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

Mackay v Sandilands [1831] NSWSupC 29

assault - false imprisonment - convict, proof of conviction - convict escape - Western Australia - frontier law

Supreme Court of New South Wales

Forbes C.J., 26 March 1831

Source: Sydney Gazette, 31 March 1831[1 ]

(Before the Chief Justice and a Special Jury.)

Mackay v. Sandilands, Esq.

This was an action of trespass, for assault and false imprisonment, brought by the plaintiff, John Mackay, against the defendant, Alexander Sandilands Esq. Captain of H.M.S. Comet.  The damages were laid at £500.

The following gentlemen were sworn on the jury:-

A. B. Spark, (Foreman), Philip Neyle, James Chisholm, Charles Warne, Archibald Mosman, John Dickson, Robert Campbell, Thomas Brown, Thomas Barker, Gregory Blaxland, George Acres, and Philip Flower, Esqrs.

Mr. Rowe opened the pleadings.  The declaration in this case, said the learned gentleman, states, that the defendant theretofore, on the twenty-first day of September, 1830, at Swan River, that is to say, at the Colony of New South Wales, with force and arms, &c. made an assault upon the said plaintiff, and then and there seized, and laid hold of the said plaintiff, and with great force and violence, pulled and dragged about the said plaintiff, and compelled him to go on board of a certain ship or vessel, whereof the said defendant then and there was, and still is, the commander, and confined and imprisoned the said plaintiff on board of the said vessel, and kept him so confined and imprisoned for a long space of time, for the space of eighty days then next following, and then and there put divers shackles and heavy irons upon the said plaintiff, and placed an armed guard over him, and then and there forced and compelled the said plaintiff, without allowing him to have any intercourse or communication with any of his family, friends, or acquaintances at Swan River aforesaid, to proceed in the said vessel from Swan River and ion the high seas to Sydney, in New South Wales aforesaid, against he will of him the said plaintiff; and during such voyage, forced and compelled him the said plaintiff, to do and perform various mean and laborious services on board the said vessel without allowing or permitting the said plaintiff to have proper or sufficient food or necessaries, and after the termination of the said voyage, the said defendant kept and continued the said plaintiff so confined and imprisoned as aforesaid, in irons, for divers (twenty) days, and until the said plaintiff procured his discharge from such confinement, by means of a writ of Habeas Corpus, by means of which said premises the said plaintiff hath been and is greatly injured in his circumstances, credit, health, and reputation, and also hath been wholly prevented from attending to his necessary affairs and business, from which he otherwise might, and would, have obtained divers great gains and profits, and also hath been prevented from collecting and recovering, and in consequence thereof, is now likely to lose divers sums of money, due and owing to him from divers persons at Swan River aforesaid, and also hath been put to divers great charges and expenses in suing out the said writ of Hebeus Corpus, and procuring his discharge from such aforesaid confinement and imprisonment, and also hath sustained great pain of body and anxiety of mind.  And also for that the said defendant on the said twenty-first day of September, 1830, at Swan River aforesaid, that is to say, at the Colony of New South Wales aforesaid, with force and arms, &c. made another assault upon the said plaintiff, and then and there beat, bruised, and ill-treated the said plaintiff, and then and there forced and compelled him, the said plaintiff, to go on board a certain ship or vessel, and then and there imprisoned the said plaintiff on board of the said last mentioned vessel, and kept and detained him so imprisoned there for a long space of time, for the space of eighty days then next following, contrary to the will of the said plaintiff, and without any good or sufficient cause whatsoever,  And also, for that the said defendant on the said twenty-first day of September, 1830, with force and arms, &c. at Swan River aforesaid, that is to say, at the Colony of New South Wales aforesaid, made another assault upon the said plaintiff, and then and there beat, bruised, and ill-treated him and other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of our Lord the King; wherefore the said plaintiff saith that he is injured, and hath sustained damages to the amount of Five hundred pounds, and therefore he brings his suit, &c.

To this declaration the plaintiff has pleaded the general issue, not guilty, and has also filed a notice of justification in the following terms:-  ``Take notice, that the abovenamed defendant will, on the trial of this cause, give in evidence and insist that the said plaintiff, at the time of the trespasses complained of in this Colony, at Swan River, was under committal for felony and larceny committed by him at Swan River aforesaid; and also that he was suspected of being a felon under sentence of transportation from some part of Great Britain to this Colony or to Van Diemen's Land; and that the said defendant, being the Commander of H. M. S. Comet, did, in pursuance of the commands and orders of His Honor James Stirling, Lieutenant-Governor of Swan River aforesaid, receive on board His said Majesty's ship Comet the said plaintiff, to be conveyed from Swan River aforesaid to Sydney aforesaid, for examination and inquiry respecting the said offences for which he was so committed, and for the trial thereof, and to ascertain whether or not the said plaintiff was or is a felon under sentence of transportation to this Colony or to Van Diemen's Land aforesaid; and that the said defendant did, in pursuance thereof, convey the said plaintiff from Swan River aforesaid to Sydney aforesaid, and delivered him up to the civil powers, to be dealt with according to law, making use of no more force or injury to the said plaintiff than was necessary for the purpose aforesaid, which are the trespasses complained of in the said declaration of the said plaintiff."

