The Chronicles of Early Melbourne/Volume 1/Chapter 28
CHAPTER XXVIII. REMARKABLE SUPREME COURT
TRIALS—CONTINUED.
SYNOPSIS—Action against a Crown lands Commissioner, Sprot v. Fyans.—William Dobson, Murder on Board the "Kestrel."- - George Brady, Convicted op Robbery. —Murder op Mr. A. Beveridge, Junr—Libel, Cavenagh v. Boursiquot.— "An Ode to an Esquire."—Murder in Gippsland ; Healey, alias "Pretty Boy," Sentenced to Death. —Moor v. Kerr, First Libel Action against the "Argus."—Bribe offered to Crown Prosecutor.—A " Pentonvillian " Murderer.—Moor v. Kerr, Second Libel Action against the " Argus."—St. John v. Fawkner, Libel.—Robbery of the Warrnambool Mail. — O'Shanassy v. Johnstone, Assault on the Racecourse.—Devlin and Jones, Robbing the Portland Mail.—Desailly v. William P, Horsewhipping. Moor v. Wilson and another, Third Libel Action against the "Argus."—Wife Murder at Mount Rouse. —Two Unavenged Murders.
ACTION AGAINST A CROWN LANDS COMMISSIONER.—14TH AUGUST, 1845.
Sprot v. Fyans. fEFORE Judge Therry and a special jury. The declaration contained tyvo counts ; damages laid at £ 2 0 0 0 . Plea, the general issue. Counsel for plaintiff, Messrs. Cunninghame and Williams; ) for the defendant, Messrs. Croke and Barry. T h e complainant yvas Mr. Alexander Sprot, a settler in the Portland Bay district, and the defendant Captain Foster Fyans, Commissioner of Crown Lands for the same circuit. In November, 1841, a Mr. Muston had a number of sheep and cattle on a station at Muston's Creek, which he sold to a Mr. Osbrey. T h e sheep numbered 500, the cattle 50, and part of the run, as agreed upon, was to be given in. In 1842, Osbrey obtained a depasturing license for the slice of land that went with his purchase, and a Mr. Charles Payne purchased the residue of the run. W h e n Payne got into possession, he complained to the Crown Lands Commissioner of certain encroachments of the other, and Osbrey received a letter from the Commissioner intimating that he had no right to any part of the run, that Payne was entitled to the whole, and that he should clear out. A fortnight after a peremptory notice to quit was given, and Osbrey accordingly vacated the place, when Payne's overseer took possession of the empty hut and made things comfortable there. Matters so remained for some months, yvhen Fyans, in the course of an official visitation, called at the place, and, from personal observation, satisfied himself that Osbrey was the rightful owner. H e accordingly gave him a certificate authorising the issue of a depasturing license to him. Osbrey remained in possession until January, 1843, when he sold to Sprot, and shortly after the latter went into occupation. Payne yvent to yvork again with Fyans—and so effectually, too, that Fyans placed him once more in possession and Sprot had to decamp. This trial lasted five days, and completely fagged everyone connected with it. At length a three-fourths verdict was taken, by which damages were assessed at £ 2 0 0 . S o m e points of law were reserved, and subsequently a new trial was moved for upon seventeen different grounds. T h e matter did not, hoyvever, proceed further, as a compromise yvas effected. Sprot having gained a verdict, and thereby established the principle he was fighting for relinquished the £ 2 0 0 . T h e Crown afterwards paid the defendant's costs. A BUSH MURDER.—20TH JANUARY, 1846.
Two men, named Thomas Were and Thomas Simpson, were together at Buninyong on the 28th November, 1845. Simpson was the owner of a mare and foal. T h e m e n went away in company, and
on the 4th December the dead body of Simpson was found in the bush, with the skull smashed in, 
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pointed toyvards Were, w h o yvas after m u c h trouble apprehended by a trooper, and the murdered man's mare and foal found yvith him. H e was accordingly tried for wilful murder and defended by Mr. Stayvell. After the jury had retired to consider their verdict, one of them (a Mr. George Cooper, a hairdresser in Elizabeth Street), declared it yvould be against his conscience to convict in any case where death was the penalty. After some delay and barneying in the jury room, a compromise was agreed upon, by yvhich the scrupulous barber was mollified, and the jury returned a verdict of "Guilty," "with a strong recommendation to mercy." The prisoner yvas condemned to be hanged, but his life yvas notforfeited,not because of the uncalled-for " recommendation," but for the reason referred to in connection yvith other capital trials. H e was transported for life, and had been originally a convict from England to V a n Diemen's Land. Horsestealing had got him into trouble there, and it was his yveakness for horse-flesh (old and young) that prompted him to slay Simpson. MURDER ON THE HIGH SEAS.—26TH JANUARY, 1846.
William Dobson was indicted "for having on the 10th November, 1845, on board the ship 'Kestrel,' on the high seas, near the coast of Balli, in the Indian Ocean, so wounded a Lascar seaman, named Bucksheer, as caused him 'to languish, and languishing live on'until the 27th November yvhen he died at sea near the coast of N e w South Wales." A second count charged him yvith " murdering by various assaults," whereby a certain mortal disease, from which Bucksheer was suffering, was accelerated. Counsel for the Crown, Mr. Croke ;forthe prisoner, Messrs. Barry and Sidney Stephen. Both the captain and mate of the vessel yvere committed for trial to the Criminal Sessions. T h e "Kestrel" arrived in Hobson's Bay on the 5th December, 1845, with Robert North Bauvais as commander, and William Dobson (the prisoner) as mate. She shipped a number of Lascars, as part of a crew, at Singapore, whence she sailed for H o n g Kong, and thence, via Manilla, to Melbourne. A s a rule, Lascar seamen are treated to a good deal of knocking about, and even knocking d o w n ; and the " Kestrel" rule, so far from being an exception, was exceptional in its severity. Captain Bauvais had some twinges of humanity, but, if the evidence adduced at the trial yvas credible, the prisoner had none. Rough and ready in his treatment of the hands under his control, he appeared to have selected Bucksheer as the subject of special inflictions. T h e dead m a n had at an early period of the voyage contracted a disease in the legs and face, for which the prisoner yvould make no alloyvance, but exacted as m u c h yvork as possible from him, so that when the poor yvretch fell sick his task-master thrashed him. It yvas proved that yvhen he yvas physically unable to work the Serang (the Lascar boatsyvain) yvas ordered to put him to the winch. Prisoner would ropes-end and strike him with hisfist,and when the sick m a n stammered forth, " O h 1 m e beg your pardon, sar," the answer yvas to be hammered again. T h e Serang, by command, gave him twelve strokes with a thick rope; and the prisoner officiated asflagellatorhimself, yvith a knotted rope. T h e prisoner in cold weather amused himself by having the Lascar crew stripped and scrubbed in the scuppers. A yvitness deposed that "the mate flogged him fore and aft, and from stem to stern." Deceased's legs got so sore that they had to be bandaged in tar and canvas, and began to rot. Still he yvas kept at yvork, and yvhen he had literally " not a leg to stand on," he was cuffed and kicked, until at last he was found dead in the coal hole. There were sixteen Lascars on board, and when asked by the Serang for medicine for them the captain would serve hog's lard and bluestone. T h e defence was an allegation that the affair had been got up through design, and yvas simply a conspiracy amongst some of the ship's hands and others to further purposes of their own. It was declared that, so far from the prisoner being cruel, he yvas the reverse, as was evidenced by his having m a d e a pair of shoes for deceased, to w h o m he had been kind. His putting him to work at the yvinch yvas through kindness, as it would improve his health. Several witnesses yvere called, including Drs. Sanford and Howitt, both of w h o m would, under the circumstances detailed, apply tar to Lascar sores; and some ship captains, to show that the Lascars were an indolent race, and required stirring up and scrubbing to m a k e them attend to their work, and keep them from sinking to a state of torpidity, to which in cold weather they were liable. T h e trial lasted two days, and the jury were locked up for a night. They returned a verdict of " Guilty of Manslaughter," with a recommendation to mercy. Remanded for sentence. On the 29th January the prisoner was again placed on his trial for an assault upon a Lascar named Mahomet, by striking him on the eye, in Hobson's Bay on the 6th December. A second count yvas for a c o m m o n assault. T h e defence was that it yvas only a push, and not a bloyv, and the prisoner yvas convicted. H e was then brought up for judgment, and sentenced to nine months' imprisonment for thefirstoffence, and two months'forthe assault. In passing sentence Judge Therry appeared to be m u c h impressed with the presumption that the prisoner must have been acting, if not by the captain's express orders, yet with his approval, for otherwise such acts as those complained of would have been prevented. S o m e other charges against the prisoner were withdrawn ; and next it yvas intimated that the Crown Prosecutor did not intend filing any bill against Captain Bauvais. This took the public m u c h by surprise, as the captain was believed to be m u c h the more culpable of the tyvo, and that Dobson had acted according to instructions. Still the public wondered and the public growled; but the Crown Prosecutor was the Grand Jury of the colony, and the oracle remained dumb. T h e prisoner, after passing three months in gaol, had the residue of the tyvo sentences remitted by the Executive, on the recommendation of the Judge. RUINED BY DISSIPATION.—20TH APRIL, 1846.
Perhaps in the records of the colony there is not a more remarkable example of the baleful effects of youthful dissipation than was disclosed by the trial of which a brief abstract is subjoined :— Amongst the recent arrivals was George Brady, a young m a n with a highly-cultivated intellect, and who had read for the Bar. H e was respectably connected, his father, Sir Nicholas Brady, having on two occasions filled the high office of Lord Mayor of Dublin, and this very year (1846) his uncle, the Right Honourable Maziere Brady, was Lord Chancellor of Ireland. With such prestige, there was a bright and promising career opening for the son, George; but he plunged into unrestrained vices, which brought him to degradation, andfinallylanded him a convicted felon in the c o m m o n gaol. H e used to stay at the boarding-house of a Mrs. Roache, and, after he exhausted whatever means he was possessed of, was not above doing occasional menial offices for the other lodgers. A M r . R. W . Sutton came to stay at the place, and Brady scraped acquaintance with him. Before long Sutton had reason to think that some person m a d e nocturnal raids on his pockets, for his money used to disappear. O n the evening of the 31st March (a race day) he returned h o m e yvith £ 4 3 in his purse, and retired to bed. T h e next morning he was awoke by some person stirring about in his room, and, on asking w h o was there, was told it was Brady, yvho was fetching in his boots. H e thought no more of the interruption until dressing, when he missed the money. Brady was suspected to be the thief, and the robbery was reported to the Chief-Constable. Brady yvas soon in the hands of the police, and a bank-note found on him was identified by Sutton. H e was brought before the Police Court, sent for trial to the Criminal Sessions, and convicted, when Judge A'Beckett sentenced him tofifteenmonths' imprisonment. After he had passed half the time in confinement the remainder was remitted by the Executive, and through the kindness of Mr. Croke (the Crown Prosecutor), the unfortunate young fellow was placed in funds sufficient to enable him to return to Dublin, and Port Phillip knew him no more. SLAYING WITH A POKER—15TH DECEMBER, 1846.
Jeremiah Connell was indicted for the murder of Edward Martin, at Buninyong, on the nth November, by striking him with a poker. T h e prisoner declared he remembered nothing whatever of the matter. There was a tavern at Buninyong known as Veitche's, and on the day of the occurrence some men yvere there noisy and drinking, yvhen a religious controversy was introduced. T h e prisoner was amongst them, and desired a quarrel with some one or other, declaring " that he would never be satisfied until he had the blood of an Orangeman on his soul." H e offered to fight several people, one of whom, named Procter, accepted the challenge, but the prisoner backed out, saying he could not think offightingwith a " paper man." A young fellow named Cameron at this threw off his coat, and, introducing himself as a " Scotchman and a Protestant," promised soon to let the prisoner see what a " paper m a n " could do. They had a couple of rounds, and a " knock-down" gave the Scotchman the worst of it. Martin, w h o (with his wife) was a servant at the inn, was passing at the time, and told the prisoner he was a coyvard for knocking the youngster d o w n ; but before a quarrel could possibly c o m m e n c e Martin's wife forced her husband away. This happened shortly after noon, and matters were quiet until about 6 p.m., yvhen Martin was sitting in the kitchen reading a book. T h e prisoner and Cameron suddenly entered, and the former, without saying a word, struck Martin on the head with a poker. Martin cried " O h !" and, turning to look round, the prisoner repeated the blow with such effect that Martin fell in a heap on the floor. A n alarm was raised, and Connell attempted to get ayvay, but was overpowered by some m e n who were drinking in the house, and w h o would have lynched him on the spot but for the barman. Martin yvas removed to his bed, from which he never rose. T h e prisoner, w h o yvas without Counsel, alleged intoxication and excitement as his defence. T h e jury found him "Guilty," and Judge A'Beckett, in a feeling and eloquent address, passed the extreme sentence of the law. T h e prisoner heard his d o o m with a calm indifference, and walked out of the dock the least affected person in a densely-crowded Court. MURDER OF MR. BEVERIDGE BY BLACKS.—25TH FEBRUARY, 1847.
