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

R. v. O'Dwyer and others [1807] NSWKR 2; [1807] NSWSupC 2

conspiracy - convict rebellion - Castle Hill rebellion - sedition

Court of Criminal Jurisdiction

Atkins J.A., 11-15, 18 May 1807

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1809, State Records N.S.W, 5/1149[1]

[385] Michael O'Dwyer, Hugh Byrne, Martin Burke, John Marner, Thomas McCann,

William Morris, Arthur Davelin, Walter Clare put to the bar vide information.

           James Squires sworn. Question 1. Did you send this letter to John Morris esq.?

           Answer. I did.

           Question. Have you not heard or been informed that the croppies were about to rise?

           [386] Answer. I have.

           2. By croppies do you not mean disaffected persons opposing the lawful government of the country, and using arts to excite and raise a tumult and rebellion against the state?

           Answer. I do suppose that to be the meaning of the word.

           3. State to the court all that you have heard or know respecting such rising?

           Answer. My son in law Arthur Davelin asked me if I would let him have a hodghead of beer to take to the Hawkesbury for the purpose of collecting some wheat. I agreed so to do and the Monday evening about the 4th or 5th of January Davelin came to my house to get some beer to carry to my customers at Sydney. At that time I told him that the beer he intended to carry to the Hawkesbury was ready for him. On the Monday morning he got up early to load the boat with the beer that was intended for Sydney and just as he was stepping into the boat, a man of the name of John Kavanagh one of Captain Kent's men came to the [387] house, and they both went together into the brewhouse, where they remained for the space of two minutes thereabouts. Immediately after, my son in law came to me and said "Father I want to speak to you." I went with him. He then said "I cannot go to the Hawkesbury on Tuesday as I intended, for Kavanagh has been up to Parramatta on the Saturday for his provisions, and was told there that O'Dwyer was going to the Hawkesbury with a lash of beef to see what he could do with the people up the country." In consequence of what Davelin told me I answered I would not have him go for ¿500. Davelin desired me not to take notice of what he had said, I told him I would not, but I thought it my duty to give the information, which I did by the letter I wrote to Dr Harris. Says that he saw Kavanagh speaking to Davelin, but cannot tell what was the subject of the conversation, any further than as he was informed by his son in law Davelin.

           Edward Abbott esq. sworn. [388] Question. You are the residing magistrate at Parramatta ?

           Answer. I am.

           2. Did you at any time, and when, receive any sort of information concerning intended insurrection in the country, and if you did, from whom, when and or what occasion?

           Answer. I did, I cannot speak as to the precise time that I received some information in August, December or January, and at various times since.

           3. Did you not particularly receive information that it was the intention of the disaffected to come into Parramatta as on a Friday evening, and seize the barracks and arms, while the soldiers were employed at the store receiving their provisions?

           Answer. I did.

           4. Did you not in consequence, alter the day of serving from the Saturday to the Monday, and order the provisions to be served at the lower stores near the barracks, instead of the usual place, at the upper one?

           Answer. I did.

           5. Did you not further think it necessary to place sentries and constables at that post to prevent a surprise?

Answer. In consequence of the information I had received I thought it necessary to augment [389] the picket, and give directions to the constables to be alert, and see that no persons came into Parramatta in the night. I also placed some additional centries about the barracks, and I was afterwards informed that these had come to the knowledge of the disaffected.

           6. Did you not sir entertain some fear respecting the detachment at Castle Hill?

           Answer. I did, and in consequence I called them in.

           7. In the case of your proceedings as a Major or otherwise have you had cause to believe from the conduct of the servants in general to their masters that some improper transactions were in contemplation?

           Answer. I have had cause so to believe.

           Question. Has not this change in conduct of the servants been of the class of those who have been sent to this country for disaffection to the government or changed as persons of seditious principles?

           Answer. Yes, they were of that class.

           9. Can you, sir, form any opinion or reason why the conduct of such persons to their masters has been so?

           Answer. I think for the purpose of rising, and from a confidence that it would be secured.

           [390] 10. Have you, sir, had reason to make any particular remarks on the conduct of the prisoners at Castle Hill more particularly on the 26th and 27th February last by their not having applied for passes, contrary to their usual custom?

           Answer. After the prisoners were taken up on the 15th February the Superintendent at Castle Hill came and informed me of what he considered as a very extraordinary circumstance, that not a single application had been made on the following Friday and Saturday for passes, whereas in general two-thirds of the prisoners employed there had been in the habit of getting them even before they had done their work and a similar circumstance occurred on the following Friday.

           11. Do you not in your conscience believe as read from information, as from your own experience and observation that had not O'Dwyer and the other prisoners been secured, insurrection would have taken place?

           Answer. I have no doubt of it.

           12. And have you not reason to believe from various concurrent circumstances that such [391] insurrection had it broke out, would have been attended with the most sanguinary and atrocious proceedings even to the massacre of all those who were not actuated by the same principles?

           Answer. I think it would, for information was given to me that if they got the better, no quarter would be given.

           Question by O'Dwyer. Have you seen anything suspicious in my conduct from the time I came to this colony to this time?

           Answer. Nothing suspicious as to my knowledge.

           Question by court. Has his conduct as far as your knowledge goes, been peaceable?

           Answer. No it has not. I was obliged to bind him over to keep the peace, but it was for nothing seditious.

           John Macarthur esq. sworn. Question 1. You have, sir, in consequence of your ...concerns in this colony employed a number of persons?

           Answer. I have.

           2. You have occasionally received from some of them information of consequence to the general peace and quietness of the colony?

