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

R. v. Macarthur (1828) Sel Cas (Dowling) 882; [1828] NSWSupC 6

Macarthur faction, magistrate, action against, riot, nuisance, abatement of nuisance, water rights, criminal procedure, Forbes C.J., Macarthur's complaints against

Supreme Court of New South Wales

Forbes C.J., 13 February 1828

Source: Sydney Gazette, 15 February 1828

Shortly after the Chief Justice came into Court, this morning, Dr. Wardell rose, and stated that he had an application to make to His Honor for a rule to shew cause why a Criminal Information should not be filed against Mr. John M'Arthur, of Parramatta. and others, for sundry riots committed at Parramatta, on a day set forth in the affidavits.[1 ]  The application, said Dr Wardell, is made on affidavits which are sufficiently explicit and sufficiently strong to bring home the offence charged to the parties against whom a Criminal Information is now sought.  If your Honor pleases, I will now read some, or should it be thought necessary, the whole of the affidavits on which the application is made.  The prosecution is instituted by Mr. Raine, of Parramatta.  The learned Counsel here read the affidavits of Mr. Raine, together with three others, and continued.  There are other affidavits which go to specific points, and establish the truth of the statements contained in Mr Raine's affidavit.  I submit to your Honor that, upon the face of the affidavits which I have read, there is a sufficient body of facts to bring home the offence to the parties implicated.  The riot is sworn to.  A tumultuous assembly, participating in an illegal act, is expressly stated to have taken  place, and within sight and hearing of Mr. M'Arthur.

The Chief Justice. -  Mr. M'Arthur is a Member of Council, and a Magistrate; has be [sic] been served with any notice of this application?

Dr. Wardell. - I certainly do submit to your Honor, that, in a case of this kind, where an unjustifiable breach of the peace has been committed, it will hardly be contended by Mr. M'Arthur, that he is entitled to a notice as if the act had been done in the discharge of his public duty.  I think your Honor will see, that the case does not fall within that class of cases wherein Justices of the Peace are entitled to be served with a notice of proceedings being about to be instituted against them.

The Chief Justice. - Regularly speaking, an application of this kind should be made in Term; however, as there is no specific rule to that effect at present in existence, and as the Criminal Sittings are going on, I will take the affidavits on Saturday next.  Let the application be renewed on Saturday morning, when Mr. Justice Stephen will also be present, and the Court will then dispose of the application.

Dr. Wardell - Then your Honor, I will file the the [sic] affidavits now.


Forbes C.J. and Stephen J., 16 February 1828

Source: Sydney Gazette, 18 February 1828[2 ]

Dr. Wardell renewed his application to the Court for a Rule to shew cause why a criminal information should not be filed against the Honorable John McArthur and Others, on the grounds stated by him on a former day.

The learned Counsel, after reading various affidavits, submitted that a sufficient body of facts appeared before the Court, to warrant their Honors in granting the Rule applied for. It was stated in affidavit by Mr. Raine, that he is possesed of certain premises in Parramatta, adjoining which there is a mill dam run across the river and res[t]ing on the ground. That after having ascertained it had no right to abut on his premises, and many fruitless negotiations and attempts to have it removed, he had a drain cut for the purpose of t[u]r[n]ing off the water. That Mr. McArthur employed his own men to go in a tumultuous manner, and fill in the drain, which on its being cut again, he subsequently excited a large mob to pull down a second time, and also sent instructions to Howell, the owner of the mill to assemble his own men for the same purpose. That a forcible entry was made on Mr. Raine's ground, and he himself put in bodily fear and danger, That [sic] subsequen[t]ly a summons was obtained against Mr. Ra[in]e for an assault in pushing one of the rioters off his own premises, from the evide[n]ce adduced in support of which case, it was clear that a riotous assembly had taken place; so that the fact of the riot was actually proved out of the mouths of the opposite party. Dr. Wardell concluded, by submitting that the case was so fully made out by the affidavits which he handed into the Court, he had no doubt of the Rule being made absolute, should the Rule to shew cause be, in t[h]e first instance, granted.

