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

Lamb v Brenan and Holden, 1837

convict discipline, convict service, withdrawal of - Wollongong

Supreme Court of New South Wales

Kinchela J., 24 October 1837

Source: Sydney Gazette, 31 October 1837[ 1]

 

TUESDAY, OCTOBER 24, 1837.

(Before Mr. Justice Kinchela and a Special Jury.)

Lamb v. Brenan and Holden. - This was an action of trespass brought to recover compensation for the illegal taking away of the plaintiff's servant.  Damages laid at £200.

Mr. Lamb conducted his own case and addressed the Jury as follows:--

On this occasion I venture to address you, in the belief that a plain statement will be of more avail than either forsensic [sic] eloquence or legal ingenuity.  I may not be able to state my case with the perspicuity of a gentleman learned in the law, but will endeavour to avoid irregularities.  Should I from inexperience fall into any, I doubt not that his Honour who presides will set me right with that urbanity for which he is distinguished.  And it affords me no little satisfaction to perceive that my remarks will be addressed to as intelligent a Jury as ever sat in New South Wales.

On my arrival in this colony I receive a maximum grant of land 2560 acres, which I selected in the county of St. Vincent.  In consequence of the increase of my cattle, and of the purchase, in conjunction with another gentleman, of a large herd, I found it necessary to rent lands for pasturage and, I accordingly had put up to public auction in the usual way about 8000 acres.  A party who had a farm about 20 or 30 miles distant opposed me at the auction, and having before our eyes the fear of the Attorney-General and an indictment for conspiracy if we had entered into any arrangement, we bid against each other to the entire satisfaction of the Government Auctioneer, and ran the land up as high as £8 and £9 a section.  Well, gentlemen, by this means I obtained about 4000 acres, chiefly on the west side of my grant, 2000 of which were situated at a place called Medardyan, where there was a stock-yard and stock-keeper's erected.   This land was rented by me on the 16th September.  About the middle of the next month, a Mr. Buttler, came on the west range of mountains with 900 or 1000 sheep, drove them on to my rented lands, and actually put them into my stock-yard, and when remonstrated with by my people he declared that as I had no fences up to mark my limits he would drive his sheep where he pleased.  This Mr. Buttler had certainly strange ideas of the rights of property, which he had probably acquired in his public capacity at Swan River.  There, gentlemen, I understand he had practised at the Bar, -- but let me not be misunderstood he was a member of that Bar which received refreshers, but of that which distributes them in the guise of drams, heavy-wet, &c.,

At the time Mr. Buttler thus invaded my lands, a man named William Elliott was in charge of my cattle at Owdendyon; finding his stock-yard occupied one morning by sheep, he went into the farm and told the overseer.  The overseer and Elliott then returned to my cattle station and insisted upon the removal of the sheep.  High words ensued and I have no doubt that the lie was exchanged without regard to the form laid down in books - they passed over the preliminary steps and began with the counter-check quarrelsome.  When the rhetoric of the hulks and the logic of the tap-room, no doubt the collision produced the language of Billingsgate.

I have said that this dispute occurred about the middle of October, at the end of that month Elliott was subpoenaed to attend a trial in this Court.  His road to Sydney was through the lands of Mr. Berry, and unfortunately Mr. Holden, the Police Magistrate of Woollongong, was holding his Court at the time in Mr. Berry's house.  Buttler was attending the Court on other business, when his quick eye caught sight of Elliott; he immediately pounced upon him, gave him into the hands of a constable, the constable placed him before Mr. Holden, Mr. Buttler's complaint was heard, the man was sentenced to receive 25 lashes, they were inflicted, and the man was sent on his way with his subpoena and sore back - all this was the work of half an hour!  And considering what the learned Attorney-General has himself written in his celebrated work - ``The Australian Magistrate," page 88, as to the propriety of giving prisoners of the Crown notice of complaints against them, in sufficient time to enable them to prepare their defence, I do say that a more unseemly proceeding than this of Mr. Holden's could not well be imagined.  However, the man was punished, he came with his sore back to Sydney, gave his evidence in she Supreme Court, and returned to the farm in November.

On the 1st day of January I reached the farm, and learning from my overseer that the men were irritated at the overbearing conduct of Mr. Buttler towards them all, and the increased difficulty of keeping the cattle together which arose from his continuing to drive the sheep on my lands, I rode over to where he had erected a bark hut - to tell him that I had given strict orders that my people should not come near him, unless their business actually rendered it unavoidable.  Now, gentlemen, as I firmly believed, and still believe, that this hut was erected on a section of my own land, I think you will say that forbearance on my part could not be carried further.  Mr. Buttler was absent, and I made my errand known to Mrs. Buttler.  She in return told me of various grievances and annoyances they had experienced from my people - all of which appeared to me to have arisen from Mr. Buttler's litigious deposition, and unauthorised intrusion on my lands; and she afterwards launched into the feuds of Swan River, alledging [sic] that Mr. Buttler had not been properly treated by a Mr. Lamb, a relation of mine, who resides there.  I then for the first time learnt that I had claims hereditary as well as personal to the enmity of the Buttlers.

