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

Mackay v McQuoid and Murray [1831] NSWSupC 14

trespass to the person - false imprisonment - convict, proof of conviction - hulk - convict punishment - Swan River

Supreme Court of New South Wales

Dowling J., 4 February 1831

Source: Australian, 12 February 1831[1 ]

 

FRIDAY, 4th FEB. --- Mackey v. McQuoid and Murray.[2 ]  This was an action of trespass and false imprisonment, damages 500l.  Plea, justification and the general issue.  It appeared, that the plaintiff and two others being free men, were all three arrested at Swan River some months ago, on suspicion of being runaway prisoners of the crown transmitted to this port by H. M. sloo Comet, Capt. Sandiland, and put on board the Phoenix Hulk, under the superintendent of the defendant, Murray, who acts under orders from the sheriff, who is a ministerial officer of the Government, and confined on board in irons, weighing about 10lbs. on one leg only, in a cell on the lower deck where a man cannot stand upright, except through the hollow between the beams; kept on short ration, consisting of uncooked beef ¼lb. greens ½lb. maize and wheaten bread 1lb. during about a fortnight; the ration being increased for the 7 or 8 remaining days they were on board, when the plaintiff and his two companions were released by writ of Habeas Corpus, from the Supreme Court.  Defendant's counsel, the Crown Solicitor Mr. W. H. Moore, pleaded in justification, a certain Act of Council authorising any persons to capture prisoners on reasonable suspicion of their being prisoners at large; and the fact of the defendants being ministerial officers without the power to question the orders they acted under; (!!) but the learned Judge ruled that the Act of Council, supposing that to be valid, was inapplicable to the case at issue, and however, ministerially the defendants might have acted, still, they could not be totally relieved of every responsibility.  This the Jury marked their sense of, by finding for the plaintiff, damages £200.

Forbes C.J., Stephen and Dowling JJ, 16 February 1831

Source: Sydney Gazette, 22 February 1831

In Banco.

Mackay v. McQuoid, Esq. and Murray.

This was an action of trespass on the case, for assault and false imprisonment, tried this term, before Mr. Justice Dowling and a Special Jury, when a verdict was returned for the plaintiff, damages £200.

A new trial was this day moved for, on the grounds of the verdict being contrary to the evidence, and that the learned Judge who tried the cause had misdirected the jury.

Dr. Wardell, in support of the application, said - I cannot but feel that I labour under very considerable disadvantaged, in fact, so great as to render it almost impossible for me to do that justice to the case which it deserves; for until this motion was put into my hands - not many minutes since - and until I heard the notes of the evidence read just now by the learned Judge, I was wholly unacquainted with the case or its merits.  The grounds upon which a new trial is applied for are, first, that the verdict was contrary to evidence, and, secondly that His Honor who tried the cause misdirected the jury.  Upon the first point, I shall have to contend, looking at all the circumstances in the case, as far as the nature of it may be collected from the evidence taken on the trial, that the jury have taken an erroneous view of it, and awarded an amount of damages not at all consonant with the evidence and general features of the case.  If we take into consideration the situation of the parties complaining - the place they came from - the situation of the authorities here, and of the authorities who were the means of sending those parties here; we avail ourselves of circumstances, independent of which what more is the case of the plaintiff than that of any ordinary case which comes before the Police every day?  It is assumed, and may be collected from the evidence, that these parties were sent to this colony under circumstances of suspicion, charged with some crime, or at all events suspected of being criminals; and having being forwarded in a state of confinement on board the Comet, direct from Swan River, by the authorities there, I contend that it was the duty of the authorities here to investigate the circumstances under which they came.

Mr. Rowe objected to the line of argument taken by the learned Doctor, as there was not a tittle of evidence on the trial to support the statements made by him.

