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

Broadbear and wife v. McArthur et al. [1827] NSWSupC 16

i false imprisonment, master and servant, schools, education law, Stephen J., complaint against, Forbes C.J. and Governor Darling, conflict between, magistrate, action against, separation of powers

Supreme Court of New South Wales

Stephen J., 14 March 1827

Source: Sydney Gazette, 17 March 1827

Mr. W. C. WENTWORTH stated, that before he went into the case, he would enter a noli prosequi[1 ] as regarded four of the defendants, namely, J. Harris, Wm. Lawson, J. Palmer, and G. T. Palmer, Esqrs. [2 ]   The remaining defendants were Loughlin McAllister, J. Bowman, and J. McArthur, Esqrs.   This was an action of trespass on the case brought by the plaintiffs, Richard Broadbear and Mary his wife.  The declaration set forth, that the defendants, being Justices of the Peace, did, on the 26th day of April last, at Parramatta, maliciously, and without any reasonable and probable cause, convict the said Mary for leaving her appointment at the Orphan School, and caused her to be imprisoned in the house of correction, till discharged by order of the Supreme Court upon the proceedings which were brought up by writ of certiorari, being quashed as being illegal by the said Court.  The damages were laid at £300.  To support actions of this nature, which were for malicious convictions before Magistrates, it was necessary there should be a want of probable cause in the proceedings, before them, to justify the conviction.  It was not necessary that any express malice should be proved; because where want of probable cause was clearly shewn, the fact of malice having existed was an inference of law, (5 Taunton, 579 and 5 Marsh. 220) and the present action was clearly sustainable, if it were shewn that there was no evidence before the Magistrates justifying their conviction, independent of any proof which the plaintiffs might be able to bring forward of express malice.  That this was a malicious proceeding, he thought obvious from every step which the Magistrates took throughout the whole of the case.  At the time when the conviction was quashed by the Court, it was shown that a series of the most unaccountable irregularities had taken place throughout, and th[a]t in fact, not one provision of the Act, under which the plaintiffs were convicted, had been complied with; that the complainant, which was the Archdeacon, had not laid his complaint according to law; and that, by his influence, he had induced one of the Magistrates to issue as a warrant of summons for these parties without an oath, or any proof that he was their employer; and that, in fact, all the preliminary proceedings were so manifestly irregular, that it was impossible the Magistrates could have been ignorant of their irregularity.  It was not, however with this act of the Magistrates that he had much to do with in the present case.  As regarded four of them, he had entered a noli prosequi, because they happened to be the regular Bench of Parramatta, and he would therefore suppose that they were present in the course of their ordinary duty.  The case however, as to the other Gentlemen, was widely different.  With regard to Mr. McAlister, he disbelived altogether that he was a Magistrate for the Colony at the time when this occurrence took place; and that belief was strengthened from the Public Notice of March 7, 1826, whereby he, in conjunction with Mr. Charles Throsby, was appointed a Magistrate for the district and County of Argyle alone.  The reason for making the Gentleman a defendant to the action was, that on this particular occasion, he was out of his ordinary jurisdiction; that it was the first and only time he ever sat at Parramatta before or since, and that it was scarcely to be supposed that he happened, just in the nick of time, to be 160 miles from his ordinary place of abode, and that he dropped down upon the Parramatta Bench by mere accident, and without any previous solicitation it was not probable, and he (Mr. W.) did not believe it was so. The same reason induced him to proceed against the others; for, though they were Magistrates for the Territory, the attendance at the Parramatta Bench would be proved to have been the most scanty.  The principal question for the Jury, in this case was to consider whether or not there was any probable cause produced before the Magistrates to justify the conviction, and the best way of ascertaining that fact was to examine the proceedings before the Bench which had been brought up by certiorari, and which he would then read to them.  Mr. Wentworth then read the proceedings that took place before the Bench at Parramatta, by which it appeared that the plaintiffs were the hired servants of the R. William Walker, late Master of the Female Orphan Institution; that, on engaging with him, they expressly stipulated they were to leave the Institution at whatever time he resigned the charge of it; that, on his quitting in April 1826, they also left their situations, for which act, not having given notice, upon the complaint of the Venerable the Archdeacon, who stated, that he considered them the servants of the Institution, the Magistrates sentenced them to 3 months' imprisonment in the house of correction.  The whole of this case against the parties, continued Mr. Wentworth, was maintained by evidence given on the part of the Archdeacon, for he never condescended to appear, by the Reverend Mr. Keane, that when he took charge of the school in succession to Mr. Walker, he found these parties absent, and that he did not consider Mr. Walker had a right to discharge any servants.  What evidence, he would ask, was there before the Magistrates to call on the defendants to make any defence?  There was no proof whatever of any hiring by the Archdeacon, nor that they were his servant, nor the servants of the Institution; there was not a shadow of a case against them under the provisions of the Act of the 6th Geo. III on which the conviction was grounded; and the Magistrates, if they had conscientiously done their duty, could not have done any thing else but dismiss the case altogether. There was nothing to call on the defendants for their defence; but they did, notwithstanding, go into a defence.  They very naturally called on their late master Mr. Walker, who proved that the defendants expressly engaged with him, and also expressly stipulated to leave the Institution at whatever period he should leave it; that he considered them his servants, and under an express contract with him, though their wages were paid by Government, but which, if not so paid, he considered himself responsible for, but, admitting that their wages were paid by the Government, did the mere act of paying wages constitute a hiring? Did it bind down the parties to remain at the Institution for any time?  But Mr. Walker expressly went on to specify the nature of his contract with these people; that he mentioned it to the Committee, who concurred altogether in it, without any remark whatever; and that, in fact, they entered into express stipulations to do that very act for which they were afterwards brought before the Magistrates and convicted, namely, to leave when Mr. Walker left.  He would ask, what probable cause was there for such a conviction?  Was there one solitary circumstance upon the whole case, upon which any reasonable mind could justify it; or, even supposing that they were amenable to the act, to shew that they had transgressed its provisions, or, in fact, did any thing more than withdraw from the Institution in the very way they had stipulated to do?  In the absence, then, of that probable cause which could only justify this conviction, the inference of the law was, that the Magistrates, in so convicting, had acted maliciously; and, that the three defendants before the Court had so acted, there was the strongest chain of circumstances in the world to conclude.  With regard to Mr. McAlister, within one short month, or less, by a day, after his being appointed a Magistrate, he is found at the distance of 160 miles from home, and sitting, for the first time, on the Bench, on the very day when these parties were brought up.  It was incumbent on the Jury to look at who this Mr. McAlister was.  He, as well as the other defendants, was the intimate and private friend of the prosecutor, the Archdeacon, and he, (Mr. W.) had not the least doubt, owed his appointment, as a Magistrate, either to the influence of the Archdeacon, or of Mr. McArthur's family, with whom he was connected as superintendent over, or in a partnership in some cattle concern.  Would anyone believe that, under those circumstances, those gentlemen were on the Bench, on that day, by mere accident?  He did not pledge himself to prove direct solicitation, but he called upon the Jury to look at the facts.  How came Mr. McAlister to be there at the very moment when his patron, or his friend, or master, for aught that was known to the contrary, wanted his assistance?  Oh! by accident, it would be said!  What brought Dr. Bowman there?  What brought Mr. James McArthur there, whose ordinary jurisdiction was at Cawdor?  Was that accident too?  How opportune!  Both these gentlemen were the intimate friends of the Archdeacon, who was the prosecutor in the case before them; and was it not a little extraordinary that his intimate friends, one living at Sydney, and the other at Cawdor, should happen so accidentally to be present?  What a rare and fortuitous occurrence!  Was it probable that they happened to be present on this occasion, without solicitation direct or indirect?  Would it be believed that they did not know this case was coming on, and went there purposely?  If such was their motive for attending, were they, or were any men who would so act, fit to be in the Commission of the Peace one moment longer?  Did it not smell of a packed Bench?  That such was their motive, however, he would give the Jury still stronger reason to believe, as it would be proved by the evidence of one of the Magistrates on the Bench at the time, that these three gentlemen stood alone in awarding the full measure of punishment allotted by the Act, and that they, in fact, were the operative men who decided the case of their Venerable Friend, and pronounced a decision which was a scandal to themselves --- a scandal to the Colony.  If, then, he proved these circumstances, or without proving any of the latter facts, upon the direct evidence that, before the Magistrates, there was no probable cause for the conviction that had taken place, he contended that the plaintiffs were entitled to a verdict in the full amount of the damages claimed by them.  In the declaration before the Court no special damage was set forth; but, he would ask, was there nothing due to a respectable elderly woman, put in confinement for two months.  Was the loss of character at the time, and the pain and anxiety of mind she must have felt, nothing?  But, say the defendants, we have tendered you £10.  £10 Oh! how he wished that one of them had undergone the imprisonment which the poor woman suffered, only ten hours for that sum!  If any thing like liberal compensation had been offered, he, for one, would have advised his clients to accept of it, and the man who said otherwise did him an injustice.  He did not wish, though it had been said he did, for any exposure; but, he would say, that when bailiffs and underlings were thrust into the Magistracy, it was enough, it should be enough, to drive every respectable man out of it.  It had been said on a former occasion, in the case between the Reverend Mr. Walker and the Archdeacon, that the proceedings of the latter, towards Mr. Walker throughout, were of a vindictive and personal character.  What the nature of those proceedings were would be detailed to the Jury, and it would also be shewn that it was in prosecution of that very feeling against Mr. Walker, that this proceeding before the Magistrates originated.  He knew, or thought, that the Institution might suffer detriment by the want of those people, but it was from his desire to inflict punishment on an old and faithful servant of Mr. Walker, that these proceedings were instituted.  If these people were so clearly amenable to the act, why was it thought necessary that Mr. Keith should be sent up to prosecute them.  From every circumstance that occurred, he was convinced that the Bench, that day, was a packed Bench, and no independent honest mind could arrive at any other conclusion than that it was so.  He had but one observation more to make, and that was on the proposal which had been made, to let this case go to a jury.  The Court had heard how that proposal had been met.  There were a body of Magistrates proceeded against for an illegal act; a part of that body, of which the assessors were also a part.  There then was a case of the strongest grounds to infer, that if an esprit de corps did exist, it would be exercised.  How was the application met?  It was refused.  The opposite side had heard his (Mr. W.'s) observations to the Court on the subject; they had heard the CHIEF JUSTICE, whilst he expresses a desire to decline disposing of the cases, from having, in some measure, pronounced an opinion of it before, intimate that a jury would be desirable, and request Mr. Keith to consult on the subject with his coadjutor; but no jury would be granted.  He wished to make no implication, directly, or indirectly, as the gentlemen who had to try the case; but he would say, it was quite obvious, from the course pursued by the defendants' Counsel, that they thought they had an advantage in having it tried by them; for what other motive, what other design could they have, in thus decorously, contrary in the opinion which dropped from the Court, contrary to the expressed desire of the assessors themselves, in pressing it on them; but the hope that, being a part of their own body, they would deal more leniently with them than a regular jury of the country.  He contended that, after the intimation that fell from the Court, it was a most base and dishonourable transaction; and he sincerely hoped, nay, he was confident, that the prediction of a verdict which those parties had sent forth to the public, would, that day, be falsified.  When the Court recollected all the circumstances of the case; when they recollected that the conviction took place by the intimate friends, together with the bailiff or partner of the complainent, when they considered all those facts, so disgraceful to the Colony, where Magistrates could be found to act as those defendants had acted, he trusted that they would publicly mark their detestation of such practices by meting out the full measure of damages claimed by the plaintiffs in the action.

