R. v. Madden and others

Supreme Court of Van Diemen's Land
Pedder C.J., 13 June 1829
Source: Colonial Times, 26 June 1829[1]

SATURDAY, JUNE 13, 1829. - This was the day which it was understood His Honor the Chief Justice had appointed to pass sentence on as many of the prisoners, under conviction in gaol, as it was practable to bring up for that purpose. The following seven wretched men were first arraigned, having been convicted of robbery, viz., -- William Madden, Michael Herring, James Davis, John Hall, Robert McGuire, John Collins, and William Templemen. His Honor remarked, that robbery was a crime punishable with death in most civilized nations for centuries, notwithstanding which, he regretted to say, it had become more frequent in this Colony of late. A mistaken notion seemed to have prevailed with the prisoners, that their offence would not amount to robbery, but only stealing from the person. They had been studiously anxious to learn the lines of distinction between different crimes, for the wicked purpose of knowing how far they could go without incurring a hazard of the more severe punishment. They had, however, erred in the pres[e]nt cases most completely, and had involved themselves in the deeepst penalty. They had all had a most fair and deliberate trial, and there was not the slightest doubt but that robbery, even in the darkest shade, had been committed by each. An attack upon the person, accompanies with force and violence, had been made, and it was necessary fore the protection of the public, that there should be severe examples. Not only the property, but the lives of individuals are placed in imminent danger when such crimes are attempted. When a man forgets himself so far, and breaks down the line of principle, as to attempt a crime, however trivial in its original character, it is impossible for him to tell where his offence may end. The person on whom the robbery is attempted, unwilling probably tamely to submit, and the robber in the head of guilt is likely to go to access, and to commit ever the dreadful crime of murder, which he had not, perhaps, at first contemplated. The prisoners at the bar had not the plea of necessity to urge in extenuation of their offences, they had not been driven by circumstances of want to commit robbery. In this country, such is the demand for labour, that even a promise of good behaviour will insure a man profitable employment. Under these circumstances, it was impossible for His Honor to say that any one should escape death. He hoped that they would not all die, but which of them, or if any, would be spared, he could not tell. He cautioned all of them not to deceive themselves by encouraging vain hopes of mercy, but that such should make the best use of the little time that might be left, and should lift up his mind in supplication to Him who alone was able to assist them in enduring the last extremity. Sentence of death was then passed in the usual solemn and awful manner.
These seven being reconducted to their cells in gaol, the following four were then led into court, Matthew Pennell, Wm. Watts, William Perring, and Robert Burke. They had all been convicted of felony, and of being illegally at large after sentence of transportation for former sentences had been passed upon them. The crime of which they now stood convicted, had been punishable with death by a late act of council. Though new in this island, it was a law not new to British subjects generally, being an old statute, in force for many years. There was indeed no favourable point of view in which their crime could be contemplated, for they could only, when at large, live a life of plunder, and it was happy for them that they were arrested when they were, before opportunity had been afforded them to commit new crimes. Pennell here interrupted His Honor, and was preparing to make a long speech, when the Judge remarked that he been justly convicted on his former trial, he had been concerned in one of the most audacious and extensive robbery of the treasure, and although the prisoner so stoutly denied his participatien in it, it had been most clearly shewn upon his trial, that he must have been a chief agent in that robbery, and that without his connivance or that of a person filling the situation in the Colonial Treasurer's office which he did, the situation in the Colonial Treasurer's office which he did, the robbery itself could not have been committed. Sentence of death on each of the wretched men was then passed.
These being disposed of an returned to gaol, the following 14 convicted of larceny were brought up, namely - Samuel Thacker, John Beveridge, Thomas Hemmings, John Wilkins, John Brown, William Moss, John Dodds, H. Rowbotham, Leslie Ferguson, James Poundwell, Alexander Stevenson, William Burton, John Buchan, and Patrick Molloy. Had it not been for the passing of what is cal[l]ed Mr. Peel's act, the crimes which these prisoners had committed would have subjected them to the punishment of death, with the priviledge of being allowed to pray the benefit of clergy. Criminals, however, must not flatter themselves that this act will afford them any relief, although they can now in no case suffer death by mere simple larcenry. Instead of a mitigation of their punishment, the consequence of the act will be, that they will uniformly be punished with more severity than before, for their sentence will be as severe as any thing short of death will admit. All the fourteen were then sentenced to 7 years transportation, In the case of Thacker and Beveridge, His Honor remarked, that he could not think of their case without horror. It was proved to have been committed as it were beneath the very gallows, when the melancholy spectacle was exhibited before their eyes of a string of dead bodies, the remains of wretched criminals who had but a few moments before paid the forfeit of their lives for their offences against society. - The course of life which Beveridge had been leading was in fact calculated to blunt every sense of right and wrong implanted in our nature. He had been living in a bad house with a woman of depraved character, and in such a state of dissipation, that he was found drunk at the early hour of seven in the morning.

