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

R. v. Macarthur [1808] NSWKR 1; [1808] NSWSupC 1

Bligh, Governor, rebellion against - rule of law - courts, legality of in rebel period - Atkins J.A., treatment of, during rebellion against Governor Bligh - judge, challenge to impartiality of - contempt of court - Crossley, George

Court of Criminal Jurisdiction
Atkins J.A., 25-26 January 1808
Source: Historical Records of Australia, Series 1, Vol. 6, pp 221- 235 [1]

[221] ... (Enclosure no. 1)

The trial of John Macarthur

Proceedings of a Court of Criminal Jurisdiction assembled at Sydney , in New South Wales , under the authority of his Excellency Governor Bligh's Precept, bearing date the 20th January, 1808.

           Sydney , New South Wales , 25th January 1808. Members - the Judge Advocate, Captain Anthony Fenn Kemp, Lieutenant John Brabyn, Lieutenant William Moore, Lieutenant Thomas Laycock, Lieutenant William Minchin, Lieutenant William Lawson, New South Wales Corps.

           The Precept read and members sworn by the Judge Advocate. John Macarthur esq., the prisoner at the bar, addressed the court, praying that he might be allowed to state an objection to Richard Atkins esq., the Judge Advocate, sitting as judge on his trial, which the members of the court, conceiving it but justice due to the prisoner, have required his objections to be stated previous to the Judge Advocate being sworn. The prisoner read the paper marked A, and solemnly protests against the said Richard Atkins being allowed to take his seat as judge on his trial, for the reasons therein stated. The court having taken the same into their mature and deliberate consideration, are of opinion that the objections set forth in the prisoner's protest are good and lawful objections to Richard Atkins esq. sitting on his trial, and feeling themselves bound to state their opinion to his Excellency the Governor on the subject, do therefore state as follows:

Court house, 11.15 a.m., 25th January 1808.

Sir,                  

We, the officers composing the Court of Criminal Jurisdiction this day assembled, beg leave to state to your Excellency that a right of challenge, as per paper A, has been demanded by the prisoner now before us to Richard Atkins esq., sitting as judge on his trial, which we have, after mature and deliberate consideration, agreed to allow as a good and lawful objection. We, therefore, submit to your Excellency to determine on the propriety of appointing another Judge Advocate to preside on the present trial. We further pray your Excellency's protection in the execution of our [222] duty, having been grossly insulted and threatened by Richard Atkins esq. with a seeming view to deter us in our legal proceedings.

We have, etc.,

Signed by the members of the court.

---

Answer.

Government House, Sydney , 25th January 1808, half-past noon.

Gentlemen,

In answer to your letter, just received, I conceive that there could have been no cause of challenge to the Judge Advocate, who is the officer appointed by his Majesty's Patent, and without whose presence there could be no court.

And I consider that the Judge Advocate had a right to commit any person who might commit any gross insult to him while in his official capacity as judge of the court. I do not consider the court to be formed without the Judge Advocate, and when legally convened I have no right to interpose any authority concerning its legal acts.

I, therefore, can do no otherwise than direct that the Judge Advocate take his seat and act as directed by his Majesty's Letters Patent for the constituting the Court of Criminal Jurisdiction, which, being authorised by an Act of Parliament, is as follows:

"And we further will, ordain, and appoint that the said Court of Criminal Jurisdiction shall consist of our Judge Advocate for the time being, together with such our six officers of our sea and land services as our Governor (or, in case of his death or absence, our Lieutenant Governor) shall by Precept, issued under his hand and seal, convene from time to time for that purpose."

I am, etc.,

William Bligh

Directed to the members by name.

---

From the court to the Governor.

25th January, 1808

Sir,

We have had the honor of your Excellency's opinion with respect to the objection made by a prisoner (John Macarthur esq.) at our bar, to the Judge Advocate. We beg your Excellency to be assured that we have at all times the utmost deference to any opinion delivered by your Excellency, but in the present case, we cannot, consistent with the oath we have taken, or with our consciences, sit with Richard Atkins esq. on the trial of John MacArthur esq., knowing as we do that the greatest enmity has for these 13 or 14 years past existed between the parties. We pray your Excellency's further consideration in the present case.

We have, etc.,

Signed by the members of the court.

---

Answer.

Sydney , 25th January, 1808, quarter past 2 o'clock.

Gentlemen,

           In reply to your second letter of this date, I require that you deliver to Mr William Gore, Provost Marshal, and Mr Edmund Griffin, my secretary, who accompanies him on the occasion, all the papers that the Judge Advocate left on the table, and which were refused to be sent to him by the constable, and also those which the prisoner, John Macarthur has read before you, that they may be delivered to the Judge Advocate, his Majesty's legal officer.

