The Brisbane Water Case by Central Coast Council

HISTORICAL R E C O R D S OF T H E

CENTRAL

COAST

NEW

SOUTH WALES

THE BRISBANE WATER CASE 1837-S

AND

ESTABLISHED THIRTY-SIX YEARS.

IVCOORZ: V . P A U N C B .

N consideration of Mr. Moore aban-

doiiiug the action brou-^lit against me tbi:i T e r m , ( agrae to pay all the costa d u e b y r. Moore to * es^rs. U u w i n and W a n t , i n tliis action ; and I further authorise H e r ffajesty's Attorncj^ General to make the following^ apology i n op--n Court. T h a t f aptain Faunce acknowledges his error i n sending the search warrant to M r . Moore*8 .house, and admita that it cauoot be justified, and C aptatn FÂťonce regret! (N'ir. M o o r e should Iiave ^uftered any inconvenience, and acc^uits Uiiu o f ail bhiuie i n the t r ^ a a c t i o n .

(Signed) M u r c l ) 1(>, i l i . i i t .

A . T. F A U N C E .

Published in Australia by GOSFORD DISTRICT LOCAL HISTORY STUDY GROUP 4 Adam Street, Narara, N.S.W. 2250 Telephone (043) 25 1055

Philippe Ed. Tabuteau J.P. 1989

A l l rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

ISBN Series No. 0 7316 0651 5 ISBN This volume No. 0 7316 0638 8

This Book i s part of the series titled Historical Records of the Central Coast of New South Wales,

Printed i n Australia

Gosford City Printing Plant

Australia 17881988 T h i s p u b l i c a t i o n has been endorsed by The A u s t r a l i a n B i c e n t e n n i a l A u t h o r i t y to c e l e b r a t e A u s t r a l i a ' s B i c e n t e n a r y i n 1988.

1837-8

Alured Tasker FAUNCE C a p t . 4th Regiment ( K i n g ' s O w n ) 1808

PORTRAIT

—

1856

B Y R I C H A R D R E A D . c. 183.V

R E P R O D U C E D WITH KIND PERMISSION OF DR. M. F A U N C E . OF O U E A N B E Y A N HIS G R E A T G R A N D S O N .

F R O M PHOTOGRAPH DEPOSITED PICTORIAL D E P A R T M E N T NATIONAL

LIBRARY OF AUSTRALIA

HISTORICAL R E C O R D S OF THE

CKNTRAL

COAST

NEW SOUTH WALES

THE BRISBANE WAFER CASE i857-& ESTABLISHED THIRTY-SIX YEARS, BA.TXJ-B.T>A.T, tHASLCS

M , 1838.

ZWOOKS V . T N consiiieralion of Mr. Moore aban-1. duiuug tba action brou^^bt against rae ibia Terra, I ajjrae to pay all the coata due by Moore to > egsrti. U a w i n and Want, in tlu8 notion ; and I furthor authorise Her Aibjesty's AttornejGeneral t o mui^e the following apolcgy i u o^n Court. Thitt f aptatn'Faunce acknowledges h i s e r r o r i n sending t h e search warrant to Mr. v:core's house, and admita that it cannot be JustiAed, and < aptain F s a n c e regrota ^l r. i\>oore should l i a v a au0ered any inconvenience, and aC(|Uits him o f a l l bhime i u the t r ^ a a c t l o n .

March

^MM.

4691

(Signed) \o, iJi;ia.

c s . ' ^ ^ s y ^ ^ o

A . T, F A U x V C E .

"IpMUUhcd Jajy the

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES

A series of records pertaining to the history of the Brisbane Water District, collated chronologically and comprising a comprehensive compilation of primary source records. Including early registers, reports, letters, journals and diaries, newspaper extracts with comments, notes, appendices, explanations, indexes, maps and plans. The purpose of the series has been to assemble i n an easily accessible form, the necessary documentation for an extensive knowledge and better understanding of the history of our d i s t r i c t . VOLUMES PUBLISHED AND AVAILABLE FROM GOSFORD DISTRICT LOCAL HISTORY STUDY GROUP:Rev. Alfred GLENNIE JOURNALS

1855-60

Rev. Alfred GLENNIE JOURNALS

1860 On

The BRISBANE WATER CASE

1837-38

IN PREPARATION: EXPLORATION & DISCOVERIES

1770-1823

T.O.L. and QUARTERLY RETURNS

1826-1843

T.O.L. & Q.R. (CORRESPONDENCE)

1826-1831

POLICE MAGISTRATE REGISTER I

1836-1838

POLICE MAGISTRATE REGISTER II

1838-1846

POLICE MAGISTRATE REGISTER III

1846-1874

BRISBANE WATER DEPOSITION BOOK I

1836-1842

BRISBANE WATER DEPOSITION BOOK II

1842-1855

BRISBANE WATER DEPOSITION BOOK III

1855-1872

CROWN LAND GRANTS

1823-1860

[vi]

CONTENTS Page Historical Records of the Central Coast of New South Wales Acknowledgements Foreword (by Frank Brennan) Introduction: "The Brisbane Water Case" , , Sydney Gazette: Saturday, August 27, 1836 The Brisbane Water Case in its Social and Political Context George MEADOWS: Land George MEADOWS and his Cow The Defendants John MOORE Henry DONNISON Wllloughby BEAN Thomas Alison SCOTT Brisbane Water at the time of Captain Faunce's Appointment Richard CAPE Apology, Moore v. Faunce The Life and Career of Alured Tasker FAUNCE Plan for Survey of the Township at Point Frederick (1839) and Map of Present-day Gosford

[vi] [viii] [ix] [xiii] [xvi] [xvli] [xxv] [xxvii] [xxx] [xxxl] [xxxili] [xxxlv] [xxxv] [xxxvl] [xxxvlll] [xxxlx] [xl] Following [xllv]

PART I: "The Brisbane Water Cases" (Book privately printed by Henry Donnison in 1838)

PART II: Documents related to the Case Trial Documents: Cattle Stealing charges against Donnison, Moore and Bean Documents: Donnison, Moore and Bean v. Faunce . . . . Dates of Court Cases The Press, Local Administration, Class Relationships and the Social Environment In 1836-1838 Press Reports of the Trials of Bean, Donnison and Moore for Cattle Stealing Court Action: Bean, Donnison and Moore v. Captain Faunce for False Imprisonment Court Action: A. T. Faunce v. Cavenagh (of the Sydney Gazette) for Libel Memorials & Petitions: Faunce to Governor, to recover costs incurred in defending his actions in his capacity of Police Magistrate Cattle Stealing in the District of Brisbane Water in the Decades following the Brisbane Water Cases of 1837-38 Epilogue Appendix: 1837 Comprehensive Index to PART I: "The Brisbane Water Cases" by Henry Donnison [vli]

[xlix] 91 92 94 95 96 107 127 181 233 253 275 277 299

A C K N O W L E D G E M E N T S A publication such as Th^ B>iJii,ba.m Watti

Ca6e. 1837-38 would not be

possible without the co-operation and assistance of many individuals. Special thanks must go to the following:*

Eirwen Richards, who was responsible for much of the typescript.

Joan Dent, President of the Central Coast Family History Group, who made a valuable and intelligent contribution during the editing phase of the book.

Professor Butlin of the Australian National University, who gave us his ready co-operation and provided us with a print-out of the Brisbane Water entries from the 1837 General Return of Convicts, enabling our analysis of the Return to begin from a very sound base.

Dr. Marcus Faunce of Canberra, the great-grandson of Alured Tasker Faunce, who very kindly allowed us to use a photographic reproduction of his ancestor's portrait as a frontispiece for this book.

Barbara Perry, Pictorial Librarian, Australian Collections & Services, National Library of Australia, Canberra, who arranged for the photograph of A. T. Faunce's portrait to be supplied to us.

Walter Jackson-Smith, for his Invaluable assistance and practical help with our publications.

The Mayor, Aldermen and Officers of Gosford provided us with an area within the Niagara the Gosford City Library, which we are able research centre and as a distribution point

Judi Peckover, who prepared and traced the maps.

Harvey Feeney and Colin Jager, who print our books in their own time with Council's blessing.

Dorothy Poole and the staff of Gosford City Community Services, for their co-operation and help in many practical ways.

John Grosse, who designed the book cover.

Rob Pickett of Gosford Printing Pty. Ltd., who printed the coloured cover and the photographic plate of A. T. Faunce's portrait.

Necessary finance was made available by the Bicentenary Authority from Federal, State and Local Government funds.

Thanks to a l l those people and institutions who have purchased our f i r s t two volumes: Reu. Al^izd GlmnJLo, JoumaJL^, volumes I and I I , thereby making them now a collector's item, and giving us encouragement to continue with our ambitious publishing programme. Joan

City Council, who have Park Branch Library of to use as an office, for our publications.

fznton

[viii]

The Brisbane Water Cases were a series of legal actions fought out during the latter part of the 1830's. The parties involved were some of the principal landholders of the Brisbane Water district against the government of the day. Ostensibly the reason for these court cases was for alleged cattle stealing; the real reason goes much deeper. After the arrival of Governor Bourke to the colony in December 1831 he implemented a plan to reform the magistracy. One of the f i r s t steps was to reduce the power of Justices of the Peace to i n f l i c t summary punishment on convicts; the second step was to rid the bench of those individuals who for one reason or another he concluded to be inadequate. There i s no doubt that many of the landholders did abuse the trust that was given to them when they were raised to the magistracy. The reason for i t is simple. By being merciless they could increase their wealth more quickly. There are many examples of i t , but probably the most important was that of James Mudie at Castle Forbes on the Hunter River. His convicts were flogged so severely that they mutinied, robbed the stores, attempted to k i l l their overseer, then took to the bush. After being recaptured they were a l l hung, except for one man. An enquiry as to the conduct of Mudie towards his convict servants was held, and as can be expected, Mudie was exonerated on a l l counts except for providing bad and insufficient rations. Mudie was angered by the report and after a series of different actions attacked Governor Bourke for showing favouritism to the convicts. In 1836 Mudie was not reappointed as a J.P. The same year Bourke appointed a young army captain named Faunce to the office of Magistrate and i t appears that he told him he was to clean up the magistracy of the Brisbane Water area. We cannot be certain that this conspiracy did take place, but i t does appear to be so. Neither Bourke nor anyone else in the Government ever denied the charge, and there i s other evidence which supports the supposition. [Ix]

Faunce was immature both politically and practically. He thought he saw an opportunity of carrying out his orders, and took f u l l advantage of i t . The outcome was that charges were laid against Henry Donnison, Willoughby Bean and John Moore. The result was that a l l three men were acquitted. At the period of time when these events occurred they raised a great deal of emotion because they formed part of a play for power and wealth. Either the governor would win in reforming the magistracy, or the magistrates and their friends would succeed in counteracting Bourke's policy. As Donnison said i n his introduction to The Brisbane Water Cases "... a great public principle is involved ... as well as the characters of a l l the parties concerned." When Mudie had lost his appointment as a Commissioner of the Peace, he had retaliated with a pamphlet in 1837 called "The Felonry of New South Wales". Henry Donnison saw himself as the principal person attacked by Faunce, and hence Bourke and his government, and also by the faction of the colony which supported these people. It may not be without significance that Roger Therry who was the barrister who defended the convicts in Mudie's case was on the opposite side to Donnison in some of the litigation which followed his arrest. Donnison wrote his own pamphlet describing the series of trials in 1838. He called i t The Brisbane Water Cases. Although Donnison was a very literate man, he was writing about a series of events which was familiar to a l l his readers. He did not take into account that readers in future generations would have no idea of what he was talking about. If he had done so he would have written the book in chronological order with a clear explanation of what had happened. Donnison did not do this, and in order to understand to what event he was referring, i t is necessary for the reader to have a chronolgy of events in front of them. This defect apart. The Brisbane Water Cases form a fascinating insight into the thoughts, mentality, and social attitudes of the day. The vehemence with which they fought for affronted dignity gives an indication of what class structure then meant.

[x]

One of the great fascinations of The Brisbane Water Cases, is that although these men were found innocent as charged, there i s a lurking suspicion that maybe they were lucky. The future careers of some of the people involved were certainly not highly respectable. Richard Cape, for example, ended his years in the South Pacific rather than remain i n New South Wales to face further charges of cattle duffing. On the other hand, Willoughby Bean returned to England and became a minister of religion. Whatever the rights and wrongs of what then happened, the judgement of most historians today would tend to side with Governor Bourke. There were some magistrates who were using their position of public power for private advancement. Bourke used his position to clean up a system that was at times completely inhumane; in the process he encountered a lot of antipathy and opposition from those who lost out in money, authority, position and prestige. Because of the manner in which Henry Donnison penned The Brisbane Water Cases his book is not easily readable as i t might otherwise have been. A careful reading, however, w i l l bring i t s own reward with an insight into a period of the past which is not otherwise available. It is well worth the effort. Frank BRENNAN President Gosford District Local History Study Group. September 1986

[xl]

HISTORICAL RECORDS OF THE

CENTRAL COAST OF NEW

SOUTH WALES

I N T R O D U C T I O N

"THE

B R I S B A N E WATER

CASE"

M o t i v a t e d by a s i m i l a r b e l i e f t o t h a t of S i r W i l l i a m D i x o n , who d i r e c t e d t h a t the money he l e f t be a p p l i e d t o : "the r e p r i n t i n g of books and documents r e l a t i n g t o A u s t r a l i a and the P a c i f i c , which have become so s c a r c e t h a t they are not a v a i l a b l e t o s t u d e n t s , or the h a n d l i n g o f the o r i g i n a l of w h i c h i s deemed.... t o be i n a d v i s a b l e " , we

decided

the.

to i n c l u d e i n our s e r i e s o f the "HJiitoi-ical

CzntKal

Coait

Maw "The.

South. Wale.'i" the

oi Bejin, MK.

RzcoKd^ entitled:

B^l6bane. WateJi Caiz^" EeJing a.

M^.

r a r e book

the.

UnKiathje,

TIULI^

VonnLion

and

o{i M-t.

Moo^e. &c

T h i s book, which i s more i n the form of an 89 page pamphlet, was p r i v a t e l y p r i n t e d "by one of the p a r t y " i n Sydney i n 1838. O r i g i n a l c o p i e s of the book are v e r y s c a r c e and no f a c s i m i l e r e p r o d u c t i o n i s l i k e l y t o be made s i n c e the s u b j e c t i s of l i m i t e d i n t e r e s t , being a l o c a l a f f a i r . T h i s i s the type of book, a l o n g w i t h our M a g i s t r a t e s ' R e g i s t e r s and y e t u n p u b l i s h e d J o u r n a l s , of w h i c h S i r W i l l i a m would have approved. He would not have c o n c u r r e d , however, w i t h our d e c i s i o n t o i n c l u d e contemporary m a t e r i a l , indexes and comments, as i n h i s W i l l he e x p r e s s e d h i s i n t e n t i o n s that: "The o r i g i n a l t e x t s h o u l d be reproduced w i t h o u t note or comment.... the mind of the student s h o u l d not be d e f l e c t e d , p r e j u d i c e d or b i a s e d i n any way by extraneous m a t t e r . . . . the student s h o u l d be g i v e n the t r u e and exact m a t e r i a l t o work upon and be l e f t t o form and e x p r e s s h i s own v i e w , c o n c l u s i o n or judgement..." [xlll]

Here, however, we a r e a t l i b e r t y r a t h e r t o f o l l o w the g u i d e l i n e s t r a c e d by F r e d e r i c k Watson, the e d i t o r of the H i s t o r i c a l Records of A u s t r a l i a , t h a t l a r g e and u n f o r t u n a t e l y uncompleted s e r i e s o f r e c o r d s , which h i s t o r i a n s f i n d so v a l u a b l e and t i m e - s a v i n g . Watson has o f f e r e d the b e n e f i t o f h i s knowledge and e x p e r i e n c e f r e e l y i n a way we can o n l y t r y t o emulate. I t has not been our purpose t o i n f l u e n c e our r e a d e r s ' v i e w s , or t o a f f e c t the f o r m i n g of p e r s o n a l c o n c l u s i o n s ; we merely o f f e r a d d i t i o n a l m a t e r i a l and s e l e c t e d complementary contemp o r a r y e x t r a c t s r e l a t e d t o our s u b j e c t i n o r d e r t o balance the v a r i o u s sources and t o p r o v i d e a w i d e r v i e w of the s u b j e c t . The student w i l l be a b l e t o form a b e t t e r judgement, we t h i n k , by b e i n g a b l e t o r e f e r t o the e x t e n s i v e i n f o r m a t i o n w h i c h we have gathered f o r i n c l u s i o n by d i l i g e n t r e s e a r c h .

How

w e l l , or even what, do we know o f our f i r s t

settlers?

We know most of our p i o n e e r s from j u s t a few marks on a tombstone. Some l a n d h o l d e r s a r e s i m p l y names on s t r e e t s i g n p o s t s . What do surnames l i k e Cape, Donnison, Faunce, Bean, Moore, H e l y , B a t t l y , and many o t h e r s , once so w e l l known, mean t o most people? Many of these e a r l y s e t t l e r s moved away from the d i s t r i c t when they f a i l e d t o make the f o r t u n e they sought. We are happy t o share w i t h our r e a d e r s the i n f o r m a t i o n we have about the men whose names have been g i v e n to many of our s t r e e t s . Many s t r e e t s i g n s have a l s o d i s a p p e a r e d , and s t r a n g e r s o f t e n seek someone who w i l l p o i n t t h e i r f i n g e r showing the r i g h t direction. Of the names quoted above, F r e d e r i c k Augustus Hely i s perhaps the best remembered. He was I n t e r r e d on h i s l a n d a t Wyoming, w h i c h he named, near the house he i n s t r u c t e d John Verge t o b u i l d ( a l t h o u g h t h i s was not done u n t i l a f t e r h i s d e a t h ) , near the s t a b l e s t h a t h i s a s s i g n e d s e r v a n t s b u i l t . John Moore and Henry Donnison were a l s o b u r l e d l o c a l l y , i n unmarked g r a v e s : they l e f t no p o s t e r i t y t o remember them locally. I t i s perhaps the r o l e of l o c a l h i s t o r i a n s to c o l l e c t such names - too o f t e n m i s s p e l t - and to I n v e s t them w i t h some p e r s o n a l i t y , c l o t h i n g them w i t h the shreds of evidence they have been a b l e t o gather about t h e i r persons and f a m i l i e s , d e s c r i b i n g t h e i r t r a n s a c t i o n s and t h e i r l o c a l w h e e l i n g s and dealings.

[xiv]

The volume "Thz BlUsbann WateA. CaiZ 1837-38" i n the c o l l e c t i o n o f the "HiAtoKlcal RacofLdi the. Central Coait oi Mm South

Wale^" i s a book w h i c h g i v e s us an a p p r e c i a t i o n of the s o c i a l environment, the economic c i r c u m s t a n c e s and the p r e j u d i c e s and p r a c t i c e s of the people of the t i m e . More i m p o r t a n t l y , i t i n t r o d u c e s us, w i t h some degree of I n t i m a c y , t o the men who took p a r t i n the a c t i o n d e s c r i b e d . The names of Donnison, Faunce, Moore, Bean, T. A. S c o t t and Cape have endured t o t h i s day. Others - o r d i n a r y f o l k a r e r e c o r d e d here f o r the f i r s t time. I n t h i s book they take l i f e : McGrath, F r o s t , Meadows, Maltby Smith, F l e t c h e r and Bramble a r e some of the names t h a t come t o mind. These men g i v e e v i d e n c e i n t h e i r own words; they express t h e i r f e e l i n g s ; they recount branding s e s s i o n s , d e s c r i b e c o n t e s t e d b e a s t s , r e p o r t arguments and d i s c u s s i o n s and the many d e t a i l s o f an a f f a i r which could e a s i l y have been f a r c i c a l i f we were not reminded a t every t u r n t h a t t h i s was a v e r y s e r i o u s case. The book i s a l s o a document about l i f e i n the Colony a t t h a t p e r i o d , the 1830's. B r i s b a n e Water was not a p a r t i c u l a r and I s o l a t e d case; the Colony was s t i l l a l i t t l e w o r l d where Donnison c o u l d c a l l on the Governor t o express h i s views to H i s E x c e l l e n c y f a c e t o f a c e . He j u s t asked the C o l o n i a l S e c r e t a r y f o r an appointment. He a l s o c a l l e d p e r s o n a l l y on the A t t o r n e y - G e n e r a l t o get h i s o p i n i o n about the case. Newspapers d e l i g h t e d i n p u b l i s h i n g outrageous " L e t t e r s t o the E d i t o r " i n which anonymous correspondents expressed thems e r v e s i n terms which today would a t t r a c t a defamation a c t i o n . The " B r i s b a n e Water Case", then, i s one of those books which i n t r o d u c e s us t o the c h a r a c t e r and m o t i v a t i o n of some of our e a r l y s e t t l e r s .

P h i l i p p e Ed. TABUTEAU, J.P., Editor, Historical

Records of

the

Central

Coast of

New

South Wales,

Chairman, History

Sub-Committee,

Gosford C i t y B i c e n t e n n i a l

Community Committee.

Honorary S e c r e t a r y , Gosford D i s t r i c t L o c a l H i s t o r y Study Group.

NARARA, 1st December,

[xv]

1988.

S Y D N E Y

G A Z E T T E

SATURDAY, AUGUST 27, 1836 BRISBANE WATER [FROM A CORRESPONDENT]

From a P e t i t i o n which i s going round the d i s t r i c t of Brisbane Water, i t appears the present P o l i c e Magistrate, Jonathan Warner Esq., J.P. has resigned the o f f i c e , and that a c e r t a i n i n d i v i d u a l w e l l known to our Sydney Merchants, and the Supreme Court BcUti{j{^6, whose name i s retained i n the commission, i s using h i s influence with the i n h a b i t a n t s , who are a l l such s e t t l e r s , to e f f e c t i f possible the re-appointment of an ex J.P. of Darling's. As Brisbane Water, though not very populous, i s the middle s t a t i o n between the Hunter and Sydney, and a place of continual t r a f f i c i n timber, shingles, s h e l l s , lime, and various produce numerous sawyers, shingle s p l i t t e r s , and boatmen, besides Uimawa.y'!, FREE as w e l l as bond, congregating there - i t i s to be hoped His Excellency w i l l have authentic Information as to the competency of Mr. Warner's successor. The d i s t r i c t unfortunately has few respectable r e s i d e n t s , and the s e l e c t i o n of a P o l i c e Magistrate, i f from the quarter i t s e l f , must be made notoriously d i s q u a l i f i e d , both by t h e i r character and t h e i r conduct; or from others, whose education and habits would also incapacitate them f o r so important an office. The readers of the Sydney Journals, no doubt remember the numerous Instances of manslaughter and deaths, under very suspicious circumstances, which have occurred almost yearly : i n how few of them the perpetrators have been brought to j u s t i c e ! Mr. Warner's presence, and h i s known reputation, as an a c t i v e and i n t e l l i g e n t magistrate, has had good e f f e c t , but i t has been but of short duration. His retirement I s therefore a matter of regret to s e v e r a l , e s p e c i a l l y as an attempt i s i n progress to hoodwink His Excellency, and revive an influence which i t i s known i s opposed not only to the i n t e r e s t of j u s t i c e , but

to the moial condttLon of CAvltiisdd

man.

I f Mr. Warner has resigned, we regret to hear i t , as a more zealous, honest, and e f f i c i e n t Magistrate was not to be met with i n any part of the Colony. The o f f i c e of P o l i c e Magistrate involves very p e c u l i a r and onerous d u t i e s . We hope s u f f i c i e n t Inducements w i l l be held out by the Government to Mr. W. to continue i n o f f i c e .

(p.2, c o l . 2)

[xvi]

THE

BRISBANE WATER CASE

IN ITS SOCIAL AND

POLITICAL CONTEXT

The o f f i c e of P o l i c e M a g i s t r a t e was one which brought t o i t s h o l d e r p r e s t i g e and power i n the community, but the M a g i s t r a t e had t o devote much of h i s own time t o the d i s c h a r g e o f the d u t i e s of h i s p o s i t i o n . A p r i m a r y duty r e q u i r e d him t o s i t on the Bench l i s t e n i n g t o , and a d j u d i c a t i n g upon, the numerous cases brought b e f o r e him by the e x t r a o r d i n a r i l y l i t i g a c i o u s s e t t l e r s o f B r i s b a n e Water. I n 1832, the year f o l l o w i n g t h a t when our f i r s t m a g i s t r a t e , W i l l o u g h b y Bean, was demoted from o f f i c e , F r e d e r i c k Augustus H e l y , the G e n e r a l Superintendent of C o n v i c t s and a l a r g e l o c a l land-owner (perhaps one of the l a r g e s t i n the C o l o n y ) , had e v i n c e d an i n t e r e s t i n b e i n g a p p o i n t e d s t i p e n d i a r y r e s i d e n t m a g i s t r a t e a t a s a l a r y o f ÂŁ250 per annum.[*] Governor Bourke d e c l i n e d t o a p p o i n t him. When the events l e a d i n g t o the B r i s b a n e Water Case were t a k i n g p l a c e , our second m a g i s t r a t e , Jonathan Warner, had r e s i g n e d h i s post o f V i s i t i n g M a g i s t r a t e t o B r i s b a n e Water, where he had s a t on the Bench w i t h Henry Donnison, a man w i t h whom he o f t e n d i s a g r e e d . Donnison was the o n l y r e s i d e n t J.P., and he had expected t o become the l o c a l P o l i c e M a g i s t r a t e . We a r e l e d t o b e l i e v e t h i s from a communication p r i n t e d i n the Sydney G a z e t t e o f 27 August, 1836, p r o b a b l y emanating from the pen of W. Cape. As m a g i s t r a t e , Donnison would have enjoyed I n c r e a s e d p r e s t i g e and I n f l u e n c e and would have been i n a p o s i t i o n of power, h a v i n g the l o c a l p o l i c e under h i s a u t h o r i t y . However, many r e s i d e n t s were averse t o Donnison's appointment. He a l s o had shown t h a t he was an opponent o f the Governor's p o l i c i e s as we become aware i n r e a d i n g h i s book. Governor Bourke, i n h i s wisdom, d e c i d e d t o a p p o i n t a p e r s o n from o u t s i d e the d i s t r i c t . U n f o r t u n a t e l y , h i s c h o i c e was not s u c c e s s f u l . The Governor had a p p o i n t e d A l u r e d Tasker Faunce, a young c a p t a i n d e v o i d o f the common t o u c h , even of common sense, diplomacy or d i s c r e t i o n . T h i s i s v e r y w e l l put t o us i n Donnison's pamphlet of s e l f - j u s t i f i c a t l o n . [* H.R.A. XVl-715.]

[xvii]

The cause o f the c o u r t a c t i o n w h i c h became known as "The B r i s b a n e Water Cases" - the t i t l e g i v e n t o h i s book by Donnison - was a v e r y unimportant a f f a i r : the s l a u g h t e r o f an o l d cow o f l i t t l e v a l u e whose i d e n t i t y was not c e r t a i n and whose k i l l i n g was perhaps a m i s t a k e . N e v e r t h e l e s s , the l i f e o f our s m a l l l o c a l community was g r e a t l y upset as a consequence, and the d i s r u p t i o n l a s t e d l o n g a f t e r w a r d s . T h i s was a r a t h e r minor a f f a i r w h i c h , w i t h the h e l p o f the p r e s s , grew out of p r o p o r t i o n . I t may even be l o o k e d upon as a t r i v i a l I n c i d e n t . Faunce caused i t t o be made I n t o a s c a n d a l by h i s m i s h a n d l i n g which t u r n e d Donnison and "accomp l i c e s " i n t o m a r t y r s who were p e r s e c u t e d - not prosecuted by the Governor h i m s e l f through h i s s u b s e r v i e n t c r e a t u r e , the l o c a l P o l i c e M a g i s t r a t e . The Sydney G a z e t t e newspaper h a p p i l y made s e n s a t i o n a l copy out of i t . For a l l i t s t r i v i a l i t y , i t would be a m i s t a k e t o conclude t h a t the case was unimportant. C e r t a i n l y i t has elements o f f a r c e , but the p r o t a g o n i s t s d i d not see i t i n t h a t l i g h t and n e i t h e r d i d the Governor. The o b j e c t of c o n t e n t i o n may have been n e g l i g i b l e , but the case was one o f p r i n c i p l e s and i l l u s t r a t e s the mood o f the p e r i o d . Without some knowledge and u n d e r s t a n d i n g o f the l o c a l c o n d i t i o n s p r e v a i l i n g a t the t i m e , i t would be c o m p l e t e l y i m p o s s i b l e t o u n d e r s t a n d how such a t r i f l i n g episode was i n f l a t e d i n t o such a " s c a n d a l o f nepotism and highhandedness", i f the r e p o r t s i n the papers and Donnison's book a r e t o be taken l i t e r a l l y . We must remember t h a t i n 1837, by Cavenagh, was a n t i - G o v e r n o r supported Governor Bourke.

the Sydnm Gaztttz, edited Bourke. Tht KaitiaUicLn

The s t o r y c o u l d have p r e s e n t e d G i l b e r t & S u l l i v a n w i t h the p l o t f o r an o p e r e t t a w h i c h would have d e l i g h t e d them both. A l l the personages f o r the c a s t were t h e r e : a bloody-minded b l u s t e r i n g C a p t a i n , head o f the l o c a l p o l i c e a s s i s t e d by a m a l e v o l e n t c l e r k , a t r i o o f accused - i m p o r t a n t l o c a l personages, p e r s e c u t e d on f l i m s y c h a r g e s , thrown i n t o the l o c k - u p , put i n i r o n s , and h u m i l i a t e d . I n the r o l e of a r c h v i l l a i n t h e r e was a p e r f i d i o u s a c c u s e r a b e t t i n g a r e l u c t a n t a c c o m p l i c e t o p r o f f e r charges w h i c h c o u l d not be s u s t a i n e d . There were c o n n i v i n g s e r v a n t s , c o n f l i c t i n g e v i d e n c e , and accusations of p e r j u r y . We a r e shown i n the background the I n f l u e n c e of the p o w e r f u l Governor, i l l - d i s p o s e d towards the a c c u s e d , p a r t i c u l a r l y one who had o f f e n d e d him p e r s o n a l l y . The c u l m i n a t i o n o f the a c t i o n i s when the defendants a r e sent by boat t o be judged i n Sydney. When the j u r y d e c l a r e d them i n n o c e n t , they a r e a c q u i t t e d and s e t f r e e . The l a s t episode i s a m o r a l c o n c l u s i o n w h i c h sees the t h r e e f a l s e l y p r o s e c u t e d c h a r a c t e r s t u r n a g a i n s t t h e i r tormentor. He i s c o n v i c t e d o f h a v i n g I l l - u s e d the power o f h i s o f f i c e .

[xviii]

condemned t o pay damages and even l o s e s h i s case a g a i n s t a newspaper w h i c h had a l e r t e d the p u b l i c t o h i s misdeeds. He l o s e s h i s p o s i t i o n , has t o pay damages, and l e a v e s the d i s t r i c t permanently. The v i l l a i n l e a v e s the C o l o n y . p r e c i p i t a t e l y , and i t i s h i n t e d t h a t r e t r i b u t i o n l a t e r caught up w i t h him i n f o r e i g n l a n d s . T h i s i s , w i t h o u t e x a g g e r a t i o n , t h e o u t l i n e o f what Donnison conveys i n h i s book. The B r i s b a n e Water Case, however, was f a r from b e i n g a humorous e p i s o d e i n t h e h i s t o r y o f our d i s t r i c t , w h i c h a t t h a t t i m e had been s e t t l e d f o r l e s s t h a n 15 y e a r s . I t was s t i l l a p r i m i t i v e , undeveloped r u r a l a r e a , not v e r y much changed from the p i c t u r e g i v e n 10 y e a r s p r e v i o u s l y i n the 1828 Census. I n 1828, o n l y 14 l a n d owners s u p p o r t e d a popul a t i o n o f j u s t under 100 p e o p l e . E x t e n d i n g from Lake Macquarie t o P i t t Water, the B r i s b a n e Water d i s t r i c t was formed by a c o a s t a l s t r i p o f l a n d e x t e n d i n g west by not more t h a n 15 m i l e s . I t was i n t h i s p a r t i c u l a r a r e a c o v e r e d by the 1828 Census t h a t the B r i s b a n e Water Case d e v e l o p e d . I t c o r r e s p o n d s q u i t e c l o s e l y w i t h what i s now c a l l e d the C e n t r a l Coast o f New South Wales. R i c h a r d Cape, the " v i l l a i n " , was a t Wyong, The r e s t of the d i s t r i c t was c o n t a i n e d between Tuggerah and Kincumber ( G o s f o r d was not t h e n s u r v e y e d or named).

SOCIAL CLIMATE The d i s t r i c t ' s p o p u l a t i o n was i n c r e a s i n g , but no urban d e v e l o p ment had t a k e n p l a c e . Free I m m i g r a t i o n i n New South Wales had been implemented i n 1831, f r e e g r a n t s were d i s c o n t i n u e d at the same t i m e . S t i l l w i t h o u t u r b a n a l l o t m e n t s a v a i l a b l e to b u i l d a f a m i l y house, the p o p u l a t i o n was dependent on landowners f o r a p l a c e of d w e l l i n g : t h e y were not independent. A s s i g n e d s e r v a n t s w i t h T i c k e t s o f Leave were t e c h n i c a l l y s t i l l bound, as t h e y c o u l d not l e a v e the d i s t r i c t w h i c h was i n d i c a t e d on t h e i r T i c k e t o f Leave w i t h o u t a s p e c i a l p e r m i s s i o n . They were p r a c t i c a l l y f r e e t o work f o r whoever t h e y w i s h e d , but were c o n s t a n t l y under t h r e a t of h a v i n g t h e i r T i c k e t t a k e n from them f o r m i s b e h a v i n g o r upon a c c u s a t i o n of h a v i n g m i s behaved, w h i c h many d i d . The e v e r - p r e s e n t p o s s i b i l i t y o f l o s i n g t h e i r T i c k e t of Leave c e r t a i n l y d i d not g i v e r i s e t o a f e e l i n g of Independence. There was l i t t l e i n d u s t r y , a p a r t from some a s h - b u r n i n g and s h e l l - g a t h e r i n g w h i c h took p l a c e . Timber and c a t t l e were the main i n d u s t r i e s , which were i n t h e hands of landowners, and were conducted by t h e i r s e r v a n t s .

[xlx]

There was no Independent way t o make a l i v i n g . One had t o be e i t h e r a landowner, o r working f o r one. There was no baker, b l a c k s m i t h , c a r p e n t e r , b r i c k l a y e r , shopkeeper, n o r any t r a d e c a r r i e d on by an i n d i v i d u a l : n o t even an i n n . Grog was o f t e n made and d i s t r i b u t e d u n l a w f u l l y . The people were w h o l l y dependent on a landowner f o r work o r f o r a p l a c e t o l i v e . Rapport between the two c l a s s e s was o f t e n t e n s e . T h i s was a l s o t r u e o f t h e r e l a t i o n s between t h e workers themselves, and more o f t e n between the landowners. Land g r a n t boundaries were o f t e n i l l - d e f i n e d o r d i s p u t e d , and c a t t l e were a source o f arguments. There were no f e n c e s ; mobs were r u n t o g e t h e r and o f t e n m i x t u r e s o c c u r r e d which gave r i s e t o arguments and even f i g h t s a t muster o r b r a n d i n g t i m e . There was no f a r m i n g o f crops worthy o f mention, as we see by Warner's r e t u r n s . I n 1833, t h e p o p u l a t i o n was 315, made up o f 152 c o n v i c t s and 163 f r e e people. There was no v i l l a g e o r urban s e t t l e m e n t . Farming was v e r y r e s t r i c t e d ; maize was t h e main crop o f 140 a c r e s , w i t h wheat and b a r l e y a c c o u n t i n g f o r a f u r t h e r 70 a c r e s . Onions seemed t o be a cash crop w i t h 27 a c r e s , making n e a r l y 50 t o n s . P o t a t o e s were a s m a l l 18 tons grown from 9 t a c r e s , and t h e r e were 8 a c r e s o f tobacco. The a b s t r a c t o f the>muster o f 1836 g i v e s a p o p u l a t i o n o f 621, made up o f 459 men and 162 women, o f whom 157 were c o n v i c t s , and 464 f r e e . The c o n v i c t muster o f 1837 i s a l s o a v a i l a b l e , w h i c h we have t a b u l a t e d . T h i s muster g i v e s us t h e number and p l a c e s o f employment o f a l l c o n v i c t s a s s i g n e d a t B r i s b a n e Water. Thus we have a contemporary p i c t u r e o f t h e l o c a l c o n v i c t p o p u l a t i o n and o f t h e masters who employed them. T h i s muster has been p u b l i s h e d i n a book t i t l e d "General R e t u r n o f C o n v i c t s i n New South Wales 1837" [ p u b l i s h e d by ABGR i n a s s o c i a t i o n w i t h t h e S o c i e t y o f A u s t r a l i a n G e n e a l o g i s t s , Sydney, 1987, e d i t e d by N. G. B u t l i n , C. W. Cromwell and K. L. S u t h e r n ] . A t t h e end o f t h i s volume o f t h e "HUloKlcal mcoKcti the. CZYitKal Coa6t oi Mm South WalU", information concerning B r i s b a n e Water i s g i v e n .

[xx]

With such a s o c i a l s t r u c t u r e t h e r e f o r e , no o p p o r t u n i t y was a v a i l a b l e f o r making an independent l i v i n g o r f o r c a r r y i n g on a t r a d e o r c r a f t . There was o n l y a s t a t e o f dependence by most towards a few, w i t h many o p p o r t u n i t i e s f o r arguments, d i s p u t e s about ownership, boundaries and r i g h t s , i n a c l i m a t e of f i n a n c i a l i n s e c u r i t y . I t was a hard l i f e f o r many w i t h rum as t h e o n l y s o l a c e , and w i t h no s o c i a l i n t e r c o u r s e o r d i v e r s i o n , as people l i v e d i n i s o l a t e d groups on each farm or e s t a t e o r camped i n h u t s . L i f e was n o t conducive t o r e l a x a t i o n , j o l l i t y o r f r i e n d l i n e s s . Many people were s o u r , s u s p i c i o u s and n a t u r a l l y h o s t i l e . Bean had been bankrupt, Moore was r i d d l e d w i t h mortage d e b t s , Donnison was v e r y d i f f i c u l t , o l d Cape was "mad" and R i c h a r d Cape was a p e r v e r s e trouble-maker.

RELATIONSHIP BETWEEN SETTLERS The r e l a t i o n s h i p between t h e l o c a l s e t t l e r s was o b v i o u s l y not one o f peace and harmony. The B r i s b a n e Water Case, w h i c h rocked s o c i a l r e l a t i o n s i n t h e d i s t r i c t i n 1837, as s t a t e d e a r l i e r , r e v o l v e d around t h e d i s p u t e d ownership o f an o l d cow, and i s known t o us m o s t l y through t h e account o f one o f the p a r t i e s i n v o l v e d , namely Henry Donnison, i n a book he p u b l i s h e d i n 1838. I t i s a s o c i a l study o f t h e r e l a t i o n s h i p I n a l i t t l e r u r a l s e t t l e m e n t , b u i l t m o s t l y upon a f o u n d a t i o n o f bad f e e l i n g between t h e people i n v o l v e d . I t i s a l s o a pamphlet w r i t t e n a g a i n s t Governor Bourke and h i s a d m i n i s t r a t i o n . G r a z i n g , d e a l i n g i n and s t e a l i n g c a t t l e was a way o f l i f e f o r a g r e a t many o f t h e p o p u l a t i o n , and i t was one which c o n t i n u e d l o n g a f t e r t h e case was concluded. T h i s can be seen by p e r u s i n g t h e M a g i s t r a t e s ' r e p o r t s i n t h e Bench Registers. C a t t l e s t e a l i n g seems t o have been one o f t h e main I n t e r e s t s of the s e t t l e r s . R e p o r t s had been sent t o t h e Governor f p r a l o n g time about these d e a l i n g s , i n c l u d i n g t h e names o f t h e people I n v o l v e d , and which seemed, a t one time o r a n o t h e r , to have i n c l u d e d p r a c t i c a l l y everybody. T h i s d i s t r i c t was s t i l l a v a s t r u r a l a r e a o f l a r g e e s t a t e s w i t h i l l - d e f i n e d b o u n d a r i e s , which u t i l i s e d many a s s i g n e d s e r v a n t s , t i c k e t - o f - l e a v e h o l d e r s o r f r e e workers p r e s i d e d over by a P o l i c e M a g i s t r a t e . Few o f t h e landowners l i v e d l o c a l l y . Most were d o m i c i l e d i n Sydney, t h e i r o v e r s e e r s and s e r v a n t s c o n d u c t i n g the farms.

[xxi]

The l o c a l m a g i s t r a t e a p p o i n t e d was a s s i s t e d by l o c a l J . P . ' s , t h r e e C o n s t a b l e s , a Scourger/Lock-up Keeper, a P o l i c e C l e r k , a P o s t m a s t e r , a Pound Keeper, and a C l e r k o f P e t t y S e s s i o n s many o f the o f f i c e s b e i n g f i l l e d by the same person. The t h r e e C o n s t a b l e s o p e r a t e d from a v e r y modest Court House-cumLockup, s i t e d near the brook a t the head o f B r i s b a n e Water. L i t t l e f a r m i n g o r c u l t i v a t i o n was done. The main r u r a l o c c u p a t i o n s were t i m b e r f e l l i n g and c a t t l e g r a z i n g , w i t h the a s s o c i a t e d a c t i v i t i e s they i m p l i e d : s e l l i n g , b u y i n g , h a g g l i n g , m u s t e r i n g , b r a n d i n g , s l a u g h t e r i n g , and r u s t l i n g . I t seems t h a t most l a n d h o l d e r s and t h e i r s e r v a n t s a l i k e pursued a l l these a c t i v i t i e s s i m u l t a n e o u s l y and w i t h g r e a t enthusiasm. The r e s u l t was numerous q u a r r e l s , c o u r t c a s e s , and much a n i m o s i t y . The l o c a l m a g i s t r a t e was k e p t busy I s s u i n g summonses, subpoenas, w a r r a n t s , r e c o g n i z a n c e s , w h i l e the C o n s t a b l e s were busy s e r v i n g them, and the c i t i z e n s were busy a c c u s i n g each o t h e r o f p e r j u r y and f e l o n y .

THE

SAGA OF BLINDBERRY

The most t y p i c a l c a s e , o r a t l e a s t the case w h i c h s u r v i v e d w i t h the most d e t a i l s brought t o us, i s t h a t r e v o l v i n g around the cow a l l u d e d t o above, whose name was B l i n d b e r r y , and whose death put the d i s t r i c t i n t o t u r m o i l and a f f e c t e d i t f o r y e a r s afterwards. I n 1836, g r a z i n g on the l a r g e p l a i n s and unfenced paddocks o f Tuggerah Beach Lake, was a n a g e i n g , n o n d e s c r i p t , one-eyed w i l d cow, which was t o become by her d e a t h the c o s t l i e s t beast on the B r i s b a n e Water and the cause o f a n g u i s h , bad f e e l i n g and a source o f d i s p u t e t o many people who were then l i v i n g i n the d i s t r i c t . The a f f a i r had t o be s e t t l e d i n a s e r i e s of c o u r t cases i n Sydney. We w i l l t r y t o summarise the a f f a i r i n i t s main l i n e s as c l e a r l y and I n f o r m a t i v e l y a s p o s s i b l e . One o f the c h i e f people i n c u l p a t e d was Henry Donnison, who f e l t so k e e n l y about the proceedings t h a t he p r i v a t e l y p u b l i s h e d a book i n o r d e r t o r e l a t e t h e a f f a i r i n h i s own words, i n a v e r y i n v o l v e d and meandering f a s h i o n . T h i s book i s the main, but not our o n l y , source o f i n f o r m a t i o n . We have a l s o c o l l e c t e d the major a r t i c l e s p u b l i s h e d i n the newspapers o f the t i m e . The c o u r t case documents a r e a l s o a v a i l a b l e . The d e p o s i t i o n s t a k e n by Faunce a r e p u b l i s h e d i n extenso i n the s e r i e s o f the

"HJutoilcal

Ro.c.o'idi

the. CejitKal

Coa6t

Mew South Wale^"

[xxii]

volumes o f Court D e p o s i t i o n s , 1836-1842. [*] In

"The. EnJUbam

WouteJi Ca&z", Donnison s e t o u t t o j u s t i f y

his

a c t i o n s and t o v i n d i c a t e h i s c h a r a c t e r and t h a t o f h i s f r i e n d s and f e l l o w - a c c u s e d . He denounced Faunce's a r r o g a n c e , and, i n h i s own o p i n i o n , s u b s e r v i e n c e t o the Governor's i n s t r u c t i o n s :

"Of C a p t a i n Faunce....I c o n s i d e r he was o n l y a bad i n f l u e n c e i n worse hands." Henry Donnison, Sydney H e r a l d , March 22, 1838, L e t t e r t o Mr. Roger T h e r r y . The a u t h o r ' s main o b j e c t i v e , i n v i e w o f the j u r y ' s e x c u l p a t i o n o f the t h r e e defendants and the subsequent s u c c e s s f u l p r o s e c u t i o n o f Faunce w i t h heavy p e c u n i a r y l o s s e s , i s t o show t h a t h e , Donnison, and h i s a s s o c i a t e s Moore and Bean were not g u i l t y o f the i m p u t a t i o n o f d i s h o n e s t y , and t o show t h a t Faunce was the t o o l o f the Governor. Donnison's purpose was t o get a t both Governor Bourke and the A t t o r n e y - G e n e r a l through Faunce. We cannot b e l i e v e t h a t Donnison was t o t a l l y c l e a r . committed m i s t a k e s and misdeeds.

Both s i d e s

B l i n d b e r r y had been bought i n good f a i t h . D i s h o n e s t y was not proven, n e i t h e r was the i d e n t i t y o f the s l a u g h t e r e d cow beyond doubt. I n f a c t , the owner was most r e l u c t a n t t o take a c t i o n t o r e c o v e r damages. I t was r e a l l y a showdown between the g e n t r y , who sought t o have t h e i r own way i n t h e i r own d i s t r i c t , and the r e p r e s e n t a t i v e o f the Government, who wanted t o b r i n g t o h e e l t h a t l o c a l " g e n t r y " . I t shows the antagonism between l o c a l l a n d h o l d e r s whereby R i c h a r d Cape a i d e d and a b e t t e d a s m a l l s e t t l e r t o take on a b i g landowner. Donnison would have us t h i n k t h a t Faunce was sent t o B r i s b a n e Water by the Governor w i t h the express purpose o f g e t t i n g square w i t h h i m p e r s o n a l l y , a s he had a f f r o n t e d the Governor. Donnison perhaps thought too much o f h i m s e l f as a p e r s o n a l a d v e r s a r y o f the government. I n f a c t , i n Sydney, he was cons i d e r e d a s a n u i s a n c e element a t B r i s b a n e Water. Faunce had been warned about him, as he a l s o had been about the g e n e r a l misdeeds o f the l o c a l s - s e r v a n t s as w e l l as landowners. Faunce p r o b a b l y had h i s I n s t r u c t i o n s , as Donnison s t a t e s , but we do not know what k i n d . They were p r o b a b l y no more than g e n e r a l I n s t r u c t i o n s t o c o n t r o l the t r o u b l e makers and r e s t o r e law and o r d e r i n stamping out the n e f a r i o u s p r a c t i c e s such as c a t t l e s t e a l i n g , s l y - g r o g s e l l i n g , t i m b e r c u t t i n g on Crown l a n d s , u n l a w f u l s l a u g h t e r i n g , &c. [*

4/5524 A.O.N.S.W.] [xxiii]

He was t o make an example o f t h e p r i n c i p a l c u l p r i t s . U n f o r t u n a t e l y , f o r him and the Government, he was n o t the r i g h t man f o r t h a t type o f assignment.

THE MAIN PROTAGONISTS:

George MEADOWS W i l l o u g h b y BEAN John MOORE Henry DONNISON R i c h a r d CAPE A l u r e d Tasker FAUNCE

[xxiv]

GEORGE MEADOWS Land Gzoigz MEAVOWS KdcKUJodd a Qtiant land ol 60 acfce^ at Kiyidvmbeji, to takz poîtiilon In ApiU. 1831. LJike. many othoA. Immi,gânt6, he. wai not a âmsA. Ht muît have, done. tUlle. gaming on hJu land. In 1828, he Ma6 oveAêex ôn. R^chafidi and Bean. An entiLj In the Cen4u.4 ô-i that yean, glvei, him 1060 aciei, 25 which li cleaned, with 5 acteA cultivated and 43 cattle. Thli ejntiy obviously n.eêA.6 to the iam he 6apeA\jl6ed, and not to hlf, own land at KlncmbeA. He dlf>poie,d o^ kU land In EebKuaKy 1834 In lavoai 0^ Jamei MARKS, o^ JUawaiKa. The deedi, wexe eitabtUhed In June 1840 In âvoui MARKS, who, with hl6 wlê, dlipoAed 0^ jjt by ielllng the land to Ben VAUJS.

Land granted to George MEADOWS, a t Klncumber: Volume 60, page 170 O r i g i n a l Grant of Crown Land. Grantee James MARKS - date 30 June 1840 - 60 acres, County of Northumberland. Promise made by Governor Ralph DARLING on 10 December 1830. Deeds made to James MARKS of I l l a w a r r a . Description of land: At Brisbane Water a t a place c a l l e d Burramun on the north side of Cockle Creek, on the West by a l i n e north 23 chains, commencing a t a small b l i n d creek, on the North by a l i n e east 23 chains, on the East by a l i n e south 46 chains to Cockle Creek, on the South by the creek. Being the land promised to George MEADOWS on or before the date above mentioned, and of which he was authorised to take possession on 21 A p r i l 1831 as a small grant, but now granted to the said James Marks i n accordance with the report on case No. 667 made on the 11 day of June 1840 by the Commissioners appointed under the Act of the C o l o n i a l L e g i s l a t u r e 5th William IV No. 21. The Quit rent of a sum of ten s h i l l i n g s f o r ever from 1-1-1839 unless the same s h a l l redeemed. Given 30 June 1840 (In the matgln In pencW

Geo: GIPPS

17929 pt 17951 pt 22353 pt 37216 pt 37389 pt [xxv]

George Meadows;

Land

INDEX of VENDORS MEADOWS George to MARKS James Book G page 893 Lease and Release 60 ac. Brisbane Water 4 & 5 Feb 1835. J . MARKS and Wife of Kiama to Ben DAVIS of Brisbane Water Book 21 page 462, 23 May 1851 - grant 13 June 1840 60 ac a t Burramen Creek Bay Book 27 p. 949

50 ac at Brisbane Water to Ben DAVIS

file, have dtduced ^lom the. Land RegLitex^ that Jamei MARKS wa4 a land dealen. who bought giants to le-^eJLt laXet, He owned a taige. nwmben o^ piopejitXe^ in many places.

BOOK 34, No. 644 Old T i t l e ;

Resale from MARKS to DAVIS

INDENTURE made on 3rd November, 1854, between BENJAMIN DAVIS, s e t t l e r and THOMAS DAVIS, s e t t l e r , of the same place on Brisbane Water known as "BURRAMUN" (part of grant to JAMES MARKS), on northern s i d e of Cockle Creek, p r i c e 20 pounds. This land commences on south west corner being the south east corner of 5 acres and 3 roods sold to ROCK DAVIS and i s bounded on the west by the said land of ROCK DAVIS being a l i n e bearing north 23 chains and 30 l i n k s on the north by John Terry Hughes (now Macintosh's) 90 acres being a l i n e bearing 2 chains on the east by 50 acres retained by the said BENJAMIN DAVIS being a l i n e bearing south 23 chains and 60 l i n k s to Cockle Creek and on the south by the said Cockle Creek t o the south west corner a f o r e s a i d being the point of commencement. THE SCHEDULE to which the above indenture r e f e r s : 21/4/1831.

L e t t e r from C o l o n i a l Secretary to GEORGE MEADOWS sanctioning possession of 60 acres of land a t Brisbane Water t h e r e i n described.

5/2/1834.

GEORGE MEADOWS t o JAMES MARKS, conveyance of same land.

30/6/1840.

Grant from Crown t o JAMES MARKS of same land.

23/5/1851.

JAMES MARKS and wife ELIZABETH to BENJAMIN DAVIS. The conveyance r e c i t e d i n the above indenture. [xxvi]

GEORGE MEADOWS AND HIS COW. George Meadows was the i n i t i a t o r o f our r u r a l drama. He was o r i g i n a l l y the owner o f B l i n d b e r r y and a r e l u c t a n t p l a i n t i f f i n the a c t i o n a g a i n s t Donnison, Moore and Bean a l l t h r e e a t v a r i o u s times had been owners o f the s a i d cow. George Meadows a r r i v e d f r e e i n the Colony. He came b e f o r e the mast i n a merchant s h i p . He i s e n t e r e d i n the 1828 Census a s "George MEDDOWS, aged 33" t o g e t h e r w i t h "Betsey MEDDOWS, aged 26". Both a r e l i s t e d a s a r r i v i n g f r e e on the "Hooghley" i n 1828, w i t h Meadows d e s c r i b e d a s a P r o t e s t a n t , Overseer t o R i c h a r d & Bean a t B r i s b a n e Water. I n 1830, he a p p l i e d t o the Governor f o r a g r a n t o f l a n d w h i c h was d u l y promised by S i r R a l p h D a r l i n g about 10th December, and he was a u t h o r i s e d t o take p o s s e s s i o n on 21st A p r i l , 1831. I t was a s m a l l grant o f 60 a c r e s a t a p l a c e named "Barramum" on the n o r t h e r n s i d e o f Cockle Creek ( a l o c a t i o n now p a r t o f D a v i s t o w n ) . However, Meadows d i d not take up h i s l a n d , the deeds o f which were subsequently made out f o r James Marks. [*] B e i n g a seaman, George Meadows took t u r n s f o r a time w i t h Maddox, M e l v i l l e and Mundon o f being i n charge o f the BeA:6zy. She was a " c o a s t e r " o f 12/14 tons r e g i s t e r , t h e b i g g e s t o f the v e s s e l s c a l l i n g a t B r i s b a n e Water wharves that year. She v i s i t e d the s e t t l e m e n t r a t h e r r e g u l a r l y i n the 1800's, b r i n g i n g i n sundry cargo such a s f l o u r , and t a k i n g s h i n g l e s out. Meadows was f o r a time employed by Bean a s Master o f a s m a l l v e s s e l . L a t e r , he was o v e r s e e r on the farm o f Bean and R i c h a r d s . The farm was under Bean's s u p e r i n t e n d a n c e , a s R i c h a r d s , a S u r v e y o r , was engaged i n survey work e l s e w h e r e . However, Bean went away and was absent f o r over a y e a r . In h i s absence, H. G. Watson, who was a r e l a t i v e o f Bean's, managed h i s a f f a i r s . I t seems t h a t d u r i n g t h a t t i m e , Meadows, who had conducted h i m s e l f e x c e e d i n g l y w e l l , had been p a r t i c u l a r l y a c t i v e and i n d u s t r i o u s i n u s i n g the manpower o f h i s master f o r h i s own b e n e f i t . He b u i l t a v e s s e l on R i c h a r d s ' l a n d . Bean was s u p e r i n t e n d i n g , a s w e l l a s b e i n g a s s o c i a t e d w i t h R i c h a r d s , but the e s t a t e belonged t o R i c h a r d s .

[* See r e p o r t on Case No. 667 made on 11/6/1840 by the Commissioners a p p o i n t e d under the A c t o f the C o l o n i a l L e g i s l a t u r e 5 t h W i l l i a m IV No. 21.] [xxvii]

Meadows used h i s master's t i m b e r , employing h i s men and teams f o r t h a t purpose, and he a l s o s p l i t s h i n g l e s . When Bean came back t o B r i s b a n e Water t o i n v e s t i g a t e , the s h i n g l e s were c a r r i e d o f f and c o n c e a l e d , and t h e whole f a c t s were d e n i e d by everyone concerned. Meadows, t h e e n t e r p r i s i n g man, a l s o had t h e r e p u t a t i o n of b e i n g a s l y - g r o g s e l l e r . T h i s was a c l a s s i c a l case o f a man o f e n t e r p r i s e b e i n g l e f t t o h i s own d e v i c e s , w i t h o u t s u p e r v i s i o n , n e g l e c t i n g h i s master's I n t e r e s t s t o f u r t h e r h i s own. Meadows was d i s m i s s e d , but i n c o n s i d e r a t i o n f o r h i s f a m i l y , Donnison s t a t e s , was n o t p r o s e c u t e d o r o t h e r w i s e punished. I t must be a d m i t t e d t h a t s u p e r v i s i o n had been l a x on the p a r t o f Bean. P o s s i b l y t a k i n g p o s s e s s i o n o f t h e v e s s e l was c o n s i d e r e d enough t o compensate f o r Meadows' prevarication. We do n o t know i n w h i c h year t h a t e p i s o d e o c c u r r e d , but I t was b e f o r e 1836. George Meadows and h i s f a m i l y were p r o b a b l y a t one time l i v i n g on t h e i r g r a n t , f o r w h i c h t h e y d i d n o t have deeds but were p e r m i t t e d t o occupy i n A p r i l , 1831. George, who was a t t h e time I n charge o f t h e B e t - i ^ , i n a n t i c i p a t i o n o f becoming a farmer a t B r i s b a n e Water, bought a cow i n o r about t h e y e a r 1828. She was a p o l e y cow, about t e n months o l d , r e d s i d e d . That cow, w i t h her mother, was bought I n Sydney from Thomas Watkins [ * ] , who d i e d b e f o r e 1836, and brought up from Sydney i n Mr. Bean's s l o o p . Having no l a n d o r g r a z i n g paddock. Meadows asked Mr. Bean t o a l l o w t h e two cows t o r u n a t Tuggerah Beach w i t h h i s c a t t l e . To t h i s W i l l o u g h b y Bean a g r e e d , a s l o n g as t h e c a t t l e remained t h e r e . They r a n w i t h Bean's c a t t l e f o r some time and were l o o k e d a f t e r l i k e t h e r e s t by Bean's dairyman. Some time i n 1830, more than two y e a r s a f t e r h i s purchase, Meadows took h i s r e d s i d e d cow from Tuggerah Beach Lake and p l a c e d her among o t h e r c a t t l e near C o l c o r o n e (Cockrone Lake near Kincumber). By then George and h i s f a m i l y , who had

[* No r e l a t i o n t o Thomas Watkins o f t h e "Cross Keys" Sydney and a l s o Mangrove who d i e d i n 1867: Fay F r y i n t h e "Watkins Chronicle".] [xxviii]

p r o b a b l y s e t t l e d on t h e i r grant on the n o r t h e r n s i d e o f C o c k l e Creek, had some o t h e r c a t t l e . S i n c e most of the l a n d was unfenced, herds of c a t t l e were a l l o w e d t o roam under the c a r e of stockmen or cowherders. A group of owners would herd t h e i r c a t t l e t o g e t h e r , and as l o n g as the b e a s t s were i n a group, they would not s t r a y but keep t o the h e r d . Sometimes when the c a t t l e were mustered f o r b r a n d i n g , i t was i n e v i t a b l e t h a t arguments would a r i s e as t o the ownership of some p a r t i c u l a r beast which had s t r a y e d . Meadows never had h i s own c a t t l e branded. Some herd herd cow,

animals would develop an attachment t o t h e i r p a r t i c u l a r and would not accept b e i n g t r a n s f e r r e d from one t o a n o t h e r . T h i s i s what happened t o t h a t p a r t i c u l a r B l i n d b e r r y , as Meadows e x p l a i n e d : "She became v e r y w i l d and I c o u l d not keep her w i t h the r e s t o f my c a t t l e , and she would not stop anywhere but a t Tuggerah beach. "When she had her second c a l f i t was k i l l e d , and she would not go i n t o b a i l ( t o be m i l k e d ) f o r she was mad a f t e r t h e c a l f , and a man knocked her eye out a c c i d e n t a l l y w i t h a s t r o k e . B e f o r e she l o s t her eye she was so tame t h a t she would l i c k a person's hand T h i s cow was v e r y w i l d a t the time she was k i l l e d , and 1 c o u l d not d r i v e her m y s e l f ; she was s t u p i d w i l d i n consequence of h a v i n g l o s t her eye, and would r u n i n t o the bush a l o n g the road w h i l s t b e i n g d r i v e n , and Mr. Donnison s a i d she was p l a y i n g the deuce w i t h h i s c a t t l e , by l e a d i n g them away."

S e r v a n t s were o f t e n under t h e i r c a r e as to them. B r u t a l i t y r e s o r t many knew t o

as b r u t a l and c r u e l t o the c a t t l e t h e i r masters had sometimes been was the system, and o f t e n the o n l y use as a means t o an end.

O b v i o u s l y poor B l i n d b e r r y (she must have r e c e i v e d t h a t name a f t e r she was p a r t i a l l y b l i n d e d ) c o u l d not cope w i t h severe mental d i s t u r b a n c e . The shock o f b e i n g removed from her environment a t Tuggerah, the d i s t r e s s of m i s s i n g h e r c a l f , t o g e t h e r w i t h the t h r a s h i n g she r e c e i v e d t o make her e n t e r the b a i l w h i c h r e s u l t e d i n the l o s s of one eye, d r a s t i c a l l y a f f e c t e d her b e h a v i o u r . I t i s no wonder t h a t she became a problem cow!

[xxix]

Meadows, i n h i s d e p o s i t i o n s , made v i t a l a d m i s s i o n s : " I never branded any c a t t l e o f my own, and Mr. R i c h a r d s ' c a t t l e and mine r a n t o g e t h e r " . F i n a l l y , Meadows s o l d h i s farm and l e f t t h e d i s t r i c t . He a s c r i b e d h i s d e c i s i o n t o t h e i l l - w i l l o f h i s neighbours ( o f whom Donnison was one). A t t h e time o f t h e Court t r i a l s , Meadows had l e f t behind p r o s p e c t s o f becoming a farmer and was a g a i n a seaman, on board t h e steamer TamaK.

The

Defendants:

There were t h r e e defendants i n t h e B r i s b a n e Water Case: John Moore, Henry Donnison and W i l l o u g h b y Bean. The a c t i o n r e v o l v e d b a s i c a l l y around t h e u n l a w f u l s l a u g h t e r o f a s i n g l e cow. The accused, as we have seen, were l a r g e l o c a l l a n d h o l d e r s b e l o n g i n g t o t h e l o c a l g e n t r y o f the t i m e , and were the o n l y people i n t h a t c a t e g o r y r e s i d i n g permanently i n the d i s t r i c t . I t seems p r e p o s t e r o u s t h a t these t h r e e prominent c i t i z e n s were a r r a i g n e d on such a t r i v i a l a c c u s a t i o n , r e f u s e d b a i l , put i n i r o n s and l o c k e d up i n a narrow, d e c r e p i t l o c k - u p w i t h common rogues and runaways. A l l t h i s by a m a g i s t r a t e newly a r r i v e d who had no knowledge o f t h e d i s t r i c t and i t s people. How c o u l d he presume t o p r o s e c u t e j o i n t l y t h r e e landowners of t h e u n l a w f u l s l a u g h t e r o f one o l d cow when t h e y possessed so many c a t t l e o f t h e i r own? Anyone c o u l d have r e p l a c e d the cow w i t h o u t d e t r i m e n t i f found g u i l t y o f t h e m i s c h i e f . However, from t h e b e g i n n i n g C a p t a i n Faunce chose t o a c t w i t h a v e r y heavy hand i n d e e d , Donnison c o n t e n d i n g t h a t t h i s a c t i o n had been r e s o l v e d even b e f o r e Faunce a r r i v e d i n t h e d i s t r i c t ! Faunce used t h e c o n f l i c t i n g statements o f men o f v e r y d o u b t f u l r e p u t e and w i t h l i t t l e c r e d i t : Meadows, t h e r e p u t e d owner of t h e "corpus d e l i c t i " , and r e l u c t a n t c o m p l a i n a n t ; and R i c h a r d Cape, t h e b l a c k sheep o f h i s f a m i l y , a man n o t one of h i s f e l l o w s e t t l e r s would have t a k e n a t h i s word, and who had been s u s p e c t e d , a t l e a s t , o f shabby d e a l i n g s and cattle stealing.

[xxx]

JOHN MOORE John Moore ' s dealings in cattle were the initial cause of the Brisbane Water Case . He had laid a claim on all the wild mobs of cattle which were roaming the district to the annoyance and detriment of local farmers. These herds often attracted branded cattle which joined them, creating confusion in ownership . From this confusion arose bitter and acrimonious arguments . One such dispute sparked the Blindberry affair. John Moore had arrived in the Colony in 1829. He was an impoverished Irish Protestant . He obtained a grant of 650 acres in the Parish of Kincumber , which he named "Avoca". Sarah, wife of the surveyor Felton Mathew , met him in 1834, and wrote in her diary: "I received visit from ... Mr. Moore, a young man who has an estate about five miles from Erina, which he calls 'The Vale of Avoca ' in honour of his countryman the famed poet. He is building a house, and when that is completed he will only want a wife to be perfectly happy, as he believes." He appears never to have married. He was engaged mostly in cattle dealing, rounding up wild cattle to which he claimed to have bought the rights. This claim was contested by many landowners. He also bought from Richard Cape the 500 acres he had been granted as a second choice on Lake Macquarie , which was ideal for mustering large herds of cattle. The financial position of John Moore was never sound. His land was mortaged to the hilt from the beginning . He found difficulty in paying the interest on mortgages or even the quit rent which was ÂŁ5 / 6/8 for Avoca and ÂŁ4 /3/4 for Wallarah, Cape's former grant. At one stage he thought of selling his holdings. He managed to stay afloat and became Warden of the District Council of Brisbane Water in 1843. He had cousins , the Maddrells , who settled near Braidwood. It was here he made his will, which explains why it has been overlooked by previous students of Brisbane Water local history. We know that he had left the district before September , 1860 [*]; however, he died in the district at Springfield, in 1865. He left no known descendants to perpetuate his name and place a headstone over his grave.

Glennie III-328] [xxxi]

As there was no resident minister of his faith (Church of England) at the time of his death, the memorial service was probably conducted by Thomas Battley, as it was not entered in the Church of England Register. A full biography of John Moore appears in the volume of the series of the Hi4to'Lca2 Recoxd4 ob the Centaal Coa4t ob New South Wale-5 dealing with the story of the Brisbane Water Council District. From their records, both Donnison and Moore give the impression that they were difficult men to deal with; hard men, with a high opinion of their social status, however precarious their financial position. They were hard in their dealings with servants or fellow settlers, and would suffer no nonsense. We have testimony that Donnison was a violent man, and letters from Moore convey the same impression.

[xxxii]

HENRY DONNISON

Donnison arrived with family in the Colony a little later, in 1827, aged 39. He set up as a merchant in Hunter Street where he had a shop in 1828. He later moved to Brisbane Water and settled on Bean's 2 , 000 acres , where he extensively cut the timber which covered the estate. At times he employed over 12 gangs felling timber. He also was involved in cattle buying on a small scale, probably to provide for his men. He killed the disputed cow which he claimed to have purchased from Moore. Donnison claims in his book ( and we are inclined to agree with him ) that Faunce had set his sights on him. Donnison had disagreed with the former Police Magistrate , Jonathan Warner, with whom he occasionally sat on the bench, on the subject of Moore's dealings . Faunce had contacted Warner who briefed him on the situation in the district , pointing the finger at Donnison and others. It is ironical , if we may stray ahead for a moment, to inform our readers that in 1841, James Warner, son of Police Magistrate Warner, was implicated in cattle stealing with a gang of disreputable duffers. He was offered the chance to avoid prosecution by informing on his accomplices. Donnison was an extremely pugnacious man, showing it on many occasions , and never hesitating in giving offence.

[xxxiii]

WILLOUGHBY BEAN Willoughby Bean, the son of an officer who had been a prisoner of war in France , was educated in that country in the little town of Amboise in the Loire Valley. He was one of the earliest permanent resident settlers in the Brisbane Water district, and was a large landholder. He had secured a grant of 2,000 acres, extending from Erina Creek to Terrigal Beach. In 1826, he was appointed to the position of first Resident Police Magistrate at Brisbane Water. This was a difficult office that he handled without help. He kept the registers and wrote all his official correspondence, which was timeconsuming , while trying to make a success of his land. He did not succeed , and was bankrupt in 1826, a fact which compelled him to resign the office of Magistrate . The position was left vacant for a while as no local settler was found competent enough to fill such a difficult and demanding office. Bean sold his farm, but stayed in the district managing properties and their cattle and the interests of some nonresident owners, such as Richards , a surveyor and associate, Manning , and others. He dealt in cattle, and having bought a herd in which the unfortunate Blindberry was included, became involved in the case. From the study of Bean ' s registers, he appears to have been an urbane , courteous and kind man . He had three Constables to police this large district. The duties of his office took up much of the time he would have preferred to devote to the running of his farm and to his private interests. He eventually left the district, where he had married a sister of local settler Thomas Cade Battley. He returned to England and took Holy Orders. When he came back to Australia, he went to Victoria as a Minister of the Church of England, and died whilst exercising his Ministry . We have a photo of him taken in his later years in Victoria. A more complete biography appears in a volume of the series "Hizto4Lca2 Recoa.da o6 the Cen-t'cak Coaa.t o^ New South Wate.611, titled "T.O.L. and o.thek Qua&te7ky Recoad-o". The indictment of Bean, a former Police Magistrate and a respected man of integrity , was an embarrassment to the Governor and for the prosecutors of the case . He was offered the chance to be excluded from the proceedings , if we are to believe Donnison , but he refused . The three men were jointly prosecuted, and together they were exculpated of all misdeeds.

[xxxiv]

THOMAS ALISON SCOTT

Thomas Alison Scott , of "Sugar Cane Fame", became Clerk of the Bench upon Faunce ' s appointment as Magistrate . He took all the depositions and gave some of his own . It may be assumed that relations were far from harmonious when he met the defendants at the Court House, and positively tense on many occasions. Scott was a very cantankerous man. Alfred Holden inherited Faunce's Clerk when he took over as Magistrate , but seemed to be quite happy to let his Clerk go when Scott incautiously gave his notice to quit. Scott regretted this action , but Police Magistrate Holden declined to take him back. Scott had been appointed a Pound Keeper. He was of a good English family; his brother was an. Admiral of the Royal Navy. He had been granted a little land. Donnison , then the sole Local Magistrate , objected strenuously when Scott was appointed Assessor for the Brisbane Water Bench . Donnison regarded the appointment as a deliberate insult to himself. He complained to the Governor , and it is not to be wondered at that Scott testified with hostility against Donnison. He was another vindictive man, but who can blame him? Donnison had refused to sit beside him when he had been appointed Assessor for the Brisbane Water Bench , and Donnison informs us of this fact in insulting terms. Scott was Pound Keeper at the time and a small land - owner, and Donnison judged him to be too far below his social position to share the Bench. Moore ' s attitude had been similar.

[xxxv]

BRISBANE WATER AT THE TIME OF CAPTAIN FAUNCE'S APPOINTMENT

Another personage in the cast is Captain Faunce, 4th Regiment of Foot or King's Own . Following the reduction of the military in Tasmania , only two Companies of the Regiment were retained there and the excess embarked on board the " Elizabeth", together with a detail of the 17th Regiment , on 3rd March, 1832. [*] When the Police Magistrate , Jonathan Warner, J . P., resigned from his office , Captain Faunce was chosen by the Governor to succeed him. Donnison was by then a J.P. residing in the district and would have liked to be appointed to the office . After all, he lived in the house and was the owner of the estate of the first Police Magistrate . However, he had already aroused some hostility , and was deemed unsuitable for the position. We refer the reader to the letter [**] which appeared in the Sydney Gazette on 27th August , 1836, hoping that Warner would soon be replaced. It appears that the district had been in a state of turmoil due to the general lawlessness of most of the inhabitants. One particular cause of friction and antagonism between the settlers was the frequent mix-up of cattle which grazed in herds and belonged to different owners. There were generally no fences and the boundaries were often ill-defined or contested . Some small settlers had a few head of cattle which they grazed with those belonging to their neighbours in larger herds. At branding time the cattle were rounded up with the help of neighbours and the brands applied. Often the identity of the beasts was uncertain . Some were stray cattle coming from unknown parts with no certain owner. Many landholders were cattle owners who did not live in the district, who seldom came to their estate , and who did not know their own cattle . They relied on their servants to identify them. This practice was often the source of mischief when men were hostile and ready to accuse each other of lying or perjury. Some men took the side of their master in claiming the ownership of doubtful cattle; others disputed the statements of cattlemen they disliked . Many were ready to swear

H.R.A. XVII, 148]

[**

This volume, page xvi] [xxxvi]

to lawful possession of dubious cattle in consideration of grog or reward , or recommendation for the obtaining of a Ticket of Leave. Others also disagreed for the sheer pleasure they found in being perverse , being taken notice of, or just for the sake of argument. The echoes of these disputes had come to the ears of the Sydney authorities . It seems that it was quite common to call and wait on the Governor to air contestations. The reputation of the Brisbane Water District on that count was bad. The landowners were a disputatious lot. Such persons had come under the attention of the Governor because of their activities in cattle-dealing and propensity for writing letters to newspaper editors to air their views on the way the Colony should be run, or to complain of the goings -on at Brisbane Water. One was Henry Donnison , and another , who generally used a pen name, was Cape . Cape and Donnison disliked each other and had had differences over cattle. Donnison ' s pen could be very incisive and his prose caustic. He had the reputation of a rebel , trouble -maker and political antagonist to Sir Richard Bourke.

[xxxvii]

RICHARD CAPE

He was the originator of the affair . A natural mischiefmaker, Cape was the one aiding and abetting Meadows to complain . Donnison is scathing in his judgement of Richard Cape. He obviously hated him, and publicly called him " a wellknown cattle thief". The reader can gain a personal appreciation of the man's character by perusing the letters from Cape in the appendix titled 'Cape ' s Tribulations' to the volume of the "H .il6.tolctcal Recokdz ob the Centn.a2 Coact ob New South Wa1eh ": TLckethob-Leave and o.then. Reconda - Lettenh. After stirring up much trouble between landowners and even within his own family, Richard Cape drifted to Tahiti shortly after the beginning of the case , and there he was put into gaol , we believe. Donnison , no doubt, was one of the people Faunce had been warned to keep an eye on. He had displeased the Governor already, as well as antagonised his fellow magistrate Warner, and possibly many others. Donnison was not without allies and was a pugnacious adversary. Faunce , on the strength of what he thought was the Governor's wish, took the first opportunity of tackling Donnison to make an example of him. Unfortunately for Faunce, he took him on on a flimsy accusation in an action where he was implicated in company with two other eminent local people who stuck with Donnison to the end. The case grew out of all proportion . Faunce could not, or did not know how to , back down , or he did not wish to think that he did not have the full backing of the Governor. In the last instance he made a serious miscalculation and had to support the full consequences when things started to turn bad for him. He had to pay for his folly. It seems that he had been too sanguine and was no diplomat; he had shown too clearly that he was after Donnison's blood. He played the low cards he had in his hand for more than what they were worth, and he obviously lost the last game and the rubber.

[xxxviii]

APOLOGY,

MOORE

FAUNCE

The notice which appeared in "The Sydney Gazette" in March, 1838 marked the end of the Brisbane Water Case, but was not however, the end of the story for the protagonists of the action which our readers have followed through the preceding pages. They may wish to know what happened subsequently to the actors after the end of the performance. We will provide a brief appendage. Most of the participants stayed in the district, and we will meet them again in the volumes to come of the "Hiâ&#x153;&#x201C; -to&Lcat Recond4 ob the Cent-tat Coaa.t ob New South Wateh": Bean is recorded in the early registers of the Police Magistrate 1826-1831; Moore was a Warden of the District Council in 1843; Cape is mentioned in the numerous records which have been collected and included in the HRCCNSW; Donnison, through the transcripts until his untimely death in 1847; and T. A. Scott, at the beginning of 1836 as Clerk, until his resignation in July 1843. [*] Faunce, the "Iron Magistrate", left the district. In November 1837, his appointment to Queanbeyan was announced by the Colonial Secretary. His duties were "to organise the local police establishment, fulfil all the administrative functions of a Magistrate, and hold Courts of Petty Sessions". The first sitting of the Court was held on 23rd February, 1838. Donnison, quite plainly, had accused him of being an instrument in the hands of the Governor, sent on purpose to harrass Donnison and partners at Brisbane Water. Making allowances for Donnison's usual violence of language in expressing his opinions, and the licence with which people were allowed to express their dislikes in the newspapers at the time, it seems quite plausible that Governor Bourke briefed Faunce before appointing him to Brisbane Water, and that he had made a mess of his mission. It is difficult, and it is not our purpose, to make a judgement as to the character of our third magistrate. However, in fairness and to balance the malevolent and caustic remarks by Donnison and Cavenagh, we wish to point out that Faunce was not without support in the district. Governor Bourke provided testimony of a Memorial which spoke -"in the highest terms of the conduct of Captain Faunce as Police Magistrate of the district". The Governor further asserted that the Memorial had been signed by every Landowner in the District, except for the three gentlemen who were Plaintiffs in the actions against Captain Faunce.[**]

[* [**

Bench Book 5/3167 (2663) p.371] H.R.A. XIX p.512]

The Life and Career of ALURED TASKER FAUNCE Captain of the King ' s Own, 1818-1856

The son of Major-General Alured Dodsworth Faunce of Clifton, Bristol, England, he joined the army at the age of sixteen. He had a good education , and when at Queanbeyan , lived as a gentleman , playing the flute and singing for relaxation. His family must have been well- to-do. He had his portrait painted by Richard Read in 1833 while he was still a Lieutenant. He became a Captain when he was 33. From his portrait, which is reproduced as a frontispiece , Alured Tasker appears as a strong young man of 25, his brow heightened by the effects of early baldness , but with a head of curly hair and curls on his cheeks. He has a straight nose, wide open eyes and closed lips, which give him an air of seriousness and self -possession, even stubbornness . That was five years before he came to Brisbane Water, so we know how he looked at the time of "the case". Alured married Elizabeth Mackenzie of Liverpool in January, 1835. At the time they were in that district, the couple had a little daughter . No mention is made of his family at Brisbane Water, and it is possible that he left his children in a better environment at Liverpool , and did not bring them to a district where the conditions would certainly have been more primitive. Elizabeth Faunce was the daughter of an army officer, Kenneth Mackenzie. Alured and Elizabeth ' s first baby was born at Liverpool , the second at Queanbeyan two years later.

It would seem from evidence that Faunce proposed to stay and settle in the Brisbane Water district: he bought 25 acres of land on the outskirts of the town reserve in September , 1837, that is, after he had lost his cases in the actions instigated by Bean and Moore ( by a mistake Donnison ' s action was delayed until October, 1837 ). Obviously the optimistic Faunce intended to stay on as a Police Magistrate. However, after the deplorable episode of the case, the acquittals of the defendants and the public disgrace of being sued as the Governor ' s representative and condemned to pay reparations , it is possible that His Excellency thought Faunce had learned through his tribulations the art of being a District Magistrate and had matured through his mistakes. He appointed him to another post.

[xl]

Faunce then changed his settlement plans and resolved to settle on the Limestone Plains. In 1838, showing that the unfortunate issue of the case had not impoverished him, he purchased an estate of 810 acres on the banks of a river near the site of the proposed town of Queanbeyan. Queanbeyan was a small district called Limestone Plains, with a population of about 500 people. The town reserve had been surveyed but not built and there was no Court House. The stage of development there was less advanced than that reached at Brisbane Water.

Faunce caused the first Court House to be built, with a lock-up, close to where he lived. A small village grew around this Court House , called Irishtown , which is now part of Queanbeyan forming a single street (Dodsworth Street) and leading to a bridge spanning the river . He later had a water mill built on his estate. He was described as a " bold and determined man". The conditions the newly -appointed Magistrate found were very much similar to those he had experienced at Brisbane Water: "This district abounds with cattle stealers , runaways (whether runaway convicts or otherwise ), those who harbor them , and keepers of illicit spirit shops;" [This is part of a description of his new constituents, as seen by their Local Magistrate.] In 1839, he proceeded to build a home for his growing family, a house that he called " Dodsworth ". Late in 1839, Captain Faunce's "Dodsworth " was sufficiently advanced for the family to move in, although it was still unfinished. Governor Bourke had left the Colony early in December, 1837, taking with him a memorial from Captain Faunce asking for financial compensation for the losses he had sustained in the performance of his office of Police Magistrate. His claims were rebutted. In February , 1838, Governor Sir George Gipps arrived. He distanced himself from his predecessor ' s contentious decisions and had no sympathy for the Magistrate at Queanbeyan. Faunce had made some enemies, and was seen as a protege of Governor Bourke. That enmity was in evidence in the first years after his appointment to Queanbeyan.

