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

R. v. Jamieson [1827] NSWSupC 31

manslaughter, Aborigines, killing of

Supreme Court of New South Wales

Stephen J., 16 May 1827

Source: Sydney Gazette, 18 May 1827

John Jamieson, jun. a settler, was indicted for manslaughter, in killing an aboriginal native called Hole-in-the-book, at Brownlee, in the County of Argyle, on the 31st of December last.[1 ]

The Acting Attorney General (W.H. MOORE, Esq.). stated the case as one, at the very utmost, which could not amount to more than the offence that was laid in the information.  It was evident that the prisoner acted under an impression that a murder had been committed by the native whose death he was charged with having occasioned, and the circumstance attending which, he had himself communicated, immediately after the occurrence, to His Excellency the GOVERNOR, in a letter which he (Mr. Moore) in justice to the prisoner would then read to the Court.  Mr. Moore then read the following letter, addressed to His Excellency the GOVERNOR, by the prisoner, that will be found illustrative of the matters which were afterwards detailed in evidence.

            SIR,Greenwich Park, January 3, 1827.

It is with deep regret I have to inform you, that one of my men, in the capacity of watchman, came over to my farm, on the 23d of last month, which he usually did once a-week, for the shepherds' rations, being a few miles from my place.  He left in good time; but, poor fellow! he was not allowed to return back.  On the following morning, one of the shepherds informed me that the watchman had not come home.  I was much surprised, and conjectured he had gone astray.  I went in search of him, but got no tidings whatever.  I then began to think of some natives that were at my farm, the evening before it happened, and made off in the night, which was not usual.  Suspicion fell on them, that they had killed the man and dog --- a most sagacious animal --- for, had the man lost himself, as the other men said, the dog would have made to the folds, by sun-set.  I saw there was no time to be lost.  I wrote to the district constable, as the Magistrate was not at home.  I waited two days, and no constable came, so I thought it was high time to go myself in pursuit hearing, the evening before, that the natives had been seen with some sugar.  Accordingly, I prepared myself, and took two men with me, well armed.  The first place I made for was Wollondilly.  There I fell in with the very natives that made off, on the very night before the murder was committed, evidently having it planned the day before.  I immediately made them all prisoners, and charged them with killing my servant, which, in a little time, a girl and three boys confessed was the case; but that the black, naming him and his gin that had done the murder, was gone to Bong Bong, and that the man's body was cut up, and put in a hollow tree, and the dog buried.

I saw the first thing necessary was to pursue the savages that committed the deed.  Accordingly, I made the four secure at Wollondilly, that I wanted to shew me the body, and six more, two men, three women, and a boy, I sent off to Bong Bong.  Mr. Bayne then informed me, that the native, Hole-in-the-book, and his gin, had left the others two or three days; and I must here mention the handsome and ready manner Mr. Bayne offered to assist me in taking the ruffian.

We started off for Bong Bong, and there heard that he was at Mr. Wright's the day before; but a man coming in about the same time, and telling the people that Mr. Jamieson had a suspicion of Hole-in-the-book for killing his servant, another native, hearing what was said, told Hole-in-the-book who was standing outside.  Mr. Wright noticed how the savages' countenance changed.  They made off directly, saying they were going to Browly, a farm at a little distance from the public road.  A man put me in the way, and I pushed on, as it was then getting late.  On coming in sight of the place, I said, "Mr. Bayne, there they are."  The moment they got sight of me, they shrieked out "Jamieson!" and ran in every direction.  I soon got my eye on his gin, and rode on her so quick, that she took up a mail tree.  I called out to Mr. Bayne to secure her, but he mistook what I said, and rode after another black, thinking him to be Hole-in-the book, but I caught sight of the ruffian, and soon pulled him up, desiring he would stop, or else I would shoot him, but he would not.  At last he got over a fence, and ran through the wheat, to evade the horse.  I now thought I should have lost him, but I sprang from my horse, and got over the fence, and now hard running took place.  I was determined to have the ruffian if possible.  I soon came up to him, and not wishing to shoot him, if I could take him without, I pacified him to walk towards the house, which he did, though with great reluctance, and by this time, Mr. Bayne returned, seeing his mistake.  Four or five men and two or three women came to meet me, to see what was the matter.  I desired one of the men to go to the house for a cord to tie his hands.  I then told him, in the presence of the people standing by, what he had been guilty of.  He looked horror-struck when he heard I was in possession of every particular, and I said the Governor would be sure to hang him.  It was now nearly dusk, and I was stretching out my hand to take the cord to secure his, when he made a sudden dart and ran.  I saw there was no alternative but to fire.  I did so, but the first barrel seemed to take no effect.  I gave him the second, and he still continued running until he fell dead.  I have now stated every particular, for fear there might be any misrepresentation.  I went immediately and informed Mr. Throsby.

