Outsiders: Tales from the Supreme Court of New South Wales, 1824-1836
Bruce Kercher
Australian Scholarly, Melbourne, 2006
This site contains detailed references for the book Outsiders: Tales from the Supreme Court of New South Wales, 1824-1836 . The book is aimed to attract general readers, and these notes may be of use to scholars and others who wish to follow up points in detail.
Bruce Kercher, July 2006.
References to cases by name and year alone are taken from www.law.mq.edu.au/scnsw .
For more scholarly approaches to these cases, see
Introduction
Page 1
Black cap: see R v Johnson, 1828; R v Miller, 1828; R v Cavenagh, Chesterfield and Sergeant, 1834.
Horse race: Hartley v Shadforth, 1833; and see Howe v Stephens and Stokes, 1835.
Fight: Hayes v Solomon, 1835.
Page 4
Emu: R v Lee, 1830.
Hut: R v Harrop, 1832; R v Power, 1829.
Counties: Lyons v Macquoid, 1835.
Advertising: Cape v McIntosh, 1835.
Physician and barrister: Smith v Kemp, 1835 and (1835) NSW Sel Cas (Dowling) 69; and see Bensley v Stroud, 1829; Rowe v Cullen, 1829; Fattorini v Underwood, 1833 .
Soldiers: see R v Geeson, 1828; R v Stock, 1833; R v Lavery, 1826.
Butchers: R v Mills, Chapman and Chapman, 1834.
Wives: see for example, R v Miller, 1828; R v Hughes, 1829.
Prize fighters: see for example, R v Jacques and others, 1832.
Duel: see R v Atkin, Chalmers and Milton, 1828; and see R v Gillman, 1824; R v Parke, 1836. See also B Edgeworth, “Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)” (1990) 6 Australian Journal of Law and Society 50 at 50-51.; R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 349. On popular duelling, see JM Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford, 1986, 91-94.
Page 5
Convict murders and better to be sent to Sydney : see for example R v McDonnel and Miller, 1832; and see Australian, 29 May 1835; R v Donovan, 1824; R v Vials, 1834; R v Jeffries, 1835.
Maori: R v Stewart, 1831.
Fairless: R v Connolly and Fairless, 1826. See also R v Benson and others, 1825.
Capital punishment in England: even more brutally, until 1772 the penalty for refusing to plead on a charge of felony was peine forte and dure, under which the prisoner was pressed by great weights until he or she either agreed to plead or died: see Andrew McKenzie, “‘This Death Some Strong and Stout Hearted Man Doth Choose': the Practice of Peine Forte et Dure in Seventeenth- and Eighteenth- Century England” (2005) 23 Law and History Review 279.
Page 6
Hanged for lesser offences: Cattle stealing: see for example, R v Curtis and Murtagh, 1828; R v Troy and Bradley, 1828. Forgery: see for example, R v Troy and Bradley, 1828; R v Sly, 1829; R v Broger, 1830. Stealing from dwelling house: see for example, R v Coleman, 1830. The formal sentence of capital punishment for these three crimes was abolished in England in 1833 (see Speech to Jury, 1835; R v Cowan and Campbell, 1833; (1833) 4 Wm 4 No 4 adopting 2 & 3 Wm 4 c 62. See W Cornish and G Clark, Law and Society in England 1750-1950, Sweet and Maxwell, London, 1989, 574-578.), but it continued in practice right up until then in New South Wales.
Chapter 1: Edward Colthurst's Crimes
Page 12
Execution on Monday: see Australian, 5 August 1826, discussing the trial of R v Butler, 1826.
Page 15
Gratitude and deference: this is the point made so well by D Hay, “Property, Authority and the Criminal Law” in D Hay and others (eds), Albion's Fatal Tree: Crime and Society in Eighteenth Century England, Penguin, London, 1977.
Footnote 2: see also R v Dwyer, Kinnear, Madden and Blewit, 1825.
Page 16
Discretion in Sydney : see footnote 4 in R v Miller, 1828.
Lesser sentence imposed: see for example, R v Patient and others, 1826, when Lord Bathurst reached this decision. See also R v Smith, 1833; R v McGuire, 1834; R v Ryan, Steel, McGrath and Daley, 1832; R v Puckeridge, Holmes, Sneid and Lee, 1827; R v Kelly (No 3), 1828 .
Page 19
Bodies remained suspended: two others, James Moran and Patrick Sullivan, were subjected to a similar public execution, after enduring a five hour, fourteen mile journey to Irish Town : see R v Mustin and Brown, 1826.
Page 21
Revenge killing: see chapter 2 below, page 42.
Page 22
Hulk Phoenix : see BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 111-112.
Footnote 9: see also R v Lynch, 1827. For other piracy cases, see R v Pritchard and others, 1826; R v Kay and others, 1835; and Subject Index heading, “piracy”.
Page 25
Knatchbull: see also C Roderick, John Knatchbull: From Quarterdeck to Gallows, Angus and Robertson, Sydney, 1963.
Page 27
Wrongly held in custody: see R v Webb, 1825; R v Griffiths, 1826; and see Convict Assignment Opinion, among the 1827 cases online at www.law.mq.edu.au/scnsw .
Chapter 2: More Murders of Aborigines
Page 34
Not the first Australian case: the first prosecution was in 1797: see Court of Criminal Jurisdiction Minutes of Proceedings, April 1795-December 1797, State Records of New South Wales, 5/1147B, Reel 2391, p 353; Minutes, 29 March 1798-23 December 1800, X905, Reel 2651, 31 January 1799, pp 68f; Court of Criminal Jurisdiction Papers, November-December 1820, SZ792, pp 496f.
Page 40
Proclamation that was repugnant to English law: see E Campbell, “Prerogative Rule in New South Wales, 1788-1823”(1964) 50 Jnl of the Royal Australian Historical Society 161, at 180; R Else-Mitchell, “The Foundation of New South Wales and the Inheritance of the Common Law” (1963) 49 Jnl of the Royal Australian Historical Society 1, at 5; V Windeyer, Lectures on Legal History, 2nd ed., Law Book Co., Sydney, 1957, 306. See also R v Beane, 1835 on another governor's statement that squatters beyond the limits of settlement had to defend themselves against Aboriginal attacks.
Chapter 3: Aboriginal Murderers
Page 48
Note 2: in New South Wales : see R v White, 1826.
Page 50
Not the first Aborigine to be tried: see also R v Broger, 1830; R v Boatman and Bulleyes, 1832 (which is also in (1832) NSW Sel Cas (Dowling) 6); R v Jackey, 1834.
Page 52
Footnote 8: see Sydney Gazette, 14 February 1835; Australian, 13, 16, 17 and 27 February, 6 March, 1 May 1835; Sydney Herald, 12 and 16 February 1835; and see the list of Aboriginal defendants in Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, pp 271-273; “Aboriginal Natives, tried before the Supreme Court of Sydney N.S.Wales from 1832 to 1838”, in Supreme Court Statistics, State Records of New South Wales, 4/2129.3. The latter records 22 Aborigines as having been tried in 1835. On the cases tried in August, see Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, pp 271-273; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2420, vol. 19, p. 1.
Page 54
Hostile commentary in the Monitor: see also Monitor, 29 November 1827, and Australian, 17 February 1835 largely agreeing with the Monitor .
Page 58
Enforced by the inaction of law: see also for example, the decision not to prosecute Quart Pot and Numbo for the murder of fellow Aborigines: Australian, 3, 17 and 28 February 1834.
Page 59
R v Murrell, 1836: reported as R v Murrell (1836) 1 Legge 72; and recently in (1998) 3 Australian Indigenous Law Reporter 410-425.