One day toyvards the end of August, 1846, Melbourne yvas shocked by the intelligence that Mr. Andrew Beveridge, jun, a settler on the Lower Murray, had been murdered in cold blood by three aborigines, to several of w h o m he had shoyvn many acts of kindness. For some time it yvas doubtful yvhether any effective attempt could be m a d e to capture the murderers; but it yvas done, nevertheless, bravely and skilfully by Corporal William Johnston, of the Western Port Border Police, and troopers Dollard and Farrell. They yvere patrolling at the Murray on the 30th October; and obtained from M r Brierly, overseer for Captain Coghill, a description of the desperadoes. Johnston yvas yvell acquainted yvith the country surrounding the Beveridge Station, as well as yvith a feyv friendly natives of the neighbouring tribes. S o m e of these he sought, and arrived at the conviction that the criminals were three ferocious savages of great muscular power, w h o yvent tinder the respective designations of " Ptolemy," " Booby," and " Bullet-Eye." They yvere personages of recognized power and influence amongst the most formidable tribes on the Murray, and it occurred to Johnston that success yvould be owing to stratagem rather than to open force. T o do something, however, he m a d e up his mind; and this is hoyv he performed a feat in the capture of the desperadoes, yvhich, for adroitness, pluck and gallantry, has never been equalled, or even approached, in all the raids ever m a d e after bushrangers or murderers in the colony. Doffing their troopers' trappings and apparel, the three m e n procured changes of the regular bush toggery at a settler's, and were speedily transformed into thorough bush hands, with h u m p e d swags, and forth they went as if the most veritable cadging pilgrims that ever wandered along a "yvallaby track " Tyvo or three friendly natives proved trusty and valuable allies, and through their means it yvas ascertained that the trio so m u c h in request were then with a large party of blacks sojourning on the opposite side of the river. It was an axiom of Johnston's fortified by a bush experience of several years, that there yvas no more effectual m o d e of circumventing a blackfelloyv, of inveigling him into the cobweb of the "White Spider," than through the stomach, and he accordingly caused it to be given out by the friendly natives that the " yvallaby trackers " yvould, on a certain evening, treat all the blacks that might cross the river to a big feast of " bubble-bubble " — a mess offlour,sugar and yvater, to yvhich, in the early days of colonization, the Port Phillipian Aborigines were even more partial than to the squatters' rum or beef. T h e invitation was accepted; and Johnston procured a quantity of ingredients for the feast, among them being three choice pieces of rope not likely to give at thefirstpull. Johnston and his comrades were yvell armed, and had plenty of ammunition stowed away in a bark hut not far off, which they had m a d e their headquarters. The three pieces of rope were looped into a kind of short lasso, to be worked at close quarters, and each m a n was supplied yvith one, which he was to secrete in his jumper. It was further arranged that if the three murderers (who by this time, from the full descriptions obtained, could be easily identified) put in an appearance, a trooper should contrive to stand behind each of them at the feed, yvith rope ready, and when Johnston sung out the yvord " Three," toflythe lasso over his head, and, so noosed, each trooper should stick to his game, and for what followed depend on the chapter of accidents. Tyvo shepherds, borrowed from an adjacent station, yvere posted in a clump of dense scrub within a hundred yards of the supper ground, and, armed with drawn swords, on hearing the beginning of the melee, they were to rush out and m a k e as m u c h noise as they could. Aboutfive-and-thirtyof the wished-for strangers attended, and to Johnston's great satisfaction, "Ptolemy," "Booby" and " Bullet-Eye" were amongst them. They all eagerlysquatted round the platters overflowing with the thin, syveet paste, and each felloyv, with his pair of scooped black paws, lost no time in setting to work. T h e three principals happened to be nearly next to each other under a tree, and seemed quite proud of the attentions of the bushmen w h o stood like flunkies behind, but were rather considerably astonished when " Three" was ejaculated, and they found themselves not only roped, but half choked into the bargain. T h e troopers did their work cleverly, and immediately all the blackfelloyvs yvere on their feet, and a loud yelling and shaking of weapons followed. T h e three savages, though unable to join in the chorus of hoyvling, emitted deep convulsive grunts, and struggled like wild beasts; but the odds were desperately against them. A h u m a n being, though endowed with the strength of a Hercules, is heavily handicapped when a rope is twisted about his neck and the running knot in the hands of a vigorous antagonist. T h e sworded shepherds n o w appeared on the scene brandishing their flashing weapons and shouting with lungs of Boanergian strength. W h e n the menacing m o b of blackfellows beheld this unexpected reinforcement, they believed that others yvere following, and fleeing like a herd of scared kangaroos across the river, buried themselves in their native fastnesses. T h e prisoners were then hauled away (black in the face it would be superfluous to add), literally throttled, to the hut, and there tied up in supposed security. This happened on the 2nd November. About an hour after the tying-up, a blackfellow arrived at the hut, despatched from the runaway tribe as an emissary to the prisoners, charged to communicate to them the intelligence that it yvas intended to rescue them at daybreak. This fellow, however, probably in expectation of more "bubble-bubble," turned traitor to his trust, sought out Johnston, and conveyed an ambiguous warning in the phrase "to borac (not to) sleep that night." T h e hint was not thrown away on the experienced officer, yvho, thus forewarned, determined to be forearmed, and measures were taken to put the place in as effective a state of defence as possible. T h e party had about 120 rounds of ammunition, and yvere well supplied yvith rifles and pistols. These were loaded, the door secured, and some weak points in the frail bark fortress strengthened. B y this time a relative of the deceased, yvith three or four other white men, arrived, and threw in their lot with the police. T h e defending force thus consisted of eight individuals, and they spent an anxious time of it until about 3 a.m., when the painful suspense was broken by a volley of yelling, and instantaneously the hut was rushed as if by a horde of screaming devils. It yvas assaulted front and rear, in fact all round, byfiftyor sixty aboriginals, some of w h o m climbed up on the roof, and tried to tear off the bark covering. Johnston turned his attention to a chief of huge dimensions, and whilst in the act of reconnoitering, a spear perforated his jacket and within an inch of killing him. A Mr. Kirby fired in the direction whence the spear came, and a big blackfelloyv was afterwards found.dead at the place. Another assailant from aloft had forced his way half d o w n through the roof, when a bullet from Mr. G. S. Beveridge (brother to the murdered m a n ) brought him toppling dead. T h e besieged kept upfiringwherever they thought a ball was likely to tell, and the unlooked-for warm reception so frightened the besieging force, that their zeal slackened by degrees, and as the morning got well advanced they beat a retreat over the river, killing one of the tethered horses. In addition to the immediate assailants, some 200 blacks were planted in the scrub, ready to cut off the yvhite men, yvho, they expected, would abandon the place when they found it attacked. So m u c h was gleaned afterwards from a friendly native. T h e difficulty n o w was h o w to transmit the prisoners safely to Melbourne, through a country of hostile aborigines, in a secluded part ofthe bush, and 250 miles ayvay. A mounted express was at once sent on a 75 mile trip for assistance, and before the close of the next day Johnston was joined by nine mounted volunteers. N o time yvas lost ere making a start, and the party sustained no further molestation from the blacks. W h e n the more dangerous part of the interior had been traversed, the amateur quota of the escort returned home, leaving the three troopers and three captives to go their way. Each trooper took charge of a prisoner, until about twenty miles from Melbourne, when Johnston and Dollard, taking their prisoners with them, set out in search of a drinkable waterhole, leaving Farrell and "Ptolemy "to wait their return at an appointed place. W h e n "Ptolemy" found himself with only a single guard, he threw himself on the ground, pretended to be sick, and gave some pantomimic indications that he was going to die. Farrell dismounted, and is believed to have good-naturedly relaxed the cordage with which his prisoner was secured. The sickness very soon left "Ptolemy," for, watching an opportunity, he sprang suddenly to his feet, snatched the trooper's sword from its sheath and attacked him. The blackfellow not being an expert sabreur was unable to prevent Farrell grappling with him, though he wounded the trooper in the arm. They both came in a roll to the earth, Farrell holding on to the blackfelloyv, and "cooeeing" loudly for help. The water-seekers, hearing the loud shouting in the distance, hastily returned, to find the other two still engaged in what might have been a deadly struggle for either of them. However, it took a very little time to separate them, and replace "Ptolemy" in security. The remainder of the journey was accomplished without further mishap. The prisoners were lodged in gaol; and loud were the praises accorded to troopers Johnston, Dollard, and Farrell for the gallant manner in which, against formidable obstacles, they managed such an important capture.[1]
The trial took place before Judge A'Beckett, at the Supreme Court, on the 17th December, for murder. The prisoners were defended by Mr. Barry. The interpreters having declared their inability to make the prisoners understand the nature of the judicial ceremony about to be gone through, and after a conference between the Judge, the Crown Prosecutor, and the prisoners' Counsel, they were remanded until the next Criminal Sessions.
On the 25th February, 1847, the prisoners were again placed on their trial, and being asked to plead, remained silent. Mr. E. S. Parker, an Assistant Protector of Aborigines, interpreted the proceedings, "Ptolemy" and "Bullet-Eye" both saying, "They did not spear Massa Bebridge." "Booby" made a similar declaration, and pleas of not guilty were recorded. The next question was as to the mental capacity of the prisoners to exercise their right of challenge, and the nature of this privilege having been, with some difficulty, expounded, the prisoners replied, " Jury velly good," and the trial went on.
The Crown Prosecutor stated the case and called several witnesses, who, in addition to the circumstances already narrated, deposed to further particulars. The Beveridges occupied a squatting station at the Murray, and were the reverse of unkind to the aborigines, who were permitted to go and come about as they liked, and even to sleep in huts at the homestead. On the morning of the murder, Mr. Andrew Beveridge hearing some noise outside went to see what was the matter, and found himself suddenly confronted by several armed blackfellows, amongst whom Were the three prisoners. "Booby" held a "jagged" spear, "Ptolemy" a reed one, and the former on seeing Beveridge, sung out at him — "What for you yabber me cram jumbuck?" (Anglice, "why did you charge me with stealing your sheep?") when Beveridge replied, "You did;" and "Ptolemy" speared him in the breast. Beveridge turning round exclaimed, " I am murdered," and was returning in doors, when "Booby," following, speared him in the arm. A "jagged" spear was stuck six inches deep in his hip, and there were wounds on his temples and arms. He died before the morning. The identity of two of the prisoners was complete; but beyond being present, there was no proof of any overt act by "Bullet-Eye." After a careful summing up by the Judge, the jury, after three minutes' deliberation, returned a verdict of "Guilty" against "Ptolemy" and "Booby," and acquitted "Bullet-Eye," who was transferred to the care of the Black Protectorate. When asked what they had to say why sentence of death should not be passed, they declared that they had nothing to do with the killing of Mr. Beveridge; and that it was done by three blacks known as "Wellington," "Buonaparte," and "Henry."
Johnston was immediately promoted to a Sergeantcy, and pecuniarily rewarded. His comrades benefited in a lesser degree; and Dollard, after having charge of the Eastern Hill watchhouse, became a publican at Emerald Hill, and one of the minor celebrities of that once verdant locality. Of the future of Farrell I know not. Johnston retired from the Force, was a bush inn-keeper for some time, and after trying his luck in other pursuits, was berthed in a subordinate billet in the Crown Lands Department. Greek v. Greek, or "An Ode to an Esquire."—1st May, 1847.
Cavenagh v. Boursiquot.
