he was surprised I should think of considering Lieutenant Marshall as a gentleman after what happened and do you remember when this observation was made?

            Answer. I heard Captain Tennant made use of the confession alluded to at his lodgings, I think on the morning of the 23rd.

            Question by Marshall. Do you conceive Captain McArthur commences this prosecution to avoid one against himself, for drawing his sword on me on that King's highway? Reportedly.

            Answer. I do not think Captain McArthur commenced this prosecution under any such idea, for I think from what I have stated as above Captain McArthur was highly justified in drawing his sword in his own defence.

            [64] 2. Did not the prosecutor threaten to run one through the body if I advanced another step and that before I had spoken to him and was not that on the King's highway?

            Answer. Lieutenant Marshall was approaching Captain McArthur with an uplifted weapon with which it is my opinion Lieutenant Marshall would have brought him to the ground had not Captain McArthur acted in the manner he did and this happened at the end of the court officer's house on the road.

            Question by court. Was it on the parade on the road passing the Colonel's house?

            Answer. It was on this end of the centry post which comes halfway across the road.

            2. Did you hear Lieutenant Marshall make use of any ill language to Captain McArthur previously Captain McArthur drawing his sword?

            Answer. I do not recollect Lieutenant Marshall making use of any language to Captain McArthur previous to his sword.

            Lieutenant Hobby of New South Wales Corps being duly sworn, deposes on the 23rd July I was in conversation with Mr Condell of the Harrington brig when I saw Captain [65] McArthur and Mr Minchin come out of Colonel Paterson's house and walking a little way towards the Hospital Wharf. They returned and walked towards Mr Laycock's. As soon as they had passed me I saw Lieutenant Marshall coming down by the church steeple passed the Provost Marshall 's house across the bridge on the parade and appeared to be going towards the Hospital Wharf. By this time Captain McArthur and Mr Minchin had turned again towards the Colonel's, and Mr Marshall had got nearby to the end of the parade and walked briskly towards Captain McArthur and Mr Minchin with a large stick in his hand which he held constantly until he arrived nearby opposite the gate of the Colonel's veranda, when he threw it over his left shoulder grasping it in his right hand and advanced towards Captain McArthur apparently to me with an intention to strike him, but Lieutenant Marshall's coming within a few paces of him Captain McArthur drew his sword and told Mr Marshall that if he offered to strike him or use any violence as he had done to Captain Abbott he would run him through the body. On which Lieutenant Marshall dropped his stick and said "you will not run me through now will you [66] McArthur". Then ordered the centry to take charge of Mr Marshall on which Lieutenant Marshall said "you put on the officer now do you". Captain McArthur then hailed the centry at the main guard and Lieutenant Marshall was ordered to the guard house escorted by a file of men.

            Question by a prosecutor. Had you no other reason for supposing Lieutenant Marshall intended to strike me than the menacing and furious manner of his approach?

            Answer. Yes I had because I had seen Lieutenant Marshall strike Captain Abbott and because he had heard him Captain Abbott to tell Captain McArthur that he would serve him in the same manner whenever he met him.

            2. Would you know the bludgeon again was you to see it with which Lieutenant Marshall and advanced towards me?

            Answer. Yes. The stick being produced he says it is the same that Lieutenant Marshall had in his hand at the time he advanced towards Captain McArthur.

            3. What office was I exercising at the time Lieutenant Marshall assaulted me?

            Answer. That of Commanding Officer of the Corps.

            [67] 4. And in what situation with respect to the colony?

            Answer. Second in Command.

            5. Did you consider the spot of ground on which Lieutenant Marshall assaulted me as a part of the Regimental Parade over which the regiment always marches before it is dismissed?

            Answer. Yes I do.

            6. Do you believe that if I had delayed a moment drawing my sword that Lieutenant Marshall would not have knocked me down?

            Answer. From his manner of approaching Captain McArthur I think he would.

            7. Do you recollect Lieutenant Marshall calling me a rascal before I ordered the centry to take charge of him?

            Answer. Yes I do.

            8. Do you recollect whether I was in my uniform?

            Answer. Yes he was.

            9. Does it come within your knowledge whether I had ever associated with, insulted him or offered him any injury previous to his assault on me on the 23rd instant?

            Answer. I never heard that Captain McArthur had ever associated with, insulted him or offered him any injury

[68] 10. Do you know whether when the first reports were circulated that Lieutenant Marshall had exchanged and concealed a part of the effects of the late Mr Crawford, I did not endeavour to check the circulation of the reports among the officers as much as possible?