Mr. Wardell. - The vessel came from Swan River, and brought these parties here in chains.  It was the duty of the authorities here, to investigate the circumstances under which they so came.  A course of acting took place accordingly - an investigation was entered into, and I would ask, then, why are we to treat this case more harshly than any common police case of a similar nature?  What did Mr. Hely do on the arrival of these persons?  Why, he endeavoured to ascertain if they were really runaway prisoners as it was represented to him they were.  Here, then, was the plaintiff at this stage of the proceedings at all events, alleged to be a runaway convict.  Mr. Hely, aware of a certain Act of Council, felt it his duty not only to act as a magistrated ordinarily would do, but as a person principally concerned namely, as Superintendent of Convicts.  But let us look at the Act - ``Whereas the crimes of robbery and housebreaking have increased to an alarming degree, and it is become necessary to restrain the same, as much as possible, by temporary provisions, suited to the emergency of the occasion; - Be it therefore enacted, that it shall be lawful for any person whatsoever, having reasonable cause to suspect and believe any other person to be a transported felon, unlawfully at large, immediately by himself,, or with the assistance of other persons, and without a warrant for such purpose, to apprehend, or cause to be apprehended, every such suspected person, and him take or cause to be taken before any Justice of the Peace of the Colony, for examination as hereinafter provided -  And be it further enacted, that every suspected person, who shall be taken before any Justice of the Peace as aforesaid, shall be obliged to prove, to the satisfaction of such Justice, that he is not a felon, under sentence of transportation; and in default of such proof, such Justice of the Peace may cause such person to be detained in safe custody, until it can be proved whether he is a transported felon, or free; and in every such case, the proof of being free, shall be upon the person alleging himself to be free:  Provided always, that every such Justice of the Peace may, in his discretion, cause every such suspected person to be securely removed to Sydney, to be there examined and dealt with in like manner as aforesaid."

Now, it has been held by His Honor that this Act does not apply.  I ask, why? - or wherefore?  Here are three persons supposed to be criminals; - that suspicion is a reasonable suspinion, for they are brought to this colony in chains.  Surely that is a ground for reasonable suspicion; and acting upon that suspicion, what does Mr. Hely do?  Why, he institutes an enquiry in order to ascertain whether that suspicion be well founded; and some time must naturally be occupied in such an investigation particularly when the parties come from abroad.  But the Act throws the onus of proof on the party suspected.  I admit that this is a law which can only be justified in the exigencies of the times; but it is, nothwithstanding, a very proper law, considering where we are.  Then, I ask, was the Sheriff to take upon, himself to nullify the act of a magistrate, performed under the authority of a local law?  Here is an Act to provide for the mischiefs arrising [sic] from suspected persons being suffered to be at large in the Colony.  Where then is the difference between the mischief to be apprehended from persons of that description in the Colony, and persons of the same description, coming from another country?  Supposing these men to be criminals, runaways from Van Diemen's Land, wherein consists the difference between them and any other of the description of persons against which this Act provides?  Can it be said that the circumstance of three persons being conveyed to this Colony in a King's ship, in irons, did not raise such a ground of suspicion, that they were criminals, as to justify the authorities here, in enquiring into the fact, and detaining them in custody until it were ascertained?  Were they at once to be turned upon the world without some investigation?  The whole of the case I say, unfolds itself in the course of the evidence; and if so, I ask the Court whether it was the legal way of putting it to the jury, to ask them whether they were satisfied that the plaintiff was a free man at the time of these transactions?  If the Sheriff had made this charge against him, and then abandoned it, the plaintiff would have a right to bring his action; but till that time arrived, his right did not arrise [sic].  Here was at all events a reasonable suspicion against the plaintiff - a suspicion grounded upon the fact of his being brought to the Colony in irons; and although there may have been some irregularity in the transmission of this man, I contend that we are not to try a case like this under the strictness of English law.  Why, the Court would be full of actions if every slight trip of a public officer in this Colony were to be visited with the same severity as in England, where all the people are free.  Notwithstanding all my predilections for liberty, I say it is impossible not to draw a line of distinction in this colony, where the public authorities have to watch over a particular class of persons, and to see that they are not suffered to be at large on slender grounds.  There is every difference between the state of things out of which an action of this description might arise in England, and the state of things in this colony.  In England, the maxim of law, that every man must be presumed to be free until the contrary be proved, is in full operation.  Here, on the contrary, one half of the population, or, at all events, a very considerable portion of it, are persons under sentence, before the expiration of which it would be a breach of duty on the part of the Authorities who exercised a control over them, to suffer them to be at large.  In every point of view, therefore, I contend that this verdict is contrary to evidence.  The very amount of damages is contrary to evidence; because it is awarded against the defendant for an act done under authority, and without malice; and because it has not been attempted to be shown that that act entailed any such damage on the plaintiff.  Are they, in fact, less than vindictive damages? - and, for what?  For acting under authority and looking to the safe custody of a person placed under his charge.  To assimilate the duties of a Sheriff in this colony to the duties of a Sheriff in England, would be as preposterous as to assimilate the duties of a Chief Justice and a constable.  It is the duty of a Sheriff here to receive men on board the hulk who are brought to him in irons.  He received this man as he receives every other man sent to him from a prison ship.  Could he have turned round and asked where he came from, and under what authority he came here?  Is that required of a Sheriff in this Colony?  And if it is not, admitting even that the plaintiff were entitled to a verdict at all, the excessive damages which have been awarded, I contend, are altogether contrary to the evidence.