This was an action for libel tried before Judge A'Beckett and a Special Jury of Twelve, the origin of which arose thus:— The plaintiff was Mr. George Cavenagh, the proprietor and editor of the 'Herald', and the defendant was Mr. George D'Arly Boursiquot, proprietor and editor of the 'Patriot'. The two "Georges" were not only newspaper rivals, but personal foes, and their mutual animosity was such that had they been the two proverbial Kilkenny cats, they would have welcomed the opportunity that gave them a chance of engaging in a tight-rope encounter similar to that which the traditional grimalkins, according to Irish folk-lore, gobbled up each other. In the month of January the Special Jury List was revised by the Melbourne Court of Petty Sessions, and the name of Cavenagh, a Special Juror for the preceding year, being inadvertently omitted by the compiler, an application for its restoration was made and granted. In those times the position of special juryman was believed to confer a badge of social distinction, and as Cavenagh was now "on," Boursiquot could not comprehend why he should be "off;" and "on" he sought to be placed accordingly. For this purpose he put in an application, which, to his infinite chagrin, and Cavenagh's intense satisfaction, the Justices rejected. A paragraph appeared in the Herald recording the occurrence, and though it was piquantly peppered, it was nothing more than one of the many small spiteful interchanges of ill-will weekly bandied betyveen the contemporaries, and altogether insufficient to justify the manner in which the Patriot retaliated. The magisterial meeting was held on the 17th, the Herald notice appeared the day following, and after taking a week not only to nurse his wrath, but so shape it that it would scorch, the Patriot of the 26th published a poetical squib that nigh drove Cavenagh to distraction. Clever, pungent, witty, and telling; every second word like the sting of a wasp — an epitome of the real or reputed antecedents and characteristics of Cavenagh—it gibbetted him after a fashion he never forgot. It was not written by Boursiquot, but was the effusion of a guerilla rhymester named Hammond, and headed "An Ode to an Esquire." It will be seen from the following specimen extract that a more personal composition has hardly ever appeared in print:—
"His coward heart with venomed malice swells,
While rancid envy festers in its cells.
His brutal coarseness wakes th'indignant flush,
By manners fit to make St. Giles's blush—
Then turns apostate after he has hurled
His Dens' Theology against the world."
Shocking Murder in Gippsland.—12th October, 1847.
John Healey, alias "Pretty Boy," James Francis, and George Savage were indicted for the wilful murder of James Ritchie, at Tarraville, in Gippsland, on the 27th May, viz, Healey as principal, and the others as aiders and abettors. T h efirst-namedwas defended by Mr. Stayvell, and the others by Mr. Sidney Stephen. About half-past seven o'clock on the morning in question Henry Sherwin, a resident of Tarraville, noticed blood marks and signs of dragging on the roadyvay. O n looking over a fence he perceived the dead body of a man, and he forthyvith repaired to a tavern known as the Royal Hotel, and informed the landlord of the circumstances. It was not more than 200 yards from where the corpse lay, and Neilson, the landlord, Shenvin, and two or three other persons, recognized in the dead m a n one James Ritchie, yvho was well known to them. T h e throat was cut, and the head battered, whilst the dog of the deceased was dead in his arms, the creature's throat gashed in a horrible way. Ritchie's coat, saturated yvith blood, was thrown beside him, seemingly as if drayvn over his head, with its pockets turned inside out. During these revelations Francis and Savage joined the group, and actually assisted in lifting the body on to a cart. It soon transpired that the prisoners and the deceased had been seen more than once drinking together on the preceding day. Early in the afternoon they were at a public-house kept by one Fitchett. Ritchie was drunk when they separated; he yvent his way, and the others m a d e for the Royal. Later in the evening they again turned up at the latter place, where they resumed their drinking, and were quite jolly over the rum bottle until about nine o'clock, when all save Ritchie left. H e soon after folloyyed, but subsequently returning, asked to be supplied yvith rum, yvhich yvas given to him in a lemonade bottle labelled "J. M . Chisholm." With this he left, and nothing yvas seen of him there again. About one o'clock next morning Healey knocked up the hotel people, and purchased a bottle of rum and a loaf of bread, yvith yvhich he went ayvay. It yvas noticed at the time that when the bar door yvas opened he did not enter, but standing some distance off, and beyond the reflection of the lamp-light, called out for the supplies, yvhich yvere taken outside and handed to him. T h e discovery of the murder caused m u c h consternation in the small township, and Chief-Constable Cornelius O'Sullivan arrested Healey at the house of H a n n a h Wilson, a person of more than doubtful reputation. Francis and Savage were also arrested, and the three committed by Mr. Tyers for trial in Melbourne.
It was shoyvn that the four m e n had been knocking about the toyvnship together, drinking, and that they consorted occasionally with tyvo or three disreputable w o m e n . T h e publican, Fitchett, deposed to having once heard Healey declare " he would serve out Ritchie because he had befriended a female relative of Healey's, w h o had been ill-treated by her husband." Fanny Hughes testified to more than once hearing Healey say he would take Ritchie's life. O n the evening of the 26th M a y she saw them all drinking at the forge of a Mr. " T o m the Tinker," the village blacksmith, where they played cards for grog. Healey was so drunk that he went to bed there, and did not leave till about ten o'clock, after the others had gone. She let him out and he was hardly able to walk. John Maynor proved to having heard a cry or scream from the direction of Neilson's paddock after nine o'clock on the night before the finding of the body.
Michael Bradly, an acquaintance and drinking mate of the prisoners, yvho was let into the Alberton watchhouse whilst Healey was detained there, evidently to trap him, detailed a conversation which passed between them one night. They spoke from cell to cell, and Healey, referring to the murder, said " I'm guilty, and willing to die for it sooner than be in the state I'm in." This viva voce confession was corroborated by a constable placed in a favourable position to hear the dialogue. Hannah Wilson (under a commitment for harboring him, possibly a legal ruse to secure her evidence), yvas next brought up on a writ of habeas, and her testimony admitted as that of an approver. She declared that about eleven o'clock on the night of the murder, Healey visited her house, and some time after she accompanied him to Neilson's Hotel to procure some rum. After returning they commenced drinking, and he showed her a purse and a clasp-knife he had. H e remained all the night, which he passed in a restless and sleepless state, and when asked what was the matter replied that "the horrors" were on him. This witness swore that about a week previously she had killed a goose with the axe found on the premises. A written statement m a d e by Healey to Mr. Tyers was put in, but the only evidence in it affecting Healey was his admission that he had left at Wilson's a purse, produced, which corresponded in description with one seen in Ritchie's possession when alive. Healey also declared that a sum of money contained in the purse was some he was keeping for his aunt; but the amount and appearance of the bank notes, tallied in some respects with money said to belong to Ritchie. Evidence yvas also given of conversations held by Healey with several persons during his incarceration, in yvhich, though he denied any implication in the actual murder, he confessed to knowing a good deal about it, and sought to cast suspicion upon persons not in custody. In the course of the trial strange disclosures yvere m a d e as to the social and moral condition of the community at Tarraville. There yvere tyvo public-houses there, open day and night, and all Sunday as well. A clergyman of any religious denomination yvas not knoyvn in the township. Bacchus was the idol around w h o m they all, m e n and yvomen, staggered, and the worship of that god was almost incessantly kept up at the two grog temples, so that betyveen drunkenness, lewdness, and quarrelling, the place was the reverse of an Elysium; and the Judge protested that if only one half of what they had heard could be believed it yvas a perfect Pandemonium. Healey was found guilty, and Francis and Savage acquitted, for there was nothing beyond a very strong suspicion against them. T h e conduct of these two felloyvs during their tyvo days in the dock, yvas characterized by so m u c h shameful levity, that it yvas almost a pity to turn them loose without some punishment. They grinned, grimaced, and horse-laughed at intervals : and during recitals that shocked every decent person in Court, the scoundrels rubbed their hands gleefully, and gazed around in such a villainously leering manner as created an intense feeling of disgust. O n being asked yvhat he had to say yvhy sentence of death should not be passed on him, Healey exclaimed: " All I have to say in the presence of the Almighty God, I a m innocent of the crime, and I am willing to die for m y innocence. That is what I said fromfirstto last." Judge A'Beckett pronounced the last sentence of the law in an address yvhich made a deep impression. T h e general feeling was that, though Healey was convicted rightfully, the other two had also been in the murder with him ; and that, though the jury could not have acted other than they did, somehow or other the ends of justice were frustrated. POISONING BY A CHEMIST'S ASSISTANT.—15TH OCTOBER, 1847.
John Hoyvard was placed at the bar charged with the murder of Julia Smallmon, at Melbourne, on the 2nd October, by the administration of a large dose of concentrated oil of bitter almonds, two drachms of yvhich he " put into, mixed, and mingled " with a certain syrup of squills, which she swallowed, and from the effects of which she " grew mortally sick in body, and died." T h e prisoner was defended by Mr. Barry. O n the day named in the information, Mrs. Julia Smallmon sent a friend, Mrs. Julia Davenport, to a druggist's shop in Collins Street East, knoyvn as Dr. Wilmot's, to procure something to cure her. This messenger asked for some oil of sweet almonds in syrup of mulberry. Having partaken of some, Mrs. Smallmon declared she was poisoned, and begged that none of it should be given to any of her children. Dr. W . H . Campbell yvas at once summoned, and applied the usual remedies, but death ensued in about an hour and a half. T h e bottle had been taken back to the druggist's and shown to the prisoner, who, smelling it, said he had given what had been asked for, and could not change it. Mr. John Hood, another druggist, said that Davenport hadfirstcalled at his shop before going to Wilmot's. She asked for oil of syveet almonds in mulberry syrup, but was not served there, as the oil in stock yvas rancid. She called afterwards, and, telling what had happened, showed him a bottle, the contents of yvhich he tasted, and believed to be the essential oil of almonds, four drops of which he considered sufficient to kill a m a n ; two drops yvere known to kill a dog. T h e taste and smell should be a test in guiding a person giving it, though a person affected yvith influenza or kindred complaint might not easily detect the smell. Dr. Wilmot, the proprietor of the establishment, testified to the prisoner being in his employ as a dispenser. H e came to him from Dr. Thomas, and he had every confidence in him. The last witness examined for the Crown was Dr. Campbell; and the defence set up was that it was a misadventure—a pure accident—a simple mischance. It was submitted that the jury could not return a verdict against the prisoner, unless satisfied that the act had been occasioned by a culpable disregard of human life—gross unskilfulness, or wilful negligence. Besides, no post-mortem had been held, which should have been, so as to account for death beyond any reasonable doubt. Dr. Thomas deposed that the prisoner had originally come to him as groom and butler, but, hearing that he had been in a dispensary in England, he was promoted to the charge of the surgery. H e yvas competent and trustworthy. T h e jury, after twenty minutes' deliberation, brought in a verdict of " Manslaughter." The Croyvn Prosecutor said he knew a good deal about the prisoner, and a better conducted m a n there could not be. The prisoner yvas remanded for sentence. T h e case yvas called on for judgment on the 18th, yvhen his Honor Judge A'Beckett inflicted afineof forty shillings. FIRST LIBEL ACTION AGAINST THE "ARGUS"—14TH MARCH, 1848.
