Box 55 Documents

Introduction and General Notes

These documents can be related to John Walpole Willis’ work as a Judge, either in Sydney or Melbourne. There is evidence, in Behan’s biography and from what researchers actually saw, that most of these documents were originally in Willis’ Court Note Books but that, over the years, they were removed and eventually collected into Box 55.

The “Commentary” about these documents has been done by His Honour Paul R Mullaly, QC.

List of Documents in Box 55

Bibliography

Garryowen (Edmund Finn) The Chronicles of Early Melbourne (1888) (Facsimile)

Historical Records of Victoria 7 Vols (Vict Govt Printer, 1981-98)

Kerr W: Melbourne Almanac (1841) (Facsimile, 1978)

Mouritz J J: Port Phillip Directory 1847 (Facsimile, 1979)

Mullaly Paul R: Crime in the Port Phillip District (2008)

The Journals of George Augustus Robinson, Chief Protector of Aborigines – 1 January 1839- 30 September 1852 – 6 Vols (ed by Ian D Clark, Heritage Matters, 1998)

Handwriting

It must be appreciated to in this period the letter “s” was often written or printed in an elongated form so that to modern readers it looks like the letter “f”. The elongated form was commonly used for the first “s” of a “ss”.

Spelling

Frequently, misspellings, in modern terms, are an indication of how words were then pronounced and spelled.

Abbreviations

Abbreviations were common in handwritten documents during this period. Christian names were sometimes always in an abbreviated form whilst a surname might be given fully when first used and then abbreviated.

The abbreviation of ordinary words had some commonality but an individual might use their own version which might be misspelt.

It must be understood that sometimes what appears to be an abbreviation is the spelling (or misspelling) of a word then in common use. Usually such words will be discussed in the Commentary of each case.

1. William Briffitt

This document consists of one full sheet of Folio (?) size paper and sewn to it is a portion of a similar sheet.

This handwritten document has marked on the outside.

“To His Lordship and Gents of this Jury” Later notes on the outside are (3) Box 55a A Stamp Royal Historical Society of Victoria 000195 (handwritten) “9 Feby 1838” (This was the date of the trial) This handwritten document has marked on the inside Historical Society of Victoria The text of this document is ‘Your Lordship And Gents of the Jury The Petition of Wm Briffitt most humbly Sheweth That Petitioner acknowledges the charge preferrd against him so far as stabbing prosecutor with a knife but begs leave to state that he was obliged to do so in protection of his own life being unprotected and ignorant of the plot devised by prosecutor and others for his destruction which the following statement will shew and that it was through self interest and designing motives he has been involved into this unfortunate affair and therefore hoping if your Lordship and gentlemen of the jury by your superior judgement and mercy should deem his humble petition worthy of your consideration you will be gracioufly pleased to vindicate his cause as under existing circumstances since his confinement he is now unable to employ an agent or councellor to plead his part.

That petr had a farm from Mr North (Police Magistrate of Windsor) for two years prior to his confinement on which he formd a comfortable residence and was content in every other respect until a feeling of charity induced him to allow Wm Mann and family to take refuge under his roof they having no other place and being completely destitute in consequence of he Wm Mann being previously tried at Windsor upon an alledged charge of robbery

That for a considerable time after Mann and family came to live with petr he endeavoured to obviate the pressure of there distresses as much as possible both by his earnings and labour, they through pretended gratitude introduced a marriage between petrand there daughter which was agreed upon by both sides the bands being published and liberty being granted petr provided all necessaries for that purpose but they dreading that if the marriage took place they must look for some other place of residence and also be deprived of petrs usual assistance they fabrickted the following plan in order to banish him and thereby to posses the farm and fruits of his industry themselves

Mann invited More to petrs place on the eve before Christmas last where they arrived about 10 o’clock at night where they was treated with a part of the liquor which petitioner provided for his marriage until they became intoxicated and then commenced a quarrel with petr he More struck and abused him until they drove him into a large deep stump hole out of ? there perservering hands (there being two against him) he had no way of extrecating himself until he (having the knife in his hand cutting tobacco from the commencement) made use of it in defence of his own life as aforesaid. I hope therefore your Lordship and gentlemen of the jury will take this my unfortunate case into your humane considerations into whose hands I commit myself for your merciful decision

For the which I shall ever pray.

Commentary

William Briffitt was indicted at the Old Bailey on 12 July 1827 for stealing, on the 30th of April , at Christchurch , 188lbs. weight of mutton, value 6l.; 108lbs. weight of beef, value 3l. 7s.; 24lbs. weight of veal, value 15s.; 1 cart, value 20l.; 1 set of harness, value 6l., and 1 mare, price 40l. , the property of  George Francis – convicted and sentenced to death. (from Old Bailey website). He was transported to NSW.

As a result of the incident referred to in this document, William Briffitt was charged with stabbing and was tried by a Military Jury. The trial was on 9 February 1838

This Case is in Willis’ Criminal Book No 1 – Page 75-88 –Willis’ references in these notes to the prisoner cross-examining witnesses indicate that Briffitt was not represented by counsel at his trial.

William Mann gave evidence to the effect that he had invited John Moore to his house in the evening of 24 December (1837) to have a drink and that Briffitt came there and ordered Moore to leave – Moore did not leave and Briffet returned and again ordered Moore to leave. Moore and Briffitt then went outside. Mann heard them arguing and then heard Moore calling out that Briffitt had stabbed him with a knife. Mann then saw that Moore was wounded and sent him to the home of his neighbour, Douglas, where he could be helped. Mann then asked Briffitt if he had stabbed Moore and Briffitt said he had not stabbed Moore.

Willis’ notes then contain notes about Mann’s evidence as to the evidence he, Mann, had given to the Magistrate about this case and that he had then given evidence that Briffitt had said he had stabbed Moore.

These notes indicate to me that the Crown Prosecutor was, in effect, cross-examining William Mann as a “hostile witness”

Mary Anne Mann was then called as a witness and gave evidence to the effect that Briffitt had dragged Moore out of the house and she heard one say he was stabbed but did not know which one it was. She was then questioned about the evidence she had given to the Magistrate that Moore said he was stabbed. She was also questioned about the arrangement that Briffitt was to marry her daughter and would be able to do so if he “gets off”

Again, these notes indicate to me that the Crown Prosecutor was, in effect, cross-examining Mary Anne Mann as a “hostile witness”

John Moore gave evidence that he was unmarried but was not “paying my addresses to Miss Mann”. He swore that Briffitt ordered him out of the house and they then struggled and that he did not see anything in Briffitt’s hand but he was stabbed twice with a knife. He called out to Mann for assistance and was sent to the Douglas house. In cross-examination by Briffitt, he denied that he had struck Briffitt.

John Douglas gave evidence of dressing Moore’s wound and putting him to bed.

Constable Noel Chapman gave evidence of arresting Briffitt and that Briffitt said he was struck by Moore and had stabbed Moore in self defence.

Willis records on Page 87 “a statement was put in & read by way of defence”

The prisoner was entitled to make a defence after the prosecution case was closed. Whilst the prisoner could not give sworn evidence, an unsworn statement could be made. It was permissible to read a prepared statement or to have that statement read by a court official. (Mullaly p 145). It was not uncommon for such statements to be in the form of a Petition

Your Lordship and Gents of the Jury – this form of address was common in England

since his confinement he is now unable to employ an agent or councellor to plead his part. – Briffitt is referring to the facts that he has been in custody, at least since his committal, and cannot afford to retain a Solicitor or Barrister. Barristers were then commonly referred to as ‘counsel’ and sometimes as ‘counsellor’

‘the bands being published’ – this was a reference to the banns of marriage being proclaimed 3 times in some church, as was required by Ecclesiastical Law. It was the fact that the proclamation had to be made 3 times that lead to the use of the word “banns” which was the plural of ‘ban’ meaning a proclamation. The common misspelling ‘bands’ was related to the word ‘band’ which had a meaning of ‘fetter’ and, for some, related the banns of marriage to the ‘bond of marriage’.

‘liberty being granted’- these words indicate that Briffitt was still on a ticket of leave when the marriage was arranged. Such transported prisoners required permission from the civil authorities before they could marry.

Briffitt called Samuel North, a Police Magistrate, and Joseph Douglas as character witnesses – both gave him a good character. However, North’s evidence revealed that Briffitt had been an assigned servant and had a ticket-of-leave.

At his trial Briffitt was convicted of stabbing with an intent to do some grievous bodily harm; “the Jury very strongly recommended the prisoner to mercy”.

The Sentence of Death was recorded – Willis recommended 6 mths in Iron gang (see Criminal Book No 1 – p88)

Willis has also noted that he sentenced “Wm Mann & Mary Ann his wife to Windsor Jail for a month for contempt of Ct in being guilty of gross prevarication. Their Depositions completely at variance with their evidence in Ct” (see Criminal Book No 1 – p88)

2. Benjamin Fraser

This document consists of one folded sheet of paper

Marked on the front

Box 55a

(6/VIII)

A Stamp

Historical Society of Victoria

000195 (handwritten)

Supreme Court Office

February 22/38

My Dear Sir

I find that Benjamin Fraser who was convicted before you of Housebreaking has been sentenced to be Transported for seven years. I think his sentence should have been Death recorded for the Act taken away the previous sentence of Death for that offence has not been adopted here. Should this be the case perhaps you will order Judgment of Death to be recorded against him and commute the sentence to 7 years transportation. I believe this may be done without the prisoner being present or I can order him up tomorrow and the sentence can be pronounced

Yours most respectfully

John ?

Commentary

Benjamin Fraser ‘a negro’ was tried for Housebreaking on 10 February 1838 before a civil Jury and convicted.

This case is in Willis’ Book No 1 pages 93-95

Joseph Williamson who lived near Cook’s River gave evidence of locking his house one morning and finding it still locked when he returned later in the day. He found some items strewn on the floor. He then discovered that some shirts, handkerchiefs and gold items were missing. He then discovered that some weatherboards had been torn from the wall. A Mounted Police trooper saw a “black fellow’ dressed in a white shirt. On apprehension he was found to have other property which Williamson identified in court.

A close examination of page 95 of this note book indicates that Willis has over-written some notes and has crossed out an entry and initialled it

Now the notes read

“Death Recorded

I recommend to be commuted

for transportation for 7 years – Feby 14 1838”

Felix McClinton

Introduction

This is a double sheet – foolscap size paper – folded into 4 – which was then the standard practice for Court documents

Marked on the front page

Box 55

(6/V)

A Stamp

Historical Society of Victoria

000195 (handwritten

On inside pages

A Stamp

Historical Society of Victoria

On back sheet

7 Augt /38

Horse Stealing

Transported for life (this is a later note)

Document

To His Honor the Judge and gentlemen of the Jury

I now stand charged before this Honorable court with having stolen a mare the property of Roger Cain in May last, which charge I most solemnly deny, and beg to say as brief as possible, that the prosecutor Cain has been from motives of bribe(?) induced to alledge this crime against me, he being a friend and pot companion of a prisoner of the name of Campbell in the County of Murray, against whom I have a law suit to recover the sum of £32. 14. 0 for labor performed and this has been done with a view to get me out of the way & to afford the said Campbell an opportunity to defraud me out of the said money.

Most hon. Sir & Gentlemen of the Jury, I am a poor man solely depending upon my earnings & therefore am unable to employ a professional gentleman on my behalf, and also not able to pay for free witnesses to appear on my trial, otherwise I could clearly and satisfactorily prove to your honor and the court that I am innocent.

Being fully satisfied of your honor’s and gentlemen of the Jury wishes that the very essence of justice should be administered I leave myself entirely upon the court & trust and hope that you will be pleased to cross-examine witnesses on my behalf in such a manner as may seem advisable & point out such circumstances as may appear in my favour, for the singular evidence produced which is by no means conclusive, the unfortunate situation I am placed in, the poverty which this accurrance has brought me to, I feel satisfied will claim your most mature consideration

Under all those strange, and heartrending circumstances, I feel satisfied of receiving from your high wisdoms after examing the witnesses on my behalf if any in attendance such verdict as will be adequate to my most sanguine expectations.

And am most hon Sir & Gentlemen of the Jury

Your most obedient servant

3. Felix McClinton

Commentary

Felix McClinton was tried for stealing a mare belonging to Roger Kain. The trial was on 7 August 1838 before Justice Willis and a Military Jury. Willis’ notes are in Book 3 page 82.

Roger Cain gave evidence that he owned the mare which was in the possession of James Gillespie who lived at Johnson’s Bay. Gillespie gave evidence that McClinton lived near him and was present when he tethered the mare which he missed about a half hour later. Robert Draper saw that he saw McClinton riding the mare.

Willis has noted that three witnesses were called for the Defence. His notes are brief and it is difficult to determine their relevance. They seem to relate to McClinton’s association with a man named Toller

Willis has noted ‘puts in a written defence’ – this would be the document set out above- it was then the practice that a court official would read the document to the jury

McClinton was convicted and sentenced to transportation for life.

4. Thomas Holmes

There are 2 documents relating to Holmes

First

This is 2 joined page lined foolscap paper – it was originally folded into 4 – which was then standard for court documents

On first page is

1/III (handwritten)

Box 55 a

A Stamp

Historical Society of Victoria

000195 (handwritten

Same stamp (without handwriting) on verso of first page and on back page

Maitland Sepr 1840

This Certifies that we the undersigned have known Thomas Holmes for a considerable length of time and we have known him always to conduct himself in a sober, prudent, and quiet manner, and to have been a good Father and husband, and a kind peaceable & obliging neighbour

Then follow some 21 signatures

D Moan
John Ryan
Nicholas Healy
B Russell
Wm Hughes
Thos Dee
T Ames S Meden
?
James Brackenney
Mary Ann Lee
James Young
I E Wilkinson
? Poulton
John Stone
H I Pilcher
William Nicholson
L Boynes
Jame Lyon
Andrew McCauley
John Callaghan

At the bottom of the first page

From the high respectability of many of the signatures I have no hesitation in adding my testimony to the above

Pat Grant JP

Nothing on other pages

There is also a 2 page document

On first page is 1/III (handwritten)

Box 55 a

A Stamp

Historical Society of Victoria

000195 (handwritten)

Sydney 31st Octr 1840

This is to certify that Thomas Holmes was a servant of mine in 1822 & became free in my service, about 1827 – and that, as far as I remember he was a good and useful servant

Since 1827 I have not known anything of Thomas Holmes, except that he was a tanner at West Maitland

Robt Scott

Commentary

Thomas Holmes charged with the murder of Paddy Hanning in the Maitland area on 8 August 1840. Morley the night watchman in that area was walking through the town about midnight and hard a man moaning. He found Hanning lying by the side of the road about 300 yards from where Holmes lived. Manning said “I am murdered”. Hanning had blood on his head. He appeared to be very drunk and was taken to the nearby watch house. Whilst there Hanning used language indicating that he believed he was dying and said the Holmes had murdered him but did not know why Holmes had attacked him. Jonathon Random was staying at a house near Holmes’ house and during the night heard noises and saw Holmes hit a man and use language indicating that the man had attempted to enter his house. Elizabeth Cooper saw Hanning knock on Holmes’ door and saw Holmes hit Hannning with a stick. Hanning died on the following day after Dr Mallon had given him some treatment.