Execution
Source: Colonial Times, 10 July 1829[2]

The following unhappy criminals were executed this morning in front of the Hobart Town Gaol:- Robert Burke and William Perring, for absconding from Macquarie Harbour, and with stealing a boat and sail, the property of the King, William Madden for highway robbery.

Pedder C.J., 26 October 1829
Source: Hobart Town Courier, 31 October 1829[3]

This being the day appointed for the delivery of His Honour's judgement in the several cases of the prisoners convicted, but not sentenced, the 3 prisoners on whose behalf the arguments had been raised, were placed at the bar. One case was that of sheep stealing, one of a simple larceny (as it is called), and one that of stealing in a dwelling house above a certain value.
The Chief Justice commenced his judgment (after st[a]ting the offences of the 3 prisoners, and that their offences had been committed before the 1st of March last, but their convictions had been subsequent to that day) by noticing the passing of the new Court Act for these colonies, by which all the laws in force in England at that date were (after the 1st March last) to be applied as law here; and by drawing attention to the acts called Mr. Peel's acts, which at the date of that court act, were and had long been, in England, in full operation. Mr. Peel's acts were passed in the month of June 1827, in the 7th and 8th Geo. IV. Chaps. 27, 28, and 29.
The object of these statutes was to consolidate all the laws connected with larceny into one law, and to improve generally the administration of justice in criminal cases. It was usual that one and the same act should contain both the repealing and the substituting clauses. In the present instance, however, these objects have been effected by separate acts. The repealing act (chap. 27) repeals a vast number of the statutes. This repeal was to take effect from the last day of June 1827, except as to offences committed before that day, which are to be dealt with as if that act had not passed. The next act, substituting provisions in lieu of several of the acts so repealed, by sections 6, 7 and 8, does away with benefit of clergy; but provides, that death shall not be inflicted except the prisoner was liable to death by some law in force before or on the first day of that session of parliament; and, lastly enacts, that persons convicted of felonies not punishable by death should be punished in the manner particularly prescribed by the statute specially relating to such felonies. Of the next act (chap. 29) the 1st section merely says when it is to take effect. The 2d abolishes the distinction between grand and petty larceny. 3d. Provides the punishment for larcenies, viz. either transportation of imprisonment and hard labour. Then follow many other provisions, some of which are are not important to the present cases. It is to be observed here, that these statutes make no alteration whatsoever in the common law as to larcenies. What were before these statutes, larcenies at common law, remain larcenies still. Now, said his Honour, all your offences were and are larcenies at common law. They are indeed, as to two cases before me, larcenies of an aggravated nature. But they were nevertheless all, and still are larcenies. Section 11 provides, that every person convicted of burglary shall suffer death. Section 12 provides, amongst other things, that any person stealing in a dwelling house to the value of 5l. shall suffer death. Section 25 has a similar provision, as to persons who shall steal sheep or other cattle. There is a most remarkable difference between the phraseology of these sections. When providing for the punishment of burglary, that section enacts, that if any person shall be convicted of burglary, he shall suffer death. But when providing for punishment of sheep or cattle stealing and of stealing in a dwelling house, the language is, that if any person shall commit any of these offences, he shall suffer death. A similar difference exists when the act provides for the punishment of larcenies. The language of that section is applicable to every one who shall be convicted of larceny. This difference of language will induce a most important corresponding difference in the judgment which must be given in your different cases.
Such being the law in England in 1828 at the date of the new court act, the act provides, that the laws in force in England when that act was passed, shall from and after the 1st March 1829 become laws within the colony. It is clear, that when the legislature made this general and extensive provision it had not any particular act or set of acts in its view, and did not contemplate any of the difficulties which might arise, in respect of cases and the treatment of cases occurring under the old law, as it stood in this colony before the 1st of March. It occurred to me therefore some time ago, that with respect to all these criminal cases a difficulty arose as to what judgment could after conviction be given upon you and other similarly circumstanced. I consequently mentioned my doubts to your learned counsel, and he was good enough at my instance to argue your cases for you.
The points made in your cases were, 1st, that as to all offences which were created by statute, the statute having been wholly repealed, without (as to this colony) any saving clause, no judgment at all could be given. 2dly, That, with respect to all the statutes repealed, -- there being repealed in England of necessity and by immediate consequence operated to repeal these same statutes here, and therefore that the subjects provided for by these statutes were left as at common law - that is, that as to your cases you would be entitled to pray the benefit of clergy - and then the statutes providing punishments on persons allowed clergy being repealed, no punishments could be inflicted at a[l]l, but the party would be absolutely discharged. No authority whatever was cited to support the sec[o]nd point. It was merely argued on an alleged general principle, that when a statute ceased to be Law in England, it also ceased to be law in the colonies.
Admitting however that such is the law (if it be the law) and applying that principle to all the statutes so repealed by Mr. Peel's act, yet I do not see how such repeal makes any of these convictions invalid. The repeal may indeed, and of course will abolish the particular punishment provided by the act or acts repealed. But if the offence itself was an offence at common law, and was not created an off[e]nce by such sta[t]ute or statutes, I apprehend that the punishment by the common law will still remain. In admitting however that the repeal of statutes in England had (or might have had) the effect of repealing an admission only for the sake of the argument. I decide these cases, simply as cases, which have come to be considered in reference to the question, how they are affected by, and in consequence of the new court act. I decide upon them as cases of convictions which have occurred since the 1st March last - the period at which all Mr. Peel's acts (by the effect of the provision in the court act for extending laws here) simultaneously came into operation.