The Reverend William Walker, being sworn and examined, stated, that he was some time since Master of the Female Orphan School, at Parramatta, the plaintiffs in the action were servants of his, they hired with him at the rate of £25 a-year, which was afterwards increased to £30; they first asked £40, but understanding at that time, that he was to pay them their salary out of his own pocket, they agreed to come to him for £25, observing that they would not serve under any one else for that sum, and expressly stipulating that they would only remain at the Institution as long as he did; witness mentioned the necessity that existed to have some female in the Institution to assist Mrs. Walker, who was unable alone to continue the management of so many children, to Major Goulborn, the then Colonial Secretary, and told him that he was engaging with the plaintiff's; he said they might have their food at the Institution, but would not make any order for wages, and witness, therefore, considered himself responsible to the plaintiff's; some time after, however, Major Goulburn visited the School, and seeing the manifest improvement that had taken place in the children since Mrs. Broadbear had been at the Institution, said, "Mr. Walker, you shall not be out of pocket," after which the plaintiffs' wages were paid by the Government, and witness took the opportunity of putting down their names for £30, instead of the original £25; the contract under which the plaintiffs engaged with witness, was mentioned to the Committee, and to Major Goulbourn, and no remarks whatever made; witness resigned the situation of Master of the Female Orphan School, on account of the general ungentlemanly conduct of the Archdeacon towards him; remembers his calling at the Institution, a day or two after his return from the Derwent last year, in company with Mr. James McArthur, and Mr. Loughlin McAlester; the first thing he required was, the books of the Institution, and witness produced him the class registers, as the first books usually called for, to see the progress of the children; he afterwards called for a journal and ledger, that he had sent from Sydney some months before, when witness told him it was no use his seeing those books for nothing had been done in them, as witness was not going to be a clerk; he then called for another book that was designed to shew the daily expenditure and daily receipts of whatever, great or little, was connected with the establishment, and which witness had paid some attention to, for about a month before, for the purpose of drawing out a systematic plan for conducting that and the other institution, and the original of which was kept by Mrs. Walker and Mrs. Broadbear; when the Archdeacon asked for the original copy, witness told him he should not have it without the permission of Mrs. Walker; that it was a book into which he had not as much as looked himself, because many things were, no doubt, recorded there, which were improper for any but a woman, and a married woman, to look at; witness, however, did send up a message to Mrs. Walker to know whether the Archdeacon might see it; she sent down word by one of the bigger girls, "Oh! no, don't let him see it, nobody ought to see it;" witness told the Archdeacon, on receiving this message, that he should not see the book, when he took out his pencil and began to make some memoranda, calling on the gentlemen who were with him to bear testimony that he was refused the books; witness said no, Sir, you have been only refused that book, and you need not burden the memories of these gentlemen, for I will bear witness to that fact at any time, or set it down in writing if you require it; witness held the book in his hand all the time, and turned over to the last leaf, to shew that the accounts were entered up, at all events to the day before; just as witness made that remark, a message was brought to say, that Mrs. Walker was taken suddenly ill; witness went away, and saw no more of the Archdeacon that time, but whether he went to any other part of the school he can't say; when the Archdeacon came that day, he said to witness it is not you, it is Mrs. Walker I want; his manner of asking for the books, his tone of voice, every word he uttered, were calculated to destroy every shadow of authority that witness possessed over the children; Mr. Walker was in the habit of trembling at the very mention of his name; witness did hold the book in his hand, and thought very often that the Archdeacon was going to seize it; it never came to witness's knowledge that the Archdeacon visited the school on that occasion by superior authority; if he did, it would have made no difference to witness who considers his conduct far more respectful than the treatment he received deserved; will swear most distinctly that he told the Archdeacon, Mrs. Walker says you are not to see this book, and you shan't see it, but I will shew you that the entries have been regularly made up; witness wrote his resignation that very day; will swear positively that he stated the nature of his contract with the plaintiffs to the Magistrates at Parramatta; witness also told the Magistrates that if the people had acted wrong, they acted under his authority, and that he was the person, if any, who should suffer; Dr. Bowman observed, "We wish we could lay hold of you."  Mr. Keith was also misquoting on that day, from an act that did not at all apply to the case, and witness told him so; Dr. Bowman interrupted, and asked him why he was so presumptuous, and witness replied, "for the same reason that I would stand an anatomical examination before you, or your superiors."