Mr. Foster addressed the jury, for the plaintiff, tot he following effect: - Gentlemen, I am most happy to behold so intelligent a jury as the one I have now the honour of addressing assembled here this day.  Believe me, gentlemen, I say this with perfect sincerity; because so much has been said, insinuated, and published, with respect to this case, in order to prevent my client having a fair trial, that I might experience a very reasonable apprehension that an ordinary jury would forget the duty imposed upon them, to try this case solely upon the evidence to be adduced; or, if they did not so forget, that at all events, they would not have firmness enough to act up to that principle, or to withstand the various means which have been resorted to, in order to prejudice the cause of the plaintiff in this action.  I, however, am satisfied, that the gentlemen whom I have the honour of addressing on this occasion, will not suffer their minds to be prejudiced by any thing they may have heard out of doors, or seen published respecting this case; but that they will come to a consideration of the subject solely upon the merits, to be deduced from the testimony which I shall presently lay before them.  Gentlemen, having made these preliminary observations, I will now proceed to detail to you the circumstances under which this action has been brought.  Gentlemen, the plaintiff, for some time before he quitted Hobart Town to proceed to Swan River, was in the service of a Mr. Wintle, as a shopman, and, subsequently, in the employ of another person, in the same capacity.   During this period, he was generally known to be a free man; and, gentlemen, notwithstanding any old papers which may be attempted to be foisted upon you this day, I shall be enabled most satisfactorily to prove that he was, in fact, a free man; - that he acted, and was recognised as such by those persons to whom he was best known; - that he left Hobart Town, not in a clandestine manner, but in the ordinary way; and that not the slightest suspicion was entertained of his being a prisoner.  Gentlemen, my client was induced to leave Hobart Town, either because he considered it would be to his advantage, or from that desire of seeing strange countries which some persons possess, and he accordingly proceeded to Swan River in the service of Mr. Gellibrand.  Shortly after his arrival in that Colony he got married, and has now there a wife and child; but, after some time, he was apprehended by order of the Lieutenant Governor, upon some vague charge, and without any sort of investigation, - without even the shadow of a trial, was handed over in irons to the defendant, then Commander of H. M. S. Comet, who took upon himself to receive my client on board, on the 19th of September, 1830, to convey him away from his family and property to this Colony, and hand him over to the custody of the Superintendent of the hulk Phoenix, on the 13th of October in the same year.  Gentlemen, this is the act of aggression for which the plaintiff comes before you this day, and seeks to recover damages at your hands.  To this action a plea has been put in, first denying that any damages have been sustained by the plaintiff, and then justifying them; and, certainly, if evidence is laid before you this day, sufficiently strong to justify the commission of those acts of outrage of which my client complains, the defendant will be entitled to your verdict; but, gentlemen, if not - if such evidence should not be adduced - I put it to you to say what damages the plaintiff is entitled to for such an act as this - an act, in fact, of transportation, such as they only undergo who have committed some serious offence against the laws of their country, and for which they have had the benefit of a fair trial.  I do say, most sincerely, unless an act like this be fully justified, the whole amount of damages laid in the declaration would not be more than commensurate to the injury the plaintiff has sustained.  Gentlemen, I ask you, is a man to be torn from his family in this way - not having committed any offence whatsoever - without receiving full and ample compensation?  Is it to be tolerated that acts like these are to pass unnoticed, or unvisited with the severest reprehension of the law?  I am satisfied, gentlemen, that your verdict this day will be such as effectually to check such outrages in future, and to show that no man, whatever his condition, or however he may be upheld, is to set up his own authority against the law.  Gentlemen, it has been rumoured that my client was under some charge at Swan River.  It is, however, the spirit of the British law, that every man shall be presumed to be innocent until he be proved otherwise.  Is the merely being under a charge - supposing the fact to be so - a ground of justification for an act like that of which the plaintiff complains? - Is it because a malicious man may chose to prefer a charge against another, that that other, without any trial, is to be forced on board a vessel, in heavy chains, placed below decks, treated in every respect like a felon, and, because he could not prevent the clanking of his chains, threatened with being debarred the privilege of coming on deck at all?  Are these acts to be justified by vague charges and suspicions, never substantiated?  Gentlemen, I shall also prove, after the plaintiff was forced on board the Comet in the manner I have stated to you, that he was not allowed to communicate with his family or friends on shore, although, in reference to the alleged suspicion of his being a runaway convict, he offered not only to disprove that fact, but also to prove his innocence of the specific charge laid against him, if he were allowed the means of communicating with the shore.  This, however, he was not only not permitted to do, but he was informed, in the event of his being detected in any communication with the seamen during the voyage, that he would be indulged with the cat-o-nine-tails, and six dozen.  Gentlemen, suppose the plaintiff was under a charge, was this, the way to treat him, before he had been found guilty of the offence imputed to him?  -  Are we to have acts like these justified upon the ground of expediency ``the tyrant's plea!" - No, gentlemen, if a party will overstep the limits which the law allows him, he must, as I trust you will teach him by your verdict this day, suffer for his acts.  A man might take it into his head that you or I committed some crime, and put us into the watch-house; but would it therefore follow that we were guilty?  But, gentlemen, with respect to this plea of expediency, of which I expect you will hear a good deal to-day, I say that it is far better that several guilty individuals should escape, than that the laws should be violated in the person of one innocent man.  It will also, no doubt, be urged, in favour of the present defendant, that he acted under the orders of Capt. Stirling, his superior officer.  But, gentlemen, even though he were requested to take the plaintiff on board his ship - and, after all, the letter upon which this part of the defence will be supported, amounts to nothing more than a request - what should have been the defendant's reply?  Why that he would be happy to oblige His Excellency the Lieutenant Governor, if he could, but that he would be legally responsible for an act like that which he was required to perform.  No man is bound to obey the illegal commands of another, however high the station of that other may be: if he does obey such commands he must be liable for the consequences which may ensue.  Suppose the Governor of this Colony were to write to a magistrate, requiring him to do an illegal act, would the magistrate obey such a command?  Certainly not: the reply would be civil no doubt, but it would still be a refusal.  Therefore, I say, unless a clear justification be made out in this case, the plaintiff will be entitled to damages at your hands, to the full amount of the injuries he has sustained.  I have only been able to find one case in the books which is at all analagous [sic] to this.  In Selwyn's nisi prius there is the report of a case wherein an action was brought against the Governor of Minorca, by a native inhabitant, but under the protection of the British law, for forcibly removing the plaintiff off the island, and conveying him to Carthagena.  On the trial, the defendant justified on the ground that the plaintiff had endeavoured to create a mutiny on the island, but the jury, notwithstanding, gave £3000 damages.  Gentlemen, we all held our lives, liberty and property, under the law: if it be of importance to us that we should enjoy this security unimpaired, it is necessary that we should resist every encroachment which has a tendency to impair it; and I say it is impossible that we can be secure, if parties, whoever they may be, can assume a power unknown to the law, remove any individual from one part of His Majesty's dominions to another, and then justify the aggression by pleading that he acted for the public good.  I am satisffed [sic] that you will not sanction outrages like these, under any pretext whatsoever, and that my client will this day receive at your hands full compensation for the wrongs he has suffered through the unauthorized acts of this defendant.  Gentlemen, having made these observations, I shall proceed to adduce evidence in support of the plaintiff's case; and, first, I will request that the depositions of several witnesses, taken de bene esse, may be now read.