Very soon after the interview just mentioned, Mrs. Buttler charged Elliott with cutting a cow belonging to them.  The constable from Shoalhaven came over, and, having heard the complaint, refused to take the man into custody, but desired that he should attend the Court of Mr. Holden, which would be held at Mr. Berry's in the last week of January.  He attended accordingly, the matter was enquired into, and Elliott acquitted.

I returned to Sydney in the end of January, and in the early part of February my brother-in-law took charge of my farm.  From his testimony you will learn that no complaint was made against Elliott during the period he remained under his directions, that is until the 6th of April, when a constable came with a warrant to remove him to Hyde Park Barracks.

On the 13th of April I received a letter from Mr. Robinson, informing me that Elliott had been taken away from the farm on a warrant signed by Mr. John Ryan Brennan, the Principal Superintendent of Convicts.  I immediately called on that gentleman, at his office, to enquire the cause of the man's removal; Mr. Brennan declared that he issued no such warrant, and that there had been no correspondence with or from him respecting any man in my employ; and this statement was confirmed by Mr. Dennes, a clerk in his office, when he was instructed to search the office books, when he did, or pretended to do so, during ten minutes or a quarter of an hour that I remained in Mr. Brennan's room.  On the 17th of April I wrote to Mr. Holden, the Police Magistrate of Woollongong [sic], to enquire why my servant was taken away.  On the 20th his answer reached me, in which he declined giving me any reason for the act, but intimating that it was done by Mr. Brennan's orders.  I accordinly [sic] went to Hyde Park Barracks, and Mr. Brennan being absent Mr. Dennes showed me a letter from Mr. Holden to Mr. Brennan, dated in March, which Mr. Dennes said had led to the issue of the warrant, and the warrant I then saw - bearing the signature of John Ryan Brennan.  Day after day I called at Mr. Brennan's office, but owing to his multifarious duties could not find him within, until the 25th of April, I then obtained an interview, when he showed me Mr. Holden's letter, and the warrant on which the man had been brought up - adding that, he had forgotten all about it, and that the letter books had not been properly indexed, which caused him and Mr. Dennes to make the erroneous statement they did on a former occasion.

Having read Mr. Holden's letter, I related to Mr. Brennan all that occurred between Mr. Buttler and my servant - as already stated to you: upon which he requested me to make the statement in writing, and he had no doubt that the man would be immediately returned to me.  Judge then of my surprise at receiving, on the 3d of May, at [sic] letter from the Colonial Secretary informing me that, on consideration of the letter I had written to Mr. Brennan, together with a communication from the Police Magistrate of Woollongong [sic], the Governor had determined to withdraw Elliott from my service.

At the period my man was taken away, the learned Crown Solicitor had just returned from his mission to the north, which ended in the committal of Messrs. Bingle and Were for cattle stealing.  Now, gentlemen, after what had passed with regard to the parties just named, and to Messrs. Donnison, Bean, and Moore, you will not be surprised that my first impression was that Elliot had made some disclosures, respecting the cattle he had just driven to my farm, which affected my character, and that Mr. Holden had taken the man to Wollongong, to have the benefit of his testimony unfettered by my influence.  Or, I imagined, he might have complained of his treatment on the farm, and that the vigilant magistrate had recommended an enquiry.  I expected to see the Crown Solicitor start on his back, accompanied by a couple of lieutenants on their charges (or a couple of ensigns if lieutenants were scarce in barracks), dubbed magistrates for the occasion, and that I should be forthwith summoned to appear before a special commission, to answer the most serious charges, and I thought it not impossible that a cell in Wollongong watch-house might become my abode, with chains on my limbs, if the watch-house was not particularly strong.  Or, supposing my second conjecture correct, I pointed to myself the new made justices peeping into my meal-tub, -- examining my beef cask, -- trying the texture of the men's shirts, and faithfully recording all the ills that convict flesh is heir to under a hard-hearted master.  These, my first impressions, and earliest apprehensions, were dispelled by the receipt of a letter from Mr. Alfred Holden, wherein he tells me, in answer to my enquiry, that he will not give any explanation of the reason of Elliott's removal, but that he should recommend the assignment of a man in his room.  On receipt of this letter, and not till then, did I for a moment believe a report respecting the man's removal, which would seem incredible but for subsequent circumstances.   It was said that Elliott was to have indulgences bestowed upon him as a reward for certain discoveries he had made, -- not discoveries of delinquincies on my part; but discoveries useful to the Arts. - On his way to my farm he had stopped a night at Denham Court (as my people generally do), and there he had heard of a copper assigned to my late worthy friend, Richard Brooks, discovering a material fit to make casks, which he had named ``Bourke wood."  It was said that Elliott, who knew a little of coach-making, set to work to find something useful in that line, and was lucky enough to fall in with a wood well adapted for the pannels [sic] of carriages, and a gum which makes an excellent varnish, -- and, being a shrewd fellow, he named the former ``Holden wood," and the latter ``Brennan varnish."  Gentlemen, as I said before, the story appeared at first incredible, but as this dangerous character, this designing villian, who would have set all St. Vincent in a blaze, is assigned to a coachmaker in Sydney I should not be surprised in a short time to see him driving a curricle of his own manufacture, made from the Holden wood, and finished with the Brennan varnish.