I am, etc.,

William Bligh

Directed to the members by name.

---

[223] From the court in reply.

Court House, Sydney , 25th January 1808.

Sir,

We are honored with your Excellency's letter requiring us to deliver to Mr William Gore, Provost Marshal, and Mr Edmund Griffin all the papers the Judge Advocate left on the table and also those which the prisoner, John Macarthur esq. read before us. As it is necessary that we should hold the papers alluded to by your Excellency for our own justification, we beg your Excellency will be pleased to excuse our giving them up. We are ready to render your Excellency attested copies of the whole if you require it.

We have, etc.,

Signed by the members.

---

Answer.

Government House, Sydney, 25th January, 1808,

Three-quarters past 3 o'clock.

Gentlemen,

I have required the Judge Advocate's papers, with those that were read by John Macarthur, and I now demand finally your answer in writing whether you will deliver those papers or not. And I again repeat that you are no court without the Judge Advocate.

I am, etc.,

William Bligh

Directed to the members by name.

---

From the court in answer.

Sydney , 25th of January, 1808

Sir,

In answer to your Excellency's letter, we beg leave to say that we are ready to furnish your Excellency with attested copies of all the papers required, but the originals we are compelled to keep in justification of our conduct. Should your Excellency be pleased, for the furtherance of the public service, to appoint another Judge Advocate for the trial of John MacArthur esq., we are ready to deliver all the papers to the person so appointed. The members of the court, constituted by your Excellency's Precept, and sworn in by the Judge Advocate, beg leave to acquaint you that they have adjourned to wait your Excellency's further pleasure.

We have, etc.,

Signed by the members.

---

Four o'clock. The prisoner, John Macarthur esq., in a paper marked B claims the protection of the court on the grounds therein stated, a copy of which court feel it necessary to transmit to his Excellency the Governor with the following letter:

Sydney , 25th of January 1808

Sir,

We take the liberty to enclose your Excellency a copy of the deposition made before us as members of the criminal court this day assembled, under your Excellency's Precept, by John Macarthur esq. a prisoner at our bar, and we earnestly entreat that your Excellency will be pleased to order such protection to be given Mr Macarthur as in our humble opinion the nature of his complaint merits.

We have, etc.,

Signed by the members.

---

Four o'clock P.M. The prisoner, John Macarthur esq. is remanded to his former bail and Mr William Gore, the Provost Marshal, acquainted therewith by the senior members of the court.

[224] Five o'clock p.m. The court adjourned till tomorrow morning 10 o'clock.

10 o'clock, 26th January, 1808.

The court met pursuant to adjournment and the prisoner, John Macarthur esq., not appearing at the bar, and the sureties being called on by the court to bring forth the body of the said John Macarthur esq., or to forfeit their recognizance, deliver into court that deposition marked C. The court taking the same into consideration, feel themselves bound to record on their minutes that the testimony therein quoted, and made by Mr William Gore, the Provost Marshal, before a Bench of Magistrates (as set forth in the Judge Advocate's warrant) is false. The court therefore, on further consideration, think themselves bound to address his Excellency the Governor, as the executive authority of the colony, on the subject, as follows:

Court house, Sydney , 26th January 1808

Sir,

We have the honor to enclose your Excellency an attested copy of the address delivered to the court yesterday by John Macarthur esq., a prisoner at our bar. The address we trust will induce your Excellency to concur in the opinion we have given, that "the Judge Advocate, Richard Atkins, esq. has been challenged on good and lawful grounds, and is ineligible to sit as a judge in the cause before us".

We also take the liberty to submit to Your Excellency, that, having taken an oath "well and truly to try, and a true deliverance make between our Sovereign Lord the King and the prisoner at the bar, and a true verdict given according to evidence", that we are bound to proceed to the trial of John Macarthur esq., or to violate our oath. We therefore pray that your Excellency will be pleased to nominate some impartial person to execute the office of Judge Advocate.

It is with much concern we have learned by the enclosed deposition made before us by G. Blaxcell esq., and N. Bayly esq., that the body of John Macarthur esq., the prisoner arraigned before us yesterday, has been forcibly arrested from the bail which the court remanded him in, which legal act of the magistrates (grounded on the false deposition of Mr William Gore, Provost Marshal) we beg leave to represent to your Excellency, is in our opinion calculated to subvert the legal authority and independence of the Court of Criminal Jurisdiction constituted in this colony by his Majesty's Letters Patent, and we therefore pray your Excellency will discountenance such magisterial proceedings, pregnant with the most serious consequences to the community at large, and that your Excellency will be pleased to take measures to restore John Macarthur esq. to his former bail, that the court may proceed on his trial.

