Skip to Content

Decisions of the Nineteenth Century Tasmanian Superior Courts

True Colonist on the Supreme Court [1836]

Montagu J, press attacks on - Pedder C.J., press attacks on - delays in litigation - judicial bias, allegations of - separation of powers - costs, ruinous

Source: True Colonist, 29 April 1836[1]

ADMINISTRATION OF JUSTICE

The conduct of the Judges of the Supreme Court of this Colony has for years formed a subject of universal, loud, and just complaint in the Island. On a recent occasion, a proposal was made to call a Public Meeting to Petition the King for the removal of Colonel Arthur - a Requisition for this Meeting, bearing the signature of 75 (seventy-five) respectable Colonists, is now in our possession. We know thirty who refused to sign it, unless it contained a Petition for the removal of the Judges; this we considered perfectly superfluous, for we were quite certain that both of those functionaries had committed acts which have, ere now, come under consideration in Parliament, that must ensure their removal with merited censure, long before any other Petition for that purpose could reach England. The atrocious conduct of Mr. Justice MONTAGU in the case of Mr. LEWIS, has, by a liberal Ministry, been most promptly noticed, and compensation ordered to the injured party, in whose person the most sacred principles of natural justice had been insulted and trampled upon by an infuriated Judge, administering the laws of a free people - a Judge who established his just title to the appellation of "The Mad Judge", by selling his law library the moment he was elevated to the Bench. The conduct of the Chief Justice in the matter of Mr. BRYAN has, no doubt, before now, come under consideration in Parliament - part of its consequences are already apparent in the removal of His Honor from the Executive Council; but his awful proceeding in his own case against Mr. MELVILLE, will afford to the British nation an example of judicial oppression, under personal excitement, without any parallel in British history since the passing of the Habeas Corpus Act. As to the other vexatious proceedings, delays of justice - setting aside of verdicts which the whole community approved - heaping up expenses by granting new trials, without end, on the most technical points of special pleading; and the ruin of families, both in a pecuniary and moral sense, which has accrued thereon; it is impossible to call to mind one tithe[?] of the heart-rendering cases which have come before the public, without any reference to the number of individuals who have been harassed by these vexatious delays, until life sunk under the cruel process of mental torture inflicted by the conduct of the King's Supreme Court of Justice in the Colony. Without seeking for other numerous instances which could be enumerated, the two cases of oldSALTER and SHOEBRIDGE are imperishable records of the conduct of the man who was intrusted with the administration of Justice to a population of 30,000 people. SALTER, after having obtained a verdict, was harassed by vexatious quibbles, and alleged doubts, for years, until Death put a period to the suit. In this case the whole public always remarked pending the tedious proceedings, that the defendant, who was greatly benefited by the delays, was the very intimate personal friend of Mr. PEDDER; and that the death of SALTERwould, in a short period, put an end to the action, and leave the Judge's friend in possession of the plaintiff's property, or its value. But the principle of life was strong, and he continued for years to cry in vain for Justice, but death took him, and the Judge's friend was saved from paying the debt and costs!! Poor SHOEBRIDGEdied, crying upon Chief Justice PEDDER for Justice! These and many other abominable delays at length roused the spirit of the Attorney General, (who, with all his faults, possesses in a distinguished degree, some of the best qualities, by which his family have raised themselves to honorable station) and let him to complain to the Governor of the conduct of the Judges, and it is remarkable that within a few days after the removal of JudgePEDDER from the Executive Council, the Council addressed a letter to the Judges, conveying the strongest censure on the conduct of the Court in this respect, which letter was accompanied by the expression of a similar censure by the Secretary of State, through the Governor. The repeated instances of the most outrageousexcitement which the Judges had exhibited on the Bench, particularly against individuals who appeared in person to pray for justice, had long made the Court to be attended as a place of public amusement by persons who enjoyed as sport the awful exhibition of human infirmity by two men who are the constituted arbiters of life and property. All respect and reverence for the Supreme Court, as a Court of Justice, had long ceased to exist; and during the Sittings of the Court in Term, the decisions of the Judges became as common a subject to bet upon, as the result of a horse-race - the bets being regulated by the color of Mr. PEDDER'S nose, and the presence of absence or the "dangerous smile" on Mr. MONTAGU'S countenance, when their Honors took their seats. The Press was the only check upon their Honors, who seemed to rely to the fullest extent on the impunity derived from the fact, so appropriately referred to by the Tasmanian, that "IT IS A FAR CRY TO LOCHOW!" So it is - but the Press is a loud trumpet, which can make its sound be heard even to "LOCHOW;" and the conductors of the Press became the special objects of the wrath of their Honors, which they felt whenever an opportunity offered to visit it upon them. Even the Editor of the Courier appears to fancy that he has been made to feel, when he was before the Court, that he was connected with that object of judicial antipathy, the Press. The treatment of the Editor of this Journal, and the more recent treatment of Mr.MELVILLE by the Judges, and through them by the Executive, both in Court and in prison, is fresh in the recollection of our readers; and the famous "Humbug" case, MURRAY v MURRAY, gave their Honors an opportunity of punishing the Editor of the Tasmanian, without the intervention of a Jury, to the amount of some £70 or £80, because he had not clearly ascertained whether their Honors had carefully studied "Humbug - Exquisite Horsemanship - and the comforts of a Government situation," before he ventured to insert those expressions in his pleas, in answer to a charge for having, in his newspaper, applied them to the plaintiff. And whatever may be the difference of public opinion as to the plaintiff and defendant in the case, the whole publicwas unanimous in a feeling of disgust, at the conduct of the Judges to the defendant. The ruin which the Court has enabled the lawyers to inflict on the Colony by means of exorbitant bills of costs has, for the last ten years, been an unceasing subject of complaint - even the respectable lawyers, who shared the plunder, joining the people in reprobating the practice.

