|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Journal of Legal History |
JEREMY FINN[*]
This paper examines the unusual litigation involving the Reverend Arthur Baker an Anglican priest prominent in early Wellington affairs. This litigation included the criminal prosecution of Baker for allegedly indecently assaulting Mary Schroder, a schoolgirl; the quashing of that conviction on appeal and then renewed scrutiny of the whole matter in a civil action for assault brought by Baker against George Schroder, Mary’s father, because Schroder had publicly horsewhipped Baker in the street outside Baker’s church.
Although the truth or otherwise of Mary Schroder’s allegations may never be determined, the case provides a rare – indeed probably unequalled – example from 1850s New Zealand of the trial of a person in a position of social privilege for a sexual offence. The very substantial public discussion of various incidents of the litigation in the newspapers of the time – again apparently unparalleled – provides valuable insights into aspects of the legal process in early colonial New Zealand, such as the rules relating to admissibility of evidence of litigants in cases where sexual misconduct was alleged and the tension between adherence to legal processes and ‘self-help’ remedies for grievances. In particular, much can be learned about the extent of public discussion of cases before the courts, perceptions of the merits of jury trial and the legally ill-defined but socially important role of Justices of the Peace in the administration of justice.
On 13 August 1858 the Reverend Arthur Baker was standing in the street outside St Paul’s Anglican Church in central Wellington following the morning service when he was accosted by George Schroder, a Nelson merchant with the words ‘You have insulted my daughter’. Baker offered to speak to Schroder in private but he replied ‘It comes to this – either you are a liar or my daughter – I believe you are’ and struck Baker ‘thirty or forty’ blows with ‘a thick riding whip’ (horsewhipping being the traditional expression of anger and contempt) while calling Baker ‘scoundrel, liar’ repeatedly. As he finished his assault, he then said ‘Now take your remedy’.[1] As Schroder’s words indicated, he regarded his actions as justified by his belief that, months earlier, Baker had indecently assaulted Schroder’s twelve year old daughter Mary, a pupil at a Wellington school, when Mary had visited Baker’s residence.
On the following day Baker filed a writ in the Supreme Court seeking damages for assault. Two weeks later, well before the civil suit could come on for hearing, Schroder’s lawyer, William Locke Travers, laid an information in the Resident Magistrate’s Court, charging Baker with indecent assault. That information was heard by the Resident Magistrate, Henry St Hill, and a panel of 15 other Justices of the Peace. By a majority vote, Baker was convicted and fined £5. Baker was successful in having the conviction set aside in the Supreme Court, on the basis that the conviction was tainted by pre-determination and bias on the part of one Justice of the Peace. However Baker’s success on appeal was apparently outweighed in the public mind by the outcome of the civil suit for assault (tried in Christchurch rather than Wellington so as to get a more neutral jury). Although Baker was awarded £50 damages by the jury, in their words ‘in vindication of the law’, this was but a tenth of the damages sought, and the jury professed itself unable to agree on the truth or otherwise of the accusation of indecent assault, a matter relied on by Schroder to minimise damages.
George Schroder was an early (1841) settler in Wellington, before moving to Nelson, where he was in business as a wholesale merchant,[2] dealing, it seems principally in agricultural produce.[3] He had clearly prospered sufficiently in that business, and by participation in the large-scale sheep farming that gave an early economic impetus to the South Island in the late 1840s and 1850s,[4] to be able to educate his family, for Mary Schroder was the youngest of three sisters at the same private lady’s school in Wellington in 1858.
Mary Schroder is an even more shadowy figure. She was at the time of the alleged assault twelve years old and was described by her schoolmistress as being ‘a very nice girl; when first she came to me she was a little wild’.[5] She seems to have been possessed of a degree of strength of character, as she maintained her position and testimony despite very lengthy cross-examination on two different occasions.
Much more is known of the other protagonist. Arthur Baker was English, apparently born in Newbury, Berkshire around the year 1817. He appears to have been destined to the Church from his teenage years – he went up to Oxford in 1835, at the age of 18, and graduated in 1840. He was initially a deacon and then a priest in London, serving as a curate in four different parishes in London between 1841 and 1853. In that latter year he emigrated to New Zealand, in the company of his sister and her husband, one Henry Bunny, who will feature briefly later in the story. Baker had no official church position in his first year of residence in New Zealand, but after moving to Wellington in 1855 he became first an assisting master at a church school and later vicar of St Paul’s Church, one of the principal Anglican parishes of the Wellington region.[6]
Baker’s character is hard to assess. His supporters, most of whom are writers within the Anglican Church,[7] allow that he was a controversialist and stirred up varied, and vigorous, reactions. A less generous reading is that when engaged in a controversy he was perfectly willing to make unsubstantiated verbal attacks on opponents in terms which, even by the robust standards of the day, were intemperate and ill-founded.[8]
A further light on Baker’s character is that at the trial in the Resident Magistrate’s court counsel for Baker introduced into evidence a number of private letters written by Elizabeth Burbridge, Mary Schroder’s teacher, to Baker after Mary Schroder’s accusation to challenge her later evidence. Burbridge, who had not been asked to consent to this, saying these letters were all written under a misapprehension as to Baker’s intentions.[9] Baker later had these letters printed and published in a pamphlet on the case.
He was, however, apparently able in person to attract others – Elizabeth Burbridge considered him kind to the children, and described her then confidence in him and her disbelief at Mary’s accusations.[10] At that time Miss Burbridge was, she told the Resident Magistrate’s Court, under the impression from his manner that ‘Mr Baker was paying me attention’[11] – and it would appear any matrimonial proposal might well have been accepted.
The later history of George and Mary Schroder is not known. Baker appears however to have been fatally handicapped in his career by the failure to win a clear verdict in the Supreme Court. After the lawsuits, Baker was reinstated by the newly elevated Bishop Hadfield in March 1859, but served for only a few months before quitting the colony in October 1859 to return with his bride of five months[12] to England, where he served again as a curate in various parishes till his death in July 1868.
Colonial Wellington was a small community, much affected by partisan political divisions. The litigation in Baker v Schroder occurred during particularly acute political strife between the party of Isaac Featherston, the elected Provincial Superintendent, whose faction drew support from the working-class and smaller business and from some of the liberal middle-class, and an eclectic coalition dominated by large land-holders, the urban conservatives and supporters of the New Zealand Company. Although Featherston had been elected to the Superintendency in 1857, his opposition controlled the Provincial Council. Featherston had then refused to accept an administration proposed by the majority in the Provincial Council, and to make his point resigned and stood for re-election.[13] That election took place in June 1858, with Featherston defeating the opposition candidate, one Henry St Hill, the Resident Magistrate in Wellington. The newspapers of the time were, perhaps unsurprisingly, on opposite sides of the divide – the Wellington Independent a strident champion of Featherston; the New Zealand Spectator an equally vehement voice in opposition.[14] As will be seen, in dealing with the various events in Baker’s affairs the newspapers eventually took similarly partisan approaches; the Spectator being supportive of Baker while the Independent was very much the reverse.
It seems clear that Baker was firmly in the St Hill political camp, perhaps because of connections through his brother-in-law or, more probably, because the Featherston party insisted that education be secular and resisted any attempts to use provincial funds for Church-based schools.[15] Baker was frequently (if most unconvincingly) to attempt to portray the proceedings against him as tainted by political machinations.
It is not now possible to determine (though it is clearly possible to surmise) what happened between Arthur Baker and Mary Schroder on 1 June 1858. The Schroder sisters were all staying temporarily, at Baker’s invitation, at his residence. Mary was recovering from an attack of influenza which had been severe enough that she had been splitting blood but, in the opinion of her doctor who saw her the same day, this would not have been likely to mean that ‘she would be attacked with lightheadedness or nervousness’.[16] According to Mary Schroder, after ‘dinner’ at about 2pm, her sisters left to go to Miss Burbridge’s; the convalescent Mary remained.
I was lying on the sofa, Mr Baker was writing in the same room, there were three tables in the room; he was writing at the table by the window. I had some notes in my pocket from Miss Burbidge. I had been reading them, and after reading them I put them in my pocket and lay down. I put my shawl over my feet. I fell asleep about a quarter of an hour after this. When I woke Mr Baker came over to me. He took the shawl off my feet and pulled my dress out from under me, and put his hand in my pocket. He then put his hand under my dress, he touched my flesh * * * * he kept his hand there about a minute. I did not say anything. He did what I have stated without my leave. I thought it wrong that he should do it. He knelt down and asked me whether I would not make friends. I said no, that I wanted Mrs Langley[17]. There was a noise like somebody coming in at the door. Mr Baker got up and went away. I again asked for Mrs Langley and Mr Baker rang the bell. Mrs Langley asked me what was the matter, I did not tell her; I told her I wanted Miss Burbidge, she said she would send for her. Mr Baker said he would go; he then told Mrs Langley she was to go. Mrs Langley did not know which to believe. Mr Baker told Mrs Langley when she came into the room, that I woke up crying. Mr Baker went for Miss Burbidge and brought her back with him. Miss Burbidge asked me what was the matter, I took my sister Kate and Miss Burbidge into the bed room and told Kate what Mr Baker had done to me, and Kate told Miss Burbidge in the bed room before I left. Miss Burbidge could not hear me when I told my sister.[18]
In her evidence in the Supreme Court in Christchurch, Mary Schroder was to amplify this by saying ‘… he came from the table, knelt down and kissed me and put his hand under my clothing. He said nothing before he did this, he kept his hand on my flesh for about a minute’.[19] In that trial Mary Schroder gave further evidence (in response to questions from the judge and from the jury) as to exactly where she was touched; the newspapers declined to print the details. The exact nature of the allegation appears only once in a newspaper account,[20] where the report of the re-examination of Arthur Baker, cites Baker as denying he had touched the ‘private parts’ of Mary Schroder.
