[inciting breach of peace - duelling - criminal procedure]

R. v. Lewis

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 8 April 1834

Source: (Launceston) Independent, 26 April 1834

Tuesday, April 8 -- The Solicitor General applied for a rule to shew cause why a criminal information should not be filed against Mr. Richard Lewis, for endeavouring to incite a Police Magistrate, at Launceston, (Mr. Lyttleton) to commit a breach of the peace.

The learned gentlemen admitted that the interference of the Court in this way in case was extraordinary, but it would give Mr. Lyttleton, on the other hand, the best means of clearing his character from the imputations cast upon it by the defendant -- and on the other, give the defendant an opportunity of shewing if he could, that Mr. Lyttleton was not entitled to any compensation.

The Attorney General said that he had refused to file an information, ex officio, in this case, in order that the present motion might be made, but he by no means pledged himself not to file one hereafter.

The Solicitor General instanced the case if the late Chancellor, Lord Lyndhurst, who obtained a criminal information against the Editors and Proprietors of certain newspapers, instead of getting the Attorney General to file the criminal information because he considered that the best way of clearing his character effectually.

Their Honors decided against the rule, on the grounds that it was the practice of the Court not to grant such rules until the Attorney General had refused to file a criminal information.

The Attorney General then said, that in the present case he should most certainly refuse to file an ex officio information, and therefore the plaintiff would be competent to apply to the Court again if he thought proper. Rule refused.

9 May 1834

Source: Colonial Times, 13 May 1834

            Mr Thomas Lewis was placed at the bar, charged with endeavouring to incite Mr. Lyttleton, the Police Magistrate, at Launceston, to commit a breach of the peace. The information contained three counts, all of them, setting forth the same offence, with slight variations.

The Attorney General opened the case.

This was an information preferred against Mr. Thomas Lewis of Launceston, for endeavouring to incite Mr. Lyttleton, the Police Magistrate, to commit a breach of the peace, by conveying a message from Mr. Bryan, also of Launceston, to Mr. Lyttleton, with the intent to induce him to fight a duel. The defendant told Mr. Lyttleton that he had come from Mr. Bryan, to obtain an explanation of some words said to have been used by Mr. Lyttleton, and requesting him at the same time to appoint a place of meeting. Upon Mr. Lyttleton declining to meet Mr. Bryan, defendant said, “If you had challenged Mr. Bryan, and he had declined meeting you, would you not have considered him a coward?” Mr. Lyttleton, gentlemen, was and still is a Police Magistrate; he was Police Magistrate at Launceston, at the time the defendant committed the offence with which he stands charged. In November last, a trial took place at the Criminal Court, at Launceston; it was that of a man named Arnold, a servant of Mr. Bryan, for cattle stealing. In consequence of what passed upon the trial, and certain observations made by His Honor -

His Honor here stopped the Attorney General, and said, that in reference to what had just fallen from the Attorney General, he was sorry he was not before aware that any observations of his were about to be brought forward, as if he had been, he most certainly would not have tried the case.

The Attorney General said, that he should purposely abstain from any remarks which in any manner related to His Honor’s observations upon the trial.

The learned gentleman then proceeded with his address. In consequence of instructions which Mr. Lyttleton received from the then Attorney General, he made some enquiries arising out of the case of Arnold, and which enquiries to a certain extent implicated Mr. Bryan, not as respected his character, but respecting his treatment of certain of his servants. It was necessary for the purposes of that prosecution, that he should state that Mr. Lyttleton made those enquiries with every attention to the feelings of Mr. Bryan, himself a Magistrate. A short time after those enquiries were made, Mr. Lyttleton, had the honor of a call from Mr. Lewis, which led to the present prosecution. From His Honor’s charge, gentlemen, you will be made acquainted with the law of the case, and also that it is not necessary for me to prove every item in this information, but that it is sufficient to prove it generally. Mr. Lyttleton, they would find, very much to his credit, declined to meet Mr. Bryan upon an occasion arising out of such circumstances, and for himself he considered he should not have done his duty if he had not brought Mr. Lewis before the Court, to receive the very proper punishment, and he hoped it would be a severe one, which his conduct merited.