We have, etc.,

Signed by the members.

---

Three o'clock. The court not being able to obtain an answer from his Excellency (although by a verbal message he promised to send one), and having waited since half past noon, now adjourn till his Excellency's pleasure is known.

Signed by the members' order, A.F. Kemp, J.P.

---

[225] Copy of a circular letter sent to each member of the court after their adjournment.

By his Excellency William Bligh esq., Captain General and Governor in Chief in and over his Majesty's territory of New South Wales and its dependencies, etc., etc.

The Judge Advocate having presented a memorial to me, in which you are charged with certain crimes, you are therefore hereby required to appear before me, at Government House, at nine o'clock, tomorrow morning, to answer in the premises.

Given, etc., this 26th January 1808.

William Bligh

To Captain Anthony Fenn Kemp of his Majesty's New South Wales Corps.

By command of his Excellency,

Edmund Griffin, Secretary

Compared with the original by us, of which is a true copy. A.F. Kemp, J.P.

---

(Paper marked A.)

To the members of the criminal court.

Gentlemen,

It will, I am convinced, excite your surprize, as I think it must be that of every impartial man, to hear that I am brought a prisoner to this bar, utterly unacquainted, except from rumours, of the nature of the accusation against which I am to defend myself.

           Such, however, is the fact. For although I have made three written applications to the Judge Advocate for a copy of the indictment or information, I have not been able to obtain it.

           In this unprecedented situation, and having been informed that the charge against me has been founded on certain events, which originated in the illegal and arbitrary conduct of the Judge Advocate, as exemplified in the correspondence and warrants, I did consider it prudent, and a piece of justice I owed to the community, to protest against Richard Atkins esq. being appointed to sit as a judge on a trial wherein he is so much interested, and in which his own security is so materially involved.

           To prevent unnecessary delay and other consequences that I apprehended, I did, in a letter to his Excellency Governor Bligh, protest against the Judge Advocate, and respectfully required that a disinterested person might be appointed to preside at my trial. To this his Excellency was pleased to answer "that the law must take its course, as he does not feel himself justified to use any interference with the executive power", by which I suppose he meant the judicial authority, as I humbly conceive his Excellency's own power must be the executive.

           Defeated in this attempt to obtain what I know to be my lawful right, my only alternative is to resort to the members of this court, and I do so under an entire confidence that whatever I can prove to be my right, you, as men of honor, will grant me.

           To you, then, gentlemen, I appeal, and now solemnly protest against Richard Atkins esq. being allowed to take his seat as one of my judges at this trial.

           To support this protest, my first objection is because there is a suit pending betwixt us for the recovery of a sum of money that he unjustly withholds, and, as he is screened from the operation of the law, is to be submitted to his Majesty's ministers.

           [226] My second objection is because I can prove he has for many years cherished a rancorous inveteracy against me, which has displayed itself in the propagation of malignant falsehoods, and every act of injustice that can be expected to proceed from a person armed with powers against a man whose life and conduct is, I trust, a public satire on his own.

           My third objection is because I have been long the object of his vindictive malice, in consequence of my having been called as an evidence to support an accusation made against him by John Harris esq. that he was a swindler.

           My fourth objection is because he has associated and combined with that well known dismembered limb of the law, George Crossley (and others of as wicked minds, although not quite so notorious) to accomplish my destruction. In proof of this charge I have evidence to prove that Crossley has prepared the information to be produced on this trial, and has arranged the whole plan of the evidence, he being considered eminently qualified to conduct that part of the business, from his past extensive practice in that particular branch of legal knowledge. I have also proof in my hand, in the writing of the veteran practitioner, Crossley, which will convince the most sceptical mind that other schemes have been agitated to deprive me of my property, liberty, honor, and life. Here it is, gentlemen, read it, and after, read the proceedings of a Bench of Magistrates, and you will see that, for presuming to complain of a most unlawful seizure of my property (which the Judge Advocate joined in reprobating), it has been determined to ruin me. This precious document came into my hands, as it were, by the interposition of Divine Providence. It was dropped from the pocket of Crossley and brought to me. That you may consider it at your leisure I annex a copy of it, and of the proceedings of the Bench of Magistrates.

My fifth objection is because Richard Atkins esq. is my prosecutor in this trial, and is so deeply interested to procure my conviction that, should he fail, nothing but the arm of power can save him from a criminal prosecution at this very bar for his false imprisonment of me.

My sixth and last objection is founded on his having already pronounced sentence of condemnation against me, as is presumptuously proved (and can be clearly) by his declaring that the Bench of Magistrates had the power to punish me by fine and imprisonment, thereby clearly demonstrating an intention to deprive me of the benefit of my present trial.