The depositions of the following witnesses were then read by the clerk of the Court.[2 ]

Lieutenant Henry Frederick Peake said, that the ship Comet was at Swan on the 19th September, 1830, on which day the plaintiffs were brought on board; there was no difficulty in getting on board the ship from the shore; they were on board, whilst at Swan River, six days; they were on board with defendant's knowledge; the plaintiffs came on board the ship in irons, very heavy double irons; the three men were put together in small portion of the after part of the lower deck set apart for them; they could either sit or stand; they had for provision prisoner's allowance, two-thirds of the King's ration, without spirits; the full allowance is 1lb. of bread, 1lb. of fresh meat, or 5lbs. for 7 days, of salt, 2lbs. flour added, 1 oz. cocoa, ¼ oz. tea, 1½ oz. sugar, peas or doll a pint; they were allowed on deck during the six days; they were on deck every day for necessary occasions; they applied once to me for permission to walk for exercise, which was granted; defendant was not on board the ship at the time; they were on deck once when defendant was on board, who expressed displeasure at the noise of their chains, and ordered them below; there was an order given by defendant that plaintiffs were not to communicate with the seamen, on the peril of their being flogged; during the time we lay at Swan Port the plaintiff's were not allowed to communicate with the shore or their friends; they did not request from me to go on shore, or have such communication; I received a letter from the plaintiffs, which I destroyed, requesting to have their clothes from on shore; they had bedding on board; the letter contained an assertion that they were guiltless, and the hardship of their case; the defendant refused to see the plaintiffs, and denied them communication with the shore; plaintiffs asked what they were sent on board for; nobody knew what they were brought on board for; plaintiffs stated that they had not a change of linen, and requested of defendant to get some from the shore; this was before the refusal to allow communication with the shore; they had no supplies of clothing from the ship, I mean from the King; I informed defendant that I had received the plaintiffs by H. M. S. Sulphur's boats, either the day or day after their being on board; they continued on board with the knowledge of defendant; they were detained on board by defendant's order; and treated as before-mentioned; they were received on board by the captain's orders; plaintiffs' irons were taken off on clearing Swan River, and put on again on anchoring in Sydney Cove, which was on the 13th October; during the voyage they were put into a watch, but they did not go aloft; they had the same provisions as beforementioned; on arrival, they were by, direction of defendant, sent on board the hulk.

