Decisions of the Superior Courts of New South Wales, 1788-1899
R. v. Tommy  NSWSupC 70
Aboriginal defendant, execution - murder - Bathurst - capital punishment, at place of crime - capital punishment, dissection - capital punishment, public - Crown mercy - sentencing discretion - Aborigines, religious conversion of
Supreme Court of New South Wales
Forbes C.J., 24 November 1827
Source: Monitor, 26 November 1827
SATURDAY. - An aboriginal Native was arraigned by the name of "Tommy, alias Jackey, Jackey," for the wilful murder of Jeoffrey Connell, near George's Plains, on the 20th of June last. The prisoner it would seem, could not speak English, and therefore the Rev. Mr. Threlkeld and Bungaree, the Chief of the Sydney Blacks, attended as interpreters for him.[1 ] It appeared from the evidence, that on the evening before the day on which the murder was committed, the prisoner at the bar came, unaccompanied by any other of his tribe to the hut where deceased and a man named Oliver, both in the employ of Mr. Kable were stationed, to tend a flock of sheep; and from the peculiar ferocity of his countenance, Oliver expressed a suspicion that he had some hostile designs upon them. They however, according to a custom pretty generally practised among stockmen, entertained him with a part of their fare - he smoaked his pipe, and having waited about an hour, departed, seemingly little thankful for the kindness shewn him. He had it seems encamped for the night, about two hundred yards from the hut with his two "Gins," also a boy, and an infant. On retiring to rest, Oliver expressed to deceased his apprehensions that "Jackey Jackey" was on no good design, and in order to guard as much as possible against any hostile attempts during the night, released the dogs, and let them range at large, himself also placing a sickle under his head, as there were no fire arms at the station. Early the following morning Oliver arose, and before going out with the sheep, directed deceased (who was hut-keeper) not to prepare breakfast for about an hour and a half, but give the black fellow and his family some food, and get rid of them as easily as possible, and that he would return to breakfast at the prescribed time. About one hour and three quarters after he had left the hut, a Kangaroo bitch came running to him, and first jumped up to his breast, and then seemed as if it wanted to re[t]urn home - continually repeating the same motions, witness's attention was at length attracted; and suspecting something had happened to Connell, he followed the animal in the direction of the hut, which when he reached, he found was consumed to the ground. About two yards therefrom, there was a small fire, in which deceased was lying; his head broken and burned - his legs burned also, and his right arm placed across his heart. Witness fainted at the appalling spectacle, and lay senseless for some time. However, a sense of his own immediate danger occurring to his mind, tended to remove the temporary weakness with which he was affected, and he recovered, called his dogs, and made away in a direction to George's Plains, where he obtained the assistance of another man, who with a stick and some dogs accompanied Oliver to the black's camp, where they found an empty box which had contained tea, sugar, a yellow jacket, and some other things. They then tracked the blacks to the bank of a creek, where the mark of a bare foot was evident; and as the direction to which it tended was considered too far to pursue the Natives it was determined to return and drive the sheep to the Government station at George's Plains. On their way home, they fell in with two stockmen, mounted on horseback, searching for government cattle, to whom they related the circumstance, and they returned with them to the hut, viewed the body, and then departed in the direction pointed out to them as that which the blacks had taken. Shortly afterwards, one of the stockmen (who was looking after cattle) found them in a valley, and refused to go any farther with the other, who was in quest of horses; upon which the latter went alone, and had not rode far, before his attention was arrested by a loud shriek, when he spurred his horse, and galloped towards the place whence the noise issued. In was on the side of a mountain that he beheld the prisoner Tommy - two black women - one of them far advanced in a state of pregnancy - one little boy, and a young infant. The Prisoner, upon seeing the horseman approach, hastily took up the infant and ran up the mountain. He then stooped, and picked up a bundle, about the bulk of a bushel of wheat, with which he resumed his flight. The side of the mountain was too steep for the stockman to ascend on horse-back, and the fear of being similarly treated to the deceased, deterred him from pursuing them alone on foot; so that he turned upon his proper course, and made off for George's Plains with the account. This was the case as affected the prisoner. The