Answer. Yes he did, for Captain McArthur told me it was improper for me to speak concerning it until it was properly enquired into.

            11. Do you think the prisoner has had any other reason for the assault and insults he has offered towards me, that the steps I have been obliged to take as Commanding Officer to oblige him to give up Mr Laycock's property?

Answer. I do not think he had any other reason or cause.

            12. When you heard that a meeting was to take place between me and Lieutenant Marshall did you discover that any obstacles were made by me?

            Answer. No or otherwise.

            13. Did you not understand that Lieutenant Marshall had written to say he would drop the business with a determination to resume it when he saw me?

            Answer. Yes I heard Lieutenant Marshall's letter read.

            [69] 14. And how did you understand that declaration?

Answer. My opinion was that he meant to assault Captain McArthur the first place he met him.

            Question by Lieutenant Marshall. Did you not conceive Captain McArthur commences this prosecution ... against himself for personally drawing his sword on me in the King's highway?

            Answer. No, I do not conceive any thing of the kind.

2. Did not the prosecutor threaten to run me through if I advanced a step further and that before I had spoken to him and was not that on the King's highway?

Answer. I heard Captain McArthur threaten to run you through if you offered any violence but cannot say whether any words had passed between him and Captain McArthur and that it happened on the regimental parade.

3. Are you acquainted with the nature of duelling?

Answer. No I am not.

4. Was you ever employed in a business of that nature...?

Answer. Yes.

            5. Now sir tell me, did you ever know of a challenger refusing to meet a person challenged on account [of the force] of a gentleman called on?

Answer. I have never been interested in a business of that nature when it has happened ... [70] as to how an improper person [paid on].

            6. By virtue of your oath have you never either prior to my trial or since have held any discourse with Captain McArthur relative to the evidence you have now sworn and deposed against me?

            Answer. Not any private or improper conversation with Captain McArthur on the subject.

            Mr Campbell, Commander Harrington brig, sworn, deposes that he was standing with Lieutenant Hobby between 10 and 11 on the 23rd, when Captain McArthur and Ensign Minchin came out of the Colonel's house and came towards myself and Lieutenant Hobby. After walking down towards the wharf abreast of the store door Captain McArthur and Ensign Minchin turned and came again towards us. When they were about half way towards us I saw Lieutenant Marshall coming down the hill and went towards the wharf abreast of the store door, he turned round and came up towards the Colonel's house. At the end of the house Captain McArthur and Mr Minchin met him a little before Mr Marshall was close to Captain McArthur. Captain McArthur stopped and asked Lieutenant Marshall if he was came to insult him in the same [71] manner that he had done to Captain Abbott clasping his hand on his sword at same time and told him to keep off, drawing his sword at that time will stop.

            Question by prosecutor. Did you see him elevate his stick at the time of his approach?

            Answer. I did.

            2. Do you think he was going to strike me?

            Answer. I am not certain that he was any further than from the expression he had heard him make use of to Captain Abbott that he would serve him Captain McArthur in the same manner.

3. Would you know the stick with which he approached me?

            Answer. Yes the stick being produced he says it is the same he held in his hand at the time he approached Captain McArthur.

            4. As you have heard Lieutenant Marshall say that he would treat me in the same manner he had treated Captain Abbott, pray how did he treat Captain Abbott?

            Answer. When he came up to Captain Abbott, I saw him give Captain Abbott a strike on the side with the stick he produced.

            [72] Question by Lieutenant Marshall. Do you not conceive that Captain Mr McArthur commenced this prosecution to avoid one against himself for [unprovokedly] drawing his sword on me on the King's highway?

            Answer. I cannot say whether he does or not.

            2. Did the prosecutor not threaten to run me through the body if I advanced another step and that before I had spoken to him, and was it not on the King's highway?

            Answer. He told Lieutenant Marshall to keep off or that he would run him through. That he did not hear Lieutenant Marshall speak before Captain McArthur made use of the above words and that this happened on the King's highway.

            3. Have you any idea that my intention at the time was to have struck Captain McArthur with a stick, or did I carry it in a manner so to do and is it not customary to carry a stick in different manners?

            Answer. From the expression Lieutenant Marshall made use of Captain Abbott, I had an idea it was his intention to strike Captain McArthur but the drawing of the sword might have stopped him.

            4. On the virtue of your oath have you ever either prior to my trial or since hold any discourse with Captain McArthur or any other of the [73] witnesses relative to the evidence you have now sworn and deposed of me?