Holmes was tried for murder on 5 November 1840 before Justice Willis. He was defended by Mr Purefoy who argued that there were discrepancies in the evidence even as to the cause of death and that malice had not been proved. Edward Sparke was called to give character evidence for Holmes. Holmes was convicted of manslaughter and sentenced to 12 months imprisonment. These character documents could not have been used during the trial but would have been used during the sentencing process and then kept by Willis.

Willis notes of this trial are in Book 11 page 1

5. William McGrogan

This a 1 page document

On front

Box 55-a

(1/i)

No stamp but the ink number – 000195

Recto

I have been applied to for a character of William McGrogan aged seventeen but of himself I cannot speak from my knowledge since he was about ten years old – I knew his mother who died when he was that age and she was a very decent woman in her station in life. I regret to hear that he is charged with highway robbery and altho’ I fear any

Verso

Certificate that I can give will not serve him before a Jury it may possibly have some effect in his sentence if there be any other palliating circumstances to recommend him to the merciful consideration of the court

David Chambers

30th Jany 1841

Commentary

There is a character reference from David Chambers of 30 January 1841 for William McGrogan.

On 3 February 1841 William McGrogan and William Turton were tried, in Sydney, for Robbery with violence. The evidence was that, on 5 November 1840, Michael Horan an employee of Mr Daly of the Hume River was in a dray on the Parramatta Road about 4 miles from Sydney. He was approached by Turton and McGrogan and joined them in a public house where they had some drinks. Horan returned to the dray and was lying down when he was attacked by the two men who stole 4 Sovereigns and a clasp knife from him. They then left him and a short time later they were apprehended by a constable who suspected they were runaways. Whilst the two men were in custody Horan came along and accused them of the robbery. Horan’s evidence indicates that Turton was the main offender. The evidence in the trial indicated that Turton was a prisoner of the Crown but McGrogan was “free’. The jury convicted both men but recommended McGrogan to mercy and he got 3years imprisonment. Turton got 15 years transportation.

This Case is in Willis Book 11 p49

6. Denis McGroden

Folded piece of paper

On front

1

Box 55-b

A Stamp

Historical Society of Victoria

000195 (handwritten)

To certify that I have known Denis McGroden for many years during which I have had opportunities of witnessing his conduct which is that of an honest industrious man – shortly previous to the departure of Sir Richard Bourke that Governor bestowed on McGroden the Boon of a conditional Pardon of his son (who I am informed is to take his trial at the present Session of the Supreme Court) I know nothing except that he arrived free when a Child with his Mother to join his Father

Sydney 1st February 1841

Thomas Ryan

Commentary

This is a character reference by Thomas Ryan dated 1 February 1841. It appears to be for Denis McGroden’s son.

I think there should have been a full stop after the words “conditional Pardon”.

There is no trace of any trial of a McGroden in February 1841 – Not found in Willis note Book 11 which contains February 1841 trials – those trials include that of William McGrogan. (see above) and it may be that Ryan was providing a reference for William McGrogan.

There are references to a Denis McGrogan in the NSW records relating to convicts transported to NSW.

Cornelius Byrnes (Burns)

Introduction

This is a 2 page – foolscap size document – folded into 4 – which was then standard for Court documents

On front page

(6/IV)

Box 55a

A Stamp

Historical Society of Victoria

000195 (handwritten

On verso

A Stamp

Historical Society of Victoria

On fold

Her Majesty’s Gaol Sydney

1st February 1841

To His Honor

The Chief Justice
Supreme Court
New South Wales
(3 hand written symbols)

Recto

To His Honor The Judge Supreme Court
Sydney

May it please your Honor

I am indicted for an assault said to have been committed on James Connors of Kent Street Sydney under the following circumstances viz

On Thursday the 3rd day of December last I returned from my work, I laid myself on the bed – the Mistress of the house where I lodged and I had some words, when Connor having overheard us, came in and struck me with his clenched fist on the head while I lay on the bed & dragged me off the bed onto the floor when the mistress of the house sent her husband John Sullivan in to part us from fighting putting Connors who seemed to be the aggressor out side of the door where he picked up a stick and returned in and struck me with it. I stood in my own defence the best way I could when Cornnors was put out a second time and the doors closed against him. He in a riotous manner kept knocking out side the door so that I was obliged to quit my lodgings for that night. I saw him the next morning about 8 o’clock when he replied that we had made a pretty thing of it last night. I informed him that I was going to the Police Office to take proceedings against him on that day – I met him in about half an hour after I had been speaking to him with 2 constables and a warrant for my apprehension at the

Verso

Police Office I required the people who were in the house to be brought forward as witnesses from the commencement of the assault. But disinterested witnesses would not be brought forward for me but a woman which Connors lives with in a state of adultery was an evidence on his part against me

I hope your Honor and Gentlemen of the Jury will take Connors evidence with caution he having 2 years since been committed for wilful, and corrupt perjury and got out on bail and in that manner he absconded and evaded justice and neither him nor his bail have since been brought to account for it since

I am
Your Honor’s most obedient servant

7. Cornelius Byrnes

Commentary

Cornelius Byrnes (Burns) was charged with Maiming in February 1841 He was acquitted – Case is in Willis Note Book No 11 p41. This document is Byrnes’ unsworn statement used in his defence on his trial. The document would have been read to the jury by Byrnes or by a court official

Transcript of Willis Note Book No 11 p41

Cornelius Burns – Maimg

Jas Connors sworn

I know prisn In Decr last I went to the house prisn lodged in. I heard him abusing a woman. He knocked me down struck me several blows & bit a part of my nose off – I was drunk – I can’t say who struck first

Fredk McKellar sworn Surgeon of Sydney Dispensary clear piece of nose of last wits disfigured

Cath O’Sullivan sworn

Connors hit Burns first on the bed – Prisn came in & went to bed

Not guilty

8. Letter from William Russell

Folded sheet of paper

On Front

(10) Box 55a

A Stamp

Historical Society of Victoria

000195 (handwritten

Recto

Sydney Barracks

2 Feby (?) 1841

Sir,

As I fully believe that the absence of Private Merchant as a witness from Court yesterday was purely accidental, I take the liberty of apprising you of the same, in the hope that you may mitigate his punishment. The man, who is my servant, went as cited to attend as a witness yesterday morning & was there until the Court

Verso

rose about 1 o’Clock, when he came to get his dinner in Barracks & it was during his absence for this purpose that he has been sentenced to imprisonment. He in a young soldier and a new comer & you may be assured, as I before said, that his absence was purely accidental.

I have the honor to remain

Sir

Your most obedient Servt

Wm Russell

Capt 28 Regt

Commentary

On 1 February 1841 Mick Minter, John Smith & Cecil Cook, Mariners, were tried and acquitted of Larceny on board the ship, Palmyra.

The evidence noted by Justice Willis in his Book 11 Page 31 was that when the Palmyra was travelling between the “Cape” and Sydney some bottles of wine were missing from the hold. The witnesses for the Crown swore to seeing some bottles of wine in the possession of the prisoners and that Merchant, a soldier, was seen to give a bottle to Minter. The notes of the defence witnesses indicate that the prisoners might have had bottles of vinegar given them by a soldier

John Merchant is written in as a Prosecution witness but his name is then crossed out (Book 11 Page 31)

9. William Jones

There is a 4 foolscap page document

On 1st page

‘6(IX)’

A Stamp

Historical Society of Victoria

000195 (handwritten)

On recto at top left

Copd & sent

JWW

At top right

Hartfield Feby 3rd 1841

Sir

In inclosing (crossed out) The Petition & the letter which accompanied it, which (crossed out) I enclose have now the honor to transmit (crossed out) for the information of His Excellency The Governor I take leave to say that (crossed out) that on the 2nd inst Wm Jones was tried before ? for Forgery (crossed out) /a man who I have since been informed was notorious this crime, was tried before me for Forgery/ & that it (crossed out) it appeared in Evidence that Jones (who was convicted) & sentenced to be transported for life.) went to the shop of Reuben to purchase a Waistcoat & Handerchief & tendered in payment an order purporting to be signed by Mr Hy Dangar for £1. That Reuben asked the prisoner who he got it from & he said from a Bullock Driver – the Reuben kept the order but did not give up the things and told the Pris to bring the Bullock Driver, – & in the meantime inquired for & found Mr Dangar who declared the order to be a

At bottom left of this page

To the Hon the Colonial Secretary

On verso

a Forgery – There can be no doubt I think that Jones wd not (crossed out) have escaped being brought to (crossed out) justice but for Reuben exertions who appears to me to have acted very properly in this matter – I know nothing further (crossed out) more of Reuben whatever (crossed out), but I think some encouragement to men who act as he has done in this case, may prevent in some degree perhaps (crossed out) the commission of this too prevalent a crime

I have the Honor to be

Sir

Your very obedient Servt

John Walpole Willis

A Stamp

Historical Society of Victoria

On the back of this document in Willis’ handwriting is the note ‘condl pardon granted. JWW’

Commentary

William Jones was tried for forgery on 2 February 1841 in Sydney [Willis Note Book No 11 page 35]. The note book does not record the result of the trial..

Reuben might have been on a Ticket-of-Leave and this letter could well be a request by Willis that his condition be mitigated because of his behaviour in this case.

Reuben’s evidence was along the lines of what Willis has set out in this document

10. Michael Goodwin and Thomas Connock

Double sheet of foolscap paper

On front page

(5)

Box 55 a

A Stamp

Historical Society of Victoria

On Recto of first page

Melbourne

Pt Phillip

May 17 1841

Copy of Notes

Michael Godwin & Tho’s Connock

em>Manslaughter

Plea Not Guilty

em>Mr Croke, Crown Prosecutor, opend the case and said

Dece’d Harlequin an aboriginal complained about 10 or 12 miles from the Goulburn River of a pain in his side Stabl’d at the Goulburn that Night. Dece’d complained of a pain in his side & in his Chest – from Goulburn went 40 Miles. & then arrived at Melbourne – Harlequin exhausted – debilitated and threw himself on the ground The pressure of the Chain affected him very much – a person cd with difficulty put his finger betw’n the chain & the Neck – in high fever – conveyed from Watchhouse to the Hospital where he died –

Proceed to call Witn’s

On verso of first page

Henry Rose Serg’t Mounted.Police. Sworn

I am quarter’d at the Hume River was so in Nov.r last. I recollect the 29th of Nov.r last about that time I went to Mr. Ewing’s Station to take a Black Man in charge I had a Warrant – he was taken in charge before I came & delivered to me – I kept him at Mr Ewing’s Station that Night I think ab’t the 27 or 28th of No’r & the next Morn’g I fetched him down to my own Quarters – the Barracks the distance ab’t 12 or 14 Miles – Harlequin was the Black – I got him something to eat & warned two of the troopers to proceed on – I handcuffed the Black – he was handcuffed on the journey from Ewing’s to my Quarters – I put a chain on him a small Collar Chain – used to tie Horses with – something similar to a dog chain. I put it round his neck the Cold Iron part – fastened by a small padlock – I gave him then in charge to two troopers Byers & Rowley – I ordered them to proceed on that Evening

In margin of this page opposite reference to the Hume River is note

“Memo – the Hume river is not within the jurisd’n of the Resident Judge”

On Recto of second page

to Mr. Barber’s Station, the next day to proceed to the Ovens River – the next stage was to Broken River. my directions only extend’d to the Broken River – Corp’l Kershaw had charge at the Broken River – Harlequin appeared to be in a very good health when I first received him & he walked well – The Chain was the common weight of a Horse chain -s ab’t 7 lb or a little more- ab’t 4 feet long – the one part was round the Man’s Neck, the other in the Troopers hand – I went at about 3 miles an hour – I put the Chain on at my barracks – the Padlock might have been a Quarter of a Pound Weight –

Cross exd

I do consider the Chain absolutely necessary for the security of the Prisoner –

Rexd

We in general secure White Prisoners in the Way we can march them the best –

By the Jury –

It was between the 27th & 29th of Nov.r It was a chain usually used for the Horse’s

On Verso of second page

Horses’s Neck – I do not recollect ever putting a chain of this kind round a Whiteman’s Neck. I have seen it done on Black Men before –

By the Court

Black Men are more difficult to march – more liable to escape than White – The man made no attempt to escape before the chain was put on – I had no other mode of securing Harlequin that wd have been so easy to the Man himself. After I put the Chain on him I took the Handcuffs off –

Peter Byers Sworn

Private in the Mounted Police I remember the Month of Nov’r last – on the 29th I was quartered at the Hume River. Sergt Rose was my superior officer – he was in charge – I took charge of a Prisoner on 29 or 30th of Nov’r from Serg’t Rose – A Black Man named Harlequin – on receiving the Pris’r from the Serg’t I escorted the

There is a piece of paper (which is torn from blank foolscap) with the words, in pencil, –

‘the jury wish to express their strong reprehension of the conduct of the watchhouse keeper in not paying more attention to the deceased and express their extreme regret that the doctor did not examine him on his first visit’.

At the foot of this sheet of paper, in ink, is the date ‘17.5.41’

Commentary

The “copy of notes” is a copy, by Willis, of some of the notes in Willis Note Book No 11 page 123 on the trial of these men on 17 May 1841 – the copy only goes as far as ‘on receiv’g the Pris’r from the Serg’t I escorted the’ in the evidence of Peter Byers on page 127. The notes relating to this case continue to page 148.

These notes in Box 55 are not completely identical with the notes in Book 11; eg some abbreviations in the book are not used and “per jury” becomes “By the Jury” and “per cur” becomes “By the Court”. These changes might indicate that these notes were being prepared for someone not used to legal language

The jury note refers to the evidence given by Charles Collington at this trial. Willis’ notes of that evidence – commencing on page 139 – are:

Chas Collington sworn – reside at police office – writer – was in charge of watch house on 6th December – saw prisoners that day between 2 and 4 o’clock – delivered Aboriginal Native to me – had chain around his neck – commonly called a dog chain – did not observe any cloth – would not swear there was not – the chain was so tight I could not put my fingers through it – did not feel any cloth – his face appeared swollen – great difficulty in breathing – took chain off – can’t say if cloth around chain – did not discover any marks on neck – after chain off he threw himself down on the broad of his back – offered him water but he did not touch it

Xxd – I took chain off myself- I was left in charge with authority of watch house keeper

Francis McCarrick (McCormack) sworn [this is on the last line of the page]

Am a constable – have been for 3 months – resigned for bad health – was watch housekeeper – was not there when prisoner arrived – went off the New Town to take a prisoner – when I returned I saw Harlequin – sitting leaning against wall in cell – he put hand to side and head as if in pain – he drank some tea – I went and got Dr Cussen – he came in about ½ an hour

Collington recalled – not over ½ hour from Harlequn arrival until McCormack arrived

The Defence called the Chief Constable, William Wright, as a witness. Willis’ notes of his evidence – page 148 – are;

William Wright sworn – remember when Harlequin was at watch house – I took off the chain and showed it to the police man – the chain was not tight about the neck – watch house should not have been left with this man – should have been given to constable

On 20 May 1841, Willis wrote to La Trobe about the evidence given in this case by Collington that he was left in charge of the watch house –

“The testimony of this man Collington & that of William Wright, the Chief constable, was Dramatically opposite on a point of considerable importance (viz) taking the chain from the neck of the Aboriginal, one or other of them manifestly intended to deceive the court and impede the due course of justice”. Willis goes on to express the view that the employment of convicts in “any way connected with the administration of justice in this district seems to me to be ill calculated for the extermination of crime”. (VPRS Series 19 Unit 14)

It could well be that Willis had intended to give La Trobe a copy of his notes of the evidence but decided instead to limit his communication to the particular point of Collington’s evidence and character.