Mr. Rowe objected to any argument on excessive damages, as it did not form one of the grounds set out in the notice of motion for a new trial.

Mr. Wardell - I argue on the excess of damages, as against the merits and conscience of the case, and as a circumstance to show that the verdict was contrary to evidence.  His Honor, I find, has very strongly pressed upon the attention of the jury what must, I apprehend, have necessarily induced them to bring in such a verdict as they did - namely, that the defendants must be held to all that strictness of law to which they would be held in England; overlooking that the case of the plaintiff was in a course of investigation, and that such steps were taken to ascertain the fact of his being free or otherwise, as could only be taken under the circumstances or in the time.  The necessary strictness of the English Courts is from necessity departed from here; and I do, upon the whole merits of this case, say, that there is sufficient for any person, bringing justice, conscience, and a fair consideration of the situation of these defendants to the enquiry, that if such a verdict can be sustained, we may expect nothing else but that the Court will be full of such cases; while, at the same time, we must see that, in this colony, we cannot act in the administration of the law as we would wish to act, and as we would be required to act in England.  I do therefore, confidently submit, that, in this case, a new trial ought to be granted.

Mr. Rowe, in reply, argued at considerable length against disturbing the verdict of the Jury.

The Chief Justice. -  This is an action of trespass on the case, for assault and false imprisonment.  The declaration contains several counts, which it is not necessary to go into, further than to state, that they allege generally, that the trespasses complained of were without any reasonable or probable cause.  To this declaration there is a general plea of not guilty.  From the notes of the learned Judge who tired the case, it appears that on the arrival in this port of a certain vessel called the Comet, one of the witnesses was sent to receive the plaintiff from on board - that he was delivered up to him in irons, and in that situation conveyed on board the hulk, and handed over to Mr. Murray, the Superintendent, and one of the defendants in this action, by whom he was confined in a cell.  It also appears, that about six days after this, he was conveyed to the prisoners; barracks at Hyde Park, for examination, from whence he was again transmitted on board the hulk; - that he was subsequently brought up before this Court, on writ of Habeas Corpus and discharged; - that he was afterwards recaptured and detained on board the hulk until he was a second time discharged by this Court.  For these various wrongs the plaintiff brought his action.  On the trial of the cause, the learned Judge held that the Sheriff was not liable for the taucious acts of those under him, unless it were shewn in evidence that they were adopted by him.  The facts of the case were then left for the Jury to determine, the Judge holding that a certain Act of Council referred to in argument this day, did not apply to the case, and that if the facts were proved in evidence to their satisfaction, that the amount of damages ought to depend upon the opinion they should entertain as to whether the trespasses complained of were wilful and malicious, or whether the defendants acted boná fide.  The Jury found a verdict for the plaintiff, assessing damages at £200, and the Court is this day moved for a new trial on the grounds set out in the notice.  The argument of Dr. Wardell, I understand to go to this extent: - that these persons arrived in chains on board the Comet - were received on board the hulk, and afterwards taken before Mr. Hely, in order to ascertain if they were runaways, and, on his authority, remanded to the hulk, and there dealt with as persons supposed to be under similar circumstances, and that these acts were all doneboná fide.  Reference has also been made to an Act of Council, which, it is contended, applies to the matter before us.  I will at once state my opinion, that this case is not one in which a new trial ought to be granted.  With respect to the facts, as left by His Honor the jury, I do not find how he could have left them in any other manner.  