The six natives that I was sending to Bong Bong, got away from the two men that had them in charge.  The men endeavoured to get them through the brush, before the night came on, but they would only walk as they pleased.  When it got dark, they made a sudden start, and got clear off.  I do not attach any blame to the men, for I am sure they did their best, and I hope from this ready and willing behaviour, your Excellency will give them some indulgence.  On our return to Wollandilly, we found the four safe, and one more the man had got.

I had them brought to my farm, to shew me the man's body; but, after a long and useless search, we could find nothing.  I got very vexed with them, at last, seeing they were making entire fools of us.  They then confessed that the man was cut in pieces, roasted, and eaten, and likewise the dog.  They then took us to the place where the fire had been made, but all we could find was a bit of the man's small entrails, a piece of bone which they said come out of his leg, and a little bit that belonged to the dog's scull.[sic]  It seems they were so sure of no suspicion ever being on them, that, when they eat the flesh, they burned the bones to ashes; and it further appears, that where the man was killed, they made the fire over the spot.

What will your Excellency think of the natives now?  I have been living up here nearly four years, in all that time never had any words with them, treated them in the kindest manner, likewise my people, two of their children had been living in my house for six months, and only left the day before the horrible deed was committed.  After all my kind treatment to them, they waylay one of my men, within little more than half a mile from my door, and not content to take the meat, sugar, and tobacco, the poor fellow had with him, the cannibals must destroy an inoffensive and faithful servant.  I have done my duty as a master, in looking so strictly into this matter, and I have no doubt that your Excellency, together with the public at large, will approve of my conduct.

I have only to add, that I trust your Excellency will, for the safety and protection of His Majesty's faithful subjects, make a proper example of the whole that were accessary to this cruel and wanton act; and that by, as we supposed, our civilized tribe.  I think this will for ever put down any advocate for the aborigines of Australia.  The three boys and the girl, that are in custody, I much wish would be taken into your Excellency's presence, as they would then shew unto your Excellency, in what form Hole-in-the-book cut up the unfortunate man.

I have the honour to be,

your Excellency's most faithful

and humble Servant,

(signed)JOHN JAMIESON, JUN.

To His Excellency Governor Darling, &c. &c. &c.

Shortly after this letter was written, it was discovered that the man, a servant belonging to the prisoner, who had been missing, and was supposed to have been murdered by Hole-in-the-book was alive, having lost his way in the woods.  It was, however, supposed, notwithstanding, that some person had been murdered; for, in corroboration of the confession of the natives, some bones were discovered, which, on being shewn to a Surgeon, who was then in attendance before the Court, he had given it as his opinion were human bones.  He (Mr. MOORE) however, knowing that a native had been shot, though, as he was ready to admit under an erroneous impression, still, considering the office which he held, he had deemed it his duty to bring the case before the Court, and would proceed to call witnesses who would state the circumstances which took place on the occasion.