(See Mullaly pp. 353-57)

Willis Note Book No 11

At back of this book 11 there was a folded sheet of quarto sized paper which contains notes relating to some of cases in this book – these notes are now in Box 55

1st fold

“James Leahy – murder – Chinaman – Roscoe Crim Ev p96

drunkenness Rex v Carrol 7 C & P overruling Rex v Grundy – see also R ex v Meekin as to this case 76 at 297 – Roscoe 558-59 608

Arch 380-381 Peel’s Acts 2.96

John Roach – assault officer in execution of duty – Arch 368

Thos Watson Larceny

John McGill – Larceny of coat – Identity of ?

Francis ? – recing stolen prty

“That the mare is mine or at least I am riding her”

2nd fold

5 several prisoner shootg a Black with intent

Roscoe 213, 638-9

Charles Scott – killing a sheep with intent to steal carcass

Indict under 7 & 8 Geo 4 c25

See 3 & 4 wm4 c62

1 Vict c90 s 1 Arch 169-70

[some note about Larceny and killing] Arch 172

John Caton – assault constable in execution of duty

?? highway robbery

2 or more in company

3rd fold

George White – Hawk 93 – coroner’s inquest – manslaughter cf murder

Rex v Telf (?Self) 1 Hawk c13 p94n2; Roscoe’s Cr Evid 593-4 – Burns Justices 344

Goodwin & Connock – manslaughter Roscoe 454 – no such case as this in Hawk 92

Small dog chain round decd neck put on by Rose – usual manner leather collar – journey 40 miles the day he arrived – distance sufficient to account for feverish symptoms – pain in side not sufficient to interrupt journey – journey not in itself sufficient to cause fever – prisoners had only charge from Goulburn – chain put around prisoner neck at direction of Serg Keiling who gave directions to the men to get on as soon as possible thinks the prisoner might need medical attention – chains nothing more that necessary on former occasion

4th fold

John Wood – Felony uttering ? coin q if 2 Wm 4 c 34 has been adopted / 4 Bl com p99 – Stat 16 Geo2 c28

Wm McVea – murder – ? has given £15 for his defence See Roscoe 582,583,586; Arch 354-355

Rather better than a mile from the back road leading to Hentys – cart upset – pris did not mention anything when witness first went up – if sufficient attention the accident would not have happened

John Paine – murder – some depositions taken in absence of prisoner. Deceased said we are both in fault – Paine examined Arch 350, 351, 352, Roscoe 558 607

Commentary

Before the Criminal Sittings commenced it was the practice to give the Trial Judge a copy of the depositions relating to the cases listed for those Sittings. These notes indicate that Willis read those depositions and researched the relevant law or noted some aspects of the evidence which might be significant.

James Leahy – Note Book No 11 page 104

John Roach – Note Book No 11 page 156

Thos Watson – Not in Note Book – There was a Thomas Watson acquitted before Willis in May 1841 and a Thomas Watson convicted before Willis on 15 June 1841

John McGill – Not in Note Book – a John McGill was convicted before Willis on 19 May 1841

Francis ? – A Francis Lamb was acquitted before Willis on 19 May 1841

Charles Scott – Note Book No 11 page 150

John Caton – Note Book No 11 page 167

Goodwin & Connock – Note Book No 11 page 123

John Wood – Not in Note Book – A John Wood was convicted before Willis on 18 May 1841

Wm McVea – Note Book No 11 page 112

John Paine – Note Book No 11 page 101

11. Robert Timmy Jimmy Smallboy, Jack Napoleon Tunninerpareway, Lallah Rookh Truganina, Fanny Waterpoordeyer and Maria Matilda Nallepolimner

These VDL Aborigines were tried for the murder of two whalers near Western Port in October 1841. The trial commenced on 20 December 1841 (Willis Note Book No 12 Page 108). The two men were convicted of murder and the three women acquitted. (Mullaly pp253-59)

There is a document consisting of 4 double sheeted pages which appears to be some notes of Willis’ charge to jury in this case – the pages have later been numbered “2,3,4”

On Front of 1st page

Box 55 –b

A Stamp

Historical Society of Victoria

000195 (handwritten

This document commences with some indecipherable notes crossed out

Gents of the Jury

Prisrs are Native aboriginals (crossed out) Natives of VDL whose removal thence to Flinders Island was effected some years ago by the Humane praiseworthy exertions of Mr G A Robinson, The Chief Protector of aboriginals in this District, by whom they were subsequently brt over to these shores – It appears by his (crossed out) Mr Robinson in his evidence given by that gentlm (crossed out) in Sept 1838 before the Committee of the Legislative Council of the Colony appointed to inquire into the present (crossed out) then state of the aborigines” of which an official copy is now before me, after describing his first connexion with the Natives of V D L and their removal by him to Flinders Island states that when exd before the Executive council in VDL upon the subject of the aborigines, he recollects havg represented the disposition evinced by them towards the White Population as extremely hostile. The prisoners however were not among those of whom Mr R ‘n then spoke and also some evidence they were constantly attached to Mr R’n of much better description (query some of this writing) They were we say exceedingly daring “in their attacks both on persons and property. They were extremely insidious in their attacks on dwelling houses & individuals. They both plundered and set fire to the dwelling houses when the inmates were in them, whom they attacked with the intention of destroying them, as well as plunderg the premises

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premises. I cannot, he says, enumerate the murders which were committed by the Natives on White persons, but I know they were very numerous. I believe speaking from recollection that one Coroner sat upon twenty-eight. It was dangerous to allow any Natives near a habitation it was not possible to guard against their ravages: military force was quite ineffective. I stated before the Executive Council & now repeat my opinion, that an entire army cd not have subjugated these few miserable people unless the whole country had been cleared of the forrest”. The justice of this observation is exemplified in the difficulty in apprehending the prisoners at the Bar & the Military as well as the Civil force which appears to have been employed for this purpose. How far the recource to Military aid on this occasion was or was not altogether warranted by Law, is not for me at present to determine. I will only say that the more sparingly such a force is used, on any such occasion, the better and that I think it will always be advisable to be prepared to show the inability of the Civil Power to act with efficiency, previously to Military assistance being involved.

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Mr Robinson’s evidence proceeds “when the Natives were all assembled on Flinders Island, in 1835, I took charge of them and have continued to do so ever since. I did not find them retaining that ferocious character which they displayed in their own country. They showed no hostility, or even hostile recollection towards the Whites. Unquestionably these Native were all (crossed out) assembled on the Island were the same who had been engaged in the outrages I have spoken of; many of them before they were removed pointed out to me the spots where murders & other acts of violence had been committed. They made no secret of acknowledging their participation in such acts of violence; & only considered them as a just retaliation for wrongs done to them or their progenitors. On removal to the Island they appeared to forget all theses facts. They cd not of course fail to remember them but they never recurred to them (See Min of evidence ? pp 243?) Mr Robinson now tells us That the prisrs at the Bar were (crossed out) are not among those of whom he spoke in his evidce before the Committee of the Legislative Council.

In a subseqt part of his Testimony before this Committee

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Mr Robinson says “I am fully aware that there have been Natives of this Colony who have been so far civilized, as to adopt for a time the European style of dress & living who yet when an opportunity offerd have gone back to their Native & erratic life, & have shown that they were not permanently or effectually weaned from the love of their original mode of life. Instances of the same kind, indeed more numerous one (he says) have come to my knowledge in V D Land, but these assaults have not occasioned me any surprise”. In a letter from (crossed out). Mr Robinson also handed to the Committee copies of letters from him to the Colonl Secy of V D Land of the 27th of Oct 1836 (crossed out) on the subject of the removal of the Natives at Flinders Island, to the Sth Coast of New Holland, which are appended to his statement (crossed out) & in that of 27th Oct 1836 he states “ that the whole of the aboriginal population then domiciled at Flinders Island amounted to about 120” of these he says” there are about 60 males (49 of whom are adults) several are aged & the whole of them were then civilized. (There are some words which could be “ amongst them he now tells us that the prisrs were among them” which are then crossed out and then a reference in brackets to the Minutes of evidence p18 & 11 & then) . amongst them as we are now informed were the prisrs. In another letter of 29th Oct 1836

On the next 4 page folded sheet of paper marked “2” by Willis is a note “5” and “Box 55”

Text continues

Mr Robinson writes as follows

“in conclusion I wd observe that no doubts exists in my mind, that the aborigines (crossed out) Flinders Island aborigines wd remain & settle in one fixed abode

& hence the apparent comforts they wd enjoy, arising from their knowledge of civilized habits & acquirements, wd constitute a most pleasing example to the inhabitants of the country among whom they might settle; & as it is an axiom that “example teaches before precept”, it is more applicable to, & more easily understood by an untutored race, than wd be any other mode of instruction, & therefore it might reasonably be hoped that such strangers might be reasonably hoped that such (crossed out) occasionally visit the settlemt ,wd carry back the impression they had received & communicate the same to other tribes, who wd ultimately be induced to adopt a similar of life & thus lead to a formation of settlemts of a similar character”( see Min of Evid p15)

I wd here pause for a moment (crossed out) I must here express my cordial assent to the importance which Mr Robinson

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attaches to the permanent location of the aboriginals & whatever difficulty these may have been in making reserves of land for the Natives which may (crossed out) shall be really beneficial to them (See (crossed out) Accordg to Ld Russell’s dispatch of 25th Augt 1840 to Gov Sir Geo Gipps). I cannot doubt the propriety of every effort for this purpose. Had the unfortunate prisoners been permanently located according to Mr Robinson’s plan, in all probability they wd not now be arraigned as crimls at the Bar of this court.

I have on a recent occasion stated my opinion, which I now repeat (crossed out) still entertain that the “proprietor of a run” or in other words one who holds a lease or licence from the Crown to depasture Crown lands may take all lawful means to prevent either Natives or entering or remaining on it. I am convinced that until the Natives become more civilized the tacit permission ? (crossed out) & frequently direct encouragement given to the wandering Natives (crossed out) Tribes ??? (crossed out) to reside upon the stations of the Settlers is but under all circs but (crossed out) generally speaking under all circs spurious humanity – it places temptation in their way & leads to aggressions which otherwise never might occur. For to use the words of Ld J Russell in the

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Despatch to H E the Gov which I have already alluded to “ the Natives finding the cattle unwatched, drive away a herd, & deprive the Colonist of his wealth, – a new source of retaliation & bloodshed. It but too clear ( says his lordship) “ that the only effectual remedy for this lamentable evil, is an organized force to keep to the parties in check, & confine each to the limits which the government shall assign” (see despatch of 25of Aug 1840 No 132)

The Settler however must always remember that the lease or licence which gives him actual possession & occupation of the soil & which, in my opinion enables him by all lawful means to prevent any incursion of Trespass the natives (crossed out) others by the 5th Section of the Act of Council under which regulates such licences (crossed out) [above these crossed out words are some indecipherable words] for restraining the unauthorised occupation of Crown lands subject to be immediately annulled “ for any malicious injury or offence committed and (crossed out) upon or against any aboriginal Native or other person”. The liberality with which Reserves have recently (crossed out) by H E The Gov for the different tribes of Natives in the District, had already been testified to us by the Chief Protector of aborigines & that gent I think agrees with me that the confinement of

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of the Natives & the Settlers to the limits assigned by Gov to each as well as every other effort for the ? (crossed out) civilization of the Aborigines will have the fairest hope of success, if attended by that cordial cooperation of the settlers which most respectable (crossed out) to the feeling and interest must induce them to afford. # But to revert to the transport of the Prisoners to this District. Notwithstanding the evidence of Mr Robinson The Committee of the Legislative Council by their Chairman The Rt Revd the Lord Bishop of Australia & on the 12th of October 1838 reported to the Leg Council as follows “upon the subject only, have they (yr Committee) after full consultant &&& read down to “further consideration”)

Notwithstanding this Report, permission, we are informed (but I have not seen the official Correspondence on this point) was obtained for the removal of some of the Aboriginals of VDL from Flinders Island to the District &, among others, the Prisoners at the Bar, whose guilt or innocence now is (crossed out) you are now to be (crossed out) determine. Their case, gentm differs from that of Bonjon for he was an Aboriginal of this District &

On the next 4 page folded sheet of paper marked “3” by Willis

& placed upon his trial, or at least attempted so to be for an alleged act of aggression upon one of his own race. Here the prisns are charged with an offence committed by them against the Whites & they are clearly amenable to British Law as were the aboriginals of Merridio & Nengaril lately tried before Mr Justice Burton & executed for the murder of Mr Tuck one of the companions of Mr Stapylton the Govt Surveyor.