Cross-examined  -  The allowance of food was according to the King's regulations for prisoners; the provisions were of the same quality as those served out to the ship's company; the plaintiffs were never punished, nor treated harshly, nor never complained to me of bad treatment; I am the proper officer to receive all complaints.

Richard Brockman, boatswain's mate on board the Comet, I heard the plaintiff, Coombes, in the presence of the other two men, request that they might be allowed to procure proof from the shore of their being free men, and not guilty of any offence; they told this to the ship's company who happened to be present; they wrote a letter to Lieut. Peake, which they said contained that request; Mackay said he wished to see his wife and child at Freemantle; I collected come money that was due to him on shore, and got his clothes.

Mr. Peake re-examined  -  The accommodations afforded the plaintiffs on board the Comet were good; they had room equal to eight sailors.

Serjeant Arthur Ruddiford  -  When plaintiffs were received on board the Comet, they were put below in the lower deck, where prisoners are usually kept; I saw them every hour in the day; at certain times they walked on deck; they wee kept on the lower deck, the fore part of the steerage; there was room for five men to sit on a stool; deponent was sent for by the defendant, who ordered that plaintiffs should make less noise; defendant gave orders that the ship's company were not to mix with the plaintiffs on peril of being flogged (6 dozen) or if they did not behave themselves generally; Coombes gave me a letter at Swan Port; I took it to Mr. Peake; there were three letters, one I gave to a waterman for clothes, and one was for Governor Stirling; heard plaintiffs say they were free men; they were six upon four; there was no cocoa on board the ship; Mackay was ill several days whilst at Swan Port; they were always allowed to go on deck for necessary purposes; to the best of my knowledge, they were never denied by the sentry in my presence, or by myself.

Cross-examined  -  6 on 4 is not sufficient for a working man, witness could not live on it.

Joseph Hope, a marine on board the Comet said, I was on board at Swan Port, saw plaintiffs on board, they were confined when I first saw them, and remained so whilst at Swan River, except when they wanted to go to the head, they were all fastened on one iron, besides double irons; the prison is in the larboard waist; there is sufficient space for 6 people, that is, they had as much accommodation as eight of our men; the deck was not high enough for them to walk about; plaintiffs had double irons and a shackle; Captain Sandilands when he liberated the plaintiffs said they must work, and if he had occasion to find fault with them he would flog them; I think he said he would give them six dozen; I could not work as I ought to do on 6 upon 4.

William Aldridge, a marine on board the Comet said, I was sentry over the plaintiffs at Swan Port; I received orders respecting them from Jospeh Hope, not to allow the prisoners to have any thing but water, besides the ship's allowance; I had only side-arms; they were double ironed; I received orders in consequence oi Mackay slipping down the ladder, tat if he did not make less noise with his irons, that plaintiffs would be lashed down and sentry punished; I received orders from a corporal; plaintiffs never were lashed down; I never saw plaintiffs ill-used.

On the part of Captain Sandilands.

Surgeon William Simpson  -  I had no complaints from any of the plaintiffs but one (Mackay) as to their health, he had a bowel complaint: he received aid in the ordinary way; I landed him without being on the sick list; the plaintiff, Mackay's health was not affected by any insufficiency of provisions.

Samuel Wollon, marine on board the Comet, said, I was serving on board the Comet; I was cutting broom on shore when plaintiff's were brought on board; I was on board when she left; I was sentry over plaintiffs when the ship was heaving anchor; when the ship got under weigh the defendant' sent for plaintiffs on deck; defendant asked Coombes what he was; Coombes said he came out to this country in some ship, but I do not recollect the name; England said the same; he was known by the name of England whilst he was on board; Mackay was sick and made no answer; defendant said he should release them out of irons, that he should put them to work, and if they did not behave themselves, he would flog them; and give them 6 dozen each; Mackay was not set to work with the other men; he did not work for about four days; defendant then told them to go away; nothing else passed.

Witnesses were then called, who proved the reception on board the hulk Phoenix, from H. M. S.Comet, of the plaintiff, on the 13th October last.

