The Trial of William Pearson

SUPREME COURT

CROWN SIDE
(Before his Honor the Resident Judge)

Monday, 15th October, 1849.

The criminal sittings for the month of October commenced this morning. JURY:—Messrs. J[ohn]. P[inney]. Bear, (foreman [stock and station agent]), Henry Bignell [taxidermist], Thomas Boyd [manager of the Union Bank, and formerly member of the Legislative Council for Port Phillip], John Brock [freeholder, River Plenty], Philip Bergin, P. K. Ball, S[olomon]. Benjamin [freeholder, Williams Town, burgess for Lonsdale Ward], A[Alexander]. A[irth]. Broadfoot [freeholder, River Plenty, burgess for Lonsdale Ward], E[rskine?]. Banks, James Brandon [a catholic], D[avid]. Best [cabinetmaker and sometime special constable], J. W. Bell [auctioneer].

MISDEMEANOUR

William Pearson, of Gipps Land, Gentleman, was charged with the misdemeanour of having on 9th March last, assaulted Mr. Francis Desailly.

The information contained two counts, alleging two assaults, on the same day.

Mr. [James] Croke stated the circumstances, and called Mr. Francis Desailly, who deposed—

I reside in Gipps Land; I have two brothers, George and Lewis; my brother left the colony the latter end of July; the defendant also lived at Gipps Land. On 9th March there was a race meeting at the Green Wattle Hill, Gipps Land; William Pearson was there on that day; my brother was riding a hurdle race, and the defendant also; when defendant came to the second leap, his horse baulked; my brother was behind, and I was following them inside the course; Mr. Pearson's horse came in contact with mine inside the course and I came off in the collision; Mr. Pearson then struck me with a whip, called me a black-leg [i.e. a turf swindler], and other names, but there was so much swearing I cannot repeat the words; after the race was over, I went to the stand, and Mr. Pearson in the presence of the people, then said, “walk this way gentlemen, I have horsewhipped Mr. Desailly, and I intend to do it again,” and he then struck me with his whip, adding that was not the satisfaction he wanted, he wanted other satisfaction, and that he would have; I gave no provocation for this second attack; I had not spoken to him that day at all; nearly a month elapsed before I laid an information against him.

Mr. Croke proposed asking the reason of this delay, but His Honor thought they had nothing to do with that.

Cross-examined by Mr. [Redmond] Barry, (who appeared for the defendant.)

The second leap is not a quarter of a mile from the stand. I was riding in a contrary direction to the defendant when we came together. Nearly a quarter of an hour elapsed between the first and second assault. I can’t recollect how long Mr. Pearson’s horse was detained by the collision; he was completely thrown out of the race by it and his horse did not go on. I think I tried to return some of the blows; I was close to him and collared him; I was looking at my brother at the time of the collision, about thirty or forty yards from the leap. I am not positive whether both horses came down; I was riding at a hard gallop and did not see Mr. Pearson’s horse coming. I was relating the occurrence to my brother at the stand when Mr. Pearson came up. I can’t recollect what I said of Mr. Pearson; I don’t think I used any abusive epithet; I was much excited, I will not swear I did not use such an expression as “that blackguard Pearson,” but I do not think he was close enough to hear what I said. I returned the blow; I think I knocked him down, we were both down together. Mr. Pearson used a riding whip; not a heavy one; the blow was not severe; I cannot say that more than one blow was struck before I collared bim. I had an interest in the horse my brother was riding; it was a horse from the Fulham station, but I did not know it at the time.

Re-examined by Mr. Croke—

I certainly did not come intentionally into contact with Mr. Pearson.

By a Juror—

I think he struck me more than once on the first occasion; I was rather stunned with the fall. I can’t tell whether he would have won the race but for the collision. My brother did not win the race; he was last.

Mr. Frederick Taylor, of Gipps Land, was at the stand on the occurrence of the second assault; he heard the defendant say he had horse-whipped one d——d scoundrel in the shape of a gentleman, and he was going to do it again, and threatened to serve witness in the same manner; he did not witness the assault.

W. K. Dawson, a surveyor at Gipps Land, was present, and saw the defendant strike Mr. Desailly two or three times; witness heard Mr. Pearson say—“Walk this way, gentlemen, walk this way; I have horsewhipped Mr. Desailly once, and I call you to witness I am going to do it again;” he then struck him.