I see no reason to alter the opinion I expressed subject however to further consideration (crossed out) in Bonjon’s Case. That opinion has ?? (crossed out) long since been forwarded by one (crossed out) not only to the principal Members of the British (crossed out) Society for the Protection of the Aboriginals in British Settlements but to the leading members of both Houses of the Imperial Parliamt & to the proper official quarters – Bonjon however was not liberated in consequence of that opinion but because the Crown Prosecutor felt he had not sufficient legal evidence to enable him to proceed with his case subject to the question of Jurisdn. He judged wisely I think from my knowledge (crossed out) in my opinion from what I knew of the Depositions in declining to proceed for I think it wd have been difficult to prove that according to the depositions (crossed out)

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that the deceased had been killed in the manner alleged by the Information alleged (crossed out). I reiterate my opinion that

that the Aborigines of this District are not “ with regard to the unqualified (crossed out) prevalence of our Law among themselves, in the unqualified condition of British Subjects”. And notwithstanding the (crossed out) any assertion to the contrary I think assumption of vulgar ignorance to the contrary I quote as ample Political tho not perhaps Legal Authority (crossed out) the following papers from the minutes of H E The Gov laid before The Honble the Executive council of this Colony on the 6th April 1838 the following passage (crossed out) as appears by the papers ordered to be printed by the British House of Commons dated (crossed out) on 12th of Aug 1839 fully warrants my view. The following passage (crossed out) “as humane beings (says H E Sir Geo Gipps) partaking of one common Nature but less enlightened than ourselves – as the original possessors of the soil from which the wealth of the colony has been principally derived & as subjects of the Queen whose authority (crossed out) sovereignty extends over every part of New Holland the Natives of the whole territory have an acknowledged right of the Protection of the Governmt & the sympathy &

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kindness of every separate individual. In disputes among themselves they may be governed by their own Ancient Usages wherever these do not interfere with the rights or safety of their more civilized fellow subjects. In disputes between the Aborigines & the Whites both parties are equally entitled to demand the Protection & assistance of the Law of England. To allow either to injure or oppress the other & still more to permit the stronger to regard the weaker party as aliens with whom a war can exist & against whom they may exercise belligerent rights is not less inconsistent with the spirit of that law, than it is at variance with the dictates of justice & humanity”. Thus does it appear the Executive has itself acknowledged, an acknowledgement acquiesced in by the British Senate,” that the Aborigines in disputes among themselves may be governed by their own ancient Usages” that they are in fact, to use the words of Chancr Kent with regard the Am (crossed out) Nth American Indians – dependant allies (rather than subjects) under

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such constraint & qualified controul in their national capacity, as is considered by the Whites to be indispensable to their own safety, and the requisite discharge of the duty of protection”. Away then with the babblings of ignorance [some indecipherable words crossed out] only equalled by its pedantry and let reason and truth prevail (crossed out) [some indecipherable words crossed out] & let reason and truth alone prevail [some indecipherable words crossed out]

Gentm – we have recntly had a case of alleged aggression on the pt of a respectable Settler on the Blacks, & such a case as I trust will never for the credit of those who so perseveringly endeavoured to support it on evidence so utterly illegal, occupy the attention of this Court. But gentn I trust (crossed out) am sure that the same feeling, the same patient investigation, the same ? (crossed out) abstract feeling (crossed out) sense of justice will distinguish any case of alleged aggression by Blacks against the Whites as was shewn in that of a White Man against a Black. Gentn I have kept you too long I fear from the examination of

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of the ? particular evidence addressed in support of the Charge agst the prisns – at the Bar- I must ? (crossed out) before I proceed to it trespass on your patience another (crossed out) one more observation, which is this, that I in my conscience believe it to be the wish of the Executive that the Blacks as well as Whites shd equally be brt to justice & punished for any breach of those broad principles of Right which can equally be understood by both; & I know from Experience, as well as from official documts this have ever been the anxious desire of H E The Governor; nor can I for a moment suppose that any other felling actuates H H the Supt ?? . The Prisns in this case stand accused as you have heard of the (crossed out)

his Honor then recapitulates the evidence and in conclusion said

The evidence in support of this charge (crossed out)

In their defence the prisns have nged (crossed out)

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Such getn are the circs & such the evidence (crossed out) pertaining to this case now brought before you (crossed out). You will give them your dispassionate consideration & in doing so, you will exercise all those feelings of mercy which will naturally arise from the habits and condition of the prisns their almost instinctive habits (crossed out) and their transfer (crossed out) transport from their native to a foreign land, – but you will bear in mind, as was well said by the Atty Genl of this Colony on a recent and somewhat similar occasion, “that there is a duty you owe to yourselves and to your fellow subjects to protect not only their property, but more especially their lives, & by yr verdict to prevent if possible “(shd you deem the Prisns or any of them to have been actors in them)” the recurrence of similar acts of aggression”

[the notes end here and there is a blank page – on the verso of this page are some notes in Willis’ handwriting]

[On left of page]

Mr Powlett

Instructions Information of aggressions – Civil & Military force

[On right of page – Box 55 in pencil]

Mr G A Robinson

To prove copy of Rep. Com & Leg Council

Natives from VDL to Flinders Island 1838

Were the prisns among those taken from V.D.L. to Flinders Isld?

Were they educated or civilized?

Have sufft Reserves been granted by the local Gov for the Aborigines of this district?

Do you think that confing the Natives & the Settlers to the limits assigned by Govr to each wd not be beneficial?

Wd such a plan & any other plan of that kind for the civilatn of the Natives be best promoted by the cooperat of the Settlers or by any & wht other means?

Did you receive permissn to remove any & whichV D L aborig from Flinders Island to this District

Commentary

The main portion of this document is Willis’ notes for aspects of his charge to the jury. It deals with

The evidence of George Augustus Robinson, the Chief Protector of Aborigines, relating to his evidence to the VDL Legislative Council committee on Aborigines some letters he had written to the Col Sec of VDL about removing aborigines form Flinders Island to ‘the south coast of New Holland’. Lord Russell’s dispatches about setting aside locations for Aborigines.

The right of ‘proprietors of runs’ to prevent natives entering or staying on the run.

The ‘native reserves’

The difference between this case and that of Bonjon.

The protection the law gave to Aborigines

The Bolden case

The jury taking a merciful view of the case.

In relation to the Cases of Bonjon and Bolden see Mullaly – Bonjon pp 32-6; Bolden pp 369-75

On the back of this document are some notes which seem to be notes made by Willis of questions he would ask the witnesses, Powlett and Robinson, during the trial.

The reference to “Chancellor James Kent –Nth American Indians” was to James Kent (July 31, 1763 – December 12 1847) an American jurist and legal scholar.

The Port Phillip Gazette of 22 December 1841 reported that Willis’ charge to the jury took 2 ½ hours. The Port Phillip Herald 24 December 1841 also reports this case

“the aboriginals of Merridio & Nengaril lately tried before Mr Justice Burton & executed for the murder of Mr Tuck”. These Aborigines were tried in the Supreme Court of New South Wales on 14 May 1841 and Mr Justice Burton ruled they were subject to the liabilities of British subjects.

Another document relating to this case (which has ‘Box 55’ on the verso of 1st & 2nd sheets & also a HSV stamp ) is Willis’ notes of what he would say in sentencing the convicted men to death. It is in these terms:-

Recto

The aboriginals of Van Diemen’s Land were “strictly committed” by Gov Arthur’s Proclamatn of the 15th of April 1828 ( a Proclamatn of which H Majesty K Geo 4 thro the Rt Honble the then Secy of State by a Dispatch of the 2nd of Feby 1829, under the circumstances, signified his approval) I say (crossed out) “to retire & depart from & for no reason, or on no pretence whatever (crossed out), (same as therein provided (by travelling annually to the sea coast in quest of Shell fish under certain regulations) to reenter the settled districts (of VDL), or any portions of land cultivated & occupied by any person whomsoever under the authority of H M Govt, on pain of forcible expulsion therefrom, & such consequences as might be necessarily attendant on it – And all Magistrates, and other persons by them authorized & deputed were by this proclamation directed (crossed out) required to conform themselves to the directions and Instructions of this Proclamation, in effecting the retirement & expulsion of the Aborigines from the settled districts of that territory”.

This Proclamation together with copies of all (crossed out)

correspondence

Verso

correspondence on the subject of the Military operations carried on agst the Aboriginal Inhabitants of V D Land, were laid before the House of Commons on the 23rd of Sept 1831 & ordered to be printed. To me it appears that this correspondence contains much valuable information & and is worthy of the deepest attention by every friend of Justice & Humanity equally desirous of promoting the true interests of the Aborigines & the Colonists. I must however in all candour admit that the attempt to prevent outrages on the pt of the Aborigines by endevourg to confine them within certain limits, was not successful. Tho I cannot but think, that had it been accomplished (crossed out) acted upon in accordance with the additional suggestion of H H The Ch Justice contd in the mins of the Executive Council of V D L of 23rd Feby 1831 (See p 82) there wd have been every probability of its success without ? (crossed out) & the necessity of removg these miserable creatures from their native soil, very possibly have been obviated.

Next sheet Recto

Painful as it is at all times to pronounce the Sentence of the Law upon a fellow creature, yet that pain is greatly increased when the delinquent has not the consoling hope of his Crime being pardond hereafter by means of true repentance & the Mercy & Forgiveness of Almighty God. The light of Christianity, the only rational piety, if ever distinguishable in your minds, can but have glimmered for a moment & instead of enlightening your journey there (crossed out) continuing to illuminate by its calm splendour your journey thro a world of misery, & directing you to the Heaven of Eternal Rest. All men, even in an uncivilized state are said to entertain, however imperfectly, & however clouded with vain imaginations some expectation of a future state. May this latent spark, if it exist in your minds, kindle by God’s blessing that holy flame of piety & repentance that may make you rise into salvation before that period shall arrive when this world must close upon you for ever – the Punishment that awaits you, is not that of vengeance, but of terror, that others may (crossed out) by the example you will afford, may be deterred

Verso

from similar transgression. The Civilization & Instruction imparted to you, when under the kind protection of Mr Robinson who bt you to these shores, has not, I lament to say, been attended with the salutary consequences that might reasonably have been expected. You are not like the wild Aboriginals of this District harvesting(crossed out) who inhabit the Native Forests of this District. You are not ignorant savages about to be made amenable to a Code of which you are absolutely ignorant & the spirit and principles whereof are foreign to your modes of thought and action”. You for years have associated with & become familiar with the Manners & customs of & and probably with the (crossed out) ordinary Laws of the British people, sufficiently so at least to know that this Crime of which you have been convicted, cd not be committed by you with impunity. What I have said will be better explained to you by Mr Robinson perhaps & he will I hope also do me the favour of making you thoroughly understand the precise nature of that sentence) (crossed out) those under whose care you will be until the period of your execution. The sentence which the Law awards & ? (crossed out) Justice now compels me to pronounce is The sentence of the Court is (crossed out) that you

There is a gap on this page and then Willis has written

See Parl’s Rept on aborigines in British Settlements Suggestions

There is a single sheet document marked

box 55 b

bearing two RHS stamps

It is headed

‘Parliaments Rep. on Aboriginal Tribes’

It is in these terms:-

Recto

‘Parliaments Rep. on Aboriginal Tribes

(British Settlements)

Feby 1837

Suggestions III (

Punishment of Crimes

“Provision has already been made by law for the Punishment of Crimes committed by Her Majesty’s Subjects on the Nth American Continent, beyond the Northern and Western limits of the Canadas; in Southern Africa beyond the limits of the Cape of Good Hope and in the Islands of the Sth Sea, beyond the jurisdiction of the Australian Colonies. But the Provision thus made for the redress of wrongs is defective and unsatisfactory. Beyond the frontier justice is fully administered, and within it, ignorant savages are often made amenable to a code of which they are absolutely ignorant & the whole spirit & principles of which are foreign to their mode of thought & action. It wd be vain to expect the establishment of any other than a most imperfect System of Justice amongst persons placed in such circumstances; but for the improvement

Verso

of the present system some suggestions may be offer’d. Thus when the British Law is violated by the aborigines within the British Dominions it seems right that the utmost indulgence compatible with a due regard for the lives and properties of others shd be shown for their ignorance and prejudices. Actions which they have been taught to regard as praiseworthy we consider as meriting the punishment of death. It is of course impossible to adopt or sanction the barbarous notions which have urged the criminal to the commission of the offence, but neither is it just to exclude them from our view in awarding the Punishment of his Crime.

Again, in the case of offences committed beyond the borders, British subjects are amenable to Colonial Courts. The aborigines are not.

The passage from ‘within it’ to ‘Punishment of his Crime’ is sidelined. The last paragraph is separately sidelined.

There is a HSV stamp at bottom of this page

Commentary

This is an quotation from the Report of the Parliamentary Select Committee on Aboriginal Tribes (British Settlements) 1837 in the ”Suggestions” section under the sub-heading “VII Punishment of Crimes” on page 120

This is probably the “Parl’s Rept on aborigines in British Settlements Suggestions” referred to on the sheet relating to the death sentence on the VDL Aborigines

The sidelining of some passages in this document may indicate that Willis intended to quote them.

Duplicate letter from the Colonial Secretary to Willis re the execution of these aborigines

Letter on a 4 page foolscap document

(2)

Box 55a

A Stamp

Royal Historical Society of Victoria

000195 (handwritten

A Stamp

Royal Historical Society of Victoria

Text

Duplicate

Colonial Sectetary’s Office

Sydney 5th January 1842

Sir

I am directed by His Excellencty the Governor to inform your Honor that in the cases of the Aboriginal Natives named Robert Timmy Jimmy Smallboy and Jack Napoleon Tunninerpareway convictions at a Criminal Sessions of the Supreme Court holden at Melbourne, of Murder and Sentenced to suffer Death, the Sentence of the Law is to be carried into effect

His Honor

Mr Justice Willis

Melbourne

Next page

at Melbourne in the usual manner on Thursday the twentieth Instant or as soon thereafter as His Honor the Superintendent of Port Phillip may direct, – His Honor has been apprised accordingly

I have the honor to be

Sir Your Honor’s

Most obedient servant

E Deas Thomson

On this page

A Stamp

Royal Historical Society of Victoria

Commentary

Edward Deas Thomson (1800-79) was Colonial Secretary from 1837 (ADB Vol 2 p523)

The executions were carried out on 20 January 1842

12. Charles Ellis, Daniel Jepps, Martin Fogarty

There is a one page document in Box 55 dealing with this case

There are none of the usual RHSV markings on this document

At the top of the document is

No42/266

Colonial Secretary’s Office

Sydney 3rd June 1842

Sir,

I am directed by His Excellency the Governor to inform Your Honour that in the cases of Charles Ellis, Daniel Jepps and Michael Fogarty, who were convicted at a Special Criminal Sessions of the Supreme Court held at Melbourne on the 13th day of May last, of wounding with intent to murder, and sentenced to suffer death – the Sentence of the Law is to be carried into effect at Melbourne

At the bottom of this page

His Honor

Mr Justice Willis

? Swan

Willis’ initials ‘JWW’ are in the margin above this address

Next page

In the usual manner on the 28th June instant or as soon after that day as His Honor the Superintendant of Port Phillip may appoint

His Honor has been requested to cause the unhappy men to be appraised accordingly

I have the honor to be

Sir, Your Honor’s

Most obedient Servant

E Deas Thomson

Commentary

Charles Ellis, Daniel Jepps and Michael Fogarty were the Plenty River bushrangers. The notes of their case are in Willis Note Book No 13 page 61

Edward Deas Thomson (1800-79) was Colonial Secretary from 1837 (ADB Vol 2 p523)

The executions were carried out on 28 June 1842

(See Mullaly pp376-7)

William Rafter

The document in Box 55 relating to Rafter consists of a folded single sheet of paper. The paper was folded so as to provide 4 pages for correspondence. It was then again folded so that any correspondence was hidden but an address could be visible.

On 1st page

1/ii

Box 55 –a

A Stamp

Royal Historical Society of Victoria

000195 (handwritten

The ‘correspondence’ consists of a two page certificate signed by ‘Horatio Wills’ at ‘Melbourne Jany 1st 1843’ and a one page letter to ‘William Rafter’ signed by ‘H S Wills’.