The Chief Justice proceeded to cite several passages from Lord Hale's P.C. and cited Elizabeth Mackenzie's case as reported in Russell and Ryan; commenting on the several passages. His Honour then enumerated the several statutes relating to benefit of clergy and providing punishments for cases where allowed 4 H. 7. c. 13. 1 Ed. 18 Eliz. 21 Jac. 1. 3 W. and M. 5 Anne, 4 G. 1 c. 11 and others. The repeal of all these statutes leaves the common law only as it stood before. Convicts entitled to pray clergy and praying it, are (if clergy be allowed) to be there-upon discharged.
So much for the common law. But then Mr. Peel's act c. 28, sec. 6, has absolutely abolished benefit of clergy. These prisoners therefore cannot have it allowed to them. Are they then (as at common law they would be) left to suffer the penalty of death? Not so. The 7th section, as has been shewn, provides that no one shall suffer death, except for offences which were subject to that penalty by some law in force before or at the commencement of that session. In two of the cases before me, it has however been urged on behalf of the crown, that the offences were and are felonies which were subject to the penalty of death by laws in force at the commencement of that session, and that your are consequently liable to that punishment accordingly; since you cannot bring yourselves with the before mentioned exception of ch. 7. But this argument seems to me to be untenable. Such a construction would induce a strange inconsistency between the several provisions of these acts. Indeed the construction would subject to the penalty of death at this day every person, who before or at the commencement of that session, was liable to that punishment - although the statute which rendered him so liable is now and may long since have been repealed. This canno[t] therefore be a true construction.
In considering to what punishment therefore these several cases are liable, I must again refer to the before mentioned 8th section. This provides, that every person convicted of any felony not punishable by death, shall be punished in the manner prescribed by the statute especially relating to that felony. It also provides, that every person convicted of any felony for which no punishment is specially provided, shall be liable to transportation or imprisonment at the discretion of the court. This therefore is the statute which will supply the appropriate punishment for your several offences. I have already adverted to the distinguishing and very different languages used in the different sections of the act, as applying to different offences. With respect to some offences, the act merely provides punishment for such as shall be committed after that law came into force, viz. after the 1st March last. But with respect to other offences, the act provides punishment for such persons as shall after that 1st March be convicted of those offences. All the cases before me fall within the last class of cases, as larcenies - of which you have severally been convicted since the 1st March last. But with respect to the aggravating circumstances in the cases of two of you, and which circumstances (such as larceny of sheep and cattle - larceny above £5 in a dwelling house, &c.) would under this law have subjected you to the penalty of death, I cannot take them into consideration, b[e]cause such your offences were severally committed that day. And the statute subjects to the punishment of death such persons only as shall commit those offences after that day.
His Honour then sentenced the 3 prisoners, viz, George Sharkey for stealing in a dwelling house, and Hugh McPeake for sheep stealing, to 7 years transportation, and John Brown for petty larceny, to 8 months imprisonment from the time of his conviction.
The several prisoners who had been convicted of burglary were then placed at the Bar, viz: John Webster, John Freestone, Thomas Caston, William Rayner, William Shires. The Chief Justice recapitulated very shortly the substance of his observations in the cases just previously disposed of, and concluded (after remarking upon the enormity of two of the cases before him) as follows.
"Your offence was always, and still is, an offence at common law, and by certain sets passed for that purpose, it has long been subject to the penalty of death. Those particular acts are not now in force. But by that act of Mr. Peel's which was in fo[r]ce when you were tried, it is enacted that persons conv[i]cted of burglary shall suffer death. Of that offence you have so been convicted. The sentence of death therefore is that which I must pass upon you.
After them the following were led into Court, and received sentence of 7 years' transportation, viz:-- James Moore, Thomas Martin, John Mantle, Joseph Stimson, Daniel Cook, Benjamin Jordan and William Axford for sheep=stealing; John Lansdale, Richard Hutchinson, Arthur O'Neil, Patrick Hunt, Joseph Hall, William Coventry, Bartholomeu Reardon and James Hinchey for stealing cattle; George Gear, James Murphy, Joseph Calvin for robbery; James Clutterbuck, John Pritcha[r]d, Thomas Rooke, {M]a[t]hew Freebairn for house breaking; William Moulton, William Pluckrose, Frederick Norton, Isaac Halt, Joshua Seab[o]rn, Edward Thomas and Thomas Fleet for stealing in dwelling houses; Simon So[l]om, John Clements, Joseph Barnett, Joseph Thomas, Edward Hughes, T. Pratt, M. Chapell, John Werry, John Bell, James Porter, Moses Rowlands, Joseph Rodd, P. Lowe, John Flinn, W. Prussia, William [Mc]Cormack, C. Wilkinson, T. Tilson, James Welsh, [Ro]nald Davidson, W. King, W. Lucy, T. Atkins, {Ro]bert Browett, John Miller, Henry Herritt, [Jam]es Rowley, William Lindsey, William [?]nes, Walter Simson, T. Adams, John Cocker, H. [?]ls, Joel Absalom, John Keys, John Douglas, John [?]lley, and John Cockshott for various la[r]cenies.
These were sentenced to 8 months' imprisonment [fro]m the time of their several convictions, viz:- [Fr]ancis Atkinson, David Walters, Henry Money, [?]l James Carroll, also, for petty larcenies.
John Cockshot was discharged from his conviction [of] feloniously cutting and stabbing, with intent to [kil]l and murder, that being a capital offence.

