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

Marsden v. Lawson and Douglass [1823] NSWKR 4; [1823] NSWSupC 4

magistrates, appeal against - James Ring case - Governor's Orders - trespass, assessment of damages - convict regulations

Supreme Court
Field J., Third Term 1823
Source: Historical Records of Australia, Series 1, Volume 11, 775-780 [1]

This is an Action of Trespass brought against two Magistrates of Parramatta for seizing a Piano forte on the 9th of July last, which the Plaintiff redeemed for £10 2s. 6d.; and the Defendants Plead (first) that they were Justices of the Peace, and that, on the 17th of May previously, it was adjudged by the Bench of Magistrates at Parramatta that, on the 26th of March, one James Ring, an assigned Servant to the Plaintiff, was not employed on the Plaintiff's Premises, and the Plaintiff permitted him to employ himself and be on his hands contrary to the Government and General Orders, and the Plaintiff was convicted thereof and adjudged to forfeit and pay £10, and also 2s. 6d. for one day that the said James Ring was absent; and that afterwards, on the 7th June, the Defendants issued their Warrant, and the Goods were taken by the Constable, until the Penalties were paid; and (Secondly) that one John Thorn, Chief Constable of Parramatta, informed the Bench of the Offence, and that the Plaintiff was thereupon summoned, appeared and confessed, and was thereupon convicted on such voluntary Confession. To these Pleas, the Plaintiff only replies by denying that, on the 26th of March, he permitted James Ring to be on his own hands against the Government and General Orders, but employed him himself with only lawful indulgences, &c., without negativing the information of Thorn or the being summoned or convicted thereupon; the only Issues that we have to try therefore is whether the working abroad in question is a breach of the Government and General Orders or not; and if we should find any discrepancies between the Proceedings before the Magistrates and the Pleas of Justification, we can only look at them as shewing the Animus of the Defendants in their Adjudication and Warrant, i.e. whether it was a bona fide though mistaken (if mistaken) judicial and ministerial transaction, or whether it was a wanton trespass upon the property of the Plaintiff under Colour of the Government and General Orders. If it were the former, i.e. an honest mistake of the Laws (if it was a mistake of the Laws at all), yet it was a Trespass for which the Plaintiff will be entitled to recover the £10 2s. 6d. If the Court shall be of the opinion that it was the latter, i.e. A wanton trespass under colour of the Laws, the Court will say what further compensation the Plaintiff is entitled to for any malice we may imply, for none is charged or specifically proved. First for the facts and then for the Colonial Laws. It appears, by the testimony of Bradley the Clerk to the Bench and from his Minutes of Proceedings, that on the 17th of May the Plaintiff was summoned to appear, and that (without the informant Thorn's opening his mouth in the Office) the Plaintiff confessed that he had often permitted his assigned Convict Ring to work for other People as a Painter and Glazier, when he himself had no occasion for his services in those or any other capacities, and that though Ring boarded with him he was suffered to lodge out of his house, and even to put up a signboard at his lodgings. And upon this confession the Bench convicted him under Government General Orders of the 24th of July, 1813, and 6th January, 1804, in the vague Penalties of 2s. 6d. per day for every day on which he was suffered to be employed, without taking Evidence of the number of days and without saying a word about the £10. This conviction was minuted by the Bench to be expressly under the Government and General Orders of 1813. Bradley further states that they Defendants then wrote to the Solicitor for the Crown and afterwards, without resummoning the Plaintiff, privately adjudged a new Conviction which is the only one set out in the Warrant, but which is not entered in the Books of the Office; this Conviction recites an information on the 17th of May (not on the oath) of Thorn, and first condescends upon a day of Offence, vizt. The 26th March preceding, whereby the Plaintiff hath forfeited £10 and 2s. 6d. per day, and states that Thorn prayed judgement and the Plaintiff might be summoned. Whereupon (it proceeds) the Plaintiff, having been duly summoned afterwards on the 17th of May aforesaid, confessed. &c. And did not shew any cause why he should not be convicted of the Offence so charged, &c. The Conviction then goes on to a judge £10 2s. 6d. and is dated also 17th May. Bradley adds that, on receipt of a Copy or intimation of this second conviction a fortnight after the first, Plaintiff appeared before the Bench again and protested against it. A warrant to levy was then made out and dated the 7th June in pursuance of the second Conviction, And under this Warrant the Distress now complained of as a trespass was made.