In reply to the general complaints, the Chief Justice always said, "let a case of extravagant charge be brought before the Court, and then the charges will be looked into and the evil corrected. Encouraged by this, Mr.KEMP went in person to make a motion on the subject in Court, and the Chief Justice, very courteously, flew off the Bench by the back door, and left Mr. KEMP talking to the empty chair. Individuals who felt aggrieved were more afraid of the Judges than they were of the persons of whom, they had to complain. The Judges had indeed fenced in their Court and its officers with such a wall of terrors that most men were willing to endure any degree of oppression, rather than venture upon an appeal to the Judges, which, if conducted by the appellant in person was sure to subject him to personal insult from both, and to furious Billingsgate abuse from JudgeMONTAGU. The Chief Justice was the mainspring of the Executive, and it was only to the Press that the public could look for protection against the extortion of the lawyers. We attempted to expose an instance of what appeared to us gross oppression in a lawyer; for this we were brought criminally before the Court by the Attorney General. We proved the truth, or rather made the prosecutor prove the truth of every word that we had published, and we were rewarded with a sentence of imprisonment for a month, and a fine of £20, the Judge telling us that an appeal to that Court would obtain the redress of any wrong similar to that complained of by us, and the punishment of the offender. We, soon after getting out of prison, found an opportunity of putting the truth of his Honor's promise to the test, although we confess that we had not at the moment; the slightest faith in what he said, nor any hope that he would punish a lawyer for extortion. We related last week what we are aware that most of our readers considered a very gross attempt at extortion by a Scotch lawyer, namedHALDANE; and we stated that the matter should be brought before the Court. Let us recapitulate the facts of the case. A gentleman owed a balance of account, £14 16s. 1¾d.; he was arrested on an affidavit that he was about to leave the Colony, for the sum of £20 14s. 7d. Bail was immediately put in; the defendant went to the country, and before the return of the writ the amount of the admitted debt was tendered to the AttorneyHALDANE, with an offer of reference as to the difference (being about six pounds), this was at first assented to, but a few days were taken to consider of it. In the meantime, no bail was perfected pending the negotiation; the return day of the writ passed, and then HALDANE declined farther negotiation, saying, that he had nowfixed the Sheriff. One of the bail then on the 15th instance, in the forenoon, tendered Mr. HALDANE, the whole amount of debt claimed, with £4 costs, being more than the usual costs in case of capias. At that stage of the action, Mr. HALDANE said he could not make out a bill of costs, but that he would make his clerk call with one. The clerk did call, and the "brutal" conduct of Mr. Justice MONTAGU, when the case came before the Court, compels us to call a witness of what passed, to relate it in his own words -

To the Editor of the True Colonist

Sir, - In reply to your request that I should state in writing, whether your conduct was insulting to Mr. NcNall, clerk to Mr. Haldane, on Friday the 16th instant, during an interview in your office, at which I was present, I get to give you the following account:- Mr. McNall came to the office and presented you with a bill which you slightly examined, and referring to the amount, you said, "eight pounds?" and holding up your hands, and looking upwards, you exclaimed, "what an attempt at robbery!" You then said, "do you tender this as your bill," he said yes. You then said you would not pay that, but you would pay four pounds together with the debt claimed. You then tendered him four pounds, and two cheques to the amount of £11. Mr. McNall examined the cheques, one of which was signed by Captain Swanston, and the other by some other name that I did not observe, both of which he refused to take as cash. He then said, "If the bill is not paid within an hour, we will double the costs!" You, upon that hastily said to me, "You hear that Mr. Pierce?" and speaking to yourself, also said, "we will see about that." This was all that passed, and I do not consider that you were insulting to him in any way - the expression you made use of was not addressed to him, and your questions and replied were neither insulting in their words or manner; but Sir, permit me to add, that when Mr. McNall made use of the expression - "we will double the costs in an hour," there was an expression of malice in his manner which I considered very insulting. He left the office, leaving an impression on my mind that he was going home with an intention of committing a cool and abominable act of plunder. Of the facts of this I would be willing at any time to make affidavit.

