Skip to Content

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

Crossley v. Johnston, McArthur and others [1810] NSWKR 4; [1810] NSWSupC 4

Rum rebellion, against Governor Bligh - Crossley, George, victim of coup against Bligh - Newcastle - courts, legality of in rebel period

Court of Civil Jurisdiction
Bent J.A., 5 April 1810
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 5/1103 (case no. 184)[1]

[73] George Johnston esq., John Macarthur esq., Charles Grimes, Nicholas Bayley, Anthony Fenn Kemp, John Brabyn, William Moore, Thomas Laycock, William Minchin, William Lawson, Charles Villiers, and Charles Throsby esquires - defendants.

To the writs issued against the three first named defendants, the Provost Marshal returns non est inventus upon each action for trespass and false imprisonment and damages ¿30,000 and therefore he brings suit. The rest of the said defendants being duly called appear and plead not guilty upon which issue is found.

The plaintiff put in a proclamation dated 4th January 1810, signed Lachlan Macquarie counter-signed by command of his Excellency, John Thomas Campbell, Secretary, intitled by his Excellency Lachlan Macquarie esq., Captain General and Governor in Chief of the territory of New South Wales and its dependencies etc., etc., etc.

George Howe (being sworn) said he was employed by government as a printer and that he printed by command of his Excellency the above proclamation which was then read.

Edmund Griffin esq., sworn, says that in the latter part of the year 1807 and in the beginning of the year 1808, William Bligh esq. was Governor of this territory. During that time the witness acted as his secretary. Says that he knew that Mr Atkins late Judge Advocate applied to the then Governor for permission that plaintiff should assist Mr Atkins in drawing certain judicial proceedings against John Macarthur esq. That on the 25th day of January witness recollects plaintiff being present at Government House. Mr Palmer, Mr Campbell, Mr Fulton, and Mr Gore and Mr Atkins were present. He was at Government House a long time. [74] The plaintiff was there on the 26th, the following day. That on that day certain disturbances took place in the colony and Governor Bligh was then arrested. That on that day witness saw plaintiff in the verandah of the guard house.

Charles Fryer sworn, says that on the 26 January 1808 he was a private in the 102nd Regiment and acting Corporal of the main guard. Says that on that evening about dusk, he recollects the plaintiff being brought to the guard house at Sydney by soldiers under arms and given in charge of the guard. That witness received orders from the Sergeant of the Guard, not to let plaintiff have any communication with any person, nor to have the use of pen, ink or paper. That the colony was in a state of disturbance.

John Palmer esq. sworn, says on the 26th January 1808 he was principal Commissary, and a Justice of the Peace in New South Wales. That he the witness was at Government House on the 25 and 26 January. That at that time the country was in a state of apparent tranquillity at that time. That witness had previous to this time employed the plaintiff in conducting his law concerns and that plaintiff had always conducted himself with propriety. That witness has been present at consultations when Mr Atkins has consulted plaintiff on his legal concerns. That on the 26th January 1808 witness saw plaintiff walking in front of the guard house. Mr Palmer says that at that time he knew plaintiff possessed a considerable farm in this territory. He believes it to have been a productive one. That there were three or four stacks of wheat then on the farm. That Governor Bligh had sent round a paper, desiring to know what quantity of wheat each farmer could engage to put into the store for the supply of the colony. He saw the signature of Mr Crossley to it, engaging to put in a considerable quantity of wheat. Witness has seen some sheep upon the plaintiff's farms, and also a considerable quantity of pigs. That he believes that plaintiff was sent to the Coal River.

The Rev. Mr Fulton sworn, says that in January 1808 he was acting as principal chaplain of the colony.

[75] William Burmlow sworn, says that on the 26th January 1808 he belonged to the 102 Regiment, which at that time was doing duty in the colony. That he was a Sergeant at that time. That in the evening of that day he saw the plaintiff in custody in Colonel Johnson's parlour. Colonel Johnson was then at Sydney, and was Commanding Officer of the Regiment. That he was present when Mr Grimes and others examined plaintiff. That the defendant Mr Bayley was also present. That Colonel Johnson, upon some objection arising, was called into the room. Witness says that when Major Johnson came into the room, plaintiff stated that they were putting questions that tended to inquire into matters passing before the Governor and magistrates and refused to answer them. Mr Bayley was present and asked plaintiff several questions. Major Johnson said to the plaintiff, recollect that colony is under martial law, and if I hear any equivocation, I will try you by a Court Martial.