It may be as well mentioned here that by a Letter, dated the 17th of May, the Defendant together with Dr. McLeod another magistrate (who does not appear to have been present at the hearing of the Case) signed a Letter to the Governor submitting their opinion upon the case to him together with what they now call the Plaintiff's defence, and that they received for answer that the Governor found no reason for his interference with the due Administration of the Colonial Law. Upon this Letter it has been very justly observed by the Plaintiff's Solicitor Mr. Norton that, if Dr. Macleod's [?] signature was intended to convey to the Governor that he had heard the Case and joined in the Conviction, it was a very dishonest conveyance of an opinion to the Governor, as that of three Magistrates. Whereas it was only that of two, and it is impossible to say how far the additional name may have influenced His Excellency's mind. The Clerk of the Bench does not know, who gave the information; he is always present in the Office that saw no Informer, and Thorn himself now says that he gave no information on the 17th May, And therefore the Plaintiff could not examine him; but that a week before that he did tell Dr. Douglass generally that Ring was working on his own hands, and, between the times of Mr. Marsden's first and second appearing before the Bench, he told the Doctor of the specific Offence of the 26th March at the house of Mr. Eyre, but that this was not entered in the books of the Office as an information. Now this circumstance shews that these proceedings were at least slovenly and hasty, and that it was not until after the Defendant had communicated with the Government that they adjudged any other than the uncertain Conviction of 2s. 6d. per day under the Orders of January, 1804, and July, 1813; they then discover a Government and General Order of the 12th January, 1802, containing a Penalty of £10, and the Solicitor for the Crown advises them of the necessity of tinkering the proceedings by an information and a date, and then the second conviction pretends that there never was any other, and that Mr. Marsden was duly summoned upon that information for the Offence of the 26th of March, for which the informer prayed the penalty of £10 2s. 6d. If the Court see that this was not the history of the Case, that Mr. Marsden was never summoned upon any information for any Penalty of £10 for any day, but was generally summoned without information for an uncertain number of Penalties of 2s. 6d., and was convicted only of those un-numbered and unascertained Penalties of 2s. 6d. per diem, Although from the Plaintiff's not having denied that part of the Defendant's plea, which details only the second conviction, the Court cannot hold it unproved. Yet it is a material ingredient, by which we are to judge of the good faith of this Conviction, And whether this was a trespass under a mistaken sense of the Laws, or a wanton and one under colour of them.
Now for the Colonial Laws, the Defendants, although they render their first conviction as under the Government and General Orders of 1813, now rely solely upon a Government and General Order of 12th January in a printed Book of Governor King's Orders, and which runs as follows, "The unwarrantable behaviour of the Prisoners sent to the Government harvest at the Hawkesbury and Toongabbee, who are dispersed about in consequence of their having been allowed to take their time, has been such as to render the following Orders necessary.
"Any persons applying for Prisoners off the Stores, who do not employ them on their own Grounds, suffers them to be on their own hands, or hires them out, will on conviction before two Magistrates forfeit £10 to the Orphan School, besides 2s. 6d. for every day such Prisoner has been from Government labor."