defence set up by the latter was in his native tongue, mingled with broken English. "Baal kill white fellow," "Baal make fire." This was elicited from him by repeated questions put by Mr. Threlkeld and the Chief, Bongaree. The Chief Justice in charging the Jury, said, that there did not appear to him any thing which could exculpate the prisoner from the charge brought against him, and that the case in his opinion was fully made out, unless the Jury could suppose, that the three men who were the principal evidences in the case, and who were in different employments widely apart from each other, could have coalesced in plotting the prisoner's destruction; but as this did not seem probable, no doubt of the prisoner's guilt remained on his mind. With regard to the liability of the Aboriginal Natives to English law, (continued His Honor) they certainly were amenable in every essential point to be controlled by it: - but how much more so in the case of murder? which was an offence against the law of nature and of nations; and which required that whosoever shed man's blood, should pay his own in forfeit. Supposing the prisoner at the bar to have been never so ignorant, he was very conscious of having violated a law in slaying a fellow creature, or why scream out and fly at the approach of a pursuer? The Jury retired for about five minutes, and returned a verdict of GUILTY. The Judge then passed sentence of Death on the prisoner, and ordered him for execution on Monday.[2 ]
Source: Sydney Gazette, 28 November 1827
The execution of the sentence of death passed on the aboriginal native, Tommy, for murder, and which was to have been carried into effect on Monday last, has been respited sine die. The grounds of the delay are variously stated. An Executive Council, it is said, will be summoned to consider the propriety, under all the circumstances, of putting the sentence in force; but the most received and public opinion, more particularly after the observations of the Chief Justice, as to the law of the case, on the trial, is, that the prisoner is to be transmitted to Bathurst, the scene of his crime, in order that the execution may operate as a warning to the tribes about that settlement.
Source: Monitor, 29 November 1827
We do not know any thing that has given us more satisfaction, as regards the interests of national justice, than the prosecution by our new Attorney General, of the Ab-original Native, for the murder of a quiet, harmless just-keeper, in the neighbourhood of Bathurst. We entirely agree with the Chief Justice in the sentiments he delivered in summing up the evidence on the trial of this Black, seeing that the latter was accustomed to receive from the white people civil treatment, and a certain degree of hospitality. Thomas Taylor, of Lake Bathurst, a hut-keeper belonging to Dr. Sherwin, was murdered by the Blacks, in manner differing somewhat to that of poor Geoffrey Connell; but under circumstances equally unprovoked, and fully as atrocious, save, that poor Connell was not cut up in junks, roasted, and eaten, by Jackey Jackey (the present murderer); whereas, all the fleshy parts of poor Taylor's body were cnt [sic] off, part eaten then and there, and the rest carried away to be devoured another time. The brave and discreet Captain Bishop, with a troop of the horse patrole, (then just raised) captured one of the black murderers of Lake Bathurst, and lodged him safe in Sydney Gaol. There he lay for a considerable period; we suppose it must have been six months. During this time, we did all we could to convince Mr. Bannister, of the legality and expediency of bringing the Savage to trial; but in vain. The man was finally let out of Gaol; not banished the territory, but turned adrift without the least restraint, and he actually returned to Lake Bathurst, the scene of his wickedness, as if on purpose to exasperate the white stockmen by his hated presence. It comes to our knowledge, that several stock-men had resolved to kill this man whenever they met with him privately; and to bury him or burn him, so as that he should never be head of more. A most illegal and improper determination we admit; but the people of Lake Bathurst vindicated their intention, not indeed on the law of man but on the law of nature and of divine revelation. This anecdote proves, at all events, the strong instinctive aversion there is in civilized men, from letting a murderer live. The intention just-mentioned, however, became known to the murderer after his return to Argyle, and he suddenly absconded. It is reported he left Lake Bathurst for the interior wilderness, to join a distant tribe of his countrymen south of the Snowey Mountains. Some indeed have entertained the idea, that retributive justice overtook this Native, and that a musket ball avenged the death of Taylor. We however have reason to believe, that the man really absconded, and is now a resident among the Appenines, south of the Limestone Plains.
