Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W. 2/8150 [1]

[14] The plaintiff in opening the Suit addressed the Court from a written Paper of which the following is a copy vizt.

This is an action brought by me against Mr. John Harris Surgeon of the New South Wales Corps for Defamation. Before I enter the Proofs I must request your Permission to say of few words. I shall not detain you long. I little thought that I should has any occasion to appeal to your judgements in your judicial Capacities to receive Satisfaction for a personal insult but as it is the mode Mr. H himself has chosen to decide the Difference I must admit the appeals. Gentlemen I come before you to receive reparation from Mr Harris for that he on or about the 12^th day of April last did at Parramatta in this Territory most viciously and maliciously injure and defame the Rank and Character of me Richard Atkins by calling me a Swindler, a word of the most defamatory and libellous Tendency that inventive malice could suggest to injure and annihilate the good name fortune and Character of me the said Richard Atkins. The said R.A. therefore lays his Damages at £500 as a just Reparation due from the said John Harris – this outrage Gent upon Common Decency was attended with many aggravating Circumstances which I hope the Court will carry in their minds. I had occasion to confine one of Mr Harris’s men a Notorious Pig Stealer that I had ordered some time back to work in the jail gang for six months but at the Intercession of Mr Harris as the man was indebted to him. I had liberated this man I thought it necessary again to confine. On the evening of the 12^th April Mr Harris came to my House accompanied by Mr. Balmain and in that ostentatious and peremptory manner Mr Harris is accustomed to demand to know what his man was confined for and insisted on the matter being immediately heard or that I should accept of Bail. Not accustomed to be spoke to in such a manner for, Gentlemen, the mode of expressing words are often more insulting than the words themselves. I told him I was not to be dictated to or frightened, but that the man should be best up the next morning at 8 or 9 o’clock and the charge against him should be enquired into. This is not satisfying Mr Harris he still continued making use of very unbecoming language and at last finding that I was not [15] inclined to comply with his wishes when asked in so improper manner he called me a Swindler, on which expression I ground myself Gentlemen perhaps a great deal of private inventive and personal abuse be attempted, but as I shall studiously avoid every thing of that kind I trust the Dignity of this Court will protect me from it on the part of Mr Harris. Having the most perfect Reliance on the impartiality, discernment and judgement of Gent of the court, I will no longer detain you, but will proceed to prove the last and pray the judgement of the Court on the Action.

A. I was at Mr. Marsden’s Door and heard you and Mr. Harris talking rather high at your Door.

Question. Yes – I heard him say these words – “You have not the least Tincture of a Gentleman in you – You are a very great Blackguard and a compleat Swindler.”

Question. Be so obliging as to relate to the Court what you heard pass at that time.

Question. Do you, Sir, recollect Mr. Harris’s applying to me to know for what Reason a Man of his had been Confined.

Answer. Yes – I do – and that he came to your House for the purpose of knowing it.

Answer. Mr. Harris wished as he much wanted his Man that the Matter had been heard before in order that if the Man was innocent he might have been dismissed and punished if guilty – he observed he thought it hard his Man should be confined on a frivolous matter as he much wanted him – You replied it was not a frivolous Matter as the Man had struck a Constable – to which Mr. Harris rejoined that if his Man had been Guilty of a Breach of the peace no one would be more ready than himself to have him punished, but on the contrary if it appeared to be a frivolous Matter as he understood it was, you should hear from him on the Subject.

[16] Question. Did it not appear to you from the Manner and Mode of the Expression that it imported a Threat.

Question. Did I not acquaint Mr. Harris that the Man should be brought up at 8 or 9 o’Clock the next morning and the Charges enquired into.

Answer. Yes. You did, but soon after you said it should not be the next morning unless you thought proper.

Question. Did you hear Mr. Harris make use of improper Language to me as a Gentleman and what?

Answer. Yes, at going away Mr. Harris said he conceived you to be a Blackguard a Rascal and a Swindler.

Did Mr. Atkins conduct himself as a Gentleman to me on the Business I came to him about?

Answer. I thought Mr. A. was very stiff and I dare say had his Language and Manners been less so, you would have conducted yourself otherwise.

Question. Did it appear to you that I came to Mr. Atkins’s House on purpose to abuse him.

Answer. No – for I was certain that you knew not of the bus^s. of your Servant’s Confinement until 5 minutes before you came to the House - and in a Conversation you had with me you said you thought it ill natured that Mr. A. should have taken such a Step with a Servant of yours at such a time and without apprizing you of it.

Question. Were you present the next day when my Servant was examined before Mr. Marsden.

Question. Did not Mr. Atkins thro’ the whole Business that Evening seem to shield himself under the Authority of a Magistrate to give me very improper Language.

Answer. I thought he did, which was the reason of so much unpleasant Conversation passing.

Answer. I cannot speak as to this matter, not being able from the warmth of Conversation to judge so particularly of it as I might. It rather appeared to me that Mr. Atkins had been Drinking, but whether incapable of Business or not, I will not pretend to say.

Did I not ask Mr. Harris if I had not upon every occasion been very attentive to any little Matters respecting his Servants as far as my judicial Capacity extended.

Answer. Yes, and Mr. Harris acknowledged it and said he was the more surprized at your Conduct in the present instance.

Question. Did I not ask Mr. Harris if I had not released his Man from the Gaol gang at his Intercession.

[17] The Defendant addressed the Court from a written Paper, of which the following is a copy – vizt.

The time has now come which has been long wished by every Person of Character in the Settlement, when the black and disgusting Catalogue of Crimes Committed by my opponent will be displayed.

I am free to confess that it would have been fortunate had the Task fallen on some Gentleman more competent to do it Justice – with Abilities to enumerate his Crimes with Energy – and with Eloquence to awaken his Conscience and to confound him with the Recital of his Guilt.

But incompetent as I feel myself to this Undertaking yet I will not shrink from the Task that Accident has imposed – and I hope to prove to this Court, however defective I may be in the Manner, that Mr. Atkins is not only a Swindler but of so depraved a Character that to associate with him is to become infamous. – before I enter upon that which is the proper Subject of the present Enquiry it will be necessary to Confute some Notions which I understand have been advanced and circulated with great Industry.