[xli]

As he had to spend some time in Sydney at the beginning of his appointment to answer charges initiated by Bean, Moore and Donnison , the absence of the Magistrate was unfavourably commented upon. Some sharp criticism of the way he was running his office was advanced in "The Sydney Gazette " on 22nd January, 1839, reminding us that this particular newspaper ' s editor had a running feud with the Captain. A further criticism of Faunce was made in the Reports of Commission of Inquiry in June , 1840. His office was cancelled in 1842, along with a number of other such posts which were abolished in the early 1840's, at the time of the implementation of District Councils. The career of Alured Tasker Faunce at Queanbeyan is described by Errol Lea- Scarlett : " His optimistic exuberance and extremely benevolent nature set the tone of his career." The Faunce family seems to have settled happily at Queanbeyan and grew to reach a total of 7 adult children who left numerous descendants in and around Queanbeyan. There is recollection . of Elizabeth accompanying Alured singing or playing the flute. Life was uneventful and quiet in a domestic and social setting, the duties of his office, and the congenial atmosphere of cricket matches. Alured dropped dead whilst playing in a cricket match as wicket keeper . His body was brought back to "Dodsworth", carried on a door which had been unhinged for the occasion. There is no tradition that the settlers played cricket matches in the Brisbane Water district between 1836 and 1838. If cricket matches had been organised at that time , and all settlers could have participated and met in friendly competition ; then perhaps the general animosity displayed in the district would not have taken place. Who knows?

[xlii]

Brief Chronology of the Events in Capt. Faunce's Career 1808 1824 1825 1828 1832 1832 1833 1834 1835

- Dec 16 - Jan 17 - Jan 17 - Mar 3 - Aug 27 - Oct - Jan 27

1835 - Jun 22 1836 - Apr 30 1836 - Oct 1 1836 - Oct 11 1836 - Oct 17 1836 - Feb 6 1837 - Feb 6 to Feb 27 1837 - Jul 4 1837 - Jul 6 1837 - Sep 1837 - Oct 16 1837 - Nov 28 1837 - Dec 5 1838 1838 - Feb 23 1838 1838 1838 1838 1838

Feb Mar Mar Apr

24 15 18 14

1838 - May 30 1838 - Jul 24 1838 - Dec 6 1838 - Dec

Year of birth of Alured Tasker FAUNCE Aged 16, he joined the army Commissioned Adjt., stationed in Sydney He became a Lieutenant (Adjt.), Parramatta His Regiment leaves Tasmania Arrived in Sydney on "Clyde", aged 24 Portrait of Alured T. FAUNCE was painted Obtained a Captain's commission He married Elizabeth MACKENZIE of Liverpool, daughter of a Lieut.-Colonel Capt. FAUNCE, aged 27, was appointed Magistrate of the Territory Birth at Liverpool of Charlotte FAUNCE Captain FAUNCE was appointed Police Magistrate at Brisbane Water First entry in Bench Books 4/5526, B.B.I-1 First depositions taken on John MOORE 4/5524, C.C.I-1 John MOORE arrested for cattle theft Trials for cattle theft in Sydney ending in acquittal BEAN v FAUNCE MOORE v FAUNCE Capt. FAUNCE bought 25 acres of land at Brisbane Water DONNISON v FAUNCE Capt. FAUNCE appointed Police Magistrate at Queanbeyan (Limestone Plains) Departure of Gov. Richard BOURKE, with FAUNCE's Memorial Capt. FAUNCE bought 810 acres of land in County Murray (Queanbeyan) Queanbeyan, first sitting of the Court held Built a house he called "Dodsworth" on his Estate at Queanbeyan Arrival of Governor Sir George GIPPS FAUNCE v CAVENAGH case, Sydney Gazette Public Apology to J. MOORE, in Sydney Gazette "The Brisbane Water Case" book published anonymously by DONNISON Birth of Ellen Eliza FAUNCE at Queanbeyan (Limestone Plains) Sir G. GREY to Sir R. BOURKE: no compensation to FAUNCE for loss Police Magistrate FAUNCE describes Queanbeyan population as one of cattle thieves Survey of GOSFORD site: street named for FAUNCE

[xliii]

Chronology of the events in Capt. Faunce's Career [ cont'd.]

1839 - Jan 22

1839 - Jan 30 1839 1840 - May 30 1840 - Jun 1841 - May 26 1842 - Dec 31 1844 1845 1847 1849 1851 1853

Jun Sep Feb Feb Aug

28 12 15 10 18

1853 1854 1855 - Dec 31 1856 - Apr 26 1902 - Dec 8

Criticisms against FAUNCE published in Sydney Gazette Birth of Anna Maria at Queanbeyan Late in the year , FAUNCE family moved to "Dodsworth" (uncompleted) Birth of Alured Dodsworth FAUNCE Report of Commission of Enquiry Refusal to reconsider Memorial by Mr. FAUNCE to be compensated The office of Police Magistrate at Queanbeyan is abolished Birth of Maria Elizabeth FAUNCE Birth of Granville FAUNCE Birth of Thomas Tasker FAUNCE Birth of Kenneth Mackenzie FAUNCE Birth of Arthur Barrell FAUNCE Bought 1.012 acres WINDELLAMA at Lake Bathurst, County Argyle A. T. FAUNCE appointed Crown Lands Commissioner, County Kennedy and Wide Bay district, Queensland Birth of Edmund Bonham FAUNCE , " The Parsonage", at Yass Birth of Richard Alma FAUNCE at Liverpool Death at age 48 of Alured Tasker FAUNCE at Queanbeyan while playing cricket Death of Elizabeth FAUNCE, "The Glebe ", Sydney

Bibliography: Article by Dr. M. de L . FAUNCE: "Captain A. T. Faunce and Canon A. D. Faunce of-Queanbeyan and Yass", 1961 Book , " QUEANBEYAN , District and People " by Errol LEA- SCARLETT, 1968. Queanbeyan , First Study", Rex CROSS & Bert SHEEDY, 1983. " Bygone Queanbeyan " ( Revised Edition ), Rex L . CROSS, 1985. Historical Records of Australia, Series I: XIX.365,512 ; XXI.73,79,373 ; XXII.499; XXIII . 334; XXIV.183,722.

XX.470;

[xliv]

PLAN FOR SURVEY OF THE TOWNSHIP AT POINT FREDERICK (1839) and

MAP OF PRESENT-DAY GOSFORD

The two map's nepaoduced ovenkea6 'show the & to o6 Captain Faunce''s 25 acne's punccha'sed in Septembek, 7837, .immed.i.atety adjacent to the Town Re'seave 5un.veyed c1825. The site o6 No 'survey o6 the township had been made .then. Go46o&cd" was conducted at the very the town ".to be ca.ZCed end o6 the year 1838. The contempo)tan.y map 'show's the 'site o6 Faunce'a Land in n.etatton to the moden.n devekopment o6 the City o6 Gos6oad. AL6ned Holden Rived Faunce 'soLd th.iis Land to W. T. Cape. he had to vacate the when site with his 6amity on that he had mon.e on wheae maaked 'A' on the 6Dc's.t 5utvey, 'site noath-we's.te'cn paat o6 the now the Le" 'squatted. It .s o6 the Go'6ond tacecoun.'se. -taack

Scale 째J cbam.,

PLAN FOR

R jerence A. .MtHoWensHouse & Gardcn Sa Or$p.

SSURVIEY f lne

Ts OWf n SHBp

Court House

Cons (abks Housed Garden Oa .3r.31p.

Oa.3r.Op.

D. Church Parsonage& Schao(2a. Or. OP

4 ,4

aw 4

POINT FREDER ICK ^.3//9/26 o ,ceka4ii `4a7,'Zgs

1Z,r^s. acts . ,^r"z

gso ..045 /B Qrine/@39

GOSFORD TODAY

SERINGF1EL / tPoMW t^ We //. `n

Ti/riYt'

1 ,i^^g_ ^7;

OO S

^ p^

rlafRyt

tooka1^t

reo , atervi `'`

+„$"

on Moore

kout eeidant^sr" Park +y,

Park ./

EAST 11i% GOSFORD

reeks Pt. Pt Clare

:ehuuI

Pi e Ceee ery

Pt. Frederick

BRISBANE Brisbane

Noonan Pt

Water

vane

National

Park

Green Pt.

° :^^ y

f°el

'urrti T'[{ AWI racmi

FbriEge

o^a TASCOTT

WATER

THE

BRISBANE

WATER

CASE 1837-1838

PART ONE:

EXPOSE OF THE CASE

BOOK PRIVATELY PRINTED BY ONE OF THE PARTIES (HENRY DONNISON)

[xlix]

TILE

BRISBANE WATER CASES; BEING A

NARRATIVE OF THE TRIALS OP

MR. BEAN, MR. DONNISON , AND MR. MIOORE, AND or THEIR nEsricTIte

ACTIONS AGAINST CAPTAIN FAUNCE; ILLUSTRATED

WICH A FEW REMARKS ON TILE 00VERNMENT UI

SIR RICHARD BOURKE, ArruCADL! TO THERE CARES.

,BY

ONE OF

THE PARTY.

Qus contumciia non frog it eum, Ecd crexits

15TDN DTI PRINTED TOR PRIVATE CIRCULATION BT TILE AUTHOR AND PUBLISHER.

1838.

INTRODUCTION

No man has a right to obtrude his own private concerns on the public , and if the series of legal and illegal proceedings, which have obtained the conventional term of the "Brisbane Water Cases " had consisted simply of the private transactions of the respective parties, I should not have felt warranted in taking any further notice of them than I have done. But a great public principle is involved it them, as well as the characters of att the parties concerned ; and although the public here has paid more than usual attention to the subject , they are known to many only as acts of grievous oppression - in many parts no doubt the calamities may have circulated farther than the refutation. It is probable after all that the matter would have ended with private explanations of the injured parties to their own friends; had it not been for a wanton attack made upon all three, but upon me especially , by Mr. Therry, in an action which Captain Faunce was ill-advised enough to bring against Mr. Cavenagh, the editor of the Sydney Gazette, and which was tried on 15th and 16th March last. No one who knows me will suppose that anything which Mr. Therry might have done , in his individual capacity, would have greatly moved me: the man , from circumstances, now gone by, has , in my opinion attained a false eminence, from which, as a matter of course he will descend and find his proper level. A2

iv.

Whilst acting as the advocate of Captain Faunce , he could not help allowing the old leaven to work out, and justified his conduct, I will not designate it, by the course pursued by the Attorney-General. He did more, but it is needless to follow the subject. I then determined to lay before the public all the circumstances connected with the "Brisbane Water Cases ," but instead of a dry copy of each trial , with evidence , papers, &c. I have endeavoured to make the subject more readable by throwing the whole into the form of a narrative. If in the course of that narrative I have spoken of Mr. Plunkett, harshly, I have done it with sincere regret; there is no man of whom I know so little , privately, of whom I once thought more highly, in a great measure probably from the impression made upon me by a late lamented friend. Had Mr. Plunkett made the explanation that he promised me, if it had a little lowered the enormous dignity of the official character, it would have prevented that of the man from lowering. On the faith of that promise I withdrew from the press several papers now published , which I considered for my justification ought to have been made known. Mr. Plunkett delayed that explanation so long, that I thought, and really now think , he had none to make; and "further information ," has been communicated to me, which I confess has lowered him still more in my estimation. I determined then as soon as I returned home to devote a few days to the subject and make my explanation ; as that which had been made in the case of Donnison v. Faunce did not seem to satisfy some of the parties. It has been somewhat hastily put together , but I can aver there is nothing therein asserted the truth of which cannot be proved : there is nothing at any rate which , to borrow Mr. Plunkett ' s own expression, I am not "prepared to explain or defend at any time." HENRY DONNISON

Bn i.abane Walden,) Apv ze 14, 1838.)

NA R RA livE, &c.

In 1835 , Mr. Warner and Mr. Donnison were the Resident Justices of the Peace in the District of Brisbane Water: the former being Police Magistrate . They differed materially in opinion as to the nature of a Magistrate's duties, but with their opinions the public will feel little interest. In pursuance of the "lion ' s mouth system," then in full vigour, Mr . Donnison was denounced at Head Quarters, and consequently in bad odour , although unfortunately ignorant of the fact. By the Assignment Regulations , the different Benches of Magistrates determine on the qualifications of applicants for convict servants , and when only one Magistrate resides in a District the Government appoints two Landholders to assist him. At the September Sessions of 1835, Mr . Donnison was informed by the Police Magistrate that the Government had appointed two Assessors for the Brisbane Water Bench; it was however graciously intimated to him that he might sit with them. One of these persons had been District Constable a few years before ; the other was Poundkeeper at the time, and it must be allowed that he was a Landho.tdeh , as he possessed twenty-five acres. Mr. Donnison at first thought this appointment had arisen from some mistake, and took no notice of the matter ; he was afterwards informed that it was a premeditated insult, probably in pursuance of a system to degrade the old Magistracy. Mr. Moore, a gentleman residing at Brisbane Water, however, considered that this appointment was not consistent with the "fitness of things ," and wrote to the Government on the subject. As he never received any answer , he remained in ignorance of the reasons for it, but he soon learnt , to his cost, that he had better been quiet. In the end of the following December a man named BramA3

ble, in the employment of Mr. W.T . Cape, Head Master of Sydney College and a Landholder at Brisbane Water, put a stray heifer into the yard of Mr. Moore , and gave her in charge of his herdsman , who knowing her to be his master's received her accordingly ; and a day or two afterwards Mr. Moore drove this beast with some others , which had had recently purchased from Mr. Manning , the Registrar of the Supreme Court, to another station. Mr. Donnison having been in treaty with Mr. Moore for the purchase of a few cattle for slaughter , accompanied him on the occasion. This simple transaction was manufactured into a charge of cattle stealing , on the oaths of this Bramble , Mr. Cape, and two convicts , one of whom swore that the heifer was Mr. Cape's, who without any enquiry forthwith instituted the charge, and Mr. Warner as readily granted a warrant for the apprehension of Mr. Moore , and two search warrants to search his house and station. Mr. Donnison having attended at the Court House on the day of examination , Mr. Warner told Mr. Donnison that thecae nrt considered that he and Mr. Moore were partners, and therefore Mr. Donnison could not sit with propriety as a Magistrate . Mr. Donnison assured Mr . Warner that the men had misinformed him. This did not satisfy Mr. Warner, who desired that Mr. Donnison would not sit, and then he would immediately commit Mr . Moore. Mr. T.W. Cape then said he would protest against Mr. Donnison acting as a Magistrate , and the Police Magistrate ordered the Clerk to record it. Mr. Donnison , who was of opinion that the duty of a Magistrate was to examine, not merely to commit, upon this insisted that the case should be sent to Maitland or Sydney ( the two nearest benches); and Mr. Warner clenched the affair by stating that Mr. Donnison was disqualified to sit as a Magistrate , as Mr. Moore had sold him beef. Mr . Moore was then locked up, but afterwards admitted to bail. His herdsman was committed at the same time by Mr. Warner; and a servant of Mr. Donnison ' s whose

crime was waiting at Moohe 'a Station by his master ' s orders, was also committed by Mr. Warner a day or two after. Why Mr. Warner did not at once commit Mr. Moore, if he saw good grounds for it, has never been explained. Mr. Moore was at that time at variance with the Cape family, in respect of a purchase that he had made from one of them; but the learned say that a difference with a neighbour is not felony.

Mr. Moore immediately proceeded to Sydney, and by the advice of his friends addressed a letter to the Governor, Sir Richard Bourke, requesting that a disinterested Magistrate should be sent into the district to investigate the charge. Mr. Warner forwarded the papers either to the Colonial Secretary or to the Attorney-General (Dr. Kinchela), who in this Colony is public prosecutor, and acts as a Grand Jury. Mr. Donnison addressed a letter to the Governor, through the Colonial Secretary, detailing the circumstances of the case, and other matters connected with or bearing on it, and requesting an investigation of his own conduct and of Mr. Warner's. The Criminal Session of February passed over, and that of May commenced, and no Official notice was given to Mr. Moore; but the two herdsmen remained in prison, and in irons. He then waited upon the Governor, who told him that there was no case for extra-judicial investigation, and that if he chose the two men should be discharged. He begged hard for an investigation before some indifferent Magistrate, but His Excellency did not see the necessity of it. Mr. Donnison had written a second letter to His Excellency in March, 1836, calling his attention to that of December, 1835.

In the end of May he called upon the Governor. On stating his business to Mr. Holden, the Private Secretary, that gentleman informed him that the Governor had disposed of Mr. Moore's case, and had directed that the men (the two herdsmen) should be discharged. Having other business, Mr. Donnison requested a personal interview with his Excellency, which was granted. He then alluded to the insinuations that had been made against his character, and other matters,, and begged that His Excellency would be pleased to order an investigation into the circumstances, which having repeatedly urged without success, he felt compelled to tender the resignation of his commission. This was not accepted, and it was finally arranged that the Governor would examine into the matters affecting Mr. Donnison personally, that the rest should be referred to the Attorney-General, Mr. Plunkett having then succeeded to the office, and that the two men should be discharged. Mr. Donnison wished to obtain some explanation of the appointment of the Poundkeeper, but could not make His Excellency comprehend the matter, at which he marvelled, as Sir Richard is very acute.

The following letter was delivered to the Governor hims--If:To the Ph.-.vote See2eta&y. Sir,-Having learnt that His Excellency the Governor considered that the purport of my letter of the 31st December last to the Colonial Secretary, was to refer to his decision a private quarrel between Mr. Warner and me, I have now the honor to request you will inform His Excellency, that the complaint I then preferred against Mr. Warner was on public grounds, and whatever matter contained therein may be considered of a private nature was only introduced by way of illustration. I fear I may have expressed myself obscurely, and led His Excellency into the error. A lamentable illustration of the dreadful effects of illicit grog- selling had taken place at the time His Excellency went through the district. A man was lying dead at the Blue Gum Flat, killed in a drunken squabble, the third at that place within four years; and other deaths have occurred from the same cause. In conclusion, I beg to say that I have no doubt of proving the charge I have made, or of shewing reasonable grounds for it, and by that I am ready to stand or fall. In the event of His Excellency considering my statement unimportant, I beg he will do me the favor to reply; I believe it is an ordinary act of courtesy between the Executive and the Magistracy. I have, &c,

Sydney, 21e.t May, 1836.

HENRY DONNISON.

N.B.-This letter was not exhibited in the case of Donnison v. Faunce, as the Court would not allow Mr. Holden, the Private Secretary, to be examined, Captain Faunce not having been present at the conversation with Mr. Holden.

And the following sent to the Attorney-General:-

To the Attonn.ey-Genenat. Sir,-I have the honor to refer to a letter dated 31st December, addressed to the Colonial Secretary , and which His Excellency the Governor has informed me has been sent to you . His Excellency has been pleased to take certain parts of that letter into consideration ; but having informed me that it generally lay in your department , I take the liberty of requesting for my future guidance , as a Magistrate , your legal advice on the following matters:Has a complainant who says he thinks a Magistrate is interested a right to protest against his sitting , and is it fitting for the Court to receive that protest?-I allude particularly to the conduct of Mr . Cape and Mr. Warner in the letter above referred to. Was Mr . Cape ' s conduct contempt?,Wj that the greater part of the charge against Mr. Moore was false , and being satisfied that the whole required a rigid enquiry, should I have done right in quietly permitting him to be committed? In the whole of the affair I was solely actuated by a desire to do justice; but, as we are all liable to error , I shall esteem it a favor if you see anything in my conduct that is illegal or improper if you will point it out. I have the honor to be, Sir, Your most obedient Servant,

Live

a.t, 23'zd May, 1836

HENRY DONNISON.

To neither of them was any answer returned, and the two unfortunate men still remained in custody, having been sent back to Brisbane Water. Mr. Moore made another effort for an investigation with similar success. The assignment of Convict servants to him being stopped, he had written to the governor referring for his character to the late Mr. Hely, Principal Superintendent of Convicts, and to Mr. Jones and Mr. Berry, Members of Council; receiving no answer, he waited upon His Excellency, who still declined making any enquiry into his case, and further told him that he could have no men unless his application was signed by the Bench of Magistrates. Moore observed that there were only two in the district, Mr. Warner and Yr. Donnison, the former had refused, but the latter had signed it. Mr. Donnison, said Sir Richard, angrily, "he . This was an one o{ the paa.-ty". awkward slip, that little sentence speaks volumes.

In or about August Mr. Warner stated that the office of Police Magistrate at Brisbane Water did not suit him, and that he should quit it at the end of the next quarter (30th September). He did so, and was succeeded by Captain Fauce, late of the 4th regiment, who, soon after his arrival, Summoned Mr. Moore to attend on the 1st November, in order to have the case of cattle-stealing investigated. Previous to that time, however, another charge was preferred against Mr. Moore under the following circumstances:There was a large herd of cattle that had become wild by neglect (as has often been the case in the Colony), chiefly the property of Mr. Manning; these Mr. Moore purchased in December, 1835 as also a portion claimed by Richard Cape, (a brother of Mr. W.T. Cape) in the September previous, with a farm of five hundred acres, as before-mentioned. Some other parties had cattle running there likewise: Mr. Acres, Mr. Maziere, and Mr. Humphreys, and to avoid disputes, he purchased them also. He reckoned, it appears, without his host; for where people are litigiously or maliciously disposed, they will dispute. He branded a beast which he believed to be his own, and which he still possesses, collected from the wild herd; this was done in open day in presence of Mr.W.T. Cape's brother, and six or seven other people, some in the employment of Mr. Cape, senior, and some in that of Mr. Watson. Mr. Moore had previously posted written notices (one at the Court House) that he was collecting and branding these cattle, and that any person having a claim might make it. He further took the precaution of using a different brand from his

ordinary one, in order that if a mistake was made these cattle might be distinguished from his other herd at any time. These cattle were sold by Mr. Wentworth to Mr. Langdon, by him to Mr. Want, by Mr. Want to Mr. Manning, who all collected them without any claim from Cape; nor was any claim made until after Moore purchased Richard Cape's herd in self-defence, and therefore broke up the trade of the old gang.

Three months afterwards, and as-ten the summonses for the investigation intended on the 1st November were issued, Mr. W.T. Cape's overseer, a Convict holding a ticket-of-leave, with other men of Mr. Cape's, charged Mr. Moore with stealing the animal before Captain Faunce, who forthwith apprehended him, examined him, committed him, put him in irons, and confined him closely to the lock-up (a filthy hole, three yards square, without a window). Mr. Donnison, although he took no part in the proceedings, felt it his duty to reason with Captain Faunce, but it was to no purpose; and Mr. Moore remained in that condition for fourteen days. On the 2nd November, Captain Faunce concluded the other examination by again committing Mr. Moore; Mr. Donnison being present after the commital, he told him that he had received a letter from the Attorney-General directing him to admit Mr. Moore to bail on both cha4ge6, if the second case did not .tuhn out veaty bad, and he was. admitted to bail accordingly in the sum of ÂŁ40, his irons knocked off, and, as John Bunyan says, "he went on his way" congratulating himself that he lived under a free government. Moore's herdsman, J. Frost, was committed at the same time, with his.master; Donnison's man Maltby Smith, was also put to the bar. This unfortunate man's offence was as follows: he was at Moore's station for the purpose of assisting to drive home some cattle which his master intended to purchase, and was going with his master, when Moore requested that he might wait until another of Moore's men relieved him from a station about fifteen miles distant. This was agreed to, and Frost desired Smith to skin a bull of Moore's that had been killed by accident. The killing of this animal was manufactured into a charge against Moore and Smith of killing a bull, owner unknown, with intent to steal the skin and carcase. Smith himself states that he was never either examined or committed on this charge; be this as it may, he wab .imph.taoned from the end of December, 1835, until his examination on the 2nd November, 1836. In May, 1836, after his interview with Sir Richard Bourke, Mr. Donnison being at the Court House, the Chief Constable reported to him that

* Maltby SMITH was. changed son cattle 6-teaZing with John MOORE lettea sh.om J. WARNER 23nd July, 1836. 4/5526 - Page 109

the Lock-up was very damp and the health of the men likely to suffer. He consequently inspected the place and the condition of the men, and directed that they should be allowed to walk out an hour or two every day; observing also, that the irons had galled the legs of one of them, he ordered that the circumstances should be named to the Police Magistrate (who was then absent) on his return.* This was done; the irons were taken off, and the men allowed to go about, almost in nominal custody, until November 2nd. On that day Smith was allowed to give evidence, and accused Frost and Bramble of killing a cow belonging to Mr. W.T. Cape: a day or two afterwards, the case was investigated by Captain Faunce at great length, a number of witnesses, bok and agaLn6-t, were examined, all of them friends of the accused, who were discharged; and Smith was confined in a cell used for solitary confiement, seven feet by four. Smith unfortunately can read and write; and to beguile the time he had kept a sort of journal on such scraps of paper as he could find. About the 4th November, he was searched, and his papers taken from him; - of this hereafter. About Christmas, Mr. Donnison was at Court on his own business, and having heard of this unusual sort of confinement, asked Captain Faunce if it was the case, and if there was any ehakge agatin&t the man; Captain Faunce said there wa6 not any change agatin6-t him, but he was kept at the Lock-up as he would be wanted; but he denied that the man was in, the cell. Mr. Donnison persisted that he was there, and requested that he might see him. The cell door was opened, and there was the poor wretch in a most pitiable condition. Captain Faunce then said that he was put there because he and Frost quarrelled. Mr. Donnison took Captain Faunce aside and told him that whatever charge might be hanging over Smith, or however quarrelsome the man might be, such confinement was illegal; and he asked permission to send him some tea and sugar. Smith, however, remained in the same state until 12th January, 1837, when he was committed to take his trial for perjury, in having accused Bramble of cattle stealing, and then double phoned. He was forwarded to Sydney gaol, and discharged without a trial, in March. +

These circumstances were brought forward as evidence against Mr. Donnison in a charge of 6uboknaon oU pekjuky, eight months afterwards. +

"Justice shall be denied or delayed to no man," says John Bull, "Sir Richard Bourke's is a mild, bland, and paternal government," says an Australian patriot.

During the eleven weeks that Smith was in the cell, he states that he was continually asked if Donnison was not a cattle 6teatek, and recommended to have him4e26 and neveh mind hi6 ma6.teh.

This was a fearful trial for the virtue of a prisoner of the Crown. He is the son of a respectable farmer in England, and got addicted to drinking and wild habits, and, when intoxicated, eammitted -a-theft, fired a pistol over a woman's head, (editor's correction) for which he was transported seven years. Whether the discipline that he has undergone was likely to reclaim him is well worthy of inquiry. He had been brought up a sailor, and had a touch of true blue in him. Brown, another servant of Donnison, a soldier who was transported for striking his officer, was ordered to Court on 1st November, 1836, by Captain Faunce, to give evidence. He says that on his arrival Captain Faunce asked him where his master was, he answered that he was at home, unwell, in consequence of a fall. Captain Faunce then asked if Moore and Donnison were partners in cattle, to which he answered that he did not know any thing about his master's private affairs. "Mind what you are about, sir, or I shall put you in for cattle stealing yourself, ,te t the -thuth and don't mind yout ma4-ten." The man was then taken to the door of a cell, in charge of a constable, who urged him to .teU. the ,tn.uth and not to mind bu.4 ma6-ten. He had nothing to tell, and was shut up in one of the cells used for solitary confinement, where he remained for twenty-four hours, and still persisting that he had nothing to tell about his master, he was examined and dismissed. In the trial of Donnison v. Faunce, the former wished to prove these facts as indicative of malice and corruption on the part of the defendant, but was over-ruled by the Chief Justice, who said they were in themselves a high misdemeanor, but could not be admitted in an action of trespass. The men were seen in confinement by many people, the conversations rest on their own authority. On the examination of Mr. Moore on 1st or 2nd November, 1836, Mr. Willoughby Bean gave evidence for the accused, and therein stated that Richard Cape was one of a gang of cattle-stealers who had for several years infested the neighbourhood of Lake Macquarie, and to his knowledge Cape had branded a beast belonging to Mr. Dangar. Mr. Moore was requested and authorised by Mr. Sibley, Mr. Dangar's brotherin-law, to prosecute Cape on Dangar's behalf, but did not. Captain Faunce was fully aware of the fact. Thus Richard Cape complained to Captain Faunce that Mr.

Bean had sworn falsely in this matter, and without more to do the Captain issued a summons about the 5th for Bean to attend on the 14th to answer a charge of perjury. At the same time a number of witnesses were subpoenaed to give evidence in a charge of cattle-stealing against Mr. Bean and Mr. Donnison; but of this they did not receive any intimation. Cape himself served the summons on Mr. Bean, and on his way called at Mr. Donnison's farm and told one of the men to tell the latter that he was doing so, and that if Mr. Bean did not attend to the summons a warrant would be issued. Was this intended to blind the parties? On the 14th Mr. Donnison went to the Court House and faced Bean under examination on the charge of perjury, and Richard Cape giving evidence. No other witness was called or even mentioned on this charge. Mr. Donnison, on his opinion being asked by Captain Faunce, told him, that admitting all Cape said was true, his single testimony would not support a charge of perjury, but that he would not act as a Magistrate in the case, further than to inform him, that Cape's testimony had already been refused in that Court, by reason of his bad character. Mr. Bean observed, that Cape'6 own UaLhek and Mr. Manning had both said what he had stated, on which Captain Faunce proposed to bring both Manning and Cape senior from Sydney, until Donnison suggested that what they had formerly said of R. Cape did not prove or disprove The case was not proceeded with, but sent Bean's assertion. to the Attorney-General for his opinion. Previous to arriving at this conclusion Cape stepped out of Court and returned pulling a man named Meadows by the jacket, and said, this man has lost a cow, and I accuse these men, Henry Donnison and Willoughby Bean, with stealing it. After disposing of the charge of perjury Captain Faunce proceeded to investigate that of felony. The case was simply this:- In 1832, Mr. Manning having a considerable quantity of land at Brisbane Water, and some cattle, agreed with Mr. Bean that he should take charge of them and purchase more, with a view to some arrangement, in which no one but themselves can have any interest. Amongst other purchases Mr. Bean bought a herd of cattle from Mr. Richards. Bean and Richards had formerly been partners in a farming concern, and, on their separation, Richards took back all his own cattle running at Brisbane Water, and some others formerly purchased of Bean, including a cow, the subject of this charge of felony, but having removed his agri-

cultural concerns into another district, he was desirous of selling his cattle at Brisbane Water, part of which Bean, as a friend of both parties, took for Manning, and valued them. There resided at this time, in the same district, a person named Meadows, he arrived in the colony free, and came out before the mast in a merchant ship. He was employed by Bean as master of a small vessel, and afterwards as overseer to the farm of Bean and Richards, and, whilst under superintendence, conducted himself exceedingly well, and was particularly active and industrious, most indispensable qualifications with a new settler. When this superintendence was withdrawn and the man trusted more extensively, Mr. Bean was compelled to dismiss him,* but, in consideration of his family, did not proceed farther. After Richard's cattle were delivered to Manning, and branded with I M to distinguish them, (the ordinary practice here)d this Meadows claimed one of the cows, and said that one M Grath knew her to be his. Mr. Bean felt satisfied that the man could have no right to the animal, and told him so, but added, that if he brought to him McGrath, (who formerly had the charge of these cattle, and was then in another person's service, and lived about eight miles distant), and that he said the cow belonged to Meadows, he would give her up to him. Meadows did not bring McGrath, nor did he apply to him, at least so McGrath said to Mr. Bean. About March or April, 1834, one of Donnison's men, named Hilliard, informed him that Meadows had a cow on Tuggerah Beach run, grazing along with Manning and Dangar's cattle, and that he wished to sell her. As it was not unlikely that Meadows might have a single cow there, and as Donnison knew nothing of the man's history beyond what had fallen under his own observation, he did not doubt the story; he, therefore, got her in with some of his own, and sent Hilliard to Meadows to tell him so, and to desire him to come up to his house. At the same time, Meadows had privately offered two bottles of rum (a powerful bribe in the country) to any one who could get in his cow, which he swears was once so tame as to lick his hand. It had now got so wild that it could not be got in without the whole herd. During Hilliard's absence, Mr. Bean arrived; and on Meadows' speaking to Mr. Donnison about the cow, he told the latter that she belonged to Mr. Manning, and dared Meadows

See his Evidence, and that of King (MEADOWS PP: 72/75. KING PP: 79/80)

to take her at his peril. Meadows then said that Mr. Smith, the senior constable, knew her to be his; Mr. Bean answered, if he satisfies me on the point I will give her up. Meadows then left the place, threatening to seek a legal remedy; and the cow, at Mr. Bean's request, was put upon Mr. Manning's run again. Mr. Bean was at that time on his way to Sydney to settle some business with Mr. Manning; the contemplated arrangement did not take place; and on parting, it was agreed that Mr. Bean should have a couple of horses and the cattle that were grazing at Tuggerah Beach, amongst which was the cow in question. Meadows, on the next Court day, applied to the Bench for a summons for Mr. Bean; he had previously applied to Donnison, who refused to grant one in a matter of disputed property. Mr. Warner, however, considered that he had jurisdiction in the matter, and he being unwell, Mr. Donnison, at his request, wrote the summons for Mr. Warner's signature. The affidavit on which it was granted was to the following effect:"That Mr. Bean detained a cow, the property of Meadows, (describing the beast, and adding,) that she was branded with Mr. Manning's brand."

The summons was served on Bean in Sydney, who, being very busy, wrote an explanation to Warner, which satisfied him; and he directed the constable, William Smith, to return the money for the summons to Meadows, and to tell him that he could not entertain the case. At this time, Bean, Donnison, and Warner were on friendly terms. William Smith has declared that Meadows never applied to him to identify the cow for Mr. Bean's satisfaction; would it not have been easier to have applied to Smith than to have summoned Mr. Bean - admitting that a Justice of the Peace could try a question of disputed property. Meadows acknowledges, that although he had to see Mr. Manning (the owner of the cow when he first claimed it) on business, he never mentioned the matter to him. A few months afterwards, Bean sold this cow to Donnison with a lot belonging to Mr. Dangar, of Hunter's River, at one pound per head as they ran, taking all risks in getting them; and about three months after Donnison killed the cow, and told Meadows he had done so when he asked him about it. Mr. Bean did not return to Brisbane Water for above a year, but his affairs were managed by his relative, Mr. Watson, to whom he sent a memorandum of Mr. Manning's stock, live and dead, in which was a note, that Meadows claimed a cow of

If he made good the cea,im, Manning was to have Richard's. This was done with Richard's another from Richard's stock. knowledge and sanction. Meadows never preferred any claim to Watson. About June 1834, Bean wrote to him (Watson) to allow Donnison to take the cow, which he killed, as before stated; and so the matter rested, until the 14th November, 1836, when the acute mind of Captain Faunce discovered a felony in this transaction. On the 14th, 15th, and 16th November, Captain Faunce was busily employed in investigating this charge, and if he discovered nothing, his zeal is not the less commendable. On the third day, the Captain somewhat inadvertently let out a little of the system of e6p.i.onage, under which it was the pleasure of Sir Richard Bourke to rule this colony. The accused parties were, at that time, under the impression that Captain Faunce, however mistaken, was doing what he himself considered to be his duty, and, although he had adopted a course not justifiable in ordinary circumstances, if ever - that of examining and crossexamining the accused with great pertinacity, and expressing great surprise that they could not, on the instant, answer every question, and produce every document, (especially Mr. Manning's note of sale for the cattle, which Mr. Bean did not know where to look for), yet they were inclined to hope that he would at last see the matter as it really was. Mr. Donnison, who could only say that he had bought the cow from Mr. Bean, quoted to him Peel's Acts, and a Circular from the Colonial Secretary (explaining what was clear to all men of common sense, and gently squeezing in Sir Richard Bourke's own views on the subject, as well as partly eating up on obnoxious Circular that accompanied the Summary Punishment Bill the year preceding and which it had been ascertained might as well have been let alone.) Whilst he was using all his ingenuity to show that evidence might be poe.iti.ve, without being ckedib&e., especially in this country; and that ckedi.biU ty was a matter of some importance; and was further observing that Captain Faunce had dealt hardly with him; the worthy Captain impatiently cut him short by saying, "Mr. Donnison, I onty act accokding to my Mr. Donnison, really thinking he alluded to ,5tnucttonz," n the Circular, put his hand upon it, and said "you mean this?" "No," said the Captain, "I mean my ÂŁn6-thueti.onb."

17 The unfortunate gentlemen then standing at the bar were of opinion that the laws of the land ought to be a Magistrate's instructions. When acting as Magistrates themselves, they had acknowledged no other authority - perhaps the GenehaL was aware of that and did not try them. The Captain then called upon them for a defence, they put in the following statement and were allowed to go on parole. We submit to the Court that we ought not to be put upon our defence on such a charge as this, and so supported. We beg first to notice that Mr. Bean was summoned for a perjury alleged to have been committed in a case undisposed of, King V, Moore; that Mr. Donnison attended the Court on ordinary business, but declined to take a part in the examination as a Magistrate, and only stated to the Court a fact within his knowledge, as to the character of Richard Cape; that before the termination of it, Richard Cape rushed into Court, bringing Meadows by the collar, ( whom unknown to us he had brought from Sydney,) saying, I charge these men with cattle stealing. That by the evidence adduced, the charge of felony rests on the unsupported testimony of Meadows, who exhibited great reluctance to give any evidence unfavourable to the case, but admits that he had no present intention of proceeding of his own accord, and that his character as shewn only in these proceedings renders him unworthy of belief. We beg the attention of the Court not only to the evidence of Richard Cape , but to the animus shewn therein, and to his violent manner; and to the fact that after several admonitions he was first turned out of Court, and then on his talking from the door , he was ordered to be removed to a distance! and again to-day he was discovered crouching in a listening attitude, and on the Court directing his removal, called out that the witness was perjured, and he would prove it - and afterwards wished to prefer a charge of perjury again M c Grath, (who he said had called him a cattle stealer,) in the present stage of the business. Mr. Bean, though unprepared with proof, considers that the evidence bears him out in stating that he was Mr. Richard's general agent and at one time his partner; and that even if the identity of the cow killed was proved, it is only a mistake; as Mr. Manning's agent he retained it, when Meadows first laid claim to it, and also when he offered to kill it some months afterwards. Mr. Donnison offered at once to admit the fact of killing the Cow without Hilliard's testimony, and stated that he did it openly. He begs the attention of the Court to the fact of a very strong bias against him by a portion of the community not the most reputable, created by his endeavouring to perform conscientiously his duty as a Magistrate. In conclusion we maintain that the only testimony bearing directly on the case is not worthy of credit, and we beg to oppose our general characters to it, and if the Police Magistrate does not think fit to dismiss the case we request he will take advice from the Crown officers upon it. Brisbane Water, 16th November, 1836.

HENRY DONNISON, WILLIAM BEAN.

Mr. Bean considers that he was protecting Mr. Richard's property.

Mr. Bean, who was in bad health, was confined by illness for a short time. Mr. Donnison immediately proceeded to Sydney, and the Attorney-General being, out of Town, saw the Crown Solicitor. As one Justice cannot bail in a case of felony, and there was not another besides Captain Faunce in the district, Mr. Donnison was desirous of offering bail in Sydney, and for that purpose would readily have submitted to a committal at once. The Crown Solicitor however assured him that he should be put to no inconvenience, and his legal advisers having given their opinion that no lawyer could p&oceed with such a case, for if the evidence had been a.Pt.ttue, it was not a case of felony, he returned home. Mr. Bean on his arrival in Sydney also called at the office of the Crown Solicitor, and having learnt that the depositions had been forwarded to the AttorneyGeneral, he determined to await his return to Town. On his return, he again saw Mr. Fisher, (the Crown Solicitor), and was by him informed that the Attorney-General would not prosecute: being anxious that there should be no mistake, he requested Mr. Fisher to ascertain if Mr. Plunkett had fully decided, and on calling again on the following day, was informed by Mr. Fisher that the Attorney-General Would not pkoceed either in that ca4e, or in -thobe oU Mk. Moohe, and that he might go home and make himself easy. This occurred about 10th December, 1836, and a few days afterwards he set off for Brisbane Water. In the mean time Mr. Donnison having been apprised by his Attorney, Mr. Pogson, that the case would certainly be dismissed, and having heard indirectly that it was dismissed, and thinking that probably Captain Faunce might have received some information on the subject, went to the Court House to enquire. He was perhaps a little impatient, under the charge, not being used to it. On informing Captain Faunce of what

he had heard, that gentleman said he had not received any communication lately, but that he had before received a letter from the Attorney-General, who advised that Meadows should bring a c.i.uit action against Mr. Bean, and that the criminal proceedings should be huhpended in the mean time, to be hewt in the civil suit. Mr. Don6umed if Meadows was auccenison thinking that it was ÂŁmpo66ib.2e that the Attorney-General could have given such advice, told Captain Faunce that there must be some mistake, but the latter assured him that it was so. Donnison then observed, this man may allow the thing to sleep two or three years again, on which the Captain said no, the

19 Attorney-General says he may bring it in the Count oU Reque4to. Donnison said I am on my parole to appear here when called upon, to which the Captain answered, you must appear when called upon. Donnison then said that he would write to the Attorney-General on the subject; and, further, that, on consideration, being satisfied the Attorney-General would not proceed, he told Captain Faunce that Hilliard in his testimony had concealed an important part of the truth, and had helped to get up the case, and also had defrauded him, and seduced a sawyer from his employment just before these proceedings commenced; and that as soon as he was officially informed that the criminal charge was dismissed, he would request Captain Faunce to cause the man to be brought before the Court for the offences, which the Captain promised to do. Mr. Donnison was then apprised by his Attorney, that the Attorney-General had determined not to pkoceed. Captain Faunce however still persisted, that the case was not dismissed, and Donnison suspecting foul play, determined to know how matters really stood, and addressed the following letter to the Attorney-General. Brisbane Water , 21st December, 1836 Sir, - I have the honor to address you, in consequence of Captain Faunce having informed me, that , in the matter of a somewhat extraordinary charge of felony preferred and entertained against Mr. Bean and me, you had apprised him that Meadows could bring a civil action, or proved in the Court of Requests , and that the Criminal charge is suspended in the mean time , dependant on the result of that action , but that I feel asI am still liable to be called again before the Police Court. sured that Captain Faunce has mis-stated the purport of your letter; but be it as it may , I beg to observe that when upon the Bench I was suddenly called upon to answer a charge which the Police Magistrate had for ten days , had secretly in preparation ; that I appeared at the bar of the Court for three days under examination , during which Captain Faunce animadverted severely upon my alleged mid - doings , and said there was a very strong case against me. I cannot appear with due respectability as a Magistrate again, until this false charge is dismissed as openly as it was made . Whilst I conscientiously perform my duty, I consider I am entitled to receive that countenance and support which the law officers of the Crown usually afford to Magistrates , and I feel satisfied that my appeal to you , as Attorney - General and as a gentleman, will not be in vain. I have the honor to be, Sir, Your most obedient servant, To the Attorney General , (Exhibited by plaintiff,

HENRY DONNISON ( Signed ,) in Donnison v. Faunce, 17th October , 1837.)

Mr. Bean having arrived in Brisbane Water the day after Christmas day, accompanied Donnison to the Court House

and repeated to Captain Faunce the result of his communication with Mr. Fisher. Captain Faunce still persisted that the case was not dismissed, but promised to acquaint them as soon as he heard from the Attorney-General. When Mr. Donnison received the positive assurance from his Attorney alluded to above, he requested Captain Faunce to cause Hilliard to be brought forward, which he refused to do. The matter is unimportant, except for two reasons = 1st. The Attorney-General has stated that Donnison was induced to prefer the charges against Hilliard in order to swamp his evi2nd. It shows the use which the minions of Sir dence. Richard Bourke made of the prison population, and how they were protected in it. Under any other circumstances, the man should have been punished and deprived of his ticket-of-leave. In Moore's case, Richard Cape made a complaint, and Bean was forthwith brought before the Court on a charge of perjury, but Hilliard was protected, even when charged with other offences. (The correspondence is in the Appendix.) Since the appointment of a successor to Captain Faunce of a different stamp, Hilliard has sent to Mr. Donnison offering to make good the timber of which he had defrauded him. In the conversation between Faunce, Bean, and Donnison, after Christmas, at which Moore and Watson were also present, the former complained that Donnison had dealt uncharitably by him in imputing to him partial feelings, in a letter written to him about not summoning Hilliard - (See Appendix). Don-

nison said "if I have, Captain Faunce, you have done worse by me, for I hear you have said, out of Court, that I bought that cow from Bean knowing her to belong to Meadows." The Captain coloured very much, and then answered, "I have said so, and I am warranted by the depositions, and I have Wkctten to that effect to the A.ttokney-Genenat, and I consider that I am justified in doing so." Donnison said that neither of these acts were justifiable as the matter stood. This is the man upon whose "ministerial discretion" the Attorney-General professed to rely. About Christmas, the Clerk of the Bench (the old Poundkeeper, promoted at the recommendation of Captain Faunce,, and against the remonstrance of Donnison) went to Sydney and returned on New Year's Day. On the 2d January, 1837, Bean, Moore and Donnison were apprehended; Moore, be-

cause Bean Way, one oU hLb bait; the other two for cattle stealing. Mr. Donnison was taken immediately to the Court, and on his arrival, the Clerk, who is also Postmaster, delivered to him the following letter, in answer to his of 21st December.

21 Attorney- General 's Office, 29th December, 1836.

(Copy)

Sir - I have the honor to acknowledge the receipt of your letter of the 21st Instant, addressed to me, in consequence of Captain Faunce having informed you of a communication from me relative to a certain charge made against W. Bean and yourself, and stating you felt assured that Captain Faunce had misstated the purport of that communication; and also stating, that in consequence of the proceedings in that case, you cannot appear with due respectability as a Magistrate again until the false charge be dismissed as openly as it was made. In reply, I beg leave to say, that I am sure Captain Faunce has correctly stated to you the purport of the communication he received from me, and I can only regret being compelled, by the depositions as they were presented to me, to think it necessary that further steps should be taken to clear up the doubts that were raised as to the identity and ownership of the beast alleged to have been killed by you. Although it was impossible to be satisfied by the perusal of the proceedings, that the charge was unfounded, still, while there was a doubt upon my mind, I wished to take every means to remove that doubt before I would decide on putting a gentleman holding the Commission of the Peace to the painful ordeal of a trial for a charge of such a nature. However, as Captain Faunce has since that sent me further information, and as you demand that the charge against you shall be dismissed as openly as it was made." I conceive that the best course for me to adopt is, to return the depositions to Captain Faunce, in order to exercise his ministerial discretion, either in dismissing it openly, or committing for trial. If he should adopt the latter course, I will consider myself bound to afford you the opportunity of defending yourself publicly against the charge, and I will derive sincere gratification from the circumstance of your being able to do so with credit to yourself and satisfaction to the public. I have the honor to be, Your obedient Servant, JOHN H. PLUNKETT, Attorney - General. H. Donnison, Esquire, Brisbane Water. P.S. - I think it right to send Captain Faunce a copy of your letter to me, as also a copy of my reply. [Exhibited by plaintiff, Donnison v. Faunce, 17th October, 1837.]

Captain Faunce then apprised Mr. Donnison that it was his pa..nbwt duty to investigate the case - that Mr. Scott had been in Sydney and more evidence had been procured. Mr. Bean and Mr. Moore arrived on the following day, and Bean and Donnison were put to the bar. (The evidence on which the Attorney General decided first to suspend the criminal case, and, afterwards, that there was no case at alld is contained in the depositions of Meadows, Cape, Hilliard, M Grath, King, and Hogan, in the Appendix.) Captain Faunce proceeded to take the following evidence on which he committed the parties for trial, on the 4th. Rourke

swore that he was formerly Mr. Bean's overseer, and that Meadows brought a cow and calf in a vessel to Bean's farm; but he knew nothing more about the matter. Nobody disputed that Meadows once had a cow, but was the cow in question his, and was she Ueeovu.oah.ey appkopkLated by Bean and Donnison ? Thompson swore that Watkins .to.ed him that he had sold a cow and calf to Meadows; he could not say any thing about the cow's head, but he had seen her latter end. Scott, the expoundkeeper, made the following deposition, which is perhaps the most singular document in a charge of felony that has ever appeared in the records of a Court of Justice. It should be premised that Captain Faunce had told Mr. Donnison that he was also to be tried for Magisterial delinquency - a somewhat extraordinary adjunct to a case of felony - and further that he called Mr. Scott to dophove the assertion made by Mr. Donnison that there existed a bias against him, by reason of his having conscientiously performed his duty as a Magistrate. NEW SOUTH WALES, TO WIT: Thomas A . Scott , Clerk to the Bench at Brisbane Water, being duly sworn, deposeth and saith - I was present in Court at the prior part of the examination of this case about six weeks ago , and heard Mr. Bean say, in answer to a question put to him by the Court, that he had no acIn answer to a question, count of the sale of the cow called Blindberry . if Mr. Manning had an account of the sale of the cow , he gave an indefinite answer , and said he was taken so unawares that he was not prepared. I heard Mr . Bean absolutely deny having given a receipt as mentioned by Mr . Richard Cape . He did so repeatedly. There is a strong bias against Mr . Donnison , but it arises from his connection with Mr. Moore The bias in the cattle concerns , and that he is not just in his dealings . is not in consequence of his conscientiously doing his duty as a Magistrate; He was formerly highly of this I have had ample opportunity of judging . respected when he first came to this district ; the change of opinion arose from the cattle concerns as before stated, and some of his Magisterial acts while sitting on the Bench , of which there are proofs , shew dishonor and dishonesty . In the end of December , 1835, I was in this Court when an assigned servant of Mr. Donnison , named John Berry , was charged with robbery ; he was found guilty ; the Police Magistrate , Mr. Warner, asked Mr. Donnison if the man should receive fifty lashes , Mr. Donnison said that the prisoner ' s state of health would not permit him to bear it, and recommended solitary confinement . The man was sentenced three days' solitary confinement , as shown by the Police Records (produced). Previous to the sentence being pronounced , Constable Smith, one of the witnesses , made allusion to a forged pass that the prisoner, Berry, had on him when he was taken . Mr. Donnison stopped the witness in saying any particular about it . After the man received his sentence , Mr. Donnison addressed him thus - " Now, Berry , I have saved you from fifty lashes this time ," at the moment holding a slip of paper in his hand , " will you now make good those bridges . There is a pass to which you have signed my name, I did intend to bring this against you , but I will not now if you

make the bridges and bring up your back work ." Mr. Warner was present during this conversation , but said nothing . After this , as the man was going away , Mr. Donnison called him back and said , " remember, if you do not make the bridges , I will bring the forged pass against you and get you fifty lashes." Constable Smith, the Prosecutor Sidebottom, I think the Scourger , Stephen Curran, now in a Lunatic Asylum, were present . I never knew Mr. Donnison to officiate as a Magistrate except in cases where he was personally interested. Mr. Warner complained that he was not assisted by Mr . Donnison . Mr. Donnison never officiated except unless brought by a compulsory letter, or summoned on his own concerns , and in a case of one man named Cooper , Mr. Warner had to take the case to Newcastle . I was not always attending the Court, and there may be a deviation from what I have before stated - and I know of no instances. I attended the Court nearly every sitting, and acted gratuitously as Clerk . I know of another instance of a similar nature. Some time prior to the first case I have mentioned , as I was coming from my house, by way of Point Frederick , I fell in with an assigned servant of Mr. Donnison ; the man informed me that he was ordered by his master to the Police Court, for neglect of work . I saw that man on the same day at the Police Office , speaking with Mr . Donnison , who said "I I saw the man afterwards, and must inflict some punishment on you ." he told me that his master had let him off on condition of his splitting some thousands of shingles to make up for his lost work . I did not mention this case first , because I felt that I could not bring forward support to my testimony ; I considered the charge of a grave nature. There was nobody near when I spoke to the man ; I do not know the man's From the before mentioned circumname ; I have not seen him lately . stance in the last case , I thought that Mr. Donnison had employed his Magisterial powers for his private interests . Mr. Donnison was formerly respected and supported , particularly on account of his amiable family, who still are respected . Mr. Moore was charged with stealing a heifer, the property of Mr . W.T.Cape , he gave in a defence , dated 2nd November, 1836 ; part of that is in Mr. Donnison ' s handwriting , but the handwriting is disguised ; the passage commences with , when "Mr. Cape commenced with a half apology ," and ends with "the case was referred to the Sydney Bench; " it is on the sixth page. This statement is false. About two years ago , two men named Freeman and Sheridan, were splitting shingles on government ground , as stated by them ; Mr. Donnison seized the shingles , and they were not reported to the Police Office. I heard I do not know the number split, or the number carted away . of the above and believe it to be true , in consequence of other dishonest acts on the part of Mr . Donnison . I do not know that Sheridan complained to Mr. Warner about the circumstance , and that Mr . Warner I consider that the statement Mr. Donwould not entertain the case . nison first made , as to the charge brought by Meadows, is false and dishonorable , as to the part where he says that he brought upon him the odium of the inhabitants in consequence of his having conscientiously discharged his duties as a Magistrate; I say that such is not the fact, no person having been attacked by his powers as a Magistrate , except in interested cases . I entertain a bad feeling against Mr. Donnison in consequence of his several acts in my knowledge of his dishonor and dishonesty. I have no bad feeling in consequence of having quarrelled with him about a bargain in corn; I did not quarrel with him ; I had no bad feeling then

against him and ran six miles after him in order to do him a friendly office. I was not aware that he had represented to the government that I was unfit for the situation I now hold; I have no bad feeling on that ground. In order to clear himself from that difficulty, and that dereliction from conscience and honor, I believe that he would not hesitate to destroy the infants, and to make the most innocent and honorable man appear base and infamous; I except from that statement his own amiable children. A man who is not under the restraint of principles is to be doubted in all cases, even where his own children are concerned; I should say that applies to Mr. Donnison. Mr. Warner formerly had a good opinion of Mr. Bean, but I believe changed that opinion in consequence of his connection with Mr. Donnison and Mr. Moore. The connection was a dishonest one, viz - buying property worth two thousand pounds for one hundred and fifty.* I saw so much interest shown by Mr. Bean in Mr . Moore's case, that my presumption was that he was deriving benefit from the connection. He had been frequently riding about with Mr. Moore in the direction of Lake Macquarie hunting cattle; the source of my information is partly from Mr. Moore's defence. Maltby Smith made a diary in which Mr . Bean's name appears; Moses Carroll and other constables informed Mr. Warner of the circumstance; these sources refer to many visits; they are innumerable. From Mr. Bean's association with Messrs. Donnison and Moore, together with Mr. Bean 's deposition in Mr. Moore's behalf, in November last, I viewed his principles doubtfully, as I consider his connections with Messrs. Donnison and Moore as disreputable to him. My impression was that the cattle Mr. Moore and Mr. Bean were riding after were government cattle. When Mr. Bean was asked for documents concerning the cow, he was surprised, and said he was taken by surprise. Mr. Bean was summoned on a charge of perjury, and the case was dismissed; this charge was entertained on the same day, without any previous notice having been given. I heard Mr. Bean say that he believed he could not produce the document required. About six weeks ago my servant, Henry Stephens, was sent by me to drive cattle to Andrew Rook's - previous to his going he asked me for money, which I did not give him. He should have been back in one day, but took two days and a half. When I called upon him to account for his delay, he said he had been stopping at Mr. Donnison's, where he had been half-pinting it, which means drinking liquor in that quantity. I enquired how he got the money, he said he got it from Mr. Booker, who accompanied him in driving the cattle. On enquiring from Henry Stephens as to how he obtained the liquor, he said any man could get half a pint at a time, and that when one man could not get it another would. It is a notorious grog selling place. (Signed ) THOS. A. SCOTT Sworn before me, at Brisbane Water, this 4th day of January, 1837. (Signed) A. T. FAUNCE, J.P. P.M. I testify this to be a correct copy from the Records of this Office. (Signed ) T.A. SCOTT, Clerk to the Bench Police Office , 4th January, 1837

Unfortunately for the parties, this is a mere invention; they are quite ready now to buy property worth two thousand pounds for one hundred and fifty.

Justices of the Peace are not bound, when acting ministerially, to hear evidence for the accused; yet any one who carefully reads the Act will see that the obvious intention is that the public time shall not be occupied needlessly, when there is a clear ph.ima Uaci.ae case. Was this a clear case against the accused? Would any gentteman, in the circumstances of Captain Faunce, (in the exercise of his pa.in6u2 duty), have left a stone unturned to have arrived at the truth? His duty to a brother Magistrate alone should have been a sufficient inducement; and the sooner that the public were satisfied of the truth or falsehood of the charge, the better for the interests of justice. Previous to committal, he asked the accused if they intended to call witnesses, they answered in the affirmative. He asked Mr. Donnison if he meant to contradict the evidence for the prosecution, who answered that he would contradict and explain it. Mr. Bean then called one witness, and, immediately after, without waiting for more, Captain Faunce committed both. Mr. Donnison observed "it is usual to ask persons accused, if they have any thing to say before committal; and let me clearly understand you, Captain Faunce, do you refuse to receive any evidence or explanation whatever." Captain Faunce answered " in my ministerial discretion I do refuse you are committed." Mr. Watson was at that time in the Court with papers for the purpose of examination. Donnison then asked about bail, and mentioned the conversation that he had held with Mr. Fisher. Captain Faunce said the Attorney General had ordered him not to take bail, but on Donnison asking him if he would append a note to the depositions that it was a bailable case, but that there was no other Magistrate in the district, he said he would do so, adding, sneeringly, "had you not better send for your friend Warner." A man often shows his disposition more in trifles than in matters of importance; after committal the Captain looked at Mr. Donnison very expressively, and said, "you know you wrote me a letter," alluding probably to that about Hilliard. On the 5th January, Moore and Donnison were put to the bar, and if the following facts were not established on unimpeachable testimony, they would appear incredible. It must be borne in mind that Moore had been committed on 2d November previous, for an alleged felony in 1835, admitted to bail by advice of the Attorney General, if the case "hhoutd not .tu+tn out ueky bad;" had been at large from that time, and the case itself abandoned by the Attorney-General. On the

2d January, he was apprehended for "-.ne66ic-iency ob bat;" he

tendered a responsible person, who was told to go home, as his bail would not be taken. The pkopkiety and legality of the apprehension are of a piece with the rest. To Moore, Captain Faunce said, he merely brought him up to see fair play, or something to that effect. To Donnison he observed, that he must warn him, that in addition to other charges, he must be prepared to answer for his magisterial delinquency, and then proceeded to inform him that he was charged with being an accessory in the case of December, 1835, for which Moore had been committed and bailed, as before stated. Mr. Donnison - How is it that this was never discovered before? Mr. Warner has had the case before him, and two Attorney-Generals, and you yourself, in November last, joined me in bailing Mr. Moore. Captain Faunce - Oh, I had not then had so much experience in these matters - I did not see it then. Donnison - And pray, Captain Faunce, how long is it since you found it out? Captain - No matter, Sir, I have been some time in correspondence with the Attorney-General about it. Donnison - How long, pray? Captain - Two

or three months. Donnison - I suppose since November last. Captain - I can't be questioned, Sir. The original depositions are in Sydney, we have only the cop-Le6 peke," but you know all about it. Donnison - If you are going to act on those copies, I should like to hear them read. The copies were then read - the trifling ceremony of summoning the witnesses and examining them before the prisoner, being omitted. One of them (Bramble) was examined a few days afterwards in another case. After reading the copies, Moore's servant (Frost) who had been in custody since December, 1835, was admitted as an approver. Let it be remembered, the charge was that of Moore stealing Cape's heifer, and Donnison being present and aiding when he drove her away, consequently a principal. It is a remarkable circumstance, that after the charge against Bramble and Frost, for stealing a beast of Cape's was dismissed on the 4th November, Smith; against whom no charge was preferred, was kept in a solitary cell, whilst Frost, committed {yok cattle 6teating, was allowed to go almost at large about the watch-house, living with the constables. If the man was suborned, he made a very bungling witness; for whether the force of truth prevailed, or whether he did not know the effect of what he was stating, he swore that the heifer was (not

By the Attorney General's letter, he had evidently returned all the papers that affected Mr. Donnison, therefore this bright idea was evidently the Captain's own, or put into his head by some one else.

Cape's, but) the pkopekcy o^ Moore; he immediately afterwards added, without anything leading to it, "My master told me that Mr. Donnison was his partner." On his making the first statement, Captain Faunce, who was evidently somewhat surprised, examined him at some length as to his knowledge of the beast being Moore's property, and made the matter worse by eliciting, that "he had seen it sucking one of Moore's cows." The second statement was taken down without a single question as to what led to such an extraordinary mark of confidence on the part of Moore.* How, if true, it could apply in a case of felony, unless both parties had committed the theft does not appear. On this evidence, which charged Moore with branding and driving away his own beast, was Donnison committed a second time for cattle stealing. On the 7th, a man named Bramble was privately examined for a considerable time; on the 10th, Moore and Donnison were again put to the bar, charged with stealing two steers from Bramble, and with conspiring to injure his character by accusing him of intended arson, and Moore alone with perjury, in having in October, 1835, sworn that he was apprehensive that Bramble and others might set fire to his house, in consequence of which Warner and Donnison bound Bramble to keep the peace. During the examination, the worthy Captain discovered that Donnison had been-guilty of "subornation of perjury," in having in his capacity of a magistrate asked Mr. Moore if he was afraid, and that charge was incontinently appended to the others. Perhaps there might be something of equity in this, as it equalised the number of charges against the two.

The felony was proved as follows:- Bramble swore that one day Mr. Moore gave him six head of cattle. No memorandum passed, no mention was made of age, sex, color, or any particular description - merely six head running in the bush. On this Bramble delivering to Moore some cattle of Mr. Manning's, he produced two, branded with Cape's brand, that he had collected from a lot that had been sold to Mr. Moore by Richard Cape, and demanded one for collecting the two, in pursuance of an old agreement with Richard Cape. Moore refused to give him either, but as he had had some trouble with the herd he offered him a couple of pounds for it. Moore branded all the cattle, including these two, with his own brand. Donnison's share of the transaction was, according to Captain

Frost had since obtained a ticket-of-leave.

Faunce's law, asking Bramble the value of his own cattle. Bramble swore that the two head were part of the six formerly given to him by Moore. This horrible and daring theft took place in open day in the presence of half a dozen people, at the same time that Moore stole the other cattle from his own herd in 1835.* To this day the accused parties have not been able to ascertain what the conspiracy was - they merely know that they were committed for it, after two days examination. To prove the perjury and subornation, Mr. Warner, late police magistrate, was sent for from a distance of fifty miles. He swore that Mr. Moore preferred a complaint against Bramble for a breach of the peace, and that amongst other things, he swore that he was afraid his house would be set fire to by him. It appeared that a constable had advised Moore not to leave his house without some one in it, lest it should be burnt, and that Moore had been recalled into Court, and the following question put to him by Donnison - (Donnison says, that Warner asked the question, but it is immaterial):- Did you apprehend that your house might be set fire to by W. Bramble or others, when Moses Carroll recommended that a man should be left in charge of the premises? His answer in the affirmative, Faunce discovered was a perjury, and Donnison's question a subornation. "Flat perjury to call a prince's brother a villain." Donnison suggested that Warner must be guilty if he was, but this was overruled. Most people would have thought this was pretty well, but the Captain had not done yet. On the 12th, Smith was committed for perjury, and on the 13th, Moore and Donnison charged *

A circumstance occurred, whilst this Bramble was giving evidence, which shows the spirit in which all the business was conducted. Mr. Donnison, in cross-examination, asked if he had not stolen certain cattle - the fellow crossed his arms, and with a knowing and familiar nod, said "come now, Donnison, I tell you what it is, I never stole any thing from you." Mr. Donnison said "pray, Captain Faunce, do not allow that fellow to address me in such a manner." Captain Faunce - "I can't help it, Sir, you are only a common criminal." Mr. Donnison - "I am accused, not convicted, Captain Faunce." Captain Faunce - "Well, Sir, I can't help it." Mr. Donnison - " I have appealed to you as a Magistrate, Captain Faunce, I now appeal to you as a gentleman." Captain Faunce (very mildly) - 'Don't address Mr. Donnison in that way, Bramble." On the following morning Mr. Donnison asked the Clerk (who is Postmaster) when the mail would go. (He had taken the liberty of detaining it, by the Captain's orders, as he said.) The Clerk, doubtless willing to profit by the example of the day before, answered "don't talk to me, Donnison, you are only a common criminal." Comment is needless.

with suborning him. On this occasion they had the benefit of legal advice. Mr. Bean had written to a friend at Maitland, wishing him to go to him at Brisbane Water; he was from home, but his brother, Mr. John Plaistowe, immediately proceeded thither. Mr. Plaistowe had formerly practised as an attorney, but had quitted the profession and become a settler. He was quite unknown to Mr. Moore, and only knew Mr. Donnison personally; but all of the gentlemen will ever remember the zealous kindness with which he took up their case, at considerable inconvenience and loss of time to himself. They were not so much in want of legal assistance as of a respectable, disinterested witness of what was going on. This charge was dismissed - a copy of the examination is in the Appendix. It is an excellent illustration of the whole. It may be observed in passing, that Smith (Donnison's servant) had been searched, and some scraps of paper taken from him by force. Upon one (a piece of old newspaper) was written in four different parts, the following awful words:- "London, out of ÂŁ4 due to me received one;" "Worked with Johnson [on some day];" "Met Johnson on the wharf;" "Henry Donnison, Maltby Smith." After the dismissal, Mr. Donnison asked Captain Faunce how this paper, admitting it could be received in evidence, implicated him; the Captain, with a look of infinite wisdom, answered, there was a strong case of suspicion that he had promised Smith ÂŁ4 to commit perjury, and had only given him ÂŁ1, especially as both his name and Smith's were on the paper. Donnison - But there is the name of Johnson also, I had a man of that name, whom Smith may have worked with and met on a wharf - how does that apply? The Captain did not see the application of that part of it. This was the last charge: in the whole, Bean was committed on one felony; Moore on three felonies and two misdemeanors, and discharged from one of the latter; Donnison on three felonies and two misdemeanors, and was discharged from one of the latter; the adjuncts of magisterial delinquincy, purloining shingles, sly grog-selling, and killing children, having evaporated. Mr. Donnison being desirous to see his family, requested Mr. Plaistowe to ask permission of Captain Faunce, and as Mrs. Donnison was in a very delicate state of health, to get a decisive answer, in order to prepare her for it. Captain Faunce granted permission, and Mrs. Donnison was apprised of it accordingly. Next morning, Mr. Donnison was informed that he was at liberty to go under charge of a constable, and

was told to get ready - he did so. He was told a few minutes after that there was a change in the orders, and was kept about an hour in that tantalising situation, when Captain Faunce told him that he could not go home, as none of the constables would venture to take charge of him, adding, "You have a number of men, Mr. Donnison, who might take you from the constable, and he would be liable for an escape." Mr. Donnison said that would be a rescue, not an escape, but I would not do you such a favor as to attempt to escape. The Captain went away, having left order to put all the gentlemen in .i.aon6. People in England will scarcely credit that any gentleman could commit such a piece of cold-blooded cruelty, still less that he should be supported by the Colonial Government. He is himself a husband and a father. The reason alleged for these detestable and degrading acts, is, that a shoemaker in the employment of Mr. Donnison had said, a bohtnight before, that he was a good master, and he would go through fire and water for him. This alarming intelligence was at length acted upon, and certainly the vigorous measures at last taken amply compensated for the delay. The information appears to have been fermenting in the worthy Captain's brain, and at length broke forth like a geyser. But why iron Bean and Moore, there was no diabolical charge against them of being good masters - no arrant cobbler had threatened to rescue them from durance vile; we will take Captain Faunce's own reason - "They were connected with Donnison." It is too true, that was "the head and front of their offending," and Mr. Donnison can never sufficiently regret the evils and insults that they have endured for no other reason than being his friends. It was necessary for the "6y6-tem" that "Donnueon mwot be sachi4iced," and there was no way of getting at him without including his friends. Thank God that Sir Richard and his system are gone. If a felon in the dock said his master was a bad one, an inquisitorial commission was forthwith issued. If, on the other hand, the master had the misfortune to be praised, it was a pretext to put him in irons, if he did not stand well at head-quarters. Had Captain Faunce really been apprehensive that either Mr. Donnison or his friends would escape (which they might have done at any time, so loosely were they guarded), he would have fzep.t them in irons and used some precautions to prevent a rescue from without: that he did not stand upon trifles is clear, for he had previously kept Moore for fourteen days in irons. No additional precautions were ever taken; and on the following day, on

the remonstrance of Mr. Plaistowe, who threatened legal measures, the mono wehe taken ojU again, the gallant Captain saying, "If I can't send them to Sydney in irons, I can mahch them ." Captain Faunce's legal defenders have taken in handca credit for his expressing a desire to send Mr. Donnison home for a day. It would not have been an enormous favor, and under the circumstances should have been granted. As to the fear of a rise on the part of his men, some of them were in a state of mutiny, so much so, that the day after the ironing, the overseer went to the lock-up to take Donnison's instructions upon the subject. During his absence, Mr. Donnison's place took fire, and in a few hours was totally consumed. The fire began in six places at once, and burnt without ceasing; barn, hay-barn, stores, stable, kitchen, tannery, a large quantity of sawn timber, in fact, every out-building and their contents, except some of the men's huts, were consumed; the cottage was saved by pulling down a part of it. Whether this was occasioned by accident, or design, or both, has never been ascertained. After being subject to a long detention, and great degradation and annoyance, a gale of wind, with continued heavy rain, came on from the southward. Sydney lies to the south of Brisbane Water, consequently the wind was foul. The prisoners had to be sent by sea in a small sloop of fourteen tons burthen, on the bare deck. This sloop lay right to windward three or four miles, and 'under these circumstances they were ordered to go into a small open boat to be taken on board; it being perfectly impossible at that time to get across the Broadwater in such a boat, and the certainty (if a boat could cross) of the party remaining on the open deck until the weather moderated and the wind became fair (which really did not happen for above a week). They made a protest (see Appendix), and sent it by Mr. Plaistowe, who brought them an order to wait until the weather was more favourable. On their arrival in Sydney, they applied to the Supreme Court, and were all admitted to bail on the 1st February, having been in custody thirty days. The Attorney-General, in his capacity of grand jury, found bills in all the cases of cattle stealing, but for some time he did not decide what he would do in the other cases, at least, if he had decided, his decision was not known to the parties concerned. Mr. Moore was tried alone for the October case on 6th February. Being desirous of showing it as it really was, he had subpoenaed witnesses, but before the examination of the first witness (Mr. Manning) was completed, the jury declared that they were satisfied and returned a verdict of "Not Guilty."

Mr. Bean and Mr. Donnison were tried after some delay on the part of the Crown Prosecutor, on the 27th of February. Two or three circumstances that took place between their being admitted to bail and the day of trial may be noticed. Mr. Donnison had heard that the evidence of a certain person, a prisoner of the Crown, might be serviceable, and he was accordingly subpoenaed. On the man's way to Sydney he was stopped at the Court House by Scott, the Clerk of the Bench, who, on looking at his subpoena, pronounced it a forgery. The fact is, that the copy was written by Mr. Donnison - the original shown and read to the man at the time of service. On this the man was recommended to return home. He was served a second time, and on this occasion his master chose to prevent his attending - under what influence it is now not worth while to enquire. A week or two before trial, a person accosted Mr. Bean and requested a little private conversation. The substance of it was, "they don't want to hurt you, but Donnison must be sacrificed, nothing can save him, all the power of the government will be against him; but if you will abandon him, you will be safe." Bean could not conceive how his abandoning Donnison could influence the proceedings of a Court of Justice. Donnison was charged with felony in purchasing the cow from him; he himself had purchased the animal from Mr. Manning, and he did not understand the doctrine of abandonment as there laid down. On his intimating this, the negociator then said "there is only one other course that will save you go immediately and retain Roger Therry, do not lose a moment; if you have not the amount of the fee in your pocket, here are ten pounds, but he will return it, I have just left him,"and that will be a token that you have abandoned Donnison." Mr. Bean did not avail himself of Mr. Therry's services. The trials were fixed for Monday the 27th, and following day. On the parties arriving in Sydney, they found their Attorney, Mr. Pogson, on the point of death, and one brief only partly prepared. On Friday the 24th, they put their case into the hands of Mr. Unwin, and instructed him to ask the AttorneyGeneral if he meant to proceed with all the long list of charges that had been brought against them, and which case he would bring on first. Mi4taheb had occurred, and similar mistakes might now have been more than inconvenient. The Attorney-General refused to give an answer until the following day, except that he might strike out of the list all but the charges of felony; they were consequently compelled to prepare briefs and retain counsel in all of those. On Saturday the 25th, the AttorneyGeneral decided to commence with the charge against Bean

and Donnison, in which the former had been accused of stealing a cow, and the latter with receiving it. And it must be borne in mind, that the Attorney-General had (on the 20th December only) expressed his wish to remove every doubt before putting "a gentteman hotdi.ng the comm.(,66-ion aU the peace to the painful ordeal of a trial for a charge of such a nature," thereby expressing, if not feeling, a decent sort of reluctance to do anything that would tend to degrade the magistracy. In conformity with the 6p-U4 t of this letter, he indicted Henry Donnison, ÂŁabo&en, for stealing the cow, and W. Bean, yeoman,* for receiving, harbouring, maintaining, and assisting him, &c. - of this more hereafter - it may be as well to jump to the conclusion. The evidence for the prosecution (into which Mr. Warner and Captain Faunce were introduced, probably to give some appearance of respectability to it) being closed, the accused determined to leave it on its own merits, and neither made any defence, nor produced any evidence. The Judge informed the Jury that the case rested entirely, on the unsupported testimony of Meadows, and, without any hesitation they returned a verdict of "not guilty."+ The Attorney General then stated to the Court that as this was the 6.t/Longest of a 6eh.ie6 ob ca4e6, he would withdraw the rest. Some people said it would have been better if he had not proceeded with them at all. It may not be out of place to state the nature of the evidence given by the Crown. The testimony of Meadows, Cape, Rourke, Hogan, King, and Hilliard were not materially different from what they had stated before. McGrath, Meadows' own referee, who had sworn at Brisbane Water that the cow belonged to Richards originally, was not called, neither was Scott, who could have proved Donnison guilty of numberless enormities. By some unaccountable oversight the law officers, whose zeal cannot be called in question, omitted to produce the man who had proved at Brisbane Water the important fact of somebody's * Perhaps Mr. Plunkett merely intended to vary his designations - he indicted Donnison as a laborer , Bean as a yeoman , Moore as a gentleman, and Bingle as an esquire . How he would have designated a fifth, had another, to use the elegant phraseology of his friend Mr. Therry, got "into his clutches," must be matter of conjecture. Mr. Donnison had learnt that Meadows could not be found , and that if not found his trial would have to be deferred for another term. He immediately ascertained the man's place of residence , of which he per-

sonally informed Mr. Plunkett , who was "much obliged to him, for he could not have gone on without Meadows."

cow having a hump if it had not a head. But then they brought forward Mr. Warner who proved, on cross-examination, that in 1834, when on friendly terms with Bean, he had paid more regard to his word than to Meadows' oath, but had since changed his opinion after he was not on friendly terms with him. They also produced Captain Faunce, the gentleman who acted "under instruction." What he proved bearing upon a felony it is really difficult to state; he first said he had not received from Bean a bill of sale, and then said he had. It might now have been reasonably supposed that the gallant Captain would have been instructed to be quiet, and that the government would have let these unfortunate gentlemen alone. Quite the reverse was the case. A few days after, the Attorney General stated in the Supreme Court, in the hearing of any one who chose to attend, that he should recommend the Governor to dismiss Mr. Donnison from the Magistracy, and would send him a copy of the letter containing his reasons. Mr. Donnison, on being told of this, said that any one who chose to take the trouble might tell Mr. Plunkett that he was prepared to meet any charge that might be brought against him. About the same time Robert King, a prisoner holding a ticket-of-leave, informed Mr. Moore that his house at Brisbane Water had been broken open and robbed of a gun and other articles, by one Carroll (his assigned servant and one of the Crown witnesses against his master) and others. On King's evidence Carroll was apprehended and forwarded to Brisbane Water, and another assigned servant of Moore, named Parfitt, was also apprehended. In most cases the owner of the lost property (Mr. Moore) would have been examined, or heard at any rate, and such evidence as bore upon the matter and could be procured by him would have been taken. (In the charges against Mr. Moore himself and his friends, no stone was left unturned to find something that bore a relation to them, if it was the same as Tentureen steeple to the Goodwin Sands.) Captain Faunce took another method. Carroll and Parfitt, after being taken to the lock-up, declared or deposed that King and Moore had conspired * in order to injure the character of the aforesaid Carroll, and that Donnison had engaged to "pull them through." Be it as it may, Captain Faunce issued his warrant to search Mr. Moore's House bok hL4 own gun! and on this warrant (Moore being from home) was the house bkohen

Really the authorities had a fine genius for Conspiracy.

open and a search made to ascertain if Moore had stolen his own gun. After two months' delay, on what grounds is not known, the two convicts, Carroll and Parfitt, and another heretofore mentioned (Frost), were taken from Moore, and King had his ticket-of-leave cancelled. The latter's evidence had been favorable to Bean and Donnison; that of Carroll was against his master, and he (Carroll) was made a Goveknment Meaaengek. On Mr. Moore threatening legal proceedings the men were replaced by others, and at the same time on the news of the sitting of the Transportation Committee arriving in the Colony, the men were offered to be returned to him. They were returned, and then two of them taken away again. About the same time his burden of injuries was further lightened; he had rented land from government before his apprehension, but his leases had been detained in the Police office at Brisbane Water, and his stock-yards built upon the land cut down by a constable. He was now allowed to take possession of the land, and no obstruction offered to re-building the yards. he at various times endeavoured to have the robbery enquired into, but it never was done. It may be asked why Mr. Donnison, who was a Magistrate acting in that district, did not interfere. He was absent until some time after the memorable search-warrant was issued, and

on his return he was put hov du combat in the following manner:- On his entering the Court-house a person was giving an information in a case of alleged felony. It was evidently a family quarrel, and although perhaps an illegal appropriation, there seemed great doubts of the felonious intent, and at any rate it remained still to be proved. Mr. Donnison asked the man a question or two; on which Captain Faunce immediately directed the Court to be cleared, and informed Donnison that he had done so by reason of his interfering as a Magistrate that he would not allow him to act - and that he himself acted advisedly. Mr. Donnison thinking that squabbles in a Court did not tend to forward the interests of justice, and perceiving that in physical force, at least, the odds were greatly in the Captain's favour, withdrew. He recollected that he had already been committed on a charge of subornation of perjury for asking a question in that Court, and peradventure he might now have been committed for burglary on the same ground. However, wishing to know if Captain Faunce had been openly instructed from head quarters, he addressed the following letter to the Colonial Secretary, to which no an4wek was kPukned.

36 Brisbane Water, 3rd May, 1837 Sir - I have the honor to forward to you , and to request you will lay before His Excellency the Governor the following communication. On the 4th April last, I went to the Court-house , I found a person giving an information to the Bench respecting some horses alleged to have been stolen from him. I put a few questions to the witness , when Captain Faunce immediately adjourned the Court , and told me that he did so in consequence of my interfering as a Magistrate , and that he would not permit me to act in that capacity . He intimated that he took this course advisedly , but refused to assign any reasons . Although I felt satisfied that the conduct of Captain Faunce was both illegal and improper, I thought the appearance of squabbling in a Court highly detrimental to the ends of justice, and therefore I did not stand upon my right , but told Captain Faunce I should withdraw . I then directed the Clerk of the Bench to hand me the record book of the Court , which he, under the direction of Captain Faunce , refused to do, and at the same time locked the closet where it is kept. One reason for now addressing His Excellency is, that Captain Faunce intimated he acted under advice . I suppose he must have meant private advice ; and upon that he has taken upon him virtually to suspend my commission as a Magistrate . I hold my commission from His Majesty the King , through His Excellency the Governor , and no other power, I conceive , can annul or suspend it . His Excellency, having been several months absent from the seat of government , could not have given any orders on the subject ; and I am sure no ministerial officer would have the presumption to interfere with His Excellency ' s prerogative. I have the honor, &c.