On the ‘address’ fold are the words:-

‘Mr – Chief Constable, will oblige Mr Wills, by having this letter delivered to

13. Wm Rafter’.

The two page certificate is

‘This is to certify that during the time William Rafter remained in my service he paid the most unremitting attention to his duties and his late deplorable conduct has caused my family & self much regret. So highly did I appreciate his conduct (crossed out) services and his devotion on all occasions to the welfare of my family that it was my intention had he not committed an error so fatal to advance him stock to carry on his trade of butcher in Melbourne and on leaving me I offered him 200 fat wethers on unlimited credit. I have had many servants but never one 2nd page from whom I parted with so much regret. As no living man can hold himself blameless, I trust I shall be excused in thus bearing testimony to the virtues of William Rafter, his late conduct from my previous acquaintance with his character, bears to me so much the appearance of insanity that I cannot divest my mind of the idea that he labours under some strange hallucination.

Horatio Wills

‘Melbourne Jany 1st 1843’

The one page letter to ‘William Rafter’ is

‘William Rafter

Should you feel disposed to avail yourself of the accompanying testimony (not being able to clear yourself of the imputations cast upon your character) it is at your service. Let the matter end as it will, I do hope, that hereafter you will duly appreciate the value of a good character. Should I be able to contribute any thing to the alleviation of your misery, I shall do so with much pleasure.

H S Wills’

Commentary

In September 1842, William Rafter (known as ‘Bill the Native’) sold some cattle to Thomas Knapp who had a property on the south side of the Yarra. The cattle were delivered in October and Rafter told Knapp that he had purchased them from Captain Bunbury, who had charge of the Water Police and also had a station on Mount William Creek.

In November and December 1842, questions arose as to whether Rafter had stolen these cows and he was committed for trial on charges of stealing some of these cattle from Bunbury and others from Thomas Chirnside who had a property adjoining Bunbury’s. The indications are that Rafter was kept in custody after his apprehension. (VPR Series 30P Box 2 – 1-17-9)

Rafter was tried before Justice Willis on 7 January 1843 of stealing Bunbury’s cattle; he was acquitted. (Willis Note Book No 14 page 75). He was again tried on 9 January 1843 of stealing Chirnside’s cattle and was sentenced to be transported for 10 years. (Willis Note Book No 14 page 86)

In the CRB, Rafter’s status is recorded as ‘Free’. There is no reference in Willis’s Note Book or in the newspaper reports of the case to any document being tendered to the Court about Rafter’s character. However, the legal process was that, after conviction, the prisoner was asked a formal question as to whether there was any reason why judgment, including a sentence, should not be given. This gave the prisoner the opportunity of presenting material which might mitigate the sentence.

George Augustus Robinson, the Chief Protector of Aborigines, kept a journal which indicates that in April 1843 he was visiting the station of Horatio Spencer Wills at Mount William. The entry for Thursday 13 April 1843 refers to ‘Bill the Native’ as getting ten years for cattle stealing and that Wills had written ‘a letter on his behalf to the court’.

On 6 March 1843, George Wintle, the gaoler, reported to Major St John, the Magistrate, who wrote to La Trobe, that James McGuire, William Duncan, William McDonald and William Rafter, all under sentence of transportation, had escaped from the gaol on the night of 4 March by extracting bricks and cutting lining boards and were obviously assisted by the military sentry as he had absconded (VPR Series 19 Unit 42 – 2 files)

Horatio Spencer Howe Wills was born in 1811 in Sydney after the death of his father who was a transported convict. His mother then married George Howe, the printer-editor of the Sydney Gazette. Wills later worked at this paper which might explain his ability to write and his command of the language. By 1939, Wills had moved into the pastoral industry and in December of that year he overlanded to the Port Phillip District and settled in the Grampians area. By 1842 he had a vast station known as Lexington. He was active in the life of the Community and, after Separation, was a member of the Legislative Assembly. In 1860 he took up land in Queensland and, in October 1861, was one of many men killed during a fight with Aborigines (see Wills entry in ADB Vol 1)

14. Robert Kent

At top left

  • B/ii

At top right

  • Box 55 – a

There is part of a RHSV stamp with handwritten no ‘000195’

The text is

February

Robt Kent prisoner

accused of stealing a pistol

pleaded not guilty

John Turner Sworn

I am constable – on the 31st Janu saw the prisr in Queen St – took him into custody on suspicn of felony. I brought him to the watch house – conversed with him on the way to the watchhouse – the pris said he had got himself into a pretty mess. Did not say any thing to him I swear – I told him to go to the watch house on arresting him

Willm Horner (crossed out) Henley

I live in Eliz street I am an auctioneer I know the prisoner he was in the habt of visiting my auctn room – I know the pistol – It was taken out of my auction room about 5 or six wks ago – in the day time because I missed it in the evening – I saw the pistol in Mr Fulton’s shop. It is my pistol which is produced. I found it at Fulton’s myself. I had a brace of pistols – the other is in the hands of the police magistrate. I can swear to the pistol – they are my own property – they were in my office – not in the shop – shown (crossed out) prisoner (crossed out) witness acknowledges his hand writing in a letter written to Mr R Kent– I first missed this pistol 5 or six weeks ago. I cannot tell exactly when the prisr was in my shop. The pistol was once sold but I took it back again. I am sometimes out of my shop. I have reasons to suspect the prisr I saw the pisl in Fulton’s shop about a week or 10 days after I missed it.

Next page

The prisr up to three (crossed out) was in the same habit of coming to my place some days after I missed the pistol – as formerly.

James Fulton – Sworn

I am a gun smith I know the pris I keep a gun shop in Collins St I do not recollect particularly (crossed out) about 13 Jany the pris proposed to sell me a pistol. I believe the pistol shewn is the pistol. I think I saw the pistl in the police court -I purchased it from prisr at the bar. He made me an offer on the 13th – he pressed me to buy the pistol. I offered to take it on commission. I did not wish to buy it – the pistols worth £5/ in Birmingham. I have no doubt this is the pistol. I did not know the prisrs name at the time he came to me. He said he was hard pressed

Willm Henley again called

I never allowed the prisr to dispose of any thing for me – I never intrusted any thing to him – no one belonging to me could give the prisr the pistol – the prisr was not the only person admitted to my office –

Commentary

This document purports to be notes of evidence given at Kent’s trial on 15 February 1843. It is in a different handwriting to that of Willis.

These notes are not identical with the notes in Willis Note Book No 14 page 96

Willis’ transcript of this trial is

Feb 15 1843

The Queen v Robt Kent – Larceny

John Turner Sworn

I am a constable on the 31 Jan I saw the Prisr in Queen St I took him into custody on suspicion of Felony. Brot him to the watch house Prisr told me he had got himself into a pretty mess

X I swear I never said anything to him I told him to come with me to the watch house

Wm Cordner-Henley – Sworn

I live in Elizh St, am an auctioneer I know the prir he was in the habit of visiting my Auction Rooms – it was taken out of my Auction Room abt 5 or 6 weeks ago. This was taken in the day time. I saw the pistol in the morning of one day and in the evg it was missing. That pistol (one produced) is mine, is the one I missed, is the one I found at Fultons

X I had a brace of Pistols of the same kind. I can swear to one distinctly (swears to this Pistol) Pistols are my own – were not in the shop – not exposed for sale – were in my office. Hand writ admitted note Read – I first missed this Pistol 5 or 6 weeks ago. The man was frequently in my shop – I sold the Pistol once but there was nothing pd for it & I kept it as my own – I cant swear that the Prisr took it I saw the Pistol in Fulton’s shop about a week or ten days after I missed. The Prisr was in the same habit of going to my office 4 or 5 after missed the Pistol as before.

Jas Fulton – Sworn

I am a gun smith I know the Prisr I keep a gun smith’s shop in Collins St. Abt 13th of Jany the Prisr proposed to sell me a Pistol. I believe this pistol to be it – I purchased it from the Prisr abt Saturday 21st for 10s – very inferior article.

X Prisr represented himself to being in great distress – suffers from extreme want

NOT GUILTY

Although Willis had no note of it, the Port Phillip Herald of 17 February 1843 reported that the jury foreman questioned Henley about his ‘intimacy’ with Kent and whether he gave him articles to dispose of and whether a visitor could have given Kent the pistol. The report continues that the answers were ‘direct and satisfactory’ but no detail is given.

At the committal proceedings, Fulton gave evidence that he thought Kent ‘was a medical man’.

It is interesting that in 1847 a Robert Kent, recorded in the CRB as an ‘Exile from Pentonville prison’, was convicted of Uttering a forged cheque and sentenced to be imprisoned for 2 years. The Port Phillip Patriot of 24 February 1847 reported that Kent was ‘better known as Dr Kent’. The first Exiles arrived in the Port Phillip District in 1844.

15. William Calver

This is a double sheet foolscap document

On top of 1st page is

  • ii
  • Box 55 b
  • A Stamp

Royal Historical Society of Victoria

000195 (handwritten)

Recto

The Humble Petition of William Calver at present confined in H M Goal Melbourne under sentence of 2 years imprisonment

Humbly Sheweth,

That Petitioner got the severe sentence inflicted on him without him having the slightest idea at the time the transaction happened that he was committing any offence against the laws, all he recollects is passing a joke with a female and I believe she is fully aware that his intentions were not criminal but merely occasioned by the excitements of the moments & as Petitioner has now suffered 12 months incarceration & I believe can get a strong recommendation for his uniform good conduct during his confinement, Petitioner implores His Honor the Resident Judge to take his case into his serious consideration & order a Mitigation of his Sentence – Petitioner trusts his (crossed out) the confinement he has already suffered will be a warning to him as long as he lives

Under these circumstances he leaves his case entirely with His Honor the Resident Judge fully convinced his well known Philanthropy will be extended to your Petitioner and he will feel in duty bound ? to pray

Melbourne

March 9, 1843

The Petitioner has been exceedingly well conducted during the time of his confinement in gaol

Signed G Wintle

Gaoler

On fold of this document

Petion of Wm

Calver

March 9 1843

March 1842

No 3

Assault with

Intent to commit

Rape

Commentary

Petition of William Calver – dated March 9 1843

On 15 March 1842, Calver had been convicted of Assault with intent to Rape and sentenced to be imprisoned for 2 years

The evidence at his trial was that on 22 February 1842, between 7 and 8 at night, Janet Buchanan was walking home near the river and saw Calver attack a girl who got away. Calver then attacked Buchanan and knocked her down and sexually assaulted her – she got away but was attacked again but got away – Calver then swam across the river. Various witnesses swore that Calver appeared to be drunk.

(See Willis Note Book No 13 page 40) (Mullaly pp447-8)

On the fold Willis has noted ‘March 1842 No3 assault with intent to rape’. Calver is listed, in the CRB, as ‘No 3’ and his status is recorded as ‘FS’.

The fact that Willis retained this petition rather than send it on to La Trobe may well indicate that Willis did not consider Calver worthy of any mitigation. I have not found any record that any part of Calver’s sentence was remitted.

16. R v William Manuel (alias Ferguson) & John Robinson

There are two documents relating to this case

1 A formal letter from Macpherson, the Registrar of the Supreme Court in Sydney, to James Denham Pinnock Esq, the Deputy Registrar of the Supreme Court in Melbourne. This encloses the 2nd document

On top of 1st page of letter is

  • (7)
  • B0x 55 a
  • A stamp with no handwriting
  • A Stamp

Royal Historical Society of Victoria

000195 (handwritten)

The text of this letter is

Registry Office Sup Court

Sydney 6th May 1843

Sir,

Acknowledging the receipt of your letter of the twelfth of April last enclosing the Case of the Queen against William Manuel alias Ferguson and John Robinson for escaping from Transportation to be laid before their Honors the Judges of the Supreme Court at Sydney for their opinion and decision thereon, I have now the honor to enclose herewith the Opinion and decision of their Honors the said Judges on the said Case bearing date this Sixth day of May A D 1843

I am directed by their Honors the

At the bottom of this page

James Denham Pinnock Esqre

Dy Registrar of the Supreme Court

Melbourne

Verso

the Judges to say that the delay in the return to you of this Case which has occurred, has been unavoidably caused by the pressure of the business of the Second term now terminating –

I have the honor to be

Sir

Your obedient humble servant

(Sgd) Wm Macpherson

Reg. Sup. Court, Sydney

There are two RHSV stamps on this page

2 The Reasons for the Judgment of the Full Court of the Supreme Court of NSW setting aside the convictions of Manuel and Robinson.

This is a document bound by tape in the left margin – the pages are not numbered

There is a RHSV stamp on each page of this document

Text

Page 1

In the Supreme Court of New South Wales

In the matter of certain Points

reserved by His Honor John Walpole

Willis, Resident Judge at Port

Phillip for the opinion and decision

of the Judges at Sydney in the

case of

The Queen

V

William Manuel (alias Ferguson)

and

John Robinson, convicted

respectively of Felony

There being no Case stated in this matter, in the usual and proper form, but the Facts, as well as the Points, intended to be submitted by His Honor, being left to be collected

from

Page 2

from a short report or minute of the proceedings at the Trial, it is necessary to preface our Opinion, by a Statement of those Facts, as we understand them, in order that the grounds of our decision may not be mistaken.

The Prisoners William Manuel and John Robinson stand charged, in the same Information, (the former being a Convict, as Principal, and the latter as Accessory before the fact) with an Offence, which appeared to us to be simply that of Absconding, for which the former was liable to whipping or imprisonment, but which offence is by the Information, charged upon both Prisoners as Felony, for which one of them (Manuel) has been sentenced to Death, and the other (Robinson) having been convicted now awaits a Sentence of Transportation, which possibly might be for Life.

The Page 3

The Information sets out the fact, of Manuel’s having been transported for Life from Essex, and then charges that “afterwards and before the expiration of such term of transportation, (to wit) on the twenty first day of March 1843, he was feloniously and unlawfully, and without any lawful cause or excuse, at large within the Colony of New South Wales (being part of Her Majesty’s Dominions) to wit at Hobson’s Bay in the District of Port Phillip.” The other Prisoner is charged for that he, “before the Felony was committed in form aforesaid, to wit on the day and year aforesaid, at the place aforesaid, and in the District aforesaid, did feloniously and maliciously aid, abet, assist, procure and counsel” the said Manuel to commit the said felony.

On that Information the

Prisoners

Page 4

Prisoners were both arraigned, and as we collect, on the same day put on their trial. The Convict Manuel pleaded Guilty, and Sentence of Death was recorded against him. The trial then proceeded against the other Prisoner and, since it was of course necessary, as the first step, to prove to prove the guilt of the Principal, (without which there could be no conviction against the Accessory) the indorsement on the Information of Manuel’s Plea and Sentence, was therefore offered, and, after objection made by Counsel, was received in evidence, to establish such guilt. The only additional evidence given, to prove that Manuel was in fact a Convict, under sentence of transportation, was some instrument, or book, or paper, written or printed, called, in the Report an “Indent”, in which the name “William Manuel” appeared (at least,

so

Page 5

so we presume) as a Convict with such sentence. Of the identity of the Prisoner with that person there appeared to have been no proof whatever.