But after all the reasons for depriving me of my servant are mere conjecture.  His Excellency the Governor would assign none, Mr. Holden would assign none, and the ``sic volo sic jubeo" of despotics power was the only answer I could obtain to my repeated applications for information on the subject.  It is true that I saw in the hands of Mr. Brennan a letter from Mr. Holden, recommending that the man should be taken away from me, but the recommendation was based on such absurdities that I must suppose some other communication was made by Mr. Holden.  I asked for a copy of that letter, but could not obtain it; however, having, soon after my interview with Mr. Brenan, written down so much as I could recollect I will read it to you, and perhaps the opposite side will favor us with a sight of the original letter to correct any inaccuracy into which I may have fallen.

Date, some day in March, 1837.

Sir,

A Mr. Butler, residing with his wife and daughter, about 30 miles to the south of the Shoalhaven River, having been greatly annoyed by the conduct of his assigned and hired servants, which conduct he attributes to the instigation of the prisoner, William Elliott, I assigned to Mr. Lamb.  I recommend that the said prisoner should be withdrawn from Mr. Lamb's service, and re-assigned in a district remote from Illawarra.

I have the honor to be, Sir,

Your obedient servant,

(Signed)ALRED HOLDEN.

Ryan Brennan, Esq.,

   &c., &c., &c.

By this gentleman it would appear that the assigned and hired servants of Mr. Buttler have been troublesome to him - mind not Elliott himself - but as Mr. Buttler attributes his troubles to the instigation of my servant, that servant is to be taken away from me without explanation or hearing - admirable certainly! - so that if the servants of Mr. Samuel Lyons, his honor's neighbour, are troublesome, and his honor's cook is supposed to be the instigator of these troubles, pop comes a constable with Mr. Ryan Brennan's Warrant into his honor's kitchen, carries off his cook, and leaves him and his family to get dinner as they can.

Gentleman, it has been industriously circulated that this action was wholly unnecessary, that I have sustained no damage, and that I was offered a choice of men in lieu of the one taken from me.  In such reports there is a shade of truth and no more.  Mr. Alfred Holden, one of the defendants, did condescendingly inform me that he would recommend that a man should be assigned to me in lieu of Elliott; and Mr. Ryan Brennan, the other defendant, acquainted me that the Commissioner of Assignments, would be ordered to supply me with a man in lieu of Elliott, but it was not said I was to have a man immediately, and as to the selection of one fit for my purpose, it was never hinted at - they might have given me a tailor who had never crossed a horse (they have given me a lawyer who had pleaded his own cause at the bar of the Old Bailey); but had they given me the best horseman in the Colony, of what use would he have been to hunt up cattle over a hundred miles of rugged country which he had never seen.  Besides, I had in remembrance the case of a friend of mine which bore strongly of my own.  He had an excellent groom, who had been in this service in Sydney some years, but having fallen into habits of drunkenness, he sent him to his farm, to wean him from those habits, and to break off certain associations.  Unfortunately for my friend the overseer had occasion to take the groom before the nearest Police Magistrate, who, in the course of the investigation, learnt how it was that this new hand was placed under the overseer's control.  Oh, says the worshipful J. P., I see how it is, this is an idle disorderly fellow, who will be constantly giving trouble on the farm, I shall take him away, and send you another man.  The overseer was astounded, but durst offer no opposition to the will of the Police Magistrate of the district.  The groom was removed, and a man was sent in his stead from a stockade where he had served out his time in an ironed gang.  This man was a tinker - not the most useful sort of a person on a farm - and moreover he had been a travelling tinker; and his habits had been so long indulged that they had become second nature; he could never rest quiet on my friend's farm, and consequently half his time was spent in jeopardy as an absentee, and the other half in ironed gangs, so that the tinker never has been of any use to my friend, whilst the groom has ever since currycombed the horse of the worthy Police Magistrate to his entire satisfaction.

It will probably be stated on the other side that the man taken away from me was a turbulent and bad character, -- if so, was there no means of punishing him without punishing me?  Why the admirers and defenders of the present system have stoutly maintained that the existing laws are quite sufficient to repress crime and keep the prisoners in due subjection; and if the Summary Punishment Bill had been always acted upon as it was in the case of William Elliott, there could be no question of the effect it would produce.