Mr. Robert Howe proved that the notice in the Sydney Gazette, dated the 7th March, 1826, appointing Laughlan, McAlister, and Charles Throsby Esqrs Justices of the Peace for the district of Argyle, came in the usual way to the Office, subscribed by the Colonial Secretary, and was inserted by the Authority of Government.

Dr. Harris stated, that he is Police Magistrate at Parramatta, and was one of the Magistrates who convicted Mrs. Broadbear on the 26th of April, 1826, on the complaint of the Archdeacon, for being absent from the Orphan School; Messrs. Campbell, Walker, Lawson, and witness, are the regular Bench for Parramatta; does not remember Dr. Bowman, or Mr. McArthur, on the Bench for twelve months before; cannot say, whether they are the private friends of the Archdeacon.  Part of the ordinary Bench were assembled when Mr. Keith came on that occasion; Messrs. McArthur, McAllister, and Dr. Bowman, came in about half an hour after; witness had no idea that they were coming; in cases of moment witness generally requests the attendance of extra Magistrates, but would never have thought of sending for any of those gentlemen, as they did not belong to the district, though he still considers that they had a right, as Magistrates of the Territory, to sit if they pleased; can't say whether they came specifically on that case; they had not been seen on that Bench for a long time before, but, as to witness's impression on the subject, that was not a fair question, and he would rather decline answering it.

Cross-examined --- There was a difference of opinion on the Bench, about the extent of the punishment to be awarded; Mr. McAlister, Mr. McArthur, and Doctor Bowman, were for awarding the full period of three months; witness conscientiously believes the parties deserved punishment, supposing the Act to apply to the Colony.

W. Lawson, Esq. one of the Magistrates at Parramatta; does not consider the three defendants belonging to that district; witness understood the Archdeacon was the complainant, in the case of Broadbear and his wife; he was not present when they were brought up and convicted; witness believes the defendants are the intimate friends of the Archdeacon, and it certainly struck him as rather extraordinary they should be there; certainly thought then, and retains the same impression still, that they attended on that particular case; the defendants were for awarding the highest punishment of the act.

Cross-examined. --- Witness did think it rather extraordinary that the defendants should have been there on that particular case; can't say that brought them there, or whether they were packed; if the Act applied, he certainly did consider the plaintiff's Government servants, and that they ought to be punished.

Re-examined. --- Mr. Walker stated, before the Bench, that they stipulated to remain only as long as he did.

Mr. J. W. Fulton, Clerk to the Bench of Magistrates at Parramatta, stated, that during the time he has held that situation, for three years, he never knew Mr. James McArthur, to sit there as a Magistrate, but once before this day, and that was in a case of horse stealing, in which his cousin, Mr. H. McArthur, was the complainant; Doctor Bowman only sat once, during that period, and Mr. McAlister never, except on this occasion; did not think any thing of the matter when the gentlemen first came in, but afterwards concurred in the universal opinion, that it was extraordinary they should come to sit on that particular case; has no doubt they are the particular and private friends of the Archdeacon, and, as far as private opinion goes, thinks they were there by his solicitation.

Cross-examined. --- Witness's reasons for thinking so are on account of some unusual harsh treatment he met with on that occasion; a kind of suspicion was imputed by those Gentlemen, that he was not taking the evidence down fairly.

The case for the plaintiffs having closed, the Court was adjourned by consent, in consequence of the lateness of the hour, to Thursday morning, to enter on the defence.

 

SECOND DAY.

 

THURSDAY, MARCH 15. --- Mr. Keith addressed the Court in behalf of the defendants.  The present was a case of considerable moment, not only to the parties concerned, but to the Colony at large; and, looking at it in that light, he was only sorry that the defence had not a better advocate, though he trusted that the cause would not be injured, nor the defendants prejudiced on that account.  In considering the address of Mr. Wentworth, at the opening of the case, he, Mr. K. would commence his observations with that portion of it, with which the Learned Gentleman concluded, namely, the request that had been made to submit the case to a Jury.  When that request was first made to him, and Mr. Moore, as Counsel for the defendants, it was at a time when it was impossible to have any communication with either of them, with the exception of Mr. McArthur.  That gentleman, when the subject was mentioned to him, most unequivocally declared his total unconcern as to what way the case was tried, whether by a Jury, or by Assessors, he left the settling on that point entirely to his Counsel; but not being able to have any communication with the other defendants at that time, and in consequence of some animadversions that appeared in one of the Newspapers on the very case upon which the action before the Court was grounded, and which tended, in a considerable degree, to bias the public mind against the Magistrates, then Counsel thought that a Jury would not deal fairly with their clients by allowing that mode of trial, conscious as they were, that they would not receive an impartial verdict from the reasons he had already stated.  He (Mr. Keith) would never be swayed by the opinion of any man, nor even of the Court itself, which could not be aware of the circumstances under which the defendants' Counsel acted; and he would, therefore, cast back the imputations thrown upon himself and Mr. Moore, that they had acted disrespectfully and disreputably, to the source whence they emanated.  All who knew Mr. Moore --- the whole Colony were convinced that he was the last man in it who would act so.

Mr. Wentworth --- Really I must interrupt you, Sir; I deny that I made use of any allusion towards Mr. Moore, or you either.  My allusion was to the defendants; and, I repeat, that the line of conduct they pursued was most disreputable, most dishonourable.

Mr. Keith was satisfied with the learned Gentleman's explanation, and would next proceed to that part of the case which had reference to the character of a Gentleman not before the Court, on whom, what he conceived, a gross attack had been made.  A disavowal had been expressed by Counsel for the plaintiff, that he brought the case forward for the purpose of injuring the Magistrates.  He believed that Gentleman; but, at the same time, he was convinced that the actual prosecutor, Mr. Walker, was actuated by no other motives, than to traduce the character of the defendants, and of the Archdeacon.  Mr. Keith then proceeded, in an address of considerable length and ingenuity, to comment upon the evidence for the plaintiffs, and stated that he would call witnesses to disprove the assertion that any of the defendants had attended on the Bench, at Parramatta, at the solicitation, direct or otherwise, of any individual; that Dr. Bowman was in Parramatta on that very day on medical business; that Mr. James McArthur attended as a complainant in a case of stealing fruit, in which his father was concerned, and that Mr. McAllister's sole motive for sitting on the Bench, was from the circumstance of his having been but a short time before appointed a Magistrate, and his desire to see how business was conducted.  Mr. Keith concluded, by again regretting that the defendants' case had not a better advocate, and observed, that he should first call Mr. Walker to elicit from him again the particulars of his statement made yesterday relative to the Archdeacon, who would also be examined as a witness, and detail those circumstances in a very different light from wha thd [sic] been stated by Mr. Walker.

The Rev. Wm. Walker was again called and examined, but his testimony did not at all vary from that given by him yesterday, on the part of the plaintiff's.

Wm. Lawson, Esq. was also examined, and repeated, in substance, what he stated yesterday; Mr. Lawson denied that his opinions were formed in consequence of a paragraph in the Australian of the 15th of April, 1826, which was put into his hands.