HENRY DONNISON Subsequently public duty required Captain Faunce and Mr. Donnison to sit together on the bench, and the last of their joint magisterial acts was to send to an ironed gang one of the principal witnesses against the latter. About the time that Captain Faunce ventured upon the "suspension act," Mr. Plunkett it appears put into execution his threat of recommending Mr. Donnison's dismissal. No notice was, however, given to him of the intention, nor any copy of the charge against him. Whatever it was, Sir Richard did not act upon it. How was this? Was Mr. Plunkett so certain of success that he did not beforehand judge it necessary to assure himself of His Excellency's probably course; or was it determined upon before Sir Richard went to Port Phillip, and had something afterwards taken place that prevented that determination from being carried into execution? Can it be true that when Lord Glenelg wrote that luminous despatch, wherein he informed the Colony that leaving a Magistrate out of the Commission, in the manner in which Sir Richard had done, was not a dismissal, he could write another to Sir Richard highly censuring that escapade ? If he did so, we must imagine

that he felt himself under some supposed necessity of supporting the Governor, while he blamed his conduct. Of the manUnel,6 of the whole affair we will say nothing. The patience of Job would hardly have carried a man through all this without some wrathful feelings being raised, but deeply as these gentlemen had been injured, if proper explanations and apologies had been made, accompanied with an explicit acknowledgement of their innocence, on the part of the Crown officers, it is probable that the matter might have been accommodated. Nothing of the kind was ever even hinted at until after one verdict had been obtained. The parties, on consulting their legal friends, were advised to bring actions of trespass, as the only certain way in which they could obtain some compensation, and at the same time give Captain Faunce an opportunity of showing, by the production of the evidence on which he committed them, that he had acted fairly and honorably. They were well aware that if he proved he had acted even from honest error, no Jury in this Colony would have given them more than nominal damages. But damages were not their object, although none of them are overburdened with wealth. It was determined also, on the same advice, to allow the conduct of the Attorney General to pass without censure; his professional brethren being of opinion that however reprehensible it might be, it was probable that he had acted from misconception, and would take some opportunity of clearing up what certainly looked, to use his own expression, "very bad." There might be a little e6pk,it du canp6 in it also, but both Counsel and Attorneys gave the same advice, and their clients followed it. Moreover, in the trial of Bean and Donnison, he had said he was "ready to explain and defend his conduct," and it was hoped that he would avail himself of some of the many opportunities that were likely to occur of doing so, but "hope told a flattering tale." When the Attorney of the [now] plaintiffs asked Captain Faunce where he could serve him with a notice, he referred him to a private Attorney, but very shortly afterwards Mr. Fisher the Crown Solicitor took the management of the defence. At this time Sir Richard Bourke was at Port Phillip, therefore he must have determined, before he was aware of the event of the criminal trial, to defend Captain Faunce, or the Crown law officers took it upon themselves. Whichever way it was, the government defended Captain Faunce. It is understood that when a Magistrate asks the government

to defend him in an action at law incurred in the performance of his duty, the executive refers the matter to the law officers, and if they advise it, he is defended at the expense of the Crown. It may be very properly asked, who is the public officer who advised that the public time and money should be expended in defending a man who has acted as Captain Faunce has been proved to have done? Some people did say that the case was as much the Attorney General's as Captain Faunce's, but the learned gentleman himself (and he ought to know) says it was not so, and of course we are bound to believe him. The day of trial at length arrived, and it would be improper if the three gentlemen were to omit expressing their grateful sense of the conduct of their legal advisers. They do not allude to the trouble they took to make themselves masters of a very complicated case, for it was their duty to do so, and it is only justice to say that that duty was faithfully performed. Gentlemen themselves, they entered into the feelings of their clients; without regard to the usual formalities, they were at all times ready to communicate with them, at home or abroad, in office or in Court, night or day. Mr. Kerr and Mr. Foster no doubt felt some claims of friendship upon them. Mr. a'Becket, who had lately arrived, was a stranger to all parties and to the Colony, and no doubt was utterly astonished at such things occurring in a British settlement. But to all of them they feel deeply indebted for the uniform kindness and patience with which they attended to the main object they had in view - laying the matter fully before the tribunal of the public. Mr. Bean's action was the first tried, and the defence of the Attorney General may be comprised in one slang word, quite fashionable amongst the party in the Colony which he espouses, "bounce." The uninitiated are informed that it was defended with the same animosity that had actuated the proceedings from the first. The grounds were that Captain Faunce was justified by the depositions in committing the plaintiff, (the Attorney General could not say otherwise, for he had filed informations himself upon them), that he was jub.ti.Uted in ironing him, that he did not iron him, that the defendant had nothing but his commission, but the main point of defence was unceasing abuse of Donnison. He appeared to have adopted Captain Faunce's idea, that the other two being his friends was reason enough for anything that had been done. In Mr. Moore's action, the Attorney General partly abandoned the justification of the ironing, and expressed his regret that he had put Bean, who he said was the only gentleman in

Brisbane Water, upon his trial; but he never lost sight of the old object of the enmity. "This Donnison" was the Alpha and the Omega of his speech, and it would have been thought by an .Lnd i 6U en.en t pekson that he was undelt the extkaokdinaky impk a.ton that ÂŁ6 he cou,2d show that DonnDaon had acted LmpkopekQy, the o.thek .two had no cta.tm Ot compensation. In cross-examining him, he wished him to admit that he had, from corrupt motives, attempted to sekeen Moore, and in fact said so. This said Moore was certainly a most awkward fellow to screen, for he pertinaciously insisted on an investigation, but he asked for an impartial one. Mr. Plunkett at last went so far that Donnison dared him to bring a fair open accusation against him and not attempt to stab him with the "dark mendacity of hints." Mr. Plunkett sat down. From the language and manner of the Attorney General in these two actions, Mr. Donnison was induced, though quite unaccustomed to any thing of the kind, to conduct his own case. he was fully aware that according to the old adage he was likely to have a "fool for his client," but the technical difficulties had been cleared off in the two preceding actions, and he thought he could tell his own story better than any one else could do it for him. He felt it necessary to speak freely of the conduct of the Attorney General and the government, and was desirous of sparing his friend Mr. Kerr that very unpleasant duty, although quite confident that he would not have shrunk from it, and should Mt. Plunkett follow the course that he had done before, he could act as occasion required. The term finished with Mr. Moore's action. A few days after, Mr. Donnison was asked by his Attorney to compromise. He declined, unless the Attorney General would acknowledge that he had put him on his trial on a charge of felony believing him to be innocent. This, of course, was out of the question, and the cause went to trial. In examining Donnison in the actions of Bean and Moore, as well as in his speeches, the Attorney General certainly did not say to him in direct words, "are you a great scoundrel?" nor did say off, him, "he is one," but he said so by implication. He went so far that the Judge, who the first day would not allow Mr. Donnison to make any explanation, on the second

day, on his appealing to the Court, did permit it. What could occasion this pertinacious rancour on the part of Mr. Plunkett? He is a zealous and energetic advocate, but he is a gentleman, and though somewhat in the habit of exceeding the limits (extensive enough certainly) within which common decency

confines a barrister in examination or comment, yet not of proceeding to the length which he did in these cases. There must be some reason in the back ground, and perhaps we may discover it at last. In Donnison's own action, an astonishing transformation had taken place; no one could have recognized Mr. Plunkett; he did aggravate his voice so that he roared you "as gently as any sucking dove." When Mr. Donnison observed that the Attorney General of the Colony had stated that he was retained in the Commission because there was a necessity for two Magistrates in the district, he rose and in his blandest accents said, that "in his zeal for his client he sometimes said" - and here the learned gentleman halted, and to save the time of the Court, Mr. Donnison filled up the sentence for him by adding "what he ought to be ashamed of." If silence gives consent, Mr. Plunkett owned "the soft impeachment." When Mr. Donnison stated that he would prove his case by a witness whom the Attorney General had described as the only gentleman in Brisbane Water, the learned gentleman was suddenly afflicted with a touch of his old complaint, and stoutly denied having used the words. When apprised that the fact could be proved by twenty witnesses, he was pleased to drop out, "then I retract the expression." When the shameful tale was told and proved, as far as the forms of the Court would allow, it might have been expected that the Attorney General, acting as he was by order of the Government, and who had boldly stated his readiness "to explain or defend his conduct at any time," would, if explanation had been possible, have said something. Not a word did he say. The correspondence was proved, still no explanation, he confined himself to a dry and mild defence of the simple fact of ironing. A fellow in the employment of Captain Faunce being brought forward to swear that a constable told him that he himself had put on the irons without orders. The fact of bringing forward this man at such a time must not be overlooked. He was one of the original witnesses for the Crown, with the fellow whom Donnison and Faunce sent to an ironed gang, and being a liberal minded man, afterwards went to Moore and offered to puU him .thhough, which polite offer the said Moore did not entertain with becoming gratitude. On the first two actions he was not brought forward by Faunce, in fact no such defence as he was called upon to prove was contemplated, and Captain Faunce's admission to Mr. Plaistowe That the Jury did not believe him is completely negatives it.

evident from their verdict. No one could doubt for a moment that his whole testimony was a tissue of perjury. We cannot wonder at anything that Captain Faunce did, but that the Attorney General of the Colony, especially bound in this vicious community to set an example of professional integrity, should admit such a witness when acting on behalf of the Crown, no one would believe, if the proceedings did not furnish melancholy proofs that this is not an isolated fact. One circumstance occurred during this action of so extraordinary a kind as to deserve especial notice. Captain Faunce had applied to Sir Richard Bourke for payment of his damages, to which His Excellency replied that he could not accede to his request, but if Captain Faunce would apply to the Secretary of State, he would recommend the application. Mr. Donnison, thinking this would help his case, subpoenaed the Colonial Secretary, with a notice to bring letters, &c., and in consequence a clerk from the office attended with them. The Attorney General, as Counsel for Captain Faunce, objected to the production of this letter, but after a discussion it was put in as evidence, and handed by the clerk to Mr. Donnison, who was reading, it when Mr. Plunkett snatched it suddenly out of his hands, said the Governor's minute was on it, and handed it to Chief Justice Dowling, who, in spite of Mr. Donnison's expressed desire to have it returned, retained it, and after reading said it would do Mr. Donnison no good. Had the Judge and the defendant's Counsel a right to take from Mr. Donnison any evidence, written or oral, which he might think necessary to produce? They had as much right to take the living witness from the box as the letter which he brought. If it be law for one party in a Court to forcibly take the evidence from another, and then for the Judge to say openly that the said evidence will do the party no good, which declaration from a Judge must weigh with the Jury, the sooner the law is altered the better. Mr. Donnison has been advised that this is not law, and has given notice to the Judge that the matter will be enquired into. It is also his intention to try the constitutional legality of the Attorney General's whole conduct. The plaintiff's all recovered verdicts for being put into -,nom only - the law protecting a Magistrate to a great and dangerous extent in the power of committal, for if, as was aptly said in a comment on the case, a man should go before a Magistrate and swear that he saw another put the Church Steeple in his pocket and run away with it, and the Justice, in his discretion,

chooses to commit , he is held blameless - for, say the learned, a sound dibcne &On is not necessary.

once.

It may be as well to despatch the legal part of the matter at Captain Faunce made the following apology to Mr.

Moore:SUPREME COURT , MONDAY , MARCH 19 - Before Mr . Justice Burton and a Military Jury - At the opening of the Court the Attorney General called the attention of His Honor to the case of Moore v Faunce, which stood at the bottom of the list . This case the learned gentleman said it was agreed should be settled several months ago, but by some mistake, it had been allowed to remain in the paper . An agreement , he was requested to state , had been entered into , in which , in consideration of Mr. Moore discontinuing the action , Captain Faunce undertook to pay all costs due from Mr . Moore , and authorised him (the Attorney General) to say in open Court that Captain Faunce acknowledged his error, that he was satisfied that the sending the search warrant to the plaintiff's house cannot be justified ; that he regretted the inconvenience to which Mr. Moore had been subjected , and acquitted him of all blame in the transaction. +

And in consequence, further proceedings in an action for breaking open his house to search for his own gun were stayed. Captain Faunce prosecuted a Newspaper for a libel, in charging him with "mental imbecility," and with "magisterial delinquency." On the former count, the defendant obtained a verdict; on the latter, the Captain recovered ONE FARTHING.* It was in this last suit the old leaven still worked out. The leading Counsel was Mr . Roger Therry, who has certainly obtained some notoriety in the Colony. Mr. Donnison was called upon by the defendant to prove how he had been treated. The plaintiff's Counsel had an undoubted right to observe upon the evidence he gave, which said right certainly did not fall into abeyance in Mr. Therry's hands, and he far exceeded the usual license. He did not wait until he knew whether Mr. Donnison would give evidence at all, but he attacked him in the opening speech, insinuated that he was the author of the libel and other attacks upon Captain Faunce,* and designated him as a gentleman just escaped from the clutches of the Attorney General. What makes this more worthy of remark is that this matter was lugged into the case, for the count to which it referred had been abandoned by Mr. Therry, and the observations could be introduced for no reason but to attack Mr. Donnison. If "they could not hang him for the murder Mr. Donnison had publicly disclaimed the authorship of these * papers . If Mr . Therry had not been blinded by prejudice he must have seen that those written by the Capes were a covert attack on Mr. Donnison himself.

+ Apo.Aogy Faunce to Moore Pub.2.ibhed 18 Man 1838 * Faunce v Cavenagh 15116 Maach 1838

they would hang him for the grey mare." We are all aware of the affected ardour of Counsel, but no man who saw Mr. Therry can doubt that he spoke con amoke, and perhaps according to instructions. It must be evident to any one that there is something in the back-ground. It is astonishing that all the parties named here could have supposed that they were doing their bare duty in a case of We will examine the matter as it affects three ordinary felony. persons - Sir Richard Bourke, Mr. Plunkett, and Captain Faunce.

To begin with the latter, he either went to Brisbane Water unprejudiced and there received some unfavourable impressions and subsequently certain instructions, or he was instructed before he went. We will, for argument's sake, assume that Captain Faunce went to Brisbane Water unprejudiced. He himself told Mr. Donnison that the Crown Solicitor had told him that he would have to examine the charge made by Mr. W.T. Cape against Mr. Moore in 1835. An impartial man would of course have taken care to keep his mind free from influence of any sort. Captain Faunce, however, first went to Brisbane Water to sit at the Petty Sessions on 1st September, 1836. Mr. Donnison, having been informed that the Poundkeeper was to sit again, had the same objection as before to making one of the conclave. It was however ordered otherwise, for Sir Richard, probably ashamed of the affair, directed Captain Faunce, who had been appointed to succeed Mr. Warner on the 1st October following, to attend on the occasion and sit with Mr. Warner in a legitimate manner. Consequently, the worthy Poundkeeper found his magisterial occupation gone. It was determined, however, that he should be advanced, and at the recommendation of Captain Faunce, who could only

know the man through Mr. Warner, he was soon after appointed Clerk of the Bench. Too much has perhaps been said on such a subject, but it was necessary to explain why Scott should entertain towards Mr. Donnison the feelings that shew themselves in his deposition, and his relations with the several parties. There is no reason to suppose that Mr. Warner's report was favourable to Mr. Donnison, but whatever that might have been, Captain Faunce's duties, as a Magistrate, must have constantly reminded him of the old adage, that "one story is good until another is told." Mr. Donnison called upon Captain Faunce early in October, a few days after his arrival; he never returned it. Mr. Bean and Mr. Watson also called upon him; he did not return their

call. Mr. Donnison, thinking that some unfavourable impression might exist in Captain Faunce's mind, a few days after calling met him at Court and explained to him the nature of the difference with Mr. Warner, and gave him copies of his letters to the Governor and the Attorney General. A day or two after, he returned them coldly observing that he did not want to see them, or something of the kind. These circumstances are mentioned because it has been said by some of Captain Faunce's friends that he was ignorant of the previous circumstances, and moreover that Mr. Donnison and his friends behaved rudely to him, and forced him into acting as he has done. Captain Faunce told Mr. Plaistowe that Bean and Donnison had spoken very improperly of him. If they had, it was not felony. If they in the end did speak somewhat freely, it will be conceded that they had some reason for it. Mr. Therry, Captain Faunce's Counsel, spoke of his wish to cultivate the society of Bean and Donnison, and said that nothing but a strong sense of duty could have brought him into collision with them. How could Captain Faunce dare to instruct his Counsel to make such a statement? He certainly had a right to choose his own society, and if he found it more to his taste in Mr. Poundkeeper this, and Mr. Constable that, it was a matter of small importance to either of those gentlemen; they called upon him as a matter of ordinary courtesy. Mr. Plunkett insinuated that Captain Faunce, from the information he had received from Mr. Warner, was justified in viewing Donnison doubtfully. But how did Captain Faunce bohbee that in a few weeks he would come into collision with them, and that he would have to entertain a criminal charge against both of them. Whether he 6ahebaw it or not in October is immaterial, but that he Uohebaw early in November, on the day on which he summoned Mr. Bean to answer a charge of pekjuky, that there would be placed before him a charge of Ueiony in ten days against Bean and Donnison is beyond a doubt. It is now known that about 4th or 5th November, Dick Cape put the notable cow story ostensibly before Captain Faunce. Now, what would an unbiassed man have done on such an occasion? Captain Faunce could not be ignorant that Bean and Donnison were gentlemen of unblemished characters, neither of them had prospered in worldly matters, but neither of them were in circumstances to make it worth their while to steal a cow, putting every moral consideration aside. Captain Faunce ought not to have been ignorant of the characters of the accusers, he was unfit for his office if he could not bee what the fellows were at

a glance. In the Supreme Court, where it is to be supposed that he was under more restraint than at Brisbane Water, Cape's demeanor occasioned the Judge to point out to the Jury the manner in which he had given his evidence. The avowak that their object was to prevent Bean from giving evidence in favour of Moore, ought to have been decisive with him and with Mr. Plunkett also. Look at the extraordinary mode pursued; Mr. Bean alone is eummoned for pekjuky evidence is sent for to Sydney to substantiate a belony against him and Donnison, and the latter is allowed to go to Court and is there pounced upon, without the least notice on the part of Captain Faunce. Would any Magistrate, acting bona Ulde have scrupled to have asked the parties themselves for some explanation in the early part of November, under the circumstances here shown? Would he have refused to receive evidence in explanation at any time? Mr. Justice Burton , who tried two of the civil actions, said that the whole of the depositions formed a "bundke ob non6evU e," on which no Jury could find a verdict. The Chief Justice said , in an argument in banco, that the whole did not form a case for committal . Captain Faunce considered it was a case for putting the accused "in lhonh," and the Colonial Executive considered that he was entitled to its countenance and protection. Again, look at the detention of the parties; Bean was committed on the 4th of January, and no other charge was preferred against him, he was detained until the 23d. He certainly demurred to going on board in a storm of wind and rain on the 18th, but he was urgent to go on the 8th, 9th, 11th, and 13th, on which days five vessels sailed. In fact, on Sunday the 8th, Captain Faunce took two of the constables. with him in a boat and went to two or three places where he expected to find a vessel going to Sydney, and finding that the two vessels ready for sea had sailed, he followed one several miles and got his letters on board, pulling off his coat and cravat in order to assist the rowers. It is whispered that these letters went to Government House. Why was not Mr. Bean sent in one of these vessels? And be it remembered that at this time the accused could not forward letters to their Attorney by post, the Clerk and Postmaster having informed them that he had detained the mail, by ondeh o6 the Captain! They were compelled to send a messenger by one of the vessels. Why were not Mr. Moore and Mr. Donnison examined forthwith, and sent up on the 8th, 9th, 11th, or 13th? The reason is obvious,

farther ÂŁnhthucti.ons were wanted; and, in the mean time, they were raking for evidence amongst all the scum and filth of Brisbane Water. Captain Faunce did not sin in ignorance; he wrote to Mr. Manning between the 14th November and the end of December, about Bean - an extraordinary step - and Manning declared his belief that he was incapable of such an act. After committal, the worthy Captain tried his eloquence upon a lady that was on a visit in the neighbourhood; she told him that she knew Donnison only by report, but she had known Bean long and intimately, and added "I never can believe that he would steal a cow." The gallant Captain returned to the charge, and said the case was so strong against Donnison, particularly that of sly grog-selling, (which formed one of the wings of the original structure, and which, by the way, Donnison had forced him to admit was all fudge). The lady, however, declined hearing it. He is a man of gentlemanly manners, mild and cold-blooded, with great command of temper, and most That he is a weak man assuredly acted advisedly throughout. may be conceded, but he is, at the same, time exceedingly partial, and appeared to have a notion that he was merely a servant of the Executive, not a Justice of the Peace sworn to act without favour or affection - in fact a fit recipient for .ivv.tnuc tLon,s . And now for Mr. Plunkett's share in this series of cases. It is with unfeigned relunctance that the writer is compelled, in justice to himself, to bring him forward. How are we to account for his most extraordinary conduct? He could have no personal motives, for two of the gentlemen were quite unknown to him, and the third almost so; besides, no one can suspect him of doing as he has done on personal grounds - he is above it. When we see a man accounted honorable doing what all honorable men must deplore and censure, sometimes with evident reluctance and at other times spurring himself as it were into a sort of reckless audacity, what are we to think? Is it not reasonable to conclude that he has made a false step, and that false pride, the besetting sin in humanity, has urged him on until it was too late to recede; and "Every devious step thus trod, "Still led him farther from the road."

Why has Mr. Donnison been from first Mr. Plunkett's attack - the butt at which to shoot the arrows of his vituperation? lieved what he stated of Mr. Donnison, he

to last the object of he has been pleased If Mr. Plunkett behas not done his

duty to the public, if he did not be.ZLeve it, what shall we say ? Can we suppose that he received instructions ? Let us now examine Mr. Plunkett's conduct in his relations of Public Law Adviser, Grand Jury, Public Prosecutor, and Legal Defender of Captain Faunce, by order of Government. The right or the propriety of the Attorney General acting as the legal adviser of the Magistracy of the territory has been questioned. Perhaps abstract law may be in favour of those who dispute the right. Of the necessity of Magistrates occsionally taking legal advice, no one can doubt who has bestowed much attention upon that mixture of good and evil, right and wrong, sense and nonsense, called British Law. A more perfect jumble of right-minded absurdity the ingenuity of no single age could possibly have devised; it required the united virtue, vice, wisdom and folly of successive generations to form so extraordinary a mass. In England the Magistrates have ready access to advice - here, they are thrown entirely upon themselves, and if they have not the "Poor Laws," that fruitful source of contention, to annoy them, they have the Colonial laws and regulations, dutifully emulous of those of the mother country, some in active operation , some in abeyance; some entirely, some partially repealed or amended; some at variance and some in conformity with those at home. They must be men with qualifications "natural and acquired" far above the standard required by my Lord Glenelg, if they do not sometimes want assistance. Moreover, at home the Magistrates, when honestly performing their duties, feel assured of the support of the Executive, and what is of infinitely more importance, of the moral support of a moral people; here, under the late administration they (at any rate a great portion of them) felt that the Executive was against them, that it was watching with an eagle eye to discover small faults, that a host of informers and spies surrounded them "quick with the tale and ready with the lie," and above all that, a large portion of the people were against them, and that the more honestly and zealously they performed their duties the more did they feel the negative evil - the want of moral support in a moral people. Almost every magistrate who has zealously and faithfully done his duty has been attacked directly and indirectly. These observations are general, and are intended to show the necessity of there being some quarter to which the body of Magistrates could apply for advice. From the first of Captain Faunce's arrival at Brisbane Water, he commenced a correspondence with the Attorney General

that never ceased for many months. That Mr. Plunkett was ignorant of any intrigue between Captain Faunce and Government House is more than probable. Sir Richard had very crooked ways. That Mr. Plunkett did at first try to keep Faunce quiet is likely, at least Mr. Donnison's friends have told him so, and until lately, he was satisfied of the correctness of the information; indeed, Mr. Plunkett told him almost as much himself. Yet Mr. Therry, Captain Faunce's Counsel, (Faunce v. Cavanagh), has stated in open Court, in hearing of both Mr. Plunkett and Captain Faunce, "that during the whole time these proceedings were pending, the plaintiff (Captain Faunce) was in correspondence with the Attorney General on the subject, and that the evidence on which the plaintiff acted was adopted by the Attorney General as sufficient ground for putting these parties on their trial." - Sydney Gazette, Match 20, 1836. How are we to reconcile these contradictions ? Let us examine farther. It has been proved that Captain Faunce said, in the Court-house at Brisbane Water, on the 2nd of November, that he was advised by the Attorney General to admit Mr. Moore to bail in a case for which he had been committed about 18th October, provided that the case about to be investigated did not "turn out vety bad." The Attorney General subsequently, in the Supreme Court, denied having written such letter, on which Mr. Kerr observed, "Oh, Mr. Plunkett wrote to Captain Faunce, not the Attorney General to the Police Magistrate." There is, however, the greatest probability in favour of the truth of Captain Faunce's statement, which he made in open Court. There was no need of his

quoting the Attorney General's letter. Donnison had previously told him that he was liable to an action for refusing bail, and he had merely to say on consideration that he agreed with him; or as Donnison had assured him that he was acting illegally, and recommended him to seek advice from the Attorney General, he could have mentioned that he had been advised without going into matter that was "too bad." In fairness it may be supposed that Mr. Plunkett did not intend that Captain Faunce should communicate the contents of his letter before a dozen people, but even then he ought, as a lawyer, to have been aware that there was not a shadow of felony in the transaction. If we believe Captain Faunce we must disbelieve Mr. Plunket or vice vet6a. If the Attorney General was so ready to correspond with Captain Faunce, why did he not answer Mr. Donnison's letter

of 23d May, 1836, wherein he is told that the Governor had referred the matter to him, and Donnison further requests his advice for his "future guidance as a Magistrate." Moreover, by the Circular of September, 1832, the Law Officers are directed to assist the Magistrates with their advice. Is it probable that the Attorney General would have ventured to disobey the Governor's orders unadvisedly ? But the Attorney General had, if Captain Faunce is to be believed, been corresponding or advising with other parties. About the 21st or 22nd October, Captain Faunce told Richard Cape, in Court, that he had received a letter from his brother, and that he therein stated that he had seen the Attorney General, who said he need not go to Brisbane Water, as his evidence was not material; no particular case was named, but W.T. Cape did not appear on 1st and 2nd November, and in July when the depositions were handed to Donnison in the witness-box, W.T. Cape's original deposition was not there, and Warner swore that he left it with the rest. That deposition has since been found. Why was it abstracted ? It is proof its abstraction bable that the Attorney General knew nothing at first, but has he taken any notice of it since ? It is but fair to add, although directly at variance with the statement made by his friend Mr. Therry in presence of Mr. Plunkett, that several of the latter gentleman's friends have told Mr. Donnison that Captain Faunce acted in direct opposition

to his (Mr. Plunkett's) advice; and his own statement to Mr. Donnison was to the same effect. We leave the matter to be explained by the parties themselves. If those who contend that the Attorney General ought not to advise the Magistracy mean that such proceedings as have been just narrated are improper, few people will differ from them; and after all a more independent adviser would perhaps be better. We will now take leave to consider the conduct of Mr. Plunkett in his capacity of Grand Jury. The duties of this body are so well known that it is almost superfluous to speak of them: they are bound to hear the evidence for the prosecution, and upon that evidence produced before them viva voce they determine whether or not they will send the accused before a Jury. In case of an English Grand Jury seeing that some Magistrate has mistaken (or been instructed to mistake) a dispute for a theft, and instead of sending both parties to find

a civil remedy has chosen to send one to a criminal court, they interpose, and save the unfortunate man from a painful ordeal; they never trouble themselves with consequences to the committing Magistrate; they are a power whom the constitution has placed between the Crown and the people: an old-fashioned power, perhaps a Saxon relic, and there must be a great improvement in our code of criminal procedure, and a still greater improvement in our colonial code of morality, before this power can be safely dispensed with. Would any Grand Jury have found bills in the four cases in which informations were filed against Moore, Bean, and Donnison ? Would any Grand Jury have pledged itself to put an individual on trial provided a certain Magistrate committed him ? Would it mend the matter if the members of that Grand Jury had declared that the said Magistrate was no better than an idiot, or (if it were possible) recommended that the case should go to the Court of Requests ? It may be said that this is jumbling what a man does in two capacities into one act; but as Mr. Therry has very sagely observed, "what a man does, he does." We must have a word more on the subject of Mr. Plunkett's letter of 29th December. He thinks it "necessary that further steps should be taken to clear up the DOUBTS (observe doubts) that were raised as to the OWNERSHIP and IDENTITY of the beast alleged to have been killed by you" (i.e. Mr. Donnison). Why the duty of a Grand Jury was to ascertain if there was a ÂŁetoniou6 appropriation, not the ownen6hLp and identity; yet on this evidence, upon this unsupported testimony (on which the Judge said the case rested), the Attorney General had doubts. Again - "Although it was impossible to be satisfied by the perusal of the proceedings that the charge was unfounded, still while there was a DOUBT upon my mind, I wished to take

every means to remove that DOUBT before I would decide on putting a gentleman holding the Commission of the Peace to the painful ordeal of a trial for a charge of such a nature. It appears that in this 6tkonge6& of the cases with all the evidence before him (for he never received a tittle of evidence after) Mr. Plunkett was full of DOUBTS, which he wished to take every means in his power to remove. What means had On or before the he taken ? He had abandoned the ca6e. 17th December, at least twelve days before he wrote the above, he had positively abandoned this 6tkonge6-t of the series of cases. Why did he resume it ? Hear his own words - "However as Captain Faunce has sent me further information, and you

51 demand that the charge against you shall be dismissed as openly as it was made," &c., he sends back the papers, &c.* The Attorney General, who, as Grand Jury, had abandoned the case on its own merits, resumed it on receiving further information, and finally left it to the ministerial discretion of Captain Faunce to dismiss openly or commit for trial; and in the latter alternative will feel himself bound to send Donnison to trial, and he did 3o. Not a word about sending Bean, who had not then been asked to abandon-Donnison, to trial. The degrading manner in which the latter was indicted, has been noticed, as a laborer; it may be observed that had such a thing occurred in England, every Magistrate in the county would have considered it an insult, and the body would have noticed it. How did the Magistrates of Australia act! they took it calmly, calmly, "Ay, as an ostler, that for the poorest piece Will bear the knave by the volume."

Mr. Donnison himself felt that Mr. Plunkett was more degraded by it than he was. There are lawyers who say that on this indictment Mr. Bean could not have been found guilty. How came such a mistake to be made? it could not be for the purpose of trying the chance of getting a verdict against Donnison, and keeping Bean out of the way as a witness.

After Meadows had given his testimony, Mr. Kerr submitted to the Court that it was a mere question of disputed property: The Court determined to hear the prosecutor' s case - on this lawyers differ also: some say that when a case of disputed property is clearly made out, it is no longer a matter of criminal jurisdiction. The evidence for the prosecution being ended, the Judge said, in substance, that the accused relied on the weakness of the case for the prosecution, and that all rested on the unsupported testimony of Meadows; when he had finished his charge, the Counsel for the defence suggested that there was nothing against Bean. The writer is not learned in the law, and that may account for his being to this day ignorant whether

* The Attorney General determined immediately after his return from Illawarra not to proceed with this case or either of Moores. What could occasion the change of determination? He says Captain Scott certainly was some days in Faunce had sent further information. were apprehended , and some people Sydney, and on his return the parties But assuredly that could say that Scott was at Government House . have nothing to do with the matter.

Bean was acquitted by the Judge, or Jury, or both. He only complains of it abstractedly, because if he had required his testimony he could not have obtained it. He felt, however, the consciousness of innocence, and he confidently relied upon the integrity and common sense of his Jury. If Sir Richard had had the management of the case, Mr. Donnison would not have been surprised at the manner in which it was conducted. Sir Richard certainly had crooked ways, but then there were naughty people in the Colony, who were suspected of being inimical to some of his favourite views. If then Sir Richard had wished to let out Bean, the reason is clear - he was merely a stepping stone to get at Donnison; for people who make up cases of felony must take things as they find them; but there was no wish to hurt him, far from it. Sir Richard and Mr. Bean's father were old friends, brother officers in the guards, and if he had met his old friend on his return, and said, I have hung your son, but really I could not hang another fellow whom it was necessary to get rid of without hanging him, it is by no means clear that his old friend would have coincided with Sir Richard in his enlarged notions of government. No matter; drop we Sir Richard for the present, and let us return to Mr. Plunkett. Suppose there was a shadow of a pima ÂŁacLe case in that already passed, what was there in the next? Moore was charged with stealing a heifer the property of W.T. Cape, who, when he charged Moore and Donnison's servant, would not have allowed Donnison himself to escape had he suspected him, nor is it likely that Warner would either. In fact, when Mr. W.T. Cape found that the matter was likely to go before another Bench, he was very desirous to back out; and after Moore was bailed, he positively asked him (the man whom a few hours before he had charged with felony) to go and dine with him, which polite invitation, strange as it may appear, was not accepted. This and other facts of similar import were fully detailed to the Government by Donnison in a letter dated 31st December, 1835, and which the Governor referred to the Attorney General, and to which Donnison alluded in his letter to the Attorney General on that of 23rd May following. On or about 17th December, 1836, Mr. Plunkett determined not to proceed in this case against Moore, and Donnison had never been thought of. On the 5th January, 1837, Moore's man, Frost, swears that the animal claimed by Cape is the property of Moore, and on that solo evidence Captain Faunce committed him - that is

conceivable - the public prosecutor filed an information in this case, and that is almost inconceivable. Had Mr. Plunkett filed informations in all the charges there might have been the appearance of consistency at any rate, but he separated the wheat from the chaff, and although the next charge was that curious compound of cattle-stealing, conspiracy, perjury, and subornation, against Moore and Donnison, yet Mr. Plunkett shewed he could make distinctions, and we may now hope that "accusing a lady wrongfully" is not "flat burglary as ever was committed." He

did, in fact, lop off the perjury, the subornation, and the conspiracy, and informations were not filed on these charges, they were dissevered from the rest, "a perilous gash, a very limb lopt off," and the tremendous charge of cattle stealing stood out in bold relief. A few days after his acquittal Mr. Donnison met a high Civil Officer on the staircase of the Court-house, and the following is a part of the conversation:- High Civil Officer The fact is, my dear Sir, that the Attorney General could not act otherwise than he has done, he really eowtd not. Just before the commencement of the Session he received a mass of papers that high (spreading his hands about two feet apart). Candour compels us to say that the high Civil Officer was in error, the depositions, &c., certainly did not exceed one ream of paper. To proceed, however:- Mr. Donnison - Nothing you have said has satisfied me that the Attorney General had any right to put me on my trial; but you are well aware they wanted to crush me. High Civil Officer - No, no, you are quite wrong, quite wrong I assure you; the Attorney General could not get through the mass of papers, and he was obliged to send you to trial; but, none of your friends or Bean's will think at all differently of you.I can assure you. "God defend me from my friends," says the Spaniard; this high Civil Officer is the Attorney General's friend. He continued - But you know you wrote a very impudent letter, a very Mr. Donnison - I am not aware of impudent letter indeed. anything impudent in the letter. Pray have you seen the letter which occasioned it - I mean that where Mr.Plunkett says Meadows may go to the Court of Requests. High Civil Office - Yes, I have seen that, but still yours was very impudent in your situation. Mr. Donnison - I differ from you. There is an old saying, "speak of the devil and lo he appears" - both Plunkett and Fisher passed during this conversation.

And now for Mr. Plunkett's conduct as defender of Captain

Faunce. Some people are of opinion that the functions of the Attorney General comprise the duties of a highly responsible officer, standing between the Crown and the people. When he acts for the government he does not act for the individual to whom the Sovereign has chosen to delegate the executive power, but for the people for whose benefit the Sovereign holds his power. A prosecution by the Crown, as it is termed, does not mean any thing for the benefit of the individual wearer of that Crown, but of the whole people - the public. It may then, very properly, be a question with the Attorney General when he receives an order, "is he to obey that order if he sees that it is diametrically opposed to the fundamental principles of the constitution?" How often have we heard an Attorney General at home, in an ex o6i3.cio prosecution, declare that he acted spontaneously, without any direction from Ministers, (perhaps nobody believed him, but that is neither here nor there); and it may be assumed from that fact, that the Attorney General of England prosecutes not merely by order, but on his own responsibility, and of course defends also. When, therefore, Mr. Plunkett received an order from Sir Richard Bourke to defend Captain Faunce, we will assume that he considered himself a responsible officer, standing between the Crown and the people, and would act accordingly. How Captain Faunce has acted has been proved in the criminal trials, four civil actions, and his own apology - which apology was negotiated by the Attorney General as his private friend. It would have been very easy for the unfortunate parties who were subjected to Captain Faunce's drilling, to deceive their legal advisers, had they been foolish enough; but Captain Faunce could not entirely deceive Mr. Plunkett - his defence was the depositions, ("the bundle of nonsense,") and those Mr. Plunkett had before him. Now, what was that defence? In the first place a few dirty technicalities; then the strength of the ph.ma bac.Loe case against Bean; that he was not ironed by Faunce's order; again, that it was proper that he should have been so ironed; and every interlude was filled up with abuse of Donnison. Mr. Plunkett evidently never contemplated that the Court would construe Peel's Acts so favourably for the defendant as it did. No one will suppose that Sir Robert Peel ever contemplated such a defendant when that clause was inserted. Be that as it may, what was there in the conduct of Captain Faunce, as a well meaning and impartial Magistrate, that entitled him to the support of government? Does Mr. Plunkett think he did his duty to his country, as a

responsible public officer standing between the Crown and the people? Let us charitably hope that error in the first instance, and false pride afterwards, were the causes of what his best friends must term his most extraordinary course of proceeding. He says he has a monitor within that is his guide; has it never admonished him? Can he lay his head quietly on his pillow and say, "in all these things I have done my duty towards God, and my duty towards my neighbour?" There is one circumstance in these proceedings that has never been satisfactorily explained; great blame lies somewhere. It has been sedulously averred that Mr. Bean would give Captain Faunce no proof of his ownership of the cow. It is perfectly true, that on the 14th November - when he appeared to answer the charge of perjury, alleged to have been committed on the 2nd November, 1836 - he was not prepared to prove that he had sold a cow to Donnison in 1834, or that he had bought it from Manning; but about the 18th or 20th, having made a search, he found the muster of cattle wherein the cow claimed by Meadows was taken into Manning's stock, amongst the rest of Richards's cattle, and Manning' s memorandum of sale to himself; and he immediately rode over to the Court-house and showed these documents to Captain Faunce, and we must not suppose that the Captain neglected, when he sent "further information" to the Attorney General, to add that which was certainly material. Mr. Watson was absent from the district when the charge was made on the 14th November, and therefore could not be brought forward then to prove that if Meadows had made good his claim, the cow would have been delivered to him, and that he, as Bean's agent, gave her up to Donnison; but on the 4th January he was there, and Captain Faunce would not hear him. On the same 4th January, the two documents before named were given to Captain Faunce, who promised to append them to the depositions. On the trial, he was asked for a bill of sale, and denied having had one, but afterwards admitted he had. A few days afterwards, he gave those two papers to Bean in Bean suspected that they had never been appended the street. to the depositions. Mr. Fisher said that the Attorney General had seen them, and that on the trial (when the depositions were on the table) these two papers were in hc6 pocket! (Our law officers in New South Wales, really seem to be of opinion that it is the duty of the public prosecutor, not to lay the whole truth before the Jury, and leave the matter to their unbiassed judgement, but to make out a case and to endeavour to obtain a

verdict, as in a civil action.) He said also that Richard Cape had, by his permission, taken away sundry papers that were attached to the depositions. This Cape left the Colony soon after the acquittal of Bean and Donnison. The Records of Brisbane Water Police Office were sent up to the Crown Solicitor in June, 1837, and although repeated applications have been made to Mr. Fisher to return them to the office, they have not, to this day, been returned. The law requires that the Bench of Magistrates should have them for their guidance, and these are kept back in defiance of the law. Perhaps there may be something in those records that would disgrace, if not criminate, some of the persons who have been mentioned. "Body o'me, but this is a queer story."

There is one thing that must strike every thinking man - the utter inadequacy of the English law to mete out justice to the parties.

In the first place it appears that Meadows had an option of proceeding civilly for the value of the cow, which he claimed, and in the event of his succeeding, Mr. Bean must have paid twenty shillings, or perhaps, forty shillings and the costs; which, in the Court of Requests, as suggested by Mr. Plunkett, would have been about five shillings more; (we take leave to say, that the plan of suspending the criminal case, however original, is not good law) or he might proceed as he was instigated to do, criminally, against Bean and Donnison. Can it be right that such an option should be in such hands ? Some power should interpose. Again, after the criminal trials were ended and abandoned (or before if they had chosen), the accused had the option of proceeding against the committing magistrate, civilly or criminally, for corruption, malice, illegality, oppression, or for all that is comprised in that convenient word trespass; but supposing, for argument's sake only, that a public prosecutor could be guilty of all or any of these offences, why should there not be the same remedy against him as against a Magistrate ? His corruption, malice, &c., are of infinitely more consequence than a Magistrate's, especially, when "the temple of justice is polluted with politics." Supposing both these and all other similar functionaries liable, it is suggested (and the suggestion is made with all becoming deference) that there should be one made of proceeding, and that the Jury should determine what punishment an offender should receive for the public injury, and what com-

57 pensation should be given to the injured individual. The injury is twofold, so should be the punishment. This will not be found in "the books," but who looks in an English law book for anything but precedents. The principle is worthy of the consideration of those legislators who have turned their attention to jurisprudence. Before proceeding to Sir Richard, a few remarks may be necessary. All prudent men will say, that whatever Mr. Donnison had to complain of, it would have been advisable for him to have adjusted the matter, and to have prevented a direct collision with the Government, in which he had everything to lose and nothing to gain. He is as sensible of it as any man can be, and would have submitted to anything short of loss of character to have avoided that collision. It must, however, be borne in mind that, he had been once directly, and in numberless ways indirectly accused of having connived at Mr. Moore having committed a theft; at any rate it was so very broadly insinuated that it amounted to an accusation in the opinion of any man of nice feeling; he had lost all but his honor, and that he wished to leave unsullied to his children. What Mr. Warner threw into the "lion's mouth," of course, Mr. Donnison only knows by what he himself said to other people, and that certainly was not favorable. The letters which Mr. Donnison wrote to the Colonial Secretary in December, 1835, and March, 1836, are not inserted, being very long, but the following are extracts:"I was of opinion that in such a case the evidence should not only be positive but credible, and could best be sifted on the spot where their characters are known. I consider that a preliminary inquiry is instituted lest any man should be deprived of his liberty (even temporarily) without good cause, and that the Magistrate is to exercise his discretion on the credibility of the testimony, otherwise the prosecutor might as well take the prisoner to the Supreme Court at once." I think I am right, if I am wrong I shall be happy to be corrected." "When I first came to the district in 1832 it was in a very disorderly state, owing to the illicit sale of liquor. I set myself to work to root out the evil and take credit for having partly succeeded." "From all these circumstances It is evident that 'there is something rotten in the state of Denmark,' and I have the honor to request that His Excellency will cause an investigation to be instituted. I am not aware of the regular mode of doing such things, but, I do not stand upon points, let it be made by honorable and candid men and I care not Mr. Warner and I entertain a mutual dislike, and statements for forms. from such a source are always coloured by the feelings of the parties, but 'facts are stubborn things,' and by facts let us be judged."

This request for investigation Mr. Plunkett says was an

endeavour to stifle the case, and that it had the effect of doing so. Could Mr. Plunkett when he made this assertion expect that any rational man would believe him ? Was it his duty thus to attempt to pervert the truth ? Further, before Mr. Donnison waited upon His Excellency on 22nd May, he called upon a relation of his who is generally understood to have been in his confidence, and had some conversation with him; he did not call for the purpose of explaining matters, as he knew that the gentleman was fully conversant with the whole affair, but for the purpose of stating what could better be said to him than to the Governor himself, that he felt he could not in honor allow such a stigma to remain on his character, or sanction by his acquiescence such proceedings as were going on at Brisbane Water, and that either

Mr. Warner or he must quit the Bench. At the suggestion of this gentleman he left out a part of the letter which he thought might be misconstrued. The Governor had passed through the district of Brisbane Water a few weeks before * but owing to Mr. Warner, who was the only person acquainted with his intention, not giving notice, he had passed through when it was supposed that he had just arrived. Consequently, on the following morning, several gentlemen who were going to wait upon him, found him gone. Mr. Donnison, at the request, and in the name of those gentlemen, wrote to Mr. Thomson, who accompanied Sir Richard, explaining the circumstance, and apologising for the apparent want of respect on their part. To this letter no anzwen was a.e turned. Mr. Donnison was annoyed in every possible way. It is needless to explain to the people of this Colony how a Police Magistrate, uncontrolled by others on the Bench, and supported by the Governor, can annoy an individual - in fact, he almost stops his operations. A fellow came and cut down Mr. Donnison's wood and split it into shingles within hearing of his house; Mr. Donnison seized them, but afterwards on the man pleading ignorance, poverty, &c., he paid him for his labour, as much from prudential motives as any other; he had twice had his timber burnt in the woods. This fellow, afterwards, when other charges were manufacturing, made one to Captain Faunce of Mr. Donnison seizing his shingles in the name of Government, and appropriating them to his own use - it is dished up in Scott's deposition. It may be as well to finish this subject. After Bean's verdict, Mr. Donnison charged this man (named Freeman) with the offence ' Ste:

Vis it oU Gov. BOURKE to the BKd sbane Wateh Dis-tnLct 6ee J . WARNER Let ter oU 8 July 1836 "Cop.Leh ob Letters .ewt" 4/5526 Page 104.

before Captain Faunce; he was very reluctant to entertain it, but at last agreed to do so; Mr. Donnison attended three

times at the office, but the attendance of this convict could not be obtained - he applied two or three times to the Government without effect, and was at last informed that the man had been recommended for a "conditional pardon," and nothing could be done here. Mr. Donnison made a complaint against a ticket - of-leave man who refused to complete a contract ; he was met by a complaint of "ill usage ," to which precedence was given.

The "ill usage " was, that when , about two years before, the man, who had been assigned to Mr . Donnison , had asked for his ticket , Mr. Donnison refused to sign his application, but gave him a pass to the Bench . The reasons which Donnison assigned were satisfactory even to Mr . Warner, and the application was deferred : subsequently it was granted, and the man remained working for Mr. Donnison until he was apprehended, when he left his work incomplete and owing a balance. Mr. Scott had the papers all ready, and Captain Faunce was proceeding to try the case, when Mr. Donnison objected to re-open a matter settled by another Magistrate so long before, observing that, if he had done wrong in refusing the ticket, the Bench was equally wrong in adopting his reasons, adding, I will not put in any answer to that complaint, the object is clear, the man has overdrawn his work, and wants to evade the payment. The complainant said Donnison was no gentleman to wish to make a poor man pay such a debt, that he owed nothing to Donnison, who had used him very ill, and continued for some time in this strain unchecked by the Court. At last Mr. Donnison interrupted him by saying, "Can you tell me, Captain Faunce, why this is the only Court in the Colony where I am invariably insulted; I never enter this Court but I meet with something of this kind." Captain Faunce made

no answer, but dropped his head, and Mr. Donnison continued: "If this fellow had said a tenth part of what he has said here, in Sydney, Colonel Wilson would have given him twenty-five lashes." Captain Faunce - "Perhaps not." Mr. Donnison - "You are right, for he would not have dared to have done it there. But this is not to be evidence, and if it is continued, although I do not stand very well at Head Quarters, I will put this case before the Governor in a way that he must look at it." This put an end to that part of the matter; a conversation took place between the Court, Mr. Donnison, and the complainant, who admitted that he owed the money, and ultimately

agreed to finish the incomplete contract. The charge of "ill usage" evaporated like those of sly grog selling, &c., which were tacked to the felony. This is one more proof of the manner in which "these unhappy men" were ruled "with a firm hand" under the "soothing system." Would the people of England have believed that any transported felon would thus have dared to address any Magistrate ? Would they have believed he would have done so under the sanction of another Magistrate specially appointed to perform the ministerial and police duties of a district ? In another case, some years ago, Mr. Donnison rented a farm, and with it the government men, which, in that day, were always transferred when applied for by people of character. This was neglected at the proper time, and of course Mr. Donnison was blameable. Three or four years afterwards one of the men ran away, and after about six months absence was captured and punished; he feigned sickness, ran away again, was captured, and stated he belonged to another person. Mr. Donnison thinking the man had no right to assign himself appealed to the Governor, who, as usual, paid no attention to the application, and soon after, in an extraordinary manner, the man obtained a ticket-of-leave. Mr. Donnison then waited upon the Superintendent and showed him that the man had been thrice gazetted as a runaway, and he was told that he should be apprehended and the case examined. Nothing was done. Some months afterwards on applying again he was told that the man was free. On his pointing out that he had been six months a bushranger, and therefore by the law was still a convict, he was told that nothing could be done. The loss of the man's services to Mr. Donnison is a small private evil, but the bad example to the rest of his men and the convict population generally is a public matter. It is, however, only one case amongst many; indeed, the numberless mortifications and injuries that he constantly met with, would be scarcely credible. He would have done anything for peace, with the exception of tacitly admitting that he was a scoundrel. And this, the responsible officer, standing between the Crown and the people, terms a squabbling that was creditable to neither party. We now (as friend Therry says) "come to the great hero of all these proceedings," Sir Richard Bourke, "of whom I will say nothing unkind, but looking at these cases there is one thing apparent," if a substitute for Vidocq is wanted, he is the man.

Sir Richard is a talented man without doubt, though not one of those "too fond of the right to pursue the expedient," it is unfortunate that he did not learn the art of government in a better school; it was his fortune, or misfortune, to show considerable talents for secret service work, and in secret service he has been extensively employed, and has conducted himself no doubt to the satisfaction of his employers. It is not every man that can touch pitch and be undefiled:- every spy is not a Harvey Birch. Sir Richard's genius led him this way, and if the matter had ended by his being eminently qualified for the espionage of an army or the head of a police establishment, why no great harm would have been done. But he must keep his hand in, as Theodore Hook said, "fond of work, he, fond of work, he" must be dabbling, and this unhappy Colony has felt the ill effects of his dabbling propensities, which have more than neutralised his good qualities, for he was not without them. He is highly endowed, says friend Terry; properly speaking he is a sad example of misapplied talents, an extraordinary compound of good and evil:- he is very quick, very cunning, very industrious, with great tact, very unscrupulous, very hasty, very obstinate, very mean, very courteous, very proud, very vindictive, very little minded, he is greatly given to intermeddling, he could let nobody in office do his duty quietly and steadily: like Bottom, the weaver, he was not satisfied with playing Pyramus, but he must also play the Lion and Moonshine:- perhaps he meant the latter as an illustration of his own government, and if so he was right. Withal, he is very open to flattery, and exceedingly fond of popularity; no doubt he would prefer the approbation of intellectual men, but he will have "the most sweet voices" of the many - if he cannot obtain better food he will prey on garbage. Such a man was likely to do good or evil according to circumstances; there were the raw materials of both great virtues and great vices in him. It may not be out of place to offer a few remarks on Sir Richard's government, as that will throw some light on the transactions that have been narrated. On his arrival he appears to have adopted two fallacies, that everything here was wrong, and that the opposite of wrong is right. His obstinacy in adhering to those fallacies, and his vindictiveness towards those who opposed, or differed from him, kept him and the Colony in a state of turmoil from the end of the first year of his administration to its termination.

There is no doubt that had Sir Richard been correct in the positions which he laid down on his arrival, that he might have done much good; or if he had had magnanimity enough to have turned round, when he found his error, which he soon discovered; or if the people could by possibility have been made morally and politically blind for a month, so that they could not have seen him turn round; that would have done as well. His main object was to turn round unseen; if that could not be done, to crush all who said that he had turned. This may appear a light way of treating a very serious affair, but few people who do think, and have witnessed his doings here,

will fail to arrive at the same conclusion. His original fallacy that every thing was wrong, may be divided into sundry subfallacies. One of them was, that the convicts were treated with cruelty and injustice. Another, that to cure this evil it was necessary to raise up an antagonist evil, and therefore the A third, that the Magis"soothing system" was introduced. trates were generally instrumental in upholding this system of cruelty and injustice. Notwithstanding that no proofs of this ill treatment of the convicts generally has ever been shown, it was decided that they had been ill treated: but a mere statement was not enough, there must be something overt. The affair was managed in Sir Richard's peculiar way, a mixture of good and evil. Under pretext of consolidating the laws for their government (an excellent thing of itself, and worthy of imitation) he passed the "Summary Punishment Bill," which, notwithstanding the censure which has been bestowed upon it, has, with all its faults, considerable merits. Consolidation alone is a great benefit. Men had better live under a tolerable system well understood, than under the best of all possible systems which few people can comprehend. Sir Richard found, however, in a very short time, that the bill would not do; instructions were given to certain Magistrates to follow up its provisions with a vigour beyond the law, and at this time few Benches hesitate to stretch it a little. A few emendations would make it answer all practical purposes. It was, however, the "Circular" which accompanied the "Bill," coupled with the impression that Sir Richard was the prisoner's 6/Lend, that did the mischief; in its consequences it almost set the Hunter into a state of insurrection. Strong measures prevented it. It must be admitted that the pop-gun of the "Unpaid Magistrate" added its mite to the sum of mischief.

Let it be conceded for argument's sake that a number of the landholders treated their assigned servants cruelly, and that some of the Magistrates had so far abused their power as to support them in so doing. The remedy was obvious, no "Circular" was required. The men should have been withdrawn from the assignees who were proved (not suspected) to have treated them improperly, whether by cruelty or neglect on one hand, or by improper familiarity or absence of proper coercion and superintendence on the other. The unjust Magistrates should have been 4tkuck out of the Commission and punished, and those wanting the proper qualifications, "natural and acquired," should have been quietly recommended to resign. If none were so dealt with it is a fair inference that none were found. The Authorities in sanctioning and encouraging the liars and perjurers who were brought up to substantiate "the Brisbane Water cases," did more harm to the morality of the district than they will do good in their lives to come. Now, can Sir Richard Bourke say that he acted the part of a faithful servant of his Sovereign in the course he followed towards the Magistracy. Suppose that amongst the one hundred and twenty whom he found on his arrival, he believed some were unfit for the office, more unfit even than some of his own appointments, was he to stigmatise the whole body because he believed some of its members to be unsound. But the supposition refutes itself; had Sir Richard believed himself, he could not have continued so unjust a body in office. On the publication of this "Circular," the Magistrates should have forthwith met and sent a deputation to the Governor to remonstrate on the subject. The writer was, at that time, from pecuniary embarrassments and ill health, depressed both in mind and body, or he would, had he stood alone, have requested some explanation from Sir Richard, and failing, as he probably would, to meet with any, would have tried elsewhere. Unfortunately what is everybody's business is nobody's. What, then, shall we say to the efforts unceasingly made to impress on the minds of the convicts (men too susceptible of such impressions) the belief that they had hitherto been unjustly dealt with; the fact - the fact should have been shewn, as clear as the sun at noon-day, or nothing said about it. They were dangerous instruments to tamper with; it was shameful to make use of them as a political engine. To a country like England, with its Colonies extending far

and wide, the conduct of its Colonial Governments is a matter of primary importance, more especially those of the distant settlements, where the difficulty of obtaining redress for Colonial grievances almost amounts to impunity on the part of the Governors. The Home Government may in some cases be to blame, but they feel themselves bound to a certain extent to support Governors, and if wily Governors sometimes cajole the Secretary of State, he may not be anxious to make it known, and from false pride may persevere in error. In such a case the Colonists can look for support only to the British public, who have some controlling influence upon the executive, which the enlightened spirit of the age is fast increasing. We may indulge a hope that the same enlightened spirit will correct a great fallacy amongst rulers, that when a Government has once avowed a determination it must be maintained right or wrong - claiming in fact an exemption from the ordinary errors of human nature. Sir Richard cherished this fallacy to its utmost extent; when he had once adopted a line of conduct, it must be pursued for weal or woe; everything must give way to man "drest in a little brief authority," and every man was a personal enemy who questioned his impeccability. Fortunately he sometimes did "deviate into right," and the same principle made him adhere to it, or his government would have been most disastrous. The mere establishment of this "-.nbubokdi.nate dibci.ptine" (as it has been aptly termed) was quite bad enough in its annoyance and danger - 'twas "very bad;" but the diminution in the value of convict labour was immense - full twenty per cent. The men would not work as they had done hitherto, and, at their best, they never hurt themselves by working. They said Sir Richard was their friend. The evil, however, was much more extensive than simply making the settlers pay twenty per cent. more for the same labour. If the British Minister could force a bill through Parliament, whereby he increased the wages of labour to a certain extent, the effect, supposing it did not stop our trade and manufactures, would be the taking a certain consideration from the employers of labour, and through them from the consumers, and giving the same to the labourers - simply, taking from Jack and giving to Jill. Here is was essentially different, the employers (and consumers) did not give mope consideration for the bame work - they gave the bame consideration for Zebb labour; and the deficient labour was whotty lost to the community. As indi-

viduals, all suffered alike, the community was the loser, and at this day it is feeling the loss. It was a pure unmitigated evil. Whatever may be said to the contrary, convict labor, ah Qaboh, is of infinite value to the Colony. The train of immorality that accompanied it, under the late system, is fearful, but remediable; not by concentrating that immorality in one great mass of vice, lest the contagion of evil example should by any means be avoided, but by a judicious distribution of it, under proper coercion and superintendence, assisted by the controlling influence of a moral and emigrant population. Sir Richard found (or fancied he found) it was necessary to establish his system of "reports," which produced more mischief than his circular. It may be necessary for the Governor to know what is going on, but it cannot be necessary that he should spy into the domestic privacy of every man. It is understood that he stumbled upon some judicious and honorable men, who gave him only the requisite information; but a great number of his tools were utterly incapable of discrimination, and really did him more harm than good, as witness this narrative. Sir Richard, by these means, brought himself into a state of hostility with nearly all the respectable people of the Colony: not an active open hostility, but a passive one - they opposed the vL6 LneAti.a2 to his doings. There is no reason to suppose that he wished to be on a hostile footing with them, he is too sensible a man; and probably he would have been glad to have changed the face of things, but he had to contend against false pride, inveterate obstinacy, and uncompromising hostility in himself. Finding that bullying would not do, he tried a little policy, and published another Circular, when, under pretext of explaining Peel's Acts, a half movement towards an adjustment It was not generally understood that there was was apparent. no honorable man who had the confidence of both sides to mediate, in fact, he had such a set about him, that most honorable men who could do so shrunk from the contamination. It may be asked what reason Sir Richard had to wish ill to any of the three gentlemen against whom, to borrow a term from the newspapers, ex-officios for felony had been issued. There was a plain reason for attacking Bingle, a gentleman who was dismissed from the Magistracy for sitting in judgement on the pet Convict, Watt, and afterwards prosecuted for a

felony, under circumstances similar to what are here narrated. He was decidedly hostile to him, and had complained to the Home Government; and if his character should be blasted, provided the prosecution failed, a great object was gained. But with Donnison he had never come in contact politically in any shape. As for Bean and Moore, it is evident that they were mere stepping stones to get at the other. They were prosecuted for the same reason as they were put in irons. They were committed with Donnison, Not above three

months before Bean was charged, Sir Richard (who had given his brother a civil appointment) expressed to him personally the strongest desire to serve him, and when, on Warner's resignation, a memorial from the inhabitants of Brisbane Water, numerously signed, soliciting his appointment to the office of Police Magistrate of that district, was presented to him, he expressed great regret that it had been already reserved for Captain Faunce. Of Moore Sir Richard knew nothing; the first thing that brought Moore into collison with him was the appointment of the Poundkeeper, Scott, to set as an Assessor with the Magistrates at Petty Sessions. On this occasion he addressed a letter to His Excellency, believing that he had been imposed upon, and in this occurred the expression that such an appointment was an insult to every gentleman in the district. Whoever induced the Governor to act so as to call for this expression has much to answer for. It has been said that Donnison was the author of that letter; he takes this opportunity of positively denying the fact. So far from that being the case, he was not aware of its having been written until after it was despatched: he had nothing to do with it in any shape. The first time he met Mr. Warner after being apprised of the Poundkeeper's appointment, he asked him if he knew why it had been made. Mr. Warner said he supposed it must be some mistake amongst the clerks. He afterwards admitted to Mr. Bean that it was done in consequence of his own representations. Sir Richard then never came into political contact with Donnison, who in fact was quite out of the world. He was asked to sign the Hunter's River petition and declined; he never troubled himself with the leverage of cats - he did not sign the petitions to the King and Parliament - he took no part in the ferment about the Irish system - he never knew of the Watt affair, or the chairmanship, until both were over - he lived quite secluded, and might have lived so

still, had he not been dragged into the arena. When there, he admits that he shewed fight, as who would not ? But although he is not conscious of having done anything that merited the displeasure of Sir Richard, it does not follow that he should avoid it. Many an innocent man was denounced at the lion's mouth in olden times. Mr. Donnison does not by any means intend to waive his right as a free subject to take a share in any political proceedings (and if he had been the most active political opponent of the Government, Sir Richard's conduct is equally unjustifiable with regard to him), he merely asserts what is notorious, that he did not do so. What other motive could Sir Richard have, besides what has been stated, for attacking Mr. Donnison? - it is difficult to make any one living out of the Colony comprehend how very low the late Administration stooped. Bingle's case was in preparation at head quarters, Donnison's would make a capital pendant to it; and if the two Magistrates o{ the o.td cheaton, could be sacrificed, a color would be given to the calumnious insinuations that had been so incessantly put forth against their body. It is not necessary that we should be acquainted with all the reasons why this should be done, but we may look at a few facts in corroboration. Captain Faunce slipped out that he acted in regard to Mr. Donnison accokd.ing .to hi6 -i.n6-tnucti.on6; this has never been attempted to be contradicted or explained. The sudden resumption of the proceedings about the time that the case against Bingle was being got up. It is supposable that about this time the Attorney-General received an order to go on, and we may hope, if such was the case, that Mr. Plunkett

did not intend to act corruptly, but considered it was his duty to obey the order; and we must lament that he has so inconceivably mistaken the nature of his duty. Again; Sir Richard's statement that Donnison was one of the "party" - what party ? he was connected with none, not even the "Scotch faction," although he pleads guilty to the fact of being partial to both Scotland and Scotchmen. The mode in which Captain Faunce was defended. His last escapade, where he virtually suspended Mr. Donnison, and to the representations upon which the Governor never took the slightest notice. The continuance of Faunce as Police Magistrate at Brisbane Water, in spite of so many verdicts, and the strong expression

of public opinion. His removal at last, after another civil action had been commenced, and after the Court was about to be moved for two criminal informations, and then his appointment to another Police Magistracy.

The detention of Scott as Clerk of the Bench, after a deposition the most infamous that ever was made, reflecting in terms as false as approbrious on one of the Magistrates of that Bench. The public will scarcely believe that this Scott is still Clerk at Brisbane Water. Screening the perjured witnesses, and rewarding some, probably in order to improve the morality of the prison population. Above all, Sir Richard's recommendation (or promise of recommendation) to the Secretary of State, that the damages incurred by Captain Faunce should be paid by Government. Now, on what ground could this recommendation be made? Not to recapitulate his doings, what single redeeming circumstance was there about them to authorise the Governor (acting for the general interest of the community) to recommend that these damages should be paid out of the public purse? This was one - the man had acted accohdLng to ÂŁi'e.:huetiows! In 1832, Mr. Donnison, on applying for convict servants, was informed that he could not have any, neither would he be allowed to exchange men with his friends, as was the practise of the day. He appealed to Sir Richard Bourke by letter, and never could obtain any answer, except that the letter was under consideration, or something to that effect. In 1834 he received a letter from the late Mr. Hely, informing him that there was a second order to the same effect he was placed under a double bar. This communication reached him when the Aboriginals of the district were in a state of insurrection, just when he had returned with a party of the military from the bush, and at a time when half of his men were acting as guides and special constables with them. In the irritation of the moment he wrote to Mr. Hely, that if the bar were not forthwith taken off, he would submit the matter to the Home Government, and forthwith two men were assigned to him, which are the only men that have been assigned to him since April, 1832. The supply of labor, has been inadequate to the demand, but the unscrupulous supporters of Sir Richard could get convicts by dozens. Sir Richard Bourke contrived, by dexterously playing one part of the people against the other to obtain a considerable degree of popularity with a certain part of the community. On his arrival, a little wittangemot was pleased to tell him that

there was much disunion amongst us, which was unfortunately too true. He promised to use his endeavours to promote concord; - has he done it? How has he left us? What did he do to promote harmony? Why, the King's representative virtually declared himself the Governor of half Her Majesty's subjects. He has flattered the prejudices and feelings of many of them, regardless of the objects for which he was sent here, and they have voted him a statue in return. His system was stated to be the greatest happiness of the greatest number, alas! "Some watch-word to the fight Must vindicate the wrong and warp the right."

Who would have thought of applying such a maxim to the Government of a penal Colony, with two-fifths of its subjects in actual bondage at the time. Would the liberals of England, whom some of our community affect to emulate; would the countrymen of Washington, whom others affect to admire would they raise a statue to the memory of a man , who has exercised , as far as his power would allow, the despotism of the worst of the Stuarts, who has acted in short as Sir Richard Bourke is here described to have done; for what impartial man can now doubt that he was a participator, if not the contriver, of the doings which have been related. Any community that could commit so egregious an error, as for any party purposes to support and countenances such a man, must have something rotten in its moral and social composition. The intended victims have been supposed to have been attached to a party inimical to him; even were this true, as it is not, admit it in its fullest extent, it forms no palliation for the intended moral assassination - better use the stiletto. To a stranger it would be inexplicable why Sir Richard Bourke, when apprised of the state of Brisbane Water, should have paid no apparent attention to so important a matter. The fact is, Sir Richard's Government was intended to be a sort of Australian Millenium; his friends were loud in praises of "the system," and any one unacquainted with the real state of things would have supposed that crime was comparatively unknown, under his "mild, bland, and paternal" rule; perhaps he deceived himself in attempting to deceive others, and this may account for the inveterate hostility which he entertained towards all who lifted the thin veil of cajolery and hypocrisy which he threw over his doings. Mr. Donnison, on his own part, lifted this veil unwittingly; in mere common honesty he communicated to the Government, soon after his

arrival in the district, the fact, that cattle stealing, and other illegal proceedings were going on, and that for want of means he was unable to stop them. He was thanked for his exertions and requested to continue them (that is, do nothing) but no additional force was granted, except one constable, about twelve months after. He was not then aware that he ought to have winked at crime, and lauded the Government. In consequence of unequivocal symptoms of disturbance amongst the black natives, he warned the Government, but without effect; and it was only on his at last stating, in strong terms, that the consequences would be most serious, if no steps were taken to prevent mischief, that a party of twenty-five soldiers were sent, who were delayed till the disturbances had proceeded so far that they could not be quelled without the lives of several being ultimately sacrificed. The business was done quite in accordance with "the system." A letter was written to Mr. Donnison, informing him that his letter had been received, and a military party despatched; but he found that the officer in command was ordered to report himself to Mr. Warner (who lived near fifty miles off), and if he did not find him, to act alone, In a matter which concerned the lives and property of so many, Mr. Donnison did not permit his own feelings to influence him, but acted with the military as if no slight had been put upon him.

A P P E N D I X

Memon.andum on .the Depositions, and Cok4eapondenee with the A.ttonney Genenat. The depositions cannot be given in a complete state, but probably there will be enough for the purpose. Mr. Donnison, about a week after his action with Captain Faunce, wrote to the Attorney General, asking for copies, and stating that it was not with reference to any charge against him that he made the application. Mr. Plunkett's reply was as follows:"Attorney General's Office , October 26, 1837. "Sir, - I have the honor to acknowledge the receipt of your note, dated the 24th instant, requesting to know "If I had any objections to your being furnished with copies of the various depositions taken in the charges preferred against you; and also requesting an early answer that, in the event of your application not being complied with, you might be prepared to move the Court. "In reply, I beg leave to inform you that I cannot comply with your request , as my compliance, in this instance , would make a precedent that might lead to great practical inconvenience; for it would require many additional clerks in my office if copies of depositions were thus to be given in cases that are entirely [at] an end for upwards of six months past. I have, however, the less hesitation in refusing your application, because it is a matter of notoriety, and appeared in evidence on the trial of Donnison v. Faunce, that copies of the depositions were furnished to you by order of Captain Faunce at the time of committal.

(Signed )

"I have the honor, &c., "JOHN H. PLUNKETT, "Attorney General."

72 By a mistake of his own, Mr. Donnison lost the opportunity of moving the Court that term; and then wrote the following letter to Mr. Plunkett:"Sydney, November 18, 1837. "Sir, - I now address you lest, from my silence, it might be supposed that I admitted the correctness of the statements made to me in your letter of the 26th October, in answer to my two notes of that date. I beg again most distinctly to deny that any depositions, besides those of Cape , Meadows , and Scott, were received by me or my friends; and I am not aware that there is any evidence recorded to that effect. You are yourself aware that about twenty-three, or more, depositions were made in the seven charges preferred against me. I should not have been so foolish as to ask for what I had in my possession. "As to the precedent which you are apprehensive of establishing, I hope sincerely, for the sake of justice and the characters of all parties concerned in its administration, that my case will be the last of the kind that will appear on the records of the Court. "In conclusion , I have to observe that your refusal releases me from a pledge somewhat hastily given ; and that I now consider myself at liberty to adopt any course that I may think proper. "I have the honor, &c.,

"H. DONNISON."

In the March term, a few days after the trial of Faunce v. Cavenagh, the Court was moved for copies of the depositions, and the motion refused - the Chief Justice stating that the verdicts of the jury established the innocence of the parties. It was, however, their object to show not that they were innocent only, but the groundless nature of the "bundle of nonsense" on which they were put on their trial. The Attorney General said that he did not understand the meaning of this flourish perhaps he will now be enabled to comprehend it.

Memo4andum ob the Sate ob Ca ttt eâ&#x20AC;˘ Memorandum of sale shown to Captain Faunce about the 20th November, 1836, and given to him to attach to the depositions, 4th January, 1837:The cattle at Tuggerah Beach, which Mr. Manning has consented to let Mr. Bean have for the E25 paid by him to Mr. Richards, and as full settlement for his services are - ten cows, one bull, nine steers, six yearlings, and seven calves - thirty-three head; and a mare and filly, for which Mr. Bean can forward a receipt after branding.

( Signed )

J.E. MANNING.

Depo,.iti.olw ob Geotge Meadow. George Meadows , seaman , belonging to the Tamar steamer , being duly sworn , deposeth .to wit. and saith - I lost al cow about two years and a half ago , at Tuggerah Beach , while I was living at Cockle Creek . She was a poley

New South Wateh,,

cow, about seven years old, red sided , blind with one eye, and had

I found her a short time after I had lost her a bit out of one ear. He sent to me to know if I would sell in Mr. Donnison 's stock-yard. her; I told him I would not, that I would kill her myself, as she was a I took two men with me for the purpose of killing rambling thing. her; Mr. Donnison would not allow me, and said she was in dispute between me and Mr. Bean - meaning the cow was not mine . Mr. Bean was there, and said he thought she was Mr. Richards' property, and that if I would find any person to prove that she was my property I might Of the two men I took , one is now dead , and the other is have her. James Hogan , residing at Andrew Rook's, in this district.* One of Mr. Donnison' s men told me that the cow had been killed by Mr. Donnison 's orders; and I went to Mr. Donnison and asked him about her; I said "you ought not to have killed her, when you knew she was in dispute between me and Mr. Bean ;" and Mr. Donnison said "I bought her from Mr. Bean, and you may look to him about it." James Hogan was by when Mr. Bean said I might have the cow if I could prove her to be mine, but I did not take him for that purpose. I told Mr. Bean that I could find plenty of proof, and he asked me if a man named William Smith knew her, when I said "yes," and he said "if he says so you may have her." I did not take Smith to Mr. Bean. This cow I bought in Sydney from Thomas Watkins , who is since dead. I She was about ten brought her from Sydney in Mr. Bean 's sloop. months old. I asked Mr. Bean to allow her and her mother to run at Tuggerah Beach with the cattle, and he said I might so long as the cattle She ran for some time with Mr. Bean 's cattle, and his stopped there. dairyman took charge of her with the rest. More than two years after I allowed this cow to run with Mr. Bean 's cattle, I drove her away from Tuggerah Beach, and placed her among a few other cattle near Colcorone, and she did not return to the charge of Mr. Bean; and I do not know how he became possessed of her. I did not authorise Mr. Bean to sell her, nor did I dispose of her to any body. She became very wild after losing her eye, and I could not keep her with the rest of my cattle, and she would not stop any where but at Tuggerah Beach. Before she lost her eye she was so tame that she would lick a person's hand. When she had her second calf it was killed, and she would not go into the bail, for she was mad after the calf, and a man knocked her eye out accidentally with a stroke. I never branded any cattle of my own, and Mr. Richards' cattle and mine ran together. This cow was very wild at the time she was killed, and I could not drive her myself; she was stupid wild in consequence of having lost her eye, and would run into the bush along the road whilst being driven, and Mr. Donnison said she was playing the deuce with his cattle, by leading them away. I sold my farm and left this district in consequence of the ill will of my neighbours, of whom Mr. Donnison is one. The constables were often at my place, but I did not know they were sent by Mr. Donnison's orders. It is about eight years since I bought the cow. (Signed) Water, at Brisbane Sworn before me , J(( this 14th day of November , 1836

( Signed )

GEO. MEADOWS.

A.T. FAUNCE, J.P.

Pot ice Mag.L6-tn.ate.

He stated that both these men knew the cow to be his - but it is not put down.

George Meadows being re-called on his former oath, states - I had no intention of bringing this charge forward at present, but I was summoned as a witness to prove the possession of the cow that was in dispute some time ago, but it is the same cow. I applied to a clerk of Mr. Rowe, the Attorney, about two years ago, for advice on this subject, and he said if I could prove it I could transport the parties, but that it would cost me between forty and sixty pounds for witnesses and loss of time attending the case; I did not authorise any body to institute these Mr. Richard Cape called me into the Court and told me proceedings. I was wanted, he told me to bring forward the charge about the cow. GEO. MEADOWS.

(Signed) Sworn before me, at Brisbane Water, this 19th day of November , 1836.

( Signed )

A.T. FAUNCE, S.P.

Police Magi b.taa-te.

Geo. Meadows, re-sworn, further states - What I mean by the cow being in dispute is, that when Mr. Bean would not let me have the cow till I proved that she was mine, I laid an information at the Police Office, Brisbane Water, and the matter was not settled at the time she was killed; I attended at the Police Office four times, to see if Mr. Bean had attended to his summons which had been issued against him, and on the fourth time, on my finding that Mr. Bean did not attend, I applied for a warrant to Mr. Warner, who told me he could not grant one, as the business must be settled in Sydney, as he could not follow it any further here. I have been at Tuggerah Beach with Mr. Bean about three or four times, when the cow has been on the run, and then there was no dispute about her; I am certain the cow I saw in the stockyard of Mr. Donnison is the same cow that Mr. Bean allowed to run at Tuggerah Beach, and he could not mistake her; when I saw the cow in Mr. Donnison's stockyard she had on the brand dM and IM the brand of Mr. Manning; I never put a brand upon her; Mr. Bean would not give her up when I applied for her, and sold her after I told him she was mine ; the time that Mr. Bean mentioned McGrath, he was only seven or eight miles off, but I did not send for him, having business to go after; I never took any proof to Mr . Bean ; I did not see why the cow should not be allowed to run out to feed as usual; I always supposed that Mr. Bean had the management of Mr. Manning's property at Tuggerah Beach; or I do not know whether Mr. Bean branded that cow for Mr. Manning or for himself. When the cow was first brought to the district she was landed at Walter's farm, on the Erina Creek, and was driven to Mr. Bean's farm adjoining, and delivered there to a man named William Smith, who was constable, now a carpenter, Kent-street, Sydney; I do not know who received her at Tuggerah Beach; I asked Smith to allow her to be sent there with the first cattle that might be sent; at the time that I demanded the Cow from Mr. Bean I did not know that a man named Lannaghan was at Tuggerah Beach, and have not known it since; I suppose Lannaghan ought to known the cow, as he had her in his herd when he was stockman to Mr. Bean ; the first time I applied to Mr. Bean at Tuggerah Beach, I slept at the hut of a man named Gill, at the farm there; I spoke to

Mr. Bean there that night; I cannot recollect that I saw Mr. Donnison there; I did not know that Lannaghan was a dairyman, or that there was a dairy; I drank some milk in my tea which was brought by Gill, the quantity was about a quart; Lannaghan and I were always friendly, he has been to my house more than once; I have been to his house at Tuggerah Beach; I knew he was employed by Mr. Bean in taking care of cattle; I do not know that Lannaghan was employed by Mr. Manning under Mr. Bean , from two to four years ago ; I cannot recollect how long it was after I claimed the cow till I saw her at Mr. Donnison's; but it is about between two and three months; when I saw the cow at Mr. Donnison's I did not take her away, although I knew her to be mine ; I was in want of meat at the time,

( Signed )

GEO. MEADOWS.

Sworn before me, at Brisbane Water, this 15th day of November, 1836.

( Signed )

A.T. FAUNCE, J.P.

Po.Uce Mag.i_a-tna-te. Depo&LtLon4 of Richan.d Cape. Mr. Richard Cape, of Wybong, Brisbane Water, New South Ulate4) being duly sworn, deposeth and saith:- In the to wit. )} month of November, 1832, I was employed by Mr. Manning to look after some cattle of his at Lake Macquarie; and received, at various drafts, the cattle from Mr. Bean , who before had charge of them. The first draft was in the before-mentioned month, and was driven into the stockyard at Tuggerah Beach , and was branded in the yard with the brands I.M. or J.M. both the brands of Mr. Manning. Among that draft I received a yellow sided cow, some called it a light red, white on the back, star on the forehead, a strawberry face; she was a poley cow and had one of its eyes out; she was delivered over to me as Mr. Manning's property. In the month of December following it was pointed out to me by John Lannaghan, Thomas Stacey, John Mason, and Thomas Warden, as not belonging to Mr. Manning but the property of These men had been stockmen for many years, and George Meadows. knew the cow. Lannaghan said he knew it belonged to Meadows, and told me to mention it to Mr. Bean. I did so in about a week after; and Mr. Bean said he questioned how Meadows could claim it, and he did not value the word of Lannaghan or Stacey. He said also that Meadows was a man of bad character; and that he believed he had robbed Mr. Richards, and that these men assisted him. This cow strayed from my station, at Lake Macquarie, to Mr. Bean's , at Tuggerah Beach; and who took her then back from me and gave me a receipt, which has since been taken out of my house; it was in a quarter tea-chest, with nearly the whole of the correspondence that I had held respecting all cattle I had purchased in the district. I was told by Mr. Bean that if the cow belonged to Edwards that he should have her; I saw c M Grath soon after this at Budguroy, Mr. Henderson's station; this cow was then running there, and I asked if he knew her; he said he was not positive, but that he thought it was a cow belonging to Mr. Richards; I said that the whole of the stockmen in Mr. Manning's employ pointed

her out to me as the property of George Meadows; he said he did not want to have any thing to do with the cattle; he said he was not sure whose she was, and he said he would ask Mr. Manning ; he said he did not know she was Mr . Manning 's; she was then branded I. M., a new brand, and appeared to be straying on the road; this was previous to my receiving the receipt for her; Lannaghan was present when they were branding the cattle, and assisted; he did not tell me she was Meadows' property; she was branded with the others and the same brand. They were brought from Captain Grey's station, and the cow was delivered with the lot, and was brought apparently by accident; about thirty cattle were branded that day. At the time of the branding there was no remark from any body there, in my presence, relative to this cow being Meadows' property; Lannaghan , Mason , Stacey, and Worden were assisting on that occasion in branding ; Mr. Bean told me he thought the cow belonged to Mr. Richards, and he would ask Miles M c Grath about it, and that if he said it was Meadows' he might have her. I have heard that Lannaghan and Miles McGrath were both called c master' s men ; M Grath will not be afraid to speak the truth if he knows that Lannaghan and others swear to the cow being Meadows. I once attended this Court as a witness , and my evidence was refused as well as others; I was on behalf of the prisoner, and the magistrate told me himself he would take no evidence on the part of the prisoner; I instituted these proceedings, as Mr. Bean accused me of cattle stealing; and I brought him up for perjury; and I brought the witnesses in this investigation on my own behalf, as Meadows accused me of being implicated with Mr. Bean in stealing his cow, called "Blindbury;" we had high words on the occasion; when Mr. Bean said in this Court that I was a cattle stealer, I considered that this was the case that he intended to bring against me, because McGrath and King were present in Sydney when Meadows accused me , and I thought that Mr. Bean would bring This conversation with Meadows octhem as witnesses again me. curred in September, or October, 1835. Soon after I* had driven cattle to Sydney, I was informed by William Turner that Mr. Bean has called me a cattle stealer in making a deposition in the case of King v. That was my motive for instituting these proceedings; I had Moore. no authority from Meadows to do so; he is the prosecutor in the case; I said that if Mr. Bean was committed for perjury, his evidence would have no weight in the Supreme Court; I consider that there is a company established, and their names are - Willoughby Bean, Henry Donnison , and John Moore, for no other purpose than to claim the whole of the unbranded stock in the district of Brisbane Water. My grounds for my stating this is that:- In all my charges against Mr. Moore, Mr. Bean and Mr. Donnison were frequently in attendance, and took an active part in pulling Mr. Moore through his scrapes.

R. CAPE

(Signed ) Sworn before me, at Brisbane Water, this 14th day of November, 1836.

( Signed )

A.T. FAUNCE, J.P.

Pot ice MagLo-tn.a te.

*Written "they," but corrected in copy to "I."

