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

Carrick v. Russel [1841] NSWSupC 54

seduction - Maitland - barristers, criticism of conduct in court

Supreme Court of New South Wales

Stephen J., 1-2 June 1841

Source: Sydney Herald, 3 June 1841[1]

SUPREME COURT, -- Tuesday, 1st June.

Before Mr. Justice Stephen and a Common Jury.

Frederick Brook Carrick v. Robert Russel

            Mr. Windeyer opened the pleadings.

            The Solicitor-General stated the case, and said that he was happy to say that within the four years of his practice at this bar, he had never known a case like the present coming before the Court for trial: this was a case of seduction, which, according to the forms of law, was brought by the father of the party injured, instead of by the party herself, and the jury, if they believed the evidence should give damages, not only for the loss of the services of the plaintiff's daughter, but also for the injury to his feelings: the plaintiff is a licensed victualler living in Bridge-street, and the defendant is an ironmonger or a gas-fitter residing with his brothers in the same street; but though the plaintiff was thus comparatively in humble life, yet the mere fact of his being a licensed publican was in itself a guarantee for his character, and though he did live in humble life, perhaps his feelings were not on that account less sensitive or less acute for his daughter's ruin. The plaintiff's daughter and the defendant lived next door to each other in the year 1839, when they became acquainted, and after a short time the defendant proposed marriage to the plaintiff's daughter; but after having paid her great attention, he at length prevailed upon her to give up her character, and fully accomplished her seduction: after this unfortunate event had occurred, the plaintiff's daughter removed to Maitland, to which place he addressed the following letter to her, and from which the jury could judge, what was the defendant's own opinion of his own conduct at the time.

Dearest Selina,

            I received yours of the 14th instant, on Tuesday, it certainly struck my inmost soul and roused feelings I cannot express. You have brought me to my sense of duty and honor, and never will I let the world brand you with infamy, of which I alone have been the cause. I have not time to say much just now, but in the course of three weeks you will be mine and I yours - but remember, your former acquaintances, such as Mrs. Jones and the like, drops when you become my wife, I intend you will stop at Maitland until I arrive with a friend and get spliced, or married, at once, and come down to Sydney unknown to any one, in the mean time you may be preparing what you can. Now for your sake and mine also keep your spirits up, and do not suppose for a moment I am trifling with you. I intended to have wrote by the Victoria steamer, but was too late for the Post, fearing to trust it in a stranger's hands. I do not wish your father and mother to know any thing about it until corresponded more. TheJames Watt has broken down, which will prevent your receiving this in due time, but however write me on receipt of this as soon as possible, you must excuse the shortness of this, for the more I think about you and your situation the less I can write, my feelings get the better of me and

                                    Dear Selina, your much

                                                Attached and honorable

Sydney, Aug. 21. 1840.                                    ROBERT.       

Miss S. Carrick, at Dr. Harrington's, Maitland.

            Shortly after he had written this letter the defendant married another person, and never made any communication to the plaintiff's family of his intention to adopt such a course. After some time the plaintiff's daughter was delivered of a child, in premature labour; and, for all these complicated wrongs, the plaintiff now sought a Jury to give him such compensation as may, in some slight degree, punish the defendant for all the injuries he has inflicted upon the unhappy family of the plaintiff, and, in some measure, atone for the wounded feelings of the plaintiff; and though the plaintiff was but a poor man, the utmost damages that they could give would fall far short of rendering satisfaction to the unfortunate victims of the defendant's villany.

            Selina Carrick, examined by Mr. Windeyer: My father is a publican in Bridge-street, he lived there in 1840; I became acquainted with the defendant twelve months ago, he was an engineer then; in November I became intimate with him; he visited the family and paid his addresses to me with my father's permission; my mother is living; we used to walk together frequently; in July, last year, I went to the country, to Maitland; the defendant had then taken liberties with me; when I went into the country I found that I was pregnant; it was the defendant who seduced me; I receive the letter, which was read from the defendant, who was then in Sydney; in three weeks after the date of the letter I heard of the defendant's marriage; I was confined in December last; my child died; I was living at my father's when I was seduced; I used to assist in managing my father's family; I have a brother fifteen years old; I was sixteen last October; the defendant is about thirty; the work-shop was in Queen's-place.