           Answer. I have.

           2. Among other communications, was you not informed that the prisoner O'Dwyer had said [392] that he would or could not undergo the hardships of this colony?

           Answer. I was so informed.

           4. Was you not informed that O'Dwyer had made an observation on seeing a flock of sheep passing by and being informed they belonged to Captain Macarthur, and what was that observation?

           Answer. To the effect that things should not continue to go on as they had done that there was a plan among the Irish prisoners to break out and start an insurrection, and that O'Dwyer was to lead it.

           5. What is your opinion to the veracity and reliance on the person who gave you this information?

           Answer. I have every reason to believe to be true because the same man gave me information of an intended insurrection some years ago, and on the principle being apprehended, their confessions exactly corresponded with the information this man had given me at the time.

           6. Do you not, sir, in your conscience believe as well from information as from your own experience and observation that had not O'Dwyer and the other principles been taken into custody [393] an insurrection would have taken place?

           Answer. I certainly believe from the bustle and veracity of the Irish prisoners, that an insurrection was intended, and nothing but the apprehension of the prisoners prevented it.

           7. And have you not reason to believe from many concurrent circumstances, that such insurrection had it broke out, would have been attended with the most sanguinary and atrocious proceedings even to the massacre of all those who were not actuated by their principles?

           Answer. From the general conduct of the Irish on similar occasions, I certainly think such consequences would have arisen.

           Mr Knight, Superintendent of Castle Hill, sworn. Question 1. The prisoners at Castle Hill have been in the habit of making application to you to obtain passes on the Fridays and Saturdays. That no application whatever was made to you on that subject?

           Answer. I do, I cannot speak exactly to the day of the month, but it was about the later end of February.

           3. Can you in any manner account for this?

           [394] Answer. I cannot, but it much astonished me.

           4. Do you recollect the prisoners Davelin and Burn coming to Castle Hill on a Saturday night the 14th February? Relate to the court the whole of this transaction.

           Answer. On the 14th of February last Davelin and Burne came to Castle Hill about half an hour before sun setting and brought an order for two sows. The two sows not being in, I kept them in conversation while they came, as I had received information from Captain Abbott that they were coming, and he had desired me not to suffer them to have any inter course with any of the prisoners at that place. I delivered to each one sow, and they both went away with them. Sometime after I saw Davelin in camp, who said he had lost his sow and came back to find her. Davelin asked his permission to remain that night. ... I told him it was contrary to orders, but as it was a very bad night I suffered him to stay in my own house until the next morning, when the sow being found he got her and went away.

           Question by Davelin. Did you see anything in my conduct not to lead you to suppose I came for any other purpose than that of getting my sow?

           Answer. No I did not.

           [395] Question by court. Have you seen O'Dwyer often at Castle Hill?

           Answer. Not more than twice, and it was then to buy some corn of me.

           Question by Hugh Byrne. You have known me ever since I have been in the colony, what is your opinion of me?

           Answer. I always considered you as an industrious man, you drew your provisions at Castle Hill and I never knew any thing improper of you.

           James McCarty sworn. Question 1. Do you recollect, as you were walking up the road at Parramatta in March last seeing two men in nankeen walking before you?

           Answer. I do.

           2. Do you recollect any expression or words used by one of them to the other, what was it?

           Answer. I heard one of them say to the other "we should be saying enough only for these fellows being taken". This was after O'Dwyer and the other prisoners had been taken into custody.

           3. Did you acquaint your master Mr Oakes with what you had heard?

           Answer. I did.

           4. Did you not at some time make some observation to your master?

           Answer. Yes I told him I never believed such a thing (meaning that the croppies were going to rise) until I heard what had been said on the road.

           Mr Fred Oakes Chief Constable sworn. [396] Question 1. Do you recollect some time in the month of March your servant James McCarthy giving you any information as to what he had heard coming up the road?

           Answer. He said to me "Master I never thought there was anything in his till now." On my asking him what he meant, he said that as he was coming from the store he heard two men in conversation. One said to the other "if three men had not been taken up we should have seen all snug enough" or "it would have been all settled". He did not know who they were.

           Question by O'Dwyer. You lived next door to me for sometime, did you ever see me in any manner or did at any time act improperly or seditiously?

           Answer. I never did.

           Dominick McCurry swore. Question 1. Where do you live?

           Answer. At Constitution Barn.

           2. Do you know O'Dwyer the prisoner at the bar?

           Answer. I do.

           3. Do you know any other of the prisoners?

           Answer. I do not.

           4. Has O'Dwyer on any occasion had any conversation with you and when?

           Answer. He had. I was driving some pigs up Constitution Hill, and he observed that it was a good lot. After some conversation, he asked me if I [397] was a free man. I told him I was not. He observed that if every one was of one mind, they might shortly be free in the colony. I told him that would never happen.

           5. Did not O'Dwyer inform you that he was going to the Hawkesbury for some particular purpose?

           Answer. He told me he was going to the Hawkesbury and that he should find out the minds of the people before his return and that he would let me know about it on his return.

           6. Did he not tell you there was going to be a rising among the people?

           Answer. Yes he did.

           7. Did he not say that the rising would take place about a fortnight after the sailing of the Buffalo ?

           Answer. He said that in the course of a fortnight after the sailing of the Buffalo, the Governor would be going to Parramatta, and from thence to the Hawkesbury.

           8. Did he not say that at that time the government must be checked?

           Answer. He did.

           9. Did he not mention the names of some other particular officers of the colony who must likewise be checked, and who were they?