               Yours                                       THOMAS PIERCE

               Hobart Town, April 20, 1836

The next minute, Mr. PIERCE went and got cash for the cheques, which he, before three o'clock, tendered to Mr. HALDANE personally, in the presence of his clerk, which he refused. On the sixteenth, as soon as summons to stay proceedings could be obtained from the Judges, it was served upon Mr. HALDANE, to appear on Monday the 18th, before one of the Judges - he appeared in person and Mr. YOUNG appeared for Mr. ROBERTSON, but no Judge attended. We presume that it was for not taking advantage of the opportunity which they thus afforded him of extending, his extortion that Mr. Justice MONTAGU blamed him for being too lenient!!! But poor innocent HALDANE! - dear "gentleman!" - was a "young practitioner!" so said the Chief Justice. We think he has made great progress in acquiring the most particular point of the practice and under the tuition of Judge MONTAGU'S young "gentlemen", MCNALL with the countenance and encouragement afforded him by their Honors. We think he bids fair to become a most particular specimen of a Botany Bay lawyer, who will suck as keenly as their Honors could wish. On the present occasion, the poor man was certainly very weak to be so very compassionate, for he only charged £16 4s. 3d., and in place of going on with his costs until he had made them about £100 on the £20 debt, (as he might with perfect impunity have done, in place of being such a chicken hearted fellow as to refer the costs to the Master,) when by going on he might have ruined a respectable family of seven or eight children, and possibly have fleeced an impudent rascal who would dare to interfere to save a friend from being plundered, ad libitum, by a "young practitioner," who, it appears by the evidence of his "trainers," was merely "tasting blood." He is certainlywell entered, and we doubt not that he will gorge his maw very prettily on the next "Quarrie," he meets; and that (particularly if hunted by Judge MONTAGU'S "young gentleman," MCNALL) he will make amends for his first mistake, in allowing himself to be whipped off his prey by Mr. HONE, who only allowed them £3 15s., in place of his original demand of £16 4s. 3d. Now the Editor of this Journal being bail in the case, thought this an excellent opportunity of bringing a plundering attorney before the Court, to shew up the system, and to shew the world, whether or not the Judges were ignorant of the plunder that was going on, or whether, as most people believed, they were not the most guilty by sanctioning such proceedings. On Friday last, he made his motion as we last week said he should, and obtained his rule for HALDANE to answer the above facts. To make this complaint which he did in person, cost him 8s. 6d. for Court fees. On Tuesday, being suffering under severe illness, he attended to support his motion. Mr. HALDANE was there, with the Attorney General, to whose talents he trusted more than to the justice of his case, to get hint out of that which he and all his brethren, and even his learned counsel evidently considered a very awkward scrape. It was a very pretty case for Mr. Stephen's talents, and in an address as long as two ordinary sermons, he certainly did contrive to turn away all attention, from the merits of the case, and to work up the fury of their Honors to the desired pitch by throwing the "True Colonist" on the table, and referring to a threat of shewing up Mr. HALDANE in Mr.ROBERTSON'S "Guillotine". The term which the Chief Justice invented, and Judge MONTAGU adopted for this Journal, of which Judge PEDDER said they were all more afraid than of any power on earth. We believe this is very true. As for Heaven, we are of opinion that their Honors read what comes from thence regarding judgment and justice - backwards, after their eulogium on Mr. HALDANE'S attempt to plunder Mr. NICHOLAS out of £12 9s. After the Attorney General had spoken for an hour, Mr. ROBERTSON rose to reply, which he was scarcely able to do from sickness; but during the five minutes which he spoke, he was four times interrupted by the Attorney General, and the Chief Justice was evidently

"Nursing his wrath to keep it warm,"

For the fatal symptoms were seen rapidly suffusing the surface of his frontal organ, while the "benignant smile"beamed in the countenance of Justice MONTAGU, which from the results which follow its appearance, we have often compared to the last bright flickering of a candle ere it dies in the socket, for with that smile departs for the time all those qualities which its appearance would betoken to exist in the mind of a man whose countenance bore such a sign; and woe betide the man whose conscience accused him, or whose temper failed him, while placed before Mr. MONTAGU, to receive this abuse in such a case, Mr. ROBERTSON said, that without attempting to reply to the long and able special pleading of the Attorney General, he would beg the attention of the Court to these facts -

First - That on the morning of the 15th, the full debt claimed was tendered to Mr. HALDANE, with five shillings more costs than he was found entitled to by the master.