Mark Russel stated, that he resided at Mr. John Wait's, at Bong Bong, in December last; on the 31st of December, or the 1st of January, in the afternoon, witness saw the prisoner on horseback, accompanied by another person, riding after a black native, who was running away from them, across a field of wheat; the prisoner, who had a double barrelled gun in his hand, alighted from his horse, and pursued the black, who had got over the fence across the field; the prisoner overtook, and brought him back to the end of the field, when witness went to his assistance; the prisoner said the black had killed a servant of his, and asked for a rope to secure him, which was procured, and witness held the prisoner's gun whilst he attempted to tie the hands of the native behind him; the native resisted, would not suffer his hands to be tied, and made off; the prisoner called out after him, that if he did not stop, he would certainly shoot him, which was disregarded by the native, who still kept running; the prisoner then fired, when the native was about 28 yards off, but he still continued to run; the prisoner again called out two or three time, to him to stop, but the native still running on, the prisoner discharged the second barrel of his piece after him, when he was nearly 40 yards off; the native ran for about 39 yards, as appeared when the ground was measured, after the second shot, and then fell; witness did not go up to the spot where he fell, at that time, nor see the body till the evening; cannot say where he was shot; believes the person who accompanied the prisoner was Mr. Hannibal McArthur's overseer; did not see any constables with the prisoner at the time.

Cross-examined by Mr. W. C. Wentworth --- The native understood English very well; when the prisoner taxed him with the deed, he said he had killed no man; witness thinks he would have escaped, had not the prisoner shot him; witness lives in Argyle, but not near the residence of the prisoner; does not know of any man being missing there; does not know what sort of a character Hole-in-the-book was.

Edward Parker, Government servant to Mr. Wait, stated, that he was in his master's paddock, bringing up a calf, on the 31st of December last, when he saw two gentlemen riding along the road, but did not at that time, know who they were; the prisoner was one; when witness saw them riding up, there were some black people about Mr. Walt's place, who, when they saw the persons approaching, all ran off, in different directions; the prisoner followed one of them on horseback; the native jumped the fence, and ran through a wheat-field; the prisoner alighted and pursued him, calling out to him at different times to stop, which was not heeded by the native; the prisoner at length overtook him at the end of the field, and brought him to the draw-rail of the fence, calling at the same time on witness, and others who were present, for assistance, as the native had killed a servant belonging to him, and observing he was glad he had taken him alive, rather than he should have shot him; the prisoner sent witness for his horse, and when he returned, found that he (the prisoner) had sent for a rope, which was brought, and giving his gun to the last witness, Russel, to hold, he desired the native to turn round whilst he tied his hands behind; the native said "beal you tie my hands," and ran off; the prisoner took his gun from Russel, and called out several times, to the native to stop, or he would shoot him; the native would not stop, and the prisoner fired after him, but he still kept running; the prisoner again called after him once or twice to stop, or he would fire again, but the native not complying, the prisoner fired again, and after running about 30 yards further, the native fell dead; witness went up immediately to the spot, and found him lying on his back; the prisoner asked if he was dead, and being answered "yes," replied he was sorry for it, as he would rather have taken him alive; one shot went through his head.

By a JUROR --- He would have escaped if the prisoner had not fired the second time.

By the COURT --- When the prisoner was endeavouring to secure him, the native understood all that was said; he could speak English, and understood what was said to him nearly as well as witness could.

Cross-examined.  The native knew what the prisoner had arrested him for very well.

John Fuller stated, that he is Government servant to the prisoner, and lives on his farm; knew a man named Henry Preston; he lived on a farm belonging to Mr. Stuckie, about five miles from where witness lives, and was also in the prisoner's employ; Preston was in the habit of coming weekly to Greenwich Park for rations; he came as usual, on the Saturday before Christmas-day last; the same night, it was reported to his master (the prisoner) that he had not reached home with the rations; there were a tribe of natives about the neighbourhood at this time, and also two natives living in the Government men's huts; the prisoner to when [sic] the news of Preston being missing was told, left home on the following Monday morning in search of him; he returned the same evening, and expressed his fears that Preston had been made away with, meaning that he was killed; witness had occasion to go to a place called Mulvana, and was absent from the farm for several days; shortly after his return, news was received that Hole in the book's gin had been seen with plenty of sugar, and that the nets of each of the tribe were filled with provisions; this information was communicated to the prisoner, who directly intimated his suspicion that the natives had killed Preston, from their having so much sagar [sic] and provisions with them, and expressed his determination to go in pursuit of them, which he accordingly did, accompanied by two men belonging to the farm; on the Tuesday following, this party returned, bringing with them five black natives and a constable; the prisoner said, "Hole in the book has killed Preston;" witness was told by Hole in the book's gin, that she had eaten part of the man's arm that was missing, and whom she described to be Preston; the natives consented to take the prisoner to a place where the bones of the body had been left, and accordingly brought him, and his party to a hollow tree, next to which a fire had been made; they produced the plinter bone of a man's leg, and promised that, on the following day, they would also produce the bone of the man's arm, which they did, together with some more bones, and some entrails, evidently those of a human body, and which they said belonged to Harry, which was the name that the man who was missing was known to them by; Hole in the book's gin also drew from a water hole, the bone of a man's arm; the natives afterwards took the party to Wollondilly, where they came up with a strange black, called by the others Billy Rooty, who was employed in breaking some bones; the several pieces of bone as found, were collected, and shewn to Dr. Elyard.