Baker at first appears simply to have agreed with suggestions that Mary had dreamed the incident. Elizabeth Burbridge described his conduct when he arrived to call her to see Mary, and subsequently, thus.
Mr Baker’s manner was calm and collected. The girls were ready to go with me and we all went together. When I got to Mr Baker’s I saw Mary in the sitting room … She was quiet and pale, and looked as if she had been crying. She looked unhappy …[21]
Burbridge later described her reaction to Mary’s accusation (as relayed by her sister), and Baker’s response when she conveyed it:
At the time I thought there was something I could not understand. I could not suppose such a thing possible. I came out of the bedroom a few minutes after I had recovered myself. Mr Baker was in the sitting room. I said to him I did not know what to understand, I thought the child must have been dreaming. He said he thought so, and went on writing. I was undecided whether to stay or go away. Mr Baker asked me to stay to tea and I remained. It was fair that evening but not very light. Mary refused to remain at Mr Baker’s unless I stayed with her.[22]
She later added that after they had had tea, Baker left to go to the Archdeaconry Board. Clearly Baker displayed little reaction at the time to what he was invariably to characterize as a most serious allegation. Whether one should ascribe his sang-froid to a clear conscience or to brazen effrontery is perhaps a matter of opinion.
In the following month, Burbridge continued to keep up good relations with Baker, on some occasions visiting him with the Misses Schroder. In the meantime, not at all surprisingly, gossip carried the substance of Mary’s allegations throughout much of Wellington - Elizabeth Burbridge indicating that Mrs Featherston, having heard the rumour, had visited her to ask about the matter.[23] Baker was later to claim that the rumours had been augmented by invented allegations of previous similar conduct for which he said there was no foundation in fact.[24] His response was to consult St Hill and others, to draw up a written account of affairs in which he denied any wrong-doing and to offer, via intermediaries who included St Hill, an ‘independent investigation’ by persons to be agreed on[25] – a matter of which Baker was repeatedly to make mention.[26]
In the meantime, Burbridge had written to George Schroder to come to Wellington, ostensibly on account of the illness of Kate Schroder, and George Schroder visited Wellington around the 15 July. At that time Burbridge informed him of Mary’s accusation. Although Baker’s offers, and a copy of his statement, were conveyed to Schroder after his arrival in Wellington around 15 July, he determined not to respond to them but rather to await the arrival of his wife from Nelson.[27] One may surmise, therefore, that Schroder found any of Baker’s proposals unsatisfactory or, more likely, saw them as an attempt to evade responsibility for conduct which George Schroder believed had taken place. Hence the assault. The choice of the street outside Baker’s church after a Sunday service as a venue for the horsewhipping becomes explicable as being one of the few, if not the only, time Schroder could be assured of locating Baker, and of there being an audience which would ensure the matter would become public.
Following Schroder’s attack on him, Baker sought legal advice. Curiously enough for a man whose brother-in-law was a lawyer, Baker seems to have sought legal advice first from the leader of his political party – and parishioner – the Resident Magistrate, Henry St Hill.[28] It appears Baker was advised to bring a civil action for assault against Schroder, rather than the speedier resolution of seeking to have Schroder prosecuted for assault. The choice was probably dictated by the law relating to the giving of evidence. While in a civil action both plaintiff and defendant could give evidence, in criminal cases the defendant was not allowed to give evidence in any form.[29] As Baker was to say, a civil action afforded him ‘an opportunity of clearing my reputation, with evidence given by myself on oath, in the highest Court of Justice’. By contrast, Baker claimed in regard to the criminal prosecution brought by Schroder ‘the only witness who could possibly give evidence directly contradictory of the main charge, is prohibited from speaking’.[30] He therefore initiated the civil action, claiming the very substantial sum of £500.
Schroder reacted swiftly. His lawyer, William Locke Travers, commenced a criminal prosecution of Baker for indecent assault. The necessary information was laid on Monday 30 August; with Baker being summonsed to appear on Friday 3 September. It appears that St Hill, who was sitting alone on the Friday morning, had expected Baker’s lawyer to bring some objection to the prosecution which would delay the hearing. When no objection was forthcoming St Hill declined to decide the matter himself, instead delaying the matter for some hours until a bench of Justices of the Peace could be assembled.[31] It is an interesting indication of the importance attached by JPs to their judicial duties, or perhaps of their interest in this particular case, that on three hours notice 15 Justices of the Peace had joined St Hill. We may well ascribe St Hill’s decision to seek a full bench of Justices to a belief that the matter was too sensitive, and his own position too delicate, for him to deal with the matter by himself. It is clear from our knowledge of the operation of the Resident Magistrates Court in another New Zealand settlement at this time that Resident Magistrates frequently discharged the function of the court by themselves, but quite frequently sat with one or more justices.[32] There are, however, no parallels for a bench of fifteen justices sitting in a case. It appears there was then some discussion as to whether to hear and decide the case, or instead to consider only whether to send Baker for trial in the Supreme Court. It should go for trial but the decision, apparently by a majority vote, was to proceed.
It is difficult, if not impossible, to determine the legality of the decision to hear the case. In the early part of the nineteenth century the law regulating, if that is the right word, the judicial activities of Justices of the Peace was vague indeed. It would certainly appear that in England JPs rarely tried serious offences against the person but rather decided whether or not to commit alleged offenders to trial at Assizes or Quarter Sessions. Minor property offences might be dealt with by the JPs themselves.[33] New Zealand had inherited this amorphous body of law, with no clear delineation of the actual powers of Justices of the Peace. Nor was New Zealand legislation of much assistance. Under the Resident Magistrates Court Ordinance 1846, a Resident Magistrate had ‘all such powers of dealing summarily with cases of assault as any two Justices’[34] but those powers were nowhere clearly stated, even though an 1845 Ordinance had authorized Justices hearing assault cases summarily to impose fines rather than terms of imprisonment.[35] It appears that the court in Wellington was proceeding on the basis that jurisdiction had been conferred by a combination of the Sessions Court Ordinance 1842, which allowed two or more JPs to act as Petty Sessions, and the Summary Proceedings Ordinance 1842 which allowed the court to determine some criminal matters summarily, without indicating the exact jurisdiction of the court. Certainly Baker appears to have believed this to be the case, as he later complained of being deprived of any right of appeal because the penalty imposed was the exact sum of £5, an apparent reference to s18 of the Summary Proceedings Ordinance 1842.[36]
As might be expected in cases where the jurisdiction of the court was not clearly regulated, there was no guidance as to its procedure. It would appear therefore that the magistrate and the justices decided between themselves how they would operate. We know from the successive epistles appearing in the newspapers that the conviction of Baker was by a majority vote. It seems probable that the quantum of punishment was equally decided by a vote. It certainly does not seem that St Hill as Resident Magistrate was accorded any greater voice than his colleagues.
Even though the law may appear in retrospect to be less than clear, Baker was never to challenge the jurisdiction assumed or the procedure adopted by the Court, although he was often to claim the decision was otherwise flawed. We may assume that his legal advisers saw a challenge of this kind as not worth pursuing.[37]
The hearing of the case occupied both the afternoon of Friday 3 September 1858 and the whole of the following Monday – by contemporary standards an extraordinarily long period. The evidence only concluded after midnight, at which time the bench retired for an hour before returning with a majority verdict of guilty. The larger part of the trial appears to have been involved in lengthy examination and even longer cross-examination of the two principal prosecution witnesses, Mary Schroder and Elizabeth Burbridge.[38] The stilted newspaper report may obscure the thrust of Baker’s case, but it appears he advanced the (somewhat inconsistent) propositions that Mary Schroder was ill and may have dreamt the whole episode and that she was an ill-brought up child prone to lying and therefore to be disbelieved. On this latter limb, there appears to have been extensive cross-examination as to the nature and circumstances of her complaint to her sister, later to Miss Burbridge and as to disclosure to her parents. The lengthy cross-examination of Elizabeth Burbridge appears to have been directed firstly at trying to find an inconsistency in the account of Mary Schroder’s disclosure, and then, at greater length, at showing that Burbridge herself appeared not to believe the charge by showing that she had continued to associate with Baker in friendly terms.[39] The only other prosecution witness was Mary Schroder’s doctor, who gave evidence she was unlikely to have been lightheaded or (in effect) hallucinating.
As Baker could not give evidence, the defence relied principally on Langley, Baker’s housekeeper, who gave extensive evidence about the visit, insisted she had not heard Mary Schroder cry out (as Mary had testified she had done) and that she had not observed any disarrangement of a shawl around Mary’s body and legs. Langley also gave evidence as to Baker’s calm demeanour. The other defence witnesses were called to give evidence of Elizabeth Burbridge having expressed the view Mary Schroder was a liar.
As indicated above, the JPs voted, (apparently by a vote of 10-6) to convict. Baker was convicted, fined £5 and ordered to pay costs. As we have seen, Baker later claimed the small penalty was deliberately chosen to limit his ability to appeal against conviction.[40]
So far the case, while unusual in that it involved an allegation of sexual impropriety by a member of the socially privileged classes, is not particularly very remarkable. What sets it apart from any other proceedings of the period is that Baker and his supporters chose to carry their defence of Baker’s cause into the public arena – and to do so by publicly impugning not only the prosecution and the verdict but also the course of proceedings and indeed many members of the Court. There appears to be no comparable use of the media in New Zealand in any other nineteenth century case so far discovered. While on occasion litigants or defendants appealed to public opinion personally and in other cases publicity was courted by lawyers involved in the case on the behalf of their clients,[41] it is remarkable to find a person involved in legal proceedings taking such a prominent personal role over such a sustained period in publicizing his case and, it appears, orchestrating other expressions of opinion.