           Answer. He mentioned Major Johnston, Dr Harris, Mr [398] Palmer and Mr Laycock.

           10. What do you understand by the word checked?

           Answer. I cannot tell.

           11. Did not you ask O'Dwyer the precise time when the insurrection or rising was to take place?

           Answer. I did. He said the precise time he could not tell, but he would let me know two or three days before it was to happen.

           12. Did any person inform you of any particular number of pikes O'Dwyer had, or was to have?

           Answer. O'Dwyer informed me that he could get from 100 to 150 pikes.

           12. Did he tell you the place where any of them were secreted?

           Answer. He did not.

           13. Did not O'Dwyer in your presence, and to your knowledge, say that if he had 50 or 100 willow boys with himself at their head, he would not be afraid of any thing?

           Answer. He told me that if he had 100 or 150 of the willow boys, he could do a great deal.

           14. Did he not say he would kill or be killed, and on what occasion did he say this?

           Answer. He did not say he would kill or be killed, but he did say it should not be as it had been before, that they should have something for it before they would run, for the first man that [399] would offer to run on his ride, he would kill him.

           15. Living close to the road, do not many persons occasionally call into light their pikes or otherwise?

           Answer. They do.

           16. From the several conversations that have passed in your presence, and within your hearing, have you not reason to believe a rising of the Irish was intended?

           Answer. I do think it, had it not been prevented.

           17. Do you think the securing of O'Dwyer with some others was the cause of such rising not taking place?

           Answer. I do think that had not O'Dwyer with others been secured, it would have taken place. I heard several persons say that Hugh Byrne would have nothing to do with it.

           Question by O'Dwyer. What time of the day was it you saw me at Constitution Hill?

           Answer. It was in the forepart of the day and a day or two before or of Christmas.

           2. Was any man with me at the time this happened?

           Answer. None, but there was a man of some distance going up the hill.

           3. Have you ever spoke to me in any person's company?

           Answer. I never did.

           4. Was you ever in conversation with me before?

           Answer. Yes, several times at the lumber yard gate [400] when you asked me to keep you half a pint which I did at Graham's, which was served by Graham's man Thomas Bartlett. That after we had drank the half pint we separated.

           At 3 o'clock court adjourned.

           12th May court met. Mr Lewin sworn. Question. Have you not, sir, sometime back, had in your service Dominic McCarry?

           Answer. I had, about two years and a half ago.

           2. How long was he in your service?

           Answer. About 15 months.

           3. What opinion have you of his integrity and honesty?

           Answer. A very good one.

           4. Do you believe him to be a consciencious well meaning man?

           Answer. I have every reason to believe him such. He was recommended to me by Mr Marsden and his conduct whilst with me corresponds with the good character given of him.

           5. Was he not put into the situation he now holds by Mr Marsden from the good opinion he entertained of him?

           Answer. He was.

           6. Do you know of any thing in his general conduct that would lead you to discredit his testimony when given an oath?

           [401] Answer. I do not.

           Sergeant Trotter of the New South Wales Corps sworn. Question. Did not Dominic McCurry live with you as a servant some time back?

           Answer. He did.

           2. What was his general character during that time?

           Answer. He was a sober honest industrious man, as far as came to my knowledge.

           Thomas Jamison esq. sworn. Question. Do you know a man of the name of Dominic McCurry?

           Answer. I have seen the man. I have a slight knowledge of him.

           2. From what you know of him and from what you have heard of him, do you think his character such that confidence might be put on his testimony on oath?

           Answer. I always thought him a fair character, and when giving a deposition before me he has acted cautiously.

           Daniel McGrady sworn. Question. You are servant to John Ramsay, a servant at the Field of Mars?

           Answer. I am.

           2. Did you tell your master some time back that you had been informed a row was intended to take place in this colony?

           Answer. I did.

[402] 3. From whom did you receive that information?

           Answer. From one Thomas Connal about a week before Christmas as near as I can recollect.

           4. Did you ever mention this circumstance to John Harris esq.?

           Answer. I did, about two days after I had received such information from Connal.

           5. Do you remember going to Georges River sometime in January last?

           Answer. I do.

           6. Do you know the prisoner Walter Clare?

           Answer. I do.

           7. Was he not servant to O'Dwyer?

           Answer. He was at that time.

           8. Had you any conversation with him relative to his master O'Dwyer and the other prisoner John Marner?

           Answer. Clare informed me that O'Dwyer was to go to the Hawkesbury two days before the rising was to take place, that O'Dwyer was to head them at that place, and Marner at Parramatta.

           9. Did not the prisoner Clare inform you that his master O'Dwyer expected to get 24 pikes at Captain Kent 's farm?

           Answer. He said his master O'Dwyer informed him that he expected 24 pikes at Kent 's farm [403] and that Dowd be the overseer at that farm had told him he had a man for every pike.

           10. Do you know a man of the name of Daniel Slaven?

           Answer. I do, he informed me he was likewise one of O'Dwyer's men.

           11. Did he not tell you that 150 men were to join O'Dwyer at the Hawkesbury, when the insurrection was to take place?

           Answer. He informed me that there was 160 men to join O'Dwyer at the Hawkesbury.

           12. Had you not some conversation with the prisoner O'Dwyer in the month of January last at the house of Marner at Parramatta ?

           Answer. I had.

           13. What did he say about the rising of the people?

           Answer. He told me not to be backwards, but to be ready when I was called upon. He said he had a better plan to take the country than he had formerly, that he had picked about 60 men to board the Porpoise and the Suey, and that after he had taken them, he would not lose a man to take the country.