The Chief Justice and Mr. Justice Stephen having consulted f[o]r a few minutes, Mr. Justice Stephen suggest[e]d to Dr. Wardell, that, as the Criminal Sittings wer[e] now so ne[a]rly over, no inconvenience cou[l]d arise by making the application in the usual course, [i]n Term.


Forbes C.J., Stephen and Dowling JJ, 24-25 March 1828

Source: Australian, 28 March 1828[3 ]

Criminal Information.

The case of Riot, with which most of our Readers are familiar, has been before the Supreme Court.  The parties against whom a Rule was obtained to shew cause why a Criminal Information should not be filed for sundry riots, were, the Honorable John Macarthur, Esquire, Member of the Legislative Council, and Justice of the Peace, in the Territory of new South Wales, and other persons, known and unknown.  We shall not trouble our Readers with the details connected with the offence charged, as they have been already laid before them in a succint form.

The Rule to shew cause was obtained in the early part of this Term, on affidavits made by the complainant, Mr. John Raine, and setting out, that some of Mr. Macarthur's men, to the knowledge, and with the sanction of Mr. Macarthur, had, on the seventeenth of January last, made a forcible entry on Mr. Raine's premises, and with force and violence proceeded to fill in a ditch dug in Mr. Raine's premises, for the purpose of giving a passage to the water of the Parramatta River - the water course being stopped by the mill-dam of a person named Howell.[4 ]  It was alleged by Mr. Raine, that this mill-dam was improperly projecting upon his premises, and was the occasion of his having the trench excavated  The affidavits further set out, that, on the nineteenth of January, after Mr. Raine's workmen had been employed in re-excavating the ditch filled in, as above, by Mr. Macarthur's men, a tumultuous assemblage of persons forced their way upon the same premises, and with pickaxes, spades, shovels, &c., proceeded in a tumultuous manner, to throw rubbish, garden-fence, and any thing that was at hand into the ditch - that after the constables had dispersed the mob of persons - these again assembled, and repeated their outrages.  Affidavits were put into shew, that Mr. Macarthur had been the occasion of these repeated riots, by encouraging Howell, and sending messages to him, to collect his friends, and fill in the ditch, and by appearing several times, passing and repassing near the scene of action, and seemingly by gestures, inciting the people to proceed in their acts of violence.  Certain expressions were also ascribed in the affidavits to Mr. Macarthur, such as "there is that young man (meaning Howell), is making five hundred pounds by his mill, and there is that fellow (meaning Raine), not worth two-pence, wanting to ruin him - but I'll make him smart."

On the day for shewing cause against the Rule, several affidavits were filed at the instance of Mr. Macarthur.  Mr. Macarthur swore, that in the advice he gave to Howell, he only acted as a Justice of the Peace; that on the seventeenth of January, he merely gave permission to his gardener to go and help to fill in the ditch, and that on the nineteenth of the month the day on which the greatest outrages were committed, he acted in the like capacity, of Magistrate, and in place of his sending, a message to Howell, to tell him to collect his friends, and go and fill in, he only expressed an opinion, that he might fill in, and that by his presence, he did not provoke the assailants to commit the riot complained of.

Counsel were heard - Mr. Stephen junior, against the Rule, and Doctor Wardell, and Mr. Wentworth in support of it.  The arguments on both sides, together with the reading of the affidavits, occupied the Court two days, Monday and Tuesday.

The Court rejected altogether the defence set up by Mr. Macarthur, that he was acting in his Magisterial capacity - and after some deliberation, came to the decision of refusing to make the Rule absolute, observing at the time, that there was another course open to the complainant, and that they refused the Rule, because they saw much to blame on both sides.

Costs were ordered to be paid by the defendants.

Forbes C.J., Stephen and Dowling JJ, 25 March 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 31]

[Tuesday 25th March]

[Rex v McArthur and others.]

Before a Full Court.

Dr. Wardell, and Wentworth were heard at great length in support of the rule for a C.I. in this case.

After we had consulted together.

Forbes, C.J. in concurrence with Stephen, J. and Dowling, J. delivered the opinion of the Court as follows:-

"Without entering into a minute consideration of the various matters detailed in the affidavits in [p. 32] this case, on the one side and on the other, it appears to the court upon the whole, that the rule ought not to be made absolute for a criminal information.  The Court sees much to discommend in the conduct of the parties on both sides, and laments that, in a case in which there was obviously a question of right to be tried, the more judicious course should not have been resorted to, of trying that question by civil action, instead of resorting to violent measures, which this court cannot but highly disapprove.

