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Title: Under The Broad Arrow
Author: George Forbes
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Title: Under The Broad Arrow
Author: George Forbes
*


UNDER THE BROAD ARROW

AUSTRALIA'S

Most Remarkable criminal.

THE PATHETIC HISTORY OF JANE NEW

AND THE MONSTROUS RECORD OF HER EVIL GENIUS, JOHN FITCH.


This history is compiled from original documents passing between Sir
Ralph Darling, Governor of New South Wales, Sir Francis Forbes, Chief
Justice of the said Colony, and Sir George Murray, Secretary of State
for the Colonies.


By GEORGE FORBES,


Author of "An Australian Peer," "Free Institutions," etc.

PRICE SIXPENCE.



"TRUTH," Popular Press Prin...

112 King Street, Sydney.

1913.

Previously published in the Truth (Sydney, N.S.W.) in serial format
commending Sunday 31 March, 1912.



CONTENTS.

Chapter.

I.--The Convict Ship
II.--Sydney in 1824
III.--Constable Fitch
IV.--A Girl's Betrayal
V.--Jane New
VI.--Jane is Recognised
VII.--An Infamous Plot
VIII.--At Norfolk Island
IX.--A Ticket-of-Leave Man
X.--The First Australian Bushrangers
XI.--Rosebank
XII.--Two Notorious Bushrangers
XIII.--Dead Man's Hollow
XIV.--The Abduction of Jane New
XV.--The Murder in Kent-street
XVI.--The Capture of The Raven's Gang
XVII.--The Coroner's Inquest
XVIII.--The Case for the Crown
XIX.--The Defence
XX.--Sentenced to Death
XXI.--The Last Penalty of The Law
XXII.--Conclusion

APPENDIX.
1.--The Case of Jane New
2.--The State of Society in New South Wales under Military Rule

* * *

UNDER THE BROAD ARROW

THE TRUE HISTORY

OF

AUSTRALIA'S MOST REMARKABLE CRIMINAL.




CHAPTER I.--THE CONVICT SHIP.

AS a punishment transportation was much dreaded by law-breakers in
the old country during the last century, and with some reason, for
confinement in the gaols and penitentiaries of England, where, by
comparison, labor was light and the food good, was not at all equal to
the hardships attendant upon banishment beyond the seas.

At Woolwich, John Fitch and the other prisoners from the hulks destined
for Australia were put on board the convict ship Asia; every man as
he descended into the hold being numbered on the back like one of a
flock of sheep. The centre of the vessel was divided into compartments,
each accommodating eight men, with a square table and seats of portable
deal boards arranged in tiers above and below. At night they were so
disposed as to form sleeping berths.

With that strange admixture of severity and freedom which characterised
the prison discipline of former times, the convicts at Woolwich were
allowed to say good-bye to their friends, and much latitude was given
them upon these occasions. The friends, of course, brought liquor with
them, and all were soon more or less under the influence of ardent
spirits, which manifested itself in songs and ribald jests, and even
dances, on the part of the wretched convicts, some of whom could be
seen step-dancing to the tune of an obliging fiddle, with their irons
held up so as to give their feet better play. These scenes, revolting
as they would appear now, were common enough then, and excited no more
than a passing notice amongst those who witnessed them, inured as they
were to the barbarous penal code in force at the time.

The heartless indifference sometimes shown by these involuntary exiles
was remarkable. On one occasion the grief displayed by a young convict
when bidding good-bye to his wife appeared to be so real and genuine
that the sympathy of the onlookers was aroused. He wept over her, and
clung to her in a manner that excited the pity of all beholders. But
when, at last, she had torn herself from his embraces and was being
taken on shore, the boat put back, when the young wife once more
boarded the vessel and accused her husband of having robbed her, at the
time of his affecting farewell, of her wedding ring and the money she
had brought with her to pay her fare back to London.

After remaining for several days at Woolwich, the Asia set sail, and
the long voyage to Australia, which would probably last for more than
three months, began.

Life on the Asia became a round of dull routine, coupled with
harsh and unremitting discipline, which differed in no respect from
that endured by prisoners under sentence of transportation upon other
similar vessels at the time, and when it is considered that the crowded
state of the prison ship between decks made it difficult to breathe the
foetid atmosphere, and that the daily food of the convicts consisted
of salt meat, so bad that only starving men would eat it, and Indian
corn-cake, beside which the coarsest bread would have been a choice
delicacy, it will be seen that the real suffering of the prisoners lay
in the manner in which they were fed and berthed upon these floating
penitentiaries.

Of vegetables there were none, and the only water available was a
muddy liquid, drawn from a well in the hold of the ship and afterwards
permitted to become tepid by exposure to the sun.

In order to prevent scurvy, through lack of vegetable food, when
the ship had been ten or fifteen days at sea, and once a fortnight
afterwards, an anti-scorbutic beverage, consisting of water, lime
juice, sugar, and very strong rum, was served on the quarterdeck, the
prisoners being called up one by one to pass through the door of a
barricade, and, having drunk their allowance, to cross the deck and
return to their prison through another doorway.

Such was life on board the Asia when John Fitch came out in her
to New South Wales, but although he was probably among the worst of
the convicts, his aristocratic connections--for he came of noble
lineage--saved him from sharing the hard fate of those less favored,
and special quarters were allowed him during the voyage.

Upon the ordinary prisoners the effects of their long confinement on
these convict ships became very noticeable. Their energies seemed to be
impaired, and their powers of thought, their common sense, and, above
all, their memory, appeared to have almost gone. Many of them were like
children, and all complained of an inability to perform any considerate
or concerted action.

The voyage occupied 124 days, and, when it is remembered that one half
of that time was passed in the loathsome prison between decks, in
darkness and among the most debasing associations, some idea may be
formed of the miseries that were attendant upon transportation in the
last century.




CHAPTER II.--SYDNEY IN 1824.

SYDNEY, at the time when John Fitch arrived in the colony, was a small
irregular township, extending from the Circular Quay towards Brickfield
Hill, beyond which and all around appeared the unexplored scrub of the
Australian bush.

The houses of the officials, however, were pleasantly situated,
and there was scarcely a house that had not its garden or orchard
attached to it. The band of one of the regiments usually played in the
barrack-yard of a summer's evening, around which a well-dressed group
were accustomed to gather, and to the casual observer the inhabitants
appeared to be a gay and prosperous community. The convicts, at an
early hour, were shut up in their barracks, and there was nothing to
convey the notion that Sydney was the capital of a penal colony.

But with the morning the delusion was dispelled. At seven o'clock the
gates of the convict prison were thrown open, and several hundred
convicts were marched out in regimental file, and distributed among the
public works in and about the town.

As they passed in slow and melancholy procession to their work, many
of them with chains clanking at their heels, and all with downcast
countenances, the whole appearance of the men exhibited a truly painful
picture, which, as the day advanced, was not improved when bands of
them could be seen yoked to waggons laden with gravel and stone, which
they dragged through the streets like beasts of burden.

The Sydney Hospital, situated where it is now, was in a line with the
prisoners' barracks, and at a short distance from the hospital, about
three hundred yards away, was an enclosed yard, shut out from the
public view by a high wall, where flogging was administered, and from
which might daily be seen those who had been lashed being carried on
stretchers to the hospital to have their wounds dressed before being
put once more to labor.

It may well be imagined that, if it was not considered necessary to
hide such scenes from the more respectable portion of the inhabitants,
no attempt would be made to lessen the dismal nature of their
surroundings to the convicts themselves, and even Fitch, hardened
though he was, and inured to scenes of cruel discipline, felt his blood
run cold when he marched to the barracks, in company with the other
prisoners, and there heard read over the rules and regulations to which
they were expected to conform.

As an object-lesson of what might be in store for some of them, the new
arrivals were then paraded in the flogging yard, where they witnessed
the flagellation of twenty-five men and boys at the triangles.

To Fitch, however, by reason of his high connections, further clemency
was extended. He had been treated with great indulgence on board the
Asia, and, soon after his arrival in Sydney, he was sent as a
"special" to the out-station at Wellington Valley, to which the better
class of those who had the misfortune to be exiled were deported.

On his arrival at Wellington Valley, in order to improve his own
position, and regardless of the cruel punishment of the chain and the
lash which his conduct would inevitably bring upon others, Fitch set
himself to initiate a systematic course of trickery, which he carried
out with a diabolical skill that almost approached perfection.

His plan was simple enough, and consisted in getting up little
conspiracies among his less artful companions, and then betraying them
to the overseers, in order that he might obtain the usual indulgence
for exemplary conduct.

Acting on this plan, he induced more than one party of prisoners at the
Valley to abscond, or to take to the bush, deluding them with hopes of
success, and, after he had betrayed them, joining in their pursuit and
capture.

For these services he was rewarded with a ticket-of-leave for the
Bathurst district, and was sent there to serve as an ordinary constable.

It was well for Fitch, however, that these victims of his treachery
did not have an opportunity for revenge, for it was known that there
were some among them who had sworn to serve him in the same manner as
another informer was served by a gang of bushrangers in Tasmania, who
was torn limb from limb by being fastened with traces to horses, which
were then driven different ways.




CHAPTER III.--CONSTABLE FITCH.

A GOVERNMENT billet, although a minor one, was a great improvement
upon the conditions of a transported felon, and Constable Fitch might
have even then retrieved his character. But Constable Fitch was not
ambitious for reform.

A constable among the miserable convicts wielded almost unlimited
power, and Fitch soon proved himself to be an inhuman monster in his
treatment of the half-starved and manacled wretches whom he had in
charge.

For the crime of being found with tobacco in their possession the
penalty for these tortured criminals was a flogging of from fifty to
a hundred lashes, and Constable Fitch earned for himself a reputation
for smartness by secreting small pieces of this forbidden luxury about
the persons of the convicts, which he would subsequently discover on
searching them, and make the subject of a report upon which to have
them flogged.

For this treachery to his fellow-criminals, although it must have been
guessed at by those in authority, he was highly commended, and he won
for himself the reputation for being a vigilant and painstaking officer.

At length, having become tired of country life, and being anxious for a
spell in town, he, one day in 1829, made his way to Parramatta, where
he called at a public-house and ordered a pint of rum, which he drank,
as the landlord subsequently stated, "like a gentleman"; after which he
interviewed his host with regard to a little business transaction.

Representing himself to be an overseer at an up-country sheep station,
with some teams on their way to Sydney, he asked him to discount a
pro-note for eight pounds, drawn by one James Hale, of the White Hart
Hotel, at Windsor, in favor of a third person.

After some little demur the note was cashed, three pounds being
deducted as a modest commission, and, with the remaining five pounds in
his pocket, Constable Fitch went on his way to Sydney by the next coach.

When the note was presented to Hale, it was declared to be a forgery,
and information was accordingly given to the police.

Fitch, however, was not caught for some months afterwards, when he
was brought to trial before Chief Justice Forbes and a jury of seven
military officers.

In his address to the jury, the prisoner pleaded with much eloquence on
his own behalf, and dwelt on the improbability of a man in his position
placing himself in jeopardy for the sake of so trifling a sum, when he
could show that he was in the habit of receiving money, not only from
the Government, but also from his friends at Home, whom he referred
to, with little regard for their feelings, as being "of the first
respectability."

A merchant named Marr, whom he called as a witness, stated that he
was in the habit of supplying the prisoner with goods "by order of a
gentleman," to the amount of thirty pounds at a time. The orders were
not for money, but for goods, and were usually given half-yearly. The
gentleman who gave them told him, so he said, that these supplies
were paid for, partly by the prisoner's family at Home and partly
by himself, and he often said "that he would do anything to get the
prisoner home to his friends," whom it may well be believed would not
have thanked him for such a service.

The jury, some of the officers composing it no doubt being acquainted
with the prisoner's family, returned a verdict of "Not Guilty," and the
Chief Justice also addressed the prisoner in words which showed that
he, too, was acquainted with the facts of his past life. Indeed, he had
known him at Bermuda, when Fitch was a captain in His Majesty's Navy,
and he, the Chief Justice, was Attorney-General of that colony.

"I exhort you," said the Chief Justice, "to forsake those evil courses
which have led you into the dreadful situation in which you are now
placed. Notwithstanding the verdict of the jury, at which I feel a
great relief, I think that enough has come out this day to warrant me
in thus admonishing you to adopt such a line of conduct in future as in
time will make you worthy to claim some acquaintance with your former
friends. In the course of your defence, you have made allusion to the
respectability of your family. I myself can state that fact, and I may
also say from personal knowledge that I have seen you in a situation
very different from that in which you now are. I do not say this to
wound your feelings, but rather that it should make an impression on
your mind, and have a salutary effect upon your future conduct. I
repeat that I am thankful that a verdict has redeemed you from the
peril in which you were this day placed. Depart, and let this escape
you have had operate as a salutary warning throughout the remainder of
your life."

As will be seen, however, this kindly advice had but little effect upon
the future career of John Fitch.




CHAPTER IV.--A GIRL'S BETRAYAL.

JOHN FITCH, before his sentence and transportation to New South
Wales for the robbery of a considerable sum from one of his dupes,
whom he had enticed into a secluded part of Vauxhall Gardens, and
there plundered him, had obtained for himself as a man about town a
reputation for gallantry which brought to him an easy victim in the
person of Jane Harding, a young girl who, unfortunately, had no mother
to care for her, and who lived with her father in the county of Chester.

The pretended devotion of such a man as Fitch was highly gratifying to
the vanity of this young and unsophisticated girl, and that an ex-post
captain in His Majesty's Navy, as he represented himself to be, should
pay her his addresses was regarded by her with a feeling of pride which
soon developed into a more ardent passion.

It is probable that at this time Captain Fitch really had it in
his mind to marry Jane; but circumstances arose which caused him
to abandon any such honorable intention. A rumor, at this eventful
period, first reached his ears that Mr. Harding, the father of Jane,
had been a considerable loser by several speculations in which he had
ventured large sums. This induced Fitch to take a temporary pause in
his courtship. Marriage, unless attended with pecuniary advantages,
was entirely opposed to his principles; and, as the reports of Mr.
Harding's embarrassments were confirmed, his attentions to Jane
became less marked, and his visits less frequent. Although he had
now relinquished all idea of a matrimonial connection, yet, when the
unhappy girl reproached him for his neglect, his passions were aroused,
and he pressed for an immediate union, representing, at the same time,
the necessity which existed that, for the present, the marriage should
be kept secret, lest his friends might be angered by his forming an
alliance with one of inferior birth to himself.

In an evil hour the hapless girl consented to his proposal, and
left the protection of her father's house, taking with her, at the
instigation of her lover, a sum of money which her father kept locked
in a bureau, and of which she obtained the key. Fitch easily found
among his dissolute associates one who readily entered into the
conspiracy he had planned, and who, in the guise of a minister of
religion, performed a mock ceremony of marriage between the betrayer
and his innocent victim.

After the ceremony, Fitch and his supposed wife took up their quarters
in expensive apartments in London; nor was it long before Jane
discovered how cruelly she had been deceived. The visitors who came to
the house were exclusively composed of men of dissipated habits of the
worst type who lived in those bad old days, and Jane, who had known
the protection of a father's home, now found herself exposed to the
familiarities of heartless libertines, from whom her husband made no
effort to shield her.

Among those who pressed upon her his unwelcome attentions was
Lieutenant Parkhurst, who was destined to play an important part in the
subsequent events of her career. This man, a friend of her supposed
husband's, and, like him, of good family connections, made no secret of
the admiration which he felt for her, and from which she shrank with
all the outraged modesty of her sex.

Overwhelmed with sorrow and remorse for what she had done, Jane had
almost made up her mind to return home and intercede with her father
for his forgiveness, when an event happened that was destined to change
the whole course of her future life.

Unable to understand the sudden disappearance of his daughter, and not
suspecting her of having robbed him of his money, Mr. Harding had given
information to the police, who, with little difficulty, traced the
theft to Jane, whose reputed husband then brutally informed her of the
deceit which had been practiced upon her with regard to her marriage,
and left her to the mercy of the law.

Distracted by the unforeseen calamities which had come upon him,
Mr. Harding then endeavored to withdraw the prosecution against his
daughter, but without avail, and, under the harsh and cruel laws in
force at the time, Jane was transported for the term of seven years to
the penal settlement of Van Diemen's Land.




CHAPTER V.--JANE NEW.

AT the first shock, caused by her trial and sentence, poor Jane Harding
(afterwards Jane New) was overwhelmed by the thought of the cruel fate
which had overtaken her, and her love for the man who had so wickedly
betrayed her was exchanged for a feeling of abhorrence against him
for his heartless conduct. But youth and health work wonders, and, as
time went on, Jane found her situation to be not nearly so unendurable
as she had thought it would be. Condemned though she was to penal
servitude beyond the seas, she was nevertheless treated with such
consideration as was possible, and was spared much of the humiliation
which attached itself to others in like circumstances.

On the voyage to Van Diemen's Land, which had been determined upon
by the authorities as her ultimate destination, Jane was appointed
as personal attendant to the wife of a military officer on his way
to join his regiment at Hobart Town, and her gentle demeanour and
lovable disposition soon won for her the affection of her new mistress,
who, on her arrival in the colony, used her influence with the
Lieutenant-Governor, so that Jane was assigned to her as her servant.

It is a strange history to look back upon--the history of Australia, a
country which is now the freest, the happiest, and the most prosperous
in the world, but where, scarcely more than half a century ago, slavery
flourished in the same manner as it did in the West Indies, and in
America before the Civil War.

An assigned servant was virtually a slave, and became the absolute
property of the master or mistress; the term of servitude being
according to the length of the sentence, which was sometimes for life.
The condition of the Australian slave, as with the American slave,
depended entirely upon the temper and disposition of the owner, and
the difference between the Australian and the American slave was
merely one of color. True, indeed, the Australian slave-owner was not
supposed to personally chastise his slave, but this disability was soon
overcome, for nothing was easier than to obtain the order of a visiting
magistrate in those places where these slaves were employed, for their
punishment by flogging and solitary confinement, according to the will
or caprice of their masters.