This was the plaintiff's case.

Mr. Therry rose to address the jury on the part of the defendant.  Gentlemen, said the learned counsel, in this case I have the honour to appear on behalf of Captain Sandilands.  My learned friend on the other side, in his opening has addressed you on one topic, in which, I must say, I fully concur with him.  He told you, gentlemen, that he was almost ashamed - I have taken down his very words - he was almost ashamed again to address men of your intelligence and respectability, on a subject upon which so much has been said, and written, and published; I agree with the learned gentleman, that it is indeed a threadbare subject, and I do therefore, regret that he should have thought it necessary once more, and for the fourth or fifth time, to trouble you with another edition-out Swan River cases.  Gentlemen, no less than £400, with the like sum in the shape of costs, has already been recovered from the Sheriff by these parties; and according to the intimation from the other side, it seems that they are not yet to be done with; that there is yet a nest egg; and, really, gentlemen, so long as such a person as the plaintiff can recover £200 damages, with the like sum in costs, there will be no want of legal ingenuity to supply fresh causes of action.  Gentlemen, the case you will have to try to-day, is so precisely similar tot hose which have been already disposed of, that it will be impossible to bring before you any new facts, or to give a new character to one case out of several presenting the same features.  Three men, of whom the present plaintiff is one, have been described to you as the very paragons of perfection, in fact as perfect models of virtue for the rest of His Majesty's subjects to follow; but, gentlemen, we will this day lay before you in evidence, a paper exhibiting the real character of the plaintiff, and it will then be for you to determine how far distinct that character is from the brilliant portrait of it which has been drawn by my learned friend on the other side Gentlemen, the plaintiff and his two associates were attainted of felony at Swan River; and here is the situation in which we first find them.  They came to that settlement under suspicious circumstances, and upon the charge to which I have alluded being preferred against them, an examination was entered into, the result of which was such as to impress the mind of the Governor of the Colony that they were runaways, either from New South Wales or Van Diemen's Land.  They were duly committed for breaking open and stealing, as appears by a letter which I shall presently have occasion to refer to; and here, gentlemen, it will become necessary to consider the situation in which Governor Stirling was placed.  The Colony of Swan River is in its infant state - it possesses neither judges, magistrates, or gaols - the machinery of justice has not yet been brought into operation there - and it was, therefore, quite impossible to deal with these parties as they would be dealt with here.  Gentlemen, Captain Stirling, finding he had such characters as these to deal with, addressed a letter to the defendant, who was then at the settlement in command of H. M. S. Comet - and here, I will observe, that the defendant was bound to obey the instructions then given him by Captain Stirling, he being not only Governor of the Colony, but the defendant's superior officer.  Captain Stirling took upon himself the responsibility of the order, and I contend that the defendant was bound to obey it.  The act was the act of Governor Stirling, and I am sure His Honor on the Bench will tell you that there is no jurisdiction in this Colony which can sit in judgement on an act done by the Governor of another and wholly independent Colony.  Gentlemen, as I have already stated to you, Captain Stirling finding himself in this situation, addresses the following letter to the defendant:-

"Perth, 18th September, 1830.

"Sir,

"I have the honour to request your assistance by conveying to New South Wales, on board his Majesty's ship under your command, the persons named and described in the margin - [John England, John M'Kay, Robert Coombes, committed for breaking open and stealing.]  These persons, it is understood, were formerly prisoners of the Crown in New South Wales or Van Dieman's Land; and it is more than probable that they may be identified on their arrival in one or other of these Colonies, as having absconded before the expiration of their sentence.

"In an accompanying dispatch, addressed to His Excellency General Darling, which is left open for your perusal, I have explained the reasons which make it desirable for the good of the public service that these persons should be sent to New South Wales, and I shall be much gratified by your acceding to my request in furtherance of that object.

"I have the honour to be, Sir,

"your most obedient Servant,

"JAMES STIRLING,

"Lieutenant Governor."

"Captain Sandilands, H.M.S. Comet."

