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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Wilson [1797] NSWKR 1; [1797] NSWSupC 1

vagrancy

Court of Criminal Judicature

Atkins J.A., 1 March 1797

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 1147B[1]  

[239] John Wilson, William Barr, John Moss, Isaac Cowden were brought before the court for that they being convicts and sentenced to hard labor for a certain time specified as incorrigible rogues and vagabonds, persons of evil dispositions and not having any visible means of honest subsistance did at various times but more particularly John Moss on or about the seventh of December last and John Wilson, John Barr and Isaac Cowden on or about the tenth of the last month February absent themselves from Sydney and Parramatta in the county aforesaid, wandering at large to the terror of all well disposed persons, to the evil example of all others in like cases offending and against the statute in that case made and provided and against the peace of our Sovereign Lord the King his Crown and Dignity.

            The prisoners on their arraignment severally pleaded not guilty.

John Taylor, being duly sworn, deposes that he is acquainted with the several prisoners at the barr. That John Moss, John Wilson and William Barr were met by him on the road at the back of Captain Townsend's farm. That he told Connor to stop back and that we would seize the man that had the musquet, which was John Wilson. That he did seize it, that he asked them where they came from, they answered that they came from the Southward and were going to Port Stephens.

John Wilson told him that he belonged to Mr Cummins and asked him to let him go, the deponent replied that they should all be brought in together and carried before the magistrate.

The deponent says that he did bring them in before Mr Balmain. The deponent further says that on Saturday last he met Isaac Cowden the prisoner about a mile on this side of Captain Townsend's farm. That the prisoner told him that he had been in the woods for those weeks but that he was now come to give himself up, and the deponent [240] brought him into Sydney and gave him up to the magistrate. The deponent further says that John Wilson one of the prisoners told him that the musquet in his possession belonged to Mr Kennedy who had lent it him.

            Question by Wilson ... Who gave you the lead?

            Answer. It was first in Wilson's possession but he handed it to Moss who gave it him.

            Nathaniel Franklin being duly sworn, deposes that Isaac Cowden the prisoner was a servant of his at his farm at Prospect. That he absented himself from his farm on the 11th of last month and that since that time he has never been at his farm and that he has seen him twice since in the cells.

            The prisoners being put on their defence Wilson says that before he went away he had done a week's work. That he borrowed a gun from Mr Kennedy with an intent to shoot some ducks at George's River. In going towards the river he fell in with John Moss and another person not here. That he asked them where they had been they replied that they had lost themselves among some rocks to the southward. That he told them they must go in prisoners with him. That on their coming in he fell in with Taylor, who secured them.

William Barr acknowledges the crime.

John Moss acknowledges the crime

Isaac Cowden says that as he was going into Rose Hill he met a man on the road that had a couple of bottles of liquor. That they sat down together and drank the two bottles out, and that afterwards he went into the woods.

            [241] John Wilson, guilty - transportation for seven years, to commence 23 March 1797.

            William Barr, guilty - transportation for seven years, to commence 22 July 1797.

            John Moss, guilty - transportation for seven years, to commense 13 April 1798.

            Isaac Cowden,             guilty - to receive 500 lashes on his bare back.

Richard Atkins

Judge Advocate.

Note

[1] This is one of the first of a number of records in the archives involving the crime of vagrancy. The offence usually applied to persons who were without visible means of support but had the ability to work. However, English laws derived from the sixteenth century generally punished the status of being a vagrant rather than the act itself, imposing severe penalties. By 1800 Governor Hunter enacted a general order that restricted movement in the colony by all free persons and convicts except as allowed by a magistrate's pass. In R. v. Williams, 1797, the court made much of the prisoner's association with the natives.

See Byrne, Criminal Law and Colonial Subject: New South Wales 1810-1830, 156-157, 161-163; Woods, A History of Criminal Law in New South Wales : The Colonial Period 1788-1900, 78.

Published by the Division of Law, Macquarie University