That having thus removed all ground of Mistake you may have a clearer view of the Matter that is to come before you – the Supporters of the Plaintiff say that words which admit of a slanderous Interpretation however true they may be allow of no Justification. Now permit me to oppose to those learned Expounders of our most excellent Laws the opinions of that great Lawyer Blackstone – in the 3^rd. Vol.of his Commentaries page 125 he says “If the Defendant be able to justify and prove the Words to be true, no action will lie even tho’ special Damage hath ensued – for then it is no Slander or false tale – as if I can prove the Tradesman to be a Bankrupt, the Physician a quack, the Lawyer a knave and the Divine a Heretick, this will destroy their respective Actions – again in the 4^th. Vol. page 153 “in a civil Action we may remember a Libel must appear to be false as well as Scandalous for if the Charges be true the Plaintiff has recd. no private Injury – and has no ground to demand a Compensation for himself whatever offence it may be against the public peace.

And therefore upon a Civil Action the truth of the accusation may be pleaded in bar of the Suit.” Such authority as this cannot fail to have its proper influence on your minds when opposed to the wretched Sophistry that has been propagated against me and my Cause – I will now proceed to the facts I have to offer in defence of the Words I am accused of uttering, and I fear not but to justify myself to your Satisfaction if you only keep in mind what I think it is impossible for you to forget – that a vicious Man may be told of his Crimes and the Law not be infringed.

I must lament that my knowledge of the Plaintiff began at so late a Period of his Life, for if we are to judge of the Blossom by the Fruit, from his earliest Dawn of Manhood to his declining days he has pracised an unbroken Series of Vice and Iniquity and I could relate [18] many anecdotes to support this opinion known to be true by persons in the Colony, tho’ perhaps not capable of legal Proof – I must therefore content myself with commencing at that time since which many here are witnesses of his Excesses, and confine myself to the production of those Facts which I can support by incontestable Evidence.

The first thing I shall attempt to prove is that in the year 1792 the Plaintiff obtained Sundry Goods from Captain Bond of the Royal Admiral to the amt. of about £90 Sterling for which he offered to pay by a Draft of £100 on Mr Thornton of London, stating in a Note which accompanied the Draft that he had drawn for more than Captain Bonds Demand, merely because it was the exact Sum then due to him by Mr. Thornton and that he would thank Captain Bond to send him the Balance.

Captain Bond who had by this time learnt Mr Atkins’s Character, returned the £100 Draft and desired one for the Sum due to him, observing even that was more than he wished. The ends verified his Fears as will be seen by a Letter which I shall lay before you and from which this is an Extract. “Atkins is a most accomplished Rascal as he knew he had no more Claim on Mr Thornton than on you. He is a Man of family. His Brothers I know who are most honorable people, how he comes to Port Jackson is a secret, but I fear for no good. My money is lost forever, as the man would could commit so determined a Robbery, were it ever in his power would want the principle to pay.

When I consider his imprudent assertion which you remember when he sent me his bills for£100 desiring the Balance as that was the exact Sum Mr. Thornton had of his, Mr. Thornton on my first presenting the Bills said, he knew nothing about it or the person who had taken the Liberty of drawing on him. I shall write to Atkins to upbraid him for his Rascality. He should be exposed or he may continue to take in every stranger that comes amongst you.”

I will next prove by Mr. Thomson a second fraud similar to that on Captain Bond.

By Captain Raven’s Evidence a third, by Mr Balmain a fourth and by Mr Stogdell, Mr Palmer’s Agent, a fifth.

There are poor Men in Attendance ready to prove that he has obtained their money from them under various pretences, and when they have applied to have it returned he has ill treated them and even threatened one of them to flog and Iron him for being troublesome.

Lastly I shall prove that this man who affects to be so much hurt at the Appellation of Swindler has absolutely an directly plundered the Government and fraudulently obtained Receipts for Grain which he never put into the public Stores.

When this clear and connected Chain of Evidence is heard it is impossible but that you must be satisfied of his Guilt and astonished at his unblushing Hardiness and impenetrable appearance in daring this to meet this Assembly with the declared purpose of attempting to support his Character, blasted as it is by such Variety of wickedness. He must know that you could not [19] be ignorant who he is and what is his public and private Life. That you are informed of his being an unacknowledged outcast from his most respectable family who consider him a disgrace and a Pest, or could he believe you were yet to learn that neither Sense of Shame or Dread of punishment ever yet deterred him from the violation of all that is held sacred and binding on the heart of man in civilized Society.

How then are we to account for this most audacious attempt? Is it possible he could suppose any Set of Men could be found weak or wicked enough to screen him from overwhelming Infamy at my Expence, who if I have erred it is in so slight a degree that every Man of Honor when he considers the Circumstance must excuse and justify me. If such has been his Expectation, I expect your verdict will convince him of his mistake and satisfy this anxious Audience that they need not seek another region because vice is supported here, and Decency, order and the equitable principles of Law are trampled under foot.

I will trespass, Gentlemen, on your patience no longer than to impress upon your Recollection that I have said or done nothing but what I am excused in by the Laws of my Country, by Laws you have sworn an oath binding on your Souls to decide by.

Captain John McArthur, but the plaintiff objected to his Testimony, alledging that Captain McArthur and himself had been for some years in a State of Animosity and therefore that this witness could not divert himself of Prejudice on the occasion.

The Court was cleared to deliberate the Question and being re-opened and Captain McArthur’s Evidence deemed admissible he was duly sworn and Questioned by the Defendant as follows.

Please to relate to the Court what you know of a Bill given to Captain Bond by Mr Atkins drawn on Mr Thornton.

Answer. In the latter end of the year 1792 when Captain Bond was at this Port he informed me that the Plaintif had contracted a Debt with him for about £80 or £90 that he had sent him a set of Bills for £100 on Mr Thornton of London. That the Bills were accompanied by a Note from the Plaintiff stating that he had drawn for £100 although more than Captain Bond’s Demand because it was the exact Sum Mr Thornton had then in his hands. Captain Bond then informed me that it was his Intention to return those Bills to the Plaintiff with a Demand for a set to the amount due to him as he had been informed by some Officers who came out in the Pitt that the Bills were not worth one Shilling. After the Royal Admiral had sailed I received a Letter. (Produces a Letter which is sworn to be Captain Bond’s hand writing and reas the extract as in the preceding Page beginning “Atkins is a most accomplished Rascal &c &c.”