As in America, so in Australia, some of the slaves obtained comfortable
and even happy homes, and among these fortunate ones was Jane Harding,
who soon became more like a sister to her mistress than a servant.
Three years were spent in this manner, during which time Jane received
the news of her father's death, and also that he had died in poor
circumstances, leaving no provision for her when, at the expiration of
her sentence, she might return home.

Under these circumstances, and with the approval of her mistress, Jane
determined to settle permanently in the colonies, and to forget, if
possible, the trouble into which she had been led through trusting to
the faith of a heartless villain.

Among the visitors to the officers' quarters of the military barracks
in which she lived at Hobart Town, was a young free mechanic, to whom
Jane soon became much attached. Fully acquainted as he was with her
past history, James New could discover nothing in it but pity for the
poor girl who had been so cruelly deceived, and, finding that his love
for her was returned he offered to make her his wife.

In those days many marriages of this kind were consummated particularly
among the free emigrants of the middle class, whose skilled services
could always command good pay. After the marriage the convict wife was,
by previous arrangement with the authorities, assigned to her husband
as his servant, and remained in such relationship until the expiration
of her sentence, when she became entitled to the same rights as other
free women in the colony.

In most cases this plan was found to answer well. The assignment was
only a matter of form, and couples married in this way lived together
as man and wife in the same manner as other people in the community.

The marriage between James New and Jane Harding was quietly solemnised
at Hobart Town, and for two years the wedded pair lived a happy and
contented life. A child, a bright and intelligent boy, was born of the
union, and Jane and her husband made many friends, and won the respect
of the society of the middle class of which they became members.

At the end of two years from the date of her marriage, Jane's former
master, being about to return to England with his regiment, used
his influence with the Lieutenant-Governor to procure for Jane a
ticket-of-leave, which would enable her to proceed with her husband
to Sydney, where he had reason to believe he could follow his trade
with more advantage than at Hobart Town, and, with many expressions
of goodwill at the parting, the couple bade good-bye to their friends
at Hobart Town, and arrived in Sydney, within six years of the date
of Jane's transportation, and it only wanting a year to complete her
sentence.

In a pleasant cottage, close to what is now Hyde Park, but which was
then known as The Racecourse, the News took up their abode, and were
soon engaged in the duties of their new sphere. Trade was brisk, and
their income was consequently sufficient for all their needs; their
boy was a never-ending source of pleasure to them, and life seemed
to promise many blessings in the future, when there came upon them a
calamity which, but for its authenticity, would scarcely be believed
possible in a civilised land.

Returning from his work one evening to his pleasant home, James was
surprised to miss the usual welcome given him by his wife and child,
and, on entering the house, was amazed to find his wife in a swoon,
from which his boy was endeavoring, with childish tears and caresses,
to arouse her.




CHAPTER VI.--JANE IS RECOGNISED.

CONSTABLE FITCH, after having been acquitted by a sympathetic jury
of a crime of which he was undoubtedly guilty, continued to pick
up a precarious living in Sydney, during which time he managed to
considerably extend his reputation for gallantry.

Among the officers in the regiments quartered in Sydney at this time
there were some who had known Fitch before his conviction and sentence,
and who, from a moral standpoint, were little better than he was
himself, except from the fact that they had not yet been found out. One
of these officers, Lieutenant Parkhurst, whom he had formerly known in
the days of his prosperity, openly made a friend of Fitch, and together
the pair might frequently be seen consorting with other companions of
questionable character.

Parkhurst and Fitch, at this time, were concerned in many shady
transactions, not the least of which were those adventures which they
were pleased to term "affairs of gallantry," and upon one of his
frequent perambulations through the town of Sydney, with his dissolute
acquaintance, John Fitch suddenly found himself face to face with Jane
Harding, from whom he had parted six years ago in London.

Jane was standing upon the verandah of the cottage in which she
resided, her boy beside her, waiting to give her husband a welcome on
his return from his work, when suddenly the evil genius of her life
appeared before her. The recognition was mutual, and while in Fitch it
aroused no more than a feeling of surprise, to poor Jane it brought
such a flood of cruel and bitter memories that on hastily re-entering
the house her senses forsook her.

But if Fitch was startled at the meeting with the girl he had betrayed,
his companion appeared to see in it an adventure exactly to his liking,
and making a note of the situation of the premises, the pair passed
quietly on, each resolving in his own mind to profit by the unexpected
discovery of Jane's whereabouts.

Leading the way into the parlor of an inn which they were in the habit
of frequenting, and where they could talk undisturbed, Fitch confided
to his companion the history of his elopement with Jane Harding, and
transportation for seven years to Hobart Town.

"But how long ago is that?" inquired Parkhurst, deeply interested.

"It must be six years or thereabouts," replied Fitch.

"Then she cannot have served her sentence yet?" said Parkhurst.

"Not unless she has been pardoned," answered Fitch.

"Not likely," replied Parkhurst. "More probable she is on ticket of
leave, and possibly an assigned servant. If so, I think I can get her
transferred to a friend of mine."

At this they both laughed, for the friend to whom Parkhurst referred
was known to Fitch to be an unscrupulous woman, who, for money, would
be ready to assist him in any shameful project.

"I'll see about it now," said Parkhurst, presently, and making an
appointment with Fitch to meet him later in the day, the King's officer
swaggered out of the inn, followed to the door by an obsequious
landlord who wished his honor good-day and a speedy return.

Arrived at the barracks, Lieutenant Parkhurst lost no time in
despatching his military servant to an official with whom he he was
acquainted, inviting him to lunch with him that day at the officers'
mess.

After luncheon, and when the pair were seated together, with a spirit
decanter between them, Parkhurst mentioned casually that a friend of
his was in want of a convict servant.

The official could not repress a smile, when he heard the name of the
applicant, but he answered gravely that he would see what could be done.

"I saw a likely-looking girl to-day," continued Parkhurst, mentioning
the house in which Jane lived.

"I know them," replied the official--"the News. They come from Van
Diemen's Land. New is a free man, and married to his wife, who is
assigned to him."

"That makes no difference, does it?" said Parkhurst.

"Not in law," replied the official. "That is, if she has done anything
to forfeit her ticket-of-leave. It rests with the Governor, of course."

"I will arrange all that," replied Parkhurst.

"Very well," answered the official, yawning, for the summer's day
suggested an afternoon siesta. "Let me know how I can be of use to you,
and we'll see what can be done."




CHAPTER VII.--AN INFAMOUS PLOT.

WHEN Jane New recovered from her swoon, it was to find her husband
beside her, ready to comfort and assist her with his advice and
protection. To him she briefly narrated the circumstances of her
unexpected meeting with Fitch and his dissolute companion, and, with
tears and lamentations, she expressed her belief that trouble would
surely come of it.

In his endeavor to calm her, New pointed out how unlikely it would be
that Fitch would attempt to interfere with her, seeing that he would
have nothing to gain by such interference, which might only bring him
into disfavor with the authorities. Besides, he bade her remember that
they lived in a British community, under British laws, which boasted an
equal measure of justice for all. But although in the end he succeeded
in partly allaying her fears, poor Jane could not shake off the
conviction of impending trouble, and that her anxiety was not without
foundation was soon to be placed beyond doubt.

One morning, James New being absent at his work, and when Jane
was employed with her household duties, a lady, well-dressed, and
apparently in affluent circumstances, called to see her with the
expressed purpose of engaging New to make certain alterations in her
house in Pitt-street. Jane, gratified by this recognition of her
husband's skill as a tradesman, was careful to note the particulars of
the work required to be done, and the lady invited Jane to accompany
her to her house in order that she might the more readily be able to
explain to her husband on his return the nature of the improvements
contemplated.

Unsuspicious of the infamous plot that was being weaved around her,
Jane accompanied her professed friend and patron to her house in
Pitt-street, from which she subsequently returned to her own house,
once more devoting herself to the care of her boy, and the ordering of
her little establishment. Within an hour, however, the lady was back,
this time accompanied by John Fitch and another policeman. At the
sight of Fitch, poor Jane turned pale, and her senses seemed about to
desert her. Not heeding what she did, in her endeavor to escape from
her persecutor, Jane fled from the house by the back door, and this was
subsequently regarded as proof positive of her guilt. She was easily
captured, and brought back by the constables, who, on searching her,
found the lady's purse, containing five pounds in gold and silver,
concealed upon her person.

In a flood of tears, Jane besought the villain who had formerly brought
disgrace and ruin upon her, to spare her further punishment. Clasping
her boy to her breast, she begged that she might not be parted from her
child, while, at the same time, she vehemently denied all knowledge of
the theft of which she was accused. But her entreaties fell upon deaf
ears. She was a convicted felon, and her statements were not to be
believed.

Jane was brought to trial before Mr. Justice Dowling and a jury, and,
on being found guilty, sentence of death was recorded against her under
Statute 12, Ann, ch. 7 (the Statute which takes away benefit of clergy
from the offence of stealing in a dwelling above the value of forty
shillings). This conviction, however, it being ascertained that the
Statute was not in force in New South Wales, was, on appeal to the Full
Court, declared void; but the sheriff, instead of releasing Jane, by
direction of the Governor, who had revoked the assignment, executed by
the Lieutenant-Governor of Van Diemen's Land, of the prisoner to her
husband, removed her from the common gaol at Sydney, as a prisoner of
the Crown, to the factory at Parramatta, where she once more became
eligible for assignment to some other master or mistress, and for which
new assignment the very woman who had charged her with theft, and
who was none other than the friend referred to by Parkhurst, was an
applicant.

The infamous nature of the plot against the unfortunate Jane New now
stood plainly revealed, and James New, in his despair at the discovery,
would probably have been driven to the commission of some desperate
act in defence of his wife's honor, had it not been for the skill and
courage in connection with this case displayed by one whose name will
always be associated with what is best in Australian history.

Mr. William Charles Wentworth was, at this time, among the leaders
of the Australian bar, and to him James New carried the tale of his
trouble. Wentworth was one of the few men who had the courage, when
his duty impelled him to such a course, to set himself in opposition
to the Governor of the day, a military martinet, who succeeded, during
the term of his administration, in making himself the most hated man in
the colony, and, at the risk of incurring his Excellency's displeasure,
he boldly questioned the Governor's right to revoke the assignment of
prisoners except in the case of pardon, and, as the counsel instructed
for that purpose by James New, he moved the Full Court, on application,
that the prisoner, Jane New, be discharged from custody, and delivered
over to her husband on the grounds, first, "that the Governor of this
Territory had no power to cancel the assignment to a master of any
prisoner of the Crown except for the purpose of granting a temporary or
partial remission of the original sentence," and, secondly, that at all
events he could not cancel the assignment of a prisoner who had been
transported from England to Van Diemen's Land; that being a separate
and independent colony, not within the government or jurisdiction of
the Governor of New South Wales.

These points were argued before the Full Court at great length--the
Attorney-General (Baxter) contending that the Governor had the absolute
right, at his pleasure, to cancel the assignment to a master of a
prisoner, and to re-assign such prisoner to some other master or
mistress, while Mr. Wentworth maintained that the Governor had no such
power, and that the property in the assigned servant remained in the
master, except in the case of the misconduct of such master, until the
expiration of the prisoner's sentence, or until such prisoner received
a free pardon.

This case caused intense excitement in the colony at the time, for it
was felt by the settlers that, if the Governor possessed the arbitrary
power which he claimed, those who differed from him in his autocratic
methods of government would be deprived of the services of their farm
laborers, and reduced to penury.

The judges, to their credit be it recorded, although they subsequently
incurred the censure of the Secretary of State for so doing, inclined
to the more liberal view of the matter, and held that the Governor did
not possess the power of revoking the assignment of Jane New to her
husband by the Lieutenant-Governor of Van Diemen's Land, and she was
consequently ordered to be restored to him.

Chief Justice Forbes, in delivering his judgment in this case, said:
"The right of private property, when once acquired, is held to be so
inviolable by the laws of England that I cannot easily suppose it to
have been the intention of Parliament, after having created this right
in the assignee of a prisoner, in the most express and formal manner,
and having carefully preserved it through the successive provisions
of a chain of statutes, to take it away by a word, and that without
any cause alleged, or any previous enquiry or any definite course of
proceeding directed for so strong and anomalous a power--a power which
would be, perhaps, without precedent in the records of Parliament."

Happy indeed was the reunion between Jane and her husband, and her
boy, whom she would not see while she remained in prison, and the
recall of the regiment to which Lieutenant Parkhurst belonged saved
her from further persecution from that quarter; whilst, not long
afterwards, John Fitch became involved in a serious offence, which it
was impossible to overlook or condone.




CHAPTER VIII.--AT NORFOLK ISLAND.

AFTER the departure of Lieutenant Parkhurst with his regiment for
England, Fitch found it more difficult to follow his dissolute courses
without detection, and before long he was again apprehended, on a
charge of forgery. This time, being convicted, sentence of death was
recorded against him, which was afterwards commuted to seven years'
transportation to Norfolk Island.

While waiting on board the hulk Phoenix, then lying in Sydney Cove,
for the Government brig to convey him to Norfolk Island, an attempt was
made to murder the soldiers and crew by poisoning the coppers in which
their food was prepared, by means of arsenic, which had been procured
and distributed amongst the prisoners, it was believed by many, through
the instrumentality of Fitch. When, however, the plot was complete,
and the poison actually mingled with the food, Fitch disclosed the
scheme to the authorities, for which he obtained credit at the expense
of a number of prisoners, some of whom were hanged for the conspiracy,
whilst others were flogged, or sentenced to long terms in the chain
gang.

Norfolk Island, at this time, was one of the worst of the penal
settlements. The entire number of convicts there was 360, and these
were divided into gangs of 60, with two overseers over each gang.

The 360 men slept in a long, narrow, low-roofed shed, called a
dormitory, in which there were two rows of bunks, one over the other,
the bunks being separated by laths, and each berth being the length and
breadth of a man.

Many of these men bore on their bodies the terrible effects of
flogging; others had contracted deformities from the constant practice
of wearing heavy irons; others, again, bore marks of gunshot wounds,
probably received in some attempt to escape from legal custody, for
the warders had orders to fire on the first appearance of any act of
insubordination.

The weight of the irons put upon the prisoners at Norfolk Island varied
from 7lb to 40lb, the latter being only used for the most refractory
prisoners.

"The use of these irons," said an overseer, on being interrogated on
the subject before a commission of inquiry into prison discipline, "is
to break the men's spirits, so that they may become more tractable.
Some of them are more like wild beasts than men when they come here."

In the dormitory nothing but oaths, imprecations, and obscenity met the
ear from the wretched prisoners around, and between these sounds and
the darkness of the den it was a veritable earthly hell.

Nine o'clock was the hour for retiring, and four o'clock was the hour
for rising. A bell was rung at four, and the prisoners were allowed
five minutes in which to dress, fold up their rugs, and sweep out their
bunks.

The 360 men were then marched, rank and file, two deep, to a cistern to
wash, when all indiscriminately performed their ablutions in the same
water.

The gang then mustered under the overseers orders, and were marched
to their respective places of worship. Prayers lasted half-an-hour,
and, at 5 o'clock, the gangs were again mustered, and marched, rank
and file, two deep, through the outer gate of the prison, where the
superintendent and muster-master stood, and called out each man's name,
to which an answer was given, accompanied by the regulation salute.

The gangs were then marched to their work, each man being at his daily
work at half-past 5 o'clock in the morning, where he worked until 8,
and was then marched in to breakfast, which consisted of some coarse
brown bread and water-gruel.

After breakfast the men were mustered again, and marched back to their
work, which was continued until 12 o'clock, when they were again
marched in to dinner, which frugal meal consisted of some course brown
bread and broth, with a few ounces of very bad meat.

After dinner, muster again, and work until 6 o'clock, when names were
called over, and some bread and water-gruel served out.

Prayers at half-past 6 until 7, then to school till 8, and, after
school, to the wretched bunks once more in the dormitory.

A returned convict gives the following personal account of his daily
work at Norfolk Island:--

"Most of my time," he says, "I was working in the quarries, drawing
hand-carts, and at agricultural labor. It was broiling hot weather,
and, to be kept 17 hours out of every 24 standing under a blazing sun
was hard enough.

"I remember, one day, being marched 8 miles into the bush to cut grass,
tie it up, load a bullock dray with it, and then walk 8 miles back
without ever tasting food or drinking water during the day, though, by
reason of the heat, I was parched with thirst.

"During the latter part of my sentence I was put to besom-making.
This was considered an indulgence. While undergoing my besom-making
probation, I had to go into the bush at half-past 5 in the morning,
with a scythe in my hand, to cut down a load of grass, tie it up,
carry it three miles on my back to a hut, then cut down New Zealand
flax, split it, make twisted gads of it, then sit down and make 24
besoms, tie them up, carry them on my back, and deliver them to the
storekeeper, and, if I were one short of that number, I was put in
solitary confinement in a black hole for seven days at the least.

"This besom-making was also most dangerous work, for every time I put
my hand among the tufts, or tussocks, of cutting grass, I was in danger
of being bitten by a snake--and yet this was called an indulgence."

"Let every father and mother's child take warning by my hard fate, and
shun all bad company.

"When, after I had served my time at Norfolk Island, I arrived at the
Sydney Gaol, I prayed the commandant to do something for me in regard
to my being signed over to a master. He asked me how many times I
had been flogged on the Island. I told him the whole truth, and also
said that I had received 100 lashes for no other crime than that of
composing a piece of poetry about myself."

John Fitch, shortly after his arrival at the Island, owing to his
treacherous conduct towards his fellow convicts on board the Phoenix
hulk at Sydney, was kept apart from the rest of the prisoners, being
placed in the stables. But, although his work, in comparison with the
others, was trifling, he neglected it, and, anxious to find time to
concoct further villainy, he feigned sickness, and for a considerable
time, was to be seen on crutches, as supposed to be suffering from an
attack of paralysis.

During this period, it is confidently asserted that he contrived the
mutiny which broke out in January, 1834, when several prisoners were
shot dead; 13 were subsequently hanged, and many others had long
periods in irons added to their sentences.

The following is the official account given of this occurrence:

"On the 13th January, 1834, a cunningly-planned conspiracy to reduce
the guard and civil officers of the settlement at Norfolk Island was
attempted and defeated. The Government, having been previously apprised
that something was in agitation, had been acting for some days with
great circumspection.

"On the morning of the 13th, when being escorted from the barrack
to their labor, a considerable body rose upon their guard, and an
engagement of some minutes took place, during which one soldier, one
constable, and six prisoners were killed. It was intended by the
conspirators, if successful in conquering one detachment of the guard,
to have disarmed them, and marched in their van, so that they would be
the first victims if they received any opposition from the rest of the
garrison. In the event of final triumph, they were to provision the
schooner Isabella, and put to sea without delay; but the result has,
fortunately, defeated their anticipations. About 170 of them are, since
this occurrence, compelled to labor on a heavy chain, in addition to
their former weighty shackles."

Fitch figured conspicuously in this affair. He was admitted an
approver, and he is said to have given in to the authorities a long
list of the mutineers who were in the secret, but whom, it afterwards
transpired, were wholly ignorant of the contemplated crime.

The authorities, after this, did not consider it safe to allow the
approver to remain on the Island, as there is little doubt he would
have fallen a victim to the just resentment of those whom he had
wrongfully accused as being concerned in the plot, and, having served
only a part of his sentence, Fitch was returned to Sydney, and from
there to Port Macquarie.




CHAPTER IX.--A TICKET-OF-LEAVE MAN.

AT Port Macquarie, Fitch, finding that his character had preceded him,
assumed for a while an outward appearance of sanctity, and, although
his hypocrisy was suspected by many, he succeeded in deceiving the
authorities to such an extent that he was, on the recommendation
of several gentlemen and magistrates of the territory, allowed a
ticket-of-leave for that district.

Two years later he again paid a visit to the metropolis, when he
applied to the Governor for an alteration of his ticket to Sydney,
stating as a reason that he could obtain no employment in the district
of Port Macquarie, by which he could live.

His Excellency, on these representations, directed that a
ticket-of-leave should be granted to Fitch to trade on the coasts in
the cutter Thomas and Harriet, or the schooner Waterwitch.

It was during this period, and while he was thus at large in Sydney,
that Fitch formed an acquaintance with a wealthy widow, and by the
representations which he made with regard to his family and prospects,
as well as by the personal affection he professed towards her, he
succeeded in obtaining a promise from her to become his wife.

This widow woman possessed a farm at Campbell Town, where the work was
performed by assigned servants, over whom Fitch was appointed overseer.

Here, as usual, when vested with a little brief authority, he acted in
the most tyrannical manner to those under him, and soon became hated
and feared.

One of the unfortunate servants at this farm subsequently gave the
following statement of his treatment there under John Fitch:

"About two days after I was signed over to my new mistress at Campbell
Town," he says, "I left Sydney with a bullock driver at six o'clock one
evening, and travelled all that night and until ten next day, when we
arrived at the farm. I then went to the men's hut, where, in about half
an hour, the overseer came to me and said that my mistress wanted me. I
went down and saw her, and she then ordered me to take a hoe and spade
and to go into the garden with the rest of the Government men.

"I told her that I had not had anything to eat since I left Sydney.

"She said to me: 'Do you refuse to work?'

"I replied: 'No, but that I could not work that day, being too worn out
by my long night's tramp from Sydney to Campbell Town.'

"She said she would get me flogged for refusing to work.

"I then went to the hut, and next morning proceeded to work with the
rest of the men.

"At eight we went to breakfast, and, while at breakfast, my mistress
came up to me with the overseer, and said, 'This is the man who refused
to work yesterday.'

"She then told the overseer to take me to the watch-house at Campbell
Town, where, next day, on the evidence of the overseer, I was given 50
lashes.

"On arriving back at the farm I was ordered to go to work immediately.
I was sent to carry bags of wheat from the barn to the stores. I had
carried two bags, and, on going with the third, it so hurt my back that
I was obliged to let it drop, upon which I was again taken before the
magistrate, and my mistress appeared against me, and swore positively
that I had destroyed her property.

"She was believed, and I was once more sentenced to receive 50 lashes,

"As I was returning home with the overseer, I told him that I would not
work any more for this mistress.

"On reaching the farm, I went to the hut. My mistress sent for me, and
inquired if I meant to go to work, and I replied that I did not.

"She then ordered the overseer to bring me down to the house. I refused
to go, and four of my fellow prisoners were ordered to assist the
overseer in dragging me down to the house. They did so, and put a
bullock chain round a tree, and fastened me to it, leaving me there for
the night.

"When the overseer was going to bed I asked him if he intended to leave
me there all night.

"He said, 'Yes,' and that was the way he intended to serve me every
night until I went to work. It rained heavily during the night.

"At about ten o'clock next morning I was again taken before the
magistrate at Campbell Town, and charged with refusing to work.

"I told the magistrate about the cruel treatment I had received during
the previous night, which, of course, the overseer denied.

"The magistrate, however, believed me, and refused to punish me
further, at the same time telling the overseer that he would recommend
the Governor to order my re-assignment to a more humane master."

This is probably a fair example of the treatment given by Fitch to the
other prisoners whilst he was overseer to the widow's farm. Indeed,
there seemed to be no legal protection whatever for assigned servants,
who were left to the mercy of their masters, and to the caprice and
ignorance of up-country magistrates, who suffered their employers to
give them bad and insufficient food and clothing, and, yet, if they
complained, they were flogged without trial--and many of them were
flogged to death.

Meanwhile, the country became one scene of devastation and plunder,
and the Supreme Court sat continuously, trying and condemning to death
men who had been starved into bushranging, or driven to crime by the
barbarous manner of their treatment at the hands of their inhuman
gaolers.




CHAPTER X.--THE FIRST AUSTRALIAN BUSHRANGERS.

THERE was nothing romantic about the first Australian bushrangers. No
schoolboy tales of Robin Hood or Rob Roy had influenced them to adopt a
life of crime, and no excuses were made for them, as was often the case
with latter-day bushrangers--that they had been driven to their lawless
career by the interference of the police. The early-day bushrangers
were absconders from a system of penal servitude which made life
intolerable. They expected no quarter, and they gave none, preferring
death by the bullets of the soldiers to the slow torture of their cruel
captivity.

Bands of these desperadoes, sometimes numbering as many as twenty in
a gang, would escape from the penal settlements and take to the bush,
under the chimerical belief that they would be able to find their way
to China, or some other country in which they would be permitted to
live human lives.

These miserable people were soon brought to a state of deplorable
wretchedness. Some of them, naked and nearly worn out with hunger,
would subsist for a time on the flowering shrubs and berries of the
woods, until hunger brought them in death, a merciful oblivion, or
drove them once more to the discipline of the lash, the solitary cells,
and the chain.

The bolder spirits among these absconders became savages, and even
cannibals, when necessity demanded, and, forming gangs of lawless
ruffians, they kept the whole country in a state of terror.

The assigned servants upon the farms and stations around Sydney
assisted the bushrangers when the opportunity offered, although in some
instances to their own detriment, so great was their hatred of all
forms of constituted authority; and they robbed their masters, even
with the certainty of detection, so that the outlaws might obtain food
and other necessities to their existence.

The excesses committed by these bushrangers were many and varied, and
were sometimes remarkable for a reckless spirit of adventure. On one
occasion a party of them, having "stuck up" a station, compelled the
owner, his wife, and daughters to drive with them to the township
where a ball was in progress, and there they danced with the girls and
enjoyed themselves among the invited guests. Later on, word being given
them that an attempt would be made to effect their capture, they drew
their revolvers, and, having bailed up the company present, robbed them
of their money and valuables, and quietly decamped.

Nor was their field of operations confined to the country even in
those early days. As late as February, 1842, the house of Mr. Gray, in
Balmain, close to Sydney, was "stuck up." The bushrangers collected
the watches, rings, money, and other valuables, and then compelled Mr.
and Mrs. Gray and the servants to drink tumblers full of sherry wine
to their success. They were very merry, and drank Mr. and Mrs. Gray's
healths. When they departed they took a dozen and a half of sherry and
a dozen bottles of ale with them to have a spree in the bush.

Such was the lawless state of the country when John Fitch became
overseer at the widow's farm, and there is little doubt but that he
himself was in league with the bushrangers, and took part with them in
many of their adventures.

These gangs were continually being joined by fresh recruits, who
remained for a time, and then disappeared. No questions were asked,
and little heed was given to such additions to the gang, although it
was well for Fitch that his identity with the informer at Norfolk
Island was not known, or death by torture would assuredly have been his
portion. But this possible contingency, so far from deterring Fitch
from any lawless undertaking, seemed rather to whet his appetite for
adventure and to add zest to the excitement of the enterprise.

One of the most notorious of the early Australian bushrangers was
Edward Morrison, commonly known as the Raven. The Raven's gang varied
in its composition from time to time, numbers of runaway convicts
joining the gang for a spell, and then returning to their servitude so
as to save their miserable lives from death upon the scaffold, within
twenty-four hours after sentence, which, under the Bushranger Act then
in force, would have been their fate if captured.

One of the many stories told of the Raven was that he "rounded up" the
chief constable of the district, with a party of his men and volunteers
who had gone out to seek for him, and, after having yarded them like a
mob of cattle, took their horses and arms and whatever money they had,
and rode away laughing.

Such was the company in which John Fitch delighted to find adventure,
and that no little profit accrued to him by some of these nefarious
projects is evidenced by the reckless extravagance in which he
frequently indulged upon his now periodical visits to the metropolis.

At this time the consumption of ardent spirits in New South Wales was
immense, and drunkenness and every kind of debauchery were rife and
increasing.

"At the period when I arrived in the colony," writes one of the early
pioneers, "it was lamentable to behold the excess to which drunkenness
was carried; it was no uncommon occurrence for men to sit round a
bucket of spirits, and drink it with quart pots until they were unable
to stir from the spot, and frequently did the settler so involve
himself in debt for drunkenness that it terminated in his ruin."

Indeed, not long before, rum had been the regular and principal
article of traffic in the colony. Lands, houses, and property of every
description, real and personal, were bought and paid for in rum.

It is recorded of one of the officers of the 102nd Regiment that, a
hundred acres of land having been distributed in half-acre allotments
as free grants among some soldiers of the regiment, he planted a
hogshead of rum upon the ground, and bought the whole hundred acres
with the contents of the hogshead. A moiety of this land realised, at
a sale in 1860, 20,000, and it is probably worth three times that sum
now.

"It would appear," says Mr. Justice Burton, in his charge delivered
to the jury at the close of the sessions of the Supreme Court of New
South Wales for the year 1835, "to one who could look down upon this
community, as if the main business of all were the commission of crime,
and the punishment of it as if the whole colony were in motion towards
the several courts of justice."

Such was Sydney, the queen city of the south, at the time of its first
settlement, and up to the introduction of a more liberal administration
of colonial affairs.




CHAPTER XI.--ROSEBANK.

THE colony, in spite of its lawlessness, was at the time in a very
prosperous condition, so far as the ability to make money was
concerned, and James New began to cast his eye upon the rich lands
in the interior, which were then for settlement. A friend with whom
he had been acquainted at home arrived in Sydney among a batch of
free emigrants brought out by Dr. Lang, and they determined to club
their capital together, and to invest in a farm beyond Penrith and
in the direction of the Blue Mountains. This farm they resolved to
work themselves, without having recourse to convict labor, for both
had an equal objection to this species of slavery, which was openly
being carried on throughout the country; and James New, after his
experience of the authorities in the matter of his wife's case before
the Criminal Court, preferred not to bring himself into communication
with the commissioner for the assignment of convict servants, to whom
application for these white slaves was made.

As some recompense for the unjust imprisonment to which she had been
subjected, Jane had now received a free pardon for all past offences,
and when the News and their friend, George Stirling, took possession
of their farm, they determined to shut out from their lives every
association that bore the taint of convictism--that terrible system
which had so debased and degraded the community.

Pleasantly situated among the fertile lands around Penrith, and
watered by the Nepean River, Rosebank, the name given by Jane to their
farm, formed an ideal home. George was a practical farmer of the old
English school, and James, being a tradesman, was enabled to carry
out the necessary buildings and improvements about the place with a
thoroughness that won the admiration of the few neighbors who visited
there. Rosebank soon came to be regarded as a model farm, and many of
the labor-saving contrivances which James had introduced were copied
and approved of by other farmers who saw them.

Jane was now supremely happy, and life seemed to promise a career
of useful work, attended with profitable results to herself and her
husband.

Their boy Dick was an unfailing source of interest to Jane. He had
his pony to ride, and he had already begun to look upon some of the
domestic animals about the house with the air of a proprietor.

From the verandah of the cottage in which they lived, Jane could
see James and George in the fields beyond the home paddock, either
ploughing the land or reaping the crop when in due season the fruitful
earth yielded its harvest. Her own life was made up of pleasurable
duties, and Providence seemed to have bestowed upon her a full measure
of contented peace.

One evening, when the happy family at Rosebank were seated together
upon the green sward in front of the house, the men smoking, and young
Dick enjoying himself in play with a go-cart which his father had given
him, George said he had been talking to a shepherd that morning from
one of the outback stations, who had told him that the bushrangers were
in the district, and that several places had been "stuck up."

"What's the good of making trouble, George?" remonstrated his partner.
"We interfere with no one, and the bushrangers are not likely to
interfere with us. Poor wretches, they are more to be pitied than
blamed, I think."

"Still it can do no harm to be prepared," replied George. "I've cleaned
up the gun and the pistols I brought out with me, and there's plenty of
ammunition if we wanted to make a stand."

"Foolish talk, George," answered James. "If the bushrangers come they
would be sure to outnumber us three to one, and to make any resistance
would only be to encourage them to murder. Besides," he added, more
hopefully, "I don't believe that the gang will trouble us. Why should
they? We work hard ourselves. We own no assigned servants; and they
would get nothing here to make it worth their while to raid the place.
Bushrangers, like other people, have an object in view, even when they
commit crime, and there are many places it would pay them better to
stick up than Rosebank."

Poor Jane had listened to the discussion with a white face. Any
allusions to prisons and law-breakers always made her tremble and she
placed her hand in mute remonstrance upon her husband's arm, and looked
up pleadingly into his face.

"Why, George!" cried James, "you've frightened the wife out of her wits
with your silly talk. Let's have no more of it. There's no chance of
bushrangers coming here, so long as we don't think about them. Talking
about them is just the way to bring them upon us."

But that night, in the privacy of his own room at Rosebank, George
Stirling placed the gun and pistols where they would be handy if he
wanted them.




CHAPTER XII.--TWO NOTORIOUS BUSHRANGERS.

IN order to understand the character of the early Australian
bushrangers, it may be interesting to refer to the true history of two
of the best-known among them. The first is John Lynch, who, on the day
before his execution, made the following remarkable statement before
Mr. Brown, Police Magistrate of Berrima:--


LYNCH'S CONFESSION.

"Soon after I took to the bush I met two persons (one a black boy),
who were driving a cart belonging to Mr. T. Cooper, laden with bacon
and other articles, for the Sydney market. I killed them with an axe
as they lay asleep, hid the bodies under a heap of stones, proceeded
to Sydney, and sold the articles on the dray in Sydney. On my return
up-country with other goods, which I had purchased in Sydney, I fell
in with the Frasers, father and son, with whom I camped for the night.
During the night, a man came and asked me if I had met Cooper's dray
along the road. When he had gone, I feared that the Frasers would
recognise the dray I was driving as Cooper's dray, so I determined to
kill them. In the morning, young Fraser went over the ridge to get in
the horses, and I volunteered to go with him and assist. It was cold,
and I put on a pea-jacket, not to keep me warm, however, but to conceal
an axe that I held under my arm. When I got up to young Fraser, I had
no difficulty in obtaining the opportunity I wanted. I gave him one
crack on the head, and he just dropped like a log of wood. If people
knew how easy it is to take away life, things of this kind would happen
oftener. I then returned to old Fraser, who remained with the dray, and
began yarning to him. After a time he began to wonder what had become
of 'Wully.' I had my axe all right, but would not strike until I could
make sure. At last he turned his head, and down he went. The next
business was to get rid of the bodies. I dragged the old one some yards
out of the way, lest persons passing through the flat might come upon
it, and then returned to the body of the son. With a spade I got from
the dray I dug a hole and buried him. Afterwards I buried the father in
the same manner.

"Next day I got to Mulligan's. I had no notion of trusting them, or
indeed anybody, so I amused them with an account of my being hired to
drive up the dray for a gentleman in Sydney. The family consisted of
the old man, Mulligan, Mrs. Mulligan, her son, a lad of about 13, and
her daughter, a girl about 14. Mrs. Mulligan, seeing chests of tea in
the dray, said she was out of tea, and proposed to buy a chest of me. I
pretended to bargain with her, and asked her how much money she had in
the house. She said, 'About nine pounds.' Next day, in the afternoon,
I pulled out a pound note, and sent to Gray's public-house for rum to
treat them. In the evening we drank together, and got very sociable,
but I took care not to drink too much. Now, it was a cold, windy night,
so I took up the axe, and said I would go out and cut a few barrow
loads of wood for the fire, if John (meaning the young man) would wheel
them in. We went out and had some talk whilst I was cutting up. When I
had finished my work, I took the axe and gave it a back-handed swing
against his skull and threw it down. I threw a quantity of boughs over
the body, and went back to the hut. We had another glass together, and
the mother inquired for her son. I hated this old woman, for she used
to toss cups and balls, and could foretell things. Well, nothing would
satisfy her but that she must go to the door and coo-ee. There was
no quieting the old woman, and I had my eyes upon her inside, at the
same time that I was standing by Mulligan outside. I saw her take up
a large knife and conceal it in her clothes. There was no time to be
lost. I had left the axe on the ground when I had cut the wood, but my
own axe was in the dray, but how to get it without showing my intent?
I pretended that a dog I had was getting troublesome, and took him to
the wheel of the dray to tie him up; this gave me the opportunity of
getting the axe, and placing it, unperceived, under my thick coat.
By this time the old woman, who seemed bewitched, would be content
with nothing short of going outside and looking for her son. She went
towards the spot, and begun moving the boughs which covered the body.

"Now or never, I thought. Mulligan, who was close behind me, turned
his head. One blow, and down he went. I then hastened towards the old
woman. She was in the act of returning, having found her son's body,
but, playing cunning, she said, 'Lord, what brings the police here?
There are three of them getting over the fence.' I was not to be gulled
that way, so I gave her my foot, which staggered her, and then brought
her down. Now remained but the little girl. Poor little thing; she had
never done me any injury, and I was really sorry for her. I went into
the hut, where she remained, and said to her, 'Now, my little girl,
I will do for you what I would not do for others, for you're a good
girl. You shall have ten minutes to say your prayers.' As she would
do nothing but cry, however, and attempt to run out of the hut, I was
obliged to kill her at once. I now began to consult with myself as to
the best mode of disposing of the bodies, and finally I burned them
upon a heap of logs close to the house. I then burned the greater part
of Mulligan's clothes, and made such alterations in the house as I
deemed necessary, for I still had a difficult card to play, and must
satisfy neighbors that I had rightly become possessed of Mulligan's
farm, horses and cattle. This, with little difficulty, I succeeded in
doing, and I now comfortably settled at the farm, intending to live
honestly, and do everything fair and square.

"Returning home on one occasion from Sydney, I encamped on the north
side of Razorback. In the morning, while on the point of starting, I
was met and accosted by a strange man, who seemed very free and open in
his conversation. I spoke him fair, and, after some more talk, I hired
him for six months for 15. When we got to Crisp's he hid himself,
and on my asking him all about it as we got on the road, he gave me
an account of having accused Mr. Crisp, before the magistrates, of
stealing a bundle that he had left at the house. From his account I
perceived he was a kind of lawyer, and fond of court, and, on getting
better acquainted with him, I found he was by no means so simple as I
at first supposed, but had a deal of cunning about him. We encamped
on the spot well known to you, sir, and I then began to think what I
should do, I was greatly agitated, and could not close my eyes, while
the other fellow slept like a pig. What was I to do? If I took this
fellow, with his law, to the farm with me, it would certainly be my
ruin. We had been seen together by so many people on the road that
there would be great risk in killing him; but, everything considered,
it seemed the safest and best plan after all. Next morning, after
putting in the horse, I set my eye upon him. He was a powerful-made
man--I, small as you see I am; and he had boasted to me that, since
he was 15 or 16 years old, he had never met the man who could throw
him. Well, my man, I thought, I fancy I shall be able to settle you,
notwithstanding your fine limbs. He had just laid down the tomahawk
with which he had been cutting a little wood to make up the fire. I
took it up without his perceiving me. He sat astride on the log, close
to where our fire was, smoking his pipe, thinking of nothing. His head
was a little turned from me. I gave him one blow; and he fell; and then
another when he was down, but the first settled him. I then hid the
body under some bushes, where it was found next day. I intended to have
returned, as soon as I conveniently could, and buried the body; but my
time was come. I remember taking off his belt, the discovery of which
at my house was the strongest evidence against me at my trial, and
throwing it into a small waterhole, but afterwards perceiving the end
of it above the water, and fearing to leave it there, I pitched it into
the cart, and never thought of it since. This was Sunday. I returned
home, and on Tuesday I was apprehended by your orders. You know sir,
how, by degrees, everything came out.



THE STORY OF WILLIAM WESTWOOD.

William Westwood, better known as Jackey Jackey, was an errand boy in
England, and was transported for some trifling offence when he was only
sixteen years of age. He landed in Sydney in 1837, and was assigned to
Mr. Philip Gidley King, at Gidley, in the Goulburn district. He stayed
at the station three years, and then, in company with a notorious
bushranger named Paddy Curran, stuck up and robbed his employer's
house. Jackey Jackey then took to the bush, and made some pretence at
what may be called the "heroics" of bushranging. He declared that even
if a man was a bushranger, he might be a gentleman, and predicted that
he would never see a woman insulted. More legends are collected round
the name of Jackey Jackey than round that of any other bushranger. He
is said to have bailed up the carriage of the Commissary, and when he
discovered the Commissary's wife was inside, he dismounted, opened the
door, and, sweeping the ground with his cabbage-tree hat, invited her
to favor him with a step on the green. He rode incredible distances in
incredibly short periods of time, bailing up a man near Goulburn, and
telling him to note the time by his watch, and then racing away and
bailing up another man at Braidwood, a hundred miles away, and asking
that person to note the time. In order to accomplish these remarkable
journeys he was always well mounted. He scorned to steal an inferior
horse, and would travel miles to secure a racer. He stole racehorses
from Mr. Murray, Mr. Julian, and many other gentlemen in the district
over which he ranged.

One day a man ran into the township of Bungendore, and said that Jackey
Jackey had followed and fired at him. A few minutes later Jackey
Jackey himself, mounted on a splendid horse, which he had stolen from
Mr. Macarthur, hove in sight on the plains. He was dressed in a fine
suit of clothes, which he had obtained when he stuck up and robbed the
store at Boro a few days before. In a spirit of reckless bravado he
rode into the town, where he was surrounded and eventually captured.
Being handed over to Lieutenant Christie, he was taken to Goulburn and
lodged in the lock-up, from which he eventually escaped, taking with
him the watch-house keeper's arms and ammunition. Next day he procured
a horse, and on the following day stuck up Francis Macarthur on the
Goulburn Plains. He robbed Mr. Macarthur of his watch, money, and other
valuables, and took one of his carriage horses because it was better
than the animal he was riding.

Jackey Jackey did not long maintain his freedom, however. He one day
went into Gray's Black Horse Inn, on the Berrima-road, called for some
refreshments, went into a sitting-room, and threw himself on the sofa.
He was served by Miss Gray, and while he was drinking she pounced
upon him and screamed. Her father and mother came to her assistance;
but Jackey Jackey fought with so much determination that he would no
doubt have got away had not a carpenter named Waters, who was working
near, rushed in and struck him on the head with his shingle hammer.
Knocked senseless, the noted bushranger was easily secured. It will
be remembered that Gray's Black Horse Inn was about three miles from
Mulligan's farm, and was the place where Lynch had bought the rum to
treat Mr. and Mrs. Mulligan just before he murdered them.

Jackey Jackey was tried and convicted, and was sentenced to penal
servitude for life, being first confined in Darlinghurst Gaol, Sydney,
but, being detected in an attempt to escape, he was transferred to
Cockatoo Island, at the mouth of the Parramatta River. While there
he organised a band of twenty-five prisoners, and made a desperate
attempt to escape. The gang overcame and tied up a warder, and then
jumped into the harbor, with the intention of swimming to Balmain. The
water police, however, were apprised of the mutiny, and captured the
whole gang. The gang were tried for this attempted escape, and were
sent to Port Arthur, Van Diemen's Land. Being such a desperate lot of
scoundrels, they were chained down in the hold of the brig in which
they were forwarded for safety; but, in spite of this precaution, they
contrived to get loose, and were only prevented from capturing the brig
by the hatches being put on and battened down. They reached Port Arthur
in an almost suffocated condition, and were nearly starved, as they
had had no food for several days; the captain of the brig not daring
to remove the hatches, either to let in air or to pass food to the
prisoners. Jackey Jackey succeeded in escaping from Port Arthur, and
immediately resumed his bushranging career. He was captured, however,
and sent to Norfolk Island, where he headed a mutiny, which was
overcome. He was again captured, and sentenced to death. In his letter
to the chaplain from the condemned cell he expresses himself with a
good deal of intelligence upon the convict system in the following
terms:--

"I started in life with a good feeling for my fellow man. Before I
well knew the responsibility of my station in life I had forfeited
my freedom. I became a slave, and was sent far from my country, my
parents, my brothers and sisters--torn from all that was dear to
me--and that for a trifling offence. Since then I have been treated
more like a beast than a man, until nature could bear no more. I was,
like many others, driven to despair by the oppressive and tyrannical
conduct of those whose duty it was to prevent us from being treated
in this Way. The crime for which I am to suffer is murder. Reverend
sir, you will shudder at my cruelty, but I only took life--those whom
I deprived of life, though they did not in a moment send a man to his
last account, inflicted on many a lingering death. For years they have
tortured men's minds, as well as their bodies, and, after years of
mental and bodily suffering, sent them to an early grave. This is what
I call refined cruelty, and it is carried on by Englishmen, and under
British laws. Will it be believed hereafter that this was allowed to be
carried on in the nineteenth century?"




CHAPTER XIII.--DEAD-MAN'S HOLLOW.

DEAD-MAN'S HOLLOW was the name given to a valley near to the Blue
Mountains, enclosed on all sides by precipitous cliffs, there being
only one natural entrance to it, which, in early times, was easily
closed with a short span of brushwood, so that stock turned into the
valley could not escape. This was known among the old hands as "The
Camp," "The Shelter," or "The Pound." Later on the valley came to be
known, from the horrible tales told of the convicts who made use of it,
as "Dead-man's Hollow."

One of the causes from which "Dead-man's Hollow" derived its name was
the following dreadful narrative, afterwards vouched for, as was often
the case, by condemned convicts on the eve of execution:--


A settler near the valley was reported to have received a large sum
of money from Sydney, and this becoming known to the bushrangers,
they determined to rob him of it. They bailed up his place, tied his
assigned servants, and made a search for the money, but could not find
it. The settler declared that he had not received any money, but this
statement was not believed, and he was threatened with instant death
if he did not disclose its hiding-place. He persisted in his previous
assertion that he had no money, and a consultation was held by the
bushrangers to decide what should be done with him. Finally it was
resolved to take him to Dead-man's Hollow, and there force him to say
where the money was hidden. When they got their victim to the place,
they tied him to a tree, and built a circle of brushwood round him, at
some distance away, set fire to it, and slowly roasted him to death.
His screams, so it was stated in the confession, were frightful, but
none heard him in that desolate place, except the wretches who were
torturing him, and they had been rendered so callous to human suffering
by their own ill-usage at the hands of the authorities that they only
laughed at his agonised cries.


In Dead-man's Hollow were camped the leading members of the Raven's
gang--Edward Morrison (the Raven), John Everall, John Shea, Robert
Chilty, James Bryant, and John Marshall, where they had taken shelter
after having robbed Captain Horsley's farm of some valuable stock and a
large sum of money, under the following circumstances:--


Captain Horsley was awakened by the continued barking of his dogs. He
rose, and went out on to the verandah, when three men suddenly rushed
at him, and compelled him to surrender. They then took him back to his
bedroom, where they made him lie down upon the bed and cover his face
with a pillow.

The Captain and Mrs. Horsley were then informed that if either of them
moved they would be shot instantly.

The bushrangers next demanded the keys, with which they opened drawers,
cabinets, and cupboards, and helped themselves to jewellery, money,
and plate, when they decamped, taking with them also several valuable
horses, besides sheep and cattle.


As this raid was likely to cause some stir in the district, the
Raven's gang had retired with their plunder to Dead-man's Hollow, the
whereabouts of which was at that time unknown to the police, and here
they were joined by John Fitch, who was none other than the man who had
represented himself to George Stirling as the shepherd from the outback
station, and who had spoken to him about the bushrangers.

Morrison and Fitch were, in fact, partners in the proceeds of the
robberies which they from time to time committed, and Fitch, having
viewed the booty obtained from Captain Horsley's, made the following
proposition, to the Raven's no little astonishment.

"I'll give my share and more," he said, "for a job that'll cost you
nothing, and is an easy one besides."

The Raven pricked up his ears at this, and an evil smile came over his
face as Fitch continued.

"There's a girl at a farm not far from here," whispered Fitch, "that I
used to know in England. She's got married now, or thinks she is, to a
man named James New, and the name of their place is Rosebank. Well, I
want her, d'ye see, for I reckon she's more mine than any man's, seein'
that she was my wife first."

But the Raven was not to be taken in after this fashion.

"If she's yer wife, why don't yer take her then?" he said. "The law'd
give her to you, wouldn't it!"

"Well," answered Fitch, "it's this way. There might be some difficulty
in proving the marriage, and some might say it wasn't legal. Anyhow,
I want her fetched here, and then I'll soon let her know if I'm her
master or not. It's an easy job; there's no one at the place except two
softies, who'll make no resistance if they're taken on the hop, for
they suspect nothing. Come, what do you say! There's my share of the
swag, and fifty pounds in gold if you bring her here and hand her over
to me by this day week."

"It's a deal," said the Raven; and so the bargain was concluded.




CHAPTER XIV. THE ABDUCTION OF JANE NEW.

LIFE at Rosebank had resumed its ordinary course, and, since the night
of the conversation about the bushrangers, no further allusion (at
James' particular request) had been made to the subject.

"It only frightens the wife," he said to George, "to talk about such
things. Better let sleeping dogs lie, and not look for trouble before
it comes."

But George, although, in deference to his partner's wish, he kept his
fears to himself, could not help feeling uneasy.

One morning, when James and his partner George were in the cultivation
paddock, at some little distance from the house, they were surprised
to see four men riding in the direction of the homestead, and, as it
flashed upon them that a party of this sort could only mean a raid,
they started to run for the house, which they reached breathless, just
as the visitors had reined in their horses in front of the verandah,
upon which Jane stood, with her boy clinging to her in terror, while
she gazed with startled eyes at the intruders.

"Well, mates," began James, boldly, for he thought it best to put a
brave face on the matter, "is there anything I can do for you?"

"Not much that we can't do for ourselves," replied one, who appeared to
be the leader of the gang.

"It's a bit rough to come up to a man's place like this," continued
James, still pretending to ignore what he felt must be the reason of
their visit.

"It'll be a bit rougher before you get through with it, I guess,"
replied the bushranger, for such James knew him to be. "Come--hands
up!" he added, drawing his pistol, and presenting it within a few
inches of James' breast, while his mates covered George and Jane with
their firearms. "Take it quiet, and you'll come to no harm; resist, and
yeu've looked your last upon this world, whatever may be your chances
in the next."

George thought regretfully of his pistols in the bedroom, for he would
dearly have liked to have made a fight for it; but, as it was, there
was nothing for it but to submit, and very soon both he and James were
securely bound, each to a verandah post, where they stood helpless, and
at the mercy of the robbers.

"If it's money you want," said James, "there ain't much of it in the
house, but what there is you may take. There's 9 in my desk in that
little room off the verandah, and the key is in my coat-pocket hanging
up behind the door. I won't say you're welcome to it, for I can ill
spare it; but take it, and I promise that no word shall be given of
this robbery to the police. I am a quiet man. I interfere with none,
and all I ask is to be left in peace."

"It ain't money we're after," answered the bushranger, meaningly,
"though I'll take that 9, for money is always useful."

"Not money?" replied James. "Horses I have none, except the draught
horses and the boy's pony, which would be no good to you, I fancy," he
added, trying to smile.

"It ain't horses neither," replied the bushranger.

"What then?" asked James, a chilling fear suddenly coming upon him.

"It's this young woman we want," answered the bushranger, pointing to
Jane, who sank cowering at her husband's feet. "Her who has run away
from the man who owns her, so it seems, who has sent us to fetch her
back to him!"

"Why, man, what are you saying!" cried James, scarcely able to believe
his ears, while George tugged at his bonds in a manner which threatened
to carry away the post to which he was tied. "Jane is my true and
lawful wife, and this is our boy. We have never harmed you. Why should
you come here to interfere with us?"

"We ain't no call to say why we're here," said the bushranger,
scowling. "But, what we've got to do is to take that young woman back
to the man who claims her--and we're come to do it!"

But at this Jane clung to her husband, who, bound and helpless as he
was, endeavored to console her, and it was not until the ruffians tore
her from him that she realised she was indeed to be separated from her
home and her child.

In a flood of tears, that would have moved less stony hearts, the wife
and mother begged her captors to have some pity on her; but they only
laughed, and told her she would enjoy a merry time with the gang at
Dead-man's Hollow.

At the mention of this ill-omened place, James shuddered, for, in
common with most of the colonists of that time, although he did not
know its location, he had heard of the place, and of the outrages said
to have been committed there; and he vowed that, if life was spared
him, he would not rest until he had traced the gang to their lair, and
revenged himself for the wrong they had done him.

"Farewell, dear husband!" cried Jane, as they bore her away, "death
shall find me before I yield to those who would part us."

It was more than an hour before James and George obtained their release
at the hands of a neighbor, who, riding by, happened to hear their
cries for help, and by that time the bushrangers had obtained such a
start as to make all chance of overtaking them hopeless. But the police
were informed, and an expedition was arranged to follow the outlaws,
and, if possible, effect a capture.




CHAPTER XV.--THE MURDER IN KENT-STREET.

IT was said of John Fitch, at this time, that he began to show in his
demeanour certain signs which it was afterwards urged on his behalf
were proofs of his insanity.

His behaviour, indeed, became so strange that none were surprised
when he suddenly left the farm at Campbell Town and came to Sydney.
While in Sydney, at the house of Charles Hallewell, he left to keep an
appointment he had made. This appointment, as subsequent events proved,
appears to have been with Mrs. Jamieson.

Mrs. Jamieson, an elderly woman, residing at the corner of Kent-street
and Margaret-place, had known Jane and her husband when they were
resident in Sydney, and she had formed a liking for Jane, whose cruel
fate had won her sympathy. It is also probable that she was acquainted
with Fitch, and had some knowledge concerning him that would have been
sufficient to cause his arrest. It is certain that when the news of
Jane's abduction reached her, Mrs. Jamieson sent for Fitch, and that he
came to Sydney for the purpose of seeing her, but all that happened at
the interview will never be known.

Fitch was observed by Mr. Shalless, a builder, who resided in the
neighbourhood, to be lurking about the door of Mrs. Jamieson's house,
in a suspicious manner, for upwards of an hour and a half, as though
undecided whether or not to go in, and he was finally seen by the same
party to enter the house, when, suspecting the evil nature of his
designs, Mr. Shalless ran up to the door and listened.

Presently he heard, as he afterwards described it, a noise like that
of someone breaking a cocoanut with a hammer. Suspecting foul play, he
procured the assistance of Mr. Jaques and others, by whom the house was
surrounded, and the alarm given.

From an upstairs window, Fitch was observed to push aside the blind and
look down on those below for a moment, when, on seeing that the house
was watched, he hastily withdrew.

Now thoroughly alarmed for the safety of Mrs. Jamieson, those without,
headed by Mr. Shalless and Jacques, forced an entrance into the house,
where they were horrified to find Mrs. Jamieson lying with her head
dreadfully cut, and her features battered almost beyond recognition.

Fitch, who was discovered on the premises, was taken to the lock-up,
and on searching him a pocket-book was found on him containing money
and bank notes. But--and here comes the most singular part of this
strange and terrible affair--there were also found upon him six bank
bills for fifty pounds each, drawn in his favor by his friends in
England, and not yet presented for payment.

Robbery, therefore could not have been the motive for the deed, and
the only conclusion to be arrived at was that Mrs. Jamieson must have
threatened her murderer with disclosures of some kind if he did not
reveal the whereabouts of Jane New, and take the necessary steps to
restore her to her husband.

The feeling of indignation and horror which the news of the murder
of Mrs. Jamieson aroused among the Sydney people was succeeded by a
universal expression of surprise when it became known that Fitch had so
large a sum of money upon him at the time, and to which he appeared to
be honestly entitled.

The murder itself would probably not have excited much comment, for
murder was, unfortunately, only too common in those days, and for a
man such as Fitch to become a murderer seemed but a natural corollary
to his career. But that he should risk his neck in such an apparently
objectless crime, whilst possessing ample means wherewith to gratify
his evil propensities, became a mystery which awakened an interest
never before conceded to a criminal in New South Wales.

As might have been expected, in such a community, the moral aspect of
the crime became absorbed in the more material money consideration
attaching to it.

With almost Satanic ingenuity, Fitch had hitherto succeeded in avoiding
the punishment due to his offences, for at no time had be been treated
like the other convicts, and it seemed almost incredible that he
should have placed himself beneath the shadow of the scaffold for no
apparently adequate reason.

In the ordinary course of events, as the judge who subsequently tried
him pointed out, Fitch would have been entitled to a pardon for his
past misdeeds, and he might have ended his days in comfort, and even
in comparative affluence. But all such considerations were thrown to
the winds when opposition was offered to the plans he had formed, and
when the desire to kill came upon him. What wonder then that men should
stand aghast at such a crime? What marvel that popular belief should
gain ground that Fitch had been instigated to the murder by the Evil
One, who had led him to the brink of the precipice over which he had
hurled him to his doom.

Amidst the excitement which prevailed, Fitch preserved a calm and
unruffled exterior. He expressed no sorrow for what he had done, nor
would he give the reason which prompted him to the deed.

Of his own situation he appeared to be wholly insensible, and this fact
was regarded, as remarkable even among those who were accustomed to the
study of criminology in its many varied forms, at the time of those
dark days which are now happily forgotten, or at most have become but
memories of the past.




CHAPTER XVI.--THE CAPTURE OF THE RAVEN'S GANG.

AMONG the papers found upon Fitch was a rough tracing of the path to
Dead-man's Hollow, the secret of which had been so jealously guarded
by the bushrangers who made use of it. Whether it was the intention of
Fitch to betray the gang to the police, and so obtain the Government
reward offered for their capture, can only be surmised, but, possessed
of this important clue, the constables, assisted by soldiers and
volunteers, among whom were James New and George Stirling, lost no time
in setting out to find the place which had hitherto evaded their most
careful search.

Unaware of what had happened, the Raven's gang, believing themselves
secure in their retreat, made no attempt to guard against surprise.
They had for so long escaped capture that, with the recklessness of
their class, they took no thought of the time when discovery would be
inevitable, and at Dead-man's Hollow they indulged themselves in a
manner which, on their bushranging excursions, they were careful to
avoid.

It was among this boisterous crew that poor Jane was introduced after
her abduction from Rosebank, but the Raven, being determined to carry
out his part of the bargain with Fitch fairly, let it be known that
Jane was not to be molested, and she was placed in a hut by herself,
until the man to whom she owed every misfortune in her life should come
to claim her.

A prey to the most dismal forebodings, Jane paced the circumscribed
limits of her prison in a vain endeavor to form some plan of escape,
and she vowed, more than once, that she would die by her own hand
sooner than submit herself to the evil genius at whose instigation, she
made no doubt, she had been brought to her present plight. That her
husband and George would leave nothing undone to save her, she well
knew, but what chance had they of finding this secret place, which had
eluded the watchfulness of the police for so long?

Meanwhile the gang continued their revels, and occasionally the sound
of laughter, or the verse of some ribald song, would reach the ears of
the prisoner, who every moment dreaded the appearance of her abductor,
which she had resolved would be the signal for her own death.

During the day of her capture, however, no one came to molest her, nor
did she see any of the gang, save the one who brought her food, and
whose behaviour, though surly, was civil enough, and when night came
exhausted nature brought her some relief in sleep.

For same days the hours dragged wearily on, until late one afternoon
she was startled by the noise of firearms.

John Everall was the first of the gang who noticed the approach of
those who had come to take them, and he immediately ran with his
intelligence to the hut in which the Raven had his quarters, and where
he passed his time more soberly than his companions, by reason of which
he had become their leader.

Rushing out of the hut and calling his men together, the Raven was
confronted with the carbines of the soldiers, while a police officer
called upon him, in the King's name, to surrender.

The answer was a volley, fired from the pistols and muskets with which
the bushrangers were armed, and the fight then became general.

The attacking party, composed of twenty soldiers, the police, and
the volunteers who accompanied them, far outnumbered the gang, who
mustered but twelve all told; but they were desperate and determined
men, without hope if captured, and therefore prepared to sell their
lives dearly in their last stand. Had they not been taken unawares, it
is doubtful if any would have been captured, but when the Raven, and
some of the more prominent members of the band, had been shot dead, the
others, finding themselves surrounded and outnumbered, surrendered, and
were quickly secured.

Jane, locked in the hut, was unable to understand the firing, although
she fervently prayed that it might mean a rescue. Presently she heard
footsteps approaching the hut, and then the sound of blows upon the hut
door warned her that an entrance would soon be effected.

Very pale, but unswerving in her resolve, Jane drew the knife, which,
unknown to her captors, she had secreted about her person when she
first caught sight of the men riding towards the homestead at Rosebank,
and had guessed their purpose. A few moments and the door yielded, and
then, with a cry of recognition, she felt herself caught in the welcome
embrace of her husband's protecting arms.

Of the gang were captured James Bryant, John Marshall, and three
recruits who had lately joined the bushrangers, Morrison (the Raven),
John Everall, Robert Chitty, and four others being shot dead. Owing to
the superior position occupied by the attacking party, the casualties
on their side were confined to the wounding of two police constables.

It was in this manner that the valley, once known as Dead-man's
Hollow, fell into the hands of the authorities, who, as time went on,
constructed a fine road across it for the benefit of the settlers.




CHAPTER XVII.--THE CORONER'S INQUEST.

BETWEEN seven and eight o'clock on the morning of Thursday, January
18th, 1844, Mrs. Jamieson died from the effects of the murderous
assault which had been made upon her, and, on the same day, an inquest
was held at McKenzie's public-house, at the corner of Clarence-street
and Margaret-place.

The excitement with which the news of this cruel murder had inspired
the public mind was so intense as to make it necessary to provide
special police protection for the accused during his conveyance from
the gaol to the hotel at which the inquest was held. He had been the
author of so many atrocious crimes, for the commission of which he had
hitherto escaped such punishment as was commensurate with his guilt,
that he appeared to consider himself immune from correction, and he
bore himself with a callous indifference which was calculated to
augment rather than allay the popular feeling against him.

After the Coroner's Court had been opened on the day of the inquest,
the following jury was empanelled:--Alfred Sandeman (foreman), James
Harden, Henry Vaughan, Clement Peate, John Hayes, Charles Sweedie,
Michael Brignell, William Clarke, Jas. Briars, John White, John Lakin
Drew, William Robertson, John Walsh, and Charles Williams.

The Coroner having briefly addressed the jury on the nature of the case
they were about to investigate, and reminding them that they were to be
guided entirely by the evidence, directed them to view the body.

After viewing the body, the jury returned to the court-room, when the
following evidence was taken:--

John Shalless, builder, Margaret-place, deposed:--


I recollect the night of the 6th instant. I had been very unwell
all day, and about 10 p.m. had taken some medicine and was about to
go to bed. Mrs. Shalless took the keys out of the room doors, and,
on inquiring the reason, I was informed that was was done by way of
precaution, as the boy had stated there was a suspicious-looking man
lurking about.

On looking out of the door I saw the prisoner standing on the bank
opposite the door. I told Mrs. Shalless he was, in my opinion, after no
good, and I would watch him.

I then went out on to the verandah, and saw him walking up and down. He
occasionally stood still, but always moved when anyone passed.

I observed to my wife that the deceased seemed to have a good run of
business. About ten minutes to twelve I saw her at the door, and I saw
the prisoner go up and say something to her, when she went in, and he
followed, and pushed the door about three parts close, so that I could
not see him.

I then saw deceased round the corner with something like a pot or
measure in her hand. A woman then entered and came out again; after
which a man went in, and the prisoner came out and began walking up and
down as before. He sat down on the curb-stone near the house, and I saw
him pelt off a white dog belonging to deceased.

The people who had been in the shop having come out, Mrs. Jamieson came
to the door again, and was in the act of wiping her hands, when the
prisoner again went up and spoke to her, and followed her in, pushing
the door to as before.

I remarked to Mrs. Shalless, "There is that fellow going in again to
that old woman's shop. I hope he does not mean to rob her." Soon after
this I saw the door slammed to, and heard a noise of something falling,
as it were, on the floor. I told my wife I feared he was murdering her;
ran over and found the door locked, and heard some strokes given as of
someone breaking a cocoanut with a hammer.

I heard no further noise after this, but, in looking up, I saw a light
moving upstairs, and the prisoner at the window. He drew aside the
blind and looked out. I then gave an alarm to the old watchman who was
passing that there was a man in the house who had murdered a woman,
and who was upstairs rifling the house, and asked him to give me
assistance; but he declined doing so, saying, "Well, what is that to
me?" He stood by all the rest of the time, but I did not see him render
any assistance.

I then ran up to this house, having got assistance, and saw the light
put out upstairs. We agreed to break open the back-door, at the same
time keeping a watch in front. After an entrance had been effected by
the back-door, the prisoner was found standing inside, behind the front
door, when he was secured.

On entering the house I found the deceased lying insensible, covered
with blood, which was flowing profusely from some wounds in her head.
There was no other person in the shop besides the prisoner and the
deceased, but there were two children in bed upstairs.


Richard C. Smethurst deposed:--


I was passing down Margaret-place about twelve o'clock, when, hearing
an alarm given that there was a man murdering Mrs. Jamieson, I ran
home, got a stick, and returned.

An axe was obtained from outside the house with which the watchman
broke in one of the panels of the back door. We forced open the back
door, and found Mrs. Jamieson lying bleeding and insensible. A light
was obtained, and the prisoner was found standing behind the front
door. On being secured, he called out twice, "Oh, don't strike me!" The
police then came and handcuffed the prisoner, and took him away.

On going upstairs I found no one in the house but the two children of
the deceased, who were in bed crying. A doctor was sent for, and I then
left, having searched the house for the weapon with which the injuries
to Mrs. Jamieson had been inflicted, but found only a stick.


Alfred Jaques, a grocer, Barrack-lane, deposed:--


Being alarmed by a cry of "Murder!" about midnight, I repaired to the
premises occupied by deceased, accompanied by the watchman. We went
to the side door, which we struck with our sticks, demanding who was
within, but got no answer. The watchman, Mr. McKenzie, and myself then
forced an entrance by the door leading into the yard.

After the first stroke on the door I heard a groan, and also the
step of a man's foot, it being too heavy for that of a woman. I
passed through the back of the front door, where I found the prisoner
standing. On seizing him, he made no resistance, but asked me twice not
to strike him.

On lifting up Mrs. Jamieson, I saw her skull was fractured, and a part
of the brain protruding. I afterwards picked up a portion of her skull.
I and others then searched about an hour for the instrument which had
inflicted the wound, but found nothing likely to have inflicted it.

About two hours after this I saw a tomahawk handed downstairs with
fresh marks of blood on it. The blood was quite fresh and damp on it.
The tomahawk now produced is the one I saw. There are marks of blood on
the side and on the handle, but the hairs are gone; they were on the
edge of it. My wife found the tomahawk under the bed of the deceased,
between the battens and the mattress.


Mrs. Jaques, wife of Alfred Jaques, deposed:--


About two hours after Mrs. Jamieson had been removed upstairs, while
searching for the instrument which had inflicted the wounds upon her,
it occurred to me to look under the bed, when, on looking at the foot
of it, and lifting up the mattress, I found the tomahawk produced, one
side of which was splashed with blood.

I was next-door neighbor but one to deceased.


Charles Hallowell, of Clarence-lane, deposed:--


The prisoner had lodged with me for about five weeks up to the night of
his apprehension. This tomahawk is my property. It has been mine for
some years. It lay in my backyard, to which the prisoner had access.

Hearing the alarm of murder, I went to the house of the deceased, and
was there when the tomahawk was found. I knew it immediately. When I
last saw it in my yard, it had no marks of blood such as these now on
it. It had not been used for months.

When the prisoner last left my house, it was about seven o'clock
on the morning of the day when Mrs. Jamieson was murdered. He was
introduced to me by Mrs. Craig, to whom he was to be married, as a free
man. He told me he was the owner of the Harriet coaster, and said
he was merely waiting till he got the vessel sold to pay me for his
five weeks' lodging. While he lodged with me, his conduct was always
regular. Mr. Lewis, of the Harriet, has since told me that the
prisoner was a ticket-of-leave holder once employed by him.


Mrs. Elizabeth Brown, residing at Kent-street, deposed:--


I went into the shop of deceased about twenty minutes to twelve on the
night of the murder. On entering I saw the prisoner behind the door.
I said to Mrs. Jamieson, "You have got a man behind the door." She
replied by a short laugh. The prisoner was that man. He got a bottle of
vinegar, bade her and me good night, and went away.

I used to mangle and mend for deceased. This is her pocket-book. I know
it by the mending on this corner. I know deceased used to have money.
She has frequently changed notes for me.

I have been one of those who attended on the deceased. I saw her expire
at half-past seven this morning, and had been with her previously at
half-past five. The body viewed by the jury is that of Mrs. Jamieson.


Other evidence having been given to the same effect, the prisoner
was called upon for his defence. He asked the jury not to be led
away by anything they had heard out of doors. As a jury of free-born
Englishmen, he trusted they would give him a fair trial, which it was
the right of everyone, circumstanced as he was, to demand at their
hands; for if they were guided by anything they had heard, or which
they had read in the newspapers about him, he would not be receiving
that justice he had a right to expect.

The jury, after a minute's consultation, returned a verdict of "wilful
murder" against the prisoner, John Fitch, who was committed to take his
trial.

After the warrant of committal had been made out, a constable informed
the coroner that the inspector, fearing that the crowd about the place
would lay violent hands on the prisoner for the purpose of showing
their detestation of his conduct, had sent a hackney coach to convey
him to gaol.

The Coroner said that he could not assent to any such arrangement, as
there were circumstances in the previous history of the prisoner which
might lead some persons to suppose that he was favored on that account.
From what he could judge of the public feeling on the subject, if there
had been no constables to remove him, the people themselves would
escort him to gaol. He then directed him to be removed through the
streets in custody of two or more constables, like any other prisoner.

A second message on the same subject was afterwards communicated to
the coroner, in consequence of the crowd without, numbering some five
hundred persons, continuing to manifest feelings of hostility against
the prisoner, upon which the coroner left it to the police to use their
own discretion.

A few minutes later a coach drove up, and the prisoner was hurried into
it amidst the hootings, hissings, and other marks of disapprobation
from those who had assembled to hear the result of the inquest.




CHAPTER XVIII.--THE CASE FOR THE CROWN.

THE case came on for trial in the Supreme Court--criminal side, on
Wednesday, January 24th, 1844, before his Honor Mr. Justice Burton,
and the following jury: John Tringcombe, foreman; William Woolscott,
James Lethbridge, Templar James Upton, George Talbott, George Venables,
Frederick Thompson, James Urquhart, W. J. H. Thorne, Peter Henry
Valentine, John Brown Viles, and George Tabor.

John Fitch was placed at the bar indicted for the wilful murder of one
Ellen Jamieson, by striking her on the head with a tomahawk, on the
sixth of January instant, thereby inflicting divers mortal wounds, of
which the said Ellen Jamieson expired on the eighteenth of the said
month.

A second count of the indictment charged the prisoner with having
committed the assault, which caused the death of the said Ellen
Jamieson, by forceably casting her on the ground, and beating her with
his hands and feet.

Mr. Lowe, who appeared as counsel for prisoner, endeavoured to oppose
some technical objections, which were overruled by the Bench. He then
endeavoured to procure a postponement of the trial on the affidavit
of the prisoner setting forth the absence of one essential witness,
but, the affidavit being defective, his Honor would not entertain the
proposal, and the trial was consequently proceeded with.

The Attorney-General then opened the case on behalf of the Crown,
remarking that when they had heard the information read, and found
the prisoner at the bar was indicted for so serious a charge as that
of murder, a charge which, if proved, would entail the forfeiture of
his life--be presumed that he need scarcely caution the jury against
allowing themselves to be influenced by any reports which they might
have heard out of Court.

They had heard an affidavit read in support of an application for a
postponement, one of the reasons for which was the excitement alleged
to exist in the public mind, at the present time, to such an extent as
probably to prevent the prisoner from having a fair and impartial trial.

This statement, perhaps, alluded to the publication in the newspapers
of the evidence and proceedings at the Coroner's inquest, which had
been held upon the body of the unfortunate deceased; and, although
it must be admitted that the publication of proceedings of this
description did much good, it could not be denied, on the other hand,
that they were calculated to produce much evil; and the greatest evil
probably of all was its possessing the public mind with a chain of
evidence and circumstances which might not be made evident in the
trial, and then perhaps create a prejudice against the prisoner.

If any of the jury had read the reports alluded to, they must dismiss
them wholly from their minds, and form their opinion solely upon the
evidence which he, the Attorney-General, might bring under their
notice, by which evidence alone the case must stand or fall.

He presented the case to them, not as one of peculiar interest, but as
an ordinary case of murder; a crime, he was sorry to say, too common in
this colony; for although the prisoner might have acquired a sufficient
notoriety to occasion a crowd of persons to come to the Court for the
purpose of hearing his trial, there was no reason why any distinction
should be made upon that ground between this and any other case of a
similar description.

The Attorney-General then went into a detail of the circumstances of
the case, and concluded by saying that, if the instructions with which
he had been furnished were to be depended upon, he would be able to fix
the guilt of the prisoner beyond the possibility of doubt.

On the part of the prosecution several witnesses were then examined,
and the same facts were brought out as those disclosed at the Coroner's
inquest up to the time of his arrest.

After the arrest, and on getting to the watch-house and searching him,
a woman's pocket book was found upon him, containing ten shillings, and
eighteen sixpences. The searchers also found upon the prisoner a bag
containing 4/2/8 in silver, one pound in gold, six one-pound notes,
and one five-pound note, the whole of which money had been concealed
on various parts of his person. Besides this money, they found on the
prisoner six bank bills for 50 each, drawn in the prisoner's favor,
and, as yet, unpresented.

The tomahawk was sworn to by Mr. and Mrs. Jaques, as the one which was
found on the premises, and the pocket-book was likewise sworn to by
Mrs. Brown as having belonged to the deceased.

To prove that the deceased had lost her life from the injuries she had
received, Mr. Jones, of Jamieson-street, the surgeon who had been first
called to the unfortunate woman, was examined, and, after describing
the nature of the wounds, and the probability of their having been
inflicted by such an instrument as the tomahawk produced, gave it as
his decided opinion that her death had been produced by those wounds.

This closed the case for the Crown.




CHAPTER XIX.--THE DEFENCE.

AFTER the case for the Crown had been closed, Mr. Robert Lowe rose to
address the jury on the prisoner's behalf. The learned counsel was
at this time one of the leaders at the Bar in New South Wales, and
afterwards, as Lord Sherbrook, he obtained a high place in the Imperial
Parliament of Great Britain.

It happened also that he had been a schoolfellow of the prisoner's at
Winchester, and surely no greater object-lesson could be presented than
the contrast in the position of these two men at the time of the trial.
The one, by industry and intelligence, honored and prosperous, and
destined to become a peer of the realm; the other, by self-indulgence
and dissipation, an oft-time convicted felon, now pleading for his life
at the bar of his country.

Mr. Lowe, in addressing the jury, said that after the shocking details
which had been laid before them by the witnesses called on behalf of
the Crown, it was not his intention to recapitulate those harrowing
circumstances.

It was the duty of the Judge to lay the evidence impartially before
them, and to comment upon its various bearings, and he would leave
the evidence, accompanied by the prisoner's denial of his guilt, in
the hands of his Honor, confident that, in addressing them upon it,
he would not fail to lay the case before them in as merciful a light
towards the unfortunate prisoner as, consistently with his duty,
he could do. His Honor would tell them that if the slightest doubt
should arise in their minds as to the prisoner's guilt, they would be
bound to throw all the benefit of that doubt into the scale of mercy.
But, as he had said before, it was not his intention to enter into a
circumstantial denial, for the duty which devolved upon him that day
was of a very different kind; and he would endeavor to show that, even
supposing, for the sake of argument, the statement of all the preceding
witnesses had been true, the prisoner was still one of those persons
for whom laws had not been made, and who, although, for the peace and
welfare of society, he ought to be placed under severe restraint, ought
not to be held responsible for his actions.

It was not for the good of society that the life of any man, who could
not be held legally responsible for his actions, should be taken; and
he must most earnestly impress it on the minds of the jury that they
did not sit there merely as the avengers of blood. It was not because a
murder had been committed, accompanied by the terrible particulars with
which the evidence of the Crown had rendered them so familiar, that
they were necessarily called upon to avenge that murder by delivering a
verdict which should deprive another fellow-creature of life; for, if
any circumstances should have arisen which might reasonably lead them
to the conclusion that the prisoner, provided he committed the crime at
all, had labored at the time under a condition of mind which rendered
him unable to control his own actions, or had acted under an invincible
and unavoidable necessity, they would be doing their duty to their
country by at once acquitting him of the crime laid to his charge.

He would briefly state his own views as to the state of the prisoner's
mind, and would leave it to the jury to determine whether, being so
circumstanced, he ought to be held accountable for his actions.

The human mind was so divided in its various faculties that it was
not necessary to constitute insanity for the person laboring under
that misfortune to betray a loss of all his intellect; for one faculty
might become impaired, vitiated, or, indeed, totally destroyed, without
affecting the strength of the others, and it was very common to find
that a person who was perfectly insane on some points, was, in most
others, fully possessed of his mental powers.

It had been the declared opinion of the most competent enquirers into
the nature of the human mind, that the mind could only be affected by
disease in the brain, and if disease existed in that portion of the
brain wherein the human will held its seat, while the other portion
of the brain in which the intellect of the patient was contained
was free from any such disease, it would follow that the person so
circumstanced might, with a full knowledge of what he was doing, feel
compelled--irresistibly compelled--to crimes which, if a perfectly free
agent, he would be the last to commit.

The prisoner was of a noble family, and began life with such fair
prospects that he was promoted to the rank of Commander in the British
Navy, for his gallantry in the service of his country, and it could
scarcely be believed, that, with these fair prospects, with the high
Parliamentary influence which the prisoner undoubtedly possessed, with
every motive in short to induce an integrity and probity of action, he
would have plunged into such self-created vicissitudes unless laboring
under some mental infirmity which paralysed his better nature.

The impulse under which the prisoner had acted, if really guilty of
the crime laid to his charge, might be almost designated as one of a
childish nature, for no man in the possession of his faculties would
have perpetrated such an offence as this, with almost the certainty of
immediate detection; which certainly it was clear, from the nature of
the evidence adduced on behalf of the Crown, the prisoner must have
been fully aware of. It was clear that a man who acted in this way must
have been under the influence of an uncontrollable desire to do the
deed for which he was now called upon to answer, for it was easy to
conceive that if any determined and experienced ruffian had been bent
upon a similar crime, he would have taken much better care to secure
himself from being found out.

After reviewing the evidence, and dwelling upon the fact that, since
the accused was possessed of a large sum, in money, of his own, robbery
could not have been the motive for the crime, the learned advocate
went on to say that he was aware of the narrow imagination of our
forefathers, which would confine the attention of the jury to the
simple fact of whether a person charged did or did not commit a crime
of which he was accused; but he could only hope for the dawning of a
brighter day, when their attention would be extended also to a full
inquiry into the motive which had led to that crime.

In conclusion, he might tell them that, while holding in their hands
two of the attributes of God--the power of giving life, or of awarding
death, they should take upon themselves two others of those heavenly
attributes--justice and mercy; and, tempering the one with the other,
should determine whether, after a careful investigation, they could
believe that a man, with the great advantages originally possessed by
the prisoner, could have fallen, step by step, into the lowest depths
of disgrace, unless urged on by some restless demon of insanity.

He would, with these remarks, leave the case in the hands of the jury,
confident that they would divest themselves of any impressions which
they might have received out of doors, and would return a fair and
impartial verdict. If they found the prisoner guilty of the fact, and
yet believed him to be impelled to the crime he had committed by an
irresistible impulse of the mind, they would be running counter to the
decisions of the juries in England in similar cases, if they did not
give him the benefit of that opinion. He trusted, however, that a jury
of the colony would be fully capable of coming to an impartial judgment
upon the intention of a person so circumstanced as the prisoner, and
would not award to him that severe punishment which the law still
retained for persons who had committed the crime of murder in the full
knowledge of its nature, and not from impulse or necessity.

This closed the ease for the defence.




CHAPTER XX.--SENTENCED TO DEATH.

AT the conclusion of the address, which Mr. Lowe delivered with much
impassioned earnestness on behalf of the prisoner, his Honor, Mr.
Justice Burton, began his charge to the jury, in which he told them
that they would have to determine, in the first instance, whether the
deceased actually came to her end by the injuries described in the
information. Secondly, whether the prisoner at the bar was the person
who had inflicted those injuries; and, thirdly, whether, if such was
the case, he was, at the time of committing the act, in such a state
of mind as to be accountable to the law for his actions. As this last
question was beyond doubt the most material one in the present case, he
felt it to be his duty to offer a few observations upon that point.

It had been suggested in the prisoner's defence that he was of
a character likely to commit crime through the influence of an
overpowering inward impulse, and that, on this ground, he was not to
be held accountable for his actions, but it was the first time that
he had ever heard a doctrine of this kind broached in a Court of
Justice. It was indeed a material ingredient to constitute a crime in
the eye of the law that the person who committed that crime should be
in possession of his mental faculties, for, if he had no mind, he was
without responsibility.

To place a person in this position, however, it was not merely
necessary that he should be a lunatic, but that he should have been
a lunatic at the time when he committed the crime, for, even if he
was without his senses at times, and had committed the crime of which
he stood charged during a lucid interval, he would be liable to such
punishment as the crime might be deemed to merit.

The protection, however, which the law thus extended to lunatics, or
persons who were not in possession of their powers of reasoning between
right and wrong, did not extend itself to those whose will was so
depraved as to lead them to the commission of crimes for which no other
excuse than that of a depraved will could be found.

The only excuse for crime was that of an actually unsound mind at the
time of its perpetration; and whatever attention so abtruse a question
as the formation of the human mind might have created among the
philosophers of Europe, he apprehended that a simple question of facts,
propounded to twelve sensible men, might be very easily determined upon
without resorting to any such abstract reasoning.

The fact for them to determine was, whether the prisoner, if he
committed the murder, was, at the time he did so, of sound mind, and,
if the slightest doubt upon this subject existed, they would, of
course, lean to the side of mercy, and give the prisoner the benefit
of that doubt. They must, however, be careful to throw far from their
consideration any question of justification on the ground that the
prisoner was impelled to the commission of the crime by the insistence
of an inate desire, or, as it was argued, a necessity for doing so;
for if it was held that there was to be a palliation for crimes of the
most dreadful nature; that all men who had suffered themselves to be
led away by the temptations of the Evil One, were to find an excuse in
the fact of their having yielded to those temptations--a man would only
have to be bad enough to listen to every suggestion thus prompted to
commit offences of the gravest nature with perfect impunity.

The very terms of the information which they had heard read were that
the prisoner, "not having the fear of God before his eyes, but being
moved and seduced by the instigations of the Devil," had committed
the crime laid to his charge, and it could not therefore be contended
that the offender was to be exonerated from the consequences of his
offence by the very reasons which were alleged to have actuated him in
committing it.

He could scarcely suppose that the jury would suffer themselves to
be led away by a doctrine like that, so monstrously injurious in its
tendency; the only question for them to determine, in the event of
their believing the prisoner guilty of the attack upon the deceased,
being whether he was or was not insane, in the true sense of the term,
at the time he did so, and they would have to draw their conclusions
upon this point from the facts stated in the evidence.

His Honor then read over the notes of the evidence, and commented
briefly upon the leading points in the testimony of each witness.

When his Honor had concluded his summing-up, the jury, without leaving
the box, returned a verdict of "Guilty," and, the Attorney-General
having prayed the judgment of the Court, the prisoner was asked if he
had anything to say why sentence of death should not be passed upon him.

Fitch having made a short rambling statement on his own behalf, in
which, as usual, he referred to the respectability of his family, as
though that was an excuse for any crime of which he might have been
found guilty, the proclamation for silence was made by order of the
Judge, who proceeded, in the most solemn and impressive manner, to
pronounce upon the prisoner sentence of death.

His Honor said that, from the prisoner's inate knowledge of his own
guilt, he must from the very first have contemplated the probability of
receiving the sentence he was about to pass upon him as a well-merited
reward for so heinous an offence as that which he had committed. He
must own he had been somewhat astonished at hearing an application to
postpone the trial on the ground that a witness was absent who could
prove an alibi, for it must be quite plain to all who had heard the
evidence which had been given that day, that there could be no such
witness, and that the fault of the prisoner had been established beyond
a doubt.

The counsel for the defence, in his zeal for the course he had
undertaken, endeavoured to secure the prisoner from the consequences
of his crime upon the ground that he had been, at the time, labouring
under an impulse, so powerful as to leave him no resource but to follow
its vicious dictates; but let it not be imagined that any such excuse
as that could be admissible. It was indeed a direct impeachment upon
the wisdom and goodness of Providence, by declaring that the Almighty
Power had created beings whom He exposed wilfully to temptations
without giving them power of self-control.

If wickedly disposed men would yield step by step to the approaches of
the Evil One, they must expect to be led, at last, by the Tempter to
that precipice down which it was his desire to cast them, but, in order
to avoid this, they must resist the temptation in its infancy, and they
would resist it successfully.

It had been his lot to know the prisoner on Norfolk Island, at which
time he was applying for permission to occupy a solitary cell, in order
to guard himself from the resentment of the other prisoners on the
Island, who accused him of betraying a conspiracy in which they said he
had previously joined. He was sent there upon a charge of forgery, an
offence, at that time, capital; but, since then, he had been brought to
Sydney, under the operation of some of the local acts, and had received
indulgences.

The time was probably not far distant when he might have been pardoned
altogether, when he might have spent the remainder of his days in
freedom and comfort; but by his adherence to evil courses, and his
total disregard to all the warnings he had received, he had cut himself
off from all hope, and brought dishonour upon an illustrious name.

The prisoner complained that he had not been allowed sufficient time
to prepare for his earthly trial, but, with the full knowledge of what
he was about, he had given the unfortunate deceased far less time to
prepare for the more awful arraignment before the bar of her Maker; and
he must make good use of the time still left him, as his days were now
numbered. It was not for him to stop the source of mercy, but he could
see no possible reason for extending it to so aggravated a case as that
of the prisoner; His Honor then proceeded to pass upon the prisoner
sentence of death.

Throughout the trial, Fitch had maintained the same indifferent and
defiant manner which he had adopted since his arrest, and he left the
Court with a firm step.

This trial, which excited great public interest, lasted from ten in the
morning until half-past four o'clock in the afternoon; during the whole
of which time the Court was crowded.




CHAPTER XXI.--THE LAST PENALTY OF THE LAW.

WITH that spirit of obstinacy which had been characteristic of his
peculiar temperament during the whole of his eventful career, Fitch,
although sentenced to death, and with no hope of reprieve, still
stubbornly refused to believe that the death penalty would be carried
out upon him. His state of mind, with regard to this apparently
fixed and settled delusion, was so remarkable that it excited the
curiosity of the medical fraternity as a new phase in the study of
criminology, and a number of visitors came to the prisoner's cell, in
the Woolloomooloo Gaol, where he lay heavily ironed, as is the custom
with condemned prisoners after sentence.

The clergy also were unremitting in their attendance upon him, in the
hope that they might bring him to a due appreciation of his position.
But to all such kindly-meant endeavors he was obdurate, nor would he
listen to any except those who had undertaken his defence, and who were
even now engaged in working up an appeal against his conviction.

Mr. Lowe, perhaps in remembrance of his school days, when Fitch and
he took part in the same work and play together, threw himself heart
and soul into an effort to save his former schoolfellow from the
gallows, and even went the length of incurring what almost amounted to
a reprimand from the Court in his over-zealous endeavor to defeat the
ends of justice.

Fitch was tried and sentenced on the 24th January, 1844, and on the
30th of the same month an appeal was made to the three judges sitting
in Banco upon certain points of law, which appeal, however, was not
upheld, and the conviction was accordingly confirmed.

From this time, and when the result of the appeal was made known to
him, the prisoner's demeanour exhibited a strange admixture of despair
and hope. Even after the Executive Council had determined that no mercy
could be extended to him, he still believed that he would be allowed to
live, and it was not until the Governor of the gaol informed him that
he had received the official instructions for his execution that he
gave up hope.

On the Sunday morning preceding his execution he was taken, ironed as
he was, from the condemned cell, and placed in the condemned pew to
hear the condemned sermon preached by the Rev. Mr. Elder, and this
appeared to have a most extraordinary effect upon him.

Immediately on being conducted back to his cell, he wrote to the
Governor of the gaol in the following terms:--


Condemned Cell, Woolloomooloo Gaol.