Up to the present date of the trial of Jackey Jackey, we had always concluded, that our Chief Justice and Mr. Bannister, had mutually agreed on the unconstitutionality of the position, that the Heathen tribes of New Holland were in respect of murder subject to English law. For we did not suppose that so young a man as Mr. Bannister, would have chosen to take upon himself the responsibility of deciding such a question opposed as (it seems now) his opinion was, to that of a Judge whose powers of investigation, talent for reasoning by analogy and comparison, and logical mode of deduction, are, to say the least, not common, even among Barristers and Judges. The question was, in our opinion, most important. Man, as a rational creature, on whose mind God has stamped a sense of justice in indelible characters, cannot sit down contentedly, and see his fellow man, his neighbour or kinsman, murdered, roasted, and eaten, without craving after satisfaction. If Mr. Bannister thought he could, we differ from him most essentially. The consequence therefore of Mr. B's. not bringing the Blacks to justice, when they murdered the whites, would necessarily have been, a system of secret assassination and butchery, among our people, on all the confines of the interior settlements, alike inconsistent with law, reason, justice, and humanity. As Mr. B's. notions of law went to constitute the Ab-origines, a species of wild beasts, their attacks upon the whites, and on their property, would naturally, and we think we might say, necessarily, be repelled, by the latter shooting and exterminating the whole race as fast as they possibly could. Schools and churches, baptism, confirmation, and Sabbath-keeping, will be unknown on the confines of this Colony in a great measure; nay, such is the general sterility of Argyle, that we do not calculate on churches being built in that county, near enough to each other to collect the scattered population which cover a hundred miles of its surface, for a century to come. In the absence then of the ordinances of religion; - in the absence of Sabbath devotional employments; there would have been (had Mr. B's. law prevailed) the habit among our boors, of employing their leisure on a Sunday in hunting down the Native Blacks, as it is already customary on those days, to take out the hounds and hunt down the native wolf-dogs which make such havoc among our sheep. No Missionaries of modern times, we prognosticate, will ever settle on our confines to preach to the adult stockmen, and to baptize and catechize their children. For no Philanthropic Society in England would support such a class of teachers in sufficient numbers; and without good salaries, modern Missionaries do not seem disposed to labour. It is not to be expected, indeed, that any men in this day will be willing to spend their lives in poverty and privation, for the sake of a thinly-scattered people. Such is done by the Moravian Missionaries in Greenland; but we confess, that while we cannot but admire their patieuce,[sic] we consider their labours comparatively thrown away. Even St. Paul enjoyed the sympathy and consolation which attend the ministering to numbers; which attend the coming in contact with men capable of reasoning; although it was often in the way of contention.
The society of the Bush of Australia therefore; the pastoral country of Argyle; and other like sterile tracts of territory in New Holland, would gradually sink into a lawless banditti, if the law continued to refuse its protection to the Whites in the aggressions of the Blacks; and to the Blacks in the aggressions of the Whites; which appears to us would have been the result of Mr. Bannister's theory on this subject.
BUT by the late trial, and (as we devontly hope) by the execution of Jackey Jackey, on the very spot where he committed the fell deed, both the Blacks and the English will henceforward be taught, that the law, the matchless English law, embraces within its beneficent and protecting arms, men of all colours, and of every tribe, kindred, tongue, and people, over whom the British Government can by any means exercise dominion de facto. The late Attorney Genrral [sic] lacked conviction, that we could exercise this right de jure. The Chief Justice, contenting himself for his guide, with common sense and practical wisdom, has rejected fanciful theories; and reduced our right to bring Jakcey Jakcey to trial, to the following rule. "with regard to the "liability" (said Mr. Forbes) "of the Ab-original Na-"tives of this country to English law, they certainly "are amenable in every essential point, to be controlled" by it; and especially so in a case of murder. Murder "is an offence against the law of NATURE, as well as of "nations; and the law requires, that he who sheddeth "man's blood, shall be made to give his own in forfeit "Supposing the prisoner at the bar to have been never "so ignorant, still it was palpable that in the present "instance, he was very highly conscious of an internal "law, in the killing of Connell, or why scream out and "fly at the approach of a pursuer?"
THIS we take it, is not only plain common sense, which even Bungaree (the Sydney Chief) himself would agree to, if it were put to him but we doubt not, also, as agreeable to sound English law, as it is to the law of nature, of NATIONS, and of GOD. Not being Deists, but Christians; and being in a country where the Christian religion is the law of the land, (thanks be to God for the same,) we shall not hesitate to give what our English law holds to be the express revealed will of the Deity on this subject. "And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man. Whosoever sheddeth man's blood, by man shall his blood be shed; for in the image of God made he man."