[20] Answer. I certainly will not, but I have Reason to suppose it is not because long after when Captain Bond met Captain Raven at the Cape he enquired of him how that Swindler Atkins came on.

Question. I think Captain Bond’s Letter says, Mr Thornton knew nothing of me. In answer to that I produce a Letter dated March 14, 1795.

(Letter produced and read by which it appeared that Mr Thornton had known the Plaintiff for upwards of 25 Years.)

[The defendant’s evidence then continued with numerous witnesses, including William Balmain and Captain Raven. When the Defendant called Captain McArthur again, the record notes “But the Court were of opinion that his Testimony could not be received a second time having already given Evidence in this Cause and having been sworn to speak the Truth, the whole Truth &c.” At the end of this extensive evidence, some of it about small debts owed by Atkins, the transcript continues as follows.]

[34] Here the Evidence on the part of the Defendant closed. The Defendant addressed the Court and observed that he meant to call upon His Excellency the Governor as an Evidence on this Trial. The Defendant desired the Judge Advocate to inform him what the Governor had said on the occasion.

A paper read which His Excellency produced to the Court in person the 27^th of May. (Vide page 11.)

The Defendant said he should not take the Liberty if remarking on that paper but he could not help thinking it strange that His Excellency Governor Hunter should have voluntarily offered to have come forward to give a Character to a Felon and not come forward at the Request of an Officer.

The Defendant then produced Letters, of which the following are Copies. Read in Court.

As I find it necessary to all on Your Excellency as an Evidence at the Civil Court on Monday, I feel I should be wanting in Respect if I forbore to inform Your Excellency previous to my signifying it to the Judge Advocate; and I avail myself of this opportunity to apprise you that I should gladly have avoided troubling Your Excellency had it been possible.

I have no objection to appearing before any Court where my Presence may be necessary, but I could have wished to have understood upon what particular Subject I am to be interrogated that I might have had time to recollect whatever I might be have been acquainted with on the Business I am to be examined upon.

[35] The Defendant then addressed the Court from a written paper of which the following is a Copy, vizt.

I must now beg your Indulgence for a few minutes whilst is sum up the Evidence lest any material part should fail to impress itself on your minds with the weight it deserves, and I hope for your attention whilst I endeavour to enforce this Evidence with such arguments as my acknowledged Incapacity permits.

You will recollect, Gentlemen, Mr Balmain has sworn he is Convinced I wen tot the Plaintiff’s House without any premeditated Design of saying or doing aught that I could offend and that it appeared to him I was provoked to what I did say by the haughty insolent and contemptuous manner of the Plaintiff. You will consider the Cause of my visit. I had heard that my Servant was confined by his order without any specific Reason being assigned.

As a Gentleman I thought myself entitled to know what offence he had committed and when his Examination would commence that I might attend to see Justice done him. I knew that my Servant had not offended in such a was as could ensure the Plaintiff for confining him and thereby deprive me of his Labor at a time when I much wanted it. Yet I addressed myself to him in Terms of Civility. I was answered with Rudeness, with Contempt. Feeling then as a Gentleman, the Character of the plaintiff presented itself in full view to my mind, and my Resentment at being insulted by such a Character overpowered every prudential Consideration. I could not, I did not forbear to bestow on the Plaintiff the deserved appellation of Swindler.

Let us before we proceed further examine the import of the Words. If I understand it right Swindler is synonymous with Cheat, and a Cheat the Law defines is a person who under false Pretences obtains form another either money or Goods. On this Word the Plaintiff has founded the present action, but without attempting to make out by a single Evidence that he hath sustained any particular Damages thereby. He cannot say that it hath hurt his Credit. That before was completely blasted. He cannot assert that it hath exposed him to Contempt, for that he has long been generally held in. but I lean not on the force of this argument for my defence. I am willing to rest my Cause on the Proofs which I have produced of the Plaintiff’s Infamy.

Gentlemen, I have already laid before you the opinion of that excellent Lawyer Blackstone, and if you do not confound in your minds a criminal Prosecution with a civil action for Damages, the present action must fall to the ground.

I confess I seen not a possibility of such Confusion arising, but as I know that Prejudices on this point of Law do exist, it is a Duty I owe to myself not to neglect this opportunity to remove them. I am aware that a Libel is punishable at the Suit of the Crown, whether the Matter of it be true or false or whether the person libelled be of good of bad fame.

[36] This Suit, Gentlemen, I cannot too often repeat to you is a Civil, not a Criminal one, and therefore the Law on Libels applies not to this Case. All me however to assert that even though this were a Criminal Prosecution, the attempt to convict me (if Justice were done) would be equally futile with this, as I should then maintain and prove that nothing is deemed a Libel which is not written. Hawkins as quoted by Burne in his 3^rd volume page 101 says “it is no Libel until it is reduced to writing for the Essence of a Libel consists in the writing of it. For if a man speaks such words unless the words be put in writing, it is not a Libel.”

If the truth of this argument be admitted and surely nothing can be opposed to it, you can be under no difficulty what verdict to give. I have already, Gentlemen, pointed out to you by Extracts from Blackstone “that if words were proved to be true no action will lie for then it is no Slander or false Tale.”

The words on which the Plaintiff brings his action I have defined, I hope to your satisfaction, and surely it will not be denied that I have in numerous Instances proved him a Cheat.

Captain McArthur has sworn and corroborated his Testimony by Captain Bond’s Letter that the Plaintiff obtained Goods from Captain Bond to the amount of near £90 Sterling and that he attempted to obtain money to increase his Debt to £100. That the Plaintiff when disappointed in getting the money paid Captain Bond for the goods he had received by a Draft on Mr Thornton. It is proved that the Draft when presented for payment was refused, as Mr Thornton said “because he knew nothing about it or the person who had taken the Liberty of Drawing on him.”

Let us consider, Gentlemen, the Character of the Person who gave this answer. Let it be remembered that he is a man of the highest Respectability and then let the Plaintiff’s Character and Declaration be contrasted with it. The Plaintiff said he wished not to draw for less than £100 because that was the exact sum Mr Thornton then owed him. If this be not cheating, it is clear to me that a Cheat will never be proved, but let us proceed. Mr Balmain has Sworn that Captain Wilkinson informed him he had taken a Draft of the Plaintiff home drawn on his Brother Admiral Bowyer, that when the Bill was presented Lady Bowyer in the Admiral’s absence answered “that Mr Atkins had no Right to draw on the Admiral, that the Bill would not be paid, that they did not know the Drawer and that she was sorry Captain Wilkinson was swindled out of his money.