It must not be forgotten that there is another tribunal in the Colony before which this charge might be brought and justice duly administered.  We refuse the rule chiefly because we think the party applying for it, is not himself free from blame; but in order to make our sence of the impropriety of the means resorted to of redressing a private injury, we think we ought to discharge the rule, upon payment of costs by the defendants.

Rule discharged.

see notes Vol. 2. p. 79.[5 ]


[1 ]Forbes wrote to the Under Secretary of State on 20 May 1828 about this case (Mitchell Library A 1203, Reel CY 536, pp 1205-1211; Reel CY 760, pp 334f):

" A person named Holwell, has been in the possession of a piece of ground, on the banks of the Parramatta River, for some years past, on which he has erected a watermill - the dam, by which the water is retained, for the purpose of working this mill, rests on one side of the River, on Holwell's ground, and on the other side, on a piece of ground formerly in the possession of the Rev. Mr Marsden, but now in the occupancy of John Raine - Sometime in the latter end of last year, a dispute arose between Holwell and Raine, as to the right of the former, to build his dam upon the land occupied by the latter; and notice was served by the Attorney of Raine, upon Holwell, that unless he gave some compensation, he would turn the water from his mill, by making a trench or drain across his own ground -

"Mr Macarthur (as will appear by documents in the Colonial Office) had acted as the friend of Holwell upon a former occasion - He had charged the local government, during the time of Sir Thomas Brisbane, with injustice towards Holwell, in taking away his land, without awarding him compensation - This charge was disavowed by Holwell himself personally, to Sir Thomas Brisbane, and its unfounded nature proved to the satisfaction of government - Mr Macarthur again appeared as the friend of Holwell, in the contest about the right of water in the Parramatta River, and  applied to His Excellency General Darling, to interpose the authority of the local government in favor of Holwell. The Governor declined any interference, as he considered the matter in dispute between the parties to be entirely of a private nature.

" In the month of January last, Raine proceeded to put his notice in execution, and to cut a trench through his own ground, the consequence of which would have been, to divert the running water from Holwell's mill. Holwell appears to have consulted Mr Macarthur in person, and the result was, that a large body of people assembled, with piste-axes, and other implements, entered the grounds of Raine with what the law terms a strong hand, and filled up the trench - Several acts of violence were committed upon the spot and the rioters were stimulated to their work, by having spirituous liquor distributed amongst them - This very disgraceful scene occurred within the sight of the Government House at Parramatta - The Police interfered, after some delay, and the rioters part of the transactions was afterwards made the subject of some inquiry before the Magistrates. I must beg leave to refer you to the Newspaper report of what took place before their worships. To say the least, it discovers a singular mode of getting rid of what was probably felt as a very unpleasant duty - The consequence of this dismissal of the case by the Magistrates was an application to the Supreme Court, at the instance of Raine, for a criminal information against Mr Macarthur and others for a Riot. Mr Justice Stephen and I were anxiously expecting the arrival of Mr Justice Dowling at the time, and we deferred entering into the merits of the motion until the ensuing term - We hoped, that in the interval of  time, the parties would come to some understanding, and further application to the Court would be rendered unnecessary.  On the first day of March last, Mr Justice Dowling having then taken his seat on the bench, the motion for a criminal information was renewed; and as facts amounting to a forcible entry and riot were positively deposed to, we granted a rule calling upon the adverse parties, to shew cause, why an information should not be filed against them. At the return of the Rule, many depositions were read on the part of Mr Macarthur, Holwell and other persons - and it appeared to the Judges, that a riot had, in fact, been committed by the Defendants, and that Mr Macarthur had encouraged it by his presence, his Counsels, and his servants - but as Raine did not come before the Court quite free from blame, the Court dismissed the Rule, upon the Defendants paying the costs of the application. For this proceeding there is abundance of precedents, and the Court felt itself called upon to mark the impropriety of persons taking the redress of private right into their own hands, and resorting to force, instead of applying to the appointed tribunals of justice. It would be superfluous, and perhaps not strictly proper in me, to enter into the merits of the question at issue between the contending parties - it is quite sufficient to arrive at the conclusion, that it was entirely one of a private nature and turned upon the legality of what is familiarly known to our law, as "diverting a water course". The legal right to the locus in quo, was the point at issue - and the law had provided two very easy remedies for the complaining party - an injunction, to restrain the adverse party from digging a trench, until the question of title could be determined - or an action for damages, in the event of any injury being sustained. But the law will not allow self-redress with force, however well founded the right, and upon this first principle of the social compact the whole structure of distributive justice is raised. That the defendant Holwell could not plead ignorance of this principle, the Court had occasion to know - for he had some days before the riot, presented a petition in person to the Judges on the Bench, praying that Raine should be restrained from cutting a trench as he had notified, and was called by the Court and informed that it could not grant the relief he sought, in the irregular way he had come before it - but that if he would get his petition overlooked and signed by any Practitioner in the Court, the Court would consider this petition in the light of a bill, and see if it disclosed sufficient grounds to justify its interference. Holwell withdrew his petition, but no further application was made to the Court.

