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[assault – courts, operation of, in rebel period – Bligh, Governor, rebellion against – magistrate, action against – passenger on ship – evidence, self incrimination – ship, relationship between master and owner – perjury – criminal procedure, punishment without trial] R. v. Blaxland, Blaxland and Lord Court of Criminal Jurisdiction Grimes A.J.A., 28 March 1808 Source: Historical Records
of (Despatch per whaler Brothers: Major Johnston to Viscount Castlereagh, date?) Proceedings at the Trial of John and Gregory Blaxland and Simeon Lord [461] 28th March 1808. } Proceedings of a Court of Criminal Judicature held by virtue of a Precept under the Hand and Seal of George Johnston, Esquire, Lieutenant Governor of his Majesty’s Territory of New South Wales &c. &c. &c. The Acting Judge Advocate. Members: Captain James Symons Lieutenant Will Moore Lieutenant C Draffin Lieutenant John Brabyn Lieutenant Thomas Laycock Ensign A. Bell Precept read, and Court Sworn. John Blaxland, Gregory Blaxland, Esquires, and Mr Simeon Lord Brought to the Bar (the following) Indictment read: “ County of John Blaxland, Esquire; Gregory Blaxland Esquire; and Mr Simeon Lord, Merchant, Severally stand charged that they on the nineteenth day of March One Thousand eight hundred and eight in the forty eighth Year of the Reign of our Sovereign Lord George the third with force and Arms on board the Ship Brothers, then lying in Sydney Cove in the County aforesaid in and upon one Oliver Russel, Master of the Said Brothers in the Peace of God and our Said Lord the King, then and there being did make an Assault on the person of the Said Oliver Russell, and against the Peace of our Said Lord the King His Crown and Dignity.” Plea not Guilty Mr Oliver Russell Sworn, Produced the (following) Papers No. 2 and 3 read. “ On the Prosecution of Captain Oliver Russell Mr John Blaxland, Mr Gregory Blaxland, and Simeon Lord, Gentlemen, I beg leave to address you and to represent that on Saturday the 19th instant I was in command of my own Ship; when between two and three in the Afternoon of that day, the above named Parties came on Board, and Mr John Blaxland, a part Owner, informed me that he had brought his Carpenter on board to view the accommodations he was to have in his Passage to England. On the approach of the Parties, I waited on the Gang way in Person. I received them with respect, and they were introduced on the Quarter Deck; when Mr J. Blaxland talked on the Subject of his accommodations. I told him in Answer to his request of occupying the Cabin and my Sleeping Room, that I would expect, if He did So, to be paid for the Same. Gentlemen, from the mild conduct I have pursued, I could hardly expect the violent, outrageous, and unwarrantable Assault that ensued by Mr Gregory Blaxland, Seconded by Mr J. Blaxland, and aided, Abetted, and Assisted by Simeon [462] Lord. Now, Gentlemen, as it is necessary to describe the nature of this Assault I will do it in distinct words to be Substantiated by proof; and, I trust, that preferring a Criminal prosecutions to a Civil action for damages will clearly evince that my motives were not of a pecuniary nature, but merely a determined resolution to resist So unwarrantable an Assault upon my Person, when on board of my own Ship, which, according to the Law, is my Castle; and in consequence of the Steps, Language, Outrage, Assault, and unjustifiable conduct pursued by the Persons now before you, have I acted as the Law would justify, the consequences would have been dreadful; and I ought in justice to myself to have acted with that Self-preservation which allows the most powerful Resistance. Gentlemen. It is not my intention to animadvert upon the Testimony given before you; because that painful Task I confidently Trust will be performed by yourselves; and in order to avoid Prolixity, and Circumlocution, and in the undoubted faith of this Arduous undertaking being performed by you, I will commence with Stating to this honorable Court, that a Man's life and Person is to be protected against Assault and Batteries, and every violence either by desperate or common Invaders. The law particularly expresses "That if any Person in Anger lift, or Stick his Arm and merely offer to Strike another, or menace any one with Staff or Weapon, it is a Trespass and assault in Law; and, if a Man threatens to Beat another Person, or lye in wait to do it,– If the other is hindered in his business, and receives loss thereby, Action lies for the Injury." Lamb B: I, 22 aff. P.C. 603. Now, Gentlemen, it will appear to you in Proof, that this wanton Assault, this outrageous act, this violent Breach of Peace, was committed under and by direction of a Justice assigned to Keep the Peace, and to prevent any breaches of it. How far his conduct will escape the discrimination of the Law, You, Gentlemen, will best determine, and, Gentlemen, you will further find, that one of the parties, Mr Gregory Blaxland, who first commenced the affray accosted me in a most opprobrious Language, and then collared me, for a pretended Insult offered to His Brother, Mr John Blaxland; as Magistrate he, Mr John Blaxland, also collared me, regardless of the Oath he had taken as a Magistrate, as a Conservator of the Peace, and the duty he owed to Society, as Evidence will prove to you. Gentlemen, I have not the temerity to Sport or attempt to trifle with the Court; nor have I wish to tresspass on your time unnecessarily. But from the before cited case, I have no doubt, under the Proof to be adduced, that Lord will be found to be the principal aggressor. Gentlemen, I beg leave further to recite to you by Law Authority "That any injury whatsoever (be it ever so Small) being actually done to the Person of a Man, in angry or avengeful Manner, or rude or insolent manner, as by Spitting in his face, or any ways touching him in Anger, or violently jostling him are Batteries in the Eye of the law." I. Hawk: P.C. 263-4. From this very particular Act, Gentlemen, and the Proofs to be adduced to substantiate the charge, there is not the smallest doubt but that the Parties before you as Defendants will be found Guilty, as they are all Men of opulence; and, if they had not known better, had it in their power to be better advised. [463] Now, Gentlemen, I further crave leave to observe That for an Assault, "The wrong doer is Subject both to and Action at the Suit of the Party, wherein he shall render damages; and also to an Indictment at the Suit of the King; wherein he shall be fined according to the Heinousness of the offence." I. Hawkins 263. On this Statute, Gentlemen, I am conscious that from the Strength of evidence to be adduced in Support of the Prosecution, the charge will be substantiated manifestly and incontrovertibly; and I will refer with Submission to the 6 Geo. 2 c. 23, s. 17 wherein the whole of this business is explained; and the Punishment for such an offence annexed: and in order to be correct, I will refer to I. Hawk, 133, where it is particularly expressed, that every Battery includes an Assault. But for the Satisfaction of your minds, I will refer Submissively to 3 Salked 46. You will also find that the person is justifiable in every possible means of resistance, when an Assault and Battery of another is effected, or attempted, by Threat, Menace, or Assault; or attempt to beat him from his lawful Watercourse or highway. From what has been stated, Gentlemen, You will naturally admit that I acted with So much deliberation and Calmness on the day of Assault, as to exclude every presumption of impropriety on My Side, and consequently, to preclude the Possibility of a Plea in justification of the Defendant’s Conduct, from provocation, or any other Cause. Many Men in my Situation would have acted far otherwise and the first Law of nature strengthened, Admitted, and confirmed by the British Laws, would have justified every Means of resistance upon my part. And had a fatal consequence unhappily issued the Prosecutor would have been Saved harmless by the Law; but how different the consequences to the Defendants. It is an established Maxim, Supported on the Authority of Blackstone 3–12–0 that any Person going into the House of another, and will not leave it, That the Owner is Justifiable in turning Such Person's out. Here, Gentlemen, it becomes necessary to claim Your attention, when you find, that as a lawful Commander of the Ship Brothers, that, that Ship is my Castle, where every Infringement where every outrage, that malice could invent or Strength and Power effect, was committed on my Person in direct violation of what Law prescribes, and a Conservator of the Peace or rather to Prohibit than promote. Gentlemen, Pardon my presumption, when I observe, that I trust I have not inserted one Single title, but what will be clearly proved to your Satisfaction. Now, Gentlemen, I will crave permission to lay before you the particular Purposes, and the ground on which the whole of this business hinges. It originates from the