The first salvo in the publicity campaign was dispatched by Baker himself. He wrote (effectively identical) letters to the editors of both Wellington papers during the trial, and these letters were (at his request) published in the same issue as the reports of the trial. This first letter advanced a range of arguments against the proceedings and the verdict, starting with an argument that reporting of the trial would be, in the event he was later exonerated, ‘highly prejudicial to public morals, to myself, and to other parties concerned’. He then argued, with remarkable inconsistency, that it was unfair he should be called to answer to a charge made ‘… not days, or weeks, but more than a quarter of a year ago’ and where Burbridge had not believed the allegation.
One knows how a fancy long dwelt upon grows into the mind, and become incorporated with it, as a truth. One knows also, how exceedingly difficult it is to disprove apparent circumstances after a lengthened lapse of time, of which at the moment the explanation is self evident. I maintain it to be a case of very gross injustice, that the fact of this charge was withheld from the party principally concerned until memories had grown weak and ideas had hardened into seeming realities.
It is difficult to see any factual basis for this effusion, since the substance of the allegation was conveyed to him on the very day it happened. It might be thought neither the claim of embellishment nor the claim that the ‘fact of the charge’ was concealed from him have the slightest foundation. Nor can the latter claim easily stand with Baker’s averment in the following paragraph that ever since the allegation had been made, he had been ready to have it investigated, and this had been refused him.
He then transferred his attack to the fairness of proceedings in which he could not give evidence, alleging the choice of a criminal charge had been made to prevent his ventilating the matter in the Supreme Court. In terms which bear a remarkable contrast to his later arguments, he wrote:
I sincerely believe that, in any Court of Justice in England, the charge, under the circumstances, would not have been entertained. Legal technicalities would have yielded to the plain equity of the case, (and a Police Court especially is a Court of Equity as well as law), the plaintiff would have been ousted as incompetent, and the matter at issue been left for adjudication before a jury in the higher Court, to which the appeal had been made.
He then passed to the purported unfairness of a matter being decided by a majority of the Justices, instead of requiring the unanimous verdict of a jury .
What is the deep principle of Trial of Jury, which has made it for so many centuries, the bulwark of British liberty and justice. Surely it is this – that a minority, even of one dissentient juror, implies a possible doubt of guilt, which doubt is justly given in favor [sic] of the accused.
Baker noted that he had not had the benefit of the doubts entertained by some JPs.
The next target was the nature of the hearing itself and, more directly, the behaviour of those justices who had voted to convict. Here for the first time came the signature tune of Baker’s whole publicity campaign – that the verdict was the result of bias – that ‘a considerable majority’ of the bench of justices were biased against Baker ‘on politics, personal, or religious grounds’ – though at this stage he did not allege deliberate unfairness but the ‘natural bias of prejudice and predilection’.
To round out his attack, he then complained the proceedings had been improperly conducted – that some justices had not attended the whole of the hearing, some had cried ‘hear, hear’ when evidence against Baker was adduced, and that leading questions had been put to Mary Schroder ‘prompting the very words on which the fact of the alleged crime principally depended’.[42] This latter allegation is the only one for which there is some external, though far from independent, support as Baker’s lawyer was later to write to the newspaper complaining that
The words which the witness Mary Schroder stated in answer to my question, were of that peculiar kind that no child of her age could have given unless previously tutored, and on my commenting strongly upon the subject Mr Carkeek, one of the Magistrates, stated openly that the words were not the words of Mary Schroder in answer to my question, but were the words in which he had asked her the question pointedly, to which she had answered ‘yes’. Whereupon I stated to the bench that I had not heard the question put by Mr Carkeek, and had I done so I should have objected to its being put – and the Chairman H St Hill, Esq, also stated that he did not hear the question, and thought it an improper one. Without this question and answer no legal offence could have been proved against Mr Baker.[43]
To round out his case, Baker then argued that his housekeeper’s evidence demonstrated the untruth of Mary Schroder’s account – although to a logician evidence that the housekeeper did not hear a cry is no proof one was not made; nor evidence a shawl was in place proof it had always been so.
Baker’s letters appeared in the same editions of the local papers as the report of the trial. Both newspapers were published bi-weekly, so there was time for responses and news of developments to be published in the next editions – frequently being published together. In the newspapers of 11 September there appeared a letter of complaint by Baker’s lawyer John King taking issue with the manner in which the bench had been summoned and the use of leading questions by a JP[44] but going on to repeat the allegations of bias. The claim was of political animus, and that Justices:
whose political feelings against Mr Baker are well known could find it convenient to neglect their public duties to sit on the Bench, for the purpose of hearing a charge against their political opponent, and whose votes on the occasion, were as is well known against him. I am sure all impartial persons will at once say that it would have been more honorable, and shown a delicate feeling had they kept away.[45]
The bias argument made here was effectively countered in the successor edition of the NZ Spectator, by a letter from Travers, Schroder’s lawyer, in reply to Baker’s first letter. Travers was quick to point out, in much more measured terms, that the allegation of bias could be made by either side, especially in relation to St Hill, and other political associates of Baker, who had nevertheless sat in judgment. [46]
Travers’s letter was published alongside a letter from ‘A Dissenter’, an anonymous correspondent who claimed to be neither acquainted with Baker nor even of the Anglican community. The writer attacked the verdict on the basis of some difference in the evidence as reported in the two different newspaper reports (!) and, perhaps a little more cogently, on the basis that there had been evidence Mary Schroder had been characterized as untruthful (conveniently ignoring Burbridge’s denial of any such remarks).[47] If indeed ‘A Dissenter’ was independent of the Baker camp, such a critique suggests many Wellingtonians would reject a complaint of sexual offending unless the complainant’s prior character had been virtually irreproachable.
The newspapers of 15 September 1858 carried reports of a further development – the drawing up and signature of a ‘Memorial’ to the Bishop of New Zealand supporting Baker and urging his case. The Memorial was stated by the NZ Spectator to have been signed in the course of a single afternoon by 112 people ‘including members of various Religious Denominations and of different political opinions’ and that many of the signatories had ‘spontaneously’ asked to sign it. The gravamen of the memorial was that firstly the memorialists were not satisfied the charge had been proved; secondly given the degree of doubt the case should not have been tried in the Resident Magistrate’s Court. The memorialists also raised the issue of the inability of a defendant to give evidence. It seems likely that, despite the claim of non-sectarian support, the Memorial was organized by friends or supporters of Baker. The leading name was that of Edward Toomath, to whose position as a teacher in an Anglican school Baker had succeeded in 1855.[48] The tone and content of the terms of the memorial clearly follow some of the arguments raised by Baker at the time of the trial, although it is notable no argument as to the alleged bias of the Bench is made.
Following these pro-Baker effusions, or perhaps following up on them, came a second letter to the NZ Spectator by Arthur Baker himself – ostensibly responding to the support from ‘A Dissenter’. The letter is a remarkable document, indicating a very significant shifting of ground by Baker. He no longer argued that his prosecutor, and the majority of the bench who convicted him, were misguided. Instead he characterized the prosecution as ‘persecution’, alleging an intent to condemn him without a hearing (presumably meaning without his being able to give evidence, rather than without a trial), and alleged the facts themselves had shown him not guilty. This version must strike the modern reader as a remarkably selective reading of the facts; it may well be it had a similar effect when first published.
Baker then went on to raise two fresh matters. Firstly he alleged he had been convicted by ‘a bare majority’ of the Justices (rather than the 10 – 6 vote apparently widely reputed), and further claimed that of the 9 voting to convict, one had (according to Baker) earlier pronounced him innocent. Baker thus argued this Justice should have voted for acquittal, which he claimed would have made the numbers equal and he would have been acquitted on St Hill’s casting vote. Baker was on what proved to be a more successful tack when he alleged that the pro-conviction forces had committed the ‘outrage of tampering with my own household in the hope of turning evidence against me’.[49] This ‘tampering’, it was to emerge, had taken the form of a JP speaking to Baker’s housekeeper prior to the trial. The exact nature of the conversation in question, and its consequences, will be discussed later.
The first, tentative, criticism of Baker’s epistles came with a letter to the Independent with a letter from ‘ABC’ which suggested that Baker should name those he alleged were misusing their position on the Bench to persecute him; that Baker was wrong as to the margin of the vote to convict, and that if some Justices were lead to vote to convict by the evidence, there was no reason to think the majority were doing other than judging the facts as they saw them.[50]
Baker had sensibly not been content to leave his campaign to the forces of public opinion. Instead he had challenged its legality, in proceedings by way of certiorari.[51] The grounds alleged are interesting, not least for the inclusion of several technicalities of the kind Baker had argued – at the time of his trial – should not stand in the way of justice.[52] More substantively, though equally unsuccessfully, he argued that one of the Justices, C D R (Dudley) Ward,[53] should not have sat because he was a Solicitor of the Supreme Court, by virtue of admission to the fused profession in New Zealand) and in England solicitors could not sit as Justices.[54] He also reiterated his claim the proceedings were improper as being brought to prejudice his civil case against Schroder.
The most substantial ground, however, and the one which was to succeed, was a challenge to the verdict for bias and pre-determination by another JP, Charles Pharazyn.[55] It was clear Pharazyn had discussed the allegations against Baker with his housekeeper, Langley, prior to the trial. The divergent recollections of the conversation, as shown in affidavits (later printed in full in the newspapers) suggest that Pharazyn had opined that Baker’s involvement in local politics had been both unwise and inappropriate for a clergyman; Langley went on to allege (and Pharazyn to deny) that he had indicated she would face awkward questions about her own relationship with a local man if she gave evidence supporting Baker, and that Baker’s political opponents would ensure his conviction. On 29 September Gresson J granted the rule nisi for certiorari – thus bringing the conviction before the Supreme Court – though not at that stage quashing it.
