R v Espie, 1840

[assault – Bagdad – road building – land law, road building – trespass to land, self defence – reception of English law]

Mr. John Espie was indicted for an assault and battery on Captain Cheyne, the Director of Public Works, on the lst of February last; the defendant pleaded “Not Guilty,” and, on being called upon to challenge the Jury, before they were sworn, Mr. Espie bowed, and expressed himself perfectly satisfied with the gentlemen in the box.

The Attorney General conducted the prosecution, and Mr. Anstey, assisted by Messrs. Butler, the defence.

The Attorney General, in addressing the Jury, said, that he appeared before them, as Counsel for the Crown; and it gave him considerable pain to see a gentleman of Mr. Espie’s character arraigned at that bar on such a charge; in conformity, however, with the appointment which he had the honor to hold, he had deemed it his duty - unpleasant as it might be - from the papers he had received, to bring forward the present case. Captain Cheyne, it was well known, had duties to perform, which were not very popular; and it was utterly impossible, that he could give general satisfaction; and it was, perhaps, a fortunate circumstance for the defendant, that Captain Cheyne had not used towards him the same weapons, as Mr. Espie had resorted to, as no person was better qualified to “punish” the defendant by such means. The learned Counsel here briefly stated the case, which originated in a dispute about a road, and which will appear in detail from the following evidence.

Captain Cheyne. - I am Director of Public Works, and recollect going, on the lst of Feb., in my public capacity, to Bagdad, for the purpose of marking off a road, from Mr. Armytage’s property, to the main line; I met Mr. Armytage close to his own gate, and on my way to Spring Hill; I went with him, and examined a line of road, from his field to his house; having done so, Mr. Armytage pointed out to me an old line of road, through Mr. Epsie’s property to the main road; I perceived the marks of an old road; I examined the ground, with a view of selecting the best line of road from Armytage’s to the main line; in proceeding towards the main line, Mr. Armytage went before me; I heard a loud talking, and went along the old line of road, towards the spot whence the noise came, when I met Mr. Armytage, returning, accompanied by Mr. Espie and his son; Mr. Espie demanded, in an extremely uncourteous manner, by what authority I was there? I said, I was there by the authority of the Lieutenant Governor; Mr. Espie demanded to see my authority, when I told him I had not thought it necessary to bring it with me; Mr. Espie then told me, that neither the Governor, nor any other person, had any right to be there, and said, that I should not proceed, and ordered me to go back; I said, I was on public duty, and being on the old line of road, I should proceed; Mr. Espie said, he would get three or four men to carry me back; I told him, if I was forced to go back, of course I could not help it, but I should proceed along the old line; Mr. Espie’s son recommended his father to let me proceed, but to prevent Mr. Armytage; there was nothing in my manner calculated to offend Mr. Espie; but he laid violent hands upon me, seized me by the waistcoat and shirt, and tore two buttons off; I then clenched my fist, with an intention to strike him, but he let go his hold.

By His Honor. - Did he say anything? Witness. - Being very angry at the moment, I do not recollect.

By the Attorney-General. - I told him that he had no right to act in that manner, and his son again advised him to let me pass, and I went to the main road; Mr. Armytage went a different way, but Mr. Espie and his son went with me; I said to Mr. Espie, that if I had broken some of his bones, he would have deserved it; Mr. Espie regretted that he had not his pistols with him, or he would have shot me, and requested me to wait till he went to fetch them, and he would fight me; this was as I was getting into my gig.

Cross-examined by Mr. Anstey. - I had no appointment or communication with Mr. Espie before I went to Bagdad about the road, nor with Mr. Armytage; I had intended to examine the line of road as I was going up the country, but had neglected to issue to the parties, the necessary instructions for that purpose; I had, however, directed my Assistant, Mr. Nicholson, to inform them that I should be there on a certain day; Mr. Nicholson is styled Assistant to me; I believe that Mr. Nicholson, in obeying my orders, gave the necessary instructions; I am not aware that any right of road was disputed; my instructions were to preserve the interests of both parties; Mr. Armytage invited me to breakfast, but this would not at all affect my opinion. (Laughter.)

By His Honor. - I got my breakfast before the survey, and sent the gig down the road, and walked over Mr. Armytage’s land, along the line, which he wished to be made into a road, for the purpose of facilitating the conveyance of Mr. Armytage’s farm produce; in doing this, the road was to be made from Mr. Armytage’s, through Mr. Espie’s land; it was to be a cart and carriage road; I did not complete my survey; when Mr. Espie came up, I cannot tell whether I was upon enclosed ground, or not; Mr. Espie told me he had an interest in the land, and that neither the Governor, nor any one else should come there; for that particular road, I received most particular instructions.

Re-examined by the Attorney-General. - The road was a private road, between two gentlemen’s houses, and leading to the main, or public road.

Mr. Anstey rose and addressed the Jury. If this had been a civil action, he would have applied to His Honor, for his opinion, as to whether it ought to go to the Jury; but as the Crown cannot be nonsuited, it became his duty to address them. It is a rule of law, laid down, that a party in possession has a right to commit battery, and call upon this, afterwards, in justification provided the intruder persists in his trespass; and if, in the present case, it could be proved, that the possession was in Mr. Espie, and the trespass in Captain Cheyne, Espie had ample right, and was fully justified in using the force employed. Messrs. Armytage and Espie were neighbours, but were not, it seemed, on neighbourly terms. Like many other persons here, and, indeed, elsewhere, causes of difference had occurred, in which this matter of roads was concerned. The Learned Counsel here adverted to the relative situations of the land of Messrs. Armytage and Espie, with a view to show that the intended survey was an ex-parte one, in favour of the former, and to the prejudice of the latter; and he left it to the Jury to determine this point, taking the matter of the breakfast, with other things, into their consideration. In the present instance, he contended that Captain Cheyne, in the exercise of his duties, had abused his power; for there could be no excuse for the trespass, as no Government officer had any right to trespass upon private property. Capt. Cheyne entered either in favour of Mr. Armytage, or in dis-favour of Mr. Espie; he did not know which, but would leave the inference to the charitable opinion of the Jury. Mr. Anstey here entered into a consideration of the power of the Crown to make roads through private property; in the present case, the grant being a Macquarie grant, no new road could certainly be made without compensation. In fact, the Government had no right to make more than one road without due notice being given to the landlord.

Mr. Anstey. - I apprehend the Government may divert the present road, your Honor, and substitute another, under a writ of ad quod dominum, according to the practice of the mother-country.

Mr. Anstey, in continuation, repudiated the “hole and corner” mode of proceeding, adopted by Captain Cheyne, in surveying the road recommended by Mr. Armytage, and maintained, that he had no right to more than the three roads existing. Captain Cheyne ought also to have given notice to Mr. Espie, and ascertained from him the particulars relating to the roads; he had no right to make private ways, because he is empowered to make public ones, the law of the Attorney General to the contrary, notwithstanding. To discover this, the learned counsel said, he must read all his law books over again. It was clear, that Captain Cheyne’s intent, was not a good and lawful intent, but an illegal, malicious, and partial intent. As to the assault itself, it was already affirmed, that Mr. Espie was no match for captain Cheyne; besides, it was proved that Captain Cheyne clenched his fist in Mr. Espie’s face, when he (Mr. Espie) had let go his hold; and was there anything in this, to have called forth the extraordinary vehemence with which his learned friend, the Attorney General, opened his case in defence of Captain Cheyne? He would not ask for any mitigation of punishment, because he did not anticipate from the Jury a verdict of Guilty. In conclusion, he could not but express his regret that he had been deprived by the Government of the able assistance, which was promised him, by the Solicitor General, who was to have led in the case, but who was prevented from taking a brief. Application had been made to His Excellency for what was, at home, a common and every day occurrence, but which, here, was treated as a very serious matter, and refused. Thus, this important case, which is not only Mr. Espie’s case, but that of every landholder in the Colony, had been entrusted to him, not only inexperienced, but having to contend against the talent of the learned Attorney General; he had mentioned this fact, to show the spirit, in which the case had been brought forward.

For the defence, Mr. William Espie was called, who deposed that the paddock, in which the alleged assault is said to have been committed is enclosed; when Captain Cheyne came there, his father ordered him off, but Captain C., said he would not go, and went away over his father’s land; his father followed him, took him by the collar, and said he should not go on his land; his father then turned him round, and told him to go off the same way as he came on. Witness then asked his father to let Capt. C. go along the road he wished to go, and his father did so. When Capt. C. got to the main road, he shook his fist at witness’s father, and said: It is well for you, Sir, that I did not break some of your bones.” His rather replied: “Capt. C; if you think you are able to do anything of the sort, you had better try.” Capt. C said, “that he did not wish to make a blackguard of himself.” His Father answered “if you do not wish that, I have four pistols, and you shall have three of them.” Capt. C. said, “he was not such a fool,” and then drove off. There was no road to the paddock, without breaking the fence; it was in his father’s possession, and was used for keeping stock.