The VENERABLE the ARCHDEACON was next called, and stated that he never, directly or otherwise, requested the attendance of the defendants at Parramatta upon the case in which he was complainant against Broadbear and his wife; that he was well acquainted with the characters of the gentlemen, and he was satisfied that, even if they were requested to do so, they would most decidedly have refused to act in any way towards a perversion of justice by attending; Mr. McAlister was never his partner in any sheep concern; he has at present undertaken to manage a number of sheep which witness has lately had from England, but at the time this transaction took plaee, he neither had, nor contemplated having, any thing to do with sheep; remembers visiting the Orphan School at Parramatta, in company with Mr. James McArthur, and Mr. McAlister, on the 23d of March, 1826; it was on the day after he returned from Van Diemen's Land, and after he had intimated to His Excellency his intention to do so; thinks His Excellency requested he would visit the Institution, but he then stated, that, from the character of the master, and his visits having been before misrepresented, he did not wish to go without a witness; his intention was to call on Capt. Dumaresq, and request that gentleman to accompany him, when he happened to meet Mr. James McArthur and Mr. McAlister who went with him; witness cannot recollect who he saw first at the school, but remembers asking to see Mrs. Walker, not choosing to have any thing to do with Mr. Walker; thinks she came down and brought the book with her, or went up stairs to procure it, but did not return; Mr. Walker came in at the same time with Mrs. Walker, and was very insolent both in jesture and language; witness took no notice of him, but again requested to see Mrs. Walker, when he sent some message from himself desiring her not to come down; witness never used the slightest word towards Mrs. Walker of which she could complain; never acted towards her in such a way as to make her tremble at his very name; never was in the habit of ordering her about in an ungentlemanly manner; would have been ashamed to do so; remembers perfectly well taking out his pencil and desiring the gentlemen who were with him to bear witness, as he never could get any accounts from Mr. Walker, nor have any of the accounts for provisions or expenditure been yet rendered; witness is King's Visitor of all the schools in the Colony, and as such thinks it comes within his authority to visit the Orphan Institution; always considered Mrs. Broadbear as a servant of the Institution; witness complained to the Magistrates, as King's Visitor that the school had been left by those persons without assistance, and the children in a state of disease, upon which a summons was granted.

Cross-examined:  Witness cannot state distinctly, whether he was sworn or not, when the complaint was made; supposes he was, as it is the usual way; remembers signing a paper, but cannot recollect positively whether he was sworn; did not appear in Court on the day they were convicted; cannot say, whether the defendants knew the case was coming on that day; they were never solicited, either directly or indirectly, to attend; witness saw the three defendants on that day, but will swear positively that no conversation whatever took place on the subject; Dr. Bowman was at that time going his usual rounds, and visited the Institution either that day or the day before medically, and made a written report on it; he told witness it was in a most disgraceful state; witness did not employ Mr. Keith to attend at Parramatta, to prosecute these people; witness always considered his conduct to Mrs. Walker, particularly mild, and never remembers using a harsh word to Mr. Walker except on one occasion when, in consequence of some improper language he made use of, he said he would suspend him; witness conceives the conduct of the Institution vested in him as King's Visitor; thinks these is a clause in the Letters Patent, constituting him Visitor over that school; witness never sent any message to Mr. Walker, about shooting his dogs; might have sent to desire he would remove them; there was a goat which somebody said belonged to him that was sent away to the pound; witness's residence, at that time, was opposite the Orphan School, on the other side of the river; was never in the habit of watching what was done there though a spy glass; witness conceives the nature of his duty, at that institution, was to report any thing he might see amiss; his instructions are to visit the schools once a year, or oftener if practicable; enough was seen at that institution to make very frequent visits necessary; it was certainly witness's duty to examine into the cleanliness of the institution, which was a subject the present Governor was always anxious upon; the children were much infected with itch, and the place swarmed with bugs, and witness might have turned down some of the girls' beds; never did inspect the foul linen, nor ever received any opposition from Mr. Walker to looking at the beds and linen; never went through a room when some of the girls were washing themselves, and in a state of nudity, but, if he had, witness would consider it part of his duty if he saw any thing wrong; there were no girls of 14 or 15 years old in the Institution at that time; there might have been some 12 years old, and witness must assuredly would think it part of his duty to go into a room where they were undressed, taking with him the master, if he thought it necessary; considered Broadbear and his wife servants of the Institution; did not give the Magistrates to understand that they contracted for any specific time.

The HONORABLE Mr. McLEAY stated, that he was acquainted with Mr. James McArthur, and had a very high opinion of him, as a Magistrate.

Dr. Anderson stated, that Dr. Bowman visited Parramatta on the 26th of April, for the express purpose of inducing him into a medical situation to which he was appointed there.

Mr. GARLING produced the commission of Loughlin McAlister, Esq. as Justice of the Peace for the Colony, 7th March, 1826.

Mr. GURNER stated, that Mr. McAlister was sworn in as a Magistrate for the Territory, before Mr. JUSTICE STEPHEN.

The defence closed here.

