BLIGH TO CASTLEREAGH. 557 Offence with which I am charged, and to promote the fullest 1808. and most impartial discription of its merits and demerits before -— the most proper Court. • Sffiu??* 21st March, 1808. WM. GORE. K»IMI Read by Mr. Gore and afterwards delivered to the Acting Deputy Judge Advocate on the 21st of March, 1808, when Six Officers were assembled with him for the purpose of holding a Criminal Court. [Enclosure No. 12.] PROVOST-MARSHAL GORE'S INTENDED DEFENCE. Gentlemen, I am indicted for having committed wilful and corrupt Proposed Perjury, and I am now on my Trial. I shall occupy as little of wmiamGore your time as is consistent with the duty I owe to myself, to my before the . ., \ criminal court. family, to my character, and to public Justice. In the first place, I shall ground my defence on a denial of the Jurisdiction of the Six Members who were convened by His Excellency Governor Bligh's Precept, for the purpose of their constituting a Court of Criminal Jurisdiction; for as they refused to swear His Majesty's Judge-Advocate a Member of such in­ tended Court, they never had existence as a Court, they being defective of their principal Member as prescribed by Law; and in Law it is laid down as an irrevocable Maxim, that when an Act of Parliament designates or marks out the specific number of persons who shall act, preside, or are to adjudicate in any Judicial Proceedings, it shall never consist of less or fewer than such designated number; and the Act of Parliament on which the Patent for establishing Courts of Criminal Jurisdiction in this country is founded, declares in specific terms that such Courts shall consist of Six Officers of His Majesty's Sea and land Forces, and of His Majesty's Judge-Advocate for the time being, it follows, a fortiori, that such Six Members possessed no legal authority to take the Prisoner out of my Custody, and to render him to his former Bail. Should it nevertheless be insisted that they were invested with such Authority, I, however, object to the determination, it being a point on which, if any possible doubt can exist in the minds of dispassionate men, cannot be decided here, and must be referred to His Majesty's Ministers for their instructions respecting it. I contend they were not vested with such Authority, for when the Prisoner appeared with his Bondmen at the Bar of the Court before which he was to be tried, the Bond became null and void, his former Bail were no longer responsible for him, they 558 HISTORICAL RECORDS OF AUSTRALIA. 1808. were free from the Condition and obligation of the Bond, and the 30 June. Prisoner was then in my Custody; and if the Court afterwards, Proposed defence of on application from the Prisoner or his Counsel, was inclined to William Gore indulge him with Bail, it could noj be granted without the con­ before the sent of the Prosecutor or his Counsel; but even in that case the criminal court. new Bail Bond should have been given to me, for I alone was answerable for the Prisoner's appearance when he once came with his Bail into Court; but the Prosecutor or his Counsel were not applied to for their consent—no fresh Bond was exacted from them or given to me. I was not their Officer, they had no legal existence as a Court, and my duty directed me to disclaim their authority. If, however, they were a Court, I have now proved without a chance of being refuted, that they could not re-deliver the Prisoner to his former Bail, as he was then in my Custody, and he or his Bondsmen did not express a desire to enter a new Recog­ nizance to me. I therefore still considered him in my custody, from whence, when he withdrew himself, he was in Law guilty of an Escape, and by Virtue of my Office I was armed with full and sufficient authority to pursue and re-take him; but Governor Bligh, from his uniform disposition that the Law should be literally complied with, desired my authority should be supported by an Escape Warrant, which was granted unto me under the Signatures of four Justices; however, before such Warrant was granted, my Deposition, that the Prisoner, Mr. McArthur, was not then in my custody, or in any other Custody that I knew of, was necessary. I therefore made an Affidavit of its truth—I was then, and I am still justified by the Law—and the Fact, which I shall prove by Evidence, and from the most incontestible Authorities. Even allowing, for Argument's sake, that the Six Members had legal authority to deliver the Prisoner, without a Bond, to his former Bail, I acted legally, because I positively swear that I never knew he was delivered