Sydney Stephen: one view of Stephen was less favourable: “Had you gone to Dr Wardell Mr Norton or Mr Wentworth they are gentlemen but to go to that damned scoundrel Sydney Stephen he will only pump you out of your money deceive you and pick your pocket.” (See Stephen v Dickson, 1830, a libel case.) Honest or not, Stephen made a fine argument in this case.
Page 63
Milliss: the reference is to R Milliss, Waterloo Creek: the Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 1992.
Chapter 4: Bushrangers on the Monaro Plain
Page 65
The battle at Long Flatt: for another brutal attack by a worker in a bush property, see R v Free, 1836 (man accused of cattle stealing kills a witness with a tomahawk and cuts the body in half). For another gun battle, which led to a trial just after Forbes left Sydney, see R v Wales and Pickering, 1836.
Page 68
Seven slugs: the Australian, 8 May 1835, reported this as five slugs. This account is a composite of its report and that of the Sydney Herald, 7 May 1835. There is some variation between the two accounts, particularly in their reports of the words spoken. For an inaccurate account of these events, see GE Boxall, The Story of the Australian Bushrangers, 1899, reprinted, Penguin Books, 1974, 57-59.
Page 72
Opposite direction: for details of the Bushranging Act, see R v Elliott, 1834. For the difficulty in proving innocence, see Cokeley v Simpson, 1831. For a restrictive interpretation of the Act, see Ex parte England, Mackay and Coomber, 1830; and see England v McQuoid and Murray, 1831; Mackay v Sandilands, 1831.
Footnote 1: see also footnote 1 to R v Smith, 1830; John Macarthur snr to John Macarthur jnr, April 10, 1830, Mitchell Library, Reel CY752B, A2911, Macarthur Papers, vol 15, 181b.
Confirmed the validity: see B Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, 105-108.
Page 73
Footnote 2: for Forbes' use of the Act in court, see R v Lockhard, 1833.
Williams v Keane: see also R v Byron, 1825; and on the establishment of crime suppression associations, R v Cullen, Doyle and Murphy, 1834; R v Halloran and Waldron, 1834.
Chapter 5: The Sad Story of Sam the Cuckold
Page 79
Footnote 1: On the factory, see also see BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 116-122.
Page 82
Provocation was Sam Collins' only plausible defence: On provocation, see JM Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford, 1986, 91-96.
Page 83
God alone has a right to revenge: On provocation, see also R v Johnson, Smith and Gilroy, 1828, concerning members of the Bold Jack Donohue gang. See also R v McCarthy, 1836 (where the witnesses allegedly conspired against the defendant to have him convicted, in revenge for his having killed a bushranger); and Subject Index heading “provocation” at www.law.mq.edu.au/scnsw .
“Atrocious acts”: see also R v Blake, 1832; R v Macmanus, 1829. On drunkenness as a defence, see for example R v Bates, 1825; R v McCormack, 1834.
Chapter 6: A Barrister is Murdered at Petersham
Page 85
Journey to the other world: Ministers: R v Clives, 1827. For the right kind of attitude, see R v Ward and Power, 1827; and for its operation in England, see JM Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford, 1986, 455. On this case see CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 467-470. Getting the name wrong, R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 190-191 claimed that “Wilson” who murdered Wardell had been convicted 14 times in England and the colony before being hanged. He meant Jenkins. On this case, see 350-351. At 352, he said that Brace, the approver in this case, was tried for the murder of his wife in 1858, but unaccountably acquitted.
Page 86
Footnote 1: for a similar comment in England in 1701, see AR Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1781-1775, Clarendon Paperbacks, Oxford, 1987, 16 (“awry Neck and a wet pair of Breeches”).
The murder of Dr Wardell: for other cases concerning Wardell, see Mills v Rowe, 1828 (living in adultery); and Wardell v Francis, 1829. There were also many libel cases due to his part-ownership of the Australian newspaper.
Page 90
Better chance of justice: According to Therry, 351, he claimed that his counsel was a “spooney, that was of no use to him, and only sent to pump him.”
Page 93
R v Hitchcock: see R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, chap 10. On Mudie, see CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 452-454.