Cross-examined --- All the natives concurred in saying, that Hole in the book had killed the man Harry; his gin made the same statement.

Mr. John Bayne stated, that he is Superintendent of a farm belonging to Mr. Hannibal McArthur, in the County of Argyle; remembers hearing of a man being missing in that neighbourhood, about the latter end of last year; shortly after witness heard this, a tribe of natives came on the farm, whom he asked if they knew whether a servant belonging to the prisoner had been murdered; they appeared much agitated, but gave no reply; on the Sunday following a native came to witness, and asked him if the soldiers were coming, and complained of being lame, and that he should not be able to run away; the natives, generally, seemed to entertain some fear of this sort; witness thought it prudent to remove an impression of this sort from their minds, and told them that they need not be alarmed, as no soldiers were expected; the prisoner came to witness; house, shortly after, and as they were sitting in an inner room conversing, a native named biddy came to them, and told them that Hole in the book and his gin were the persons who murdered the prisoner's man; Hole in the book stayed on the farm only one day; he had gone away to Bong Bong, whither witness accompanied the prisoner; on arriving there, they heard that Hole in the book having heard of the suspicions that were entertained of his having murdered the prisoner's man, had gone precipitately away; witness and the prisoner then set out in the direction of Mr. Wait's farm, where they found Hole in the book, his gin, and two other natives; as soon as the natives saw witness and the prisoner approach, they dispersed, and ran away in different directions; witness pursued one of them; the prisoner ran after Hole in the book, whom he finally overtook and secured, the prisoner asked him why he ran away, but he gave no answer; it was then agreed to take him to Bong Bong goal, preparatory to an enquiry being instituted relative to the supposed murder; a piece of cord was procured from some men who were close by, with which it was intended to tie the native's hands, with a view in taking him to gaol with more safety; Hole-in-the-book resisted and ran off; the prisoner repeatedly called on him to stop, he not complying, the prisoner fired, but he still kept running, seeming to pay no regard to the prisoner's threats, who then fired a second time, when Hole-in-the-book, after running a short distance, fell, and died instantly.

By a Juror. --- If the second shot had not been fired, he would certainly have made his escape.

Cross-examined. --- Witness has no doubt but that the natives killed some man; it was strongly impressed upon witness' mind at the time that they had killed Preston, from the circumstance of their distributing tobacco among the men on the farm; and it being known that Preston had some of the same sort with him, and some sugar, of which also the natives appeared to have a quantity; witness knew Hole-in-the-book very well, and thinks if he was put to the bar for killing one of his companions, or a white man, he would understand what was going on; if he was innocent, witness thinks he would understand how to defend himself, and know the necessity of calling witnesses; witness has known some of them to do so when he has called them to account about many things.

Henry Preston (the man who was supposed to have been murdered), stated, that he went, according to custom, to the prisoner's at Greenwich Park, for the rations, about 2 o'clock in the afternoon of the 23d of December last; Greenwich Park is about five miles from the out-station where witness is employed; on his return back, witness quitted the regular path, for the purpose of seeing an acquaintance, a shepherd, whom he expected to find; and went astray in the woods, nor could he discover any station till he got to Mr. Blackman's at Burragarang, on the 2d or 3d of January, about 40 miles from the main road, and nearly 80 miles from the place to which he was proceeding.