But, Gentlemen, I again say there is every reason to believe that the real motive of Elliott's removal was kept in the back ground, otherwise why would it have been concealed from my brother-in-law who was in charge of my farm? - twice subsequent to Elliott's last appearance before Mr. Holden was this gentleman in communication with the dignified Police Magistrate of Woolongong [sic], once in the month of February and once in the month of March he spent an entire day in his company, and actually slept in the same room at night; for be it known that notwithstanding the severe censure passed in 1832 upon Mr. Pike for partaking of refreshments in the house of a gentleman whose assigned servants were brought before him in his capacity of a Magistrate; yet a Police Magistrate of Sir Richard Bourke's selection and appointment may eat, drink, and sleep in a gentleman's house, and punish a dozen of his servants without ``bringing contempt upon the administration of justice."  For my own part I think Mr. Holden perfectly right to hold his Court in Mr. Berry's parlour rather than under a gum tree, and in preferring a comfortable chamber in Mr. Berry's house to a night's lodging amidst musquitos [sic] in the bush; but, gentlemen, I will maintain that Mr. Holden could not have been two days in constant intercourse with the gentlemen I have named without being aware that he was in charge of my establishment; indeed, he had heard and decided complaints made by Mr. Robinson, then why did he not tell him that he had recommended the removal of Elliott?  Why, because the announcement would have given opportunity for explanation, and have saved me from some of the vexations and losses I have sustained.

I do not for a moment suppose that Mr. Holden would be influenced by the breakfasts, dinners, and suppers he eat in Mr. Berry's house; yet I would ask whether he would have recommended the withdrawal of one of Mr. Berry's assigned servants without giving him some notice of the course his duty had required of him to adopt.  And in what did I differ from my friend Berry?  Why, I was more obnoxious at head quarters, and an opportunity offered for gratifying the spleen of some one.  The extraordinary conduct of Mr. Alfred Holden admits of no other solution.

As to Mr. Brennan's part of the affair it cannot be easily comprehended; and certainly if he was in the habit of issuing many such warrants as that under which Elliott was taken away, they must have occasioned no little confusion in the country. 

I should be sorry to lightly mention one of the noblest names, and noblest purposes recorded in English history, but I venture to assert that the question tried by Hambden as to the right of the King to levy ship money, was not of greater importance to the people of England, than the question now at issue is to the Colonists of New South Wales.  Should the decision of this Court establish the power of Magistrates and Superintendents of Convicts to remove your assigned servants upon any and every frivolous offence, I should deem the decision fatal to the present and future interests of the country.  Not only the Agriculturalists, and the owners of flocks and herds, but the master-men in every line of business would be exposed to ruin at the caprice of any Police Magistrate in the Territory.  And that security of property, deemed by every writer on political economy so essential to prosperity, would be completely destroyed.  Furthermore the independence and spirit of the rising generation would be effectually crushed; they would learn to dread an Autocrat of their fortunes in Hyde Park Barracks, and a Satrap in every Police Office in the Territory.  For my own part instead of sending my sons to England to learn those Arts and Sciences - which even more than her arms have raised her to a height of unparalled [sic] grandeur - I would send them to Canton, to study under a Professor of Chinese Ceremonies, that they may learn how to kotan to a Governor, and the proper degrees of prostration to a Police Magistrate, a Constable, Lock-house Keeper, and all other persons dignified by office.

I trust that your verdict this day will convince the minions of power that they cannot with impunity oppress a respectable man, although he may be frowned upon by the patron to whom they are indebted for their offices.  That the Emigrant Colonists havo [sic] some rights which must not be wantonly invaded.  In support of one of those rights I this day stand before you; and even if my hopes of your decision are disappointed, I shall retire with a consciousness of having done my duty as a citizen, and as the father of sons who have yet their parts to play on this world's stage.

It has happened on more occasions than one, within the walls of this Court, that when parties defending their reputations, their liberties, properties, and lives, have expressed their belief that the prosecutions to which they were exposed would not have been instituted, had they not become obnoxious to men in power: on such occasions I have heard the idea indignantly scouted, -- I have heard the utterers of such a supposition, and the believers in it, called miserable insects, who attempt in vain to injure men of high honour and acknowledged worth.  Gentlemen, to me such a declamation has ever appeared most idle, -- as if hostile feelings, as the most violent enmity, may not exist between the most exalted and the most abject men of a nation; -- when the inspired writer declared the hearts of man doubtful above all things, and desperately wicked, did he except the hearts of the rich and principal from the denunciation?  Gentlemen, do we not read that the most deadly hatred was felt by the second man in an empire which stretched from India unto Ethiopia, against a citizen of Sushan, and that he sought his life by every means within his power; and for what, gentlemen? - Because he would not bow unto him, and do him reverence.  Why, gentlemen, even in my passage through life, I have seen men ``high in titles, proud in name, with power as great as wish could claim," wanting in many of the characteristics of true greatness, suffering their talent to be obscured and their dignity to be sullied by displays of passion and prejudice, which would have disgraced the humblest individual.

If such persons should say they hold me in scorn and contempt, because my station is more humble, my sphere of action more limited, I would tell them I return scorn for scorn, and contempt with contempt yet more profound. - I would remind them, in the language of the great moralist, that no station in life is contemptible whilst he who fills it acts with propriety, and I would add, in the words of a genius who walked in the humblest paths from his cradle to his grave, ``The rank is but the guniea's stamp, the man's the gold for a' that."