On 5 October, Gresson J made the rule nisi absolute – that is, formally quashed the conviction.[56] From the plethora of objections urged by Baker’s counsel – some of which Gresson apparently considered might have had merit – the judge singled out the issue of bias, and held that, whatever the reason for Pharazyn’s conduct, it revealed bias on his part.[57] Relying on reputable English authority,[58] Gresson held that bias by a single justice tainted the proceedings, without the court needing to enquire whether that Justice’s views had affected the rest of the bench, and he therefore quashed the conviction. Curiously in a system where normally costs followed the event, he did not make an award of costs in Baker’s favour.
In perhaps the most remarkable incident in the whole media coverage of the case, the reports of the first Supreme Court hearing were accompanied in the NZ Spectator of 29 September by the publication (apparently sanctioned by the writer) of a letter from Abraham Hort, one of the Justices who sat in the original trial in the Resident Magistrate’s Court. The letter indicates that Baker had sought, and received, the leave of the Resident Magistrate, St Hill, for Baker to canvass the minority of the bench to disclose their reasons for voting for acquittal. Hort described this as placing the minority in an invidious position – not least because St Hill himself had declined to give his reasons – but while acknowledging that this disclosure was most unusual and would be open to criticism, Hort was prepared in the interests of justice as he saw them to give his reasons. Remarkably the NZ Spectator saw no objection to Baker’s approaches to the Justices, nor showed any reluctance to publish the result of those enquiries
The reasons given by Hort shed an interesting light on at least one contemporary view of such offences. His first reason for believing the charge ill-founded was an (unspecified) difference of evidence between Miss Burbridge’s evidence and that of Mary Schroder; his second was that Mary Schroder had made no complaint to Baker’s housekeeper when she had the opportunity. The other reasons all have to do with the conduct of Mary’s sisters in associating further with Baker even though pressed to do so by Burbridge ‘at their age when fully cognizant (if properly trained) of the modesty and propriety essential to, and the safeguard of, the female character’; matters from which Hort apparently deduces the sisters did not believe Mary’s account.[59] Once again, it seems evident that some Wellingtonians would not give a female complainant a sympathetic hearing.
Up until the end of September, therefore, the expressions of opinion, and the apparent probability of a successful challenge to the conviction, suggest some considerable degree of public support for Baker, and relatively little feeling the other way. This was to change, and throughout October and most of November 1858 the case became a true cause celebre, with the two political factions, and the two newspapers, in strident controversy. The Independent showed its hand with the publication of a letter, ostensibly by a reader self-styled as ‘Scrutator’.[60] The letter was clearly written by someone with both considerable knowledge of the case (to an extent that it suggests it was written by one of the majority Justices) and by someone who was either a lawyer or conversant with the law. However the identity of the writer cannot be determined.[61] Whatever his identity, ‘Scrutator’ was clearly in no doubt as to the propriety of the verdict. While prophesying that the verdict would be set aside on the grounds of bias, Scrutator echoed in very strong terms the point made by Travers after the trial that any allegation of bias affecting the judgment of one or more of the majority could be overwhelmingly countered by the overt bias shown by St Hill and others of Baker’s supporters in the minority. The writer went on to attack Baker for the manner in which the trial had been conducted (particularly the very lengthy cross-examination of Mary Schroder – which the writer suggested justified a decision not to remit the matter for trial in the Supreme Court, where such cross-examination could be repeated). ‘Scrutator’ then took issue with the assessment of the evidence offered by Hort in his letter to the Spectator and then, in a novel fashion, proceeded to attack Baker on the basis of matters not before the court, including the exculpatory pamphlet containing letters from Burbridge[62] and a statement by Baker in that pamphlet that he had been in the habit of kissing all the Misses Schroder:
… and a pathetic lamentation that a clergyman ‘could not salute with a holy kiss, young children whom he dearly loved’, without being subject to such sad misrepresentation.
‘Scrutator’ pointed out that the elder Misses Schroder were 15 and 16 and enquired ‘At what age has Mr Baker been accustomed to drawing the kissing line?’[63]
The setting aside of the conviction seems only to have made the debate as to Baker’s conduct more spirited and partisan, although Baker’s own behaviour undoubtedly contributed significantly to the asperity of the exchanges.
The Independent had reported the Supreme Court hearing in its issue of 28 September, where for the first time there appeared explicit (and lengthy) editorial comment on the case, criticising many of the grounds of appeal taken. While acknowledging the bias shown by Pharazyn, the editor pointed out once more the extent to which similar criticisms could be made of St Hill and the minority. To a large extent the Independent seems to have been taking issue with allegations in the Spectator of political conspiracy by the majority justices,[64] by suggesting the minority had as great or greater reason to allow political ties to warp their judgment. The Independent went on, in words later to be controverted by Baker, to say the majority for conviction included JPs of all shades of political opinion.
The Independent, not coincidentally, broadened its attacks to include John King, Baker’s principal counsel. King was also involved, together with Henry Bunny (Baker’s brother-in-law) as counsel in other litigation brought by members of the anti-Featherston coalition against the printers of the Independent for libel.[65] Those proceedings, which were also to be resolved by jury trial in Christchurch rather than Wellington, resulted in a triumphant win for the Independent and its editor, Fox. The fact of this suit and the involvement of King and Bunny undoubtedly contributed to the Independent’s anti-Baker stance.
The two lawyers were clearly tempting targets. King was vulnerable because at the time Baker’s case was before the courts, proceedings were brought to ‘attach’ King (that is, to take him into custody as a debtor) for moneys owed to the heirs of an estate of which King was executor.[66] He was only to escape debtor’s prison after friends agreed to pay part of his debts on condition the heirs accepted the lesser sum.[67] The Independent took delight in pointing out that in England King’s conduct would be punishable as theft from the estate; and urging the enactment in New Zealand of the same statutory provisions.[68] Henry Bunny was in worse case. He had been admitted in June 1858 – for which purpose Arthur Baker had provided a certificate of good character without mentioning their relationship – over opposition from other lawyers who pointed to allegations of forgery of a document concerned with his legal practice in England before he came to New Zealand. These allegations were later proved and Bunny earned the distinction of becoming the first lawyer struck off in New Zealand.[69] The ethical qualities of Baker’s legal advisers reflect little credit on him. To adapt Oscar Wilde’s aphorism, the misfortune of having a dishonest lawyer may happen to anyone; to have two dishonest lawyers looks a little like consorting with thieves.
It would appear that at least some of Baker’s supporters were beginning to find his behaviour difficult to stomach. In early October both newspapers published a letter by Henry St Hill in which the Resident Magistrate replied to criticisms of the Bench made in the Spectator,[70] and denied the judgment had been hasty or ill-considered, and St Hill personally took responsibility for any defects in the formal documents in the case, as he has drafted them.[71]
Baker regarded the first ruling, on the order nisi, as removing not only any legal but also any moral stigma attaching to him, as evidenced by his own letters (of which more anon) and by his resumption of his ecclesiastical functions in advance of any decision on his case by Bishop Hadfield. Not all of his congregation were content with this approach, and some refused to attend services he conducted or to attend meetings of church committees on which he insisted in sitting.[72] However the Independent was somehow lured into error in publishing on 13 October that Bishop Selwyn had suspended Baker.[73] Baker was quick to refute this, asserting that Selwyn had in fact said that he would not be justified in inflicting any ecclesiastical censure upon Baker based on the finding of the bench of Magistrates in his case, and that ‘Mr Baker cannot be advised to acquiesce in the decision of the magistrates if he is conscious of being unjustly convicted’.[74]
Had Baker simply left matters there, he might have attracted some sympathy. However he then proceeded, in characteristically tendentious fashion, to claim a vindication which had not occurred:
For my own part I cannot sufficiently express my contempt for the verdict, which has been set aside in the Supreme Court as worthless, on the grounds of its injustice.[75]
Baker should by now have had a better idea of the calibre of his opponents. The Independent printed an editorial comment below Baker’s own letter, first giving an apology for the ‘misstatement’ as to suspension, while pointing out that in his reply to Toomath and the other memorialists, the former Bishop (Selwyn) had also said that Baker had ‘… acted very judiciously is suspending himself for the present at least, from his clerical duties’. The Editor then, pointedly added:
[W]e feel compelled to point out that Mr Baker’s assertion, in the above letter, that the Supreme Court has set aside the decision of the Bench as worthless on the grounds of its injustice is incorrect. The question of Mr Baker’s guilt or innocence never came before the Supreme Court at all.[76]
After this, there seems to have been a lull for some days, until the Independent referred to the matter in an editorial at the end of October, repeating its earlier assertion that the margin for conviction had been 10-6. This drew a remarkable response from Baker who, in a lengthy letter published over two issues of the Independent, proceeded to challenge the ‘received history’ of the proceedings, to the point of rewriting the record in his favour. Baker claimed that an account in another newspaper, the Nelson Examiner,[77] had stated that of the 16 JPs, only nine had voted for conviction, seven for acquittal. In his letter, he listed the JPs he alleged had voted, and claimed that one of these, a Mr Hickson, had earlier voted against Baker being committed for trial.[78] He repeated his allegation of political bias, claiming the majority were, with the exception of the aberrant Hickson, were all his political opponents. His letter went on, if stirring periods to claim that there was not:
A single precedent in English jurisprudence where an accused party, pronounced ‘not guilty’ by six sitting magistrates was summarily convicted, when the conviction involved … a loss of £500 a year and the ruin of his earthly prospects.[79]
He then proceeded to argue that the evidence had never established his guilt, and that those in favour of conviction would, in his opinion, now accept that they had been carried to a verdict not justified by the evidence by the inevitable prejudice such charges inevitably brought with them.
The editor of the Independent replied immediately to Baker’s letter. His comments were trenchant – as might be expected from William Fox who, as one of the JPs involved in the hearing, might be expected to have the facts clear in his mind. First to be challenged was Baker’s assertion of a 9-7 vote; the Independent repeating that on the question of guilt or innocence, there had been a 10-6 vote; that only when the question was whether the matter be remitted to the Supreme Court for trial did the margin shift. Further, Fox challenged Baker’s listing of the voting for guilt – claiming that one of those listed by Baker (a Mr Carkeek) had voted guilty – and stated that Baker must know this.
Because Baker’s letter had been published over two issues of The Independent, the second part appeared alongside a fresh letter from Baker in reply to the editorial rebuttal of the first part. Here Baker took issue with the allegation he was misrepresenting the voting; claiming that Carkeek himself had assured Baker he voted to dismiss the case, rather than entertain it. Baker then attempted at length, but most unconvincingly, to argue that those voting against him being committed for trial could not, on a separate vote, have properly voted he be convicted. For good measure he repeated his earlier claim that Gresson had found the verdict ‘worthless and unjust’. The Independent again replied editorially to that letter, declining further correspondence and urging Baker to await the decision of the Supreme Court on the civil suit to come before it.[80]
The civil suit for assault which Baker had commenced was transferred, apparently by mutual consent, to the Canterbury settlement on the basis that no unbiased jury could be empanelled in Wellington. Despite this change of venue, the suit came to trial speedily. An order was made on 26 October 1858 in the Supreme Court in Lyttelton for a special jury to be empanelled[81] to try the case on 2 November, although that date could not be met as the parties and witnesses did not arrive in time from Wellington. The trial began on 19 November, with King calling Baker to give evidence, which he did for only a part of the first day of the trial. The Supreme Court Minute Book makes it clear that the jurors asked questions of Baker, a fact not brought out in the newspaper reports.[82] The defence sought to call Elizabeth Burbridge first, Mary Schroder being ill, but Gresson J considered Mary Schroder should go first. The case was adjourned until the following day, when Mary’s evidence and cross-examination took up not only the whole of Saturday 20 November but also a portion of the following Monday, during which time the jury requested Gresson J to ask questions of Mary Schroder.[83] Elizabeth Burbridge was then called and again was cross-examined at length, her evidence spanning two hearing days (in which time she was once more questioned as to her correspondence with Baker, this time the questions coming from the jury).[84] Late on this fourth day of the trial GW Schroder was called. After a day’s delay occasioned by the illness of a juror (who was fined the very large sum of £20 for his default),[85] Travers then called Mary’s sister Catherine, who again was extensively questioned by both counsel and by the jury. On the sixth day of the hearing, King called both Baker and two fresh witnesses in rebuttal. Why one of them, his housekeeper, was not called as part of the original case is not clear.
Counsel then summed up their cases. The report in the Canterbury Standard[86] makes it clear that King’s summing up for the plaintiff asserted that Mary Schroder had suffered some ‘dream’ event and confused this with reality. Given the repeated attempts to characterize Mary Schroder as untruthful and unreliable, this argument, and the volte-face it involved, may not have drawn sympathy from the jury. On the following day, the seventh of the trial,[87] Gresson J summed up, giving his view that Baker had appeared as a truthful witness, and embracing the ‘dream event’ theory. Gresson specifically requested the jury to come to a special verdict on whether or not the alleged assault had occurred, and directed them that as the fact of the assault had been proved – indeed it never been denied – they must make an award of damages such as would, in Gresson’s phrase ‘vindicate the law’.[88] There was then never a dispute that there had, in law, been a serious assault. However, under the Supreme Court Rules, Schroder could seek to mitigate the damages for the assault, apparently on the basis that Baker was not a deserving plaintiff.[89]
The jury returned briefly to request they be given the judge’s notes of evidence – a request refused because it was ‘not the course’[90] – and the jury resumed their deliberations. At 12.30 they reported they were deadlocked and could not reach agreement, but were nevertheless sent back for further deliberation, and after a further 90 minutes returned the following ambiguous verdict:
Verdict for the plaintiff £50 in vindication of the law. They consider it quite hopeless to arrive at a special verdict having reference to the alleged assault brought forward by the defendant in mitigation of damages.[91]
As the whole thrust of Baker’s case had been that substantial damages were necessary to blot out the stain on his character caused by Mary’s allegation and her father’s assault, the verdict fell well short of a resounding exoneration. Given the apparent earlier deadlock, we may suspect it was a compromise verdict. Indeed, Travers, Schroder’s lawyer, was to claim in a letter to the Independent that despite Gresson’s strong summing up in favour of Baker, Travers was informed
… that of the jury seven were in favour of one farthing damages, one would express no opinion as to the charge against Mr Baker, two were for some middle ground, and two were for giving him the £500 claimed, believing Mr Baker to be innocent of the charge brought against him.[92]
It should be noted that this letter drew trenchant editorial criticism from the Lyttelton Times,[93] which characterised the letter as a ‘flagrant breach of propriety’ in that it criticised Gresson J’s conduct of the case:
it is not becoming in an officer of the Supreme Court to attempt to bring odium upon the conduct of the presiding judge even if that odium were really deserved
and then went on to suggest that Travers must be speculating as to the basis for the verdict because, the newspaper thought, none of the jurors would have disclosed the voting.
The Independent, not surprisingly, considered that Baker had clearly failed to establish his innocence – despite the alleged advantage for him of trial in the ‘Anglican’ Canterbury settlement.[94] The case then largely drops from the pages of the Wellington newspapers. The Spectator, long Baker’s champion, appears to have weakened in its stance, as the last mention of Baker’s case is a truncated report of the proceedings in the Supreme Court civil action.[95] The Independent effectively closed its discussion with a lengthy editorial, discussed below, on the respective merits of jury trial or trial by Justices of the Peace.[96]
With the advantage of hindsight, we can identify four features of this case which significantly enhance our understanding of law and litigation in nineteenth century New Zealand.
Firstly we can learn much about the dynamics of cases involving allegations of sexual misconduct. For the most part nineteenth century newspapers gave only the very briefest discussion or report of any trial for an offence involving sexual conduct. Thus in 1858, the report of the trial of Mark Turner for carnally abusing a girl under the age of twelve years took but a few words:
Mark Turner was placed at the bar changed with assault with intent &c on a girl named Caroline Hancock of the age of ten years and a half.
The evidence was unfit for publication in our columns. The case occupied the whole of the day, and the prisoner was found Guilty.[97].
It is therefore most instructive to read both the accounts of the trial in the Resident Magistrates Court and in the Supreme Court – albeit somewhat bowdlerised – and thus to get some impression of the manner in which such cases might be conducted. Both Mary Schroeder and her supporting witnesses were cross-examined at inordinate length in an attempt to find the most minute of discrepancies in the evidence which could then be advanced as a basis for disbelieving the substance of the complaint. Such intrusive cross-examination was common then, and for a century to come, as lawyers and judges considered that it an essential counter to an allegedly substantial risk of false accusations of sexual offending.[98]
Interesting though the reports of the trials are, the surrounding publicity and the statements it provokes are even more informative. It is clear from the letter written by Abraham Hort and from the letter by ‘A Dissenter’ that in the minds of many Victorian New Zealanders, a complainant’s conduct would be scrutinized with extraordinary minuteness to see if there was any basis on which a complaint could be rejected as incredible or concocted. It may be thought highly likely that many complainants did not bother to bring forward charges where there was no corroborating evidence for fear both of disbelief by authorities and the prospect of unpleasant and prolonged questioning in court. However we must remember that this cannot have been a universal attitude. A majority of the Wellington Justices and at least some members of the Christchurch jury were quite prepared to believe Mary Schroder’s story. It may well have been that these persons convinced that a middle-class girl such as Mary Schroder would only be prepared to speak in public of such intimate matters if her account was true.[99] It is therefore not possible to make sweeping generalizations as to credibility or intolerance of complainants.
Secondly we may note a brief but interesting discussion in the early stages of the controversy as to the inability of a defendant in criminal proceedings to give evidence. One of the great curiosities of the ongoing public debate about this case is the way in which reference to the different rules of evidence in civil and criminal cases, and the inability of a defendant in a criminal case to give evidence, disappears from the argument.[100] The matter was raised by Baker in a letter to the newspapers published, at his request, in the same issue as reported the trial in the Resident Magistrate’s Court. The only other reference to the issue is in a Memorial to the Bishop of New Zealand launched by Baker’s supporters shortly after the trial[101] in which the memorialists advanced as an objection to the verdict:
Thirdly, that the charge was of so peculiar a nature as to render it next to impossible to be disproved by the accused. A verdict of condemnation ought not therefore to have been given by such a tribunal as decided the case merely on the assertion of the accuser.
Logically pursued, the argument of both Baker and the memorialists would mean that sexual offences should not be tried in any proceeding in which the defendant could not give evidence. Perhaps the reason for the issue being rapidly dropped form the debate is that, given that at the time no criminal defendant could give evidence, to insist on the unfairness of the procedure would be to impugn the contemporary conception of impartial British justice – to which Baker and his supporters often later appealed. It is notable that Baker was in effect later compelled to argue that investigation of the matter by way of a criminal prosecution in the Supreme Court before a jury would have been proper (as Gresson J was later to suggest should have been the procedure) – and of course in such a trial he could not have given evidence. He might therefore have been convicted for lack of the evidence which evidently satisfied some (if not all) of the Canterbury jurors of his innocence.