           14. Did not O'Dwyer say it was the intention [404] of the insurgents to come into Parramatta and seize the barracks and arms while the soldiers were getting their provisions at the store?

           Answer. It was not O'Dwyer that told me this, but Clare, Slaver and Connal informed me of it both at Parramatta and Georges River.

           15. Did not Clare inform you that if the insurgents got the better no mercy would be shewn?

           Answer. No, it was Carnal informed me of his circumstance and added that they would not be called cowards this time.

           16. From the several conversations that passed between yourself, and Dennis Clare, yourself and Daniel Slaver, and yourself and Mr O'Dwyer, do you not believe that any insurrection would have taken place, had not O'Dwyer and the other principals been secured?

           Answer. Yes I am sure an insurrection would have taken place from the several informations given to me by the above parties.

           Question by O'Dwyer. When you saw me at Parramatta was it in any house, or in any company?

           Answer. I saw you in Marner's house. Neither Marner or any other person was present. Clare had been in the house, but you had sent him over to the wharf about a cask of beer.

           [405] 2. Do you recollect about what time this happened?

           Answer. It was to the best of my recollection on a Sunday evening in the month of January but cannot recollect the day of the month.

           3. Can you state was it the beginning, middle, or end of the month?

           Answer. To the best of my opinion it was the beginning of the month.

           This evidence further states that he had omitted some part of his testimony, says that he asked O'Dwyer at what time he thought he would be ready to head the business he was carrying on. O'Dwyer made answer that he could not tell until he came back from the Hawkesbury and added that if he had hold of the Governor, Major Johnston, and Captain Abbott, he did not care a damn for the country.

           Question 4. Where was you at the time you took it into your head to come and ask me about this business?

           Answer. I was coming from Georges River and I saw you passing Mr Marsden's house at Parramatta.

           5. How long did you remain at Georges River at the time you saw Clare?

           Answer. I slept there one night and returned the next evening.

           [406] 6. For what purpose did you go to Georges River ?

           Answer. I went for the purpose of getting further information respecting this business, at the desire of Captain Abbott and Dr Harris and likewise to bring a gun home from Andrew Cunningham's belonging to my master.

           7. Mention the man whose house you slept at that night?

           Answer. It was Sergeant Stroud's farm, and Thomas Long's farm. Michael Houlin and one Malachi Ryan was there. Says he had been at O'Dwyer's farm before he went to Stroud's farm.

           Question by court. Relate to the court how you employed your time from the evening of your arrival at Georges River until your leaving at 12 o'clock next day?

           Answer. On my arrival at Georges River I crossed O'Dwyer's farm, where I met the prisoner Clare, and it was at that time the conversation as before stated passed between us. I then proceeded to Stroud's farm where I slept as above stated. At about 8 o'clock the next morning I left Stroud's farm, and went to [407] Andrew Cunningham's for my master's gun. That he saw Andrew Cunningham and remained there two or three hours, then returned to Stroud's farm, where he got his dinner, and then proceeded to Parramatta where he arrived in the evening. That Andrew Cunningham put him over the water about half past 12.

           Question by O'Dwyer. About what time did you get you a dinner at Stroud's farm?

           Answer. As soon as I came back, and it was given me by Thomas Longhorn (since absconded).

           2. On your way from Cunningham's farm to Stroud's, did you meet any person?

           Answer. None whatever.

           3. What distance was you from Andrew Cunningham's farm at the time you was put over the river?

           Answer. About 16 yards, and I was put over by one Tierney the second time.

           4. At what time did you arrive at your master's house?

           Answer. After nightfall.

           5. Was you in conversation with any person from the time you left Georges River until your arrival at your master's house?

           [408] Answer. Only yourself.

           Question by Walter Clare. Where did you first become acquainted with me?

           Answer. At Parramatta.

           2. Was there any person with me at the time?

           Answer. A shipmate of the name of Bushe was with you at that time.

           3. Did any conversation at that time pass between us respectively the business said to be then carrying on?

           Answer. None.

           John Ramsay sworn. Question. Have you not a servant of the name of Daniel McGrady?

           Answer. I have.

           2. Did he at any time acquaint you that he had received information that a row was intended to take place?

           Answer. He did, a few days before Christmas.

           3. Did he inform you from whom he had received such information?

           Answer. No, but he informed me that on his way home from Parramatta he had heard some [conspiring] language, and desired I would go and acquaint a magistrate with it.

4. Did he acquaint you what was the tendency of such language?

           Answer. He said that the croppies were going to rise, and the sooner the information was given the better, or words to that effect.

           [409] 5. Do you recollect sending Grady to Georges River, and at what time?

           Answer. Sometime after he had given me the within stated information he asked me for a pass to go to Georges River for the purpose of getting further information respecting the business in hand.

           6. How long was he absent?

           Answer. He returned the evening of the second day.

           7. What information did he give you on his return?

           Answer. He informed me that he had found out more. I was not inquisitive to know what it was, but I desired him to come with me to Captain Abbott the nearest magistrate. On the road he informed me that a great deal of seditious business was going on. That on their arrival at Captain Abbott's he heard Grady inform him Captain Abbott of many circumstances that he had been informed of at Georges River of a very seditious tendency. That part of such information was from O'Dwyer, and to the best of my recollection he mentioned the name of Walter Clare as a person who had likewise given him information. That he desired him to call Andrew Cunningham for a musket. Says that Grady has lived with him near four years and he considers him an honest man and that credibility can be put on his testimony.