Unquestionably, as a general principle, the Sheriff is responsible for the acts of those under him, particularly if he mixes himself up with any part of them.  With respect to the main argument, that this case was justified under the local Act, I at once express my dissent from it.  The case was out of the jurisdiction of the Magistrates in this colony.  What was the offence imputed to these persons?  Why, that they were runaways from Van Diemen's Land.  What jurisdiction have the Magistrate of New South Wales over offences committed in Van Diemen's Land?  Then, how have they dealt with the case?  By directing the men to be placed in security till disposed of by order of the Governor!  Under what law or policy were those acts done?  If the Magistrates of this colony have jurisdiction over runaways from Van Diemen's Land, they have also jurisdiction over every offence committed there.  I admit that in the case of Jane New, this Court held that where a prisoner originally sentenced to Van Diemen's Land was found at large in this colony, the Court was bound to take notice of the general laws of the empire, and that it would not extend the benefit of the writ of Habeas Corpus to a person who, on her own shewing, was still under sentence to a penal colony.  But, even in that case, the Court went to the extreme principle of law.  The present case is widely different.  A Magistrate of the colony is not to clothe himself with an authority, and then sit down under it to decide upon the course he will adopt.  Upon general principles, I cannot conceive how he could act in such a case.  I am not prepared to say, that he might not have acted in a manner ministerially; but if he will go the length of doing things of this description, he ought to act cautiously before he went to the extent of transporting a man.  I do say that any Magistrate would do this, but to this extent does the argument addressed to us this day go.  There is a wide distinction between persons coming from England as transports and the case of these men.  Here have been a series of acts of pure volition, just as if the legislature had created a law to authorise them.  --  The mere fact of these persons coming from Swan River in irons could not be sufficient to incarcerate them in the manner stated in the evidence, and then to ship them off to another place.  Why, on such suspicion they might be sent round the whole earth.  What was done in this case might be done in any case; - and then what man would be safe?  Then, with respect to the Act of Council, any person who reads that Act must see that it is only a temporary Act, having a particular object.  In order to prevent the commission of offences very common in the colony, that Act was passed to enable any individual to apprehend a suspected person, and to take him before a Magistrate.  The law itself explains its object, and shows that it never could have been intended to restrain these men.  I really cannot believe that any Magistrate could suppose them to have been within the meaning of that Act; and Magistrates are bound to keep within the spirit of an Act, to give it a reasonable construction, and not to strain the pressure of a strong law, which, if their interpretation were held to be correct, would place the person of every man in the colony at their discretion.  Upon the whole of this case I see no ground for granting the present application.

Mr. Justice Stephen  -  I am of the same opinion.  I never saw any similar case in which there was less pretext for disturbing the verdict of a jury.  In seeking redress for illegal acts like these, it is not the value of pounds, shillings, and pence which a jury ought to consider.  They should take into consideration the sufferings of the party complaining, and the probable consequences which might result from them.  All these facts the Jury had a right to consider, and if they were satisfied that there was no probable cause for the acts complained of, it would, no doubt, and ought to operate on their minds in estimating the amount of damages they would award.  No British Judge could tell a Jury to overlook these things.  Is it because Magistrates conceive they have a power to do certain acts that they are therefore to be protected.  If the Sheriff concurred in those acts, he took the consequences of allowing the law to be violated on himself.  I think that no man who heard the evidence in this case, could put his hand on his heart and say that this was an unconscientious verdict.

