Macquarie very reluctantly consented to all these arrangements except with respect to Baxter, the third mate, "who appears to have taken all along so very prominent and sanguinary a part in the various enormities committed on board the Chapman," and whom he wished to send home a prisoner.[1]
The Judge-Advocate went into the whole matter once more. He thought this difference in opinion arose from the Governor's regarding everything which occurred on the whole voyage as one continuous act—"whereas it appears to me, that in legal consideration and principle—and your Excellency can be aware that I can know of 'Justice and Expediency'[2] in no other sense—the occurrences necessarily divide themselves …" and must be considered separately. Baxter, he thought, was not sanguinary, and his prominence was due simply to the fact that the convicts were his especial charge. "If," he added, "your Excellency 'is so decidedly of opinion that he should be sent home a prisoner,' I am not aware of any reason why your Excellency should hesitate to act upon it, for I have already suggested, that it remains a mere point of discretion in the committing magistrate, and that under all the circumstances I am not prepared to say that the commitment of any of the officers, and of course of Baxter, would under any circumstances induce any consequences upon the magistrates to suit or indictment, and if not on a magistrate, a fortiori, I consider not on your Excellency as Governor—but such a step cannot consistently surely be taken by a magistrate who views the whole case in a light which reflects nothing of the wilful, malicious murderer, who breathes in malice prepense and moves not in apprehension and alarm, but in atrociousness, consciousness and purpose." Wylde could not conclude without giving Macquarie a short lesson, in somewhat involved phrases, on the correct judicial attitude. Referring to a passage in the Governor's letter, he said: "With respect to your Excellency's observation, that your opinion on this case has not been formed upon 'the influence of Mr. Justice Field's or any other person's opinion on the subject, however much I[3] may and do respect that gentleman's high legal