Machinations of my Chief Officer Mr Hazelburg, and I have not the smallest doubt it will appear to you the most wanton Persecution that was ever Sett on Foot. Because the Magistrate, Mr John Blaxland, as part Owner, instead of supporting me in the Execution of my duty as commander of the Ship Brothers has thought proper to encourage that Officer in Acts that are really too disgraceful for a man Supporting the name of a Magistrate to take Cognizance of: Inasmuch as the Said John Blaxland has encouraged and Cherished that Officer to Answer certain private motives he may have entertained; and that Such officer had rendered himself far from trustworthy by His misconduct on board the Vessel under my command. But to explain, [464] Gentlemen, the repeated acts of misconduct exhibited by Mr Hazelburg both ashore and afloat, and which can and will be Satisfactorily proved by Evidence, caused me to confine him, which step I did not take until the Ship’s Safety was absolutely at Stake. On one occasion (amongst many others) he in a state of inebriety Set the Vessel on fire – On many occasions he has exhibited Similar tokens of disregard and Intoxication, He has likewise repeatedly endangered the Ship’s Safety by acts of misconduct which have called loudly for my Censure, as from a reference to my Logg Book will fully and explicitly appear. Gentlemen, do you not consider as Men of Honor that I as Commander of that Ship and as a Man of Integrity had a right So to dispose of Mr Hazelburg as to prevent his further endangering the Vessel? Surely! and had not Mr John Blaxland thought otherwise, perhaps this violent Aggression never would have pressed on your attention. In every act respecting Hazelburg, Mr John Blaxland has evinced the Strongest attachment to a man who had in So many instances proved himself unworthy of the Situation of an Officer on board. What could be the cause of this ? Could he continue in his Situation so dangerous a Man? Considering likewise that Mr Blaxland as Owner and resident Agent in this Colony, should have been convinced of the necessity which induced me to Suspend him from the duty of an Officer; although I nevertheless extended him every former Indulgence. Gentlemen, there is nothing more or less than a undeserved, though rooted Enmity on the part of Mr John Blaxland that has caused him to act in this highly improper manner; and he has uniformly evinced a determination to Support that Man, and to render him Subservient to his Private Views against the Prosecutor, whose removal from his command, and ultimate destruction are unhappily the objects of Mr John Blaxland's inclination. Gentlemen, I beg leave to call your attention to a Letter from Mr John Blaxland, the then Magistrate, dated 2nd March 1808 and of which the following is a Verbatim Transcript. "Sir, "In consequence of your repeated misconduct, I am induced for the benefit of the other Owners concerned with myself to dismiss you from the Command of the Ship Brothers, and I do desire you to give up the Command accordingly as I do not after what has happened conceive it safe to trust the Ship to England under your care – Should you refuse to comply with my desires on this business I shall proceed against you on the following charges: [Here followed a copy of the twelve charges made against Oliver Russell…, with the addition of the following fifth civil charge.] "5. Full leaving the Sealing Ground with Salt Sufficient to have cured 3000 Skins, and having plenty of Provisions Water and Wood in the Ship. "John Blaxland "Mr Oliver Russell, a Commander of the Ship Brothers." After the Perusal of this Letter, it would be almost unnecessary to trespass on your time or Patience by a recital of circumstances corresponding with this. By which you will find, that the utmost Threats, menaces, and every oppression has been attempted to be practised against me. From this Letter it must appear, That unless I would give up the Possession of the Ship under my command, I [465] would be tried, first for five Criminal charges stated in the foregoing Letter, five Charges to be exhibited by Civil Actions, two charges for Fraud, and at least one for contempt to Mr John Blaxland. Gentlemen, on a perusal of this Original Letter, I am truly confident that all the Paint and Oil in the 3rd Charge will not be Sufficient to give this Letter that black complexion with which it was intended. Here the Cloven Foot is discovered. Criminal Charges were to be exhibited, because It was the determination of Mr John Blaxland to dispossess me of the Command of the Ship Brothers for purposes justifiable to his own mind; And, Gentlemen, you will discover, that provided I have complied with that threatening Letter, he was well disposed to drop those Criminal accusations, which was tantamount to compound Felony. On the Civil Charges very little comment is required
for this reason, If Mr John Blaxland had effected
his purposes by condemning me before a Criminal Court, a Gentlemen, it must be obvious to Your discernment, that I have the most Serious Complaint that Law can point out against all the Parties, as common Invaders under Colour of Magisterial Authority; and that the Act has been perpetrated by a Magistrate, who over acted his Authority, and two Coadjutors who derived their Sanction from an illegal Power, and confirmed the act of imperious and premeditated oppression and Injustice which in a Magistrate are not less punishable than in any other man; but surely the reverse, as it was incumbent upon him to protect the Subject rather than invade his liberties. Gentlemen, it is admitted a legal Maxim, that the intention of a crime must be constituted by Some accompanying Acts under Such intentions and by the threats held out to me it will appear in the clearest light by adverting to the Letter No. 3. I am threatened with numerous Charges Criminal as well a civil, all of which are calculated to stab my reputation, and procure my ruin, But this Instrument may prove much more consequential than my Persecutors are aware of. I beg leave to state to you Gentlemen, that in order
to complete my destruction, Mr John Blaxland employed the Printer
to prepare Public Notices for the express purpose of overwhelming
me in all the misery and distress he or his associates could invent;
and in order to convince you of that intention, I beg leave here
to recite the Notice so drawn up and prepared by Mr John Blaxland;
and [466] which is in the following Words: "Notice – Whereas
Mr Oliver Russell, Master of the Ship Brothers, has by Letter bearing
date the 18th Instant, threatened to draw Bills of Exchange on the
Credit of the Said Ship, of which I am part Owner and acting Agent
in this Colony. This is to caution the Public against receiving
or negotiating any such Bills, or any other Bills drawn on the account
of the Said Ship, without my approbation as they will be protested
in Now, Gentlemen, let me impress your minds with the consequences attended on So glaring and daring a Notice. Has it not been calculated and intended to depreciate my Character, and to all intents and purposes ruin my credit, Can it for a moment be Supposed that any responsible Individual in the Colony would advance me one Single Shilling. No. It could scarcely be believed. But the intention is clear. It was determined right or wrong to dispossess me of the Command of the Ship Brothers. When found impracticable by exhibited Criminal Charges, It was then plotted that no debts would be paid by the Owner, and consequently that I must be immured in the dreary confines of a Gaol which would give the last grand Seal to their intentions. It is further to be observed that such Public Printed Notice is a complete Libel, and must evidently tend to render manifest the Union of effort that has been employed to my Injury by Mr John Blaxland and the other Defendants ultimately to Stamp upon the Transaction that has given rise to this Prosecution, its full and Specific Import, as being the effect of premeditated malice, garnished with all the Circumstances of Perfidy and oppression. Confident that from my Profession in Life I could not be considered as experienced all at all conversant with the routine of legal procedure, and that it consequently behoved me in Justice to myself to employ a Person whose capacity herein was more extended, I made my Election of Such Person who was immediately Subpoenaed by the Defendants, with no other obvious intention than to deprive me of his assistance certainly, every Man who considers himself in dangerous circumstances may be excused for endeavouring to avoid his danger. But strange as it may appear, Gentlemen, when I have submitted to this one Essay of Chicanery, and had made election of a second Person, as my Assistant before this Honorable Court, Scarcely had we exchanged a Sentence on the business, before a Subpoena was likewise Served on him at the Defendants’ Summons; and this Second act was certainly convincing, that the Perversion of Justice was more the Defendants’ object than the Evidence of