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

Marsden v. Mason [1806] NSWKR 1; [1806] NSWSupC 1

defamation - Bligh, coup against

Court of Civil Jurisdiction

Atkins J.A., 14 February, 3 and 4 March1806

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 2/8148 [1]

[736] Rev. S. Marsden v. Martin Mason. Defamation £50 at issue, plea not guilty

The plaintiff opened his case by reading no. 1. The Judge Advocate read Mr Mason's letter to plaintiff which he [737] acknowledged to be his.

The defendant on being desired to give in a list of his evidences, he delivered in a paper containing a list of 37, and the court being cleared they are of opinion that the number of evidences so required is undeniably for the purpose of protracting the course of justice, as several are absent on His Majesty's service at the out settlements and therefore they order that the defendant will confine himself to such evidences as are within the reach of the plaintiff to summon.

The plaintiff proceeded to call his evidences and first

Thomas Holly esq. being sworn. Question by plaintiff. You have heard that Mr Mason has written me a letter which I conceived improper, and for which I have now brought my action?

Answer. Yes.

Question. You have resided principally at the Hawkesbury since Mr Mason has resided there? Have you not been frequently in company with him either at your house or elsewhere?

Answer. Yes at my own house and elsewhere.

Question. When you have occasionally met with Mr Mason have you not repeatedly heard him traduce my character, and speak of me in the most disrespectful form?

Answer. I have heard Mr Mason say that he had repeatedly found himself aggrieved by Mr Marsden's conduct towards him.

Question. Have you not heard Mr Mason say that he wished God might [738] never forgive him if he ever forgave me?

Answer. I have heard or to that effect.

Question. Has he not appeared to you from his language, is he assisted to poison the public mind against me as a magistrate?

Answer. It appeared to me that he was very much displeased with your conduct as a magistrate.

Question. Have you not heard Mr Mason say things to the prejudice of my character in public company?

Answer. I have heard Mr Mason speak very disrespectfully of you.

Question. When you have heard Mr Mason traducing my character, have you not requested him that he would not in future make use of such language against me in your presence?

Answer. I have and told him two or so months ago that it might ultimately tend to the injury of his (Mr Mason's) family.

Question. Have you not heard he has gone among the settlers collecting information respecting my proceedings to see if he could find any act of mine where he could turn to my prejudice?

Answer. I have heard it reported that Mr Mason has given himself some trouble to collect information to support his own assertions.

Question. As you are well acquainted with the settlers at the Hawkesbury in general, do you know of any there I have treated with vindictive vengeance?

Answer. No, I do not.

Question. Did you ever hear me express any wish ever when Mr Mason's name has been mentioned as seeking to do me [739] an injury, but to [one] Mr M. and his family?

Answer. I have frequently heard Mr Marsden speak very feelingly of Mr Mason's family, and wished that he would drop all litigation, and attend to his farm for their benefit.

Question by defendant. Did you purchase a stack of wheat from Mr M. that grew on a farm known by the name Rawson's farm?

Answer. I purchased a stack of wheat from Mr M.

Rev. Fitzgerald sworn. Question by plaintiff. The letter being read to defendant, question, did Mr Mason ever read to you a copy of the letter now read to you in court?

Answer. Yes, I believe he did.

Question. Prior to that period did he ever read to you any other documents containing charges against me?

Answer. He did.

Question. Did he ever inform you that he had exhibited charges against me to his Excellency the Governor?

Answer. He told me he had sent a memo to the Governor stating Mr Marsden and Mr Savage had done him injustice by doing away Colonel Papp's verdict when he presided at a Branch of Magistrates at Hawkesbury. Vide no. 2.

Question. Have you not frequently heard him traduce with my public and private character?

Answer. I have heard Mr Mason say that he thought Mr Marsden had injured him by doing the ... away and respecting his stock, some land Mr Marsden had rented to bad characters.

[740] Question. Have you not heard that he has gone among settlers to collect information regarding my proceedings to see if he could learn any thing that might turn to my prejudice?

Answer. I heard that some settlers had declared they would support Mr Mason's family in the event of any thing happening to him.

Question. From Mr Mason's general conversation with you, do you not conceive that he has attempted to poison the public's mind of me as a magistrate?