           It will not, I presume, be denied that the Judge Advocate, from the constitution of this court, combines the two characters of judge and juror, and that it follows as an indisputable consequence that any objection which applies to either character is strictly applicable to him. All that therefore remains for me to do is to lay before you the legal authorities on which I ground my right of challenge.

           1st. authority. "The suspicion of prejudice may be reasonably inferred against a juror from the circumstance of his having an interest in the cause whereby he may be led to wish the condemnation of the prisoner.

"The prisoner must assign his cause of challenge of the relevancy or validity of which the members are themselves the judges. The most valid causes of challenge are suspicion of malice, of prejudice, and infamous character." Tytler, p. 226.

           [227] 2nd authority. "So jealous is the law of the perfect impartiality of jurors that it is allowed to be a good cause of challenge that the juror has been heard to give his opinion beforehand that the party is guilty." Tytler, p. 228.

           3rd. "Two causes of challenge impossible to be overruled are the charge of corruption or bribery verified by competent proof, and malice or hostile enmity expressed by word or deed, against the prisoner. Infamous character is also a most relevant ground of challenge." Tytler, p. 227.

           4th. "It hath been allowed a good ground of challenge on the part of the prisoner that the juror hath declared his opinion beforehand that the party is guilty." Burne's Justice , 2nd vol., p. 813

5th. "The Mayor of Hereford was laid by the heels for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he by the Charter was sole judge of the court." Burne, vol. 3, p. 26.

           6th. "In the case of Foxham, Tithing in the county of Wilts . [(1705) 2 Salk. 607, 91 E.R. 514] a Justice of the Peace was surveyor of the highways and a matter which concerned his office coming in question at the Sessions, he joined in making the order, and his name was put in the caption. Determined by Lord Chief Justice Holt: it ought not to be, as if an action be brought by my Lord Chief Justice Trevor, in the Court of Common Pleas, it must be before Edward Neville Knight and his associates, and not before Thomas Trevor, and it was quashed." Burne, vol.3, p. 27.

7th. "And the better to remove all cause of suspicion of partiality, it was wisely provided by the statutes 4 Edward 3, c. 2; 8 Richard 2, c. 2; and 33 Henry 8, c. 24, that no Judge of Assize shall hold pleas in any county wherein he was born or inhabits." Blackstone's Commentaries , vol. 3, p. 355.

8th. "Jurors may be challenged for suspicion of bias or partiality. This may be either a principal challenge, or to the favor. A principal challenge is such where the cause assigned carries with it evident marks of suspicion either of malice or favour, as that he has an interest in the cause, that there is an action depending between him and the party. These are principal grounds of challenge, and, if true, cannot be overruled." Blackstone, vol. 3, p. 362.

           Gentlemen, it would be an unpardonable waste of your time and an insult to your understandings to press upon you more authorities, for these I have submitted are clear to the point. You will now decide, gentlemen, where law and justice shall finally prevail against the contrivances of George Crossley. You have the eyes of an anxious public upon you, trembling for the safety of their property, their liberty, and their lives. To you has fallen the lot of deciding a point which perhaps involves the happiness of misery of millions yet unborn. I conjure you in the name of Almighty God, in whose presence you stand, to consider the inestimable value of the precious deposit with which you are now entrusted.

           For my own part, knowing you as I do, I have no apprehensions. I feel assured that neither expectation of reward and favor nor dread of persecution will influence your decision. It is to the officers of the New South Wales Corps that the administration of justice is committed; and who that is just has anything to dread?

Sydney , 25th January 1808.                                        John Macarthur.

A true copy compared with the original by us. A.F. Kemp, J.P.

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[228] Copies of papers referred to in the preceding memorial

(No. 1 referred to in document A.)

[1] Mr John Macarthur to Judge Advocate Atkins

Sydney , 20th January 1808

Sir,

I learn from your letter of yesterday's date to G. Blaxcell esq. that a criminal court is to be assembled on the 25th instant, before which I am to be brought, and that I have to subpoena my evidences through the Provost Marshal.

As I am yet in ignorance of the nature of the accusation you may have to prefer against me to the court, I presume you will see the necessity of immediately furnishing me with a copy of the intended indictment or information, to which, as you, sir, are well aware, I am entitled by law.

I am, etc.,

John Macarthur.

[2] Judge Advocate Atkins to Mr John Macarthur

20th January 1808

Sir,

As I am certain you are not, by law, entitled to a copy of your indictment or information, at least in the present stage of the business, you will excuse my not complying with your request.

I am, etc.,

Richard Atkins, J.A.