Now without saying at present that the Preamble of this Order necessarily makes it local and temporary, it must be observed that, of this of Orders, only two Copies are known to exist in the Colony; but then in one Almanack [sic] of 1813, this Order does not appear to be included in what is called an Abridgment of General Orders published by Authority. In their Almanack for 1814, containing a similar abridgement, it is omitted, and Bradley swears that is the only Almanac the Defendants had when they made the first Conviction, and indeed the Conviction was expressly recorded to be made under the Orders of July, 1813, which therefore could not be in that Almanac published on the first of January of that year. Under all the circumstances of uncertainty and confliction of these Government and General Orders, we listened to the opinion of the most experienced Magistrates upon the State of the Colonial Law as to lending out assigned Convict Servants, and not one of the Magistrates, called either by the Plaintiff or Defendants, considers this Order of 12th January, 1802, in operation. It is omitted in the Almanac of 1814 and, for the most obvious of all reasons, because in the very next Page of the Abridgement is a conflictory Order of a later date, vizt. 6th January, 1804, saying that assigned servants are to work for their Master in their own time in preference to any other Person; And this is not only the latest but the best considered Law of the legally drawn Indenture by which Convicts were thenceforth to be assigned; And this 4th Order of the 12th January, 1802, is never after that referred to in the Colonial Laws and indeed it is only once repeated before that, namely, together with the oldest Order upon the Subject, dated 1st June, 1801, on the 23rd January, 1802, only a few days after its Enactment; Whereas that old order of the 1st June, 1801, is again repeated, without the Order of the 12th January, 1802, on the 17th April, 1802, saying that, if any master turned his servant over to another or lets him out to him, he will incur the Fine directed by what? By the Order of the 12th January, 1802, No ! by the Order of June 1st,1801, vizt. 2s. 6d. per Diem; there does therefore seem to be reason the calling the Order of 12th January, 1802, as local and temporary, and its preamble. It appears by the evidence of Mr. Cox, Mr. Wentworth, Mr. Harris, and Mr. MacArthur that a case like the present happens every day without being considered illegal and that the Defendant Lawson has thus hired two of Mr Harris's and one of Mr. Lowe's assigned servants; nay that Governor Macquarie used to assign Blacksmiths by preference to such Gentlemen as he thought would then lend them to help their neighbours. Mr. Cox, Mr. Harris and Mr. McArthur add that Governor Macquarie told them he had caused the Abridgement of 1814 to the made in order that the Magistrates might be guided by a known rule. And that the Benches never went further back than that, And indeed had nothing to go further back by, any more than the Defendants in this Case had, upon the first Conviction. Mr. Wentworth and Mr. Campbell confirm the fact of Governor Macquarie having authorised the abridgement of 1814, and the latter adds that it was made by the then Judge Advocate Bent; but they say they never considered as containing all the Orders in force, although they admit they do not know how to get at those before the Institution of the Sydney Gazette; but they say that, if there were Orders in the Almanac of 1814 contradicting or qualifying former Orders upon the same subject, they should go by the latest Almanac, so too says Mr.Reddall, the Defendant's own witness. As for Mr. Wentworth, the most experienced perhaps of all, One of the first cases that came before this Court in 1817 was that of his assigned Sadler who was, under certain Government and General Orders of the 4th October, 1798, and 8th August, 1801, exempted from Civil Arrest as a Servant of the Crown, although he kept a Shop in this Town and was sworn by two Persons to be considered as a Free man; this Order of the 12th January, 1802, was never thought of being set up in Answer to the legality of that Excuse then, altho' Mr. Moore was the very Solicitor whose purpose it would have served to have done so; that was a strong Case, but Mr. Wentworth says stronger ones were decided by him every day; and we know till lately Superintendents and Overseers were allowed to sell the entire Services of their Convict Servants all the year round for so much a week; not a single precedent for such a Conviction as this can be produced by the Defendants; that referred to by the Clerk of the Parramatta Bench was the Case of a Carpenter assigned for 3s. 6d. by the Government under Bond, And who had been passed at large by his master for a month; that spoke to by Mr. Reddall was Case in which the master was privy to the illegal purposes for which the Servant was let out, and even then the Penalty of £10, which Mr. Reddall understood was the Law although he did not find it in the Almanac of 1814, was mitigated by him. Mr. Cox adds that it was he that assigned Ring to Mr. Marsden, who said he wanted a Singer for the Church, and it was proved that he was always employed as such Singer on Sundays and in whatever Mr. or Mrs. Marsden had to do on Week days, And all the Witnesses know he was Mr. Marsden's Servant except one old woman.
Under these circumstances it was for the Court to say whether the Defendants' first thoughts of this Conviction was not the best, namely under the law of the Almanac of 1814, or rather whether they would not have thought better still if they had taken the spirit of that Abridgement throughout; and even they would have seen that masters are virtually permitted to lend their assigned Servants out by the latest Order, that says they shall do there Master's own work before they work for others in their spare time. Whether the object of these Orders is not merely that the Master shall be responsible for the Servant and always have him under his control, and, as long as this intention of the Orders is fulfilled by the Master, the Magistrates ought not to interfere further than to see that he employs the Servant bona fide in his Service and does not make a trade of him.