Second. - That the tender was repeated; after he presented his bill of costs, to his clerk and to himself, and by both refused.

Third. - The threat held out by his clerk to double the costs, which threat his master fulfilled, by increasing the bill of costs from £8 to £16.

Fourth. - That the second action on assignment of the bond, against the bail was wanton and oppressive, because it was brought after tender of satisfaction for the debt and costs.

Fifth. - That although Mr. HALDANE did submit to a reference of the costs to Mr. HONE, still that he only did this after had had been summoned before the Judge, and seen the determination of Mr. ROBERTSON to resist his attempt at extortion. Mr. ROBERTSON tendered the affidavit of Mr. PIERCE, in confirmation of his own - this the Court would not receive.

The Chief Justice then said, "your motion is that the Court visit Mr. HALDANE with some censure for attempting to make you pay more than he was entitled to demand." Mr. ROBERTSON. - "It is" "Then I have no hesitation in saying that I will dismiss the rule with costs."

His Honor then followed Mr. STEPHEN through his wide excursive range of special pleading, never touching the points in which the merits lay. He attempted to make an excuse for Mr. HALDANE, by saying that he was "a gentleman," and did not intend to extort, that the overcharge was all a mistake, arising out of his ignorance of the practice of this Court, of which he was a young practitioner, - and he thought Mr. HONE might have allowed for some things which he struck out; and he blamed Mr. HALDANE for having entered into a negotiation with any person not an Attorney, who was only interested as bail. Mr. PEDDER will be sorry yet for ever having uttered that speech.

It opened to us a trait in his character which we never suspected before. He shall hear of it again.

Justice MONTAGU perfectly concurred with the Chief Justice as to discharging the rule with costs, he could not understand why Mr. HONE took so much off the bill - he wished Mr. HONE had been present to explain it. And after a good deal of trouble, he found out some items, amounting to a few shillings, which he said Mr.HONE ought to have allowed. He perfectly approved of MCNALL'S threat to double the costs in an hour, because Mr. ROBERTSON had called the first bill an attempt at robbery - he said that Mr. MCNALL was agentleman (His Honor did not condensed to say whether he meant an "Irish Gentlemen," or "a Gentleman from Ireland,") and that Mr. ROBERTSON was a brutal, unchristian, DEMOCRATICAL, DEMAGOGUE!

This was his climax; we were too ill, to recollect the details of the speech, which, in some points, surpassed the famous Bedlam discourse, which His Honor addressed to Mr. ROBERTSON from the same place on a former occasion. Sickness has put it out of our power to do justice to their Honors this week, as we fully intended when we commenced this article; but sickness has mastered us so, that we cannot attempt answering their Honors to showing the consequences of their decision this week. We will conclude with one or two extracts from private letters which we have received on the subject.

"I do think that Mr. Hone's great experience in these matters might have received a little more respect from the Court this day - at all events, his opinion was surely sufficient to justify you. The bare fact of the reduction of the charge, (by the individual who has all along acted as the Master of the Court) from the sum of £16 4s. to £3 15s. 2d. was surely startling. Was you not entitled to give some weight to Mr. Hone's judgment - nay; was you not entitled to rely upon it? And since you did so, was you not legitimately before the Court? on what principle you are to be punished in paying Mr. Haldane's expenses in answering your motion, I cannot discover.

*          *          *          *          *          *          *          *          *          *          *          *         

"I must say, in my opinion, that you have been hardly dealt with, and in particular, if the Bench is to be protected in making use of the opprobrious epithets which Mr. Justice Montagu hurled at your head; no litigant, who has the feeling of a man can consider himself safe in being enabled to restrain his feelings.

*          *         *         *          *          *         *         *         *         *         *          *

The decision in your case to-day must deter all others from ever making another appeal to the Court. The disrepute which this will bring upon the practice of the Court is too obvious to be pointed out."

Notes

[1]              On the separation of powers, see also Launceston Advertiser, 28 April 1836.  On the Haldane case, see Tasmanian, 29 April 1836.  The True Colonist returned to the attack on 13 May 1836, its focus being on the Crown lawyers' delays in criminal cases before the Supreme Court.  See also R. v. Rowlands (No. 2), 1836.

                The Tasmanian, 20 May 1836, had a very different view, stating that the conduct of Montagu J. throughout the recent sittings had been "calm - courteuous and impartial".

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania