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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Murray and others [1827]

capital punishment, mass executions - capital punishment, benefit of clergy - stealing, sheep - stealing, in dwelling house - stealing, cattle - forgery - prosecutions, number of - flogging, public - sentencing discretion

Supreme Court of Van Diemen's Land
Pedder C.J., 16 June 1827
Source: Hobart Town Gazette, 23 June 1827 [1]

The prisoners in gaol, under conviction, were this morning brought up to receive the sentence of the Court. Robt, Lathrop Murray, (for forgery), was first put to the bar. In addressing him, his Honour the Chief Justice began by saying that although he was not then going to pass the sentence of the law upon him for the several legal reasons which he was about to mention, he was, nevertheless, fully convinced that he was guilty of the crime for which he had been tried, and his Honour pointed out the enormity of the offence and the serious injury which the commission of such a crime was calculated to inflict upon society. His Honour then explained at length the several grounds of objection in point of law which had been taken by the prisoner's counsel in arrest of judgment, evincing the deep and laborious research and patient attention which had been bestowed by him in the consideration of each. The limits of our Paper forbid us entering upon these points at large. His Honour observed, that it would have been better perhaps, at once to have sent the case home to England for the determination of the judges. But there was an anxious desire that as few cases should be referred there as possible. He decided that there were not sufficient grounds for arresting the judgment, but that under all the circumstances, the proper course would be, for his Honour to recommend His Excellency the Lieutenant Governor, in respect of the last point of objection taken, to grant the prisoner a pardon. Mr. Murray was then ordered to be remanded till the result of the application should be known, and it is understood that if a pardon cannot be granted, the case will then be referred home.
Thomas Bidwell Child, (the case of forgery of the Treasury bills), was then led to the bar. The prisoner, it will be recollected, had been convicted of uttering one of the large quantity of forged Treasury bills, which have been in the market in this island. The point taken was, that Mr. Wemyss had been improperly received as a witness. This point his Honour decided against the prisoner and added, that he stood properly convicted of the offence with which he was charged.
The objection was next disposed of, which had been made in the case of William Scanlin, a private of the 40th regt, who was convicted at Launceston of feloniously shooting at T. Burnell, which objection his Honor overruled.
These cases being disposed of, 19 prisoners convicted of capital offences were led into court to receive sentence. Being each severally asked what they had to say why sentence of death should not be passed upon them, his Honour observed, that he might say generally, there was not one amongst them whose guilt had not been clearly and satisfactorily proved. He had very carefully considered every one of them, and many more than once. (His Honour was here much affected). He had searched through all, and endeavoured to find some circumstances of mitigation by which he might be justified in refraining from passing sentence. He had been able to find only one case so circumstanced, and that was the case of Richard Pell, (for stealing in the dwelling-house of Michael Lee), in which it appeared, the temptation had fallen unexpectedly in his way, and it was not a premeditated act. As to Child's case, his crime was evidently one of long premeditation --- The way in which he came to this colony to issue the forged paper, had been clearly shewn.