the Parties. Gentlemen, I vouch to prove all I have asserted; and I am conscious that your exalted Sentiments of honor. Truth, and injustice will by an impartial verdict Secure the Safety of a Commander against The future attacks of a Body of interested Persons who have conspired to destroy him; and at the Same time, by Such an Instance of your Justice convince the World. that Rank and affluence are alike incapable of influencing Gentlemen, who are Men of Honour by Character and Profession; that you are capable of dispensing with every relative Consideration of Circumstances between Man and Man, and that the exalted Criminal who dares infract his Country’s Laws, Shall at the Same time draw upon him their disgust, and lead only to your most revered Consideration, the measure of Punishment ought in Justice to await the crime. [467] Gentlemen, You are well informed that in preference to Indictment at the Suit of the King, I might by a Civil Actions have Sued for Pecuniary compensation for the Injury I complain of. And I trust, Gentlemen, that the mode I have adopted will Sufficiently evince my disinterestedness, and confirm my Declaration, that it is for the love of Justice I prosecute. That Mr John Blaxland is a part Owner of the Ship Brothers (under my Command) I am ready to acknowledge as He likewise must do that I have ever respected him as such While it was nevertheless incumbent on me to consider myself as Commander of that Ship, and by no means open to any control exceeding that of an Agent, as I do not know Mr John Blaxland himself in any other relative Capacity. Whereas my Instructions which are fully comprehensive, vest in me Such powers that are far Superior to any that can be claimed by virtue of any Agency whatever. Mr Gregory Blaxland, and his Coadjutor Mr Lord, have in this instance likewise taken false refuge; and will I trust as non accredited Persons, acting without any Species of authoritative right, received Such Judgement as in Your impartiality shall be esteemed their due. Gentlemen, Permit me to offer to your impartial View the unaccountable conceptions which Mr John Blaxland must have entertained of the Powers vested in the Sacred Commission of a Magistrate; as a Conservator of the Peace, that Gentleman was empowered by every means within the extent of his ability to preserve the Peace, and to Summon every legal aid in his support therein, but how far perverted have his notions been! in his own behalf, it was his fond belief, that he could exercise his Powers in every Situation, without considering some little change of Process, necessary to be observed on Ship board and on Shore. But this Magistrate, considering the Authority derived from his Commission as paramount to any other Species of authority, with a Temerity approaching turpitude itself placing himself at the Head of two Persons, who had not even been admitted into the Sydney Watch, in a daring tempestuous Manner, laid violent hands on the astonished Prosecutor, While Simeon Lord, like the renowned Bobadil, danced round him with a brandished Cane. Gentlemen, I shall no further trespass on your Patience than to state you, among other Practices, The Evidence for the Prosecution will leave no doubt on your minds thatt Mr John Blaxland notwithstanding his Worshipful Authority has either directly or indirectly endeavoured to influence the testimony of the Seamen of the Ship Brothers, by the exhibition of threats on the one part, and of promises upon the other. He has likewise, by virtue of his own authority procured a Survey to be made of the Ship Brothers, which is little short of a violation of a right vested in the Lieutenant Governor only; and committed innumerable other extravagancies, which prevent the possibility, as the Prosecutor must conceive, of His escaping Justice except upon the plea of Lunacy; for a previous Survey had actually been taken by order of the Lieutenant Governor, without whose authority it became a violent Trespass on decorum and contempt of the first Authority. Gentlemen, I will also prove to you that the very moment previous to the Commission of this outrage upon my Person on board my Ship I had received the Defendants in the most polite and hospitable manner, but that they, intent upon the mischief, used every opprobrium in order to irritate [468] my temper and give colour to their design; that the Defendant, Lord, who had no business on board that Ship, had the contumacy to apply the Epithets of Thief, Rogue, and Damned Cowardly Scoundrel to the Prosecutor; that the Prosecutor’s Teeth were threatened to be driven down his Throat by Gregory Blaxland; that both the Defendants (Blaxlands) attacked and violently pushed and drove him from the Mizen Mast to the taff rail while the Prosecutor was in momentary expectation of a Statute from the impending bludgeon of Mr Lord. That the Defendant John Blaxland, commanded the Ship’s Company to leave their duty wherever they might be stationed, and come forward in order to assist him in binding the Villain Russell; but that the People, who bore evidence to the illiberal deportment of the defendant, John Blaxland, declined complying with that order, by reason of their utter disapprobation of his Conduct and their extreme concern for the Prosecutor. That upon the evening of Thursday the 17th instant the Defendant John Blaxland, was applied to by some of the Seamen for Money on account, and received the answer that he would be on board the next day to take possession of the Ship; when he would Summoned the Ship’s Company aft, and if they Sided with him and obeyed Such orders as he would then give, they might have whatever Money they might want: But upon their non-compliance, they should not have any Money; and moreover, that he would not stop their Wages in Great Britain. That Simeon Lord did actually declare that "if Justice was administered in New South Wales, the prosecutor would be hanged" and that He was in other respects not only privy to the assault, but the most opprobrious of the Assailants, and in fact too a very principal in the act itself in promoting, encouraging, aiding and abetting therein and at the same time blinding with his heterogeneous Consequence a number of legal precedents to Justify their unwarrantable acts; That the Prosecutor, after having in the first instance hospitality received the Defendants without any Species of Provocation Submitted to their Invectives, and with a degree of Patience Scarcely to be imitated, Chose rather to put his trust in the Laws of his Country, than to Suffer any momentary Impulse to get the better of his Temperance; and that after all these Injuries So cool and so deliberate was the Prosecutor in his own Acts that after this very unfriendly treatment, he had received from the Defendants. He ordered a Boat to be manned for their accommodation when they were ready to go on Shore. That the Defendant, John Blaxland, had actually attempted to excite the Ship’s Company to Mutiny, by declaring to some of them that in consequence of their obedience to his orders should they be sent Gaol, he would Support them there, and go hither with them himself. Gentlemen, as Prosecutor in this Serious Charge against
the Defendants, I have exhibited my Complaint to your impartial
View. The circumstances of the Case I have thus respectfully laid
before you. As Englishmen, I know you Enemies to oppression, as
Men of Honor, I know you susceptible of those Most respectfully, &c., Oliver Russell [469] To The Honorable Court of Criminal Jurisdiction, &c., &c., &c., Mr Oliver Russell respectfully begs leave to State to this Honorable Court – that he hath Occasion for the Assistance of Some Person more conversant than himself with the routine of legal Procedure to aid him in Support of his Prosecution; and did therefore make Election of a Person to whom he confided all the relative Circumstances of his Case: But that in order to deprive him of Such necessary assistance, the Person to whom he herein alludes has been Subpoena’d to give Testimony on the Defendants’ Side. That Supposing himself of necessity obliged to dispense with Such Assistance, he did make application to a Second, and he has also been Subpoena’d, with no other possible view than to preclude the possibility of the Prosecutor’s conducting his complaint in legal form. He therefore beggeth leave to urge it as a Maxum of British Law, that an Agent cannot be examined against his principal because he is bound to keep his Secrets; Secondly that the Defendants cannot of right demand that their Evidence should be examined apart, But crave it as an Indulgence which the Court may grant, an Application, which in the present instance would be highly injurious to the Ends of Public Justice. The Prosecutor therefore Prays that he may be permitted Such Assistance and that if the Testimony of such Assistant be really necessary to the Defendants’ Case, the Prosecutor may likewise have the Privilege of his Evidence, and that he may be admitted at His first Evidence before this Honorable Court