" On the 31st of March Mr Macarthur addressed a letter to me, informing me of his intention to impeach the Judges of the Supreme Court, for the order they had made in dismissing the motion for a criminal information against him, upon payment of Costs. I communicated his letter to my learned associates on the Bench, who were of opinion that we could not take any notice of it. Concurring in the propriety of this opinion, the matter would have rested there; but Mr Macarthur having subsequently communicated, by an extraordinary message to my brother Judges, that his hostile proceedings were directed not against them, but individually against myself, and having used most unwarrantable freedoms with my name and character, in his communications with the subordinate officers of the Supreme Court, I have felt myself bound to make a full disclosure to you, Sir, of such circumstances of the case, as I can pretty well Conjecture, will not appear upon the Statements of mr Macarthur - I feel satisfied that these few and conclusive facts will be made clear to you - That Mr Macarthur took a decided part in the dispute between Holwell and Raine, as the friend of Holwell, before any breach of the peace was committed, or any act was done which could justify his interference as a Magistrate - that he personally sought the interposition of the Governor in favor of Holwell, and was informed, by the Governor, that the matter in dispute was of a private nature - that he was present and countenanced the riot at Parramatta - that after the riot had taken place, he attended the Governor and qualified himself as a Justice of the Peace -  that this was intended to shelter himself from the consequences of the riot; he having never acted as a Magistrate on any former occasion - and having previously assisted as the friend and counsel of one of the parties, contrary to the duty of a Justice of the Peace, and the oath of his office, which enjoins 'that he shall not be of counsel of any matter pending before him'-

" I will not press this case any further upon the notice of the Secretary of State; assured that the internal evidence it carries of its own character, will be its best expositor - I cannot say that I regret it having occurred. I have for a long time passed been apprized of the secret insinuations of Mr Macarthur and his dependants against my public conduct and private reputation; and this first open assault, while it betrays the motive of my accuser; affords the clearest proof of the absence of all just cause of accusation, when charges so unfounded in truth, and so frivolous in themselves, are resorted to, as the only tangible ground of impeaching the Chief Justice of the Supreme Court."

The Sydney Gazette, 28 March 1828, reported that Macarthur threatened to impeach the three judges for their conduct in this case.  This was despite the fact that the judges had prevented the other side from raising Macarthur's role in the coup against Governor Bligh in 1808.  TheGazette estimated that the case would cost Macarthur £300 or £400 in costs.  Macarthur informed Forbes C.J. of his plans on 31 March 1828  (Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 156) which led to correspondence between the Chief Justice and the governor on the matter (pp 156f).

