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

R. v. Powell [1799] NSWKR 7; [1799] NSWSupC 7

murder - Aborigines, victims of crime - evidence, by approver

Court of Criminal Judicature

Dore J.A., 15-16 October 1799

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., X905, pp 323, 329-362 (and see pages 298-320)[1]

[329] The King v. Powell, Freebody, Metcalf, Timms and Butler for wantonly killing two native men of this territory.

            The prisoners being put to the bar.

            Thomas Rickerby, being sworn, deposeth that on the 19th day of September last Mary Archer came to him and asked him [330] if he had heard of two native boys having been killed. He answered he had not, when she replied that such had been killed the night before, and enquiring of her if she knew who had killed them she answered yes, that John Pearson had told her that Edward Powell, the constable, Simon Freebody, James Metcalfe, William Butler, William Timms, Thomas Sanburn and Bishop Thompson were all together when they were killed, but that Sanburn, Thompson and Pearson had nothing to do with the murder. That in consequence of this information, the witness, being Chief Constable at the Hawkesbury, went up to Powell's with two more constables with him namely David Browne and John Soare. That Powell was from home, but in his house were Metcalf, Thompson and (he believes Timms) and Sanburn making enquiry of them if they knew any thing about the two boys being murdered. They made answer one and all that that knew nothing about it. But that Sanburn said they were as decently buried as any of the white people that were killed by the natives. The witness asked said Sanburn if he would shew him where they were buried, who told him no. That on leaving Powell's house he met with Powell of whom he made the like enquiry about the murder, who said he knew nothing about it, he had killed none of them nor did he know who had. That Powell refused to inform the witness where the said bodies were buried but on a search he discovered and with assistance dug them up and left the bodies laying on the ground while he went up to the Commanding Officer at the Hawkesbury, Lieutenant Hobby, who went with Mr Braithwaite and the witness, and the bodies were examined when the hands of both the said boys were tied behind them and a wound through the body of the smallest of them as if given by a cutlass and second wound on or about the hip as if given also by a cutlass. The other [331] appeared to have been shot through the body by a musket ball and that one side of his head and down his face appeared to have been much cut by a cutlass. Powell the constable being sent for he was examined and in the first instance denied knowing any thing of the matter but on being further interrogated said Powell informed that he thought it was the Governor's orders to kill the natives where they found them. That Lieutenant Hobby then told said Powell he had given no such orders nor did he believe the Governor had given any to that effect. Powell then answered that it was done at the request of Sarah Hodgskinson the widow of one Hodgskin who had been killed by the natives about three weeks before that time. That the witness went to the said widow and asked if it had been her request who answered it was. That the bodies were then buried and five persons taken into custody hereupon, when Powell one of the prisoners asked the witness how many he had apprehended and on being told replied there were eight of them and they would all fare alike.

            Questions proposed by the court to this witness. You are Chief Constable at the Hawkesbury? Yes.

            Have you known the natives to have been troublesome in committing depredations and murders about the Hawkesbury? Yes he has heard of such things having been done.

            Have you not known that after such outrages parties have been sent in pursuit of them? Yes.

            Have not the parties so sent out often killed some of the natives they were sent in pursuit of? He has understood they have.

            [332] Have you never known the natives to have been seized after having committed robberies or perpetrated murder and sent to Head Quarters? Yes. I remember one Charles who was so secured.

            Do you know what was done with that native? Set at liberty. I understand so.

            Do you know for what offence that native was committed? Yes. I heard for spearing one Goodall.

            Do you know from your own knowledge or only from common report that Charles was the native who speared Goodall? From common report.

            Did you not hear from report likewise that it was not him? Yes. I heard it was not him but that he was in company with those who did it.

            Did you ever hear of the two natives in question having been troublesome in parties committing depredations or murders? Has heard the youngest boy was detected in stealing corn and was shot at and wounded, and that the eldest was he heard concerned about killing a man upon the race ground but that he believes the said two natives have since lived in habits of friendly intercourse with the settlers.

            [333] Do you not know that after the natives have committed depredations and even murders that they have been received into the houses of the settlers? Yes they have.

            Isabella Ramsay being duly sworn deposeth that about the time the above natives were killed, she believes the evening of the same day, the three natives came into her dwelling house at the Hawkesbury with the musket of Thomas Hodskinson who had been lately killed by the natives in the woods, and delivered up said musket. That Freebody and another person then came into the house of the witness and questioned the natives as to what manner said Hodgskinson had been killed. They in the best manner they could explained he was killed for the sake of the victuals he had with him and that there were three of them in the killing of him. That the night preceeding the murder three other natives slept with him. That they passed part of the next day together and toward the evening made a fire and eat, after which the said Hodgskinson and Wimbolt laid them down under the covering of blankets. That the said three other natives afterwards secured their two muskets and put said Hodgskinson and Wimbolt to death with their waddys. That said Freebody and his companion having left the house, the former shortly after returned accompanied by Powell. That soon after the biggest of the natives got up for a drink of water, to whom Powell said you shall have no water here, you have killed a good fellow and you shall not live long. John Pearson a neighbour then came in, when the same native got up a second time for a drink of water, when Freebody gave him some water, and Powell said they should be killed for they have killed a worthy good fellow and it will be a pity to see them go away alive. Butler soon after came in to the house of the witness with a bright cutlass and asked if the natives were there, saying what sentence shall we pass on these blackfellows. I will pass sentence myself. They shall be hanged. Metcalf came into the house of witness [334] with several others, who said we will not kill them, we will carry them out as the means of finding the natives who killed Hodgskinson. Powell then enquired of the witness if she had any ropes, being answered no, said that it was pity they should escape as he understood it was the Governor's and Commanding Officers' orders that the natives should be killed whenever they could be met. Said Powell then directed Butler to go to his house and bring some rope. Who went and returned with one rope saying he could find no more there. When Powell himself went and brought in two other ropes, and the hands of all the three of the natives were tied behind them, and all the people who had by this time assembled at her house in great numbers to look out the said natives. And in about a quarter of an hour after they had left the house the witness heard the report of two muskets being fired.