Answer. He has repeatedly complained against Mr Marsden since the investigation took place at Hawkesbury respecting his men.

Question. Did he ever inform you that he either had or intended to transmit charges against me to G.D.?

Answer. I think he has.

Question by defendant. Have you ever heard other persons speak disrespectfully of Mr Marsden as a magistrate as well as myself?

Answer. I have.

Question. Did you meet that support from Mr Marsden as a magistrate when at Toongabbe you expected?

Answer. At first I did, but for the last 12 months as we differed, I declined appealing to him at all.

Question. Do you remember Vallance and about 30 others in a state of mutiny in the field?

Answer. Yes I remember going away from their work.

Question. Did Mr Grimes and Mr Marsden take any steps to prevent a repetition of such conduct?

Answer. I do not recollect that they did.

[741] Question. Do you recollect being brought before the magistrate at Parramatta (Mr Marsden) on an accusation of horse stealing?

Answer. Yes.

Question. Did Mr Marsden as a magistrate give any threats to induce you to give up an [assign]?

Answer. Yes. I think he did.

Mr William Cox sworn. Question by plaintiff. Since you have arrived at my house have you not been frequently with Mr Mason?

Answer. I have often.

Question. Have you not frequently heard Mr Mason traduce my character and speak of me in the most disrespectful terms?

Answer. I never did until lately or since the letter was either written or thought of.

Question. As you are well acquainted with the staff at my house, do you know of any there that I have treated with the most vindictive vengeance?

Answer. Not one.

Question. Have you not heard that Mr Mason has gone among the tenants to collect information respecting my public proceedings in order to see if he could find any thing that could turn to my prejudice?

Answer, No, never to my knowledge except from what I have heard written these two days from some gentleman.

Question. When the subject of Mr Mason's animosity against me has been mentioned to me in your presence, did you hear me express except that of seeing Mr Mason's family?

[742] Answer. No I never heard Mr M ever speak disrespecting of Mr Mason but he has often expressed a wish to [see] him on account of his family.

James Westwood sworn. Question by plaintiff. When you was my horseman, did you not inform me at Hawkesbury that while going for the cow ... that Mr Mason had some and had drove the whole of my cattle without any permission over the creek to his own farm?

Answer. Yes.

Question. Did I not desire you to go and tell Mr Mason that I had no objection against this cow being brought to my bull or running with my stock, but that I could not allow any person to take and drive them over the creek lest they should learn to trespass all the settlers' ground opposite to mine?

Answer. Yes I sent word so by Mr Mason more.

Question. After Mr Mason had broke down the fence and drove the cattle over the creek, did not Mr Mason send you a pound of tobacco desiring at same time you would not inform me of it.

Answer. Yes but I told the man I should inform my master of it.

           Hugh Crabtree sworn. Question by plaintiff. You have been my dresser for the space of 12 months. Do you remember Westwood the man acquainting you that Mr Mason had [743] drove the whole of my cattle to his farm without his or your knowledge?

Answer. He did the greatest part of them.

Question. Do you remember my saying I had no objection to Mr Mason sending his cow to my bull.

Answer. I do not remember it.

           Captain Edward Abbot sworn. Question by plaintiff. Had not you the command of the detachment at Parramatta on the 2nd March 1804 on the Saturday prior to the insurrection at Castle Hill.

Answer. Yes, I had.

Question. Do you remember my acquainting you as Commanding Officer that I had received information that it was the intention of the prisoners at Castle Hill to rise.

Answer. Yes.

Question. Do you remember my sending two men (Sloane and Lewis Bulger) from whom I had received my information to you in order that they might personally state what they knew.

Answer. I remember you sending Sloane but not Bulger but you informed me that Bulger was after men.

Question. Do you recollect my informing you that the man named Griffiths was gone out to the Hawkesbury from your prisoners at Castle Hill to give information and to settle a time when the disaffected there was to join them.

Answer. Yes I do.

Question. Do you remember my informing you that I had sent out McLease and a constable to pursue Griffiths with all possible haste, and to bring him in a prisoner to Parramatta.

[744] Answer. Yes.

Question. Do you remember Griffiths being apprehended and lodged as a prisoner in Parramatta jail.

Answer. Yes.