Mr. Richard Cape, being re-sworn, deposeth New South WcvtZS) )} and saith:- On the 21st of November, a man, to wit. named George Roberts, gave me a letter and a receipt, which was written by Mr. Bean ; they are part of the papers I had stated had been taken from me; the paper dated 24th February, 1834, is a receipt from Mr. Bean to me for the cow, called Blindbury, is the one now produced; it was sent me in consequence of a conversation between Lannaghan and Mr. Bean , which was related to me by both parties; Mr. Bean said that the cow had been branded for Mr. Manning in mistake as one from Mr. Grey's; Mr. Bean also said he thought it did not come He said he was from Mr. Grey's but belonged to Mr. Richards. informed by McGrath that it was Mr. Richards' cow, and he would hold Mr. it as such, for he would not believe a word that Lannaghan spoke. Bean also wrote me that in a letter dated 23rd March, 1834. Mr. Bean mentions in that letter that she had been claimed as Meadows ' property, and that some one must have told him so; Lannaghan told me that he had been advising Mr. Bean to scratch the caw off the list, because she was Meadows ' property; soon after this I got the receipt; Lannaghan told me frequently that if I kept the cow I should get into a scrape; she strayed to Tuggerah Beach, and was not regularly given over to Mr. Bean; and it was owing to this conversation that he took it into his charge again . Lanaghan said also , that McGrath knew the cow to be Meadows ' as well as he did himself, and that he did not admit of it for fear of offending Mr. Bean . Lannaghan said further, in allusion to Mr. Bean and myself, that the pair of us would be in for it at some future time if he dared to own it as Mr. Manning 's property; he gave the history of the cow from the time of his coming into the district; I never saw the butcher Hilliard till I saw him in this Court - that is, to speak to him or know him; I was present when this cow was branded about November 1832, and assisted in driving her away with the assistance of Mr. Manning ' s man, supposing she then belonged to Mr. Manning; and about three months after, Lannaghan and others told me she belonged to Meadows; I stated that the receipt for the cow was given me by Mr. Bean , intimating that she was Meadows '; I say so now , although he has not entered Meadows' name into the receipt; Meadows' name is mentioned in the letter that accompanied the receipt; I think so because the letter and receipt differ so widely; the letter is dated 23rd March, 1834, and the receipt was enclosed in the letter, and is dated 24th February, 1834. I do not know, of my own knowledge, that the cow I have been speaking of is the cow that Mr. Donnison killed; I did not see her killed; I do not know whether Meadows ever applied. to Mr. Manning about this cow; Mr. Manning resided in Sydney, and Meadows was frequently in the habit of going to Sydney; Meadows asked Lannaghan and myself to collect all his cattle; and, by our not doing so, he said we were a set of shabby fellows; the cattle, he said, were running at Tuggerah Beach , Manmurah, Barrary, and Woolstonecraft's Point; Meadows mentioned that wherever Mr. Manning had cattle that he had some with them, and that he would pay Mr. Manning's stockmen for collecting them; he claimed four he had seen at Barrary; he also said he had seen one at Woolstoncraft's Point - my station; and he said I ought to have seven instead of one, and that he ought to

have a score altogether. Mr. Bean this day, and on the day this case was first examined, said he had not given me a receipt for the cow called Blindbury.

( Signed )

R. CAPE.

Sworn before me, at Brisbane Water, this 3rd day of January, 1837.

( Signed )

A.T. FAUNCE, J.P.

PoUce MagLs.xate. Deposition o6 John Edye Manning, taqu.iae - Bean v. Faunce. I have known Mr. Bean about six years; in 1832 I entered into an agreement with him to manage my property at Brisbane Water; I gave him instructions to purchase cattle, and he bought several herds for me; I do not recollect authorising him to sell; he did supply several stations, Fatterini's and Donnison's; I recollect his purchasing from Gray, Cavenagh, Richards, and several others; I find among my papers several musters of cattle made by Mr. Bean ; this is one, dated April, 1834. I directed Bean to buy and sell cattle; I received a letter respecting the church at Brisbane Water, in which this subject was incidentally mentioned; I wrote a letter in answer; this memorandum is signed by me. Cross-examined - This memorandum was given about the time Mr. Bean left my establishment; I do not know what ten cows Bean was to take; I never saw them; he was to take the cows at the Tuggerah Beach station; I saw one set of depositions that came up against Bean ; I had them in my possession one night to look over; as well as I can recollect Mr. Bean was charged with selling a cow that was claimed by a person whose name I do not recollect; I could not give the Attorney General any satisfactory information on the subject; I did not find these musters until after the trial; I communicated with Captain Faunce, but I cannot say whether before or after the committal; I do not recollect that the Attorney General told me his motive in handing me the depositions; I think I was actuated by curiosity and a strong interest in the fate of Bean, who I consider to be as honorable a man as any in the Colony; by these returns I find that the cow in question has been mentioned several times; I find this expression in a return April, 1834, "there is a cow claimed by George Meadows, and if he establishes his claim, Mr. Richards, from whom she was bought, replaces her by another." I do not recollect Mr. Bean telling me he had been summoned for stealing this cow; I had some communication with Mr. Warner on the subject of this charge; I do not think Mr. Bean would steal cows for me; the cow in question I take to be one of the ten handed to Mr. Bean; she must have been, there were only ten cows running about the house at Tuggerah; I afterwards re-purchased some of the cows from Bean; I do not know whether the cow in question was one of them. Mr. Bean was my general agent at Brisbane Water, and required no particular authority to sell a cow to Mr. Donnison; after Mr. Bean left me I sold

the estate, but kept some cattle under the charge of Mr. R. Cape. Re-examined - This is an authority in writing to Bean to sell cattle to Donnison; I recollect giving it to Bean.

Mn. Cnown SotLc%ton FLhne,L - Vonwi6on v. Faunce This memorandum, signed by Mr. Manning, and this cattle muster, were forwarded to Sydney by Captain Faunce, with the other papers connected with the depositions; they were in my hands at the time of trial. Cross examined - This memorandum was not produced at the trial; I heard Captain Faunce asked if he knew where the bill of sale was; he said he did not know; at that time this memorandum was in my hand, but I do not consider it a bill of sale; I did not consider a memorandum of cattle given for a sum of money a bill of sale; I spoke as a lawyer; had I understood that these papers were wanted I should have handed them in; I think I shewed them to the prisoner's counsel, and asked if they were what was wanted; when I drew the information this document was before me; most undoubtedly Captain Faunce did not understand that this was a bill of sale, NOTE - Whilst Mr. Bean was giving his evidence in this case , and under cross-examination by Mr. Plunkett, on the subject of the Crown Solicitor telling him that the Attorney General had abandoned the case, and that he might go home and make himself perfectly easy, Mr. Fisher said, half aloud, "I shall contradict Mr. Bean when I am examined," and turning towards Mr. Donnison, he repeated the words. The latter observed that it would then be a question of Mr. Fisher said, "I think my veracity will go veracity for the Jury. farthest in this Court;" on which Mr. Donnison said he had some doubts on that head - or, rather, he had no doubt at all. On Mr. Fisher's examination he did not say a word in contradiction, nor did the Counsel for the defendant ask him a question on the subject. Mr. Fisher's cross-examination should be read with care. Is it the practice for the Crown law-officers to take from the depositions papers that tend to show the innocence of accused parties and put them in their pockets?

If so - it is a custom, More honored in the breach than the observance."

Aba.txact ob Evidence ob King, Hogan, and HiU-iatid Robert King, a prisoner of the Crown, holding a ticket-of-leave, formerly assigned to Bean and Richards, knew Meadows to possess cattle; knew the cow Blindbury with one eye to be his; he knew these things because Meadows had told him so; when Meadows had charge of Richards' establishment he built a vessel on Richards' ground, and used his timber, and employed his men and teams for the purpose; he also split shingles on his master's ground, and used his teams for that On Bean going to Brisbane Water to enquire into these purpose. things, the shingles were carried off and concealed. He and the other men denied these facts when questioned by Bean at the time; but now,

80 when on his oath, he would not deny them. Meadows had the reputation of being a sly-grog seller; had drunk rum himself in his house, but it was always given to him ; he had seen people drink it in Meadows' house but never saw them pay ; he knew Donnison had many enemies from endeavouring to put down the sly- grog selling; he believed both him and Bean to be incapable of stealing; he did not consider Meadows to be an honest man. [N.B.

The Attorney General apologised for the conduct of Meadows in building the vessel and splitting shingles on his master's property, and using his teams and men , saying it might be done in his overtime . Does he seriously mean to hold out in this Colony, that an overseer may rob his employer in his over-time? or did he, in his "zeal for his client," say a little too much?]

King has had his ticket taken from him; Hogan knew Blindbury to be the property of Meadows; Meadows told him so. John Hilliard proved (what was never denied) that Donnison killed the cow; and that she was branded J something - a very old brand. [N.B.

It is really singular that it should have escaped the Attorney General, that the other witnesses swore the cow had a new brand JM; Hilliard says, an old brand J something. It was, in fact, JR, the brand of Richards. Not that the identity of the animal was the subject of his investigation]

Milee MCG+cath. His deposition was very long and the greater part of it bore the same relation to a case of felony as to one of high treason; what did apply, did not answer the purpose, and he was not examined by the Crown. He stated that he knew the cow in question; that he believed she had belonged to Richards; that he had seen her with a new brand, JM; that Meadows had never applied to him. [Immediately after he had given his testimony, Richard Cape charged him with perjury; but the charge was not entertained.]

Statement o4 M. Donw%3on to the Count, Januaay, 1837 As the charge against me has now taken the shape of magisterial delinquency, and it is averred that the statement made by me of there being a bias against me in consequence of endeavouring to do my duty is false, I feel bound to observe that, in consequence of certain misdoings in the district, on or about the 31st of December, 1835, I addressed His Excellency the Governor, through the Colonial Secretary, detailing many of them , and requesting an investigation , accompanied by a letter from Mr. William Cape , senior , addressed to this Bench, and other documents . Receiving no answer , about the 1st of March following, I again addressed His Excellency the Governor to the same purport. No notice having being taken of either; about the end of May, I again addressed His Excellency through the Private Secretary, and at the same time had an interview with him; previous to which Mr. Holden apprised me that Mr. Moore's case was disposed of, and the men were to be released , supposing my business with the Governor was confined to that case.

His Excellency declined interfering. I then felt bound to tender to His Excellency the resignation of my commission, which he did not accept, but stated that he would reconsider the matter, not having before viewed it in the light in which I put; His Excellency having also informed me that he had sent my letter of 31st December, 1835, to the Attorney General, and having referred me to that officer, I wrote to him about the same time, and, referring generally to the subject, I requested his advice for my guidance as a magistrate, and that he would acquaint me if he saw any thing wrong in my conduct. Evidently Mr. Warner or I must have been wrong.- A few months afterwards Mr. Warner resigned, but no investigation took place, and no answer was returned to any of my letters. None of the alleged felonies , which I charged the late Police Magistrate with refusing to examine, were looked into by him, nor would he let me; and the guilty parties, either emboldened by impunity, or as a desperate resource, have charged me. Those to which I particularly allude as not examined into, are Bramble, Cape, and Rust for killing Lannaghan's cow, and settling it; Bramble and Rust for having a. slaughtered beast in possession in bags ; Bramble for having , without apparent means , obtained twenty or thirty head of cattle. To prevent these being fairly gone into, it is necessary to put me out of the way; hence the present proceedings with the view that if the charge of felony should break down, my character as a magistrate may be destroyed. I beg also to refer to a letter written by Mr. William Cape, senior, to William Fletcher, his overseer, a prisoner of the Crown, urging him, "by hook or crook," to get in for him one thousand head of cattle. Moses Carroll first told me of this letter which Fletcher put into my hands; I showed it to the Crown Solicitor, intending to deposit it with the Attorney General, but that officer being out of town, the Crown Solicitor advised me to leave it with my own attorney to be given to the Attorney General; and I put it into the hands of Mr. Pogson, whom I will direct to give it to the Attorney General. Couple this letter with old Cape's letter of November, 1835 (but delivered about 20th December), and Mr. T. Cape's deposition of about 26th December, 1835; also with Richard Cape's deposition of November last, and the 3rd instant, and T.A. Scott's deposition of the 4th, and all the other circumstances, and I submit that there is the strongest ground of suspicion of conspiracy; the objects of which are , besides what I have before stated , to upset a bargain between R. Cape and Moore; or, failing that, to pick up Moore's stray cattle. I am strengthened in this opinion by the fact that R. Cape applied to Fletcher to get back the "hook and crook" letter, insinuating that his brother would otherwise prevent his obtaining his conditional pardon. I told Fletcher's wife, in the presence of several witnesses , that the letter had gone to the Attorney General. Other proceedings that were never thought of are now being instituted. At present I merely state that the charges of writing part of Moore's defence - of seizing shingles in the name of the government - and of selling spirits illegally, are false. The other alleged acts of magisterial delinquency do not perhaps require particular notice. I have to add that a further verbal charge, preferred by Mr. Scott, that Mr. Henderson had committed a felony, and that I, as a magistrate, connived at it for interested purposes, is false. Under ordinary circumstances I am aware that any suggestion to the Attorney

82 General would be highly impertinent but under the peculiar circumstances of this case (or series of cases rather), considering the prevalence of perjury in this Colony, and that all these cases are so closely linked, that they can only be properly viewed in juxta-position, I crave that he, standing in the place of a Grand Jury, will put me in such a situation, if practicable, that the whole may be seen together. I beg to refer to the documents quoted.

(Signed )

HENRY DONNISON

Statement oU Pnoceecli.ng6 on the Change o6 Suboitnati.on o6 PeAjuky. Mr. Moore was called in and Captain Faunce asked him what he had to say to the charge preferred against him, if he had any statement to make, whereupon, Mr. Moore handed to Captain Faunce a written paper. I objected to this as not being the usual practice on such occasions, and not being the proper time to call on him for any statement, and pointed out to Captain Faunce that the case for the prosecution should first be gone into, before he could be called on for any statement, and advised Mr. Moore to withdraw the paper, which he did, on which Captain Faunce handed it back to him. I then addressed Captain Faunce and observed, that if this was the case of which he had spoken to me yesterday, and in which he said Mr. Donnison was implicated, that Mr. Donnison should be brought on the floor of the Court, which was done; and Mr. Donnison being present, Captain Faunce called in Joseph Frost, and tendered him an oath to answer all such questions as were put to him touching the matter before the Court; to which oath I objected, and stated to him that under that oath the witness could not be compelled to disclose the whole truth, which was necessary in all cases of the kind. Captain Faunce turned to Mr. Plunkett's book and showed me that he administered the proper oath, but on my telling him that the witness might under it reserve a part of his knowledge, he administered the oath the way I required; the case then proceeded; the charge being first, at my desire, reduced to writing by Captain Faunce, and being suborning Maltby Smith to commit perjury on the 4th November, in inducing him to swear that Joseph Frost and William Bramble had killed a cow the property of W.T. Cape Esq. Joseph Frost. - I am a prisoner of the crown, an assigned servant to Mr. Moore; I have been a prisoner here (alluding to the lock-up), since 28th December 1835; that is the time Gorman took me; I do not know what for; I have since been acquainted it was for cattle stealing; when Gorman came for me he never told me what it was for; I have been admitted as a witness in a case of cattle stealing against Mr. Moore and Mr. Donnison, about a heifer, a bull, and two bullocks; cannot say who they were stolen from; the heifer was branded on Wednesday morning before Christmas 1835; I have not been examined in the case about the two bullocks yet;* a charge of killing a cow has been preferred by Maltby Smith against me and Bramble; he swore, I believe, that we killed it; we did not kill it; and Smith took a false oath; he would take some more if you would allow him; he was confined in the lock-up with me; Mr. Moore was confined in the lock-up with me and Smith; Mr. Moore and Smith slept on the berth, and I slept on the floor; I observed nothing in particular; I speak of only one night; we were only all three

* Donnison and Moore were committed on this charge two days before.

there together; after that Mr. Moore was in there by himself; Smith and I were in the middle room of the lock-up house, where the fire was, and Mr. Moore remained by himself; Mr. Moore told me to bring in his tea; I used to get his meals ready; one evening as I was stooping down to put some tea on the ground, Mr. Moore (who was sitting on the berth,) stooped over and whispered to me,"Mind you, and do not try to pull Bramble out of that brand - that brand will settle him"; I made answer and said, if I was asked anything about the brand, I should speak the truth; I walked out; no more was spoken after that; I heard him speak to Smith after that; Smith was in the place where the fire-place was, and Mr. Moore was speaking to him; Moore was at one side of the partition, and Smith at the other; Smith was speaking to Mr. Moore; he had not his mouth to the wall - he was leaning against the fire-place when I came to the door; when I came there the conversation was dropped; It happened frequently - three or four times; one time in particular it was dropped; I cannot say it was dropped on another occasion; I heard no harm; it was not concerning me; if it had (been) I should have taken notice of it; I cannot say anything that they were talking of; Smith was smoking his pipe; I could not hear what they were saying; when I walked in the conversation was dropped; what it was about I cannot say; I have seen Smith with a great many writings about him while he was in the lock-up; we were allowed to go out and in; I have seen him writing; he seemed very particular about them (the writings); he did not let me see them; he used to put them inside his hat and put his hat on his head; when I have been going to the lock-up he used to put them into a rag; and put them into his hat; I always thought that there was something wrong about them; I have often looked about the lock-up for some of these writings, as I should have looked at them; I thought there was something wrong about them, as we were both there together, and both for the same thing- he was so particular about them; we were allowed out as we had been there so long; sometimes one was out, sometimes another; one time he had some paper pretty clean; I dont know where he got it; it was about the, time James Smith was here for murder; he had some paper; there was also some printed paper - a piece of a book like he used to write on; (paper produced) Is like it; some of the paper was like a magazine; Smith had one; if I dont' mistake Maltby Smith had a piece of it; the piece out of a prayer-book is one he wrote on; I never saw him write on the piece of the prayer-book now produced; I have seen him writing about a book; that appears to be a piece of it (No. 3.); I heard him tell Myers the scourger that he had sent a letter to Mr. Donnison about his slops; I did not see the letter; I only heard him tell Myers; Mr. Donnison had come to the lock-up; he came in one day, and Mr. Moore too; after Smith and I came from Sydney; about January 1836, we went to Sydney Gaol, and remained there, I think, about thirteen weeks; it was after we came down Mr. Scott let him in; the chief constable (Mr. Scott) did not stop in there with them; he left them in there; Mr. Moore asked me if I had been wearing irons, and if they cut my legs, and such as that; he asked me to show him my legs; I did so; Mr. Donnison asked Smith the same, I believe; I did not hear them say anything in particular; they did not stop very long; about five or ten minutes;

84 do not think Mr. Warner was at home the same day; I believe they wanted to see him; I believe they asked Mr. Scott when I was in the lock-up if Mr. Warner was at home ; I heard nothing else about Mr. Warner when I was in the lock-up; after Mr. Moore had his irons off, I had them on; he (Smith) received his slops; it was before Bramble and I were tried; I only saw him with slops; Iâ&#x20AC;˘saw irons on Mr. Moore;. they were knocked off at the back of the lock-up house by Drew, and put on me; I know nothing more in particular; I have nothing more to state; I have seen Maltby Smith with half-a crown and two or three shillings besides; I do not know where he got them (the money); I have seen him with them; I did not see any one give them to him. Crossexamined by me - I have given no evidence on a prosecution for perjury against Maltby Smith I have had no intimation that I am to give evidence; I never gave any evidence against Mr. Bean about perjury.

Richard Gorman (constable). - I searched Maltby Smith, in February I think, after Bramble got out of the cells (somewhere in the early part of November he was put in on suspicion of killing a cow); I found some writings and a Dictionary belonging to Mr. Drew, that he had stolen; Robert Scott, Chief Constable was there. Mr. Drew was there; - he was lock-up keeper; the papers were in his (Maltby Smith's) jacket pocket; he first threw himself on his jacket and would not give them till I knocked him over and searched him; he made a bit of a run at the jacket; he said what do you want; he just put out his hand to the jacket; he made a grab at it; I told him to sit still; I searched, and found the writings in the pocket; now, says he, you have got them, make the best you can of them; I took the Dictionary from between his shirt and his skin; on Wednesday evening last (12th) I warned him that he was to be brought up here; I am acting lock-up keeper; I warned him that he was to be tried the following day; if I am, says he, I can get out of it; he did not say how; the first communication I had with Mr. Donnison was, when Mr. Scott let him in: he was at the privy, at the time when he said "Well, it is only seven years." Captain Faunce then wished to put in and read copies of the documents taken from M. Smith, which I would not allow, when he. said that the others were so difficult to read that he almost despaired of doing it. I replied that I was sorry for it, and did not wish to throw any impediment in their way, but could not allow the copies to be read. Captain Faunce then desired the Clerk of the Court to read them. He read a paper to the purport that Mr. D. and Mr. M. had visited there (wherever M. Smith then was) that day, but there was no date, and when he had read it, Captain F. took it from him and read it himself, and observed to Mr. Scott, Mr. Moore's name is not mentioned here. I then objected to the papers altogether, as not in any case being evidence against Mr. D. or Mr. M.; and after eliciting from Captain F. that, that being the case, the I contended that there was no evicase for the prosecution was closed . dence whatever in support of the charge, and that therefore he must dismiss the case . After some conversation between Captain F., Mr. D., and myself, Captain F. dismissed the case; and I asked if there were any further charges against any of the parties, to which he replied in the negative. I then asked for bail, when Captain F. said that Mr. Warner was of opinion with him, that bail could not be allowed, and that whether

85 or no , no other magistrate being present he could not take bail. All parties then retired. Afterwards , at the desire of Mr. Donnison , I asked Captain F. leave for him to go home to arrange some matters and papers , which he said he might do , but that he must be in charge of a constable.

JOHN PLAISTOWE. Erina, Brisbane Water, January 14, 1837.

P'w.teat aga,%na.t going on BoaKd in a S.tonm. We, the undersigned , at present confined in the Lock - up, having been informed that we are to be conveyed across the Broadwater in an open boat , in order to be put on board the sloop Betsy , now about to proceed to Sydney , and being aware that there is no accommodation on board the said sloop , except the bare deck ; do protest against being so conveyed on board , if practicable , during this violent gale of wind , accompanied with heavy rain , which would be attended with great risk to our health, and could not in any wise expediate the voyage , as no vessel can now proceed to sea. (Signed)

W. BEAN, J. MOORE, H. DONNISON.

Brisbane Water, January 18, 1837.

(Connteapondenae between Captain Faunce and Mn. Donni_aon.) Captain Faunce presents his compliments to Mr. Donnison , and requests that he will send to the Court , to-morrow , his servant Brown , who formerly gave evidence ; also the brand which was placed in a hut belonging to Mr. Moore , as something will turn out respecting it. Mr . Moore will be exonerated from blame in that respect +; Brown can bring it if Mr. Donnison will be pleased to have it packed up. Brisbane Water Police Office , October 31.

Mr. Donnison presents his compliments to Captain Faunce , and will feel obliged by his noticing the bearing of the evidence upon Maltby Smith . If Mr. Donnison ' s memory serves him correctly , he is only charged with assisting to skin a bull "owner unknown ." As Mr. Donnison is informed , the man on his former examination had not the sense to put in this plea for himself; he is sure Captain Faunce will consider he is only doing his duty to his servant in requesting the attention of the Court to the fact , not being able to attend himself. Erina, 1st November, 1836.

Mr. Donnison presents his compliments to Captain Faunce, and requests that he will cause J . Hilliard to be brought before the Court on Friday next . Mr. Donnison's charges against Hilliard are false testimony and perhaps conspiracy in the case preferred against Mr . Bean and himself;

This refers to a brand cut out of another man's beast , and put into one of Moore ' s huts , at his station . He told Donnison of it, and asked to go and take it +

away .

The intent was to fix another charge of cattle stealing on him.

also with endeavouring to fix a charge of making away with a bull, and further with leaving his service with an unsettled account, and taking away a free man; the latter Mr. Donnison would have preferred sooner, but has delayed it for obvious reasons. Mr. Donnison begs also to acquaint Captain Faunce that no constable has called to give notice to the people of the meeting for building a Church, &c. Erina, 21st December, 1836.

Captain Faunce presents his compliments to Mr. Donnison, and begs to decline summoning Hilliard on the first charge, because Mr. D. before admitted all facts stated by Hilliard, and that the present time is illsuited for the purpose; also, for the hearing of the second, which moreover appears indefinite. As to the latter it would seem to have been laid aside, and now brought forward merely as retaliation, and certainly would not look well at present. Captain F. begs to state that all his constables are on duty, and would suggest that the committee employ a messenger, which of course could not be objected to. Captain F. has sent a notice to Henderson, and one is posted up at this office. Brisbane Water, December 21, 1836.

To Cap-twin Faunce, Police Magist)tate. SIR, - I beg to acknowledge the receipt of your note of the 21st instant, declining to summon Hilliard on any of the three charges which I have preferred against him. I deny having admitted all of the facts stated by Hilliard, and I appeal to my written statement. Believing it to be more conducive to the ends of justice to correct the errors of a brother Magistrate than to expose them, I will take the liberty of pointing out when in my opinion you are wrong, in the hope that you will amend the fault. You are not authorised, on hearing a statement from a complainant of the grave nature which I have preferred, to determine at once, that there is no ground for the charge, and, in fact, to prejudge the case; neither are you warranted in assuming that he has improper motives in making it. If the grievance complained of is not a breach of the law, or not within the Magistrates' jurisdiction, of course he cannot act. I beg to recommend to your perusal the circular dated May 18, 1833, and the Commission of the Peace. You will please to notice that I told you distinctly on the 20th instant, that I had other evidence besides my own; and you then said you would bring Hilliard up when I wished. Having been told by you that the criminal charge against me was suspended, and receiving yesterday a communication from my solicitor, informing me that it was not entertained by the Attorney General, I applied to you to bring him to Court (not to summon him, which is needless), and I most earnestly request, in order to avoid unpleasant consequences to yourself, as well as for the sake of public justice, that you will reconsider the matter. I am fully determined to sift the affair to the bottom, and no opposition that you can make will prevent me. In all I have said you will perceive I have waived the fact of Hilliard being a Prisoner of the Crown. I am going from home, and shall be absent about a week; I hope in that time that you will see the impropriety of the course you have adopted, in which case have the goodness to acquaint me. It was my intention to have sent one of my men to Court to-day, but really with the

87 strong feeling which you evidently entertain against me, I fear I should not receive justice at your hands; and I have therefore deferred it. I allude to the man whom I mentioned on Tuesday as an absentee, and after whom you did not send a constable. I have the honor to be, Sir, Your most obedient servant,

H. DONNISON. Erina , December 23, 1836

Ex-nact bkom Judge Bunton'h Change, Bean v. Eaunce. "The Judge proceeding to charge the Jury, observed, that there were several features in the case, as presented by the evidence before them, which naturally gave rise to observations, which if time served he should avail himself of the opportunity to make, as to the powers and duties of Magistrates, and the responsibility which attaches to their office, and the great importance to the public, that they should be persons of judgment and discretion qualified to perform its duties. The length however to which the proceedings had been extended, and the fatigue under which the Jury evidently laboured, would not allow him to detain them long from the strict view which was necessary for their decision. But he felt himself called upon to notice, for the purpose of deprecating in the strongest terms, a practice which it appears from the evidence, the defendant had pursued, and which he feared was but too common - that of a Magistrate seeking for the opinion and advice of others, in matters which the Law committed to his own judgment and responsibility. The Judge then quoted the evidence bearing on this. "The Judge said, that he would not too much deprecate such a course; the law had provided that, the first and important step in criminal proceedings should be taken by the Magistrate. It had placed him in that situation, for the double purpose of bringing offenders to Justice, and of protecting the innocent. "The law presumed that the person filling the situation was competent to discharge its duties; and it imposed upon him the responsibility. "There was too much danger, that if the Magistrate sought the opinion in such cases of any one whom he might consider his superior, he would bring his own mind into bondage to that of another, whilst if he sought that of people beneath him, as some of those were to whom it appeared he had lent too ready an ear, he subjected himself to a bondage as degrading as base. "Respecting the first charge, the Judge stated that, if the Jury had to consider whether the plaintiff had been guilty of the charge of cattlestealing, as alleged against him before the Magistrate, the verdict of a Jury of his countrymen which had been given in evidence , sufficiently proved that he was not; or if it became their duty to determine that question upon the evidence that appeared before them in the course of these proceedings, they would undoubtedly find cause for arriving at the same conclusion; or if they had to form their opinion upon the depositions before the Magistrate whether the evidence then amounted to a

charge of cattle-stealing, it might be satisfactory to the plaintiff, that he should, as he unhesitatingly did declare his opinion, that he did not. It is true, that is was sworn to on the one hand by George Meadows, that the cow in question was his property, and that it was wrongfully withheld from him by the plaintiff, and that there was no evidence as positive on the part of the plaintiff, that the cow was his;* but it appeared, there were two or three animals, two especially so much alike, (one which had belonged to Richards, or Mr. Manning, and the other to Meadows) that the question of identity was very much in dispute; but if that was proved - if it were proved that it was wrongfully withheld from the real owner, yet it must be proved to have been feloniously taken in order to make the plaintiff criminally responsible; that was the distinction between a mere trespass or civil injury and a criminal offence. It was the essence of the offence of theft, that the thing should be taken feloniously, that is, furtively, in the manner of a thief, which in general means not only against the will of the owner but privately, the party taking the property knowing it not to be his. There were cases of theft, where secretly taking, was not essential; as when a man's watch is snatched from his pocket by one who runs away with it. The person on having no claim to the watch, and so taking it, shows his intention to steal. But in this cow, upon the depositions it appeared that the case was in dispute between Meadows and Bean, and Meadows was sent for and saw the beast, and was prevented from killing it by Bean, who claimed it as his property, and a particular person was referred to, named McGrath, by whose determination Bean offered to be guided, and if he said it was Meadow's cow, he should have it - a person who lived within a few miles at the time, and who might readily have been brought by Meadows; he however did not bring him. Six months elapsed, during which time he did not prove his claim by action as he might, but made oath at the Police Office, that the cow was his property, and was wrongfully withheld by the plaintiff; and a summons was issued, which was irregular, and not in the jurisdiction of the Magistrate to grant, for the matter so complained of, amounted in its terms only to a civil injury; and at length the cow was killed. Six months had been allowed for to substantiate his claim, and the conviction of the plaintiff that the cow was not his, might be strengthened by that circumstance. It was a novel mode of cattle-stealing to send for the party laying claim to the property, and tell him it was about to be killed. "But the Judge stated, that was not the question which the Jury were now to determine; but the question which first presented itself for their consideration was upon the first count, whether the defendant had acted illegally in committing the plaintiff to prison. And he would at once state that according to his view of the law, if the defendant, being a Magistrate, and having a charge of felony on oath before him, and having heard the evidence produced in support of that charge, have committed the person charged, although the evidence should not warrant the conclusion at which he arrived, he is not liable to an action at the suit of the party grieved.

* Mr. Bean no doubt could have obtained twenty witnesses at a dollar a-head to swear that the cow was his or the Pope's, but he never took the trouble to prove its identity; he relied on the want of proof of any felonious intent on his part.

"There might be difference of opinion as to the convenience of this law; but it was the law. The Judge , however, expressed his own view to be , that it was proper that the matter should be left at that stage of the proceedings to the Magistrate ' s judgment ; a party might suffer from a Magistrate having formed a wrong conclusion , and the law left him without a remedy. But the law presumed that none would take upon themselves the duty and responsibility of such an office, but persons competent to discharge the duties of it; and that none but such would be appointed to it." His Honor went through the case at considerable length , stating his opinion in effect that the plaintiff had no remedy, but for being put in irons, and recommending the Jury , if they so found, to confine their verdict to the second count , which contained a specific charge for ironing; and the Jury did so.

ERRATA.

Page 12, line S. - For "committed a theft" read "fired a pistol over a woman's head." Page 32, line 30. - After "just left him" add "and that will be a token that you have abandoned Donnison."

THE

BRISBANE

WATER

CASE

1837 - 1838

PART TWO:

DOCUMENTS RELATED TO THE CASE

THE TRIALS REVIEWS IN THE SYDNEY PRESS RELEVANT REPORTS & EXTRACTS

COMPREHENSIVE INDEX

TRIAL DOCUMENTS IN THE CASES OF HENRY DONNISON, JOHN MOORE AND WILLOUGHBY BEAN TRIED IN THE SUPREME COURT IN SYDNEY, 1837, ON CHARGES OF CATTLE STEALING.

These cases were first heard before the Magistrate (Capt. A. T. Faunce ) at Brisbane Water . The Depositions made before the bench at Brisbane Water are to be found in the Archives Office of New South Wales in the series Court of Petty Sessions Gosford (Brisbane Water ) Deposition Books for 1835- 1872 3/4424 ( Reel 664) in the books for 1837 pp. 76-125. This contains some 50 pages of sworn depositions concerning these cases which are found in typescript form in the relevant volume of Historical Records of the Central Coast.

It gives information as to the plaintiff, summons, warrant, plea (by defendant), list of 48 special jurors (from whom the jury was chosen), affidavit of increase, brief to move for a common jury, brief to move for a new trial and other routine business papers of the Court setting the date of trial etc. There are about 20 pp of documents and notes for each case.

Bean v Faunce was case no . 173 in 2 Term 1837 Moore v Faunce was case no . 175 in 2 Term 1837 (Archives ref. 9/5357 Judgement Rolls 2 Term 1837 nos. 170-213) Donnison v Faunce was case no. 178 in 3 Term 1837 (Archives ref. 9/5361 Judgement Rolls 3 Term 1837 nos. 149-181)

The number and date of each case was found in the Index to the Judgement Books no. 2, 1834-1840 (ref. 9/911) and in the Judgement Books (ref. 9/924).

SUPREME COURT , Criminal Jurisdiction , Archives Office reference X67:

John Moore was tried on February 6, 1837 for cattle stealing ; verdict, not guilty.

Henry Donnison was tried on February 27, 1837 for cattle stealing ; verdict, not guilty.

Willoughby Bean was tried on February 27, 1837 as an accessory after the fact; verdict, not guilty.

DOCUMENTS RELATING TO THE ACTION FOR DAMAGES BROUGHT BY DONNISON, MOORE AND BEAN AGAINST FAUNCE.

The three cases for damages against Capt. Faunce are listed in the Supreme Court Process Books for 1836-7, Nos. 179-81. (Archives Office ref. 5/4532 in the series Supreme Court, Civil Jurisdiction Records of the Court.) Bean, Moore and Donnison each claimed £1,000 damages against Capt. Faunce for trespass. The dates fixed for the causes and the damages awarded were as follows:-

Case No. 179 Willoughby Bean

Plaintiff July 4, 1837 £300 on second count deft. on other counts

180 John Moore

Plaintiff July 6, 1837 £250 on third count deft. on other counts

181 Henry Donnison

Plaintiff October 16 & 17, 1837

£350

Papers relating to each of the cases are to be found in the Archives Office of New South Wales in the series Supreme Court, Judgement Rolls. The papers for each case include:-

Declaration (i.e. a statement of the cause for complaint). Depositions of cases heard before the Supreme Court in Sydney are to be found in the Archives Office in the series Clerk of the Peace, Supreme Court, Sydney and circuit. Papers and depositions 1824 - 1951. These are arranged according to the place at which the case was first heard. Material from Brisbane Water in 1837 is to be found at the reference 9/6307. Permission to see these documents must be obtained from:The Solicitor for Public Prosecution, 69 Oxford Street, Sydney. (Tel. 264 7066) indicating which trial document you wish to see, quoting the Archives reference number and the purpose of your research.

Separate permission must be obtained to have any of these documents copied . The documents can be examined and copied at the Archives Office on production of the necessary permission from the Solicitor for Public Prosecution. It is understood that this permission is usually granted for historical research. It is possible that these documents consist largely of copies of depositions made at Brisbane Water, to be found in the Courts of Petty Sessions reference above. The trials are listed in "A return of prisoners tried before the Supreme Court of New South Wales in the year of our Lord 1837".

DATES OF COURT CASES:

1837 John MOORE Henry DONNISON Willoughby BEAN Willoughby BEAN v FAUNCE John MOORE vFAUNCE Henry DONNISON v FAUNCE

trial

6 27 27 4 6 16

Feb. Feb. Feb. July July & 17 Oct.

1838 Capt. FAUNCE v CAVENAGH

15 & 16 Mar.

(Cavenagh was editor of the "Sydney Gazette") Apology to MOORE from FAUNCE in newspaper

18 Mar.

THE PRESS, LOCAL ADMINISTRATION, CLASS RELATIONSHIPS AND THE SOCIAL ENVIRONMENT IN 1836-38 AT THE TIME OF THE BRISBANE WATER CASE

Newspapers in N.S.W. The Press of the colony in 1837 was free to a large extent and took advantage of it by endeavouring to influence readers as much as to inform them. Newspapers took sides and played the political game. The population was fractious and contentious. The Press, in reflecting that general mood, aided and abetted the contestants in litigation. This attitude of the newspapers inflamed feelings and did not help in governing the population. Local politics and religion were the newspapers' favourite topics, as good sensational articles helped to sustain the sale of copies. Some articles did not show much restraint or responsibility, as we will see. The Governor was a favourite butt for attacks. His policies were discussed, praised or attacked with vehemence, as if it had originated from the Governor himself, conveniently ignoring the fact that the Governor's role was to implement policies formulated in London. He therefore was the instrument of the Home Office, even if he had privately favoured or advised in such policies. Quite often a Governor took the brunt of popular displeasure - whipped up by the press for policies he had to implement and with which he may have privately strongly disagreed.

Newspapers and the Governors "Governor Darling (1826-1831) and Governor Bourke (1831-1837) were both subject to a sustained campaign of opposition mounted by one of the local parties and designed chiefly to appeal to English audiences. Governor Darling was accused by the Liberal party of being tyrannical and cruel; the immigrants accused Governor Bourke of being too lenient in convict discipline. Neither campaign was successful, either in its short-term aim of having the Governor recalled or in the long

term of gaining a constitutional settlement favourable to the accusing party. The indirect effect of these campaigns was, however, to make the issue of convict discipline one of the mainstays of local party Politics." [1] Darling was maybe the Governor who had the most cause for complaint for the treatment he received from the press, as he was submitted to violent attacks, often unjustly. Bourke also had to contend with a similar treatment in the name of freedom of the press. "Governor Brisbane had not attempted to control it in any way , the press in 'Botany Bay' was unshackled at a time when the press in England Bathurst .... had was still under controls . directed Darling to introduce legislation based upon the English Press Act then in force. Indeed he thought that a further measure of restraint was required in the Colony and instructed Darling to propose legislation under which no newspaper was to be published without a license from the Governor and Executive Council .... publication (could be ) suspended at any time if the Governor or Council deemed it necessary ...." [ 2]

Early in 1827, in accordance with Bathurst ' s instructions, Governor Darling had two Bills prepared designed to control the press which had been uncontrolled since 1824. As a consequence of the Act, the editors of the Monitor and of the Hexa td were at various times prosecuted and found themselves in and out of gaol. Bourke arrived in December 1831 and was greeted with enthusiasm , perhaps as a reaction against his not-toopopular predecessor . He remained popular with those he called "The People " through the whole of his term of office but encountered considerable opposition from certain sections of the community. "The Sydney Hexatd, [3] like the emigrant party generally, for years depicted the colony as disorderly and ill-disciplined as a means of discrediting Governor Bourke and the Liberal party." [4] [1] J. B. Hirst - Conu.Lct Society and i tb Enemtie-4, p.176 [2] Dr. H. King - R.icha4d Bourke, p.147 [3] The paper known as "The Sydney Hexa.ed " until 31 July, 1842 became " The Sydney MoknLng Hena.ed" on 1 August 1842 and became a daily paper, following a change of ownership [4] J. B. Hirst - op.cit p.200

The Henakd readily offered access in its columns to all wishing to criticise the Governor on any subject at all. The Sydney Gazette, the first issue of which was published on 5 March 1803, was the fourth major newspaper of the period and strongly supported Bourke for most of his Governorship until 1836, when there was a change of editor. The newspaper's policy then turned around and it became severely critical of Bourke's administration. The Auhtaatta.n supported Bourke. Minor local incidents reported in this newspaper tended to be magnified into major political issues and reporting was coloured by party differences.

Bourke Earned the Affluent Settlers' Animosity "By using his influence on the official members of the legislative council, the liberal Governor Bourke forced through the council in 1833 the law which introduced civil juries into the criminal courts and allowed emancipists to sit on them." [1] The emigrants had fiercely opposed the admission of emancipists to juries, especially in criminal cases. "Bourke had to use similar pressure on his council in 1835 to get its' agreement to a new British directive that the colony and not the British taxpayers should bear the cost of the colony's Police and Jails." [2]

Bourke and the Local Magistrates The power vested in local magistrates over the assigned servants was great and had given rise to many abuses from unfeeling magistrates who meted out harsh treatment for minor disciplinary breaches. Bourke introduced legislation curtailing the powers of magistrates over convicts.

[1] Dr. H. King op.cit p.157 [2] J. B. Hirst op.cit p.171

The powers of a single magistrate with regard to corporal punishment were limited under the new Act; for instance, the Act limited the number of lashes which could be ordered by a Magistrate to fifty. Some Justices of the Peace reacted bitterly. [1] The Sydney Mon,itoi acclaimed it as the most important Act upon the colonial statute book. The Sydney Hvcakd dubbed it Bourke's 'soothing system' for the convicts, and the Act's so-called leniency was blamed for every subsequent convict misdemeanour. [2] The opposition shown by some individuals like Donnison was on socio-political grounds. Donnison had shown that he was opposed to a relaxation of the strict disciplinarian rules over convicts and Tickets of Leave Holders.

Governor Bourke Relaxes the Disciplinary System Bourke had been Governor of the Cape Colony before his appointment to N.S.W. Some of the situations he had to deal with there were similar to what he found in Australia. The Cape Colony had not been used as a convict penal settlement, but he found slavery established for the benefit of the land owners. The assignment of convicts was not much different, in essence, to a kind of slavery. "An ordinance had been issued from London for the amelioration of the state of slaves. Bourke had the difficult task of bringing it into operation. He handled the situation with skill. The Ordinance was resented on many grounds. It disturbed established habits on the part of the slave owners in that it interfered with their rights. It disrupted the relationship between masters and slaves. The right it gave slaves to obtain freedom was also resented. A fear of a slave uprising and disorders was reflected in petitions in which references were made to murders committed by slaves, the memorialists foresaw brutal murder for themselves and rape and murder for their wives and daughters."[3] Bourke faced a similar situation here, for after all, convicts were often seen by their masters as temporary slaves. [1] Dr. H. King op.cit pp.160 seq [2] Dr. H. King op.cit p.162 [3] Dr. H. King op.cit p.85

100

In facing the problems after he arrived in N.S.W., Bourke acted with much caution and restraint but he also elicited settlers' resentment for the same reasons , and this was expressed in similar terms by Donnison when he states in his book "The BaLabane Water Caaea": "On his arrival he appears .... (to have thought) that every thing was wrong.... that the convicts were treated with cruelty and injustice.... that to cure this evil it was necessary to raise up an antagonist evil, and therefore the 'soothing system' was introduced, the impression that Sir Richard was the prisoners friend, did the mischief; in its consequence it almost set the Hunter into a state of insurrection &c &c" [1] Donnison here alluded to the Mudie Affair which occurred at Patrick's Plains in the Hunter River District. [2] "Mudie claimed that the vicious attack on his character, which the Governor had endorsed by ordering an enquiry into his management of convicts, had made his name so hateful that it was impossible for him to control convicts again. He returned to England and there published 'The Felony of New South Wales'. In this he argued that Bourke's leniency towards the convicts had encouraged the rebellion on his property.... if transportation was to be an effective deterrent a stricter discipline would have to be maintained and the absurdity of entertaining convict's complaints against their masters at the highest level abandoned.... he recommended that the current system of assignment should be abolished in favour of selling convicts to the highest bidder. If this smacked of slavery, so be it; convicts deserved no better."

This is exactly one of Donnison's causes of bitter complaint when he touches upon the subject of the assigned servants' When insubordination allegedly being out of control. conversant with the rule of the Press and the behaviour of the Actors it becomes easier to comprehend the motives and reasons behind their actions.

[1] H. Donnison The Bt bane Wate& Caae6 pp.61-62 passim [2] HRA XVII-409/10, 542/3

101

NOTE: Repont4 06 "The Ca-se" appearing in The Sydney Monitor ante o,ten mentioned .thnoughowt the year4 1837 and 1838.

Since

no de6in.te re6exence ih given, and as no micro6itm o6 the .,54ue4 .i.a available loca ty, we did not deem it neeeaaary to go to the State Library to penu'e -through two year4 o6 iâ&#x153;&#x201C; 4ue4 to a4centaLn. tthe extent o6 relevant material which would probably be 4imitar to that already pre-Sented by the other contemporary new4paper-s.

Note to our readers :

We did not think it appropriate to

atte,z on. adju-st the -s pet i,ng bound in contemporary newapapena to it-s accepted modern 6orm . integrity o6 the-se preaa extracts;

We ne-spected the

thene6o-'ce, the -spelting

o6 -some word-s may be the re-salt o6 a typographical e-cno4 o6 the time, on could be the 4tandard -spe tLng used in the 1830'4.

102

1 8 3 6

Sydney Gazette November 19

Captain Faunce engaged in preparing committal against residents for Cattle stealing

p2,c4

1 8 3 7 Sydney Gazette March 2

The Brisbane Water Cases: Remarks on the Cases

Australian March 7

The Late Trials for Cattle Stealing

Sydney Gazette March 11

As to the placing in irons.... comments on "Australian's"article of previous Tuesday

p2,c3

Sydney Gazette April 6

In a previous number.... regarding Moore's house being broken into

p2,c6

Australian April 7

Correspondence from "A Looker-On"

Sydney Gazette April 13

Our attention has recently been drawn....

Australian April 18

The Gazette continues to harp...

Sydney Gazette July 8

The three Special Juries, cases against Captain Faunce

p2,c2-3

Sydney Gazette July 22

The Brisbane Water Cases: Brief report on Bean v Faunce and Moore v Faunce with comments

p2,cl-2

Sydney Gazette October 17

Special Juries: comment on, illustrated by Donnison v Faunce

p2,c3

Sydney Gazette October 19

Brisbane Water Tyranny Report on Donnison v Faunce Case

p2,cl-4

p2,c5-6

p2,cl-2

p2,c6

p2,c2

p2,c3

103

1837 ( Cont'd.) Sydney Gazette October 19

Supreme Court - Donnison v Faunce Full Report on Case

Sydney Gazette October 21

Donnison v Faunce Intimation that Faunce intends to appeal

p2,c5

We congratulated the British character..... Further emphasis on Donnison v Faunce case , especially with regard to T. A. Scott's depositions

p2,c3

Brisbane Water Police Further comments on T. A. Scott's deposition

p2,c3

Sydney Gazette October 26

Sydney Gazette November 4

Sydney Gazette November 23

p2,c5-7; p3,cl-4

Captain Faunce and the "Gazette" p2,c4

1 8 3 8 Sydney Gazette February 22

Date of libel trial set

Sydney Gazette March 17

Remarks on conclusion of libel case

p2,c3-4

Sydney Gazette March 20

Supreme Court . Civil Side. Faunce v Cavenagh - Report on libel case

p2,c3-7; p3,cl-5

Sydney Gazette March 20

Our Libel Case Editorial on Faunce v Cavenagh Faunce's Apology - Moore v Faunce

p2,cl-2

Law Intelligence. Supreme Court. Civil Side. Moore v Faunce. Case struck out of the list

p2,c7

Mr. Roger Therry: Open letter to Roger Therry Esq., signed Donnison. Comments from Donnison on Therry and his part in the case

p2,c5-6

Sydney Herald March 22

Sydney Gazette March 22

p2,c5

Apology - Moore v Faunce pl,c4

PRESS REPORTS OF

THE TRIALS OF

BEAN - DONNISON - MOORE bah Ca.ttt.e S-teattng

107 S Y D N E Y G A Z E T T E.

NOVEMBER 19, 1836.

Captain Faunce, Police Magistrate of Brisbane Water, has been continually engaged since his appointment in October with the trial of certain charges for cattle stealing preferred against some of the residents in the district. We are informed that three committments have been the result, and that another is expected from the case now pending. His brother Magistrate, Mr. Donnison, has from circumstances been prevented from co-operating, the Captain has therefore been alone on the Bench. Mr. Donnison is said to be on his way by land to Sydney to engage one of the profession for the purpose of advising in the case now under consideration. We may therefore expect some account of the proceedings, which, as far as can be done without prejudice to either, party, shall be published in due time.

Captain Faunce opened the negi4.tex bon taking down depoai ti.onh The £a-6.t entny to dated 21 Januaa.y, 1837. on 17 Octobex, 1836. The majoa pang ob the keg.IA.tex to that date to uaed in entex.i.ng .the .2eng-thy depo's tions made in hip enqui✓ciee n.ebexaed to in .the above antLcte in the "Sydney Gazette". A .totat ob aome 130 pageh ob depo-sttionz wene taken in ,thi✓ .hnee-month peai,od. The ne2evawt depo-s tLon3 ane bound in Bni sbane Waten. Bench Bookz - Co.tonA.a l Tniae4 & Count Recond. - 4/5524 (664) C. C. 1. in the "Hi s.toni.ca.t Recoad4 o6 the Centna.t Coact o6 New South Wate5".

108

S Y D N E Y G A Z E T T E 2 March 1837

p2,c5-6

THE BRISBANE WATER CASES.

We should be wanting in our duty to the public , did we not make some few remarks relative to these extraordinary charges, now that they have been, on the It part of the Crown , fully investigated. was our intention to have offered such observations relative to the police magistrate of the district, (Captain Faunce) which we considered imperative on us from the peculiar circumstances of the case, but as Messrs . Donnison , Bean, and Moore, are each about to institute legal proceeding against that gentleman , it might be considered as prejudicial to the trial. We shall therefore as regards him, now only observe - that if with a knowledge of the respectability and character of the accused-on such evidence alone as he produced in the Supreme Court in support of the indictments, and with the knowledge of the vindictive feeling of some of the witnesses -if with the knowledge that these gentlemen had no intention of absconding , but desired only as they have done, to come before the Court to claim their discharge as honest men, from a malicious accusation -if with the knowledge , we say, of these circumstances, he resorted to the brutal extremity of putting them in the lock-up for three weeks-put L'tona on -them, and forwarded them to Sydney gaol in close custody, we hope to God he may be made to feel the pangs these gentlemen have suffered. We will not say he has acted dishonestly, nay, we will not venture to affirm he has even acted illegally -these matters it will be the province of a Jury of his country to decide . We will now offer

l og

no opinion on the point, as we wish that full justice should be done between the respective parties; but of the other witnesses we have some few observations to make. Any one who heard the manner in which Mr. Richard Cape gave his evidence, must have felt deeply for his indiscretion. His admission of playing cards with the stockmen and Government servants , is a melancholy example to show the convicts ; yet Mr. Cape saw no impropriety in this! He states in his evidence , " I have played cards, and cooked for them; it is customary in the bush; I am glad of an opportunity to play cards." Had Mr. Burton tried the case, this circumstance would have been strongly commented on, and Mr. Cape represented to the Government as an improper person to have assigned servants. It evidently escaped Mr. Justice Dowling's attention . Mr. Cape further says, "I was accused by Mr. Bean of cattle stealing and perjury; ob counbe, I turned round, and charged him with the same he was charging me. Mr. Bean said I was a notorious cattle stealer." We are quite. at a loss to know how Captain Faunce received this testimony against such respectable parties as the accused; it bears malice on the very face of it. With respect to Mr. Warner's evidence we have but little to say, that little we regret, inasmuch as this gentleman is an old soldier , and has been some years in the Commission of the Peace ; hey however, on this occasion , we trust, either from inadvertance , or a failing of memory -perhaps of both, gave a most unsatisfactory testimony, exhibiting an ill-feeling of the strongest nature against each of the accused. The Judge in his summing up commented in no measured terms on this gentleman's evidence, which must have been as distressing for him to hear as it was painful to us. Mr. Warner's high opinion of Mr. Bean's character was at one time of itself sufficient to warrant him in taking his explanation, in opposition to Meadow ' s affidavit; it is much to be regretted , that his changing that opinion did not occur until after they had quarrelled , leaving him open as it does

110

to an imputation , which we, however, in mercy to him , trust is unjust. With respect to the witness Meadows, the owner of the beast, we can only say that his deposition alone should , in.our opinion , have put the case out of Court; as far as Mr. Bean

was concerned , it virtually did; that gentleman claimed the cow for Mr . Manning, and branded it with Mr . Manning's brand; to commit him for trial at all, was therefore a most extraordinary proceeding . From the general features of this case we may deduce some important considerations respecting the Attorney General representing the Grand Jury of the country. We do not intend casting the slightest reflection on this respectable officer; but it is painful to think that three reputable persons, owing to the want of these institutions have been unnecessarily so degraded. This is at once evident from the circumstance of the Jury, on being made acquainted with the pno4ecutok'4 ca4e, immeA grand diately acquitting the defendants. Jury would of course , under similar circumstances , have thrown out the bills, and thus saved the defendants the harrassing excitement - the expense-the humiliation of being placed in the felon's dock, to undergo the mockery of standing their trials on an ignominious charge, involving till lately the punishment of death, and now that of transportation for life! We are informed that the Attorney General in his opening speech alluded particularly to the necessity of grand juries being introduced , relieving him as it would from a most arduous duty, and a most painful responsibility . Had such institutions been in force in the Colony , in this case, a Magistrate of the Territory would have been spared the agony of being torn from his family , and with two other equally respected gentlemen , dragged to the felon's prison-the felon ' s dock. We entreat the Attorney General while such fearful responsibilities lie on him individually, to avoid as much as possible such

111

awful-such dreadful consequences happening to respectable parties, by making the fullest possible examination into the real merits of the depositions forwarded for his investigation; for we almost fear, from the voluminous nature of those taken in support of these charges, arriving at a time too when the Criminal Court was just about being opened, that he has been unable to give the evidence that mature consideration, the liberty of the subject required at his hands. The simple facts of this long , unnecessary trial would lie in a nutshell-they are simply these. The Cow in dispute with others, was first sold by Mr. Bean, to Mr. Richards, then by Mr. Richards to Mr. Manning, from Mr. Manning to Mr. Bean , who disposed of her to Mr. Donnison; this gentleman slaughtered her as his own six months after the claimant Meadows had applied for her; and it is a fact that Mr. Warner , the Police Magistrate had expn.eAsed hiz opZni.on that it was a case sotety bot a cLvit coukt, during which six months Meadows made no further claim!

112

A U S T R A L I A N March 7, 1837

p2, cols. 1,2

"Vox PopuJ i. -- Vox DeL. "

THE LATE TRIALS FOR CATTLE STEALING.

Our readers are, of course, aware that prosecutions have lately been instituted against individuals holding a respectable rank in the community , on charges of cattle - stealing. Much sensation was caused by the cases from the Brisbane Water District -- and while one of our contemporaries is violent on the score of the committing Magistrate having placed one of the accused parties in irons, another is equally energetic in denouncing the prosecution as uncalled for, and "the system", the whole judicial system of the Colony, as " rotten from -head to foot." Now, we protest against this exuberance of indignation , either on the one ground or the other . We are not rash in asserting that, though the result of the trial has proved the parties to have been innocent , that we rely on the characters of the Law Officers and others concerned, for the fact that there was a p.aima 6acL e case against the accused. We assert this on the greater faith we place in the Attorney General and the committing Magistrates , than we have any reason to place in the wild and intemperate lucubrations of the "respectable " Journals -- who would fain make it appear that gross injustice and cruelty have marked the conduct of the Authorities in this matter . What would be the consequence if the acquittal of the parties in this case were to be allowed to be evidence of improper conduct on the part of the Authorities ? Why, Justice would be driven once more from the dwellings of man, and

113

the rich man , under whatever circumstances of suspicion he might labor, would point to his Bank-book as proof of his innocence, or at least as pn.iana b acLe evidence of his being a good man and true. Yet rich men have proved rogues , and. may again. As to the placing in irons - - why no reasonable man can find fault with t hat part of the story , supposing the Authorities to have been justified , as in fairness we are bound to suppose they were, in the fact of committal. It is necessary to have the accused in safe custody, or the arm of justice is weak at the most critical period. More especially is the committing Magistrate bound to make cer tain the detention in safe custody of persons above the common rank of life, and who have, in the event of being guilty , more inducement to escape , and greater facilities, by reason of their wealth and station. In the present case there were no other means in his power. But let the public look at these villainous Tory effusions . Let them look at the genuine spirit of oppression and wrong involved in this tenderness for the reputation of the rich Yes -- the man, under all circumstances. kehpectab1e men are to be "let alone"; the poor are to be pursued without mercy. The former are to be treated with punctilious delicacy, no matter what be appearances -- the latter to be held guilty from the very circumstance of their poverty. Such are the principles , the plain and avowed principles of Toryism.

114

S Y D N E Y G A Z E T T E

11 March 1837

p2,c3

"AS TO THE PLACING IN IRONS - WHY NO REASONABLE MAN CAN FIND FAULT WITH THAT PART OF THE STORY."

The above is an extract from the Au&btali,a.n of Tuesday last, and forms part of the leading article of that journal on the subject of the "late Brisbane Water trials for cattle stealing." We regret much that our contemporary should have noticed these cases in the manner he has, with the knowledge that Messrs. Donnison, Bean, and Moore, have each instituted legal proceedings against the committing Magistrate for a malicious prosecution. Such a circumstance should have prevented the press alluding to this particular part of the case at all events. But as the Aud.tktattan has endeavoured to justify Captain Faunce, we feel ourselves bound to reply, that the "bane and antidote" may go forth to the public together. It will be for a Jury of the country to decide, if there was any harm in seizing on the opportunity afforded by Mr. Donnison's sitting on the Bench with Captain Faunce, to remove him (without the slightest previous intimation of such a proceeding being made known to that gentleman) from the judgement seat, to the felon's bar, and thus unceremoniously on the disreputable testimony of a man who exults in the opportunity of getting "a chance to play cards" with convicts-on the disgraceful testimony, we repeat, of a man, who by his own unblushing impudence and avowed malice, was totally unworthy of credit-arraign him on a capital charge. It will be matter for a Jury to decide, if on such evidence as this, corroborated, or rather attempted to be corroborated, by a gang, whose deeds will yet be bn.oug& to tight, whether or not a father is to be torn from his home-his wife-his family-dragged to the lock-up, and there crammed in, and

115

kept closely confined for three weeks with vagabonds and cut-throats-with convicts! It will be for a Jury to decide, if in addition to all these degradations, keg ivton.o ought to have been put on, and kept on one of the parties for fourteen days. It will be, we say, for a Jury to determine if there is or is not anything malicious or unusual in such proceedings. And if they do decide there .tom harm-there ÂŁ4 malice-there ÂŁ4 something unusual-something hitherto unheardof, even in this convict colony in Captain Faunce's conduct throughout the whole of the case,-it will be then their duty to decide what pecuniary amount can be sufficient to mark their sense of such an outrage. Then will we with the Auotnattan join issue and say "no reasonable man can find fault with .that," though the damages in each trial exceeded one thousand pounds!

116 S Y D N E Y G A Z E T T E

APRIL 6, 1837

p. 2 col. 6

BRISBANE WATER.

In a previous number we alluded to Mr. Moore, one of the intended victims of the Brisbane water conspiracy , having had his house broken open and searched, under the authority of a search warrant issued by Captain Faunce , the Police Magistrate of that district, to search for a double barrelled gun. The following statement will give the particulars of this extraordinary case. We also subjoin a copy of a letter written by Mr. Moore to Captain Faunce. It is not our intention now to comment on the business, and we learn that Mr. Moore has instituted legal proceedings against Captain Faunce for this act, which will come on next term . We shall then return to the subject. At present, of course we cannot tell whether Captain Faunce was, or was not justified in acting as he did - but time will tell. On Saturday , 18th March , 1837, constable James Carpenter went to Mr . Moore's house at Avoca , Brisbane Water, accompanied by George Parfait, Mr . Moore ' s assigned government servant, at about 8 p.m., Carpenter called up Joseph Frost , also assigned to Mr. Moore, and who had left his master in Sydney . Carpenter asked if Mr. Moore was at home , Frost replied that he was not, but would return from Sydney by the first opportunity. Carpenter enquired of Frost whether he had the keys of the house, or if he knew where they were . Frost replied that he had no keys. Carpenter said he must break the house open. Frost asked by what authority ; he pulled out a search warrant; Frost read the warrant , it was to search for a double barrelled fowlingpiece supposed to be in the house or on the premises of John Moore , of Avoca, it was signed by Captain Faunce, Police Magistrate. Carpenter then took an axe, which he brought with him, and forced open the door , and entered. He searched the house , broke open a chest with the axe, searched the chest and a trunk, but took nothing out, and did not find the fowlingpiece.

117

Carpenter and Parfait remained all night. Before their departure in the morning, Frost requested Carpenter to fasten the door, which he did with a string, in presence of Alexander Wilson. Mr. Moore returned home about an hour after Carpenter had left. (Signed) Mauch 20th,

JAMES FROST. 1837.

Copy of a letter to Captain Faunce -

Avoca, Match 19.th, 1837. Sir, - Having this morning arrived at my house from Sydney, I found my door broken open, and I am informed by my assigned servant, James Frost, that it was done by one of your constables, James Carpenter. I now, sir request, that you will inform me, by the bearer, Alexander Wilson, whether it was done by your orders, and the reason you considered it necessary to adopt such a course. If you have given Carpenter a warrant, which I am informed you have, I think in justice you are bound to let me have a copy of it, as I cannot possibly conceive the reason he could have had to break open my door and box with an axe, and in my absence. I therefore request that you will send me a copy of the warrant on which he acted. I would have gone to the Court myself, but am unable to ride or walk such a distance at present. I have the honor to be, Sir, Your obedient servant. J. MOORE. (Signed) Captain Faunae, Police Mag.ihtta-e, Bt.hbane Water. Captain Faunce refused an answer to this letter, but was very civil to the messenger ( Alexander Wilson), and sent his compliments to Mr. Moore , stating he was very sorry to hear he was unwell!

118

A U S T R A L I A N April 7, 1837

p2, col. 6

To the Ed.itok ob the Au4txa2Lan. Brisbane Water, March 22nd, 1837. SIR,--The Police affairs of this District are again exhibiting features greatly to be deplored , arising, though rather indirectly , from those same individuals' arts and contrivances , who have managed to disturb the neighbourhood for the last sixteen or eighteen months, in pursuit of their own unworthy objects, in spite of our late most worthy Police Magistrate, and the efforts of our present one, Captain Faunce, whose proceedings I have noticed with scrupulous attention during his examination of the various complaints and charges produced against the parties who have caused such long and great agitation in the District. This attention , aided by my previous knowledge of the matters he most patiently and impartially investigated, convinces me, as it must every impartial observer, that he could not fairly come to any other conclusion than what he did; had he done otherwise, he would certainly have been chargeable with, and would have been accused of, gross partiality . But the manner in which he disposed of those affairs, proves that his intention was to dispense fair and even-handed justice with inflexibility , and without any regard (as an honest Magistrate should ) to adventitious circumstances, or position of either complainant or defendant in the ranks of society . This he did in the very teeth of the most insolent threats and menaces. If they could succeed in bullying Captain Faunce out of this district, I really believe ( because no other inference can be drawn from their extraordinary conduct, ) that they entertain , as they did on Mr. Warner's resignation , some hopes , by a plan of intrigue , and assistance of a prostituted part of the Sydney Press , which they have lately found so practicable and useful to themselves , to introduce a man without the least merit or pretension , except that of their own ae.6peetabte recommendation , into his office.

119

Thus they would be enabled to indulge their rapacious dispositions with impunity , and trample on our necks without mercy. However, allowing that they could succeed in their evil machinations against a gentleman of highly independent and honorable principles , manifested by his magisterial integrity , they would find that their nominee would not succeed to his chair , nor should any one in his office be permitted to transfer the property of others into their possession without their first overcoming a hard struggle against their rapacity and oppression. As to the silly clamour about rigorous confinement, it scarcely deserves notice, because their absurd notion of having two weights and two measures of justice cannot obtain the least attention or sanction. Our Judges are too wise and too honest to moot such nonsense . Those men have experienced , and therefore know, that justice is ably administered in this colony, and perhaps moxe meAci u1ky than in any country under Heaven. I am, Sir, your most obedient servant, A LOOKER-ON

120 S Y D N E Y G A Z E T T E

APRIL 13, 1837

p. 2 col. 2

BRISBANE WATER.

OUR attention has recently been drawn to a letter in the Aua .tttatEtan of Friday last, signed "A Looker on ," commenting in disreputable terms on Mr . W. Bean, one of the gentlemen, who, our readers will remember was attempted to be sacrificed by a gang of fellows worthy only of Hyde Park Barracks . The writer of this letter is known-we know him-and so do others ; it may be sufficient for us here to state that he is the same individual who has shown such Laudable enterprise in assisting to prosecute Messrs. Donnison, Bean, and Moore . Our contemporary some few weeks back attempted to read us a lesson on the impropriety of endeavouring to prejudice a case yet untried; we ask him to refer to his correspondent "A Looker on," and see if he is not himself doing the very thing with which he charged us. But we care not for such contemptible correspondents as "A Looker on," a man whose vindictiveness is only allied to frenzy. This is the worthy creature , who, feeling deeply chagrined at Mr. Bean ' s respectability and character , notwithstanding all his villanous attempts to undermine both, would have the public believe that he was desirous of obtaining the situation of resident magistrate at Brisbane Water, "to trample on the necks " of upright men "without mercy." That Mr. Bean , if appointed to that situation would endeavour to root out the vagabond gang in which "A Looker on " is in some measure interested, we verily believe. It would then be his duty , and hence arises his attempt to prejudice the authorities for fear this gentleman might yet receive that appointment , vacant ah it do by .the '.eh1 gnat(.on o{ Captain Faunae ! Mr. Bean did not, in the first place seek this situation. We fearless of contradiction state that the inhabitants of the district spontaneously came forward to a man, with the exception , of course, of "A Looker on" and his vile gang, and memoralized the Governor , requesting that he might be appointed ( but Captain Faunce had previously been promised the berth , which prevented Mr. Bean getting it): and this was responded to in Sydney , by many gentlemen of the first respectability in the Colony , thus affording a proof of intrinsic worth which " A Looker on" and his S,Uenda will never be able to show-which , with all their underhand plottings and contrivances they can never undermine. "A Looker on " may rest assured, that we know himthat we will deal with him as he deserves , and that he

121

shall eventually have but little cause to congratulate himself on the active and infamous part he not only took in the Brisbane Water Conspiracy , but in the endeavours he is now making to interrupt the true course of justice, by prejudicing the actions which are already entered against Captain Faunce . We have all along watched the proceedings of these cases narrowly, and will most assuredly bring down on the heads of those parties , who may fancy themselves safe in the back ground, the execrations of an indignant and enraged public.

122

A U S T R A L I A N April 18, 1837

p2, col. 3

BRISBANE WATER.

THE Gazette continues to harp upon the notorious Brisbane Water Cases , and has by this time plainly disclosed that it is the spirit of a partizan , and not the equal unbiassed feeling of a public writer that influences the pen of the author. Upon all that proceeds from that source, in reference to these cases, the public will therefore look with becoming suspicion . We are much mistaken if the truth does not come out at last, without our agency. We may here observe that there is no truth in the assertion of the Gazette, that "Captain FAUNCE has resigned ." Captain FAUNCE has a troublesome district to manage, and queer folks to deal with; but he is careful, prudent, and determined ; and there is as little reason to fear that he will be over-reached by cunning , as that he will be bullied into resignation or neglect of duty by his opponents on the spot, or by the well understood hostility of the Gazette.

123

S Y D N E Y G A Z E T T E July 8, 1837

The three Special Jury cases against Captain Faunce , Police Magistrate at Brisbane Water, for the malicious prosecution of Messrs Donnison , Bean, and Moore, not having concluded , we for the present refrain from making particular allusion to them now-- though two of them are gone through, and we might, if we thought proper, make such remarks as they imperatively call for at our hands. We shall await the issue of the third cause, and then, as before , will be found at our post. We shall also have something to say to the gentleman who writes to his convict overseer , to get in one thousand head of cattle "by hook or by crook," as he classically expresses himself . Depend on it, that some of the parties who have hitherto fancied themselves secure behind the scenes, shall by us be dragged forth from their hiding places, and their proceedings, whether of good report or of bad report be proclaimed openly to the world. In our next number we intend giving a brief historical account of the first case ( Mr. Bean's), with the remarks which may appear to us as being fair to all parties concerned.

p2, cols. 2,3

COURT ACTION

BEAN - DONNISON - MOORE v. CAPTAIN FAUNCE boo FaLse ImpkL3onmen#

127

S Y D N E Y G A Z E T T E Saturday, July 22, 1837. p2,cl-2

THE BRISBANE WATER CASES.

A few days only have transpired since the celebrated cases of Bean v. Faunce, and Moore v. Faunce terminated, by the defendant being cast in damages to the amount of ÂŁ 300 for mat i,ciou6ly putting the former gentleman in irons-and ÂŁ250 for ignonantfy treating the latter with the like indignity , and the public mind highly excited as it was for the moment, has become comparatively calm; Captain Faunce resumes his magisterial duties at at Brisbane Water, to treat, we may fairly assume , his Majesty ' s subjects, who prove obnoxious to his mighty will and pleasure , with similar ignorance and malice-and the affair, it appears is altogether to be forgotten till the ensuing sittings of the Supreme Court, when this would-be military despot is once more to figure before the public in the same amiable and interesting scene. Had such instances of tyranny as have been but too truly depicted in these cases , occurred in Englandthe whole press of the "United Kingdom" would have rung the changes into Captain Faunce's ears , till public indignation had reached the height of something like open rebellion against that Government , who refused to remove such a Magistrate from the Commission of the Peace,-but being at the antipodes in geographical position, it would seem we are equally so as regards all sense of moral principle . This unfortunate country is low indeed in the scale of civilized life, when we find that the stream of injustice is permitted to flow on unchecked , utterly heedless of the ravages

128

which it may inflict on private character. So goes the world-at all events that part of it known as New South Wales, under the present enlightened administration! We have so often alluded to Captain Faunce's freaks at Brisbane Water, that a repetition of all the circumstances attending the commitment and ironing of Messrs. Bean and Moore would be superfluous. A brief outline of the proceedings will now therefore suffice. In the first place we have it from the judgment seat itselffrom the lips of His Honor Mr. Justice Dowling that , had Mr. Bean proceeded against Captain Faunce for committing him for trial on a charge of cattle stealing, instead of for putting him in fetters, he Mr. Dowling , had the case been tried before him, would have certified that there was no cause gat comm.ittak! which would have entitled the plaintiff to much higher damages. Here then is looking to the first act of injustice inflicted on these deeply injured men . They are sent to trial without a shadow of a charge affecting their reputation in any way , and are loaded with chains ; and when Captain Faunce is remonstrated with for his proceeding to a rigour unknown to the lawwhen he is informed that it is illegal to put irons on reputable persons without cause, he maliciously exclaims, "If I "cannot send them to Sydney in irons they shall be forwarded in hand"cuffs"!!! Where can we find language to describe the feelings which such sentiments so expressed give rise to?Where find words sufficiently condemnatory against the Government that upholds a Magistrate in conduct so reprehensible? If a similar charge, as infamous as it proved unfounded , had been brought against Captain Faunce and by the same disreputable characters too, and Mr . Warner, J.P. in his state of "blessed ignorance" had treated him as he thought fit to treat Messrs. Bean and Moore , would he, we enquire, consider ÂŁ 250 or ÂŁ300 a suffi-

129

cient compensation ? What could he have thought of Mr. Warner's moving for a new trial on the ground of excessive damages?-excessive damages, indeed! Had Captain Faunce been a man of property, the Jury would have taught him a lesson not easily to be forgotten; it was the want of proof of his being wealthy which saved his purse . To this alone is he indebted for the lenity shown by the Jury in their verdict. The peculiar features of these cases One is, that show two startling facts. in this Colony under the present administration , no man of character is safe. Let an individual but make himself obnoxious to the powers that be, or to their delegates , he becomes a "marked man;" his ruin, either in a pecuniary point of view, or what is of still more importance, his reputation , is attempted to be undermined , he is dragged to the magisterial bar-thence to the gaolthere loaded with fetters-and lastly exhibited in the felons dock. Look at Mr. Bingle's trial . Look also at the present. The second startling fact is, that raw recruits - perfectly innocent of the duties requisite in a Magistrate , are appointed to the Commission of the Peace , over the heads of well-qualified men. This is a system we have long complained of; but it will never be remedied during the reign of Sir Richard Bourke. That reign, fortunately for the colony, .i4 drawing to a close , we may then soon hope for better days and brighter prospects. God send them speedily say we.

S Y D N E Y G A Z E T T E 17 October, 1837.

p2,c3

Special Juries. The Jury System of New South Wales, in all its branches, works badly. The anticipated alterations in the Jury System in the new charter for the Colony will, it is hoped, be such as to set at rest all complaints on this subject; but, as some time must necessarily elapse before these alterations can be brought into operation, it seems advisable that some means should be adopted to secure or to enforce the attendance of Special Jurors, whose neglect materially hinders the progress of the public business in the Supreme Court. To enforce the attendance of respectable gentlemen on the Petit Jury in criminal cases is, we apprehend, a hopeless case , so long as these Juries are constituted as they now are. To shew the opinion entertained on this subject we may be permitted to mention an anecdote sufficiently illustrative of itself. Asking one day a friend of ours, whose name figures very frequently in the list of fines, why he exhibited so much repugnance to the discharge of his duty as a juror, we received an answer sufficiently laconic. "Better," said he, "be fined five pounds than have my pocket picked of a watch worth fifty!" In the case of Donn,i,5on v. Faunae, tried before the Supreme Court yesterday, out of eighteen Special Jurors summoned to try the case, only four attended, and the cause must, in consequence , have been struck out of the list, had not the plaintiff, to avoid the delay and the ruinous expense of carrying the trial over till another Term, prayed a .ta,2eh, which was granted, and the case proceeded. To touch the purse is the only possible method by which to rouse the slumbering faculties of many wealthy men in this colony; if the fine, therefore, were raised from five to twenty pounds in all cases of nonattendance, without reasonable cause being shewn, we will venture to predict, that the public would soon have less reason to complain of the negligence of Special Jurors.

131

S Y D N E Y G A Z E T T E 19 October 1837

p2,cl-4

Brisbane Water Tyranny.

By the verdict of the Jury, in the case of Donniihon v. Fauncc , delivered in the Supreme Court on Tuesday night, we are freed from the restraint placed upon the liberty of the press by the law of libel, and enabled to lay before our readers, and to offer such comments as we may deem proper, on one of the most outrageous cases of tyranny and injustice that ever came under the cognizance of a British Court of Justice . The greater portion of our columns to-day will be found occupied with the details of this most extraordinary proceeding , but the case itself is one of so much interest, and has already aroused public indignation to such a pitch against the party by whom such tyranny was perpetrated, that we cannot conceive any extent of space misappropriated which is devoted to the exposure of such reckless cruelty. To do justice to the case it will be necessary to give a brief sketch of the circumstances of which this two-day's trial formed the sequel . Mr. Donnison, the plaintiff , and Captain Faunce, the defendant, are both Magistrates of the Territory ; the former has been in the Commission of the Peace for the last eight years , having been appointed to that honorary situation by Governor Darling , and has distinguished himself, since his nomination , by his efficiency as a Magistrate , and by the shrewdness he has manifested in the discharge of his duty on the Bench. As a matter of course an active Justice like Mr. Donnison did not escape the odium which is necessarily entailed on an efficient administrator of the law, in a district like

132

Brisbane Water, which has long been a place noted as the resort of a gang of systematic cattle stealers; and it is to that enmity , and to the extraordinary imbecility or malicious feeling of Captain Faunce, that Mr. Donnison owes the tyrannical oppression under which he has long suffered . Captain Faunce was formerly an officer in the 4th Regt., but having sold out, previous to the departure of his regiment for India, with the intention of becoming a settler in the Colony , his name was placed in the Commission of the Peace and he was subsequently appointed by His Excellency Sir Richard Bourke to the Police Magistracy of Brisbane Water, then vacant by the resignation of Mr. Warner. The only Magistrates resident in the district at the time of Captain Faunce's appointment were Mr. Donnison and Mr. Warner, but the farm of the latter was at such a distance from the Court House , as to prevent his attendance, except on extraordinary occasions. Mr. Donnison , therefore , was the only Magistrate to whom Captain Faunce could look for assistance on the Bench, and being himself entirely ignorant of the district and of the character of its inhabitants , it might naturally have been supposed that he would have endeavoured to avail himself as much as possible of the experience and intimate acquaintance of both, possessed by his brother Magistrate . Instead of this, however, Capt. Faunce's demeanour towards Mr . Donnison was marked, even from the time of his arrival at Brisbane Water, by the most repulsive coldness, a line of conduct not likely to induce Mr. and Donnison to offer much assistance; naturally , more especially when coupled with subsequent proceedings , calculated to excite the belief that Mr. Donnison was indebted for this treatment to some influence behind the scenes ; in fact, (for

133

Mr. D. knew the Colony) to the existence of a black mania, which he had little doubt, was placed opposite to his name in the Government Housebooks. Whether Mr. Donnison was right in that conjecture, subsequent proceedings will enable our readers to judge. It is not our intention now to

enter into any description of the extraordinary proceedings of Captain Faunce in the previous cases of Messrs. Moore and Bean,-the charges and counter-charges,-the confused mass of alleged felonies, perjuries, subornations of perjury, and a score of other crimes never before heard of in any Police Office in the British dominions, and exceeding in ludicrous absurdity anything ever yet ascribed by the fertile brain of the novelist, or romance-writer, to any Justice Guttle of former days; for these have already been before the public, and it is probable will yet come still more prominently forward. We shall leave these for discussion until the trials that are yet in store to edify the Australian community, with Captain Faunce's opinion of the powers of Botany Bay magistrates, shall have been settled. It was when seated on the Bench, endeavouring in some degree to guide Captain Faunce,-to induce him to use something like common sense in his judicial proceedings, that a worthless character named Cape, the originator of the whole disturbance-and, as it would appear, the individual into whose guidance Captain Faunce had entrusted his judgment (if he ever had any),-entered the Court, dragging behind him an individual named Meadows, and in a tone which sufficiently evinced the respect which he paid the Bench, exclaimed "this man", (pointing to Meadows, whom he was dragging forward,) "this man has lost a cow, and I charge Henry Donnison and Willoughby Bean with stealing it."-Our readers will please to perceive that at the time this insolent interruption of the

134

proceedings took place , Mr. Donnison was seated on the Bench, not acting as a Magistrate in the case which had just been dismissed , but aiding Captain Faunce, as much as he found practicable, by his advice . -Disregarding, or looking upon the usual mode of requiring evidence on affidavit before placing an individual , however humble, at the bar , on a charge of felony, as a useless ceremony , the doughty Captain ordered Mr. Donnison to be removed

from his seat, by his side , and to be placed at the bar , to answer , without further preface or preparations , a charge of felony of the most heinous description, for which no better grounds were before him than the mere exclamation of a man of the most infamous character, who was but a few minutes before thwarted in a scheme of revenge against Mr. Bean, by the coolness and prudence of Mr. Donnison. We shall not enter into the details of the accusations ( for there were many) made He was comagainst Mr . Donnison .

mitted by Captain Faunce to take his trial, after a great variety of examinations, on three distinct charges of cattle-stealing, -for perjury ,- for subornation of perjury,-conspiracy, and, (cneda t Judaeuh), Magisterial delinquency !!! Of these, it will suffice to say, that the AttorneyGeneral considered one case of cattlestealing only, as tangible ,- the Judge who presided on a former occasion , Mr. Justice Burton, as well as the Jury empannelled on the trial, declared their conviction of the entire innocence of the parties concerned , and the veriest Tyro in the knowledge of the law, would have pronounced it at once, a case of merely disputed property. it was on the 14th of November that the scene we have thus briefly described took place at the Brisbane Water Police Office ; and it is an actual fact that Capt. Faunce would have committed both Mr. Donnison and Mr. Bean to take their trial without farther ceremony, on a

135

charge of which they had not received the slightest previous notice, had he not been rather staggered by the manner with which Mr. Donnison treated the affair, who seemed to consider it as altogether of so frivolous a nature , that the judicial Captain thought it better to allow the accused parties to leave the Court on parole, until he (listen , ye free Colonists of New South Wales ,) could consult the Attorney-General whether he should commit them! The matter rested thus until Mr. Donnison, after the lapse of some time , called upon Captain Faunce to enquire what further steps he meant to take in the matter, it being necessary that the case should be disposed of in some way or other. Our readers may imagine Mr. Donnison ' s surprise, when told by Capt. Faunce, that the Attorney -General had ordered the matter to remain in htatu quo, until Meadows should proceed against Mr . Bean for the value of the cow, in the Court of Requests! Now, there is something in this, that we confess , utterly exceeds our comprehension. We do not believe that Capt. Faunce was guilty of telling a wilful falsehood, because , we consider it selfevident that the Attorney- General, when the particulars of the case were laid before him, would , as every other man of common sense must, pronounce it to be a case of disputed property , fit only for adjudication in a Civil Court, and consequently a proper case for the jurisdicBut the tion of the Court of Requests. fact that it was a case for such a Court, was in itself a proof that no felony had been committed , and consequently that That no charge could be entertained. the Attorney- General should have pronounced it a case for a Civil Court, and yet directed the charge of felony to be kept hanging over the heads of Messrs. Donnison and Bean, is an anomaly we cannot comprehend , although we have Captain Faunce ' s assurance of the fact.