to his former Bail; and as to my assent by a Nod or a Bow, I did not understand that a delivery of the Prisoner to Bail was the purport of Captain Kemp's address to me; but to admit a Nod or a Bow as Evidence in a Court of Justice would, I make no doubt, be deemed a novel, a ridiculous, and too dangerous a precedent for, in Law, to con­ vict a man of perjury. A probable evidence is not enough, but it must be a strong and clear Evidence. A Bow or a Nod has not even the strength of probability; they are at best merely con­ jectural, and are so wholly undefinable as to allow of all persons, according to their various interests and pursuits, to attach what meaning they please to them; but, Gentlemen, it would be an abuse and a waste of your time, and an imposition on your BLIGH TO CASTLEREAGH. 559 understandings, to delay you longer on this Subject. I shall, isos. therefore, only observe that in Law they cannot be admitted as s^"6' proof against me. Proposed r D defence of With respect to Captain Kemp's testimony,* I most solemnly William Gore swear that I never heard him express himself to the effect he has criminal court. sworn, and against his Oath is the direct evidence of Mr. Griffin. And besides, it being physically impossible, by any Evidence, however strong, to prove that I heard the words so sworn to by Captain Kemp, as spoken by him to me, I humbly submit to you, Gentlemen, that I have not sworn a false Oath, nor am I guilty of Wilful and Corrupt Perjury; for, according to Hawkins, 172, though I might be in error I was not, however, guilty of Perjury, wilful or corrupt, because " when a person even swears falsely, if he mistook the true state of the question, it is not Perjury." But, Gentlemen, although I have deliberated to this moment on the Oath I have taken so far back as the 25th of January, I am still firmly persuaded, and convinced that I was not in error, for the Prisoner, Mr. McArthur, was not in my Custody, nor in any custody that I know of at the time I made a deposition to that effect; but he could not be in custody of any other person, with­ out his executing a Legal Bond to me. Lastly, Gentlemen, as in Civil Cases I am answerable to the Party injured, so in Criminal matters to the Crown. Had I, of my own mere descretion, any right or the authority to permit the Prisoner, Mr. McArthur, to be delivered to his former Bail with­ out observing even the formality of a Bond? Would I not have exposed myself to a Prosecution at the Suit of the Crown? And would I not be indebted to the lenity and forbearance of His Excellency Governor Bligh if he did not instantly, on the affair coming to his Knowledge, place me under an Arrest, and call a Court-Martial on me if my Offence were a Military one; or would he not, put the question in any point of view you choose, have suspended me for incapacity, for a shameful neglect of my Duty, and for a breach of his Orders ? This last is a more con­ vincing argument than I have yet used of the folly, of the ab­ surdity, and of the wickedness of the Prosecution that has been instituted against me; it is a certain and positive proof that the design of the Prosecutor has originated in motives dishonourable to himself as a Man, and in every respect repugnant to the prin­ ciples of common Sense and common honesty. Permit me, Gentlemen, to ask you where is the Officer of the Crown who would venture on so hazardous an enterprise as the execution of this duty, if for the performance of it he was threatened with a prosecution, intended ultimately to affect his life, his character, and his honor ? And if every ignorant and discontented caviller * Note 167. 560 HISTORICAL RECORDS OF AUSTRALIA. 1808. and ruler against the Government was not only secretly en­ 30 June. couraged but openly supported in instituting such vexatious, Proposed defence of harrassing, and unfounded prosecutions ? William Gore Let me again, Gentlemen, call your attention to the last argu­ before the ment I have adduced, and ask you, Had I pleaded ignorance to criminal court. Governor Bligh that such a Bond was necessary to be executed to me, would not His Majesty's Ministers, on the matter being reported to them, approve of my suspension and deservedly deprive me of my Appointment for incapacity; and if from motives of Interest or Favor I had consented to the Prisoner's returning to his former Bail, would I not meritedly, in the eyes of His Majesty's Ministers, and of all faithful and honest Ser­ vants of the Crown, incur the base censure of a venal Officer, too corrupt to hold an honorable Commission? [Enclosure No.