Thomas Browning sworn, says he is a soldier. Says that in the month of January 1808 he was at work at plaintiff's farm at Hawkesbury. He says there were then as many peaches growing there as might make from 80 to 100 casks of cyder. He says there might be from 40 to 50 hogsheads there also. He says there was a very large barn there. He says one bay was full and the other nearly full of wheat unthreshed. He says there were four stacks of wheat in the farm. Some were less than common and two larger. Say there was corn there growing upon the farm. There were some sheep, wheat quantity he cannot say, a good many pigs, some horses, and one or two bullocks on the farm. Says at this time he was preparing the casks for the reception of the cider. That hearing plaintiff was in custody, he left off that work.

John Redman sworn, says that in January 1808 he was Chief Constable of Sydney. Upon 9th February 1808 he was in a room called the granary in Sydney. Mr Grimes was there and several other persons. Mr Bayley he thinks was there. He cannot recollect whether the other defendants were there or not. He understood it to be a Criminal Court of Jurisdiction. He does not recollect the persons who composed it. Somebody said gag him, meaning the plaintiff. That witness cannot tell who it was. It was repeated several times. Mr Crossley was at that time under examination. Mr Grimes was acting as Judge Advocate. Witness heard Mr Grimes pronounce a sentence upon the plaintiff of seven years transportation, but to what place [76] witness does not know. Mr Bayley was then acting as Provost Marshal. By the order of the court, plaintiff was then taken into custody. Witness does not know that the court examined any evidence on the case. That witness was sent for to keep the plaintiff, at that time standing at the bar as a prisoner, in order. Witness took the plaintiff by orders into his custody and delivered him to one Mr McKoy at that time gaoler. He knows that afternoon Mr Crossley was put on board a ship for Newcastle.

William Davis sworn, says on the 9th February 1808 he was turnkey of the gaol at Sydney. That he attended at the court held at the granary on that day. That Mr Crossley was brought before that court to be held upon certain charges. He cannot tell who were the members of the court.

Nathaniel Cotton sworn, says that in January 1808 he was Sergeant of the 102nd Regiment. That on the 26th of that month he marched with the Regiment from the parade to Government House. That he had directions on that day to seize the plaintiff's papers. That he thinks he delivered the papers into Mr Bayly's hands at Government House where the Regiment arrived before he got there.

James John Grant sworn, says that on the 9th February he was present at a court held at the granary in Sydney. That the plaintiff was brought before that court on certain charges as a prisoner. Mr Grimes acted as the Judge Advocate. Captain Kemp was there as a member. Mr Moore was there, Lieutenant Laycock was there, Lieutenant Minchin and Lieutenant Lawson were there, to the best of his knowledge acting as members of the court. Witness heard Mr Grimes give directions to Mr Bayley, acting Provost Marshal, to gag the plaintiff when entering on his defence. The order was repeated, but in point of fact the plaintiff was not gagged. Witness believes he was present during the whole time. He heard the charges read but does not recollect the nature of them. He did not hear any witnesses called to support those charges. He says there was a paper [77] produced purporting to be an indictment. Plaintiff asked permission to produce witnesses in his defence, and was refused by the Judge Advocate, the other members being present. Witness says Mr Grimes said words to the following effect, "this is not an indictment but a charge and we will proceed in our own way". He recollects Mr Grimes saying they could not compel Governor Bligh to attend. Witness heard Mr Grimes pronounce the sentence, and believes it was seven years transportation. The Judge Advocate took down the proceedings upon paper. Subsequent to the sentence and a short time after, witness saw the plaintiff in Sydney gaol.

Cross-examined by Mr Bailey. Says that the charge or one of them was that the plaintiff gave evidence in a court of justice after being convicted of perjury.

Daniel McKoy, sworn. [Evidence struck out of record.]