[3] Mr John Macarthur to Judge Advocate Atkins

20th January 1808

Sir,

As you say you are certain I am not entitled, by law, to a copy of the indictment or information against me in the present stage of the business, will you be pleased to acquaint me with the means by which I am to discover what evidences I shall require to disprove an accusation, the particulars of which it is thought prudent to conceal from me. I say, thought prudent, for, to balance your certainty, sir, by another, I am certain your refusal to grant my request is illegal, and such as you cannot justify. I therefore, hereby repeat the request.

I am, etc.,

John Macarthur.

[4] Judge Advocate Atkins to Mr John Macarthur

20th January 1808

Sir,

In answer to your second letter, I have only to refer you to my answer of your first letter, and to add that your indictment or information is not for high treason.

I am, etc.,

Richard Atkins, J.A.

[5] Mr John Macarthur to Judge Advocate Atkins

20th January 1808

Sir,

As you repeat your first answer, and continue to refuse me a copy of the indictment or information, I also must repeat my last question, "by what means am I to discover what evidences I shall require to disprove an accusation, the particulars of which it is thought prudent to conceal?"

I am thankful for the assurance you have given that I am not to be tried for high treason. As you well know, sir, I had too much cause to apprehend it might be intended (that dreadful crime [229] having been publicly charged against me by the Provost Marshal in the name of his Excellency the Governor). But whether I am to be tried for treason or a misdemeanor, with all due deference to your superior legal knowledge, I maintain that I am entitled to a copy of the indictment or information, in either case, and I take the liberty to say, if you will condescend to consult your law authorities, that you will discover trials for misdemeanors are never brought on (unless by consent of parties) until the next assizes or sessions after the indictment or information has been exhibited.

I am, etc.,

John Macarthur.

A true copy compared with the original by us. A.F. Kemp, J.P.

[No. 6] Mr John Macarthur to Governor Bligh

Sydney , 22nd January 1808

Sir,

I have been apprized by a letter from the Judge Advocate to G. Blaxcell esq. that I am to be brought before a criminal court on Monday, the 25th instant, and I have also learnt that the members of that court had been nominated without any notification of your Excellency's intention to appoint for the time being a Judge Advocate to preside at my trial who is not interested in the event. I should, therefore, be wanting in justice to myself if I neglected to protest against Richard Atkins esq. being suffered to sit as the judge at the impending trial.

           The reason on which I found my objection is because that gentleman is deeply interested to obtain a verdict against me, in so much that, should he fail of so doing, he, in the ordinary course of things, must inevitably descend from the proud character of a prosecutor to the humble and degraded one of a prisoner, called upon to defend himself at the very bar to which he is about to drag me, for the false imprisonment I have suffered under the authority of his illegal warrant.

           On this ground it is, sir, that I do solemnly protest against the said Richard Atkins esq. as a judge upon my trial, and, with all due deference to your Excellency, that I require as my lawful right, that an impartial judge may be appointed to discharge the duties of that sacred office.

I have, etc.,

John Macarthur.

[No. 7] Secretary Griffin to Mr John Macarthur

Government House,

22nd January 1808

Sir,

His Excellency has directed me to acknowledge the receipt of your letter of yesterday's date, protesting against Richard Atkins esq., Judge Advocate, as judge upon your trial.

           Mr Atkins being the judge appointed by his Majesty, and the only person having the power to sit as a judge in the courts in this territory, his Excellency directs me to give you for answer that the law must take its course, as he does not feel himself justified to use any interference with the executive power as by his Majesty appointed.

I am, etc.,

Edmund Griffin,

Secretary.

---

[230] (No. 2 referred to in Document A.)

Mr John Macarthur to Governor Bligh

Parramatta , 1st January 1808

Sir,

I did myself the honor to address a memorial to your Excellency on the 29th ultimo, containing the particulars of a claim I have upon the Judge Advocate, Richard Atkins esq., for a debt of £82.9.5 that I cannot induce him to pay, and praying that your Excellency would be pleased in some manner to interpose your authority in my behalf, or to cause a Court of Civil Jurisdiction to be constituted with powers to compel the said Judge Advocate to answer my demand according to law. In reply thereto I yesterday received a letter from your Excellency's Secretary, acquainting me that a Court of Civil Jurisdiction is open to take cognizance of all civil actions, and that my memorial will be further answered by the Judge Advocate.

           From this, I understand it is your Excellency's opinion that I ought to apply to the present Court of Civil Jurisdiction, of which the person by whom I am aggrieved, is judge, and to call upon Mr Atkins to issue a writ to bring himself before himself to answer my complaint.