            Question from the prisoners to this witness. Relate to the court in what manner the natives were armed when they came to your house.

            They had each got a spear, a womarroo and a waddy and Hodgskinson's firelock. That one of them having a coat Metcalf's which being pulled off a tomahawk was thereunder concealed up his arm.

            Question from prisoner Metcalf. Did I not tell you when I brought the natives in with Hodgskinson's piece that the said three natives had acknowledged sleeping with Hodgskinson in the woods the night before he was killed? I recollect something of your saying that they had slept with him either the night he was killed or the night before but she was so much frightened that she cannot recollect.

            Did not Jonas Archer inform you that the eldest of the deceased natives was concerned in the murder of the man on the race ground? Yes I have heard him and several others say the same.

            [335] Question by Powell. When I came in and found you alone with the natives in your house did you not tell me that you was glad to see me for you was in fear for your life? Yes, I was glad to see you come in with the other man with you, for I was in fear for myself and children.

            Why did you stand so much in fear of the natives, have you ever sustained any loss of injury by them? We have been robbed by the natives but from their general inhuman behavior she was the more afraid of them, and from hearing of the depredations they frequently committed.

            David Browne being sworn, deposeth to have seen the bodies of the said deceased natives which appeared to him to have been murdered and he was ordered to take care of them until they were buried. That the witness lives at the Hawkesbury and the natives are a very dangerous set of people and not to be trusted and after a man gives them all he has got they would not scruple to kill him. That about two years ago he was bringing water for his stock when one of the natives threw a spear at him which struck him in the throat. That in pursuing said native three others came up which rendered it necessary for the witness to return to his home. That the next day a settler was killed as he was informed. He the witness also knows of many robberies and murders by the natives committed.

            Thomas Lambourne being sworn, deposeth that about three weeks ago he was at work on the farm of Edward Powell when James Metcalf one of the prisoners came to him with a firelock on his shoulder and told him he had been alarmed by three natives on Forrester's farm where he was working, which natives had a [336] musket with them, who delivered the musket to said Metcalf who carried the same home. That the witness then went to Forrester's house, the dwelling before described of Isabella Ramsay where the witness found three natives, of whom he asked if there were not more of them, who answered there was another called Major Worgan out upon the ground. That the witness went down to him and stopped with him about an hour, and returned to Forrester's house about nine or ten in the evening when the people were coming out of said house with three natives. That hearing a caution of "take care or you'll be shot", the witness left them. And standing behind a tree for his own security he heard the report of two muskets being fired. That he went up to the place from whence said report came he saw two natives laying dead, being two of the three he had before seen in the house as abovesaid. That the people talked about burying them, but that he then departed and went about his business.

            Question by the prisoner Metcalf. Did not Jonas Archer tell you that the eldest native killed was concerned in the murder of the man upon the race ground? Yes he did.

            By the court. What number of persons do you think were assembled on the above occasion when you saw the two natives dead? There were more than the prisoners, there might be ten. I cannot speak certain.

            [337] Questions by the court.             Name any of those that were then present. Answer. I cannot.

            Where you not present at the time the two murdered natives were buried? No I was not.

            When you went to the house of Ramsay and saw the three natives, did you go alone? Yes I did.

            This witness having grossly prevaricated in his evidence before the court and having departed from the examination to which he was sworn before the committing magistrates whereby he connived at being admitted King's evidence, and verifying no part thereof the court do order the said Thomas Lambourne to be taken into custody and stand committed for the next criminal court to answer such charges as shall then be preferred against him.

            John Pearson being sworn deposeth that last Wednesday was a month he called in at the house of Isabella Ramsay where he found three natives of whom he made enquiry who had killed Hodgskinson, who informed the witness that Terribandy, Major White and others whose names he recollects not (that Terribandy is the reputed brother of the eldest native that was killed) and one of the said natives on being asked by the witness what they did there said they had brought in the gun of the deceased Hodgskinson and had given it up to Metcalf. That Freebody and Powell then came in when the woman expressed herself glad they had come as she was very much [338] frightened at the natives being there. That the woman and her children were all at supper at this time when Timms, Butler and Metcalf with Thompson and he believes Lambourne came to said house. That in the hearing of the witness Butler (who he thinks had a cutlass in his hand) called out "where are these natives, leave them to me I'll soon settle them". Butler then asked for rope, but none being in the house Powell said if you will go over the way you will find two ropes upon the dogs. Butler then went out and returned with some ropes. The witness went out to cut some weed and on his return into the house saw the three natives with their hands tied behind them and some rope round their necks. That the said natives were then taken out by several persons, namely Timms, Butler, Metcalf, Freebody, Powell and Thompson. That the witness remained in the house where he was accustomed to sleep and to keep the woman company. That about a quarter of an hour afterwards he heard the report of two guns fired, soon after which a person he believes to have been Timms returned to the house and made enquiry for a spade with which he went away. That the witness retired to rest immediately afterwards as also did the woman and he heard no more of them. The witness further deposes that one of the said natives in the pulling off a coat dropt a tomahawk which had been secreted in the sleeve there up his arm.

            At 3 o'clock the court adjourned until tomorrow morning at ten in the forenoon.

            [339] Wednesday 16th October 1799. The court met at 10 o'clock pursuant to adjournment.

Rex versus Powell and others continued.

Lieutenant Thomas Hobby, New South Wales Corps, being duly sworn deposeth that he was Commanding Officer at the Hawkesbury when Thomas Rickerby, Chief Constable there, applied to him respecting a murder committed on the body of two natives, requesting that the witness would go with him to view the bodies which he accordingly did, and in the way to the place where they were the witness met with Mr Robert Braithwaite who he asked to accompany him and they proceeded together with said Rickerby, and viewed the bodies of two male natives, on the younger of which they discovered one wound near the left breast, and another in or about his back which appeared to the witness to have been wounds made by a cutlass. On the other native near the jaw, the head was nearly severed from the body. That the hands of both said natives were tied behind on the back of each of them.