Mr. W. C. WENTWORTH. --- After the opinion which had been expressed by His Honor, that the whole mass of evidence given by the Archdeacon, as well as by Mr. Walker, was totally irrelevant to the case, he would not detain the Court for any length of time by commenting on it.  But he, notwithstanding, felt it but an act of justice towards his clients, to press upon the Jury the fact, that, whilst Mr. Walker was a bad judge of his own conduct, he was still a better judge of the conduct of the Archdeacon himself.  With that observation he would dismiss the Archdeacon, merely remarking, that it was only from the inferential deduction that some of his hostile feelings towards Mr. Walker had been infused into the Magistrates that he at all adverted to him.  It had been stated, that Dr. Bowman arrived at Parramatta on that morning; that, previously to the enquiry at the Police Office, he had been inspecting the Institution, and had had reported that it was in a scandalous state, and that his report was such, was borne out by the evidence of Mr. William McArthur.  The Archdeacon denying that he communicated with any of these gentlemen, said it was highly probable that, being in Parramatta, they would have known the case was coming on.  His evidence also went to shew, that the three defendants were his intimate friends.  If Dr. Bowman, then, felt so strongly against the Institution, at the same time that he was the private and intimate friend of the prosecutor, was it decent, he (Mr. W.) would ask, in him to go into that Court as a Judge?  Was it not as indecent as if he had gone upon the private solicitation of the other Magistrates?  What business had he, with feelings of that nature, to act as a Judge in that particular case; and why, when he did go, was it that he acted in the indecorous manner it was proved he did, by saying to Mr. Walker that they wished they could lay hold of him too?  Why rudely interrupt Mr. Walker in his defence of those poor people?  Did this accidental Magistrate think it was too much that they should have the benefit of their master's assistance, seeing that there was a lawyer, a regular advocate of the Court, arrayed against them?  Was this the pure and uncorrupted conduct that was so much vaunted?  Did he imagine this was the way he could cast back the imputation that he was packed?  Would the evidence of Mr. Lawson, and of Dr. Harris, be rebutted by such a statement as that?  With regard to Mr. James McArthur too, who would also throw back imputations, he (Mr. W.) would say, let him if he could.  What were the facts in evidence as regarded him?  That he had sat on the Parramatta Bench during a period of three years, but twice before this occasion, the one a case of horse-stealing, in which his cousin was the complainant, and the other a case in which his father was concerned.  Pretty creditable this, to his delicacy as a man, or to his character as a Magistrate!  What evidence was there before the Court to shew that he was not fully aware that this particular case was coming on, and that he was not the intimate friend of the prosecutor?  And he put it unhesitatingly to the parties, whether they did go there by accident?  He did not believe they did.  If they went there by accident, and possessed a spark of delicacy, would they not have quitted the Court immediately when they saw that case was coming on?  What did they stop there for?  They stopped against decency, and with the full knowledge of the imputation that would, in consequence, stick to them through life.  He, (Mr. Wentworth) cared not how the defendants were packed, whether of their own accord only, or by the solicitation of another.  How did Mr. McAlister attempt to clear himself?  His reasons forsooth, his account of how he happened accidentally to be there were detailed, as given in evidence, in a conversation with Mr. Wm. McArthur.  But when did that conversation occur?  Not until months after.  Not until he heard he was about to be prosecuted by the plaintiffs.  If these reasons had been stated before he went into Court, and not two or 3 months after the fact they might have had some weight.  But, if such paltry excuses as these were allowed to avail, who would labour under imputation, if imputation could be got rid of by such an evasion?  It should not be forgotten that Dr. Bowman never visited that Bench but once before, during a period of three years.  That fact was incontestibly proved by the clerk upon a reference to the records, whilst Dr. Harris and Mr. Lawson, both concurred in that proof.  Mr. McArthur was there twice during that time, each occasion being one on which it would have been much more decent for him to have been absent.  Mr. McAlister was never there before; how astonishing, then, that they should have all three dropped, as it were, from the clouds, on that particular occasion!  Mr. McAlister, it was said, merely attended to see how the Magisterial proceedings were conducted!  To take a lesson after his new appointment!  Was the Parramatta Bench that to which any man, in his senses, would have looked for information?  Why, if this gentleman was so anxious for instruction, why could he not have come to Sydney, and seated himself for an hour or two on the Bench beside Captain Rossi and Mr. Carter, where he would have seen something like Magisterial conduct and proceeding?  Why, above all other places, should he have popped himself down beside Dr. Harris, who, above all the Magistrates in the Colony, was never out of rule, never erred?  Was there a tittle of evidence that he had ever taken another lesson?  And, if he had not, and had since acted upon the one he received on that occasion, what a pretty condition his Majesty's subjects in Argyle must be in up to this day, between him and Mr. Charles Throsby, who, for all that appeared, had never taken a lesson at all!  But if the Court could even believe the cock and a bull story that was attempted to be foisted on them, and the gentleman on the other side think it was any answer to the action!  Establishing an error in judgment might go in mitigation of damages; but, did he imagine that error of judgment was any bar to the action?  If so he hoped the Court would rectify his judgment.  Without taking the trouble to send, as they were bound to do, to the Attorney General for his opinion of the case, but upon the mere dictum of Mr. Keith, who was sent down to prosecute these parties, and whose interest it was to procure a conviction; without taking the trouble to look into their manual, Burn's Justice, or into the Act to see what class of persons it applied to, but upon the mere travelling opinion of Mr. Keith, who very wisely, however, refused to guarantee that opinion, without any other authority than that of a black book lugged out from under his arm; without any of that deliberation which Magistrates were bound to exercise, did they at once go on to a decision, and by the mouth of their most distinguished organ, Dr. Harris, proceed to inform these poor devils that the majority of the Bench had sentenced them to three months; imprisonment!  Was that sentence, too, adduced in confirmation of the pure motives which actuated these gentlemen to be present?  They were in Parramatta by Chance; and was it by chance also that they should have been for inflicting the very highest punishment awarded by the Act, in opposition to the majority of the Bench, who were for inflicting various mitigated punishments?  It was impossible, for a moment to imagine from these facts, that they did not attend there for the very purpose of imposing the utmost penalty of the Act.  The declaration of a thousand of them, would never convince him -- would never convince any honest man, that such was not the case, that they were not packed, tat they were not guilty of one of the foulest acts they could commit, one which would and ought to stick to them through life, a plain and wilful dereliction of their oaths.  With regard to the law of the case, it was not necessary that proof of actual malice should be given.  The whole question for the consideration of the Court was, whether there was, or was not, probable cause; because, if there was not, malice then became an inference of law.  Mr. Wentworth proceeded to quote various authorities in support of the law of the case, as stated by him, and concluded by observing that, from the testimony before the Magistrates, there did not appear one tittle of evidence to bring these parties within the meaning of the Act of the 6th Geo. 3d, even if it applied to this Colony; that error of judgment might go in mitigation of damages, but that the sole question then for the consideration of the Court, was, whether or not there was probable cause for the conviction which took place.

His Honor, Mr. Justice STEPHEN, in summing up,[3 ] observed, it was his duty to state to the Assessors, that it would be unjust to to [sic] frame their verdict, with any reference to the refusal, on the part of the defendants, to accede to a proposal that had been made to them, to send the case before a Jury, which, by law, they had an undoubted right to refuse or not, as they should think proper.  They were to throw out of consideration every thing arising out of the case, from the defendants having chosen to resort to the mode pointed out by the law, upon the same principle, that a party refusing to submit to an arbitration, should not have his case prejudiced, because he thought proper to prefer the ordinary mode of proceeding.  The present action was one that had excited a considerable degree of interest, and at the trial of which, the Court had been attended by more auditors than it was usual to see in this Colony.  It was a case of much importance, as one in which persons of high rank were concerned, in which the Magistracy were concerned, and in which the liberty of the subject was concerned, and one in which a degree of asperity had been exercised, which he was sorry to see existed.  Being, then, a case of that nature, and one which the Chief Justice had thought fit to express a desire, that he would sit in, His Honor deemed it necessary to go further into the consideration of it, than he otherwise would do. With regard to the proceedings on which the action was grounded, it appeared that the Magistrates at Parramatta carried into force an Act of Parliament, against domestic servants, supposing that it not only applied here, but that it applied to the individuals brought before them.  After giving the Act of the 6th Geo. III. on which the conviction was founded, the fullest consideration, HIS HONOR perfectly coincided in the decision of the Chief Justice, that it did not apply to these persons, nor did the facts warrant the conviction as against them.  The case of Louth, against the Earl of Radnor and others, did not in any way mitigate against that decision.  The Act never contemplated, to have in view persons of the description of the plaintiffs in the present action, or their superiors in situation of life, which would be the case if the construction which had been attempted to be put upon it, was bore out, and that for a very important reason.  The summary powers of Magistrates were unknown to the common law of England.  They were looked at with a jealous eye, as they superseded the necessity in many cases of Trial by Jury, a privilege, the abridgment of which should be allowed as tenderly as possible.  In particular cases, this institution, by which every Englishman claims the right of being tried by a Jury of his Country, was curtailed by the power of summary jurisdiction, vested in the Magistrates, by various Acts of Parliament, but in no case were Magistrates warranted to go beyond the strict letter of the law.  With these preliminary observations, His Honor would proceed to state the facts of the case as they appeared in evidence, and his apprehension of the law arising out of them.  It appeared to him that the conviction was not only defective on the grounds upon which the Chief Justice's decision was delivered, but His Honor (Mr. Stephen) was also of opinion, that it must have failed on another point.  Though the law, in some cases, authorised summary convictions before Magistrates, superseding the right of Trial by Jury, it never gave a power to dispense with the very first principles of British Jurisprudence, namely, that a man was only to be found guilty  in the presence and on the oath of his accusers.  On this occasion, the complaint was made by the Venerable the Archdeacon.  The presumption, from that gentleman's evidence, was, that he was sworn; but, at the time when the parties were brought up to answer for an alleged offence, for which they were thought liable to imprisonment in the common gaol, the Archdeacon was not present, nor was any evidence given by him; and this of itself would have vitiated the conviction.  He now came to the facts of the case.  Mr. Walker attended at the Police Office; he was examined as a witness; and what did he state?  Not that these parties were employed by the Government - not that they were employed by the Archdeacon, but by himself; and if the jury believed his testimony, and no reason appeared for d[i]screditing it, it was conclusive that the firing was by him --- the dismissal was by him.  Under these circumstances, as distinctly stated by Mr. Walker, the main ingredient was wanting, on which to proceed against these persons; for what offence was it in a party quitting a situation with the consent of the person by whom he was hired?  Wherein consisted the offence, in the total absence of all evidence of a breach of contract with him, by whom the party was originally hired?  The mere act of the payment of wages did not constitute the act of hiring.  The wages to the crews of ships were paid by the owners, and yet the men were, to all intents and purposes, the servants of the captain, who had the uncontrolled power of hiring or dismissal.  A considerable deal of evidence had been gone into as to the original nature of this contract, but HIS HONOR saw no reason at all to doubt what had been given in evidence by Mr. Walker.  He stated that the original demand was £40, but that they subsequently agreed to hire with him so long as he remained in charge of the Institution, for £25, which was afterwards increased to £30, expressly stipulating that they were to stay no longer than he staid; and in pursuance of which original stipulation, that could never be altered, except by inuendo, they did so leave.  HIS HONOR would not dwell at any length on the evidence given by some of the Magistrates, after it had been so recently adverted to by counsel.  Mr. Lawson's impression that the three defendants came expressly to give judgment in that cause, was in evidence on the testimony of that gentleman.  There was, also, other and contradictory testimony, but as to the weight of evidence on either side, it was the peculiar province of the jury to decide.  The question of probable cause, it had been laid down, was one expressly of law, and as such HIS HONOR would at once given it as his opinion, that, from all the circumstances of the case, there was not probable cause.  The inferential malice, which the law presumed to be deduced from such want of probable cause, was exclusively the province of the jury to consider; in doing which, they would remember, that they should be guided by the facts of the case as before them in evidence, and by these facts alone were they to form their verdict.

