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

R v Parke [1836] NSWSupC 8

duelling

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 16 February 1836

Source: Australian, 19 February 1836[ 1]

- The Solicitor General moved for a criminal information against Messrs. Maughan and Parke, of Sydney, for having endeavoured to provoke Mr. John Sylvester Brown, commander of the ship Proteus, to fight a duel with Mr. John Brown, commander of the Nimrod.  It would appear that the Messrs. Brown had some misunderstanding whilst engaged at the whaling ground; in consequence, Mr. Brown, of the Proteus, repaired on board the Nimrod; a signal being made from that vessel to that effect; that while on board the Nimrod the commanders quarreled and a challenge was the result; but they came to no conclusion as to time, the Captain of the Proteus saying, ``now or never" whilst he of the Nimrod said he would ``take his own time."  On arriving at Sydney, however, Captain Brown, of the Nimrod, renewed hostilities, and sent Messrs. Maughan and Parke to the residence of Captain Brown, of the Proteus, with an invitation to the field; this the latter gentleman declined to accept, being then surrounded by his family, and having no desire to mar their happiness; he was however subjected to great annoyance by Messrs. Maughan and Parke in consequence of not accepting the message, they not only annoyed him in the public streets but they went the length of posting him in the reading room of the public library as a coward and a blackguard; this notice was signed ``John Maughan."  The Solicitor General thought it very hard that Mr. Brown, the father of a family, should be called on by Mr. Maughan to risk his life without any quarrel, to obtain for the latter gentleman a fighting character.  Rule nisi granted, returnable on Saturday.

 

In banco, 20 February 1836

Source: Australian, 23 February 1836[ 2]

 

Ex-parte Sylvester John Browne - Mr. S. Stephen appeared to shew cause on the part of his clients, Messrs, Maughan and Parke, the facts stated on this, were the same used by the learned counsel on a former occasion, and which appeared in a recent publication of this journal.  He contended, that if the plaintiff in this action was the original aggressor, he had no right to come into that court to seek redress, in proof of which he cited Burrows, vol. 1, page 316, and Hawkins, vol. 2, page 26, section 9.  Mr. Stephen then proceeded to state the origin of the misunderstanding between the plaintiff and Captain Brown of the Nimrod - their vessels meeting at sea, and Captain Browne of the Proteus repairing on board the Nimrod with a brace of pistols, and making it a boast that he was a Calway man, and taunting the Captain to fight in his own cabin, or to go on shore, (there being land in sight) to the evident danger of the lives of the crew, and of the property of the owners - that Captain Browne of the Nimrod declined to accept the hostile invitation of this mad Irishman, under such circumstances, but that when they arrived at Sydney, in consequences of rumours circulated by the plaintiff, highly injurious to Captain Browne's character, he sent Mr. Maughan to him for an explanation, and it was on that visit of Mr. Maughan's, conducted with the greatest courtesy, that the plaintiff had the audacity to come into that court, to endeavour to obtain a criminal information against his client for provoking him to fight a duel, but which application he trusted their honors would treat according to its merits - on the conclusion of Mr. Stephens's animated address, he was about to read affidavits, but was stopped by the Chief Justice, observing that the court had come to a decision - the application was one that would not be entertained in His Majesty's Court of Kings Bench in England - and was therefore dismissed, and the parties ordered to attend that honorable court, on Monday next, to enter into sureties to keep the peace, themselves in in five hundred pounds, and two sureties of £250 each.

The Solicitor General - ``Sure your honors won't bind a party who comes into court for protection."

Mr. Justice Forbes - ``We intend it, however."

 

Notes

[ 1] See also Sydney Gazette, 20 February 1836.

[ 2] See also Sydney Gazette, 25 February 1836.

Published by the Division of Law, Macquarie University