On Mr. W. Espie’s cross-examination by the Attorney-General nothing material was elicited, excepting that his father and Mr. Armytage had appointed to be on the land to meet Capt. Cheyne about a road.

The Attorney-General, in his reply, intimidated that he was surprised, but not much disappointed, at the course which his learned friend adopted, in reflecting upon the conduct in this case, not of Capt. Cheyne, but of the Government, without allegations. The Government had oppressed the unfortunate Mr. Espie, and had thrown its mantle of protection over Capt. Cheyne! With respect to the prevention of the Solicitor-General from taking a brief in this case, the learned counsel denied that the course stated by his learned friend was generally pursued; at all events, he had not produced a shadow of evidence as to the assertions he had made. There was no proof, either, that Capt. Cheyne had acted either maliciously, illegally, or partially; on the contrary, it was shown that both Messrs. Armytake and Espie were to be there, with Capt. Cheyne, about a road. The learned gentleman had threatened to burn his books.

Attorney-General. - Be it so; and from what he had heard that day from his learned friend, he sincerely hoped that he would adhere to his resolution. He disclaimed any interference, on the part of Capt. Cheyne, in the indictment; that rested entirely with himself, who, from the papers laid before him, deemed it his duty to institute the present prosecution. The learned counsel concluded with a brilliant panygeric upon the high merits of Capt. Cheyne, and an earnest vindication of his own conduct, as the Crown Prosecutor.

His Honor, in summing up, explained in his usual plain and explicit manner, the law of the case. An assault is an attempt to injure, - a battery the injury itself, if even the person be only touched; and no battery can be committed without an assault. His Honor could not help regretting such a case as the present; ill-will existing among neighbours is highly prejudicial to the well-being, not only of individuals, but of the community at large. The case rested upon its specific circumstances, and the Jury would take these into their consideration. The law of trespass was here very lucidly explained. No person had a right to enter or trespass upon the land of another man - whether freehold or leasehold - without proper authority, and any person so trespassing might be removed by legal means or otherwise; that is, if he refused to depart, after due notice given, the possessor might expel him by necessary and reasonable violence; that is, he might take him by the arm, or the collar, and remove him off the land. As regarded the right of the prosecutor to enter Mr. Espie’s land, there was no Act of Council in existence to authorize such intrusion on the part of the Director-General; that officer had no power to lay out, even a highway, without an express authority for such a purpose, was contained in the Grant Deed itself, which comprized certain specific rights. In this case, the Grant Deed had been very prudently withheld - as its production would only have led to the unnecessary consuming of time and attention. Assuming Mr. Espie’s possession to have been legal, - and His Honor did not doubt it. - he, Espie, was fully empowered to remove the trespasser legally, of course, after having first requested him to go away, - a proceeding which was proved to have been made. His Honor now adverted to the degree of resistance made by Mr. Espie for the removal of Capt. Cheyne; on this point, the fact for the Jury to determine was, whether such resistance was reasonable; and, in considering this, the Jury must take into account the unavoidable infirmity and irritability of temper, which would be naturally excited on such an occasion. The case, in truth, was very simple, and laid in a nutshell; Capt. Cheyne came upon Mr. Espie’s land, and is turned off. Was he so turned off legally or illegally, - and was any unnecessary violence used? The point was for the material consideration of the Jury, for upon this the case depended. His Honor, here animadverted somewhat sharply, upon the reflections which Mr. Anstey had cast upon Captain Cheyne’s conduct, - with regard to his alleged favouritism of Mr. Armytage, as opposed to Mr. Espie, observing, that if such a charge could be substantiated, Captain Cheyne ought not to be allowed to hold office for twenty-four hours longer, - still, there was some colour for a suspicion of this favouritism, inasmuch as Captain Cheyne, on the morning in question, came from Mr. Armytage’s house, with Mr. Armytage himself, without giving Mr. Espie any long notice of their intention. This was of course, highly irritating to Mr. Espie, but, still it might be only an oversight, on the part of Captain Cheyne, who might have entertained an over-anxiety to perform his duties, having received certain orders to that effect. His Honor left the case, entirely in the hands of the Jury, who, he had no doubt, would deal with it in the most conscientious manner.

In the case of Cheyne v Espie, the Jury having retired for about ten minutes, came into Court, and delivered a verdict of “Not Guilty”. - Colonial Times.

[1] See also Hobart Town Advertiser, 24 July 1840; Hobart Town Courier, 24 July 1840; True Colonist, 5 June, 1849; True Colonist, 24 July 1840 (the latter including an editorial). For Cheyne see A.Rand, ‘Alexander Cheyne (1785-1858)’, ADB, vol. 1, pp. 219-20.