Question. Do you remember my coming to your barracks on the Saturday afternoon to counsel with you on the means of public safety before I went down to Sydney ?

Answer. Yes.

Question. Do you remember my sending to you on Sunday evening after divine service and requesting you would come to my house for the purpose of consulting with you a second time on the same subject?

Answer. Yes.

Question. Do you remember my informing you that I had stated to his Excellency the information I had received respecting the intended insurrection?

Answer. Yes, I believe you did.

Question. Do you conceive that it would have been proper for me to have made the private information I had received public to the colony?

Answer. Certainly not.

Question. Do you know of my taking any step in that business without consulting you?

Answer. I do not think you did because you was very communicative.

Question. Do you conceive that under all the circumstances I neglected any part of my public duty for the safety of the inhabitants on that occasion?

[745] Answer. I do not think you did... Nor Mr Marsden exerted himself of this occasion.

           Mr Arndell esq. sworn. Question by plaintiff. As you are the Resident Magistrate of the Hawkesbury, do you remember the alarm being given on Saturday the 3rd March 1804 respecting the intention of the prisoners at Castle Hill rising?

Answer. I recollect the information that Mr Lease gave when he came up respecting the rising at Castle Hill.

Question. Was it not in consequence of that information given by Mr Lease that you and the inhabitants at the Hawkesbury were put upon your guard?

Answer. It was from the information given at the time.

Question. Do you know of any settlers at the Hawkesbury whom I have treated with vindictive vengeance?

Answer. I do not.

Question. Have you not heard Mr Mason traduce my character and speak in the most disrespectful terms of me?

Answer. I have heard Mr Mason say he had been injured by Mr Marsden and that he would not rest until he had justice done him.

Question by defendant. Did you receive official information of the intended rebellion?

Answer. I did not any further than received it from one of our own constables commenced by a Parramatta constable.

As a Resident Magistrate, have complaints frequently come before you or Mr Marsden stock trespassing on the grounds of different individuals?

[746] Answer. Yes.

Have you ever received any complaint from Mr Mason of Mr Marsden stock trespassing on his land?

Answer. No.

John Smith sworn. Question by plaintiff. Is not your farm next to mine?

Answer. Yes.

Question. Have my horned cattle or horses ever done you any injury?

Answer. Never.

Question. Did Mr Mason ever call upon you and ask you any questions respecting me and my stock?

Answer. He once asked me if the pigs had ever done me any damage.

The evidence on the part of the prosecution being closed the defendant process... until Monday 3 March. Granted. R. Atkins, J. Harris ...

3rd March. Court met.

The plaintiff appeared and defendant being called does not appear. Adjourned to tomorrow 10 o'clock.

4th March. The plaintiff appeared and defendant being called does not appear.

Judgment by default                                        Verdict for the plaintiff ¿250 and costs.

R. Atkins, J. Harris (signed)                            14 days or execution of his person

           30 April, warrant issued.

Note

[1] In March 1804 Major George Johnston and a detachment of 26 soldiers suppressed a band of armed Irish convict insurgents, ten times their number, at Vinegar Hill. The Castle Hill rebellion (as it is sometimes called) led to a declaration of martial law and a short battle in which 15 convicts were killed. One of the leaders of the rebellion, Philip Cunningham, was executed on the spot after he was captured. Others were hanged after trial by Court Martial.

Rev. Samuel Marsden was a magistrate at Parramatta, obliged to play a role in keeping order in the district. Mason claimed that Marsden ran away at the time of the Castle Hill rebellion. The result was a lengthy defamation action, resulting in judgment for the plaintiff by default.

This is a difficult manuscript to read. Atkins' handwriting was difficult enough, but in this case he used an unusually large number of contractions and abbreviations. The case is well worth the effort, even if not every word is clear.

           See Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 102. On the rebellion, see Sydney Gazette, 11 March 1804; and see L.R. Silver, The Battle of Vinegar Hill: Australia 's Irish Rebellion 1804; Castles, Australian Legal History, 40-41; A.T. Yarwood, "Johnston, George (1764-1823)", Australian Dictionary of Biography, Vol 2, 20-22. See also see R. v. O'Dwyer, 1807.

Published by the Division of Law, Macquarie University