It was proved, that Manuel was taken out of a small vessel, at Hobson’s Bay, near the Jetty (being within the Territorial Limits of Port Phillip.) where he was under a false name, and pretending to be a free man. The other Prisoner was proved to have been present, aiding in the deception, by asserting that he knew Manuel to be free, and it was proved further, that he had paid Manuel’s passage money. On this evidence, Robinson was found guilty, but sentence was reserved, to await our decision on the objections raised by his Counsel, to the validity of the Conviction.

We are clearly of opinion, that the conviction both of Manuel,

and

Page 6

and Robinson is invalid, not only for the reasons assigned in the report, as having been urged by the Prisoner Robinson’s Counsel, but for others – all of which we proceed to enumerate.

First. Both prisoners were indicted, under Sir Robert Peel’s Transportation Act. 5 Geo 4 c 84 s 22. But we are of opinion, that that provision extends only to cases of escape from the Place or Colony, to which the Convict has been transported, and where the Convict shall be found at large within some part of Her Majesty’s Dominions other than such Place or Colony. Now it is to be collected from the circumstance of the “Indent” being adduced in evidence, (under the supposed authority of our local Quarter Sessions Act s 35) that Manuel was in fact transported to New South Wales. And it appears

on

Page 7

on the face of the Information, that he was apprehended within this Colony consequently before his design to escape had been effectuated. The Statute is not applicable therefore, to the case of either prisoner.

That this construction of the Statute 5 Geo 4, is the true one will be evident from the following considerations. First. From the reason and nature of the thing. A convict is transported to a particular Settlement. If he will not remain there, he evades entirely his Sentence, and justly incurs severer Punishment. But, whilst within such settlement, he continues under his sentence, and is amenable to the provisions of Local Laws. Secondly. The offence of being at large within the Settlement (so far as New South Wales is concerned) is, in fact,

specifically

Page 8

specifically punishable by such Laws., It is defined by the Quarter Sessions Act 3 W 4 No 3, as “Absconding” and is punishable after a Summary Trial before two Justices by flogging, imprisonment, or the tread-mill (ss 18.19 &21) Thirdly. The British Parliament has recognized, and in a similar manner, the distinction pointed out by us. The 5 G 4 c 84 having provided for the offence of escaping from the Colony, a subsequent Statute 6 G 4 c 69 s 3, provided for that of being unlawfully at large within it. The offence of “Absconding” (over which Jurisdiction was given to the Courts of Quarter Sessions by 4 G 4 c 96 s 19,) may, by the last mentioned Statute of 6 G 4, be inquired of, and punished, in certain cases, by any one Justice. But, if

the

Page 9

the escaping from one part of the Colony to another, was at that time Felony punishable by Death, such a provision would have been nugatory and idle. Fourthly. If such an offence were Felony, under the 5 G 4 c 84, the offence of contriving, or aiding in, and abetting, such offence, would be also Felony. On that principle it is, that the Prisoner Robinson is charged accordingly in this case, with Felony. But, by the 9 G 4 c 83 s 34, persons so off ending, (“who shall contrive, aid, abet, or assisting, the escape, or intended escape” of any transported off ender) – are expressly declared guilty of a Misdemeanour only, punishable by fine and imprisonment.

It is unnecessary to cite authorities to show that a person charged as Accessory, in any case, may controvert the guilt of his alleged

Principal

Page 10

Principal; notwithstanding the latter’s conviction. That principle is too well established, and too generally known. Nor is it necessary to enter into argument, after what has been said, to shew, in this case, the character and degree of that guilt. It would be impossible to contend, as it seems to us, that Manuel’s offence was not one of absconding. But, if a case of absconding, it appears equally impossible to distinguish it, from any case simply of that character. The length of time during which a Convict absconds, cannot alter the nature of his offence, though it may aggravate his punishment. Neither can the distance of the place, if within the Colony, from or to which he absconds. Hobson’s Bay is admitted, on the record, to be within the Colony, and whether an absconded Convict be found at large

there,

Page 11

there, or in Sydney Cove, or at Berrima, or Wollongong, can surely not affect the question.

The charge of Felony having thus failed as to Manuel, it fails equally against Robinson. It becomes proper, however, to take into consideration the points urged exclusively on behalf of the latter; because those already noticed, though apparent on the surface of the proceedings, have not been submitted to us, but the latter, as far as we can collect are. On these we are of opinion as follows.

We think that the Clerk’s indorsement of Manuel’s Plea, and of the Judgment, or sentence thereon, was inadmissible in evidence; on the following grounds. First, because on that Information in which both Prisoners were jointly indicted, every allegation

should

Page 12

should have been proved in the ordinary manner. The conviction of one Prisoner, as it appears to us, on an Information so framed, cannot be evidence against the other, under any circumstances. But, secondly, because at all events the Record is the only legal evidence of a Conviction, and such indorsement was in our opinion, not equivalent to a record. The authorities in the Books, as to this point, are quite decisive. The point has also been already so determined, incidentally, in this court, in two cases (Rex v Baxter, and Cooper v Clarkson.) in the years 1830 and 1831 respectively.

The Indent, (or book or paper so called) was in our opinion equally inadmissible. The Quarter Sessions Act 3 W 4 No 3 s 35 provides that the Indent, properly

so

Page 13

so termed, or a copy duly examined and compared therewith, (i.e. with the original, in the off ice of the Colonial Secretary,) shall be evidence in certain cases, provided it be also shown, that such Indent has been in fact there deposited and kept, and that the party named therein arrived as a Convict, and has always been reputed to be, and dealt with as such. Now, supposing the thing produced to have actually been the Indent, or a copy proved to have been so examined and compared, (which there is nothing in the notes to shew), the above mentioned supplemental proofs were still wanting. But, supposing them to have been all supplied, we are of opinion that the proof would have failed equally. Such proof, whether admissible or not for any other purposes than those of the Quarter Sessions Act itself is certainly not admissible to establish the

fact

Page 14

fact of conviction or transportation, or of the term of transportation, on an Indictment under the 5 G 4 c 84 s 22, because the same Statute s 24, contemplates another mode of proof, and, but for that provision, the Record of such conviction would have been, and would now be, indispensable.

We must add, that if the prisoner Manuel had been transported to, and afterwards absconded from, Van Dieman’s Land, the fact ought to have been, and we presume would have been so stated. But there is nothing on the notes, or in the circumstances, to justify such a supposition. On the other hand, there is nothing on the face of the Information, to show that the Prisoner was not so transported. So that we cannot direct an arrest of Judgment.

On the assumption, that

Manuel

Page 15

Manuel, alias Ferguson, was a Convict transported to, and endeavouring to escape from New South Wales, we have no hesitation in certifying our opinion that his conviction, and that of the other Prisoner Robinson, were and are erroneous, and that application ought to be forthwith made to His Excellency the Governor

for the issue to them, respectively of a Pardon. And we do so decide and direct accordingly.

The result at which we have thus arrived, renders it unnecessary to express any opinion, as to the proper sentence against Robinson supposing his Conviction to have been sustained. But, if the 4 and 5 W 4 c 67 (quoted erroneously as c 77) extends to all the cases of escape from transportation, as His Honor the resident Judge inclined to think, and as we are disposed to think also, it follows that, although

the

Page 16

the sentence against the Accessory would be thereby rendered more severe, the punishment of the Principal is mitigated: and consequently, that the Sentence against Manuel is erroneous, even were there no objection to his Conviction.

The name of the prisoner, William Manuel, it may be necessary to say, is taken by us from the Information. In His Honor’s Report he is mentioned as John Manuel.

Given under our hands at Sydney this sixth day of May in the Year of our Lord one thousand eight hundred and forty three

(Sgd) James Dowling CJ

W W Burton

Alfred Stephen

The Seal of the Court is at the bottom of this page

Commentary

This trial was before Willis in Melbourne on 7 April 1843 and is in Willis Note Book No 14 page 125 (see Mullaly pp686-88)

The letter from Macpherson must have been written by a clerk as the signature is in a different hand and different ink.

Willis has recorded Manuel as ‘John Manuel’ which explains the remarks on the last page of the Judgment.

Manuel had pleaded guilty to the charge of Escaping from his sentence of transportation and the trial of Robinson apparently proceeded on the basis that that plea was legally valid. In point of law, Manual had not escaped as he was still in NSW to which Colony he had been transported.

The Full Court also ruled that the law permitted a person charged with being an Accessory to a Felony to challenge the allegation that the principal had committed a Felony and, accordingly, it was wrong to allow the prosecution to rely on Manuel’s plea of guilty. The Court pointed out that, as Manuel was still in NSW, his crime was that of Absconding which was a Misdemeanour rather than a Felony and that Robinson was not an Accessory to a Felony.

The Full Court also ruled that the ‘indent’ relied upon as evidence of Manuel’s original conviction was not the type of document to which the relevant legislation referred. In the absence of the actual document it is difficult to follow the Court’s reasoning on this point.

Rex v Baxter, and Cooper v Clarkson – material about these cases may be found on the Macquarie University Website

In the result the Full Court ruled that both convictions were wrong in Law and this explains Willis’ note ‘pardoned’ under the date of this trial in his Note Book.

Page 4 – ‘collect’ – this word has a meaning of ‘draw an inference’ (OED)

17. Patrick McNickle

  • Top left (9)
  • Top Right Box 55a
  • A Stamp

Royal Historical Society of Victoria

000195 (handwritten)

To His Honor The Chief Justice and Gentlemen of the Jury

Petitioner Patrick McNickle was attached to Campbell Town Stockade when the occurrance which I now stand at the Bar before your Honor took place

Petitioner while getting his Breakfast in the stockade was Insulted by the Prosecutor in the following manner, after the Prosecutor had taken his Breakfast he threw the Grounds of the Coff ee into my Face which aggravated me so much that we came enclosed in each other Gripe and the cause of him Insulting me I know not as I never gave him the least Provocation for so doing and for the same I was confined and released soon after and sent to my Work in an hour after I was taken before

verso

the off icer of the Gang and received the Sentence of 50 Lashes which sentence was recalled and I was Forwarded to the Bench of Magistrates at Campble Town and Committed to take my Trial at Sydney

Petitioner earnestly Begs your Honor will take his case into Humane Consideration as the Whole Disturbance arose chiefly from the Prosecutor and Petitioner will in duty bound forever Pray

  • A Stamp

Royal Historical Society of Victoria

Commentary

Not able to discover what charge Patrick McNickle faced but it was an assault type – this document is in the form of a petition but such documents were often the form of an unsworn statement made during the trial of the petitioner

There are no notes relating to a Patrick McNickle in Willis’ criminal Note Books relating to either Sydney or Melbourne

18. Document containing pro formas of sentences

Judgment of Death

That you A B be taken from hence to the prison from whence you came and from thence to the place of Execution on such day as his Excellency the Governor shall appoint and that you there be hanged by the neck until you are dead and God Almighty be merciful to your soul

Death Recorded

Let Judgment of Death be recorded against A B

Transportation against free persons

That you A B be transported for the term of years according to law

Transportation against persons who came to this Colony under sentence

That you A B be transported to a penal settlement for the term of years

To work on the roads

That you A B work on the roads or public works of the Colony in Irons for the period of years

Commentary

The sentence imposed on a convicted person was the “Judgment” of the Court in the particular case

“Let Judgment of Death be recorded” – Because the sentence of death was not always carried into execution, the 1823 Imperial Statute 4 Geo 4 Ch 48 s.1 allowed the Judge, in cases other than murder, to abstain from pronouncing judgment of death and instead to order the same to be ‘entered of record’. This legislation was in force in NSW.

19. Cases in Willis Note Book No 11

Civil Cases

Some notes relating to Roberts by next friend v Roberts & ors

February 1837

Some notes relating to

Terry v Murray

(These notes are in Folder ‘Willis General’)

Discharge of Jury

In Box 55 there is a one sheet document, with writing on both sides, is in these terms:-

On front

Box55-b

A Stamp

Historical Society of Victoria

000195 (handwritten)

Recto

A jury sworn and charged in a case of life and member cannot be discharged till they give a verdict. In Civil Cases it is otherwise as in a case the life and member (crossed out) where nonsuits are had –1 Inst 154.

The Plt is bound to appear in Court by himself, his attorney or counsel in order to answer the amercement – to which by the old law he is liable in case he fails in his suit as a punishment for his false claim. To be amerced or a merice is to be at the King’s Mercy with regard to the fine imposed, in misericordia domini regis pro falso clamore suo. The amercement is disused but the form is still continued, for if the Plt does not appear, no verdict can be given, but the Plt is said to be Nonsuit non sequitur clamorem suum. Therefore it is usual for the Plt when he or his counsel perceives that he has not given Evidence sufficient to maintain

Verso

his Issue, to be voluntarily nonsuited, or withdraw himself, whereupon the crier is ordered to call the Plt & if neither he nor any one for him appears, he is non suited, the jurors are discharged, the action is at an end & the Def shall recover his costs. The reason of this practice is that a nonsuit is more eligible for the Plt than a Nonsuit (crossed out) verdict agst him // & he may elect to be nonsuited at any time before the jury have delivered their verdict//

The Plt is in no case compellable to be nonsuited after he has appeared.

Where a verdict is found for the Plt & he will not enter it, the Deft may compel him to do it, on motion, or the Deft may do it himself – 2 Litt

Commentary

The internal evidence indicates that this unidentified note may well have been written in preparation for giving reasons for judgment in some civil case – probably that between Peter Cannon and Robert Russell

The reference ‘1 Inst 154’ at the end of the 1st paragraph is probably a reference to Lord Coke’s Institutes – then a standard legal reference.

It was the criminal law at this time that in a capital case the jury could not be discharged without verdict unless the prisoner agreed (See Hawkins: Pleas of the Crown, 1824 edition, Vol 2 p619).

The paragraph commencing’ The Plt is bound’ and continuing to ‘verdict agst him’ is taken, verbatim, from William Blackstone: Commentaries on the Laws of England Vol 3 (1768) pp376-7

The last paragraph is in a different ink to the rest of the document and the reference ‘2 Litt’’ at the end of the 1st paragraph is probably a reference to Thomas Littleton’s writings or the commentaries on them.

20. Cannon v Russell

In the Note Book marked ‘Civil Cases 1841-42’ on page 24

Cannon v Russell Assors

Benjn Baxter Esq Sworn

I know Peter Cannon – I know of a sale or attempted sale of a piece of land belonging to him in August 1840 – Canon purchased the land from me originally for a small sum. Land ? I advised him to sell it and at his request I called on Mr Russell to draw Cannon a plan of 1a of grd – Russell drew the origl plan, the plan by which I sold it. Abt 44 a. A plan that would make the land sell to the greatest advantage – I saw a plan at the sale I did not observe wthr it was correct or incorrect.