Governor Darling sent a report on this to Under Secretary Stanley on 5 April 1828, saying that, despite statements to the contrary by Forbes C.J., he, the governor, was not concerned in the matter.  However, he believed Macarthur had been actuated by the best motives in attempting to assist an indigent family.  Darling also admitted that he called the Attorney General to give advice to Macarthur.  Macarthur's complaint was that although the Supreme Court refused a rule for a criminal information against him, he was ordered to pay all costs.  Source: Historical Records of Australia, Series 1, Vol. 14, pp 119-120.  At pp 120-122, Darling's next despatch, of 7 April 1828 is printed; he stated that Macarthur was a friend of the government, but even that did not lead the governor to support Macarthur's plan to stack the Executive and Legislative Councils with his own relatives and friends.  Darling took the opportunity to say that the Chief Justice should not be a member of the Executive Council.

On a separate sheet in Mitchell Library, Reel CY 760 (pp 339-340) was a note from James Stephen junior, of the Colonial Office in London, addressed to Mr. Twiss and dated 4 October 1828: he advised him to write to John Macarthur in London, the son of John Macarthur senior, telling him that the complaint against Forbes was not of a nature to require investigation in this department.  Recourse had to be had in courts of law if anywhere.  He also advised telling Forbes of this decision not to act.  "There is not even the imputation of a corrupt or malicious motive in this case," Stephen continued.  Macarthur absolved Forbes' judicial colleagues, yet they said there was nothing to distinguish them from the Chief Justice.  The judgment did not sound "very startling," Forbes said there were many precedents, and Dowling "should be very well informed".  Stephen continued, saying that Macarthur should not have proceeded as he did, "which so clearly tended to perpetuate feuds, and to bring the administration of Justice into contempt.  But there is no end to finding fault with indiscretions and infirmities of temper in these Colonial Functionaries, nor do I perceive that any good would be done by rebuking Mr. Macarthur for his intemperence.  It seems to me that the more cold and peremptory the tone in which the whole case is turned out of this Office, the better."

On earlier conflicts between Forbes and Macarthur, see Newspaper Acts Opinion, 1827, footnote 10.  See also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, pp 323f.

[2 ] See also Sydney Gazette, 5 and 7 March 1828.

[3 ] See also Sydney Gazette, 28 March 1828.

The Australian, 28 March 1828, also commented as follows:

"We have inserted a brief summary of the proceedings in the Supreme Court, instituted against Mr. John Macarthur, and others, for Riots.

"Mr. Macarthur got well out of his dilemma, and may consider himself very lucky in being relieved from the consequences of that Application on payment of Costs.  He has by this time been taught a useful lesson, if he only knows how to profit of it.  He may learn to be more circumspect in the advice he gives to others, whether as a Magistrate or otherwise, and in future avoid getting implicated in individual disputes and party broils.

"The Justices of the Peace, too, who dismissed this case unheard, after summonses had been issued against the defendant, will now find out that there was something more serious in the charge than they seemed to believe or apprehend, and that it would have been quite as becoming in them to have exercised a moderate share of patience, in waiting for the appearance of the complainant until the usual time of commencing the business of the Police.

"It was the opinion of the Supreme Court, that the complainant had acted imprudently, in the part he took previous to the riots, and in not appealing to a civil tribunal for the redress of an injury - if an injury he sustained - by the projection of a mill-dam upon his land.  For this reason the Rule was dismissed.  But this was a reason which could not have prevailed with the Magistrates, for it could not have entered into their contemplation, had they proceeded with the hearing of the complaint regularly, and come to a decision on the evidence adduced."

[4 ] There was a similar dispute in Bignal v. Cooper, 1828, with a much more conventional outcome.

[5 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this part of the case, the records in the Select Cases are a duplicate of those at Vol. 2, 2/3185 pp 79-80, with only minor grammatical differences between the two.  At p. 79, there is a reference to p. 68 of the same volume, which said that S. Stephen showed cause and listed the affidavits put in evidence. 

Volume 2 p. 79 also referred to Vol. 1 p. 44 of the 248 notebooks: it referred to a hearing on 6 March 1828, at which Dr Wardell moved at the instance of John Raine, for a rule to shew cause why an information should not be filed against six people for riot: the people named were John Macarthur, George Howell, Hugh Taylor, Robert Parnell, David Lazarus, and Hyme Franks.  The record also lists the affidavits submitted by Wardell, and says that the court issued the rule nisi.  The court consisted of all three judges, Forbes C.J., Stephen and Dowling JJ.

Published by the Division of Law, Macquarie University