Page 94
Land grants were not much use without the labour to work the land: see Therry,133-134.
Disciplinary rules for convicts: see B Kercher, “Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850” (2003) 21 Law and History Review 527-584.
Page 96
Women did not obtain tickets of leave until 1829: see Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict NSW 1788-1814, Federation Press, Sydney, 1996, 49-65; and see B Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, ch 2. Women and tickets: Sydney Gazette, 19 and 21 March 1829 (twice); and see 1 December 1829. On the discretionary nature of tickets of leave, see Sydney Gazette, 5 February 1829.
Prevent the ticket of leave being granted: Governor Darling ended this requirement: BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 126.
Page 97
Stopped by bushrangers: R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 43, 123-127.
Anonymous benefactor: Therry, 167-168.
Page 100
But this was denied: Therry, 168-169. Conditions on the chain gangs could be terrible too: one prisoner from the Berrima gang attempted to kill another prisoner so that he could be hanged. He said he was half starved: R v Nocton, 1835. See also R v Hare, 1836 (assigned convict about to be flogged tries to kill his master Major Elrington, and is hanged); and R v Cassidy and Bagley, 1835 (two members of a chain gang in a quarry at Maitland hanged for attempting to kill their overseer who had taken them before the magistrates for punishment).
Hanged in 48 hours: see also R v Beard and Richardson, 1833; R v Ryan, Troy, Smith and Anderson, 1832.
Page 101
Returned to the service of Mudie: Therry, 168.
Page 102
Cross a flooded creek: Therry, 172-173. See also RB Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, ch 3.
Felonry of New South Wales : James Mudie, The Felonry of New South Wales, 1837, W Stone (ed), reprinted Lansdowne Press, Melbourne, 1964. Background information used here is taken from Stone's preface to the reprinted edition of Mudie's book; M Clark, a History of Australia, vol 2, Melbourne University Press, Melbourne, 1968, 204-210, 232, 236, 251-252, 320, 334-335; J Hirst, Convict Society and its Enemies, Allen and Unwin, Sydney, 1983, 151, 166-167, 182-186, 197-201; and GE Boxall, The Story of the Australian Bushrangers, 1899, reprinted Penguin Books, Ringwood, 1974, 51-54.
Page 103
American educated republican: Mudie, 28, 131.
Page 104
In effect dismissing them: Governor Bourke to Lord Glenelg, 18 February 1836, Historical Records of Australia, Series 1, Vol 18, pp 306f, and see 333f. See Therry, 171-172.
Page 105
Watt had mismanaged it: see Australian, 8 March 1836.
Chapter 8: Violence at Norfolk Island
Page 109
Footnote 1: on Groves, see Sydney Gazette, 27 September 1834; and see report of execution of Jones, Giles and Elliot, Australian, 13 September 1833. For similar comments about Moreton Bay, see R v Burgen, 1829; and see R v McDonnel and Miller, 1832. On Newcastle, see R v Young, Hooper and Battie, 1831. See also the Subject Index headings “ Moreton Bay,” “ Newcastle ” at www.law.mq.edu.au/scnsw .
Page 110
Capital punishment without trial: on Norfolk Island, see M Hazzard, Punishment Short of Death: a History of the Penal Settlement at Norfolk Island, Hyland House, Melbourne, 1984. See also B Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 28, 34-35, 40-41; Subject Index heading “ Norfolk Island ”. See also Transportation Opinion, 1829.
Wives withdrawn: see BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 105, 108-109.
Major convict rebellion in 1834: see R v Douglas and others, 1834; and see CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 474-476.
Page 111
R v McDonnel and Miller, 1832: see also Australian, 23, 30 August 1833, and 5 September 1833. For other declarations of preference for death over transportation to Norfolk Island, see R v Gough, Watson and Muir, 1827; R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 19, 24; and see R v Pegg, 1831 (preferred death to 14 years' transportation). For an attempted mutiny at the penal settlement at Port Macquarie, see R v Smith and others, 1833.