In the cases of sheep-stealing, the persons convicted must have been aware, from the fatal example of those who preceded them, how little chance there was of their escaping the dreadful punishment of death awarded to that crime. The reiterated commission of that offence, so deeply affecting the property and existence of the settler, was such, that it was necessary to check it by the most awful examples. His Honour could not give one of the them the least hopes of pardon. John Little, his Honour observed, had stated that he was forced to sell the sheep to defray his expenses; but the facts which came out upon his trial contradicted that statement. A servant intrusted with property knew well that he had no right whatever to make use of it.
Lane and Harry, convicted of cattle stealing, had alledged that there was no proof against them. It was impossible that much more strong circumstantial evidence could have been brought against any one than had been adduced against them. They stated that the fire made, was for the purpose of burning a snake, but out of the ashes there were drawn pieces of the bullock's entrails, hoofs and skin, and large pieces of beef had been found in the neighbourhood, besides traces of a beast having been recently slaughtered close by their house.
The case of Macpherson and Higgins for housebreaking was of a bad nature. The crime, notwithstanding the improved order of the town, was till so prevalent, that very little hopes could be given to either.
Wright's case for stealing in the house of Wm. Cassidy was an extremely bad one. He had robbed a man, who in the hour of the prisoner's distress had taken him in and treated him kindly. He returned it by plundering the house of all that was valuable.
Oakley's case was also of a very bad description.
Both Bradshaw's and Callaghan's cases (for highway robbery), were bad, and his Honour could afford them no hope.
In the case of Scanlin, his Honour said it was distressing to hear him state, that he had not had due preparation for his trial. But it was to be recollected that there were no witnesses whom he could by possibility have called. The act of firing was totally without excuse.
His Honour concluded by hoping, that those who had been waiting the sentence of this day had employed their time to good purpose, and he recommended them earnestly at once, to resign themselves to the fate which must attend them. He then, in a most impressive manner, passed the awful sentence of death on the following unhappy men, viz: T. Bidwell Child for forgery, Wm. Scanlin for feloniously shooting, John Clayton, George Dunnings, W. Longhurst, (this man sobbed and sighed bitterly, and at one time swooned away overpowered by his feelings) and John Little for sheep-stealing. John Lane and W. Harris for cattle-stealing, James Rutherford, Andrew Pebbles, Cha[s]. Thomkins Bradshaw, and C. Callaghan for robbery, and D. Macpherson, Martin Higgins, H. Oakley, John Wright, and Thomas Stopford for housebreaking and stealing in dwelling-houses.
These being reconducted to gaol, 26 others were brought into court, convicted of minor offences. They each prayed the benefit of clergy, and his Honour remarked, they ought to rejoice that in that court they were allowed it, not because the law entitled them to it, but because there was no one to dispute the plea.
Four were sentenced to 14 years transportation to Macquarie harbour, viz :--- Thomas Dykes, Charles Jones, Benjamin Gibbs and John Wilson for receiving stolen property. The crimes to which these men were accessory would not be so frequently committed, unless such persons as they received the property.
Eighteen were sentenced to 7 years transportation, viz: W. Measures, Thomas Warner, Robert Bond, W. Harris James Brown, James Kerr, W. Clark, Thomas Blackburn, E. Broughton, George Taylor, George Richards, John Lee, W. Creswell, Henry West, R. Hammond, Elizabeth Clark, and Ann Baker for various larcenies.
John Carberry and P. Murphy were sentenced to be publicly whipped. Lachlan Reynolds (for a misdemeanour), to one month's imprisonment. Samuel Jones, a private of the 40th, convicted of assaulting and stabbing Mr. Beaumont, had been guilty of an aggravated offence. He was sentenced to 12 months imprisonment.
This day closed the Criminal Sessions of the Supreme Court, which has lasted now nearly 2 years. It commenced on the 18th. of July, 1825, and since that time nearly 700 prisoners have been brought to the bar.

Source: Colonial Times, 22 June 1827

On Saturday last, His Honor the Chief Justice Pedder took his seat on the Bench to give judgment on the various prisoners then in Gaol, on whom sentence had not been passed - the present being a General Gaol Delivery, the long Session having at last terminated.
Mr. R. L. Murray, whose case is already well known to the Public, was first brought into the Court by the Sheriff, Mr. Fereday, previous to any other prisoners being brought out of prison. He was addressed by the Chief Justice at considerable length. His Honor observed, that various circumstances were connected with his, Mr. Murray's case, which had occasioned considerable doubts in His Honor's mind, as to whether it were a forgery - although he had no doubt of there being an intention to defraud. It was customary, where doubts existed as to the legal guilt of the prisoner, that he should reap the benefit of that doubt; but in the present instance, under all the concurrent circumstances of the case, His Honor did not feel himself justified in discharging Mr. Murray, although he promised to recommend him to the consideration of the Lieutenant Governor for a pardon. But should His Excellency not accede to this recommendation, the case must go before the twelve Judges in England, where His Honor considered the same doubts would exist, which existed in his own mind, and that consequently the issue was likely to be the same.
The Chief Justice then proceeded to pass sentence on the other prisoners brought in. - During this painful duty, His Honor spoke in such feeling terms to the unhappy men before him, on whom he was passing the awful sentence of the Law, that they were all much affected - many of them to tears, and one fainted. It was an heart-rending spectacle to witness, so many as nearly twenty unfortunate culprits begging for their lives - while the stern voice of justice forbid the Judge to listen to the tender one of pity. - The sentences were as follows:--
Death. - Thomas Bidwell Child, for uttering and forging Treasury Bills to the amount of £600, purporting to be drawn by Deputy Commissary General Wemyss, at Sydney, on the Lords Commissioners of His Majesty's Treasury, with an intent to defraud Captain Daniel Taylor; -- John Clayton and George Dunning, for stealing 100 lambs, the property of Thomas Austey, Esq[;] J. P. Jericho; -- William Longhurst, for stealing 10 sheep, the property of Mr. James Maclanachan; -- John Lane and William Harry, for stealing a cow, belonging to Mr. Lewis, Coal River; -- James Rutherford and Andrew Pebbles, for robbing Richard Harris of one shilling, his property; -- John Little, for stealing 7 sheep, the property of Mr. Lyne; -- Charles T. Bradshaw, for robbing William Murphy of seventeen shillings and sixpence; -- Daniel McPherson and Martin Higgins, for breaking into the house of Henry Bye; -- Richard Pell and John Wright, for privately stealing; -- William Scanlon, for shooting at Thomas Burnett; -- Henry Oakley, for housebreaking; -- Charles Callaghan, for robbery from the person; -- Thomas Stopford, for stealing in the dwelling-house of Mr. Hodgson.
Transportation fo 14 Years. - John Wilson, Thomas Dykes, Charles Jones, and Benjamin Gibbs.
Transportation for 7 Years. - William Measures, Thomas Warner, Robert Bond, William Harris, James Brown, James Kerr, William Clark, Thomas Blackburn, Edward Broughton, George Taylor, Ann Boller, Elizabeth Clarke, William Cresswell, John Lee, George Richards, Henry West, and Richard Hammond.
Discharged. - William Slade, John Herring, Daniel McFadden, John Gourdrey, and John Half.
To be Whipped. - George Dixon, once; John Carberry, twice; Patrick Murphy, once.
Lachlan Reynolds, to be imprisoned one calendar month; Samuel Jones, to be confined 12 months.
William Jones, convicted of feloniously stabbing, with intent to kill James Newman, and assaulting, with intent to kill, Joseph Musslewhite, was not brought up for judgment.
John Middleton, and Henry Wills Hookham, remanded.
John Bailey, to be recommended for a pardon.

Source: Colonial Times, 29 June 1827

On Wednesday morning, John Carberry and Patrick Murphy, two of the men sentenced to be publicly whipped, had their punishment inflicted at the cart's-tail in Elizabeth-street - one going from the Ship Inn to Roxborough-house - the other returning. An immense number of spectators assembled to witness this disgusting spectacle; which greatly shocked most of the inhabitants, particularly the females, of the street through which it passed. ...
Judge's Report. - On Wednesday, His Honor the Chief Justice Pedder made his report of the criminals under sentence of death, who were tried during the last Session, before the Executive Council; when, after mature consideration, Thomas Bidwell Child, John Clayton, George Dunning, William Longhurst, Daniel M'Pherson, Martin Higgens, John Wright, and Henry Oakley, were ordered for execution on Tuesday next; John Lane, William Harry, John Little, and Charles Bradshaw, under sentence of death, were commuted to transportation for life; Charles Callaghan and Richard Pell, under sentence of death, were commuted to transportation for 14 years; Mr. Robert Lathrop Murray, William Slade, James Rutherford, and Andrew Pebbles, were unconditionally pardoned; William Scanlon and Thomas Stopford remains for further consideration.

Source: Hobart Town Gazette, 30 June 1827

On Wednesday the hour which had been appointed for the following eight unhappy men to die was communicated to them by the Sheriff, viz
1. Thomas Bidwell Child, the melancholy case of forgery of the Treasury bills. He 
received the dreadful tidings with apparent fortitude, but when his wife and children, who have come over from Launceston, saw him after his fate was made known, the scene which took place was truly heart-rending.
2 & 3. -- John Clayton and George Dunning guilty of stealing sheep from Mr. Anstey.
4. -- W. Longhurst also guilty of stealing sheep. He was connected with S. Hillary, 
who was lately tried and acquitted of a similar crime. We believe this is the first crime of the kind with which he has been charged, and the period of his transportation from England has expired since he has been in custody.
5 & 6. - Daniel McPherson and Martin Higgins who robbed a house on the New-town road attended with aggravated circumstances. They watched the family out of their dwelling and robbed it at noon day.
7. --- John Wright, the man who was taken in by Mr. Cassidy and treated kindly when he came to him in hunger and distress, complaining that he could not obtain employment. He took the opportunity of an [?] moment on Christmas day to rob his benefactor of property and money to a large amount.
8. --- Henry Oakley who had been tried and acquitted of stealing some trifling 
article of wearing apparel at the Clyde and had afterwards returned to the same neighbourhood and committed a burglary in the house of Mr. Brodie.
These men are all remarkably penitent. They are attended by the Rev. Mr. Bedford, whose exertions to prepare them for the awful hour are indefatigable.
His Excellency the Lieutenant Governor on the recommendation of his Honour the Chief Justice, has been pleased to grant a pardon to Mr. R. L. Murray.