THIS text is not part of the judicial law of the ancient Jews, as given by Moses It is not given to any nation in particular. It was delivered to Noah, the second father of the human race, and the representative of future millions. It is a primeval command. It was evidently given to Noah as the feudal head of the human race. No reservation is made. As the rainbow was given in the natural world as the pledge of a particular promise, so this primeval law was delivered as the wish and purpose of the Deity in regard to blood-shedding, which was to endure so long as the present state of things consists.
DR. PALEY intimates somewhere in one of his books, which we read a long time ago, that the law of the natural conscience, is, of all laws, the strongest and most binding upon man. He illustrates his position, by the supposed case of a savage being injured; either by a bodily injury, or by some mental outrage, such as deep ingratitude, and which in one form or other, all will allow it is possible might be inflicted upon the body or mind even of an Indian or a New Hollander. The pain which the injured man would feel by reason of such wanton injury, would unavoidably, and to a moral certainty, teach him to beware how he inflicted the like injury on his neighbour. And if, notwithstanding this conscience, (a still small voice in the first instance, but when defied and violated, a voice louder than thunder) he did inflict a like injustice at any time upon his neighbour, such savage would justly incur the charge of wilful guilt; he would be conscious it; and he would become a proper subject fo [sic] punitive justice. The screech of Jackey, Jackey, when he first had a glance of the way-faring Stockman - whence did it proceed? The agonized shriek of horror of the Lake Bathurst Savage too, when, hoisted stiff on his feet, the putrid mangled skeleton of Thomas Taylor presented itself to his starting eye-balls, what did that prove? Both instances proved the existence of remorse in the men, and that too in a very high degree; and loudly proclaimed how richly both deserved to be brought to condign punishment.
WE sincerely trust therefore, that while through the conscientious scruples of the amiable Mr. Bannister, the last-mentioned monster escaped, the first-mentioned will not be able to avert the doom, for which justice, both natural and judicial, so loudly calls.
THIS illustration of the nature of the natural conscience, shews clearly, that no rational being can fail to possess it more or less; (for he will possess it in proportion to his powers of ratiocination; among civilized men, those with great intellect are more conscientious than others;) and accordingly, the following text from the inspired Paul, establishes Paley's theory and our common experience on this subject. "For when the Gentiles, who have not the revealed law of God, do by nature the things contained in the law, these, though not having the law, are a law unto themselves: and shew its operation, written as it were on their hearts, their conscience bearing witness, and their thoughts and reflections the mean while, accusing and excusing them, in the day when God shall judge the secrets of man by Jesus Christ." St. Paul ought to be esteemed a first-rate Casuist even by Deists. 'Tis true, it is hard to believe a man to be a sound moralist, and of a benevolent mind, whom at the same moment we count an impostor; imposing on the world as the will of God, that which he never revealed; and, consequently, committing of all lies, the most heinous, the most blasphemous, and the most impudent.
Execution, 31 December 1827
Source: Australian, 31 December 1827
Monday morning witnessed the painful and disgraceful exit from this world, by the hands of the common hangman, of five criminals.[3 ] Four of them were white men, and one the black native, Tommy, or Jackey Jackey, who was convicted of murder several weeks ago; the other who suffered were John Carrington, William Lee, and James Charlton, for breaking into and robbing a hut, situated somewhere in the interior; and Wm. Pearce, for a robbery on the King's highway. All four were young men, in the prime and strength of manhood. They exhibited a degree of decency and composure, when mounted on the fatal drop, and exhibited to the view of the dense concourse of people who came to gaze upon their fate. The criminals did not long remain kneeling; they mounted, one after another, up to the scaffold-board, and were mustered and ranged by the hangman, who fitted the halters speedily, as they arrived; it was an awful sight. There were five human beings standing on the brink of, and ready to be hurled into eternity, without a hope - without the slenderest thread whereon to hang a hope of reprieve. Carrington professed himself a Protestant, and was attended by the Rev. Mr. Cowper; the other three by the two Roman Catholic Clergymen, Messrs. Power and Therry. Mr. Threlkeld, of the Wesleyan Mission, and the Rev. Dr. Lang, Presbyterian Minister, tried to bring Jackey Jackey to pray, but to pray he did not appear at all disposed. He nodded frequently to the gazing crowd below, but became restive when the white cap was drawn over to obscure his black features, and he struggled hard several times, and with success, in shoving it half way up the face. The executioner at length thought it necessary to give him a tighter pinion, which seemed to overcome the natural philosophy of the unhappy Jackey Jackey, and he grumbled "Baal me like it dat, you no pialla white fellow" - he then turned his head towards the north, and fell into an apparent state of torpor. Carrington wept bitterly. The five criminals died without considerable struggling.