It appeared that in the depositions the witness was described as a surgeon, and Mr. Barry asked, amidst laughter, whether he was present to dress the wounds of Mr. Desailly. Mr. Croke replied, that witness was only there for the purpose of surveying him (laughter.)

Mr. Barry supposed when Mr. Pearson asked the gentleman to “walk this way,” witness went to see the fun.

Witness—Somebody responded “blackguards stop behind,” so I walked forward with the rest. (Laughter.)

Mr. Barry—What did Mr. Desailly do when Mr. Pearson struck him?

Witness—Why he turned to and pitched into him (renewed laughter.)

Mr. Barry—And who got the best of it, to use a colonial expression? [But cfr. OED: best, a. and adv., III. phrases, 9.]

Witness—I don't think either of them got the best of it (laughter.)

This closed the case for the Crown, and being called upon to elect upon which assault he would go, Mr. Croke elected the second.

Mr. Barry said, the names of other witnesses appeared on the list, and he wished the Crown Prosecutor to call some particular one. Mr. Croke declined, and Mr. Barry appealed to the Judge to decide whether the Crown was not bound to call the witness.

His Honor decided that if Mr. Barry wanted to examine the witness, he must call him and make him his own witness. He observed that the same question had arisen at Adelaide where they were all in confusion, and did not appear to know the practice, which was, however, determined in a case 3, Carrington and Curle, 510, in which Baron Alderson ruled that the prosecutor was not bound to call all the witnesses named, butshould have them in attendance, so that the prisoner might not be misled. The only sensible rule was they must be called by the party who wanted their evidence, and he must make them his own witnesses.

Mr. Barry, in addressing the jury for the defendant, remarked that the trumpery case might much better have been disposed of before two Magistrates, instead of occupying the time and attention of that Court. He contended that, in the first assault Mr. Desailly was the aggressor, having exhibited an unpardonable degree of negligence and carelessness, which not only extenuated the conduct of the defendant, but amounted to a positive excuse and justification. Mr. Barry contended that although two assaults were charged, they were, in fact, one and the same assault, the second being only a continuation of what, in the first instance, was self-defence, provoked by the language of Mr. Desailly. He submitted that Mr. Desailly, instead of coming to that Court to complain, ought to have apologised to Mr. Pearson for his improper conduct, in having acted in so unsportsmanlike and careless a manner.

His Honor said the only question for the Jury was whether, in point of law, an assault had been made out. His Honor had no doubt of that fact, and he expressed his opinion that the two assaults proved were separate and distinct offences, though forming part of one transaction.

The jury, after a short conference, returned a verdict of guilty on the second count.

His Honor enquired whether Mr. Barry had any affidavits in mitigation of punishment.

Mr. Barry relied upon the depositions for the prosecution; eleven witnesses had been examined, but the strongest case against the defendant was that made out by Mr. Desailly himself.

His Honor concluded a long and severe lecture to the defendant by inflicting a fine of £50, ordering him to enter into his own recognizances of £10 to keep the peace for twelve months towards Mr. Desailly, and to be imprisoned until the fine be paid.

Mr. Pearson paid the fine at once, and entered into the recognizances.

—Argus (Melbourne), Tuesday, October 16, 1849, p. 2.

Francis William Wisdom Desailly and his brother George gave up their lease on the Fulham run and followed the gold rush to California in 1849. Evidently they did well, and decided to return to Victoria in 1850, though not to Gippsland. Instead the Desaillys took up Coree station in the Riverina (119,000 acres) and Gunningrah in the Monaro. By 1865 the Desaillys held forty stations (a total of 1,118,000 acres), and were prominent in the Riverine Association which for a time unsuccessfully sought separation from New South Wales. At length, despite enormous efforts at water conservation, irrigation, and dam-building, the Desaillys were defeated by severe drought and suffered foreclosure in 1869.

William Pearson was unlucky to be convicted. In the early 1840s at least one of the jurors, A. A. Broadfoot, had fought a duel with Skene Craig—at the conclusion of which the parties sat down with their seconds and enjoyed a jovial al fresco champagne breakfast on the field of honour. William’s feisty barrister, the future Judge Redmond Barry also fought at least two duels (one of which in 1841 was against Peter Snodgrass). Even so, by the late 1840s Sydney put considerable pressure on the superintendent and the courts to impose a greater measure of civil authority on the rapidly growing Port Phillip district, and it seems that by 1849 what had once been good for the goose was no longer good for the gander. William paid a modest price, though fortunately for him later memories proved either short or highly selective. Within twenty years he was sitting comfortably for Gippsland in the Legislative Assembly of Victoria.