The Assessors, after a short consultation, found a verdict for the plaintiffs, and assessed damages at £210 sterling.

FRIDAY, 16th. --- BROADBEAR v. James McArthur, James Bowman, and Loughlin McAlister, Esqrs.  This was an action for false imprisonment of the plaintiff, arising out of the same circumstances as that of yesterday.  In this case, Messrs. Jones and Berry were the assessors.  Verdict, for the plaintiff, £80 sterling.

 

 

Forbes C.J. and Stephen J., 27 March 1827

Source: Sydney Gazette, 29 March 1827

 

Broadbear and Wife v. McArthur, Bowman, and McAlister, Esquires.

This was an application to the Court for a new trial in the above case.[4 ]  Mr. Keith, in support of the Rule, contended that, upon several grounds, the defendants were entitled to a new trial.  First, on the ground of excessive damages.  Mr. Keith here entered at some length into the particulars of the case before the Magistrates at Parramatta, and contended that the judgment of the Bench was delivered by the Chairman, and consequently the whole of the Bench were party to it, although it was thought fit to enter a noli prosequi as regarded four of the Justices, and proceed to a verdict against the remaining three.  That the conviction, assuming it to be wrong in law, was but an error in judgment; that for such an error the damages were excessive; and (5 Taunt. 583) that the only evidence of malice brought forward on the trial of the cause was that of Mr. Lawson, who stated that he thought the defendants came by appointment, but which was expressly contradicted by the Archdeacon, who declared in his evidence that he had never made any request to the defendants to attend the trial.  The second ground, taken by Mr. Keith, was what he conceived a misdirection on the part of the learned Judge who tried the case, in laying it down that probable cause was a question of law entirely for the consideration of the Court, and that taking this question, the very gist of the case, upon himself, he ruled that there was no probable cause.  The third ground was, that irrelevant evidence was admitted by the Judge, and that such evidence had some effect in increasing the amount of damages.

Mr. Justice STEPHEN observed here, that that evidence was admitted by the consent of the defendants themselves, who seemed to desire to court an enquiry into the matter, and to have the means of refuting it, and that they called witnesses accordingly.

The fourth ground was the entering of a noli prosequi just at the opening of the trial, which manoeuvre, Mr. Keith contended, would not be countenanced by the Court, inasmuch as it was done merely to get at the evidence of two of the Magistrates, and which evidence, had the other defendants anticipated, they would have been prepared to counteract.  The fifth ground taken was, that the verdict was contrary to evidence.

Mr. NORTON followed on the same side.  He contended that the presumption will always be, that Magistrates act from pure motives, until the contrary be expressly shewn.  That the Act of Parliament, under which they decided, might rationally be mistaken, that it was in fact mistaken, and under such mistake they awarded a punishment sanctioned by the law, and, supposing the Act had applied, called forth by the circumstances of the case, and the gross conduct of the defendants.  On the fourth ground, Mr. Norton contended that the time and manner of releasing part of the defendants was unfair and dishonest; inasmuch as it enabled the plaintiffs to examine such of the Magistrates as they thought fit, and prevented the defendants from calling other Magistrates, who would, in all probability, have given a different opinion of the motives of the defendants, as deducible from their impressions of what took place at the trial.  The evidence also of implied malice, in the defendants, rested entirely upon the testimony of Mr. Lawson and Mr. Fulton, the Clerk to the Bench, which testimony would have been rebutted by that of the other Magistrates who were not subpoena'd.  The very fact, of releasing four out of seven Magistrates, supposed that such four had no malicious motive; but, as they all acceded to the judgment, it amounted to the strongest presumption that they did not believe the defendants came with improper motives.  In support of the third ground, that of irrelevant evidence, the testimony given by Mr. Walker on the trial of the case, as related to what passed between the Archdeacon and himself, was read to the Court.

Mr. W. C. Wentworth, against the motion, observed, it had been assumed by the adverse Counsel, that the mistake of the Justices was honest, and that all the proceedings were regular enough, supposing the Act to apply.  But the Act required many things to be done which were entirely omitted.  It required an actual contract of service to be entered into; it required the party with whom such contract is made to make complaint before it authorizes punishment.  Now, by whom, we would ask, was the complaint made?  By the Archdeacon.  But what authority had the Archdeacon to make such complaint?  The contract was not entered into with him; he did not represent either the Government or Mr. Walker, with whom the contract of service was entered into.  The Orp[h]an School was, at that time, under Major Goulburn, and the Rev. Mr. Redall, as trustees, and the contract, therefore, if not with Mr. Walker, was with them, and not with the Archdeacon.  The Archdeacon had not a shadow of authority at the time this contract was alleged to have been broken; the letters creating a King's Visitor were not then in being, and consequently the very first preliminary required by the Act, namely, a legal party complaining, was wanting.  How, then, could such a palpable omission have been honest?  With regard to the argument that the time of entering the noli prosequi was unfair towards the defendants, he would state to the Court, in reply, that he informed the defendant's Solicitor some days before, that he meant to release the regular Bench of Magistrates; and, therefore, the defendants should have supoena'd such of them as they desire to examine.  But why, if it was intended to rely on this as a ground for obtaining a new trial, had not an affidavit been laid before the Court, shewing what testimony such unexamined witnesses might have deposed to at the trial?  As to the evidence of malice, and want of probable cause, it did not, as had been stated, rest upon the evidence alone of Mr. Lawson, or of Mr. Fulton.  There was the evidence of Dr. Harris, and likewise the evidence of Mr. Walker as to the expressions used by Dr. Bowman, but there was also the strong evidence of circumstances.  There was the fact of the defendants not being the regular Magistrates of the district, and of their se[l]dom or never taking part before in the proceedings of that Bench.  Of one having never acted there before - of another, but once in three years - and of the third being only there twice, and then on occasions like the present, when his own relatives were concerned.  There was the evidence also of their going a day or two before with the prosecutor to the school, to become witness to the transactions they afterwards tried; they were also proved to have known that this very case was coming on, and that complainant was their particular friend, together with the still stronger evidence of their being all for the utmost severity of law, against the opinions of the other Magistrates on the Bench.  The plaintiffs had been in a respectable way.  The husband a farmer, and the wife in the habit of attending on various ladies in the country at particular periods, with whom her character must have been ruined, from the circumstance of her having been confined for three months in a workhouse; for, who would employ such a person in the delicate situation of attendant in respectable families!  It was not merely the loss of time and expence [sic] being confined in a public gaol; it was the loss of character, and the degradation of punishment awarded to the plaintiffs also, which the Jury had taken into consideration and it was impossible to sever the damages, and to know how much the Jury gave that account, and how much for the mere imprisonment.  With regard to the irrelevant evidence, it was courted by the defendants; they sought it for the purpose of rebutting it, and avowedly to clear their own characters; and after going into such evidence, after calling witnesses to controvert it, it was rather too good a joke for the defendants to turn round and make that very act, which they not only did not object to, but courted, as a ground on which to rest an application for a new trial.  The fifth ground was that of the verdict being contrary to evidence, but as he (Mr. W.) thought that objection was substantially involves the question of excessive damages, he would leave the case with the Court, trusting that no cause whatever had been shown on the other side to disturb the verdict already given.