           [410] Question by O'Dwyer. What is your general opinion as to my conduct during the time I have been your neighbour?

           Answer. Nothing but what was fair and proper.

           Question by Martin Burke. What opinion have you formed of me from my general conduct?

           Answer. Nothing but what was good and respectable.

           Dennis Stacey sworn. Question. Was you not the beginning of February last or at some other time in company with Thomas McCann one of the prisoners, and where?

           Answer. I was, at Parramatta but cannot be particular to the time.

           2. Did Thomas McCann say anything to you respecting an intended insurrection?

Answer. He did. On meeting McCann at Parramatta he spoke to me and after some common place conversation he lamented that he was not in Miller's boat at the time she had been taken away, but he said he did not care much about it, for good times were coming. I answered so much the better, for it is much wanted. He then asked me what I thought of the affair. I enquired "what affair?" He said "what would you think of your liberty?" I said I should think very well of it, if I could get it. He made answer that there was no danger of getting it, if they were all true to each other and fight for it, that it was not as it was [411] before for that there were men now concerned that would go through with it. That most people thought it would begin at Castle Hill, but they were mistaken for it would not begin there. That they then parted, and he saw no more of him until he saw him a prisoner.

           3. Do you know William Morris?

           Answer. I do.

           4. Do you recollect seeing him about the later end of February or beginning of March.

           Answer. I remember seeing him about that time.

           5. What passed between you at that time?

           Answer. I was over at his master's place. He came out of the house with me and walked down the farm. He then informed me it was in my power to render him as well as myself a piece of service. I said I would do it if in my power. That he himself and some other persons were to go to Castle Hill to get the arms from him and the other constables, that were watch over the granary, and he desired me to give them up without making any alarm, by which means he would be able to get Mr Knight's arms, and the others that were about the camp, and my life should be protected when the rebellion was to break out, and that I should be respected hereafter. I then asked him if he really thought that such a rebellion [412] would take place. He answered that it certainly would, for that O'Dwyer was up at Hawkesbury drinking at Clark and Ponder's. On the strength of that he then proceeded a little further into a bottom, and took out a small book and desired me to take hold of it, and he would then tell me more about it. I answered I would do no such thing until I saw further into it. They then parted. Ten days or a fortnight after he again came to me and said now is the time to get the arms, before those persons who are now in jail are sent out of the colony or otherwise disposed of. I answered that before this time tomorrow he would have more arms about him than he knows what to do with, by which I meant, that I intended to go and lodge an information against him.

           Question by McCann. How long have you been acquainted with me?

           Answer. About 12 months more or less.

           2. Where was the first conversation you had with me?

           Answer. In Parramatta.

           3. At the time the conversation you have stated to have taken place between us, who was in company?

           Answer. At the time the conversation took place no person was present, but when I first saw you some person was with you who on seeing me walked away.

           [413] Did this conversation pass before or after the prisoners now at the bar were arrested?

           Answer. I am not positive, but to the best of my opinion it was before.

           5. How long was it from the time you say this conversation took place between us to the time you gave the information to Captain Abbott?

           Answer. Within a fortnight. I thought no more of it until William Morris spoke to me about the arms. Court adjourned.

           13th May court met. John Harris esq. sworn. Question. Are you acquainted with a man of the name of Dominick McCurry?

           Answer. I do not know such a man.

           2. Are you acquainted with a man of the name of Daniel Grady?

           Answer. I am.

           3. Did he not come to you in company with John Ramsay to give you some information?

           Answer. He did. He informed me that as he was going from his master's John Ramsay to Parramatta for the purpose of grinding some wheat that he heard two persons talking in the bush. One of them said "there would be bloody work soon". Grady informed me it was so dark that he could not see any [414] person and neither did he know who they were. On being asked by me if he had acquainted magistrate at Parramatta with what he had heard, he said he had not, and it was desired by me to go immediately and acquaint him with it, for if he came to me any more with such a cock and a bull story I would flog him.

           4. Did you give Daniel Grady any instructions to go to Georges River for the purpose of gaining further information on this business?

           Answer. I never did in my life.

           Samuel Freeman sworn. Question. You are a watchman at Castle Hill?

           Answer. I am.

           2. Do you recollect some time back Dennis Stacey and the prisoner William Morris coming to where you was?

           Answer. I do.

           3. Relate the conversation that passed between them in your hearing?

           Answer. I heard William Morris say to Dennis Stacey the sooner they could get their arms from Castle Hill the better, for fear those men who were there in confinement should be sent out of the colony.

           John Hare sworn. Question. Did you not in the presence of John Rose [415] and other persons tell some of the stockmen that some person had given information to government respecting the breaking out of the croppies?

           Answer. A soldier Rose by name had informed him that some person had given the Governor information respecting an intended insurrection.

           2. Did you not caution the men not to leave the stock yard until the troublesome times were over?

           Answer. I did.

           3. Did not Kelly one of them make some observation on your mentioning the information you had received?

           Answer. Yes, he said "it was well for the informer that he did not come across him for he would knock his brains out".

           Matthew Lock sworn. Question. You are a constable at the Hawkesbury?

           Answer. I am.

           2. Was not the prisoner O'Dwyer some time back in your district hawking about a lash of beef for sale?

           Answer. I was informed so, I do not know him.

           Questioned by court. 3. Did this you hear or do you know of his behaving improperly at the Hawkesbury?

           Answer. No I do not.

           George Bearup sworn. [416] Was you in the same house (Stephen Feir's) with O'Dwyer at the Green Hills in the month of December and January last?

           Answer. I was five days.