            The witness sent for Powell, one of the prisoners, and examined him respecting the said murders who denied for some time any knowledge thereof, but said Powell acknowledged he was present but did not kill the said natives. That Metcalf was also questioned by the witness who answered him to the like effect as Powell had done. That on the return home of the witness, he met Freebody, another of the prisoners, who he also examined but does not recollect particularly what he said. The witness further deposeth that Powell told him that he understood it was the Commanding Officer's orders, also the Governor's, that all the natives should be killed. The witness replied he had never given such orders, nor did he believe the Governor had given any to that effect, and that Powell said it was done at the instigation of the widow Hodgskinson.

            [340] Question by Powell. What orders did you give to a party of soldiers who went out to bury the body of Thomas Hodgskinson who had been killed by the natives?

            My orders to the soldiers were to go out with the men who were going out to bury the bodies of Hodgskinson and Wimbolt (who were murdered by the natives about two months since). "That if they fell in with any natives on the road either going or returning to fire in upon them."

            Question by the court. What were your reasons for giving such orders and by what authority did you give them?

            Answer. About two months since or thereabouts I was informed by different people that it was the intention of the natives to come down in numbers from the Blue Mountains to the Hawkesbury and to murder some of the white people and particularly some of the soldiers. That a day or two after receiving this information one Smallsalts came to the witness and informed him that on the day before he had been attacked by the natives on the road between Parramatta and the Hawkesbury, and that had he not been armed with a loaded musket and a brace of pistols he should have [341] been murdered as the natives hove one or two spears at him. The witness then came down to Sydney and waited on the Governor making him acquainted with these circumstances. That the day following Andrew Thompson, a constable from the Hawkesbury, came down to Sydney and informed the witness that Serjeant Goodall, a Marine settler on the road between Parramatta and the Hawkesbury, who being at work on his own grounds was attacked by several natives and dreadfully wounded inasmuch that he could not be expected to live. The witness again waited on the Governor with this information who appeared much displeased at the conduct of the natives. The witness, who had been subpoenaed down to Sydney on a trial, then observed to the Governor that the sooner he returned to the Hawkesbury he thought the better. The Governor was of the same opinion. When the witness asked the Governor on what was best to be done if the natives continued to commit such enormities, who answered that something must be done. On which the witness signified to the Governor his intention that if the natives should still continue their violent outrages of sending out a party of the military to kill five or six of them wherever they were to be found. Whereupon the witness received the Governor's directions to act discretionally against the natives and he left it entirely to the witness. That the next morning he left Sydney and returned to the Hawkesbury where he arrived on the second day. About 10 o'clock on the evening of the day of my arrival there, Corporal Farrell called upon him with the information that he knew where to take the natives that had wounded Serjeant Goodall, who was then reported to be dead. The witness then ordered said Corporal to take a soldier with him and go in pursuit of them immediately, and desired the natives might not be fired upon unless they made resistance, in which case to bring them in dead or alive or words to that effect. The next morning said Corporal [342] returned bringing with him a native called Charley, which native the witness sent down under a guard to the Governor. On the return of said guard the Corporal and one of the private soldiers, namely Henry Lambe, came to the witness and informed him that the said native was according to orders taken before the Governor, who expressed himself in the hearing of the guard of soldiers that he could not take upon himself to punish the native in cool blood but that the Commanding Officer at the Hawkesbury should have punished him upon the spot where he was taken.

            By the court. Do you know that the native you ordered to be sent into Sydney was concerned in the wounding of Goodall?

            I received information from Corporal Farrell that said native was concerned. That I then went to the native who denied wounding Goodall, but that he was present and offered to take me or any other person as I would send to the native, who did, known by the appellation Major White, which I declined from supposing that this offer was made only to afford him an opportunity to make his escape.

            Did the settlers make any representation to you on the discharge of the said Charley the native?

            Yes, many of them said they were not safe in their houses, neither did they consider the crops secure upon their grounds, and that said native was a great savage and had been concerned in murdering a person on the race ground and supposed to have been concerned in other murders.

            [343] Question. When you sent a party of soldiers out in pursuit of the natives were they accompanied by settlers or any other description of persons? Yes they were and I believe by several.

            Did you, when you gave orders to the party to go out and shoot any of the natives they should meet with, consider these orders extending to the settlers or others that accompanied the party? Yes I did upon that excursion only.

            Are you positive that your orders were so explicit as that the whole party understood they were only to attack the natives whilst on that excursion? The orders I delivered to the Serjeant were, but it's possible they might be misunderstood.

            Do you know that any of the prisoners now arraigned were present on the above party? I do not positively know, but have reason to suppose they were from a remark made to me by Metcalf that had I seen the bodies of Hodgskinson and Wimbolt that I should have thought nothing of the natives being put to death.

            You mention a resolution of the natives to come down in numbers and kill several white people, particularly soldiers. Have you any knowledge why they formed such a resolution? Yes. I have heard it was in consequence of a native woman and child being put to death by a soldier called Cooper.

            Did you hear by report or do you know that said Cooper was the person who put said woman and child to death? [344] Answer. I heard it from report by Mr Braithwaite.

            Question. Do you know that any violence has ever been offered to the natives or injury done them by the white men, without previous violence committed by the natives upon the white people? No, I do not know of any violence committed on the natives at the Hawkesbury or elsewhere without provocation being given.

            Since you have resided at the Hawkesbury, pray how many white people have been killed by the natives? Two killed, one wounded so as to be left for dead, one attacked and repeated thefts.

            How many natives have been killed by white people? Two since my command at the Hawkesbury, viz. two months.