            Cross-examined by Mr. Foster: I met the defendant first in November, 1839; my father was then in England; I did not ask the defendant to come to the house; Mrs. Jerome first introduced him to me at the defendant's workshop; a few nights afterwards he came to my mother's house, about seven o'clock; he stayed two or three hours; we had nothing to drink; my mother remained in the room; I went twice to the defendant's work-shop, but never alone; I know John McKenzie, a government man to Mr. Manning; my father returned in March, 1840; McKenzie took messages for me to the defendant; it was in August I went to Maitland; I never sent any messages to the defendant in 1839 or 1840; I know, by sight, a clerk of the name of Cox; I never had any conversation with him; I never met Cox in the passage leading from Bridge-street to Queen's place; I know a person of the name of Wilson; he never remonstrated with me, two years ago, about the impropriety of my conduct; I was first seduced in November, twelve months ago; it was about a fortnight after I first saw the defendant; he called for me at my mother's; we came home together; Jones never slept at my mother's, while my father was away; I saw the defendant in March for the last time; the defendant never slept at my mother's but once, my father was then at home; I do not know how old the defendant is, he told me he was 27; we never had any dances at my mother's since my father's return; there never was any man there dressed in woman's clothes that I know of.

            Dr. George Bennett, examined by the Solicitor-General; I am a surgeon; I attended Selina Grant in December last, and was paid her fee of four guineas by her father; there was a woman acting as a nurse while I attended her; she had gone her full time.

            The letter was put in, and the plaintiff's case was closed.

            Mr. Foster then informed the Court that a member of the Solicitor-General's family was taken suddenly ill, and that he (Mr. Foster) hoped the Court would have no objection to adjourn till to-morrow.

            Mr. Justice Stephen said that he had no objection, and the Court adjourned till Wednesday at ten o'clock.

_____________

Wednesday, 2nd June.

Frederick Brook Carrick v. Robert Russell.

            Mr. Windeyer for the plaintiff, proposed calling a witness who had left the Court yesterday through illness, before the close of the plaintiff's case, the plaintiff having unadvisedly neglected to stipulate for liberty to call him.

            Mr. Foster for the defendant, objected to such a course, as being likely to give the plaintiff an unfair advantage after he had said that his case was closed.

            Mr. Justice Stephen left the Court to consult Mr. Justice Burton in order to have the practice in such cases settled, and upon his return said that Mr. Justice Burton was of opinion that the plaintiff should not be permitted to call the witness, and that he (Mr. Justice Stephen) was of the same opinion.

            Mr. Foster then said that he would consent to the witness being called, and he was accordingly called.

            Dr. John Neilson, examined by Mr. Windeyer, I am a surgeon; I know the plaintiff and the defendant for seven or eight years; I consider the plaintiff to be a respectable man; I have attended his family three or four years ago; since then I have seen and known them; the defendant showed me some letters which he said he had received from Miss Carrick, from Maitland, about three weeks before his marriage; he showed me the letters, and said that he must marry Miss Carrick, for he had seduced her about four months ago.

            Cross-examined by Mr. Darvall. I only know the plaintiff's family professionally; Miss Carrick was a mere child when I knew her; I know nothing about her for the last three or four years; it was at two or three o'clock in the day he shewed me the letters, as if boasting of his amours; his family was opposed to his marriage; John Russell said that she was a girl of bad character, and I said that, if she were, Robert Russell ought not to marry her; I never knew that the defendant kept company with Miss Carrick; he was married to his present wife after three or four days' courtship.

            Mr. Windeyer proposed calling in Mr. Driver, to which Mr. Foster objected, and then addressed the jury for the defendant: He said, that his learned friend, the cause of whose absence every one regretted, had opened this case with his accustomed eloquence, but had entirely failed in his proof; no doubt seduction was a horrible crime; but then every case differed in its features, and the jury should consider these several points; in the first place, what had been the conduct of the father and mother of the person seduced before the seduction of the daughter; in the next place, had the defendant employed any arts of seduction? had the girl shewed by her resistance that she was a virtuous woman, led astray by the villany of an artful seducer? had she been the seducer, or the seduced? And then, if these points were determined in favour of the defendant, the case should be scouted from court, as a most frivolous and t[r]umpery action, instituted for the mere purpose of extortion. The jury had heard the girl's account of the transaction, and from it they could see how far she, or her family, had been injured. She says herself, that there was no fit or proper introduction between herself and the defendant. She herself first went to him; and, her whole conduct, upon her own evidence, shews that she must have been a young woman of bad and immoral character, who had been badly and loosely trained by her parents, and who, from the very manner in which her seduction was accomplished, proved the impurity and the abandonment of her own mind. Besides, in all her evidence she had prevaricated in her testimony, while the defendant had been worked upon and infatuated, by the arts of this abandoned and profligate strumpet; and, in addition to all this he (Mr. Foster), would prove that, six months before her acquaintance with the defendant, she had been seduced by two other men; and, from all these circumstances, he confidently relied upon their decision in favour of his client. Perhaps, indeed, the jury might be inclined to give the plaintiff the four guineas which he had paid as the doctor's fee; but, beyond that, he could not conceive what inducement the jury could find for mulcting his client, who, instead of being the seducer had been the seduced.