Albeit that the Defendants may have the benefit of their Cross Examination and the Prosecutor have the benefit of his assistance afterwards. Most respectfully, &c., Oliver Russell. March 28th, 1808. Question by Defendant Lord. At what time and place was it that I shook my Stick over your Head; and demanded as you say whether you would comply with Mr John Blaxland's request to accommodate him with what accommodation he wished, as he was part Owner and Super Cargo and would go home Commander of the Ship? Answer. On the afternoon of the 19th Instant on the Quarter Deck after being Seized by the two Mr Blaxland's and forced against the Fife Rail you stood before me with a lifted Stick and repeated the words as before Stated and threatened on my non-compliance to cut me down or knock me down. Question. Who was present? Answer. Mr Daniels acting Chief Officer, James Roof Cooper, the Carpenter, the Cabin Boy, and Elizabeth Guest. Question. Was John Goodsold nearer than the Carpenter or Cooper? Answer. I did not see him at that time. Question. Was it before or after Elizabeth Guest came out of the Cabin. Answer. She was standing on the Cabin Gang way ladder. Question. Was Henry Purdie the Cabin Boy on Deck at the time? Answer. He was standing in the Gang way with Elizabeth Guest. Question. Where was Mr Daniels standing at the time? Answer. Endeavouring to extricate me from the two Mr Blaxlands. Question. Did you not when Mr John Blaxland and myself came on board the Brothers with Captains Bunker and
Smith to Survey the Ship Brothers to ascertain if she could carry
more Skins inform Mr Blaxland that If he would let you know who
was going to [470] Answer. I did. Question. Did you make any terms for the accommodation he might want? Answer. No. Question. Was there any conversation about what Sum was to be paid? Answer. No. Question. Was there not an allowance made for a certain quantity
of Water to be put on board for the use of four Persons who are
to accompany Mr Blaxland to Answer. There was room reserved for Water for extra Passengers and Stock. Question. Did not Mr J. Blaxland on coming on board the 19th ask you why you would not receive the Skins on Bord according to the Report of Survey? Answer. No. Question. Did you not ask Mr J. Blaxland would cabin he did want? Answer. No. Question. Did not Mr J. Blaxland point out to you that he wished to have the Cabin on the Starboard Side, and did you not reply that if he had that Cabin and half the great Cabin he should pay for it and then to go home as a Passenger and further that unless he behave properly he would confine him to his Cabin and if after that he continued to behave ill you would put him in Irons? Answer. The Starboard Cabin was pointed out and I informed Mr Blaxland that if He had that and half the great Cabin He should pay for it, and that He should go as Passenger only. I made use of no threats. Question. Was you asked what you wanted for the State Room – and that as He could mess with you he did not wish the great Cabin to be divided? Answer. I do not recollect the Conversation. Question. Did you not before Mr Ellison came on board say you would be paid £ 200 down before Mr Blaxland came on board and that he might have half the great Cabin? Answer. I recollect such Conversation taking place after Mr Ellison came on Board, but do not recollect any Conversation on the Subject prior. Question. Was you not immediately
informed that Mr Blaxland would not comply with your terms, and
that he required you to point out his accommodation as part Owner;
that he might set his Carpenter to work, and that if there was anything
to be paid from his Passage it should be Settled with the Owner
in Answer. I do not recollect any such conversation. Question. Did you not then Say, that I suppose you are come to tie me to my Cabin and take my Ship from me as you threatened to Mr Daniels Yesterday? Answer. Such Words might have passed, as I was informed by Mr Daniels that such threats had been made. Question. Did you not on Mr Blaxland and myself denying making use of any threats to Mr Daniels call us both Liars and Say that you would prove it? Answer. No. Question. Was not Mr Daniels called from the Cabin and asked if Mr Blaxland or myself had made use of any threats of tying you and did not Mr Daniels deny having given you such information? Answer. Yes. [471] Question. Was you not immediately informed of the Words made use of to Mr Daniels Vizt. that Mr Blaxland had said if Captain Russell continued to behave as improperly as He had done, that he should take all legal means in his Mr J. Blaxland's power to confine him to his Cabin and take him home a Prisoner; and that if He could not get Authority, that he should (as Owner) appoint another Captain to that Ship before the Judge Advocate, which he Mr Blaxland considered he had Authority to do without consulting any Person? Answer. No. Question. Did you not reply to Lord I like to hear Gun fart "and that I wish I had a Billy Goat to beat Mr J. Blaxland" go home and sell your Milk and Cabbages and not interfere with my Ship making use of violent Guistures at the time by striking the Companion and Boom with a Rope? Answer. The conversation did take place, and in consequence of abusive Language made use of too me. The threat of the Billy Goat I cannot recollect but it might have happened. Question. Was it not in consequence of the above Language that Mr Gregory Blaxland said that they had come on board to ask civil Questions and that they expected civil Answers, and not abuse? Answer. No. Question. Did you not immediately advance as if going into the Cabin, or to meet Gregory Blaxland and did not John Blaxland step in between you to prevent any quarrel? Answer. Mr Gregory Blaxland advanced to me and took me by the Shoulder and shoved me back on the Fife Rail, when Mr John Blaxland caught hold on my other Shoulder. Question. Did I (Lord) on Mr Daniels going out to rescue Captain Russell say that they were not going to hurt Mr Russell but to prevent his going into the cabin to fetch Arms? Answer. I do not recollect. Question. Was it at the time Mr Daniels came up to you and the two Blaxlands had hold on you that I lifted up my Stick and threatened to cut or knock you down, and made use of the Conversation he had before Sworn to? Answer. Yes. Question. Was Elizabeth Guest standing on the Cabin Gang way at that time? Answer. Yes. Question. Did I not sit on the Starboard Railing or Stand close to the Mizen Shrouds from the time that the words ensued between Gregory Blaxland and you and that you was collared until Elizabeth Guest came out of the cabin and attempted to scratch John Blaxland? Answer. No. Question. Did I Not on Elizabeth Guest coming out of the Cabin and laying hold of John Blaxland quit my situation on the side of the Ship and advance to her and raise my Stick at her, and tell her she had no business there and called her a damned Bitch? Answer. No. Question. Did you not desire her to be gone and on doing So did I not return to the Side of the Ship? Answer. No. Question. Was I not close to the Side of the Ship when the two Blaxlands lett you go on condition of your getting no fire Arms? Answer. You were sitting on the Fife Rail. [472] Question. Did you not go into the Cabin and bring up a Stick and Elizabeth Guest follow you on deck to prevent you making use of it and did you not say on your return to the Deck that you had brought a Stick as Mr Lord had one and you had nothing else to defend yourself with? Answer. I did bring up a Stick, and Said I had as much right to wear a Stick as any Person on board as I was Commander of the Ship and that S. Lord replied You are a damned Coward or you would make use of it. I do not recollect if Elizabeth Guest followed, but Soon after I ordered her blood. Question. On your Saying that you had nothing but a Stick to defend yourself with did I not offer you my Stick to keep during my Stay if you was afraid of it, say that I knew better than make use of it on board the Ship? Answer. You offered me your Stick, but I declined receiving it Saying I had a Stick on my own and knew how to make use of it when I thought proper. Question. Did you make any complaint to Lieutenant Ellison when he came on Board of you having been Assaulted? Answer. I do not recollect making any complaint to Lieutenant Ellison. Question. Did not Mr Gregory Blaxland on Mr Ellison coming on board say that he had taken the liberty of sending for him to keep peace and be present until his Brother asked Captain Russell some civil questions as they could get nothing but abuse, instead of civil Answers? Answer. Conversation to that purpose took place. Question. Why did you not at that time complain to Lieutenant Ellison of your having been assaulted, instead of taking us into the Cabin to settle about the terms of Mr J. Blaxland's Passage? Answer. I thought it would be more regular to make a complaint before a Magistrate on Shore. Question. Did Mr J. Blaxland at any time that he was on board say that he was a Magistrate, or