            Robert Braithwaite gentleman being sworn deposeth that on or about the 20th September last, he accompanied Lieutenant Thomas Hobby and Thomas Rickerby to the bodies of two male natives who had been put to death. That the hands of both were tied behind them. The wounds upon the younger of them were one about the right loin and another about the left breast, which appeared to the witness to have been given by a cutlass. And upon the other of them a large wound appeared about his chin and the appearance of a musket ball wound about his right breast. That being informed Powell one of the prisoners was concerned in killing said natives, the witness examined him who denied any knowledge thereof, but on being further pressed by the witness who had killed the boy, Powell answered it was so dark he could not see the person. Being asked the like question as to the death of the other native said Powell's reply was the same in effect to the former. The witness observing that it was a very cruel way of killing them even had they been detected in committing [345] any act of depredation. Powell replied had the witness seen the bodies of Hodgskinson and Wimbolt how they had been murdered by the natives, that he would not have thought it so inhuman and Powell further informed the witness that the said natives were killed at the desire of the widow Hodgskinson.

            Question by the court. How long have you resided at the Hawkesbury? About 12 months.

            Since your residence there how many white people have been killed by the natives? I recollect four men to have been killed, and Goodall being very desperately wounded by them, and that a servant of the witness was attacked by several natives, one of whom he shot in his own defence after being robbed of a kangaroo he had killed.

Pray how many natives have been killed by the white people since you have lived at the Hawkesbury? About five including the one killed by my servant.

What is the state of security or danger of the settlers of the Hawkesbury with respect to the natives? I conceive the property of the settlers on the front farms to be and perfectly secure in popular situations. Those of the back farms and above the creek in remote situations are exposed to great danger from the natives and he thinks the persons of the people are insecure both on these farms and when they may be travelling on the roads, and the witness knows the several [346] single persons have been attacked on the road by the natives although such persons have been armed.

David White being sworn deposeth that on the evening the above two natives in question were said to be killed, he heard some natives crying out and heard the report of a musket and in about two thirds of a minute afterwards he heard a second report of a musket fired. That in consequence thereof he went down to the spot from whence he heard such shots, and calling in at the house of widow Hodgskinson who was not at home at the time, he waited when the said woman came in accompanied by Simon Freebody and Mr Timms, when the two latter informed the witness that two natives were killed, Simon Freebody told the witness that Powell had fired at a native, that Butler was holding by a rope round his neck but let him escape, and that one other native the said Simon Freebody declared to have killed himself by thrusting a cutlass into him, and the third native who was held by Timms Metcalf shot through the body.

Question by the prisoner Powell. Was the witness at home when he heard the natives cry out? Yes I was.

At half past 2 o'clock the court adjourned until tomorrow morning 10 o'clock.

[347] Thursday 17 October 1799, at 10 o'clock the court met pursuant to adjournment, and proceeded on the trial of Freebody and others. Continuation.

Jonas Archer being duly sworn deposeth that about six weeks ago a native called Yellowgowy came to the house of the witness, who asked him who of the natives had killed Thomas Hodgskinson and Wimbo, when the said native answered a native called Major White had killed him and mentioned the name also of one other native which the witness does not remember, and describing the manner in which said murder was committed said that said White and other native Run their dowels (a sought of spear) into said Hodgskinson and Wimbo. The next day the elder of the two natives that were killed (as in former evidence named) came to the witness who told the said native that White the native had got the gun belonging to deceased Hodgskinson, and desired him to go and get it. That the witness went to the widow of the said Hodgskinson and told her that she would get the gun in a few days, and the said native boy accordingly as the witness hath been informed brought in the said gun.

Question by court. Did you understand from the native Yellowgowy that the native Major White attended the deceased Hodgskinson and Wimbo as friends in the woods? Yes. Yellowgowy said that White met the deceased Hodgskinson and Wimbo in the woods and asked them if they had got any pheasants. Being answered no, they made a fire, and the native made another being evening about sundown which the natives invited them to do observing [348] they would get pheasants the next day. That in the night the said natives put them to death as before stated.

What was the reason you suppose that the said natives put them to death? Possibly for the sake of their provisions or because Wimbo had the daughter of the comrade of said White living with him.

Do you mean to say the said native's daughter was forcibly detained by Wimbo? No. I know she might have left him had she chused.

Did you go out with party who went to bury the bodies of the deceased Hodgskinson and Wimbo, and in what state did you find them? Yes I did go out, and saw said two bodies naked covered by wood and both were speared in the bodies and otherwise mangled. Their cloaths, provisions and arms and blankets were taken from them.

Did you personally know this native called Major White? Yes I knew him well and he was under engagement to accompany me in the woods at the time he killed Hodgskinson and Wimbo.

Did you know of what tribe the two natives who were killed belonged? I have often seen them with Major White and believes one of them did belong to the tribe, indeed they have often been together on my farm

[349] Was the deceased Hodgskinson on friendly terms with the natives? Yes I think he was. He always has seen him treat them kindly by harbouring them and feeding them in his house.

Do you know what orders the soldiers had, and did you feel yourself authorised to do when out on the excursion to bury the deceased aforenamed? I know not what orders the soldiers had in particular, but understood it was to kill any natives the party could meet with and that was my intention.

Did you understand the orders to kill the natives were to be enforced after the above expedition? Yes I did, nor should I have thought myself doing wrong by killing any of the natives afterwards.

What do you know of the character of the two natives that were killed and of the one who ran away? The one who ran away stole fowls from me, and one of the deceased stole corn from my barn, and that the other being the eldest informed the witness that his brother had murdered a man upon the race ground.

Do you know how many white men have been killed by the natives during the time that you have lived at the Hawkesbury? [350] I have five or six years at the Hawkesbury, and to the best of my recollection 12 white persons have been put to death by the natives.

How many natives do you recall being killed by the white persons? About 20 to the best of my recollection.

Are not the settlers or their men in the habits of taking the women from the natives and that the native men are prevented from taking them away through fear of their fire arms? In two instances I remember lately but cannot say whether the women were detained by force, but they were taken away against the inclination of their native men and I know that said two women were companions to the white men from choice.

Here the evidence closed on the part of the Crown.

The prisoners produced a defence in writing of which the following is a copy.

[The next 4 pages are from the alternate copy of the case record.]

[309] Prisoners' defence.

Honorable gentlemen,

We the prisoners at the bar beg that the honorable court will permit our defence to be read, stating every particular worthy of remark, as also the treachery of the natives and subsisting animosity of the different evidences for the Crown.

That on Wednesday the 18th September last past about sun set, several natives came to the farm of Robert Foster (where was at work James Metcalfe) with a musket belonging to Thomas Hodgskinson who was most cruelly, barbarously and inhumanely murdered by the supposed natives at the Blue Mountains. James Metcalfe (one of the prisoners at the bar) not knowing their intent enquired of them concerning the murdered man (namely Thomas Hodgskinson and John Wimbow). The natives gave him to understand in a broken tongue that they (the natives) slept with them the night before the barbarous act was committed. The natives then wished to know if the white men were angry. James Metcalfe answered them in the negative for being surrounded on all sides and a number of them an evil minded, blood thirsty set of people, he dare not at that time express himself as he would wish. They being armed with weapons and some of them with their spears poised, the said James Metcalfe invited them into the house, and three natives singled out from the rest followed him to the house of the said Robert Foster, but one (the elder) on the way took up a coate which was laying on the ground belonging to the said Metcalfe, put it on, and followed to the hose as before stated. Metcalfe then questioned them again concerning the murder of Hodgskinson and Wimbow on the mountains. Their answer was "not angry with any more white men, but very bad soldier, very bad them". James Metcalfe left them and proceeded to the house of the widow belonging to the deceased Hodgskinson, and informed her of what the natives said as also producing and delivering the gun belonging to the deceased, which the said James Metcalfe had taken from the natives. The widow Hodgskinson then enquired of him who they [310] were, and Metcalfe described them to her in the best manner he could. On which the widow Hodgskinson replied they are the same natives that called at her house, and who were to have gone with Hodgskinson to the mountains, but at the time proposed of going, the natives absconded and never were heard of until James Metcalfe first perceived them on the farm as before stated. Only thus much was positively declared by William Fuller. That on his coming from the bush about a fortnight before the murder of Hodgskinson and Wimbow was known, he the said William Fuller saw a blanket (which he had lent to John Wimbow) on one of the native's gins or women belonging to the same party (as are now killed). James Metcalfe then left the house of the widow Hodgskinson and informed several neighbours what had happened concerning the natives, and that he (Metcalfe) had every reason to believe that they were come with no good intent, for they were in great numbers at the back of the farms. On which many of the neighbours followed and proceeded to the house of Robert Foster where the natives (as before) were, and asked them many questions, and shuddered to hear the tale related of the horrid depredations which had been committed on the body's of our fellow countrymen on the mountains. The barbarous and inhumane treatment they had met with, and as far as could be understood the natives who had committed the horrid deed were then present or at least at the back of the farms. James Metcalfe during the discourse sat down to supper. In the interim, many neighbours came to a determination to tye the present natives' hands and make them point out which of the natives it was that murdered Hodgskinson and Wimbow, and on going out of the house as aforesaid, the evening very dark and not being able to see any thing before us, the natives rushed from us and one of the three made his escape. And James Metcalfe went in pursuit of him, and the rest of the neighbours (unknown whom) followed the others and (as we suppose) killed them. On the return of James Metcalfe to the house of Foster as aforesaid, he found Isabella Ramsay alone. She was happy at the return of Metcalfe, fearing the natives should make their return. He heard nothing more of it till next morning when he said the bodies (dug up after being buried) and was [311] immediately taken into custody by Thomas Rickerby.

Edward Powell deposes that on Wednesday 18th September last on his return from Parramatta to the Hawkesbury, passing the Commanding Officer's door, he (Powell) was asked by the Commanding Officer concerning the prisoner which he had been with to Parramatta and some other private business. The said Powell was greatly fatigued and went into the kitchen of the Commanding Officer and remained there until dark. On his return home there were a great number of people in his house, who gave him information of three natives being at Foster's house who had been concerned in the murder of the unfortunate Hodgskinson and Wimbow, besides many more at the back of the farms. Edward Powell was advised to go to Foster's house, and on his entrance saw three of the natives and Isabella Ramsay (no other person present). She said that she was happy he was come as she was so terrified that she could scarcely contain herself. The natives seemed much alarmed and was for quitting the house. He bade them not to be afraid. Powell then asked them concerning the murder of Hodgskinson and Wimbow, and on hearing the name of Hodgskinson they endeavoured to run away out of the house, and their countenances quite changed. Powell then seized the biggest of the three, and in taking him by the arm a tomahawk dropt from the sleeve of his coate. In the interim, a great number of people came in and agreed to tye their hands and make them shew where the rest of the natives were who assisted in the murder. Powell then said to the neighbours present, "I have no piece and am greatly fatigued. I'll go home to bed. Bishop Thompson has my piece and he is gone down to the ground." Powell then left them and on his way home he heard a great noise of the natives hallowing to the natives at the back of the farms to retreat. Powell then heard words very loudly spoken saying "they are running away, we shall lose them, fire, fire". On which a report was heard of some discharge of musketry. Powell then went to bed, and in a short time afterwards the wife of Powell came to him and told him she had heard some people say as they were passing by that some of the natives were killed. The next morning he was ordered into custody with some others being the nearest at hand.

William Timms, Simon Freebody and William Butler positively declare that they heard of the natives being at the house of Robert Foster, and they went as did many others to see them being (as was said) the natives which murdered Hodgskinson and Wimbow. They left them after some little time and proceeded to their different homes. The next day William Timms went to see where the natives were buried as did many others. Timms said, "ah my poor master (Hodgskinson) was not buried like this, he was cut into pieces with a tomahawk and a death spear run through his yard and came through the back part [312] of his neck". On these words the said Timms was taken into custody and the others likewise on similar words were taken up also.

The aforesaid facts caused the present situation of the prisoners at the bar, and gentlemen we (the prisoners) humbly beg pardon for giving so much trouble to the honorable members and detaining the court still longer, beg that they may here state a few remarks on the evidence adduced against them. First, in that of John Pearson who swears to being in the house of Isabella Ramsay with her, at the time the natives were taken out by the neighbours and remained there the whole of the evening. Isabella Ramsay declares upon oath that she was by herself until James Metcalfe returned from pursuing the native that first ran away and made his escape, and that the said John Pearson was not there. The third evidence is that of David White who came forward through pure hatred and malice against the prisoner Edward Powell, who has at divers times been necessitated to go and call him the said White into his custody (Powell being a constable at the Hawkesbury) and many times searched the house for stolen property which was supposed he had and even thought he had committed many robberies on his neighbours. Again the said David White makes oath that he never received any injury from any of the natives, when it is well known, and a proof can be established, that he (David White) has been frequently robbed by them as also many of his neighbours. And it would be superfluous here to state the many depredations which they daily commit as it would be detaining the honorable court and be intruding upon your goodness. It's well known by many of the gentlemen present that they are a treacherous, evil minded, blood thirsty sent or description of men. That they will be familiar and be with people for a considerable time until perhaps they have received the nine-tenths of a loaf of bread, and they for the last tenth they will murder tow of three who before were their friends to get it. Many instances of a similar kind are known. Again it was generally understood that it was a standing order, or at least it was so issued from the Commanding Officer, to kill any of the natives found in their way, particularly after the barbarous, cruel and inhuman murder of the unfortunate Hodgskinson and Wimbow, a murder the most horrid to have beheld. Any gentlemen to have seen the mangled bodies of the deceased would have shuddered and ever bore an antipathy against the cruel natives in general, and that it behoves every man to be on his guard against them and their intentions, never to give them any encouragement for it's this indulgences they have received makes them so knowing.

Gentlemen, we humbly beg that you will be pleased to take what we have here stated into your humane consideration and be well assured of our innocence in being accessory's of killing them, but that we leave to your better consideration and trust only to an honorable and impartial jury for a verdict which we trust will be I behalf of the unfortunate prisoners. Honorable gentlemen with every respect we subscribe,

your most devoted,

most obedient and very humble servants etc. etc.

The prisoners at the bar.

[Back to the first copy of the case.]

[350 continued: ] ... William Fuller the first witness called on the part of the prisoners being duly sworn says that he resides at Richmond a free man and lives by his labor. That sometime before Wimbo the deceased went into the woods, the witness lent him a blanket [351] and one of the Blacks (little Jemmy), one of the natives that were killed, with several other native men, one woman the Gin or wife of said Jemmy, who severally came to the house of the witness and had wrapped round her a blanket which he well knew to be the same he had lent to the said Wimbo and the witness was desirous of taking the said blanket, which was refused and the woman and other natives all ran away from the house and the blanket yet remains among the natives.

Question by the court of the prisoners. Did you see this blanket in the possession of the natives before the two natives were killed? Yes I did, but I cannot say as to the time but that it was about a fortnight before the said Hodgskinson and Wimbo were known to have been killed by the natives.

Was you with the party of soldiers and others who went out in pursuit of the natives and to bury the two bodies of Hodgskinson and Wimbo? Yes I was.

Were any of the prisoners of that party? Yes two, Metcalf and Freebody.

How far did you consider yourself at liberty to act against natives if you met with any? To shoot them if I could.

[352] Suppose any natives should have come into your farm after the above expedition, would you have shot them? If I had seen any I suspected to have been concerned in the murder of said Hodgskinson and Wimbo, I certainly should.

William Goodall being sworn, deposeth that about six weeks ago he was working on his grounds when a party of natives about 12 in number came and without the smallest provocation alarmed him by a desperate attack with their spears and also brutally beat him with their waddies after wounding in the breast and in two places on his back with three spears and had not the witness ran from them they would have killed him on the spot. That among their number of natives he knows one who is called Charley. That on the witness making his escape with a spear sticking in his back, the said natives pursued him even to the door of his house. That the said Charley was afterwards apprehended at the Hawkesbury as one of the prisoners who had thus wantonly attacked the witness and was escorted to Sydney by a party of soldiers as a prisoner to his Excellency the Governor; and when his Excellency (as the witness was informed by the Corporal of the guard) examined said Charley who was liberated without any punishment.

Question by the court. Before the prisoners at the bar were brought to trial, did you think yourself at liberty to retaliate on the natives for the injury you had received? Yes I did.

What is your opinion now since these prisoners have been put on the trial? I wish to be informed after this attack on my life how I am in future to act.

[353] Did you not serve in the detachment at the Hawkesbury as a Sergeant in the military? Yes I did, upwards of two years, and that I was discharged two years ago last April, since which I have lived as a free settler.

Do you recollect during your service at the Hawkesbury natives committing any murders robberies or other outrages? I do several. Some I particularly well remember.

What steps were taken to punish such natives? There were parties of soldiers frequently sent out to kill the natives, but being the senior Sergeant sent there I had the care of the stores and did not go out with any detachments myself.

From whom did you receive your orders from time to time at the Hawkesbury? I received my orders in writing from Captain John McArthur at Parramatta, and which were issued in consequence of a number of murders about that time committed by the natives.

Do you not know that the like orders have been often repeated by the officers commanding detachments at the Hawkesbury? Yes I do.

Was you not sent to the Hawkesbury for the express purpose of defending the settlers from the attacks of the natives in consequence of the representations from the settlers that they were in danger of being murdered by the natives? I was.

[354] Have you any knowledge of why the natives attacked you in particular? None.

Peter Farrell, Corporal in the New South Wales Corps, being duly sworn deposeth that on the seventh day of last month about 9 o'clock at night, the witness was in the barracks at the Hawkesbury when Joseph Phelps a settler came in and reported there was a party of natives near his farm who were known to have been present at the spearing of Goodall; and that said Phelps told the witness he came in for the purpose of informing their Commanding Officer there, and being under some alarm he requested a party might be sent out to drive them away. The witness then waited on Lieutenant Thomas Hobby, the Commanding Officer, who told him to take a soldier with him and the said Phelps who was also armed with a firelock. They went to the house of one John Burne where the witness and his party apprehended two natives, the one called young Charley and the other called Cappy. From the character the witness had heard of the former he first secured him and with the other native, brought them both away. On our return to the barracks the native Cappy effected his escape on which the witness fired at him and has since been informed wounded him. Charley was brought into the barracks and the next day the witness was ordered to hold himself in readiness escort the said Charley with a party to Sydney by his Commanding Officer. Which he obeyed and brought him to the Governor's together with a letter from Lieutenant Hobby to his Excellency, which he also delivered. That his Excellency made enquiry of the witness who he [355] had got there. The witness answered that it was a native who was known to have been at the spearing of Goodall and committing several other barbarous depredations. Well says the Governor what am I to do with him? Why did not your own Commanding Officer at Hawkesbury do something with him? The witness answered his Excellency he supposed it was from a wish to make a more public example of this native. The Governor replies it was not in his power to give orders for the hanging or the shooting of such ignorant creatures who could not be made sensible of what they might be guilty of, therefore could not be treated according to our laws. The witness then requested to know what was to be done in that case, when the Governor told the witness that immediate retaliation should be made on the spot or words to that effect, as that was the only mode he could think upon. That some bystanders observed that was impossible, for the natives took advantage the time and place. Then, replied his Excellency, as soon as they can be [catched]. The Governor then admonished the said native Charley as to his future conduct and ordered said native to be discharged, and as the witness is informed ordered said Charley to be taken up to Mr Cumming at Parramatta with whom he had lived. The witness returned to the Hawkesbury and made report verbally to his Commanding Officer of what had been done, which he publicly also repeated among the settlers. The witness further saith that the Governor ordered said native under the care of Mark Flood to be taken up to Mr Cummins with whom he had long lived as servant to be further admonished

The court at half past 3 o'clock adjourned until ten o'clock tomorrow.

[356] Friday 18th October 1799. The met at 10 o'clock pursuant to adjournment.

Rex v. Powell etc. prisoners' defence continued.

John Tarlington being sworn deposeth that within a few days before the man upon the race ground was killed, but he cannot specify the time in particular, the witness who resides near Toongabbie about two hours walk from the native's resort about the Hawkesbury and the creek, on Sunday morning two male natives came to his house, one of them called little Charley and the other McNamara. The witness welcomed them into his house, and the free man his servant also with his master shook hands with said natives who left their spears outside the house, and asked for bread which the witness gave them. They then asked for meat which the witness said "by and bye" as it was then dressing. Having suspicion of more natives coming, the witness went out to look and saw four more coming toward the house, walking two and two abreast. One the witness knew to be called Major White and one other little George, who was the youngest of the two natives said to be killed by prisoners. The other two he knew also to be called Terribandy and Jemmy, the latter the elder of the two natives killed as aforesaid. The witness also welcomed the said four natives into his house, at which time the meat and cabbage was taking up, which the witness shared among them and gave them more than they could eat, so they left a part. Little Charley getting up for some water stepped out of the door, who the witness followed to see what he was about, when he saw more natives, 12 or 15 approaching towards his house. The witness welcomed them into the house also, and they left their spears at the door, same as the others had done. [357] His wife and free man servant gave to them the remainder of the meat and victuals that had been left. That three of the former natives namely George, Jemmy and Charley asked the witness for melons, who took them to the melon bed, leaving the other natives in the house with his wife and freeman; and whilst said three natives were eating melons on the bed in the garden where they grew, native Jemmy went some little distance from the melon ground and shooting out something in the native dialect which the witness did not understand, about 20 or 30 natives thereupon immediately came out of the bush and saluted the witness friendly. That the natives then in the house hearing the voices on the melon bed came out to join them, and the free man servant to the witness followed them out, when the natives dispersed themselves about the ground some taking corn, others melons. The witness hearing a voice saw a white man who came to him and they saluted each other, the strange white man asking the witness if his name was not John Tarlington, to which he replied yes, and your name is Nicholas Redman if I am not mistaken, I suppose, continued the witness, you want to see Joseph Molony who said yes, then said the witness he will be here presently. Soon after said Joseph Molony came up to the witness before he went to his acquaintance, saying to the witness "John what brought all of these natives here". That the natives then asking for more bread and none being in the house, the wife of the witness went out to get some accompanied by Charley the native. In a few minutes after her leaving the house the native Terribandy threw a spear at the witness' freeman Joseph Collins, which wounded him so desperately that he died in a few days after. They then attacked the witness and wounded him in three places with spears, besides beating him with waddies. That he was fortunate [358] enough to escape and saved his life by concealing himself in a loft. That the youngest of the natives called Little George (said to be put to death by the prisoners) threw a spear wantonly through his arm and a wound he received in his side was given him by Jemmy the other native, said also to be killed by the prisoners. That Nick Redman was next barbarously murdered and mangled, and Joseph Molony was also severely wounded in endeavouring to escape. That the said natives then plundered the house and premises of his stock and every kind of property he had. That when the witness thought they were gone he came from his concealment and went in quest of his wife, who he found had been severely beaten by Charley.

Question by the court. Were the two natives supposed to be killed by the prisoners concerned in the murder of N. Redman? Yes they were.

How long is it since the murders happened? About 18 months ago.

How old do you suppose the native called Little George might then be? About the 11 or 12 years of age, but I cannot speak to any certainty, they are so deceiving in their age. Jemmy appeared to be 15 or 16 years old.

Have you heard of any other injuries committed by said Charley upon the white people since? I heard of Goodall being wounded by said Charley.

How did you hear said Charley had wounded Goodall? By report.

[359] Henry Baldwin being duly sworn. Question by the prisoners. Relate what injuries you have received from the two natives said to have been killed by the prisoners.

Answer. I detected them with others stealing my corn and I have frequently been robbed by other natives.