William Lyttleton, Esq. examined by the Attorney General. - Is a Justice of the Peace, has been so for six or seven years. Remembers the trial of a man named Arnold, for cattle stealing; the man was found guilty. Arnold had been assigned to Mr. Bryan, and was at that time in his service.

His Honor asked the Attorney General if it was necessary to enter into matter not strictly relevant to the present case.

The Attorney General said he would avoid it as much as possible.

Examination continue. - Knows the defendant Mr. Lewis. He was formerly shopman or clerk to Mr. Lord. The defendant accosted witness in the street, and said he wished to speak to him. Defendant told witness he came by desire of Mr. William Bryan to know whether witness had publicly or privately reflected upon the character of Mr. Bryan. Witness requested him to state more particularly to what he alluded; he said it was about Arnold’s case. Witness told him he would on that subject refer him to the Government, who had all the papers in the case. Mr. Lewis, in about two hours afterwards in the yard of the Police-office accosted Mr. Lyttleton again, saying he was sent by Mr. Bryan to appoint a time and place to meet him; told defendant he did not consider Mr. Bryan had any right to expect any thing of the kind. He said he thought witness ought to meet Mr. Bryan - and asked witness, if he did not consider Mr. Bryan to be a gentleman. Witness made no reply; defendant then said, “if you were to call Mr. Bryan out, and he refused to fight you, would you consider him a coward?” Witness said, his own reputation in the army would always screen him from any such charge; defendant desired to know what message he was to take to Mr. Bryan; witness told Mr. Lewis to repeat to Mr. Bryan the conversation they had had; understood by Mr. Lewis’s message, that it was intended to get witness to fight a duel.

Cross-examined by Mr. Lewis. - Was the committing Magistrate in the case of the man Arnold. Does not remember meeting defendant near the Court house, in company with another gentleman, on the day of Arnold’s trial. Does not recollect speaking to Mr. Richard Dry - might have don so.

His Honor here cautioned Mr. Lewis against going into any matter irrelevant to the case then before the Court.

Examination continued. - Does not recollect any other conversation than the one already stated. Never said to Mr. Dry, that Mr. Bryan ought to be hanged, instead of Arnold; defendant did not come merely to have such words explained.

His Honor stopped the defendant, and said, that if he again asked questions not relevant to the case before the Court, he would fine him £5 for each question. Mr. Lewis said, as Mr. Lyttleton was the only witness, if he were not allowed to enter into all the circumstances, he could make no defence at all. His intention was to ask such questions as would shew that it was not defendant’s object to convey a challenge to Mr. Lyttleton, but simply to obtain an apology for the injurious language Mr. Lyttleton had made use of towards Mr. Bryan.

Examination continued. - Has no interest in the issue of this trial. Mr. Bryan has brought an action against witness; is not aware of the cause of that action. Cannot say whether the conviction of the defendant will affect the issue of Mr. Bryan’s action or not. Issued the summons produced in an action brought by witness against Mr. Lewis, but it is not his intention to proceed with it.

By His Honor. - Did not know that Mr. Lewis was to be indicted when the summons was issued.

By Mr. Lewis. - Could have no ill-feeling towards Mr. Lewis, as he had never spoken to him more than twice in his life.

His Honor again said the question was not relevant.

Mr. Lewis - If I am not allowed to put such questions, I have nothing more to say to the witness.

Examination continued. - Never said that the present prosecution was commenced without his knowledge, and without his consent.

By His Honor. - Knew the defendant first about three years ago; has spoken to him a few times in the way of business.