The third point of importance is the publicity surrounding the various proceedings. It is notorious that nineteenth century newspapers commented on legal proceedings – and other matters – with more frankness than would be acceptable in modern New Zealand. Even so, the nature and extent of the publicity given to this case seems to have been remarkable. It is also most informative that there was remarkably little negative comment about the airing of such matters in public. The newspapers were prepared to print letters traversing matters which still had to come before the court – including many letters from Baker himself. Further, while Henry St Hill declined to publicly state his reasons for voting to acquit Baker, he appears to have at least acquiesced in Baker approaching other JPs to see if they would reveal their views, and no one (at least in public) criticized Abraham Hort for doing so. Only twice does there appear to have been real criticism directed at the fact of publicity – as opposed to the many negative comments about the actors on each side. Baker was vigorously criticized by the Independent for putting into the public arena the letters written to him by Miss Burbridge, and the Lyttelton Times equally firmly reproved Travers for his criticism of Gresson J’s conduct of the assault trial. It seems probable that in each case actors in the debate were perceived to have contravened social norms seen by the community as more important, the confidentiality of private correspondence and respect for the judiciary. There appears to have been public tolerance (at the least) of vigorous debate on legal proceedings, but that tolerance was not unlimited.
Lastly, perhaps the most important feature of the Baker affair is the insight it gives us into contemporary perceptions of the merits of jury trial as opposed to trial before a bench of magistrates. It is notable that in the early stages of the affair Arthur Baker regularly appealed to a public perception that important matters should be determined by a jury rather than by magistrates. There was at least implied support for the primacy of the jury in an editorial comment in the Spectator[102] which criticised the Resident Magistrate’s Court verdict against Baker and drew unfavourable comparisons with the trial of fact by a jury. That view was quickly challenged by a Baker partisan in that the editorial drew a considered but firm response from St Hill, who noted that, while he did not wish to discuss comparisons which had been made between a Bench of JPs and a grand jury or a petty (trial) jury, he thought a bench of magistrates ‘quite as able to balance evidence as a jury’.[103]
The issue was ventilated again in almost the final exchange in the drama, when Gresson J indicated in his summing up in the civil trial that the Justices should not have tried the criminal charge summarily, but rather committed Baker for trial in the Supreme Court so that the matter could be determined by a jury.[104] This drew a strong response from the Independent[105] which claimed Gresson J was in essence claiming that a jury was a better tribunal of fact than the magistrates could be, The paper disagreed:
First, who were the Magistrates? They were sixteen of the colonists of Wellington, best esteemed for their position, character and ability. Three at least were members of the English Universities – two were English barristers, members of the Inner and Middle Temple. The rest were merchants, flockowners, the Collector of Customs of the Port of Wellington, several members of the General Assembly, several of the Provincial Council, and so forth. Now a special jury of the Supreme Court at Lyttelton is no doubt a very respectable body of men, but are they more so than 16 such persons as we have indicated – are they more capable of coming to a conclusion on a question of fact such as this?
And, of course, as the Independent noted, both the Justices and the jury had been divided in their views.[106] The Independent’s views were not necessarily shared by other newspapers, but it is interesting that the Canterbury Standard saw the result in the civil action as indicative of a need to alter the law to allow majority verdicts, either to the nine jurors of fifteen required in Scotland or, if the assent of 12 jurors was seen as necessary, to allow a verdict by twelve of twenty-three.[107]
We can, to a limited extent, test the inferences we might draw from St Hill’s views and those of the newspapers by considering the behavior of parliamentarians when dealing with matters relating to juries and magistrates respectively. There were two statutes affecting juries and jury trial passed by the New Zealand parliament in the early 1860s. The Jury Ordinance Amendment Bill 1861 passed through Parliament without apparent debate, and the Juries Act 1862 passed through both chambers in less than a month, with only one speech being recorded at any stage.[108]
By contrast the operation of the Residence Magistrate’s Court appears to have been viewed as a matter of much greater import. While there was no reported debate in Parliament on the District Courts Bill 1858, the operation of that Act – and a downgrading of the Resident Magistrates’ Courts - were the subject of sustained debate in the latter part of 1860.[109] That debate also reflected the factionalism apparent in Baker v Schroder, as many participants were political supporters or opponents of Dudley Ward, who had not been maintained in judicial office under the 1858 District Courts Act, a decision which was allegedly a matter of partisan politics. Further, in the following year several politicians argued for an extension of the criminal jurisdiction of Resident Magistrates.[110] The comparison does perhaps indicate that jury issues simply did not attract the attention of many influential colonials.
This article has set out to bring back to a public notice a fascinating case from the early years of a Wellington settlement. As indicated above, the case tells us much about contemporary attitudes to law, but that should not entirely distract us from the human story revealed by the particular richness of the contemporary record.
[*] Associate Professor of Law, University of Canterbury.
[1] Lyttelton Times 24 November 1858 and Canterbury Standard 25 November 1858, evidence of Arthur Baker (SC). As is discussed below, there were two court proceedings in which witnesses were called; a criminal prosecution in the Resident Magistrates’ Court, Wellington and a later civil action in the Supreme Court, Christchurch. In this and following notes where testimony is cited, the proceedings are indicated by the annotations ‘(RMC)’ and ‘(SC)’ respectively. The assault on Baker does not appear to have caused any permanent injury.
[2] Evidence of W Schroder, Canterbury Standard 25 November 1858 (SC). Ruth M Allan, Nelson: A History of Early Settlement (1965) 144 lists G W Schroder as one of 8 such merchants in Nelson in 1842. Schroder also appears among the list of the persons entitled to a land grant in the Schedule to the New Zealand Company’s Land Claimants Ordinance 1851.
[3] The only document by Schroder so far traced is a letter written in 1847 about such commodities, George Schroder to T King 1847 in King papers NZNL Ms 5641-26.
[4] Lowther Broad, The Jubilee History of Nelson from 1842 to 1892 (1892) 104 lists G W Schroder as one of the holders of a licensed run in the Awatere Valley in 1850.
[5] NZ Spectator 8 September 1858, evidence of Elizabeth Burbridge (RMC).
[6] This data is largely drawn from an undated ‘fact sheet’ published by the Parish of St Paul’s, held in the Wellington Public Library.
[7] There are few mentions of Baker’s case in the histories of the Anglican church in New Zealand. Most – including the centenary history of the Diocese – make no mention of the matter at all; the few that do either obscure the facts of the incident, or put perhaps unwarranted interpretations on the facts. Thus George McMorran, Some Schools and Schoolmasters of Early Wellington (1900) 106, describes Baker as a versatile man who ‘loved above all things a fight with pen or tongue’, but whose influence was crippled ‘through the formulating of a serious charge against his personal character’; and while many rejoiced at his departure from the colony ‘there were those who believed him to be – and still consider him – a martyr’. That may be true, but is less than informative. A more recent historian, Peter Butt suggests in The Cross and the Stars: An Historical Record of the Anglican Diocese of Wellington (1993) 31 that Baker’s most serious problem was his conviction by a majority of ‘assaulting a young girl who was a guest in the vicarage’ (no mention of ‘indecent’ assault!); Butt goes on to say that Baker was ‘exonerated’ by Selwyn (which might be thought to overstate the case) and then suggests Baker succeeded in an appeal against conviction (which is not technically correct), though pointing out this was not necessarily a decision on the merits. Butt further asserts that a ‘… further complication in the case was the suggestion that one of the bench of magistrates had suborned one of the witnesses.’ As is discussed later, there was an issue as to a witness, but there is no established basis for any suggestion of ‘subornation’. Butt concludes by citing an earlier ecclesiastic author, M R Pirani, A Short History of the Cathedral of St Paul’s the Apostle (1958) 9 that Baker was innocent and that he had been attacked because of his vocal support for the Government policy (which particular policy is not explained) ‘which was not shared by most of the population of Wellington’. There is an almost equally curious treatment of Baker by the most recent Anglican writer. Michael Blain, Clergy in the Diocese of Wellington 1839-1894: a directory (1998) repeats the quasi-exculpatory statements of Pirani and Butt, but in a more recent work Wellington Cathedral of St Pauls (2002) 26 Blain states: ‘The previous priest, the erratic Ritualist Arthur Baker had just fled the country after charges of sexual assault against a schoolgirl from Nelson’ – which might be thought to do less than justice to the historical record or indeed to Baker.
[8] This can be seen both in the litigation and publicity discussed in this paper and in an earlier episode where Baker had accused opponents of ‘gratuitous fabrication’, only later to allege that in using that phrase he meant only ‘assertion without proof’; see Wellington Independent; Letter by Baker 6 January 1858; Editorial, 13 January 1858; letter by Baker 20 January 1858.
[9] NZ Spectator, above n 5. A later correspondent to the Wellington Independent alleged that Baker had not merely had these letters produced in court, but had published before the trial an exculpatory pamphlet which included extracts from her letters to him (but not vice versa): Wellington Independent, Letter from ‘Scrutator’ 2 October 1858. I have found no other mention of such a pamphlet, let alone a copy, but it may be significant that Baker, who challenged many other allegations about him, did not challenge this one.
[10] NZ Spectator, above n 5.
[11] NZ Spectator, above n 5.
[12] ‘Notices of intention to marry’ Wellington NA BDM20/4, 101/24; 13 April 1859, advising of the intention of Arthur Baker, ‘bachelor, Clerk in Holy Orders, of full age, of Goddes Hill, Wellington and resident in Wellington 4-5 years’ to be married to ‘Harriet Emma Lockhart Cox, spinster, of full age’. No more is known of Miss Cox.
[13] Alan Mulgan The City of the Strait: Wellington and its Province – A Centennial History (1939) 172-173.
[14] For comment on the newspapers of the time, see ibid 200-201.
[15] For the division as to education see ibid 189.
[16] NZ Spectator 8 September 1858, evidence of Dr Johnston (RMC).
[17] Mrs Langley was Baker’s housekeeper.