Thrashing neighbours

If any awkwardness arose from great great-grandfather William Pearson’s uneasy cohabitation of a sizeable chunk of East Gippsland alongside Captain John Michael Loughnan of Emu Vale, at least the failed litigant and non-dueling Vandiemonian was farther distant at Lindenow than Francis Desailly, whom William thrashed on March 9, 1849, at a hurdle race meeting at Green Wattle Hill. According to the formal announcement of the flormal division of leases of crown land in the Port Phillip Government Gazette, which was reprinted verbatim in the Argus (Melbourne) on August 27, 1848 (p. 4), Mr. Desailly’s “hut” was one of the officially defining co-ordinates of Kilmany Park:

No. 36. Helen Pearson, (now W[illia]m. Pearson) Name of run—Kilmany Park. Estimated Area—12,800 acres. Estimated grazing capabilities— 1200 head of cattle. [Bounded] on the south by the La Trobe river, on the west by a line from the old crossing place on the La Trobe river to that part of the road from the “old crossing” place which is two miles distant in a straight line; on the north by a line from that point on the said road to a marked tree on a morass a few hundred yards below Mr Desailly’s hut, and from thence to the nearest point of the Thomson or Maconochie river; on the east by the Thomson and La Trobe rivers to their junction. N.B.—This run has been transferred with the sanction of the government to Mr. William Pearson, in whose name the lease will accordingly be prepared.

Whether or not William felt justified in thrashing Francis Desailly over a now-forgotten dispute over this common boundary, or some other bad blood, clearly William’s conviction—for which Angus McMillan paid surety—went a certain distance toward clearing the air. We know of no other subsequent tensions along that margin of Kilmany Park, though the basic principle of genetic inheritance would suggest that a measure of distrust almost certainly lingered in perpetuity.

Ugly Horsewhipping Episode in East Gippsland

Thanks to Australian Newspapers beta, I have now tracked down the pertinent details of our pioneering great great-grandfather William Pearson’s several brushes with the colonial justice system. The first of these related to an almost certainly duplicitous and illegal “challenge” (i.e. to a duel) by Messrs. McAlister and Pearson against a certain John Michael Loughnan of Hobart Town. It seems the matter first arose when Mr. Loughnan formally complained to the colonial secretary in Sydney that Mr. McAlister was somehow responsible for some interference with his affairs in Gippsland by Mr. Tyers, the Commissioner for Crown Lands. That interference evidently led to the “curtailment” of Mr. Loughnan’s cattle run at Lindenow, of which he was for the time being absentee landlord—the same spot where William Pearson first settled his cattle in 1841 (for a matter of only a few months), and this may account for William’s involvement. Getting wind of the allegation, Mr. McAlister hotly denied being behind Tyers’ infraction, and the matter was settled to the satisfaction of all when McAlister paid a call on Loughnan in Hobart Town. However, McAlister and Pearson raised the same issue with Mr. Loughnan a second time, this time when all three were en poste in East Gippsland, and with some menace. According to the Courier (Hobart) (March 27, 1847, p. 2):