From the other side you will probably hear much of faction and factious men.  By the gentlemen now seated on the Police Bench of Yass (formerly Editor of The Australian) I believe the term was first applied to the Magistrates and ex-Magistrates of The Territory.  The learned Attorney-General is perfectly welcome to apply it to me.  I care not for a name.  ``A rose by any other name would smell as sweet: a fox by any other name would smell as rank."  Resistance to oppression has in every age and nation been designated faction by the admirers and defenders of arbitrary power.  The bold Barons who stood on Runnymede, and forced from the reluctant hand of John, our boasted Magna Charter were factions, Pym Hambden, Russell and Sydney were all factious.  The Revolution of 1688 was effected by the union of factious and discontented men who were sick of the rule (or rather mis-rule) of the Stuarts; and to these factious men are we indebted for the Bill of Rights.  I am prepared to hear my appearance this day before a Jury of the country termed a factious proceeding.  But, gentlemen, if any of you should suppose me to be the tool of a faction, you are in error - my habits and pursuits unfit me for such an office.  None of you shall see me roasting beeves or broaching barrels to regale a rabble and excite them them [sic] to insult a Governor of the Colony.  I may dislike and oppose his policy, but I will respect his office.  By circumstances I have been forced into a prominent position - by injuries and insults I have been roused to resistance, and having adopted a course which I believe to be right I am not a man to be easily turned from it.  When the minions of power no longer assail my character with libels, or injure my property by illegal warrants, by voice will not be heard in this Court, but I never subscribed to the doctrines of passive obedience and non-resistance.  Whenever wrong is done me I will seek redress, altho I may not find it.  I will expose the unworthy practices and ignorant conduct of Police or any other Magistrates, altho' they may be defended by the impassioned language and legal ingenuity of a learned Attorney-General, the florid eloquence of the great unpaid, or the sharp practice of the zealous Crown Solicitor.  And I will ask them, and higher men, where is the difference throws me back so far I may not speak in right, though proud oppress on will not deign to hear me?

I now come to the law of the case, upon which my observations will not long rest.  From the learned gentlemen on both sides you will most likely hear much; and if their opinions are conflicting, (as I conclude they will be) his Honor will decide the difference, and in fact direct your judgment on that particular point.

Sir Francis Forbes, no mean authority, declared from that Bench on a celebrated trial, that the Governor of this Colony had no legal right to remove a prisoner lent to a free person, much less could he withdraw a convict regularly assigned,  Gentlemen, if the judgment of Sir Francis Forbes was erroneous, the other side must prove it to have been so, must show them upon what law this assumed right is based.  It cannot be said to rest the subject.  Coke and Blackstone, and other known authorities make no mention of it, and I am sure that neither in the reports of Starkie, Espinasse, Dowling and Hyland, Selwyn, nor in those of Neville and Manning will any case in point be found.  Therefore I conclude that if there be such a power vested in the Governor of this Territory, it is based on some statute, which the other side are bound to produce and prove in the clearest manner.

If for the sake of argument (or in legal phraseology without prejudice) we were to admit that the Governor for the time being can legally take away an assigned servant, does it follow that he can delegate so great so awful a power to others?  Is not the contrary to be supposed.  For if he could delegate it to Mr. Ryan Brennan, could he not also delegate it to every Magistrate and every Constable in the Colony? and who could carry on any pursuit requiring labour, if his labourers could be taken away at any moment that Mr. Brennan, Mr. Holden, and hoc genus omne should see fit.  Why, Gentlemen, they might literally have starved me out of every man on my farm off to Wollongong on the like flimsy pretence; and what could I have done? my bullocks are not quiet enough to come day after day and have a steak cut out of their rumps, as Bruce tells us the cattle do in Abyssinia; and I am convinced that I could not have hunted in and slaughtered a beast, were I dependent for my dinner on the success of the undertaking; therefore I say, Gentlemen, persons in the country might be starved into signing the mendicant petitions, or doing any other act the worthy Police Magistrates; or constables of their districts, might desire.  Now, gentlemen, I argue that such a state of things could never by possibility be intended.  Then, if the act of agression [sic] complained of was not committed under authority derived from the Governor, where is their power or authority to be discovered? - not in the Bushranging Act - not in the Summary Punishment Act - not in the Assignment Regulations, as proclaimed by the Governor - in short, no where can the defendants show an authority for their unwarrantable, unnecessary, and oppressive conduct.  I have heard that the defendants assert that the confirmation or adoption of their act by Sir Richard Bourke renders it legal; but I can hardly think that the professional adviser and determined defender of Paid Masistrates [sic] will advance an argument so easily refuted.  Does he suppose that he Court would admit, or you, gentlemen, would listen to a proposition so absurd.  Why, gentlemen, if the act was illegal on the 4th of April, when the defendants deprived me of my servant, it could not be legalised on the 3d of May by any proceeding of the Governor's, and I will show to you, gentlemen, that these zealous and intelligent Justices could not have had the Governor's authority for the outrage - because he was at Port Phillip.

Now, gentlemen, this is a most material feature in the case, and I crave your serious attention to it.  The Governor sailed for Port  on the 21st of February, and did not return to Sydney until the 8th of April, so that the trespass complained of was planned and perfected during his absence; and consequently the defendants could not be acting under the sanction of the Governor.  And, gentlemen, if a wrong was done to me on the 4th of April, I would ask any man of common understanding whether the perpetration of that wrong after the 3d of May could render it less a wrong.  And here, gentlemen, I might be content to rest my case.  I might say this is the strong hold from which I cannot be driven by force or art.