Jackey's body, when cut down, was given for dissection.[4 ] His person exhibited an appearance of strength not always seen among the aboriginals; and his features, of wildness, which the thick beard, that bristled round his jaws, did not tend to soften. The Sydney blacks, and their gins, mustered strong, but did not appear to lament their countryman greatly.
Tommy, the black native, persisted to the last in denying all participation in the murder for which he was executed. He frequently said to one of the clergymen who occasionally visited him in his cell, "All gammon white fellow pai-alla cabon gunyah, me tumble down white fellow." It was all false that the white fellows said in the Court-house, that I killed the white fellow. He seems, indeed, to have been induced to believe, that if he should persist in denying all knowledge of the murder, the sentence would not be put in execution. The different accounts of it, however, which he gave at different times, afford the strongest presumption of his guilt, and when combined with the evidence adduced against him, leave no doubt on the subject. At first he merely denied all knowledge of the murder, frequently repeating the words, "All gammon, me tumble down white fellow." But on the evening of Sunday, after he had made his ineffectual attempt to escape from the gaol, he charged the notorious Saturday with being the murderer, and repeated the charge on the Monday morning previous to his execution; finding, however, that he could not gain any credit for this assertion, he subsequently accused Jingulo, another notorious character, in the Bathurst district. But on being told that it would be of no benefit to him to deny his guilt any longer, as the white fellow was coming with the kurryjong, and that he must die, he shook his head and said, "kurryjong bail boodgeree," by which he seems to have meant, "It is a sad thing to die in this way." Mr. Threlkeld, who had been with him for some time, then left the cell; when turning to the clergyman who remained with him, and exhibiting an appearance of earnestness which he had not previously evinced, he said, "Me like it pai-alla you gentlemen." I wish to speak to you Sir. "Bail Saturday tumble down white fellow, bail Jingulo tumble down white fellow, bail me tumble down white fellow -- Tommy tumble down white fellow, sit down Palabbala, bulla jin, like it me, brother." "Neither Saturday, nor Jingulo, nor myself killed the white man; Tommy, a black fellow, who lives at Palabbala, (about thirty miles from Bathurst) and has two jins, and is as like me as my brother, killed the white fellow."
After he had mounted the scaffold, he looked around him at the multitude, and said "cabon white fellow, cabon gentlemen sit down." He seems to have borrowed the word cabon, and several others which he used, and which we are informed by an intelligent proprietor of land, who resides beyond the Blue Mountains, are not in use among the natives of Bathurst, either from the stockkeepers or the aborigines of this neighbourhood, as he did not seem to use them in the sense in which they are used by the natives of the Eastern part of the Territory. When the executioner had adjusted the rope, and was about to pull the cap over his eyes, he exclaimed, with a most pitiful expression of countenance, "Murry me jerran." "I am exceedingly afraid," and immediately afterwards, casting his eyes wistfully around him, and giving a melancholy glance at the apparatus of death, he said, in a tone of deep feeling, which it was impossible to hear without strong emotion, "Bail more walk about," meaning that his wanderings were all over now.