Mr. Lewis was then called upon for his defence, and commenced as follows:-

May it please your Honor, Gentlemen of the Jury, I am placed before you this day under very peculiar circumstances, with all the tact and talent of the Attorney General to oppose me. I stand here alone, to oppose the well-known “crushing” qualifications of that gentleman - qualifications of which he has frequently boasted, even before he was invested with the terrific powers of Grand Jury and Attorney General. The Counsel for the prosecution, Gentlemen, has told you that I scandalously endeavoured to excite Mr. Lyttleton to commit a breach of the peace. “We judge of others by ourselves,” in an axiom of Adam Smith. When the Attorney General mentioned my attempt, as he calls it, to procure a breach of the peace, he forgot that it was but the other day he sent a message similar to the one which I am charged with conveying, to Mr. Roderic O’Connor.

His Honor here stopped Mr. Lewis, and said, that for the speech he had just delivered he should fine him ten pounds.

Mr. Lewis - I can make no defence at all, your Honor, if I am not allowed to enter into particulars.

His Honor. - I perceive, Mr. Lewis, that you are reading from a document, and therefore the offence of using indecent and very improper language, which you have just committed, is evidently premeditated. If it were an extemporaneous address, I should feel disposed to make much greater allowances than I can do consistently with my duty in the present case, clearly appearing as it does, to have been premeditated. If you will take my advice, Mr. Lewis, you will consult with your friends, and time shall be allowed you for the purpose as to the propriety of a revision of the paper from which you appear to be reading.

Mr. Lewis having accepted His Honor’s advice, he was directed to retire into the Counsel’s room, where he was followed by his friends, and shortly afterwards by Mr. Gellibrand.

Mr. Lewis remained out of Court a considerable time, during which the Court waited for him most patiently, and upon his return, he addressed his Honor to the effect, that after consulting with his friends, he could not discover any more proper course than the one he had previously decided on adopting. He would, however, endeavour to abstain from any observations which appeared to him not to be absolutely necessary for his defence. - He then proceeded, as follows:

The circumstances, gentlemen, which led to the [???] between myself and Mr. Lyttleton, was a remark made by Mr. Lyttleton on the day the man Arnold was convicted, when with Mr. Richard Dry, close to the Launceston Court House, Mr. Lyttleton came up, and in my hearing, in allusion to Arnold’s case, said, “He is found guilty, and condemned to be hanged on Monday next - I will save his life if I can, but some one else ought to be hanged instead of him.” After hearing the expressions from Mr. Lyttleton, and considering that to apply to Mr. Bryan, who was at that time a Magistrate, than whom none in the Colony stood higher, I certainly informed Mr. Bryan’s brother of the circumstance immediately. And, gentlemen, you will admit, I am satisfied, that Mr. Bryan being my friend, I could not do otherwise. Mr. Bryan’s brother, gentlemen, was shocked at such expressions from a man of Mr. Lyttleton’s standing in society. Mr. Bryan himself was at the time a distance of 120 miles from his calumniator, but on receiving information of the aspersions which had been thrown on his character, he returned, and immediately desired me as his friend to request an explanation. Great as was the provocation, gentlemen, I beg you to bear in mind I carried no hostile message, but on the contrary, simply requested an explanation with the very utmost temperance and forbearance. The result of my interview with Mr. Lyttleton was, that he would neither recant the expressions, nor apologize for having used them. Mr. Lyttleton had called him a coward; if I had done so, it is impossible it would create any great surprise; for never was any thing more despicable, than this moral assassination - but, gentlemen, I did not; neither did I use any language other than that which was most temperate and becoming. If I had attempted to call Mr. Lyttleton to account for any matters done in his Magisterial capacity, I should have richly merited the most severe punishment, and this prosecution would have been perfectly well founded. The inevitable conclusion which would arise in the mind of any man from Mr. Lyttleton’s expression is, that Mr. Bryan was connected with the convict Arnold in the crime of cattle-stealing. Surely, gentlemen, if Mr. Lyttleton used language such as this publicly, there was a necessity for calling him to account. Had Mr. Bryan quietly submitted, he would have been the cause of blushing to his friends - in fact, he would have been scouted by them, and by society. The explanation he called for, and which he chose to confine to my negotiation, was of the most temperate description. Who is there that would not have acted as I have done. I trust, therefore, gentlemen, that you will not find me guilty for having done that which you would wish your dearest friend under circumstances to do for you. The Attorney General must have smiled to himself when he told you that I scandalously, wilfully, and maliciously endeavoured to incite a Magistrate to commit a breach of the peace. Is it possible the Attorney General would wish the commission of the peace to be a protection to a man who could so grossly slander a brother Magistrate? In conclusion, gentlemen, it is scarcely necessary for me to say, that it is requisite in all prosecutions of this kind, to show a criminal intention on the part of the accused. If you are not satisfied I had such an intention, you cannot find me guilty. Let me direct your attention to the injury Mr. Bryan received, and then let me ask, can anything be more free from hostility than was Mr. Bryan’s mode of proceeding under such an aspersion. And for delivering Mr. Bryan’s truly reasonable message, I now stand before you, charged with the commission of an offence I never dreamt of committing. Had the clearest proof of my guilt been this day brought before you, you could not, looking at the provocation, find me guilty. I put it to you, as men of the world, and as men of honor, to say whether, situated as I was, you would not have acted as I have done. The Attorney General, with all the ingenuity of a lawyer, has given a construction to my conversation with Mr. Lyttleton, which was never contemplated by me at the time. Had I been Mr. Lyttleton, gentlemen, I would never have brought on this prosecution, for whatever may be the result, Mr. Lyttleton must suffer very considerably more, than by possibility I can. In cases where great provocation has been used, judicature generally favourable, even when death has been the consequence. In the case of Sir Alexander Rothwell and Mr. Stewart, the former was shot, yet the latter was acquitted. On every consideration of honor and common sense, I cannot but believe myself entitled to your acquittal. The offence with which I am charged is said to have been committed in November last, and the criminal sittings of the Court were held at Launceston, in February; yet nothing was done till the trial between Mr. Bryan and Mr. Lyttleton was about to be heard; this prosecution was not commenced until April. I was then apprehended under a bench warrant and dragged here, 120 miles from the place where we both reside. I am aware that I am in the hands of an English Jury, and have consequently nothing to fear from any improper indurate. I would ask you, gentlemen, if not in justice to myself, at least in justice, in compassion, to Mr. Lyttleton, to acquit me. If I am convicted you will brand him forever, and probably drive him to commit self-destruction, after having been proved a coward in open Court, before a Military Jury.

The Attorney General then rose and replied to the following effect:- After listening to the defence of the defendant, and I must admit that he has evinced no inconsiderable ability, I beg leave to offer a few observations with respect to the remarks which the defendant has been pleased to make relative to myself, I consider that my reputation is quite sufficient [???] is quite sufficient to acquit me of the evil intention attributed to me by the defendant. If they were well founded, then should I consider myself, as all men would consider me, unworthy of the high office which I hold. To assert that the Attorney General is desirous of throwing the shield of his powerful protection over Magistrate acting improperly, is as inconsistent with the truth as it is outrageous. The defendant has spoken from his suspicion of my motives - I speak from my own knowledge of them. As respects Mr. Lyttleton, he received instructions to enquire into some particulars relative to Mr. Bryan’s conduct, and he obeyed them. It is, therefore, certainly the duty of the public prosecutor to defend him from insult and injury; if it were not so, no man would be protected in the discharge of his magisterial duties. In the present case, the Jury could not mistake the reason of the visit which Mr. Lyttleton had the honour of receiving from Mr. Lewis. The alternative of Mr. Lyttleton’s refusing to accede to Mr. Lewis’s proposition on that occasion, you are well aware, gentlemen, was a meeting in the field. Mr. Lyttleton must either have committed the foul, the enormous crime of perjury, or there was no foundation for the hostile proceedings, which I know, gentlemen, you are satisfied have taken place. The whole of the evidence is extremely simple. Mr. Lyttleton has sworn to certain facts, and if you believe he is worthy of credit, there is an end of the matter; for the necessary consequence is, that the defendant is guilty. I cannot understand, if it was not intended to convey a challenge to Mr. Lyttleton, why it was necessary to wait the return of the principal in the transaction, by whom alone a challenge could be sent. I am extremely sorry that Mr. Lewis has been so very ill-advised, as he evidently has been, upon this occasion - his advisers may be talented ones, and I have no doubt they are, but doubt very much if they are equally judicious.

