Lawrie v. Griffiths case.

Decisions of the Nineteenth Century Tasmanian Superior Courts.

Source: -Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania
[Trespass - Twofold Bay - Port Dalrymple - false imprisonment - convict escape - piracy - assault - admiralty, prize vessel]

Supreme Court of Van Diemen’s Land

Pedder CJ, 7 and 12 July 1825
Source: Hobart Town Gazette, [2] 15 July 1825[3]

Mr. Solicitor General addressed the Court for the plaintiff; the following is a compressed report of the Learned Gentleman’s speech. This is an action of trespass and assault, false imprisonment, and divers other injuries committed by the defendants upon the plaintiff, to which they have pleaded the general issue. The damages were laid at £2000.
The plaintiff is a dealer and trader at Sydney, 20 years a resident of that Colony, and at one time a man of very considerable property, which from losses in trade, has been unfortunately reduced: he has a wife and ten children, wholly depending upon him for support. The defendant Griffiths is an opulent merchant at Launceston, and the owner of a fine brig called the “Glory”, of which the other defendant Simpson is the Captain. - In the course of the last year, the plaintiff, anxious by every means to support his family, purchased a small vessel of about 12 tons, called the “Fame”, which he fitted out at considerable expense for the purpose of trading.
He shipped on board this vessel a small cargo of merchandise, of various sorts, with which he intended to proceed to Newcastle; and shipped on board her the usual crew employed on board a vessel of her size. In the month of June, his little vessel being duly registered in the usual manner. He obtained a regular clearance from the proper office at Sydney for Newcastle, and put to sea, having on board himself, a master, and two seamen, his son, and two passengers named Child and Oldfield, who I shall shew to the Court were persons of respectable manner of life at Sydney, understood to be free people. On going down the harbour of Sydney, the master went on shore, and the little vessel remained at anchor all night opposite the residence of the Naval Officer.
On the following morning, on clearing the head of Port Jackson, very tempestuous weather came on, and the vessel was driven by the force of the winds to the southward of that port. After endeavouring in vain to succeed to get to the northward, the plaintiff was obliged to put into a place called Two-fold Bay, in order to obtain supplies of wood and water. He had with him a small boat, in which the master and passengers were on board, and of which much will hereafter by said by my Learned Friend the Attorney-General; but I shall shew that my client’s interests can be no way injured thereby. - He anchored on the south-side of Two-fold Bay, the most eligible situation to take advantage of the first favourable wind to proceed to the northward: the next day after his arrival there, the defendant’s brig “Glory” came in, and anchored on the north-side of the bay. The plaintiff and one of his seamen went out in a small boat to fish, when defendant Simpson came from the brig “Glory” to them in a boat, with a polite invitation from defendant Griffiths to plaintiff to dine on board the brig, which he accepted, and went accordingly, taking his son with him.
After dinner, when plaintiff was desirous of returning to his vessel, defendant Griffiths told him that he could not leave the brig, but to consider himself as his prisoner. On plaintiff’s remonstrating at this extraordinary conduct, defendant told him that the small boat had been given to him by a man named Tennant, of Sydney, and that plaintiff had runaway convicts on board the “Fame”, on which account he should seize her, and make all the persons on board prisoners. And so he did; for he sent a boat, manned and armed, on board her, which took her in tow, and brought her to where the brig “Glory” was lying, cheering as they performed this gallant exploit. Your Honor and the Court will learn that these cheers were given in consequence of an agreement entered into between the defendant and his men, that they should all share in the prize-money; but, anticipating some risk in this most daring act, he took the precaution to make them all agree to share therein to the amount of their respective lays.
On the following day, they proceeded to sea, -- having taken out of the plaintiff’s little vessel, his master, part of his crew, his charts, nautical instruments, his firearms and ammunition, and fastening her by a rope to the brig “Glory”, took her in tow, in order to proceed to Port Dalrymple, where the “Glory” was bound. - Fancy to yourselves, Gentlemen, that in the month of June, being in the depth of winter here, the situation of the plaintiff - towed a-stern of a large vessel, in a tempestuous ocean, uncertain what was to become of him, and suffering the greatest privations of every sort. In this situation, he continued for several days and nights. The wind was foul, and the weather most tempestuous. The “Glory”, in tacking about, once or twice missed stays, and came down upon the “Fame”, and it was a great mercy that she did not sink, when every body on board must have inevitably perished.
The little vessel, having now become leaky, the plaintiff availed himself of an opportunity, when the “Glory” came near her, to entreat in the most earnest manner, that he would have the humanity to take him and his son and the other people on board the brig; but Mr. Griffiths would not do so. After being fifteen days and nights at sea in this horrible situation, finding that the “Fame”, so materially impeded the progress of the “Glory”, the defendant cut her adrift, in the middle of a storm, in the open sea, having previously put on board her one of his own men named Price, to act as Prize-master, without charts or instruments, or any means of navigating this little vessel; and this man Price took the first opportunity of running her on shore, in a desert part of this Island, totally unknown to the plaintiff and his people, who after four days’ journey in the woods, were fortunate enough to reach George-town, in a most miserable and distressed state.
On his arrival at Launceston, he found the brig “Glory” and the defendants there, who ascertaining where the little vessel was run on shore, still holding their possession of her, sent and brought her round to Launceston, where her and her cargo were sold by the defendants. Thus was the plaintiff left in a strange place, without resources, his vessel gone, and his whole property lost. Gentlemen, I shall prove the whole of these facts by written admissions signed by the defendants’ Solicitor. I am also at a loss to understand what possible defence my Learned Friend can have to this transaction, or how he can attempt to justify the horrid barbarity with which I can prove my unfortunate client was treated. We shall hear I suppose, of prisoners being on board; but there is not the slightest reason to believe that my client knew them to be such. The fact however was, that there were runaway convicts; but will this justify the barbarous treatment which my client received, towed so many days and nights in the hourly expectation of death, in a stormy sea, and at length cut adrift in a tremendous tempest, without the defendants’ troubling themselves whether they were provided with provisions or not, or what was to become of them. I leave it to the Court to contemplate the dreadful situation in which my unhappy client was placed.
But now comes the most extraordinary part of the case. The defendant, Griffiths, a very rich man, goes up to Sydney, and in the absence of the plaintiff, who had no opportunity of being heard, makes such representations that communications are made to Lieutenant Governor Arthur, who was induced thereby to adopt the strong measure of taking by force from my client his legal Adviser, the Attorney-General, who had conducted his case from the very commencement, who was in possession of all the facts and circumstances attending it, and upon whose powerful talents and abilities, well known and universally acknowledged as they are, my client principally relied.

Chief Justice Pedder. - Have you any count in your declaration for this?
Mr. Stephen. - No, but I submit to Your Honor that I have a right to comment upon this, in order that the Jury may judge whether my client has not received greater damage on this score. It is understood that the Lieutenant Governor intends to indemnify the defendant in this action. But I hope the eyes of His Honor will be opened, and that he will no longer interest himself in such a case as this is; that he will see the defendant in his true colours, and that he will hold from him all future protection, and make him refund his ill-gotten booty. The Learned Solicitor General here again strongly commented upon the barbarous treatment which the plaintiff had received, but which we regret out limits prevent our giving at length. He continued to state, that after having pursued the plaintiff almost to death, deprived him of his property, and persecuted him in every way, they now want to add the last injury of all, to deprive him if possible of his character; but I defy them to shew any thing that can attach to the plaintiff, as to a knowledge of the real character of some of the persons who were on board the vessel. I place my client with confidence in your hands, well convinced that you will do him that justice which the serious injuries he has sustained, so loudly call for.

The Solicitor General handed to the Officer of the Court the admissions of which he had spoken, and which were partially read. But His Honor the Chief Justice interposed, stating that this paper contained evidence, not facts, which latter could be alone received by the Court as admissions. A long discussion took place hereon; the result of which was, that a part of the paper, containing the facts of the plaintiff’s case, and which were put into the proper forms of admissions, and signed by the defendant’s Attorney, were admitted. The other part, being irregularly drawn up, and containing evidence, which could only be given viva voice, and not admitted facts, was rejected.
The Attorney-General consented to this arrangement upon the express ground that the plaintiff’s son should be put into the box, in order to be cross-examined, as the plaintiff’s own witness.
The papers and clearance of the “Fame” were then put in and proved. It was also proved, that a man named Child, one of the plaintiff’s passengers, had kept a shop at Sydney, and Oldfield, another of them, had been employed to assist in taking the General Muster.
The Solicitor-General then called John Brown, whose evidence went only to prove admissions of defendant Griffiths, to the principal part of the case, and that the “Fame” had been last seen at Launceston, as witness believed, in the possession of Government. The Solicitor General closed his case by putting Mr. Asley Lawrie, a son of the plaintiff, into the box, without asking him a single question. He underwent a long and rigid cross-examination, by the Attorney General; but his evidence went entirely to establish the facts stated by the Solicitor General. It came out that the small boat spoken of, was brought on board the vessel by Mr. Apsey, the master, who had with him the two men, Child, Oldfield, and one of the “Fame” crew, named Green, who afterwards turned out to be a prisoner of the Crown. That this boat was taken with the “Fame” to sea and that there was painted on her the name of “Pullfoot, William Tenant” which was afterwards rubbed out by Mr. Aspey at Two-fold Bay. This witness also proved, that the cargo on board consisted of 22 packages of various descriptions of goods, and there were also on board four casks of brandy, one barrel of flour, two bags of potatoes, about 12 lbs. of tea, and 28 lbs. of sugar, and three trunks of wearing apparel.
The Attorney General, for the defendant, addressed the Court at considerable length, of which we can give but a faint sketch. If ever an advocate appeared in Court with a good cause, this is one, because I imagined that by the admissions which it has been the pleasure of the Court to reject, I should have been enabled to have shewn, that the defendants have acted solely with the intention of obeying the orders of Government, in a case which called for the most prompt and active measures. I could have shewn, had these admissions been before the Court, the plaintiff cleared out for Newcastle, and never intending to go there; that he had on board the “Fame” a stolen boat and runaway convicts, and that it was his object to come down to this island, in order to aid in circulating forged paper, which I could have shewn was in possession of one of the parties, and that the small boat was brought with him for the express purpose of landing at Port Dalrymple, and after effecting their object, again to join the “Fame” outside that port. The circumstances under which Mr. Griffiths found the “Fame” in Two-fold Bay were highly suspicious. She was there well armed, with men on board known to be runaway convicts, and the plaintiff had received positive instructions from the late Governor Macquarie to seize all persons of that description, wherever he could fall in with them, and convey them to the nearest port, to be delivered up to justice; and my client did no more. We have had a long statement from my Learned Friend of the barbarity with which the plaintiff was treated; but I contend the very contrary was the fact, and that if Mr. Griffiths had left him in Two-fold Bay, where he fell in with him, the defendant and all his associates would have perished. It is folly to talk about taking back to Port Jackson; or would my Learned Friend have had him to look for a Magistrate in the woods of Two-fold Bay: the very idea is ridiculous. It is true my client brought the plaintiff here by force; and that therefore a verdict must go against him; but I contend that the very smallest damages will be sufficient. The defendant had reason to suppose when he fell in with the plaintiff, and those he had with him in Two-fold Bay, that his own ship was in danger of being captured. We all know, that the dreadful banditti, who escaped from Macquarie Harbour, and who after carrying desolation throughout this island, imbrued their hands in blood; and have since expiated their crimes with their lives, also came along the coasts of this harbour in a boat. Will it be argued for a moment, that if these unhappy men had been fallen in with by any vessel, and captured, and if there had perchance one individual amongst them, who not being under the sentence of the law, might probably consider himself illegally seized; and was such an one to bring an action in this Court, on such grounds, would it not be treated with the ignominy it deserved. And such a case is perfectly analogous to the present action; for surely we are not to be told, that if convicts escape from a penal Settlement, and a Captain of a ship falls in with them, he has no right to capture them. I contend that he is morally and legally justified in doing so. I lament that I have been shut out by the rejection of the admissions from proving this case as I could then have done; but, I trust, you, Gentlemen, will be of opinion, that my client has acted solely with the best intentions for the Public good, and having done so, he is fairly entitled to protection, and that although I admit your verdict must be against him, yet I trust you will consider the very smallest damages will be sufficient to meet the justice of the case.
The Chief Justice summed up at great length. His Honor repeated the evidence as had been proved by the admissions and otherwise. The defendants admit that they have no defence in law, but they insist that the plaintiff had been guilty of two felonies, the one in taking away the small boat, the other in carrying away runaway prisoners of the Crown. I apprehend for felony two things must be proved - one that a felony has been committed, and the other that the man taken is the felon. How is the case here? Was there a boat stolen at all, and by whom? Whatever may have been the defendant’s motives for his conduct, there are no proofs of the facts he states. It is certainly true, that the vessel and the cargo are still with the defendants, at least when last seen. In regard to taking away transported felons, whoever does so, and all who assist, are guilty of felony for so doing. The defendant certainly imprisons the plaintiff from the 25th of June to the 9th of July. The circumstances under which they so imprison him are before you. They take his master out, his instruments, and his charts, and they cast him adrift in the middle of the ocean. The value of the vessel and cargo does not appear. As we have not any evidence as to where she is, we must take her to be where we last heard of her, in the possession of the defendant. As to the small boat, there is no evidence of her being a stolen one; nor that these convicts were clandestinely carried away, knowing them to be such. The circumstances of the case are before you, and you will give such damages to the plaintiff as you may think he is fairly entitled to. Verdict for the plaintiff - Damages £460.
Tuesday, July 12
. The Attorney General this day moved for a new trial in the above cause, on the grounds of surprise and excessive damages. Surprise, as not being permitted to read the admissions referred to in his preceding report and excessive damages as being much beyond the justice of the case required. The Solicitor-General shewed cause at once and His Honor the Chief Justice was pleased to decide against the Attorney General’s application, and the verdict stands.
Notes [1]In this case Attorney-General Gellibrand was accused by Governor Arthur of violating ‘his duty as Attorney-General and as an Advocate’, Historical Records of Australia, series 3, vol. 4, pp. 372-3 and see In Re Gellibrand, 1825. According to Anon., ‘Jonathan Griffiths (1766? -1840?)’, Australian Dictionary of Biography, vol. 1, p. 486, the parties were John Lawrie and Jonathan Griffiths, who was a well-known shipowner and builder and ex-convict.
[2] There were two newspapers called the Hobart Town Gazette at this time (see EM Miller, Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney University Press, Sydney, 1975, at 177). This one became the Colonial Times later in 1825.
[3] This was also reported in less detail in the other Hobart Town Gazette, 9 July 1825. [4] Lawrie was sent to Sydney and sentenced to seven years’ transportation.