[18] NZ Spectator, above n 5. This is a somewhat fuller account than that in the Wellington Independent; the critical details of the alleged assault are omitted from the latter’s report. The asterisks are in the original, and apparently represent material the newspaper considered unfit for publication.
[19] Canterbury Standard, above n 2.
[20] Canterbury Standard 2 December 1858 (SC).
[21] NZ Spectator, above n 5.
[22] Ibid.
[23] Ibid.
[24] NZ Spectator, 16 September 1858, letter by Baker. The nature and occasion of such allegations is unknown.
[25] Canterbury Standard 25 November 1858; evidence of Arthur Baker (SC); Canterbury Standard 2 December 1858; evidence of St Hill (SC).
[26] Wellington Independent, and NZ Spectator, 8 September 1858, (identical) letters by Baker.
[27] Canterbury Standard 25 November 1858; evidence of GW Schroder (SC).
[28] NZ Spectator, 15 September 1858, letter by Travers; Blain, Wellington Cathedral of St Pauls (2002) 26 makes it clear Baker was St Hill’s parish priest, and that St Hill had advanced his own money to keep the parish solvent.
[29] See An Act to amend the Law of Evidence 1851, 14 & 15 Vict c 99 (Imp) adopted by English Acts Act 1854 (NZ) s 2. Section 3 of the British Act reiterated the common law rule that a defendant in a criminal case was neither a competent nor a compellable witness. The law was not changed in New Zealand for some years, with a defendant in summary cases being able to testify after 1875 (Evidence Further Amendment Act 1875, amplified by the Justices of the Peace Act 1882). Defendants charged indictably (ie before a jury) were given the right to testify by the Criminal Evidence Act 1889.
[30] Wellington Independent, and NZ Spectator, 8 September 1858 (identical) letters by Baker.
[31] Baker’s lawyer, John King, was later to create some ill-feeling by comments in a letter to the press which implied that only JPs known to be hostile to Baker had been summoned to sit; an allegation which drew a formal resolution from the JPs concerned requiring King to withdraw an unfounded allegation. King did so, lamely claiming that he had misconstrued a statement by Travers that a bench of JPs would be summoned as meaning an anti-Baker bench would be summoned. See Wellington Independent 11 September 1858, letter by John King, NZ Spectator, and Wellington Independent, 2 October 1858, letter by St Hill conveying resolution of JPs and letter in response by King. It would appear characteristic of the Baker side in this affair that grave charges were made, on the flimsiest of evidence, only to be retracted when challenged.
[32] Jeremy Finn ‘Debt, Drunkenness, Dishonesty and Desertion: The Resident Magistrate’s Court in Early Canterbury: 1851-1861’ (2005) 21 NZULR 452.
[33] Sir Thomas Skryme, The History of the Justices of the Peace (1991) vol 2, 177. See also W S Holdsworth, A History of English Law (3rd ed, 1922) vol 1, 296-97.
[34] That status was confirmed by the Resident Magistrates Court Act 1858 s2.
[35] Fines for Assaults Ordinance 1845. To add to the potential confusion, various ordinances, national or provincial, had conferred jurisdictions on ‘Police Magistrates’, including the power to commit serious offenders for trial in the Supreme Court, though not to try the cases instead of committal, see Police Magistrates Ordinance 1842. The Resident Magistrates Court Ordinance 1846 s 28 specifically gave Resident Magistrates the jurisdiction of Police Magistrates, despite the Police Magistrates Ordinance 1842 having been repealed a few days earlier.
[36] That section provided for a right of appeal only where a penalty of more than £5 or a term of imprisonment exceeding one month was imposed. No other ordinance imposed an explicit limitation on appeals in those terms.
[37] It may be that St Hill and others among Baker’s supporters had no desire to see any challenge to the manner in which the Court operated. The uncertainty of the law would soon be somewhat dispelled as the New Zealand parliament had in August 1858 by the Justices of the Peace Act 1858 adopted three major reforming statutes passed in England in 1848 (Indictable Offences Act 1848 11 and 12 Vict c 42 (Imp); Summary Convictions Act 1848 11 and 12 Vict c 43 (Imp) and Justice Protection Act 1848 11 and 12 Vict c 44 (Imp)) which set out in clear and consistent form the criminal jurisdiction of JPs, but these statutes were not to come into force in the colony until January 1859.
[38] The newspaper reports of the proceeding devote slightly more space to the cross-examination of Mary Schroder than to her evidence in chief; while the report of Mary Burbridge’s cross-examination was more than half as long again as that of her evidence in chief.
[39] It was in this regard that she was cross-examined as to the contents of letters written by her to Baker after the incident, see part 1 above.
[40] See above, n 36.
[41] See for example the Victorian lawyers noted in Alex Castles, Ned Kelly’s Last Days (2005) 145-146.
[42] All the quotations in this section, unless otherwise attributed, are drawn from Wellington Independent, above n 26.
[43] Wellington Independent, 11 September 1858, letter by King.
[44] Wellington Independent, above n 26.
[45] NZ Spectator, and Wellington Independent, 11 September 1858 letter by King.
[46] NZ Spectator, 15 September 1858, letter by Travers.
[47] NZ Spectator, 15 September 1858, letter by ‘A Dissenter’.
[48] For a brief discussion of Toomath’s contribution to education in Wellington, see Mulgan, above n 13, 188.
[49] This and the quotations in the preceding two paragraphs are from NZ Spectator, 18 September 1858, letter by Baker.
[50] Wellington Independent, 22 and 26 September 1858, letter by ABC to Editor.
[51] It is curious, given the apparent consensus that the Justices were exercising jurisdiction under the Summary Proceedings Ordinance 1842 (see Part 5 above) that no mention was made of s 17 of that Ordinance, which purported to prevent review of the decisions of the Justices by way of certiorari.
[52] The grounds of challenge included arguments that Mary Schroder, not her father should have laid the information and that the conviction was bad because the adjournment of the Court to determine its reasons had taken it into the Tuesday morning but the document setting forth the conviction did not reflect this.
[53] Dudley Ward was a prominent Wellington lawyer for many years, and served on several occasions as a temporary Judge of the Supreme Court.
[54] Gresson J was not sympathetic to the complaint that Dudley Ward should not have sat, on the basis that the statute relied on by King (Baker’s counsel) was limited to England and Wales, and in any case would not be applicable where, as in New Zealand, that status as solicitor was conferred on a barrister by the NZ fused profession rules (see Wellington Independent, 13 October 1858). Baker was later to allege that Gresson had in passing remarked that he himself had declined appointment as a JP in conformity with the English practice (see Wellington Independent, 3 and 6 November, letter by Baker) but no newspaper report of the Supreme Court proceedings includes any such remark. Given Gresson’s Irish, rather than English, background, Baker’s allegation seems less than credible.
[55] Pharazyn clearly was opposed to Baker, but it must have been on personal or political grounds, not religious ones. Pharazyn had served on the original committee to raise funds for St Pauls; Wellington Cathedral of St Pauls (2002) 19. After Baker’s departure Pharazyn served as Treasurer of the Parish Committee for the erection of a new St Paul’s Church; see Thatcher papers MS0265108 NLNZ.
[56] See NZ Spectator October 6 1858; Wellington Independent 13 October 1858.
[57] Pharazyn was later to argue in unrelated proceedings brought against him that, on the basis of the ‘doctrine of a political bias ... laid down by the Rev Arthur Baker’ St Hill should not have sat alone to determine the case against Pharazyn; see New Zealand Spectator 8 October 1858, letter by Pharazyn to editor. His conduct in interviewing Mrs Langley was the subject of vituperative editorial comment in the Spectator 29 September 1858.
[58] R v Hertfordshire Justices (1845) 6 QB Rep 753; [1845] EngR 349; 115 ER 284.
[59] Hort to Baker, printed in NZ Spectator 29 September 1858.
[60] Wellington Independent, 2 October 1858, letter by ‘Scrutator’.
[61] The principal candidates are Fitzherbert, or more likely, the two barristers William Fox and CDR Ward. Both sat as JPs in Baker’s trial. A collaborative effort should not be ruled out. Fox, who perhaps not coincidentally was the publisher of the Independent may be the favoured candidate. As is mentioned below, n 61, Fox was in a contemporary case to acknowledge authorship of material appearing without attribution in the Independent. JDS Mackenzie has made a cogent case that Fox had on other occasions published his own opinions in without attribution, see 1 (1967) NZJH 99. The Baker-ite forces later, unavailingly took steps to try to discover the identity of ‘Scrutator’, both by visiting the newspaper’s offices and also specifically asking C D R Ward, during the hearing in the Supreme Court, whether he was ‘Scrutator’. No response was forthcoming. See Wellington Independent 9 October 1858.
[62] See part 1 above.
[63] In evidence in the Supreme Court action in Christchurch, Baker was to admit he had often kissed the eldest Ms Schroder, a girl ‘in her sixteenth year’, while denying any indecent conduct toward Mary Schroder: Canterbury Standard 25 November 1858. The newspaper reported this question as following a denial of indecent conduct toward ‘any’ of the Misses Schroder; Gresson J, while admitting ‘any’ was in his notes, believed the plaintiff had merely denied indecency with Mary Schroder, and therefore considered the question of kissing the eldest sister should not have been asked.
[64] NZ Spectator 2 October 1858.
[65] Bowler v McKenzie & Muir 18 November 1858 NZNA CAHX CH 53/21 Minute Book Supreme Court 1852-1860, reported Lyttelton Times 20 November 1858. Fox, as counsel for the printers, informed the jury that he, as editor of the paper, had personally written the allegedly defamatory material.
[66] Wellington Independent 6 October 1858.
[67] Ibid.
[68] Wellington Independent 9 October 1858.