136

Both Messrs . Donnison and Bean were still at large, and it having been intimated to them that the Attorney-General had abandoned the case, they did not expect

to hear farther of the matter in the shape of a charge against themselves. They were not allowed, however, to remain long in ignorance; a constable made his appearance early one morning at Mr. Donnison ' s residence , and clapping a loaded pistol to his breast, arrested him on a warrant for cattle stealing , signed by Captain Faunce, and conveyed him to the Court, where the Captain presented Mr . Donnison with a letter from the Attorney-General , telling him that L he waa committed by Captain Faunce he would put him on h-to .tn.i-al!! We have a high opinion of the honor and integrity of the Attorney-General, but, we must confess this case has somewhat staggered us. The charge on which Mr. Donnison was committed to take his trial, and placed at the bar by the award of the Attorney -General as Grand Jury, that charge of which he has been pronounced guiltless by the voice of a British Judge and the verdict of a British Jury , we hesitate not to say, was such an one as no man, however low his character , should have been brought to trial for ; yet even before Mr. Donnison was committed ,- before the whole of the evidence against him had been heard,we find the Attorney-General expressing his determination to put him on his trial, for it is absurd to think that , after such an intimation from His Majesty ' s attorney-General , such a man as Captain Faunce would refuse to commit. On the 2nd January Mr . Donnison was first arrested , and he was committed to take his trial on the 4th; from that time up to the 27th, when he was forwarded to Sydney, he was kept in close confinement , unless when brought before Captain Faunce to be examined regarding some fresh charge . On application to allow bail being made to Captain

137

Faunce, that worthy gentleman met their demand by a refusal , alleging that he had been directed by the Attorney -General to reject such a request. We now come to the strangest scene of this most "eventful history." The degradation to which a Magistrate of the territory had been subjected , in being placed at a felon ' s bar,-imprisoned in a felon ' s lock-up, nine feet square , in company with two other gentlemen ,-in a filthy, abominable cell, where the heat was so intolerable as to compel them to divest themselves of all their clothing , but their shirts, and in being called from the Bench "a common criminal;" still, all this it appears was not enough to satiate the gluttonous appetite of the military man, and orders were consequently issued,-orders, as the Chief Constable said, which must be obeyed , that Mr. Donnison , a gentleman holding the Commission of the Peace, together with his companions in misfortune, should be thrown into irons, and this too without the shadow of a cause, if we except a cock- and-bull story of one of Mr. Donnison ' s assigned servants having told the constables nine day' p)ceviouz, that Mr. D. "was a very good master, and he would go through fire and water for him" The arrival of an Attorney the following day, who had been sent for by Mr. Donnison , rather alarmed the fears of the worthy Captain, and the irons were struck off, with the reservation on his part, that " if he could not send them to Sydney in irons, he should at least march them in handcuffs!" The only defence attempted to be set up on the trial, in justification of this "brutal" treatment ( as the AttorneyGeneral well characterized it), was the assertion that a portion of the lock-up was in an insecure state, and that consequently , the prisoners might escape. What this defence was worth, may be inferred from the facts we shall presently

138

adduce.-Not only had no such escape been attempted , but it was notorious that, if such had been wished, numerous opportunities had previously offered. The irons , too, being fastened only to one leg, offered no hindrance to any such attempt, while they sufficiently testify the object for which they were rivetted on. But, what will still more effectually set at rest all doubts on the subject , since that time, as many as eight or nine prisoners, charged with cattle - stealing , have been confined in the same lock-up under Capt. Faunce's superintendence, no repairs

having been effected , or other measures resorted to, that might render it more secure. Many of these prisoners have been convicts still under the sentence of the law, yet not in one instance , either previous to the incarceration of Messrs . Moore, Bean and Donnison , or subsequently , has Capt. Faunce deemed it necessary to put them or any one of them in irons. In fact, the general practice of the Colony does not authorise the magistrate to place any man in irons previous to conviction , unless for gross misconduct or for making the attempt to escape. One other fact only connected with this case we shall lay before our readers that will serve to show still more distinctly the manner in which Captain Faunce acted on this occasion . An assigned servant of Mr. Donnison ' s was brought forward to give evidence against his master, but his testimony not being such as Captain Faunce wished to obtain from him, he was, according to Mr. Donnison ' s statement, immured for ten weeks in a solitary cell, no crime being charged against him, excepting the grievous one of not "bearing false witness against his neighbour." What a pity that the progress of civilization has driven the torture out of use,

c ate., Captain Faunce would have made an excellent satellite of the Star Chamber. We have now placed all the circumstances fully and fairly before our readers.

139

The verdicts of three Special Juries have marked the sense entertained by them of Captain Faunce's procedure in the discharge of his duty as a Magistrate. What are we to judge from conduct such, we believe, as never before disgraced a British Magistrate or stained the annals of a British Court of Justice during the last century. We defy any one to come to any other conclusion than, that either Captain Faunce has been influenced by the most malicious feelings, or that his conduct displays the most fatuous imbecility. In either case we must arrive at the conviction that he is unfit to discharge the duties of a Magistrate, and that, that Government is guilty of tampering with the liberties of its subjects, which has permitted such a man, to continue a single hour in the Commission of the Peace after the facts just stated had become known. It was in the month of January last year that the scenes we have just laid before our readers, were in operation. In the June Sessions of the Supreme Court, two of these cases were tried and the injustice and oppression of which the plaintiffs then, had been the victims, first burst upon the public with the violence of a thunderbolt. The voice of public indignation was loudly expressed, yet, Sir Richard Bourke has persisted, notwithstanding the strongly recorded opinion of the Judge who presided on the former trials as to the imbecility displayed,notwithstanding the eloquent evidence of the verdict of two Special Juries, and, notwithstanding the united remonstrances of every portion of the Public Press, His Excellency, we say, has still persisted in retaining Captain Faunce in the Commission of the Peace and the Police Magistracy of Brisbane Water! We alluded, at the commencement of this article, to the impression produced on Mr. Donnison's mind, that the coldness of Captain Faunce's demeanour

140

towards himself, was the consequence of a black mank placed opposite to his name in the Government House books. Whether the following facts, which we shall as briefly as possible adduce, are confirmatory of the correctness of that impression, we shall leave our readers to determine. Mr. Donnison, conceiving that injustice had been done by Mr. Warner, the then Police Magistrate, in a case that came under his adjudication, wrote to the Government a statement of the facts, demanding an investigation. No notice was taken of his letter, a second and a third met with similar success; but Mr. Donnison was not to be so daunted; he came to Sydney, made his way-with some little difficulty-to the Governor, fought his ground inch by inch, and when His Excellency at last refused to do what he conceived to be justice, he threw up his Commission. This, as it must have provoked publicity, a consummation by no means desired, was not what His Excellency wanted, he therefore refused to accept Mr. D.'s resignation, and to pacify him, he was compelled to promise some inquiry into the matter. The result was Mr. Warner's resignation,-a step to which the Governor was impelled, evidently much against his inclination. This may serve to offer some clue to the origin of the black mark, and to Captain Faunce's it may also serve consequent coldness; to afford a reason for a rather extraordinary discovery made during the course of the trial. Mr. Raymond, one of the clerks in the Colonial Secretary's office, was summoned to give evidence regarding a correspondence between Capt. Faunce and the Government, with respect to the payment of the verdict and expenses in the cases of Bean v. Faunce and Mooke v. Faunce. Mr. Raymond produced Capt. Faunce's letter of application to the Government, which was handed to Mr. Donnison, who had just time enough to peruse the Governor's Minute, on the

141

folded corner of the letter , regretting that he had not the power to comply with Captain Faunce's request , but advising him to apply to the Secretary of State, to whom he should recommend the application . The Attorney-General as soon as he observed the Governor ' s Minute, snatched the letter from Mr. Donnison's hands, but not until it had been sufficiently long there to convince Mr. Donnison that he was not far wrong when he construed the "instructions " Captain Faunce spoke of his intention of adhering to, as emanating from a high source, -as it also did to convince the Colonists of New South Wales, of the manner in which their economical Governor would spend their wealth in upholding such Justices as our Military Nero.

142

S Y D N E Y G A Z E T T E 19 October 1837

p2,c5-7 p3,cl-4

MONDAY , OCTOBER 16, 1837. Berate the Acting Chi,e6 Juh.tLce, and the boUowLng Special Jun. y. - Messrs. T. Gore ( foreman ), J. Blackman, H. Hume, John Lord, E. Haslingden, C. Fairs, Henry Fisher, J. Verge , E. Holt, J. Tooth, J. Giles, and J. L. Scarvill , Esquires. Donnison v. Faunce .-Mr. Donnison , who con-

ducted his own case, said that this was an action of trespass , brought by himself against Captain Faunce; in entering into the details of his case he should have to address them at considerable length, but he would make his remarks as short as possible :- He had been illegally apprehended by the defendant , taken from the Bench where he was administering justice, imprisoned , ironed , dragged to Sydney Gaol, and before the Supreme Court without any shadow of cause; and in that way might any of the jurors be served, were it not that they could afterwards come before a jury for redress . It might appear incomprehensible how the defendant could have acted so, but , before he concluded , he should be able to show the jury that he had been acted on by improper influence-that he had been influenced from the lowest quarters , as well as the highest. Captain Faunce arrived at Brisbane Water, as Police Magistrate , in October , 1836, superseding Mr. Warner . Between Mr. W. and himself (Mr. D.) there had been several differences , particularly one, which he must enter into in detail:-In consequence of some communication with the Governor , Mr. Warner had received instructions to appoint two assessors to assist him in the assignment of convicts . Mr. Warner named a man who had been constable , and the pound -keeper; and, on his ( Mr. D.) asking him how it happened, he said he could not tell, it must be some mistake: he never dreamed that Mr. Warner was acting About this time Mr. treacherously towards him . Moore wrote a letter of complaint to the Governor, on this subject , which excited Mr. W.'s ire. In

143

December , 1835, Moore was apprehended with two men, one an assigned servant to himself, and the other to Mr . D. When Moore got to the Court, he found the depositions already cut and dried; and Mr. Warner wished him (Mr. D. ) not to sit on the Bench, as he understood he was a partner, or in some way connected with Mr. Moore; and upon his declaring that he was not, Mr. Warner still wished him to leave the Bench : and Mr. Cape, the prosecutor of Mr. Moore , entered a protest on the proceedings against his sitting on the Bench, and he (Mr. D. ) entered a protest against the committal of Mr. Moore. Perhaps he had acted irregularly in so doing : he ought to have committed Mr. Cape on the spot for contempt of Court. He wished the case to be sent to the Sydney Bench to be disposed of; after some discussion , this was agreed to, and Mr. Moore was locked up; but at his suggestion, was afterwards admitted to bail, and came to Sydney . When the proceedings were closed, he wrote to the Governor a full statement of the circumstances of the case . In the following month he wrote a second letter; and, in March, a third-to none of which did he receive any answer. Determined not to be foiled, he wrote to to the Private Secretary , and called with the letter himself. Mr. Holden said that the case was disposed of and the men discharged ; and that the Governor was very busy , and could not see him. After some delay, however , he was admitted to the Governor, and requested his Excellency to investigate the case , which he declined doing; upon which he tendered his resignation of the Magistracy, which his Excellency refused to take , and consented to investigate part of the matter - but with that part he would not trouble the Court . He was subsequently referred to the Attorney -General, but previously to that he had written a letter to the Colonial Secretary, an ex-part of which he would he would read , to show that he had always courted enquiry. He was then informed that the Governor considered it was a private letter ; upon which he wrote to the Private Secretary that it was a public and not a private charge; so that it was evident he always courted investigation . He then officially laid a statement of the circumstances before the Attorney General , calling that officer ' s attention to his (Mr. D. ) letter to the Colonial Secretary, but to

144

that communication he received no answer. In August, the charge still lying over Mr. Moore's head , Mr. M. applied to the Governor , when his Excellency was pleased to say An objection was here taken to what the Governor said to Mr. Moore being taken as evidence against Captain Faunce, which the Judge held to be good. Mr. D. continued .-In October, 1836, Captain Faunce having arrived at Brisbane Water, Mr. Moore was apprehended on another charge of cattle-stealing . On the 1st of November he (Mr. D.) went to the Court-house , not to act as a Magistrate , but as a witness , and was sitting near the door, when Captain Faunce ordered him out, and would not let him stop, for fear he should hear what was going on. During this examination Mr. Bean was a witness , and said he would not believe Richard Cape on his oath, and that he was a notorious cattle stealer; on this, Cape made a complaint against Bean for perjury , and the defendant issued a summons for Mr. Bean to attend the Bench on that charge. On the 14th November he (Mr. D. ) went to the Court -house, and found Cape giving evidence against Bean ; he did not intend to sit as a magistrate , but he told Captain Faunce that the evidence of Cape had been refused on a former occasion at that Bench , and that as it was only oath to oath he did not think it was a case in which the defendant could commit. Cape then went to the door of the Court , and returned, pulling in a man named Meadows, saying "This man has lost a cow, and I accuse Henry Donnison and Willoughby Bean of stealing it. Notwithstanding many witnesses had been subpoenaed to attend in the perjury case, not one was heard but Cape. Why was that ? Was it not evident that the witnesses had been summoned for perjury in order that the charge of cattle stealing might be kept close , and the parties taken by surprise. By the depositions , which the defendant would of course lay before the jury, it would be perceived that Meadows was not a man to be believed ; and, at the trial in the Supreme Court , his Honor who was then on the Bench said that , the case rested on the unsupported evidence of Meadows. In the course of the examination he drew the attention of Captain Faunce to the circular that was sent to the

145

Magistrates when Peel' s Acts were adopted, the first clause of which relates to the credibility of witnesses ; when Captain Faunce said "I must act according to my instructions ." After that he (Mr. D.) said no more ; if the Captain had received instructions , it was no use talking to the Magistrate. When Captain Faunce asked him what he had to say why he should not be committed , he said the case was entirely frivolous; and, after some discussion, he was allowed to go at large on parole in company with Mr. Bean. It had been said that this showed leniency , but it cut two ways: if the defendant really thought them guilty, it was highly culpable, but he believed that the defendant thought them innocent and never wanted to commit them, he was waiting for further instructions . During the examination Cape stood behind Meadows prompting him, and when he pointed this out to Captain Faunce, Cape was desired to go out; soon afterwards, hearing Cape ' s voice, he found that he was standing listening at the door, and it was not until he pointed it out to Captain Faunce a second time that Cape was removed away from the Court. Thus the defendant, who had at once ordered him out of Court in Moore's case did not remove Cape from the Court until he had been driven from place to place. He then came up to Sydney, and knowing that there was only one Magistrate in the district , who could not admit them to bail in case of committal , he, in company with Mr. Bean , called at the Attorney- General 's office, but that gentleman being out of town, they saw Mr. Fisher, who pledged himself that they should be put to no inconvenience on that account. On his return to Brisbane Water he called on the defendant, who told him that the Attorney- General had written to him to say that Meadows must bring a civil action in the Court of Requests , and that the case must lie over till then. He told Captain Faunce that he considered it was most monstrous , that a charge of this kind should be allowed to hang over his head until Meadows thought fit to sue Mr. Bean in the Court of Requests , especially as he had then allowed the case to stand over for three years. Soon after this Mr. Bean returned from Sydney and said that the Attorney- General had dropped the proceedings ; they went to Captain Faunce and told him so , when he said that there must be some

146

mistake , but he would let them know as soon as any communication arrived from the AttorneyGeneral. He did let them know with a vengeance; for the first intimation he got of any communication having been received was by a man clapping a pistol to his breast and telling him that he had a warrant against him for cattle stealing ; the man would not let him see the warrant , but merely said he apprehended him for cattle stealing. Being early in the morning he asked him if he would let him have some breakfast, to which, after some demur, he acceded, and they proceeded to the house together, the man making a most formidable display of his pistol ; when they got to the house Mrs. Donnison unfortunately came into the verandah, and received a shock from it which she has not yet recovered . After they had had some breakfast they proceeded to the Court-house, where Captain Faunce put into his hands a letter from the Attorney-General. By this letter the jury would perceive that additional information had been given to the Attorney-General-what that information was he could not conceive ; but there was one very startling fact, the Attorney- General , as Grand Jury, says if you are committed I will put you on your trial. What would be said in England if the Middlesex Grand Jury was to say to the Bow-street Magistrates , if you will commit a prisoner we will find a true bill against him? Mr. Bean was then called in and asked if he had written to the Crown Solicitor, and upon his answering in the negative, the defendant said it would have been better for Donnison if he had not. It had been said that the defendant was not bound to hear witnesses to clear the character of the prisoners; he certainly was not bound to hear witnesses pno and con unless the case required it, but a Magistrate is obliged to hear all evidence that bears on a case, and there were witnesses in attendance who would have proved that Bean sold him the cow , but the defendant would not hear them, he said, "in my ministerial discretion I decline to hear them , you are committed ." Among many other charges that were preferred against him this was a charge of magisterial delinquency: charge , he had no doubt his honor would tell the jury, was one which the defendant had no power to enquire into ; the Supreme Court is the only place where that could be tried. It

147

was on the 4th January that he was committed on the charge of Meadow's cow, and on the 5th he was charged with stealing a cow in company with Mr. Moore ; the principal evidence against them was that of a servant to Mr. Moore, who ought to have been termed King's evidence, as he had formerly been committed on the charge. The two men who had been committed with Mr. Moore on a former occasion were treated very differently, while Mr. Moore's man was allowed every indulgence , his (Mr. D.'s ) man was put into a cell and kept there for ten weeks , being told all the time to speak the truth,-but the man knew nothing , and he would not invent a story : it was a dreadful trial for a man in his class of life, but he withstood it. Mr. Moore ' s man, from some mistake in his drilling, instead of swearing that the cow belonged to Mr. Cape , swore that it belonged to his master , and on that evidence they were committed for trial, and an information filed against them. From the 5th to the 10th January, he was kept in confinement , without any evidence being taken against him ,-in fact the man that was to have given evidence had been sent to conduct a lady to Brisbane Water. On the 10th he was charged with assisting Mr. Moore to steal six head of cattle, the property of one Bramble , merely because, as he was riding through the bush, he helped Mr . Moore to drive in a cow that Bramble claimed. Another charge was conspiracy to injure Bramble's character by conspiring with Mr. Bean to accuse him of arson . The district of was a kind of debateable land,-it was neither in the districts of Brisbane Water, Maitland, nor Newcastle : hence arose those gangs of cattle stealers and grog-sellers , and his efforts to suppress them, which brought upon them the charges that When Bramble was were afterwards exhibited. before the Bench he cross-examined him, when Bramble said, "I say, Donnison , did I ever steal anything from you ," and on his calling upon Capt. Faunce for protection from insolence , the defendant said, "I do not see how I can stop him : you are only a common criminal ," but, upon his asking him as a favor not to allow him to be insulted, he told Bramble not to answer so. This lesson was not lost, for the next day the Clerk of the Bench was passing the lock-up, and, on his asking him when a mail would be made up for Sydney, he replied, "don't speak to me, you common

148

criminal." When Bramble was asked why he had let the charge lie over for a long time, he said he had been bound to the peace , which, he thought, prevented him from laying the charge, and it would not have been brought then , if he had not thought that he ( Mr. D.) had acted treacherously towards him, with regard to some cattle ; when Bramble was asked why he made the charge of perjury, the defendant answered "I put that in," and it would be found, on reference to the depositions , that the defendant had also inserted the charge of subornation of perjury. Mr. Warner was then examined,

and after that he ( Mr. D.) was committed. The unfortunate man Smith , who had been so long in the cells, was then brought forward and committed for trial, but the law officers had not yet dared to bring him to trial. A professional gentleman, Mr. Plaistowe , at this time came over , and had it not been for him it would have been difficult, in that isolated place , to have procured witnesses, for persons were actually driven away from the neighbourhood of the lock-up. After the first committal they applied for bail , which was refused them, as the defendant said he had been instructed by the Attorney-General not to take bail, and asked if he ( Mr. D.) would not send for his b&Lend Warner. Mr. Warner came down two or three days afterwards , and Mr . Bean demanded bail, but it was refused him . On the 14th he (Mr. D.,) very much wished to go home, and applied to the defendant , who said that he was very sorry to be obliged to send a constable with him, to which he replied he could not think of going without. He got ready to go home , and told the constable he was ready, when he said he believed there were further orders; and Captain Faunce told him none of the constables would take him, as they were afraid he might be rescued. About half-an-hour after this, the lockup-keeper came in and said he was very sorry but he must iron them; the Chief Constable was called and asked if he had seen any attempts at escape, or had any warrant ; he said no , the Captain' s order was enough for him, and they were all three ironed. This was most degrading ; there was no attempt at escape, no violence, it was clear tyranny. The irons were not removed until the next day at the instance of Mr. Plaistowe . Look at all the charges,

149

what were they?-there was being accessary to Mr. Bean, accessary to Mr. Moore, subornation of perjury, but no overt act of his own. He felt confident that he was the person aimed at all along, and it was a subject of great grief to him that he had caused so much annoyance to his friends, as he When people are confined , there is such a had. formality as a warrant, and when they got a lawyer they got copies they applied to see the warrants ; of warrants for their apprehension , but no warrants for their detention and commital until some time and he had no hesitation in saying that afterwards; they were fabricated , and the Clerk of the Court would not venture to swear that they were made

when they ought to have been; so that their confinement was as illegal as it was oppressive. While they were laying in the lock - up a heavy squall came on, and they were suddenly ordered to proceed to Sydney; the vessel by which they were to proceed was lying across the water to the Southward, a distance of nearly five miles , and it would have been impossible for them to have pulled to her; she was only a small vessel of fourteen tons, heavily laden, and with no accommodation but her deck , and could not have gone to sea , and they protested against going, and under the protest they were allowed to remain. The vessel laid there for five days , and at the end of that time they were sent on board and came to Sydney . A day or two after their arrival they were admitted to bail by a Judge , and returned to Brisbane Water. Their Solicitor , Mr. Pogson, having died , their papers were placed in the hands of Mr. Unwin, and the first question he asked was what is your defence? to which he replied none , but that he bought of Mr. Bean. Mr. Unwin then took down a list of the charges that had been preferred against him; three cases of cattle stealing , perjury , subornation of perjury, conspiracy, and Magisterial delinquency. This list was taken to the Attorney General, who struck his pen through all but the charges of cattle stealing, but refused to say which case he would try first , or that if one failed he would drop the others, so that he (Mr . D.) was put to the expense of preparing briefs for his counsel in each of the cases; it was true only one was tried, for the other two cases were so slight that even the ingenuity

150

of a lawyer could not frame an indictment on them. On the day of his trial what was his surprise to find that he was indicted for stealing, and Mr. Bean for comforting him, in stealing Meadow's cows; and he had been told, by those who knew, that it was impossible Bean could be convicted under that form of indictment. It might be asked why there should be such a wish to screen Bean; there is such a thing as an old friend, and it would be very inconvenient to meet an old friend and say I have just hanged or transported your son, and it is said that the Governor and Mr. Bean's father are on terms of friendship. Between the first and second examination two papers were given in by Mr. Bean to Captain Faunce; the first was a sale from Manning to Bean of some cattle, and the second a muster in which Meadow's cow was mentioned. At the trial Captain Faunce was examined, but these papers were not forthcoming. No defence was made; the case was left to the Jury, and without retiring from the box they returned a verdict of Not Guilty. The defendant was not a young man, he could not have erred through ignorance; he had been Captain and Adjutant in the 4th Regiment many years; and the Jury would recollect that in 1836 the Magistracy was purged of all improper characters who had been kept in the Commission, merely until more eligible persons arrived; Capt. Faunce was one of those eligibles, and had been appointed to the Police Magistracy at Brisbane Water, and no one could suspect the illustrious individual at the head of the Government of this colony, of appointing an ignorant and improper person to such an important situation. The fact was, that Captain Faunce had been acted on by improper influence; he had been acted on by the family of the Capes, to whom he (Mr. D.) was an enemy; he had been acted on by the clerk of the court, and he was an enemy to him. He had been acted on by all the rougues and vagabonds in the district, and he was an enemy to them; and he was afraid the defendant had been influenced in much higher quarters. Notwithstanding all that had been said and proved respecting Captain Faunce, he still remains at Brisbane Water in spite of public opinion, so that it is evident there was some strong influence acting here in his favor. The actions that had been brought before this Court had been met with technical objections;

151

but this, he hoped, would be met fairly and openly on the merits ; it was necessary for the defendant, it was necessary for all implicated , it was necessary in order that the public might be satisfied , that the stream of justice is unpolluted , that it should be so. He thought he had showed enough to make ,out a strong case for the interference of the Jury and he would only detain them a few moments on the subject of damages. If such a case had happened in England , the damages would not have been put down lower than ÂŁ5,000. In fact, no man could compensate him for what he had suffered through the defendant , and he would ask the Jury whether they would submit to the ironing alone for any sum. There was no way in which he could recover compensation but through an action; if there had been a tribunal at which the matter could have been investigated , he would have gone to it. What property the defendant was possessed of he was not aware, nor who would pay the costs and damages: it had been said that the Secretary of State had been appealed to, to pay them , or they might be paid by those who gave the defendant instructions. Mr. R. J. Want and Mr. Richardson , clerk to Messrs. Unwin and Want proved that the usual notices of action required by the Statute to be given to a Magistrate , were given on the 13th March, and Mr. Elyard a clerk in the Supreme Court office, that the action was not commenced until the 17th April. Mr. Willoughby Bean called and examined by Mr. Donnison-I am a settler at Brisbane Water. On the 1st of November I gave evidence against Mr. Moore; I was summoned to attend the police office on a charge of perjury preferred by Mr. Richard Cape; I attended on the 14th November; Cape was the only person examined; Meadows, King , and Hogan were at the door to be examined, but were not . During my examination you remarked that Cape's evidence had been refused on a former occasion . When Cape found that Captain Faunce was undecided whether he would commit me for the perjury, he went out of Court and returned pulling Meadows into the Court saying, this man has lost a cow and I accuse these two men, meaning you and me of stealing it; you were on the

152

bench at the time, but not acting as a Magistrate. Captain Faunce , on your remonstrance ordered Cape and Meadows out of Court until the perjury case was disposed of; as soon as the defendant had resolved to send the case to the AttorneyGeneral he ordered a constable to bring in Cape and Meadows and proceeded to investigate the charge of stealing Meadow ' s cow; you said a good deal on the subject of the credibility of the witnesses, especially Cape, Meadows, and Hillier, when the defendant said such evidence was received in the Supreme Court and he must abide by his instructions ; you asked him if by instructions he meant the circular that was sent to the Magistrates when Peel ' s Acts were adopted, he said no; you recommended Capt. Faunce to send the proceedings to the Attorney -General and he said he would , and we were allowed to go at large on our parole ; about a week after this I came to Sydney and called on Mr. Fisher the Crown Solicitor; on the 20d November he told me that the Attorney- General intended to take no further proceedings and I might return to the district and make myself perfectly easy; I returned to Brisbane Water and on December 26th told Captain Faunce in your presence what the Crown Solicitor had said ; he said that he had received a communication from the Attorney-General and he believed that the proceedings were not to be dropped and he would let us know when he received any further information ; he said that he had then received a letter from the Attorney-General that the proceedings were to be suspended until Meadows could bring an action in the Court of Requests; you expressed your doubts and said there must be some mistake; from what Mr. Fisher said I considered the matter entirely at an end and took no trouble in procuring the evidence I had gone to Sydney to prepare; you had no means of proving your innocence but through me from whom you purchased the cow; I got the cow from Mr. Manning in a settlement of accounts; I told Mr. Fisher that I intended to prosecute Capt. Faunce and he said "if you do we must defend him;" (Mr. Donnison remarked that it was to this indiscreet threat they owed all the subsequent proceedings .) On January 2nd I was apprehended by I received no previous two armed constables;

153

notice from Captain Faunce that he had had communication with the Attorney-General; when I got to the lock-up you were there in custody; Captain Faunce examined me very minutely about my conversation with Mr. Fisher; he asked me if I had written to him, I said I had not and he said it would have been better for you if you had not; we were examined on the 2nd and 3rd and committed on Cape , Bourke, Thomson and the 4th January; Scott the clerk were examined ; when we were committed we applied for bail; Capt. Faunce said he could not bail us being a single Magistrate; we both related our conversations with Mr. Fisher relative to bail and he said he had received instructions from the Attorney- General not to take bail; after the 4th January I was not examined; you were examined on the 5th and afterwards on the 10th; on the 14th January you sent a message to Captain Faunce requesting to be allowed to go home, which I understood was acceded to; I saw a constable prepare to go with you; I afterwards heard Captain Faunce say that the constables would not take you home for fear you should be rescued; about half an hour after that the lock- up keeper, Gorman, said we were to be ironed on one leg by order of Captain Faunce; one iron was put on your leg ; you asked the Chief Constable if we had been riotous or attempted to escape, he said no; you asked him if he had any warrant, he said the Captain ' s orders were enough for him; we could have escaped both before and after the irons were put on if we had wished ; we were often walking in the garden before the constables were up in the morning ; we were in irons from about two o'clock on the 14th until ten o'clock on the 15th; they were taken off on the interference of Mr. Plastowe who came to me as a friend; I do not think Captain Faunce saw us while we were the lock-up was a most filthy hole swarmin irons; ing with bugs ; during the hot winds it was like an oven ; the room was about three yards square; we had our own beds on the floor. Cross-examined. -Captain Faunce had nothing to do with the smallness of the lock-up; it was built before he went to Brisbane Water; the timber was not unsound ; on the 3d and 4th January, we were allowed to remain in the police-office; it was a much better place than the lock- up; Mr . R. Cape is the son of old Mr. Cape, a schoolmaster in Syd-

154

ney, and brother to Mr. Cape of the college; when Mr. Donnison had told Captain Faunce that Cape's evidence had been refused, he should have received it with caution; Meadows came free to the colony; he has never been charged in any court with any offence; when he was overseer to Mr. Richards, he built a vessel there without his master's leave; I once gave Meadows a good character, but that was before I found this out; [*] Captain Faunce said he would send the papers in the perjury case to the Attorney General; I did not hear Captain Faunce say the case must be dismissed, as I had some foundation for what I had said; Captain Faunce did not object to Mr. Donnison going home until he said the constables would not take him; I never heard that the cutter Laun.a belonged to Mr. Donnison; I was present when Scott was examined; Mr. Donnison put a great many questions to him to make him explain the charges he had made; Capt. Faunce said he thought some of it ought not to go down, but Mr. Donnison said that as the charges had gone down it was only fair the explanation should go down to; Donnison told Captain Faunce that he had got the cow from me, but I do not know whether he mentioned the date; I left Mr. Manning's employ in 1834, and was succeeded by Mr. Richard Cape, who, I believe, acknowledged Meadows claim to the cow, but he never gave her up; the cow became mine with some others on a settlement of accounts with Mr. Manning; the cow was running on Mr. Donnison's farm, and he complained to me that she was troublesome, and I told him he might have her for El, the sum that he had given me for some cattle of Mr. Dangar's; I was getting on my horse at the time, and told Mr. Donnison to pay the money to Mr. Watson, and get the cow; Mr. Watson was at the police-office to give evidence of this, but Captain Faunce would not examine him; I told Captain Faunce no document passed between us at the sale of the cow; it did not surprise me when Captain Faunce said he should apply to the Attorney General to know whether we were to be admitted to bail, as the impression on my mind was that he often consulted him; when Mr. Warner came, he agreed with Captain Faunce that it was not a case for bail; while confined in the lock-up we were generally allowed to see our friends. [*] Bean aULude's hene to .the "good character" nesentence he gave .to Geoage Meadow's in Febn.uany, The 1830 when Meadow's apptLed Son. a gtan.t os Land. kecon.ded, page when.e the "good chan.acte-t" )teserence .vthis T.U.L. 4/5525(895), i6 given at the end os anttcLe Saom the Sydney Gazette dated 19 October. 1837.

155

Re-examined. -I explained to Captain Faunce that after I had given Meadows that character I had detected him stealing from his master; it was necessary for our health that we should be allowed to walk about sometimes ; when Mr. Warner summoned me about Meadows' cow, I considered it was a case for a civil court; several witnesses were in attendance to give evidence on our behalf, but Captain Faunce refused to hear them. It being near six o ' clock , the court was adjourned for the night.

TUESDAY, OCTOBER 17. Mr. Justice Kinchela.-In 1836 I was AttorneyGeneral ; some letters from the Colonial Secretary were referred to; they were about a quarrel between you and Mr. Warner and Mr. Cape ; there was nothing about a charge of felony. It was the practice of my office to return all original documents when an opinion was transmitted to the Government. I have no recollection of any depositions being laid before me. Cross - examined .-There was a deal of squabbling between the Magistrates at Brisbane Water; they were always quarrelling about something; Mr. Moore and Mr . Cape were in some way concerned in it. Upon referring to the letter book of the office, I find that the documents transmitted to me by the Colonial Secretary were original documents, It was a and I returned them in January , 1836. Warner and Mr. Donnison . dispute between Mr about the committal of Mr. Moore , when Mr. Cape and Mr. Warner objected to Mr. Donnison sitting on the Bench; (letter from Dr. Kinchela to the Colonial Secretary read ). I cannot say whether it was before me in any other charge; it was my opinion that , if Mr. Warner thought there was a charge against Moore , he should have committed him himself ; I thought there was an irregularity on both sides. Re-examined- I got several letters respecting the quarrels of the magistrates at Brisbane Water. There was nothing to prevent Mr. Warner committing himself ; I exercised a discretion when a committal was sent to me whether I would commit I never wrote to a magistrate to say that if he committed I would put a person on his trial. By the Attorney- General-If the depositions came before me through the regular course instead of through the Colonial Secretary , I would most

156

likely have placed him on his trial. By Mr. Donnison-The magistrates should exercise a discretion as to the credibility of the witnesses, but it is a dangerous thing for magistrates to discharge, because they do not think a witness worthy of credit; that is a matter should be left to another tribunal. James Drew .- I was formerly chief constable at Brisbane Water; I resigned in July last because constable Carpenter , after the last trial, said it was Drew done the Captain ; nothing was said to me by Captain Faunce about the loss occasioned by my evidence ; I recollect Mr. Donnison being in custody at the lock- up at Brisbane Water in January last; he was in custody from the 2nd to the 23rd January; I saw Mr. Donnison with an iron on his leg on the 14th and 15th; Captain Faunce said to me these people, meaning Messrs. Moore, Donnison , and Bean, must be put in irons; Captain Faunce was in front of the police-office; the lockup-keeper put the irons on ; several reports had been made to Captain Faunce that the prisoners were not safe ; the foundation of the lock-up was entirely rotten; when they were brought out to be ironed Mr. Donnison said I had better go to the captain a second time, I said it was the captain's orders and I must obey them; I had rather a doubt that Mr. Donnison would escape ; I went to Tuggerah Beach and saw Mr. Donnison ' s cobler, and told him his master had been taken on a warant; he said he was very sorry, he was a good master and he would go through fire and water for him; this was on the 2nd, and the irons were not put on until the 14th; it was the 14th I told Captain Faunce what the cobler had said; Mr . Donnison was under examination in November; he was allowed to go on parole ; the lock-up has not been repaired yet; in August last there were six or seven prisoners in the lock- up, three of them for cattle stealing ; no prisoners have been ironed; one of the prisoners was sentenced to an ironed gang by Mr. Donnison and Captain Faunce; he got away from the constable ; he was taken and sentenced a second time ; he was confined in the lock-up and did not get out.

157

Cross-examined .- Mr. Donnison had got leave from Captain Faunce to go home , and the constable I warned said it would not be safe ; I told Captain Faunce I did not think it safe to let Donnison go home; among other things I told him what the shoemaker had said; I cannot swear that Captain Faunce said if that be so these people must be ironed ; I swear that what Captain Faunce said I I always took as an order to put the irons on; considered it an order ; constable Carpenter wanted me to say I took it on myself , he passed many questions , he did not say it ; as soon as Captain Faunce went away I ordered the irons to be put this was three or four hours after the converon; the next morning Captain Faunce told me sation; that I had been very sharp , and he did not intend it as an order, Mr. Donnison never said a word to I went to Brisbane Water me about these trials; Mr. Donnison and tried to recall my resignation; said I was a very foolish man to throw such a salary away , and interested himself for me; I know George Roberts , he was in my employ in February I do not recollect hearing Roberts say, about last; a week before the trial , I wonder how the 6wett6 nor did I say that I will get on this day week; hoped they would get tagged, or I should be dismissed for ironing them; there might have been a talk on the subject , but I never made use of the I never said if I had had the captain's words; order I should be all right; I do not recollect what was said; one man had been ironed in the lock-up I believe I asked Roberts to bring me some before; I might have said previsions down from Sydney; if Bean , Moore, and Donnison were acquitted he need not bring them, as I should not stop at Brisbane Water, I did not say to Roberts certainly I had no order. Re-examined -I took the irons off by order of I had seen Mr. Plaistowe before Captain Faunce ; Mr. Plaistowe was with Captain Faunce that; before me the following morning; there was no other magistrate in the district but Mr. Donnison when I applied to be reinstated.

Mr. G. K. Holden-In May, 1836, I was private secretary to the Governor. (As Capt. Faunce was not present at the conversation between Mr. Holden and the plaintiff, His Honor decided that it could not be taken as evidence against the defendant.)

158

Mr. H. G. Watson-I am a settler residing at Brisbane Water; I know these two papers; this is a note of sale of cattle from Mr. Manning to Mr. Bean; on the 4th January, 1836, i was at the Court House at Brisbane Water, when this paper was given to Mr. Faunce by Mr. Bean, with a request that it might be sent to Sydney; that is a muster of cattle, and was also given to Capt. Faunce; I next saw the papers a few days after the criminal trial, when Capt. Faunce handed them to Mr. Bean; I was aware of Mr. Bean having sold Mr. Donnison a cow in April, 1834; Mr. Bean wrote me word he had sold it; I do not know where the letter is, or whether I destroyed it; I attended the Court House to give evidence in January, 1837; I was not examined; I understood no evidence would be received; I heard Mr. Donnison ask Captain Faunce if he thought it was a bailable offence; Captain Faunce said he did, and Mr. Donnison requested Capt. Faunce to write a certificate to that effect, and append it to the depositions; Bramble was examined for an hour, while Mr. Donnison was closely locked up. Cross-examined-I do not know that those documents were in Court at the trial; I was not examined on the trial of Messrs. Donnison and Bean; I heard that Mr. Warner did not consider it a bailable offence, and Captain Faunce could not bail singly. Mr. John Plaistowe, attorney-On the 12th January I arrived at Brisbane Water; I went there in consequence of a letter to my brother,

detailing the circumstances, to see if I could be of any service to my brother's friend; I carried a message from Mr. Donnison to Captain Faunce, requesting that he might be allowed to go home to see his family; and arrange his papers, before he went to Sydney; Capt. Faunce said that he might go, and appeared to regret that he must send him in charge of a constable; it was on the 14th he was to go; on the evening of the 14th a message came to me, and on the following morning I went to the lock-up; Mr. Donnison had an iron on one leg, the rest of the iron was brought up the side, and tied with a handkerchief; I went to Captain Faunce, and asked him the reason they had been

159

ironed ; he said his reason was, that a constable of his had heard one of Mr. Donnison's men say he would go through fire and water, and that, in a conversation he had had with him respecting going home, Mr. Donnison said , " If my men were to rise and take me away from your constable, what could he do?"-after some conversation Capt. Faunce consented to order the irons to be struck off; I told Captain Faunce I did not care whether the irons were taken off , and if he would not grant it as a matter of right I should prepare affidavits and bring them to Sydney , lay them before a Judge, and get an order to have the irons taken off and the prisoners forwarded to Sydney; Capt. Faunce gave me a written order to the chief constable to take off the irons; I said that if anything happened to the vessel , and they should be drowned with the irons on, in my opinion it would be murder in him; Captain Faunce said, "If I cannot send them in irons, I can or will march them in handcuffs ;" Capt. Faunce appeared to wish to impress on my mind that the irons had been put on for safety. Cross-examined - I argued with Captain Faunce as to his power to put irons on . I will not undertake to say whether he said, I can , or I will send them up in irons. Mr. James Raymond , clerk in the office of the Colonial Secretary - I have no recommendation to the Secretary of State to pay the damages in this action for Captain Faunce ; I have a letter from Captain Faunce to the Colonial Secretary. [Letter produced and objected to by the Attorney -General, on account of the Governor ' s minute being on the back of it.] Mr. Foster rose to address the Court on the point , when the Attorney- General objected to his being heard, Mr. Donnison conducting his own case ; the learned gentleman cited Mocatta v. Brown, a case tried in 1835, when Mr. Baron Alderson declined to hear counsel under similar circumstances . Mr. Windeyer followed on the same side. His Honor at once decided that a person conducting his own case should be assisted by counsel in points of law. The learned Judge , who read the letter , said it was of no importance ; the Governor's minute declined having anything to do with the matter . The letter was then withdrawn. The different documents put in were read and the plaintiff closed his case.

160

The Attorney-General, followed by Mr. Windeyer, took a technical objection, which was overruled by His Honor.

The Attorney General then addressed the Jury at considerable length, contending that so far from the defendant not having had had reasonable or probable cause for what he had done, there was a strong p,Q bacLe case against plaintiff, and that where a Magistrate had reasonable suspicion of the innocence of a prisoner, he was bound by the Act of Council, 7th Geo.IV. to commit, but as this part of the case was entirely withdrawn from the consideration of the Jury, we shall not follow the arguments of the learned gentleman on the point. With regard to the ironing, the learned gentleman said it was certainly the weak part of their case-no person being present at the conversation between Drew and Faunce-but since the last trial they had a piece of evidence throw an entirely different light on the subject. A man named Roberts had a conversation with Drew, soon after the occurrence took place, in which Drew said that he hoped the swells would get lagged, or he should get dismissed for ironing of them without the Captain's order; Roberts thought nothing of the conversation at the time, but after the last trials observing in the newspapers what Drew had sworn, and being convinced that in swearing he was ordered by Captain Faunce, he had sworn falsely, he mentioned the matter to Captain Faunce, and would be put into the box. In considering the evidence on this point the Jury must be satisfied that the irons were put on by Captain Faunce's order, and that it was unnecessary to put them on. If Captain Faunce had meant to have had the prisoners ironed, would he not have have seen it done; or if Drew had considered what Captain Faunce said as an order, would he have allowed several hours to elapse without putting the irons on, after he had been told to do so. The Jury must look at the entire of Faunce's conduct, and say whether they thought it probable that the defendant could put irons on for the mere purpose of degrading him, looking at the isolated fact could they believe it. He would agree with the plaintiff that any man who could behave in so corrupt, so cruel, so oppressive, and he would add so brutal a manner, would deserve to be cast in the The Jury could not for a mohighest damages.

161

ment suppose that Captain Faunce , an officer, a gentleman , a man of education , could act so: what motive could he have had. Although the law recognised no distinction between parties under a criminal charge , he had allowed the plaintiff and other prisoners to go on parole from November 24th to January 2nd; and why should he have done so if he had not had a wish to do everything he could to accommodate the prisoners. He considered that he was fully borne out in saying there was no evidence to show that the defendant had any ill-feeling in the matter; on the contrary he was sure that there was no man in the community that felt more delight at their being able to clear themselves satisfactorily. Even if the Jury, after hearing Roberts' evidence , should consider that the defendant did give the orders to have the irons put on,they must look at the motive; and if there was no reasonable cause for his doing soif the heart was right-if there was no malicious nor corrupt feeling , they would not give vindictive damages. The learned gentleman concluded by remarking on the inability of Captain Faunce to pay heavy damages in consequence of the heavy expense he had been put to in former cases. The following witnesses were called for the defence:Mr. G. Scott , clerk to the Bench at Brisbane Water-I have repeatedly examined these depositions; they are signed by the magistrate, Captain Faunce, and the parties respectively ; the depositions are in Captain Faunce's handwriting. This is a warrant signed on the 4th of January, for the committal of Henry Donnison and Willoughby Bean, on a charge of cattle stealing ; it was signed by Captain Faunce the day it bears date. Cross-examined - There were several other depositions taken against Mr . Donnison; there were three charges of cattle stealing against Mr. Donnison , on all of which he was committed. There was a charge of perjury and subornation of perjury on which Mr. Donnison was committed. I am not aware that Captain Faunce said he must warn Mr. Donnison that he was to be examined on a charge of magisterial delinquency; Mr. Donnison made use of the term; Captain Faunce did not. I made this deposition in a case of cattle stealing ; I was called to prove whether Mr. Donnison had brought the ill-will of the inhabitants by the execution of his duty as a magistrate , and I said he had not. The matters in this deposition were extracted from me by Mr. Donnison. I said there was a bias against Mr . Donnison

162

because he was not just in his dealings; this was on a charge of cattle stealing ; I deny that I ever said I had a charge to make against Mr . Donnison so horrible that in mercy to himself and pity to his family, I must beg him not to press it, Captain Faunce called on me to give evidence . This warrant was signed on the 4th of January. After Mr. Plaistowe came down copies of the warrants were demanded; I gave copies of all the warrants that were in the office. I first gave a copy of the apprehending warrant on the same day that copies were demanded . I think the copies of the warrants of committal were given the same day; I cannot say whether the copy of the warrants of committal was given until the following morning , I think I gave the whole of the copies on the same day. I did not show the original warrant Mr. Plaistowe . During the examination I did not go out of the office to talk to the witness. Re-examined-All that is put down in my deposition was written at the request of Mr. Donnison; Captain Faunce objected to it as irrelevant; I am quite sure the warrant was signed on the 4th January ; it was a part of Mr. Donnison's defence that the whole charge was got up as a conspiracy, in consequence of his having endeavoured to put down grog sellers and cattle stealers. George Roberts-I am a free stock-keeper to Captain Faunce ; I was employed by Drew in February last; I recollect Mr. Moore, Mr. Donnison, and Mr. Bean coming up to be tried; I was subpoenaed in the case of Mr. Moore and Mr . Donnison for the Crown ; on the evening of the Monday before trial I said to Drew I wonder how the swells will get on this night week ; he says I hope they'll get lagged , or I'll get myself into trouble for ironing of them without the Captain' s order; I asked him how he could get into trouble for ironing them; I suppose you had the Captain ' s order; he said no, if I had had the Captain ' s order I should have been all right; he wrote a letter and gave it to me to take to Sydney, requesting me if the party got turned up to deliver it to Mr. Kellett, and bring down provisions ; if they got convicted I was to take down the rations; if they were acquitted I was to take the letter back; he gave me three sugar bags to bring rations in; I did not take back any provisions, as he said he did not expect to stop in the district if they were turned up; I never mentioned

163

this conversation until I saw in the papers what Drew swore in the other trials; I told Captain Faunce when he came down to Brisbane Water. Cross-examined- I went into Captain Faunce's service in May last; I cannot say whether it was in the Mon.ttoa or Auh .taattan I saw it; I have no I mentioned it to Captain Faunce particular paper; when he returned to Brisbane Water; I know nothing of Drew's evidence but from the papers; I read it in a public house; Drew employed me in his garden for eleven days; I do not know of any general wish that the swells should be lagged; I gave evidence in the case respecting Mr. Moore; I have seen Drew since the trial ; I did not tell him he had sworn falsely. Re-examined- I did not see Mr. Donnison's evidence in the paper ; I was particularly struck with Drew ' s evidence. Mrs. Sarah Stowell-I keep a board and lodging house in Pitt-street ; I remember George Roberts lodging at my house three or four months ago; he came up on Captain Faunce ' s trial; George Roberts left three large coarse bags in my house; there was a letter there , addressed to somebody, which I burnt; Roberts afterwards sent me a letter by Little Bill, desiring me to send the bags by the boat. Cross-examined- I burnt the letter because I thought it was of no importance; it was burnt before he sent for the bags; when Roberts was in Sydney last time, he asked me what had become of the letter , and I told him I had burnt it, he said he was very sorry. The depositions taken before the Magistrates at Brisbane Water , and the other documents put in by the defendant, were read by the officer. Mr. Francis Fisher, Crown Solicitor -I hold in my hand a memorandum signed by Mr. Manning and a cattle muster ; they were forwarded to Sydney by Captain Faunce with other papers; they were in my possession at the time of the trial. Cross - examined- It was not produced at the trial ; I heard Captain Faunce asked about a bill of sale, he said he did not know; at that time I had this in my hand but I do not consider this a bill of sale; had I understood these papers were wanted I should have handed them in: I think I shewed it to the prisoner ' s Counsel and asked if that was wanted; This document was before me when I

164

drew the information; most undoubtedly Captain Faunce did not understand this was a bill of sale as he said he knew nothing about a bill of sale. Mr. Donnison commenced his reply by observing that he thought he was justified in saying that the case he had opened had been fully borne out, and he was happy to say that it had been tried in different spirit to the former cases; there had been no abuse-no overbearing . On looking at the depositions the Jury would at once see not only that there was no case of cattle stealing , but that the principal part of the charges had been shirked. Depositions in a variety of charges had been taken, but only the depositions in the cattle stealing cases had been laid before the Jury. Why was that; what had become of the charges of perjury, subornation of perjury, conspiracy and magisterial delinquency; was he not perfectly justified in saying that the defendant was ashamed of the depositions and had given them the go by. After Mr. Donnison had commented on the depositions he said that he was confident the Jury by their verdict would teach magistrates who acted on instructions , when a person is brought before them on a criminal charge, to confine themselves to the enquiry of guilty or not guilty and not enquire how the prisoner stands at head quarters. He thought sufficient had been laid before the Jury to shew them that Captain Faunce had been influenced from a high quarter and even in the manner in which he was defended there was additional proof; how he was defended by the Crown Law Officers; was this, for he felt confident that the AttorneyGeneral could not say that he did not consider the conduct of the defendant illegal. With regard to damages; it had been said that Captain Faunce was able to pay heavy damages, but he did not think the damages would fall on the defendant, his friends and ln4.&ac.oK4 would pay them; but if he had to pay them there was an old adage "that those who cannot pay in purse must pay in person ." Captain Faunce had done him a deep-a serious injury and he called on the Jury for compensation. His Honor said that the evidence furnished a good legal defence to the charge of having imprisoned the plaintiff without reasonable cause, and therefore the jury must dismiss that part of the case from their consideration , for by the 7th Geo. IV., it is enacted that where any person is brought

165

before a magistrate on a charge of felony , the magistrate is to exercise his discretion; the jury were not called on to say whether he exercised a sound discretion-it was enough that he did exercise a discretion . If a magistrate acted corruptly, he was liable to a criminal prosecution, but where he merely makes a mistake in the exercise of his discretion, his conduct is not questionable . There was no doubt the defendant had committed a great mistake, but he was not punishable by an action. The important fact that came for the consideration of the jury, was the ironing the defendant without reasonThey must enquire wheable or probable cause. ther Captain Faunce ordered the irons to be put on; and secondly , whether he was justified in so doing; and he would at once tell them that a magistrate or gaoler has no right to put a prisoner for trial in irons unless he has fair and reasonable grounds for presuming that he meant to escape . On this point he would refresh their memories by reading the (His Honor here read the evidence of evidence. Messrs. Plaistowe , Drew, and Roberts.) There certainly had been no evidence that the plaintiff contemplated an escape ; on the contrary, he had plenty of opportunities if he wished to do so. The jury retired at ten o'clock, and after an absence of half an hour, returned a verdict for the plaintiff, damages ÂŁ350 . The Judge refused to certify for Counsel. The plaintiff conducted his own case, but was assisted by Messrs. Kerr, a'Beckett , and Foster. Counsel for the defendant -Mr. Attorney General and Mr. Windeyer.

166

381 February, 1830 (Copy) (George MEADOW's Grant)

Sydney, February 15th, 1830

Sir, In conformity to Circular No. 30/1 of date 1st January last, I beg to recommend the applicant, George MEADOWS, to a grant of land in the District of Brisbane Water. He has been in my service upwards of two years and has conducted himself invariably during that period, highly to my satisfaction. He is an orderly, sober, and industrious Man who came in this colony per Hoogly, Captain REEVES, as a seaman in 1827. His wife came out

with him in that vessel and is likewise deserving of great praise for good conduct since being in my employ. I beg in conformity to the above Circular to specify 1st That the Applicant is 34 years of age 2nd Is a married Man 3rd Had no children 4th Has no land in the Colony and never received either Grant or Indulgence from the Crown 5th ............. [sic] 6 Is at present Overseer on one of my farms in that District. He intends to reside on his Grant if obtained, and has the intention and means of improving it to the amount of (E120) One Hundred and twenty Pounds 7 Has no connections in the Colony excepting his wife His general character as before stated very good. I beg to state that I feel great satisfaction in recommending George MEADOWS to a Grant of Land in my District, as from his general conduct and habits I am convinced he will become a useful Member to it. Applicant states that he was ten years a seaman in the Royal Navy. I have the honor to be Sir, Yr Obedient Servant, (Signed) W. BEAN, J.P. To The Honorable The Colonial Secretary Sydney.

(George Meadowh wah one o6 the main pzo.tagonL..th in the Bz.(hbane Wa.tez Cage in 1837, a3 the ownez o6 the cow in d.hpwte. Bean, in h.vs depo'LtLon., zue6w22y zemembezed the good opinion he gave o6 Meadowh' chazactez.1 (See

page

154.1

167

S Y D N E Y G A Z E T T E October 21, 1837

p2, col. 5

Donnizon v. Faunce. - We learn that the defendant has given notice of his intention of applying for a new trial in the cause, being perfectly disgusted with the verdict, which awards the plaintiff ÂŁ350 in the shape of damages.

168

S Y D N E Y G A Z E T T E 26 October 1837

p2,c3-4-5

We congratulated the British character, in our last number, on the infrequency of such cases of oppression, even in this degraded portion of Her Majesty's dominions, where, when the nature of our population and the unconstitutional powers vested by the Bushranging and Vagrant Acts, in the hands of Magistrates and Constables are taken into consideration, instances of injustice might be expected to occur, even more frequently than they do. A review, however, of Sir Richard Bourke's procedure towards the Magistracy, and its effect on the general welfare of the community, renders it evident that even that remnant of British virtue is fast fading away from among us, through the influence of so large a portion of the Magistracy as have been rendered subservient to the caprice of the Governor. The large number of Police, J.P. defendants who have figured during the last and present sessions of the Supreme Court, remind us more of what might have been expected in priest-ridden Spain or Portugal, than in a Colony boasting the British name and origin. We have all along opposed the line of conduct pursued by Sir Richard Bourke in his selections to the office of the Magistracy. To appoint inexperienced young men, raw in the knowledge of the world and of the Colony, to situations of power, especially in a community such as this, where the free and respectable emigrant has no guarantee but the sound discretion of the Magistracy for the protection of his liberty, from the malice of men whose minds and dispositions bear a stronger resemblance to fiends than to human beings, is a system, too monstrous not to meet with the reprobation of every man who values the welfare of his fellow-beings. Yet, this is the system Sir Richard Bourke has for some years been pursuing, and these are the fruits

169

which might have been anticipated from his labours. The Brisbane Water cases have excited too much of the public attention and aroused too much of public feeling, for us to consider it necessary to enter yet more It is impossible for fully into particulars . any man to view with coolness the brutal treatment to which a British Magistrate

and British gentlemen were subjected at the mere caprice of a holiday military captain. The most charitable conclusion that any one, on a review of the circumstances, can come to, is, that the man must be himself the victim of extraordinary mental imbecility . If we do not come to such a conclusion, it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme lengths. That the first is the correct conclusion, however, we think must be evident from a perusal of the document we append , which, however strange it may appear , is actually a certified copy of evidence given in a case of cattle stealing , preferred against Messrs. Donnison and Bean. We shall merely premise that the witness was formerly the Poundkeeper of the district , but has since been raised to the dignity of Clerk of the Court,-that the accused party against whom he gave this precious specimen of Brisbane Water evidence, was and is a Magistrate of the very Bench under whose supervision he has discharged the functions of Poundkeeper and Clerk , doubtless, for the fact is evident on the face of the document , with credit to himself and satisfaction to the Bench . Having premised so much we shall merely ask our readers:First, whether we are to believe that the man who heard, himself took down in writing , and permitted to be entered on the files of his Court on a charge of cattle stealing , such a farrago of trashsuch a " bundle of nonsense" (as Judge

170

Burton appropriately designated it) as is contained in the document appended, can, by any possibility, be supposed to be in the possession of his right senses?And, second, what are we to think of the Governor, or Government, who, after such a disclosure of the utter inefficiency, (to use the very simplest term in our power,) of Captain Alured Tasker Faunce have entrusted him with the protection or the guidance of any being, whose life or liberty is of more value than that of an old stock-horse, and who have marked their censure of his conduct in no other way than by removing him to another and more distant district, where, as he will be farther from the influence of the press, he may be able again to Play such fantastic tricks before high heaven As make the angels weep?

The following is the man Scott's affidavit:NEW SOUTH WALES TO WIT Thomas A. Scott, Clerk to the Bench at Brisbane Water, being duly sworn deposeth and saith,I was present in Court at the prior part of the examination of this case about six weeks ago, and heard Mr. Bean say in answer to a question put to him by the Court that he had no account of the sale of the cow called Blind Berry; in answer to a question, if Mr. Manning had an account of the sale of the cow, he gave an indefinite answer and said he was taken so unawares that he was not prepared; I heard Mr. Bean absolutely deny having given a receipt as mentioned by Mr. Richard Cape; he did so repeatedly; there is a strong bias against Mr. Donnison but it arises from his connections with Mr. Moore in the cattle concerns, and that he is not just in his dealings; the bias is not in consequence of his conscientiously doing his duty as a magistrate; of this, I have had ample opportunities of judging, he was formerly highly respected when

171

he first came to this district; the change of opinion arose from the cattle concerns as before stated, and some of his magisterial acts while sitting on the bench of which those are proofs -- shew dishonor and dishonesty. -- In the end of December, 1835, I was in this Court when an assigned servant of Mr. Donnison's named John Berry was charged with robbery, he was found guilty. The Police Magistrate, Mr. Warner, asked Mr. Donnison if the man should receive 50 lashes; Mr. Donnison said the prisoners state of health would not permit him to bear it and recommended solitary confinement. The man was sentenced three days solitory confinement as shewn by the Police Records, (produced.) Previous to the sentence being pronounced Constable Smith, one of the witnesses, made allusion to a forged pass that the prisoner Barry had on him when he was taken. Mr. Donnison stopped the witness in saying any particulars about it. After the man received his sentence, Mr. Donnison addressed him thus: -"Now, Barry, I have saved you from 50 lashes, (at the moment holding a slip of paper in his hand) will you now make good those hedges,- here is a pass to which you have signed my name, I did intend to bring this against you, but I will not now if you make the the hedges and bring up your back work." Mr. Warner was present during this conversation but After this as the man was going said nothing. away Mr. Donnison called him back and said "Remember, if you do not make the hedges, I will bring the forged pass against you and get you 50 lashes." Constable Smith, the prosecutor, Sidebottom, I think the scourger, Stephen Curren, now in the Lunatic Asylum were present; I never knew Mr. Donnison to officiate as a magistrate, except in cases where he was personally interested; Mr. Warner complained that he was not assisted by Mr. Donnison. Mr. Donnison never officiated except unless brought by a compulsory letter, or summoned in his own concerns, and in a case of one man named Cooper, Mr. Warner had to take the case to I was not always attending the Court Newcastle. and there may be a deviation from what I have stated, and I know of no instances. I attended the Court nearly every sitting, and acted gratui-

172

tously as clerk. I know of another instance of a similar nature;- some time prior to the first case I have mentioned , as I was coming from my house by way of Point Frederick, I fell in with an assigned servant of Mr. Donnison ; the man informed me that he was ordered by his master to the Police Court for neglect of work. I saw that man on the same day at the Police Office, speaking with Mr. Donnison, who said, "I must inflict some punishment on you. " I saw that man afterwards, and he told me that his master had let him off on condition of his splitting some thousands of shingles, to make up for his lost work. I did not mention this case first, because I felt that I could not bring forward support to my testimony. I considered the charge of a gross nature. There was nobody near when I spoke to the man. I do not know the man's name ; I have not seen him lately.

From the before-mentioned circumstance

in the last case, I thought that Mr. Donnison had employed his magisterial powers for his private interests . Mr. Donnison was formerly respected and supported, particularly on account of his amiable family , who still are respected. Mr. Moore was charged with stealing a heifer, the he gave in a defence property of Mr. W. T. Cape : dated 2d Nov., 1836; part of that is in Mr. Donnison ' s handwriting , but the handwriting is disguised . The passage commences with When Mr. Cape commenced with a half apology," and ends with "The case was referred to the Sydney Bench ." false.

It is on the sixth page. His statement is

About two years ago, two men , named Freeman and Sheridan , were splitting shingles on Government ground, as stated by them . Mr. Donnison seized the shingles, and they were not reported to the Police Office. I do not know the number I heard of the split, or the number carted away. above and believe it to be true , in consequence of other dishonest acts on the part of Mr. Donnison. I do not know that Sheridan complained to Mr. Warner about the circumstance , and that Mr. Warner would not entertain the case. I consider that the statement Mr. Donnison first made, as to the charge brought by Meadows, is false and

173

As to the part where he says that he dishonorable. brought upon him the odium of the inhabitants, in consequence of his having conscientiously discharged his duties as a magistrate, I say that such is not the fact, no person having been attacked by his powers as a magistrate, except in interested cases; I entertain a bad feeling against Mr. Donnison in consequence of several acts in my knowledge of his dishonor and dishonesty; I have no bad feeling in consequence of having quarrelled with him about a bargain in corn; I did not quarrel with him, I had no bad feeling then against him, and ran six miles after this in order to do him a friendly affair; I was not aware that he had represented to the Government that I was unfit for the situation I now hold; I have no bad feeling on that ground; in order to clear himself from that difficulty - that deriliction from conscience and honor, I believe that he would not hesitate to destroy the infants, and to make the most innocent and honorable man appear base and infamous; I except from that statement his own amiable children; a man who is not under the restraint of principles is to be doubted in all cases, even where his own children are concerned; I should say that applies to Mr. Donnison; Mr. Warner formerly had a good opinion of Mr. Bean, but I believe charged that opinion in consequence of his connexion with Mr. Donnison and Mr. Moore; the connexion was a buying property worth two dishonest one, viz.: thousand pounds for one hundred and fifty pounds. I saw so much interest shewn by Mr. Bean in Mr. Moore's case, that my presumption was that he was deriving benefit from the connexion; he had been frequently riding about with Mr. Moore in the direction of Lake Macquarie hunting cattle; the source of my information is partly from Mr. Moore's defence; Mattby Smith made a diary, in which Mr. Bean' s name appears; Moses Cawall and other constables informed Mr. Warner of the these sources refer to many visits; circumstance; they are innumerable; from Mr. Bean's association with Messrs. Donnison and Moore, together with Mr. Bean's deposition in Mr. Moore's behalf in November last; I viewed his principles doubtfully, as I consider his connexion with Messrs. Donnison and Moore, as disreputable to him; my impression was that the cattle Mr. Moore and Mr. Bean were When Mr. riding after, were government cattle.

174

Bean was asked for documents concerning the cow, he was surprised and said, he was taken by surprise. Mr. Bean was summoned on a charge of perjury, and the case was dismissed. This charge was entertained on the same day, without any previous notice being given. I heard Mr. Bean say, that he believed he could not produce the document required. About six weeks ago, my servant Henry Stephens, was sent by me to drive cattle to Andrew Rock's premises, previous to his going he asked me for money, which I did not give him. He should have been back in one day, but took two days and a half; I called upon him to account for his delay, he said he had been stopping at Mr. Donnison's, where he had been half pinting it, which means taking liquor in that quantity; I enquired how he got the money, he said he got the money from Mr. Booker, who accompanied him in driving the cattle. On enquiring from Stephens as to how he obtained the liquor, he said any man could get half a pint at a time, and that when one man could not get it another would. It is a notorious grog-selling place.

THOMAS A. SCOTT. Sworn before me, at Brisbane Water, the 4th of Jan., 1837.

(Signed )

A. T. FAUNCE, P.M.

Police Office, Jan. 10, 1837.

175

S Y D N E Y G A Z E T T E SATURDAY, NOVEMBER 4, 1837. p2,c3

BRISBANE WATER POLICE. Thomas A. Scott, the ever-to-be-remembered Clerk to the Brisbane Water Bench, and formerly Poundkeeper for the district, of which Captain Faunce is the renowned chief, appears in yesterday's Auattak.Can in almost as amiable a light as he did when in the witness box undergoing examination during the civil actions of Messrs. Donnison , Bean, and Moore, against this worthy's master, which ended in the latter being compelled to pay ÂŁ900 in the shape of damages. Thomas A. Scott seems to threaten "daggers and dark lanthorns " against Mr. Donnison in the following words:"I now WRITE only to defend my own reputation, and to do which I hope I shall not hereafter, be obligated so solemnly to SPEAK aloud." Our readers will doubtless remember that this man Scott gave evidence in each of the three trials, and that in all he underwent It is to be a severe cross -examination. therefore, that if he properly presumed , regarded his oath, he spoke "the truth, the whote truth, and nothing but the truth;" -if he did not, he has perjured himself;-if he has not perjured himself, what does he mean now by saying with sanctimonious gravity he hopes "he shall not be obligated so solemnly to hpeah aloud." The motive which has instigated Scott to endeavour to sully the reputation of a deeply injured gentleman, is plain enough;-unable to effect his object, even with all the assistance of Captain Faunce, and the powerful attempt to crush, traceable to a higher authority-he would endeavour to blast Mr. Donnison's reputation by insinuations. Let him speak aloud by all means i he date! This is the second time

176

we have honored Mr. Poundkeeper Scott with any lengthy notice ; on the former occasion we published his affidavit, taken in a mock charge of cattle stealing, preferred against Mr. Donnison, from which, to show the character of this slanderer, we make the following extract, and then leave our readers at liberty to form their own opinion of Mr. Thomas A. Scott, who it will be seen, solemnly swears his conviction that Mr. Donnison would commit wilful murder-that 's all: "I was not aware that he had represented to the Government that I was unfit for the situation I now hold; I have no bad feeling on that ground; in order to clear himself from that difficulty-that deriliction from conscience and honor , I believe that he would not hesitate to de4ttoy the Ln6ant4, and to make the most innocent and honorable man appear base and infamous ; I except from that statement his own amiable children; a man who is not under the restraint of principles is to be doubted in all cases, even where hL4 own chL2dten ate concvtned ; I should say that applies to Mr. Donnison." And here we cannot but remark, that to continue such an individual as this in the situation of clerk to the very Bench at which Mr. Donnison frequently presides, and at the same time to refuse to accept Mr. Donnison ' s resignation, tendered by that gentleman , is not likely to make the Magistracy as a body looked up to with the respect so essential to the due administration of justice ;-but what can we expect from a Government who in spite of all that has been said and done, still continues Captain Faunce's name in the Commission of the Peace.What can we hope for after this?-absolutely nothing!

177

S Y D N E Y H E R A L D 22 March 1838

p2,c7

LAW INTELLIGENCE.

SUPREME COURT - Civil Side.

MONDAY.-Before Mr. Justice Burton and a Military Jury. At the opening of the Court the Attorney General called the attention of His Honor to the case of Moore v Faunce, which stood at the bottom of the list. This case the learned gentleman said it was agreed should be settled several months ago, but by some mistake, it had been allowed to remain in the paper . An agreement he was requested to state had been entered into, in which in consideration of Mr. Moore discontinuing the action , Captain Faunce undertook to pay all costs due from Mr. Moore, and authorised him, the Attorney General , to say in open Court that Captain Faunce acknowledged his error , that he was satisfied that the sending the search warrant to the plaintiff's house cannot be justified ; that he regretted the inconvenience to which Mr. Moore had been subjected , and acquitted him of all blame in the transaction. His Honor directed the case to be struck out of the list.

178

S Y D N E Y G A Z E T T E 22 March 1838

pl,c4

MOORE v. FAUNCE.

IN consideration of Mr. Moore abandoning the action brought against me this Term, I agree to pay all the costs due by Mr. Moore to Messrs. Unwin and Want, in this action; and I further authorise Her Majesty's AttorneyGeneral to make the following apology in open Court. That Captain Faunce acknowledges his error in sending the search warrant to Mr. Moore's house, and admits that it cannot be justified, and Captain Faunce regrets Mr. Moore should have suffered any inconvenience, and acquits him of all blame in the transaction. ( Signed ) March 16, 1838.

A. T. FAUNCE.

COURT ACTION

A. T. FAUNCE v. CAVENAGH of the Sydney Gazette

Son LLbe2

181

S Y D N E Y G A Z E T T E

23 November 1837

p2,c4

Captain Faunce & the "Gazette."

THE last Auztnattan rushes to the worthy Captain' s rescue , and accuses us of endeavouring to prejudice the minds of the Jury in an action which our contemporary asserts has been commenced against us by this gentleman. We beg to set our learned brother right, and inform him that though we have received a common-place letter from Mr. Edward Dormer O'Reilly, the Solicitor of the ex-Brisbane Water Police Magistrate, informing us of Captain Faunce's intention to bring us before a Special Jury for defaming his character, no action up to this hour has been commenced against us by Captain Faunce, or any other Captain; and what's more, we will wager our contemporary a rump and dozen, that however we may be .threatened, Captain Faunce will never impose upon us any such task as that of justifying our statements in a Court of Justice (which, by the bye, we are really desirous of doing, for we would not lay under the imputation of wilfully publishing falsehoods of any man);-the idea is altogether too ridiculous for us to entertain it for a moment. A case of this kind coming before the Supreme Court at the commencement of the reign of another Governor, will serve much to shew the local authorities what sort of a ruler Sir Richard Bourke was, and of what materials some of the Magistracy are composed . We would desire no better proof. We may in conclusion just

182

as well state, that as we have already been put to some trifling cost in retaining Counsel, &c., that unless Captain Faunce does proceed against us, which, in all sincerity, we invite him to do, we will sue him in the "Little Go," as a court of conscience, for the recovery of expenses already incurred. This is just what we mean to do, for we have no notion of being one farthing out of pocket under any such circumstances.

183

S Y D N E Y G A Z E T T E FEBRUARY 22, 1838

Captain Faunce ' s libel action against the editor of this journal has been set down for trial , before a special jury, on the 14th March next. Mr. Moore, of Brisbane Water, has another action against Captain Faunce, which will be tried before a special jury this term. We have already published the particulars of this case ; both cases we will have reported fully in this journal.

p2, col. 5

184

S Y D N E Y G A Z E T T E March 17, 1838

O u r L i b e l C a s e.

THE libel case Faunce v. Cavanagh came to a conclusion yesterday afternoon, having occupied the Court the whole of that and the preceding day. Captain Faunce ' s declaration contained three distinct counts , claiming ÂŁ3000 damages for the injury done him by three alleged libels published in The Sydney Gazette. The first count referred to an article on the subject of the Brisbane Water cases, which appeared in the Gazette of Oct. 26, 1837, in which it was alleged that "the most charitable conclusion that any one can come to, on a review of the circumstances, is that the man (Capt. Faunce ) must be the victim of extraordinary mental imbecelity;" and, farther , in another portion of the same article it was alleged that he, Captain Alured Tasker Faunce, was utterly unfit " to be entrusted with the protection , or the guidance , of any being whose life or liberty is of more value than that of an old stock-horse." The second count, which was abandoned by the counsel for the prosecution , merely referred to Captain Faunce's assurance in coming forward, after the recent disclosures, to vote for the election of the Chairman of Quarter Sessions. The third and last count was founded on an article in reference to the Chairmanship, in the Gazette of Nov. 11th. The alleged libellous matter was contained in the following sentence :--" In our last number we remarked on the impudence of a man who has rendered himself so notorious for magisterial delinquency and mental incapacity , as Captain Faunce,

p2, cols. 3,4

185

coming forward to act as a magistrate upon such an occasion , and we hinted to Mr. William Montague Manning that to gain his seat by using such tools, was not the way to ensure public confidence." On each and all of these counts we directed our Counsel to justify to the fullest extent . With reference to the expression " magisterial delinquency," as it was susceptible of an ambiguous meaning, we instructed our Counsel to admit its signification to the fullest extent of the very worst construction the Counsel for the plaintiff could put upon it. The case terminated yesterday about 3 o'clock in the afternoon , the Jury finding for the defendant on the first count, and for the plaintiff on the last. Captain Faunce, with a modesty peculiarly his own, estimated the damage done to his character at ÂŁ3000 !!!-- the Jury much more correctly appreciated it at one farthing!!! In our next we shall place this trial in full detail before our readers, for the purpose of enabling Sir George Gipps to form his own estimate as to the fitness of Captain Alured Tasker Faunce to fill the Police Chair of Limestone Plains. Three successive special juries have awarded heavy damages against him for his conduct in the Brisbane Water affairs; a fourth has declared that we were justified in beleiving him "the victim of extraordinary mental imbecility," and consider him to be so little injured by a charge of the grossest " magisterial delinquency" as to be amply remunerated by the smallest coin of the realm. The expenses to which we have been put in this case will no doubt be considerable, but we shall not consider the money illspent, if it be but effectual in rescuing our fellow- colonists from the danger of falling into the clutches of a man whom a Special Jury of the country agrees with us in thinking " unfit to be entrusted with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock-horse."

186

S Y D N E Y G A Z E T T E March 20, 1838

p2, c3-7; p3, cl-5

SUPREME COURT - CIVIL SIDE THURSDAY , MARCH 15, 1838.

Before the Chief Justice, and the following Special Jury :- William Cox , Esq., talesman; J. B. Blaxland , Esq., talesman ; John Black, Bank director ; John Betts, Esq.; J . Campbell, merchant; Henry Brooks, Esq.; Leslie Duguid, Bank director ; F. C. Ebhart , Esq.; H . B. Bowerman, Esq.; W. W. Barrow, colonial storekeeper; John Brown , merchant ; and Robert Duke, merchant. Faunce v . Cavenagh- When this case was called on, Mr. Therry requested that the witnesses might be ordered out of Court and placed in a room where they could have no communication with any one; it was very little use ordering witnesses out of court, when parties could go out and communicate with them every minute. His Honor said, he had no occasion to suspect anything particular in this case ; all that he could do was to order the witnesses to withdraw in the usual manner.

Mr. Windeyer opened the pleadings.- The plaintiff in this case is Captain Alured Tasker Faunce, and the defendant Mr. George Cavenagh, Editor of the Sydney Gazette. The declaration avers that the plaintiff was a captain in the 4th regiment of foot, and was and is a Justice of the Peace, and that the defendant well knowing the premises , but in order to injure and annoy the plaintiff , on the 26th of October, wilfully, wickedly , and wrongfully published , or caused to be published , in a certain newspaper , called the Sydney Gazette , a certain false, scandalous, and malicious libel , in the following words.- "The Brisbane Water cases have excited too much of the public attention and aroused too much of the public feeling for us to consider it necessary to enter yet more fully into particulars ; it is impossible for any man to view with coolness the brutal treatment , to which a British magistrate and British gentlemen , were subjected at the mere

187

caprice of a holiday military captain. The most charitable conclusion that any one on a review of the circumstances can come to is, that the man himself must be the victim of extraordinary mental imbecility . If we do not come to such a conclusion , it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme length.* * * * * * * * And second , what are we to think of the Governor or Government , who after such a disclosure of the utter inefficiency , to use the very simplest word in our power of Captain Alured Tasker Faunce , have entrusted him with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock horse, and who have marked their censure of his conduct in another way than by removing him to another and more distant district , where as he will be further from the influence of the press, he may again be able to pay such fantastic tricks before High Heaven as make the angels weep." A second count charges a libel in the Sydney Gazette of the 9th November , but this is withdrawn. A third count charges the defendant with having in the Sydney Gazette of the 11th November, published a libel of the plaintiff , in the following words.- "In our last number , we remarked upon the impudence of a man who has rendered himself so notorious for magisterial delinquency and mental incapacity , as Captain Faunce, coming forth to act as magistrate upon such an occasion, and we hinted to Mr. William Montague Manning that to gain his seat by using such tools , was not the way to ensure public confidence." The damages are laid at ÂŁ3000 . To this declaration the defendant has pleaded- firstly, the general issue, and secondly , a special plea of justification, to so much of the third count as charges the plaintiff with magisterial delinquency , because he says, that at Brisbane Water, on the 1st January, with a view to injure and oppress Henry Donnison, John Moore and Willoughby Bean, the said plaintiff without reasonable or probable cause, issued his warrant for their apprehension , and afterwards, maliciously put their bodies in certain shackles and irons and kept them on for a long time, and on this the parties have joined issue. Mr. Therry said, my friend Mr . Windeyer has opened the nature of the case , and it now remains for me to fill up the outline which he has presented

188

to you. It is impossible that twelve gentlemen can be empannelled in that box , who are altogether unacquainted with the parties ; the defendant is wellknown as the editor of a public newspaper, while the plaintiff has been so perseveringly brought before the public by the defendant, that it is impossible but you must know him; but gentlemen whatever you may have known of the parties out of court, it is your duty to dismiss it from your minds, and find your verdict entirely on the evidence that will be produced before you . These remarks I am quite sure are uncalled for, as I have not the slightest doubt but you will do your duty to the country and the parties. The plaintiff , gentlemen , was, as you heard by the declaration , lately a captain in the 4th regiment , and, like many other officers, has retired from the honorable profession of arms to sit down and spend the remainder of his days amongst us , and I know no more useful members of society than have been furnished by the army. Shortly after the retirement of my client from the army he obtained the situation of Police Magistrate at Brisbane Water. The defendant is the editor of the Sydney Gazette , a paper that boasts, and I believe justly , of a vast circulation and consequent influence over the feelings of the community. No doubt, gentlemen , the power of the press is prodigious , and although slander may be circulated by other means , there is no way by which it can be so efficiently circulated , and therefore slander through the press is slander of the most aggravated description ; but it is impossible gentlemen , for you, as men of the world, not to know the immense power and influence of the press. The libels charged are of the most aggravated description . They not only hold him up to ridicule and contempt , but charge him with deliberate crime; they impute to him that as a magistrate he has been actuated by malice; they call him a public delinquent, and when doing that which he is sworn to do he is charged with being a tool , and it will be for you , gentlemen, to say whether language of this description can be tolerated in public discussion . It is quite unnecessary for me to tell you what you will hear with so much more weight from the Bench , that every person has a right to publish his sentiments respecting every public man, but if he publishes that which is mischievous , malicious, or improper, he must take the consequence of it. If the defendant had spoken of the plaintiff as having committed an

189

error in judgment, I should not have disputed the propriety of discussing the merits of the case (but if he has committed an error deeply has he suffered for it), but when he charges him with public delinquency, with crime, he does that for which he must be made answerable. What makes this case particularly aggravated is, that for the last eighteen months the defendant has been the systematic libeller of the plaintiff. If Mr. Cavenagh had come forward as a public writer to comment on the public conduct of the plaintiff, and fairly given the pno6 and conk, and afterwards, in summing up, had come to a conclusion unfavourable to my client, we should not have complained; but what we complain of is, that he threw himself into the arms of one party and became the vehicle of their sentiments. So far back as November , 1836, (the learned gentleman here read a quotation from a paper of that date, stating that Mr. Donnison was on his way to Sydney, when the particulars of certain proceedings at Brisbane Water would be made public.) Mr. a'Beckett submitted that nothing published before the date of the alleged libel could be admitted. His Honor concurred with the learned gentleman, only what has since been published could be read. Mr. Therry continued-You must perceive the an.imtt4, gentlemen, that actuated the defendant. He does not say that he will procure a report from uncorrupt sources, if he had, and had been mistaken or misled, the plaintiff would never have brought him before a jury; but he says Mr. Donnison is coming, and when he arrives we will lay the particulars before our readers, and from the day that Mr. Donnison did arrive, to the present time, the paper has contained a perfect series of libels against my client. I now come, gentlemen, to the articles complained of as libellous: the plaintiff is called a holiday captain, and is accused of having made use of brutal treatment, and I would ask any one whether such terms are not libellous? What is the meaning of holiday captain? Did it not originally allude to captains in the fencibles or volunteers, who, during the war, were tradesmen all the week and captains on holidays, and there can be no doubt of its being a term of great contempt. In the same paragraph he is accused of extraordinary mental imbecility. Is that a term I ask you, gentlemen, likely to bring

190

a magistrate into contempt ? Certainly, if he is not a man of mental imbecility he has the alternative of being a man of depraved feeling , so that in one sentence we have as much venom condensed as possible : we have the terms "brutal treatment," "holiday military captain," and "'"extraordinary mental imbecility ," with the alternative of being a person of depraved mind. But, gentlemen, it does not stop here , it goes on, "and secondly what are we to think of the Governor or Government who, after such a disclosure of the utter inefficiency , to use the very simplest term in our power of Captain Alured Tasker Faunce, have entrusted him with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock horse." Some of you, gentlemen , are magistrates , and I ask what would you think of your own usefulness in your respective districts after you had been held up as not being worthy to govern an old stock horse . The history of the affair is this:-When the plaintiff was appointed to Brisbane Water there were very few respectable persons living there except the parties with whom he afterwards come into collision. Messrs. Donnison and Bean were persons in his own rank of life , and the only persons whose society he was likely to wish to cultivate , and nothing but a strong sense of his duty could have brought him into collision with them, especially as there was no magistrate but Mr . Donnison within forty miles. It has been part of the policy of this defendant always to mix up the Governor with this affair, to insinuate that the plaintiff acted in pursuance of instructions from the Governor, and among the many audacious calumnies that were levelled against the late Governor , against that eminently endowed Governor , for so I may call him since His present Excellency has done so, this is the most unfounded ; I say that His Excellency never gave any instructions , and this was only introduced for a particular purpose at a particular time, and in order to enlist the sympathy of the public in favour of the parties who were then commencing actions against Capt. Faunce. Lately a paragraph has been inserted in one of the papers recommending that the trials be dropped on account of the new Governor , but gentlemen the Governor has got nothing to do with the matter , and I protest against his name being in any way mixed up.

1ยง1

Gentlemen , can anything be more calculated to bring the plaintiff into contempt than this paragraph about the old stock horse ; I will suppose it was written of a higher magistrate, and I am sure the Chief Justice will excuse the liberty I take in the illustration; I will suppose that a person, in alluding to this case , said that it was tried before an intelligent jury, that seven or eight counsel were engaged in the case , but that the Judge who tried it was only fit to govern an old stock-horse; would not this be calumny, would not this be contempt, and if it would be so of the judge , the minor judge is equally entitled to protection . But the plaintiff seems to think that there is no justice unless under the surveillance of the press , for in this article he complains that Captain Faunce has been removed further from the influence of the press; why, gentlemen, from this it appears that he thinks that a branch of the Sydney Gazette is necessary before justice can be administered . What! will the Governor dare to appoint a magistrate to a place where Mr. Cavenagh is not prepared to send a deputy, whom he doubtless considers is as necessary as a clerk. But being away from the surveillance of the Sydney Gazette the defendant considers that he will play such fantastic tricks as will make the angels weep : a very pretty occupation for angels truly to weep over the wrongs of Mr. Donnison; but he is a man that has got his wits about him, he does not seek the aid of angels, unless indeed angels This libel, gentlemen, cerfrom another quarter. tainly is as gross as language can make it, and contains as much venom as can be condensed into a few sentences , and they are so worded that the ananu4 of the writer is made most plain, and certainly the tendency of it is to bring my client into contumely and contempt . Much less than this has Cobbett once said of my been held to be libellous; Lord Hardwicke , when Lord Lieutenant of Ireland, that he was as fit to fatten a sheep as any man in Lincolnshire, upon which Lord Ellenborough says what is the meaning of this but that he is not fit for the common occurrences of life, much more for the exalted situation he holds; but here the libel is plain enough , for it is directly said that the plaintiff is unfit to be trusted with anything whose life or liberty is of more value than a stock-horse. The second count has been abandoned , and I shall merely quote the libel to shew the avwnu6 of the writer; speaking of the election for Chairman of Quarter Sessions he says, "and who do our readers

192

think had the impudence to attend and vote for Mr. Manning , who but our old friend Captain Faunce of Brisbane Water ironmongery notority." The attempt at wit here , gentlemen , is worthy of the mind that wrote it, and whether it was written by Cavenagh or another I care not; he is the responsible man, and whether he was the panderor, the principle matters little for my case . Our old friend Captain Faunce-what is meant here but the old friend, who for eighteen months had been ceaselessly attacked through the columns of the Gazette. Gentlemen , as I said before , this count is abandoned, and I merely alluded to the libel to show the animus which has at all times actuated the defendant. I now come to the third count, observing that the first libel referred to the Brisbane Water cases, and the second and third to the election of the Chairman of Quarter Sessions . What had the election to do with the Brisbane Water cases ? they occurred at different times and in different places, but it only shews that the defendant and his abettors were determined to hunt him down - it shews clearly the malignity of Mr . Cavenagh . " In our last number we remarked on the impudence of a man who has rendered himself so notorious ." How was he rendered notorious but through the defendant's press; he himself was the author of the notoriety and then complains of his being notorious. In the first count I remarked that the libel was calculated to bring the plaintiff into contempt , but, gentlemen, in this libel there are two distinct charges, - he is charged with magisterial delinquency, which is synonymous with crime, and with being a tool. If the plaintiff acted wrong he was open to punishment, but to attack his mind was a most aggravated libel and tends to make my client unfit for any public duty and an object of public scorn. What occasion was there for any remark at all if he was not determined to follow him into every walk of life? - impudence , what impudence was there? why it was his duty to testify who ought to fill one of the most important public offices in the Colony; it was his duty to come forward and it was highly libellous to call him a tool . What is the meaning of the word tool? gentlemen , I find by a late edition of Todd and Johnson that it means a hireling, a wretch who acts by command of another; now all that Captain Faunce did was to attend the election and give his silent vote. There

193

was a gentleman there who either moved or seconded a resolution that the Attorney-General, from whose clutches he had just escaped, should not be allowed to vote, but not a word is said about his impudence , no gentle hint that it would have been more prudent to have kept in the shade. The plaintiff , gentlemen, acted on that occasion from a sense of duty, and all the gratification that either him or I have received is from seeing with what efficiency and satisfaction the gentleman whom we voted , fill the situation . Here , gentlemen, you have libels selected from a mass of others equally libellous , and I present them to you as being calculated to injure the plaintiff in his public and private character , to injure him in the district where he is Police Magistrate , for what can he do unless he vindicates himself . Much will doubtless be said on the other side, gentlemen, about the liberty of the press, but is this the liberty of the press, to calumniate an individual in the way my client has been calumniated? That gifted individual , Mr. Sheridan, once said that the liberty of the press could only be injured two ways - by oppressive Acts of Parliaments and exofficio informations . Here we have no oppressive Acts and certainly there have not been many manifestations on the part of the Attorney-General , of a wish to injure the press through the medium of exofficio informations. But, gentlemen , Mr. Sheridan overlooked another way by which the press might be injured : it may be injured by it own licentiousness , and it is a truth that may be gathered from history , that the abuse of liberty is always followed by the loss of liberty, as a just punishment for the crime. If the plaintiff has erred , gentlemen , deeply has he suffered. Day after day verdicts of ÂŁ250, ÂŁ300, and ÂŁ350 damages were returned against him but that did not satisfy the defendant and his abettors, revenge and ruin is their cry; every trifling act that he does is to be misrepresented and distorted; he is to be followed through life unless the defendant is restrained by a jury. The defendant gentlemen , has had powerful abettors and it is of this we complain ; that he has thrown open his paper as a sink for all misrepresentations that could be poured into it by men who were determined to ruin the plaintiff, but I am confident that you gentlemen of the jury, will not be made a party to any such conspiracy ; my client , gentlemen , has been hunted and made a victim by a most powerful combination , and if you give all the damages laid in the declaration , you will not punish the defendant

194

beyond his delinquency, not more than requite my client for the injury he has suffered. The first witness called wasMr. W. C. Greville-I am a clerk in the office of the Colonial Secretary, and have charge of the affidavits made by the editors and proprietors of newspapers; this is the affidavit respecting the editorship of the Sydney Gazette, I produce the Sydney Gazette of the 26th October, and of the 11th November, 1837; these are left at the office under the Act of Council; the names of the editor and publisher agree with those in the affidavit. Mr. a'Beckett-We admit publication. Captain William Hunter, Military Secretary to the Commander of the Forces- The plaintiff in the year 1837 was a captain in the 4th regt. of foot; I have seen him acting as captain; I hold in my hand the Gazette of October 26th; I have seen the article headed "Brisbane Water Cases" before; the terms "holiday military captain," "the man," "possessor," apply in my opinion to Captain Faunce; the whole article alludes to Captain Faunce; this is the paper of Nov. 11th. (The witness went through the article, sentence by sentence, which he considered meant the plaintiff.) Cross-examined-I have no doubt the holiday military captain means Captain Faunce; if I had not heard of the Brisbane Water cases I should not have known to whom it alludes, unless I had read the whole article; Capt. Faunce is named in several paragraphs in the course of the article. Re-examined-Knowing that Capt. Faunce was a military captain and police magistrate at Brisbane Water, I should have considered that the term holiday military captain applied to the plaintiff if I had never heard of the Brisbane Water cases. The defendant's counsel here admitted that the plaintiff was a magistrate at the time of the publication of the libel. The papers of the 26th October, 9th and 11th November, were handed in and considered as read. This was the plaintiff's case. The defendant's counsel moved for a nonsuit on several grounds. The most material point was that there was a variance between the libel as published and as laid in the declaration, inasmuch as a portion of the article, which materially altered the sense of it, was omitted. His Honor overruled the objection, because the declaration did not affect to set out all the libel, but

195

said "one part of which libel is in words following," clearly shewing that the whole article was not set out. Mr. a'Beckett addressed the jury on behalf of the defendant , as follows :-Gentlemen of the jury, I am not without hope that notwithstanding the eloquence of my learned friend Mr. Therry, that he has failed to make that impression upon you which, in a better cause, he would undoubtedly have succeeded in conveying to your minds, to the prejudice of my client . Gentlemen , my client's case is as simple as it is strong , it needs no circumlocution nor colouring , such as my learned friend has given to his, and to the offence with which Mr. Cavenagh is charged I shall, therefore , at once come . The charges against him consist of three libels, as they are alleged to be ; one of which, however, (that contained in the second count) my friends on the other side have thought fit to abandon. But, gentlemen , I shall not abandon it, my learned friend has read it to suit his own purpose, and I shall also read it to suit mine. I would now, however, draw your attention to the first count of the declaration , and invite you to consider whether its allegations of malicious publication against the defendant are borne out by the matter set forth. Now, whatever may be the meaning of the particular paragraphs complained of, it is obvious that the primary object of the article from which they are extracted , was to attack the system of Governor Bourke in respect to the whole police magistracy, and not for the purpose of libelling Captain Faunce. The article itself is headed "Governor Bourke's Magistracy ," and the name of the plaintiff is merely introduced as an illustration of the previous remarks of the defendant in regard to the subject he is then discussing . With the propriety, or impropriety of his opinions on that subject I have nothing to do, for whatever may have been the course taken on former occasions under similar circumstances, I shall not so far follow it as to make political allusions a part of my case. My learned friend Mr. Therry has animadverted upon certain parties "lugging in the name of the Governor upon every occasion," and seems to think that it will be done upon this . Certainly , if I wanted an example for such a course , Mr. Therry has this very day afforded me one, for although he very vehemently protested against the name of the Governor (Sir R. Bourke ) being mentioned at all , he, in the same

196

breath pronounced a most fervent eulogium upon him, and an equally fervent and vehement philippic against all who had been found in the ranks of his opposers . Gentlemen , my friend had, no doubt, good reason for the zeal with which he expatiated on the virtues of Sir R . Bourke; but it seems to me that this is not exactly the place for the exhibition of such zeal. We are both of us here as the advocates of private individuals , and such topics as my friend has introduced appear to me totally irrelevant. You are here to try the issue between private individuals ; the parties are Mr. Cavenagh and Captain Faunce , not Sir R. Bourke and his opposers . Gentlemen , the first count of this declaration charges the defendant with the publication of the following libel:"The Brisbane Water cases have excited too much of the public attention and aroused too much of public feeling, for us to consider it necessary to enter yet more fully into particulars . It is impossible for any man to view with coolness the brutal treatment to which a British Magistrate and British gentlemen were subjected at the mere caprice of a holiday military captain . The most charitable conclusion that any one , on a review of the circumstances , can come to , is, that the man must be himself the victim of extraordinary mental imbecility . If we do not come to such a conclusion , it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme lengths." Now, gentlemen , what libel is there here? It is obvious that the whole paragraph alludes to the Brisbane Water cases , of which the public were already too well aware to need any further explanation . They were aware that in those very cases, three successive verdicts had been given against Captain Faunce, for putting in irons, without any reason whatever , three gentlemen, two of them magistrates of the district in which he himself was residing , and for committing them upon charges of the most frivolous and absurd nature, at the instigation of accusers of the most abandoned and depraved character . And if that was the case, gentlemen , is it not a fair comment to ascribe Captain Faunce ' s conduct either to ignorance or malice ; or, in the words of the libel, either to "mental imbecility ," or "depraved feeling". But,

19j

gentlemen , if the whole paragraph had been set out fairly , you would have seen that, here at least, the defendant disavows imputing to Captain Faunce depraved feeling . For after stating the two alternatives to which he is driven respecting Captain Faunce's conduct, the defendant says "that the g.ved.t is the correct conclusion , however, we think must be evident from a perusal of the document we append , which however strange it may appear, is actually a certified copy of evidence given in a case of cattle stealing , preferred against Messrs. Donnison and Bean." Now, gentlemen, neither this document nor the reference to it are incorporated in the alleged libel, because if they had been it must have shown at once that there was no libel at all. It very ingeniously leaves the whole pith of the matter out , and then leaps to the fag end, where it is suggested that any man acting upon such a document as the one which is appended, is "only fit to govern an old stock horse". And, Gentlemen , when you have heard a portion of that document , and bear in mind that it is a deposition taken before Captain Faunce, on a charge of cattle stealing, in his magisterial capacity, I think you will be of the same opinion . Here is a portion of "this precious specimen of Brisbane Water evidence.""As to that part where he says that he brought upon him the odium of the inhabitants , in consequence of his having conscientiously discharged his duties as a magistrate , I say that such is not the fact, no person having been attacked by his powers as a magistrate , except in interested cases; I entertain a bad feeling against Mr. Donnison in consequence of several acts in my knowledge of his dishonor and dishonesty ; I have no bad feeling in consequence of having quarrelled with him about a bargain in corn; I did not quarrel with him, I had no bad feeling then against him , and ran six miles after this in order to do him a friendly affair; I was not aware that he had represented to the Government that I was unfit for the situation I now hold ; I have no bad feeling on that ground; in order to clear himself from that difficulty-that deriliction from conscience and honor, I believe that he would not hesitate to destroy the infants, and to make the most innocent and honorable man appear base and infamous; I except from that statement his own amiable children ; a man who is not under the restraint of principles is to be doubted in all cases, even where his own children are concerned; I should say that applies to Mr. Donnison."

198

This, gentlemen, is a fair sample of the testimony of Mr. Ex-pound-keeper, Scott, but zany as he seems to have been, there was a malignity in his folly with which it was evident Captain Faunce sympathized, or he never could have suffered such a mass of insane rubbish to have found a place in his magisterial records. So much for the first count of the declaration, and now gentlemen, we come to the second, where the libel charged is as follows:-"and who do our readers suppose had the assurance to set himself forward as one of the voters for Mr. Manning? why neither more nor less than our old friend Captain Faunce, of Brisbane Water ironmongering notoriety." Well, gentlemen, what is there libellous in this; what is there in the word ironmongering, any more than cheesemongering, fishmongering, fellmongering, placemongering, boroughmongering, or costermongering, that is so offensive to Captain Faunce? The word ironmongering here means nothing, unconnected with other circumstances to which no allusion is made here, and my friends have, therefore, felt that this count was altogether unmaintainable. But they have read it, they say, to shew the an.i.mua of the defendant, and Mr. Therry has dwelt upon the words "old friend", as a proof of the bitter and malicious feeling with which the paragraph was written. "Old friend," he exclaimed with tremendous emphasis-who but a slanderer and maligner would speak of his fellow creature as "old friend"? And then gentlemen as if you should doubt the poisonous insinuation of the term, he tells you that a person was successfully indicted for calling a magistrate a "judge os {at Sheep." Monstrous audacity indeed to call a magistrate "old friend" and a "judge of fat sheep!" it is almost as bad as "chaps and tomato saunce." (The learned gentleman here read an extract from the trial scene, Burdall v. Pickwick, for breach of promise of marriage, where the counsel for the plaintiff, rested his case mainly on those all important words in the Pickwick papers.) We now come, gentlemen, to the only accusation in the case worthy of serious consideration, viz.-in that part of the libel in which the plaintiff is charged with magL&tev aat deti.nquency. And here I will at once say, that I do not consider the term strong enough to warrant what in legal language is called "justification," and I advised my client that he was not called upon by the use of it, to plead more than the general issue. The defendant, however, dis-

199

dained any course but that which would afford him an opportunity of proving to the letter the truth of what he has asserted ; that proof is forthcoming, and for the fourth time , Captain Faunce will have an opportunity of refuting it, if he can. He has failed hitherto, and most rashly has he been advised if he has been taught to hope for success now. Gentlemen , I now come to the facts of this thrice told tale, and trust I shall not weary your patience in again relating it. We will begin with Mr. Moore's case, as that , in point of time, has precedence . It was about September , 1835, that this gentleman was residing at Brisbane Water, a neighbourhood abounding with cattle- stealers and grog-sellers , of which former class, a fellow named Richard Cape , was at the head. From him Mr. Moore made a purchase of some cattle and land, at a price which some of Cape's friends thought too little, and they accordingly did all in their power to compel Mr. Moore to give up his bargain. This, however , he refused , and hence the foundation of the persecution which Cape and his vagabond abettors immediately commenced. A charge of cattle-stealing was preferred against him before Mr. Warner , and a second charge of the same nature was repeated on the arrival of Captain Faunce, who succeeded Mr. Warner about October, 1836. Upon this charge , though made by individuals of notoriously bad character , Mr. Moore was committed on the 18th October, and remained in custody until the 3rd November , being the whole of the time , day and night , in Lton6! Without the shadow of an excuse for offering such an insult and degradation , Mr. Moore was also brought up to the bar of the Police Office in irons, for he was so found by Mr. Bean when he came to give testimony in his favour on the 2nd November. He was released on the following day, and then only at the desire of the Attorney-General ; had he been left to the mercy or discretion of Captain Faunce, there is no guessing how long his confinement might have lasted. Gentlemen , surely I might stop here , and ask if this is not " magisterial delinquency?" To prove this would be more than sufficient to justify a much stronger term, but I shall be able to prove infinitely more, accumulating as I proceed , such a mass of testimony against Capt. Faunce, as would make you stagger with wonder, and start with indignation , were you not in some measure prepared to anticipate the facts to which I allude. I have adverted to the testimony given by Mr. Bean in favour of Mr. Moore ; this led to a

200

charge of perjury against the former gentleman by the scoundrel Cape ; but this was too barefaced-too palpally false even for Captain Faunce to entertain , and, accordingly , without hearing a second witness , it was dismissed on the 15th November . Baffled in this, the reckless desperado Cape, immediately thrusts an accomplice named Meadows into the office , crying out, "This man has lost a cow, and I charge Mr. Donnison and Mr. Bean with stealing it." At this time Mr. Donnison was sitting on the bench , but no sooner was the charge made , than he was imperiously commanded by Captain Faunce to quit his seat, and take his place at the bar. Gentlemen, would you have so acted, if a brother magistrate had been accused under similar circumstances ; would you not, at all events, have paused before you had given implicit credence to a vagabond whom , the moment before , you had detected in a false and malicious attempt to fix on that brother magistrate the crime of perjury? At the least you would have been too much taken by surprise to have entertained the accusation gravely and instantly . Not so with Captain Faunce; it was sufficient for him that the accused were Messrs. Donnison and Bean, that the accuser was Richard Cape . Upon no other ground can I account for his readiness to entertain the charge , unless indeed that he was prepared for, and expected it to be made. With regard to the charge itself, you will see how utterly groundless it must have been , when I relate to you the circumstances under which it was made. (The learned gentleman here went into a detail of the facts connected with the cow Blindberry, and then proceeded as follows .) Gentlemen , of all these facts Captain Faunce was informed ; yet he shook his head still doubtingly, and with reluctance suffered the parties to go on parole , until he should hear from the Attorney General. Messrs. Bean and Donnison subsequently had an interview with the Crown Officers in Sydney , and were then told that no further proceedings would be taken against them, until the matter had been tried in a civil action. They communicated the result of their interview to Captain Faunce, who affected to express surprise at what had passed; said he believed Donnison guilty, and that he had written to the Attorney General to that effect. Need I comment,

201

Gentlemen , on the delinquency of a magistrate letting a party go at large on his parole, if he really believed him guilty , or of his expressing an opinion of his guilt without having sufficient evidence even to warrant his committal ? What could have been the motives of a man so acting; could they have been pure , impartial , unbiassed? Was not something lurking in his mind, mingling with his feelings , and tainting all his views in reference to these victims both of his imbecility and prejudice , to which we can give no other name than malice? Was there not an evident ill -will to these parties-a disposition rather to condemn than acquit them-an eagerness to believe , and a reluctance to discredit every accusation with which they were charged? But gentlemen , there is much yet to follow, if you have still any doubt upon your mind that Captain Faunce was actuated by malice. Messrs. Bean , Donnison , and Moore were, after being suffered to go on their parole , suddenly again apprehended on the 2nd January , and once more carried before Captain Faunce. From this time until the 26th, they each and all underwent a series of insults, annoyances , and degradations, which it is hardly possible to recount with temper , or remember with patience. They were brought up day after day , from the 4th to the 11th, during which time the most ridiculous and frivolous charges were preferred against them; and, on the 14th, they were all put into irons, having then been imprisoned in the lock - up for nine or ten days. And upon what charge , gentlemen, do you suppose Mr. Moore was ironed; why, for Ln6u66Lciency ob bait ! One could almost smile at such monstrous absurdity , but for the indignities which the charge entailed upon Mr. Moore. It must be remembered , too, that these gentlemen were confined, with other criminals , in a small wretched place just large enough for security , but otherwise scarcely habitable , either in space or commodiousness. Happily for Messrs . Moore , Bean, and Donnison Mr. Plaistowe arrived at the lock - up on the 12th, and immediately had an interview with Captain Faunce , upon whom his representation seems to have made a momentary impression . After the irons had been put on, Mr. Plaistowe again saw the plaintiff , and insisted that they should be taken off. To this Captain Faunce consented , but more from fear than inclination , for you may judge, gentlemen , how far his an.imu6 was in favour of the

202

prisoners, when in answer to an observation of Mr. Plaistowe that "if they were sent to Sydney in irons, and drowned in consequence, Captain Faunce would be answerable for their lives," he replied, "well, i4 I can't send them in iaonz to Sydney, I can match -them in handcusbs." You may conceive, gentlemen, that the man who could make use of such an expression as this, gave an order for the removal if the irons, on the demand of Mr. Plaisetowe, with no very good grace. However, the irons were removed; the parties were conveyed to Sydney on the 27th, tried shortly after, and all acquitted. Then followed their respective actions against Captain Faunce for damages, of which you are already acquainted with the result. This, gentlemen, is a brief history of these memorable transactions, and I now again ask you whether "magisterial delinquency" is too strong a term to describe the part Captain Faunce took in them. Is it not rather a mild term, compared with the conduct it describes; for my part, I am at a loss to conceive, language strong enough, by which to stigmatize the excesses which on this occasion have given rise to the expression. Gentlemen, if I were to follow the example of my learned friend, by reference to Digests and Dictionaries, I might quote Johnson or Walker to show you that delinquency does not import the grave meaning which he attaches to it. But beneath such an interpretation I have no desire of shielding my client. On the contrary, I at once avow that I wish the word to be understood in its severest sense; he has so used it, and if the term be too strong, he is prepared to meet the consequences. Gentlemen, my friend has talked about the liberty of the press-I am as strong an advocate for the proper exercise of that liberty as he, but in this instance I do not think it has been abused. Mr. Cavenagh has only done that which it would have been cowardly and dastardly in a free press not to have done. I do not say that I agree with the tone of the articles generally in the colonial newspapers, but in the present instance I can conscientiously approve of, and defend, the tone which has been adopted by The Sydney Gazette. It is a different thing when the press is resorted to as the engine of a discontented faction, or as the mouth-piece of some snarling clique, or hireling

203

minion who has some base and selfish purpose to gratify under pretence of ministering to the public good . Then, gentlemen, a press, so directed, ought to be trodden under foot, and scouted from society as a bane and pest of the most loathsome and disgusting kind . But when, as in the present case, it comes forward to designate magisterial delinquency by its true name, to detect and denounce oppression and tyranny , it deserves eulogy rather than censure , and has a right to look to society for encouragement and support . Gentlemen , it was well said by Mr. Justice Burton, that when an editor honestly discharges his duty, "where can he better look for protection, or from whom has he a better right to demand it, than from a jury of his country." Gentlemen , it is with this feeling the present defendant looks to you-you who are more powerful than the highest authorities in the land, if you but dare to exercise the rights which you possess. In a country like this, where the trial by jury is yet such an infantine institution , it is of overwhelming importance that nothing should stand in the way of its free exercise . Looking at the Jury before me, I have every confidence that nothing will. Gentlemen , you are not, as my friend would have you think , dealing with a systematic or a secret libeller . Secret, indeed! what form of reprobation can be more open , or less covert, than that of a public newspaper -a newspaper, too, which my friend admits to be of extensive circulation and influence . All my friend's tirade , therefore , about stabbing in the dark , is mere imageryvery well , like most of his flowing metaphors and poetic allusions , to amuse you out of Court, but, I would assure you , they have nothing to do with the present case. Gentlemen , it would have been well for Captain Faunce if he had never brought this action. One would have thought that he would have been anxious to bury in oblivion, instead of again exposing to public scrutiny, scenes in which he figures so little to his own credit. In saying this, let me at once disclaim any intention to attack Capt. Faunce in his private character, or as a private gentleman ; in these relations I have for him the highest respect . I denounce him before you here as a magisterial delinquent on public grounds; on a knowledge of facts which have been thrice proved before a Jury of his country, and which will this day be a fourth time proved.

204

Yes, gentlemen , if ever there has been a doubt of the magisterial delinquency of Captain Faunce, it will exist no longer ; if the impression of his delinquency was faint before, it shall now stand out durably and indelibly marked. From other delinquents he shall henceforth be singled out as the magLo.teAiat delinquent, and if he make this land his grave , down with him to his grave the stigma shall go. To this hour, when he dared to risk a fourth exposure of his oppression and delinquency, he shall ever revert as a dark spot in his memory. Gentlemen , I have done;-to talk of damages is ridiculous , but whatever your verdict may be, sure am I that it will not be one which the plaintiff will wish to remember . How can Captain Faunce be damaged by having that told of him to the public, of which they were so well aware before? Strange that he should complain of the name he is called, and yet hesitate not to do the acts which that name designates . He could oppress, it seems, yet blush to be called an oppressor ; magisterial delinquency he does not shrink from committing , yet cannot bear to be called a "magisterial delinquent." Could a more fitting name, gentlemen , have been chosen-or are we to apologize for the detection of oppression , and to preface its exposure by circumlocution and excuse ? God forbid, gentlemen!we hesitate not, when a poor man commits a crime, to brand it by its severest name; are we then, when the comparatively rich oppressor does so, to doff our caps, and ask pardon for naming his delinquencies by their true appellation , lest it should sound unpalatable to his ears ? Never, gentlemen ; if Captain Faunce is disgraced by the name he is called , he is still further disgraced by the acts he has committed. For being called to public account for these acts, for being denominated a magisterial delinquent in consequence of these acts, he seeks damages at the hands of a jury of his country . Three Juries have already given him an answer to his appeal, but, undeterred by their irrevocable verdict, he now makes another-not as defendant , but as plaintiff . The result I will not anticipate , but of this I am sure, that whatever your verdict may be , it will only more closely bind together the name of Captain Faunce with magisterial delinquency. Mr. John Moore-I have resided at Brisbane Water about eight years; I recollect purchasing

205

some cattle from Richard Cape in September, 1835; I recollect having William Bramble , George Caulson, and Richard Cape bound over to keep the peace; I was at Brisbane Water when Captain Faunce arrived ; a charge of cattle-stealing was made against me in October, 1836 , by Mr. Cape or his stockman; I was brought before Captain Faunce who was then Police Magistrate; I was taken to the lock-up where I arrived about nine o'clock; I was committed and placed in irons; an iron was placed on one leg and a chain and basil on the other end; Captain Faunce was very rude in his manner , and talked about my getting cattle in a very cheap and strange way; he said I had some bulls in the bush which he would cause to be shot; he said he would have me brought up for manslaughter if they hurt any body; I asked permission to go home with a constable to put my place in order, which was refused; I was in the lock-up for fourteen days, without being allowed to go into the air; the lock-up is a close confined place about nine feet square; I was taken before Captain Faunce in irons several times; I was admitted to bail; Captain Faunce told me he had heard from the Attorney General and I was to be admitted to bail; I was brought up a second time; Richard Cape , and George Turner gave evidence against me ; on the 2nd January, 1837, I was apprehended on a warrant. The witness here retired, and the Counsel calledMr. Fisher , Crown Solicitor-I have the depositions from Brisbane Water in the cases that were tried, these are the depositions in the cases of Moore, Bean, and Donnison ; this is the warrant for the committal of Mr. Donnison and Mr. Bean for cattle - stealing ; this is the warrant for the committal of Donnison and Moore for cattle-stealing; this is the warrant for the committal of Donnison and Moore for perjury , conspiracy, and cattlestealing ; this a warrant for the apprehension of Moore, dated October, 1836 ; the signatures to these six warrants are in Captain Faunce's handwriting. Cross-examined . Among the papers sent up to Sydney was the documents respecting the transfer of the cattle ; it was in Court at the time of the trial and would have been produced if required; Captain Faunce never withheld them; they were laid before the Attorney General when he decided upon filing the information.

206

Mr. Thomas A. Scott, Clerk to the Bench at Brisbane Water-When I received the subpoena to produce the depositions they were not in my possession; I am aware that on the 1st January, 1837, a warrant was issued for the apprehension of Mr. Moore for cattle -stealing ; I generally file warrants and I filed this ; a warrant was issued against Moore for insufficiency of bail ; I do not know where it is, but I presume Captain Faunce has taken it. [The plaintiff's Counsel here objected to any matter being gone into that was not in the special plea.] I saw Donnison , Bean, and Moore at Brisbane Water; I saw Bean and Moore in irons in front of the prison about half an hour; they were not examined in irons; I have seen prisoners put in irons, but it is not usual to put them in irons before they are committed ; I only saw Mr. Moore in irons once early in January ; I do not know whether Captain Faunce was aware they were in irons, he did not see them; I have had no communication with Captain Faunce on the subject; the same day they were put into irons Captain Faunce had given permission to Mr. Donnison that he should go home to his family , and I was surprised to find that he had been put in irons; Captain Faunce told me Donnison was to go home that day, and return the following morning ; it is usual to put prisoners in irons, but whether with or without the Magistrate ' s order I cannot say ; they had been committed several days when the irons were put on; I heard Mr. Plaistowe tell Captain Faunce that the papers taken from Maltby Smith were not evidence against him , having been taken by force; when Mr. Warner was on the Bench they applied for bail; Captain Faunce was willing to admit to bail if Mr. Warner was willing ; the Court was then cleared and Captain Faunce put the question to Mr. Warner , and handed him the depositions, and Mr. Warner said he saw the case in another view from what he had formerly done, and he considered bail ought not to be taken ; the watch-house is a very inferior building; since Mr. Donnison and the others were in irons there have been no prisoners in irons. Mr. Moore recalled-In 1837, on the 2nd January, I was apprehended on a warrant and taken

207

before Captain Faunce the next day; I tendered bail but it was not accepted ; William Pigott offered to become bail; I was then placed in irons; the first time was on the 18th or 19th of October, when I remained in irons for fourteen days; the second time I was in irons part of two days ; in October my assigned servant was confined on the same charge with me; he walked about apparently where he pleased ; two prisoners who have since been transported for life were confined with me for a short time , but they were not in irons; on the second occasion Mr. Donnison and Mr. Bean were locked up with me; they were in irons; , there was an assigned servant of Mr. Donnison ' s in double irons, while mine was allowed to go about the Court; on the 14th or 15th I was placed in irons; Gorman a constable ironed me , Carpenter was present, but I am not quite sure that Drew was present, although I believe he was; I made no attempt to escape; I was committed on January 5th, but was finally committed on the 11th; we were removed to Sydney about the 23rd, we arrived I think on the 27th; I had greater liberty after I was finally committed than when I was first placed in irons; there were constables about the lock-up night and day. Cross-examined-I was first committed on the 18th October; I was put in irons about half an hour after I was committed ; the servant that I alluded to as walking about, was admitted as King's-evidence ; but he had lenity shewn him before he was approver ; he was brought up charged with me and another man was admitted King's evidence against him , and therefore he could not have been King's evidence then; I do not know when he was admitted King's evidence; the two other men I allude to, were Mr . Donnison's servants ; I think they were committed subsequently to being with me; during the fourteen days I was in irons I was not allowed to go out; in January I was allowed to have provisions and wine from my house. Re-examined- I have not given evidence in these cases before. By the Jury-When I was first ironed the chief constable said he was ordered; but he did not say by whom. Mr. Willoughby Bean-I was before Captain Faunce on a charge of cattle stealing on the 14th

208

of November , 1836; George Meadows charged me with stealing a cow called Blindberry, and Mr. Donnison with killing the cow; I had no transaction with Cape but as Mr. Manning's agent; in the month of March , 1834, Meadows claimed the cow, but he never substantiated the claim; Cape charged me with perjury, but it fell to the ground; Faunce said he would refer it to the Attorney General, but he afterwards told me he dismissed it; Cape brought Meadows in and said -here is a man that has lost a cow , and these two men, pointing to me and Donnison have stolen it; we were examined for two days , and then allowed to go at large until Faunce wrote to the Attorney General; Cape took a very active part in the prosecution , and was very busy; Meadows was exceedingly reluctant , and Cape kept urging him; I appealed to Captain Faunce, and he desired Cape to leave the witness; Captain Faunce asked me if I had any documents to show how I became possessed of her; I replied I had, but having been summoned on a case of perjury I was quite unprepared to meet such a charge; on the 20th of November , I showed two documents (produced) to Captain Faunce; one of these is the document shewing when Blindberry was branded as Mr. Richard's; this is the transfer from Manning to me; I was next examined on the 2nd January; I was apprehended by Drew and the flogger; I saw Captain Faunce the day after Christmas Day; I told him I had been to Sydney , and that the Crown Solicitor had said the proceedings were to be dropped as the Attorney General did not intend to prosecute ; Captain Faunce said, it was very extraordinary , as he had received a letter from the Attorney General, to let the matter stand over until Meadows had an opportunity of bringing the matter before the Court of Requests ; he said if he received any further intimation from the Attorney General he would let me know ; when I was brought to the Police Office , Captain Faunce reprimanded me for communicating with the Crown officers ; he asked me if I had written to Mr. Fisher; I said I had not, and he said it would have been better for Mr. Donnison if he had not; several witnesses were examined; I do no know why we were ironed; we made no attempt to escape; Gorman put the irons on under the order of Drew; the same parties took them off the next morning; there were many vessels sailed while we were in confinement.

209

Cross-examined -We objected to go in a vessel that sailed on the 18th, on account of the weather. Mr. Henry Donnison-I recollect being before Captain Faunce in November , 1836; I went to the Court on ordinary business , and found Mr. Bean under examination; Captain Faunce put a question to me, but I declined acting as a magistrate , though I told him , that as it was only the oath of Richard Cape against Mr. Bean he could do nothing; while we were talking Cape brought in a man named Meadows, and said, "this man has lost a cow, and I charge these two men, Henry Donnison and Willoughby Bean, with stealing it;" we were examined for three days, when we were allowed to go until Capt. Faunce consulted the law officers; I came to Sydney and saw the Crown Solicitor; on my return I saw Capt. Faunce, and I told him that I had had a conversation with Mr. Fisher on this subject : I pointed out to him that I was peculiarly circumstanced , there not being another magistrate , and I had spoken to him on the subject of bail, and he said I should be put to no inconvenience on that account; I afterwards told Capt. Faunce that my solicitor had informed me that the Attorney- General had dropped the case; he said the only advice he had had from the AttorneyGeneral was one in which he said that the charge was to lie over until Meadows brought an action against Mr . Bean for the recovery of the cow; I pointed out to him that Meadows might let the case stand over for two or three years , when he observed that it might be brought into the Court of Requests; Captain Faunce said he still considered me liable to appear before the Police at any time and would let me know when he received any communication from the Attorney-General; I told him I should write to the Attorney-General, and I did so; two or three days afterwards Mr. Bean came from Sydney, and told Captain Faunce that he had been informed by Mr. Fisher the case was dropped; Captain Faunce said he rather thought not, but would let us know; we had a good deal of conversation , and some conversation had taken place respecting a man named Hillier , who Captain Faunce had promised to bring before the Court; he said I had dealt very uncharitably with him; I said I had not done worse with him that he had with me-in expressing an opinion out of Court that Bean was guilty of stealing the cow, and me of

210

receiving it; he said he was fully warranted in having done so, and had written to that effect to the Attorney-General; I was apprehended on January 2d, and examined the following day; on that occasion Captain Faunce told me my conduct, as a magistrate , would form a subject of enquiry; I told him I must question his competency; Mr. Scott was examined respecting my magisterial delinquency , and private conduct; I was charged with grog selling, and stealing shingles; Bramble was excessively insolent to me when I was crossexamining him; he said I was only a common criminal ; I appealed to Captain Faunce ; he said he could do nothing for me; I then said , Captain Faunce, I have already appealed to you as a magistrate, I will now address you as a gentleman; he then interfered , and told Bramble he must not speak to me in that way; Captain F. did everything in his power to irritate me-telling me first to stand back, then stand forward ; on a second occasion he told me that I was to take my trial for magisterial delinquency ; I was charged with injuring the character of a man named Bramble , in accusing him of intended arson; I have no hesitation in saying that the examination respecting the charge against Bramble was conducted very unfairly; I was committed for conspiring to accuse this man of arson, having as a magistrate asked Mr. Moore if he was afraid his house would be burned down by Bramble, and, on his saying yes, in conjunction with Mr. Warner , bound Bramble over to keep the peace; on the 4th January I tendered the evidence of Mr. Watson , and three other persons , but their evidence was not received; on the 13th of January I was brought up on a second charge of subordination; we were ironed on the 14th; I had obtained permission from Captain Faunce on that day to go and see my family, Mrs . Donnison being unwell; he told me to get ready , and a constable would go with me; I did so, and the constable said there was a counter-order; shortly after that I was put in irons; Captain Faunce told me that Carpenter should go with me; a shackle was put upon one leg; Mr. Moore and Mr. Bean were both put in irons; we had done nothing before this to cause us to be put in irons; Frost was at this time in

211

nominal custody, but he went where he pleased; the irons were taken off about ten o'clock on Sunday; I have had no communication with Captain Faunce on the subject of the irons; on the 16th January , upon my remonstrating with Captain Faunce , he said that he only acted according to his instructions. Cross-examined- I read the articles on which this action is founded ; I had nothing to do with their composition ; I have not indemnified the attorney , and am not to pay any part of the expenses. By a Juror - I was never taken before Captain Mr. Bean was Faunce in irons; Mr . Moore was ; not.

It being past 5 o'clock, the Court was adjourned to FRIDAY, MARCH 16. Mr. John Plaistowe- In the early part of 1837 I went to Brisbane Water; I visited Messrs. Donnison, Moore , and Bean in consequence of hearing they were in custody ; I arrived there January 12th; I asked Captain Faunce to take bail for them, and he said he could not without a second magistrate; I had a long conversation with Captain Faunce; I asked him if he would object to Mr. Donnison going home to see his family; he said Mr. Donnison might go with a constable ; on the Sunday morning, between six and seven o'clock in the morning; all three of them were in irons; I went over to Captain Faunce on the subject ; I told him I had seen them in irons, and was much surprised at it, and requested to know what was the cause of the ironing- if they had made any attempt to escape, or any fresh charges had been made; he said that a constable had informed him that, a man of Mr. Donnison ' s had said he would go through fire and water to serve his master, and that while he was talking with Donnison on the subject to his going home, Mr. D. had said "if my men were to rise , what could your constable do," and that those two circumstances struck him so forcibly that he thought it necessary to put on the irons for security ; I requested that the irons should be struck off, I almost insisted , I was very peremptory; I asked him why he had put Bean and Moore in irons, as this observation applied only to Donnison,

212

and he said they were connected with Mr. Donnison; the conversation ended with Captain Faunce giving me an order to take the irons off ; I pointed out to Captain Faunce that it was not only illegal but unnecessary ; I pointed out the danger that would ensue to himself if he sent them to Sydney in irons, and in the event of any accident occurring to the vessel , and they drowned with their irons on, upon which he said , "if I can't send them in irons, I can or I will,' march them in handcuffs; one day when I was speaking about the bail, he said he said that Mr. Donnison and Mr. Bean had spoken very improperly of him; I told Captain Faunce that the constables said that they had received his orders to put the irons on, and he said they were put on by his orders. Cross-examined-He said there was no second magistrate , and if he was ever so inclined he could not grant bail; Captain Faunce regretted he was obliged to send a constable with him, but if he let him go without it would be an escape ; there was some responsibility attached in allowing Donnison to go home , but it was not such a very great favor; I cannot say whether Captain Faunce said I can or I will march them in handcuffs ; there is no doubt he spoke of the power he had, but I cannot say whether he meant he had the inclination; I have heard from themselves that they were not sent in handcuffs. By the Jury-The lock-up appeared secure, but I did not examine it minutely; the iron on one leg was no additional security to their persons. William Pigott- I offered bail for Mr. Moore when he was in the watch-house ; Captain Faunce asked me what I was waiting for, and I said to go bail for Mr . Moore,when he said he could not take it. Mr. W. B. Bradley , clerk in the Supreme Court Office-I produce the information against Henry Donnison , Esq., for cattle stealing , and Willoughby Bean for receiving , verdict "not guilty;" I also produce the information against John Moore, "not guilty;" the proceedings in a case of Donnison v. Faunce, for false imprisonment , verdict for plaintiff ÂŁ350; also the record of Bean v. Faunce , verdict -on the second count, for putting in irons-for the plaintiff, damages ÂŁ300 ; also the proceedings in the case of Moore v. Faunce, verdict for the plaintiff

213

on the third count, for putting in irons, damages ÂŁ250; the venue in these cases is laid at Brisbane Water. This was the defendant ' s case. Mr. Therry said, the proceedings have now arrived at that stage, that it becomes my duty to address you , gentlemen, on the evidence; and with whatever degree of confidence I addressed you yesterday , that confidence is now increased by a I never felt greater confidence that hundred fold. I feel when I state that justice demands that large and exemplary damages should be given in this case. The very able speech of my learned friend is one among the many assurances of his success in his profession ; and I congratulate the profession in having such an addition of talent and respectability to their body. Gentlemen, he very properly threw aside all extrinsic matter; he divested it of politics and made it what it really is-the case of Cavenagh and Faunce : I honor him for his taste, and will endeavour to follow so worthy an example.-At the commencement of his speech, the learned gentleman made very little of the precedents quoted by me from Comyn and other writers, and quoted from a very excellent authority; and I will now repay my friend with a Rowland for his Oliver, by quoting from the same indisputable work. (Mr. T. quoted the passage in which the member of the Pickwick Club, denied having used the word humbug except in a Pickwickian sense, and says he had no wish to injure the feelings of the person to whom he had applied it.) This is the kind of doctrine my learned friend adopts ; he declares that he will say nothing against the private character of the plaintiff; in his private character, he is fit to govern a nation; but in his public character , he is fit to have charge of in his private nothing but an old stock -horse: character he is every thing that is right-in his public character he is every thing that is wrong.Gentlemen , I must confess that I am not gifted with such a nice sense of discrimination between what is done by a man in his private character and in his public character -what a man does, he does, and must answer for , whether done in his private or public character . I will now proceed to open more important points. My learned friend, in his address, got rid of the first count very easily; but

214

I ask you whether it is in his public or private capacity that the plaintiff has been guilty of brutal treatment-has he deserved to be sneered at as a holiday military captain, or to be placed in the comfortable alternative of being either a man of depraved feeling , or mental imbecility. I see many magistrates on the Jury, and I ask you , which of you would like to be held up as not fit to have charge of anything of more value than an old stock-horse ; there is scarcely any term of reproach not embodied in these sentences , and I rely on them strongly as being calculated and intended to bring the plaintiff into contempt ; the justification only goes to that part which accuses him of magisterial delinquency; part of the third count has not been touched. Who is the old friend alluded to,-why the man who for eighteen months they the man towards have been holding up as a tyrant; whom the defendant has such a hatred that the English language with all its exubrance of diction is not sufficient to express it. There is not one word of justification for calling the plaintiff a tool-a wretch who acts at the command of another ; if they had intended to justify this, they should have gone on to say , that the said plaintiff being moved and seduced by the instigation of the devil, did vote for the said William Montague Manning , at his order and desire. I should like to have seen my learned friends when they came to this expression , when they were drawing up the plea; how they must have dropped their pens in despair; here no justification could be attempted; so that all they had to do was to gloss it over and hope that the other side might forget it. A more retiring part than was taken by the plaintiff on that occasion was taken by no person who was present: he merely gave a silent vote without opening his lips; my learned friend on my right (Mr. Foster ,) and I took rather an active part, but the plaintiff did not. I saw one or two of the Jury voting at that election , and I ask you how you would like to be told that you acted as tools to Mr. Manning or Mr. Macalister ?-how would you resent it? At this time, gentlemen , there was no discussion of the Brisbane Water cases; they were over, and the public was occupied with other matters, so that this attack marks the determination of the defendant to hunt the plaintiff upon every

215

occasion . What can be said in justification of such conduct;-here was the plaintiff in the mere ordinary performance of a duty that he was sworn to perform , and yet the defendant rakes up all the old matters . What does this show but the deep rooted and perverse determination of the defendant to follow the plaintiff to the grave, to have an epitaph engraved on his tombstone , as he has instructed his counsel to say. I have no doubt, gentlemen, I shall be able to convince you that if the plaintiff erred at all it was only an error in judgment , and I am sure you will not tolerate such licentiousness as has marked the defendant ' s conduct, nor suffer the plaintiff to be hunted to his grave for a mere error . On this, gentlemen, the verdict must go for the plaintiff ; it is too scandalous even to be attempted to be justified . I now come to that part of the justification which alleges malice, and, under the direction of His Honor, I tell you that if there is not express proof of malice it must fail ; it must not be malice in law, but malice in fact-a bad heart, acting from corruption. My learned friend scouted anything else ; he said nothing about inferential malice. If the plaintiff, acting as a magistrate, acted irregularly, it is nothing without proof of malice; unless he acted from a corrupt heart, he is not answerable for what he did in his official capacity as a judge. Is he to be charged with delinquency for a mere error; do we not see even the judges themselves making mistakes , and what is done by a single judge afterwards set aside by the full Court. If in the office I hold , in which I give from fifteen to sixteen thousand judgments yearly, I was to be called a delinquent every time I committed an error, I would not hold office for a single hour. All the strong points of the case , which were so much relied on by my learned friend, broke down entirely. He first charged the plaintiff with the suppression of documents that would shew the perfect innocence of the parties , and that by such suppression he induced the Attorney General to file a bill against them , and put them on their trial. Gentlemen, this was a grave, a serious charge, but the evidence of Mr. Fisher shows that the documents were forwarded to Sydney in the usual course; that they were before the Attorney General when he determined upon indicting the parties , and that

218

with his safe keeping, but the very meekness which the plaintiff exhibited has been attempted to be tortured into evidence of bad feeling. The very instructions given by the defendant to his Council shew that there could be no malice ; he describes him as associating with rogues and vagabonds. Mr. a'Beckett denied having used the expression. Mr. Therry continued . When the plaintiff went to Brisbane Water, Smith, Cape and six or seven others went before him and made affidavits, and if parties will make complaints of felonies what is a magistrate to do? I say that the fact of these six or seven men going forward entirely negatives any presumption of malice that may arise : the plaintiff did not act until he was compelled to act by the weight of the depositions , which in his mind showed such a case that he was compelled to act. It is all very well to designate people cattle- stealers but mere assertion is no proof and the magistrate can only act according to the evidence. I do not complain of any thing said by Mr. Bean, who as I said before represents the genteel comedy in this case; he proves that Captain Faunce ' s conduct was kind ; that when Cape was rude to him he stopped him and turned him out of Court; that after the charge was made he allowed him to go on his own parole; that the charge was not originated before Captain Faunce but had been commenced by another magistrate a twelve month before, and, gentlemen , I ask you whether this evidence does not rebut any idea of malice , whether if the plaintiff had been actuated by malice he would have allowed the parties to have gone on parole to Sydney in order that they might afford an innocent explanation of their conduct if they could . I now come to the great hero of all these proceedings, Mr. Donnison , of whom I will say nothing unkind, but looking at these cases there is one fact apparent that he is a good hand at giving evidence,-why he treated us to a kind of pantomime representation of what took place in the Police Office. He complained very much of Bramble's insolence,why, what was more likely than that, when Mr. Donnison called Bramble a cattle stealer, he should say did I ever steal anything from you; and what is the fact, gentlemen? why, that when Mr. Donnison complained to the plaintiff he stopped him the same as he had done Cape. Another

219

piece of acting was the "come forward , sir," "go back, sir," "not so far, sir," which Mr. Donnison exhibited with so much comic humour ; but is it not probable from the adroit manner with which Mr. Donnison acted in the box, that when told to stand back he went right back to the wall, and when told to stand forward he came right up to the table, so that although he did what he was told to do, he did it so adroitly as to annoy the magistrate exceedingly , and because an individual is a magistrate or a judge he cannot shake off this mortal coil so as to command his temper at all times , and it is not because a single angry expression escapes him that it is to be considered proof of malice-malice is made of much sterner stuff . Throughout the whole evidence there is nothing to shew that Gorman in ironing the prisoners acted with the plaintiff 's orders. From the evidence of Mr. Plaistowe it appears that the plaintiff wished to grant Mr. Donnison the extraordinary indulgence of allowing him to go home to see his family after he was committed. Does that look like malice? Nay, he even regretted that he should be obliged to send home a constable with him, and when he told Mr. Donnison so he replied " what use would your constable be if my men were to rise and take me from him," and this , coupled with what had been reported to the plaintiff, that one of Donnison's men had said that he would go through fire and water for him, excited considerable suspicion in his mind that they meant to escape , and it is possible that he may have said "if these people attempt to escape they must be ironed ," but why has the defendant kept Drew and the lock-up-keeper out of sight? Why were they not brought forward to shew by whose orders they acted? If it had been shewn that the plaintiff acted more severely to these gentlemen than he did to other persons in similar circumstances there might be something to show that he had acted from a bad heart, but the reverse has been proved. He allowed them to go home , to go to Sydney , to see the Crown Officers when there was no precedent for such a course. Gentlemen , can you find the plaintiff guilty of malice, with the fact staring you in the face that during the whole time these proceedings were pending the plaintiff was in correspondence with the

220

Attorney General on the subject , and that the evidence in which the plaintiff acted was adopted by the Attorney -General as sufficient ground for putting these parties on their trials . The evidence of Mr. Plaistowe , which is so much relied on by the other side , I will meet boldly. At the first commencement of the conversation the plaintiff expressed regret at the parties having been ironed, and ordered the irons to be taken off : after this I think it is quite apparent that they were discussing the power of the magistrate and then Mr . Plaistowe says that the plaintiff said either I can or I will march them to Sydney in hand-cuffs ; he does not affect to remember positively which, but you will perceive that on this word depends the meaning of the expression ; if he said I will, it would appear that he had the will and intention so to do; but if he said I can, he was merely asserting that he had the power to do so, which, from the other parts of the conversation , appears to me to be by far the most likely. There are many other points arising in my mind , but I will not detain you any longer; I will merely recapitulate those points on which I rely, as shewing that the plaintiff did not act from malice:-Allowing them to go at large on parole -the indulgence in the watch house-and the anxiety to admit them to bail; he may have acted in error and illegally , but that is not the point. Gentlemen , my learned friend expatiated most eloquently on the liberty of the press : no doubt, gentlemen a free press is a great blessing, but the abuse of it is a great curse . If some mighty irresponsible person was using his high situation for the dispensation of curses , and acting in a tyrannical manner, in such a case as this a free press that would undauntedly attack the evil, would be the greatest blessing -the press has saved the constitution, and may do so again . But in a case of this kind it is widely different; what public benefit could accrue from the course pursued by the defendant ; what public duty called on him to hurt the plaintiff in even the most ordinary walk in life-what motive could he have had, but to gratify his own malignity. The plaintiff was borne down by misfortune -Jury after Jury had been finding verdicts with heavy damages against him; and gentlemen , I do feel that the conduct of the defendant and his abettors was most contemptible; when they saw him a ruined man , ruined both in his peace of mind and in his circumstances, to follow him up and hunt him as they did; to hold him up as an

221

-outcast to virtue, peace , and fame, His Children ' s curse, his country's shame. The defendant's counsel has told you that he (the defendant ) will follow him to the grave -nay, the grave itself shall not shield him; for he will write an epitaph for his tombstone; I ask you is a person for a mere error to be punished in this way. Alonzo, said the poet , is dead, and so is my enmity; but not so the enmity of George Cavenagh; for when he is dead, says the defendant, I will engrave an epitaph on his tombstone , that shall point him out as a criminal to posterity. I was astonished when I heard the learned counsel make the declaration ; is it to be tolerated that for such venial errors as the plaintiff has been guilty of, that he shall be pursued to such lengths ; if it is to be to be tolerated , I can only wish my friend an early grave , for although but a young man, an early grave will be far preferable to a life of scorn and public contumely. The Chief Justice commenced summing up by observing, that this was a case of considerable importance to the public , inasmuch as the character of a magistrate of the Colony was involved on the one side; while the the liberty of the press was said to be attached on the other ; and he therefore invited the particular attention of the Jury to it, but called on them to dismiss from their minds any preconceived notions, which, in a small community like this, it was almost impossible they could have avoided forming before they came into court. The plaintiff seeks compensation for two defamatory libels published in the Sydney Gazette, and I need not tell you that anything tending to bring a person into hatred, contempt , or scandal is a libel. His Honor here recapitulated the whole of the pleadings. The first question for you to consider is, whether the defendant published the matter complained of; of this there can be very little doubt, for it has been proved in the usual manner. Of that you Then, does it apply to the plaintiff. can have no doubt after the evidence of Captain Hunter; independently of which, the plaintiff is named in several places. And, thirdly, are the matters libellous-do they contain any stain on the plaintiff 's character; do they impute anything improper to him, and on this point I am bound to tell you that prima facia it is

222

highly libellous to tell a magistrate , that he has been guilty of brutal treatment , and has acted from mere caprice . I consider nothing can be more libellous than to tell a magistrate that he had abused the powers entrusted to him for the public good, and has acted improperly , not from mere error in judgment , but from a depraved state of feeling . The next paragraph which says that the plaintiff is incapable of managing anything but an old stock-horse, is also highly libellous . It is on these points that you are to consider whether the defendant has offered such justification as excuses him. In construing words of scandal we must construe them not in an abstruse or scientific point of view, but give them their popularly understood construction ; but in construing the word delinquent you are spared any trouble , as the defendant broadly asserts, that he applied it in its worse sense and meant to impute to the plaintiff that he acted from impure motives. ( His Honor here recapitulated the greater portion of the evidence observing , that without wishing to impute anything improper to these gentlemen he thought that the evidence of Messrs . Moore, Donnison and Bean, ought, in consequence of the feeling which they naturally must have towards the plaintiff, to be received with great caution. The evidence of Mr. Plaistowe he said was open to no such objection.) It was necessary , His Honor continued , to find the plaintiff guilty, that the Jury should consider that malice had been expressly proved against him, not mere malice in law or inferential malice, but malice either in his sayings or doings. On the first count the Jury must consider whether the plaintiff had acted from mere caprice and whether his conduct had been brutal. The justification pleaded to the third count did not go to the charge of mental incapacity or to the being a tool. The main broad ground on which the defendant rested, His Honor said, was, that he had done nothing which as the Editor of a public journal he was not authorised to do in discussing a legitimate topic, and it is necessary for the safety, welfare and happiness of the public that the conduct of public officers shall be criticised , but at the same time care must be taken that the power is not abused. The question for the Jury , he said , was, do the articles com-

plained of , fairly, freely and candidly criticise the conduct of the plaintiff : if the Jury believed that the plaintiff acted maliciously and corruptly, he was bound to tell them that the articles were perfectly justifiable. The Jury retired about three quarters of an hour, and returned a special verdict; on the first count for the defendant ; on the the third count for the plaintiff, damages-ONE FARTHING. Mr. a'Beckett -Will your Honor certify for three counsel for the defendant. Judge-Yes. Mr. Windeyer -Will your Honor certify for a Special Jury and three counsel, for the plaintiff. Judge-Yes. Counsel for the plaintiff , Messrs. Therry, Foster, and Windeyer ; for the defendant, Messrs. a'Beckett, Cheek, and Broadhurst. The trial lasted the whole of Thursday, and until three o'clock on Friday, and appeared to excite great interest.

224

S Y D N E Y G A Z E T T E 20 March 1838

p2,cl-2

OUR LIBEL CASE We have published in our columns of to-day, for the especial information and guidance of His Excellency Sir George Gipps, a full and accurate report of the very extraordinary libel case Faunce v. Cavenagh, which has occupied so much of the time of the Supreme Court, and so much of the public attention , during the last week . Our readers generally, but especially such of them as have arrived in the Colony since the trials arising out of the celebrated Brisbane Water cases were concluded , will find the report well worthy an attentive perusal. We request the attention of Sir George Gipps to the very enviable position in which Captain Faunce is at present placed. Captain Faunce was created a magistrate and appointed to the chair at Brisbane Water by our late talented Governor, Sir Richard Bourke . Sir Richard was not at any time over scrupulous as to the qualifications of the candidates for Police Magistracies; nor , indeed, since the truth must be told, very caring although the result of his appointments should be , as in the result of the Brisbane Water cases, to subject innocent and reputable men to "acts of wanton and unjustifiable cruelty." Indeed , for our own part, we are disposed to believe that so high was Sir Richard Bourke ' s respect for the independence of the Magistracy that neither the discovery of the utter incapacity of a Magistrate, nor a casual overstretch of power-such, for example , as dragging a brother Magistrate from the Bench and placing

225

him in irons, without any reasonable cause , or forcing open a gentleman's house to search for his own property to convict him of perjury ,-were sufficient to induce him to dismiss a gentleman from the Commission of the Peace . Sir George Gipps, therefore , need not wonder , though he may well shudder at the perusal of such atrocities , that Sir Richard Bourke retained Captain Faunce ' s name in the Commission of the Peace , for a single instant after the disclosures in the Brisbane Water cases met the light of day; for, so high was Sir Richard Bourke's respect for the independence of the Magistracy , that no crime less heinous in its nature than the unpardonable one of differing in opinion from the representative of Majesty , could ever induce our late liberal and impartial Governor to erase a man ' s name from the Commission of the Peace. Capt. Faunce has now stood the test of examination before four several Special Juries, and all have pronounced him unfit to be entrusted with magisterial power. A Jury of British gentlemen have declared upon oath that "it is impossible for any man to view with coolness the bnutak .tn.eatment to which a British magistrate and British gentlemen were subjected, at the mere caprice of a holiday military Captain." A Jury of British gentlemen have declared upon oath that they consider him "the victim A of extraordinary mental imbecility." British Jury have declared their belief that Captain Alured Tasker Faunce is utterly unfit " to be entrusted with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock -horse." Captain Faunce is accordingly pronounced utterly unfit to be retained one single hour longer in the Commission of the Peace ; if, therefore , he does not immediately resign we respectfully call upon the Governor to dismiss him. The verdict of one banth,i.ny damages has the effect of saddling us with a large

226

portion of the costs of the action, which, from the great number of witnesses necessarily summoned to support the justification, amounts to no small sum . We have already stated our willingness to submit to the loss, incurred as it has been in the public service, if it have but the effect of relieving our fellow colonists from the clutches of the "Man of Iron ." Several gentlemen , in no way connected with the Brisbane Water cases , have signified their intention to set on foot a subscription to defray the expenditure incurred in this action . To such a fund our friends at Brisbane Water and Limestone Plains will, doubtless, contribute liberally. It is due to Mr. a'Beckett, the senior counsel for the defence, that we should record our testimony to the ability with which he discharged his duty. His "burst of eloquence " to the jury in our behalf, although we needed it not, was one of the most finished, and, at the same, forcible addresses , we have ever heard delivered in the Supreme Court ,-as such it was received by all the gentlemen of the bar who were in Court at the time of its delivery. Mr. a'Beckett is yet comparatively a stranger among us, and the present is the first occasion on which he had an opportunity to show us the metal he is made of. We shall confess ourselves much mistaken if the case of Faunce v. Cavenagh does not prove the precursor of multitudes of briefs which have heretofore been crowded in other quarters. Since the above was written the subjoined document was put into our hands. Out of delicacy to Captain Faunce we refrained from entering into the particulars of the housebreaking action brought against him by Mr. Moore, as we would have been justified in doing. The following document was produced in open Court, yesterday , and read publicly by the Attorney- General, we have, therefore, in addition to the verdicts of four

227

Special Juries, an acknowledgment under Captain Faunce's own hand that he is unfit to be entrusted with magisterial authority. A document like this requires It would puzzle even Sir no comment. Richard Bourke, now, to find an apology for retaining the worthy captain's name in the commission of the peace.

A P O L O G Y

Moore v. Faunce. In consideration of Mr. Moore abandoning the action brought against me this term, I agree to pay all the costs due by Mr. Moore to Messrs. Unwin and Want in this action; and I further authorize Her Majesty's Attorney-General to make the following apology in open Court:That Captain Faunce acknowledges his error in sending the search warrant to Mr. Moore' s house, and admits that it cannot be justified, and Captain Faunce regrets Mr. Moore should have suffered any inconvenience , and acquits him of all blame in the transaction.

( Signed, ) Sydney, March 16, 1838.

A. T. FAUNCE.

228

S Y D N E Y H E R A L D 22 March 1838

p2,c5-6

MR. ROGER THERRY. To Roger. Thenoty, Esq., CommLssLonen o6 the Count ob Requests, CommL.o4Lonvt of the Count og Cla,mz, &c. &c. &c.

SIR,-As Counsel in the case of Faunce v. Cavanagh, you have, in my opinion, thought proper to overstep the line of your duty, and I therefore venture to address a few words to you in consequence-You charged me in terms, if not indirect words, with being the author of certain communications to the Gazette in November, 1836, and afterwards; and insinuate that I am the author of what you please to term the ki.bet. The articles in 1836, I have no hesitation in saying, were written by Mr. W. T. Cape and his father; of the authorship of the others concerning Captain Faunce, I know nothing; but I solemnly declare that I have never written a line of them, and I can venture to say the same for Mr. Bean and Mr. Moore. I am as innocent of their authorship as of those of the "Unpaid Mr. Cavenagh Magistrate" and "Humanitas." has thought proper, in the course of his duty, as a public journalist, to advocate a great constitutional principle; but we do not claim the merit of having induced him to do so. You must be well aware, Mr. Therry, for you are fully conversant with all these dark doings, that I have been reluctantly dragged into the arena. I have not, at any time, busied myself in the politics of the Colony; and, of late years, the derangement of my circumstances alone (for it is useless to blink the fact), would have kept me in the back ground, had I had a wish to do so; but when my character and liberty were assailed, I defended myself, perhaps effectually. "This is the head and front'of my offending." And now, Mr. Therry, can you answer me a simple question. Do you know any person who said to Mr. Bean, "they don't want to hurt you

229

but Donnison must be sacrificed , nothing will save him, if you abandon him you are safe?" and, moreover , do you know how the indictment was framed? Of Captain Faunce , I have no more to say than I have said-I have attacked him openly, not covertly, as he has done me; and, if the verdicts of two Common Juries, four Special Juries, and his own apology , will not satisfy impartial people, I cannot help it. He has done me great injury, and attempted more, but I forgive him; I consider he was only a bad instrument in worse hands. You have been pleased, with your usual good taste, to describe me as a gentleman "ju6t escaped doom the ckwtchea o6 the Attorney Genexa-," for the allusion can apply to no other than me ; you have also justified Captain Faunce by the fact of the Attorney- General having put us all three on our trial. You have, however , told only half the truth, I will tell a little more of it. When the case of Rex v. Bean and Donnison went first before the Attorney-General , he, after a month's consideration , apprised both Mr. Bean and my Attorney , Mr. Pogson , that he would not prosecute ; having at the same time written to Captain Faunce that the criminal proceedings were to be 5uapended until Meadows brought a civil action against Mr . Bean, either in the Supreme Court or the Court of Requests. Captain Faunce at any rate so informed Mr. Bean and me, and the Attorney- General never contradicted it when he had the opportunity of doing so; in fact his own words are,"I am sure Captain Faunce has correctly stated to you the purport of the communication he received from me". Captain Faunce giving further information, the Attorney- General discovers that he had never dropped the proceedingz, and informs me that he has returned the papers to Captain Faunce to use his "ministerial discretion ," and adds (hear it, ye free-born Britons!) that if Captain Faunce comThe remits me , he will put me on my trial. pledges himself Grand Jury presentative of the if a person whom he has himself beforehand that represented as "a man with one idea," should commit me , he will put me on my trial. If I

have escaped the c.2wtchel of this zealous functionary I may thank my own innocence.

230

I may congratulate myself on, escaping your c.tutche! also, for I think you were one of the Crown Counsel. I was for some time surprised that so much preparation should be made in a case of ondLnaay 4 e2ony , but I have since found out the reason . In case the judge were to take the same view as the Attorney General did, according to Captain Faunce, the Commissioner of the Court of Requests was ready;-or perhaps he would choose to send the case to the Court of Claims, when it might be sent as legally as to the Court of Requests ; the Commissioner of the Court of Claims was ready also; like Cerberus he was three gentlemen at once , and if any one has hitherto doubted the utility of your multifarious appointments , you have an answer for him. As for Mr. Fisher's explanation , I congratulate you upon it-I congratulate him on his ingenuity. He discovered that a paper containing an agreement to part with a number of cattle for a pecuniary consideration was not a bill of sale. For my own part I had rather that documents tending to establish my innocence were appended to the file of depositions , than put into the Crown Solicitors pocket. You speak of a powerful combination against Captain Faunce. The public has certainly taken a more lively interest than common in the Brisbane Water they saw free and innocent men strugcases; gling against open oppression and covert tyranny, and they gave them their moral support -that is but every thing is a combinathe combination ; tion that resisted the system of which you were I have no one of the well-paid supporters. doubt that system is now at an end; at any rate, the Lion's Mouth portion of it.

HENRY DONNISON.

MEMORIAL AND PETITIONS FAUNCE to GOVERNOR to necoven costs incm/Led

in debendLng h.,5 ac.tLona in hia capacity o6 Police Mag.i..h.tna.te

HISTORICAL RECORDS OF AUSTRALIA

XVI-I p276

GOVERNOR DARLING TO VISCOUNT GODERICH. (Despatch No. 53, per ship Eamont; acknowledged by Viscount Goderich, 25th January, 1832.)

Government House, 20th June, 1831.

My Lord,

Relief recommended for magistrates.

........................................... and that, after full and mature consideration of the Instructions it contain, the Council still felt it necessary that the Government should relieve the Magistrates from the pecuniary responsibility they had incurred. It may be proper to apprise Your Lordship that, had the Government not done so, these Gentlemen would both have been immediately thrown into Jail, as neither of them possessed the means of satisfying the demands against them. Mr. Simpson, who is no longer a Magistrate, subsequently to the occurrence in question, claimed the benefit of the Insolvent Act; ............

I have, &c., RA. DARLING.

232

233

FAUNCE'S APPEAL TO RECOVER THE COSTS OF DAMAGES AWARDED AGAINST HIM FOR ACTS AS A MAGISTRATE.

A very sorry Captain Faunce attempted to recoup the loss incurred in the discharge of his duties as Police Magistrate at Brisbane Water. He sent a memorial home to press his case.

The Captain's attempts were wholly unsuccessful and he did not get any relief from any part of the loss to which he had been subjected.

Faunce's memorial praying to be indemnified for the cost of legal proceedings instituted against him for acts as a Magistrate was addressed to the Colonial Office in London, and further correspondence on the subject is to be found in the Governor's despatches and the replies to his despatches, published in the HL tonica2 Reconda ob Auetnatta. The originals of these despatches and enclosures were sent to England and should be found in the Public Record Office in London.

Manuscript copies are held in the Mitchell Library manuscript collection, and items relating to Captain Faunce are to be found there also.

234

WHY FAUNCE ASSUMED HIS ACTIONS AS POLICE MAGISTRATE WERE PROTECTED Faunce assumed he was safe in his actions as Police Magistrate, because of the instructions and guides found in "The Au6.t2attan Magiz tn.a-te", a handbook prepared by Plunkett. Donnison derides Faunce in his book "The BKiâ&#x153;&#x201C; bane Water. Ca6e6 ", alluding to Faunce's habit of consulting his copy of "The Au6-tnattan MagLotttate" whenever he had to make a decision, and then making the wrong decision. It seems that Faunce made a final and momentous mistake when he consulted the handbook and came to the wrong conclusion that when acting in his capacity as magistrate, he was safe from being sued as such. The following excerpts from Plunkett's book may have convinced Captain Faunce that he was secure and safe from prosecution, and would have later induced him to seek indemnification from costs and fines resulting from court actions instituted by people he wrongly prosecuted as Police Magistrate at Brisbane Water.

Plunkett states in his handbook that: in V. The law always ensures to the prosecutor, all due protection in the discharge of his duty; and as it would be a great discouragement to public justice if he were liable to an action. It is settled that he cannot be sued for prosecuting a party, unless he was actuated by malice, and that the charge be destitute of any probable foundation, (9. East, 361.) .....VII. It is now fully established , that in every case of treason , felony, or actual breach of the peace , the party may be arrested under a warrant on suspicion (4. Blac Com. 290) Faunce probably had these statements in mind when he petitioned the Governor to have his fine paid by the government. It seems that the Home Secretary was unaware of the provisions to that effect contained in Plunkett's manual! Further on, on page X, a circular letter purporting to be "a brief explanation of some of the Ministerial duties of their

235

Office", states that:"First-That when any person shall be taken before one or more Justices on a charge or suspicion of felony , and the charge is supported by positive and credible evidence of the fact, he or they are required to commit such person to prison. No alternative of choice is given to the Justice or Justices , whether he or they will receive the information or not, or will commit the person charged , to prison or notboth acts are imperative; the only points left to their judgment being-1st . Whether the evidence is positive-2nd. Whether it is worthy of credit. "Secondly- The Justice or Justices are equally required to commit to prison any person charged with felony , where the charge is supported by such evidence , as if not explained or contradicted , shall in the opinion of the Justice or Justices, raise a strong presumption of the guilt of the person charged. "By the word evidence here , may be intended nothing more than the sworn information of the complainant, and if that raises a strong presumption of the guilt of the accused in the mind of the Justice , and is not contradicted or explained so as to remove that impression, the Justice is required to commit the party accused. The enquiry which is entered upon in order to explain or contradict the circumstances raising the presumption of guilt, is under the control of the Justice , and should not be continued after his mind is satisfied, that a strong presumption exists.

"Thirdly-Where any person shall be taken on a charge or suspicion of felony before one Justice only, and the whole evidence before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge , the single Justice is required, to order the person charged to be detained in custody and to be taken before two Justices at the least. It follows from hence , that no single Justice of the Peace can admit any person to bail upon a charge or suspicion of felony:' Faunce may be forgiven if he thought he was standing on sound ground, because he acted under " suspicion of felony", and as a single magistrate , he could not admit to bail and was required to commit to prison. His mistake was to iron the prisoners , as it was argued later that he was actuated by malice. Perhaps he should have known better than to tackle a man like Donnison and to rely on the Governor to cover him.

236

HISTORICAL RECORDS OF AUSTRALIA

I - XIX

365 SIR GEORGE GIPPS TO LORD GLENELG (Despatch No. 56, per ship Jessie.) Government House , 10th April, 1838.

1838 10 April

My Lord,

Transmission of

memorial from A. T. Faunce

I have the honor to transmit herewith the Duplicate of a Memorial from Captain Faunce, late of the 4th Foot, of which I believe the Original was taken to England by Sir Richard Bourke for the purpose of being presented by him in person to Your Lordship. I have, &c., GEO. GIPPS. [Enclosure.]

511

LORD GLENELG TO SIR GEORGE GIPPS (Despatch No. 166, per ship Portsea.) Downing Street , 24 July, 1838. 24 July Transmission of

correspondence re A. T. F aunce

Sir,

I have the honor to transmit to you a copy of a communication which has been addressed to me by Sir R. Bourke with a Memorial from Mr. A. T. Faunce, praying to be relieved from the consequences of Legal proceedings instituted against him for Acts performed in his character of a Police Magistrate, together with a copy of the answer, which has been returned by my direction to Sir R. Bourke' s communication ; and the substance of which you will make known to Mr. Faunce. I have, &c., GLENELG.

237

512

[Enclosure No. 1.1 SIR RICHARD BOURKE TO LORD GLENELG. 11 Wilton Street, Grosvenor Place, 14th July, 1838.

1838 24 July

My Lord, Application by A. T. Faunce

I have the honor to inform your Lordship that, upon my

for relief re loss sustained as magistrate .

leaving New South Wales (I believe upon the day previous to my embarkation), the accompanying Memorial* was presented to me at Sydney by A. T. Faunce, Esq., late a Captain in the 4th Regiment of Foot and now a Police Magistrate in the Colony, with an earnest request that I would bring his case under your Lordship's notice. It is fully detailed in the Memorial and is further explained and corroborated in a letter from the Attorney General to the Colonial Secretary attached to that Document. I would particularly beg your Lordship's attention to the Attorney General's letter, and if, upon the grounds therein stated, it shall be found possible to relieve Captain Faunce from any part of the loss to which he has been subjected by the excessive damages referred to, your Lordship's considerate interference will be exercised in behalf of a Person, whom I can with great truth recommend as a very zealous and well meaning Magistrate.

Testimony in favour of A. T. Faunce.

In the accompanying Memorial reference is made to one from the District of Brisbane Water, which through some mistake has not been forwarded. I can, however, state that I have perused it, and that it speaks in the highest terms of the conduct of Captain Faunce as Police Magistrate of the District, and is, as I have been told and believe, signed by every Landowner in the District, excepting the three gentlemen who were Plaintiffs in the actions against him.

I have, &c., RICHD. BOURKE.

* Copies of these papers are not preserved with the originals of the despatches at government house, Sydney.

238

512 [Enclosure No. 2.] SIR GEORGE GREY TO SIR RICHARD BOURKE.

Downing Street , 24th July, 1838.

Sir, Letter acknowledged .

I am directed by Lord Glenelg to acknowledge the receipt of your Letter of the 14th Instant, enclosing a Memorial from Mr. A. T. Faunce, a Police Magistrate of New South Wales, praying to be indemnified from the costs arising out of certain Legal proceedings instituted against him for acts performed in his character of Magistrate. Lord Glenelg extremely regrets that he finds himself unable to interfere in this matter; first, because in the absence of any contrary opinion from the Judges, he must assume that the verdicts pronounced in this case were substantially right; and secondly, because the Defendant does not appear to have availed himself of the means open to him of anticipating the Verdicts by a tender of amends or of preventing the second and third by a special application for a change of the Jury, or of reducing the amount by applying for new Trials.

Inability to grant relief .

Lord Glenelg has transmitted copies of this correspondence to Governor Sir George Gipps.

I have, &c., GEO. GREY.

239

HISTORICAL RECORDS OF AUSTRALIA

I-XXI 73/79

SIR GEORGE GIPPS TO LORD JOHN RUSSELL (Despatch No. 178, per ship Louisa; acknowledged by lord John Russell, 26th May, 1841.) 16 Nov.

Government House , 16th Novr., 1840. My Lord,

1840 16 Nov.

Request by A.T.Faunce for payment of costs and damages in lawsuit. Reasons for renewal of request.

Previous decision endorsed.

Agreeably to the desire expressed in Your Lordship's Circular of the 23d April, 1840, I have called on Mr. Alured Tasker Faunce for a Copy of the Memorial, which had been transmitted by that Gentleman to Your Lordship; and I herewith enclose the Copy, which has been forwarded to me by Mr. Faunce. Mr. Faunce's case was brought before Lord Glenelg by my Predecessor, Sir Richard Bourke, on his return to England in 1838; and Lord Glenelg's decision on it expressed to me in a Despatch dated the 24th July, 1838, No. 166. Mr. Faunce now appears to bring forward his case for reconsideration in the idea that, when it was disposed of by Lord Glenelg, the documents which he appends to his Memorial were not before His Lordship; I can however find no sufficient grounds for entertaining such an idea, as the Attorney General's letter of the 2nd Decr., 1837, is expressly mentioned by Sir Richard Bourke in his letter to Lord Glenelg of the 14th July, 1838; and the Memorial from Brisbane Water is also referred to, though by some accident it had not been forwarded from the Colony. I regret that I am unable to urge upon Your Lordship a reversal of the decision given in this case by Lord Glenelg. However hard it may be on Mr. Faunce to have to pay the damages awarded against him, it would certainly be no less hard upon the People of this Colony, if they were to be paid out of the Public Revenue. Such a payment would moreover confirm the opinion that the Government is in all similar cases the real Defendant, and act as an encouragement to Juries to give excessive damages. I have, &c., GEO. GIPPS. [Enclosure.]

Memorial of A.T.Faunce requesting payment of costs and damages in

THE Memorial of Alured Tasker Faunce, formerly a Captain in Her Majesty's Fourth Regiment of Foot, lately Police Magistrate of Brisbane Water in the colony of New South Wales, and now holding a Commission as a Justice of the Peace for the District of Queanbeyan in the said Colony.

lawsuit.

To the Right Honorable Constantine Henry Phipps, Marquis of

240

Normanby, Her Majesty's principal Secretary of State for the Colonies. Sheweth, That your Memorialist forwarded through the late Governor Sir Richard Bourke a Memorial (prepared at his recommendation) praying for relief from certain Damages amounting to Nine hundred pounds and Four hundred and fifty pounds costs, which your Lordship regrets cannot be repaid for the reasons stated in the annexed paper marked A.

That your Memorialist is thankful for your Lordship's already favourable consideration, which leads him to imagine that, but for those expressed objections, his request would have been granted, as Your Memorialist feels satisfied he can remove the same. 1840 16 Nov. Memorial of A.T. Faunce requesting payment of costs and damages in lawsuit.

That your Memorialist begs leave to renew his appeal and transmit in support thereof copies of Documents marked A and B, which he fears were before mislaid, as he feels that the objections raised in the annexed paper marked A are satisfactorily met by the explanatory paper marked B hereunto annexed. That your Memorialist would beg leave to explain that on his being served with a notice of action he considered he was, as the head of his department, made a mere nominal Defendant, and that he applied, as is usual in such cases, to the Governor for leave to be defended by the Crown, and that, on reference being made to the Attorney General, that officer reported that your Memorialist had a good case and thereupon the then Governor instructed the Crown officer to act on his behalf and your memorialist considered the Government would pay any damages that might be awarded. That, upon such instructions, the defence was conducted by the Crown officers, who felt satisfied that the putting on of the Irons was the act of the Chief constable and not of your Memorialist and therefore could not offer any tender of amends (one of the objections raised by the Home Government for not granting to your Memorialist the relief prayed for). That your Memorialist would explain the difficulty under which he laboured in having as a witness against him the Chief Constable, who himself committed the act of placing on Irons for which alone damages were given, and also that memorialist had no witness to contradict this person, being unable to give testimony himself. That, with regard to the verdict being substantially right, this point may explain itself from the nature of the evidence. The testimony of the constable, who put on the Irons in consequence as he stated of orders received from your Memorialist, wah -to.atty un3uppon-ted; and it is submitted he was a biassed witness, inasmuch as he wished to relieve himself from all blame or legal liability. That,with regard to amends not having been tendered, your Memorialist could not with truth take upon himself the act of

241

the constable, and thereby contradict himself; therefore the Crown officers did not tender amends, it being considered that the Magistrate would not be held responsible for the unauthorized act of a constable. That an application for a change of the Jury was not made by the Crown Counsel, It being contrary to the Rules of the Supreme Court, which declare that a certain number only shall be empannelled to try the issues in each Term. That, as to new trials, your Memorialist begs to explain that an application to that effect was made, but that the Judges would not interfere inasmuch as they considered it was entirely a matter with the Jury whether they would act upon the unsupported statement of the constable, which, however correct in law, is the great hardship your memorialist complains of. That, as stated in the Attorney General's Letter marked B, the public supposed that the Government would pay the damages, so your Memorialist rested secure in the same idea, and left the Crown to deal with the case as if he were merely the nominal Defendant.

1840 16 Nov . Memorial of A.T.Faunce requesting payment of costs and damages in lawsuit.

That your Memorialist would draw your Lordship's attention to this public opinion, supported by a strong Memorial from the Inhabitants of Brisbane Water, and begs your Lordship will Grant the request therein contained, the subscribers feeling disappointment at this temporary denial. That, if your Lordship would not pay the whole amount of One thousand three hundred and fifty pounds in money, that part may be in money and part in land, or all in land, your Memorialist being considered as a Claimant before the increased price of land which will agree with the date of the former Memorial, Your Memorialist may be relieved in some measure as through loss of time and capital the injury to Memorialist far exceeds the amount claimed. Your Memorialist therefore pray, that your Lordship will take the whole of the Circumstances into your Consideration and make such order as to your Lordship shall seem meet , and the Justice of the case require. And your Memorialist as in duty bound will ever pray, etc. A. T. FAUNCE.