Mr. Justice Dowling, after expressing very considerable satisfaction that this case had been brought under the consideration of the full Court, said - I can only observe, that the cause was tried by as respectable a Jury as ever I saw in the box; it was fully and fairly submitted to them, and they pronounced such a verdict as they considered the plaintiff ought to obtain.  My direction to the jury has been brought under consideration; but, laying my hand upon my heart, I aver that, in my opinion, no injustice has been done in this case.  One of the topics pressed upon us this day, is, that we ought not to administer the law in this colony with the same strictness with which it is administered in Westminster Hall.  I, for one, consider it to be the duty of this Court to administer British law, according to our understanding of it, strictly and impartially to all the King's subjects.  It is an old and settled maxim, that every man is presumed to know the law, the applicability of which to the Sheriff is not less cogent than to any other individual.  I merely make this observation to show that the conduct of the Sheriff, as of every other public officer, must be bound by the law of the land.  The true and safe course, is to administer the law fairly between man and man.  The objection to my direction in point of law, as I understand, is with respect to the local ordinance.  But any candid person, looking at that law, must see that it was passed for a special purpose, and that it applies solely and exclusively to this colony.  These parties were committed for being runaways from Van Diemen's Land, and punished by being left for the disposal of His Excellency the Governor.  If that be the sentence, it is void for uncertainty.  Looking at the whole of the case, it appears to me, that I had no other course to pursue in putting it to the jury, than that which I adopted.  The radical objection was the total want of jurisdiction in the gentleman who acted as a Magistrate; and I am therefore of opinion with my honourable and learned colleagues, that this application ought to be dismissed.  -  Motion refused.

Counsel for the plaintiff, Mr. Rowe; for the defendants, Dr. Wardell and Mr. Therry.

Forbes C.J., 16 February 1831

Source: Sydney Gazette, 5 March 1831

Mackay v. McQuoid, Esq. and Murray.

The Chief Justice delivered his opinion to the following effect:-  This was an action of trespass and false imprisonment.  The plaintiff, in his declaration, has averred in substance that he, being a free subject of His Majesty, was seized and arrested by the defendants, without any probable cause, and confined in a cell, in irons, on board of the prison or hulk, called the Phoenix for several weeks.  There are other counts in the declaration, in which the same acts of trespass are complained of in more general terms.  To this declaration the defendants have pleaded the general issue of not guilty.

From the notes of the evidence taken by the learned Judge (Dowling) at the trial, it appeared that the plaintiff and two other persons were brought to Port Jackson from Swan River, in His Majesty's ship Comet, for some cause or other, which was not shewn in evidence, and that they were delivered over to the defendant, Murray, who received them on board of the hulk, and placed them in one of the cells, on the lower deck of the hulk, with irons on, in like manner as felons in the hulk; and that, during each day, they were allowed to come on deck for four hours, for the benefit of air and exercise - that after being thus detained for five days, they were taken for examination before the Superintendent of Convicts, at the Convict Barracks; and from thence returned to the hulk.  The nature of the examination before Mr. Hely does not appear; but it is said that the plaintiff alleged he was a free man, and could prove it by witnesses within this Colony that the plaintiff afterwards obtained a writ of habeas corpus from Mr. Justice Stephen, and was discharged for want of sufficient cause of detention - that he was immediately after recaptured, by virtue of another warrant of the Superintendent of Convicts, setting forth that the plaintiff was suspected of being a runaway from Van Diemen's Land, and directing him to be confined until he should be disposed of by the Governor.  In pursuance of this warrant he was subsequently reconveyed to the hulk, and there detained until he was discharged under a second writ of habeas corpus, brought before the Chief Justice and Mr. Justice Dowling.  It further appeared upon the evidence of several persons, residents in Sydney, that the plaintiff was known to them as a free subject in Hobart Town, carrying on the trade of a shoemaker; and that he afterwards cleared out, after the custom of that place, with Mr. Gellibrand, for Swan River, to which latter place he departed, and from which he was afterwards brought to this Colony in His Majesty's ship Comet, and delivered to the defendant, Murray, the keeper of the hulk, as before stated.  There was a paper, among others, in evidence, proved to be of the signature of the defendant, McQuoid, directing the plaintiff to be kept in custody, on board of the hulk, after his return from the Convict Barracks.