Moor v. Kerr. There never yvas a cause tried before the Supreme Court yvhich excited more public interest than this, and most persons looked for the result yvith some degree of expectation. T h e plaintiff yvas Mr. Henry Moor, twice Mayor of Melbourne, once very popular; and the defendant yvas Mr. William Kerr, equally well known as the proprietor and Editor of the Melbourne Argus. T h e trial took place before Judge A'Beckett and a Special Jury of Twelve. Messrs. Williams and Stawell yvere Counsel for the plaintiff; Messrs. Pohlman and Stephen for defendant. In the course of the jury panel Mr. George Cavenagh answered, but yvas challenged by the defendant, because he was the Editor and proprietor of the Port Phillip Herald, not only a rival newspaper, but ahvays at war with the Argus, personally and editorially. After some legal arguments, Alderman Bell and Mr. Dalmahoy Campbell were sworn as triers, to determine the issue whether Cavenagh stood indifferent between the parties in the suit. Cavenagh yvas sworn, and admitted having expressed opinions upon the merits of the case; but he could not say that his mind was made up, and he did not knoyv anything of the evidence to be adduced. H e certainly had formed a very decided opinion as to the party who ought to succeed. After a few remarks from the Judge, the triers found that Mr. Cavenagh did not stand indifferent betyveen the parties. So he was put by. Mr. Skene Craig, a merchant, was challenged by the plaintiff for a similar reason, and a similar process of testing yvas resorted to. H e admitted the expression of an opinion on the subject, but he put the case hypothetically. The triers declared him to be indifferent. Mr. John Bullen, a member of the City Council, yvas objected to by the defendant, and acknowledged that he had jocularly remarked to the defendant that, if on the jury, he should find against him. Objection disallowed. Mr. D. S. Campbell was next challenged, and informed the Court that it was his intention, if on the jury, to appeal to the Judge to strike him out, " because he, and all connected yvith him, had been so repeatedly libelled by the Argus that it yvas not in human nature that he could go into the box and find an unprejudiced verdict." H e was declared " not indifferent," and shelved. T h e next impeachment was as regarded Mr. Ebden, M . L . C , yvho stated that he had expressed opinions about the defendant, but it yvas only private spleen that prompted the course now taken. Mr. Ebden was pronounced indifferent. The pleas yvere the general issue, and a special plea of justification. T h e statement for the plaintiff disclosed that the parties had been for years connected with separate Political, Municipal, and National cliques, and yvere unfriendly disposed to each other. Moor had already been Mayor, and Kerr wanted to be; but the other thwarted him in his desire; and took an opposing side at the November Municipal Elections, the pivot upon yvhich the Mayoralty annually turned. Moor yvas a solicitor in large and lucrative practice, and professed to be a staunch Episcopalian, whilst Kerr lived in a continuous state of partial impecuniosity, and was an unflinching Presbyterian. T h e Episcopalian Bishop arrived in Melbourne in January, and shortly after it was announced that he had appointed Moor his Chancellor of the Diocese. This yvas a chance which Kerr was not disposed to let slip unutilised, and accordingly one morning during the month of February an issue of the Argus appeared with the following paragraph, yvhich constituted the libel complained o f : — " T h e English C h u r c h — H e r Majesty's Letters Patent, ordaining Melbourne to be a City, and appointing the Right Rev. Dr. PerryfirstLord Bishop of this Diocese, which were missing when the time was appointed for the installation of the Bishop, have at length turned up, and were formally read on Sunday last at St. Peter's Church, Mr. Councillor M o o r officiating as Chancellor. T h e ceremony of installation is now complete, and the Bishop of Melbourne m a y be considered as fully in possession of his Bishopric. W e confess ourselves a little surprised at bis Lordship's choice of a Chancellor for his Diocese. With our view of Bishop Perry's character, vve would quite as soon have expected to hear of Mr. M o o r receiving a similar appointment under Mr. Geoghegan when he gets his expected mitre; and sure w e are that he was better fitted for a Father Confessor for the Eagle, or Mother Scotts establishment, than to hold office in a Christian Church." Proof of the proprietorship and publication of the paper was presented, and several witnesses called to depose to the effect of the innuendoes complained of, and the imputations conveyed by the libel, viz, " that such yvas the immorality of the defendant as tofithim moreforan office-holder in houses of infamy, to yvit, the Eagle, and Mother Scott's, than in the church of a Christian denomination." A paragraph which appeared in a subsequent number of the Argus, yvas put in in aggravation. Several nonsuit points were raised, but the Judge decided to send the case to the jury, and after Counsel had been heard for the defence, it yvas proposed to examine the Chief-Constable, against which it was contended that the plea of justification precluded the adoption of such a course. T h e Court ruled that only evidence as to general repute and character was admissible, as no specific instances had been set out in the record. T h e Judge s u m m e d up, the jury retired, and after an absence of some length it yvas announced that they could not agree to a verdict. They were finally despatched, under the charge of bailiffs, to the Prince of Wales Hotel, in Little Flinders Street, yvhere they remained in conclave until midnight, whence they were escorted to the Judge's residence in East Collins Street, and received by His Honor when the foreman intimated that they were unanimous in finding for the plaintiff, but differed as to the amount of damages. Ten had agreed to £ 2 5 0 , and a three-fourths verdict for that s u m was received and the jury discharged. The Right R e v Dr. Perry yvho had been subpoenaed as a witness for the defence, was in Court all the time of the trial, but yvas not called. A motion yvas subsequently m a d e to set aside the verdict upon various technical grounds. Judgment was reserved, but ultimately given for discharge of the rule nisi, and the verdict was alloyved to stand. The matter was fought out to the last, and even after the issue of execution it was sought to annul the writ by various pretexts, all of yvhich failed. T h e judgment was in the end satisfied, and it yvas said that Mr. Moor presented the net proceeds to the building fund of St. James's Schoolhouse. In correction of a historical mistake it m a y be stated as a fact that Mr. Henry Moor was never Chancellor of the Church of England. H e was thefirstRegistrar; and the Chancellorship was in the first instance conferred upon the once yvell-knoyvn and m u c h esteemed, Mr. C. J. Griffith. OFFERING A BRIBE TO A CROWN PROSECUTOR.—15TH MARCH, 1848.
Michael Ryan pleaded " Not Guilty " to an indictment charging him with having on the 7th March, delivered a letter containing a £ 5 note to James Croke, Esq, H e r Majesty's Crown Prosecutor, that the latter might use his influence with the Licensing Magistrates of Melbourne to obtain a publican's license for Ryan, " to the disgrace of the said James Croke, the evil example of others," etc, etc. T h e information further alleged that the defendant did present a petition for a license to the Licensing Bench; and further, "that the said James Croke yvas the duly authorised officer to prosecute all crimes, offences, and misdemeanours," etc, etc. Mr. Barry conducted the prosecution, and the defendant yvas not represented by Counsel. O n the day referred to Mr. Croke received a letter containing a £ 5 note, intimating that the writer having a friend willing to advance some cash to enable him to start in business, he wished Mr. Croke to put in a good word for him, in the way towards getting him a publican's license. There was not a word in the letter about the valuable " flimsy." T h e m o m e n t he had finished reading, Croke rushed to the kitchen, where his correspondent yvas waiting an answer; and the latter, seeing fire and fury glaring from the eyes of the irate old lawyer, murmured out in piteous tones, "Oh, pray sir, do forgive m e ! I did not know I was offering you an insult. Oh, Mr. Croke, for God's sake remember I have a large family, and you will ruin the whole of us if you take any steps against m e 1" Croke was in such a rage as to be unable to speak, and heflungthe letter and its enclosure into the yard, yvhen Ryan mastered sufficient presence of mind to pick them up and run away. Croke set off forthyvith to the Police Office, and instituted criminal proceedings, yvhich eventuated in the runayvay's committal for trial at the Criminal Sessions. T h e only defence set up was that neither insult nor bribery was intended. Ryan had been knoyvn for some time to Croke, yvho had more than once done him a kind turn, and it yvas as a recognition of such, rather than through any corrupt motive, that a present, and not a bribe, had been offered. T h e jury returned a verdict of "Guilty," and Mr. Croke, addressing the Court, intimated that though as Crown Prosecutor he had through a sense of duty brought the defendant to justice, it yvas neither his duty nor his wish to urge a severe sentence. Ryan yvas sentenced to a fine of £ 1 5 , and imprisonment until payment. T h e penalty was at once paid, and the released Ryan departed amidst a large retinue of friends. T h e curious incident of this case yvas the selection of the official to be operated upon. Ryan had been for years, a Melbourne watchhouse-keeper, and must have knoyvn that £ 5 passed to other hands than Croke's yvould have secured him what he yvas in quest of; for it was a matter of notoriety at the time that the most influential of the Licensing Magistrates "took tip," as it was styled, from everyone who gave it; and such a largess as the one so indignantly cast forth by the Crown Prosecutor, yvould have secured any licensing favour that could possibly be asked. A " PENTONVILLIAIN " MURDERER.—I6TH JUNE, 1848.
About 5 o'clock on the evening of the 20th April, Mr. Walter Butler, a resident of Williamstown, was returning h o m e from Melbourne, and in a holloyv at Stoney Creek, two miles from the then Saltwater River punt, and about four miles from Williamstown, he discovered the dead body of a boy lying near some scrub, with the head half cut off. Constables Sugden and Brodie lost no time in endeavouring to track the murderer; for that a foul murder had been committed there could be little doubt. Sugden took Melbourne as his searching ground, whilst Brodie rode away to Stoney Creek, yvhere he sayv approaching, a Williamstoyvn constable and two other persons, bearing the dead body on a door. They took it to the Punt Lnn, and on being searched, there was found in one of the pockets of the deceased a letter enclosing £ 2 , purporting to have been written by his brother in Launceston, and requesting him to go there. This led to a knowledge that the deceased was one Matthew Lucke, a Pentonville " exile," yvho had arrived in the colony by the " Marion." F r o m enquiries m a d e by the Toyvn police it was ascertained that the deceased and another "exile" boy—Augustus Dauncey—yvere on terms of intimacy, and frequently together. Dauncey was hunted up at a lodging-house, kept by a Mr. John Stanway, in Little Flinders Street. H e was then arrested on suspicion of the murder. A n inquest was held next day at the Saltwater River, and the evidence against the prisoner yvas yvholly circumstantial. H e and the deceased kept company on the day prior to the murder, and occupied the same bed that night. Next morning they started together from Melbourne to walk to Williamstown, and crossed by the Saltwater punt. T h e puntman, afterwards noticing Dauncey alone, asked, whilst towing him over the river, what had become of his companion, and Dauncey carelessly answered, " I left him behind at Williamstoyvn." After the prisoner's arrest his clothes yvere examined, when some blood stains yvere found on his trousers, and two of the bone buttons of his vest showed blood marks. In a pocket he had a black-handled, one-bladed pocket-knife, the blade of yvhich seemed as if recently rubbed or scoured with gravel or sand. T h e principal wounds on deceased were such as could be inflicted yvith a knife. A frightful gash reached from ear to ear, and on close examination appeared as if done by three several cuts or draws. T h e head presented contusions, as if deceased had been felled before the throat cutting, or had b u m p e d his head against a stone or stump whilst being slaughtered. A verdict of "Wilful Murder " was returned, and the prisoner committed for trial. O n the 17th M a y Dauncey was indicted at the Criminal Sessions, and yvhen called on to plead, said he could not do so unless he had Counsel. T h e Judge (A'Beckett) ruled that he had no power to assign Counsel to prisoners. If Counsel yvere present it would be for him to say whether he would appear in the case. T h e Croyvn Prosecutor promised that the prisoner should be treated as fairly as if he had Counsel. The Judge: "No doubt. For himself, he should take care that every justice was done the accused."
T h e prisoner yvould then apply for a postponement until the next Criminal Sitting, and by that time he hoped to be able to procure Counsel.
The Crown Prosecutor had no objection, and the prisoner was remanded.
Sympathy took an unusual turn for the prisoner in the gaol. T h e other confinees initiated a movement to subscribe funds for his defence; but the effort was unavailing, as the gross proceeds amounted to only £ 1 12s. O n the 16th June the prisoner was again placed on his trial, and yvas undefended. T h e facts already narrated were established; the defence was simply a strong denial of guilt, and an emphatic assertion of innocence. Afterfiveminutes' deliberation, the jury found a verdict of " Guilty;" and, being asked what he had to say against the passing of sentence, the prisoner boldly reiterated his innocence.
The Judge sentenced the prisoner to death with the usual formula, expressed a strong hope that the prisoner's untimely fate would be a warning to any others of the " Exile " class, to which he listened without the slightest emotion, and, when the Judge had concluded, he exclaimed in a loud, unfaltering, and semidefiant voice, " I a m innocent! You, Judge and jury, m a y destroy m y body ; but neither of you can lay a touch on m y soul. I shall meet those w h o have given false evidence against m e in another place, and on another day, where, thank God, I shall see them punished."
Second Libel Action Against the Argus.—12th August, 1848.
Moor v. Kerr.
This was an action for libel, the defendant having published alleged libels against the plaintiff in the Melbourne Argus ofthe 17th, 24th, and 28th of March. T h e Pleas put in were—ist, " Not Guilty;" 2nd, Traversed the fact of being the editor of the Melbourne Argus; 3rd, Traversed that certain houses (the Eagle, and Scottish Hotels) in the declaration do not bear the application assigned; 4th, Traversed that he yvas defendant in the former action, Moor v. Kerr. T h e damages were laid at £ 1 5 0 0 . Counsel for plaintiff, Messrs. Williams and Stawell; for defendant, Mr. Barry. This case arose out of the previous action between the same parties, and the repeated attacks to yvhich the defendant was subjected by the Melbourne Argus. A special jury was struck with much less trouble than at the former trial, and Mr. Williams, in stating the plaintiff's case, read the several libels complained of. T h e first was an Argus leader printed three days after the delivery of the verdict in the former trial, and some idea of the style may be formed by a perusal of the following extract:—
" The relative position of the plaintiff and defendant as regards the subject matter of the action is not changed by this proceeding, excepting that the allegations of the libel, yvhich before rested solely upon the defendant's assertion, have now received
'—————— confirmation strong As proofs of Holy Writ'
from the plaintiff's shirking the question of truth. With his own declaration acknoyvledging himself charged with the promotion and encouragement of houses of bad repute, and with immorality of character, unfitting him for holding office in any Christian Church, he has not dared the vindication of his character. With a plea of justification on the record, and witnesses in abundance to support it, he has feared to face the truth. With every street, lane, and alley in the city resounding with the nauseous details of his brothel exploits, he has sought shelter in the refuge of a technicality. H e has got money, or rather an order for money, as his compensation, and w e envy him not, for at the poorest m o m e n t w e ever saw, we would not exchange positions yvith Mr. Moor for ten thousand times the amount of his verdict."