R v Gough, Moor and Watson, 1827: for an attempted escape from Newcastle, see R v Pritchard and others, 1826.
Page 112
R v Wright, 1829: see also Hall v Mansfield (No 3), 1830; and see Therry, 20-21 on another attempted mutiny at Norfolk Island.
Footnote 4: on the replacement of military juries, see Ian Barker, Sorely Tried: Democracy and Trial by Jury in New South Wales, Dream Weaver Publishing, Sydney, 2003, at 76-78, 117-120, 310, 312.
Page 116
Footnote 5: on the reception of the law of attaint in Australia, see Bruce Kercher, “Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850” (2003) 21 Law and History Review 527.
Page 117
Footnote 6: see Currey, 462-464; AC Castles, An Australian Legal History, Law Book Co, Sydney, 1982, pp 200, 500, 503, 507, 528.
Page 118
Footnote 7: see also R v Redfern and Wells, 1827.
Page 119
14 years' transportation: According to Therry who defended him in the bank robbery case, Farrell was originally a convict for life for a burglary. After this offence, he committed another burglary in Melbourne, and when a very old man was on trial again for felony: Therry, 191.
Lost the reward: Therry, 204-205.
Page 122
Release even from life transportation to the island: on this, see Fletcher, 108-109.
Page 123
Australian, 22 August 1834: see also 7 April 1834.
Clearer system of rewards: see B Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, 40; Norval Morris, Maconochie's Gentlemen: the Story of Norfolk Island and the Roots of Modern Prison Reform, Oxford University Press, Oxford, 2002.
Repugnant to English law: see R v Smith, 1830; Kercher, Unruly Child, 106-107.
Chapter 9: The Trials of Edward Smith Hall
Page 125
Footnote 1: For Therry's views of the press disputes, see R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 84-87. On illegal sentences, see also R v Rossi, Principal Superintendent of Police, 1826: Chief Justice Forbes thought that thousands were illegally punished by the magistrates. See also Mannon v Nicholson, 1834 (punishment after sentence expired); In re Byrne, 1827; R v Howe, 1828; In re Foster, 1827; and the Subject Index heading “ magistrate, illegal punishment by ” in www.law.mq.edu.au/scnsw .
Page 128
Footnote 5: On the Sudds and Thompson case, see Transportation Opinion, among the 1826 cases at www.law.mq.edu.au/scnsw; R v Baxter, 1829; R v Wardell (No 2), 1827; and Subject Index heading “Sudds and Thompson case” at the same website. On the conflict between Forbes and Darling see the Subject Index heading “Forbes C.J. and Governor Darling, conflict between”.
Even if without lawful authority at times: Forbes to Marsden, 24 November 1825, Mitchell Library, A 1992 Marsden papers, vol 1, 482-485.
All dangerous in such a society, Forbes said: Forbes to Wilmot Horton, 4 December 1826, Historical Records of Australia, series 4, vol 1, 644-646.
Footnote 6: Forbes to Wilmot Horton, Historical Records of Australia, series 4, vol 1, 676.
Page 129
Footnote 7: background material on press regulation is taken from B Edgeworth, “Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)” (1990) 6 Australian Journal of Law and Society 50 . This was Wardell's second duel, the first being with the Attorney General, Saxe Bannister: Therry, 349.
Between 1824 and 1828: this statute is known as the New South Wales Act 1823.
Page 130
Footnote 8: The correspondence and other details of the legislation are discussed in the footnotes to the Newspaper Acts Opinion, 1827.
Page 131
“Great battle between exclusives and emancipists”: see notes 17 and 18, in the Newspaper Acts Opinion, 1827.
Page 132
Footnote 11: see also R v Wardell (Nos 1, 2, 4), 1827.
Page 133
Footnote 12: see R v Hall (No 1), 1828; R v Hall (No 1), 1829; Hall v Scott, 1830.
Page 134
Hall spent much of the year in prison: see R v Hall (Nos 2, 3, 4, 6, 7 and 8), 1829.