This, sir, I hope I shall be excused for saying, would be a proceeding so novel, would be so extremely opposite to the practice of every court of law, and, in my humble opinion, so entirely inimical to the principles of natural justice and equity, that I take the liberty to entreat your Excellency will be pleased to give my memorial a reconsideration. For I persuade myself that you will then see the propriety of the request it contains, and that you will be induced to grant me an opportunity of establishing my claim before an impartial and disinterested tribunal.

I have, etc.,

J. Macarthur.

---

Judge Advocate Atkins to Mr John Macarthur.

10th January 1808

Sir,

Through the favor of his Excellency the Governor, I have been furnished with two communications of yours, the one under the shape of a memorial and the other under that of a letter, on the subject of a bill drawn by me on my brother, Lieutenant Colonel Bowyer, of nigh 15 years' standing. Sir, that bill comes to me in a very questionable shape (all its circumstances considered), no protest having yet been produced; but, let that be as it may, I cannot consider it at present (under the point of view you now stand, to take your trial at the next criminal court) as an object for discussion. I must, therefore, decline entering on this or any other subject deal after that period, our relative situations not admitting it.

I am, etc.,

Richard Atkins.

P.S. It never was, nor is it now, my intention of availing myself of the Statute of Limitations, as my letters will show.

---

Mr John Macarthur to Governor Bligh

Parramatta , 12 January 1808

Sir,

I take the liberty to enclose you the copy of a letter I received yesterday from the Judge Advocate, that I conclude from the manner in which your Excellency's name is introduced may be intended as an answer to the letter I had the honor to write you on the 1st instant.

           [231] What Mr Atkins can mean I am unable to conjecture, by saying that bill I hold "comes in a very questionable shape (all its circumstances considered), no protest having yet been produced". But for the satisfaction of your Excellency I beg to leave to state that when the bill was first presented for payment it was, on being dishonoured, regularly noted, and sent back to this colony by Captain Brooks. Mr Atkins, however, instead of shewing any solicitude to get rid of such a disagreeable testimony, had the address to persuade Captain Brookes that if the bill was again presented to his brother it would be paid, and to give the greater probability to the assurance he wrote a declaration to that effect and signed it officially as Judge Advocate. The bill was, in consequence, taken again to England , but unhappily met with the same fate it had done at first.

           On my return here in 1805 I communicated this unpleasant event to Mr Atkins, and I received a written assurance that the bill should soon be paid. More than two years have expired since that promise was given, and I am now, in lieu of payment, told that a bill drawn near 15 years cannot be considered "at present", because I am to take my trial at the next criminal court.

           If this withholding from me my money be intended by the Judge Advocate as a sort of precurser of a much more severe vengeance that he is mediating at this threatened trial, and if your Excellency should continue to sustain his refusal to pay me by not allowing me to prove my claim before a disinterested tribunal, I must submit with patience. Nor will I any further trouble your Excellency upon the subject until there may be an opportunity to send, with your dispatches, a memorial to his Majesty's Secretary of State for the Colonies.

I have, etc.,

John Macarthur.

A true copy compared with the original by us. A.F.Kemp, J.P.

---

(No. 3 referred to in Document A.)

The memorial of John Macarthur

To William Bligh, esq., etc., etc.

           May it please your Excellency, the memorial of John Macarthur respectfully sheweth:

           That Richard Atkins esq., Judge Advocate of this colony, stands indebted to your memorialist in the sum of ¿82.9.5 on account of the principal and interest due on a bill of exchange, drawn on the 14th of February 1793, by the said Judge Advocate, on his brother, General Bowyer, and which on being presented for payment was refused by the General in the following remarkable words: "I will not pay a shilling for him." That repeated applications for payment of said bill have been since made to the said Judge Advocate without effect.

           That on the 21st instant your memorialist called at the house of the said Judge Advocate with intention personally to require his money, but the Judge Advocate first caused himself to be denied, and, afterwards finding that your memorialist remained in his garden, he sent a servant to say he could not then be spoken with.

           That your memorialist then left a memorandum containing the [232] particulars of his demand, and on the next day he wrote to the Judge Advocate as follows:

           "Mr MacArthur will be thankful to Mr Atkins if he will have the goodness to send him this morning payment of the bill which he delivered yesterday for £82.9.5, being the principal and interest due on Mr Atkins' draft, in favour of Captain Boyde, drawn near 15 years ago."

           That the messenger who took your memorialist's note brought back the following answer:

"Sir, I have received your account of a bill drawn by me on Sir William Bowyer, so far back as the year 1793, for £26 6s. Though I am well aware that by the Statute of Limitations I am not legally bound to pay it, yet, sir, on your producing with the original bill, together with the protest, etc., I will pay it, together with the legal interest from the time it was so protested, but not this day. Richard Atkins."

