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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. James, Pennel and McGuire [1828]

capital punishment - transportation - litigation, rate of

Supreme Court of Van Diemen's Land
Pedder C.J., 29 February 1828
Source: Colonial Advocate, 1 April 1828 [1]

This day, the prisoners convicted for robbing the Colonial Treasurer, namely, James, Pennel, and M'Guire, the soldier, were brought up to receive judgment. Pennel addressed the Chief Justice in a most emphatic manner, taking GOD to witness that he was an innocent and much injured man; that he was offered 200 sovereigns and a free pardon if he would give information of the robbery; that if he had been a villain, he might have given evidence accordingly; that such evidence would have been that of a villain; and that such was the evidence upon which he was convicted. The prisoner made many other strong observations, and told the Judge, if he passed any sentence on him, he hoped it would be the sentence of death, and that His Honor would see it put in execution, as he would rather die than be transported. His Honor Chief Justice Pedder, with that feeling of humanity by which he is universally distinguished, endeavoured to bring the unhappy man to a state of calmness and reason; but, finding it impossible, directed him to be removed until he recovered from his mental excitation; who, however, on being removed, declared (still violently agitated, and with sobs and tears), that he would never feel different. His appeal to the Court seemed to have made a deep impression, and we saw more than one of the auditors moved to tears. His Honor's forbearance and feeling seemed to afford much satisfaction. The other prisoners received sentence of seven years transportation with apparent apathy.

Notes

[1] See also Tasmanian, 7 March 1828.
On the preference of death rather than transportation to a penal settlement, see also R. v. Lacey, 1827. Some convicts in New South Wales expressed a similar preference: R. v. McDonnel and Miller, 1832; and seeAustralian, 29 May 1835; R. v. Donovan, 1824; R. v. Vials, 1834; R. v. Jeffries, 1835.
Few cases were reported in 1828. The Hobart Town Courier, 2 February 1828, noted that few civil matters now reached the Supreme Court by comparison with a few years earlier, arbitration being used daily as it was less expensive. Criminal cases were very briefly reported in some newspapers: Colonial Advocate, 1 April 1828; Hobart Town Courier, 19 July 1828; and particularly the Tasmanian, which often published very short reports of criminal cases. In most cases, these criminal reports merely stated the name of the defendant, the charge and the verdict. In 1828, the Hobart Town Gazette and Colonial Times both published no law reports.

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