            John Mackenzie examined by Mr. Darvall. - I am in the employment of Mr. Edye Manning; I have been three years free; I was in the service of Mrs. Carrick for two days when Mr. Carrick was in England; I was frequently employed to take messages for Miss Carrick before she went to Maitland; at eleven in the evening when I had been in bed, she called me from my bed, and told me to tell the defendant she wanted to see him; I was with Mrs. Carrick I think before she knew the defendant; I have often seen them together in his workshop; I have seen Miss Carrick waiting in the passage at Queen's-place in the evening, for the defendant.

            Cross-examined by Mr. Broadhurst. - I have not always had my present name, my other name is Jones; I used to take the messages myself about two years ago; I can't say at what time of the year; it was at the close of the winter; I would not swear it was two years ago; I took a message about a month, and about a week before Miss Carrick went to Maitland; I will not swear it was not Mrs. Jones who called me up; the door was shut, and when it was opened I saw Miss Carrick outside the door.

            By the Judge. - It is 400 or 500 yards from Carrick's to Russell's workshop; I lived between both places.

            By a Juror. - Russell was at work at eleven o'clock at night when I went there, and I have known him at work at two o'clock in the morning.

            William Wilson examined by Mr. Foster. - I am a printer; I knew Selina Carrick two years ago; I saw her repeatedly in the Queen's place passage two years and a half ago; I saw a man with her there once in an improper situation about nine o'clock in the night; I said to her "You little rascal, I'll tell your father;" I have never spoke to her since; the man ran away and I don't know him; I know Cox; I saw him also in an improper situation at seven or eight o'clock one evening with Miss Carrick, at Mr. Jones's, in Bridge-street; I saw them through the window; I have no doubt of her impropriety; her character has been always very light since I have known her; I don't know where Jones is now.

            Cross-examined by Mr. Windeyer. - I am now a printer; I was a collector for Mr. Jones when I saw Miss Carrick in Queen's Place; it was between the door and Queen's Place I saw her; I did not run out of the passage after the man; he was about my own height; it was a dark night; I don't recollect saying it was a light night; I never said to my recollection that it was a light night; I might have said it; I don't recollect the man's dress; I was twelve months in the neighbourhood; I have been fifteen months at Mr. Jones's; I was only nine months in the neighbourhood; I can't say how long Carrick has been there; I never told Carrick of these things; I didn't want to disturb his family; otherwise I might have told him; I can't say how Carrick treated his daughter; I know nothing of his affairs; I never heard any noise between him and her; I never saw them together; I saw Carrick and his wife walking together, but I can't say when; I am positive it was upwards of two years ago I saw Miss Carrick in Queen's Place; it was before that I saw her with Cox at Jones's; it was two years and three months ago; it was only a few days before; it was not Cox I saw in the passage; he has left this two years ago; it was on the ground floor of Jones's house I saw them together; I was in the street and looked in from the street; it was Jones's office; I am sure it was Miss Carrick I saw with him; I never told Carrick of it; I looked upon her as a strumpet; I never solicited her; I went to Mr. Rodd's office about this case; I never said to Mr. Rodd that Miss Carrick was illused [or anything like it. I did not consider her ill used]; my only anxiety was to prevent Russell's family from being exposed in Court; Miss Carrick was sufficiently exposed already; Mr. Carrick summoned me to the Court of Requests; I paid him and did not defend the case; I left Mr. Jones's and took the Daniel O'Connell public house; I lost my license because I was three times fined; I had it for twelve months; it was at the corner of Church Hill, at Queen's Place; I am now a printer; I am not in employ.

            Re-examined. I can't say when Carrick and his wife walked together.

            By the Judge - I was in Van Diemen's Land in the employ of Dr. Ross for about six years; I have been three years here; I am positive of it.

            Mary Anne Jerome, examined by Mr. Darvall: I am a married women; have known Selina Carrick for four or five years, I know the defendant; Miss Carrick's character has given me no trouble, I have heard people talk of her; I have not spoken to Mr. Carrick for two years; I know a man of the name of Samuel Bayliss; I saw him with her about two years and seven months ago, together in her mothers's house and in my house; I have seen them alone together till two or three o'clock in the morning; I never saw the girl do any thing bad in my life; Bayliss was a shipwright, he was twenty-one years old; she said that he was repairing a ladder; they came to me for a light; Selina Carrick to my knowledge has been out at all hours of the night with both Bob an John Russell.

            Cross-examined by Mr. Windeyer - I have not spoken to Mr. Carrick for two years; I ceased communicating with him for some time; Selina Carrick and Bayliss came to me to get a light; I will swear positively no one else was there; I was told so; I was not in the house myself; I did not see them in it; it is a very large house; three years ago I knew old Russell; he was a nice old man; I was a prisoner for seven years for forgery; I came from Paisley: Scotch prisoners are the worst of all; I was free on the third of May; Mr. Carrick came for life, and I only came for seven years, so that he is no better than I am; I never was turned out of his house; I am five years married.

            Mrs. Jones was called, but Mr. Windeyer objected to her examination, as she had been in court for some time, and,

            Mr. Justice Stephen refused to admit her evidence, as he himself had seen her peeping into court frequently during the trial, and said that he would adhere to the rule in every case.

            Mr. Foster closed the case for the defendant.

            Mr. Windeyer then called, Brent Clement Rodd, who was examined by Mr.Broadhurst. I am the attorney of the plaintiff; I know Wilson; he came to my office; he said -

            Mr. Foster objected to any evidence being given of any thing Wilson said, as to his opinion upon the case, he having positively denied being the agent of the defendant.

            Mr. Windeyer and Mr. Broadhurst submitted that they had a right to give evidence to contradict Wilson upon his own evidence, and cited Phil. Evid., p. 489.

            Mr. Foster contended that the defendant was bound by Wilson's answers, upon the points on which it was attempted to contradict him, and that this evidence, upon a collateral matter, could not be contradicted.

            Mr. Justice Stephen said, he considered the evidence material to the issue, and would, therefore, receive it.

            Examination continued. - Wilson said, he had called at the request of Mr. Russell to compromise the matter; he said the case ought to be settled, for the girl had been very ill used in the matter.

            Mr. Foster addressed the jury, and relied upon Wilson's evidence being corroborated fully, even notwithstanding Mr. Rodd's contradiction of a part of it; and pressed upon the jury that, upon the whole evidence, they must be satisfied that the plaintiff's daughter was a person of such abandoned and profligate character, as completely to disentitle the plaintiff to any damages whatever.

            Mr. Windeyer, in reply, for the plaintiff, said that he had never risen to address a jury with greater anxiety; throughout he had felt how little competent he was to deal with such a case in the absence of his friend Mr. A'BECKETT, and now that he had to supply his place, the recollection of the cause of his absence almost deprived him of the power of doing so. The jury were not perhaps aware that since his friend the Solicitor General had addressed them yesterday, he had by a mysterious dispensation of Providence, had suddenly snatched from him the wife of his bosom, and thus that voice whose truthful eloquence should be now sinking into their hearts, was either mute with the anguish of despair or wailing in agony over the corpse of his children's mother. His friend was yesterday happy: he was now most miserable; and they would, he was sure, forgive him (Mr. Windeyer) if his knowledge of how much his friend had lost should cause him to make large demands on their indulgence. The jury must be satisfied of the importance of Mr. Rodd's evidence, which so completely contradicted Wilson's, and they would see that the defendant's letter established the whole case for the plaintiff, for in it the defendant acknowledged that he alone had been the cause of the ruin of the plaintiff's daughter, and his was the best evidence of her character, of that character upon which the whole case rested - of that character which the defendant had resorted to every means throughout the trial to blast and defame; but the jury would recollect the important corroboration which Dr. Neilson's evidence gave to this letter, and the conclusive testimony which it afforded of the defendant's own acknowledgment of his having been her first seducer; besides, such was the defendant's own opinion of her virtue, that he, after the destruction of her chastity, deliberately wrote to offer her marriage. Even if the jury did for one moment believe that the unfortunate girl, whose wrongs were the subject of their inquiry, had ever been in the least of a profligate character, it was plain upon the evidence that the defendant had been the first and the sole cause of her ruin, and that it was to her connection with him that she owed her fall, if she had fallen. Why were not the letters which the defendant had proved to have been written by the plaintiff's daughter, produced by the defendant? Could the jury attach one moment's credit to the evidence of such a worthless vagabond as William Wilson had, upon his own account, shown himself to be; was his story in itself credible? It was plainly a tissue of falsehood from beginning to end, incredible and improbable in every circumstance, and in all its particulars; but if the jury could attach any credit to Wilson, they could easily perceive that, if the circumstances to which he deposed had ever occurred, they must have occurred after the defendant's previous seduction, and then the defendant was equally responsible, and was far more guilty for all the inevitable consequences of his own villany. As to Mrs. Jerome's evidence, could the jury attach any weight to it coming from such a person!  A Scotch convict evidently of the lowest, and of the most audacious impudence, who had had the assurance to institute a comparison between herself and the plaintiff, a man who had already so far, and so well redeemed his early misfortune, that he had for some time obtained a free absolute pardon, and had almost completely effaced from the memory of every one, the rememberance of his having ever been in a statton below that which he occupies. The Jury would consider these things. And if there were any grossness in the manner of the seduction of the plaintiff's daughter, they should recollect her tender years, her infant inexperience, which placed her fully and entirely in the power of the defendant's practiced depravity; and what had been the motive for the defendant in all his exposure of the unfortunate plaintiff? It was plain that his only motive was the anxiety to make an atonement to his present wife, for his conduct to the plaintiff's daughter. Had the Solicitor-General been before them, he would have appealed with effect to all their paternal feelings, and would have excited their compassion for his unfortunate client; but though he, Mr. Windeyer, was so far inferior to his eloquent friend in every way, and especially in moving the gentler feelings of the Jury, yet in this case there was everything to touch their feelings, everything to induce them to make some atonement, to give some compensation to his unhappy client, for all the accumulated wrongs which the malice and the villany of the defendant had in an his conduct [inflicted] upon the whole family of the man, whose only daughter he had been the first to seduce, and the most anxious to defame by every means within his power.