Gentlemen, this is a letter sent to the defendant when he received these men in charge, accompanied by another letter to the Governor of this Colony, requesting that they might be dealt with according to law.  Gentlemen, I claim for the conduct of Governor Stirling and Captain Sandilands the fair construction of men of the world - of men of intelligence such as compose the jury I now address.  It is by such a judgement, and not by the exceptions which such an experienced special pleader as my learned friend may discover in their conduct, that you should be governed in your decision to day.  My learned friend is a member of a powerful body, the body of a special pleaders - a class of men who, in England, have erected another reason besides natural reason, and the result has been another justice besides natural justice.  They have bewildered the world and themselves in unmeaning forms and ceremonies, and so perplexed the plainest matters with metaphysical jargon that it carries the highest danger to any matter out of that profession to take the least step without their advice and assistance.  Their influence is so great that men positively become tenants of their lives and properties at the will of these gentlemen, and it often happened that a metaphysical quibble was to decide whether the greatest villain breathing should meet his desert, or escape with impunity, or whether the best man in society should not be reduced to the lowest condition in it.  It is not by the false refinement and overstrained nicety of such points as these mysterious professors may deal in, that the conduct of Captain Sandilands should be estimated - but try him by the test of common sense - by a consideration of the situation in which he was placed, and the peculiar circumstances of the Colony of Swan River, and of the Governor, whose orders he obeyed.  Try him by this and I will be satisfied with the result.  I put it to you to say, whether, upon the very face of the despatch transmitted by him to the Colony, and which I will now call your attention to, it does not clearly appear that he was actuated solely by a sense of public duty.

"Perth, Western Australia, Sept. 18, 1830.

"Sir,

"I have the honour to inform your Excellency, that, at my request, Captain Sandilands, of H.M.S.Comet, has been good enough to receive on board that ship, for a conveyance to New South Wales, the three persons described in the margin [John England, John Mackay, Robert Coombes - committed for breaking and stealing], who have been some time in confinement here, on a charge of felony; the evidence relating to which is too clear to leave any doubt as to their guilt.  In the absence however of any regular Criminal Court, as well as of secure goals, I am under the necessity of sending these persons out of the settlement, as the expense of their detention, and the risk of injury from their escape, would both be too great to make it proper to keep them here under existing circumstances.  There is reason to believe that these men were formerly prisoners of the Crown in New South Wales or Van Dieman's Land, and it is probable that they may be identified on their arrival at Sydney, as having absconded before the expiration of their sentence; but in the event of this surmise being found incorrect, they will of course be set at liberty, and I must then trust to your Excellency's forgiveness, under the difficult circumstances of this government, for sending such persons to the Colony over which you preside.  I have the honour to be

"your Excellency's most obedient and

"most humble servant,

"JAMES STIRLING."

"To His Excellency General Darling, &c. &c. &c.

Gentlemen, this is his own simple account of the transaction; he claims that indulgence of the authorities here to which his peculiar situation is entitled, - that indulgence which I am satisfied he will also receive from you.  We shall produce a witness before you this day, who knows of these persons having been taken up at Swan River and examined on a charge of felony, and that the result was a committal.  We shall also bring proof that there was reason to suppose that these men were formerly prisoners of the crown at Van Dieman's Land.  A document which I hold in my hand, in which the plaintiff is advertised as a runaway was read to him, when he admitted that he was the person therein described, independently of the perfect agreement in every respect, of his person with the description set forth in the advertisement.  This, gentleman, is the complete pure man, the perfect model for British subjects; and such is the character upon which he grounds his claim to the £200 which he has already recovered, and to the 5 or £600 which he still expects.  Gentlemen, I put this question to you.  Do you not believe that your predecessors in that box, when they awarded large damages to this runaway shoemaker - this Walmsley of Swan River - believed him to be what my learned friend has described him to be - a pure man, and that the £200 which they gave him was intended to cover all the alleged and imaginary suffering he had endured from Swan River to Port Jackson?  I am satisfied they conceived that he was fully compensated, and that it never was supposed that actions like this were to go as ad infinicum.  My learned friend on the other side has intimated that he is not yet done.  The time of the Court, during nearly the whole of the last, and of the present term, has been literally monopolized by these Swan River cases, with an intimation that the parties are not yet done.  But, gentlemen, with respect to the plaintiff, I put it to you, whether, after his admission to Mr. Hely that he was the same runaway described in the Hobart Town Hue and Cry, reasonable presumption might not have arisen in the mind of Governor Stirling that he was the runaway convict there described? - and whether, seeing he had to deal with such a man, in the peculiar situation too in which he was placed, he could have adopted any other course than that which he pursued?  My learned friend has expatiated with great warmth upon the fascinating theme of popular freedom - Unquestionably it is an exciting topic to dwell upon; but not even by the eloquence of my learned friend, could I be transported into the captivating delusion, that we are living in this colony in a state of society in which liberty can shed her beams, in the same unclouded blaze of light, with which she pours them upon great and mighty England.  'Tis true, we have grown rapidly, but it will take the time and toil of industrious generations, before either N. S. Wales, or Swan River can attain that maturity or multitude of free institutions at which Great Britain has arrived.  To use the language of unbounded freedom, where unbounded freedom does not, and perhaps cannot dwell, appears to me to be a mischievous profanation of language.  This perhaps may not be palatable doctrine in a community, in which there is a class of persons more vehement in their aspirings, after the ideal perfection of freedom, than perhaps any class of politicians even in England - of whom it may be said in the language which, Dryden puts into the mouth of one of the most extravagant of his heroes.