That your memorialist immediately after the receipt of this letter caused the returned bill (which is regularly noted for non-payment) to be presented to the said Judge Advocate, when he declared there was a mistake as to the sum and interest, but he would be punctual to do what he had before said.

           That seven days have since elapsed, and your memorialist has heard nothing further from the said Judge Advocate, which gave your memorialist cause to apprehend that the Judge Advocate intends to avail himself of the Statute of Limitations, as he has expressly stated in his letter he can if he pleases.

           That your memorialist being sensible he may have some trouble to set aside such a plea, humbly submits to your Excellency's better judgment the unhappy effects it might produce on the morals of this colony if it should appear that a judge resists the payment of a just debt, without any other reason to offer in his defence than that he chose to take advantage of the merciful and indulgent spirit of his creditors.

           Your memorialist humbly trusts that this candid statement of facts will induce your Excellency to interfere on his behalf, and, at all events, your memorialist respectfully intreats that your Excellency will be pleased to constitute a Civil Court of Jurisdiction, powers to compel the said Judge Advocate, Richard Atkins, to answer your memorialist's demand according to law.

John Macarthur

Sydney , 29th of December 1807.

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Secretary Griffin to Mr John Macarthur

Government House,

Sydney , 30th December 1807

Sir,

His Excellency directs me to inform you, in answer to your memorial of yesterday's date, that a Court of Civil Jurisdiction is open to take cognizance of all civil actions, and that he has communicated your memorial to Mr Atkins, the Judge Advocate, who will further answer it.

I am, etc.,

Edmund Griffin,

Secretary.

A true copy compared with the original by us. A.F. Kemp, J.P.

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[233] (Deposition referred to - marked B.)

25th of January, 1808.

The prisoner, John Macarthur esq., now before the court, claims their protection, he having received information from divers friendly persons that a large body of men are armed with orders to carry into execution a warrant from the Judge Advocate against him for exercising his lawful right of challenge against the said Judge Advocate, and assigning his reasons for it, as he was directed to do by the court. The deponent further swears that, from the information he has received, he considers his life in danger from the unprincipled and atrocious characters that are combined against him under the direction of the infamous George Crossley. He therefore declines giving any bail, and entreats the court will be pleased to put him under the protection of a military guard, they being the only persons in whose hands he could consider himself secure.

J. Macarthur.

A true copy compared with the original by us. A.F.Kemp, J.P.

---

(Paper marked C.)

Depositions of Blaxcell and Bayly

To the Court of Criminal Jurisdiction assembled, Garnham Blaxcell and Nicholas Bayly esquires, do make oath before this court that John Macarthur esq. was this morning, about 9 o'clock, forcibly wrested from their charge by two constables by virtue of a warrant of which the following is a copy, although he (the said John Macarthur) was delivered in the charge of the said Garnham Blaxcell and Nicholas Bayly yesterday, when the court adjourned, by the officers composing that court.

Cumberland to wit. Whereas oath hath been made before us this day by William Gore esq., Provost Marshal, that John Macarthur esq. being surrendered into his custody in discharge of his bail, is at large, although he stands charged with certain misdemeanors in inciting the people to hatred and contempt of the government, and has escaped out of his custody contrary to law.

These are, in his Majesty's name, to require and strictly to charge and command you, and every of you, to take into your custody the body of said John Macarthur, and him safely keep and secure in his Majesty's gaol at Sydney, to answer to all such misdemeanors, matters, and things whereof he stands charged on the information exhibited against him, and him safely keep until he shall be delivered by due course of law: hereof fail not at your peril.

Given, etc., this 25th January 1808,

Richard Atkins, Thomas Arndell, Robert Campbell, John Palmer.

The said Garnham Blaxcell and Nicholas Bayly do farther state that they do not consider the person of John Macarthur safe, as he was when first put into gaol delivered in charge of a constable of notorious bad character who formerly lived in his house, from whence he was turned away for robbing his master, and who, as the said Garnham Blackcell and Nicholas Bayly are informed, was appointed to do this duty although not his regular turn.

[234] The said Garnham Blaxcell and Nicholas Bayly therefore humbly hoped that the court takes such measures as in their wisdom may appear to them necessary to restore to them (the said Garnham Blaxcell and Nicholas Bayly) the body of the said John Macarthur esq., their bail bond not being yet cancelled.

G. Blaxcell, Nicholas Bayly

Sydney , 26th January, 1808.

A true copy compared with the original by us. A.F. Kemp, J.P.