Lawrence Davoren sworn, says that he was at Newcastle in this territory in 1808.

It is admitted by the defendant Mr Throsby that plaintiff came into his custody at Newcastle on February 20, 1808 and continued in it on the 19th September. He also admits that he Mr Throsby was then Commandant at Newcastle. I went away on the 19th September following.

Witness says that the defendant Mr Villiers succeeded Mr Throsby in September. That Mr Crossley continued in custody during the whole time Mr Villiers had the command there. That Lieutenant Lawson succeeded Mr Villiers. That the plaintiff continued in Mr Lawson's custody until the 10th January 1810.

There the plaintiff closed his case.

The defendants acted by orders of Major Johnson then Commanding Officer, and rested upon this defence. The court having taken the case into their mature consideration do award [78] that the said Nicholas Bayley esq., that the said John Brabyn esq., the said Charles Villiers esq. and the said Charles Throsby esq., are not guilty of the said trespass and false imprisonment by the said plaintiff above complained against them; and that the said Anthony Fenn Kemp esq., William Moore esq., Thomas Laycock esq., William Minchin esq., and William Lawson esq. are guilty of the said trespass and false imprisonment by the said George Crossley above complaint against them. And the court do further award that the said George Crossley by reason of the premises hath sustained damages to the amount of ¿500 and costs of suit.

By the court, Ellis Bent, Judge Advocate.

 

Court of Appeals

Governor Macquarie, 12-13 April 1810

Source: Proceedings of the High Court of Appeals, 12-13 April 1810, State Records N.S.W., 4/1724

 

[5] Appeal 3rd. Between Anthony Fenn Kemp esq. and others - appellants

George Crossley - respondent

Appellant's memorial read appealing from the decision of the Court of [6] Civil Jurisdiction made and recorded in a cause wherein the said George Crossley was plaintif and the said Anthony Fenn Kemp, William Moore, Thomas Laycock, William Minchin and William Lawson esquires were defendants to recover the sum of ¿30,000, alledged and declared to be damages sustained by the plaintif for trespass and false imprisonment and in which cause judgment had been given for the said George Crossley as plaintif against the above named defendants for ¿500 with costs on the __ day of __ 1810.

His Excellency observed to the appellants that he considered it out of the usual course of the practice of the Courts of Appeal in this territory to hear or receive fresh evidence on the case before him, but if the appellants wished his Excellency to re-examine either by written interrogatories, or viva voce evidence, any of the witnesses produced in the court below, or if they saw occasion to add any thing further to their appeal, he was ready to allow it.

Whereupon John James Grant being called and sworn at the instance of the appellants is asked by Captain Kemp, one of the appellants. Question. 1st. Did it appear to you on the trial of the respondent that any member of the court acted from motives of malice towards the respondent?

Answer. No, it did not.

Question. 2nd. Was not the behaviour of the respondent so very refractory and turbulent, denying the legality of the court, as to require the Judge Advocate frequently to call him to order?

Answer. It appeared so to me.

Question. 3rd. Was the court conducted in the usual manner on this occasion, and did it appear to you that the proceedings were committed to paper?

[7] Answer. According to what I have seen in the colony.

Cross-examined by respondent. Question. Did you ever know in any criminal court a defendant refused to be let to plead or to call evidence?

Answer. I never did.

Question. Did you not hear me say I would plead to the charge and call evidence?

Answer. I did, and Mr Grimes the acting Judge Advocate in reply observed that the statute on which you were tried required no evidence.

Question. Did you not hear Mr Grimes say in answer that it was a charge and not an indictment and that they would proceed in their own way?

Answer. I believe that was part of Mr Grimes' observation.

Question. Did you not hear Mr Grimes ask me what evidence I meant to call?

Answer. I cannot recollect.

Question. Did you see me deliver in a paper supposed to be a list of evidence?

Answer. No.

Question. Explain to the court in what manner my conduct was so turbulent and refractory.

Answer. By disobeying the orders given by Mr Grimes the Judge Advocate commanding you to silence.

John Palmer called and sworn at the instance of the appellants. Question. Did not George Crossley prepare the indictment or information which was exhibited before the criminal court on the trial of John McArthur esq.?