If the Court shall agree with all the Magistrates, who have been examined in this opinion, then they will say by their Verdict whether this was an honest mistake of the Law or a wanton trespass under Colour of it.
Dr. Douglas is a young Magistrate, and, were it not for the after interpolation of the information and the alteration of the adjudication, might be supposed to have erred in judgement; but how this excuse can be pleaded for an old Magistrate like Mr. Lawson (who has himself hired other Magistrates' Convict Servants) I cannot imagine; he must have erred knowingly, and against him malice or mean a motive must be implied.
It is certainly a pity that the Colonial Laws have long ere this been revised and digestive by skilful authority; the Commission of Enquiry recommends this as still to be done under the advice of the Magistracy, and expressly says that some of the Orders are obsolete and incapable of reference, and it is therefore that he objects to the Proclamation that I drew giving authority to the Magistrates to enforce the Fines in all the Orders that have been issued by the several Governors. My Proclamation leaves the question open to the Magistrates to judge whether the Orders of the 12th January, 1802, is one of these that are in force, or whether it is obsolete, incapable of reference, or virtually rescinded by the later Order, allowing Convicts to work for other Persons after they have served their masters, and therefore one of those to which my Proclamation, merely point out the mode of levying existing Penalties, applies or not.
To be sure if all the Orders in this unique Copy of Governor King's Code are to be resuscitated at the discretion of any young Magistrate, we live in perilous times similar to those described by Lord Bacon, when he urges the necessity of amending the English Statute law; the first (says he) there are a number of ensnaring penal Laws which lie upon the subject, And, if in bad times they should be awaked and put into execution, would grind them to power. And there is an accumulation of statutes concerning one matter, and so cross and intricate that the certainty of the Law is lost in the heap. Wherefore in Cases of Penal Laws Judges ought to have care that that, which was meant for terror, be not turned to rigour, and that they bring not upon the People that shower whereof the Scripture speaketh the pluet supereous laqueos, for Penal Laws pressed are a shower of snares upon the People; therefore let Penal Laws, if they have been sleepers of long, or if they have grown unfit for the present time, be by wise Judges confined in their Execution.
I hope I have stated this Case and the construction of the Colonial Laws fairly and impartially. I am extremely sorry to see a Gentleman of Dr. Douglass's talents, and with whose acquaintance I was once honoured, involved in such an Action. Of the other Defendant, I know nothing and think there is no pity due to him; he must have sinned with his Eyes open; Dr. Douglass is not proved to have committed the same Offence of lending or hiring a Convict Servant. If it is an Offence, and the Members of this Court and equally free in their Judgement, It is well that I have never had interest with any Governor to procure an assigned Convict Mechanic. If the Court are of opinion that the occasional lending of an assigned Convict is not against the Government and General Orders, but on the contrary permitted by the latest of them, the distress is a trespass for which the Defendants are civily answerable in damages; if they think the Defendants erred merely in judgement, still it was a trespass, but they will give no more Damages than the £10 2s. 6d. If they think they erred wilfully that they charged and at first convicted Mr. Marsden upon the Law and afterwards varied their Proceedings by a secret information up on another discovered Law, upon which Mr. Marsden had no opportunity of defending himself, and by a second Conviction, they will imply a persecution if not malice, and give such damages for such a trespass as they may consider just.
The Court thought that, as the Plaintiff had neither alledged nor proved malice, the Justice of this Case would be satisfied by giving the actual damages sustained with full Costs.


[1] This concerns the James Ring case, which caused such controversy among the magistrates of Parramatta. Ring was a convict assigned to work for Reverend Marsden, who was one of those magistrates. In breach of several of Governor King's orders, Marsden allowed Ring a great deal of personal liberty. His fellow magistrates imposed a fine on Marsden, and later enforced the fine by seizing and selling his piano. Marsden then sued the magistrates in the Supreme Court, before his close friend Judge Field. Chief Justice Forbes later enquired into this case and concluded that it was very clear that Marsden had broken the law. Are we to conclude, then, that in this case Judge Field acted partially towards his close friend the plaintiff?
See C.H. Currey, Sir Francis Forbes, Angus and Robertson, 1968, chapter 14, including his comment on the relationship between Marsden and Field (at 145).

Published by the Division of Law, Macquarie University