that he was acting as a Magistrate that day meaning 19th instant? Answer. No. Question. Did you not on my going over the Ship’s Side desire me if I ever came on Board your Ship again to leave my Stick on Shore, and did I not offer to leave it then with you, until the Ship Sailed if he was afraid of it? Answer. I desired you to leave your stick on Shore if you ever came on board my Ship. You replied you was in the Habit of wearing a Stick and was ready to meet me at any time on Shore, but he did not offer to leave it on board. Question. Did you not on my offering you my Stick Say that you had one of your Own, and that you would make use of it when you mett me on Sure? Answer. No. Question. Did you not before you went to complain to the Magistrates See John McArthur Esq and receive advice to make an Affidavit to that effect, that you did? Answer. I did See Mr McArthur and believe he advised me to go to the Magistrates to make a complaint (the following is a Copy). "Captain Russell of the Ship Brothers came before the Bench and complained that John Blaxland Esq Mr Gregory Blaxland and Mr Simeon Lord came on board the Brothers this Day and after using very provoking Language Mr Gregory Blaxland Seized him [473] by the Collar on the left Side when Mr John Blaxland seized him on the other Side whilst Mr S Lord Shook a Stick over his head and demanded whether he would comply with their request to furnish Mr J. Blaxland with what accommodations he wished as He was Owner Supercargoe and would go home Commander of the Ship – That Captain Russell requesting to be liberated was let at large on conditions of not making use of any Fire Arms, on any pretence whatever –with much other violent Language. "Sworn before us this 19th March 1808 and 22nd do. "(Signed) J Harris “Thomas Jamison "Oliver Russell." Question. Was the Letter produced dictated by Mr McArthur Vizt.: "Mr Blaxland. "Sir, "I received your Letter of the 2d Instant Requesting me to give up the Command of the Ship Brothers of London now lying at Anchor in Sydney Cove. In answer to which I am Sorry to Say: in doing Justice to my Employers in England I cannot Submit to any Such order; therefore take such Steps as you think proper and acts accordingly. "Respectfully Yours, "O. Russell, Commander Ship Brothers. "Sydney Cove, 2d March, 1808." Answer. No. Question. Did Mr McArthur advise you to write the Memorial Produced? Answer. No. Question. Do you Swear that neither the Letter or Memorial above alluded to were dictated or advised to be sent by Mr McArthur? Court cleared at the request of the Prosecutor on the propriety of Answering the above Question. The Court are of opinion that you "have already answered that question Separately – therefore see no reason why you should not answer the present one" – must Answer the question having Answered the Question Separately before. Answer. No. Question. Was the Letter No. 5 advised to be written by Mr McArthur? Answer. No. Question. Did you not receive from Mr McArthur (through Captain Smith) message how to act before the Bench of Magistrates when brought forward on the charges exhibited by Mr Blaxland? Answer. No. Question. Did not Captain Smith send a Note to you when the Bench of Magistrates were Sitting before your Trial came on? Answer. Yes and I went out to him. Question. Did Captain Smith leave you and return again before you went into the Bench? Answer. I do not recollect. Question. Was the conversation you had with Captain Smith relative to the business coming on before the Bench? Answer. Yes. Question. Did he make use of Mr McArthur’s Name recommending you what to Say? Answer. No, to the best of my recollection. [474] Question. You mean positively to Swear that you receive no advice from Mr McArthur thro’ Captain Smith at that time or since respecting the business between yourself and Mr John Blaxland? Answer. To the best of my Recollection, never. Question. Letter marked E. Produced Vizt. "Sir, "I request you will have the goodness to accept the enclosed Bills as I insist they are Ship accounts, and nothing relative to my private concerns; therefore as part Owner and Agent of the Ship Brothers – you will honor the Bills or I shall be under the disagreeable necessity of drawing to that amount prior to leaving the Colony – the amount is £89 14s. 0d. "I am, Sir, "Your Obedient Servant, "Oliver Russell "John Blaxland, Esq., " "P.S. – An answer as Soon as convenient is required. – O.R.” Question. Was you advised to write that Letter by Mr McArthur and to enclose to Mr Blaxland receipts from the Seamen for Money advanced by you, as is advanced by Mr John Blaxland? Answer. No. Question. Did not Mr McArthur offer to furnish you with money
Answer. Answer. Yes. Question. Did you write the Letter marked after being offered by Mr McArthur to have any Money advanced? Answer. Yes. Question. Was you not positively refused to employ Persons to get Wood charged in the above Letter? Answer. Yes. Question. Was you not advised by Some Persons from the time that Mr Blaxland was on board at the Survey, and the 19th Instant to demand Money from him for his Passage in the Brothers. Answer. No. Question. Are not you and all the Officers and Crew on lays or Shares of what the Brothers may earn during her Voyage from the time she left Port Jackson? Answer. Yes. Question. Are you intitled to a greater Share than your lay of Money received from Passengers? Answer. Yes it is the custom that the Master and Owner divide it. Question. Have you a right to any part of the Passage Money
before the Ship arrives in Answer. It is customary to pay the money before the Ship Sails. Question. Have you any authority to demand from the Principal Owner and Agent who you admit as such £200, before you will receive him on board as a Passenger in this Port? Answer. No. [475] Question. What was your reason for demanding the £200 from Mr Blaxland when he came on board by your own Agreement with his Carpenter to make the Alterations he wished, and to Say that you would not receive him as an Owner but as a Passenger only? Answer. I demanded the £ 200 for giving up my Sleeping place and half the Cabin. I never said I would not receive him as an Owner. Question. Did you at the time of the Second Survey make any
objections to Captain Scotts doing the
duty as Mate, as you did not like Mr Hazelburg
doing duty again, as the Owner must pay Scott wages until he returned
to Answer. I do not object taking Scott as 2nd Officer. Question. Is the cat letter produced your writing Vizt. "Sir, "In regard to the Survey held on board the Brothers the 12th of February I admit the remainder part of the Stores which are Seven Whale Lines ought to have been sent on Shore, but not knowing whether they would be accepted as the other Stores lay in the Boat 36 Hours on Shore with Guard from the Ship before any person would receive them – then I got grossly abused from Simeon Lord is sending them. "And as for your Second survey I deem it not legal as it was not an order from the present Governor. –but be that as it May I was not sent to New South Wales – after Oil or Skins taken by any Ship or Crew except the Brothers – and as you have a Copy of my Sailing Instructions, from the Gentlemen that appointed me Commander of the Ship Brothers (read them) where I am specially ordered to procure a full Cargo of Spermaceti Oil and Seals Skins – therefore as you wish to make it appear that I have not done my Endeavour relative to that order, I request you to furnish the Ship with a quantity of Salt and Provisions that I may Cruise two Months longer on the Coast, That I may get what you call a full Cargo thence to proceed to England. "Concerning Captain Scott I can never think of taking him to England in the capacity of an Officer and even he is not a Safe Person to be in a Ship in any Shape whatever unless better guarded than the Brothers – You will recollect some days prior to our Arrival at Saldana Bay when he done his utmost to seduce the People to Mutiny even took them abaft on the Quarter Deck and requested to know what course the Ship was steered and at the same time said he had bro’t a Man to bear Witness – and further Said if they were all of his Mind he would immediately go into the Cabin and put a Stop to it – and before I will ever take him on Board the Brothers I must report him to the Governor and in course the truth will come to light. "I am, &c., &c., “O. Russell "John Blaxland, Esq., " Answer. Yes. Court adjourned till 9 O'clock Tomorrow Morning. Mr Oliver Russell Sworn, Paper marked No. 7 Produced by the Prosecutor read (Vizt.): To the Honorable Court of Criminal Jurisdiction. Gentlemen, From the number of irrelevances that have already been intruded upon your Patience - I am thoroughly at a loss to imagine [476] upon what Grounds the Defendants propose to Set up a Justifying Plea. If it be their design to defend themselves against the Prosecutor’s challenge of Assault by torturing his Evidence with nugatory Interrogatories purposely contrived to entangle them in what the