T o vary his retaliation the defendant had recourse to the muses, and by the aid of Erato, certainly not the most pure-minded of the Sisterhood, produced this lyric, which was introduced to the Argus readers
on the 24th March :— "THE RAKE'S DECISION.
"Fare well to lovely virtue, farewell to all that's good,
Since vice, they say, don't hurt you, and shall not if it would,
I'll be henceforth in fashion, I'll gratify myself—
The baser lusts of passion, I'll feed by means of pelf.
I will, in fact, be vicious, I'll practise all that's bad—
Drink, swear, and be ambitious, just like a jolly lad.
With harlots I will revel, but sleep at home at night,
I'll be in short a devil, dressed in a garb of white.
The 'Scottish' and the 'Eagle,' my patronage shall share,
My office makes it legal, to go and visit there;
I'll frolic with the lasses, and feast my carnal sight,
On the shameless work that passes, in a bawdy house at night.
I'll go the round of folly, while youth and vigour last,
'Tis time for melancholy, when both of these have past;
I'll be a jovial fellow, with this world ne'er be vex'd—
And when I'm getting mellow, I'll think about the next.
So now dear Pat, 'my honey,' your virtue may be best
But since I have your money — the dogs may have the rest;
If vice in future flourish, don't you presume to check it;
Virtue be yours to nourish, and vice leave to A'B———tt."
Calliope was next invoked for a change from Lyric to Heroic, ex gra. the following extract of an Argus epic on the 28th, headed "Vice versus Virtue," which constituted the Third libel:—
"Thus having prefaced, let me now point out
The wrongs we suffer, which I spoke about,
And nature dictates that our greatest wrong
Be first the subject of my feeble song.
This then, it is, and be it understood,
That men are punished here for doing good;
Virtue is blighted—vice of every sort,
Is all but pamper'd by the Church and Court,
Let men be rich, they must of course be good;
Let them be poor, they're trampled in the mud;
They may be upright, sober, chaste, and clean,
Industrious too, but, without money, mean;
This is the doctrine, this the truth I fear,
That's sought so much to be established here.
That these alone entitle men to sin—
'A face of brass,' and pockets lined with 'tin.'
'Tis wealth alone that can a license grant,
To sing at brothels, and at church to chaunt;
To pray for peace, and to encourage strife,
To keep a harlot, and to own a wife:
A man may be a rake, tussel a wench,
And yet a Justice, and adorn the Bench;
May be immoral, and yet be a Mayor
Without disgracing, too, the Civic chair.
Is this the issue of the famous trial?
Then down with virtue—banish self-denial."
the articles complained of, as also of the result of the previous trial, and the fact of the defendant in present and former action being the same person. Witnesses yvere called to prove the innuendoes, yvhich generally meant that M o o r yvas a m a n of immoral character, frequented immoral haunts, and was, therefore, unworthy of the public positions he filled. Mr, N . J. Sugden, Chief-Constable of Melbourne, deposed to the disorderly character of the Eagle Lnn and Scottish Hotel, both in Bourke Street, for which he had reported them several times to the Magistrates. O n e of them lost its night, and the other its general license, at the Annual Licensing Session. M r . John Curtis, reporter to the Argus in March, swore that he yvas utterly ignorant of the individuality of the Editor of the Argus. T h e cashier used to pay his salary ; his " copy " was given to the " devil" of the establishment; and for all he knew to the contrary the devil might be the Editor. H e might infer something of the editorship ; but absolute knowledge of it he had not. H e was scarcely an hour in the day in the Argus office; he corrected his o w n proofs, and frequently saw letters addressed to the Editor knocking about the place. Mr. W . E. H a m m o n d testified to Mr. Kerr being the Argus Editor; to witness's personal knowledge he exercised the functions of an Editor; he had received witness's contributions and said they should be inserted ; would swear as matter of fact that Kerr is the Editor of the Argus ; there is only one Editor to a small journal of limited means and unlimited partizanship; Mr. Kerr is the Editor; there is no sub-Editor; there is no inferior devil in the office; he is the arch-fiend himself (Laughter) and he ( H a m m o n d ) communicated yvith him as such. (Laughter). Captain G. W . Cole deposed that the references complained of in the several libels pointed to the plaintiff. O n being asked to read the libels, witness had some difficulty in getting through them in consequence of the peals of laughter by yvhich he yvas frequently interrupted. Mr. Barry moved for a non-suit, inasmuch as it had not been proved that the defendant, William Kerr, yvas the Editor of the newspaper called the Melbourne Argus, according to the course laid doyvn by the Act of Council, and on other technical grounds, but the Judge declined to stop the case. Mr. Barry having addressed the jury at m u c h length on behalf of the defendant, His H o n o r s u m m e d up. H e advised the jury to assess damages upon each count; but directed them to keep thefirstand fourth issues apart from the others. H e had no hesitation in saying they were libels. It was also said that the present action had reference to the preceding one, and had the appearance of a persecution, and that the jury were to be the hounds w h o yvere to run d o w n the defendant. If the jury entertained such a thought, they yvould then be justified in giving small damages. O f course the jury yvere not to be guided by him, but he gave it as his opinion that whatever is yvritten tending to bring a man into disrepute or ridicule, is, in law, a libel. It yvas pleaded by the defendant that M r . Moor's character stood so high that a libel could not affect him. It might as yvell be said that a person stands so high that every shaft might be letflyat him. It was also urged that the defendant had paid the s u m awarded on theformertrial, which meant, if it meant anything, that as he had paid his money before, he might noyv reiterate the charges, and take out his money's worth. Remarks had also been m a d e upon himself respecting the-course he had pursued, but no m a n sitting there as a Judge dare act as he was represented to have acted. It did not folloyv that a m a n had not had a fair trial if he had not shaped his defence according to the rules of the Court; and in vindication of the law, he (the Judge) declared (not of himself,forhe would not condescend to it), that the defendant had had a fair trial. His H o n o r read through the yvhole ofthe libels, commenting upon the purport of each, and strongly urged upon the jury a patient and conscientious consideration of the case. T h e jury retired to consider their verdict, but the foreman announced that there was no probability of their arriving at an unanimous verdict, although three-fourths had agreed upon giving a certain amount of damages, and asked His Honor to allow them to retire to an hotel for six hours, as there was not even a chair in the jury-room. Mr. Barry objected to this request, but His H o n o r granted permission. Mr. Barry, amidst a shout of laughter, proposed that the jury should retire to the Scottish or the Eagle. His Honor again stated to the jury the different counts, and re-consigning them to the care of a bailiff, they accordingly retired until ten minutes to nine o'clock, when a verdict was returnedforthe plaintiff of £ 5 0 0 on the first count, one shilling on the second, and one shilling on the third. As a postscript, it may be stated that the Argus turned upon the presiding Judge, and libelled him yvith such pertinacity that a rule to attach Kerr yvas granted in December, upon the 13th of yvhich month judgment yvas given on the arguments, making the order absolute, though suspending the warrant of commitment, which was never enforced. O n the same morning the Herald published an article yvith the intent to prejudice the decision; and upon Kerr bringing this act of contempt under the notice of the Judge, His Honor declared if it had happened during Sittings in Term, he should certainly have directed proceedings to be taken against the party so offending.
Charging a Government Officer with Bribery and Corruption.—8th November, 1848.
St. John v. Fawkner.
The issue of this case was awaited yvith extreme interest amongst all classes ot the community—both on account of the nature of the accusations, which were not only topics of toyvn talk, but c o m m o n belief in every place of public resort, and the relative positions of the parties to the suit. T h e complainant was Major St. John, once Police Magistrate of Melbourne, and now the Commissioner of Crown Landsforthe district of Bourke, and a member of the City Licensing Bench; whilst the defendant was Mr. John Pascoe Fayvkner, one ofthe oldest inhabitants, and about the best known individual in Port Phillip. T h e action, oneforlibel, arose out of the proceedings at a public meeting, held to petition the Queen for the removal of Mr. Latrobe from the Superintendency, at yvhich the defendant openly accused His Honor of conniving at the misfeasances of a certain Government official, w h o m he subsequently designated in writing as the plaintiff, and preferred half-a-dozen charges against him in a letter transmitted to the Superintendent, as yvell as published in some of the newspapers. The plaintiff now sought to vindicate his character before a Judge and Special Jury.
Mr. Barry, with Mr. Stayvell, was Counsel for the plaintiff, and the defendant was represented by Mr. Williams.
The pleadings yvere very voluminous; the declaration contained tyvo counts, i.e., (1) setting forth that defendant had in certain libellous publications falsely and maliciously accused the plaintiff of having committed divers acts of bribery and corruption in the performance of his duties as a Commissioner for the granting and the transfer of licenses for the occupation of Croyvn Lands; and (2) That the defendant had made similar charges against the plaintiff of malversation in his capacity of Licensing Magistrate for the City and District of Melbourne.
T o each count of the declaration the defendant put in several pleas of justification. H e admitted the authorship of the publication complained of, and set out the grounds upon which, in each case, he was prepared to justify.
The pleadings yvere opened by Mr. Stawell, and Mr. Barry stated the case in a very forcible and eloquent style, and asserting that, in the whole history of libel, there never was one so bad, so false, and so malignant as the one noyv before the Court. T o his mind the libeller was the leper of society, and such practices were calculated to sully the British name. As for the defence set up, it yvas a most impudent aggravation ofthe original offence. H e pronounced three ofthe principal pleas "as false as Hell," and the remainder were of the most frivolous description. The plaintiff was not a m a n of yvealth and possessions ; and having to maintain a large family, relied upon the appointment he held under the Government to enable him to keep the position in society he was entitled to ; and if permanently deprived of them by the foul slanders of the defendant, he yvould be irretrievably ruined. T h e defendant, on the other hand was childless, a person of m u c h wealth, and not distracted by the cares of public employments. T h e case was most unmistakably one which called for exemplary damages, for which the defendant looked with confidence to the jury as a means of replacing him in the estimation of the Executive—of clearing his character from false and malicious accusations, so that he might go back to his family with his peace of mind restored, and meet the public yvith his name unblemished. The publication being admitted, Mr. Williams opened the defendant's case. He did not deny that Fawkner's letter was libellous, and that he was bound to substantiate the pleas filed by the defendant. The latter had done only what he believed to have been his duty—not in gratification of any private or revengeful feeling, but purely for the public good. He acted only as he thought an upright man should do, and was prepared to justify his act.
Mr. John Bear, sen., of the firm of Bear and Son, cattle salesmen, deposed to having spoken to Major St. John about some cattle he had sold on a run in the Western Tier district, which he wished to have transferred to the purchaser. St. John objected that M'Cracken, owner of the sold cattle, never had a run there; the place was only held by some sawyers, and there never was a run there at all. Witness rejoined that as agent he had sold a run with cattle there, and unless the run was transferred, the sale would be void. St. John responded that he could not help it, but he would not give a transfer. Witness then said that he would, if it could be arranged, advise the party to pay any reasonable expenses, whereupon St. John brightened up and asked, "How much could they afford?" Witness answered, "That M'Cracken was a poor, industrious man, with a large family, but he yvould recommend him to pay a couple of guineas." Nothing further passed at this interview, beyond St. John saying to the witness, "Tell your son to come to me and I will define the boundaries." This occurred at the end of May or beginning of June, 1845, and though witness did not see any money paid to St. John, he believed it had been. He had acted as the agent of M'Cracken, whose cattle with right of pasturage he had sold to one Lalor, and on subsequently seeing the purchaser, he was informed that the run had been duly transferred by the Commissioner of Crown Lands, so he was satisfied.
Mr. John P. Bear gave evidence of having communicated with plaintiff in June, 1845, with reference to a run, and accompanied him to the place, when a sum of two guineas was paid to the plaintiff on account of Hugh M'Cracken. Had no recollection of paying the money on account of Lalor. This witness produced a cash book of the firm of Bear and Son, containing the following entry:— "18th June, 1845, paid Major St. John for assigning boundaries, £2 2s."
The plaintiff having testified to his holding the appointments of Commissioner of Crown Lands and Justice ofthe Peace, James Lalor swore to his getting a run in the Melbourne District in June, 1845, from the plaintiff, to whom he directed Mr. Bear to send a cow and calf, for which, however, he was subsequently paid by another cow and a cheque. On the 13th May he bought a station and some cattle from Bear, of which he got possession, and the license had been transferred to him.