10th February, 1844.

In the presence of Almighty God, Amen, I am guilty of the horrid deed
for which I am to suffer death; and may the Lord have mercy upon my
soul, Amen.

John Fitch.


That this confession, tardy though it was, must have brought some
consolation to the unhappy man is evidenced by the eagerness which he
now displayed to make further admissions of other crimes which he had
committed, and which he now professed to have repented of.

Not content with making verbal disclosures to the ministers of religion
who visited him, he left behind him a collection of notes, letters,
and manuscript from which it has been found possible to compile the
foregoing story of his life, and, secretive as he had always been
through the whole of his criminal career, he now seemed anxious to lay
bare every passage in his downward course. Thus the weary days passed
until the last day, when, having seen those friends who had attended
him for the last time in his cell, he was brought from the cell to the
scaffold.

The scaffold had been erected, as was the custom at the time, outside
the gaol wall, around which a vast concourse of people, including many
women and children, had assembled from an early hour in the morning.

A considerable detachment of military, aided by mounted police, were on
the spot to preserve order, for it had been rumoured that it was the
intention of the condemned man to make a full confession of his guilt
in public, which was the reason for the numerous assemblage.

At nine o'clock precisely, the gaol bell commenced to toll, and its
funereal sound appeared to inspire with awed silence the waiting crowd.

At about two minutes past nine, the melancholy procession appeared, the
wretched culprit seemingly overwhelmed with a sense of his situation.
Horror and dismay were depicted on his pale and emaciated countenance,
as, with difficulty, he dragged his attenuated frame towards the last
scene of his eventful and guilty life. On either side of him were the
Rev. Mr. Elder, and the Rev. Mr. Sharp; and following him, the Rev. Dr.
Ross, and other religious friends who had attended him in his last days.

The condemned man walked slowly, apparently insensible to all around
him. At the foot of the scaffold he knelt with the clergymen, and
prayers were offered up. He then attempted to address the assemblage,
but the state of terror and inanimation to which he was reduced, made
the effort unavailing, and, after shaking hands with the reverend
gentlemen who had attended him, he slowly mounted the scaffold and
prepared to meet his fate.

Thus ended the career of John Fitch, who may well be described as
Australia's most remarkable criminal, for he was the author of so
many atrocious crimes, that a detailed history of them would fill no
inconsiderable volume.

His life, which had begun with honor, and with every prospect of
earthly advancement and happiness, had ended in infamy on the
scaffold, a melancholy example of how the best gifts of nature and
the brightest promises which might be looked for from gentle birth,
and the possession of courage and talent, may be rendered fruitless
and unavailing when uncontrolled passion is permitted to overrule the
promptings of reason and moderation.




CHAPTER XXII.--CONCLUSION.

LOWE'S line of defence, in his unavailing attempt to save Fitch from
the scaffold, subsequently involved him in a controversy with the
press, which charged him with "promulgating, in the Supreme Court,
doctrines opposed to the first principles of Christianity."

"If Mr. Lowe's speech to the jury," wrote the leader-writer in the
Sydney Gazette, "meant anything, it meant this: that when a man
commits a crime of peculiar atrocity, and under circumstances which
good men deem inadequate provocation, he must, on that very account,
have been 'unable to control his own actions.' This is a doctrine which
we hold to be opposed to the first principles of Christianity--the
moral responsibility of man. It is opposed likewise to the whole tenor
of that sacred history which is designed to exemplify and demonstrate
the depths of human depravity. If this doctrine be true--Cain was no
murderer, Judas no traitor. The very enormity of their crimes was their
sufficient vindication."

To this Lowe replied: "The argument I used was simply this: I wished
to show that the man was insane. The judge refused a postponement of
the trial. I was, therefore, unprepared with witnesses, which you seem
to think, in some way or other, was my fault. I, therefore, had no
resource but to argue from circumstances well known to everybody--the
taint which prevailed in the prisoner's family, his own extraordinary
downward career, and the peculiar atrocity of the case. Of these three
arguments you have only questioned the last. You have represented the
case as if I had said the prisoner committed a crime, and therefore
he was mad; whereas, what I did say was, the prisoner belonged to a
tainted family; nursed, as he himself said, in the lap of affluence,
and brought up in the fear of God, he had plunged into one crime after
another, till he had terminated his career by this last and darkest
atrocity. I attributed this to insanity, and I stated, what is borne
out by every writer on medical jurisprudence, that insanity was not
necessarily attended by delusion; that there might be a moral insanity,
whose seat was in the will, and which urged man to the commission of
crime by an irresistible impulse. I have heard this doctrine repeatedly
laid down by the most eminent physicians in London, on the most solemn
occasions; and if you deny it, I can prove it by a cloud of medical
authorities."

As the colony prospered, brighter days dawned for New South Wales. The
infamous convict system was swept away, and a free people, governed by
free institutions, began to work out the destiny of Australia that was
to lead her to national glory.

James New and George, his partner, prospered exceedingly after the gold
discovery, and the increase in population which it brought considerably
enhanced the value of land and stock. In time both amassed wealth, and
Jane became the head of a family which proved themselves among the most
useful and respected of Australian colonists.




APPENDIX No. 1.




THE CASE OF JANE NEW.

AS a sequel to the history of Jane New, the publication for the first
time of extracts from the original despatches, letters, and documents
relating to the application for a writ of habeas corpus made on her
behalf to the Full Court in New South Wales, will doubtless prove of
interest to those who have read the narrative, and are thus able to
contrast the conditions of life under a military despotism with those
which prevail in Australia at the present time.

After the trial and sentence to death of Jane New upon a false charge,
and the subsequent quashing of that conviction by the Full Court. It
was found that Governor Darling still claimed to exercise authority
over this unfortunate woman, inasmuch as, having cancelled her
assignment as servant to her husband, he asserted that she had once
more become eligible for assignment to some other person, in accordance
with the Governor's pleasure. The case of Jane New was made a test
case upon this important point; important, not so much as regards the
individuals concerned, although, as has been seen, it was the means
of causing cruel injustice, but by reason of the power which the
exercise of such authority would place in the hands of the Governor
to ruin those settlers who might be opposed to his autocratic methods
of government. At this time nearly all farm labor was performed by
assigned servants, and if it was in the power of the Governor to cancel
their assignments at will, and to re-assign them at his own pleasure,
it will be seen at once that, for a settler to oppose the high-handed
policy of the Government would have meant the withdrawal of that labor
upon which he depended for the working of his land. The case of Jane
New caused intense excitement among the colonists of that day, and the
decision of the Full Court as to the Governor's power to cancel the
assignment of servants, and to re-assign them at his pleasure, was
watched with the keenest interest.

The following is a certified copy of the proceedings in this remarkable
case, which have not before been available for publication:--

The Remarkable Case of Jane New, on a motion for a Habeas Corpus,
before the Full Court.

Certified Copy of Proceedings.


IN BANCO.

In the Matter of Jane New.

Minute of the proceedings in the Supreme Court of New South Wales,
on a motion for a Habeas Corpus to discharge the body of Jane New,
a prisoner of the Crown, from the Factory at Parramatta. Extracted
from the contemporaneous Notebook of James Dowling, Esq., one of the
Assistant Judges of the Court. Vol. 15, fol. 93.

First Term, 10th Geo. 4 th.

Present: Forbes, C.J.: Stephen, J.; Dowling, J.

Ex parte, Jane New.

Mr Sydney Stephen had on a former day in this term, obtained a writ
of Habeas Corpus to bring up the body of Jane, the wife of James New,
from the female factory at Parramatta, where it was alleged she was
unlawfully detained.

The prisoner, Jane New, was this day brought into Court, and the writ
of Habeas Corpus, and return thereto, read.

Other documents and papers were read.

The principal circumstances of the case, admitted on both sides, were
these: The prisoner had been tried and convicted before Dowling, J.,
at the last criminal sessions, of a capital felony. It appearing
afterwards that her conviction had proceeded upon a statute not in
force in this Colony at the time the offence was committed, the
Judges were of opinion that her conviction was void. The prisoner
had originally been convicted of felony at the Chester Sessions,
and ordered to be transported from England for seven years, and was
accordingly transported to Van Diemen's Land. After her conviction in
this Colony was declared void, the Sheriff, by the direction of the
Governor, removed her from the common gaol at Sydney, as a prisoner
of the Crown, to the factory at Parramatta. Whilst the prisoner was a
transported felon at Van Diemen's Land, the Lieutenant-Governor of that
Settlement assigned her to James New, a free subject there residing,
and allowed her to marry him. The prisoner was afterwards permitted
to accompany her husband to Sydney, and, whilst residing there,
she committed the offence of which she was afterwards erroneously
convicted. Before she was removed to the factory at Parramatta, his
Excellency the Governor of New South Wales revoked the assignment
executed by the Lieutenant-Governor of Van Diemen's Land of the
prisoner to her husband, under the 9th sec. of the statute 9th Geo.
4th. c. 83. Under these circumstances.

Mr. Wentworth and Mr. S. Stephen now moved, on the part of the husband.
James New, that the prisoner Jane New be discharged, and delivered over
to her husband and master, on the ground--first, that the Governor of
this Territory had no power under the 9th sec. of the statute to cancel
the assignment to a master of any prisoner of the Crown, except for the
purpose of granting a temporary or partial remission of the original
sentence; and, secondly, that at all events he could not cancel the
assignment of a prisoner who had been transported from England to Van
Diemen's Land, that being a separate and independent colony, not within
the government or Jurisdiction of the Governor of New South Wales.
These points were argued at some length.

Mr. Attorney-General (Baxter) and Mr. Solicitor-General (Sampson)
appeared on the part of the Crown, and contended that the Governor of
New South Wales had the absolute right, at his pleasure, to cancel the
assignment to a master of a prisoner of the Crown, without reference
to the remission of the original sentence. It is admitted that the
prisoner now before the Court is a transported felon, whose sentence is
unexpired, and therefore she cannot be discharged, if the Governor may
revoke her assignment under the 9th Section of the New South Wales Act.

After pressing this point at some length, "I am Instructed" (said the
Attorney-General) "to pray the decision of the Court upon this point
not so much for this particular case as to guide the discretion of the
Executive Government in other cases new under consideration."

Forbes, CJ.: May not this case be disposed of on another point? Is it
necessary that we should give any opinion upon the effect and meaning
of that important section. Involving as it does so many consequences?
It is a question of considerable delicacy, and we wish to avoid the
discussion of it unless in a case where no other question arises.

Mr. Attorney-General: I apprehend the question is necessarily involved
in this case, and although your Honor suggests that there is another
point on which the case may be disposed of, yet I must respectfully
press for the decision of the Court upon the general question in order
to guide the discretion of the Executive Government. It has been
considered a doubtful point, and for the guidance of the Government it
is most desirable that the matter should be set at rest.

Forbes, C.J.: Then, in that point of view, and understanding that our
decision is for the purpose of informing the Government of our views of
the clause and guiding its discretion in other cases, we shall take the
matter into consideration, and give our opinion upon it, on an early
date, although we think, as at present advised, that the case may be
disposed of on another point.

At a later day the Court delivered its opinion, which has been
forwarded to the Right Honorable the Secretary of State.

I certify that the above is a correct minute, in substance, of what
took place in Court when the case of Jane New was brought under
consideration.

(Signed) JAMES DOWLING.

An Assistant Judge.


The opinion of the Court briefly was that the Governor had not the
power to revoke the assignment of a servant except for the purpose of
granting a free pardon.

After the judgment of the Court had been given His Excellency Governor
Darling addressed the following letter to the Judges:--

Copy letter from Governor Darling to the Judges of the Supreme Court,


Government House.

Gentlemen,--

Understanding that the view taken by your Honors of the 9th Section
of the 9 Geo. 4, C 83, is contrary to the intentions of Parliament as
signified to me in a despatch addressed to me by the Right Honorable
the Secretary of State on the subject of the Allen Act, I request you
will be pleased to furnish me with a report of the opinions which you
severally expressed in the case of Jane New, as far as relates to the
powers of the Governor of this colony to grant tickets-of-leave to
convicts, or to withdraw assigned servants from their masters, it being
my intention to submit your report to the Secretary of State, in order,
if the Act be inconsistent with the intentions of Parliament, that the
subject may again be brought under its consideration.

I have the honor to be, gentlemen, your most obedient humble servant

RA. DARLING,

His Honor, The Chief Justice, and the Judges of the Supreme Court.


Extracts from Reply prepared by the Judges to the Governor's letter.


Sir,--

"We had the honor to receive your Excellency's letter desiring to be
furnished with a report of the opinions severally delivered by us,
in the case of Jane New, in order to the same being transmitted to
the Secretary of State, and we have availed ourselves of the earliest
respite afforded us from the pressure of our unusually heavy term to
arrange our notes, and comply with your Excellency's request.

Referring to the extract from the despatch enclosed in your
Excellency's communication to us, it appears that we have taken a
different view of the New South Wales Act so far as relates to the
Governor's power of revoking the assignment of servants from that
entertained by the Right Honorable the Secretary of State.

For opinions emanating from so high a quarter, we shall always feel,
as we have invariably shown, the greatest consideration and deference.
Removed as we are from all means of communication with the advisers
of Acts of Parliament, it will at all times afford us satisfaction
to receive the opinion of His Majesty's Government, and we do not
feel that any irreconcilable difficulty would be opposed to such
communications from the nature of our oaths. We assume, however,
that the obligations of our office, and the honor of his Majesty's
Government, are inseparably united, and that his Majesty's Minister, in
imparting his own views of the policy of any particular Act, would be
the last to desire that his opinion should influence the judgment of
the Bench, or interfere with the most important administration of the
law.

The construction of Acts of Parliament is not a matter of mere
discretion in the judges; there are certain rules by which the
Court are guided in the interpretation of all new statutes, which
are presumed to enter into the contemplation of the Legislature,
and to form an implied part of their enactments; so that when such
statutes come to be applied, they must be taken with reference to
the pre-established rules of exposition. These rules are a part of
the law of the land, and are binding upon our judgments, and after a
renewed and anxious consideration of the Act in question we cannot
arrive at any other satisfactory conclusion than that which we have
already expressed in the case alluded to. If our interpretation of the
Act be unfortunately at variance with the intention of Parliament,
and it be deemed expedient that the Governor should possess the
power of divesting the right of property which the inhabitants had
previously acquired in their assigned servants, it will, we apprehend,
become necessary to resort to the Legislature, in order that a power,
which may involve in its exercise such important consequences to
the inhabitants, should be expressly defined, and placed beyond all
possibility of doubt. Had it been clear to us that Parliament intended
to confer such a power upon the Governor, we should not have felt
ourselves at liberty to question it, however different our views might
have been of its policy. But entertaining the opinion that we do, and
founded as our opinion is, in some measure, upon a consideration of the
injurious consequences to which a different conclusion would lead, we
trust that it will not be deemed out of place if we enter a little more
at length into this branch of the subject.


The Judges then set out, at great length, their reasons for the
conclusion at which they had arrived, and the letter concludes as
follows:--


Such are the reasons which, together with those we have already
assigned in delivering our judgment, have induced us to determine
against the particular power claimed on behalf of the Governor. We
repeat that had the Act been clear, we must have expounded it according
to its plain intent, without entering into the reasons on which it
might be founded. But as it is undoubtedly capable of different
constructions, we are bound, by the rules of law, to give it that
interpretation which, in our judgment, will best consist with the
analogies of law, and conduce to the interests of the public.

The power of construing statutes is in the Judges, who have authority
over all laws, and more especially over statutes, to mould them
according to reason and convenience to the best and truest use. Judges
have sometimes expounded the words of an Act of Parliament contrary to
the text, to make them agree with equity and reason. The best rule of
construing Acts of Parliament is by the common law, and by the course
which that observes in other cases.

In conclusion, we would most respectfully suggest to your Excellency
that every power which, in our opinion, it can be expedient to retain
over the rights of masters with reference to their assigned servants,
can be provided for by the Legislature of the colony without the
necessity of resorting to Parliament.

Should your Excellency, however, still deem it necessary to submit
the matter to the Secretary of State, we have to request that your
Excellency will cause a copy of this letter to be transmitted, together
with the reports which we have the honor to enclose.


Governor Darling, however, notwithstanding the explanations of the
Judges with regard to the case of Jane New, was still determined upon
referring the matter to the Home authorities, and in due course of time
the following letter was received by the Chief Justice:--


Government House.

Sir,--

I have the honor to transmit for your information, and that of the
Assistant Judges of the Supreme Court, as directed by the Right
Honorable the Secretary of State, the accompanying copy of a despatch,
and its enclosure, which I have received by the ship Roslyn Castle.--I
have the honor to be, sir, your most obedient and humble servant.

RA. DARLING.

His Honor the Chief Justice.


Copy despatch enclosed in Governor Darling's letter:--


Downing-street.

Sir,--

I have received your despatch enclosing a report of the proceedings in
the Supreme Court of New South Wales to the case of Jane New, with a
copy of the judgment pronounced in that case by the Chief Justice, and
two Assistant Judges.

His Majesty's Government having framed the enactment of the 9th Geo.
4, c. 83, sec. 9, and recommended it to Parliament, with the distinct
intention of conferring on the Governors of the Australian Colonies an
unlimited discretion to revoke the assignments of convicts, I did not
receive without surprise the information conveyed by your despatch of
the construction which the Judges of New South Wales had given to this
part of the statute. On adverting to the reasons adduced in support of
their opinion, my distrust of its accuracy was much increased, and I
therefore desired my Under-Secretary, Mr. Horace Twiss, to investigate
the subject more fully. The result of his inquiries was entirely to
confirm my first impressions, and I now enclose, for your information,
a copy of the paper drawn up by Mr. Twiss, which explains at length the
grounds of my non-acquiescence in the opinion given by the Judges of
New South Wales.