Defendants may afterwards expound to be contradictory assertions, permit me to pray Of this most honorable Court that both the Prosecutor and the Defendants made by your decree be bound to adhere to the matters now before the Court, without being permitted to protract the event by the Introduction of any matter that May be considered foreign to the charge exhibited. Gentlemen. An Indictment has been prefered against the Defendants. I have given testimony upon the matter of complaint and have likewise been obligated to make Answers to questions perfectly indifferent, and I therefore crave to be permitted to proceed therein without interruption agreeable to the Indictment. The defendants have already endeavoured by an enquiry perfectly Foreign to the Subject to bewilder the Evidence upon a Plain and Simple fact, it is very far from my wish Gentleman that a Single Circumstance should go unravelled that can in any wise benefit the Defendants. But as the ends of Justice only bring me forward, I crave your countenance and trust that I may be So far protected as to be defended from In sold before this Honourable Court. I have not offered myself an Evidence in my own Cause. I presented a Statement of my Grievances, and prepared to prove upon the Evidence. I humbly contend Gentlemen that the Defendant Mr Lord has no Authority by Law to Question me beyond the extent of my charge on which the Indictment is framed. And I Sincerely trust you will permit me to proceed with proof to Establish the Assault which the Defendants stand at your Barr under such charge. Gentlemen, I do not come forward as a turgid Prosecutor, intent upon any Man's destruction. I only crave Protection of the Laws, If my charge be substantiated Your Verdict will be my future security; for conscious every Man must be that thus Secured the Defendants will be convinced that they have erred and thenceforth relinquish every Effort to my prejudice. Most respectfully, &c., OLIVER RUSSELL. 29 March, 1808. Court cleared on the propriety of the Prayer. Are of opinion that they are ready to hear your evidence to prove all the grievances you state you are prepared to bring forward in the Statement of Yesterday. Mr J. Blaxland Question. Did you not call me a Liar on board the Brothers when I denyed the Conversation that you Said parts between Mr Daniels and myself a day or two prior to my going on board? Answer. No. Question. You has Sworn that I said I would go home Commander, Supercargo and Owner as you know I have no knowledge of Navigation how could you Suppose it Possible that I should make use of such expressions? Answer. You did make use of the above expressions. Question. Who was present when I made use of those expressions? Answer. Mr Gregory Blaxland and Mr Lord in the Ship’s Cabin. [477] Question. Was Mr Ellison present? Answer. No. Question. You said you did not call me a Liar but that you called Mr Lord a Liar? Answer. Yes. Question. Was it before or after Mr Daniels was called out of the Cabinet that he called Mr Lord a Liar? Answer: I do not recollect. Question. Was it not in consequence of that abuse that I went between you and my Brother to prevent any irregularity? Answer. No. Question. You have sworn that my Brother and myself held you till complied with our request? Answer. Yes. Question. What was the request? Answer. That I would not make use of Fire Arms and in consequence of my making it at Promise you released me. Question. How long did we hold you? Answer. About five minutes. Question. Was any other violence offered you or any other request made to you that you should not go below to gett Arms? Answer. Yes while you and your Brother held me, Mr S. Lord requested that I would comply with Mr J. Blaxland's request to give up my Sleeping Cabin and half the great Cabin. Question. You have sworn that Mr Lord, at the time he made the above request held a Stick over your head, demanding that you should comply with my request? Answer. Yes. Question. Was anything said about a Stick until you brought one up on the Deck? Answer. No. Question. Did you send for Lieutenant Ellison? Answer. No. Question. Was not Lieutenant Ellison in the Cabin all the time
we three Answer. I do not recollect. Question. Was it not on the Deck before Mr Ellison came on board that he called Mr Lord a Liar? Answer. Yes. The Court cleared on the Shameful prevarication of Mr Oliver Russell. The Court do not conceive it amounts to direct and Wilful Perjury. From Mr Blaxland Question. Did not Mr Lord immediately Answer that you must not call me a Liar in any place but the Quarter deck before a Bench of Magistrates or words to that effect? Answer. I do not recollect. Question. You have stated before the Magistrates of this Colony that you had no knowledge of many of me for six weeks after you had the Command of the Ship Brothers? Answer. Declines Answering the above Question, waved by the Defendant. Question. Did not Mr McArthur inform me before the Bench of Magistrates when we were committed, that if you had taken his good [478] advice you would not have written that threatening Letter – stating you must have recourse to the Keel of the Ship (Vizt.): "Sir, "I beg you will send an Answer to my request this Morning in regard of the Bills which were presented of Money advanced to people on board, on Ship account, and if you will not honor them I positively declare they must be paid – therefore should be sorry to be compelled to have recourse to the Keel, Likewise the Bill for the Wood. "Yours respectfully, "(Signed) O. Russell " "(Directed) John Blaxland, Esq., Answer. Words to that effect did pass. Question. Have you not already Sworn that you had never received any Advice from Mr McArthur, either from himself or through Captain Smith or otherwise? Prosecutor Objects to Answer the above Question on the ground that it will criminate himself. Question. Have you not been often at Mr McArthur’s House consulting him Since you was accused of improper conduct by me particularly on 5th March? Prosecutor Declines Answering the above Question on the ground that it will criminate himself. Question. Did you not tell Mr Glanville late Mate of the City of Edinburgh who you was going to Ship as 2nd Mate of the Brothers that you was going to give up the Command of the Ship on the 1st or 2nd of March and that you desired him to apply to me for employment? Answer. I never told Mr Glanville that I should give up the Ship, and I do not recollect desiring him to go to Mr Blaxland. Question. Have you any other instructions from Hullett and Brothers as Commander of the Brothers than those of the 11th and 22nd of September, 1806? Answer. I received one Instruction from the Hullets, and a Copy said to be from them of another which I received at Sea from Mr J. Blaxland and I did not See the Original. Question. Had you conducted Yourself
improperly in Answer. Yes. Question. Provided they were in this Colony could they do the Same? Answer. No. Question. What is the reason you resist my Authority as you acknowledge that I am the managing Owner and Agent in this Colony? Answer. You not having authority to dispossess me of my Command of the Brothers. From the Court Question. Have you authority to refuse giving
a Passage to the Principal Owner and Agent in this Colony in the
Ship Brothers for the purpose of going to Answer. No, nor never did, except that I demanded £200 as Passage Money or that I was ready to Submit it to Arbitration. Question. Had you the Power to turn Mr Blaxland out of the ship on your Arrival here supposing that he did not choose to go on Shore? Answer. Yes. Question. How was Mr Blaxland received on board the Brothers
in Answer. As part Owner and Passenger. [479] From Mr J. Blaxland Question. Did I not on my refusing to pay £ 200 for the accommodation you offered me desired that you would point out some Place for me that my Carpenter might fit up? Answer. No. Question. Why did you not bring Mr Hazelburg forward to the charges you had confined him for, on your Arrival in this Harbor as Hazelburg requested himself in writing, and myself verbally? Answer. I shipped Mr Hazelburg
in Question. Was it not in this Port that you found the Ship on fire, by Mr Hazelburg’s neglect as you have stated also Some of the Charges you allege against him were committed here? Answer. The Ship being on Fire was in this Port. Question. Why was you going to Ship a Second Officer when Mrs Hazelburg and Scott were here Officers belonging to the Concern and I had informed you that it was necessary they should go home? Answer. Mr Hazelburg was under Arrest and I did not think Scott capable of doing duty as Chief Officer; nor would I receive him as and Officer, but do not recollect refusing to receive Scott as a Passenger. Robert Daniels Sworn, Acting Chief Officer: By Prosecutor Question. Was you on board the Brothers when the Defendants came on board, relate what passed? Answer. I was between Decks when they came on board and about a quarter of an hour after. I was called by Mr Lord to come on Deck, on coming out I found the Captain and the Defendants talking loudly but do not recollect the particular Words. I was asked by Mr J. Blaxland if I had informed the captain that he (meaning J. Blaxland) was coming on board the Ship to tie the Captain. I informed Mr Blaxland that I had told the Captain that he was coming to put him under an Arrest. Words ensued between the Defendants and the Captain from his abusing the Defendants and Mr G. Blaxland told the Captain that he would knock his teeth down his throat. The Captain said He (Mr G. Blaxland) had no business with it; when Mr G. Blaxland said that he (Capt Russell) had insulted his Brother and he would take up his cause; when Mr G. Blaxland advanced towards the Captain and collared him on one Side, and at the same instant Mr J. Blaxland caught the Captain by the collar. I then went up to endeavour to part them and caught the Captain by one Collar and Mr J. Blaxland by the Arm desiring them to lett go which they did and the Captain attempting to go down the Cabin Ladder the two Mr Blaxland's step between the Captain: and the Gang way to prevent him, and made the Captain promise not to get Fire Arms; during all which time Simeon Lord was leaning on the quarter Rail; from which Situation he did not move, but I saw him lift his Stick but not in a threatening manner but why he did it I do not know. I was between the Captain and Mr Lord with my back towards Lord nor did I hear Lord saying anything. I was not apprehensive of Lords meaning to use any violence. On Captain Russell promising not to get fire Arms he was admitted to go down and brought up a Stick; at the time the two Blaxlands had hold of the Captain, Elizabeth Guest and the Cabin Boy were at the bottom of the Companion Ladder, but could See on the Deck. The Cooper was that at the brick of the Quarter Deck all the time; Elizabeth Guest before the [480] two Blaxlands lett the Captain go came on deck and screamed when Lord asked what business She had there, and his Stick was lifted. He was angry and advanced a pace nearer to Elizabeth Guest but further from the parties Scuffling, and called her a damned Bitch but I did not see Lord attempt to Strike her or anybody else, or threaten to strike any Body and had he made a blow I was the nearest Person; on Captain Russell coming on Deck with a Stick he said He had as much right to wear a Stick as any Person on board, as long as He commanded, to which no reply was made by any Person. About five minutes after Mr Ellison came on board; what passed I do not know, being forward with the People but after walking a short time they all went into the Cabin and I was not in the Cabin at all. Neither of the Blaxlands or Lord went into the cavern before Mr Ellison came on board. On Mr Lord going away I was over the side, Captain Russell desired him it ever He came on board again to leave his Stick, when Lord offered to leave it at that time with him, until the Ship sailed if He was afraid of it. Court adjourned till 9 o’clock Tomorrow. 30th March 1808 Court met. Robert Daniels Sworn: From Prosecutor Question. Did not the two Blaxlands push me violently from the Mizen Mast to the Fife Rail? Answer. Yes. Question. Did either of the Prisoners say that I was Thief Rogue or Scoundrel? Answer. Mr Lord called you a Thief and said he could prove it which happened after the captain brought his Stick up. Question. Did Captain Russell during the time the Prisoners were aboard give any Offence to them? Answer. Yes, by desiring Mr J. Blaxland to go home and Sell his Pigs, and sell His Milk and butter; which happened when I was on the Main deck. Question. Did you hear Mr J. Blaxland tell me that he could confine me to my Cabin, and that he would go home himself Master or Commander of the Ship? Answer. No. Question. Did Mr J. Blaxland at the time the Prisoners were on Board on the 19th call the Ship’s Company aft to seize the Captain? Answer. Mr John Blaxland called the Ship’s Company forward to assist which happened after the Captain brought up his Stick; but there was no quarrelling between the Parties at the time. No words were made use of to seize the Captain. Question. Did the captain at any time threaten Prisoners to make use of Fire Arms? Answer. No. Question. On hearing that the Prisoners were coming on Board, did you say to the Captain they were coming? Answer. I said "Now we shall have it," supposing that from what I heard Mr Blaxland say the day before that there would be words between the Captain and him. From Prisoners Question. Was you at Lord's House on the 18th instant respecting the Ship’s business when Mr J. Blaxland and Lord told you of many acts Captain Russell was accused of and which you Said you never heard of before? Answer. Yes. [481] Did We not inform you that if He (Captain Russell) did not behave better that Mr J. Blaxland would be obliged to take every legal means to get authority to supersede him, but if he could not get authority that he should be under the necessity of giving the Command to the Mate or some other Person by laying regular Papers before the Judge Advocate, and carry the Captain: a Prisoner to England, which Steps ought to have been taken before, or words to the Same meaning? Answer. Mr John Blaxland said he had tried all he could to Supersede Captain Russell without effect but that he would himself come on Board the next day and see who was to be Master of the Ship and that he should bring his Carpenter with him. Question. Did not Captain Russell after you denied Mr Blaxland having Said that he was coming on Board to tie Captain Russell call him (Mr Blaxland) a Liar, or was it before? Answer. I never heard Captain Russell call Mr Blaxland a Liar. Question. Did Captain Russell before you came on Deck at the time you were Shaving call any Persons Liars? Answer. No. Question. Was not you called up to prove that we had not Said we would tie Captain Russell in his cabin? Answer. Yes. Question. Did you not tell Captain Russell after denying that Mr J. Blaxland had threatened to tie Captain Russell that you had informed Captain Russell that Mr Blaxland would come on board to put him under an Arrest? Answer. Yes. Question. Did not Captain Russell desire Mr J. Blaxland to go home and Sell his Milk and Cabbages, and say that He wished he had a Billy Goat to beat him, at the same time passionately beating the Boom with a Rope? Answer. I heard all the Conversation about the Billy Goat. Question. Did not this conversation happen before Mr G. Blaxland laid hold of the Captain and after Mr. G. Blaxland Said to Captain Russell that they came to ask civil Questions and expected Civil Answers? Answer. Yes. From Mr John Blaxland Question. How do you positively Swear that I held hold of the Collar of Captain Russell’s Coat? Answer. You had hold of the Coat above the elbow. Question. Did I go between Captain Russell and my Brother to prevent their fighting when Captain Russell Said he would go down and Soon Settle it? Answer. No. John Richardson, Carpenter of the Brothers, Sworn: From the Prosecutor Question. Was you on board on the 19th Instant when the three Prisoners came on Board and what Passed? Answer. Yes when the Prisoners came on board they were welcomed by the Captain, and Mr J. Blaxland told him that he was come with his Carpenter to fit up his accommodation and on being asked by the Captain what part of the Ship he wanted, pointed out the Starboard Cabin, then occupied by the Captain, and being still further questioned by the Captain where he would live, replied He did not care; that the Captain offered to Mess with him in the great Cabin. The Captain desired to know what Mr Blaxland would give him for his Cabin and was answered that he would give him [482] nothing, being the principal Owner, and insisted on having that Cabin and that He would go home in the Ship. Captain Russell did not say a Word to Mr.G. Blaxland when he Gregory Blaxland called Captain Russell a Puppy, and went immediately to Captain Russell and collared him, and Mr J. Blaxland immediately advanced and caught Russell by the other Collar. On Captain Russell’s being pushed by the Blaxlands near Simeon Lord, who was leaning on the Quarter Rail and on Captain Russell being within about two feet of him, and fronting him, he lifted his Stick in a passionate manner, and shook it three times over the Captain's head , Saying that if Captain Russell had had Justice done him, He would have been Transported as soon as He was himself. Captain Russell requested the Blaxlands to let him go, which they did and on the Captain attempting to go below. Mr. G. Blaxland asked him if he was going to get Fire Arms, and the Captain said No, but on coming up with a Stick the Captain said that he had as much right to carry a Stick having a Command as other Persons, who have no command. Soon after the Captain came on Deck, Mr. J. Blaxland called the Ship’s Company forward, and the Captain desired them to keep to their duty. On the Men not coming forward Mr J. Blaxland said that He would not Answer another Shilling for