Captain Raven also swore that he took two Drafts from the Plaintiff amounting to £123 and drawn on Admiral Bowyer, that they were both refused and protested by the Notary with these remarkable and pointed words “Admiral Bowyer will not pay the Bill because the Drawer knew he had no Right to draw on him, he will not know him.” Mr. Palmer’s Letter which was admitted as genuine has been produced to corroborate the Testimony of Mr Balmain and Captain Raven and had Mr Palmer been in the Country I should have brought him forwards as a man who had suffered most severely by the Plaintiff’s fraudulent Conduct. Mr Thomson has sworn that he took a Draft of the Plaintiff to

England

[37] drawn on Messrs Winborne and Callett in which Draft is was stated on what Account the money was drawn. When the Draft was presented Mr Thomson swore that the first answer was “they did not know the Drawer” but in a short time one of the Partners of the House recollected that about 12 years before they had received half pay for the Plaintiff but that their accounts had been long closed and the power of attorney by which they had acted, withdrawn. The Plaintiff I know will endeavour to shake this testimony of Mr Thomson’s by producing his Letter wherein he declares he is of opinion the Plaintiff intended no Fraud when he drew the Bill in Question but this is matter of opinion only and changes not in any degree the facts which he has sworn to. It would perhaps be indiscreet at this period to explain how that Letter was obtained or what Influence was exerted to bias Mr Thomson. I shall therefore content myself with observing that whatever end it was designed to answer it is now most compeatly frustrated by Mr Thomson’s prompt Declaration to this Court, that although he acknowledged the Letter, a more perfect knowledge of the Plaintiff’s Character obliged him publicly to retreat what he had written. I have now, Gentlemen, remarked on the Evidence which I have produced of six different Frauds committed by the Plaintiff in drawing Bills on persons with whom he had neither Effects or accounts. The Plaintiff it is true has attempted to palliate these often repeated Crimes of Cheating or Swindling by asserting that when these Bills were drawn he had Reason to expect a large sum of money lay in his Brother’s hands arising from the sale of family pictures and Plate, but if we examine the Plea it will be found perfectly nugatory.

Did the Plaintiff expect Messrs Winborn and Collett had sold his family Plate? Or that Mr Thornton had when he drew on him in favour of Captain Bond? Or what Interpretation can be given to Mr Thornton’s answer “that he knew nothing of the person that had taken the Liberty of drawing on him”, but that he chose this general Expression of Ignorance to avoid a more particular Declaration of Disapprobation at his Conduct. Does not his own Brother use similar Language, and can it be inferred from thence that they are not Children of the same Parents. Most certainly not.

Here let me pause to express my deep Regret at thus being obliged to couple the name of this great and illustrious person with the man who now stands before you covered with infamy although insensible to shame; for thus being necessitated to unite Virtue, Honor, Bravery justly rewarded by national applause with the most determined Depravity, with a man

It is to be lamented, Gentlemen, that you thought it proper to reject the Evidence of Captain McArthur, because he had been examined before on a matter totally and altogether foreign to what I called him a second time to prove. This Copy of a Deposition made by him will convince you how very essential his Evidence is to the support of my Cause.

[38] Had Captain McArthur been examined a second time, the arguments I have used to shew the futility of the Plaintiff’s plea of his Expectation from the Sale of family moveables, would have been entirely unnecessary, because his Evidence strikes directly at the Root of the Plaintiff’s fallacious Excuse.

Why you did refuse his Evidence, Gentlemen, I confess, I am incapable of imagining, for certain it is that the Law neither required nor allowed of such proceeding as you may satisfy yourselves by referring to the late State Trials, one of which for your Information, I now take the Liberty of laying before you. In it you may see several Instances of the same Evidence being examined a second time.

I will now proceed with my Remarks on the remaining Evidence. Can any thing be more strong than Young’s Evidence. He swore that he placed his money with the Plaintiff as a Magistrate with whom he supposed it would be safe and that when he applied to have it returned, the Plaintiff threatened to flog and Iron him. This Evidence is strongly supported by the Circumstances of the Plaintiff’s returning the money he was entrusted with since this Action was entered and since it was publickly known that his treatmen of the man was to be produced in Evidence against him.

Fennell’s Evidence on a similar Subject would have been equally forcible, had he spoken the truth. Ten days only previous to his Examination he was paid the money that had been owing to him three or four years and which he had never been able before to obtain. I insist that this is a most glaring Proof of the Prevarication of the Evidence and the Criminality of the Plaintiff.

Houghton and McDonald establish that the Plaintiff received from them 27 Bushells of wheat which he applied to his own use, although the property of the Crown and it is worthy of Remark that the Plaintiff in his Cross Examination of Houghton endeavoured to prove that the Wheat he received from this Evidence was on a private Account; but finding himself foiled in this attempt, he admitted the next day that he did receive it as public Property and maintained this Ground of Justification by the Evidence of Mr Williamson, the Deputy Commissary. To what, Gentlemen, can you impute this Tergiversation, but to conscious Guilt that leave him at times without Recollection.

Townsend next proves and it cannot be denied by the Plaintiff that he has used the Government Wheat to pay his Debts. He also proves that no situation is too disgraceful, no mans station in life makes him too contemptible to become the Plaintiffs associate, if it be in his power to administer to the support and Indulgence of his vices. Hume is next called. Here what do we discover by the Silence of this man and his Refusal to answer the Questions proposed to him. What is to be inferred but the deepest Guilt. If you have any uncertainty on this point let me entreat you Gentlemen, to examine seriously the Evidence of Serjeant Ikin who swears that Hume informed him his Horses had been employed a whole Night in putting Wheat into the public Store previous to the Investigation which we all knew took place lest the fraud should be discovered that had been practiced on Government in suffering vouchers to be signed for wheat that had not been received to furnish money for the Plaintiff to pay his Debts with. It can never be sufficiently deplored that this dark, this most nefarious Proceeding was not at the time examined to the bottom.