His Honor then shortly addressed the Jury, pointing out to them the most material circumstance for their consideration, which was, the degree of credit they thought the evidence of Mr. Lyttleton entitled to. For his own part, his Honor said, he believed every word of it. With respect to the fine which he had considered it his duty to impose upon Mr. Lewis, it would be perfect nonsense, and tending to bring Courts of Justice into contempt if, after warning defendants of having behaved irregularly, and cautioning them against a continuance of the offence, Judges were not empowered to enforce obedience. He would not offer any further observations, but leave it entirely to the Jury to say, whether the defendant was guilty or otherwise.

The Jury consulted for a few minutes, and returned with a verdict of Guilty, on the whole of the information.

Bail was then taken for his appearance tomorrow, at two o’clock, for judgment himself in the sum of £400, and two sureties in the sum of £200 each - just double the amount of that which was taken before conviction.

His Honor said, before the bail was taken the fine of £10, imposed upon Mr. Lewis in the course of the trial, must be paid, which was immediately done.

Mr. Lewis’s sureties were Mr. Hackett and Mr. Bryan.

10 May 1834

Mr. Lewis was found guilty yesterday of inciting Mr. Lyttleton to commit a breach of the peace, was then brought up for judgment.

Mr. Gellibrand appeared for him on this occasion, and produced an affidavit of Mr. Lewis’s, to the effect, that in consequence of being checked by His Honor in the course of his cross-examination of Mr. Lyttleton, he was prevented from entering into those particulars necessary for his defence.

Mr. Gellibrand moved the Court for a new trial, and he did so upon two grounds. First, that one of the Jury upon Mr. Lewis’s trial was not qualified to sit as a Juror. The Act of Parliament directed, that the Jury should be composed of commissioned officers, and the Payment of the 21st regiment, who was one of the Jury, he contended was not a commissioned officer, and therefore disqualified.

In England said the learned gentleman, the praecipe is issued by the Sheriff, and the Judges look to him for its correctness, but in this Colony, the Sheriff was a mere ministerial officer, and the praecipe was issued by the Lieutenant Governor. It was the duty of the Court, therefore, to look closely to the praecipe in order that none but qualified individuals were appointed as Jurors.

The Solicitor-General here made an observation to the effect, that the Paymaster was qualified.

I am aware said Mr. Gellibrand, that I am speaking in the presence of no mean military authority, but still I submit, that he is not by the terms of the Act qualified. - Secondly, that Mr. Lewis had not been allowed that latitude in his cross-examination of Mr. Lyttleton, which was necessary to his defence. His Honor observed upon the trial, that the questions Mr. Lewis was desirous of asking, were not proper, neither were they evidence to go to the Jury. But although they might not be of importance, as matters for the Court, to know, in order to assist it, in deciding on the punishment of the defendant, they were, he contended, exceedingly important.

His Honor said, that Mr. Lewis was at perfect liberty to ask any question he pleased, provided he first convinced him of their legality.

Mr. Gellibrand. - The Court at this moment is not in possession of all the circumstances of the case, which he considered it ought to be, and he respectfully submitted, that the defendant had been seriously injured by those circumstances not having gone to the Jury, and he also submitted, that by endeavouring to elicit those circumstances from Mr. Lyttleton, the defendant was perfectly within the line of legal evidence.