them and that He would Protest against their Wages; at the Same time He, Mr. Blaxland, Sent a Boat for the Lieutenant of the Porpoise. On the Lieutenants coming on board, Mr. J. Blaxland the Captain and Lieutenant Ellison and the Carpenter went into the Cabin, and Mr. G. Blaxland and Mr Lord remained on deck. About ten Minutes after Captain Russell came on Deck by himself and a few minutes after him Mr John Blaxland Mr Ellison and the Carpenter also came on deck; a short time after the Party went away, and on Mr Lord getting over the side of the Ship Captain Russell told Mr Lord that he must not bring a Stick again on board to insult him; if He did Captain Russell would find one himself. Lord replied I always carry a Stick to guard myself and if you will come on Shore in an Hour, I shall be in the Road. Question. Did you hear Captain Russell make use of the word Billy Goat? Answer. No. Question. When Mr. G. Blaxland laid violent hold of Captain Russell, did Mr. J. Blaxland interpose to prevent him? Answer. No. Question. Did Captain Russell by word or action give any offence whatever to Mr. G. Blaxland before they collared him? Answer. No. Question. Did you hear Mr. Lord tell Captain Russell that He was a Thief, Rogue or Scoundrel? Answer. No. Question. Did you hear Mr. Lord tell Captain Russell that he would knock down or cut him down if He did not comply with Mr. J. Blaxland’s demand? Answer. No. Question. Did you apply for Money on your own Account on or about the 16th Instant to Mr. J. Blaxland? Answer. Yes and was refused. [483] From the Court, Question. Who was present at the time the Blaxlands collared and kept hold of Captain Russell? Answer. The Cooper, John Goodssold, Elizabeth Guest. Robert Daniels the Chief Officer came from the Cabin after the Blaxlands had collared the Captain but did not go near them except by passing them, and going forward before the Main Mast. If the Mate had touched the Captain or Blaxlands, I must have seen him, as I never quitted the Deck. Question. Who called Mr Daniels from the Cabin? Adds: I did not hear him called from below. Question. Did you hear him called on the Quarterdeck and who by? Answer. He was called aft by Mr. J. Blaxland when walking before the Main Mast and was questioned by Mr. J. Blaxland. Question. Did Elizabeth Guest remain at the bottom of the Ladder or did she come out of the Cabin directly? Answer. She came out of the Cabin. Court cleared on the Prevarication of the Evidences. Captain Russell Sworn: From the Court Question. Did Mr Daniels at the time Mr Blaxland had hold of you come near or touch you or either of the Blaxlands, or endeavour to extricate you? Answer. Yes. Question. Did Mr Gregory Blaxland and Mr Lord go into the Cabin or remain on the Deck at the time Lieutenant Ellison and Mr John Blaxland went with you into the Cabin? Answer. They went into the Cabin. John Goodsold Sworn: From the Court, Question. Did you on the 19th Instant when the Prisoners at the Bar were on board and the two Blaxlands had hold of Captain Russell see Robert Daniels Acting Chief Officer on the Quarter Deck and what did he do? Answer. Mr Daniels was not on the Quarter Deck during the whole time that the Blaxlands had hold of Captain Russell. Question. Did Mr Gregory Blaxland and S. Lord go into the Cabin after Lieutenant Ellison came on board, or did they remain on the Quarter Deck all the time? Answer. Mr. G. Blaxland ordered me down; the Captain, Mr. J. Blaxland, Lieutenant Ellison and myself went down and about a minute after Mr. G. Blaxland and Lord followed and Staid all the time. James Roop, Cooper of the Brothers, Sworn: From the Court Question. Did you see Mr Daniels Acting Chief Officer on the Quarter Deck of the Brothers on the 19th Instant when the two Mr Blaxlands now Prisoners at the Bar had hold of Captain Russell on the Quarter Deck and what did he Say or do? Answer. Mr Daniels was called by Mr Blaxland. He did not touch or go near the two Blaxlands during the time they had hold of Captain Russell; and was not during the whole time they had hold of Captain Russell on the Quarter Deck. Alexander Low Sworn (a Seaman of the Brothers): Question. Did you see the Prisoners at the Bar on board the Ship Brothers on the 19th Instant. and did you see the two Blaxlands all [484] the time they had hold of Captain Russell on the Quarter Deck, and who was present or interfered with the party Scuffling? Answer. I was present and Saw the Blaxlands from the time they had hold of Captain Russell, to the time they lett him go and no person interfered. Question. Was Mr Daniels on the Quarter Deck during the time the two Blaxlands lett Captain Russell go? Answer. No. The Court called on Elizabeth Guest Sworn: Question. Did you see the two Mr Blaxlands when they had hold of Captain Russell on board the Brothers on the 19th instant and did you See any Person attempt to rescue Captain Russell from them? Answer. I did see the two Blaxlands when they had hold of Captain Russell, and no Person but myself attempted to rescue him. Question. Was Mr Daniels on the Quarter Deck at the time they had hold of Captain Russell? Answer. I did not see Mr Daniels on the Quarter Deck until after Captain Russell was released. Henry Purdie (Cabin Boy) Sworn: From the Court Question. Was Mr Daniels the Chief Officer on the Quarter Deck of the Brothers at the time the two Mr Blaxlands had hold of the Captain, or did he release the Captain from them? Answer. I saw Blaxlands lay hold of Captain Russell and lett him go. Mr Daniels was forward at each time they had hold of the Captain, nor did I see any Person go near them. The Court cleared on the Perjury of Captain Russell and Robert Daniels; are of opinion that the Perjury is clearly proved particularly in the instance of Daniels not being on the Quarter Deck during the affray between Captain Russell and the two Blaxlands. And Sentence Oliver Russell Robert Daniels to be transported for Seven Years, but Strongly recommend both to the clemency of the Governor. Prior to the Court being cleared Mr Oliver Russell Strongly expressed the unfortunate situation in which he was involved and wished to withdraw the Indictment. Court adjourned till half Past ten O’Clock Tomorrow. 31st March 1808 Court met. The Prisoners asked if they wished to Cross examine the last Evidences, waive the Examination. Mr Gregory Blaxland admits the Assault, and calls John Goodsold to prove that it was not maliciously intended. John Goodsold Sworn, Asked by the Prisoner Mr. G. Blaxland to relate the circumstances attending the Affray between him and Mr Russell on the 19th instant states that Mr. J. Blaxland and Captain Russell had Words, and on Captain Russell calling Mr. J. Blaxland a Liar and a fool, Mr Gregory Blaxland went up to Captain Russell and caught him by the Collar, but do not know what he said when Mr. J. Blaxland caught hold of the Captain also, and held him until Captain. Russell promised he would not get Fire Arms. Mr. J. Blaxland when he went up to Captain Russell appeared to go for the purpose of parting his Brother and Captain Russell by saying "Psha” and endeavouring to pacify them; Mr. Russell, from the Prisoners first coming on Board and talking with Captain Russell, had a Rope in his hand with which he continued violently to Beat [485] different Parts of the ship. On Mr John Blaxland asking what accommodation he was to receive on board Captain Russell replied, according to Your behaviour as a Passenger and said if he did not behave well he would put him in Irons. Mr Gregory Blaxland did not speak but civilly to Captain Russell before he caught hold of him. Mr Gregory Blaxland in his Defence Pleads the irritation of his Spirits on hearing his Brother he was an Owner of the Ship and himself also naturally interested; so grossly abused by the Master Captain Russell particularly, and His Brother had given him notice to give up the Command of the Ship for misconduct and throughs himself on the Mercy of the Court. Mr John Blaxland pleads in his Defence that He laid hold of Captain Russell to prevent his Brother and Captain Russell coming to Blows or any mischief arriving particularly from Captain Russell having Said He would go below and soon Settle it, conceding at the time he meant to fetch Fire Arms. Mr. S. Lord in his Defence, conceiving no charge has been proved against him trust the Court will acquit him and conceive it to be a malicious Prosecution if not a conspiracy to ruin him. The Court are of Opinion that Mr Gregory Blaxland has acted very incorrect, but that he was Provoked to it by the ill Language of Captain Russell, but fine him Five Pounds Lawful Money of Great Britain. The Court are of Opinion that Mr John Blaxland is not Guilty, but laid hold of Captain Russell from motives to prevent any ill consequences. The Court are of Opinion that the Assault or Threats have not been proved in any instance against Mr. Simeon Lord, and do therefore acquit him. C. Grimes, Acting Judge Advocate.
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