William Bladey duly sworn, deposeth that about six weeks ago he was out duck shooting and met a native called Major White, and one called the young Jemmy. (the latter is said to have been killed by the prisoners), and a third native name unknown. They all came up to the witness and were armed with spears. White enquired of him if he had got any ducks, who answered no and asked said White why the natives were angry with the white men; who replied that they were angry with the white men and particularly with the soldiers, when White shewed an intention of throwing a spear at the witness which he poised towards him, who thereupon stepped back and guarded himself against a tree; when he discovered another party of natives making up to him, the first of whom he well knew to be called Major Worgan, of whom he asked why the natives were angry with him the witness. When Worgan replied they were not angry with him, for he was a very good fellow, but that the soldiers were very bad. The former party now joined the latter and they all went off a little distance from the witness seemingly to consult together, after which the native Charley returned to the witness and asked him if he was going home, who through fear said no. The said natives than all departed together. The witness soon after went home, where he was informed by his wife the same natives, 17 in number and many of whom she knew and described to her, had robbed and plundered the house of the witness of every thing they thought proper to take away with them

Question by the court. Do you know the reason why the natives are so very angry with the white men and the soldiers?

[360] Answer. No, except by report I have heard of a native woman and child being killed by a soldier, but do not know the reason why they were so killed.

Question proposed by prisoners to Lieutenant Neil McKellar, one of the members of the court. "Pray sir when you commanded at the Hawkesbury what orders did you issue against the natives for committing depredations on the settlers?"

Answer. To destroy them whenever they were to be met with after their being guilty of outrages, except such native children who were domesticated among the settlers.

Was that order ever countermanded since? Not during my command at the Hawkesbury, not since to the best of my knowledge.

By the court at the instance of Captain McArthur. By what authority did you give those orders? By verbal orders I received from the Governor. I do not recollect receiving any in writing to that effect.

By Lieutenant Shortland. When you was relieved at the Hawkesbury did you leave those orders with the officer who relieved you? I informed him generally how I conducted the command.

By Lieutenant Flinders. From your never contradicting the orders to destroy the natives in form, did you consider the orders for the destroying them to continue in force? Certainly. Otherwise I should have countermanded them, but it was understood the natives were not to be injured except in retaliation for any outrage they might have recently committed.

[361] John Francis Molloy being duly sworn, deposeth that there being no regular surgeon at the Hawkesbury he was appointed to act there in that capacity and that he knows in the course of his practice for four years and a half, 26 white people have been killed by the natives and 13 wounded on the banks of the Hawkesbury, and that several of them were killed and wounded when defending their property against the attacks of the natives.

The prisoners addressed the court and stated that they had no other evidence to call, but such as would tend to corroborate what had already been produced relating to the general offensive conduct of the natives. They therefore declined troubling the court with the examination of any further witness, although there are many at hand ready to come forward.

The court being cleared to deliberate on the verdict and being reopened the several prisoners were put to the bar and informed that the court [ following words struck out: disapproving of the killing the natives] find them severally guilty of killing two natives.

But reserve this case by special verdict until the sense of his Majesty's ministers is known upon the subject. The prisoners will therefore be enlarged on producing two sureties to be bound in ¿100 each and themselves individually in £200 each, personally to appear to abide by such decisions as his Majesty's ministers at home may think fit to make on the case so reserved as aforesaid. The court disapproving the conduct of Powell as a constable do order him to be suspended.

At half past 3 o'clock the court dissolved.

[362] Captain Henry Waterhouse. That the prisoners are severally guilty of murdering two natives without provocation on the part of the natives. Captain Waterhouse adds that by his opinion he means not to affect their lives, because it is the first instance of such an offence being brought before a criminal court and therefore the prisoners were not aware of the consequences of the law.

Lieutenant John Shortland. That the prisoners are severally guilty killing two natives in a deliberate manner without any provocation on the part of the natives at the moment.

Lieutenant Matthew Flinders. That the prisoners are severally guilty of wilfully and inhumanly killing two unresisting natives who were not in any act of hostility or depredation

Captain John McArthur, Lieutenant Neil McKellar, Lieutenant Thomas Davies, the Judge Advocate. That the prisoners are severally guilty of killing two natives.

Opinion as to the sentence -

The Judge Advocate                The case specially reserved

Captain Henry Waterhouse      Corporal punishment

Lieutenant John Shortland       Corporal punishment

Captain John McArthur           The case specially reserved     

Lieutenant Matthew Flinders Corporal punishment

Lieutenant Neil McKellar        The case specially reserved

Lieutenant Thomas Davies      The case specially reserved.

Note

[1] This trial provides the best evidence of the informal operation of the criminal law in instances of settler-indigenous violence. Lisa Ford argues that the case "shows the ways in which settlers constructed their lawlessness to fit within the permissive parameters of legitimate violence - parameters set simultaneously by legal pluralism and by common law". Many members of the colonial community felt that the killing of Aborigines was a necessary part of frontier life in the colony of New South Wales, and was morally and legally justified. Accordingly, the perpetrators had no reason to deny the killing. However, the division of views among the military jury at the end of this case shows that even in 1799 there was no unanimity about the value of indigenous life.

The trial can be contrasted to R. v. Kirby and Thompson, 1820 below. In that case the result was very different despite similar circumstances to this trial.

This case is also remarkable for the inappropriate role played by at least one member of the jury, who appeared to be at least partly concerned in the outcome.

The record of this case appears in two places in the Minutes of Proceedings, in different handwriting. Neither version is complete, each omitting major pieces that the other contains. Also, when the main source (pp 329-362) was difficult to read, we occasionally referred to the other version for clarification. What follows, then, is an amalgamation of both documents. Words crossed out in the original text are omitted here except where indicated otherwise.

See also Court of Criminal Jurisdiction, Miscellaneous Criminal Papers, 1788 to 1816, State Records N.S.W., 5/1152, p. 53; and see L. Ford, Settler Sovereignty: Jurisdiction and Indigenous People in Georgia and New South Wales 1788-1836, Ph.D. dissertation, Columbia University 2007, (forthcoming revised manuscript: Harvard University Press, 2010) 214; Castles, Australian Legal History, 520; Atkinson, " Atkins", 134.

The defendants were allowed to return to their farms pending instructions from London. Subsequently they were pardoned. See Historical Records of Australia, series 1, vol. 2, 401-403; series 1, vol. 3, 366, 372, 785.

Published by the Division of Law, Macquarie University