His Honor said, that with reference to the first objection, he considered it would not hold for a moment. If the Paymaster was not a commissioned officer, why was not some evidence of the fact produced. There was no doubt, if such was the case, that any of his brother officers would be competent to give evidence of the fact, or, at all events, the Town Adjutant would be aware of it. With respect to the second objection, he fortunately tried the case himself, and therefore was well aware that none but illegal questions were prohibited. After all the care and attention that had been bestowed upon his case, he thought such an assertion came with a very bad grace from the defendant. In the whole course of the defence it was not directly attempted to deny the carrying the challenge, but on the contrary the defendant attempted to justify his conduct, and to that point the major part of his address to the Jury was directed. His Honor could not conceive why anything should be allowed to got to the Jury, unless it tended to enable them to say whether the defendant was or was not guilty. The evidence should always be made as simple as possible, in order to the whole hearing and extent of it being clearly comprehended by the Jury. He had no hesitation tin saying, that had Mr. Lyttleton been examined as to what took place outside the Court House, it would not have been evidence.

Another affidavit was then put in for the purpose of shewing that Mr. Dry was a necessary witness, and that the defendant had not time to obtain affidavits from him, Mr. Gellibrand therefore moved that the Court would abstain from passing sentence at present.

His Honor said he was sorry he was compelled to over-rule all Mr. Gellibrand’s objections, but it was quite evident, as nearly three weeks had elapsed since Mr. Lewis was first informed of this prosecution, he had plenty of time to procure from Mr. Dry whatever he considered necessary for his defence, and as he considered that in every case judgment should follow conviction as quickly as possible, he felt it his duty to pass sentence at once, which was that Mr. Lewis be fined £150 to the King, and be imprisoned in His Majesty’s gaol at Hobart Town for the space of eighteen calendar months, and that he be further imprisoned until such fine is paid.

Source: Hobart Town Courier, 16 May 1834[1]

The sentence of 18 months imprisonment and a fine of 150l. passed in the case of Mr. Lewis, who was convicted of the offence of carrying a challenge from Mr. Bryan to Mr. Lyttleton, both being magistrates, has also struck the mass of the community as being unusually severe. It is undoubtedly the duty of the dispenser of justice to be firm in his opposition to crime, & resolute in his disapprobation of every species of misdemeanor, and we above all others will not be suspected of attempting to extenuate any conduct that in the most remote way would lead to the savage practice of duelling, nevertheless it cannot be forgotten that however willing, Mr. Lewis was no more than the passive instrument in the hand of the challenger, ad therefore is to be considered only guilty in the second degree. Why indeed may it nor be asked did not Mr. Bryan ask for his own explanation, and not so indiscreetly mix up a third person in the question, and in its (as it now appears serious -- and indeed as the Judge very properly observed, as it might have been fatal) consequences? Had he done this probably the wished for explanation would have mutually taken place, and the matter there ended

We trust and the public trust that Mr. Bryan will at least pay the fine. Mr. Lewis it is well known is a young man wholly without the means of discharging it, or even of supporting himself in prison, and therefore without such assistance, the sentence of the court as far as the fine alone goes, is tantamount to perpetual incarceration. His defence was doubtless indiscreet and illjudged, but that circumstances taken abstractedly as shewing imprudence more than evil intention, ought rather to extenuate than aggravate his punishment. The public compassion that has thus been raised, is, we think it necessary openly to declare, wholly distinct from any party feeling whatever, and is simply the ebullition of that humane and generous sentiment of our nature so characteristic of Englishmen, and which it is the pride and endeavour of a liberal government in a well regulated community like, to cherish rather than to check. It is on this ground that we venture to hope that his Excellency in Council will be pleased on the calm and dispassionate view of the case, which will there be taken, to mitigate as far as due regard to equity and justice can do, the extension of punishment in both the above cases.

Notes

[1] Bryan became hostile when Lyttleton found one of his assigned servants, Samuel Arnold, guilty of cattle stealing and sentenced Arnold to death, C. Graig, 'William Thomas Lyttleton (1786?-1839)', Australian Dictionary of Biography, vol. 2, p. 143. The other case referred to is R. v. Pain, 1834. For further commentary, see Tasmanian, 16 and 23 May 1834. See also Colonial Times, 13 May 1834.