           2. Have you heard O'Dwyer speak about the cruelties and murder committed on the loyalists in Ireland by himself and his party?

           Answer. I never did. Thomson put it down wrong.

           Question by court. Did you ever see any improper conduct of O'Dwyer during his stay at the Hawkesbury?

           Answer. I did not.

           William Chalker sworn. Question. Had you not a good deal of company at your home on New Year's Day and was not O'Dwyer there?

           Answer. O'Dwyer was there.

           2. Did not O'Dwyer among others sing a song?

           Answer. Not to my recollection.

           3. Was not a man of the name of John Hewit in the house at that time?

           Answer. He was.

           4. Did he sing a song?

           Answer. He did, several.

           5. Was not a good deal of disapprobation expressed at one of the songs he sang?

           Answer. Not to my recollection.

           7. Did you see John Hewit knocked down by any person with a pailing?

           Answer. I cannot say that I did.

           [417] John Hewit sworn. Question. Did you not about New Year's Day live at Mr Charker's at the Hawkesbury?

           Answer. Yes.

           2. Was there not a good deal of company on New Year's Day drinking, and was not O'Dwyer there?

           Answer. O'Dwyer was there.

           3. Were there not a number of songs sung?

           Answer. Yes.

           4. Did O'Dwyer sing?

           Answer. He sung one song.

           5. What was the tendency of the song, was it disaffected?

           Answer. I think it was.

           6. You sang a song. Was it a loyal song?

           Answer. I say an orange song.

           7. Did you not hear some person say "knock him down the bloody orange [senindance]".

           Answer. I did, but cannot say who it was. He was drunk!

           James Medcalf sworn says that he was at the house of Robert Forrester near Charkers. Is that he heard a disturbance there and went with others to see what was the matter. That O'Dwyer and Charker were fighting together, and it appeared to him that every person there were intoxicated.

           Court adjourned.

           [418] 14th of May court met.             The evidence on the part of the Crown here closed, when his Excellency's Secretary produced the indictments signed Hardwicke whereby it appears that the several persons now on trial for life. The several prisoners being put on their defence.

           First O'Dwyer who calls Samuel Higginson who being sworn, question by O'Dwyer. Do you know the prisoner O'Dwyer?

           Answer. I do.

           2. You have seen him at his farm at Georges River, has he been industrious?

           Answer. He has, he has been very industrious.

           3. Has he been quiet and orderly?

           Answer. He has.

           4. Has he been in the habit of seeing a number of his countrymen at his farm?

           Answer. No.

           5. Do you know Clare?

           Answer. He was one of O'Dwyer's men. Says that one day he saw O'Dwyer at Andrew Cunningham's, and observed his hands was blistered by hard work.

           Question by Martin Burke. Have you not always seen me industrious and working hard on my farm?

           Answer. Yes, when he was there I never saw any thing improper.

           [419] Question by John Marner. Have you seen me working hard on my farm at Georges River ?

           Answer. I always saw you very industrious.

           Stephen Shore sworn.             Question by O'Dwyer. What opinion have you of my industry and general conduct since you have known me at Georges River ?

           Answer. A hard-working industrious man, and honest in your dealings.

           John Emerson sworn corroborates the testimony of the preceding evidences as to the industry of O'Dwyer.

           Andrew Cunningham sworn. Question. Do you know a man of the name of Grady? He came to me for a gun for his master John Ramsey and I put him out over the water in my canal. Says that some time back he was speaking to O'Dwyer about the rebellion at home. O'Dwyer said "damn the rebellion, every time I think of it, it makes my blood shudder to know the desolation it has occasioned to so many families at home".

           James Meehan, surveyor, sworn. Question by O'Dwyer. Was you not sent by Governor King to measure 100 acres for me at Georges River ?

           Answer. I was, for you and four others [420] Arthur Davelin, Hugh Byrne, John Marner and Martin Burke.

           2. Did you some time after come to my farm to see what progress I had made in the cultivation of it?

           Answer. I was ordered by Governor Bligh to go to Georges River to see what progress the whole of the settlers in the district had made. O'Dwyer had in the month of February 9 acres of maize growing and he informed me he expected to have 6 acres of new ground in wheat this year.

           3. Did I not ask you what number of bricks it would take to build a barn 40 feet long and 10 feet high?

           Answer. You did ask me about bricks, but the dimensions of the barn I do not recollect.

           Question by Hugh Byrne. At the time you measured the ground for us, we did not ask for the grants of the farms, but did it not remain so while Governor Bligh came?

           Answer. It did.

           2. Did I not come to Government House and in the presence of Governor Bligh ask Governor King for the grant of the farm? Before he left the colony?

           Answer. I cannot say that Governor Bligh was [421] present, but I recollect the whole of you asking for the grant of your respective farms from Governor King. I had before that described the several farms for the purpose of having them drawn out, ready for executing. Governor King ordered them to be registered, but afterwards suspended the executing them. For what reason I cannot tell, but on my asking him his reason he said they must not be registered yet.

           Thomas Dargan sworn. Question by O'Dwyer. Did you carry a cask of beef for me to the Hawkesbury?

           Answer. I did about three months ago.

           2. Did I ever part from you from the time we left Parramatta to our arrival at the Hawkesbury?

           Answer. You was in my company the whole of the time.

           3. Did we meet two men in a chaise?

           Answer. Yes, we met Mr Palmer and another gentlemen. This was on the 31st December last.

           Mallack Ryan sworn living at Sergeant Stroud's. Question. Did you ever seen me going to Marner's house at Parramatta, and in whose company was I at that time?