Thomas Power Sworn

Plan of the allotment of land which Mr Baxter authorised me to sell – it was sent to me by Mr Russell

Xed I don’t recollect who brought the plan to my house

Alexr Watts Sworn

Formerly clerk to Mr Power – at the sale which took place of the suburban allotmt 49 a – Russell said the grd was correct – Russell did not say that he had made that plan

Non Suit (crossed out)

Verdict for Deft

Verdict set aside

In Box 55 there is a copy of a Motion to set aside a Judgment in a civil case between Peter Cannon and Robert Russell.

This is a 1 page foolscap document

On front page

Handwritten

6/VI

Box 55a

A Stamp

Historical Society of Victoria

000195 (handwritten)

Recto

In the Supreme Court

For the District of Port Phillip

A Colony of New South Wales

Between Peter Cannon plaintiff

and

Robert Russell Defendant

Take Notice that this Honourable Court will be moved on the (blank) day of November Current to set aside the verdict obtained by the Defendant in this case, on Friday last, the 5th Instant before His Honor Justice Willis and to grant a new trial between the said parties on the following grounds. 1st That the learned Judge ruled wrongly in refusing to the plaintiff his right of election to be nonsuited. 2dly That the learned Judge mis-directed the assessors by stating to them that they must find a verdict for the Defendant while the weight of the evidence was in favour of the plaintiff. 3dly that the evidence given on the trial was unexpected in as much as the plaintiff’s attorney was informed by Thomas Power previous to the Trial that he would prove and identify the plan put in by the

Verso

plaintiff which nevertheless Power failed in satisfactorily doing. 4th That the ends of justice would be defeated and the plaintiff be deprived of a substantial and meritorious cause of action by the refusal to grant a New trial in this case. Dated this Ninth day of November 1841

I certify that in my opinion sufficient grounds exist for this motion

(signed) Arch Cunninghame,

The plaintiff requests that his Honor will be kind enough to bring into court on the day appointed for hearing this motion his notes taken on the trial of the aforesaid case

(signed) J B Quarry

Plts Attory

the underlining was by Willis]

Willis’ notes in margin of document

1 opposite the blank before “day”

The day shd have been mentioned JWW

2 commencing opposite the 1st ground

A non suit can only be at the instance of the defendant & therefore when the cause at Nisi Prius was called on & the jury sworn but no counsel attornies or parties or witss appeared on either side the judge held that the only way was to discharge the jury for nobody had a right to demand the Plt but the Deft & the Deft not demanding him the Judge cd not order him to be called 1 Stra 267 and also 2 Stra 1117. But a plt may be non suited in an undefended case if he do not make out a proper case or for a variance 3 Tuant (?) 81. The reason is the plt elects (inserted above ‘or is offered’) from error gave up the proceedings and the Defendant is not present to insist on a verdict

JWW

Commentary

There is a Peter Cannon listed in the General Census of Port Phillip 12 September 1838 (HRV Vol 3 p443). He is not listed in Kerr’s Directory (1841) or in the 1843 Burgess Roll of Melbourne

Robert Russell was a surveyor and architect and very active in early Melbourne.

Benjamin Baxter had been postmaster in early Melbourne and continued to be active in business. In October 1839 he purchased 25 acres in the Parish of Jika Jika (North-east of Melbourne) for £525. (see Kerr; Garryowen; HRV Vol 6 p 407 )

Thomas Power was an auctioneer in Queen St (see Kerr; Garryowen )

Sometimes Willis noted the names of counsel appearing in the case but has not done so in this case.

It is difficult to work out what fault was being alleged against Russell but the internal evidence from the notes might indicate that it had not been proved that Russell was personally responsible for the ‘plan’ in issue and that the plaintiff’s legal representatives decided to abandon the case

All the handwriting in these case notes is that of Willis; the words’ Verdict set aside’ in the Note Book are written in different ink and with a different quill. This would indicate that they were written after the Motion was heard

The internal evidence in the Motion document indicates that on 5 November 1841 judgment had been given for the Defendant Russell in a civil case heard before assessors and the plaintiff intended to move for a new trial. Willis has written some notes in the margin of this document about non-suits and verdicts. These notes could indicate that the separate document set out below relates to the same case

The words ‘I certify that in my opinion sufficient grounds exist for this motion

signed) Arch Cunninghame,’ on this Motion were an expression of opinion by Counsel that there was a proper legal basis for the Court to deal with this Motion. It was similar to the practice of counsel signing the pleadings in a civil case or the Crown Prosecutor signing the Information in a criminal trial. It may indicate that Cunninghame had appeared for the plaintiff on the trial.

21. James McAlpine v Peter Ferrie

There is a 4 page foolscap document

On 1st page

On left top ‘6/VII’ – in middle ‘1112’ – on top right ‘Box 55a’

A Stamp

Historical Society of Victoria

000195 (handwritten

A Stamp

Historical Society of Victoria

Recto

On left of page

In the Supreme Court of

New South Wales for

The District of Port Phillip

On right of page

The first day of February in the

Year of Our Lord One Thousand

Eight Hundred and forty two

James McAlpine plaintiff

and

Peter Ferrie Defendent

Take notice that this Honorable Court will be moved on the first day of next Easter Term or as soon after as councel can be heard to show cause why the verdict in this cause which was tried on Friday the Twenty Eight day of January last past before the Honorable John Walpole Willis Resident Judge should not be set aside on the following grounds (viz) that the consent of the commissioner of Crown Lands given to the plaintiffs for the removal of his potatoes from the Close in Question without giving notice to the Defendant was contrary to Law and also that the damages given by the Verdict of the Jury was Excessive and that a New Trial be granted and that in the meantime all further proceedings be stayed

Deane & O’Cock

Defendant’s Attornies

To Messrs Carrington & Clay

plaintiffs Attornies

I Certify that the Grounds stated in the notice of the first of February are sufficient to apply to the Court for a New Trial in the above mentioned cause

signed) James Croke

Nothing on verso of 1st page

On 3rd page

To the Honorable

John Walpole Willis Resident Judge

We beg to request that you will on the first day of next Easter Term bring with you into Court your notes taken on the Trial of the Cause mentioned in the Notice hereunto annexed

We are Sir

Your Obedient Servants

Deane & O’Cock

Defentants Attornies

Dated the first day of

February AD 1842

On the verso of this page on the fold

1112

In the Supreme Court

For the District of

Port Phillip

McAlpine

V

Ferrie

Notice of Motion

Why the Verdict

Herein should not

Be set aside & a

New Trial granted

Deane & O’Cock.

Commentary

The ‘1112’ could be part of the original text and be the number allotted to this case in some court record

The result of this Notice of Motion is not known

In the Willis Note book of Civil Cases in the Port Phillip District at Page 83 is the case of McAlpine v Ferrie heard on January 28th 1842

James Croke appeared for the defendant

The plaintiff was awarded £141 damages

Croke then took the point ‘Commissioner had no authority after licence granted to deft to authorise plt to take away his crop’

See Commentary on this case in the transcript of that Note book

22. Chirnside at Simson

This document has ‘Chirnside at Simson (? changed to ‘Simsson’ or ‘Simpson’) -Statement’ on the top of the fold and ‘Ross’ at the bottom

At top of page

(6/x) – Box 55 – a

A Stamp – at bottom of page

Historical Society of Victoria

000195 (handwritten)

‘At Mack’s Hotel in Geelong was in company with Mr Dalmahoy Campbell- a conversation took place which commenced by illusions to the performances of (inserted ‘a match between’) Wild Harry and Highflyer in Adelaide. And a paragraph which appeared in the Geelong npaper which Mr Ch said he thought was written by HNS. Camp denied that such was the case and Mr Ch said HNS was capable of doing such things and that the records of the Sup Ct would shew it Camp then (crossed out) and that he had seen in the npapers what J Willis (“Jeffcott” written above) had said “That he would not allow such juggling betn 2 Bords to defraud Ors from their just rights. Mr C (?) Insid (?) not cashing DCS orders (? as to words

Commentary

The ‘Chirnside at Simson’ was a standard way of indicating the parties in some civil proceeding. It is difficult to determine what, if any, was the legal significance of ‘Statement’

The word ‘Ross’ is in a position on the fold where the name of the solicitor filing the document in Court would usually appear. James Hunter Ross was a solicitor in Melbourne about this time.

‘Chirnside’ was probably Thomas Chirnside who then has a station at Mount William.

The use of ‘HNS’ in the statement would tend to indicate that the name on the fold was ‘Simson’ as there was a Hector Norman Simson who had a station in the same area (Lodden River) as Chirnside.

Mack’s Hotel was in Corio Terrace, Geelong

Dalmahoy Campbell was well known as a stock and station agent.

DCS was probably Donald Campbell Simson

On 20 August 1841 Donald Campbell Simson, James Monckton Darlot and Hector Norman Simson were tried before Justice Willis for Conspiracy to defraud. William Hampden Dutton had been in partnership with Darlot and D C Simson and, after the partnership was dissolved, D C Simson and Darlot disposed of some property to N H Simson without the consent of some trustees who had become involved. Willis’ Case Note Book for this period has not survived. This conspiracy trial is referred to in Garryowen Vol 1 p348.

It is difficult to understand the reference to Jeffcott who succeeded Willis as the resident Judge in Melbourne.

Taylor v Campbell

On front

125a

If from the default of the Deft in an action on an award to the Plt ? no award within the time limd – a reply that default of Deft – 8 Geo (?) 81

Enlargement of time 2 T. R. 643. 3 T.R. 601

Attachmt Award must be tendered to the Party refusal – aft of due executn – tender & refusal of Rule of Ct served – Attachmt of course

Party may object, on application for attachment, for any illegality apparent on the Award but the Ct will not set aside for any defect after the time limited by St 9 &10 Wm 3 c 15 last day next Term after award

An agreement to enlarge the time for making an award must contain a consent that it be made a Rule of Ct otherwise no attachment will be granted 8 T.R. 87 Jenkins v Law

On back

23. Taylor v Campbell – Gurner

Paper colonist – B Proptery

Razor

Commentary

These notes seem to relate to some attachment (contempt of court) proceeding arising from the refusal of a party to comply with an award made after an arbitration agreed to by the parties to some civil dispute.

No trace of this case in any of Willis’ surviving note books.

The relevant law is set out in Blackstone’s Commentaries (1768) Vol 3 pages 16-17

2 T. R. 643 – is a reference to a case – probably Owen v Hurd reported in 2 Term Reports at page 643 which deals with awards being made Rules of Court

3 T.R. 601 – is a reference to a case – probably Bevan v Bevan reported in 3 Term Reports at page 601 – which deals with attachment for contempt of court

Jenkins v Law is reported in 8 Term Reports. 87

Welsh v Kiddle

A copy of “prayer of Bill” in this case

(in folder ‘Civil 1841’)

At top of page

(6/111) Box 55 – a

A Stamp –

Historical Society of Victoria

000195 (handwritten

0n front page

Welsh & ors

a

Kiddle & ors

Copy prayer of Bill

That the said defendant Thomas Cosby Kiddle may be Compelled by the Decree of the Honorable court Specifically to perform the said agreement with your orators, and to pay to your orator the said Patricus William Welsh the balance or residue of the purchase money for the said land messages and here delivered with interest thereon according to the terms and conditions of the said sale, your orators being willing and hereby offering specifically to perform the said agreement on their part, and to execute a proper conveyance of the said land messages etc to

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the said defendant and to let him into the possession thereof, and the rents and profits thereof

on fold

Chancery

Welsh & ors

A

Kiddle

Copy prayer of bill

For the Court

J W Belcher

Solr

Commentary

P W Welsh and Co were merchants with an off ice in Little Flinders St. On 3 October 1839 Welsh had purchased land in the Parishes of Moorpanyal (near Geelong) and Jika Jika (north of Melbourne) (HRV Vol 6 pp406-7). He became insolvent on 18 January 1843

The Kiddle family were in the Western District. Thomas Cosby Kiddle stood as a candidate for the County of Grant in 1859 (The Argus 9 September 1859). Peter Lalor was elected.

This document probably relates to litigation in which Welsh was seeking specific performance of a contract for the sale of land. The word ‘Chancery’ on the fold indicates that this litigation was in the Equity division of the Supreme Court. Willis’ Note Books for this Equity division in Melbourne have not survived.

Joseph W Belcher was an Attorney who came to Melbourne from Dublin in 1842.

24. Notes concerning Bailment, Negligence and Contempt

Bailment

(8)

Box 55

A Stamp –

Historical Society of Victoria

On fold

Cannele v Mack & ?

Inside the folded double sheet

Bailmt – ordinary neglect

A bailee who desires (?deserves) no benefit from his undertakg (all crossed out)

Bailmt

Ordinary neglect is the omission of that care which every man of common prudence, & capable of governing a family takes of his own concerns

Gross neglect, is the want of that care which every man of common sense, however inattentive, takes of his own concerns

Slight neglect is the omission of that diligence which any circumspect & thoughtful persons use in securing their own goods & chattels.

1 A Bailee who derives no benefit from his undertaking is responsible only for gross neglect.

2 A Bailee who alone receives benefit for the bailmt, is responsible for slight neglect.

3 When the Bailmt is beneficial to both parties, the Bailee must answer for ordinary neglect

No Bailee shall be charged for loss by inevitable Accident, or irresistible force, except by special Agreement.

Robbery by force, is considd irresistible, but ?

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private stealth (false key) is presumptive evidence of ordinary neglect. –

22D

Negligence may be considd as a test of Civil or Criminal liability.

Where a man so uses even his own carelessly & negligently, & without a reasonable degree of care & caution not to injure others, where injury is likely to ensue, he is usually not only civilly, but even criminally responsible.

It may be regarded as an important fundamental principle of adjudication, in cases where a loss occasioned by Spoiliation or fraud must fall on one or the other ? (crossed out) of two innocent persons, that he thro’ whose negligence or want of caution the injury has been affected, shd bear the loss. 6 Taunt 76. 5 B? 756

McNall

If a Deft in addressg the Jury is guilty of a contempt the Judge at N P. has authority to fine him 2 B La 329

A Contempt committed in the face of the Ct may be punished by fine – 3 Salk 33

separate sheet

– Box 55 – a

A Stamp – at bottom of page

Historical Society of Victoria

000195 (handwritten)

attachm is granted & if he shall appear to be apparently guilty, the Court in discretion, on consideration of the nature of the crime, & other circs will either commit him immediately in order to answer interrogatories 2 Hawk 222

This paragraph has a line drawn through it vertically

Conspiracy (a) (crossed out)

By the common Law there can really be no doubt but that all confederacies whatsoever wrongfully to prejudice a 3rd person are highly criminal #

22 & see s33 1 Hawk Pl Cr 27-32

Conspirators may be indicted at the suit of the King, & at common Law one may prefer an Indictmt agst ? Conspirators who only conspire together & nothing is executed; tho’ the conspiracy ought to be declared by some act, or promise to stand by one another. – But a bare conspiracy will

Next page – verso

will not maintain a writ of conspiracy at the suit of the party – because he is not damaged by it. Tho’ it is a grd for an Indictmt – 9 Rep. 56. 2 Rob abr 77

the Quarter Sessions have jurisdiction over conspiracies Bur Rep 1320 1 Pol Rep 368

a Bare conspiracy to do a lawful act, to an unlawful end, is a Crime 8 Mod 320

Combins to trip at a theatre, tho’ each might have done it separately ?? B R 18 Geo 3 2 Campl 369. So off icers in the E I compy combined to go there to throw up their commissions 4 Bar 2472 (a)

? (crossed out)If Dutton’s Propy were not included S E D wd only have done wht Dutton did before then. this is quite as much in opposition ??? (crossed out)

JWW

Commentary

This document has some notes relating to the law about the crime of Conspiracy.