Mr. Williamson is the next, but I declare I know not what to observe on his Evidence. It is mysterious. It is wonderful, but yet I confess I am not surprised. This Gentleman has informed the Court that the Plaintiff obtained the Government’s Permission to receive 30 Bushells of Wheat owing by Settlers to Government, but he allows that he can produce no public account wherein this Transaction is specified.

I will not press this matter too close, but had I thought proper I could have proved that this Evidence has said since the Trial commenced that he only knew of 25 Bushells which the Plaintiff had Authority to apply to his own private use.

[39] Mr Broughton’s Evidence throws much Light on the Subject, but I have not time to particularize on it Gentlemen, the whole is now fairly before you. You are to decide between the Plaintiff and me, and as I have before said you are solemnly sworn to decide by the Laws of your Country. What those Laws are I have pointed out, and I now publicly appeal to you, Mr. Dore, as the only Law Officer in this Colony, to say whether the words on which the Plaintiff has founded his Action, are not justifiable, proving them to be true as I have done.

I call upon you, Sir, to produce any written Law which can support a contrary opinion.

And if you cannot I shall look to you All Gentlemen with undoubted Confidence for a verdict in my favour.

The Defendant having closed his Defence the Plaintiff arose and addressed the Court praying to be indulged until Wednesday morning next to prepare his Reply in Consequence of the Abundance of irrelevant Matter which the Defendant had introduced in the Course of his Evidence.

The Plaintiff was informed his Request was granted.

___

Wednesday the 5^th. day of June 1799

At ten the Court met at the Judge Advocates Office, and on Account of the excessive bad weather, it having rained incessantly since 3 oClock yesterday and no Prospect of any Intermission, the Court proposed to adjourn during the Continuance of the bad weather. But His Excellency the Governor having signified His Pleasure that a Criminal Court should be holden on Saturday next, this Court therefore adjourns until Monday next the 10^th. instant.

The Plaintiff was about to enter upon his Reply when the Defendant addressed the Court and requested to know if he was at Liberty to call upon Captain Rowley as an Evidence, which was determined in the negative, not only on account of Captain Rowley being a Member of the Court but that the Evidence of both sides was closed.

Before I reply to Mr Harris and the Evidences he has produced in support of and in vindication of his Conduct, permit me to return you my most sincere thanks for your Indulgence in allowing me time to arrange that Chaos of Evidence he has chosen to trouble this Court with. Evidence that I hope I shall be able clearly to prove is either irrelevant to the matter in Question or so weak that is must strike forcibly on your Judgments the badness of the Cause he has undertaken to support; and I am happy to say that we are at last arrived at the ultimate Period of this long and shameful Investigation. I call it shameful inasmuch it has been carried on, on the part of the Defendant with all the Rancour and Venom the human mind and Heart are susceptible of. It is unnecessary for me, Gentlemen, to call your attention to the several Circumstances that have occurred during these 4 days. They must be too deeply rooted in your minds not to feel the utter Devastation of them for I am sure you must think yourselves, endowed with more than common Patience to have sat so long and hear such infamous and diabolical Language, Language tending to subvert the very foundations of Justice as is attempted to awe the members of this Court from that cool manly and firm Conduct that has so particularly distinguished them on this occasion. Gentlemen, I am but an Individual, but this but through me you will receive the thanks of all the unprejudiced, of all those unconnected with party of all Descriptions of Persons who wish to see the Laws of their Country properly administered and enforced. Is there a single man that has attended the proceedings of this Trial, from the members of this Court even to the poorest Convict but can lay his hand to his Heart and say this has arisen from the Spirit of Party, from a Combination from a Conspiracy at the head of which stands the Person whose Evidence I objected to as I thought on good grounds but the Court thought otherwise and to their Decision I bow with respect. Mr. Harris is but the Tool and Mouthpiece. This is evident, Gentlemen. I will now proceed to answer as far as is necessary the Evidence produced by the Defendant. I am accused with having defrauded Captain Bond in February 1793, but what Proof is there that I have done so. Why Mr. McArthur, whose Evidence though admitted ought from Circumstances to be received with Caution comes forward (who by the bye seems to have mistaken his situation and acts more the part of the Defendant than Mr. Harris as being the Chief Cause and principal mover). Mr. McArthur, Gentlemen, comes forward with a Letter which [41] he says is written by Captain Bond to him, which Letter abuses and vilifies me, butdoes it follow that that abuse is applicable to me? If a Letter is to be the Criterion to judge by, a certain person has received one equally strong from me in which he is called Liar, Scoundrel and Coward but is it to follow, Gentlemen, that he is a Liar, Scoundrel &c. if I was to call him a Gentleman (which I am not going to do) does it follow that he is one? Most assuredly it does not; but, Gentlemen though I may doubt the authenticity of this Letter (for it is only verified by the oath of Mr. McArthur and from the affidavit produced on Monday by Mr. Harris I am as much inclined to believe his word as his Oath) yet admitting it is Captain Bond’s it has been looked on until this day by the Gentlemen of the Colony as a matter of a private nature in which they had no Concern. This Letter, Mr. McArthur says he received in 1794 or 1795. This letter was communicated to several or the principal Gentlemen of the Colony notwithstanding which I was as much an acquaintance with them before. I have often dined and associated with them since, have enjoyed the social Conversation of the Viranda [sic] and was not then reputed a Swindler. Gentlemen in Consequence of my having written a Letter to Mr. McArthur the Contents of which are so well known in this Colony as well as in England by many Officers and others to their great Edification, I was not appointed at Captain Collins Departure to do Duty of Judge Advocate. The Colony feeling the Loss of such an Officer and the Governor not chusing to appoint one (though he certainly might have done so) by his own authority wished to hear the fanction[?] of four of the principal Gentlemen, two of the Civil and tow of the Military in Consequence Major F. Captain J. William B. Esquire and the Reverend Mr. J. were requested by the Governor to meet him on the occasion and he then asked them if any objection could lay against my appointment. They were unanimously of opinion there were none. How I filled that office it does not become me to decide but I hope it will not be deemed Presumption to say that strict Impartiality and a rigid Regard to Justice was my Guide. The first day I sat as Judge Advocate I dine with the Major and have dined and played at Cards at his house since that time. Was I looked on by the Major as a Swindler. I have dined with Captain J. Was I looked on by him as a Swindler, with Mr. B. and Mr. J. Was I one in their Eyes. Even Mr Harris himself condescended to ask me on St Patrick’s day, would he ask a Swindler to honor his Festival. But I declined that honor. Gentlemen it will be worth your while to consider for your own satisfaction what can have occasioned such a Change of sentiments. In 97 I was thought worthy of filling the office of Judge Advocate and that in the opinion of the most respectable persons. I was thought a proper associate for them, and to day I am a Swindler, and everything else Mr. Harris from his great Knowledge of the vulgar Tongue chuses to apply to me. From whence can this change arise? At that time a certain person was smarting under the Ignominy of having been called a Scoundrel Lyar and Coward and was hiding his diminished head like a Toad in a Hole feeding on his own Poison. At present his sense of Shame is blunted and he stalks abroad like Sin and Death seeking whom he may devour. Gentlemen it is an easy matter to write a Letter of abuse and send it to a distant part of the world but would it not have been equally easy to have sent the Bill back protested (the only regular way) to his Agent Mr. Macarthur that he might sue me for it. He must have known, if he knew any thing of his Character that it would have been highly grateful to him. Why did he not send my Letter that he talks of. This he could not have done, but if he could it would have been a joyful day for Mr. McArthur, for, to some minds the more it would afflict and distress, the more grateful it would be. Not that I think this would have added much to the poison of his mind, I was not a single Individual. The Distresses of whole families is more grateful to him. Gentlemen, I have no fine house built on the general misery and raised by the sweat of unhappy wretches made to work for nothing. I have never seized and sold a man’s farm for an Ewe or a Goad (Silverthorne). I have never drove any man by oppression to Insanity and Death (Davinny). I have never – Gentlemen I could go on for half an hour painting the Enormities that have been committed, I could harrow up your Souls, but I will spare your feelings and proceed. The Letter, Gentlemen, proves nothing. That I owed Captain Bond some money is true. That it is paid is equally true and in that Respect all parties are equally satisfied, and I must still impress strongly on your minds, Gentlemen, that Mr. Harris being neither Indorser nor Holder of the Bill, Agent or Attorney for Captain Bond he can have no Interest in the Event of it, consequently it is an impertinent Interference on his part and in the shape it comes before this Court (with great Submission[?] [42] I say it) they cannot take Cognizance of it.