I would therefore enquire firstly - where is the Governor's right or authority to deprive me of my servant?

Secondly - If the right does exist, has he power to delegate it? - and

Thirdly - If he has the power of delegation, was it properly exercised, and were either or both of the defendants armed with so tremendous a power?  Now, gentlemen, if any one of these questions is answered in the negative - and answered in the negative I am sure that some of them must be - then will your verdict be given in my favour, and I then arrive at the question of damages:-- They are laid at the moderate sum of two hundred pounds, and I do not hesitate in asserting this is far short - very far short - of the injury I have sustained - forty-nine head of cattle were left in the country between the Maroya River and my grant, and about fifty more have broken away from the farm, and are now in the rocky gullies of the neighbourhood, for want of sufficient stock-keepers; and I would willingly sell any man these missing animals at half price rather than attempt their collection with the means now left me.

I believe, gentlemen, it is not necessary to prove specific damage, and therefore I have abstained from summoning as witnesses my remaining stock-keeper and my present overseer, as their absence from their duties would certainly occasion further losses.  The other side talk of these cattle being so wild that no person could collect them.  I grant that the task would be difficult, and to a man unacquainted with the country impossible, it therefore became of still greater consquence [sic] for me to retain a good horseman who knew my cattle and was thoroughly acquainted with the country over which the beasts were scattered.  To the illegal conduct of Messrs. Brennan and Holden I may therefore fairly attribute the loss of property which has accrued: and your verdict this day will, I trust, compensate me for that loss.  But who can compensate me for the mischief done to my establishment?  The assigned servants on it have imbibed the idea that the neglect of their work will not be severely punished, and that the zealous discharge of their duties to me is sure to draw down on their heads the anger of Mr. Alfred Holden.   And to expect that any of them would guard my lands from intrusion, or my property on it from injury, would be unreasonable, for who would dare to protect a servant of Mr. Lamb's, if a complaint were urged against him in Mr. Holden's presence.  Then again, gentlemen, is nothing to be said of the wanton unprovoked insult offered to me.  Injuries may be forgiven - insults may be patiently borne, and the infliction of them be despised - but insults added to injuries are grievous to the most patient spirit, and often irritate beyond endurance.

Gentlemen, it now only remains for me to thank you, which I most sincerely do, for your patient attention; and to call my witnesses, who fortunately for you are not many.

When Mr. Lamb had concluded his address, Mr. Parbury was called to prove that Mr. James Alexander Robinson, whose evidence had been taken di bene esse, was out of the Colony.

Mr. Robinson's evidence was then read.  It stated that the man Elliott was removed from the plaintiff's farm at Shoalhaven, under a warrant signed John Ryan Brennan.

Mr. Cruikshank and Mr. Macintosh, clerks to Mr. Norton, were examined and cross-examined at great length, as to the notices served on the defendant, according to the Act of Parliament, by which magistrates, who, under colour of their office, commit any trespass, are entitled to receive one month's notice before an action is commenced, in order that they may, if they think fit, tender amends.

Wm. Elliott stated that he was assigned to Mr. Lamb for two years and ten months, and that in April last he was taken away by Constable Fawkes; after he was taken away he was accused of no offence, but was brought to Sydney and assigned to a coachmaker; that before he was taken he had been one hundred and twenty miles to the north-ward, after a draft of cattle, in company with another of Mr. Lamb's servants, named McGrath, and a Mr. Colquhoun and two of his servants, and that on the road they left about fifty head of cattle behind, which he did not think any body could find as well as himself; that he knew Butler, and was in company with Mr. Blair, Mr. Lamb's overseer, when they fell in with Mr. Butler, who wished them good morning; that Blair told Mr. Butler he had no business to bring his sheep among Mr. Lamb's cattle, when Butler said that he would bring his sheep where he liked, that there were no cattle near the spot, and that no white man had ever been there before; to this the witness replied that he had been there before, when Mr. Butler called him a liar, but he positively denied that he called Mr. Butler a liar, and said that when Mr. B. subsequently swore, before Mr. Holden that he did do so, he swore that which was false; that when Mr. Lamb came to Illawarra he desired witness not to go near Butler's station, and that he never went afterwards, but that he was obliged to go within about fifty yards of the hut in passing from one of Mr. Lamb's stations to another, in consequence of a swamp through which they ordinarily passed being overflown; that he was coming to Sydney to attend the Supreme Court on a subpoena, when he was stopped on his road through Wollongong, and sentenced to receive 25 lashes for insolence to Mr. Butler.

This witness underwent a lengthy cross-examination, but nothing material was elicited.

William Fawkes, constable at Shoalhaven, stated that he went to Mr. Lamb's farm for William Elliott, with a warrant; the warrant was before Mr. Robinson, the superintendent, for thirty-six hours, and then he gave the man up, otherwise the witness had not authority to take him; he acted under the authority of the signature.