Allusion having been made in a former number of the Courier to a case pending in the Supreme Court, Melbourne, in which J. M. Loughnan, Esq., was the prosecutor, we now lay before our readers the leading features of this singular case:— Mr. Loughnan, who is a merchant of Hobart Town, had been carrying on some correspondence with the Sydney Government on the subject of some proceedings taken by Mr. Commissioner Tyers against Mr. Taylor, and the curtailment of Mr. Loughnan’s run at Lindenow. In the course of that correspondence Mr. Loughnan forwarded a letter to the Colonial Secretary, which contained a charge against the Commissioner for Crown Lands of being influenced by Mr. M’Alister. Some eight months ago Mr. M’Alister called upon Mr. Loughnan in Hobart Town, and complained of the letter, denying that he had influenced the Commissioner, when Mr. Loughnan voluntarily and unreservedly expressed his regret at his having been misinformed, and at once, and with Mr. M’Alister’s consent, proposed to withdraw that portion of the letter referring to Mr. M’Alister; copies of which were forwarded to the Colonial Secretary; to a gentleman in Sydney, to whom had been sent a copy of the correspondence; and a third to Gipps’s Land. By this act on the part of Mr. Loughnan all that part of his communication of 1st February, 1845, referring to Mr. M’Alister, was virtually expunged, and Mr. M’Alister finally closed the matter, thus showing that he considered the injury atoned for. Mr. Loughnan was residing in Gipps’s Land on the 23rd July last, and met Mr. M’Alister, who again introduced the subject, although Mr. Loughnan had considered every atonement tor the supposed injury had been made. Mr. M’Alister terminated the interview abruptly, and on the same evening a note was received by Mr. Loughnan, requesting an explanation. The note was delivered by Mr. Pearson, who, having stated that Mr. M’Alister had not until lately seen the letter containing the observations upon his conduct, a fact which Mr. Loughnan, after his interview with Mr. M’Alister in Hobart Town, thought morally impossible, demanded an explanation, and ample apology. Mr. Loughnan, by note, declined to enter again upon the re-discussion of the affair. His note was answered by Mr. Pearson, who intimated that any communication held with Mr. M’Alister must be through him, repeating his former demands. Other notes of a similar nature passed between them. Subsequently, Mr. M’Alister posted Mr. Loughnan in the usual manner. Mr. Loughnan then published a statement of the facts, which was met by his opponent by a counter-statement, from which we have condensed this account, and ultimately Mr. M’Alister and Mr. Pearson were put upon their trial at the Supreme Court, Melbourne; the former for sending, and the latter for taking a challenge to Mr. Loughnan. When the case came on for hearing before His Honor Mr. Justice A’Beckett, the challenge was regarded as inadmissible, having been written by Mr. Pearson; the statements of facts published by both parties, and a document in which Mr. M’Alister expressed his approval of all Mr. Pearson had done in the matter was also blocked out, and the placard being produced, by which Mr. Loughnan was posted, was refused on the question of identity, and a verdict was consequently returned for the defendant. This abrupt termination of the case prevented its merits being gone into; but the fact of Mr. Loughnan having made all the reparation in his power at the time the matter was first brought under his notice by Mr. M’Alister, completely exonerates him from blame; and there appears to be an unnecessary exacerbation of gentlemanly feeling in calling upon Mr. Loughnan for a second explanation at such a distant period of time.

The placard that was produced in evidence, and rejected, appears to have been some kind of accusation concocted by McAlister and Pearson the purpose of which was to broadcast as publicly and as damagingly as possible their grievances against Loughnan. Signs nailed to trees were the principal method of distributing news and information in Gippsland during the 1840s. 

Unfortunately we do not know why McAlister and Pearson were determined to pursue Loughnan so forcefully, but presumably the friction was at least partly sectarian in nature. It also seems likely that the bad blood originated with some local business arrangement turned sour, because in the shipping news for the port of Hobart Town (Courier, Wednesday, December 31, 1845, p. 2), we find the following note: “Arrived, the schooner Agenoria, 106 tons…from Port Albert 24th instant, with cattle—passengers William Pearson, M. Loughnan.”

Mr. Pearson was not quite as lucky two years later, when—possibly emboldened by his success with McAlister against Loughnan, and the abrupt and helpful findings of Mr. Justice à Beckett—our great great grandfather was convicted of assault in an ugly horsewhipping episode. Although widely reported (in this instance by the Maitland Mercury and Hunter River General Advertiser, on Saturday, October 27, 1849, p. 2), the incident was ultimately forgotten, and in no way impeded William Pearson’s subsequent election to represent Gippsland first in the Legislative Assembly and later in the Legislative Council of Victoria:

Colonial News
PORT PHILLIP.
We have received Port Phillip papers to the 16th October.
In the crown sittings of the Supreme Court Mr. William Pearson had been convicted of assaulting Mr. Francis Desailly. Both parties resided in Gipps Land, and at some races held in the district Mr. Pearson was riding a horse in a hurdle race when his horse got off the course and came in contact with Mr. Desailly’s horse, Mr. Desailly being at the time riding along near the course, and watching his brother, who was riding a horse in the race; by the collision Mr. Desailly was thrown off, and Mr. Pearson immediately laid into him with his whip, Mr. Desailly striking him in return. Afterwards, at the stand, Mr. Desailly was telling his brother of the affair, when Mr. Pearson came up, and called aloud to the parties present that he had already flogged Mr. Desailly, and was now going to do so again, and he forthwith laid into him once more with the horse whip. Mr. Pearson was fined £50, and ordered to enter into recognisances to keep the peace, which was done, and the fine paid (my italics).