With respect to Mr Balmains Evidence, however reputable that Gentleman may be, yet I find it is unnecessary to take any notice of it. It is merely a Conversation that passed between C. Wilkinson and himself respecting a Conversation that passed between C. Wilkinson and his wife. I am sure the Court will think any farther Remarks unnecessary.

The next witness, Gentlemen, is Captain Raven and he tells you I am indebted to him a certain Sum of money in Consequence of a Bill of mine having been protested. Tis true it was so but what is that to Mr Harris, yet for the satisfaction of the Court (not for that of Mr. Harris) I will make it appear that I had good grounds to think (and this has been acknowledged by Captain Raven who received his Information from Sir George Bowyer) that there was a sum of money in Sir George’s hands arising from the Sale of some Plate and Pictures. I knew that by the will of Sir Richard Atkins a quantity of both was left to go with the Estate, but as I always understood that personal Property could be entailed only one Generation, I concluded that the Plate and Pictures were at my Disposal, but it appears they were entailed under the Term air-looms (marginal note: ‘meaning “Heir Looms”’) consequently could not become my exclusive Property to the prejudice of the next Heir. The following is a copy of Sir George’s Letter to me on that subject. The original is here and can be produced and the hand writing proved if you think it necessary.

“The Plate has been valued by the Inventory and the Pictures sold by Christie. The Pictures were all Trash and sold only for £173.13.6, the Plate 535 oz. at 5/3d, £140.12.8. the Bill for the Care of them £17.10.0 making net money £296.14.2 the whole at your death to be paid to your son, whose property it is, not yours, for they were Heir Looms and so settled.”

Am I the first Person that has been mistaken in such cases and is it for an obscure Individual like Mr. Harris to judge and bring before a Court the private Concerns of a family too respectable to be known either by him or his consanguinity. Is it for him to weigh in a Balance the quantum of affection that may subsist in a family and to judge of the Reasons why one Brother does not assist the wants of another. It is a piece of Presumption I am sure this Court will not sanction. Gentlemen if I had drawn on a person I was unacquainted with or a fictitious Character it would have some appearance of an intended Fraud or if I had absconded it might look something like it, but I drew on a Brother and I knew I was answerable for the Consequences of a Protest.

The next Evidence Mr Thomson. To answer that I submit the Letter No. 14 and I am happy that I have so little occasion to dwell on any thing he has said and to contrast his weather cock Conduct in the year 97 and 99. The Temple of Janus is open an dthe Idol still remains. I wonder whether Mr Thomson ever read Macklins true born Scotsman. There is a Character that would exactly suit him.

Having thus, Gentlemen, gone through the Evidence respecting my drawing of Bills permit me to take it up in a general point of view and allow me to say that if I am a Swindler there is not a merchant, there is not a Gentleman however respectable but may have occasion to draw Bills and if they are protested from whatever cause he is to be called a Swindler because every insignificant fellow either from Malice Envy Revenge or if possible some more ignoble motive chuses to trouble himself with other people’s concerns. This obliges him to come before a Court and lay open his private affairs to justify himself from the Imputation thrown on him. (I must just mention Captain Raven has had many other Bills besides mine protested from this Country.) Consider, Gentlemen, this may perhaps (though I sincerely hope it never will in this Country, where candor, openness and sincerity are scarcely known) I say, Gentlemen consider it may perhaps be your own Cases. I am sure you will discountenance this most infamous attack for what would be the consequences in a commercial Country if this was admitted, if every upstart that had no more to say to the Transaction than the grand Signior had this Power?

[43] Gentlemen, we have all of us heard of the French Revolution, the same fraternizing, equalizing and disorganizing System which has overturned that Country to her Foundations has lately been attempted to be introduced into the Country that has the Honor of recording Mr Harris’s nativity. Had it succeeded there it might perhaps have extended itself to this place, in that case I presume Mr Harris would have made Interest for the Office of Public Accuser or Censor General. One word more, Gentlemen, and I have done. I contend this is a matter between meum and tuum, between two Individuals and no third person has a Right to interfere unless he has an Interest in the Transaction. Mr. Harris had none in any of my Transactions, being neither acceptor or Holder of any Bill of mine. Ergo, if another impertinent Interference on the part of Mr Harris and I am sure this Court will think so.