Major Charles Newman deposed to being in occupation of a run at South Yarra, and towards the end of 1844, or commencement of 1845, the plaintiff called there and they went over the boundaries to settle them. Witness had a grey horse named "Ginger," which seemed to take the Major's fancy, and, accordingly, the steed was lent to him. Some months after, at St. John's request, another horse, known as "Jacky," was given to him, for which witness was to receive a filly in exchange, and a receipt was duly signed and delivered in consequence of the handsome manner in which plaintiff had acted about the run.
Mr. Lewis Clarke gave evidence to having, at the request of one Oliver, handed to Major St. John two sovereigns rolled up in a piece of paper, why or wherefore he knew not; but never gave the Major any money on his own account.
Thomas Bulman, a porter in a wine and spirit store, declared to having just before Christmas, 1847, delivered at the residence of Major St. John, in Brunswick Street, (now) Fitzroy,[2] a basket-full of champagne. He did so by direction of Mrs. Kavenagh, whose husband kept a public-house known as the Brian Boru. Mr. James Kavenagh, the landlord referred to, on the other hand, declared he had never authorised his wife to make any such champagne present, and offered to explain, but the Court rejected the proposed explanation as irrelevant. On cross-examination this witness admitted to his wife having sent a champagne Christmas-box to the wife of the Major; but witness was not at home on the day when this was done. Mr. Kavenagh's modee of giving his testimony was described as being strongly tinctured with non mi ricordo-ism. Mr. Gavin Ralston, a wine and spirit merchant, declared that Mrs. Kavenagh, of the Brian Boru, called at his place of business, bought and paid for a parcel of wine to be delivered at the residence of Major St. John, yvhich yvas accordingly done. Mrs. Kavenagh was next placed in the witness box, and admitted having ordered the wine at Ralston's to be sent as a complimentary gift to the Major; but it was purely a voluntary friendship offering, for no one had asked her to do so. Mr. Joseph C. Passmore, painter and paperhanger, afterwards the licensee of the Shakespeare Hotel, testified that in February, 1847, he obtained a transfer of license from Mr. M . J. Davies. About that time he used to do glazier workforMajor St. John to the extent of some thirty shillings per month, and did not remember giving any receipts in payment. H a d no knoyvledge of a receipt of his for £ 5 . There was an item of £ 1 5s. for ale in his books, marked "paid," but he knew nothing more about it. H a d previously sent some ale as a present to the Major, but could not say whether he ever got cash for it, though it yvas booked as settled. T h e present was m a d e without being asked for, or letting the Major know anything about it. Mr. Germain Nicholson, grocer, Collins Street, deposed, in substance, that, previous to the 28th June, 1848, he had several conversations with the plaintiff respecting the transfer for a license for Crown lands, for yvhich the consideration yvas to be pecuniary assistance by bill accommodation or otherwise. O n application being m a d e in the matter, the plaintiff said, " O h ! 'tis all right," and then asked witness to oblige him yvith the loan of some money, which he yvould secure by a lien upon stock he had. In reply as to the amount required, the Major said about £ 4 0 0 yvould do, and the witness rejoined that such a sum could not be spared. S o m e time after the parties again met, and yvitness asked the Major to sanction the transfer of old Craven's run, but was told it could not be thought of. In a subsequent conversation the Major intimated that a less s u m than previously mentioned would suffice for his then requirements, whereupon the yvitness suggested that if the two lots of land about which they had spoken were put together, he yvould then probably be prepared to accede to some pecuniary accommodation, and the Major at once answered, " I'll do it." A proposition yvas then m a d e for yvitness to give his acceptance for £ 2 5 0 , which he took some time to consider, and ultimately transmitted a written refusal. T h e Major, on seeing witness some time after, remarked that it did not matter, the run yvas still in his hands, and he could obtain the money he wanted elsewhere. A few days subsequently, on the parties meeting in the street, the Major declared that, if accommodated with the £ 4 0 0 , the license could be at once obtained. They again met on 28th June, when the Major thus accosted the yvitness: "Well, so you have been telling Johnny Fawkner that I wanted to get £ 4 0 0 from you;" to which yvitness replied that he had not spoken to Fawkner on the subject. Again, after this, Bloomfield (the City Chief-Constable) called upon the witness to say that "Major St. John wished to see him," but he refused, remarking that "the public might talk about it." H e had an objection to go to the Major's private residence; but, coming across him again in the street, he renewed the subject of the transfer of the run, yvhen St. John curtly replied : " It can't be done." T h e witness (who, it seems, had been acting for a third party) m a d e a further appeal to the Major, by saying: " Major, I know you have an open heart, and will do a poor m a n a service;" wmereat the Major laconically exclaimed : " Indeed I won't." H e furthermore declared that a less amount than £ 4 0 0 would do, but the witness answered he could not afford it, and the Major left, with this parting intimation : " If you'll do that for me, I'll do the otherforyou." O n cross-examination the witness admitted that on one occasion the plaintiff told him that M r . Latrobe had been consulted in the matter, and what was wanted in the run-transfer could not be done. H e also remembered it being said that the transfer and the loan yvere to be different transactions; and he yvas to have a lien to secure the money. Mr. D. C. McArthur, manager of the Bank of Australasia, was called to prove a conversation which the plaintiff had had with him about the discounting of a bill, in the course of which Nicholson's n a m e yvas mentioned. H e advised the plaintiff, if he wanted money, to raise it on his stock in the usual business way, through some of the Melbourne auctioneers, as a private transaction, for any dealing with Nicholson in the manner mentioned might give rise to suspicions. This closed the defendant's case, and several witnesses were produced to rebut some of the testimony given on the other side. O n e John Mooney was examined, with the intention of showing that the two guineas referred to by the witnesses Bear, was the result of a transaction arising out of some cattle dealing, in yvhich the plaintiff was concerned, and not, as represented, a gift or gratuity; and John James swore that, on the occasion referred to by Major N e w m a n , he accompanied St. John to settle the boundaries. Major N e w m a n entertained them in a very hospitable manner, and in the course of the festivities the Major asked N e w m a n if he would loan the horse "Ginger" to him, and the other Major replied: "Yes, if good care be taken of the animal." This " Ginger," according to the witness, was not worth £ 5 , for he was in very low condition—as thin as a wafer, his fore feet cracked, and altogether a wretched " screw." A s to the other animal, " Jack," he was even worse, and in his case it yvas a regular "swop," for St. John agreed to give afillyin exchange. N e w m a n seemed to be very yvell pleased with his bargain, but on the n t h November, 1845, w b e n he was asked to sign a document for the tyvo nags, he refused, until he yvas put in possession ot the filly. In submitting the case to the jury, Judge A'Beckett charged favourably for the plaintiff, and expressed an opinion that none of the charges had been satisfactorily substantiated. If the jury believed so, too, it yvould be their duty to find for the plaintiff, not in vindictive damages, but such an amount as would fairly meet the justice of the case. S o m e of the charges, if they amounted to anything, resolved themselves into the reception of presents, and could not yvell be called bribery, whatever else it might be. Should the jury think proper to return a verdict for the defendant, they must not only find in accordance with the facts proved, but they must be convinced that the charges so m a d e were m a d e for the public good. T h e jury retired, and, after some considerable delay, it yvas announced that there yvas no chance of any speedy agreement. They were consequently locked upforthe night, and on appearing in a crowded Court next morning, the foreman intimated that there was no possibility of a verdict, and the only alternative was to discharge them, yvhich yvas done accordingly. O n the following morning of the discharge, one of the newspapers announced upon apparent authority that the jury were of opinion that the 4th and 6th counts (the Bear and Nicholson cases) had been proved, and the question then was whether there should be a verdict for the plaintiff or defendant. Out of the twelve jurymen,fivewere forfindingfor Fayvkner, and seven for St. John, but only in nominal damages. So it ended where it began, and each party yvas saddled with his o w n costs. A portion of Fayvkner's expenses was afterwards reimbursed by a public subscription, leaving him so m u c h out of p>ocket as to make him never forget the legal conflict. St. John was, however, irrecoverably ruined, and never held office in the colony aftenvards. His friends talked loudlyfora time about his moving for a neyv trial, but nothing came of it. Time rolled on, but the Major never rose again to the surface, and his n a m e and peccadilloes vanished into oblivion. ROBBERY OF THE WARRNAMBOOL MAIL.—18th APRIL, 1849.
Felix Daley, Thomas Daley, and Daniel Byng were indicted for stealing several warrants or orders for the payment of various sums of money, the property of Joseph Coulstock, of Toyver Hill, near Belfast, on the 22nd February; a second count vesting the ownership in T h o m a s Denny and another. The prisoners were defended by Mr. Stayvell. O n the day mentioned T h o m a s M'Dermot, the mail-carrier between Warrnambool and Belfast, was riding yvith his mails towards the last-named toyvn about 8 o'clock in the evening, when he arrived at Cronin's public-house, some seven miles from Belfast. Passing onward he was thrown from his horse, and reappearing after the lapse of a couple of hours at the inn, gave his horse and mails to a m a n (supposed to be Byng) w h o was standing at the door; he then proceeded to the tap-room, yvhere he remained for nearly an hour. O n returning to the door, he could find no trace of mails, m a n nor horse, and off he went in search along the Port Fairy Road. H e came back to the house toyvards daybreak, and, to his surprise, found his horse safe and sound in the stable, with the mail bags strapped to the saddle, and in all outward appearance untampered with. So, mounting the horse, he proceeded without further delay to Belfast, and delivered the mails to Mr. Hutton, the postmaster. According to his statement, he was neither drunk nor sober yvhen he had the fall; but his version of the mishap, in his examination before the Police Court, was somewhat different. T h e postmaster, finding on inspection that the mail bags had been robbed, gave M'Dermot into custody, but he was subsequently released in the absence of any evidence to inculpate him, Cronin, the publican, on being questioned, stated that yvhen he heard of the disappearance of the mails, he yvent in search, and in a flat not far from his house, recovered the horse yvith yvhat he believed to be the mails intact (one large and tyvo small leather bags) fastened on the saddle, and, leading the animal back to his place, yvas preparing to start for Belfast yvhen the postman m a d e his appearance, and he handed over the animal and its belongings to him. T h e prisoners, T h o m a s Daley and Byng, yvere staying at the public-house, and yvere about there at the time ; but it yvas noticed that they yvere up and ayvay at a very early hour the next morning. This and other information subsequently procured led to the arrest of the three prisoners. In addition to the foregoing facts, it yvas proved that the day after the robbery Byng and Felix Daley m a d e some purchases in Belfast at Hovenden's store, for yvhich Daley paid by a £ 1 0 cheque, receiving as the difference betyveen the purchase-money six £ i notes and some silver. Later on the same day the other Daley, and a person not knoyvn, called at Rutledge's store and bought largely, paying yvith a £ 3 0 cheque, and receiving some balance. F. Daley and Byng also put up at the Merri Jig Hotel, where they m a d e merry on a cheque for £ 2 19s. n d . Evidence yvas also given of the identity ofthe several cheques, and their posting at Warrnambool in letters addressed to Belfast. T h e defence yvas that the whole affair yvas only a matter of suspicion. T h e prisoners were not charged yvith robbing the mail, but with simple larceny, and the jury returned a rather inconsistent verdict; for whilst convicting Felix Daley, they acquitted the tyvo others. T h e prisoner (yvho arrived free in the colony) yvas sentenced to tyvelve months' imprisonment. ASSAULT AT THE RACECOURSE.—19TH APRIL, 1849.