            Mr. Justice Stephen said, that this was a case peculiarly fit for the consideration of a jury, and that it was for them alone to estimate the amount of the plaintiff's loss in the ruin of his daughter. If they believed the evidence, there could be no doubt of the fact of the defendant's improper intimacy with the daughter of the plaintiff, and therefore the jury had to look to those circumstances which had been proved in evidence, with respect to the manner in which the plaintiff's daughter had fallen away, and to the manner in which the defendant had accomplished her fall; they should consider what had been the conduct of the plaintiff and of his wife in their system and treatment towards their daughter with respect to her early education; what had been her own habits and character previous to the defendant's acquaintance with her; what had been his mode of accomplishing his object towards her; and what was the situation in life of the parties; these were the questions for the jury, and they should come to their conclusion upon each of them through the evidence which had been given, and through that alone, applying it to the points which they had to determine according to the best of their own judgment and experience of the world. The learned Judge then read over the evidence and commented upon it at great length and with great minuteness.

            The Jury then retired, and in about twenty minutes returned a verdict for the plaintiff. - Damages £300.

Source: Sydney Gazette, 5 June 1841[2]

            [We cannot help making some remarks upon the want of decent manners in certain members of the bar. During the above trial - a woman had the misfortune to be examined as a witness, and Mr. Windeyer called her a prostitute, a strumpet, a Scotch strumpet - which he was pleased to say was the worst of all strumpets - a street walker, and finally a bitch! - and all these gentle appellations were showered upon her, for no earthly cause, that we could divine, but that she was an opposing witness. Again, another witness was a worthless vagabond, a hound, fellow, wretch, &c. &c, with just as much apparent provocation. After which came his speech, which we take upon us to pronounce to have been a climax of bad taste, want of judgment, and extreme vulgarity. The pretended emotion in the exordium and peroration of it was artificial feeling in all its naked deformity - it was put on and thrown off like a summer garment, and when he drew a comparison between the affliction of the father of s -----t client, and that of his friend at the bar, under his sudden bereavement, we were absolutely sick at heart, we were choking with disgust! Great God! how degrading must be the hireling profession, which thus stifles morality, and annihilates habitual character - for Mr. W. in his private character is pre-eminently a gentleman. The Judges are much to blame for this - viz., that when a disputed point of law arises, the floor of the Supreme Court becomes a regular cock-pit, with this reservation in favour of the latter - that there, only one couple is allowed to encounter at a time, while under the noses of their Honors some four or five wiglings are let loose at once. We have spoken warmly on this matter, and if Mr. Windeyer should wince under our remarks, we hope he will learn to reflect that the persons, whom he almost daily abuses, under the protection of his professional character, have feelings as well as himself. - ED. SYD. GAZETTE.]

Notes

[1]              See also Sydney Gazette, 3 and 5 June 1841; Australian, 3 June 1841.

[2]              After its very long report of this trial, the Sydney Gazette of 5 June 1841 made the following comment.

Published by the Division of Law, Macquarie University