Gentlemen, Mr Harris may talk and think as he pleases. I a can assure him it is a matter of total Indifference to me, but I can make it appear I have a better Income than Mr Harris. His private Trade I neither know nor care about. He may sell his Pins and Needles to whom he pleases. I have myself sent him a Customer or two. I could say a great deal on that Subject, but this is not the place for obvious Reasons which no doubt this Court will anticipate. Of that Income I have received one year only (and £50 a Bill that was paid) through the hands of His Excellency the Governor. Lady R. died 8^th February 95 and from Mr. Thornton’s punctuality to Business I am as certain of receiving the arrears as I am of my existence. ‘Tis true Mr. J. sent a quantity of articles for me by the Lady Shore. Unfortunately that never came to hand. If they had I might have cleared off what I have not as yet been enabled to do. For I will submit it even to Mr Harris himself, than whom there is not a better Judge or more able Calcular of percentage in this Colony, whether or not articles well laid in at London are not worth 2 or 300 per cent. Gentlemen I shall now proceed to answer a heterogeneous mass of Evidence that certainly had no more to say to the Question before the Court than Mr Harris has a Right to assume Virtue Ability or any other Attribute useful to mankind.

First, John Young, he said he had put £4.10.0 into my hands and that I had paid him. He talked about an Iron Collar and Toongabbee but at last said I had been a good friend to him. Other necks than his ought to wear them that they might be avoided.

Next Fennell, what was endeavoured to be done with him? The Court no doubt will recollect but however he ought to thank Mr Harris for offering to pay him another persons Debt, though at present I fear was he not paid he would stand little Chance to be paid by him. Before he gave his Evidence he was an old man very hardly treated to be kept out of his money, but he Mr Harris would take care and see him paid and would be a friend to him. Is not this something like Subornation of Evidence. But now because the man has spoke the truth and that truth did not answer Mr Harris’s purpose he is a damned old Rogue and Villain and if can any of his Stock, a few Fowls and Ducks come upon his Land, for unfortunately he is his close neighbour, he will kill them &c &c. This, Gentlemen, is a fact. The man has since left his house well knowing what he had to expect from such a neighbour for speaking truth.

Fennell’s wife. For God’s Sake, Mr Harris look at home and as Othello says “keep the black Ram from tupping your white Ewe”. What, cannot you let two women bargain for a couple of Geese but a Garden must interfere?

And here let me pause, Gentlemen, a Charge is brought forward that must not be treated ludicrously for it is of a serious Import. I mean that of receiving 25 Bushells of Wheat with an intend to defraud Government. Thisis a matter I have long heard of, though great Secrecy has been affected. It has been debated in Council at the usual house of mischief at Parramatta. I apprise you I am not ignorant of what sometimes passes there when mischief is going forward which is not unusual. It was my Intention to have brought an Action against one of the Council (Joyce by name) but in Consideration I thought him beneath my notice, but when Mr. Harris condescends to become the Champion it is too great an honor to refuse taking up the Gauntlett. If Mr. Harris was on his white Mare I should take him for Dymock, the hereditary Champion of England. Gentlemen I had His Excellency’s Permission to borrow 30 Bushells of Seed Wheat from Government. When such Permission was obtained it had been customary to get it when it best was to be got. I understood Alexander McDonald had some and I applied to him (having the Power) on the part of Government for the 4o Bushells he was indebted. He paid 25 Bushells [44] which I appropriated to my own use being authorized by His Excellency so to do. I acquainted the Commissary that I had done so and marked it down in my Book, borrowed. Here is the Book (produced). Is there any person conceives me so stupid and ignorant as not to know that is was impossible a Circumstance of this nature, if it was meant to be kept a Secret, could do so? Would not McDonald himself when asked by the Commissary or other person for payment of the 40 Bushells have naturally answered “I paid Mr. Atkins 25 Bushells.” I take it, Gentlemen, that those who hazard such kind of practices calculate the Chances of detection and I leave you to judge how far a Transaction of that Nature was likely to be concealed. I can assure you, Gentlemen, and it is well known (nor do I wish to make a merit of it) that I have never taken advantage of my public situation, any further than accommodating others more than myself, contrary to former practices. Good God, Gentlemen, where was the necessity of my attempting to defraud Government of a few Bushells of Wheat when there was every Reason to believe that on application I might have borrowed 4 times that quantity for seed had I wanted it. Is there a person that hears me that does not believe the assertion. Is it reasonable to suppose, knowing as I do that for some years back there is not a single action of mine, either public or private, but that Essence of Mischief is made acquainted with it and that it is recorded by him in his black Book (only fit to be read in the Pandemonium or Assembly of Devils) to be brought forward when opportunity offers for in famous purpose. I say, Gentlemen, is it reasonable to suppose that I would put myself in the power of such a man. I had almost said Monster. Common sense revolts at it.

You have seen, Gentlemen, the Account of the Drummers 2 Bushells Wheat in the paper produced by the Commissary. You have likewise seen that instead of 2 Bushells Maize given to him he is indebted 6 Bushells. This man, Gentlemen, I employed when he was starving and I gave him a piece of Land to built a house on which he sold afterwards for, I believe, £12 or £14. such is the Return. With Respect to Colonel Grose and Major Paterson I do solemnly declare I never spoke disrespectfully of either of them. I have been uner obligations to them, I have a Respect for them, for they are real Gentlemen. As to my drinking with him, it is unworthy my notice. I treat it with that ineffable Contempt it deserves.

Horton’s 2 Bushells paid me for the Crop and he is indebted to Government 4 Bushells.