Notes

[1] The same report was also published in the Hobart Town Courier, 20 June 1829.

[2] On 24 July 1829, the Colonial Times reported other proceedings as follows: "The Supreme Court sat on Monday for the purpose of passing sentence on the remaining prisoners, found guily during the last Sessions; but adjourned the Court for a week. We heard that His Honor Chief Justice Pedder adopted the advice we ventured to offer, of consulting the Judges at Sydney, with respect to the doubts existing as to the operations of the late Act of Mr. Peel, with regard to the criminals convicted last Session. If he has done so, he has acted well; and we trust any doubts will be construed in favour of humanity, and that these unfortunate men will receive the benefit thereof."
In issue was whether a recent imperial Act abolishing capital punishment from some offences, was in force in the colony. Behind that was a controversy about the date of reception of statute law, before the enactment of (1828) 9 Geo. 4 c. 83. For the New South Wales Supreme Court's view of this, see Applicability of Criminal Laws Opinion, 1828.
On 7 August 1829, the Colonial Times stated that between 100 and 200 criminals had been tried and found guilty, many of them four or five months ago, but were still in gaol awaiting sentencing: "Report says, what we cannot believe to be true, that doubts have crept into the mind of the Chief Justice, whether or not the whole of them have not been tried and convicted under obsolete Acts, thus rendering nugatory all the labours of the Law Dignitaries for many months, and incurring an enormous and useless expense for the attendance of witnesses and other charges. We are bound to disbelieve this - we cannot bring our minds to credit that so little knowledge as this state of things would imply, can be found to exist in two such personages as the Chief Justice and the Attorney-General - and yet, it being a question in which the Public are much interested, we confess we should like to see the mist dispelled, by which it is enveloped, and that the laws should not be made so much to resemble the Shepherd's Boy in the fable, who was ever crying wolf when no wolf was coming."
On 16 October 1829, the Colonial Times announced the following: "Four prisoners, who were tried and ordered for execution some time ago for absenting themselves, and committing robberies in the woods, were discharged by the Judges, upon finding that Mr. Peel had repealed the Act, under which they were tried! They were indicted for another capital offence, but as it was committed prior to the repeal of the Act, the Judges humanely gave the prisoners the benefit thereof, and had them tried for misdemeanour under the Common Law, and found guilty accordingly. We trust this information will have the effect of relieving many of the prisoners now lying in the Hobart Town Gaol; in which there are upwards of one hundred now anxiously awaiting their fait, who have been for many months tried and found guilty under similar circumstances." The reference is to a decision of the Supreme Court judges in Sydney, and its implications for Van Diemen's Land.

[3] See also Colonial Times, 26 October 1829, and see its editorial of 6 November 1829, noting that the number of prisoners crowded into the gaol waiting for this decision was 110, 40 more than it was built to accommodate. For a further editorial, see Colonial Times, 13 November 1829.