Sydney, New South Wales, 13th November, 1840. [Appendix A.] SIR GEORGE GREY TO SIR RICHARD BOURKE. Downing Street , 24th July, 1838. Sir, Refusal of request for payment.

I am directed by Lord Glenelg to acknowledge the receipt of your letter of the 14th instant, enclosing a Memorial from Mr. A. T. Faunce, a Police Magistrate of New South Wales , praying to be indemnified from the costs arising out of

242

certain legal proceedings instituted against him for acts performed in his character of Magistrate. Lord Glenelg extremely regrets that he finds himself unable to interfere in this matter , first, because , in the absence of any contrary opinion from the Judges, he must assume that the verdicts pronounced in this case were substantially right, and, secondly, because the Defendant does not appear to have availed himself of the course open to him of anticipating the verdicts by a tender of amends or of preventing the second and third by a Special application for a change of the Jury or of reducing the amount by applying for New Trials. Lord Glenelg has transmitted copies of this correspondence to Governor Sir George Gipps. I have, &c., GEO. GREY.

[Appendix B.] OPINION OF ATTORNEY-GENERAL PLUNKETT. Attorney General 's Office, 2nd December, 1837. Sir, Opinion of J.H.Plunkett re case of A.T.Faunce

I have the honor to acknowledge the receipt of your letter of the 21st ultimo informing me that, in compliance with the application of Captn. Faunce, the Governor proposes to lay his case before the Secretary of State, from whom he solicits some relief from what he considers excessive damages given in the actions brought against him by Messrs. Moore, Bean and Donnisson, and requesting by the directions of his Excellency that I would furnish a full statement of my opinions in the matter, in order that it may accompany Captn. Faunce's application when transmitted to the Secretary of State. The three actions brought against Captn. Faunce by Messrs. J. Moore, W. Bean, and H. Donnisson respectively were founded on the same circumstances. The pleadings were precisely similar in each action and were supported by the same testimony. They were all for False imprisonment with one count in the Declaration for putting on Irons while in Prison. It was on this Count alone that a verdict was returned in each case against Captn. Faunce. On all the other Counts, the Juries found in his favor. Malice was urged against him in the opening statement of Counsel in the first case tried; but, as it was negatived by the Jury in that case, it was entirely abandoned, even in statement, in the two other trials. The Damages given in each case were as follows: -Moore v. Faunce, £250; Bean v. Faunce, £300; Donnisson v. Faunce, £350. I apprehend His Excellency the Governor will not consider it necessary for me to make a detailed statement of the charges, which were preferred before Captain Faunce against the Plaintiffs in these actions, and upon which they were committed by him to take their trials, because the depositions were very voluminous, and as they were given in evidence on the trials and were held by the Court and Jury in each case to be a full justification for the apprehension and committal of the parties. It may perhaps be sufficient to state that, upon the sworn Depositions of credible witnesses, Messrs. Bean and Donnisson were committed by Captain Faunce on the 4th day of January, 1837, for Cattle Stealing, and John Moore was committed on two charges of cattle Stealing in the month of October, but admitted

243

1840 16 Nov. Opinion of

to bail; and, on the second Charge on the 4th day of January last, Captain Faunce was not assisted by a second Magistrate during the investigation. Mr. Warner, the late Police Magistrate of Brisbane Water, was the only one residing in the district whose assistance he could have had in those cases, And, his residence being

J. H.P1unkett re case of

50 miles distant from the Police Office, was too far for Mr. Warner to attend it. However after the Committal of Messrs. Moore, Bean and Donnisson at the request

A.T. Faunce

of Captn. Faunce, as one Magistrate could not admit the parties to bail, Mr. Warner attended at the Police office on the tenth day of January, And, on perusal of the Depositions, he was of Opinion that they could not be admitted to bail. The second Magistrate being of this opinion, Captn. Faunce alone had no power to admit them to bail, and they were consequently kept as prisoners at Brisbane Water until the 19th day of January, as no Vessel sailed from that place to Sydney until that day. It was on the 14th of January that the Irons were put on, for which Damages were given in the three cases. It appeared in evidence that, on the Morning of the 14th, Mr. Donnisson was anxious to be permitted to go to his residence (which was a few miles from the place of confinement) in order to see his family. To this, Captain Faunce readily assented, and at the same expressed his regret that his duty compelled him to send a constable along with him. When Captain Faunce gave his orders to that effect, he was informed by the Chief Constable and a Constable who was ordered to attend Mr. Donnisson that their was danger of escape apprehended, and on that ground the Constable remonstrated against taking charge of him; they represented to Captn. Faunce that rumours were abroad that the three prisoners meditated their escape; Mr. Donnisson therefore was not permitted to visit his family in consequence of the rumours. It appeared that, during those representations of the Chief Constable when no third person was present, that Captain Faunce said they should be ironed, which was the only evidence given to fix it on Captn. Faunce. The words of Captain Faunce, as sworn to by the Chief Constable, were "Those people must be ironed." After this conversation took place, Captn. Faunce went to his own residence, which was some miles from the Police Office, and, about two hours after he went away, the Chief Constable put on the Irons. It was contended that Captn. Faunce used those words as part of a conversation, importing "That, if the rumours of intended escape were true, they should in that Faunce did not tion. He only being no third

case be Ironed." The Chief Constable would not swear that Captn. accompany the expression concerning the Irons with such a condiswore that he understood it as an order to put the Irons on. There person, it rested entirely on the evidence of the Chief Constable whether the absolute order was given by Captn. Faunce to put on the Irons. It appears that Captn. Faunce was not aware that the Irons were put on until the morning of the 15th, and, when he saw the Chief Constable then, he observed to him "that he was very hasty in putting on the Irons," which was strong evidence to shew that he did not on the 14th intend to put them on. However, an Attorney for the prisoners had an interview with Captn. Faunce on the 15th, and he did not on that occasion repudiate in direct terms the act of the Chief Constable. To this, it was contended that Captn. Faunce did not wish to implicate the Chief Constable unnecessarily, when speaking to an Attorney. Upon this evidence, the Jury found that the act of the Constable was the act of the magistrate; and, although Captn. Faunce ordered the Irons to be taken off, as soon as he heard of the fact on the morning of the 15th, the damages were given for having them on from 4 or 5 o'Clock P.M. on the 14th January, until about 9 o'Clock a.m. on the 15th. The two first cases were tried by one and the same Jury, and of course the first verdict pledged them to the second, because the Circumstances were the same; and the third case was tried before seven of the same Jurors, only five fresh Jurymen being

244

sworn, so that the same observation applies as to the last Jury for the seven Jurors the former cases could not consistently with the former verdicts return any other verdict in the third case. Having the same Jurors in these cases could not be prevented, because the Judges of the Supreme Court lately made a rule, for the case of Special Jurors, that one set of Jurors should try all the cases for trial in the same term, a rule which it is obvious must have operated injuriously to Captn. Faunce in those cases. The verdicts were given, as already stated on the count in the Declaration for putting on Irons, and, although the Chief Constable swore that he took the expression of Captn. Faunce before mentioned as an order, I am myself quite convinced that Captn. Faunce did not intend to give such an order until he was more satisfied of the truth of the rumours afloat. I conceive it a great hardship upon him to have to pay any Damages in those cases, satisfied as I am that he acted throughout the entire investigation under a strong sense of duty, and that the act for which alone Damages were given was not authorised by him, but was entirely the act of the Chief Constable, a person who had a Strong interest to relieve himself from it in giving evidence and to fix it on Captn. Faunce. For some time before the trials came on, and while the proceedings were pending, it was industriously circulated, through the medium of a violent Anti Government press, that the Government was in some way connected with the acts complained of, and would as a matter of course pay any amount of damages given. 1840

As your Excellency is aware that the Government was not in the remotest way either directly or indirectly connected with the cases of those individuals, it is - unnecessary for me to do more than state the fact; but these falsehoods, thus put Opinion of forth day after day by an unprincipled press, must have had their influence in the J.H.Plunkett Jury box, and I make no doubt swelled the Amount of damages in each case. 16 Nov.

re case of A.T.Faunce

Your Excellency is aware that the duties of Gaolers to not properly belong to the Police Magistrate; and this, in my opinion, makes it a greater hardship on Captn. Faunce, if he should be left to pay the amount of these damages, given against him for an act which (even if there was no doubt about its being done by his order) did not belong to his proper duties, it being merely for the convenience of the Government and the saving of expense to the public that he took upon himself the care of the gaol in question. I have, &c., J. H. PLUNKETT. A true copy: - JOHN H. PLUNKETT.

[Appendix C.] Memorial in support of application by

MEMORIAL. To His Excellency Major General Sir Richard Bourke , Captain General and Governor Chief in and for the Territory of New South Wales and its dependencies and Vice Admiral of the same.

A. T. Faunce WE, the undersigned Residents and Landholders of the District of Brisbane Water, beg most respectfully to communicate by Memorial to your Excellency the Great surprise and regret, which we have all felt at the result of the recent actions brought by Messrs. Bean and Moore against the Police Magistrate whom your Excellency was pleased to appoint to that office in September last.

245

It may be in your Excellency's resignation of Mr. Warner, and brought Cattle Stealing, which, in consequence Mr. Donnisson, had been handed over to

recollection that this appointment succeeded the with it the re-hearing of certain charges of of protests on the part of Mr. F. Cape and the Crown officers nine months previously,

and finally committed to Captain Faunce's sole management and responsibility, The whole District being at that time in a State of considerable alarm from the seeming impunity in the delay of those proceedings. Your Memorialists cannot presume to reflect upon the peculiar nature of the evidence, in which the parties themselves were alternately admitted in Support of their prosecution, nor to discuss the unexpected disregard to those previous facts, which, had they not been deemed by the Court to be irrelevant, would unavoidably have made their due impression upon the Juries who tried the cases in question. Your Memorialists however most respectively assure your Excellency of their thorough conviction that considerable public feeling had been most industriously excited to the prejudice of their Magistrate, from the Circumstance of his being a Military officer as well as from the insinuations of certain of the Colonial Journals .affecting not only this Gentleman, but others recently appointed to the Magistracy, in testimony of which opinion they venture to refer to certain articles, specially written on the Subject in the Herald, Gazette and Times Colonial Newspapers. Your Memorialists are further assured that, from the General temper and impartiality, added to the well known calm and deliberative habits of their Magistrate, the insecure state of the Watch house and the general reports of the contemplated escape of the parties after the committal, that no needless intentional severity was exercised towards them, but that on the contrary, as repeatedly proved in evidence, "they were allowed to sleep and mess in the Court Room and freely enjoy unrestrained exercise in the front of the building throughout the day, and that at an early stage of the proceedings two of them went home on their Parole." Your Memorialists are more particularly satisfied that "the putting on of Irons" was not a direct order from their Magistrate, but erroneously taken as such by the Chief Constable, when, in consequence of his report as to the probability of rescue, the insecurity of the Watch-house and likelihood of the parties escaping in the Laura, a vessel belonging to Mr. Donnisson, he was authorised to use further security if required. In support of these their impressions, your Memorialists again respectively advert to the evidence before the Court that the Irons were on Messrs. Bean and Donnisson for only one night, and were removed early the next morning, immediately after a Mr. Plaistowe, their Solicitor (who proved to be their Chief evidence), had conferred with the magistrate on the subject. From the few circumstances to which your Memorialists have confined themselves, having avoided even allusion to those which led to the Committal of the Parties and their Subsequent Trial at the instance of the Grand Jury or the Attorney General, when the Chief Justice occupied two hours in addressing the Jury, Your Memorialists most earnestly hope that it may please your Excellency to consider 1840 16 Nov. Memorial in support of application by A.T.Faunce

this their humble appeal on behalf of their conscientious and upright Magistrate, and to order his entire indemnification, that neither himself nor other such officers of Public Justice may be discouraged in the discharge of their arduous and important duties nor their character and property subjected at any period (without due protection) to the prosecutions of men, who may have escaped the vengeance of the laws either through their own ingenuity or the Merciful interpretation of their acts; And as in duty bound your Memorialists will ever pray. Signed by all the Inhabitants of the District, with the exception of Ten or Twelve.

246

HISTORICAL RECORDS OF AUSTRALIA

I-XXI 372,373

LORD JOHN RUSSELL TO SIR GEORGE GIPPS. (Despatch No. 276 , per ship Florentia.)

Downing Street, 26 May, 1841.

26 May. Despatch

acknowledged re A.T.Faunce.

1841. 26 May . Refusal to alter decision re claims of A.T.Faunce .

Sir,

I have received your Despatch of the 16th November, 1840, No. 178, in which you report on a Memorial from Mr. Alured Tasker Faunce, praying to be relieved from certain Damages awarded against him in New South Wales. On referring to the former correspondence in this case, I find that the Report of the Attorney General of New South Wales was under Lord Glenelg's Notice, and was fully considered by him, when his Lordship ' s decision on the claim of Mr . Faunce was formed , and indeed that his Lordship's judgment was in no inconsiderable degree influenced by that Report. The Memorial from certain Residents in the District of Brisbane , to which Mr. Faunce refers , does not appear to have been seen by Lord Glenelg, but that Memorial does not touch the grounds on which his decision proceeded. Under these circumstances , I must regard the question as one which was determined by my Predecessor with a full knowledge of all the material facts and with such a decision I must decline to interfere.

I have, &c., J. RUSSELL.

247

SIR RICHARD BOURKE'S DEPARTURE FROM THE COLONY

Henry Donnison and many settlers in rural districts disliked Governor Richard Bourke , who curtailed the authority they exercised in their office of local magistrates over the assigned convicts and Ticket of Leave holders. Sir Richard Bourke's term as Governor was, however, one of the most successful of the succession of the early Governors, who had a large amount of authority vested in them to administers and govern the Colony. At the announcement of his departure the people of New South Wales in large numbers subscribed to the cost of erecting a statue to their former Governor. They showed their appreciation of the reform and achievements which had occurred during his time of appointment. The extracts from the Sydney Gazette and from The Aud-taat,Lan show the positions taken by the two newspapers on the subject one rejoiced in his of Governor Bourke's achievements: departure , whilst still keeping an eye on one of his proteges; the other opened its columns to a subscription for a statue to honour Sir. Richard Bourke. We have extracted the names of local subscribers.

248

S Y D N E Y G A Z E T T E NOVEMBER 21, 1837

The Governor's Departure

The day for this long-wished-for event has at last been definitively fixed for the 5th December, and officially announced in the last week's Government Gazette, as annexed. Sir Richard intends embarking on board the Samuel (.inter immediately after the levee, and proceeds to sea without further delay, wind and weather permitting. We wish His Excellency a pleasant and expeditious passage to Valparaiso, whither, we are informed, the ship is bound. ..... p. 2 col. 4

The bottowLng part appeak4 in the next cokumn which Lhow4 that the Sydney Gazette editor was Captain ,stilt keeping an eye on Captta.in. FAUNCE. PLUNKETT did not take the appointment. The next Po.P ce Magistkate at M sbane Water wa-s AQsred HOLDEN Ltatt-tng

How far is Limestone Plains from Sydney, can any one inform us? we learn that His Excellency Sir Richard Bourke has thought proper to remove Captain Faunce to that part of the Colony from the district of Brisbane Water, where shingles are cut by tens of thousands, from .icon-bark, which abounds there. Captain Plunkett, brother to the Attorney-General, has been appointed to Captain Faunce's situation in that never-to-be-forgotten district.

p. 2 col. 5

249

T H E

A U S T R A L I A N p3

JANUARY 30, 1838

STATUE In honor of Sir Richard Bourke, K.G.B.

ADDITIONAL SUBSCRIPTIONS. AMOUNT already advertised ......... ................ ÂŁ 1,554

Alfred Holden, J.P . ................

Dennis Dwyer .......................

Moses Carroll ......................

Peter Fagan .......... ..............

William Spears .....................

Henry Piper ........................

James Carroll ...................... 1

R. Gorman ..........................

R. THERRY, Honorary Secretary.

N.B. -- It is requested by the Committee that all subscriptions be paid to John Black, Esq., Cashier of the Bank of New South Wales, Treasurer of the Fund.

CATTLE STEALING in the VLot&La.t o6 B4.4bane WateA in .the decade. 6ottowLng the Brisbane Water Cases of 1837-38

253

A LOCAL INSTITUTION AT BRISBANE WATER: CATTLE STEALING The B&Lebane Water. Ca'se wa's only a 'short ep.usode in a long 'stoay o6 cattle 'stealing in the d.i-stni.ct.

Atthough it may

have been the cuim.i .at Lon o6 a h.(stony o6 lawle"ne" and a et(max in the 'state o6 bad -'cetatLon's between neighbour's and Kesddent's, it was only the exaceKbatton o6 an endemic. 'state by a blu'stec.ing mag.i,5tn.ate.

A pecu'sal o6 the Pol-Lee

Mag.izt+cate''s neg.izten's, Bench Book's and Pepo'sLtton's, wilt pnov.i.de convincing paoo6 that cattle da the 'scene at Bn.izbane Water.

Lng wa's pant o6

Holden (Faunce''s 'suece"o)d

bought v.igonou'sly aga.n'st .it, with le" 6an6an.e but with good ae'sutt's.

However., he 'stilt did not etad.i.eate the

local "tnaditton".

We o56eA a hew page's extaacted

tom

h.i/ neg.i ste't's to 'show that a hew year's a6ten "the Ca'se", the bu'sLnez's wa's 'stilt 6lou)cishLng. The'se page's are extracted 6tom Bench Book's and show that cattle steattng wa's 'st tt paevalent in m-Ld-1841.

It wa's

mo'stly conducted in the northern pant o4 the dizttict which wa's le" populated.

This .time, R. Cape was not -impttcated;

he had probably already le6t the country. A name very welt known locally ÂŁ6 bound on the wrong 'side o6 the law:

that o6 Jame's WARNER, 'son o6 our 'second Pol-Lce Mag.iztrate.

Another name to appears th BRAMBLE, who had already been A.mpttcated in the Bntsbane Water. Ca'se.

He wa's then de'scr-ibed a's a

dangerou's man and a potential ar'sonLot. accu'sed John Moore o6 cattle thieving.

With R. Cape, he

254

It is evident that the 'situation in 1847 was quite aen i.oua and had wide Jmpti.cati.on's a's it involved a number o6 local people.

By 'studying Holden'a dealing with thin 'situati. on and method's os collect i.ng evidence, we may appn.eciate the 'skilled manner in which he proceeded to obtain n.e'sult's.

Had he

acted in the blu'statng and 'tough manner in which Faunce had proceeded a Lew yea" ea'tliex, penhap's we would have ended with a's much, o't pe)Lhap's mon.e, uproa,% and to'tmoil than Faunce had been able to cn.eate in 1837. Much mon.e evidence oL cattle tn.assieki.ng will be sound in the tho'tough study os the Police Register's welt back beso'te 1838 a's well a's much late.

We pre'sent the'se sew

page's only son .their panticuka)t intee'st in n.elati,on to the Bn.i'sbane Waters. Ca'se.

Cattle thieving la'sted many decade's. in it in one way on. anothe.

Few wee not involved

255

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES

5/3167 (2663)

B.B.-II 72

Police Office 28th Feby. 1839 Sir With reference to your letter No 39 / 144 enclosing papers from Mr W. CAPE respecting the unbranded Cattle in this District which papers I have the honor herewith to return, & requesting my report upon them; I have the honor to state that it is so many years since the formation of the Wild herd formation , and its numbers have increased from time to time, in so many different ways that it is next to impossible to ascertain the respective claims of the parties who have strays among them. The first Strays ( I beleive ) were from the Govt. Herds at Newcastle when the place was a Penal Settlement ; and by a Letter from your Office, which I have now before me addressed to W. BEAN Esqr J.P. dated the 27th Octr . 1829 No 29 / 793, it appears that Government approved of one WALTERS being allowed one third for his trouble in collecting the Wild Cattle of all such as he could get in, I beleive however he never Collected any, & consequently Government if this be the case, must as Mr CAPE stated, have still a claim upon the Wild Herd, some Parties too disposed of their Cattle in this District The Stock of Mr Percy SIMPSON was some years back eventually purchased by Mr LANGDON Butcher of Sydney who considerably reduced the Wild Herd , by the large herds which from time to time, he drove to the Sydney Market; They were much reduced too by Parties , reputed Cattle Stealers who drove stock into the District , & who in recovering from the Wild Herds, their own Cattle, which had strayed , are said to have driven out of the District , a great many the property of others & many tame Cattle as well, & to such an extent was this caused on, that it is notorious in the District , that some years back Cattle stealing was carried on to a great extent: Among the sufferers Mr W. CAPE appears to have been one of the most

256

unfortunate , but at the same time it appears to me that his calculations of increase of Stock have misled him in estimating the extent of his losses, for instance in his history of his Cattle at Wyong he calculates, because from March 1826 to Sept 1830 four years and three months, 52 Cows and one Bull increased seven fold, & amounted in all to a mixed herd of different ages, to 365 , therefore that mixed herd of 365 should in 1834 a similar period of four years & three months, have increased also to sevenfold , I have reason to think however from what I have heard that Mr W CAPE nevertheless has a considerable claim upon the Wild Herd; but with respect to the other parties who sign the Memorial to His Excellency , One of them Mr HENDERSON I know has lost so few, that lately he expressed some intimation of making no claim whatever upon them, I presume they signed it in reference to Cattle stealing in the District. Cattle stealing is I fear, still carried on in the District, although to a most triffling extent compared to what was formerly and on a late occasion, when a Settler made me a report which led me to send out 3 or 4 Constables to a considerable distance and at some expense to Government , incured in expediting their movements, the event proved eventually to be utterly unfounded. Near Reid's Mistake there are some suspicious Characters, and as it is over the ford at that place, that the stolen Cattle are chiefly driven, I placed a Constable there, but a lone Man was of no use and was in personal danger. I beg leave however that the Police Magistrate at Newcastle be instructed to place a Constable there to act in conjunction with one of mine, these characters would then I think be compelled to abandon their present Courses, With respect to Mr. CAPEs claim upon the Wild Herd, it would be well, I think, to advertise a meeting among the Claimants to assess their respective claims as regards the proportion of the Cattle to which they are entitled, & then what of the Crown being decided, if they or the Government would take means for getting them in , & the expenses of collecting being deducted the residue were divided among the Claimants , according to their respective claims it would not only be a pecuniary advantage to them, but a benefit to the Settlers generally and prevent much further loss from a Continuance of strays to the Wild Herd, which tame Cattle are so prone to join.

257

With reference to that part of Mr CAPEs letter which relates to the measures which Mr MOORE is adopting respecting his share of the Wild Herd, arising from him having purchased the claims of Mr MANNING & M R. CAPE Son of Mr Wm CAPE , provided Mr MOORE does not get in a greater number than the amount of his share he cannot be trespassing upon the rights of the other claimants, and with the exception of a small portion ( the oldest Cattle amongst them ) it must be impossible for the Claimants to identify the particular beasts which belonged to each other respectively. Mr MOORE has been in the habit of giving notice of each time of slaughtering such as he had collected , & that circumstance should enable the Claimants , to adjust the amount of his remaining claim on the Wild herd Mr CAPEs remark respecting timidity on my part to take active means to stop what is now going on to the injury of his interest , relates to my refusing to institute This I criminal proceedings against Mr MOORE. would not do. In the exercise of my discretion as a Magistrate , I do not consider it a Case in any degree involving suspicion of felony & not calling for Magisterial Interference.

I have the Honor to be Sir Your Most Obedt hble Servt

A. HOLDEN Police Magistrate

The Honorable The Colonial Secretary &c &c &c

258

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES 5/3167 (2663)

B.B.-II 125

Police Office Brisbane Water 21st Oct 1839 Sir In reply to your letter of the 14th Inst. I beg to state that with respect to Edward KELLY 's claim on the Wild Herd at Mangrove Creek, I have reason to believe that it is greater than you beleive as I am informed that as long ago as 12 Years back when he settled in that Neighbourhood he took with him about 30 Cows from which it is beleived there have been various strays from him to Mr John MOORE of this District also claims some of the herd partly I understand on Account of thirty six head which were lost by Mr MANNING's Stockman from a Draft which he was taking to Sydney several years ago. I am also informed that the Wild herd is supposed to consist of some of the increase of various other strays which occured at different times from Drafts of Cattle on their way from this District to Sydney - such being the Case there will always be a difficulty in identafying many of this wild herd as the property of any particular party, more than of other whose strays have joined it & I deem it right to mention to you that in the Course of a Correspondence with the Colonial Secreatary related to a claim made by a landed proprietor of this District to some of the wild Cattle running between this & Maitland that Office informed me that the Government with refer ence to that herd, recognised the right of no private Individual to property in it conceiving that it belonged to the Crown, adding that the matter had been re f ered to the Law Officers for their Opinion

I remain Sir Your Mo: Obed Servt

(signed )

W. W. SMART George Street Sydney

A HOLDEN PM

259

Colonial Secretary 's Office, Sydney, 7th July, 1840. WILD CATTLE. T having been brought under the notice of Government , that there are a number of wild unbranded Cattle running in the District of Brisbane Water, supposed to have originally strayed from the Government Herds at Newcastle, and from the Herds of private individuals , His Excellency the CovvaNoa directs it to be notified, that with the advice of the Crown Law Officers, these Cattle will be collected, under the direction of the Police Magistrate of the Districts and sold on the earliest possible day after the 1st of October next, of which due notice will be given. In the mean time, all persons who may claim any portion of them are invited to take the opportunity of proving their right before the day of sale, which will be hereafter fixed.

By His Excellency' s Command,

L. DLAS TI1OMSON.

260

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES 5/3167 (2663)

B.B.-II 161 Police Office Brisbane Water August 1840

Sir With reference to your letter of the 15th July 1840 Relative to the Wild Cattle of this District & desiring that I would take measures to collect the same with as little delay as possible &c &c I have the honor to state that I conceive the best mode of Collecting them will be at so much per head It is so long since the original strays occured however that the Owners of the Wild Cattle will be utterly unable to identify the particular tenets to each respectively, although after due examination the proportion in which they are entitled to share them might be approximated Should Government, however, get in the Cattle without these several claims being first assessed, there would probably be Claimants of as troublesome character who would nevertheless quietly acquiesce in the arrangement if communicated with in the first instance. I have the honor therefore to suggest the propriety of their being invited to form a sort of Committee to assess their claims to be approved of by His Excellency. Enclosed, I beg to forward a Copy of a letter just received from one Claimant Mr MOORE, which may furnish a specimen of the troublesome applications & Remonstrances with which Government will not improbably be released. I conceive also that it will be necessary to reimburse the several Claimants from the proceeds of the Cattle, not with the Cattle themselves, as the end in collecting them might otherwise be frustrated, and I beg therefore to suggest that the entire right to the whole herd be purchased from the several claimants immediately after assessed , a stipulation might be made at the time of sale that every beast be immediately slaughtered.

To The Honorable The Colonial Secretary &c &c &c

I have the Honor to be Sir Your Mo: Obedt Servt (signed) Gother K MANN JP

261

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES 5/3167 (2663)

B.B.-II 214 Police Office , Gosford 6th August 1841

Sir with reference to the case which has lately been under the investigation of this Bench , regarding Henry DENNY & others, charged with Cattle Stealing & your letter to Mr DONNISON of the 12th Ultimo in which you very kindly offer any aid in the matter which may be in your power, I beg to state that we should feel very greatly obliged if you would endeavour to procure from the parties stated in the enclosed extracts from Depositions lately made at this Office, to have had Cattle stolen from them , some Affidavits corroborative of the charges therein made. DENNY, WARNER, BRAMBLE , COLSTON, WILSON & GHEE having already been Committed on evidence sufficiently strong it may be beleived to convict at all events the first three , but as the evidence of the most credible of the witnesses , in this case is chiefly of but a circumstantial nature, & as the evidence of the informer DAVIS cannot be too sufficiently substantiated , it is desirable that every fact of a Circumstantial nature be ascertained as far as possible. The Parties charged however , having been nearly all of them committed & sent to Sydney, there is no particular occasion for the attendance of the witnesses here at so great a distance from their homes, on which account, it is that I am induced to trouble you in the present instance , & which I should otherwise have felt very reluctant to do I should add that DIAMOND has not yet been taken , for whom Mr DONNISON forwarded you a Warrant: he resides I think at Miller ' s Forrest , near where the Victoria Steam Packet was built. I have the honor to be Sir Your Mo Obedt Servt Edwd DAY Esqr Police Magistrate &c &c &c Maitland

(signed )

A HOLDEN P M

264

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES 5/3167 (2663)

B.B.-II 216 Police Office, Gosford 9th August 1841

Sir

Hy DENNY Thos GHEE Geo COULSON , alias YORK Jas FREEMAN Jas WARNER Wm BRAMBLE Thos WILSON John DAVIS Wm DIAMOND

I have the honor herewith to forward Original Depositions against the Individuals named in the margin - Containing various charges , but principally charges of Cattle Stealing, some oÂŁ wh-ish appear to b e corm bora t ed by the evidence of very respectable witnesses, & the by other charges to be supported or parties resident near Maitland and Newcastle I am in Communication with the Benches of these Benches respecting , from whom I expect shortly to be in receipt of Depositions , throwing further light upon these Cases, which Depositions I shall loose no time in forwarding you. Mr DONNISON will I beleive , write you on the subject of James WARNER ' s being admitted as Witness for the Crown , in whose wishes, as to the favourable influence it may have upon the issue as regards that infortunate lad & opinion as to its expediency of furthering the ends of Justice I beg to say that I fully concur , as I have had an opportunity of witnessing the very clear and distinct manner in which he has given his evidence. I beg to add that there is little doubt, but a man named FORSEY, for a long time past an associate of FREEMAN ' s especially now in Sydney Goal, & for trial at the approaching Sessions , could give much information relative to these Cases , particularly relative to the two Mares stolen from Mr BATTLEY, & that from what I have been informed by those who know the Man ' s Disposition , I think he would be extremely likely to make a full disclosure if an oportunity were offered to him, whilst he In conclusion I is in his present situation . would only observe that some of these men, DENNY in particular , are notoriously reputed Cattle Stealers & that should it appear to you that

265

any parts of the Depositions requires to be further substantiated, I shall be obliged by your kindness in pointing them out, when I shall be most anxious to act up to your instructions. I have the honor to be Sir Your Mo; Obedt Servt ( signed )

A HOLDEN J.P.

The Attorney General &c &c &c Sydney

224 Police Office Gosford 3a August Sir Mr HOLDEN having a great deal of public business to attend to this Evening for Tomorrow's post has requested me to write to you on the following subject. Henry DENNY & two other have been committed for Cattle Stealing , and are now in Sydney Goal William BRAMBLE and another have this day been committed for the same charge. James WARNER the unhappy young man who last year was convicted of horse stealing was committed yesterday and afterwards made a full Confession ( without inducement ) by which the Evidence against all parties , is made clear. For some years past a System has prevailed of stealing a lot of Cattle, killing the fat ones branding the young or any others that were not branded, and turning the rest back again. It is proved by the Depositions & Corroberated by WARNER's evidence in other Cases , & his Confession on his own , that both DENNY and BRAMBLE have a herd principally obtained in this manner. We have also Evidence on which we might Commit DENNY, for receiving stolen goods from the bush rangers, and his bad character is notorious. If the Herds of DENNY and BRAMBLE were mustered and examined no doubt something more might come out at any rate people would have a

266

reasonable chance of getting back their own I am able to depose that in or about Septr 1835 BRAMBLE stated that he had only five head & in Decr he had 15 or 16 . DENNY is partly a Squatter and partly a Trespasser upon private land whilst the Owner does not trouble himself about, but I presume he has yet the legal title to occupancy, & should we muster the Cattle in his Paddock are liable to an Action for trespass or something or other. One or two beast are sworn to by particular description , as being in those herds and as having been stolen. For those I presume we can issue search Warrants , but having Evidence enough there is no inducement to do that only. Could we put our hands safely upon the two Herds . I am sure we should give the system of Cattle Stealing between the Hunter and Hawkesbury , an effective blow, by bringing many other matters to light. Your legal Opinion and your advice will oblige us if possible by Saturday's post & have the goodness to reply to Mr HOLDEN. I have the honor to be Sir Your mo: Obedt Servt (signed ) The Attorney General &c &c &c

Hy DONNISON

267

Page 129 (229) Police Office , Gosford 28 Sept 1841 Sir The Queen agt DENNY, BRAMBLE Other

Agreeably to the suggestion of Mr DONNISON I beg to enclose a Letter bearing reference to the case named in the Margin - the information contained in which may probably affect the mode in which you may direct the indictment to be made out. I have the honor to be Sir Yr mo: Obedt hble Servt (signed )

A HOLDEN PM

Roger Therry Esqr H.M. Attorney General &c &c &c

(Copy ob the Letter above )Le4m ted .to) Honey Creek Nr W Maitland 17th July 1841 Dear Sir Your letter of the 7th I received on the 17th & hasten to reply. The Cattle alluded to in yours branded T.W. on the rump I have every reason to beleive belong to my brother Edward & have been rented to Mr Heny FENWICK since 1835. In his returns made half yearly he had a Colum for "Missing " & always a number were so described , he has lost a great Page 130 (230) number at different times - he is unable to identify them himself having resided for some years past in New Zealand but Mr H. FENWICK and his son who is living with his father , I have no doubt will be able to do so.

268 Page 130 (230) The Cause of my brother brand being J.W., is that my brother Joseph, (who is deceased & to whom the cattle originally belonged) had all the Cattle originally belonged, [*] had all the Cattle marked with that brand & as it was on the farm he Continued it. Hoping you may succeed in discovering the whole Gang & bring them to Justice I remain Dear Sir Yours truly (signed)

Geo: WELLER

Henry DONNISON Esqr J.P. &c &c &c

[*]

Wo4da dup-ti,cated by the C-tvh in copying the ÂŁet=tea. MEMO

Of the number of charges contained in the following Depositions, the one of stealing Cattle, the property of One Mr WELLER appears to be the most clearly substantiated. The Informer DAVIS states (see A p 2) the circumstances under which he became acquainted with the theft. Little value would attach to DAVIS's Evidence unsupported by that of others but the charge is corroberated by the following evidence namely: That of Henry FENWICK Tennant of Mr WELLER, who in his Deposition (page 26B) deposes to Cattle having been missed off Mr WELLER's Run & about the time DAVIS states the theft having been Committed, & in a second Deposition of the same Date, (Page 29C) swears posatively that the Cattle which by SIDEBOTTOM's Evidence (D page 23) it would appear were being driven through the District by WARNER also about the time the theft is said by DAVIS to have taken place, answer exactly to the description of those Mr WELLER's which he missed Page 131 (231) DAVIS also states (E page 3) that some of the Cattle were sold to Mr BATTLEY and others (E page 3) to one TURNER which is Corroberated by TURNER in his Deposition

269

Page 131 (231) (page 22 ) and of Mr BATTLEY in his of the same Date (page 21 ) on which occasion he produces the Cattle he purchased from WARNER ( 2 bullocks ) states that he had that MANNING shewn when to Mr FENWICK, whilst the latter in his Deposition ( see C page 27) swears posatively to their being two of Mr. WELLER ' s. The stealing these Cattle is also acknowledged by WARNER see (H page 40) In his Deposition of the 3rd August wherein BRAMBLE is charged with being the accomplice of himself & DENNY Equally with this particular charge, the other charges contained in the following Depositions , relative to thefts committed so long ago as to render it difficult to substantiate them by evidence so complete as might otherwise have been calculated upon - but as far as could be expected they have been corroberated & in no part will it I think be said that the statements are Contradictory . To afford the Evidence of such questionable Witnesses as DAVIS and WARNER the full advantage of being tested by the result of further enquiry was a principal reason for securing , as it eminated from them every particle of Evidence whether or not bearing directly upon the principal charge under investigation , the more especially as the Charge against WILSON, GHEE and YORK, as accomplices , is supported merely by the evidence of DAVIS or WARNER ( or at best of both those only) And in Order therefore to bring those Accomplices to Justice the Credibility of those two Witnesses required to be established of the various charges made against DENNY , by DAVIS, in particular is that of having harboured the Bushrangers and of ( at the time of his then laying his information) having in his possession stolen property which he had received from them , amongst these things a Coat is particularly mentioned see (I page 7) on search being made a Coat was found at DENNY's ( J page 16) which Coat forth a confidence for which he very satisfactorily accounts . A Mr FARISH identifies

Page 132 (232) as his property and as being a Coat which was stolen by Bushrangers from one of his Dray's when on it's way from Patrick's Plains to New England (see page 51 ) with respect to WARNER's Deposition (page 53 ) in which he charges DENNY with stealing to a Mr HUDSON , at Newcastle , a Bullock of Mr

TURNER it appears from a Letter which I have received

270

Page 132 (232) from the Police Magistrate at Newcastle, that the Bullock has been found & identified by Mr TURNER The Depositions taken at the time of my Search Warrant might be obtained from the Newcastle Bench. In conclusion the Chief Constable of this District , who is One of the Witnesses , in the Case can prove , that though hitherto unconvicted, both DENNY & BRAMBLE, are Notorious as Cattle Stealers , the former particularly so, & that GHEE is in some degree under the imputation. (Sd) A.H. 27th Sept 1841

271

344 Gosford 15th February 1843 Sir With reference to your letter of the 9th ins. No 43/99 to the Police Magistrate, received this Morning, we beg to Communicat some further particulars for the Governor's Consideration The reputed Cattle Stealers are Jeremiah DIPLOCK, known as the Captain of the Blue Company (the flash name of the Notorious gang that so long infested the Williams & Pattersons - John KINDRICK better known by the Cognomen of "Hell Fire Jack" & also that of "Jack's alive"

William BRAMBLE, Committed by this Bench about 2 years ago and tried with Harry DENNY, From the position which these men have chosen, they can with great facility steal & Conceal Cattle & get them by infrequented ways which they are well acquainted to the Upper Hunter & the Wollombi & Cattle from those parts may be temporarily Conceiled near & in the Cedar Bushes in the Neighbourhood of Dora Creek. It is impossible to make a person acquainted with the localities or the habits of these people, fully to Comprehend the danger of these Men's Position to the honest part of the Community; & we felt this to be a matter of so much importance that One Member of the Bench accompanied with two gentlemen of the Neighbourhood has made a personal inspection of the quarter . . & we are the more urgent as people both in this District & that of Maitland, are relying with Confidence on His Excellency preventing this occupation. We have ascertained that the Sections Nos 21 & 22 for sale on the 16th March next are there put up by them We have the honor to be Sir Your most Obedt hble Servants (signed)

The Honorable The Colonial Secretary &c &c &c

A HOLDEN PM Henry DONNISON JP Gother K MANN JP

272 (The 6ottowLng ext.'tactx cute taken S&tom the &L6 bane Watvt Court Recondx, pubtished ax a pautt o6 the HLoto&Lcat Record's o6 the CentnaI Coa'st o6 New South Wale's, and chow that cattle xteat ng and unkaw6u2 ULU g o6 cattle were sti t a problem in the d.tattLct many yeanx a6te't the conclu'Lon o6 the B&.isbane Wate-t caxex o6 the 18301x.1

HISTORICAL RECORDS OF THE CENTRAL COAST OF NEW SOUTH WALES 5/3169 (2664) C.C.III 77 et seq. Depositions of Witnesses New South Wales The Examination of John OVERALL of Gosford Brisbane Water to wit in the Colony of New South Wales Constable, and James FROST of Bungarees Noragh, Stockkeeper and Edward Hammond HARGRAVES of Bungarees Noragh, Gentleman and Edward John HARGRAVES of Bungarees Noragh Gentleman and George FROST of Bungarees Noragh in said Colony Labourer taken on oath this fourth day of April in the year of our Lord one thousand eight hundred and Sixty one at the Police Office Gosford in the Colony aforesaid.....in the presence and hearing of James FREEMAN and James FREEMAN Junior, who are charged this day before us for that they the said James FREEMAN and James FREEMAN Junior on or before the fifteenth day of March last at Cabbage Tree in the Said Colony with Suspicion of feloniously driving off the Run at Cabbage Tree Two Cows Branded C.S. and a Number and killing the Same the property of Edward Hammond HARGRAVES .........The Information & Complaint of John OVERALL of Gosford Constable, Stationed at Courumbung, taken this twenty third day of March in the year of our Lord 1861 ...... on Friday Evening the 15" Instant I was at Mr HARGRAVES at Cabbage Tree and his Son told me that he missed two Cows from the Home Run and had traced them and three Calves (one of the Cows being mother to one of the Calves) very near to the Hut of one James FREEMAN of Wyee, Part of which is occupied by his Son James FREEMAN Junior upon receiving this Information I proceeded to Wyee and commenced Searching round about the Bush - on the Monday following I saw the head of a Poley beast in the Creek at Wyee about half a Mile from FREEMAN's Hut, drifting down with the wind towards the Lake.On the following Wednesday I saw Mr Edward John HARGRAVES and George FROST passing FREEMAN's Hut I told Mr HARGRAVES I saw the Poley Head in the Middle of the Creek but could not get it - opposite to where I saw the head I found a portion of Hide and some Rib bones on the limb of a Tree that had fallen in the Creek which

273 has since been removed ....... George FROST shewed me where two head of Cattle had been recently Slaughtered the portion of two Hides exactly corresponding with the marks described to me by Mr HARGRAVES . One being a White Cow with Red Spots the other a Yellowish Brown Cow - We endeavoured to make out the Brands, to all appearance where the brands should be on the hides, the pieces were cut out, and the hides were chopped all over with an axe .. . Where one of the beasts was Slaughtered I found Some tallow upon one of the Saplings where a Candle had evidently been Stuck to Shew the parties what they were about , there was a large patch of dry blood three feet from the Said Sapling - at a distance of from 42 to 43 yards from this, there were marks of where another beast had been Slaughtered...... And this Deponent Edward Hammond HARGRAVES on his oath Saith - On Monday the 11 March last we missed two Cows from the Run adjoining my House......We had all the quiet Cattle in the yard on that day with the exception of these two cows and three Calves - I had previously missed Several Head of Cattle amongst them four working Bullocks - I immediately ordered a Search to be made for these Cattle - and discontinued all work on the Farm...... we had been from the 11th March in Search of them - My Son informed me that he had tracked the two Cows and their Calves within a Hundred yards of FREEMANS - they were tracked the day after they were missed...my Son Shewed me the tracks all the way - He shewed me "Suseys " Head - the Head produced before the Court I believe to be hers - the Jagged mark on the head I believe to have been done by a piece of lead beaten together and put into the Gun It used to be the practice of young FREEMAN ( the Prisoner) when in my Service to beat up a piece of lead and shoot Bullocks with it ..............I believe it to be morally impossible for the beasts to be killed there without the knowledge of Defendants - There are remains of other Cattle that have been Slaughtered there - The Cow "Blue Stone" I saw a part of a Hide which I believe to be hers - She had an ugly head Mr SOLLING told me her Jaw had been broken .......... ....James FREEMAN & James FREEMAN Junior Stand charged before the undersigned .... Having heard the Evidence do you wish to say anything in answer to the Charge? you are not obliged to say any thing unless you desire to do so; but whatever you Say will be taken down in writing and may be given in Evidence against you upon your trial ; whereupon the Said James FREEMAN and James FREEMAN Junior Say as follows :- We know nothing nothing about the matter Prisoners Committed to take their trial at the Sittings of the Court of General Gaol Delivery to be holden on Monday the 3d June at Sydney Signed

Hovenden HELY J.P.

Goveanok Bouake appointed Captain Aluned Ta4kvc EAUNCE a4 Police Magi tkcate at BI.isbane WateA commencing 1h.t Octobea, 1836. One og the g.ivc4t undentakLng4 og the new Mag-istn.ate wa4 .to .Ln4t-itute pnoceeding4 aga.in4t Bean, Donn,(/on and Moore son cattle steattng. Hi z newly-appointed Clen.k og the Bench,. Thoma4 Alison SCOTT o6 Point Cta,%e, began entea.ing depo4Ltton-o on page 3 og the new zegL-s-tet on 79th October. The depo4Lt.ion4 extend to page 134 and were concluded on 13th January, 1837. The depo4.it.ion-s taken by the Bench at Go'sond wLU be sound in the ze2evant volume og "The Historical Records of the Central Coast of New South Wales" now in the coua4e os being published.

275

E P I L O G U E On 26th April, 1856, Capt . Alured Tasker FAUNCE, aged 48, died suddenly whilst playing cricket at Queanbeyan. His body was brought back to his home "Dodsworth " by his fellow cricketers , his body lying on a door. Henry DONNISON , Esq., J.P., died whilst he was walking on his estate at Erina . He was killed by the fall of a small branch which struck his skull end on. He was 58. He is buried at Point Frederick Cemetery ( Pioneer Park, Gosford). John MOORE, Esq., J.P., died at Springfield . He had sold his property at Avoca and left the district, but came back later. He was aged 62. His burial is not recorded in the Church Register , and his grave is unmarked. Willoughby BEAN, Esq., P . M., J.P., first Magistrate at Brisbane Water, left the district, returning to England to study for the Ministry. He came back to the Colony and settled in Victoria as a Minister of the Church of England . Parson BEAN, M.A., died in Melbourne in 1877, aged 77. Richard CAPE , born in England in 1807, left the Colony before the end of the Court Case he had initiated . He went to Tahiti , where he died in 1879, aged 72. The fate of the others involved in the Case are not recorded.

Name

-----------I

Date & Place of Birth

Age in 1837 -------

Henry DONNISON

1789 , England

Willoughby BEAN

1800

Age

Death Year Place

Age

Before 1819 England

1847 Erina

1838 Brisbane Water

1877 Melbourne

1865 Springfield

Marriage Year Place

Did not marry

John MOORE

1803 , Ireland

Richard CAPE

1807 , England

1839

Alured T. FAUNCE

1808

1835 Liverpool

SIC

TRANSIT

GLORIA

DE BRISBANIL

1879 Papeete, 72 Tahiti 1856 Queanbeyan

AQUE VIRIS ILLUSTRIBUS

Was the Brisbane Water Case a Momentous Event in the Life of the Colony in the years 1837/1838?

The B,.ivsbane Wa,tevc Caae waa not just a petty squabble between the local Gove,nok-appointed Police Mag-ist,ate and .these local 5ettle,a on .itl-de6.ined changes o6 steattng an aged cow. It was an ep.vsode in the ata.uggle o6 the landownevua to Leta.in the p,iv.ileges and aociat aupnemaey they had been enjoying in spite o6 a Govennok who waa deteAm.ned not only to eu,tait these unwa„anted p&Lv.itege-s, but waa also detevcm.ned to make the landholde,a accountable be6o,e the law 6o-'c the & actions. The attention o6 the colonists was constantly daawn to these event's by the newapape,a pnovid,ng a butt coventage o6 the deveeopmenta 6aom the beginning to the conclusion. The dmpo,tance o6 these count actions to clea,ly Lttuattated by the 6act that F,anc.s Low in hiss "Chronology of Momentous Events in Australian History: 1829-1846" devotes two ent,iea out o6 sixteen bo,% the yea,. 1837 to the Bt.isbane UJate,. Case. Re5e,enee to the count case's is Sound aide by aide with the announcement o6 the appointment oS the new Colonial Sec,eta,.y, the naming o6 Melboukne by the GoveAnok, the death oS King William IV and the depaatu,e o6 Hiz Excellency S,om the Colony: all Momentous Events happening in the yeas 7837 and 1838.

1837: Mr. Moore, of Brisbane Water, tried for cattle stealing and acquitted, February 6; a like result attended the trials for a similar offence of Messrs. Donnison, J.P., and Bean, on 27th February.

.....actions connected with the trials of Messrs. Moore , Bean, and Donnison for cattle stealing, are brought by these gentlemen, against Captain Faunce, P.M ., the committing magistrate; in Bean v. Faunce, a verdict was given for £300; in Moore v. Faunce, a verdict for £250; and in Donnison v. Faunce (15th October) a verdict for £350.

1838: Captain Faunce obtains a verdict of one farthing damages against Mr. G. Cavanagh, the editor of the "Sydney Gazette", for an alleged libel, March 15th. The trial lasted two days.

277

A P P E N D I X 1 8 3 7 The Brisbane Water Case developed around the year 1837. It involved a number of prominent local landowners, many of their servants and a number of other local people . It would have been difficult to remain indifferent to the development of the various court cases or to their verdicts. Also in 1837, Governor Gipps ordered that a "General Return of Convicts in New South Wales" be compiled for that year. Although the Return was concerned only with the convict population, the names of the convicts ' masters were usually indicated. Due to the peculiar nature of our local society at the time, most inhabitants were either the landholders themselves or their assigned servants . Therefore , most of the names of people living in the district in 1837 were entered and mentioned in the Return; perhaps up to 90 % of the local population. Those excluded from the Return would have included free men without assigned convicts ( viz. George Meadows ); wives and children ; and a handful of constables and timbermen , who may have been free by servitude or born in the colony , or more rarely, free immigrants . There was no urban settlement at the time, and no-one could buy even a small plot to build a modest dwelling. Therefore , everybody had to live on land that had been granted to a large landholder . As a result , there would have been very few free independent settlers. As most of the population was interested or involved with the cattle industry, it is interesting to locate those mentioned in the 1837 Convict Return who were also named in "the Case". The Convict Return gives us a good picture of both the convict population and its' distribution on the large estates. For instance , who was Laurence Myles who employed 30 convicts , whilst well-known settlers Bean, Donnison and Moore had only 4, 18 and 8 respectively? In looking at the ages of the convicts as given in the General Return, together with the dates they arrived in New South Wales, we have noticed for instance the tender ages of many deportees who were tried in London. Why so? Were they the Oliver Twists of the time ; young pickpockets working the streets of London? James Freeman is a typical example. If his age is correctly given in 1837, then he would have been 10 years old at the time he arrived here. However, the ages given for any one convict at the various Musters and the 1828 Census can give quite an erroneous impression . In the 1828 Census, James Freeman's age is given as 31, making him 20 years old when he arrived. If he was indeed 10 years old when he arrived , this fact alone might go a long way to explaining why he was in strife for most of his life.

278

Maltby Smith is another interesting individual . Arriving at the tender age of ( probably ) 15 years, he could read and write, causing him to be the object of much suspicion at the time of the arrests of Donnison , Bean and Moore , when Smith was "accused" of making "writings " on apparently any scrap of paper he could find. We have deleted a couple of obvious duplications of entries made in the General Return, and have corrected obvious spelling errors. On the following pages we have provided tables which have been arranged in alphabetical sequence . The first is a general listing of all the convicts in the district of Brisbane Water in 1837. The next table is a listing of the masters with their assigned convicts . The third list is a little more information about some of the convicts . It should be noted that Jonathan Warner, a large landholder of the time , had other assigned servants , but they are apparently included in the Newcastle district. This may be true of other landholders as well. We hope that the study of the tables may be of help to students of local demography. The Brisbane Water information extracted from the ABGR [*] publication of the 1837 Convict Return was very kindly provided by Professor Butlin of the Australian National University. That list was then entered into a Microbee Computer using the dBase II programme . Various indexes were made, and then checked with both Professor Butlin's computer print-out and the ABGR volume. Details of the names and arrival dates of ships were obtained from Charles Bateson's The Convict Sh7,p6 1787-1868 (edition published by the Library of Australian History in 1983). We are indebted to other ABGR publications of the 1811, 1814 and 1822 Musters, and to the Library of Australian History publication of the 1828 Census, for comparative data. Between the 1828 Census and the 1841 Census, which are both precious sources of individual data, the Convict Return of 1837 provides another type of information. The three sources help us to understand the nature of our population at the time of the slaughter of the unfortunate Blindberry.

Joan Fenton

[*)

Butlin, N.G ./ Cromwell , C.W./Suthern , K.L. (Eds. ) Genekak Return ob Convic.t6 in New South Wa1e6 - 1837 (North Sydney 1987 ) Australian Biographical and Genealogical Record in association with the Society of Australian Genealogists.

279

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER

YEAR OF WHERE AGE MASTER ARRIVAL TRIED

REMARKS

SURNAME

FIRST NAME SHIP OF ARRIVAL

ADAMS

Edward

HERCULES

1823

WILT.

MYLES , L

Not 1823.

ALCOCK

Peter

MARQUIS OF HUNTLEY

1829

CHEST.

HELY , F A

Not 1829. Note 2

ALEXANDER

James

CLYDE

1833

LONDON

HENDERSON , R

Not 1633.

MDX

HELY, F A

ANDERSON

David

MARY ANN

1835

ANDERSON

Henry

MANGLES

1820

MDX

ARNOLD

Anthony

WATERLOO

1833

MDX

BUCKLAND, J

ARUNDEL

Robert

ASIA

1833

YORKS.

BUCKLAND, J

ASHBEY

Joseph

ASIA

1832

COLCH.

DONNISON, Hy

ASQUITH

David

LLOYDS

1837

CHEST.

MOORE, J

BAILEY

William

SURRY

1834

HENDERSON, R

BARBER BARD ON

Samuel

TOL ** Note 2

TOL

John

ROYAL SOVEREIGN

1834

LONG FORD

O'BRIEN, Thos McPHERSON, J

BARKER

Sarah

ELIZABETH

1836

BARNETT

Joseph

MARQUIS OF HASTINGS

1826

BATEMAN

George

BEASLEY

William

STRATHFIELD- 1836 SAY 1831 BURRELL

TOL Note 1

COVENTRY

GARRICK, John

SALS.

MYLES , L

Not 1831.

RELY, F A

Not 1833. Note 2

BELL

James

CLYDE

1833

BENNETT

Cornelius

ELEANOR

1831

BERRY

Daniel

JOHN

1829

DONNISON, By

BERRY

James

ANDROMEDA II 1833 1829 JOHN

WEBBER, J J

BERRY

John

WORCS. MDX

TOL Note 2

DONNISON , Hy

•+%< Note 2

DONNISON , Hy

Not 1835. TOL

BEST

Samuel

HOOGHLEY

1835

BIFFIN

James

LADY HAREWOOD

1831

BIRCH

Joseph

HOOGHLEY

1834

RICHARDS, Dnl Note 2

BLACKFORD

Ambrose

PHOENIX

1828

SPEARS , Wm

BOGIN

Francis

BENGAL MERCHANT

1835

HELY, F A

BOSSY

William

MIDAS

1828

BUCKLAND , J

BOURKE

Patrick

PARMELIA

1834

WOODWARD, Jas

BRANCH

James

RECOVERY

1836

CCC

MYLES, L

BROWN

John

ASIA

1832

CORK

DONNISON , Hy

BROWN

John

PORTLAND

1832

BUCKLAND, J

BROWN

Robert

LLOYDS

1833 CARMAITHEW 28

CAPE , W T

WARNER, J

MOORE, J

BROWN

Stephen

CLAUDINE

1829

BULLOCK

James

LLOYDS

1837

WARW.

BURNETT

Edmund

MARQUIS OF HUNTLEY

1830

LONDON 24

BURNS

John

EARL GREY

1836

MAYO

BURNS

Patrick

NORFOLK

1832

BUTT

Matthew

SUSAN

1834

BYRNE

Thomas

ST . VINCENT

1837

BRIST.

Notes 1 & 2

Not 1828. Note 1

•••=

Note 2

Died 14 Dec.1838

JOHNSON, W

FAGAN, Peter

MYLES, L

BEAN , Will-by

MATCHAM, C H M

Note 1: Not located in 1828 Census Note 2: Further reference/s to this individual in the Brisbane Water Court Records, part of the Historical Records of the Central Coast of New South Wales. See separate list for more information.

Note 1

280

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER

SURNAME

FIRST NAME SHIP OF ARRIVAL

YEAR OF WHERE AGE MASTER ARRIVAL TRIED

REMARKS

CALLAGHAN

Martin

ELIZA

1829

CALVERT

James

JOHN

1827

CANNON

Thomas

NORFOLK

1824

GOLD, John

Note 1. Not 1824

CARROLL

Bryan

CITY OF EDINBORO

1831

MOORE , John

Not 1831. Note 2

CARROLL

John

ANN & AMELIA

1825

BEAN, Will'by **

CARROLL

Moses

REGALIA

1825

POLICE

CARTER

George

ELEANOR

1831

DONNISON, Hy

CARTEY

John

NORFOLK

1832

MYLES, L

CHAMBERS

Henry

SUSAN

1834

MYLES, L

CHAPMAN

Charles

CATHERINE S. FORBES

1830

RELY, F A

CLEWS

John

MARQUIS OF HUNTLEY

1830

SPEARS, Geo

COCKCROFT

John

WESTMORELAND

1835

RELY, F A

COFFEE

William

BLENHEIM

1834

BUCKLAND, J

COLLINS

Henry

ASIA

1833

BUCKLAND, J

COONEY

Henry

SUSAN

1834

MYLES, L

COOPER

Frederick

LADY KENNAWAY

1836

RELY, Georgiana

COYLE

Peter

LADY KENNAWAY

1835

BEAN, Will'by Note 2

CREVAN

James

JAMES LAING 1834

MYLES, L

CULLEN

John

ROYAL ADMIRAL

1835

SCOTT, T A

CUNHAM

Edward

LORD MELVILLE

1823

CAPE, W T

CUNNINGHAM

Alexander

ELIZA (3)

1829

CURRY

Michael

PORTLAND

1833

MYLES, L

CURTIN

William James

HADLOW

1819

WATSON, H G

DAGGER

HEBER

1837

CLARE

MOORE, J

DALEY

William

GENERAL STEWART

1818

LONDON

DANIEL

James

DERBRIDGE

William

HERCULES

1832

HERTF .

RELY, F A

DEVINE

George

COUNTESS OF 1832 HARCOURT

LAUDON, John

DICKSON

William

ROYAL ADMIRAL

1833

DUBLIN

SPEARS , Joseph

DONOVAN

Denis

LADY HAREWOOD

1831

L ' POOL

WATSON, H G

DOOSS

Mohomed

SOVEREIGN

1834 PRT.LEWIS 25

BUCKLAND , J

DOVEY

Adam

JOHN

1828

WARWICK 25

DRAKE

James

HOOGULEY

1835

YORKS .

WOODBURY, Rich.Note 1. Not 1828 Not 1835. Note 2 DONNISON , Hy

DUEL EARL

George Isaac

AURORA ADRIAN

1833 1830

WILTS . SALSB .

23 28

CAPE, W T DONNISON, Hy

ELLINGHAM

William

HOOGHLEY

1828

ELY

FARRELL FERDY

Peter

CLYDE

1832

L ' POOL 21

James

SIR GODFREY 1826 WEBSTER

FIRM

Edward

BLENHEIM

KELLY, Edw

TOL

o,.r Arr.1826.Note 2

Ship: Katherine Stewart Forbes

Note 1. Not 1823 TOL ** Not 1819 TOL > TOL

1834

GALWAY

MYLES, L

Last trip of this ship in 1828.

"Royal Sovereign"?

TOL TOL

Note 2

Since Free TOL

Note 1

MYLES, L

Note 1: Not located in 1828 Census Note 2:

Further reference/s to this individual in the Brisbane Water Court Records, part of the Historical Records of the Central Coast of New South Wales. See separate list for more information.

281

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER

YEAR OF WHERE AGE MASTER ARRIVAL TRIED

SURNAME

FIRST NAME SHIP OF ARRIVAL

FITZPATRICK

William

JAVA

1833

KILK ' NY 23

PIPER, Hy

FITZWATER

Francis

JAMES PATTISON

1837

CENTRAL 27 COURT

SPEARS, Wm

FLETCHER

Two entries for same man TOL

William

MANGLES (1)

1820

LONDON

FLYNN

Ann

MARY

1835

LONDON

DONNISON, Hy

FOLEY

Richard

MANGLES

1826

CORK

BUCKLAND, J

Robert or

SURRY

1834

DORSET

HENDERSON, R CONNOR, G C

FOSSEY

REMARKS

** Note 2

TOL

Joseph

FRALEY

Owen

WATERLOO

1836

CLARE

FRANKS

James

LORD ELDON

1817

LONDON

FREEMAN

James

LORD ELDON

1817

LONDON

GARRETT

John

JOHN

1826

LANCS .

GLEES ON

David

TOL ** TOL *c Note 2

BUCKLAND, J

1829

HELY, F A

MARQUIS OF HASTINGS

1825

GOVERNOR

Not 1826

READY TOL

GOULD

Phillip

GRACE

Thomas

SUSAN

1834

MYLES, L

GRAYDEN

Joseph

LORD MELVILLE

1830

FAGAN, Peter

GREEN

Charles

ELEANOR

1831

READING

BUCKLAND, J

LONDON

CAPE, Rd

GREIG

William

ROYAL SOVEREIGN

1835

GRIFFITH

Samuel

HADLOW

1818

GURNEY

James

CATHERINE S. FORBES

1831

MYLES, L

GUTHERIE

Patrick

HIVE

1835

BEAN , Will'by

HAGAN

Edward

BLENHEIM

1834

MYLES, L

MOORE, John FAGAN, Peter

HALY

John Senior HEBER

HAMMETT

George

1836

HARRIGAN

Michael

1822

BENGAL MERCHANT SOUTHWORTH

Note 2

TOL •• Note 2

1837

** Not 1825

"Katherine Stewart Forbes ". Not 1831

or EMMETT TOL

Note 2

HARRIS

Aquilla

LLOYDS

1833

WATSON, H G

HAWES

Thomas James

LADY KENNAWAY

1836

HELY, G'iana

HAYES

Daniel

ASIA

HAYES

Pearce

ASIA

1832

42 28

HENRY

Frederick

CATHERINE S. FORBES

1831

MYLES, Laurence

HERON

George

MALABAR

1819

MYLES, L

HESLAM

Patrick

FERGUSON

1829

MYLES, Laurence " Fergusson"

HICKEY

Thady

WATERLOO

1836

CONNOR, G C

HIGGINS

Michael

GOVERNOR READY

1829

HELY, F A

HIGGINS

Peter

JOHN BARRY

1836

MYLES, L

TOL ,,;; Note 1 TOL Note 2 "Katherine Stewart Not 1831 Forbes". Note 1 (Ditto 1822)

TOL

HILLIARD

John

JAMES PATTISON

1830

HITCHCOCK

Solomon

PORTLAND

1832

HELY, F A

HOD DOCK

John

MARY

1831

HELY, F A

HOGAN

Jane

ROSLYN CASTLE

1836

BUCKLAND, John

HOGARTY HOSIER

Patrick

1832

BUCKLAND, Jn

Thomas

NORFOLK FAIRLIE

1834

PINTOX, Eman'l

HUDSON

William

LARKINS

1832

HELY, F A

"Roslin Castle"

Not 1832

Note 1: Not located in 1828 Census Note 2: Further reference /s to this individual in the part of the Historical Records of the Central See separate list for more information.

Note 2

Brisbane Water Court Records, Coast of New South Wales.

282

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER

REMARKS

YEAR OF WHERE AGE MASTER ARRIVAL TRIED

SURNAME

FIRST NAME SHIP OF ARRIVAL

HUGHES

John

LADY KENNAWAY

1836

RELY, G'iana

JAMES

Edward

CATHERINE S. FORBES

1830

HELY, F A

JARVIS

Sarah

PRINCESS CHARLOTTE

1827

MERCHANT , Geo

JENKINS

John

PORTLAND

1833

BUCKLAND, Jn

DALEY, Francis

" Katherine Stewart Forbes". Note 2

JONES

John

MORLEY ( 5)

1829

JONES

John

LADY HARE WOOD

1831

CAPE, Rd

JONES

John

JOHN BARRY

1836

MYLES, L

JONES

Robert

JOHN BARRY

1836

MYLES, L

JONES

Thomas

MARQUIS OF HUNTLEY

1828

BUCKLAND , Jn

LADD

Joseph

MARQUIS OF WELLINGTON

1815

LANDERS

William

FAIRLIE

1834

LANG

Robert

TOTTENHAM

1818

LANFORD

George

ELIZA

1820

LAWRENCE

Sophia

HENRY WELLESLEY

1837

LEAN

James

EARL GREY

1836

MARQUIS OF HUNTLEY

1837

LEE

Joseph

Note 1

HELY, F A TOL ** Note 2 HENDERSON ,

Robt

TOL

HENDERSON,

TOL Not 1837.

Robert CAPE, Rd

Thomas

MARY ANN

1835

LEPORD

William

ATLAS

1816

LETHRIDGE

Jeremiah

JOHN

1837

EARL GREY

1837

20 24

SPEARS, Wm

Michael

Note 2

TOL +*

LEE

LINEHAM

Note 1

TOL ,t.. HELY , George TOL

Not 1837

Not 1832

LOUNDS

Mark

MARY

1832

MADDEN

Patrick

PARMELIA

1834

PEAT , George

MADDEN

William

JANE

1831

DONNISON, Hy

MAHER

James

WATERLOO

1836

CONNOR, G C

MAYBERLEY

John

NOTHSDALE

1830

DONNISON, Hy

McCURDIE

John

LADY KENNAWAY

1836

HELY, George

MELBOURNE

William

CASTLE FORBES

1835

MILES

William

ROYAL CHARLOTTE

1825

PITTING, Thos Not 1835. Not 'Castle Forbes'. ** Note 2 DONNISON , Hy

MILLAR

Thomas

MYLES, L

John

LADY NUGENT 1835 1829 LAYTON

BUCKLAND, Jn

MINCHIN

Mary

SOUTHWORTH

1832

TOLMEY, John

MITCHELL

Charlotte

1833

SPEARS , Wm

MONROE

E R or K

GEORGE HIBBERT HERCULES

1834

TOL Not 1834 TOL

TOL *-

MILLER

MOORE

. Joseph

LADY HAREWOOD

1831

MORAN

Edward

LORD SIDMOUTH

1819

MORLAN MUMFORD

Michael

1833 PORTLAND LADY NUGENT 1835 MANGLES ( 1) 1827

MYLES, L

MURPHY

William Philip

Not 1833

TOL

Note 2

** Not 1827

Note 1: Not located in 1828 Census Note 2: Further reference / s to this individual in the Brisbane Water Court Records, part of the Historical Records of the Central Coast of New South Wales. See separate list for more information.

Note 2

283

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER SURNAME

FIRST NAME SHIP OF ARRIVAL

MURRAY

John

ISABELLA ( 3) 1823 1835 SUSAN

32 25

GOVERNMENT

HUMPHRIES,

MYATT

Joseph

NEWCOMB

Benjamin

LADY HAREWOOD

1832

NEWELL

Matthew

HEBE

1830

NEWMAN

Charles

MARQUIS OF HUNTLEY

1830

FAGAN, Peter

NEWMAN

William

ENGLAND

1835

ASIA

26 32

AMBROSE, Thos

1828 1830

Henry

NICHOLAS

Thomas

NORMAN

NITHSDALE

REMARKS

YEAR OF WHERE AGE MASTER ARRIVAL TRIED

TOL ** Not 1835-Note 2•••

Thos TOL ** Not 1830.

TOL ** Note 2 TOL Note 2 Not 1831

NORTHWOOD

William

ISABELLA

1831

DONNISON , My

O'BRIEN

Patrick

LADY McNAUGHTON

1835

MYLES, L

OLDFIELD

Samuel

1818

TOL

OXENHAM

William

SHIPLEY

1818

TOL ** Note 2

PALMER

James

SUFFOLK

1830

MYLES, L MOORE, John LOWRY, John

PARFITT

George

HENRY TANNER

1834

PEPP

Joshua

SESOSTRIS

1826

PERCIVAL

Samuel

MANLIUS

1827

PICK

William

WATERLOO

1836

CONNOR, G C

PORTER

John

HENRY TANNER

1832

PICKETT, Wm

PURTELL

William

MANGLES

1823

64 HELY, F A

Note 1

No such ship

Note 1 TOL *

REDDING

James

ELIZA

1828

RHODES

Ann

BUFFALO

1833

KELLY, Edw

ROBERTS

George

LORD MELVILLE

1830

CAPE, Rd

ROONEY

Patrick

HERCULES

1830

WATSON, H G

MYLES, L

Not 1832. Only trip made in 1834. TOL ** Note 1823 2 Note 2 •°* Note 2

"Roslin Castle" Not 1832

ROSS

John

ROSLYN CASTLE

1832

RUSSELL

Thomas

LORD MELVILLE

1830

DONNISON , Hy

Note 2

RUSSELL

William

GUILDFORD

1827

EDWARDS , Thos

AURORA

1833

CAPE, W T

' ` Note 2 TOL t:* Note 2

William

RUST SCAYSBROOK

Michael

FANNY

1816

SEAFORD

Thomas

CLYDE

1832

MYLES, L BUCKLAND, Jn DONNISON, Hy

SHEARLEY

John

HENRY TANNER

1834

SHEIL

Patrick

CAPTAIN COOK

1832

SHERING

John

JOHN

1837

HEALEY , George Or SHEERING

WOODWARD, Thos

SHORL

Edward

CAPTAIN COOK

1836

SHUTLEY

Eliza

SARAH & ELIZABETH

1837

SIDEBOTTOM

Abraham

ISABELLA

1832

William

FLORENTIA

1830

HELY, F A

MADEIRIA BLENHEIM

1830

RELY, F A

1834

28 24

BUCKLAND, Jn

SIDEBOTTOM SIDOLE SMITH

Joseph David

SMITH

Francis

SMITH

James

1830

LORD MELVILLE SIR WILLIAM 1817 BENSLEY

HENDERSON, Mr

HELY, F A ** Note 2 No ship or SIDDLE . by this name. TOL Note 2 •* Note 2

Note 1: Not located in 1828 Census Note 2: Further reference / s

to this individual in the Brisbane Water Court Records,

part of the Historical Records of the Central Coast of New South Wales. See separate list for more information.

284 GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER

SURNAME

FIRST NAME SHIP OF

ARRIVAL

YEAR OF WHERE AGE MASTER

REMARKS

ARRIVAL TRIED

SMITH

Maltby

CAMDEN

1831

DONNISON , Hy

SMITH

William

SOVEREIGN

1835

MYLES, L

SPIRLING

William

SPRING

Daniel

ADRIAN

1830

PICKERING, W

STEVENS

John

EARL GREY

1836

FERGUSON, Jn

SULLIVAN

Daniel

BACKWELL

1835

KELLY , Edward " Blackwell"

Note 2

" Royal Sovereign"?

SULLIVAN

Ellen

PROVIDENCE

1811

PIPER , Henry

SWAN

Thomas

MANGLES

1833

RELY, F A

TANNING

Andrew

SOPHIA

1829

WATSON, H G

RICHARDS, Dnl

••• Note 2

TAYLOR

Sarah

EARL OF LIVERPOOL

1831

THORPE

John

CAPTAIN COOK

1836

FOLKS, Joseph

TREACLE

Ginger

LADY NUGENT 1835

HELY, F A

TRENT

George

FAIRLIE

1832

MOORE, John

Not 1832. Note 2

TRENT

Joseph

MANLIUS

1827

MOORE, John

CAPE, W T

Note 1 Note 2

TURNER

George

MERMAID

1830

TURNER

John

ASIA

1828

CAPE, W T

TURNER

William

LADY

1831

CAPE, W T

Note 2

HAREWOOD TOL

WALBANK

Thomas

YORK

1831

WARING

Emanuel

MANGLES

1833

DONNISON, Hy

WATERS

Michael

JAMES LAING

1834

MYLES, L

WATTS

John

PRINCE GEORGE

1837

TILSTON , Thos *••

WELCH

Patrick

JAVA

1833

MALOW, Joseph

WELSH

Michael

BACKWELL

1825

MYLES, L

" Blackwell" Note 1 Not 1825

WHALAN

Thomas

EDWARD

1831

SPEARS , Wm

TOL

WHITE

John

FAME

1817

WHITTAKER

Francis

ROSLYN CASTLE

1833

WILKINS

Joseph

ASIA

1827

WILSON

Samuel

PRINCE REGENT

1827

WORKMAN

Thomas

LORD MELVILLE

1830

YOUNG

William

SESOSTRIS

1822

Note 2

TOL BUCKLAND , Jn

"Roslin Castle" TOL ** Note 2

DONNISON, Hy TOL CAPE, W T

••°

Not 1822 Note 2

Note 1: Not located in 1828 Census Note 2: Further reference / s

to this individual in the Brisbane Water Court Records,

part of the Historical Records of the Central Coast of New South Wales. See separate list for more information.

285

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 - BRISBANE WATER MASTERS AND THEIR ASSIGNED CONVICTS

MASTER

AMBROSE , Thomas

CONVICT

SHIP OF ARRIVAL

NEWMAN , William

ENGLAND

PROBABLE YEAR OF ARRIVAL 1835

-----------------------------------------------------------------------"-------'-------'-----BEAN , Willoughby

BUTT, Matthew

SUSAN

1834

CARROLL, John

ANN & AMELIA

1825

COYLE, Peter

LADY KENNAWAY

1835

GUTHERIE , Patrick

HIVE

1835

-----------------------------------------------------------------------'--------"------"----BUCKLAND, John

ARNOLD , Anthony

WATERLOO

1833

ARUNDEL, Robert

ASIA

1833

BOSSY, William

MIDAS

BROWN, John

PORTLAND

? 1832

COFFEE, William

BLENHEIM

1834

COLLINS, Henry

ASIA

1833

DOOSS, Mohomed

[ROYAL SOVEREIGN?]

1834

FOLEY, Richard

MANGLES

1826

GARRETT, John

JOHN

GREEN, Charles

ELEANOR

? 1831

HOGAN, Jane

ROSLIN CASTLE

1836

HOGARTY, Patrick

NORFOLK

1832

JENKINS, John

PORTLAND

1833

JONES, Thomas

MARQUIS OF HUNTLEY

1828

MILLER, John

LAYTON

1829

SHEARLEY, John

HENRY TANNER

1834

SMITH, David

BLENHEIM

1834

WHITTAKER , Francis

ROSLIN CASTLE

1833

----------------------------------------------------------------'-------------------"--------CAPE , Richard

GREIG, William

ROYAL SOVEREIGN

1835

JONES, John

LADY HAREWOOD

1831

LEE, Thomas

MARY ANN

1835

ROBERTS , George

LORD MELVILLE

1830

-------------------------------------------------------------------------------'--------------CAPE, William Timothy

BROWN , Robert

LLOYDS

1833

CUNHAM, Edward

LORD MELVILLE

DUEL , George

AURORA

1833

RUST , William

AURORA

1833

TURNER, George

MERMAID

1830

TURNER, John

ASIA

1828

TURNER, William

LADY HAREWOOD

1831

YOUNG, William

SESOSTRIS

---------------------------------------------------------------------'------------------------CONNOR, G . C.

FRALEY, Owen

WATERLOO

1836

HICKEY, Thady

WATERLOO

1836

MAHER, James

WATERLOO

1836

1836 WATERLOO PICK, William -----------------------------------------------------------------------------------------------

286 MASTERS AND THEIR ASSIGNED CONVICTS PROBABLE YEAR OF ARRIVAL

CONVICT

SHIP OF ARRIVAL

DALEY , Francis

JONES , John

MORLEY ( 5)

1829

DONNISON , Henry

ASHBEY , Joseph

ASIA

1832

BERRY, Daniel

JOHN

1829

BERRY , John

JOHN

1829

BEST, Samuel

HOOGHLEY

BROWN, John

ASIA

1832

CARTER , George

ELEANOR

1831

DRAKE, James

HOOGHLEY

EARL , Isaac

ADRIAN

1830

FLYNN, Ann

MARY

1835

MADDEN, William

JANE

1831

MAYBERLEY, John

NITHSDALE

1830

MILES, William

ROYAL CHARLOTTE

1825

NORTHWOOD , William

ISABELLA

RUSSELL , Thomas

LORD MELVILLE

1830

SHEIL, Patrick

CAPTAIN COOK

1832

MASTER

SMITH , Maltby

CAMDEN

1831

WARING, Emanuel

MANGLES

1833

WILSON, Samuel

PRINCE REGENT

1827

1827 GUILDFORD EDWARDS, Thomas RUSSELL, William _______________________________________________________________________________________________ FAGAN , Peter

BURNS , John

EARLGREY

1836

GRAYDEN, Joseph

LORD MELVILLE

1830

HAMMETT , George

BENGAL MERCHANT

1836

1830 NEWMAN , Charles MARQUIS OF HUNTLEY _______________________________________________________________________________________________ FERGUSON , John

STEVENS , John

EARL GREY

1836

FOLKS , Joseph

THORPE , John

CAPTAIN COOK

1836

GARRICK, John

BATEMAN, George

STRATHFIELDSAY

1836

GOLD, John

CANNON, Thomas

NORFOLK

[GOVERNMENT ]

MYATT, Joseph

SUSAN

HEALEY, George *

SHERING , John

JOHN

1837

HELY, F. A.

ALCOCK, Peter

MARQUIS OF HUNTLEY

ANDERSON, David

MARY ANN

1835

BELL, James

CLYDE

BOGIN, Francis

BENGAL MERCHANT

1835

CHAPMAN , Charles

KATHERINE STEWART FORBES

1830

COCKCROFT, John

WESTMORELAND

1835

DERBRIDGE , William

HERCULES

1832

[cont ' d. over]

287

MASTERS AND THEIR ASSIGNED CONVICTS MASTER

RELY, F. A . [continued from previous page]

PROBABLE YEAR OF ARRIVAL

CONVICT

SHIP OF ARRIVAL

GLEESON, David

GOVERNOR READY

1829

HIGGINS , Michael

GOVERNOR READY

1829

HITCHCOCK, Solomon

PORTLAND

1832

HODDOCK, John

MARY

1831

HUDSON , William

LARKINS

JAMES, Edward

KATHERINE STEWART FORBES

1830

LANDERS , William

FAIRLIE

1834

REDDING, James

ELIZA

1828

SIDEBOTTOM , Abraham

ISABELLA

1832

SIDEBOTTOM , William

FLORENTIA 7

1830

MANGLES

1833

SIDOLE , Joseph SWAN , Thomas

1835 LADY NUGENT TREACLE , Ginger _______________________________________________________________________________________________ RELY , George*

LETHRIDGE , Jeremiah

JOHN

1837

1836 LADY KENNAWAY McCURDIE , John _______________________________________________________________________________________________ HELY , Georgians

COOPER , Frederick

LADY KENNAWAY

1836

HAWES , Thomas James

LADY KENNAWAY

1836

1836 LADY KENNAWAY HUGHES , John _______________________________________________________________________________________________ 1837 SARAH & ELIZABETH SHUTLEY, Eliza HENDERSON , Mr _______________________________________________________________________________________________ 7 CLYDE ALEXANDER , James HENDERSON , R. _______________________________________________________________________________________________ HENDERSON , Robert

SURRY

1834

FOSSEY, Robert or Joseph SURRY

1834

ELIZA

1820

BAILEY , William LAWFORD, George

7 MARQUIS OF HUNTLEY LEE, Joseph _______________________________________________________________________________________________ 1832 LADY HAREWOOD NEWCOMB, Benjamin HUMPHRIES, Thomas _______________________________________________________________________________________________ 1830 MARQUIS OF HUNTLEY BURNETT, Edmund JOHNSON, W . _______________________________________________________________________________________________ KELLY, Edward

CALLAGHAN , Martin

ELIZA

1829

1833 BUFFALO RHODES , Ann 1835 BLACKWELL Daniel SULLIVAN , _______________________________________________________________________________________________ 7 COUNTESS OF HARCOURT DEVINE, George LAUDON, John _______________________________________________________________________________________________ 1826 SESOSTRIS PEPP, Joshua LOWRY, John _______________________________________________________________________________________________ 1833 JAVA WELCH, Patrick MALOW, Joseph _______________________________________________________________________________________________ 1837 ST . VINCENT BYRNE, Thomas MATCHAM, C . H. M. _______________________________________________________________________________________________

288 MASTERS AND THEIR ASSIGNED CONVICTS CONVICT

SHIP OF ARRIVAL

McPHERSON , J.

BARKER, Sarah

ELIZABETH

1836

MERCHANT, George

JARVIS, Sarah

PRINCESS CHARLOTTE

1827

MOORE, John

ASQUITH, David

LLOYDS

1837

BULLOCK, James

LLOYDS

1837

CARROLL, Bryan

CITY OF EDINBORO

DAGGER, James

HEBER

1837

HALY, John Senior

HEBER

1837

PARFITT, George

HENRY TANNER

1834

TRENT, George

FAIRLIE

TRENT, Joseph

MANLIUS

1827

ADAMS, Edward

HERCULES

MASTER

MYLES , Laurence

PROBABLE YEAR OF ARRIVAL

BEASLEY, William

BURRELL

BRANCH, James

RECOVERY

1836

BURNS, Patrick

NORFOLK

1832

CARTEY, John

NORFOLK

1832

CHAMBERS, Henry

SUSAN

1834

COONEY, Henry

SUSAN

1834

CREVAN, James

JAMES LAING

1834

CURRY , Michael

PORTLAND

1833

FARRELL, Peter

CLYDE

1832

FIRM , Edward

BLENHEIM

1834

GRACE , Thomas

SUSAN

1834

GURNEY, James

KATHERINE STEWART FORBES

1831

HAGAN , Edward

BLENHEIM

1834

HENRY , Frederick

KATHERINE STEWART FORBES

HERON, George

MALABAR

1819

HESLAM , Patrick

FERGUSSON

1829

HIGGINS, Peter

JOHN BARRY

1836

JONES, John

JOHN BARRY

1836

JONES, Robert

JOHN BARRY

1836

MILLAR , Thomas

LADY NUGENT

1835

MORLAN , Michael

PORTLAND

1833

MUMFORD, William

LADY NUGENT

1835

O'BRIEN , Patrick

LADY McNAUGHTON

1835

PALMER, James

ROSS, John

ROSLIN CASTLE

SEAFORD, Thomas

CLYDE

1832

SMITH , William

[ROYAL SOVEREIGN?]