For these several acts of the defendants, the plaintiff brought this suit.  At the trial of the cause, the defendants produced no witnesses, and the learned Judge stated to the jury, that the defendant, McQuoid, as the Sheriff of the Colony, was responsible in law for the misfeasance of his officers, independently of his own immediate acts, and he left all questions of act for them, under proper direction, to say whether there had been any malus animus on the part of the defendants towards the plaintiff, or whether they had not acted under a sense of duty, although mistaken as to the nature of it.  The jury found a verdict for the plaintiff, and assessed the damages at two hundred pounds.  The present application for a new trial is made upon two grounds --  first, for misdirection of the learned Judge; and, secondly, the verdict being contrary to evidence.

Had this cause been tried in Westminster Hall, it would have gone to the jury upon the single question of the amount of damages; and the only point which could there have been raised as ground for applying for a new trial, would have been an excess of damages.  But the argument of the learned counsel for the defendant goes to justify the case - he contends that this being a penal Colony, the fact of being brought here in chains in a King's ship, is prima facie evidence of being legally subject to detention.  But I am at some loss to know upon what principle this argument is founded.  It has certainly been held by this Court, that the fact of arriving as a prisoner under sentence of transportation to this Colony, and being delivered over with the regular indent containing the particulars of such sentence and the person of the prisoner, are prima facie evidence of his conviction and indentity [sic], and are a sufficient warranty to the authorities here to deal with such prisoner as a transported felon.  But the whole of this doctrine is founded upon two preliminary and important facts, viz. conviction and transportation, and the circumstances of being brought to the Colony, and being dealt with as a prisoner, accompanied by the indent describing the person of the offender, the nature of his crime, and the term of his servitude, are evidences of such facts.  Upon the fact of conviction and transportation however the whole doctrine depends, for without them there is no power whatever in the Magistrates to deal summarily with prisoners, or in the officers of Government to detain them.  In looking into the laws for the transportation of offenders, it will be seen how careful and anxious the Parliament has been to provide for every step that is taken, from the first order of transportation, through all the various subsequent stages in England, at sea, on the arrival of the convict in this Colony, the assignment of his services, and the summary jurisdiction to which he is subjected.  These are all special enactments of the legislature, and so carefully has the Parliament of England, even in cases of conviction, and sentence of transportation actually passed, provided for all the steps to be taken in carrying such sentence into effect; and in the same spirit has the legislature of this Colony endeavoured to guard the exercise of the summary jurisdiction confided to the Magistrates.  To give them summary jurisdiction, in any case, two things are requisite; first, that the person should be a felon convict, under a subsisting sentence; and secondly, that he should have committed some offence, within the limits of the territory - failing either of these requisites, the Magistrates have no summary jurisdiction over any man in the Colony.  Now, in the case before the Court, not only was there a total absence of proof that the plaintiff was a transported felon, under a subsisting sentence, but the offence charged against him occurred, if any where, out of the limits of the territory, and consequently out of the jurisdiction of the Magistrates.  