Answer. I cannot say. I do not recollect.

Question. Has not George Crossley acted as attorney or agent for you in many causes in this colony?

Answer. He has assisted me in many causes.

Question. In what capacity?

[8] Answer. As a lawyer from whom I asked legal information.

Examined by Mr Crossley. Question. Have you not known Mr Atkins, the late Judge Advocate for several years, writing to me frequently for opinions in matters arising in the colony, for my advice as a council, or a man knowing the law of the country?

Answer. I have understood so from Mr Atkins.

Question. In that character have I not acted also for several years giving you legal advice?

Answer. Yes.

Question. Have you any reason to complain that I have misled you, or misconducted myself in any advice I have given you?

Answer. No, or I should not have employed you.

The court adjourned to 12 o'clock tomorrow.

Wednesday the 13th day of April 1810. At 12 at noon the court sat.

Appeal - Anthony Fenn Kemp esq. and others - appellants.

George Crossley - respondent.

The decree of his Excellency the Governor was read, previous to which his Excellency was pleased to express his high disapprobation of the very improper and indecorous language used towards the respondent in the appeal delivered in by the appellants yesterday and read to the court, which his Excellency deemed highly unbecoming from the appellants and offensive to the court.

           [9] Decree                                           By his Excellency, etc., etc., etc.

Whereas the Patent for establishing etc., etc. An appeal having been brought before me on the twelfth day of this instant April

between Anthony Fenn Kemp esq. and others - appellants.

George Crossley - respondent.

and having duly and impartially considered the evidence and documents brought forward and exhibited in this cause in the court below, and having also at the instance of the appellants re-heard two of the witnesses who had given their testimony in the said court, I the said Lachlan Macquarie esq. Governor in Chief as aforesaid and Supreme Judge in the High Court of Appeal do adjudge and decree as follows that is to say.

That in consideration of the absence of the Judge Advocate, Mr Charles Grimes who presided at the criminal court before which the respondent was tried and by whose superior judgment in the law the appellants must be supposed to have been greatly influenced and principally guided in giving their verdict and consequently that Mr Grimes the Judge Advocate, if forthcoming and now on trial before the court would be found in a greater degree guilty than any of the appellants who sat as members at the said criminal court under him, and would therefore share at least in an equal degree the responsibility as well as a proportion of the damages awarded by the court below against the appellants, and as [10] it appears hard and repugnant to the principles of equity that the whole of the said damages should fall upon and be borne by the present appellants only, while the said Mr Grimes as Judge Advocate as aforesaid must be considered equally and proportionably liable thereto. And moreover in the consideration that great allowances should be made for young and inexperienced military men composing a court of the before mentioned description and that the smallness of their incomes should also be considered and their consequent inability to pay heavy damages, I therefore in consideration of all these circumstances do mitigate the verdict of the court below against the appellants and reduce the same accordingly to three hundred pounds damages and costs of suit.

Given etc., etc. the thirteenth day of April in the Year of our Lord one thousand eight hundred and ten

(signed) L. Macquarie.

Note

[1] George Crossley, the ex-convict attorney, was one of the principal victims of the rebellion against Governor Bligh on 26 January 1808. This was the most important of the civil actions brought as a consequence of the coup, and provides first hand accounts of the events of that day.

Crossley had been a legal adviser to Bligh and to Richard Atkins, the Judge Advocate. Atkins and Bligh headed the principal courts of the colony, though neither of them had any legal qualifications. They were dependent on Crossley's legal skill, despite his reputation for dishonesty.

During the period of illegal government, Crossley was prosecuted before the Court of Criminal Jurisdiction, convicted and sentenced to Coal River ( Newcastle ) for seven years. It was a place of secondary punishment for convicts who were found guilty of further offences committed while in New South Wales. The basis of the blatantly political charge against him was that he had given evidence after having been convicted of perjury in England. This political prosecution and punishment was sufficient for the civil court and Governor to allow Crossley to sue the members of the rebel court.

See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 39-40.

For other cases concerning the coup, see R. v. Gore, 1808; R. v. Sutter, 1808.

Published by the Division of Law, Macquarie University