The reference to ‘Dutton’s Propy’ in these notes may indicate that the notes related to Willis’ charge to the jury in the trial of Donald Campbell Simson, James Monckton Darlot and Hector Norman Simson on 20 August 1841 for Conspiracy to defraud. William Hampden Dutton had been in partnership with Darlot and D C Simson and, after the partnership was dissolved, D C Simson and Darlot disposed of some property to N H Simson without the consent of some trustees who had become involved. Willis’ Case Note Book for this period has not survived.

This conspiracy trial is referred to in Garryowen Vol 1 p348.

Separate document

(4)

– Box 55 – a

A Stamp – at bottom of page

Historical Society of Victoria

000195 (handwritten)

(a)

Conspiracy

Clandestine & collusive practice can only be traced by a combination & comparison of circumstances. To reject such combination & comparison is to reject the only means of detecting fraud; it is indeed to give it a patent & free licence to cheat with impunity”

Burke’s Speech on the

Nabob of Arcot’s Debts

Vol 4 P 314

Conspiracy need not be directly proved, may be inferred from Circs.

JWW

Dig 42. 8.1. 14 212. 8 252 (crossed out) . D. 42.8.10. 16

Separate document

– Box 55 – a

A Stamp – at bottom of page

Historical Society of Victoria

Sale – to N T in a ???? for inadequate value

Coles’ ? Evidnce of Fraud

Commentary

The notes concerning Bailment and Negligence could be related and might have been written in relation to some civil case in which a bailee was sued for the loss of the bailed property.

The brief notes relating to Contempt seem to be related to some event in a civil jury case.

Edmund Burke made a speech on the debts of the Nabob of Arcot on 25 February 1785 – that speech was published

25. Conditions in Contracts

On top

Box 55

A Stamp –

Historical Society of Victoria

On some pages

“Where a Condition is of two parts, the one possible & the other not so, it is a good condition for performg that part which is possible C 20 (?Cro) Eliz 780. Tho’ if a condition is of two parts disjunctive, & one part becomes impossible by the Act of God, the person bound is not obliged to perform the other 1 Rob Abr 446 l 45 2 Mod 202, 203. If a condition be in the copulative, & it is not possible to be performed, it is said it may be taken in the disjunctive 1 Dan Abr 73

Where the one promise, is in consideration of the other, where the performance & not the promise is, must be gathered from the words & nature of the agreement & depends entirely thereupon, for if there was a positive promise that one shd release his Equity of redemption, & on the other side, that the other wd pay 7 £, then the one might bring his Action without any Avermt of performance; but where the Agreement is that the Plt shd release his Eqy of Redemption in consideration whereof the Deft was to pay him 7 £, so that the release was the considern, & therefore being Executory, it is a condition precedent which must be

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be averred – 12 Mod 455, 460. Thorp v Thorp

If there be a day set for Payt of Moy, or doing the thing which one promises, agrees or covenants to do for another thing, and that day happens to occur before the time the thing for which the covt promise or agreemt is made is to be performed by the tenor of the Agreemt, – there tho’ the words be that the party shall pay the Moy or do the thing, for such a thing, or in consideration of such a thing; after the day has passed the other shall have action for the moy or other thing. Tho’ the thing for which the covt promise or agreemt was made be not performed; for it wd be repugnant then to make it a condition precedent, and therefore they are in that case left to mutual remedies on which by the express words of the agreement they have dependd – per Holt C. J. 12 Mod 461 Pasch 13 W 3? Thorp v Thorp.

Thus if A sells to B and conts on before (crossed out) a given day to make a good Title, & B in considn therefore? (crossed out) covts at an earlier fixed period to pay a given portion of the purchase Moy A has his Actn agst B in case of failure tho’ A had not made a good Title

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previously to the Moy becomg due.

There is a diversity where a day of paymt is limd in a contract and where not, for where it is limited, the contract is good presently. (i.e. immediately) & an action lies upon it without paymt; but not (crossed out) on in the other not.

If a man buy 20 yards of Cloth, the contract is void if he does not pay the Moy presently; but if day of paymt be given then one may have an action for the Moy at the other trover (?) for the cloth Dyer 30. 293. Where a seller says to a buyer, he will sell his house for so much & the buyer says he will give it; if he do not (crossed out) presently ? out the moy, it is a contract; but if he do not, it is no contract Noy v Max 87 Dob 41. The property of the thing sold is in the buyer immediately by the contract, tho’ regularly it must be delivered before the seller can bring his Action for the Moy. Noy 88. If on contract to buy a house of me & no Moy is paid or earnest given, nor day set apart for Paymt, thereof, nor the thing delivered, in these cases no action will lie for the Moy or the thing sold, but it may be sold to another. Plow 128. 309

next page

The Plt in Equity, if he has not performed his pt of the agreemt must not only shew that he was in no default in not havg performed it, but must also allege that he is still ready to perform it. Whereas at Law if the covenants be not precedent, but distinct & independent, the Plt need not allege performance of his Covenants, to entitle him to recover agst the Deft for a breach of his. Pordage v Cole 1 Sand 320. Nichols v Raynhed Hob 88. Buten Calonel v Briggs 1 Salk 122 Goodison v Nunn 4 T.R. 761.

Where in breach (crossed out) the Covts are mutual & distinct, the Deft cannot plead a breach by the Deft – in bar of the Plt Action for a breach by the Deft Plt (crossed out) Deft; for the damages may be unequal & therefore each party must recover agst the other the damages sustained, Cole v Shallett 3 Lev 41 Thompson v Noel 1 Lev 16 Howland v Strickland Cowp 56 but see Calonel v Briggs 1 Salk 122 Goodison v Nunn 4 T R 61

Commentary

This document has the appearance of being notes for Willis’ reasons for judgment in some civil case in which the interpretation of some condition in a contract was of significance

26. Legal Profession

This document is on a 2 paged folded document. It is folded in a separate sheet on which the word “Attornies” is written by Willis

At top of page

(8) – Box 55 – a

A Stamp –

Historical Society of Victoria

000195 (handwritten

1st page

I have recently had ? to strike one off the Roll for refusing to ??? (crossed out)

I have unfortunately more than once had occasion to notice (crossed out) censure

the conduct of some of the Attornies of this Court ?? (crossed out)

I have recently been compelled to strike one off the Rolls for refusing to explain certain transactions with his client which he portrayed to me dishonourably & unjust. It may be well therefore if I avail myself of this occasion when applications have been made by Gentm to Practice in that Branch of the Profession if (crossed out) candidly to make some observations on (crossed out) state what I consider to be the duty of an Attorney solicitor & Proctor of this Court

First then (crossed out) I repudiate the common doctrine of (crossed out) that it is meritorious in a lawyer alike inflexibly to support the cause of his client be it good or bad. An Attorney ought, I think, to the utmost of his ability, to acquaint himself with the merits of every case in which he is consulted. He shd discourage Suits for frivolous or trivial demands. He shd never attach himself to persons, who from a pretended zeal against imposition or oppression, or through a pertinacious humour, or an unreasonable jealousy of their most minute rights, are involved in perpetual contention. He shd not in deference to a wealthy or powerful client, much less for the sake of gain, undertake a cause which does not appear to be just, except the fact, on which the merits turn is uncertain, or the construction of law is doubtful; & less still shd he support the lost cause

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by falsehood or prevarication, or suppression of the truth, or by laying an undue stress on suspected evidence. He ought not to encourage or (if avoidable) produce, hold a daring Witness, disposed to make free with truth, that they may ensure a victory. He shd never overawe nor intimidate the adverse party, or take an advantage of an oversight in his Counsel or Attorney or of want of form in the Pleadings, unless where he stands on the defensive, & the attack on his client is notoriously injurious. He ought not to mislead nor impose on the Court, if in his power, nor prolong the cause, nor enhance the costs, tho’ at the expence of his adversary, nor appeal from a decision, unless he is persuaded in his conscience, & advised by his Counsel that, (what may sometimes happen thro’ the fallibility of all human judicatures,) that (crossed out) the determination is erroneous in point of substantial Justice. In all other cases as soon as judgmt is given, or the decree pronounced, he shd persuade his client to acquiesce; nay if while the suit is depending, he receives conviction that his client’s demand, or defence is ill founded, he shd advise him to drop the suit, & agree with his adversary; & if such adversary be poor, or has been injured by having his just

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right withheld or impeached, to make him ample reparation. Shd the decision be in favour of his client, but appear to be a hard tho’ just sentence, he ought not to encourage him to take the utmost advantage of the rigour or power of the law while equity or poverty call for compassion or abatement.

In Criminal cases he shd act with spirit & resolution against hardened and daring off enders, but shd be very cautious not to impose nor oppress, & much more so not to add insult to severity. Process of law is often slow in order to preserve the unwary or unskilful from being surprised, & to afford the fairer opportunity of bringing truth to light; but delays should never be indulged in where a decision can be speedily obtained without derogating from Justice. In giving advice on Mortgages or Purchases, or in any money transactions, an Attorney shd discourage every undue advantage of the ignorant, unwary or necessitous. When a debtor is insolvent, the Attorney shd promote equality in payment. Where a debtor is unfortunate, the Attorney shd dispose the creditors to show favour & compassion. Where the debtor shows himself to be a designing villain, the Attorney shd shun all unnecessary connection & communication with him. In Settlements & other family transactions, secrecy is more especially requisite. Great attention shd be had in disposing of Estates by Wills, so that no creditor may remain for any

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length of time unsatisfied, & that peace & harmony may be preserved among the children & relatives of the testator. Care shd be taken at all times & especially when the testator’s faculties are in any wise impaired, to procure witnesses of undoubted reputation to the Execution of the Will. There are other matters within the scope of an Attorney’s duty which without particularizing may (crossed out) will be best performed by his observing the Golden Rule of doing to others as he wd be done by. Thus will Attornies free the Profession from the reproach with which unworthy Members have stained it, & be a blessing, instead of a curse to the community; the ornament and not the bane of society; the faithful guardians of the laws of their country, and the best supporters of our Courts of Justice. That there are many such men (crossed out) excellent Attornies I am able to testify, but that there are others of a very different Stamp, I am reluctantly bound to admit. It will always be my case however to the interest of any power (crossed out) to support the upright, & uproot the bad, and thus endeavour to preserve without blemish or disorder the most powerful engine for putting our (crossed out) the laws under which we live into salutary operation.

JWW

Commentary

These notes concern the professional standards expected of Attornies in the course of their practice. They were prepared as the notes for a speech made by Willis, in Court, on the occasion when some gentlemen were admitted to practise as Attornies (Solicitors) in the Supreme Court. In those days the legal profession was legally divided into two branches – the Barristers and the Attornies – and one sought admission to practise in a specific branch.

I cannot determine the date on which Willis made this speech but it was after some Attorney had been struck off the Roll.

In June 1841, John William Thurlow, a Solicitor practising in Melbourne, used a Police search warrant to obtain possession of a house. The matter eventually got before Willis who suspended Thurlow from practise from June to October 1841 but reinstated him in July (Behan pp74-75)

In January 1842, William Meek and Richard O’Cock, Solicitors practising in Melbourne, were brought before Willis for contempt – Meek for filing a false plea in an action to gain time and O’Cock for neglecting the interests of his client (Behan pp124-125)

Horatio Nelson Carrington was struck off the Roll in 1842 for not producing documents to the Court (Behan pp. 172)

27. 1840s Depression

This is an untitled document

Noted on the fold

‘To close the term

9.7.1842

JWW’

A Stamp

Historical Society of Victoria

On front

55-b

A Stamp

Royal Historical Society of Victoria

000195 (handwritten

Text

Recto

When I made a few remarks at the termination (crossed out) end of the last Term

We cannot forget the (crossed out) clouds of entanglement & distress with which all (crossed out) overshadowed the Australasian Colonies & even this Province was in some measure overshadowed (crossed out) darkened. I then ventured to predict that by mutual forbearance & perseverance, here at least, all impending difficulties (crossed out) dangers wd be extinguished (crossed out) dispersed. The day–spring of providing prosperity, has, I rejoice to say, again dawned upon us; but had I closed this term as doubtful (crossed out) in a state of ? (crossed out) general affairs as doubtful as that in (crossed out) when the last was terminated, I should not have hesitated, now as I did not hesitate then, to declare my decided and unalterable opinion that forbearance towards each other, & perservenceunder whatever difficulties, under whatever privations afforded the only chance of a revival of your prosperity (crossed out) for the return of better times. I shd be ashamed to address you (crossed out) now to speak in a tone of triumph had I not addressed you then (crossed out) spoken formerly in a tone of exhortation if I had not encouraged you (crossed out) I recommended patience under your former (crossed out) previous difficulties

It is because I presumed to tender my advice in times of

Verso

Embarassmt (?) & distrust & because I then neither flatterd nor deceived, that I now venture to offer my congratulations on the extinction in a final measure of of embarassmt & distinct danger (crossed out) dangers revived (crossed out) embarassmt that threatened ?? (crossed out) & on the revival (crossed out) approach of that better (crossed out) state of things commercial, pastoral & agricultural success (crossed out) in which the honor & happiness of this Settlement is so deeply involved. It is not unpleasing or unprofitable to look back upon the dangers we have (crossed out) that are passed & to compare them with the scene that now lies before us (crossed out) presents itself. We now behold a Province inferior perhaps now (crossed out) in population to most of the neighbouring Colonies, now (crossed out) but multiplying her faculities also (?)(crossed out) & resources by her own activities & enterprise by S (crossed out) by moderation & perseverance (crossed out) resolution & by the good sense of the people (crossed out) inhabitants – we behold the ? (crossed out) this promise after a struggle with commercial (crossed out) great mercantile and monetary pressure without ? aid from any ? or from the British (crossed out) parent Governmt, without the charlantry of puffing or the much (crossed out) vaunted main spring of the self supporting system , boldly weathering the storm, paying the debts (crossed out) & true to her engagement & free from Insolvency to any great extent increasing daily in wealth & prosperity (crossed out) felicity and like the greatest of all virtues (crossed out) in a word like Charity itself, bearing all things, believing all things, hoping all things, enduring all things at a time when while the (crossed out) ??? (crossed out) when surrounding Colonies are said to be well nigh (crossed out) almost on the brink of ruin. ?? (crossed out). This is a matter of proud congratulation & I sincerely offer it to this community.

JWW

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