When the executioner was about to do his duty, the Rev. Mr. Power, Roman Catholic Chaplain, who had previously been engaged in preparing those of the other criminals for their departure, along with his colleague the Rev. Mr. Therry, came to the end of the scaffold where Tommy was standing, and addressing him by name, asked him "if he wished to be saved? Displaying, at the same time, a bottle of consecrated water, with which he seemed desirous of performing the baptismal rite, before the miserable man should be launched into eternity. Tommy of course made no reply, but the Rev. Dr. Lang, who was standing by, ventured to remonstrate with Mr. P. on the gross impropriety of administering the ordinance of baptism in such a case, observing that the man could not possibly understand the nature of the rite, and could not reap any benefit from it in his present state of mind, as he was evidently a heathen, entirely destitute of all knowledge of Christianity; repeating, at the same time, the words of Scripture, "He that believeth and is baptized shall be saved," but nevertheless leaving Mr. P. to administer the ordinance, if he thought proper, at his own peril. Mr. P. replied by saying, "We baptize infants who do not understand the nature of baptism; he is in the same state;" and immediately making the sign of the cross on the native's forehead with the consecrated water, in nomine Patris et Filii et Spiritus Sancti, he told him, for his consolation, that "he should go to the Daia (the Irish or Gaelic word for God) that is, that he should be saved. Whether the Rev. Gentleman, in quoting the case of infants, meant to say that the case of a child whose parent or guardian is a member of the Christian Church, and solemnly engages at his baptism, to train him up in the Christian faith and practice, is exactly parallel to that of an adult savage who has never heard of the Gospel, and to whom the truths of the Gospel cannot possibly be made known, from our entire ignorance of his language; who, moreover, has been found guilty of murder, and dies in an obstinate denial of his guilt --- we do not know. At all events it is a hard saying, and we Protestants cannot bear it. The book of God does not forbid us to implore Divine mercy for such a person as Tommy, while he continues to live, but surely it does not authorise us to admit him to Christian baptism, and he who does so notwithstanding, profanes a divine ordinance and does so at his peril. The Saviour's commission to his Ministers in the last verses of the Gospel of St. Matthew, authorised them to "Go and teach (that is convert to the Christian faith or make disciples of) all nations, baptising them (when thus converted, or made disciples) in the name," &c. But would any of the original bearers of this commission, Peter or Paul for instance, have ventured to baptize a savage in his state of impenetrable darkness and hopeless barbarism, a murderer in his state of impenitence? If Mr. Power's commission is derived from their infallible successor, surely his acts bear but slight resemblance to the Acts of the Apostles.
Two of the men who died Roman Catholics, had acknowledged themselves Protestants on their entering the gaol. That institution, it is well known, is generally swarming with zealous and faithful members of the Church of Rome. When, therefore, there is any extremely illiterate Protestant condemned to die, he is immediately assailed by one or other of these constant inmates of the prison, and is told that there is no salvation out [sic] of mother Church. He is told, moreover, of the mystery of confession, and the clear conscience it leaves one; of the mystery of absolution, and the comfortable state it procures one; of extreme unction, and the safe passage it secures to another and a better world; of purgatory, that desperate resource of superstition, where any balance of iniquity that remains, after the final settlement with the Priest, is sure to be cleared away by an after consideration, prayers for the dead on the one hand, or purgatorial fire for a limited period on the other. The Protestant Minister, on the contrary, has a most dismal and unwelcome tale to tell, when he tells the culprit, that without such repentance as arises from a thorough and entire change of heart, he cannot be saved; that the law of God is peremptory in its condemnation of the guilty; and that the mercy of God is manifested only to the humble and contrite one. In this dilemma, the hardened and ignorant criminal, terrified at the approach of death and the certainty of judgment, and feeling none of that sorrow for sin, or sense of its heinousness which is indispensable in genuine repentance, throws himself into the arms of the Priest, who administers a course of opiates to the conscience of his willing patient, and lulls him asleep in the fatal assurance that all is well. We will not say that this was not the case with the two men who embraced the Romish faith on this occasion. We only state the fact, that they were to the last degree ignorant of the first principles of Christianity on their entering the gaol; as much so perhaps as the black native, while we leave our readers to form their own judgment of their conversion.[6 ]
[1 ] This trial was also reported by the Sydney Gazette, 28 November 1827, which reported that Threlkeld and Bungaree were unable to draw anything from the prisoner beyond a denial of having taken part in the transaction. See also Australian, 14 November 1827; and see the Aboriginal Defendant case, 1827.