Source: Colonial Times, 6 July 1827

Early on Tuesday morning, the solemn note of the death-bell, which warned the unhappy men on whom that sun had risen, which they were never to see set, of their awful and approaching doom, struck upon our ear occasioning emotions better imagined than described. At about half-past eight, the following unhappy men were led upon the scaffold, pursuant to their sentence:-- Thomas Bidwell Child, for forgery on the Lords Commissioners of His Majesty's Treasury; John Clayton, George Dunning, and William Longhurst, for sheep-stealing; Daniel McPherson and Martin Higging, for stealing in a dwelling-house at noon-day, attended with aggravated circumstances; John Wright, for robbery, under peculiarly aggravated circumstances; and Henry Oakley, for burglary. The unhappy men met their awful doom with an apparent composure and contrition - at once surprising and gratifying. - They sang a hymn on the scaffold, and were launched into eternity while earnestly engaged in prayer. - The exertions of the Rev. Mr. Bedford have always been peculiarly successful on the minds of such unfortunate men; and if any faith is to be placed in appearances, the life of guilt with these melancholy examples of justice, terminated in a blessed eternity. On the above cases, we have but a few remarks to offer. With regard to that of Child, for the forgery of Treasure Bills, who many persons expected would have been reprieved, we must say we think the Lieutenant Governor had it not in his power, consistent with his duty to his King and Country, to save his life. His was a crime which struck at the interest of the British Nation; and which, if carried on to any great extent, must over throw that noble fabric; and moreover, it was calculated to be the greatest injury to the mercantile portion of the community. - Therefore, being the first case of the kind in Colony, the Law demanded him for an example. We sympathise with his distressed wife - we acutely feel for his children, as must every humane and charitable mind in the Colony - but justice could not be appeased in this case. It is remarkable, that Child was in custody two or three years since at Fort Dalrymple, but was discharged, in consequence of his prosecutor, Captain Taylor, formerly of the ship Caroline, being absent from the Colony, and supposed to have been lost with that vessel; but Mr. Taylor returning, Child was re-apprehended, tried, convicted, and has now been executed. His poor wife came from Launceston to take leave of him, after the Sheriff had made known to him that he was to suffer : the scene which took place was heart-rending in the extreme. As it regards, the three men for sheep-stealing, it must be allowed that their crime is attended with such ruinous consequences in this Colony, that it was impossible they could be spared, or that they could expect it. Every man, convicted of sheep-stealing, must suffer, or the numbers who have been executed for that offence have been murdered, as our late King said on the case of Dr. Dodd and the two Peron's. - All the unhappy men acknowledged the justness of their sentence, with the exception of Child, who denied his guilt to the last, and did not take the sacrament, as all the rest did. On the Saturday evening previous to the execution, Wright sent to the Rev. Mr. Bedford, requesting him to attend him. That Gentleman repaired immediately to the Gaol, and to the cell of the unhappy victim of his own conscience; who unfolded the following dreadful circumstances. He stated in the outset, that his wicked conduct throughout life had driven his aged mother to despair and suicide! He then, while his whole frame appeared convulsed with agitation, stated that he had something more horrible to relate. He essayed to speak, but such was the tremour which had seized upon his frame, that he could not, and his Reverend visitant, who, as may be suposed was much affected himself, by this painful interview, humanely ordered some wine to be brought for the poor mental sufferer. Becoming a little more composed, he proceeded to narrate, that he had been a seaman on board a British man-of-war, during the late war. - That while in the Basle Roads, off the coast of France, the vessel (the Boyne '98) he was on board of, fell in with and captured a French sloop-of-war, the Dolosa. A Mr. Goulbee, the Master of the Boyne, was put in charge of the prize. Before they had left the Roads, the crew, under the prize-master, Mr. Gouldbee, mutinied; and that he, Wright, with a blow of an axe on the head, murdered that unfortunate Gentleman, and then threw his body overboard! The vessel was then run aground by the mutineers on the French coast. Wright, about three months afterwards, was apprehended on suspicion, but subsequently discharged. - Such was the narrative, (as far as the Rev. Mr. Bedford could collect from the culprit's agitation,) of the miserable murderer, Wright. - He also confessed to several sheep robberies in this Colony, and of having robbed the cart of the Surveyor General. - From this it will be seen, that Almighty Providence will never suffer the guilty to escape. Sooner or later justice will come, and as was the case with the murderer Wright, bring the criminal to the ignominous scaffold.

Source: Hobart Town Gazette, 7 July 1827

EXECUTION.