Oliver Johnstone "was placed in the dock upon an indictment, charging a felonious assault upon Mr. (aftenvards Sir) John O'Shanassy by stabbing, cutting, and wounding him on the head, with intent to m a i m ; a second count varied the offence as yvith intent to disfigure; a third to disable; and a fourth to do grievous bodily harm, at the Racecourse, near Melbourne, on the 28th March. Mr. Stawell appeared for the defence. O n being asked to plead to the information, the prisoner declared that it had all happened through intoxication ; and he yvas guilty. T h e prisoner's Counsel, interposing, offered, on his behalf, to plead " Guilty " to a c o m m o n assault, but the Croyvn Prosecutor declined to accept it. After a brief consultation between Counsel and client, the latter pleaded " Guilty " unconditionally, and yvas remanded for sentence. T h e outrage in question yvas committed on the second day of the race meet, and after the two favourite horses (Petrel and Bessy Bedlam) had each scored a victory. Mr. O'Shanassy was riding about the course when his contemplations were unceremoniously disturbed by a shock, as if the side of his head had been broken in; he was astonished, though not quite stunned. H e beheld a m a n riding ayvay, waving a riding whip over his head, and seemingly in high glee with himself. This m a n yvas the prisoner, w h o had ridden from behind to O'Shanassy's side, and, taking him unawares, dealt what he intended to be a murdering blow with the butt end of his whip. Finding that he had neither killed nor unhorsed his man, he took to his, or rather the horse's heels, and gave what is k n o w n as " leg bail " for his disappearance. A w a y they went at full gallop, the pursued and pursuer, for O'Shanassy was about the last m a n in the world to take a "jaw-breaker" of the kind with equanimity. They were both fairly mounted and far from indifferent riders. So there yvas added to the programme of the day this improvised " helter-skelter" of over a mile run, and it is needless to say it yvas witnessed with much;excited interest, and followed at some distance by half the horsemen gathered on the course. Fear and passion sat behind the two foremost characters. Johnstone knew well that if overtaken he had to cope with a rough customer, who would severely punish him ; whilst the clotting blood that dyed one-half of O'Shanassy's face by no means mollified a temper the reverse of angelical when m u c h put out of order. At length they approached the verge of the Western S w a m p between the course and Melbourne, where the assailed overhauled the assailant, to w h o m he administered a hiding not to be soon forgotten; and then seizing him by the neck, held him until District ChiefConstable Brodie arrived, to w h o m he handed him over in a very sore condition, with a well-tanned skin and unbroken limbs. T h e officer took charge of his prisoner; and next day the Police Bench decided on sending the case to a higher Court. O n the 20th April the prisoner was called up for judgment, and his Counsel yvas heard in mitigation. Evidence as to good character was given, and stress yvas laid upon the fact that Mr. O'Shanassy had sustained no injury of a serious nature. Judge A'Beckett passed a sentence of six months' imprisonment, and at its expiration to enter into iecognizances to keep the peacefortwelve months, himself in £ 5 0 , and tyvo sureties of £ 5 0 each. It was generally believed that the prisoner had been the scapegoat of others—more cunning and cowardly who put him up to assail O'Shanassy out of feelings of vengeance engendered by the party spirit that remained smouldering in the embers of Orangeism permeating a small exclusive section of the community since 1843. However this might have been, Johnstone paid the penalty of half a year's incarceration. ROBBERY OF THE PORTLAND MAIL.—17TH MAY, 1849.
Peter Devlin and Thomas Jones, were jointly indicted for highway robbery, and "putting in bodily fear and danger of his life one John Ross, and stealing from his person three bags, of the value of 3s, containing a warrant or order for the payment of £ 3 9 8s. 6d, and another for £ 6 , the property of the Queen, at the Moorabool Creek, near Ballan, on the 25th March." A second count laid the property of the stolen orders in Ross as mailman, and a third in M r . F. P. Stevens, the Belfast postmaster, who forwarded them to Melbourne. T h e prisoners were undefended. It appeared from the evidence that Mr. Stevens, on the 23rd March, placed the two cheques in a letter, which he posted in a mail-bag that was not to be opened until delivered at Melbourne Post Office. This bag he sealed up and handed over at noon to Samuel Harrison, by w h o m it was to be conveyed as far as the Hopkins. This was done in due course; so it passed on until it reached the custody of John Ross, the relieving mailman at Mount E m u , who started for Ballan. About eight a.m. of the 25th, when between Buninyong and Ballan, and as the mail cart was jogging quietly on its way, tyvo m e n armed with pistols rushed from behind a tree, and commanded the driver on pain of death to pull up. This he did, and the prisoner Devlin declared that if Ross stirred " he yvould blow his brains out." There yvere tyvo passengers, Messrs. Lyall and Kirby, in the conveyance, and they were told to get off, after yvhich they were searched and put standing aside. Ross was next requested to produce the mail bags, which he refused, whereupon Jones jumped into the cart and pitched them into the road. There were three bags—one large and two small; and cutting open the lot they crammed the contents of thefirstinto their pockets, and then decamped on the horses, after telling the driver and passengers to be off about their business, as there was no further need of them. Devlin wore no disguise, but Jones had his face wrapped in green mosquito gauze. Search parties were hunting about everywhere, but no tidings could be learned of the highwaymen. A Mr. James W a r m a n occupied a station on the Tarwin River in Gippsland, some sixty-four miles from Melbourne; and about seven o'clock in the morning of the 5th April, two men, armed yvith pistols, rode up to the homestead and inquired if they could have breakfast. W a r m a n replying in the affirmative, the strangers dismounted and unsaddled their horses. They remained for the day, and represented themselves to be brothers—the sons of a Mr. Devlin, a shareholder in the South Australian Burra Copper Mines, who were on a horse-purchasing trip, andforfear of accident their circulating medium consisted almost entirely of cheques. Several of these they displayed before W a r m a n , who recognised one as bearing the signature of S. G. Henty, of Portland. O n e of them left in a foyv days, the other remaining, and offering to help his hospitable entertainer to any pecuniary accommodation he should require. Warman said he was out offlour,when the other handed him a cheque for £ 8 ios., drawn on the Bank of Australasia by J. F. Palmer, in favour of John Bennett; but taking it back, exchanged it for other cheques. Warman, who had up to this heard nothing about a mail robbery, began to have suspicions that things were not quite as stated; and in this m o o d intimated to his guest that he should procure some flour from a store twenty miles away. H e left h o m e accordingly, making for the Kentish Hoy Hotel, about four miles off, and informed Mr. Hook, the landlord, of all that had taken place at the Tarwin. O n arriving there he learned all the particulars ofthe robbery of the mail; and the two men concerted the following means by which they hoped to secure Warman's visitor. They yvere to set out for Warman's next morning; H o o k was to secrete himself outside, and remain perdu until a given signal. AVarman marched into his home, and on the pretence of requiring a yvash, took off his coat and sauntered towards the door. This being the understood signal, H o o k crept lightly up, and both m e n taking from behind the unsuspecting stranger, had little difficulty in securing him, and transferring him to the police station at Dandenong. This m a n yvas the prisoner Devlin. Jones was arrested some days after by Mounted Constable Cowen, whilst asleep in a hut on the station of Mr. McLeod, on the Snowy River, near Maneroo. About £ 2 8 in cash and notes yvere stolen out of the mail, and had disappeared; but the greater number of the abstracted cheques were found on the prisoners and restored to their owners. There yvas no defence, and the jury returned a verdict of "Guilty " on the third count. Sentence of e a c h — five years' hard labour. HORSEWHIPPING ON A RACECOURSE.—15TH OCTOBER, 1849.
William P n, of Gippsland, gentleman, was presented at the Criminal Sessions for having assaulted Francis Desailly, on the 9th March, in Gippsland. In the second count the offence was charged as a c o m m o n assault. Mr. Barry defended. The Crown Prosecutor, said it was not usualfora Public Prosecutor tofilea bill in such cases, but the present one yvas rendered exceptional by certain circumstances of aggravation. The parties were settlers of good condition, and the complainant was one of three brothers, himself, Lewis, and George, but George had left the province in July. O n the 9th March, races yvere held at a place known as the Green Wattle Hill. George Desailly and P n were competing in a hurdle match and P n's horse baulked the second jump, coming into collision with the complainant, w h o was galloping along, absorbed in the chance of his brother winning. Both riders yvere throyvn, and when they got upon their legs after the joint fall, P n, yvho was in a terrible rage, stigmatised Desailly as a blackleg, and struck him with a whip. Desailly did not return the bloyv, but after the race had terminated yvent up to the stand and informed his brother of what had happened. Whilst in the act of doing so, P n approached, shaking his whip in a menacing manner, and addressing the surrounding croyvd, vociferated, " Gentlemen, come this w a y ; I have already horseyvhipped a scoundrel, and I mean to do it again;" and so saying he again pitched into Desailly, declaring that he yvanted other satisfaction, and would have it too. H e had not it all his o w n way this time, though, for Desailly closing yvith him, a second yvhip yvent to work, and the engagement ended in the flooring or rather grounding of both combatants. Desailly returned home, and after a month's cogitation thought proper to initiate legal proceedings. Several witnesses were examined, the jury found defendant "Guilty" on the second count, and Judge A'Beckett, after administering a severe rebuke for such conduct, especially from a person supposed to belong to the gentlemanly grade of society, sentenced him to pay a £ 5 0 fine, and to enter into a personal recognizance of ^"100 to keep the peace for twelve months. T h e legal requisitions were at once complied with, and the defendant was discharged. THIRD LIBEL ACTION AGAINST THE "ARGUS."—13TH MARCH, 1851.
Moor v. Wilson and Another. This was the third time Mr. Henry Moor sought redress for defamation of character by the Argus, in a civil action before the Judge of the Supreme Court and a Special Jury of Twelve. O n the tyvo previous occasions Mr. William Kerr, the then Editor and proprietor of the Melbourne Argus, yvas the defendant. The verdict in the second case burst up the paper, which passed over to a new proprietory; but though nominibus mutatis, there was no change in the persistent rancour yvith yvhich it stuck to Mr. Moor. At the date of the present suit, the plaintiff was a m e m b e r of the Legislative Council of Neyv South Wales, and Messrs. Edward Wilson and James Stewart Johnston, the co-proprietors of the Argus, were the defendants, The action was for a libel published in that journal on the 18th December, 1850, and damages were laid at £ 1 0 0 0 . Counsel for plaintiff, Messrs. Williams and Stawell;fordefendants, Mr. Barry. The libel complained of yvas a commentary on Moor's career as a public man, and the special innuendo relied upon was the declaration that plaintiff yvas "a double-faced, unprincipled schemer." Captain Cole was put in the witness box to prove that in his opinion the publication of the phrase was calculated to injure Moor in public estimation, though he admitted it did not alter witness's opinion of him. A non-suit yvas moved for on the ground that it had not been shown that the plaintiff had been damnified in reputation, professional emoluments, or status in society. The words yvere not actionable per se, and they yvere applied to the plaintiff as a member ofthe Legislature, and not to him as a Solicitor or citizen. Several authorities yvere cited to sustain this vieyv, but Judge A'Beckett declined to non-suit as the layv of libel and slander had been altered. If desired, he should reserve the point, though he did not concur with the line of argument. The defence, on the merits of the case, yvas a contention that the career of a public man ought to be open for remark and possible censure. The libel complained of was a garbled portion of a long article, and could not be fairly understood apart from the context. It was written in a time of excitement, and was a review of certain component parts of the Legislative Council. The Duke of Richmond and Sir Robert Peel had been stigmatised as " dissembling traitors " by the London Times, and an action at layv yvas not even dreamed of. The defendants simply claimed the privilege of commentary upon the acts of public men, and a verdict for the plaintiff would amount to the suppression of free criticism of public functionaries. The question was put by the Court to the jury, not as to yvhether any, or yvhat, injury had been sustained, but whether the inuendo or libel yvas calculated to injure the plaintiff; and the jury after being ocked up for an hour intimated that they could not agree to a verdict. They were ordered to retire until 7 p.m., yvhen one of them, Mr. G. A. Gilbert, assured the Judge he yvas very far from being yvell, and asked to be allowed certain refreshments. The answer was in the affirmative so far as a biscuit and a glass of water yvent, but the Judge most decidedly objected to the jurors dining until they had decided in some way. At 7.20 they re-appeared with an unanimous verdict for the plaintiff, damages one farthing. The result had such a discouraging effect upon Mr. Moor that he forthyvith resigned his seat in the Legislative Council of Neyv South AVales. ONE POLICE OFFICER SHOOTING ANOTHER.—I8TH MARCH, 1851.