"I have the Honor to enclose my notes taken in the trial of a native black, commonly called Tommy" or "Jacky" for the wilful murder of Geoffrey Connell, at Bathurst on the twentieth of June last. The prisoner has been convicted, and I have passed sentence upon him, and ordered his execution on Monday next agreeably to the act of Parliament but I have caused the execution to be respited until your Excellency may have an opportunity of looking into the case - The prisoner made no defence, and called no witnesses indeed he could not be made to understand the proceedings which were instituted against him - I think it is a case in which your Excellency will probably deem it proper to consult the executive Council." He wrote again on 8 December: "Fearing that my letter dated the 24th ult. Containing a short report of the case of the Native Black who was convicted of Murder may have escaped your Excellency's recollection I beg leave to remind your Excellency of that case as well as of many other prisoners who are confined in the Cells of the Gaol under sentence of death awaiting your Excellency's decision." The governor replied on 18 December, saying that the subject had not escaped him, but that he had been detained by the pressure of other business. (Source of correspondence: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 121ff.)
In private, Forbes was very critical of the governor's delay in this and other cases concerning Aborigines. In his bitter "Sketch of Defensive Operations", written between 24 November and 31 December 1827, Forbes referred to the governor's "Shameful neglect of executing sentences," in particular those in the Port Stephens case (see R. v. Ridgway, Chip, Colthurst and Stanly, 1826; and R. v. Stanley, 1827), this case of Tommy, and the "case of Cato the native murdered at Newcastle." (Source: Forbes Papers; Sudds, Thompson and Robison, Mitchell Library, A743.) The date of this document is clear from the references to the Tommy case, which stated he had been sentenced, but, by implication, that he had not yet been executed. Another document at the same reference, and seemingly by Forbes, complained that the Port Stephens murderers were not hanged, and that Cato's killers were not prosecuted.
It was unusual that this trial was held on a Saturday. In most murder cases, the trial was held on Friday and the sentence carried out on the following Monday. This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder). By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday. By holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death. See R. v. Butler, July 1826. The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3. By s. 4 of the Act, the judge was given power to stay the execution; for another example of that, see R. v. Fitzpatrick and Colville, June 1824.)
Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2). The fact that the judge had no such discretion in murder cases shows how seriously they were taken.
The governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason. In the latter cases, the final decision had to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645.
Aborigines were rarely tried for murder of whites. More Europeans were tried for killing Aborigines than the reverse. This case shows, however, that when a conviction was recorded for murder, this racial differentiation was reversed. Forbes C.J. seemed to suggest that Tommy should not be hanged, yet he was. It appears that in all cases up to this time, no European had been hanged for killing an Aborigine. The closest to that was in R. v. Ridgway, Chip, Colthurst and Stanly, 1826; and R. v. Stanley, 1827.
[4 ] Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer be hanged in chains. If he did not order that, then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial. The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9. He argued that the purpose of criminal punishment was deterrence, not retribution. As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment. In England, this led to riots against the surgeons: Peter Linebaugh, ``The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.
[5 ] The report of the execution carried by the Sydney Gazette, 2 January 1828, included the following: "Many of the blacks assembled to witness the awful ceremony, and numbers of them were armed with woomaras, waddies, and spears. What is somewhat singular, but one of their women was present. ... Dr. Lang and Mr. Threlkeld offered up prayers for the unfortunate savage, who was about to render an account of his deeds at the throne of Him who is alone capable of subduing the stubbornness of the human heart; but, alas! The savage stood erect, and appeared to be reckless of devotion, and little if at all impressed with the fate which awaited him, though every endeavour had been made to fix it upon his mind." The Gazette said that by "bale that," he meant do not pull the cap over his face. Its report went on: "It was currently rumoured that Tommy had been converted to Christianity on the scaffold by Rev. Father Power, but this was without foundation in truth, as he execrated and threatened the executioner in language the most revolting, almost to the last moment, and even then threatened that his tribe would avenge his death. ... It may be worthy of remark, that the fate of Tommy seemed to make the desired impression upon the minds of the tribes who had assembled upon the occasion; for it was observed, when the drop fell, that they all involuntarily shuddered; whence it may be inferred, that the awful spectacle which was exhibited before their eyes, will restrain them from future acts of barbarity upon the peaceful and unoffending settler."
[6 ] This raised religious passions: see letter from "A Spectator", Sydney Gazette, 7 January 1828. There was also a rumour that four stockmen had been murdered by Aborigines in reprisal for the hanging: Australian, 11 January 1828.