What was the offence charged against the plaintiff before the Superintendent of Convicts?  The proceedings, if any, were not in evidence at the trial; but the warrant of commitment to the hulk expresses that it was ``upon suspicion of being a runaway from Van Diemen's Land."  If this were the offence charged, it was for absconding from Van Diemen's Land to Swan River.  Now, assuming for a moment that this fact were clearly established, it was an offence against the laws of Van Diemen's Land, and could not be tried in New South Wales.  The local Act of the Governor and Council of this Colony (11 Geo. 4. No.13.), gives the Magistrates the same jurisdiction ``over felons or offenders, removed or otherwise coming to New South Wales, from Van Diemen's Land, as they have over felons originally transported from England;" that is, over all offences committed by such persons against the laws of this Colony.  This point is too clear for argument - the Courts here cannot try offences committed at Van Diemen's Land.[3 ] Here then we find that there was an entire failure of jurisdiction in the Magistrate, both as to the person of the plaintiff, and the offence of which he was suspected.  How then can there be that justification in law, which has been contended for by the defendants?  I am of opinion that this argument of justification has failed; but it appears to me, however, that the Magistrate in this case considered himself rather as acting ministerially than judicially; and I am not prepared to say that a case might not occur, in which a Justice of the Peace would be protected for apprehending a person whom he had positive or strong presumptive proof of being a runaway transport from Van Dieman's Land, with a view to his being sent back to that Colony.  But in taking upon himself this ministerial and very delicate authority he should be especially careful to see that his grounds of suspicion were pregnant and strong, and that his acts were neither harsh nor unnecessary.  In the case of Jane New this Court refused to liberate the prisoner under a writ ofhabeas corpus, as it appeared by her own affidavit that she had been transported to Van Diemen's Land, and permitted to come here, but was still under an unsatisfied sentence of the law.  The Court merely refused to afford the remedy sought at its hands; it did not originate any sentence of imprisonment, although the applicant in that case admitted herself to be a felon transport.  I think, therefore, that if the Magistrate had merely acted ministerially in detaining a person either proved, or vehemently suspected, to be a felon under an existing sentence of transportation to Van Diemen's Land, his acts would have received all the protection this Court could have afforded him.  But it does not appear on what evidence the Superintendent of Convicts formed his suspicions of the plaintiff being a convict; while it does appear, upon the evidence at the trial, that there were several witnesses in this Colony who could prove his being free; and that he had alleged he was free, and could prove his freedom at the time he was committed by the Superintendent.  Surely in such a case as this, where the plaintiff came not from Van Diemen's Land, but from a free Colony, Swan River, and without indent, or sentence, or any one thing upon which he would be lawfully detained as a felon transport, it became necessary for the Magistrate to be very careful and particular, not less for the honour of the justice of the Colony, than from feelings of consideration for a fellow subject, who might be, and who was, entitled to the protection of the laws of the place, and to all the rights of a free subject of His Majesty.