           Answer. To the best in my recollection he came into Marner's after Christmas Day [422] between 10 and 11 o'clock. I was at that time in company with Grady and Jeremiah Griffin.

           2. Did you expect anything from Sydney by the Porpoise boat?

           Answer. Yes our provisions from Sergeant Stroud my master, then living at Sydney.

           3. Did you go more than once to the wharf to see if that passage boat had arrived?

           Answer. I went three or four times in company with Grady to Kirwin's house where the provisions were usually left, to see if it was come.

           4. Did you hear me speak to Grady in the course of that day?

           Answer. I did not.

           5. Did you not go to the wharf to see if a cask of beef I expected from Sydney was come?

           Answer. I saw you going that way.

           6. What time had elapsed from the first time of you seeing me on that day to the last?

           Answer. Six or seven hours. I never left Grady during that time. I did not see or hear him speak to O'Dwyer during that time. That Grady went with him to Georges River, where he remained two nights. Says that Grady did not stop at O'Dwyer's farm on the evening he arrived at Georges River and Clare had at that time not arrived there [423] but was left behind at Parramatta for the cask of beef.

           Samuel             Higginson again called. Question by O'Dwyer. Did you see me on my farm on Christmas Day?

           Answer. I did about 4 o'clock on that day and it did not appear to me that you had left your farm on that day, and I saw you the next day Mr [Rowley's] farm.

           Thomas Linch sworn. Question by O'Dwyer. Did you see me at Sydney on Christmas Eve?

           Answer. I did, you was at my house the two days before Christmas Day, the 23 and 24th.

           Thomas Bartlett sworn. Question. Do you recollect ever seeing at the house of your master John Graham at Parramatta O'Dwyer and Mr McCurry together?

           Answer. I cannot say.

           2. Did you ever serve any person with spirits?

           Answer. I never did.

           John Graham sworn. Question. Did you ever see O'Dwyer and McCurry at your house?

           Answer. I never did.

           2. Did you ever suffer Thomas Bartlett to draw any spirits?

           Answer. I never did.

           3. Did you ever draw spirits and give it to him to serve your Christmas?

           Answer. I might have done so, but seldom, and I always pointed out the company he was to serve.

[424] Thomas Connor sworn. Question by O'Dwyer. Did you see me at Mr Rawley's farm at Georges farm the day after Christmas Day?

           2. Not to my recollection on that day, but I saw you on Christmas Day on your own farm.

           Bryan Donnelly sworn. Question. Do you know Dominick McCurry?

           Answer. I do.

           2. What is your opinion of his conduct in this colony?

           Answer. Sometime back I drew a note in favor of Anthony Size (since killed) and was a witness to the note. One Anthony Size being killed, McCurry came to Sydney and asked me if I had not a note of his in my favour. I informed him that I had two, one in favour of himself, and another in favour of Anthony Size and endorsed by him to me. McCurry drew out a book and swore that he never signed his name or mark to any such note. Court adjourned.

           15th May court met. Thomas Linch who was yesterday examined on report of the prisoner O'Dwyer sworn.             Question. On what part of Rocks do you live?

           [425] Answer. On the further part of the Rocks.

           2. You say that you saw O'Dwyer at your house on the two days preceding Christmas Day. For what purpose did he come?

           Answer. He came to my house for some spirits.

           3. Did he come to any other purpose?

           Answer. He did not.

           4. How long have you known O'Dwyer?

           Answer. I have seen him after since he has been in the colony, but I never had any discourse with him before.

           5. At what time of the day was it he came to your house the 23rd?

           Answer. About 12 o'clock.

           6. And you positively swear that you was not at work at that time? At Mr Campbell's?

           Answer. I came home to my dinner between 12 and one on that day. I then saw O'Dwyer at my house.

           7. Who was in the house besides yourself at the time you mention?

           Answer. I believe my woman.

           Michael Houghlaghan sworn. Question by O'Dwyer. Did you see me at Georges River on Christmas Day?

           Answer. I did between 7 or 8 o'clock.

           2. Did you see me on the evening of the same day, and who was I in company with?

           Answer. I saw you again after dinner [426] in company with your wife and your government men.

           3. Did you not see me the next day on Mr Rawley's farm?

           Answer. I saw you the next day on Stroud's farm.

           4. Did I not come to you for some cabbage plants two days after Christmas, and then inform you that I was going to Parramatta for a cask of beef?

           Answer. You did, and you then informed me as above stated.

           Question by court. Do you remember seeing Grady at Georges River ?

           Answer. I do.

           2. How many nights did you sleep at Stroud's farm?

           Answer. Two nights.

           3. Did you go into Parramatta with him?

           Answer. I did, and we had a pot of beer at Marner's. We then separated, and he went the road leading to his master John Ramsay's house.

           4. What time of the evening was this?

           Answer. Between six and seven, and he never spoke to any person whatever in the street at Parramatta that night whilst I was with him.

           John Harris esq. sworn. Question by O'Dwyer. Did you see me at Sydney on Christmas Eve?

           Answer. I did not but hearing O'Dwyer was at Sydney, and having received information that something improper was intended among the Irish, I sent John Redman the [427] Chief Constable to get the necessary information at particular houses I mentioned to him. He came back and informed me that O'Dwyer had been at some of the houses drinking, but had gone out to his farm some time before a constable had come to make the enquiry.

           2. Did you see me on the 23rd at Sydney ?

           Answer. I did.

           Question by O'Dwyer. Did you see me at Marner's house Parramatta about Christmas last and in whose company was I?