Four of them written while he was in jail: see Darling to Hay, 23 January 1830, Historical Records of Australia, series 1, vol 15, 344-345.
Mark the accession of King William IV: see Ex p Wentworth, in re Mansfield, 1829, and its notes.
Separate prosecutions against Mansfield for criminal libel: see Ex p Wentworth, in re Mansfield, 1829, and its notes.
Footnote 13: see also Ex parte Wardell and Wentworth, 1827; R v Mansfield (No 1), 1830 .
Page 135
Other side of the Blue Mountains: this was best known as a place for literate convicts, a “Swell's settlement” according to Edward Gibbon Wakefield. See BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 115.
Release under habeas corpus: for the withdrawal of labour from Hayes, see In re Hayes, 1829; Hayes v Hely, 1830. See also In re Harris, 1827.
Hall v Rossi, 1830: see also Hall v Hely, 1830.
Page 136
Only for the benefit of the convict: see similarly, the Convict Assignment Opinion, 1827, in which Chief Justice Forbes declared among other things, that tickets of leave were unlawful though wise policy. They needed to be legalised. Carol Webster has written a book about Jane New, which Allen and Unwin is due to publish late in 2006.
Property was transferred to the new master: see also Cain v Broomfield, 1833 on the master's property in a convict servant's services.
Page 137
Not for political purposes: see footnote 8 in In re New, 1829.
Obviously for political reasons: Despatch, 2 August 1830, Historical Records of Australia, series 1, vol 15, pp 648-654. See also RB Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, 16-17; CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch 31.
Changed political atmosphere in England: see B Edgeworth, “Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824–1831)” (1990) 6 Australian Journal of Law and Society 50 at 79.
Page 138
Editor of the opposing Sydney Gazette: see Hall v Mansfield (Nos 1, 2, 3), 1830; and see R v Hall, 1830.
Footnote 18: on the hulk, see also R v Dawson, 1827; Ex parte England, Mackay and Coomber, 1830.
Footnote 19: Therry claimed in his Reminiscences (at 91) that Wentworth eventually reconciled himself to General Darling. See also Fletcher, 292-293.
New conservative in New South Wales: see J Ritchie, The Wentworths Father and Son, Miegunyah, Melbourne, 1997, ch 10.
Chapter 10: The Seduction of Mary Anne
Page 140
Lost her reputation but received no compensation: see R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 425. See B Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, 97-99, discussing the earlier New South Wales case of Sutton v Humphreys, 1806 (Court of Civil Jurisdiction).
Page 143
His guardian, Thomas Rose: on guardianship, see W Blackstone, Commentaries on the Laws of England (1st ed 1765-1769, reprint University of Chicago Press, Chicago, 1979) vol 1, ch 17.
Page 144
More disgraceful explanation was the correct one: For another seduction action, see Cook v McIntosh, 1836. Adultery was also a civil wrong, that the law called criminal conversation: see Hart v Bowman, 1828.
Page 146
Obtain damages for breach of promise to marry: see for example, Cox v Payne, 1825; Miller v Brett, 1832. On Cox v Payne, see J Ritchie, The Wentworths Father and Son, Miegunyah, Melbourne, 1997, 211-213.
Chapter 11: Violent Women
Page 156
Footnote 2: see also R v Hipple, Darbyshire and Hyam, 1832.
Death recorded : see for example, R v Smith, Kelly and Kaine, 1826 (highway robbery).
Pillory: see R v Charlton, 1825; R v Cartwright, 1833; and see Subject Index heading “pillory” at www.law.mq.edu.au/scnsw . See JM Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford, 1986, 464-468. Even the Supreme Court occasionally sentenced people to unusual punishments, such as that ordered against a man named George Williams, “ to be publicly whipped from the Police Office to the King's Wharf”: R v Williams, 1829.
Page 157
“The law is a ass - a idiot”: C Dickens, Oliver Twist, 1837-39, reprint Penguin Classics, London, 1985, 461.
“Because they did not commit the crime for which they were committed”: see, similarly, R v Spooner, 1832 (convicted of receiving a brooch; sentence of a one shilling fine because of doubt about her guilt).
Chapter 12: Limitations on Wives and Convicts
Page 159
Footnote 1: see also In re Harrison, 1833. For details of a riot in the factory, see R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 217-219.
Page 161
Footnote 3: see Karskens, ch 11. For an important earlier study, see P Robinson, The Hatch and Brood of Time: a Study of the First Generation of Native-Born White Australians, vol 1, Oxford University Press, Oxford, 1985.
Footnote 4: see also the equally harsh case of Perkins v McDonald, 1833.
Page 163
Footnote 6: see also R v Cable, 1826.
Page 164
Even at common law: W Blackstone, Commentaries on the Laws of England (1st ed 1765-1769, reprint University of Chicago Press, Chicago, 1979) vol 1, 431.
Page 165
McNamarra v Wilson, 1834: see also Levey v Shields, 1827 and Levey v Shields, 1828 (convict husband escaped from New South Wales, leaving money in the bank for his wife; she had to prove that the money was hers and not her husband's).
Page 168
Footnote 9: A married woman could not be imprisoned for debt unless the debt was hers before marriage: Blackstone, 1st ed, vol 3, 414.
Page 169
Mixture of locally developed principles and the common law: see Green v Woodroffe, 1828.
In re Cave, 1826: see also Lyons v Cave, 1827; and see Bensley v Stroud, 1829.
Footnote 11: if these women were imprisoned for non-payment of what they owed, they were entitled to the usual relief under insolvency law: see In re Mary Smith, 15 November 1828, Dowling, Select Cases, Vol. 2, State Records of New South Wales, 2/3462, p 105; (1828) NSW Sel Cas (Dowling) 107. See also In re Smith, 1829; (1829) NSW Sel Cas (Dowling) 605 (concerning a woman named Elizabeth Smith).
Chapter 13: Outsiders in Law
Page 172
Gracious mercy of the King: for a discussion of the role of mercy in transportation, see AR Ekirch, Bound for America : the Transportation of British Convicts to the Colonies, 1718-1775, Clarendon Paperbacks, Oxford, 1987, ch 1.
Page 173
Overturned in 1820: See Bullock v Dodds (1819) 2 B & Ald 258; 106 ER 361; Eagar v Field (1820) and Eagar v de Mestre (1820) in Historical Records of Australia, series 1, vol 10, 351-364, 553-554. On the legal position of convicts, see B Kercher, “Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850” (2003) 21 Law and History Review 527-584.
Every transported convict was now attainted: see the judgment by Justice Dowling in Septon v Cobcroft, 1833.
Page 174
Footnote 3: but see Septon v Cobcroft, 1833; and (1832) 3 Wm 4 No 3, s 35.
Require strict proof of conviction: R v Cable, 1826.
Page 175
Feme covert, under the control of her husband: for a rich analysis of the legal and religious elements of marriage, see H Hartog, Man & Wife in America: a History, Harvard University Press, Cambridge, 2000, ch 2. On the common law position, see Blackstone, vol 1, ch 15; vol 2 (1766), ch 29; and see W Cornish and G Clark, Law and Society in England 1750-1950, Sweet and Maxwell, London, 1989, 365-369.
Page 176
Nor could a wife give evidence against her husband: R v Pasfield, 1827; McLeod v Moore, 1832 .
Dower and quarantine: see Davis v Crispe, 1834.
Marriage settlement: see also Chisholm and Cooper v Kirby and wife, 1832.
On the whole, the court applied the English laws affecting wives with few changes: see, for example, Cooper and Wife v Best, 1825 (form of action in defamation); Long v Hedges, 1833 (husband a mariner, right of wife to issue promissory note); McGuigan v Hanslow and wife, 1835 (wife charges someone with stealing, person acquitted and unsuccessfully sues her and husband for malicious prosecution).