Cross-examined. --- Hole-in-the-book and his tribe were on the prisoner's run when witness was returning home with the provisions; Hole-in-the-book asked for some tobacco, but witness told him he had none; he was at the out station on the preceding evening, and wanted some flour, which witness told him he could not have, but offered some wheat, if he would grind it, but he refused; witness had 21lbs. of meat with him, and some sugar, and tobacco, when he went astray; was ten days absent before he was found, and was then in a state of complete exhaustion; part of the meat was fresh mutton, and becoming blown, was given to the dog; the remainder which was in a bag with the sugar, witness dropped into the river, when climbing a perpendicular rock in endeavouring to discover his way; was not robbed by any of the natives.

Dr. Elyard, late surgeon in the Navy, and at present coroner for the County of Camden, stated, that he held an inquest on the body of a black native called Hole-in-the-book, on Wednesday, the 3d of January.  There was a gun-shot wound in the back part of the head, and one of the like nature between the shoulders; either of the wounds would have caused death; they appeared to have been given with buck shot; hearing afterwards that the body of he man who was supposed to have been murdered was found, witness proceeded to Greenwich Park, the residence of the prisoner, accompanied by a constable belonging to Mr. Throsby; there was no body found, but only some bones which were shewn to witness; there was part of a shin bone, a left collar bone, and a bone of the arm, produced by a man named Fuller, which witness, as also Dr. Reid, who had seem them, had no doubt were human bones; witness, on his way to the prisoner's, met some natives with whom he spoke, and who told him that a black woman had eaten part of the arm of a man who was murdered; and even after Preston had been found, and appeared in the Court, they persisted that a man had been killed and eate[n], but described him as a white headed man, or flour-headed, as they called him.

Cross-examined. --- The verdict of the Jury, who sat on the Inqu[e]st held on Hole-in-the-book, was justifiable homicide; witness saw some fat picked up, but it was mixed with red ochre, which prevented him from speaking positively to its description, though it certainly was different from any he had usually seen; the natives said it was part of the fat taken from the kidney of the man who was killed; witness has not the least doubt but some man had been murdered, and has heard so from other natives; knows that an investigation was held before the Magistrate of the district, subsequent to the inquest, and that they made a report to Government.

The report of the Magistrates, by the consent of the Acting Attorney General was then read by Mr. Wentworth, and stated, in their opinion, after a full investigation of the case, the conduct of the prisoner was perfectly justifiable, under all the circumstances, and that they themselves would have acted in a like manner.

The case closed here.

His Honor Mr. Justice STEPHEN minutely recapitulated the whole of the evidence, and observed, that the only question for the consideration of the Jury was, whether, from all the circumstances of the case, there was reasonable ground for the prisoner to suppose that a felony had been committed by the deceased native.  It should never be understood for a moment, that the natives were not equally under the protection of the laws with any of His Majesty's subjects in the Colony; neither should it be understood that where there was reason to suppose a felony had been committed any person was not authorized in securing the individual without any warrant or assistance from the civil power; therefore, as he had already stated, though no doubt could be reasonably entertained, that the native had come by his death in consequence of a shot fired by the prisoner, still the question for the Jury to determine was, whether there was sufficient ground for the prisoner to entertain a belief that a felony had been committed by the deceased, as, if so, then he was authorize[d] in law to resort to force in order to prevent his escape.

The Jury, almost immediately, returned a verdict of Not Guilty and the prisoner was discharged by proclamation.

Notes

[1 ] See also Australian, 18 May 1827.  On that day it commented as follows: "We have given a long report of the trial of Mr. John Jamieson, for manslaughter, in destroying a Black Cannibal who had murdered a stockman or other servant, and who, after being laid hold of in consequence of the act the black had committed, contrived to effect his escape from his capturers.  The trial caused a good deal of interest, mingled with a portion of surprise, that the charge of manslaughter should have been preferred against Mr. Jamieson, and that he should have been compelled to appear in the Supreme Court, after a Coroner's Jury had returned a verdict of justifiable homicide.  It does not seem that any imputation was thrown upon that verdict - a verdict supported by the unanimous testimony of the district Magistrates, who, on being called upon, said enough to acquit the defendant, and to prove the propriety of his acquittal by the Coroner."

Published by the Division of Law, Macquarie University