            Answer. I have had none with Captain McArthur and to the best of my knowledge with none of the witnesses but with Lieutenant Hobby this morning.

            5. Did you ever hear any of the evidence against me use any gross opprobrious and illiberal language against me some days previous to this trial?

            Answer. I do recollect hearing it said that he was a rascal for striking Captain Abbott when he had no weapon of defence.

            Captain McArthur having read and delivered into court no. 7, the evidence on the part of the prosecution was closed.

            Lieutenant Marshall being put on his defence says he is not prepared and requires until Tuesday morning to prepare it.

Granted. [This source contains no further record of the trial.]

Note

[1] The assault trial of James Marshall was a notable event in the judicial career of Atkins J.A. Bennett comments at p. 39 that the case reinforces "contemporary criticisms of his irresolution and unfamiliarity with the law". Bennett suggests that Atkins could neither advise "whether the acts complained of were an assault in law" nor whether re-opening the case to consider fresh evidence was legal. However, the circumstances of the trial, and subsequent developments, were complicated.

On the first count Marshall was found guilty, fined £50 and sentenced to imprisonment for 12 months. On the second count, in respect of Macarthur, a special verdict was found and referred to the Secretary of State. Marshall took great exception to his treatment during the trial. When he ventured to ask questions during the proceedings he said he was "interrupted by some of the members of the court and haughtily and angrily told not to insult them". (See C.H. Currey, 27 citing Historical Records of New South Wales.)

Governor King was also concerned about the treatment of Marshall and felt "for the sake of ample justice to all parties" (Currey ibid.) that the court should re-assemble to take account of Marshall 's grievances. Currey comments at p. 27 that it is not clear whether King took Atkins' counsel in ordering a re-trial, but King did state: "if the members of the court had asked the Judge Advocate his opinion ... they would have known that, in all cases of moment where justice is not done upon one trial, the injured party is entitled to another".

The court reconvened on August 7 and declined to re-open the case. Five of the military members of the court declared that they "were unanimously of opinion that it was impossible, without acting contrary to law, to comply with the order of [his] Excellency". Atkins, however, replied that his military colleagues had misunderstood him, for no opinion was given, assuring King that he "did not suspect that your orders would be disobeyed". Continuing, Atkins appeared frustrated by the conduct of the military members of the bench: "I brought to the court several law books with the pages marked for reference on the subject which [the military members] declined having recourse to" (Currey, 27-28).

Considering the court's response a public insult, Governor King remitted Marshall 's sentence on condition that he left the colony by the Albion. The conditions of his remittance included that he enter into a recognisance in the sum of £500 sterling and two sureties, one of whom was to be resident in the colony, in the sum of £250 sterling each, to surrender himself within two weeks of his arrival in England to the Home Secretary, and to abide by his Majesty's decision "in respect of the upshot of his trial for assaulting Abbott, and the special verdict returned in the Macarthur case". In February 1803 Lord Hobart reported in relation to the trial of Marshall : "the proceedings and sentence of the court... are considered to have been regular, and, consequently, have received his Majesty's approbation. You were certainly misled... in reconvening the court for the purpose of enquiring into the facts alleged in Lieutenant Marshall's memorial, and the court was justified in their resolution of the 7th August 1801, in consequence of being so reconvened; but, as the period of Lieutenant Marshall's imprisonment has expired, and as he has complied with the terms of his recognizance, his Majesty has been pleased to consent that the fine imposed on him shall be remitted." (See Currey, 28 citing H.R.N.S.W. )

C.H. Currey writes at p. 29, citing the Governor, that the trial of James Marshall convinced King "that some change in our Criminal Courts of Judicature is absolutely necessary". King recommended that the Letters Patent should be amended so that the criminal court should be composed of "the Judge Advocate and six commissioned officers of the civil establishment, sea or land forces... However upright and just the intentions of the officers might be yet a man's prejudice, in what concerns a member of his own Corps, might greatly bias his judgment and conduct, and that even unintentionally, when he went into court."

See C.H. Currey, Brothers Bent, 26-29; H.R.N.S.W., vol. 4, 524-526, 536, 542-543; vol. 5, 49-50; Evatt, Rum Rebellion, chap. 8; Castles, Australian Legal History, chap. 4; J. Bennett, 'Atkins, Richard (1745-1820)', Australian Dictionary of Biography, vol. 1, 38-40.

Published by the Division of Law, Macquarie University