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

R v Mooney and White (1831) NSW Sel Cas (Dowling) 303; [1831] NSWSupC 76

capital punishment, hanged in chains - gibbet - capital punishment, at place of crime

Supreme Court of New South Wales

Dowling J., 4 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 91]

Rex v Mooney & White

Where prisoners were convicted of murder on Friday and sentenced to be executed on following Monday and hung in chains[1 ] at the place where the murder was committed but the distance being so great that the sentence could not be carried into execution by the time appointed the Judge respited the execution until a future day granted another warrant reciting the former warrant and respite, and issued a separate order to the Sheriff to hang in chains.

Notes

[1 ] Both the Sydney Gazette, 8 November 1831 and the Sydney Herald, 7 November 1831, reported that the men were sentenced to be hanged at Goulburn Plains and to be gibbetted (Gazette) or hanged in chains (Herald).  The Gazette said that they were forwarded to the location of their execution under a strong escort of mounted police, on 7 November 1831.

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.

C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 470 points out that hanging in chains was abolished in England by (1834) 5&4 Wm 4, c. 29, but that the statute was  not adopted in New South Wales until 1837.

The Australian, 21 December 1832, published (1832) 2 and 3 Wm IV c. 62, an imperial statute further restricting capital punishment in crimes concerning property.  See also (1830) 1 Wm 4 c. 39 (Sydney Gazette, 1 March 1831).

Published by the Division of Law, Macquarie University