Mr. Keith declined replying, and the arguments closed.

The CHIEF JUSTICE, who also expressed the opinion of Mr. Justice STEPHEN, saw no reason for delaying the decision of the Court beyond the present moment.  Several grounds for the application had been urged to the arguments of Counsel, on which he had attended so minutely, that, if he should err in the decision he was about to pronounce, it certainly would not be for the want of having given them every consideration.  With respect to the second ground urged by Mr. Keith, namely, the misdirection by the Judge in laying it down the probable cause was a question of law entirely with the Court, he would observe, that though such a position had been laid down rather broad in some of the old text books, still the want of probable cause was a question, like many others, arising out of the facts.  Want of probable cause was a mixed question of law and fact; but it might happen, that all the facts urged the party wishing to shew probable cause, may be assumed in favour of such party, and still not amount to probable cause which means that there is probable cause --- which means that there is probable cause for supposing the accused to be guilty of the crime imputed to him.  This presumes some crime in law, some corpus delicti of which the convicted party might be either guilty, or deemed guilty by the Magistrates.  In the case before the Court, the conviction for which the defendants have been sued, was admitted by the defendants' Counsel at the trial, and that conviction shewed, upon the face of it, that the law upon which it was grounded did not apply to the Colony --- that quo ad this Colony, was no law at all; and, consequently, the acts charged as an offence were no offence in law.  The Judge at the trial held the same opinion as to the inapplicability of the Act as the Court wh[i]ch quashed the conviction and therefore it followed, as a necessary consequence, that there could be no probable cause for the conviction.  It was the peculiarity in this case, which distinguished it from other cases of conviction before Magistrates, in which, although the conviction might be quashed for informality, yet still if there appeared to be some crime charged, and the Magistrates had probable ground for believing that the party accused was guilty of such crime, the Magistrates would be protected, although the conviction were irregular.  But here the very charge itself swept out of the catalogue of crime.  The Judge therefore very properly held, that in th[i]s particular case, assuming all the circumstances stated by the defendants to be proved, there could be no probable cause for the conviction; because there was no law which made the breach of contract, for which the parties were convicted, a penal offence in this Colony; and, consequently, there were no facts for the consideration of the Jury.  The question, therefore, was one of pure law, upon admitted fact, the fact of the conviction before the Court being that upon which the plaintiffs had been imprisoned.  Upon the ground of excessive damages, HIS HONOR observed that wounded feelings and injured character were incapable of computation and therefore entirely within the discretion of the Jury at home.  Here we had no juries, but we had A[s]sessors, being Magistrates, and gentlemen not likely to be influenced by erroneous feelings, or to give vindictive damages.  The opinion of the Court wa[s], that the damages were rather high, but still not outrageously so, and the mere opinion of a Judge that the damages were higher than he, as an Assessor, would be disposed to give, was not a sufficient reason to disturb the deliberate verdict of the Judge and Assessors at the trial.  HIS HONOR, upon every view of the case, was of opinion, therefore that the Rule should be discharged.

-----------------------------------------------

In the course of the argument on the application for a new trial, in the case of Broadbear and wife against McArthur, Bowman, and McAlister, Esquires, on Tuesday, it was remarked by the CHIEF JUSTICE, in reference to an observation made by Mr. Norton, in his address to the Court, that it was extremely desirable that Magistrates should confine themselves, as much as possible, to the exercise of their functions within their own districts; for, without intending, in the remotest way, to throw out any imputation whatever, he had occasion, in looking over various records of Magisterial proceedings, to notice that a contrary mode of acting had been productive of considerable confusion.  In England, the authority of Magistrates was limited to particular districts, out of which they could not travel, unless by express authority of an Act of Parliament.  The reason for conferring a more extended jurisdiction here, arose from the circumstance of the Colony not having been as yet parcelled out into any legal subdivisions; but still, as called upon to express an opinion on the subject, he did think that as little departure as possible should take place from the wholesome law by which this matter was regulated in England.  He thought that Magistrates should not take any part in transactions out of their own immediate districts, unless expressly called upon to do so; for, "I myself," said His Honor, "in investigating a variety of Magisterial proceedings in another place, and which would never have seen a light, had they not been published by order of the House of Commons, have been convinced that considerable irregularity had taken place, in various instances, merely from Magistrates dropping in, and taking their seats upon the Bench, by which means their names have found their way into the records, and gentlemen have become mixed up in transactions with which they had nothing whatever to do; and all this mischief arising out of that sort of floating tribunal which had been kept up, and which, on this ground alone, should be avoided."

Notes

[1 ] Unwilling to proceed.  A decision by the prosecutor not to proceed.

[2 ] On 17 March 1827, the Sydney Gazette called the case Broadbear & Wife v. Harris, Esq. & Others.  Elsewhere the defendants were usually listed with Macarthur's name first, both in the Gazette and the other newspapers.

For earlier litigation based on these facts, see Walker v. Scott (No. 2), January 1826; amd R. v. Broadbear and Broadbear, June 1826.  In the latter case, the Supreme Court overturned the convictions of the Broadbears.  Forbes described these cases to Horton in a letter on 22 March 1827, Historical Records of Australia, Series 4, Vol. 1, pp 711-713.  He found it interesting that the only times magistrates had been accused of acting according to their own personal feelings had each concerned the same family, the Macarthurs. These cases are discussed by C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 17.

The Sydney Gazette commented on this trial on 17 March 1827, noting that the plaintiffs were "of humble rank in life," while the defendants "as Gentlemen and Justices of the Peace, possess influence, and enjoy authority, which are not surpassed except by the Executive and Judges of the land."  It went on to celebrate the impartiality of the court, saying that it would have been impossible for humble people to sue those above them earlier in the colony's history.  That is simply false.  In the early years of the colony, convicts and other lower class people often pressed their rights in the Court of Civil Jurisdiction.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996.

The Sydney Gazette, 17 March 1827, also reported that Forbes C.J. declined hearing this case because he had overturned the original conviction.  W.C. Wentworth pressed for a jury, but the defendants refused it in favour of trial before assessors.  The assessors were Carter and Browne, two fellow magistrates of the defendants.

The Monitor, 23 March 1827, began its commentary as follows: "The Faction has received another mortal wound by the verdict of 210l. awarded by the Supreme Court against Justices Bowman, Mc'Alister and Mc'Arthur. Nothing seems to prosper with the 1808 folks now-a-days."  The 1808 reference is to the group which rebelled against Governor Bligh in that year.  The Monitor went on to ridicule Archdeacon Scott as well, in his supposed role as Visitor (as to which, see Walker v. Scott (No. 1), December 1825, and Walker v. Scott (No. 2), January 1826).  The Australian (18 April 1827) discussed this in the context of an attack on Forbes C.J. by the London Morning Chronicle.  It argued that "the faction" was behind the hostile series of articles in that paper, and that it had "marked" Forbes C.J. because he was independent of its influence.