An objection was here taken to parole evidence being admitted of the contents of this warrant, when one of Mr. Martin's clerks proved serving a notice on the defendant, to produce a warrant for the apprehension of William Elliott directed to Constable Fawkes, and also all other papers or warrants connected with the case; the defendants stated that they had no such warrant in their possession when the plaintiff called.

Mr. Dumas, Clerk in the Office of the Superintendent of Convicts - This witness said that he had shewed Mr. Lamb two letters from Mr. Holden to Mr. Brenan on the subject of the withdrawal of Elliott.  (These letters being official communications from one Government officer to another, His Honor held that they were given in evidence.)  He positively denied having shewn Mr. Lamb any warrant or other paper authorising the withdrawal of Elliott.  The Court was detained here for nearly two hours by objections taken by the defendant's counsel to secondary evidence of the contents of the warrant being admitted, as it had been proved to be in existence, and was not in Court.  The notice served on the defendants to produce it describing it as a warrant directed to Constable Fawkes, whereas there was no such warrant in existence.  The warrant under which Fawkes acted not being directed to any one.  This being the case, the defendant's counsel objected to admit parole evidence of that which they had not received notice to produce, while the plaintiff and his counsel contended that under the notice to produce all warrants and papers they were bound to produce the warrant let it be directed to whom it might.  This point His Honor decided against the plaintiff, being of opinion that a notice to produce all papers was not sufficient, the particular paper required must be specified.  The witness positively declaring that he never saw or heard of a warrant addressed to William Fawkes.

Constable Fawkes was recalled - I gave this receipt to Mr. Robinson - ``Received from Captain Lamb's farm, William Elliott, per Surry, agreeable to a warrant from the Principal Superintendent of Convicts;" the warrant came under cover to me; I called it a warrant because it was a receiving warrant; I always considered the warrant came from Hyde Park Barracks; I have seen such warrants before; I did not demand Elliott, he was given to me; if Mr. Robinson had not given me the man I should have gone away without him; I told Mr. Robinson it was optional whether he gave me the man or not, but if he gave him to me I would give him a receipt for him.

Mr. G. R. Holden - My brother is Police Magistrate at Wollongong; this letter is his handwriting; I accompanied the Governor to Port Phillip, but have no recollection of the particular date; we returned in April, and had been absent for a month to six weeks.

By the Attorney General - We had a pleasant passage except the sea sickness.

John Nicholson, Esq., Master Attendant - The Governor sailed for Port Phillip in H. M. S. Rattlesnake on February 21st, and returned April 8th.

E. D. Thomson, Esq. - I am Colonial Secretary; this letter to the plaintiff is my handwriting.  It was submitted by Mr. Windeyer that this could not be admitted as evidence, as it was quite clear that the defendants could be in no way bound by any communication from the Colonial Secretary to the plaintiff.  His Honor held the objection to be good, and the letter was withdrawn.

Mr. Holden's letter having been read, the plaintiff closed his case.

The Attorney-General rose to move for a nonsuit: he said it was quite clear that there was not a word of evidence to affect Mr. Brennan.  The only evidence that affected MR. Holden was his own letter, and that certainly did not contain anything that could connect him with the issuing of a warrant by the other defendant, if he did issue a warrant.  By Fawkes's evidence it was quite clear that the warrant did not come to Mr. Holden, as he received it under cover, addressed to himself.  Mr. Windeyer followed the Attorney-General.

The Judge said that there did not appear to be any case to go to a Jury, and therefore the plaintiff must be nonsuited, but before he decided he would hear counsel on the other side.

Mr. a'Beckett contended, that even if the letter had not been produced there was sufficient evidence to go to the Jury.  Fawkes distinctly stated that he acted on authority which came direct from the defendant Brenan, at Hyde Park Barracks, while Mr. Holden's letter, in which he stated that Mr. Brenan must have forgotten that he issued the warrant, as would appear by his letter of a certain date, clearly showed that there must have been some communication between the parties; besides this there was the de bene esse evidence of Robinson, who distinctly stated that the warrant was signed by Brenan.  These facts, he with great deference submitted, formed a sufficient body of evidence to go to the Jury.

Mr. Foster said, that notwithstanding what had fallen from His Honor, he was sincere in saying that, from his little experience in courts of justice, he felt it was a case that ought to go to the Jury.  The point for the consideration of the Court was not whether the evidence was conclusive, but whether there was any evidence to go the Jury.  The letter of Holden, he submitted, was ample evidence to connect the defendants with the taking away the man by Fawkes; indeed, why should the plaintiff have written to Mr. Holden, or how could he have answered the letter if he had not been aware of the circumstance of the case.

The Attorney-General, in reply, said that the declaration charged the defendant's with having taken away his servant without his leave or license, while the evidence of Fawkes, showed that he took away the man by permission of Mr. Robinson, the superintendent.

Mr. Justice Kinchela said, that being anxious to give the plaintiff every advantage, he though the kindest thing he could do would be to nonsuit him.  There did not appear to him to be any evidence against Mr. Brenan, so that if the case went to the Jury he should direct them to find for him, so that the most guilty party would be sure to escape, for, if either of them were guilty, it certainly was Brenan.  He would therefore nonsuit the plaintiff, as he could then bring the case before the Court again.