The importance of the subject induced me likewise to transmit your
despatch with a copy of the judgment of the Supreme Court of New South
Wales, to His Majesty's Attorney and Solicitor-General, desiring them
to report to me their opinion whether, under the 9th Geo. 4, c. 83,
sec. 9, the Governor can revoke the assignment of servants of whose
sentence it is not intended to grant any remission, general or partial.

In answer to this reference, I have received from the Attorney and
Solicitor-General a Report, expressed in the following terms:--

"We are clearly of opinion that, under the 9th section of the 9th Geo.
4, c. 83, a Governor can revoke the assignment of a convict servant of
whose sentence it is not intended to grant any remission, and we think
that there is nothing, either in the context or the apparent policy of
the Act, which militates against this construction."

When I advert, not only to the official situation, but at the same time
also to the very high professional authority of the learned persons
from whom this opinion proceeds, I cannot but regard it as conclusive
upon the question under consideration.

It is important, also, to remark, that the opinions delivered by the
Judges of New South Wales in the case of Jane New are destitute of the
authority which would ordinarily attach to the judgments of the Supreme
Court, because, as is distinctly admitted by Chief Justice Forbes and
Mr. Justice Dowling, the extent of your power to revoke assignments was
not necessarily brought under their consideration in that case.

Notwithstanding, therefore, the judgment which the Court has
pronounced, you will proceed to carry the Act of Parliament into
execution, according to the construction of its terms which the
Attorney and Solicitor-General have sanctioned. Should the lawfulness
of any measure which you may adopt, in the exercise of this authority,
be brought into discussion in the Supreme Court, you will instruct the
Colonial Law Officers of the Crown to sustain before that tribunal
the rights of the Colonial Government, and for their assistance, you
will place in their hands the paper prepared by Mr. Twiss on this
subject. It may be hoped that when the Question shall be brought before
the Court in a distinct and substantive form, they will alter an
opinion, which, as hitherto given by them, can be considered only as
extra-judicial. If so, the evil will have been repaired, and, I hope,
without any lasting inconvenience. If, on the contrary, they adhere
to their first impression, by deciding, under circumstances where the
question shall clearly and distinctly arise for decision, that the
Governor does not possess the power of revoking an assignment, except
for the purpose of remitting the sentence, you will of course abstain
from the further exercise of that authority until either the Judgment
shall have been reviewed by His Majesty in Council, or the Law placed
beyond doubt by the authority of Parliament.

You will transmit to the Chief Justice, for the information of himself
and his colleagues, a copy of this despatch.

I have, etc.,

G. MURRAY.

His Excellency Lieut-General Darling.

A true Copy.

H. DUMARESQ.

Private Secretary.


The Judges of New South Wales, however, still adhered to their opinion
that the Governor did not possess the arbitrary power over assigned
servants which he claimed, and not long afterwards, to the great relief
of the more liberal-minded among the colonists, Governor Darling was
recalled.




APPENDIX No. 2.




THE STATE OF SOCIETY IN NEW SOUTH WALES UNDER MILITARY RULE.

As will be seen by the following opinion, expressed by well-known
residents of the time, the state of society in New South Wales,
described in the history of Jane New and her evil genius, John Fitch,
is by no means exaggerated. Captain Robison, of the Royal Veterans,
writes as follows:--


"In a short time I discovered such an organised system of public
plunder going forward by various Government officers, as well as
the employment of soldiers of the Buffs, upon Lieutenant-Governor
Stewart's immense grants of several thousand acres of land close to the
settlement of Bathurst for his own private emolument, that I reported
the whole proceedings to Lieutenant-General Darling, as Governor and
Commander of the Forces of the Colony."


It is probable that if Captain Robison had been better acquainted
with the autocratic methods adopted by General Darling he would have
hesitated before reporting what he conceived to be a dereliction of
duty on the part of his superior officers; but, be that as it may, the
only answer which his remonstrance received from the General was the
following curt reply:--


General Order,

April 3, 1827.

Captain Robison, of the Royal Veterans, will return to headquarters.
Bathurst being discontinued as a separate district.

RA. DARLING.

Lieutenant-General Commanding.


On his return from Bathurst to Sydney, Captain Robison halted for a
night at the Government station at Emu Plains, and here he was shown
certain irons, and chains, which he had seen applied by Governor
Darlings orders, as instruments of punishment on the persons of two
soldiers of the 57th Regiment by name Sudds and Thompson, and one of
whom (Sudds) died five days after these irons had been placed on him.

"I tried them on," says Captain Robison in his statement, "and finding
them to be of intolerable weight, peculiarly severe, and of unusual
construction. I expressed to an officer, who was with me at the time,
Lieutenant Christie of the Buffs, my strong disapprobation of the use
of such oppressive instruments of torture, in which expression he, at
that time, as strongly concurred.

"It may be proper here to explain that these chains consisted of a
broad iron collar, which had been riveted round the neck, with two
projecting spikes of seven or eight inches extending therefrom, both
before and behind, and connected with chains from each side of the iron
collar to heavy iron basils and rods on each leg.

"It is true that on the occasion referred to I tried those irons
myself, and that Lieutenant Christie afterwards tried the same irons
on himself. It is also true that I then expressed, in strong terms,
my disgust at the use of these instruments of torture, which were so
refined in cruelty as to prevent the suffering victim from finding
relief or rest in any position, and which, from the projecting spikes
from the iron collar, rendered a recumbent position almost impossible.
I never did, and never will, shrink from the avowal that my feelings of
indignation on this occasion were expressed in the strongest language
of disgust; and when I recollected the unfortunate man before whom
I was compelled to stand on parade, a silent witness, whilst he was
bending under his iron load, which, on the fifth day, weighed him down
into his grave, I ask is there a British heart so iron hard and cold as
to have been unmoved at the sight of these inhuman instruments, which
brought up such a picture to the mind? Or is there a British spirit so
debased as to have shrunk from the avowal of those feelings which I
have admitted were by me expressed?"

These two soldiers--Sudds and Thompson--some time previous to their
regiment being ordered to proceed, in the usual course, from New South
Wales to the East Indies, had determined, by committing petty larceny,
to become convicts rather than encounter the unhealthy climate of the
East.

For this avowed purpose they went into a shop in the town of Sydney,
and desired the shopman to measure them off a few yards of calico or
cloth, the price of which amounted to four or five shillings. One of
these soldiers took the cloth, and, walking out of the shop, told his
comrade to pay for it, the other soldier stating he had no money about
him. The shopman followed them both into the street, and had them
placed, without any resistance, in custody.

They were accordingly tried by the Court of Quarter Sessions, found
guilty and sentenced to seven years' transportation. Not satisfied with
this punishment however, his Excellency Governor Darling ordered a set
of irons to be manufactured, such as was never before heard of in the
colony. They consisted of an iron collar, like a stock, round the neck,
with spikes about half a foot in length, projecting therefrom before
and behind; chains also communicated from each side of the iron collar
to heavy leg irons fitted with rings round the ankles, while the iron
collar was riveted round the throat.

These implements of torture, when prepared, were conveyed to Government
House for his Excellency's approval, and, by his order, Sudds and
Thompson were taken out of the hands of the civil power, and, having
been stripped, they were clothed in a yellow felon's dress, drummed out
of the regiment and finally the irons, above described, were riveted on
their bodies.

The man Sudds was in such a deplorable state of ill-health on the day
he was brought from the gaol to have this ceremony performed in the
presence of the troops, that he was obliged to be supported by a man
holding him up under each arm, and during the ceremony he was compelled
to be seated on the ground, as he had not the strength to stand. In
five days after the infliction of this torture (the irons being still
kept upon him in the gaol) he died.

This inhuman treatment was the cause of some printed verses being
distributed in Sydney, accompanied by a picture. The verses are here
reproduced:


THE DYING SOLDIER IN AUSTRALIA

To His Wife in England.


(Extracted from the Colonial Paper.)

Farewell, hapless Mary!--Your husband no more
To his Home shall return from this barbarous shore.
By Tyranny goaded.
With Slave-Irons loaded.
His soul, tho' still yearning with fondness for thee.
From oppression, indignantly pants to be free.


Oh, cursed be the day, when my freedom I sold,
Nor deem'd British Soldiers as Helots enrolled;
In want, unassisted,
I rashly enlisted,
To give bread to my Mary and boy I was led,
But ah! freedom and life I then barter'd for bread.


For wrongs upon wrongs I was forced to endure,
With which pow'r and wealth goad the weak, and the poor;
While my proud spirit rising,
Tho' hardships despising,
Spurn'd blows, and abuse; and reflecting on Thee,
Resolved--or to die, or from slavery be free!


But alas! vain the attempt, which I hoped would succeed,
My Mary, I fear, you will blush for the deed,
A deed my heart scorning,
Hope blindly suborning;
Hope delusive, that prompt'd an act I abhorr'd,
Yet feign'd I should then be to Mary restored.


Oh! no--tho' my name was ne'er sullied by theft;
Yet of Freedom, of Peace, and my Mary bereft;
A martyr to feeling,
A feint of base stealing
I fatally made,--my escape to effect
From a Service, in which all my bliss had been wreck'd!


But frustrate that hope! tho' my motives were known,
Tho' acknowledged of crime 'twas the semblance alone,
As a felon convicted,
To a dungeon restricted,
While Slave-Irons my limbs in dire torture control,
O Mary! "the Iron enters into my soul."


Could my agonised body, and feelings allow,
No means of repose my vile fetters bestow;
Sharp spikes the prevention,
No power of extension,
The links which my neck with my legs firmly bind,
Permit my poor limbs, cramp'd in torture, to find!


Oh, my Country! for mercy, and valor renown'd,
Shall thus your defenders with Slave-Irons be bound?
Shall your laws, framed by Justice,
When tyranny's lust is,
By lawless inflictions add torment to pains,
Nor your Sons, but by death, evade cruelty's chains?


Oh no! In that Land, where true freedom resides,
When Justice, but temper'd with mercy, presides;
When my sufferings are stated,
My sad fate related,
Her pitying voice will atonement demand,
For a son, thus destroyed in a barbarous land!


Yes; my spirit from prison that longs to be freed,
In futurity's page, retribution can read;
When the Senate of Britain,
In Judgment shall sit on,
The merciless sentence that sinks me to death,
And condemn the oppressor, "for Britain is Just."


Yes! the time shall arrive (the dread flat is given),
When from "power abused," he with shame shall be driven;
My spirit shall view him,
Remorse shall pursue him,
While his wife, and his children, such woes shall assail,
As my fate, on my widow and boy must entail.


Farewell! hapless Mary! your husband is lying,
In a dungeon, in chains, in a far country dying;
Yet while his pulse flutters,
He one behest utters,
"O ne'er for a soldier encourage our boy,
Or like mine, future Darlings his life may destroy."


Sydney Gaol, New South Wales.


Mr. E. S. Hall, the editor of the Sydney "Monitor," writes of these bad
old times in the following scathing terms:--

"The female factory at Parramatta is now principally used as a nursery
for the illegitimate offspring of our free settlers--civil officers and
magistrates. Thence the children are transferred to the Orphan School
at a proper age, and thus are concubinage and prostitution supported
by the State. In a country full of employment, and full of food, and
full of clothing, there ought to be no orphan institutions. Every
father ought to be compelled, by law, to support his own offspring.
And no parents who can work ought to have their children supported out
of the industry of others. Yet our orphan schools are filled with such
children, legitimate and illegitimate. The very name of 'orphan school'
should be unknown in a colony like this. If the charitable choose
to support the children of debauched parents, let them do so out of
their own fund, and not compel those who take a different view of true
charity to join them in their humane vagaries."

Of the military officers in the colony at that time, Mr. Hall says:--

"Captain G----, while Commandant, first at Newcastle, and then at Port
Macquarie, though accompanied by his wife (one of the most amiable
and accomplished women in the colony), carried on his amours in open
day. One night his wife insisted on opening the window to call for
the watch, in consequence of finding a female concealed in the room.
Captain G---- impeded her by threatening to break her arm by shutting
the casement on it, and the lady persisting, he did so, and fractured
the bone. Among other of his seductions was that of two girls, very
young and well behaved, the daughters of a prisoner of the Crown, one
of whom complained to her father of violations by Captain G----. The
father went up to Captain G----, and used violent language. He was
ordered to the triangles, and the scourger had just lifted the scourge
to punish the grey-headed parent, when a friend of the captain ran
down, and, taking him aside, implored him to reflect on what he was
doing."

About the same time appeared the history of the trial and acquittal of
Captain Wright, and although the captain was acquitted by a military
jury, the report of this case will serve to show the manner in which
prisoners of the Crown were treated in Crown colony days.


Report of proceedings at the trial of Captain Wright:--

SUPREME COURT.

(Before Mr. Justice Dowling).

At 11 o'clock this morning, W. H. Moore, Esq., acting for the
Attorney-General, presented an information against Thomas Edward
Wright, Esq., captain in his Majesty's 39th Regiment of Foot, charging
him, as accessory before the fact, with the wilful murder of one
Patrick Clinch, at Norfolk Island.

To this information Captain Wright, in a firm and indignant tone of
voice, pleaded "Not guilty."

Mr. Wentworth then stated the case for the prosecution to the following
effect:--

Gentlemen of the Jury.--I can with great truth say that the conduct of
this prosecution is the most painful duty that has devolved on me since
the commencement of my professional career. The prisoner at the bar,
who is charged with an offence of the gravest nature known to our laws,
is of the same service with yourselves, if not of the same corps with
many of you, a circumstance which cannot fail to excite a secret bias
in your minds. Gentlemen, in the technical language of the information,
the prisoner is charged with being present, aiding, assisting, and
counselling the murder alleged to have been committed. The evidence I
shall adduce in support of the prosecution is this: That a few minutes
before Clinch was shot it was reported to the prisoner that he was in
custody, when he immediately ordered two soldiers to go and do their
duty; that they, thereupon, went to the place where Clinch was in the
custody of some constables, and, desiring them to stand aside, shot him
on the spot.

Gentlemen, I will now proceed to detail the circumstances of the case.
It appears that some days previous to Clinch's death, he ran from the
settlement, of which the prisoner was Commandant, and, during the time
he was at large, made some desperate attempts on several persons,
and on one occasion on the prisoner himself, the object of which, no
doubt, was to take his life. The prisoner, however, escaped, and, on
his return to camp in great alarm, was heard to say to Lieutenant Cox
and others, in allusion to this attempt, that "blood would have blood,
and he would have it." Gentlemen, this is an important circumstance in
the case, as it goes to show the feeling of the prisoner, and, coupled
with his acts, indicates express malice. A few days elapsed after this
circumstance when, about 8 o'clock at night, an alarm was heard in
the settlement, and Clinch was taken into custody. I shall prove by
the testimony of one of his captors that he ran to report the capture
of Clinch to Captain Wright, who immediately gave the following order
to Sergeant Tunny and a private soldier named Reeks: "You know your
duty--see that you execute it." Upon this, on arriving at the spot
where Clinch was, one of the soldiers desired the persons who were
about him to stand aside, and immediately one shot was fired, and
shortly after, another. The prisoner then came up and applauded the men
for their conduct and ordered the body to be conveyed to the hospital,
where, in a taunting and jocular manner, he asked the doctor if he
could do anything for the dead man, that is, if he could resuscitate
him. Gentlemen, after the deed was committed in the manner I have
described, without adverting to many minor circumstances, I shall prove
by the evidence of Lieutenant Cox that the prisoner returned to the
garrison in high spirits, very much elated at the death of Clinch, and
observed: "We have settled him in the swamps."

Lieutenant Charles Cox then gave the following statement:--

"I was a magistrate at Norfolk Island and assistant engineer, at the
time of the occurrence. I heard some shots fired and saw flashes. About
half an hour after Captain Wright came up with some soldiers, and told
me that 'they had settled Clinch, and that he had had him wheeled off
to the hospital.' Captain Wright seemed rather pleased that the follow
had been killed. After this we had some punch together, and talked the
matter over. Captain Wright said Clinch had been making resistance.
Next morning I saw the body of Patrick Clinch on a platform in an area
used for church service; there were four gunshot wounds on him. His
head was battered much, one of his hands nearly cut off, and there were
several other wounds on his body as if with a cutlass. Two of the shot
wounds were in the breast and one in the head. This was on Sunday. The
prisoners were assembled for church service, and Captain Wright made
a speech to this effect:--'Prisoners,--you see the body of Clinch,
and what his conduct has brought him to. Even if you were to take the
Island, the only advantage you would get by it would be two or three
months of an idle life; a ship would come from Sydney, the necessary
signal would not be answered; it would go back and return with a force,
and you would all be hanged.'"

A great deal of evidence was subsequently taken, and, as before stated,
the captain was acquitted.


The following is an enumeration of some of those who were deprived of
their appointments during the period of General Darling's government of
New South Wales:--

Captain Piper, Naval Officer.

Mr. S. Bannister, Attorney-General.

Mr. Mackaness, Sheriff of the Colony.

Mr. W. H. More, Crown Solicitor (afterwards reinstated).

Colonel Mills, Registrar of the Supreme Court, driven to commit suicide.

Doctor Douglass, Commissioner of the Court of Requests.

Mr. John Stephen, Commissioner for Crown Lands.

Mr. Baxter, Attorney-General, and afterwards Puisne Judge in Van
Diemen's Land.

Bell and Smith, storekeepers.

Messrs. Sellwood, Shelly, and Weller, and various others who emigrated
from England as settlers, besides the editors of the Sydney "Monitor"
and "Australian", independent papers.

The following military officers were also deprived of their
commissions:--

Captain Robison, of the Veterans.

Lieutenant Macdonald, of the 3rd Regiment of Buffs.

Lieutenant Cox, 39th Foot, afterwards reinstated.

These officers were all brought to courts martial by order of General
Darling, who was Military Commander of the Forces, as well as Civil
Governor of the Colony.

THE END.


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