The Sydney Gazette was attacked for the supposed incomplete nature of its report of this case.  Its reply was that it always left its law reports to the reporters, not interfering in any way: see Sydney Gazette, 24 March 1827.  Its report was much longer than that of the Australian, which was published on 17 March 1827 (and see Monitor, 16 March 1827).  The magistrates subsequently threatened to sue the editor of the Gazette for libel (Sydney Gazette, 27 March 1827), but abandoned the case (Sydney Gazette, 29 March 1827).  The Gazette later admitted that there may have been some inaccuracy in its report of the evidence of Rev. Walker.  It also admitted that Archdeacon Scott was called by the defendants, not the prosecution.  The Monitor commented on this case on 30 March 1827.

The Australian, 23 May 1827, reported that Archdeacon Scott lodged a complaint with Lord Bathurst about the conduct of Stephen J. in this case.  Scott complained that Stephen J. had allowed irrelevant questions to be put to him during the course of the trial.  Scott also complained that the result was wrong.  See also, Monitor, 12 June 1827.  Scott's initial complaint was over the conduct of Stephen J. in Walker v. Scott (No. 2), January 1826.   The complaint arising from Broadbear v. McArthur led to correspondence between Forbes C.J. and Governor Darling about whether Scott had had authority to act in January 1826.  This correspondence shows that the Governor had power to put Scott in the position of visitor, but that Attorney General Bannister had recommended postponement of the appointment until the conclusion of the litigation in Walker v. Scott (No. 2), 1826.  See Enclosure with Lt Gov Darlings Despatch No 73 - 1827, Mitchell Library A 1199 (CY 524), pp 1289-1304. 

See also Historical Records of Australia, Series 1, Vol. 13, pp 318-361, and see 389-390, 413-417.  Once again Darling complained to Bathurst about the judges leaking material to the press (13 May 1827, pp 318-319).  With this despatch, Darling enclosed copies of the correspondence to date, as well as accounts of the Supreme Court and Magistrates' trials in this case.

Huskisson replied to Darling on the British government's behalf in two despatches dated 11 February 1828 (Historical Records of Australia, Series 1, Vol. 13, 768-778).  He said he had asked the Law Officers of the Crown whether improper material had been admitted in evidence which tended to degrade the Archdeacon, and whether there was evidence of bias in the judge, against Scott.  They advised that the judge had allowed in material which reflected adversely on Scott, but that there was no evidence of bias in the judge.  Huskisson did rebuke Stephen J. for giving material to Wentworth, who was close to the editor of the Australian, Dr Wardell, and for the judge's attempt to send his defence to London in a sealed package which prevented the governor from responding to it.  He told Governor Darling to "strongly inculcate" upon Stephen the need to act in a more conciliatory way towards the governor.

Forbes C.J. argued that it was improper to command a clarification of a judgment from the judge.  This rested on his view of the need for a strict separation of powers between executive and judiciary.  "Neither the Governor's commission nor his instructions give him any power over the judges; such power is not within His Majesty's prerogative; the notion of control is inconsistent with the nature of a Supreme Court; which stands in the same relation to the King in New South Wales, as the Superior Courts at home stand in to the King in England.  His Majesty may remove the Judges here, and so may the two Houses of Parliament at home; but the judicial office itself stands uncontrolled and independent, and bowing to no power but the supremacy of the law.  This is a lawyer's view of the Supreme Court; but I rather suspect that the Governor looks upon it rather in the light of a court martial, the proceedings of which are subject to the revision of the commander-in-chief, and, in so far as it recedes from that useful tribunal, it is a direct encroachment upon his authority, as representative of the King." Forbes said this in a letter to Horton, on 22 March 1827 (Historical Records of Australia, Series 4, Vol. 1, pp 715-716) and concluded by recommending to Horton that he should inform Governor Darling that it would displease the King if he exceeded his authority by going beyond the law.  On 15 May 1827, Forbes again wrote to Horton (Mitchell Library, Reel CY 760), stating that he was sure that Stephen J. had no ill feeling towards Scott.  He reiterated the impropriety of the governor's actions in writing to Stephen.

Governor Darling later complained to London that Forbes' defence of Stephen contained inaccuracies.  He complained that Forbes "is not remarkable for a strict attention to facts, when an opposite Course is better suited to his purpose."  He went on as follows: "I must trust, under this Conviction, that you will pardon my not having communicated to Mr Justice Stephen, the subject of your "Separate" Despatch now immediately adverted to. As to Mr Stephen, who poor Man, is a Tool in the hands of the Chief Justice, who works with him as best answers his immediate object, his further humiliation/his conduct having been recently censured/ would be unavailing, while the success of Mr Forbes's Silence, which would be rendered apparent, should a Communication to the effect directed in your Letter, be made to either Mr Stephen at the present moment, would operate as an Encouragement to Mr Forbes to persevere in the Course he appears to have adopted as the Rule of his Conduct."  (Source: Darling to Huskisson, 30 July 1828, Forbes Papers, Mitchell Library, A 1202, Reel CY 535, pp 1161-1171; Historical Records of Australia, Series 1, Vol. 14, pp 258-259.)  For more detail on the clash between Forbes and Darling, see Newspaper Acts Opinion, 1827.  On the attacks on Stephen J., see also the Australian, 25 September 1829, when he was back in the news.

John Macarthur senior wrote to his son John on 16 May 1827 (Mitchell Library, Reel CY752B, pp 159a ff) as follows: "Both your brothers and many of the most respectable magistrates have determined not to act against persons who are free until directed to do so by Government.  This it is true will embarrass Govt. but what is to be done?  Such magistrates cannot rely upon our Courts to do them justice and surely it cannot be expected that Gentlemen should expose themselves to vexatious prosecutions and the payment of heavy, perhaps ruinous damages."  Earlier in the letter, he had been expressing his distrust of Forbes C.J. and Stephen J.

This was not Forbes' first conflict with a governor.  When he was Chief Justice of Newfoundland, before taking up the position in New South Wales, he fell into disagreement with the governor there, Admiral Hamilton.  There, too, he felt it his duty to hold the governor to the law, though the personal relations between the two seem to have been much more cordial than between Forbes and Governor Darling.  On the Newfoundland conflict, see for example, Provincial Archives of Newfoundland, GN 2/1/31, Vol 31, 1819-1821, pp 264267; and see A Report of Certain Proceedings of the Inhabitants of the Town of Saint John, 1821; and Observations on the Present State of Newfoundland in Reference to its Courts of Justice, Local Government, and Trade: in a Letter addressed to the Right Honourable Henry Earl Bathurst, 1823.  The latter document, which is held by the Centre for Newfoundland Studies, in the Library of the Memorial University of Newfoundland, shows that Forbes' liberalism was admired by the reformers there, as it was in New South Wales.

Nor was this the only complaint about Stephen J.  In 1828, Dumaresq complained to Hay of the Colonial Office in London that Stephen had a problem with alcohol.  The complaint was overlooked until 29 March 1830, when Hay returned it to Sydney for Stephen's comment: Historical Records of Australia, Series 1, Vol. 15, pp 383-385.

[3 ] The Australian, 17 March 1827 gave a short account of this: "His Honor, after a review of the most prominent features in the case, observed, that he perfectly concurred in an opinion of chief Justice Forbes, elicited on a previous occasion, as well as of the plaintiffs Counsel, that in the words 'any other person,' in the Act of Parliament before alluded to, evidently meant persons of similar class to those enumerated; and the plaintiffs occupation not entitling them to be thus included, the clause consequently could not affect them, and conviction grounded upon a wrong interpretation could not be valid.  No proof either appeared to exist, that the plaintiffs had bound themselves as servants to the Institution."

[4 ] The Sydney Gazette also commented on this hearing on 29 March 1827.

Published by the Division of Law, Macquarie University