``They would be free as nature first made man,

``Ere the base laws of servitude began,

``When wild in woods, the noble savage ran."

These are no doubt noble and swelling statements, but such as are not reducable [sic] into practice.   This search after abstract perfection government may produce in generous minds enterprised enthusiasm, but such perfection is not an object of reasonable pursuit, because it is not of possible attainment.  In the infant colony of Swan Port, and in the more mature colony of New South Wales, and indeed in every well regulated community, there must be a compromise between the aspirings of individuals and a due concern for general tranquility.  Gentlemen, the only other point to which I think it necessary to direct your attention, is the conduct of the defendant to the  plaintiff and his companions on the voyage to this port.  It has been admitted by the witnesses for the plaintiff that they were well used on the passage, and I will also prove to you their own admissions to the same effect.  It is also in evidence, that the irons in which they were received on board at Swan River were struck off immediately after they sailed, and were not put on again until their arrival in this port.  In fact, I shall prove to you that they admitted, in the presence of the defendant himself, that during the passage, they had no complaint whatever to make of the usage they received.  But, gentlemen, I cannot forbear once more adverting to that topic which I have already pressed upon your attention, namely, that your predecessors, in giving the amount of damages which they awarded, took into consideration all the circumstances of the case, and far more than all the sufferings these parties had endured.  The question then is, after receiving these large damages, whether they should again come before you and ask for more.  It is for you to say whether such is a reasonable request.  Upon the whole of the case, gentlemen, you will have to consider the peculiar situation in whics [sic] Governor Stirling is placed, and whether, being in that situation, without the advantage of lawyers or magistrates, or buildings for the safe custody of priosners, he acted as a reasonable man, and whether, in sending these parties out of the Colony, he did so under the bona fide impression that it was for the good of the public.

The following witnesses were then called on behalf of the defendant:-

Mr. F. Garling, jun. proved the signatures of the letters to the defendant, and His Excellency the Governor to be in the handwriting of Captain Stirling.

F. A. Hely, Esq. - I examined three men who came here in the Comet from Swan River in October last; I examined a man calling himself Mackay; this is a list of runaways, dated in June 1828, published by authority at Van Diemen's Land, a copy of which is occasionally transmitted to me to enable me to identify persons who may escape from that colony; there is a man named Archibald Bensurilla advertised in it as a runaway; at the examination of Mackay, he was compared with the description of the man advertised in this paper, and found to correspond precisely; he afterwards admitted that he was the same man; he said his real name was Mackay, but that he was convicted under the name of Bensurilla; I heard no complaints made by the plaintiff or the other two men, of ill-treatment by the defendant on the passage from Swan River to this port.

Cross-examined by Mr. Rowe - I have now no doubt on my mind but that the plaintiff, at the time he left Hobart Town for Swan River, was a free man; this list of runaways, in which the name of Bensurilla appeared, was transmitted to me from Hobart Town; Captain Sandilands was present at the examination of the plaintiff at my office; I summoned him to attend, and took his evidence on oath; I do not recollect that he told me the plaintiff was for six days in irons on board the ship at Swan River; I do not recollect that he told me the plaintiff requested to see his wife, or to be allowed to communicate with friends on shore who could prove him to be a free man - particularly those who came out with him from Hobart Town; I think Captain Sandilands deposed before me that he had reason to suppose the plaintiff and the other two men to be runaway prisoners; I understood from the men that they had no ground of complaint of the treatment of Captain Sandilands, further than the act of taking them away from Swan River; I remember no complaint about short provisions; Mackay did not complain of being made to work and kept on short provisions; it is possible he might have made such a complaint, but I have no recollection of it.

David Beeble - I arrived at Swan River last year as a servant to the Captain of the Lapwing; I knew John Mackay there, he and I were in the service of Mr. Gellibrand for about a fortnight; after that I saw him at Freemantle, working as a shoemaker; I do not know what became of him after, as I went to Perth; I never saw him at Swan Port after; I saw him since in this Colony; he came on board the ship to me, and said he was free, and had an action against the sheriff, and told me not to say any thing about what happened at Swan River; I mean about what he was brought up here for; he offered to get me a passage to Van Diemen's Land, to look after horses, and took me to a tailor to be measured for a suit of clothes; this was just before I heard of the trial; I do not know what it was that he wished me to keep back.

Cross-examined - The Plaintiff was a shepherd to Mr Gellibrand; he left the service of Mr. Gellibrand and went to Freemantle, where he carried on the trade of a shoemaker; he was about seven months at Swan Port, to my knowledge; he came in charge of Mr. Gillibrand sheep; I do not know the ship he came in, but he arrived some time about the time of the arrival of the Prince Regent; there were other persons arrived from Hobart Town at the same time; he was always treated by them as a free man, and stated by them to be a free man; we missed the plaintiff all of a sudden from Swan River, and the general talk was that he was brought up here on a charge of housebreaking.