It is hardly necessary to advert to the other local law of the Governor and Council, passed for the suppression of robbery and house-breaking.  In no part of the evidence does it appear that the Magistrate granted his warrant on this law - and it is so completely wide of the present case, that the bare statement of the law itself is quite sufficient to shew that it was never intended to apply to such a case.  This Act (11 Geo. 4, No. 10.) it is well known as matter of history, was passed to meet the particular exigencies of the times - it was notoriously unsafe for any person to travel alone, at any time, from Sydney to Parramatta.  -  To remedy this alarming state of things, the local Act provided, that any one person might apprehend any other person, whom he had reasonable cause for suspecting to be a convict unlawfully at large, and carry him before some neighbouring Magistrate, who was authorised to examine such suspected person, and to be satisfied that he was not unlawfully at large; and further, in case he should not be satisfied, to send him to Sydney, where of course it could be proved whether he was a felon under sentence or not, by the indents, in the proper office, or by the record of conviction, in some Court.  But how does this case come within this law?  -  Here were three persons brought against their will from Swan River, into this Colony - they are imprisoned in the hulk - from the hulk they are brought before a Judge of the Supreme Court, under a writ of habeas corpus - they are liberated by the Judge, and immediately apprehended by order of the Superintendent of Convicts for being unlawfully at large, in this Colony, contrary to the provisions of the law for suppressing robbery and house-breaking!  -  How could these men be held to have been ``unlawfully at large?"  -  They were never at large at all, and I cannot bring myself to believe that any Justice of the Peace could have so far mistaken the Act as to imagine it was intended to apply to such a case as this.  It is unquestionably a strong law, a very strong law, and nothing but the exigencies of the times can sanction it.  But the legislature, in feeling itself compelled to pass such a law, for a limited time, has a just right to expect that the Justice who is to administer it will be guided by good faith, and exercise a sound discretion, and not strain a severe law to make it cover any case to which it was manifestly never intended to apply.  If this be the interpretation which is to be given to the law, there is no man whom a Magistrate may not suspect; and no suspected man whom he may not confine for an indefinite time in the cells of the hulk - and it places the person of every person arriving in the Colony at the arbitrary discretion of the Magistrates.  I repeat, therefore, that there is no proof of the Magistrate's having acted under this law, and I cannot suppose that he did so.  -  To have resorted to such a law, in such a case, would have carried silent proof that the Justice felt he had no law whatever to justify his interference with the plaintiff.

I have been led thus far, into a general review of the law, in consequence of the argument of counsel on the first ground taken for a new trial, viz. - the misdirection of the learned judge, in not telling the jury that the defendants were justified under the local usage and law of the Colony.  I am of opinion that there is neither any known law, nor any acknowledged usage, which gave the Superintendent of Convicts the power exercised by him; that his warrant of commitment was void, both for want of jurisdiction and for uncertainty, apparent upon the face of it, and that it afforded no protection to the Sheriff or his officers acting under it.  The Sheriff is a high officer - he has many responsible duties to perform, and the Court will go as far as it can to protect him in the honest, although mistaken discharge of his office.  But he is bound to look at the authority under which he acts, and to see that his officers do the same.  This was not a case of known jurisdiction - it was not a New South Wales case - there was no paramount obligation of duty, requiring the Sheriff to hold these persons at his peril.  The whole proceeding was one of novelty, and without precedent.  The first commitment or transfer of the plaintiff from the King's ship request of the Master Attendant of the dock-yard - the subsequent letter of the Under Sheriff to the keeper of the hulk, and, ultimately, the warrant of the Superintendent of Convicts, presented a series of so many anomolous [sic] proceedings, that they should have awakened [sic] the attention of that officer, and led him to look into the legality of the proceedings.  I conceive it to be the duty of the Sheriff, in this Colony, to look into his warrants, and where he finds they are clearly unlawful, to represent it to the authorities from which they come.  In this case he not only failed to do so, but in one stage of the proceeding took a direct part himself.  I think he is legally responsible for his own acts, and those of all persons whom he placed in authority under himself; and in the present instance both he and they acted without lawful authority.

The damages have not been questioned, and therefore I am not called upon to offer any opinion upon the amount at which the jury have estimated the injuries done to the plaintiff.  The jury was special, at the instance of the defendants; it was composed of highly respectable persons, according to the report of the learned Judge, and I am of opinion that we ought not to disturb the verdict.

 

Notes

[1 ] See also Sydney Gazette, 8 February 1831.

[2 ] See also England v. McQuoid and Murray, 1831; England v. Sandilands, 1831; Mackay v. Sandilands, 1831.  For comments and reports of other cases in this series, see Sydney Gazette, 8 February, 3 March 1831, 7 April 1831; Australian, 12 and 19 February, 8 April 1831.  See also Australian, 18 March 1831.

[3 ] Note in original: ``At the time the above judgment was passed, the stat. 1 Will. 4. cap.39. had not been published; that act, however, does not give the Magistrates of New South Wales any jurisdiction over offences committed in Van Diemen's Land; and the law, in this respect, is just as it was before the Act."

Published by the Division of Law, Macquarie University