The next Evidence is Mr. A. Hume. He says that Mr. McArthur pressing him for a Debt he came and asked me to assist him. At that time my Note payable to Mr Hume was in the Commissary’s hands placed there by Mr. Hume himself. I told Mr Hume that I had 100 Bushells Wheat in the western part of the granary, that he might have that provided he would return it in a few days and that he might go to Mr Broughton and acquaint him with it. He did so, got Credit for it and paid Mr McArthur who otherwise would have retained or Claimed a Mare and foal of considerable more value than the Debt. This good natured action was an heinous sin in the Eyes of Mr McArthur as every good action is. Mr Hume to return the Wheat as he had promised, borrowed it from Ridout. It was carried to the Store and with some other Wheat measured by Mr. B. I thing 224 Bushells. The voucher was signed by me and I had credit with Mr. Williamson for it. What Mr. Harris in the Iniquity of his heart can make of this Transaction a humane one on my part, I know not, but he is welcome to it.

With regard to Serjeant Akin his Conversation with Mr. Hume I neither know nor care about. Let Mr. Hume stand or fall by his own actions. I shall only observe that had there been a Defalcation of 5000 Bushells in the Store it was nothing to me. Mr. Harris was the Storekeeper, he kept the keys and let him be answerable. Mr Harris’s mean attempts to get my note into his hands by offering Mr. Akin Property or even Dollars, that Jewel of his Soul, is really too contemptible as well as infamous, because it was intended for an infamous Purpose, and yet this man can call and think himself a Gentleman.

Gentlemen, Mr. Williamson the Commissary’s Evidence and the Pat[deletion] has produced has[?] [45] I hope satisfied the Court that I had His Excellency’s Permission to borrow the wheat from McDonald, that I had given Credit to the Store for Drummer’s 2 Bushells, that Horton is still indebted to Government the Wheat he borrowed and that instead of my giving Drummer 2 Bushells Maize he is indebted to Government 6 Bushells. But, Gentlemen, before I close what I have to say respecting Mr. Williamson’s Evidence permit me to remark that if Evidences are not left to the free operation of their own minds but are to be hurried and asked improper impertinent Questions for the sole purpose of destroying that freedom, if that is to be the Case, Truth can never be got at. That that was the Case is evident as from day. Honest Indignation cannot always bear Insolence as coolly as deliberate Villainy. The Insinuation that Mr. Williamson was capable of going to the office and alter a Figure is only worthy of the envenomed Tongue that uttered it.

The last Evidence, Gentlemen, is Mr Broughton, Store Keeper at Parramatta and I thank Mr Harris for having called him. His Evidence is too recent in your minds for me to make any Comments upon it, I have already trespassed too much on your time, I shall therefore only observe that Mr. Broughton throws aside all the least shadow of Doubt respecting any improper Conduct of mine in His Majesty’s Stores. No, Gentlemen, no such Imputation can rest with me. I shall leave you in full possession of that Evidence.

Having now gone through the whole or at least the most material parts of the Evidence produced, let me ask you, Gentlemen, has this Enquiry on the part of the Defendant been carried on with all the Coolness and Deliberation that ought to characterize judicial Proceedings? Has it not on the Contrary been all accompanied with all that abuse and Invective worthy of so bad a Cause? Is not the Cloven foot of Party Combination and Conspiracy seen through every stage of it. Gentlemen what has it proved. I can answer in one word “nothing” but if anything only this, that I am something in Debt. This I the full “scope and front of my offending” and what is this to Mr. Harris. Gentlemen there are few persons whom pursuits in life will in every point of view bear the strict Test of Enquiry. All have their failings “humanum est errare”. If, Gentlemen, Mr. Harris seeks for an immaculate character free from foibles and weaknesses, he seeks for what is not to be found. I never set up a perfect Character and to be exempt from the weaknesses of our nature. I was ever more nearly allied to the Epicurean than the Store. I may have prolonged the convivial hour too far, I may have as large a Share of those Infirmities “Flesh is heir to” as any other person, even as Mr. Harris, but if defy him or any other man to brand me with the Epithet he has dared to do. Pleasure may have been my pursuit and Pleasure I may have obtained at too high a price, but I never broke in upon the peace of others. I never defamed the fair Character of any man nor did I ever oppress the poor and needy for sordid Lucre. Let Mr. Harris say as much and let this Colony bear testimony to it if it can.

It is unnecessary for me, Gentlemen to say any thing respecting Mr. Harris’s quotations of Law. The Judge Advocate will no doubt lay before you and explain those parts that are applicable and affect the present Question. It would be arrogance in me to assume that Province which so particularly belongs to the Judge Advocate, but, Gentlemen, if the paper ready my Mr. Harris to this Court and now in your Possession is not a gross Libel, I think Blackstone nor any other Lawyer can know what a Libel was.

With respect to Mr. Harris’s assertion that His Excellency the Governor offered to come forward before a Criminal Court to give a Character to a Felon when he refused to appear at a civil one in support of an Officer, I shall only observe it is a bold expression. This I am certain of that by the Laws of England all persons are reputed Innocent until found Guilty and no man is a felon, until convicted of Felony.

Gentlemen in this Enquiry I consider myself as having been grossly insulted in my official Capacity as a Magistrate, but had I only been a private person Mr. Harris has failed in his Justification, therefore in that Case I should have been entitled to your verdict. But Mr. Harris has aggravated his Offence, I therefore hope, Gentlemen, you will not only give a Verdict in my favour but proportion the quantum of Damages adequate to the high Crime he has committed that it may teach him in future to abstain from making use of such opprobrious and high disgraceful Expression.

I hope, Gentlemen, I have treated this Court with all due Respect and that I have not assumed an arrogant or dictatorial manner. I could wish to be dissimilar in most things with my opponent.

[46] Gentlemen in this arduous Task I have had no assistance. I have not had the advantage of great Talents and high professional abilities. Mr. Harris has. I therefore hope that what I may have been deficient in, your Goodness will supply.

The Defendant arose to address the Court but was informed they could not receive any further observations on either side.

[1] Richard Atkins, the second Judge Advocate in the colony, had a poor reputation. His opponents emphasised his frequent financial difficulty and his trouble with alcohol. As this case shows, he was a member of a well known English family, and was the brother of Admiral Bowyer.

This case is an early hint of the escalating tension which ultimately led to the military coup against Governor Bligh in January 1808. The action was brought before Richard Dore, the third Judge Advocate in the colony, who was in office from 1798 until his death at the end of 1800, when Atkins resumed the role.

Defamation actions were frequently brought in the Sydney courts in the first 25 years. Like this one, they were often very long trials.

For discussion of this case, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 30-33.