           Answer. I did, I was in the house at the time he came in. No person was with you at the time.

           2. Who was you in company with at the time?

           Answer. I was in company with Grady and Ryan.

           3. Did I speak to either of them at the time?

           Answer. No you did not.

           4. At what time of the day did this happen?

           Answer. Between 3 and 4 o'clock.

           Joseph Allen sworn. Question by O'Dwyer. Did you ever see me before?   

           Answer. Yes I have. I saw you about three months ago as I was coming from the Hawkesbury.

           2. Did you walk with me any part of the way?

           Answer. I did from the pond to Toongabbie where we parted.

           Patrick Field sworn. Question by O'Dwyer. Did you ever call at my house at Georges River [428] and at what occasion?

           Answer. I did in the month of February last on some business of Mr Knight's ... at Castle Hill.

           2. Do you recollect any conversation that passed between us at that time I was taking a log of wood on my shoulder at the creek near Mr Rawley's farm?

           Answer. Conversation passed about some pigs, but more particularly you informed me that Governor King had sent for you about an information he had received that a disturbance was to break out in which you was concerned, and you further informed me that Governor King thought such information groundless and had desired you to return to your farm, and get on with your business on it. O'Dwyer informed me that the information was groundless, that he had experienced too much distress at home on that account, and that he was determined to have nothing to say to any thing of a similar nature in this country and that the first man that mentioned anything tending to it, if he had weapon in his hand, he would knock his brains out.

           Hugh Byrne being put on his defence denies the charge. Is too sensible of the indulgence granted him by government to abuse it by acting in the manner charged to him.

           [429] Question by court to John Harris esq. In your official situation as Police Magistrate have you ever heard any thing prejudicial to the character of Hugh Byrne ever since his arrival in this colony?

           Answer. I never have. I always conceived him a good character.

           Martin Burke denies the charge the same question as the preceding one being put to John Harris esq. He says he never heard any thing prejudicial, in any particular, to his character.

           John Marner denies the charge, and the same question put as before John Harris esq. he gives the same answer.

           Thomas McCann denies charge and calls Mr Alcock, being sworn, question by McCann. I have for a length of time been working under your inspection. Did you ever see or hear anything tending to sedition, or in any manner prejudicial to a good character?

           Answer. Nothing. He did his duty as well as any other person.

           Question by the court. Has the prisoner in your presence ever boasted to the gang or otherwise of his having been active in the mutiny of the fleet and that he was the person who handed Governor Bligh over the side of the ship at that time?

           Answer. He did.

           [430] The same question as before put to John Harris esq.; says that he knows nothing against him.

           William Morris denies the charge and calls Michael Henley who being sworn. question by Morris. I have been in your service within three days of three years. What is your opinion of me as to any general conduct and character?

           Answer. I found you always honest, sober, and quiet.

           Arthur Davelin being put on his defence denies the charge and calls William Hutchins of the New South Wales Corps who being sworn. Question by Davelin. How long have you known me, what has been my general conduct as far as it has come within your knowledge?

           Answer. I have known you about 12 months. I always considered you as a quiet industrious man.

           John Kavanagh sworn. Questioned by Davelin. Do you recollect seeing me at Squire's the beginning of January last?

           Answer. I do.

           2. Was it in the morning or the afternoon the day you speak of?

           Answer. In the afternoon.

           3. What conversation passed between us at that time, and particularly on what occasion O'Dwyer's name was mentioned?

           Answer. You informed me you was going to Hawkesbury with a load of beer. I told you that O'Dwyer [431] had gone up with a cask of beef, on which you replied that as yourself and O'Dwyer had had some difference you would not go.

           Walter Clare being put on his defence denies the charge. Court adjourned.

           18th May court met. Michael O'Dwyer delivers into court the paper no. 1 which was read by the Judge Advocate.

           Arthur Davelin delivers into court the paper no. 2 which was likewise read by the Judge Advocate.

           Thomas McCann delivers into court the paper no. 3 which was likewise read by the Judge Advocate.

           Michael O'Dwyer - not guilty

Hugh Byrne - not guilty

Martin Burke - not guilty

John Marner - not guilty

Thomas McCann - guilty

William Morris - guilty

Arthur Davelin - not guilty

Walter Clare - not guilty

           Sentence. After the most mature deliberation on the respective testimonies that have appeared before the court, the court is fully of opinion that the charge as set forth in the indictment is fully proved against the prisoners Thomas [432] McCann and William Morris and the court therefore doth adjudge and sentenced said Thomas McCann and William Morris to receive 1000 lashes each, and the court further recommend that the said prisoners Thomas McCann and William Morris (being delinquents of the most dangerous principles of character) be removed by the most speedy consequence to some distant place, where the baneful influence of their example cannot be experienced nor disseminated among other ignorant and deluded convicts.

Note

[1] This case concerns a second planned Irish insurrection after the Castle Hill rebellion in 1804 (as to which, see Marsden v. Mason, 1806 above). This one ended without bloodshed, and the trial before the Court of Criminal Jurisdiction was undoubtedly lawful. Despite his involvement in suppressing the first rebellion, Major Johnston appeared as a member of the military jury at this trial.

           See also in State Records N.S.W., Court of Criminal Jurisdiction, Miscellaneous Criminal Papers, 5/1152, p. 123; Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, 5/1145, p. 381; and see B.W. O'Dwyer, "Michael Dwyer and the 1807 Plan of Insurrection" (1983) 69 Journal of Royal Australian Historical Society 73.

Published by the Division of Law, Macquarie University