[69] Bunny v Judges of Supreme Court of New Zealand (1862) NZPCC 302, 303-304. Indeed the allegations against Bunny included a claim that, having been adjudged bankrupt in England he had emigrated to New Zealand without the knowledge of his creditors. Bunny had only been admitted to the New Zealand profession in 1858; Arthur Baker having provided an affidavit that Bunny was a ‘proper person to be admitted as an attorney’.
[70] NZ Spectator, 2 October 1858.
[71] NZ Spectator, 6 October 1858; letter by St Hill; the letter was re-published by the Wellington Independent, 9 October 1858.
[72] See the narrative included in the witty, and very hostile, letter by ‘Scrutator Wellington Independent 9 October 1858.
[73] Wellington Independent 13 October 1858, ‘Local Intelligence’.
[74] Wellington Independent 16 October 1858, letter by Baker.
[75] Ibid.
[76] Ibid.
[77] The only relevant item would appear to be in Nelson Examiner 15 September 1858.
[78] Hickson’s conduct might simply mean he preferred the JPs did not investigate the matter but, once it had been investigated, he found the charge proved.
[79] Wellington Independent 3 November 1858, letter by Baker.
[80] Wellington Independent 16 November 1858. Fox’s comments might be thought appropriate: ‘We really cannot indulge Mr Baker with any further opportunities for damaging his own cause. His letters are extremely well adapted to show the public how smart an attorney he would have made if circumstances had placed him in that condition in life; but they certainly are by no means calculated to impress anyone with an opinion of his innocence.’
[81] Minute Book Supreme Court 1852-1860, 26 October 1858 NZNA CAHX CH 53/21.
[82] Ibid 19 November 1858, NZNA CAHX CH 53/21.
[83] Ibid 20 and 22 November 1858, NZNA CAHX CH 53/21.
[84] Ibid 23 November 1858, NZNA CAHX CH 53/21.
[85] Ibid 24 November 1858, NZNA CAHX CH 53/21. His absence from illness may have been connected with the jurors’ request, recorded in the Court minutes, on the following day that they be permitted to sit on the opposite side of the courtroom, because of the ‘dilapidation of the jury box and the gusts of wind’.
[86] 2 December 1858.
[87] This seven day trial is unprecedented in the period – even a full-blown trial for murder by poisoning the following year took only three days; see the trial of Christina Gregg 5, 6 and 9 December 1859, reported Lyttelton Times 7 and 10 December 1859.
[88] The summing is extensively reported in the Lyttelton Times 1 November 1858 and Canterbury Standard 2 December 1858.
[89] Gresson’s summing up specifically referred to the social need for respect for, and adherence to, the law, see Lyttelton Times 1 November 1858. There is a significant legal distinction between cases such as this where litigants accepted the paramountcy of the law but sought to minimise the severity of breaches of it and those where litigants availed themselves of a legal right to ‘self-help’ remedies prior to seeking to bring a matter to court, and the even more defences sought to claim conduct was lawful. The common law allowed certain forms of ‘self-help’ remedies to parties wronged by others where the common law allowed an ‘extra-judicial or eccentrical’ remedy which was more speedy than can be had in the ordinary forms of justice, see James Stephen, Commentaries on the Laws of England (6th ed, 1868) vol 3, 353. For more recent discussions see Douglas Ivor Brandon et al, ‘Self-Help: Extra-Judicial Rights, Privileges and Remedies in Contemporary American Society’ (1984) 37 Vanderbilt LR 843; Celia Taylor, ‘Self-Help in Contract Law: An Exploration and Proposal’ (1998) 33 Wake Forest L Rev 839, 844; Jon K Wactor, ‘Self-Help: a Viable Remedy for Nuisance – A Guide for the Common Man’s Lawyer’ (1982) 24 Arizona LR 83, 87-89. On ‘self-help’ and the limits of use of the law in a more rural colonial setting see Susan Lewthwaite, ‘Violence, Law and Community in Rural Upper Canada’ in David Philips, Tina Loo and Susan Lewthwaite (eds), Essays in the History of Canadian Law (1994) vol 5, 333, 366-67. We must also distinguish mitigation and legal self-help cases from those where an individual sought to justify his or her extra-legal actions as morally correct and proper. In New Zealand such claims were sometimes met with scepticism, see the apparently hostile reaction to the claims of Sidney Stephen, the resident Supreme Court Judge in Dunedin 1850-52, that an assault on a man who Stephen alleged had slandered him was justified because Stephen could not ‘… wait for the slow and tardy processes of the law’, see A H McLintock, A History of Otago (1949) 262. Earlier generations of colonial judges had gone further, to the point of duelling, see J H Phillips, ‘Fetch Me My Rapier, Boy’ (1994) 18 Crim LJ 223, 224. Where the illegal conduct is undertaken by an organised group, acting with societal approval to enforce social norms which the law is not seen as adequately safeguarding, we have vigilantism. There is an interesting summary of the definitional argument as to vigilantism in Kelly Hine, ‘Vigilantism Revisited: An Economic Analysis of the Law of Extra-Judicial Self-Help or Why Can't Dick Shoot Henry for Stealing Jane’s Truck’ (1998) 47 AM U L Rev 1221, 1223-1226.
[90] Minute Book Supreme Court 1852-1860, 27 November 1858, NZNA CAHX CH 53/21.
[91] Ibid.
[92] Wellington Independent 1 December 1858, letter by Travers.
[93] Lyttleton Times 22 December 1858.
[94] Wellington Independent 1 December 1858.
[95] NZ Spectator 8 December 1858.
[96] Wellington Independent 11 December 1858. A last shot was fired by the Independent on 15 December 1858, noting there had been some criticism in Canterbury of the degree to which Gresson J’s summing up had favoured Baker.
[97] Lyttelton Times 13 March 1858. Compare also the equally brief reporting in the Lyttelton Times 2 December 1854 of the trial of William Dunford for assault with intent to violate a girl of 6.
[98] For an analysis of the development of the myth of frequent false complaint and consequent judicial approval of hostile cross examination of the complainant in sexual assault cases see Antony E Simpson ‘The “Blackmail Myth” and the Prosecution of Rape and its Attempt in 18th Century London’ (1986) 77 Journal of Criminal Law and Criminology 101. Most legal writing on cross-examination of complainants in criminal cases focuses on the position in the mid-20th century and the enactment of laws limiting (with very mixed success) cross-examination of the complainant in a rape case as to her prior sexual history. See for example Jocelyn Scutt, ‘Admissibility of Sexual History Evidence and Allegations in Rape Cases’ (1979) 53 ALJ 817; Aileen McColgan. ‘Common Law and the Relevance of Sexual History Evidence
’ (1996) 16 Ox JLS 275; Stephen Odgers. ‘Evidence of Sexual History in Sexual Offence Trials’ (1986) 11 Sydney LR 73; Harriett R Galvin, ‘Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade’ (1986) 70 Minn L Rev 763; T Brettel Dawson, ‘Sexual Assault Law and Past Sexual Conduct of the Primary Witness: The Construction of Relevance’ (1987) 2 Canadian J of Women and the Law 310. Of more assistance are studies of the operation of 19th century rape law, although these rarely consider lesser offences such as indecent assault. Valuable studies of the period include Constance Backhouse, Petticoats and Prejudice: Women and the Law in Nineteenth-Century Canada (1991) ch 3; Carolyn Conley, ‘Rape and Justice in Victorian England’ (1986) 29 Victorian Studies 523; Anna Clark, Women’s Silence, Men’s Violence: Sexual Assault in England 1717-1845 (1987); Constance Backhouse, ‘Nineteenth-century Canadian Rape Law 1800-92’ in David H Flaherty (ed), Essays in the History of Canadian Law (1983) vol 2, 200; Carolyn Strange, ‘Patriarchy Modified: The Criminal Prosecution of Rape in York County, Ontario, 1880-1930’ in David Philips, Tina Loo and Susan Lewthwaite (eds), Essays in the History of Canadian Law (1994) vol 5, 207 and Jim Phillips, ‘Women, Crime, and Criminal Justice in Early Halifax, 1750 -1800’ in David Philips, Tina Loo and Susan Lewthwaite (eds) Essays in the History of Canadian Law (1994) vol 5, 174.
[99] It is interesting that studies by Canadian authors indicate prosecutions for sexual offences were more likely to be undertaken, and prosecutions brought were more likely to succeed, where the complainant fitted the paradigm of domesticity, as where she was a young unmarried woman living with her father or was married: Constance Backhouse, ‘Nineteenth-century Canadian Rape Law 1800-92’ in David H Flaherty (ed), Essays in the History of Canadian Law (1983) vol 2, 224; Carolyn Strange, ‘Patriarchy Modified: The Criminal Prosecution of Rape in York County, Ontario, 1880 -1930’ in David Philips, Tina Loo and Susan Lewthwaite (eds), Essays in the History of Canadian Law (1994) vol 5, 229.
[100] For the law see above n 29.
[101] See part 6 above.
[102] NZ Spectator 2 October 1858.
[103] NZ Spectator, 6 October 1858; letter by St Hill; the letter was re-published by the Wellington Independent, 9 October 1858.
[104] NZ Spectator 6 October 1858, letter by St Hill.
[105] Wellington Independent 11 December 1858.
[106] Ibid quoting at length from Lyttelton Times 1 December 1858.
[107] Canterbury Standard 2 December 1858.
[108] The only recorded speech is that Henry Sewell moving the introduction of the Bill in the Legislative Council, see [1860] NZPD 557 15 August 1862.
[109] See [1860] NZPD 435 ff 4 September 1860; [1860] NZPD 754 25 October 1860; [1860] NZPD 778 30 October 1860.
[110] See [1861] NZPD 233.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUJlLegHist/2005/10.html