Re-examined by Mr. Therry - I was always accustomed to the sea; Mackey offered me £6 and my passage to Hobart Town to look after horses; he requested me not to tell what occurred at Swan River.

Joseph Irving examined by Mr. Therry - I am clerk on board the Phoenix hulk; I remember the plaintiff and two other men received on board from the ship Comet, in October last; I heard Mackay say that he and the other two men were on board the prison ship Marquis of Anglesea, at Swan River, on a charge of robbery, before he was sent on board the Comet.

Cross-examined  -  I know nothing about the robbery, except what Mackay and the others told me; a man may be in charge for a robbery which he never committed; Mackay told me that he had been six weeks in confiement [sic], that they had one examination, and were to have had another, but were sent up here before the second examination took place; he told me that he requested the defendant more than once, by letter, to suffer him to send for friends on shore, who could prove him to be free, and to procure a change of clothes.

Plaintiff's counsel here admitted that plaintiff had already recovered a verdict of £200 against the Sheriff, for the detention on board the hulk.

This was the defendant's case.

For the plaintiff, Mr. Rowe called

Mr. W. H. Moore  -  I was counsel for the defendants in the case of Mackay v. McQuoid and Murray, in which a verdict was recovered by the plaintiff for £200; I consider that verdict embraced all the causes of action subsequent to his arrival here; I objected to part of the evidence adduced by the plaintiff in that action - such as being in custody of armed marines, and in irons on board the Comet, which I considered ought not to have been referred to, and which induced me to argue and give in evidence that an action had been commenced against Captain Sandilands, for what took place previous to the plaintiff's arrival in this port.

Mrs. Ann Fardin, wife of John Fardin, said, I remained at Hobart Town after my husband left it, on account of ill health, from November, 1829, to May 1830; I knew Mr. Gellibrand; he advised me to take a passage with him to Swan River to meet my husband, who intended to proceed thither if he did not recover here; the ship freighted by Mr. Gellibrand, was the Prince Regent; I knew the plaintiff, Mackay, at Hobart Town, but I did not see him for some time before the Prince Regentsailed; I had known Mackay from the year 1825-6, up to the time he departed for Swan River, it was generally reported that he was gone to Swan River in the Prince Regent.

Cross-examined by Mr. Therry. -  The plaikntiff lived with Mr. Wintle in Hobart Town, and afterwards with Mr. Solomons; I never knew him by any other name by Mackay?

Re-examined.  -  He lived with Mr. Solomons about eighteen months after he left Mr. Wintle.

Mr. Therry.  -  Mr. Solomons?  -  That's a new name.  Pray, madam, did you happen to know a person named Ikey Solomons, at Hobart Town!

Witness - I believe, Sir, that's the person with whom Mackay lived.

Mr. Therry replied upon the last evidence.

Mr. Foster, in general reply addressed the jury at considerable length, contending that nothing whatever had been proved, by way of justification, on the part of the defendant, and that the plaintiff was clearly entitled to a verdict, and such amount of damages as would deter others from committing similar outrages on the personal liberty of individuals, without any reasonable cause.

The Chief Justice charged the jury at very considerable length.  His Honor held that the acts of the defendant were not legally justified, and that the plaintiff was entitled to a verdict; but that, in estimating the amount of damages, they would take all the circumstances of the case into consideration, and say whether the acts of the defendant originated in corrupt motives, or were the result of an honest though mistaken notion respecting the request conveyed to him by Captain Stirling.

The jury after consulting for a considerable time, intimated to the Court, through their Foreman, that that there was not the slightest probability of their agreeing.  They were then locked up, and on the following day, about noon, a sealed verdict was forwarded to the residence of the Chief Justice, and they were discharged.  On Monday, the jury again assembled in Court, and the verdict was read, to this effect; ``We find for the plaintiff, damages £35."

Counsel for the plaintiff, Mr. Foster and Mr. Rowe; for the defendant, Mr. Therry and the Messrs. Chambers.

 

Notes

[1 ] The Australian reported this on 8 April 1831.  See also Mackay v. McQuoid and Murray, 1831; England v. McQuoid and Murray, 1831 England 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.

In 1832, the New South Wales Legislative Council passed a new statute to regulate convict escapes and rewards: see Australian, 20 April 1832.

[2 ] Note in original: ``This evidence refers to Coombes and England as well as to the present plaintiff.  To save time Counsel on both sides consented that the same evidence should stand for the three cases."  See also Historical Records of Australia, Series 1, Vol. 16, 644-645 on the costs incurred to the government from this litigation.

Published by the Division of Law, Macquarie University