Note

[1] The trial of John Macarthur was the most significant event in the judicial career of Richard Atkins. Apart from the well documented trial being a critical trigger for the rebellion against Bligh on 26 January 1808, as Bennett suggests at p. 504 in a 1958 article, it "was a lurid illustration of the status and authority of this Judge Advocate in practice". It also showed the flawed and compromised authority of the position of Judge Advocate itself. The Judge Advocate held multiple and conflicting roles in the colony being not only magistrate, public prosecutor and judge, but also burdened with having to decide on the legality of informations and indictments that he himself had drafted. (See R. v. Till and Bottom, 1793. )

The Court of Criminal Jurisdiction was controlled by the military and occasionally naval officers who comprised its jury. They were untrained in the law and in this case they exhibited no patience with court processes. The notion that law in the colony was to be dealt with in "a more summary way" hinted at the expedient application of military justice. Atkins was arguably not the man to lead such a court. Evatt writes at p. 129 "...the practical control of the criminal court by six officers required the Judge Advocate to possess personality, poise and courage as well as legal knowledge, for otherwise the officers would never pay attention to him".

From the outset Atkins was an interested party in this litigation, being a debtor to Macarthur and therefore, as Macarthur argued, too partial to preside over the trial. However, Governor Bligh correctly pointed out that by the terms of 27 Geo. 3, c. 2, the criminal court could not be constituted without a Judge Advocate. More importantly, the Governor, on the advice of the convict attorney George Crossley, could neither commission nor dismiss a replacement. Macarthur consequently appealed to the six military officers of the court about the injustice of his circumstance. The members accepted Macarthur's argument, over Atkins' protests. The Judge Advocate departed in fury declaring the court could not act without him. Atkins consulted with Bligh and a warrant was issued for Macarthur's arrest. Atkins also recommended to Bligh that the members of the court be charged with treasonable practices, submitting that "the conduct of the six officers amounted to an unlawful usurpation of the judicial power, and was calculated and intended to incite an actual rebellion" (Evatt p. 133).

George Johnston forthwith hastened to Sydney where, "urged on by a petition which Macarthur sponsored, he arrested Bligh and took command" (Bennett, A.D.B., 38-40). The rebel government suspended Atkins from the role of Judge Advocate and proclaimed martial law. That ended the prosecution of Macarthur, and with it, lawful government.

Bennett argues at p. 505 that "these events were unconstitutional but, in their result, of undoubted benefit to the legal system. The colony had too long suffered Atkins' lack of scruples, and he had allowed important matters of law to fall into the hands of a greater villain - the emancipated convict attorney George Crossley". Evatt also suggests at p. 129 that Bligh was severely hamstrung by "Atkins's weaknesses" who, with Crossley, was the Governor's primary source of legal counsel.

Despite the numerous criticisms that can be made of the Judge Advocate's control over the criminal court, there is reason to pause before placing primary blame on Atkins for the collapse of the rule of law in the Macarthur trial. Indeed, Evatt writes at p. 129 that "even from a strictly legal point of view, the result of this assistance [legal assistance of Atkins and Crossley to Bligh] was by no means unsatisfactory. The inference is that Macarthur was of the opinion, not that Atkins and Crossley were making a bad legal job of it, but they were making too good a legal job of it". Atkins found himself on Bligh's side and as a consequence at the centre of a larger battleground, for two important reasons. First, Macarthur chose to use the Judge Advocate as a pawn against Bligh by making himself his creditor, and secondly, Atkins found himself on the Governor's side because his own authority was being seriously threatened. Atkinson at p. 128 also identifies a further reason that may merit a revision of the Judge Advocate's role in proceedings: "child-like and ill-qualified as he [Atkins] was, he can also be seen holding to the thread of principle - the principle of civilian justice - as he picked his way through a complex political maze".

See Evatt, Rum Rebellion , chaps 27-30; J.M. Bennett, "The Status and Authority of the Deputy Judge - Advocates of NSW" (1956-58) 2 Sydney Law Review 501; G.D. Woods, A History of Criminal Law in New South Wales : The Colonial Period 1788-1900 , Federation Press, Annandale , 2002, 31-37; H.R.A. series 1, vol. 4, 59; J.M. Bennett, "Atkins, Richard (1745-1820)", Australian Dictionary of Biography , vol. 1, 38-40; R. Fitzgerald and M. Hearn, Bligh, Macarthur and the Rum Rebellion , Kangaroo Press, Kenthurst, 1988, 112-116; A. Atkinson, "Richard Atkins: the Woman's Judge" (1999) 1 Journal of Colonial History 115.

For other cases concerning the coup against Governor Bligh, see R. v. Gore, 1808; R. v. Sutter, 1808; R. v. Macarthur, 1808; Crossley v. Johnston and others, 1810.

Published by the Division of Law, Macquarie University