Mr. a'Beckett said that the plaintiff would rather the case should go to the Jury.

His Honor said that the plaintiff knew what his charge would be, and if he pressed the case to the Jury of course it must be left to them.

The Attorney-General said that, in that case, he would address a few words to the Jury, and that he should strictly confine himself to the evidence adduced by the plaintiff, and not open the case he should have done had the plaintiff made out anything like a case.  Weak as the case was against Mr. Brenan, he considered the case against Mr. Holden was weaker, and he could not but regret that a gentleman like Mr. Lamb should bring an action of this kind, where it was evident that he had not sustained any injury, and had neither been treated irregularly or harshly.  It was particularly unlucky for the plaintiff that the Governor was proved to be at Port Phillip, at the time the act of which he now complains was committed, for Mr. Lamb wished to make out the defendants acted under the authority of the Governor, and the verdict of the Jury was to astonish the minions of Government.  He would not insinuate that Mr. Lamb brought his action for the sake of making a speech, but when he saw a man with the feelings of Mr. Lamb towards the Government, and to the Government minions, come into Court with such an action as this, it showed that none of the acts of the Government minions were of a very oppressive nature.  Many insinuations in Mr. Lamb's speech he considered quite unworthy of him, and showed how much even the most sensible and respectable men can be blinded by political feeling and prejudice; but the great gun of the whole speech was a failure: expecting that the ``great unpaid" would be in the case, Mr. Lamb had come down charged with a joke at his expense, but the ``great unpaid" was not even in Court at the time, so that the joke fell stale and flat to the ground, a failure.  The evidence of Elliott, and the figure he cut in the box, for he certainly was not a young man of ``prepossessing appearance," would shew the Jury what kind of man he was.  Mr. Lamb went at great length into an account of a quarrel with Butler, but with that the defendants had nothing to do; if Mr. Butler trespassed upon Mr. Lamb's land, he could remove him by due course of law, but from his own statement it appeared that the plaintiff gave him a kind of permissive occupancy to remove to the other side of the creek.  This fellow Elliott, according to Mr. Lamb's speech, went over to Butler's land and some shocking language passed between them; the lie passed and much obscene language; and he must say that he felt surprised that a gentleman like Mr. Lamb should state, that such a dialogue took place between a respectable free man like Butler, and a fellow like Elliott.  Butler afterwards got Elliott flogged for his insolence, and afterwards charged him with striking a cow for revenge; but the case could not be proved, as the native black who saw Elliott strike the cow could not give legal evidence.  Mr. Butler was obliged to be from home a good deal, and under these circumstances, with this fellow thirsting for revenge, was it not probable that Mrs. Butler should wish to have him removed, and should feel uncomfortable while he remained in the distrirt [sic], and would it not have been a disgrace to the authorities in the district if they had allowed him to remain.  The Judges had no more authority in this matter than magistrates; and yet it is a common practise when a prisoner of the crown is acquitted of an offence, to order him to be sent to the Barracks, and a letter directed to be written to the Governor, stating that in the Judge's opinion, it was necessary that the person should be removed from the district in which he had been residing.  With respect to the loss sustained by Mr. Lamb, the Jury must have gathered from Elliott evidence that there were many persons in the district who knew where the cattle were left as well as he did, and therefore he had no claim on that account.  The learned gentleman concluded, by observing, that he had only replied to a portion of Mr. Lamb's address, for the Judge would tell them from a deficiency in the evidence they were bound to return a verdict for the defendants.

His Honor said that no plaintiff could be nonsuited without his consent, and as he had elected to let the case go to a Jury, he would now charge them on it.  This was an action of trespass brought to recover damages from the defendants for taking away the plaintiff's servant without his license or consent.  To justify the Jury in finding a verdict for the plaintiff they must be satisfied either that the act was done by the defendants or by their order.  In point of law he considered there was no evidence to affect Mr. Brenan, for although he might have issued the warrant under which the trespass was committed, still it was not before the Jury, they could not find a verdict on it.  The only evidence against Mr. Holden was his own letter, which did not appear to him to connect him sufficiently with the taking away of Elliott to authorise the Jury to find a verdict against him; besides, there was the evidence of Fawkes, which clearly shewed that he did not receive the warrant from Holden but from Sutherland.  He was clearly of opinion that there was not evidence to connect Holden with the taking away of Elliott; if, however, the Jury could stretch their consciences to say that it did connect him with it, they must say what damages had accrued to the plaintiff, but they must bear in mind that Mr. Brenan could not be rendered liable for any expression used in Holden's letter.  The Jury consulted for a few minutes, and returned a verdict for the defendants.

Counsel for the plaintiff, Messrs. a'Becket and Foster; for the defendant, the Attorney General and Mr. Windeyer.

Notes

[1 ] For commentary, see Sydney Gazette, 31 October 1837.

On the assignment of convict servants and the rights of masters, see also Hall v. Hely, 1830; Hall v. Rossi, 1830; Hayes v. Hely, 1830; R. v. Mansfield (No. 2), 1830; McNamarra v. Wilson, 1834.

Published by the Division of Law, Macquarie University