WATERS , Michael

JAMES LAING

1834

WELSH , Michael

BLACKWELL

O'BRIEN, Thomas

BARDON, Samuel

ROYAL SOVEREIGN

1834

PEAT , George

MADDEN , Patrick

PARMELIA

1834

289 MASTERS AND THEIR ASSIGNED CONVICTS MASTER

CONVICT

SHIP OF ARRIVAL

PROBABLE YEAR OF ARRIVAL

1830 ADRIAN SPRING , Daniel PICKERING , W. _______________________________________________________________________________________________ HENRY TANNER ? PORTER , John PICKETT, William ----------------------------------------------------------------------------------------------1834 FAIRLIE HOSIER, Thomas PINTOX, Emanuel _______________________________________________________________________________________________ PIPER , Henry

FITZPATRICK , William

JAVA

1833

1811 PROVIDENCE SULLIVAN, Ellen _______________________________________________________________________________________________ ? ? MELBOURNE , William PITTING , Thomas _______________________________________________________________________________________________ REGALIA ? CARROLL , Moses [POLICE] _______________________________________________________________________________________________ RICHARDS , Daniel

BIRCH , Joseph

HOOGHLEY

1834

1831 EARL OF LIVERPOOL TAYLOR , Sarah _______________________________________________________________________________________________ 1835 ROYAL ADMIRAL CULLEN, John SCOTT, Thomas A . _______________________________________________________________________________________________ 1830 MARQUIS OF HUNTLEY CLEWS , John SPEARS , George _______________________________________________________________________________________________ 1833 ROYAL ADMIRAL DICKSON, William SPEARS , Joseph _______________________________________________________________________________________________ SPEARS, William

BLACKFORD , Ambrose

PHOENIX

1828

FITZWATER , Francis

JAMES PATTISON

1837

LOUNDS, Mark

MARY

MITCHELL , Charlotte

GEORGE HIBBERT

? ?

1831 EDWARD WHALAN , Thomas _______________________________________________________________________________________________ 1837 PRINCE GEORGE WATTS, John TILSTON, Thomas _______________________________________________________________________________________________ 1832 SOUTHWORTH MINCHIN, Mary TOLMEY, John _______________________________________________________________________________________________ 1829 CLAUDINE BROWN, Stephen WARNER , J. _______________________________________________________________________________________________ WATSON, H . G.

CURTIN , William

HADLOW

DONOVAN, Denis

LADY HAREWOOD

? 1831

HARRIS , Aquilla

LLOYDS

1833

ROONEY, Patrick

HERCULES

1830

1829 SOPHIA TANNING , Andrew _______________________________________________________________________________________________ 1833 ANDROMEDA BERRY, James WEBBER, J . J. _______________________________________________________________________________________________ ? JOHN DOVEY, Adam WOODBURY , Richard _______________________________________________________________________________________________

290 MASTERS AND THEIR ASSIGNED CONVICTS

CONVICT

SHIP OF ARRIVAL

WOODWARD , James

BOURKE , Patrick

PARMELIA

1834

WOODWARD , Thomas

SHORL , Edward

CAPTAIN COOK

1836

MASTER

PROBABLE YEAR OF ARRIVAL

It appears more than likely that George HEALEY , George RELY and Georgians HELY are one and the same.

Georgiana RELY was F . A. HELY ' s wife.

We leave it to the sagacity of our readers

to determine if this is so. The following convicts appear in the General Return of 1837, but are not shown as being assigned to a Master: ANDERSON, Henry BARBER, John BARNETT , Joseph BENNETT , Cornelius BIFFIN, James CALVERT, James CUNNINGHAM , Alexander DALEY, William DANIEL, James ELLINGHAM , William FERDY, James FLETCHER , William FRANKS, James FREEMAN, James GOULD, Phillip GRIFFITH , Samuel HARRIGAN , Michael HAYES, Daniel

HAYES, Pearce HILLIARD, John LADD, Joseph LANG, Robert LAWRENCE , Sophia LEAN, James LEPORD , William LINEHAM , Michael MONROE , E. R. or K. MOORE, Joseph MORAN, Edward MURPHY , Philip MURRAY, John NEWELL , Matthew NICHOLAS, Henry NORMAN, Thomas OLDFIELD, Samuel OXENHAM , William PERCIVAL , Samuel PURTELL , William SCAYSBROOK , Michael SMITH , Francis SMITH, James SPIRLING , William WALBANK, Thomas WHITE, John WILKINS, Joseph WORKMAN, Thomas

MANGLES 7 MARQUIS OF HASTINGS ELEANOR LADY HAREWOOD JOHN ELIZA ( 3) GENERAL STEWART

1820 7 1826 1831 1831 1827 1829 1818

7 HOOGHLEY SIR GODFREY WEBSTER MANGLES ( 1) LORD ELDON LORD ELDON MARQUIS OF HASTINGS HADLOW SOUTHWORTH ASIA ASIA JAMES PATTISON MARQUIS OF WELLINGTON TOTTENHAM HENRY WELLESLEY EARL GREY ATLAS EARL GREY HERCULES LADY HAREWOOD LORD SIDMOUTH MANGLES (1) ISABELLA ( 3) HEBE ASIA NITHSDALE ? SHIPLEY MANLIUS MANGLES FANNY LORD MELVILLE SIR WILLIAM BENSLEY 7 YORK FAME ASIA LORD MELVILLE

7 1828 1826 1820 1817 1817 7 1818 1822 ? 1832 1830 1815 1818 1837 1836 1816 ? ? 1831 1819 7 1823 7 1828 1830 1818 1818 1827 ? 1816 1830 1817 7 1831 1817 1827 1830

291

GENERAL RETURN OF CONVICTS IN NEW SOUTH WALES 1837 BRISBANE WATER The following notes on some of the convicts mentioned in the 1837 General Return may be of help to researchers. The information we have added here has been the result of only superficial research. In-depth studies of various individuals in the district will be found in subsequent volumes in the series of H.iA.to'Lcat Reeoad4 ob the Central Coa4.t ob New South WaLe4. The Gosford District Local History Study Group would welcome any further information gathered by researchers studying any of the people mentioned in The B.Cd/bane Water Ca.e 1837-38. ANDERSON, Henry (Mangke4): Arrived in 1820. The 1822 Muster states that he was serving a 7 year sentence and was with a clearing party assigned to Mr. Jones of Parramatta. The 1828 Census states that he arrived on MangLe4 (2) in 1820 with a Life sentence. He was a Catholic and was working as a Boatman at the Establishments. His age was given as 26. BERRY, John (John): Arrived in 1829 and was assigned to Henry Donnison at the time of the 1837 General Return. He is mentioned in Donnison's book. BROWN, John (A's.La): Arrived in 1832. Is identified in Donnison's book as a soldier transported for striking an officer. CALVERT, James (John): Arrived in 1827. The 1828 Census states he has a Life sentence, is a Protestant, and is a Labourer to Joseph Foulks at Lower Portland Head. His age is given as 20. CARROLL, John (Ann & AmeP.i,a): Arrived in 1825. The 1828 Census has two entries apparently referring to John Carroll: he is either at the Barracks at Liverpool or on the Phoenix Hulk in Sydney. His age is given as 19, is a Catholic, and is serving a sentence of 7 years. Although the 1837 entry has him listed CARROLL, Moses (Regatta): as arriving in 1825, the only trip of the Regatta carrying convicts was in 1826. The 1828 Census states that he arrived in 1826 with a Life sentence, was a Catholic, and was an Overseer for Percy Simpson at Lower Portland Head. His age is given as 40; nine years later in 1837, his age is given as 42. In the 1837 General Return his Master is listed as the Police. In Donnison's book, he is referred to as John Moore's servant. CURTIN, William (Hadlow): He is listed in the 1837 General Return as arriving in 1819 on the Had-tow. However, that ship did not bring any convicts in 1819, so his arrival date is unknown. We have not been able to identify him in the 1822 Muster, but he is listed in the 1828 Census as being in Road Party 25, and his name is spelled CURTAIN.

292

DALEY, William (GeneAa2 S.tewav.t): If the age of William Daley is correct as given in the 1837 General Return, then he was only 15 years old when he arrived as a convict. In the 1822 Muster, he is listed as serving a 7 year sentence and is a Government Servant assigned to D. Roberts at Windsor. He cannot be definitely identified in the 1828 Census, but there is a Samuel DALY, aged 28, serving a 7 year sentence, a Protestant, who also is listed as arriving on the Gene)ca.. Siewaa.t, and who is a Labourer for John Hall at Gloucester Street, Sydney. ELLINGHAM, William (Hooghley): William Ellingham has two entries in the 1828 Census. Both state he is a Labourer to F. A. Hely at Brisbane Water and is aged 23. However, one entry states he arrived in 1828, and the other says 1817. He cannot be Arrived 1820. FLETCHER, William (Mangte6 1): identified in the 1822 Muster. However, in the 1828 Census he is listed as a Government Servant, with an arrival year of 1819, and a sentence of Life. He is a Protestant, aged 28, and a "landholder" at Brisbane Water. He is mentioned in the Brisbane Water case as an Overseer for William Cape Snr.

Arrived 1826. FOLEY, Richard (Mang.e6): he is on the Phoenix Hsieh, in Sydney.

In the 1828 Census,

FRANKS, James (Lond Eldon): Arrived 1817. If his given age of 33 is correct in 1837, then he would have been 13 years old at arrival. He cannot be identified in the 1822 Muster, but is listed in the 1828 Census as being in the Iron Cove Gang, with no date of arrival given. FREEMAN, James (Load Eldon): Arrived in 1817. If he did indeed arrive on the Lo'cd Eldon and his age of 30 as stated in 1837 is correct, then he would have been only 10 years old at the time of his transportation. In the 1822 Muster, he is listed as a Government Servant to R. McIntosh of Sydney, and is serving a Life sentence. In the 1828 Census, it is stated that he has his Ticket of Leave, with a sentence of Life, is a Protestant, and is working as a Labourer to Robert Henderson, a farmer, of Brisbane Water. His age is given here as 31 - one year older than his stated age in 1837. In the Brisbane Water case, he is mentioned as being a Shingle Splitter. James Freeman is mentioned in other records contained in the HL4.o.kcal Reco&d6 o4 the Centtta. Coast og New South Waee6, and there is mention in this volume of a James Freeman, presumably the same person, in trouble in 1861 on a charge of cattle stealing. GOULD, Phillip (Maaquil o{ Ha6.ting6): Although the 1837 General Return states he arrived in 1825, the Maaquih o6 Hastings did not make a journey that year. In the 1828 Census, his ship of arrival is given as the Mavcquk6 o{ Huntley, and his year of arrival as 1815. He is stated as being 18 years old in 1828, so the arrival date of 1815 is more likely to be 1825, as if he had arrived in 1815, he would have only been 5 years old! In the 1828 Census he is listed as being a Protestant, with a Life sentence, and is a Labourer to Thomas Arndell at Pitt Town.

293

GRIFFITH, Samuel (HadLow): Arrived in 1818. In the 1822 Muster, his name is spelled GRIFFITHS, and he is listed as serving a 14 year sentence, working on a Clearing Party for Mr. Bayley of Liverpool. In the 1828 Census (GRIFFITHS), his arrival date is given as 1816, and is listed as a Protestant, serving a Life sentence, and working as a Splitter at the Establishments, Field of Mars, and his age is given as 36. HARRIGAN, Michael (Sowthwo)Lth): Arrived in 1822. He is not identified in the 1822 Muster. In the 1828 Census, he is listed as Michael HORRIGAN, is a Government Servant, with a sentence of Life, a Catholic, aged 29, and working as a Labourer to John Payne of George Street, Sydney. HAYES, Daniel (A4.Ca): No date of arrival is given in the 1837 General Return. The only Daniel Hayes mentioned in the 1822 Muster arrived on the Don.o.thy with a 7 year sentence, and was a Government Servant to T. Hyds of Sydney. He cannot be identified in the 1828 Census, but there is a "Daniel Hay" listed who arrived on the Dorothy. HILLIARD, John (Jameh Pwttti/on): Arrived in 1830. In the Brisbane Water case, he is mentioned as a Butcher, "one of Donnison' s men". LADD, Joseph (Mangwio os WeULng.ton): Arrived in 1815. In the 1822 Muster, he is listed as serving a Life sentence, and is a Government Servant to Robert Forrester of Windsor. In the 1828 Census, he has his Ticket of Leave, and is listed as serving a Life sentence, is a Protestant, aged 33, and is working as a Labourer to James Singleton at Lower Portland Head. LANG, Robert (Tottenham): Arrived in 1818. In the 1822 Muster, he is recorded as serving a Life sentence, and is working on a clearing party for the Judge Advocate at Liverpool. He cannot be definitely identified in the 1828 Census, but there is a John Lang listed who arrived in 1818 on the Tottenham, John Lang is shown as having his Ticket of Leave, is a Protestant, serving a Life sentence, aged 44, and working as a Stockman for James Hassall at Bathurst. LAWFORD, George (Eaza.): Arrived in 1820. In the 1822 Muster he is listed as serving a Life sentence, and is working on Public Works at Port Macquarie. In the 1828 Census, he is serving a 3 year Colonial sentence at Moreton Bay. LEPORD, William (At.ab): Arrived in 1816. Not identified in the 1822 Muster, In the 1828 Census, he is listed as having his Ticket of Leave, serving a Life sentence, a Protestant, aged 55, and working as a Fisherman for Edward Mutton at Lower Portland Head. MILES, William (Royale Cha)LLo.tte): Arrived in 1825. In the 1828 Census, he is listed as a Government Servant with a Life sentence, is 24 years old, a Protestant. He is working as a "Servant Asst." to Andrew Byrne of Sydney at Appin.

294

MORAN , Edward (Load Sidmowth): Arrived in 1819. He is recorded in the 1822 Muster as a Government Servant with a 7 year sentence, and is assigned to Rev. Riddall of Liverpool . There are two entries relating to an Edward Moran ( Load S.i.dmowth ) in the 1828 Census. One states he is 30 years old, arrived in 1822 with a Life sentence , is a Catholic , and is a Labourer for William Davis, Bathurst . The other states he is 30 years old, arrived in 1821 with a 14 year sentence , is a Catholic , and a Labourer to S. Hall of Bathurst. The 1828 Census states he arrived MURPHY, Philip ( MangleA 1 ): in 1827, is a Government Servant, aged 29, serving a 14 year sentence , is a Catholic , and a Servant to Mr. Hely of Brisbane Water.

MURRAY, John ( Ihabe.Pka 3): Arrived in 1823. There are two entries referring to a John Murray of the IdabeCKa in the 1828 Census. One states he is 27 years old, with a Life sentence , is a Catholic, and working as a Limeburner with T. Street of Sussex Street, Sydney. The other states he is 28 years old, with a 7 year sentence , is a Catholic , and working as a Limeburner to G. Weavers at Holdsworthy. MYATT, Joseph ( Sudan): His occupation in the 1837 General Return is given as "Scourger at Brisbane Water". There was no trip of the Suzan, in 1835, but there were in 1834 and 1836. In other records he is sometimes referred to as Joseph WYATT. NEWELL , Matthew ( Hebe): In the 1837 Return , his year of arrival is given as 1830. However, the only trip of the Hebe carrying convicts was in 1820. He is listed in the 1822 Muster as being a Government Servant with a Life sentence , assigned to William Oliphant of Sydney . In the 1828 Census, he is listed as a Government Servant , with a Life sentence , 28 years old , a Protestant, and working as a Carter with Thos. Street of Sussex St., Sydney. NICHOLAS, Henry ( Apia): Arrived in 1828. In the 1828 Census he is recorded as being 24 years old, serving a Life sentence, a Protestant , and working as a Carpenter for F . A. Hely. OLDFIELD , Samuel (?): Arrived in 1818. The 1822 Muster has him listed as a Government Servant, having arrived on the Hadtow with a Life sentence , and assigned to Mrs. Squires of Sydney. He cannot be identified in the 1828 Census. OXENHAM, William ( Sh.iphey ): Arrived in 1818. In the 1822 Muster, he is listed as serving a Life sentence , and is a Shipwright at the Dock Yard , Sydney. In the 1828 Muster, he has his Ticket of Leave , is 40 years old, stated to have arrived in 1817, no religion marked, and is a Shipwright at C. Smedley, Princes Street, Sydney. PARFITT , George ( Henry Tanned ): In the Brisbane Water case, he is mentioned as an Assigned Servant to John Moore and an " accomplice of Carroll".

295

PERCIVAL , Samuel (Man2.i.us ): Arrived in 1827. In the 1828 Census, he is listed as a Government Servant, 24 years old, with a Life sentence , a Protestant , and working as a servant to Thomas Bray of Concord . His ship of arrival is stated as being the Mangles. PURTELL , William ( Mangte& ):

In 1828, he is recorded as being

50 years old , a Government Servant, with a Life sentence , a Protestant, and working as a Labourer to Patrick Kelly at Lower Portland Head . The year of his arrival was probably 1822. REDDING, James ( EL za): Arrived in 1828. In the 1828 Census his name is spelled READING, and he is listed as being 22 years old with a Life sentence , a Protestant , and working as a Labourer for Mr. Hely of Brisbane Water. ROBERTS, George ( Loud McLv4_U..e ): Arrived in 1830. He is cited by Cape in a deposition in the Brisbane Water case. RUSSELL , William (Gui2d6on.d): Arrived in 1827. In the 1828 Census he is listed as being 27 years old with a Life sentence, a Protestant, and working as a Labourer to Thomas Edwards at Lower Portland Head. RUST , William ( Awcona ): Arrived in 1833. In the Brisbane Water case, is accused by Donnison of killing a cow. SCAYSBROOK , Michael ( Fanny ): Arrived in 1816. He cannot be identified in either the 1822 Muster or the 1828 Census . However, it is known that in 1822 he was working for Mr. Redfern, and that he arrived at Brisbane Water in 1834 from Illawarra. SIDEBOTTOM , William (Ftohe.n La): Arrived in 1830 . in Scott's deposition in the Brisbane Water case.

He is mentioned

SMITH, James ( Si笨田 WZY am Benbkey ): Arrived in 1817. In the 1822 Muster, he is recorded as a Government Servant, with a Life sentence, assigned to E. Folkes of Windsor . In the 1828 Census , he has his Ticket of Leave, is 40 years old, with a Life sentence , a Catholic, and working as a Labourer for James Everingham at Lower Portland Head. SMITH, Maltby ( Camden ): Arrived in 1831. Is mentioned in the Brisbane Water case as being in solitary confinement for eleven weeks in irons. He can read and write, and if his age is correctly recorded , he was only 15 years old when he was transported. He died in 1847. SULLIVAN , Ellen ( P)LovLdence): Arrived in 1811. She would have been about 24 years old at arrival. In the 1811 Muster, she is listed as being in New South Wales and "Free". In the 1814 Muster, her first name is recorded as "Eleanor ", and she has gone back to being a convict on stores , with one child, and is living at the Factory . By the time of the 1822 Muster , she has her Ticket of Leave, with a Life sentence , and is the wife of Patrick Carroll of Sydney . In the 1828 Census , she is listed as being 40 years old, a Catholic , with a Life sentence, and is back living at the Factory at Parramatta.

296

TURNER , John ( A&.i.a. ): Arrived in 1828. In the 1828 Census, is recorded as being at the Hyde Park Barracks in Sydney. TURNER, William ( Lady Haaewood ): Arrived in 1831. Is mentioned in the Brisbane Water case . He informed Richard Cape of Bean's cattle stealing accusation. WATTS, John ( Pn.nce Geo)Lye ): Arrived in 1837. "Watt , a convict" is referred to in the Brisbane Water case. This could be John Watts. WHITE, John ( Fame ): Arrived in 1817. In the 1822 Muster, he is recorded as serving a Life sentence , and is a Government Servant assigned to F. Maloney of Windsor . He has his Ticket of Leave by the 1828 Census, is 34 years old, with a Life sentence, is a Protestant , and working as a Labourer to George Turnbull of Lower Portland Head. His year of arrival is recorded as being 1816. WILKINS, Joseph ( A4.La ): Arrived in 1827. The 1828 Census has recorded him as being 52 years old, a Government Servant with a 14 year sentence , arriving in 1828, a Protestant , and working as a house servant to Willoughby Bean at Brisbane Water. WILSON , Samuel ( PnLnce Regent ): Arrived in 1827. At the time of the 1828 Census , he was serving a 2 year Colonial sentence at Moreton Bay. YOUNG, William ( Seao4.)c.is): He is recorded as arriving in 1822 in the 1837 General Return. However , the only trip of the SeaohtkLo was in 1826 . At the time of the 1828 Census, he is serving a 3 year Colonial sentence at Moreton Bay.

COMPREHENSIVE INDEX TO SUBJECT MATTER in Donnison's Book

299

"THE BRISBANE WATER CASES" (Book privately printed by Henry Donnison in 1838) Name and Subject Index a'BECKET

with KERR and FOSTER acts for MOORE, DONNISON and BEAN in their action against Capt. FAUNCE (17 Oct. p19).

Aborigines

of the district, in state of insurrection. symptom of disturbance amongst the black natives. a party of 25 soldiers were sent.

70 ACRES Attorney General

9 7 13 19 21 26 31 33 47,48 50 71 78 81 86

MOORE purchased cattle from ACRES. Or. KINCHELA.. his opinion requested on case, which was not proceeded with. letter to - by DONNISON , 21-12-1836. letter from - in answer to DONNISON ' s own of 21 Dec . ( dated 29 Dec. 1836). thinks that steps-should be taken to ascertain identity and ownership of beast killed by DONNISON. DONNISON's charge will be dismissed openly or he will have a trial where he can justify himself publicly. FAUNCE was in correspondence with - for 2 or 3 months. MOORE tried on 6th Feb. Jury declared him "Not Guilty". - withdraws the rest of the cases after verdict of "Not Guilty, 27-2-1837. FAUNCE's regular correspondence with -. DONNISON discusses Attorney General's letter of 29-12 - 1836 on ownership and identity of beast alleged to have been killed. he resumed it upon - has abandoned case on or before 17-12; receiving further information. memorandum on the depositions and correspondence with -. defence of MEADOWS. DONNISON 's letter of 31-12-1835 referred by Governor to - does not entertain criminal charges against DONNISON, 22-12-1836.

"Australian Magistrate , The" Bail

- by PLUNKETT.

6 20

MOORE is locked up, afterwards admitted to bail. MOORE apprehended for cattle stealing as bailer of BEAN,

2 Jan. 1837. FAUNCE refused - to DONNISON allegedly on Attorney General's

orders. MOORE apprehended on 2 Jan. 1837 for "inefficience of bail". change in orders from FAUNCE prevented DONNISON from going

home to see his wife. on arrival in Sydney, DONNISON and MOORE applied for bail

1 Feb. 1837 and custody after 30 days. FAUNCE stated in Brisbane Water court house on 2 Nov. that Attorney General advised him to admit MOORE to bail in a case 18 Oct. PLAISTOWE asked FAUNCE for bail which is refused on opinion from WARNER.

300

BEAN, Willoughby

12 13 -

gave evidence for MOORE on 1st and 2nd Nov. 1836; he brands R. CAPE as a cattle stealer. summoned by FAUNCE to attend a charge of perjury, 14 Nov. 1836. - agreed to take charge and purchase land and cattle for MANNING. - and RICHARDS had formerly been partners. case against - not proceeded with but sent to Attorney General. charge of perjury against - brought by R. CAPE 14th.

exposition of charges of felony against -. valued and bought RICHARDS' cattle for MANNING. was compelled to dismiss MEADOWS. stated that the disputed cow belonged to MANNING; dared

MEADOWS to remove it. agreed to give the cow back if satisfied as to MEADOWS'

14 -

16 17 -

ownership. MANNING's cattle grazing at Tuggerah Beach run came into possession of -. summons served on - in Sydney; he offered explanation accepted by WARNER ( case dismissed). at the time of MEADOWS' summons was on friendly terms with WARNER and DONNISON. did not return to Brisbane Water for about a year [see WATSON p15]. sold the cow disputed by MEADOWS to DONNISON with many others. told MEADOWS, when asked, about selling the cow to DONNISON. about June 1834 - wrote to WATSON to release a cow to DONNISON. advised WATSON that in MANNING 's stock was one of RICHARDS' cows disputed by MEADOWS. memorandum of MANNING's stock, with note of MEADOWS' claim that one of RICHARDS' cows is his own. stated that he was RICHARDS' general agent and former partner. wrote with DONNISON a statement for defence before allowed

to leave on bail. -

- arrived in Brisbane Water the day after Christmas Day (1836); reported to FAUNCE that FISHER assured him that the case

was dismissed. 18 -

was in bad health, confined by illness for a short while. was advised by FISHER, Crown Solicitor, that the Attorney General PLUNKETT would not proceed in either that case or those of Mr. MOORE. at the end of December, returns to Brisbane Water.

apprehended with MOORE and DONNISON on 2 Jan. 1837 on a

charge of cattle stealing. denies repeatedly having given a receipt as mentioned by

29 31 -

R. CAPE. committed on charge of one felony. with DONNISON and MOORE, made a protest, sent by Mr. PLAISTOWE. applied to Supreme Court, admitted to bail on 1st Feb. after

custody of 30 days. approached and advised to "abandon" DONNISON. - charged with stealing a cow, 25 Feb. 1837. was tried on the 27th Feb. with DONNISON after delay from

Crown Prosecutor. Attorney General commences charges against him of stealing.

32 -

verdict of "Not Guilty" returned by Jury on 27 Feb. 1837.

his action against FAUNCE was the first.

301

BEAN, Willoughby (continued)

41 45 51 52

66 71 72 74

75 76 78

received verdict for being put in irons only. - was committed 4 Jan. and detained until 23rd. not a word from Attorney General about sending - to trial. Sir Richard BOURKE wished to spare -. -' s father and BOURKE were old friends , all he wanted was to get at DONNISON. did he produce proof of ownership? Charged 2nd Nov., summoned 13th Nov. 1836 , sale occurred in 1834, muster was produced 18th or 20th Nov. 1836. - and MOORE were mere stepping stones to get at DONNISON. his brother had been given civil appointment by Governor. memorial from Brisbane Water inhabitants to have him appointed at WARNER ' s resignation. memorandum on the depositions and correspondence with Attorney General. memorandum of sales of cattle. E25 MANNING paid to RICHARDS for BEAN's services to RICHARDS. MEADOWS took it that BEAN was managing MANNING's property at Tuggerah (see p15: did not return to Brisbane Water for......). MEADOWS laid summons against - and went 4 times. - never appeared. - despised MEADOWS as having robbed RICHARDS. - deposed in case KING v MOORE. On that occasion, called R. CAPE a cattle stealer. R. CAPE's deposition , claims - to be with MOORE and DONNISON in collusion for the purpose of cattle stealing. - sold cattle to FATTERINI, DONNISON , MANNING : bought from

GREY , CAVENAGH and RICHARDS. character reference on honorability of - by MANNING. MANNING states that - was his general agent at Brisbane Water. After he left him, MANNING sold his estate. he had a written authority from MANNING to sell cattle to

DONNISON. protests jointly with MOORE and DONNISON against going on

board in a storm on 18 Jan. 1837. BERRY , John

BERRY

BINGLE

Blindberry

dishonest action of DONNISON as Magistrate in dealing with his assigned servant - charged with robbery.

robbery committed by - , dealt with by WARNER and DONNISON.

33 65 65,67

MOORE wrote to - about assignment to him of convicts having been discontinued. - , similarity to position of DONNISON , BEAN and MOORE. allusion to - dismissed from magistracy.

ditto his case determined in Governor ' s office.

sold by WATSON, for BEAN, to DONNISON (June 1834); FAUNCE

22 -

prosecutes for felony on 14 Nov. 1836. naming of the disputed cow by SCOTT at deposition 4 Jan. 1837. was the cow in question MEADOWS ', and was she feloniously appropriated by BEAN and DONNISON?

302 Blindberry (continued)

55 56 72 73

cow valued at between 20 and 40 shillings plus court costs of about 5/-. description of - in deposition of MEADOWS 14 Nov. 1836. was never branded. "I never branded my cattle". "Mr. RICHARDS' cattle and mine ran together".

was bought about 1828.

was brought back from Sydney in BEAN's sloop. landed at WALTER's farm on Erina Creek and driven to BEAN's

74 75 76 77 78 Blue Gum Flat

proof of ownership of the cow by BEAN.

farm adjoining. MEADOWS persists in identifying the cow as his. description of - by R. CAPE in deposition: "blind poly cow". strayed from R. CAPE's station at Lake Macquarie, to BEAN's at Tuggerah Beach. divergence of opinion as to the cow's ownership. R. CAPE called the cow "Blindbury". brought from Capt. GREY's station; delivered and branded with that lot (R. CAPE). receipt from BEAN, 24 Feb. 1834 for -, R. CAPE's deposition. hesitation as to ownership of - between GREY or RICHARDS. McGRATH's opinion that she is RICHARDS' cow; BEAN's admission that she had been claimed by MEADOWS. had been branded about November 1832. BEAN's denial of having given a receipt to R. CAPE for -. MANNING alludes to MEADOWS' claim to -. R. KING's evidence that the cow was MEADOWS'. man killed in a drunken squabble, the third in four years (21 May 1836).

Bodguroy

Mr. HENDERSON's station.

BOOKER

accused of inciting SCOTT's servant to drink liquor.

BOURKE, Sir Richard, His Excellency, Governor of the

7 -

MOORE proceeded to Sydney and addressed a letter to the Governor. MOORE waited on the Governor. DONNISON's request for personal interview with His Excellency,

granted end of May 1836. (Governor) states that no investigation before an unprejudiced

Magistrate is necessary. (Governor) has directed that the two herdsmen should be

Colony

8,58 9 16 -

discharged. went through the district, reference to, 21 May 1836. MOORE waits on - about convict servants being withheld from him. - expressed his dislike of DONNISON. DONNISON alludes to -'s system of espionage. his own views on Summary Punishment Bill, Peel's Acts, and

Circular from Colonial Secretary. DONNISON accused the Governor of using the prisoners for his own ends. - accused by DONNISON of subverting the course of law. replied to Capt. FAUNCE that he cannot accede to his request.

FAUNCE appears to have the notion that he is a servant of

20 -

the executive.

303

BOURKE, Sir Richard (continued)

52 54 57 58,8

DONNISON proceeded to denounce Sir Richard ' s ways. - and Mr. BEAN ' s father were old friends and fellowofficers in the Guards. accused by DONNISON of giving the order to PLUNKETT to defend FAUNCE. [See Government p53.) DONNISON admits to having been on a collision course with the Government. went through the district , reference to, 22 May 1836 to visit a few weeks earlier.

61 65 68 81

DONNISON ' s description of -'s character (seq). -'s system of information ( qualified as spying ), through establishment of system of "reports ", results in abuse. partial to his supporters in assigning convict servants. -'s popularity with part of the population conceded by DONNISON who denounces his partiality and favoritism. His Excellency declined interfering upon DONNISON's exposure of misdoings in the Brisbane Water district, refused his resignation and referred him to the Attorney General.

BRAMBLE

6 11 26 27 81 82

Branding

in MOORE's yard. - and CAPE, on oath , accuse MOORE of cattle stealing. accused by SMITH's evidence of killing a cow. charge of stealing a beast of CAPE ' s was dismissed on 4th November. examined for a considerable time, 7 Jan. 1837. Fear that he may set MOORE's house on fire. is accused by DONNISON of having killed LANNERGHAN's cow. - with J. FROST is accused of killing a cow, the property

of W. T. CAPE Esq. released from cells , had been there since early November on suspicion of killing a cow ( GORMAN's evidence).

9 15

- of contentious cattle from a wild herd. BEAN accused of detaining a cow branded with MANNING ' s brand.

MEADOWS' attitude to branding own cattle. - mark of MANNING was either I.M . or J.M. LANNAGHAN was present, did not - of the cow at MANNING ' s.

80 82

say anything about the owner. difference as to the actual brand on disputed cow. deposition J. FROST. Branding occurred on Wednesday before

73,74 75

BROWN

a man in the employment of W. T. CAPE put a stray heifer

Christmas 1835. Capt. FAUNCE requests DONNISON to send his servant BROWN to 31 Oct. 1836. court house with cut-out brand .

12 -

in court 1 Nov. 1836 to give evidence. servant to DONNISON ; a soldier transported for striking his officer. another servant of DONNISON ordered to court, 1 Nov. 1836.

Capt . FAUNCE requested DONNISON to send his servant - to Court with cut-out brand , 31 Oct. 1836.

304 BURTON (Judge) in BEAN v FAUNCE

45 87

tried two civil actions , described depositions as a "bundle of nonsense". Judge - ' s charge (extract BEAN v FAUNCE ) address to the Jury in BEAN v FAUNCE, difficulty in proving or even establishing identity of cow, addressing Jury states that summons issued was irregular and out of the jurisdiction of FAUNCE.

Bushrangers

a thrice gazetted runaway, six months a bushranger, obtained a ticket-of-Leave.

CAPE v MOORE CAPE

52 6 -

- was at variance with MOORE. - put a stray heifer into the yard of Mr. MOORE, and gave her

in charge of his herdsman. was -'s conduct contempt? (Letter DONNISON to Attorney

10 12 13 17 33 44 76 81 -

CAPE, Richard

DONNISON presents the case.

General.) no claim from - towards MANNING's purchase of cattle. R. - complains against BEAN to Capt. FAUNCE. - himself serves summons on W. BEAN to attend Court. R. - intends to press charges of perjury agains McGRATH for calling him a cattle stealer. DONNISON's opinion of Richard CAPE's character. animus shown by - and his violent manners. gives evidence at Sydney trial, 27 Feb. 1837. - in Supreme Court, Judge points out to jury the manner in which - has given evidence. - accused by MEADOWS and BEAN of being a cattle stealer in Sydney. - accused by DONNISON of having killed LANNAGHAN's cow. - threatens FLETCHER with having his conditional pardon withheld by his brother.

9 -

a brother of W. T. CAPE. MOORE purchased cattle for MANNING claimed by - in Sept. 1835,

with a farm of 500 acres. witness to branding of wild cattle purchased by MOORE for

10 12 13 17 -

MANNING. his herd bought by MOORE. accused by BEAN of being part of a gang of cattle stealers. complains against BEAN to Capt. FAUNCE. gives evidence against W. BEAN. bad character of Richard CAPE admitted by Capt. FAUNCE. intends to press charges of perjury against McGRATH for calling him a cattle stealer. violent manners of - exemplified by his ejection from the

Court in case KING v MOORE. about 4th or 5th November, Dick CAPE put before Capt. FAUNCE

the story of the cow. left the Colony soon after the acquittal of BEAN and

DONNISON. called MEADOWS into Court and told him to bring forward the

charges about the cow. deposition 14 Nov. 1836 ( - of Wyong Brisbane Water); was employed to look after MANNING's cattle at Lake Macquarie.

305 CAPE, Richard ( continued )

76 77 81

CAPE , W. T.

6 8 9 10 11 48 52

- accuses MOORE , BEAN, DONNISON of being in collusion for cattle stealing. - deposes that the cow was brought from Capt. GREY's station. - cannot say that the cow , object of the dispute , was the same cow that DONNISON killed. -'s use of intimidation towards FLETCHER. was Head Master of Sydney College and landholder at Brisbane Water. - and BRAMBLE , on oath , accused MOORE of cattle stealing. will protest against DONNISON acting as Magistrate. named by DONNISON in letter to Attorney General , 23 May 1836. brother of Richard CAPE. his overseer , a Ticket of Leave man, charges MOORE of stealing before Capt . FAUNCE. a cow belonging to - was killed by FROST and BRAMBLE ( SMITH's evidence). original deposition abstracted , and his non - appearance on 21/22 Oct. and also 1/2 Nov. and in July. wished to back out of the case when he found it was going before another Bench.

CAPE, William Snr .

DONNISON sent to the bench the letter from - with other documents complaining of misdoings to Government, requesting investigations. urges his overseer William FLETCHER to get him 1,000 head of cattle by any means.

CARROLL , Moses

recommends that a man guard MOORE ' s house, in case it was

set on fire. assigned servant of MOORE , with others , had stolen a gun

35 81

and broken open MOORE's house. apprehended on KING ' s evidence , declares that KING and MOORE set him up. on charge of having robbed MOORE's, is taken from him after a two month delay. was made a Government messenger. told DONNISON of W. CAPE's letter to his overseer FLETCHER to get him 1,000 head of cattle by any means.

Cattle

9 10 12 14 72 77

large herd wild by neglect , chiefly the property of MANNING, purchased by MOORE. transaction : WENTWORTH to LANGSDEN to WANT to MANNING. - stealing , Richard CAPE accused of belonging to a gang of cattle stealers by BEAN. RICHARDS ' - valued and bought by BEAN for MANNING. March or April 1834. HILLIARD informs that MEADOWS' cow grazes with MANNING ' s and DANGAR ' s - at Tuggerah Beach run. memorandum of sale of - . MANNING paid E25 to RICHARDS for BEAN'S services to RICHARDS. were running at Tuggerah Beach , Munmorah , Barrary, and Woolstonecraft Point.

306 CAVENAGH Editor of the " Sydney Gazette "

action , Capt. FAUNCE v CAVENAGH , 15/16 March 1838. THERRY , FAUNCE's counsel , in FAUNCE v CAVENAGH , " Sydney Gazette ", March 20, 1836. trial FAUNCE v CAVENAGH.

iii 48 72

Church at Brisbane Water

incidentally mentioned in letter circa April 1834. mentioned by MANNING , at Brisbane Water. DONNISON , in letter to FAUNCE , 21 Dec . 1836, complains about failure of constable to give notice of meeting

78 86

to build a -. a notice had been sent to HENDERSON and one posted at

FAUNCE's office. Circular

Sept. 1832, directs Law Officers to assist Magistrates

with their advice. Cockle Creek

MEADOWS was living at -, about Nov. 1834.

Colcrone

place where MEADOWS' cow ran. DONNISON addressed letters to the Governor through -.

Colonial Secretary 7,36 12 41

his brother-in - law SIBLEY. asked to show letters about Government paying FAUNCE's

expenses by DONNISON. extracts of letters written by DONNISON, Dec. 1835 and March 1836.

Constable ( see Police )

10 15 86

Convict Servants

Chief - reported to DONNISON about unhealthy and damp state of lock - up in regard to prisoners. SMITH Senior -. See SMITH. Capt. FAUNCE states that all his constables are on duty and suggests committee to employ a messenger.

determination of qualifications of applicants for

obtaining -. assigned convict servants to MOORE being suspended. a servant of DONNISON , a shoe maker , said that DONNISON

29 59,60 63 64 68

was a good master. extraordinary leniency towards thrice runaway , bushranger. admission that a number of the landholders treated their assigned servants cruelly with help of some magistrates. consequences of BOURKE's concern for convicts results in making them restless and a fall of 20% in productivity. in 1832 , DONNISON informed he could not have servants;

appeals in letter to Governor. in 1834, DONNISON received letter from HELY confirming

prior decision ( no servants). DONNISON threatens to write to Home Government if no

servant available to him. two men assigned to him , only men since April 1832. DONNISON accuses BOURKE of being partial in assigning

servants to supporters only. exchange of convict servants between masters is a general

practice.

3b7

COOPER

case that WARNER had to take to Newcastle for default of DONNISON in his duties.

Costs

of proceeding in court, civil , criminal.

DANGAR

12 15

R. CAPE accused of branding a beast belonging to -. - of Hunter River.

DONNISON Henry

regrets of having to speak harshly of PLUNKETT (Attorney General). in 1835 was a resident J.P. in the district of Brisbane Water.

5 6 -

differed with WARNER, and was denounced to H.Q . and was in bad odour , although unknown to him. in treaty with MOORE for purchase of cattle for slaughter. his servant (SMITH) also committed by WARNER a day or two

after. WARNER said that - and MOORE were considered partners. considered by WARNER as not eligible to sit on bench re

7 -

charge against MOORE. addressed a letter to the Governor detailing circumstances, Dec. 1835. wrote second letter March 1836 calling attention to previous. requested in a letter to the Governor , an investigation into his own and Mr. WARNER ' s conduct.

saw the Governor re appointment of Pound Keeper. tendered his resignation end of May 1835, which was refused. letter to Private Secretary, 4 May 1836, re his private

quarrel with WARNER. wrote to Attorney General for guidance 23 May 1836. his letters dated 31 Dec. 1835 and 23 May 1836 to Governor,

11 -

transmitted to Attorney General. Sir Richard BOURKE expresses dislike of DONNISON. remonstrated to FAUNCE the impropriety of arresting and putting in irons MOORE on charge of stealing made by a a Ticket of Leave man. in May 1836, Chief Constable reported to him on unhealthy and damp lock-up. advised FAUNCE that SMITH's detention was illegal. in May 1836 , inspected lock-up and directed prisoners to be allowed to walk, and noticed irons had galled the leg of

one of them. trial DONNISON v FAUNCE, Chief Justice qualifies FAUNCE's action as " high misdemeanor". on 14 Nov. 1836 - went to Court and found BEAN under

examination. sent HILLIARD to offer MEADOWS to come to his house about

his cow. refused to grant to MEADOWS a summons for BEAN , but wrote one for WARNER ' s signature. at the time of MEADOWS ' summons, was on friendly temrs with

BEAN and WARNER. killed the disputed cow about 3 months after buying it from

BEAN. about June 1834, BEAN wrote to WATSON to release a cow to DONNISON.

308

DONNISON Henry (continued)

17 18 19 20

states that he admitted to killing the cow, and did it openly. refers to the bias against him by portion of the community. wrote, with BEAN, a statement for defence before being allowed to leave on bail. his opinion of Richard CAPE's character. proceeded immediately to Sydney, saw the Crown Solicitor, who reassured him on the issue. apprised by his attorney POGSON that his case would be certainly dismissed. informed FAUNCE that he intended to bring HILLIARD before the court for concealing truth and defrauding him. letter to the Attorney General 21 Dec. 1836, he suspected foul play on part of FAUNCE.

in case v FAUNCE, dated 17 October 1837. complained that prisoners like HILLIARD are better treated than MOORE or BEAN. is apprehended on 2 January 1837 for cattle stealing with BEAN. BEAN, MOORE and - were apprehended on 2d January 1837. dishonest action as magistrate in dealing with his assigned

servant John BERRY charged with robbery (SCOTT's deposition). fulfilled his office of magistrate unsatisfactorily,

according to SCOTT's deposition. has employed his magisterial powers for his private interests (SCOTT's deposition). accused by SCOTT of having supplied liquor to his servants and that his place was a notorious grog selling place.

25 26

- was put to the bar on 5 January 1837. accused as an accessory in MOORE' s case , December 1835.

with MOORE, charged with stealing two steers from BRAMBLE and perjury in conspiring to injure his character. charged by FAUNCE with subverting SMITH (- and MOORE),

28 29 31

32 -

13 January 1837. - and MOORE each charged with three felonies, two misdemeanours, discharged from one of the latter. on arrival in Sydney - and MOORE applied to Supreme Court and were admitted on bail 1st February, been in custody thirty days. during DONNISON's absence in irons, his place took fire and in a few hours was totally consumed. - and BEAN tried after some delay 27 February. Attorney General commences charges against him of receiving

33 34

a stolen cow. verdict of not guilty returned by Jury 27 February. states that he was prepared to meet any charge brought against

his conduct as magistrate. squabble between - and FAUNCE in Court, FAUNCE clears the

39 41

Court. letter sent to Colonial Secretary ( no answer received), 3 May 1837, about FAUNCE preventing him from acting as Magistrate. wishes to conduct his own case against the Attorney General, asked to compromise, declined. permitted to make explanations on 2nd day of trial. asked Colonial Secretary to show letters about Government paying FAUNCE's expenses.

309 DONNISON Henry ( continued )

41 44 50

52 53 57 -

58 58,59 59 66

PLUNKETT snatches letters and Chief Justice DOWLING refuses to return them. received verdict for being put in irons only. in action against FAUNCE the plaintiff recovered verdict for being put in Irons only. - apprised FAUNCE of his bad relations with WARNER, gave him letters, FAUNCE not interested ( early October 1836). expounds on Attorney General ' s letter, 29 December 1836, on ownership and identity of beast alleged to have been killed. indirectly admits that he opposed the Governor ' s policies and that the Governor was aware of it. letter dated 31 December 1835 to Governor referred to Attorney General. accusations by PLUNKETT against - and MOORE of cattle stealing, conspiracy , perjury and subornation. report conversation between - and PLUNKETT ' s friend about circumstances of trial. reasons for pressing his case to the end without compromising, to prove good name. letters he wrote to Colonial Secretary December 1835 and extracts. March 1836: states: " when I came first in the district in 1832". "Mr. WARNER and I entertained a mutual dislike." waited upon His Excellency on 29 May ( 1836). wrote to THOMSON ( Colonial Secretary ) to explain circumNot answered. stances, apologising for non-attendance . instances of intimidation of landowners by convicts, fears of arson: see SCOTT p23. accused FAUNCE of weakness in directing proceedings in court, conflict of attitude. claims he never came in political contact with Governor, instances of his abstention to be implicated: see

69 70

pp52,66,69. how he antagonised Sir Richard BOURKE's Government. felt slighted by soldiers instructed to report to WARNER

or act on their own accord. 24 October, requested Attorney General for copies of trial

72 76 80 81 85 86 -

in action - v FAUNCE. letter to PLUNKETT , 18 November 1837, deplores his refusal of copies of evidence numbering about 23 in all. accused of being in collusion with MOORE and BEAN for the purpose of cattle stealing ( R. CAPE's deposition). insisted in his correspondence , 31 December 1835, through Private Secretary , and has interview with him. statement to the Court in 1837. refuted acts of Magisterial Delinquency imputed to him. protests jointly with Willoughby going on board during a storm , objected to proceedings taken by circular , 18 May 1833, and the denied having admitted all facts 23 December 1836.

BEAN and John MOORE against 18 January 1837. FAUNCE and refers to Commission of the Peace. stated by HILLIARD,

310

DONNISON, Mrs.

SCOTT excepted DONNISON's "amiable family, who still are

29 -

respected". - was in a very delicate state of health, January 1837. her husband was to be permitted to see her but FAUNCE changed his mind and prevented it.

DOWLING Chief Justice

declines to return FAUNCE's letter to DONNISON.

DREW

84 -

knocked off MOORE's irons at the back of the lock-up house. a dictionary belonging to Mr. DREW had been stolen. Mr. DREW was the lock - up keeper.

EDWARDS

name cited by R. CAPE in his deposition.

FATTERINI

BEAN sold cattle to -.

FAUNCE Alured Tasker iii 8 Captain 4th Regiment 9 Police Magistrate at

action FAUNCE v CAVENAGH, 15/16 March 1838. was not present during conversation with Mr. HOLDEN. succeeded Mr. WARNER in the office of Police Magistrate

Brisbane Water

at Brisbane Water, 1 October 1836. on arrival in Brisbane Water , summonsed MOORE to attend on 1 November on cattle stealing charges. on 2 November , committed MOORE again on conclusion of

10 11 -

another examination. apprehend MOORE forthwith for cattle stealing. investigate at great length the case of a cow being killed. denies SMITH kept in solitary confinement. Will be kept until 12 January 1837.

intimidation of witnesses . BROWN threatened with imprisonment for cattle stealing, is incarcerated 24 hours in a cell for solitary confinement. trial DONNISON v FAUNCE, Chief Justice qualifies FAUNCE's action as " high misdemeanor". on R. CAPE's complaint, summoned BEAN on charge of perjury

to attend on 14 to answer it. examined W. BEAN under charge of perjury , 14 November 1836,

on R. CAPE's complaint. after disposing case of perjury against BEAN , proceeded to

investigate that of felony. enquired on 14 November 1836 about transactions made about

16,67 19 20 25 26 -

June 1834. on 14/15 or 16 November 1836 - investigated cattle transaction. alluded to acting according to "his instructions". contrary to DONNISON's Attorney (POGSON)'s assurances, states that the case was not dismissed. refused to bring HILLIARD forward on DONNISON's request. committed BEAN and DONNISON without asking for more evidence or explanation from the accused. refused to take bail following Attorney General's instructions. warned DONNISON that in addition he must be prepared to answer charge of magisterial delinquency. stated to have been in communication with Attorney General for some 2 to 3 months about the case.

311

FAUNCE Alured Tasker 26 ( continued ) 28 28,60 30

omitted to summons witnesses and examine them before the prisoner. tolerated BRAMBLE addressing DONNISON with familiarity in giving evidence. committed SMITH for perjury on 12th. charged MOORE and DONNISON with subverting SMITH. lack of firmness in Court allowing abusive people to proceed. played with his prisoners , then put them in irons. Bail

allowed , then refused. intended to send his prisoners, in a small open boat in a gale of winds and rain. See also p45.

testified at trial of BEAN, MOORE and DONNISON in Sydney,

34 35 37 38 41 42 43 44 46 48

25 February 1837. issued a warrant to search MOORE 's house after it had been robbed ( MOORE being absent). squabble with DONNISON in court; he clears the court. DONNISON alludes to the disparity in physical strength between himself and Capt. FAUNCE. DONNISON , MOORE and BEAN take steps to bring action of trespass against -, not for money, but for vindication. day of trial for DONNISON , MOORE and BEAN. Their Attorneys are KERR, FOSTER and a 'BECKETT. applied to Sir Richard BOURKE for payment of his damages. apology to MOORE, and payment of costs, 18 March 1837. - prosecuted a newspaper for libel. DONNISON vilified Capt. FAUNCE. he first went to Brisbane Water to sit at Petty Sessions 1st September 1836. appointed to succeed WARNER on lst October 1836. told DONNISON that Crown Solicitor told him to examine charges by W. T. CAPE against MOORE dated 1835. never returned the visits of DONNISON , WATSON and MOORE; behaved rudely towards them. complained to PLAISTOWE of rudeness towards him from BEAN and DONNISON. was advised by WARNER to view DONNISON doubtfully. wrote 14 November or end December to MANNING about BEAN: MANNING vouched for him. appeared to have the notion that he was a servant of the executive. said in Brisbane Water court house, 2 November , that he was advised by Attorney General to admit MOORE to bail. Case 18 October. acted in direct opposition to PLUNKETT' s advice, says DONNISON. THERRY disagrees. on 5 January 1837, MOORE' s man FROST swears that the animal claimed by CAPE is the property of MOORE. On that sole

evidence - commits him. PLUNKETT' s conduct as defender of FAUNCE, his duties and

his role. would not hear evidence from WATSON who was back in district on 4 January.

312

FAUNCE Alured Tasker 55 (continued) 59 67 68 84

there was suspicion that he did not forward two documents vital for BEAN's defence; they were returned to BEAN. conflict of attitude in Court. FAUNCE accused of weakness in directing proceedings. acted "according to his instructions". protected by Government in spite of his mistakes . Recommendation that his costs be paid by public. dismissed charges and stated no further charges against the parties ( charge of subornation of perjury against MOORE); J. PLAISTOWE deposition. granted that DONNISON be permitted to go home, under escort, to arrange matters.

Fire

27,28 31

FISHER Crown Solicitor

18 25 37 55

fear is expressed that BRAMBLE may set MOORE's house on - (intended arson). during DONNISON 's absence in irons, his place took fire and in a few hours was totally consumed. BEAN saw the Crown Solicitor about 16 December 1836. named. took the defence of FAUNCE accused of trespass by MOORE, DONNISON and BEAN. stated that Attorney General saw the two documents vital for BEAN ' s defence ; they were in his pocket at the time

of the trial. said that he gave permission to R. CAPE to take away sundry

papers attached to the deposition. had documents but did not produce them thinking them nonessential or irrelevant.

FLETCHER William A Prisoner of the Crown

overseer to William CAPE senior, urged to get 1,000 head

of cattle "by hook or crook". his conditional pardon is threatened by R. CAPE's intimidation.

FOSTER

acted for MOORE, DONNISON and BEAN, with KERR and a 'BECKETT in their action against FAUNCE (17 October, p19).

FREEMAN A Shingle Splitter

SCOTT' s deposition. appropriation of shingles by DONNISON, two versions.

FROST Joseph

10 11

MOORE's herdsman, committed by FAUNCE, put to the bar. accused by SMITH's evidence of killing a cow, with BRAMBLE. he and SMITH had quarrelled. MOORE's servant, had been in custody since December 1835.

living with the constables. charged for stealing a beast of CAPE's was dismissed on 4th November. swore that the heifer was (not CAPE's but) the property 27 35

of MOORE. has since obtained a Ticket of Leave, January 1837. on charge of having robbed MOORE is taken from him after a two-month delay.

313

FROST Joseph (continued)

on 5 January 1837, MOORE' s man , FROST, swears that the animal claimed by CAPE is the property of MOORE. called by FAUNCE to answer question under oath. FAUNCE mistakenly administered wrong oath to - as a witness. has been in prison since 28 October 1835. his evidence: Has been admitted as a witness in a case of cattle stealing

52 81 82 -

" The heifer was branded on against MOORE and DONNISON . Wednesday morning before Christmas 1835." he is, with BRAMBLE , accused of killing a cow , the property

of W. T. CAPE Esq. was sent with Maltby SMITH to Sydney gaol about January

1836;

remained there about 13 weeks.

implicated MOORE as having tried to suborn him about BRAMBLE. 84

had been put in irons after MOORE had his off. denied having given evidence against BEAN about perjury.

74 75

was at the farm at Tuggerah Beach.

GLENELG

saying that leaving out a Magistrate is not a dismissal (see HRA XVIII-501/2).

GORMAN Richard

Constable

He searched Maltby SMITH in February. deposition. took J. FROST prisoner 28 December 1835.

Government

DONNISON admits to having been on a collision course

GILL

was a dairyman or was in a dairy.

with -. Government Support

what entitled FAUNCE to the support of the Government. (See BOURKE p53.)

cattle bought from his station branded I M.

see Liquor 6

stray - put by CAPE into MOORE's yard and driven away, charge of cattle stealing by CAPE and BRAMBLE.

HELY Frederick Augustus Principal

9 68

MOORE wrote about assignment of convicts being stopped. informed DONNISON in 1832 that he cannot have any assigned servants.

Superintendent of Convicts HENDERSON

75 81 86

his station at Budguroy. told R. CAPE he thought the cow belonged to RICHARDS. accused by DONNISON of having committed a felony. Capt. FAUNCE has sent a notice to - on meeting to build a church.

Herdsmen/man

MOORE's herdsman also committed by WARNER. CAPE put a stray heifer into the yard,of MOORE and gave her in charge of his herdsman. Governor directed that the herdsmen should be discharged.

314 Herdsmen/man (continued)

7 9

20 25 33

informed DONNISON about MEADOW ' s cow, March or April 1834. -' s unsatisfactory testimony according to DONNISON. Capt . FAUNCE refused DONNISON ' s request to bring - forward. alluded to in a letter. gave evidence at Sydney trial 27 February 1837.

referred to as a butcher in R. CAPE's deposition,

80 85

January 1837. DONNISON killed the cow which had an old brand. Statement . letter from DONNISON to FAUNCE, he will charge - with false

testimony. Capt. FAUNCE declines summoning HILLIARD 21 December 1836.

14 HILLIARD John Prisoner of the Crown 19 Butcher, one of Donnison ' s men

Criminal Session of February passed. May commenced and two - still in prison and in irons. MOORE ' s herdsmen still in custody after 23 May 1836.

is referred to as a prisoner of the Crown 23 December 1836. HOGAN James

HOLDEN Private Secretary

33 73 80

7 8

to the Governor

HOLDEN Alfred

gave evidence at Sydney trial 27 February 1837. MEADOWS' witness, who "lives at Andrew ROOK". stated he knew of MEADOWS' ownership of the cow from MEADOWS ' own information. DONNISON stated his business to Mr. - , end of May 1836. is not allowed to be examined. Private Secretary to the Governor had a talk with DONNISON. allusion to and praise of FAUNCE's successor with regard to punishing offenders ( HILLIARD). MOORE purchased cattle from -.

HUMPHREYS

Identity

Irons

see Leg Irons

JOHNSON

JONES Member of Council KERR

of the cow. Many divergent opinions : RICHARDS ', MEADOWS ' or MANNING's?

was she GREY's,

former servant of DONNISON. MOORE wrote to - about assignment of convicts to him being discontinued.

with FOSTER and a'BECKET , acted for MOORE, DONNISON and BEAN in their action against FAUNCE ( 17 October, p19). commented on regular correspondence between FAUNCE and

PLUNKETT. submitted to the court that the case is a mere question

of disputed property. KINCHELA Dr. Attorney General KING

WARNER forwarded papers to Colonial Secretary or Attorney General.

17,76

allusion to a case , KING v MOORE.

315

KING

33 35

gave evidence at Sydney trial 27 February 1837. had his Ticket of Leave cancelled ; he had given evidence favourable to MOORE.

KING Robert

informs MOORE that his house at Brisbane Water had been

broken open and robbed of a gun. has had his Ticket of Leave cancelled. deposition of - , prisoner of the Crown holding a Ticket

79 -

of Leave. formerly assigned to BEAN and RICHARDS, knew MEADOWS to possess cattle and knew the cow on MEADOWS' statements

only. lost his Ticket of Leave.

Lady

a lady asserts BEAN's honesty.

Lake Macquarie

neighbourhood infested by gang of cattle stealers, R. CAPE being one of them.

LANNAGHAN John A Stockman

was a stockman to Mr. BEAN at Tuggerah Beach, would have

75 -

known the cow. was friendly with MEADOWS, lived at Tuggerah Beach. was employed by MANNING under BEAN , two to four years ago,

76 81

November 1836. pointed out to R. CAPE that the cow did not belong to MANNING. assisting branding cattle from Capt. GREY, at MANNING's. DONNISON states that -' s cow was killed by BRAMBLE, RUST and CAPE.

Law

47 48 62

state of - in the colony presented by DONNISON. Circular , September 1832, directing Law Officers to assist Magistrates with advice. "Summary Punishment Bill" passed by BOURKE has considerable effect according to DONNISON.

Leg-irons

7 10

two herdsmen still in prison in May in irons. MOORE apprehended by FAUNCE , put in irons, locked up for

11 30

14 days. the irons had galled the legs of one of them. MOORE put in irons, had previously been kept for fourteen

days in irons. PLAISTOWE threatened legal measures if prisoners were kept

41 54 83 84 Letters

in irons any longer. plaintiffs received verdicts against being put into irons. DONNISON ' s allusion to FAUNCE ' s defence that he did not give " straight order" to iron the accused. trace of irons on FROST's and SMITH ' s legs. after MOORE Had his irons off, FROST had them on. Mr. MOORE had his irons off. Deposition of J. FROST.

DONNISON to Private Secretary re private quarrel between

himself and WARNER. DONNISON to Attorney General re letter 31 December seeking guidance for his conduct in the case v MOORE, dated Liverpool 23 May 1836.

316

Liquor

8 24 -

46 80

dreadful effects of illicit grog- selling . Letter, DONNISON to Private Secretary. a man was killed in a drunken squabble , the third in four years (21 May 1836). BOOKER accused of meeting SCOTT's servant to drink. SCOTT accused DONNISON of giving liquor to his servant H. STEPHEN and keeping a notorious grog-selling place (4 January 1837). FAUNCE believes to have a strong case of grog- selling against DONNISON, later completely dispelled. KING's deposition that MEADOWS had a reputation as a sly grog seller.

Lock-up

11 -

state of the - at Brisbane Water. cell used for solitary confinement, seven feet by four.

McGRATH Miles

14 17

could vouch for MEADOWS ' ownership of a cow. CAPE intended to press charge of perjury against - for

33 74

calling him a cattle stealer. not called as witness at trial in Sydney, 27 February 1837. witness for MEADOWS ' ownership of a cow, never summoned

75 76 80 87

by MEADOWS. at Budguroy , Mr. HENDERSON's station. BEAN said to CAPE that he would enquire about ownership to Miles McGRATH. deposition , believed the cow belonged to RICHARDS ; MEADOWS never contacted him. could have been brought to determine MEADOWS' ownership; neglect to bring him to determine the point.

Magistracy

how it works in a country district where only one Magistrate

resides. system to degrade old - by appointing a pound - keeper. when local magistrate needs advice and help, Attorney General

acts as legal adviser. Mail

accused's - to their Attorney, detained by order of Captain FAUNCE.

MANNING John Edye Esq., Registrar of the Supreme Court

6 9 13 14 -

cattle purchased by MOORE from - and driven away. large herd of wild cattle property of - purchased by MOORE, December 1835. agreement that W. BEAN takes charge and purchases land and cattle of -. BEAN tells MEADOWS that the cow belongs to MANNING and dares him to take her. on RICHARDS, leaving the district, bought his cattle valued

by BEAN. - was to have replaced , from RICHARDS' herd, the cow that MEADOWS calaimed as his. assured FAUNCE that he takes BEAN for an honest man

( answering FAUNCE's letter). memorandum of the sale of cattle from Tuggerah Beach by

- for E25.

317 MANNING John Edye (continued)

78 -

directed BEAN to buy and sell cattle. mentioned letter respecting church at Brisbane Water. considers BEAN to be as honorable man as any in the colony. citing a return dated April 1834, a cow claimed by MEADOWS, to be replaced if he established his claim. deposition of -. agreement with BEAN to have him managing his property at Brisbane Water. recollected purchasing cattle from GRAY, CAVENAGH, RICHARDS; mentions Tuggerah Beach station.

MASON John A Stockman MAZIERE MEADOWS George

75 76 9 13,17 14,80 15 -

pointed out to CAPE that the cow did not belong to MANNING. assisting branding cattle from Capt. GREY at MANNING's. MOORE purchased cattle from -. R. CAPE brings MEADOWS by the collar, as having lost a cow stolen by DONNISON and MOORE. summary of his career.

applies to the Bench for a summons for Mr. BEAN. stated that SMITH, Senior Constable, knew the cow to be his. never asked SMITH, Chief Constable, to satisfy BEAN that

the cow was his. admitted to having seen MANNING but never mentioning the

matter of his cow to him. admitted that he had no present intention to proceed of his

own accord. never made any claim to WATSON (acting for BEAN) about his

cow (in 1834). charge of felony resting on the unsupported testimony of -.

18,19 22 33

advised by Attorney General that he should being civil action against BEAN. deposition of THOMPSON to the effect that WATKINS sold a cow and calf to MEADOWS. Trial 4th. brought a cow and calf in a vessel to BEAN's farm (ROURKE's deposition). case against BEAN, DONNISON and MOORE rested entirely on his unsupported evidence at trial in Sydney, 25 February Jury returned verdict of "not guilty". 1837.

DONNISON informs PLUNKETT of place of residence of -, who allegedly could not be found. judge states that the case for prosecution rests on -'s

unsupported testimony, reports DONNISON. the cow would have been delivered to him had he made good

56 72,75 73

his claim. had an option to proceed civilly for the value of the "20/- to 40/- plus costs [5/-]". cow: deposition of - dated 14,15,19 November 1836. was offered to have the cow if he finds any persons to prove that she was his.

sold his farm and left the district. "it is about eight years since I bought the cow". 14th November 1836. had no intention of bringing the charge forward at present, did not authorise anybody to institute these proceedings, "Mr. CAPE called me."

318 MEADOWS George (continued)

74 -

75 76 79,80 80 87

MOORE John of Avoca

5 6 -

applied for a warrant to Mr. WARNER who could not do it, advised to go to Sydney. inquired of Mr. ROWE as to possible prosecution, two years ago; advised costs between E40 and E60 for witnesses; about November 1834. despised by BEAN as having robbed Mr. RICHARDS. did not give R. CAPE authority to institute proceedings against BEAN. when in charge of RICHARDS' farm built a vessel on it. KING's deposition that - had a reputation as a sly grog seller. neglected to bring McGRATH, to whose opinion BEAN offered to accede.

objected to appointment of assessors September 1835. a stray heifer put into his yard by W. T. CAPE. is locked up, afterwards admitted to bail. drove the beast to another station. purchased cattle from MANNING. DONNISON has been in treaty with - for purchase of cattle

for slaughter. charged, under oath, of cattle stealing, by BRAMBLE, CAPE, etc. his herdsman also committed by WARNER.

was at variance with the CAPE family. had recently purchased cattle from MANNING.

warrant granted by WARNER, on CAPE's charge, for apprehension of - and two search warrants issued. WARNER says that - and DONNISON are considered as partners.

7 -

immediately proceeded to Sydney. addressed a letter to the Governor, Sir Richard BOURKE, requesting a disinterested magistrate to be sent. no official notice given to - but his two herdsmen still in prison in irons in May. waited on the Governor who said if he chose, the two men should be discharged. effort for investigation unsuccessful. referred to by DONNISON in letter to Attorney General

9 -

23 May 1836. unsuccessful efforts to free 2 men in custody. waited upon His Excellency on convict servants being withheld

10 12

from him. summoned for investigation by Capt. FAUNCE on 1 November 1836. posted written notices that he was collecting and branding wild cattle. another charge of cattle stealing proved against him. purchased a farm of 500 acres and wild cattle, a portion of which claimed by Richard CAPE. in irons for 14 days. on bail of E40. requested by SIBLET, DANGAR's brother-in-law, to prosecute

CAPE on his behalf. on his examination on 1 & 2 November 1836, BEAN for the accused, branded R. CAPE a cattle stealer. on 2 January 1837, BEAN, - and DONNISON were apprehended;

- because BEAN " was one of his bail". on 2 January was apprehended for "inefficiency of bail".

319

MOORE John of Avoca (continued )

25 26 27 28 29 30 31 -

32 -

committed on 2 November 1836. Put to the bar 5 January 1837 for alleged felony committed in 1835. his charge was that of stealing CAPE' s heifer, and DONNISON to be present.... - and DONNISON charged with stealing two steers from BRAMBLE and perjury in accusing him of intent of arson. in October 1835 swore of his apprehension that BRAMBLE and others might set fire to his house. case of felony exposed by BRAMBLE. charged by FAUNCE with subverting SMITH. charged with DONNISON on 31 January 1837. committed on charge of 3 felonies , 2 "misdemeanors", discharged from one of the latter. put in irons; had previously been kept for fourteen days in irons. on arrival in Sydney with DONNISON , - applied for bail on 1 February 1837; had been in custody for 30 days., trial alone for the October case on 6 February . Witnesses called , but before witnesses examined , jury returned a verdict of "not guilty". his trial with DONNISON and BEAN fixed for Monday 27th and following day. could not have the robbery enquired into.

-'s action followed that of BEAN. in his action against FAUNCE , received verdict only for

being put in irons. action v. FAUNCE for searching plaintiff' s house.

53 66 76 81 82 84 85

Received

apology and costs. was charged with stealing a heifer , the property of W.T. CAPE. accusation by PLUNKETT against = and DONNISON of cattle stealing , conspiracy , perjury , and subornation. - and BEAN were " mere stepping stones to get at DONNISON". accused of being in collusion with DONNISON and BEAN for the purpose of cattle stealing : R. CAPE' s deposition. accused of subornation of witnesses in person of Maltby SMITH on 4 November. was charged with suborning SMITH to commit perjury. Mr. - had his irons off; deposition of J. FROST. protest of - jointly with BEAN and DONNISON against going on board in a storm; 18 January 1837.

MYERS (MYATT)

was the scourger at Brisbane Water circa 1835.

Oath

Captain FAUNCE administered the wrong oath to Joseph FROST.

Objection

see Protest.

Ownership

PARFITT

34,35 34 35

remark made on the day of branding as to the ownership of the cow. assigned servant of MOORE and accomplice of CARROLL. apprehended on KING ' s evidence , declares that KING and MOORE set him up. on charge of having robbed MOORE's, - is taken from MOORE after a 2 month delay.

320

PEEL's Acts PLAISTOWE John of Maitland

16,54,65 29 31

Former Attorney 82 84 -

allusion to PEEL's Acts used by defence. gave legal assistance to MOORE and DONNISON. threatened legal measures if prisoners were kept in irons any longer. intervened in decision to send prisoners to sea in a storm. subornation deposition 14 January 1837, MOORE ' s charge : and perjury. pointed out FAUNCE ' s mishandling of case and of proper procedure to follow. would not allow FAUNCE to read copies of paper scraps taken from SMITH by GORMAN. objects to evidence being deduced from SMITH ' s "writings" to support the charges against MOORE and DONNISON. asked FAUNCE for bail, which was denied on opinion from WARNER.

PLUNKETT John H. Attorney General

iv 13

DONNISON regrets that he has to speak harshly of -. advice sought : case not proceeded with until - ' s opinions

received. advice offered by Attorney General that MEADOWS should

21 34 36

proceed against BEAN. Crown Solicitor , FISHER , informed DONNISON that the Attorney General would not proceed ; confirmation on either case following day. letter to DONNISON in acknowledgement , 29 December 1836, confirming case stands. stated in Supreme Court that he should recommend Governor to dismiss DONNISON from the Magistracy. threat of having DONNISON removed from Magistracy not

executed ; probable reason for it. shows great hostility towards DONNISON. states the necessity of retaining DONNISON in his magisterial

46 -

commission. DONNISON discusses -' s part in the events. DONNISON has been from first to last the object of -'s

attacks. from Captain FAUNCE ' s arrival at Brisbane Water he commenced a correspondence with the Attorney General.

48 -

acting in capacity of Grand Jury. comment of KERR on regular correspondence between FAUNCE

and PLUNKETT. DONNISON's consideration of the conduct of - in his capacity

as Grand Jury. on or about 17 December 1836 was determined not to proceed

in this case or MOORE's. charges against DONNISON and MOORE are compounded of cattle stealing, conspiracy , perjury , and subornation. DONNISON asserted that - was ordered by Sir Richard BOURKE

67 71

to defend Captain FAUNCE. DONNISON states that - obeyed the Governor ' s directions. memorandum on the depositions and correspondence with the

Attorney General. acknowledged DONNISON ' s request , 26 October 1837, declined to comply. book of legal procedure ; in that book.

FAUNCE acts from the instructions

321 18 19

POGSON

32 81

attorney for DONNISON. informs DONNISON that Attorney General had determined not to proceed. on the point of death at the time fixed for trials. letter from W . CAPE Senior , in possession of DONNISON, for William FLETCHER to find him 1,000 head of cattle.

Police

granting of a constable twelve months after DONNISON's request.

a party of 25 soldiers sent to Brisbane Water. DONNISON warns government in strong terms that mischief will occur if no steps taken.

Police Magistrate Pound Keeper

5,20 , 21 7

WARNER was Police Magistrate at Brisbane Water in 1835. DONNISON and MOORE objected strongly to Pound-keeper's appointment as Assessor. DONNISON went to see the Governor regarding appointment of pound keeper (that of T. A. SCOTT).

Protest

5,20,21

by DONNISON and MOORE at Pound-keeper being appointed as

Assessor for the Bench at Brisbane Water. of the three accused at going on the open sea in a small boat during a gale. See also pp45,85.

Records of Brisbane Water Police Office

RICHARDS

were sent to the Crown Solicitor in June 1837; not to this day delivered in spite of repeated applications.

13 -

W. BEAN bought a herd of cattle from -. BEAN and - had formerly been partners. removed his agricultural interests from Brisbane Water to

14 72

another district and sold his cattle. his cattle delivered to MANNING and branded with distinctive brand. memorandum of sale of cattle, ÂŁ25 paid by MANNING to - for BEAN's services to RICHARDS.

ROBERTS George

cited by R. CAPE in deposition 21 November 1837.

ROOK Andrew

( ROURKE)

named by T. A. SCOTT in his deposition. MEADOWS ' witness, J. HOGAN, " lived at Andrew ROOK".

ROURKE

21 33

formerly BEAN'S overseer ; deposed at trial on 4th. gave evidence at Sydney trial 27 February 1837.

ROWE

Attorney . MEADOWS enquired from a clerk for advice, concluded cost would be too much.

Rum

two bottles of - are a powerful bribe in the country.

Runaway

see Bushranger.

322

RUST

accused by DONNISON of having killed LANNAGHAN's cow.

SCOTT Robert

83 84.

"Mr. SCOTT", the Chief Constable; deposition of FROST. Robert SCOTT, the Chief Constable; deposition of GORMAN.

SCOTT Thomas Alison Pound - keeper,

Clerk of the Bench , Postmaster

7 20 21 22,24 22 23

appointed Assessor for the Brisbane Water Bench, September 1835. DONNISON objected to the Governor regarding Pound-keeper appointment; end of May 1836. has been promoted to clerk of the Bench against DONNISON's objections ( 1836). has been to Sydney and procured more evidence. deposition of - in extensive , lengthy and spiteful attack on DONNISON. from -'s deposition, examination of accused began about six weeks prior to his deposition dated 4 January 1837. attacks on DONNISON, his reputation , his dealings; dishonorable and dishonest acts as a Magistrate. more allegations of DONNISON ' s improprieties as a Magistrate. reported statement from man unknown (a servant of DONNISON) without a witness, impeaching his master's reputation.

a, `o -

reported MOORE stealing from W. T. CAPE; defence dated

reported hearsay that he believes to be true, implicating

admitted to having had a quarrel with DONNISON about a

2 November 1836; a false statement. o

rn 째 O1 n'^ s+ n A v n v

DONNISON.

F , cO n w CD

bargain in corn. 24 -

a L N

blackens DONNISON's character and motives. accused DONNISON of giving liquor to his servant H. STEPHENS and of keeping a notorious grog-selling place; 4 January

F o

28 33 43 51

1837. his impertinence towards DONNISON. was not called as witness in trials. advanced from Pound-keeper to Clerk of the Bench. role of - in bringing new information to Attorney General resulting in him resuming case against DONNISON and MOORE; see p21. Pound-keeper appointed to sit as an Assessor with the Magistrates at Petty Sessions. MOORE's strong objections

in a letter to the Governor. his deposition dated 4th.

SHERIDAN

a shingle -splitter;

Shingles

23 58 79

shingle-splitters, FREEMAN and SHERIDAN. appropriation of - by DONNISON, two versions. MEADOWS split - on his master's ground and used his teams for that purpose.

a shoemaker stated that DONNISON was a good master.

Shoemaker

SCOTT's deposition.

323 SIBLEY Brother-in-law of Mr. DANGAR

requests MOORE to prosecute CAPE on DANGAR's behalf.

SIDEBOTTOM

SCOTT's deposition at trial of MOORE and DONNISON, 4 January 1837.

Prosecutor Servants

59,60

example of the laxity with which convicts were controlled and casually freed.

SMITH Maltby

10 11

DONNISON's man put to the bar by FAUNCE, his offence. imprisoned from the end of December 1835 until examination 2 November 1836, neither examined or committed. searched about 4 November and papers taken from him. Kept in confinement, no charge against him. He "would be

12 -

needed later". gave evidence and accused FROST and BRAMBLE 2 November 1836. he and FROST had quarrelled. kept in confinement and in irons 2 November until 12 January 1837. Discharged without trial in March. kept 11 weeks in all, submitted to interrogations and pressure to indict DONNISON. a sailor, son of a farmer in England, wild and drinker,

transported for seven years. his diary alluded to by SCOTT in deposition.

26 28 29

was committed for perjury on 12 January 1837. DONNISON's servant, was searched, scraps of papers taken

from him. - , DONNISON's servant, was charged with MOORE by W. T. CAPE.

charge of perjury, on MOORE's direction, that Joseph FROST

kept in solitary cell, no charge was proffered against him.

and William BRAMBLE killed a cow the property of 83 84 -

SMITH William Senior Constable

W. T. CAPE Esq. the mystery of his little pieces of paper in the lock-up. about his writing, by FROST. had half a crown and two or three shillings besides. reference to - as proffered by Richard GORMAN, constable.

DONNISON points out to FAUNCE that - is only charged with assisting to skin a bull "owner unknown" 1 November 1836.

the senior constable - could vouch for the cow being

22 73 74

MEADOWS'. senior constable, was never asked by MEADOWS to identify his cow to BEAN. trial MOORE 4th January 1837. SCOTT's deposition; knew it as MEADOWS' cow (deposition of George MEADOWS). former constable, now a carpenter, Kent Street Sydney (November 1836).

Spirit

8 14 24

dreadful effects of illicit grog selling at Blue Gum Flat. two bottles of rum are a powerful bribe in the country. SCOTT accused DONNISON of giving liquor to his servant H. STEPHEN and keeping a notorious grog-selling place,

4 January 1837. FAUNCE states that case of sly-grog selling showing against

DONNISON. state of illicit sale of liquor in the district in 1832.

324

pointed out to R. CAPE that the cow did not belong to

MANNING. assisted with branding of cattle from Captain GREY, at MANNING's.

STEPHENS Henry

servant to T. A. SCOTT.

Summary Punishment

Bill passed the year preceding ( 1835).

Sydney Gaol

SMITH and FROST were sent to - about January 1836 for about 13 weeks.

Sydney Gazette

action brought against - editor by Captain FAUNCE

(FAUNCE v CAVENAGH). reference to - of the 20 November 1836.

cited in deposition of G. MEADOWS.

STACEY Thomas A Stockman

"Tamar" steamer THERRY Roger Barrister

iii iv 32 42,43

attack upon especially DONNISON, in FAUNCE v CAVENAGH. acting as the advocate of Captain FAUNCE (FAUNCE v CAVENAGH), 15/16 March 1838. BEAN advised to engage Roger THERRY to defend him. leading Counsel in FAUNCE v CAVENAGH case of libel, disparages DONNISON.

44 48

referred to as Captain FAUNCE's counsel. FAUNCE's counsel in FAUNCE v CAVENAGH, Sydney Gazette, 20 March 1836.

THOMPSON

deposition of - regarding WATKINS selling cow and calf to MEADOWS.

Trespass

MOORE brought action of trespass against FAUNCE.

Trials

in Sydney of DONNISON, and following day.

Tuggerah Beach

MANNING and DANGAR's cattle grazing at -. a couple of horses and cattle grazing at -.

15 78

BEAN and MOORE fixed for Monday 27th

- station of MANNING, mentioned in MANNING's deposition.

TURNER William

informed R. CAPE that BEAN called him a cattle stealer.

UNWIN

case put in the hands of - , Friday, 24 February 1837.

WALTER

his farm on the Erina Creek.

WANT

sold cattle to Mr. MANNING.

WARDEN Thomas (or WORDEN p76) Stockman

pointed out to R. CAPE that the cow did not belong to

MANNING. assisted with branding of cattle from Captain GREY, at MANNING's.

325

WARNER

5 -

in 1835 Mr. - was a resident J.P. in the district of Brisbane Water and a Police Magistrate. readily granted a warrant for the apprehension of MOORE. desired that DONNISON did not sit on the Bench. stated that DONNISON was disqualified to sit as Magistrate

in a case concerning MOORE. forwarded papers to Colonial Secretary or Attorney General.

DONNISON requests in a letter to Governor, investigation into his own conduct. letter to Private Secretary regarding private quarrel between WARNER and DONNISON , 21 May 1836. named by DONNISON in letter to Attorney General, 23 May 1836. about his conduct. Letter DONNISON to Governor, transmitted

to Attorney General. relinquished office of Police Magistrate at Brisbane Water

15 28

57 58

Did not tell the inhabitants, thereby the district. preventing them from meeting the Governor. appointment of SCOTT as Assessor brought representations

22 73

WATSON

with BEAN and DONNISON. requested DONNISON to write summons for BEAN. testified that MOORE complained against BRAMBLE for breach of the peace, and that he feared that his house would be set on fire by him. testified at trial in Sydney, 25 February 1837. gave character testimony about BEAN and MEADOWS. "Mr. - and I entertain a mutual dislike". ( DONNISON.) acquainted with the time of Governor BOURKE passing through

33 34

WATKINS Thomas

30 September 1836. signs affidavit that BEAN detained a cow the property of MEADOWS, branded with MANNING's brand. at the time of MEADOWS' summons, was on friendly terms

9 15

to the Governor by MOORE. resigned a few months after 31 December 1835. DONNISON implies that resignation followed consideration of his letter by Governor and Attorney General. THOMPSON states that - sold cow and calf to MEADOWS. MEADOWS bought his cow from, since deceased November 1836. MOORE branded wild cattle purchased from MANNING in presence of some of -'s servants. was a relative of BEAN, who managed his affairs in his absence for about one year. about June 1834, BEAN wrote to - to give a cow to DONNISON.

16 25

was present at Court while FAUNCE committed DONNISON and

35 55

MOORE, 4 January 1837. as BEAN's agent, gave Blindberry to DONNISON. was in the district on 4 January; FAUNCE would not hear him.

WATT (convict)

see BINGLE.

WENTWORTH

sold cattle to Mr. LANGDON.

Witnesses

cost of summoning - in MEADOWS' case stated to be about E40 to E60, by ROWE, in November 1834.

Woolstonecroft's Point

site of R. CAPE's station.