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

R v Smith and McCormick [1830] NSWSupC 46

Bushranging Act, Macarthur and Forbes C.J., conflict between, repugnance to English law

Execution, 21 June 1830

Source: Sydney Gazette, 22 June 1830

The first execution under the new penal Act of Council, for the suppression of housebreaking and highway robberies, took place yesterday at the Sydney gaol.[1 ]  The names of the sufferers were Smith and McCormick, whose offence was a burglary in the house of Mr. Tomlins, of O'Connel-street, on Sunday, the 13th instant.  They were tried on Friday last; brought up for judgment immediately after conviction; there and then sentenced to die; and yesterday paid the dreadful penalty of a broken law.  They were very desperate characters, and there is some reason to suspect had a share in the late daring attack upon the lodge at the Sydney turnpike.

We hope this awfully sudden close of their guilty career will strike terror into those unhappy men who are still at large, seeking a miserable and precarious subsistence by acts of violence and plunder.  Let them surrender before it is too late.  Their day of liberty cannot be long, and if by obstinately continuing in their law less course they shut themselves out from mercy, let them remember how condign must be their fate: the day of conviction is the day of sentence, and the third day at farthest after that, the day of death.  This ought to sound like a warning trumpet in their ears.  Opposed as we are known to be to the system of capital punishments in every case except those of murder and a few other crimes of violence, we cannot but lament the existence of a state of things in this Colony which compels us to admit that the law, under which the fearful example made yesterday became still more terrible by the celerity of its operation, was not only called for, but that, with any regard to the safety of the lives and properties of the people, the Council could not have refrained from passing it.  Deeply, therefore, as we regret the necessity for resorting to measures more sanguinary even than the ``all-sanguinary criminal code of England," we do not hesitate in averring that, under all the circumstances, no other course of proceeding was open to the local Legislature.  Crimes of rapine and of violence had arrived at a fearful extent; property, nay life itself, was not safe even in the streets of Sydney, and to strike terror - the extreme of terror - was the only chance left by which security could be anticipated.  We, as much as the most vaunting patriots, are opposed to the slightest aggravation of the severity of the law, and we are therefore pleased to find that an Act which superinduces punishments on those which we have always considered severe enough as they previously existed, is limited in its operation.  When it shall have expired, we trust that a different state of things will exist, and that it will be no longer a dangerous example to be sparing of human life.



[1 ] The reference is apparently to the first of what came to be called the Bushranging Acts, which was passed on 21 April 1830 (11 Geo. IV No. 10).  The Act was remarkable for its severity, including the following provisions.  It allowed any person to arrest any other on suspicion of being an escaped convict.  The onus was on the arrested person to prove that he or she was entitled to be at liberty.  Those who were found on the roads while armed could be treated in the same way, with the same reversal of the usual onus of proof.  Those convicted of robbery or of plundering dwelling houses with force were to be executed on the next day but two after sentencing.  The latter was similar to 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.  The new Bushranging Act was proclaimed to commence on the day on which it was passed, 21 April 1830: Sydney Gazette, 22 April 1830.

John Macarthur wrote to his son, John, about this Act on 10 April 1830, showing his characteristic contempt for Forbes C.J. (Macarthur Papers, Mitchell Library, Vol. 15, A 2911, Reel CY 752B, p. 181b).  Macarthur was a member of the Legislative Council, like Forbes.  He said that the Bill "had been drawn by Forbes the preceding evening, but was altogether so incomplete that many important alterations were made, and never did a turnspit work harder than the little Judge striving with all his might to give satisfaction to the hot blooded Celt.  Its effects have already been magical, and I trust I shall be enabled to write to you by a ship that sails in about ten days, that peace and security are once more enjoyed here."  On 20 May 1830, he told his son that (pp 186-187) "The Chief is very humble and cringing but it is in vain.  The reptile shall not escape exposure and I hope degradation and punishment will follow as necessary consequences."

Chief Justice Forbes wrote to Murray on 19 July 1830 (A 742; Historical Records of Australia, Series 1, Vol. 15, pp 664-669), apparently referring to this Act when he said that he had cooperated fully with the governor's legislative program, to the extent of allowing legislation to be enacted which "have armed the government with larger powers, than are known to any other portion of His Majesty's dominions".  Forbes had been criticised over his conflict with the governor, on which see In re Jane New, 1829.

The initial Act was in force for a limited period, and there was no suggestion of its repugnance to English law.  There was such a challenge on one of its renewals, however, when Forbes C.J. and Darling J. thought it valid, while Burton J. thought it repugnant to the liberty of English law: see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, pp 106-107.

The Act was not an immediate success, because Governor Darling wrote to Murray on 5 October 1830, complaining about the frequency of bushranging: Historical Records of Australia, Series 1, Vol. 15, pp 769-770; and see the reply, Goderich to Darling, 23 March 1831, Vol. 16, p. 115.

Published by the Division of Law, Macquarie University