AVilliam Hamilton AValshe was placed at the bar upon an indictment containing four counts, viz:— (1) shooting at William A. P. Dana, on 14th January, at Narre Narre Warren, in the district of Dandenong yvith intent to murder ; (2) with intent to maim; (3) maliciously yvounding ; and (4) doing grievous bodily harm. Mr. Stayvell appeared for the prisoner. The parties had been brother officersforsix years in the corps of Native troopers. About 10 p.m., Dana yvas walking near the Police Station, when Walshe rode up in a state of much excitement, and yvhen three or four yards off Dana, discharged a pistol at him. The ball entering Dana's right side under the ribs, passed through his body. A sergeant hearing the report found Dana stretched on his face and hands, and crying out that he yvas shot. AValshe was sitting quietly on horseback looking on, having a pistol in his hand. The sergeant turning to the horseman said, " Mr. AValshe ! you are a coyvardly fellowtodo this;" and AValshe's answer was, " I wish more of them were in it." AValshe then coolly rode off to the stables, put up his horse, and retired to his quarters, where he yvas found by Trooper Tolmie yvith a carbine in his hand and " wishing he had another shot at Dana." Though he presented the piece at the trooper he was disarmed, placed under arrest, and subsequently sent for trial before the Criminal Sessions. Dana remained for days in a condition of much danger. It was elicited that the prisoner, who had not been long married, suspected the other of carrying on a clandestine correspondence with his wife, of which he accused him a few days before; but the next day they became reconciled and shook hands as friends. Even on the very morning of the shooting, Dana had lent AValshe a horse for his wife to ride out with him. The prisoner, it was asserted, had been subject tofitsof irritability and occasional eccentricity, superinduced, it was thought, by injuries received several months previously in a brush between the Native police and a tribe of blacks on the Murray. These infirmities used to be much intensified when he indulged in drink, and he was by no means a teetotaller. The defence yvas simply a plea of insanity, and several medical witnesses supported his theory. One of them, an M . D , yvas himself manifestly in a state, if not of "D.T," at least in something so very m u c h approaching it, as to provoke a severe rebuke from the presiding Judge. H e was, however, most emphatic in regarding the prisoner " as m a d as a hatter." T h e jury convicted on the fourth count, and the prisoner yvas sentenced to seven years' hard labour. T h e Judge, in a very feeling address, remarking that the circumstances yvere such as yvould justify a verdict on thefirstcount, and had the jury so found, nothing yvould have saved the prisoner's life. A s to insanity, there yvas nothing in the evidence to sustain it, or to warrant a belief that the prisoner yvas not in full possession of his senses yvhen he committed the heinous deed, or that he had ever been othenvise, except when under the influence of drink. A SHOCKING AVIFE MURDER.—19TH AUGUST, 1851.
Patrick Kennedy pleaded not guilty to a charge of having murdered his wife, Mary, on the 30th April, at M o u n t Rouse, in the AVestern District. Mr. Stawell (just recently appointed Attorney-General) appeared for the Crown, and the prisoner yvas defended by Mr. AVilliams. T h e prisoner yvas employed as a shepherd on the station of a Mr. Cameron, of M o u n t Sturgeon. He, his wife, and four children, had a hut for themselves, the other m e n occupying quarters close by. Kennedy, yvho yvas usually a good-tempered man, had hitherto lived on affectionate terms yvith his wife and yvas fond of his children. Though not drunk, he seemed a good deal out of sorts on the last day of the month, shirked his shepherding, and sent his daughter, the eldest child, to look after the woolly charge, yvhile he lounged moodily in and out of the hut, ill at ease, and disposed to find fault not only yvith himself, but everybody else. Williams, another shepherd, and Kennedy sat down to dinner, and though the yvife yvas present with her baby in her arms, she ate nothing. During the meal Kennedy remarked to Williams that he had a notion of selling " the old w o m a n " (meaning his wife), and had an offer of £ 6 0 and a mare for her. Williams, astonished, asked Mrs. Kennedy if yvhat her husband said was true, and on her ansyvering, " I believe so," AA'illiams said to Kennedy, " I know you have too great a respect for your wife to sell her; " but the other turned sharply upon him yvith the words, " I tell you what, old man, I'll have to kill you for that horse you have." Williams retorted, " Never a fear of that. I'll take care you do nothing of the kind," whereat the yvife begged of her husband, " not to be using such nasty talk." AVilliams soon after left, and returning after a short absence found Mrs. Kennedy crying and showing signs of ill-treatment. She said her husband was angry and yvished to vent his spite upon her ; and approaching Kennedy, yvho was looking on gloomily, she coaxingly addressed him, " M y dear Patrick, don't be angry with me." Kennedy did not reply, and on AA'illiams saying, " Surely Kennedy, you yvould never be so unmanly as to strike a yvoman in your yvife's condition, lately confined, and with an infant at the breast," the other said, " he would give him a thrashing if he interfered between m a n and wife," and warned him to " mind his oyvn business." After some further wordy altercations, Kennedy promised not to strike his wife; but immediately after, with a horrible grin, m a d e a blow at her, yvhich missed, and he ejaculated, " Ah, you brute ! " Williams begged of Kennedy to go and relieve his little girl yvith the sheep-minding, but Kennedy shoved him out of the door, with the intimation " that he and the wife m a y both go to " AVilliams had not gone far when he heard the noise as of a scuffle and bloyvs in the hut, and hurrying back, saw Mrs. Kennedy on the ground, and her husband beating and kicking her, but had no weapon in his hand. Williams sung out, " Oh, Kennedy ! what have you done ? " But the other rushing at him swore " be would serve him the same; " and AVilliams ran off to procure assistance. Another shepherd, Carter, who, attracted by the uproar, rushed to Kennedy's hut after the departure of AVilliams, sayv Kennedy dragging the w o m a n about half naked. Dashing upon the infuriated husband, he forced the poor w o m a n from him, and taking her in his arms laid her on a bed. T h e murderer, seizing a shear-blade, m a d e towards Carter, who, to save his oyvn life, was obliged to leave the yvoman to the barbarous violence of her husband. T h e husband, when all yvas over, came and told him that hisr wife was dead. Kennedy suddenly got very sorry, " declaring he could not think what m a d e him do it, unless it yvas the devil." T h e prisoner yvas committedfortrial in Geelong, but the venue was changed to Melbourne. T h e defence was a weak attempt to disparage the evidenceforthe Crown, and after two hours' deliberation, the jury returned a verdict of "Guilty," to which nine of them added a " Recommendation to mercy." Mr. AVilliams moved an arrest of judgment, as the venue having been changed, the word "Geelong had been erased from the record ; and also as the information did not show that the Attorney General for Victoria was the proper officer to prosecute for the offence. His Honor reserved the second point, and passed sentence of death upon the prisoner, concluding a solemn address in these words :—" Almost every serious offence springs from this source (intemperance.) Indeed, I cannot remember a single crime of any magnitude but what could be traced to drunkenness. I beg of all present w h o are pursuing the drunkard's career, and sneer at any remonstrance that m a y be urged upon them, to take warning by the present example." T h e prisoner, during the Judge's parting remarks, seemed to thoroughly realize his awful position. Two UNAVENGED MURDERS.
Several murders occurred in the early days, the perpetrators of which escaped " unwhipt of justice." This was notably the case in the interior, when black and white homicides inter se, and the killing of blacks by yvhites, and vice versa, secured impunity by distance from Melbourne, the imperfect and tedious communication with the principal town of the Province, the paucity of post-offices, the non-existence of the electric telegraph, and the utter inadequacy of the foot and mounted police force. A rumour of one terrible murder in the Western Port district was generally credited, in 1848, though no data reliable enough for action ever reached the police authorities. A settler in a small way suddenly disappeared, and it was declared he had been murdered by his wife and an accomplice, who afterwards married her. The old man was garotted one night in his sleep, mirabile dictu ! his body was boiled down, the more easily to render the flesh and bones amenable to the action of thefire,and every trace of him was reduced to cinders of the most friable kind, when complete pulverization followed. Thus m u c h was vaguely known to the police, but not until time had rendered any attempt at investigation impracticable. T h e widow and her second husband (the accomplice ; a widower too when he espoused her) lived, if not really, at least apparently happy together for several years after in Melbourne, whither they had removed, and the latter before he died came to be regarded as a person of some political influence. They have both long since passed away to the eternal "bourne" where their guilt or innocence has no doubt long ere this been established. Over their names I throw the charity of silence, for they never got into the early newspapers, and as their innocence might be quite possible, notwithstanding the rumours and belief to the contrary, it is no purpose of mine to even risk an injustice to anyone either living or dead. But another shocking case occurred within half-a-dozen miles of Melbourne, and though it terminated in a total miscarriage of justice, as it formed the subject of a police office investigation in Melbourne, there can be no objection, from a historical point of view, to the following resume:— In August, 1849, J°hn Keane, T h o m a s Austin, and John Moroney, were employed as shepherds on the station of Mr. James Robertson, at Keilor. Keane yvas married, and his yvife lived with him; and so matters went on until one day Keane was not to be found, and no one could or would tell yvhat had become of him. Keane had been forfiveyears in service at the place, and when Mr. Robertson heard of the man's unaccountable absence on the 13th July, he questioned the wife as to her husband's whereabouts, and ivas told by her that he had gone to Melbourne to obtain payment of some money owing him by one M'Manus, a resident of Little Bourke Street. In a day or two after Austin was sent to inquire after the missing man. H e hunted up the supposed creditor (M'Manus), w h o declared he had seen nothing of Keane. Austin returned to Keilor with an account of the failure of his mission, and things were allowed to rest for some days ; but no tidings of Keane turned up. Before a week had passed Austin noticing the remains ,of |a fire a short distance from Keane's hut, some impulse prompted him to search, and from the ashes were picked up portions of charred bones, three or four shreds of burnt cloth, and a pipe belonging to the missing man, T h e search was extended, and some more burnt bones were discovered in the creek closer to the hut. Chief-Constable Brodie instituted a further search, and an examination of the creek, which led to the finding of some more bones and pieces of cloth, one ofthe latter of greenish woollen stuff, corresponding in colour and texture with the materials of a coat yvhich Keane was known to have worn, though on being questioned about it his wife declared that at the period of his disappearance her husband had no such garment, for he had some time previously lent it to a shepherd, w h o never returned it. O n being further interrogated she sulked, and asked, " If they thought she was going to say anything to condemn herself." T o one of the search party she observed with some sarcasm, " H a , that's a way indeed to search for a man, as if ye think ye can make one out of rags and bones!" T h e woman's manner yvas peculiar, one m o m e n t cool and collected, the next violently agitated, and then breaking intofitsof levity. A thorough examination of the hut resulted in some extremely suspicious revelations; i.e., there were marks of blood on the bedstead, out of yvhich pieces of wood had been recently cut, the ticking was damp, and appeared as if it had been lately washed, and some bones were scraped out of a heap of ashes near the door. Mrs. Keane and Moroney yvere arrested on a charge of murder, and on the 30th August the prisoners were brought before M r . Charles Payne, J.P, and a Bench of District Magistrates at Melbourne. It yvas proved against the male prisoner that he was apparently on very intimate terms with the w o m a n , at whose hut he had been frequently seen both before and since the husband's disappearance. H e admitted having been at Keane's hut on the nth, when Keane wished him to prepare a deed of separation betyveen him and his wife. Both prisoners protested their innocence. They were committed for trial, the m a n being allowed bail in his personal recognizance of £ 1 0 0 , and two sureties of £ 5 0 each, which he obtained and was discharged. But the w o m a n was remanded to gaol, and whilst there betrayed some symptoms of insanity. She was kept in prison until the 19th December, when the Crown Prosecutor, considering he had not sufficient evidence to go further, consented to her release upon a personal bail bond of £ 5 0 . N o further steps were ever taken to bring Keane's murderers to justice. Mrs. Keane seemed as if a haunted yvoman. She could not bear the sight of Chief-Constable Brodie, to w h o m she yvould point tremblingly, and audibly mutter in flattering accents, " O h ! there's the devil," and run away. She once said her husband had been stabbed, but never could be got to speak again about him. In this way she remained, leading a life 'of miserable unrest until March, 1851, when afinestrapping young Scotchman, a new arrival, named Percival, actually fell in love with her ; in a week after they became m a n and wife, and so she passed out of public view, and nothing after was heard of her. If there be any truth in the time-honoured adage that " Marriages are m a d e in Heaven," one would be induced to regard the second nuptials of Mrs. Keane as an exception to the rule.
- ↑ Mr. Maurice Fitzgerald, an old colonist of varied bush experience, assures me that with regard to the murder of Mr. Beveridge, that a Mr. French, one of the persons in the assailed hut, had two or three of his fingers mutilated by the Natives. He states that he also formed one of the relief party, and that whilst escorting the prisoners through the bush, some Blacks threw spears after them, one of which wounded him (Fitzgerald) in the thigh, the marks of which he showed me. In justice to my informant these facts are given; but I do not feel disposed to disturb my own report of the outrage and its consequences, as I have re-written it from the newspapers of the period. From February, 1845, to the end of 1851, when this chapter will run out, I reported for a Melbourne journal every trial (criminal and civil) that took place in the Supreme Court, and in my compilation I have been careful (so far as I could) to omit no material point adduced in evidence.—The Author.
- ↑ "Blakemount," now the residence of Dr. R. MacInerney.