At the appointed hour on Tuesday morning, Mr. Hayes the Under Sheriff, (Mr. Fereday, we regret to say, being indisposed.) summoned the eight unhappy men condemned to die, from their cell to the fatal scaffold. He found them in earnest preparation, attended by the Reverend Mr. Bedford, whose blessed exertions in their behalf, have been unceasing since their sentences were passed; and the Reverend Mr. Macarthur and the Reverend Mr. Carvosso also kindly lent their aid to administer the comforts of the Gospel at the trying moment. They were alltogether in on of the upper rooms, and having had their irons taken off, were brought down one by one that their arms might first be pinioned. We have never before seen men so penitent, so resigned and apparently so contended to die.
John Wright was the first that mounted the scaffold. He was a little dark man, 41 years of age. He had been free about twelvemonths, and had lived chiefly at Launceston, where he was often heard to declare that he was tired of life. Besides the robbery at Mr. Cassidy's there was an indictment against him for stealing 22 sheep from Mr. Bryant, at Jericho. On Saturday, about 10 o'clock at night, his mind being in a dreadful state of agony and distress, he took Mr. Bedford aside, and confessed to him that there were three things, which he could not rest, until he had disclosed. The first was that his cruel and undutiful conduct to his mother had been such as to drive her to such a state of desperation as to make her drown herself. The crime of matricide was therefore on his head, and he had her death to answer for. The second was perpetrated on the coast of France in 1810, when being in a British ship of war which captured a French gun brig, he was among the number sent on board to navigate the prize. During the midnight watch, he seized an opportunity to commit a most appalling murder. He split the master's head open with an axe, threw the body overboard and ran the vessel on shore upon the enemy's coast. The third, which oppressed him the most heavily of all was, that he had made three several desperate attempts upon his own life.
Thomas Bidwell Child, aged 26 was the next. He alone of all the miserable men maintained throughout a fixed and resolute silence as to the crime of which he stood convicted. Although he had assumed a composure which shewed itself in the features of his face the effort to preserve it was frequently betrayed by a tremulous action at the joint of the jaw. He had screwed up his courage, as it were, to the last, to meet the rage of the short and stormy passage he was about to take. He joined with resignation in the devout exercises of his companions, and frequently held the book with Mr. Bedford. When the rope was adjusting he seemed already to have entered on the journey, exclaiming, "I am sure I shall go to heaven, I can see heaven." Mr. Child was respectably connected, and the son of the present Mr. Child, Solicitor, in Bristol.
He was followed by George Dunning of Dunhill, aged 24, a handsome young man, about feet 3 inches high, with a fine regular countenance. He had lately become free and was observed during the sessions of the Criminal Court to be present at many of the trials. His father, Snowden Dunhill, who is now in the Prisoners' Barracks, a prisoner for life, for returning from transportation, who lately tried for stealing in a dwelling-house, and his unfortunate son was observed to pay the most marked attention during the whole trial. The old man visited his son on Monday night to take a last farewell. Both at first bore it with considerable composure, but when the moment of parting came, the son laid his head against the wall and sobbed bitterly. Dunhill's family and connections were numerous and most of them have been either executed or transported, having been long the dread of Yorkshire, noted as Snowden Dunhill's gang.
He was followed by John Clayton, the companion of Dunning, aged 43. He also had become free, and long lived a life of idleness in the neighbourhood of Bagdad, without any ostensible mode of obtaining a livelihood.
Daniel Macpherson, a boy aged 19, next ascended. He was remarkably fervent and sung the hymn on the scaffold with great loudness and strength of voice; he was formerly servant to a settler at Ralph's bay, and dated his crimes from the time of his entering the Penitentiary, which he declared had been his ruin, and wondered that such a sink of crime had not long since been swallowed up.
Martin Higgins, a short thick man, aged 26, his companion, had the rope next put about his neck. This man had also been a servant about Pittwater. On the night previous to his execution he sent for a little boy in the Penitentiary, named Riley, purposely that he might take warning by his miserable end. He implored him to begin to think. "Do not do" said he, "as they do in the Penitentiary. There are many that I should have sent for, but I wanted you to see the situation I am in."
William Longhurst, aged 23, from Morden in Surry, (the same who swooned during the passing of his sentence). He had the most open countenance of any, and a fine forehead, He was dressed in white and was profoundly attending to the prayers. The crime of sheep stealing for which he suffered was the only one with which he had been charged since his arrival in the country.
Henry Oakley, aged 24, was the last. He appeared to have received scarce a glimpse of education and was lamentably insensible to the awfulness of his situation.
The painful ceremonies being [complied], the rope adjusted and the cap drawn over their faces, the Clergymen and Sheriff descended the ladder, the executioner withdrew the bolt, the platform fell, and these eight miserable men, in full possession of their faculties, were almost in a moment suspended lifeless corpses from the beam.

Notes

[1] For the earlier stages of the prosecution of Murray, see R. v. Murray, 1826.
Benefit of clergy: originally, the exemption of clergy from criminal process. It was later extended to all literate persons, but lay people could use it only once. It was abolished by particular statutes for some offences, and then generally abolished in 1827, by 7 & 8 Geo. 4, c. 28. For an editorial on benefit of clergy, and generally opposing capital punishment, see Hobart Town Gazette, 29 September 1827.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania