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1-256 (Text)

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King v. Mitchell.
This day Captain Mitchell, of H.M. Ship Slaney, was arraigned on a charge of misdemeanor in aiding and abetting Lieutenant Matthews, of the same ship, in a false imprisonment, on the 28th day of February last, of Mr. Boyd, late Commander of the merchant ship Almorah, Mr. Clements, Deputy Assistant Commissary General, passenger in the said ship, and Mr. Thomas, supercargo of the said ship, for the space of 12 hours each, and of William Jones, seaman, for the space of 24 hours, by detaining them on board the said ship Almorah, against their consent. And further --- - for aiding and abetting Lieut. Matthews in assaulting and endangering the lives, on the 1st day of March last, of Luke Benjamin, Esq. of H.M. Attorney General, the said Mr. Clements, Mr. Dunn the chief constable, and divers mariners, by firing upon them with loaded muskets. And lastly --- - for assembling with others, on the said 1st day of March, tumultuously and with arms to hinder and obstruct justice. (The second and last count was afterwards withdrawn.)
Dr. Wardell and Mr. Wentworth appeared as Counsel for the defendant. Dr. Wardell pleaded to the jurisdiction of the Court. The arguments used by both the Learned Counsel went to the point that the acts complained of in the information arose out of the seizure, by Captain Mitchell, of the merchant ship Almorah, and that if the principal matter, the seizure was not cognizable in the Court of New South Wales none of the incidental matters were, on the authority of Le Caux and Eden, in Douglas's Reports, a case in Levinz, in Coke's and Lord Raymond's Reports.
The Attorney General agreed with the principle laid down by Dr. Wardell and Mr. Wentworth, so far as related to civil injuries, but this was a criminal information, and their authorities did not apply to criminal offences. In support of this distinction he referred to a case in Andrews 231, mentioned by Chitty. The Counsel for the defendant replied.
The Chief Justice stated that the principle of law was certainly the same, both in criminal and civil matters. But he was of opinion that the plea could not be maintained - he looked only at the record. The information stated a number of facts, which that Court was competent to take cognizance of - if in the defence it should turn out that the Court had no jurisdiction, the jury would be directed accordingly.
The jury were then sworn, and a plea of not guilty was put in. The Attorney General, after opening the case, called, as the first witness - 
Mr. John Sleight, first mate of the Almorah - he proved, that the said ship was seized on the 18th February last - that on the evening of the 28th of the same month Mr. Mathews, first Lieut of the Slaney, Captain Boyd, Mr. Thomas, and witness, were all on board the Almorah; that he and the two last gentlemen requested the Lieutenant more than once to be allowed to go on shore, but were positively refused; that next morning the Almorah was taken down harbour, near to Garden island; that Lieutenant Mathews, attended by boats full of armed men, came on board; that the boats were placed about and around the vessel, with men in them armed with tomahawks, &c., but no muskets - marines with loaded muskets were placed on the poop; that a man was placed aloft to give notice of boats appearing; that presently a boat was seen passing Bennelong's point, when Lieutenant M. said, "That is the boat," and ordered the men to be all in readiness - boat came within hail, and was warned off - it came nearer, and Lieutenant M, ordered the marines to fire wide of the boat - two gentlemen in the boat then held something up; one held, he thought, a white handkerchief; and the other something like a letter; the boat seemed to pull nearer; the marines were order to fire nearer the boat; the boat pulled round, but neared the ship a little; a third discharge of the muskets took place, still nearer; the boat then pulled off; Lieutenant M. ordered his men to give three cheers, which they did; about three quarters of an hour afterwards, Captain Mitchell came on board; a musket was fired at his boat previously, and the boat was warned off like the other; the marines fired also at other boats belonging to the Slaney, because they did not hoist the Blue Peter; the Lieutenant apologized to his Captain, for firing at his boat; and the Captain replied, "You have done your duty;" another boat came in the afternoon, and was fired at as before.
Cross-examined - Captain Boyd made no attempt to go ashore after Lieut. M. had refused to give him permission - no actual force was used to prevent him going ashore - Lieut. M. previous the appearance of the first boat, gave the men in the boats orders not on any account to use violence, but to shove boats off with their hands; but, at all events, they were not to allow any body to come on board - if the last shots had fallen any nearer, they must have struck the boat - witness supposed that, being soldiers, the marines might have hit the boat, if they had chosen to do so - he could, at the same distance, have hit it himself - never heard Lieut M. say "by no means hit any one" nor remembered to have sworn to this fact himself - did not recollect hearing Lieut. M. say he could not find it in his heart to fire at an Englishman.
William Hyde, sail-maker of the Almorah, and James Gordon, carpenter of the same vessel, were next sworn, and deposed to the same effect as Sleight.
Mr. Thomas Dunn, chief constable, also gave similar testimony; believed Lieut. Mathews heard the Attorney General speak when he stood up in the boat waving the handkerchief; thought at first there was no danger, but at last he did think there was; thought he saw a ball strike the water.
Cross-examined. - Had a warrant to go on board and seize such goods as belonged to the Crown, and to apprehend persons opposing its execution. The Attorney General held the warrant in one hand, and a white pocket handkerchief in the other (Warrant was then read.) Did not know whether the magistrate was indemnified for issuing the unlawful warrant.
Abraham Davis, seaman, was next sworn --- - his testimony did not differ from or add to the above.
The Attorney General here closed his case.
Dr. Wardell addressed the jury, and then proceeded to the examination of witnesses.
Mr. Martin King, carpenter of H.M.S. Slaney, proved that he was on board the Almorah before the first firing. Lieut. M. had ordered the crew to keep off all boats from touching the ship, and to shove them off, but not to use violence --- - it was the opinion of all on board, that an attempt would be made to re capture the ship --- - it was his opinion --- - the marines could have hit the boat if they chose --- - Lieut. M. was not on board at the firing in the afternoon.
Cross-examined --- - In all seizures and prizes, it was the custom of the navy to keep off boats --- - it was a standing rule --- - the orders for firing did not come from Captain Mitchell, but from Lieut. Matthews.
Frederick Shore, serjeant of marines, proved, that Lieut. M. told them not to fire before orders, and then to fire wide --- - that seeing one of them aiming wrong he ordered him to recover arms, and then took the musket himself and shewed the man how to present it --- - the men in the boats around the ship were not allowed to have pistols lest they should injure any one, and were ordered to shove off all who attempted to get aboard --- - there was a report of boats coming to take the ship and they were to keep them off, but use no violence --- - Lieut. M. cautioned the men 20 times on this head.
The defence here closed.
The Attorney General replied.
The Chief Justice then summed up. The Almorah had been seized for an alleged breach of an Act of Parliament, and while under seizure, Captain Boyd and Mr. Thomas, who were on board, wished to go ashore, but were prevented by Lieut. M. then in charge of the seizure --- - as centinels were placed near the gangway to prevent boats coming to and from the vessel, such detention was false imprisonment, for the parties felt as much under durance as if they had been lashed down. Next day the vessel was taken down the harbour --- - Lieut Matthews went on board the same morning with a number of armed men, whom he placed in boats around the vessel, and the marines on the poop --- - their muskets were no doubt loaded --- - when a boat appeared and was pointed out to him, he said, "that is the boat" --- - it was warned off --- - a parley was demanded by the boat --- - the marines were ordered to fire wide of the boat --- - fired again nearer --- - and again nearer --- - in all six rounds --- - one witness says there was danger --- all say, the marines were ordered to fire wide --- - and one says, that even though a boat should persist in coming alongside, no one to be injured --- - the Captain being in his boat was also fired at in his turn, and when the Lieutenant apologised to him, he said, "you have done your duty." The application of these words, he thought, ought to be confined to the particular act of firing. The first offence charged, namely, false imprisonment, had not been established against Capt. Mitchell --- - what share the Captain had in the Lieutenant's conduct on this head had not appeared --- - the Lieutenant might have detained the gentlemen of his own head.
With respect to the second offence --- - it had been proved, that Capt. Mitchell went on board, and might therefore be supposed not to have expressed his disapprobation of Lieut. Matthews conduct, as a repetition of the firing afterwards took place. Captains in the navy had a general power to seize by certain statutes, and nothing contrary to this rule had been proved. Assault, imprisonment, and firing were not necessary consequences of a seizure --- - boats had a right to go about on the water as freely as men may go into houses on land --- - boats may go within a hundred yards of a ship, or within a hundred feet if they like --- - the seizing officer may certainly lawfully prevent intruders on board --- - for he had himself known instances where, from intrusion, the unlawful part of a seized cargo had been all clandestinely abstracted --- - so that the seizor had nothing left to justify his act --- - but, then, all prevention must be lawfully effected --- - men of war should protect persons serving process of law, not resist them --- - the purpose for which the boat went to go on board the Almorah, namely, mediation, was good --- - but looking at the warrant, it was not lawful --- - a seizor may seal hatches --- - secure papers --- - keep off intruders --- - but not violate the law --- - the boat, however, was not casually passing --- - if it had, and the firing had still taken place, then such firing would have been wanton. --- but the boat was proceeding to the ship after being warned off. 
The Jury retired for about 20 minutes, and returned with a Verdict of NOT GUILTY.