Court of Criminal Jurisdiction,

WEDNESDAY.-This was a day of serious trial for the murder of William Cosgrove, a settler and district constable upon the Banks of the South Creek, on the 1st of the present month ; by the discharge of the contents of a musket loaded with slugs into his body, of which wounds he died the following day. The prisoners were Timothy Buckley, by whom the gun was fired ; David Brown, and Timothy Ford, all of whom had been in the Colony but six or seven months, and prisoners in the immediate employ of Government, and who unhappily had not renounced those propensities which sooner or later were to lead them to an unhappy end.

The first witness called was Thomas Cosgrove, brother of the deceased, whose testimony was conclusive of the fact. This witness stated, that his murdered brother was a district constable at the South Creek; and that he having seen, and believing the three prisoners at the bar to be bush-rangers, requested him, the witness, to join in pursuit of the suspected persons; all which was readily complied with, and a pursuit accordingly commenced. This was about one in the afternoon ; the deceased went up to the three men (the prisoners at the bar), and found them in conversation with two young men who were brothers of the name of York, one of them a son-in-law of the deceased. The deceased called to the prisoners at the bar, declaring his willingness to point them out the road to the place they were enquiring for, namely the ” Five mile Farm ;” but appearing conscious that they were armed bush-rangers, he hesitated not to require their giving themselves up to him, he being a district constable. This evidence further proved that the prisoners at the bar were in conversation with the two Yorks for many minutes prior to the pursuit which was proposed and persevered in by all the persons who joined in it by the manly boldness of the district constable, who, although a man in good circumstances, had reconciled the apprehension of danger with his manifest line of duty.

This witness, who seemed in his evidence to entertain no sort of feeling that could be construed into a vindictive sentiment, went further on to state, that one of the Yorks, the eldest, had joined in the pursuit ; that his murdered brother had repeatedly required the three fugitives to surrender themselves ; that Timothy Buckley, who had the musket, turned round repeatedly and levelled at them ; that one of the fugitives, Ford, had attempted to wrest the piece from him, but did not succeed ; that the pursuers behaved themselves with great courage and with the most determined zeal in apprehending these three stoutmen, one of whom was armed with a gun, and appeared only to await the moment of murder until the difference of celerity in his pursuers should mark the most needful object. Brown, who was the taller and most powerful of the three, turned several times upon Buckley, who had the gun, and told him to keep a good look out on such a man, meaning the man who was closest in pursuit, and this was the deceased ; who was armed with a pistol, but did not discharge it until after he had received the contents of the musket into his side, breast, and lungs, the charge consisting of eleven or twelve slugs; his pistol afterwards went off, . but hurt nobody. Stricken with death, the poor man then sat down on a bank; was taken home; and lived in anguish until the following day.

This witness declared himself the brother of the deceased ; and in the sympathetic feeling of humanity, received from the Judge Advocate the following much to be remembered sentence of condolance. “Witness, you have done your duty to Society ; you have acted well in the performance of that duty , and the world has much to regret that you have paid so dearly for it, in the loss of a brother, and of a good member of Society.” Cornelins Ryan sworn.- Witness went last Thursday to the house of the deceased to get some wheat ground at his steel mill ; and prior to any other communication the deceased asked him if he had seen, three men of suspicious appearance, whom he considered to be bush-rangers; to which he answered affirmatively, and consented to go with the deceased, whom he knew to be the constable of the district, in pursuit of the run-aways; that the three men, now the three prisoners at the bar, were enquiring of the two Yorks the right road to the Five mile Farm; and the deceased telling them he would show them the right path, they all ran off; on their doing which the deceased ordered them to deliver themselves up to him, as he was the district constable ; that they nevertheless continued to run ; the man (Buckley ) who was armed with the gun, repeatedly turning round, and presenting it at the nearest of his pursuers ; that the deceased was armed with a pistol, which went off on the instant after the explosion of the musket, the contents of which lodged in his body.

Other witnesses gave evidence to the same effect, proving the murder in the clearest possible manner; and also that the whole three of the prisoners at the bar were actuated by the self-same spirit of hostility, determining on the taking of life rather than surrendering themselves to justice.

The evidence being too clear to admit of a defence, the prisoners when called upon acknowledged being together on the unhappy occasion, Brown and Ford making no further observation than that the gun was in the hands of Buckley, from whom Ford would have wrested it, as appeared by the testimony of Thomas Cosgrove ; but no conception could be entertained that his endeavour so to wrest it was well intentioned ; and with respect to Brown, every witness had sworn that when the three were running from their pursuers, he said repeatedly to Buckley, ” don’t fire until there is occasion.” He stated upon the contrary that his expression had not been until there is occasion, but that his actual expression had been, ” do not fire, for there is no occasion.” Every witness had distinctly sworn to the expression with which he had been challenged, ” do not fire until there is occasion for it;” and he became of course a principal in the murder.

Timothy Ford, a very young man, apparently not exceeding two or three and twenty years of age, was placed on the right hand of Buckley, who was in the center ; and from every appearance seemed to have reconciled himself to an unavoidable destiny. The hour of trial and the hour of death are so closely connected in the case of murder, that this unhappy creature had death precisely in his view, and as much as animated nature would afford, he might be esteemed the appearance of a moving corpse. The unhappy men upon each side of him defended themselves upon the principle that they could not prevent the firing; but why they, would the voice of reason say, associate with a man whom they could not control, bind, or manage, armed with a loaded gun, and conscious of a punishment resulting to all connected with him for any crime he should himself commit.

The only doubt, His Honor observed, was whether the Court was in the possibility of discerning between the unfortunate men at the bar any difference or distinction of crime. That there was only one musket was an established fact ; and that this one musket was the identically presumed defence of all, not mattering in whose particular hand it was, circumstances had sufficiently shewn. The only point upon which the Court could doubt of an equal criminality was, whether there might not have been in the course of the transaction a forbearance, a kindness which even in the criminal would be looked at by his judges with regard; but here nothing of the kind appeared. The man who fired the gun there could be no doubt respecting; but it was the entire wish of the Court to discover if possible a difference in the degree of guilt between the prisoners. One man endeavoured to wrest the musket out of the hands of the actual murderer ; and it is only presumable that if he had got possession of it, he would have committed identically the murder commited by his companion. The man, Brown, had repeatedly desired Buckley, by whom the piece was eventually discharged, not to fire until it was necessary. In the terms until it was necessary there was a tendency to murder.

The investigation had been long and patient ; and for what reason? not to pass a verdict for a murder which was clear in its proof, but to consider whether either or both of the accompanying persons were guilty as principals or as merely accessaries, the Court considering that its judgment would be final, and establishing its verdict upon proofs which left no doubt behind them. Men meeting and combining in an illegal pursuit, what mattered it of what cast or colour their pursuit might be, they were all equally liable to every danger that might accrue therefrom ; and here were three men, escapers from their Government employ, travelling from place to place with a loaded gun ; a gun loaded with eleven or twelve slugs ; the whole of which were deposited in the body of a man whose duty it was to apprehend them, and who in the mild performance of his duty was horribly murdered. Brown had said that his words were not ” do not fire until there is occasion, but that his expression was, ” do not fire, for there is no occasion.” In this turn of expression there is a strong difference ; but the entire weight of evidence is against him. The Court has been particular upon the point, and every witness has sworn particularly to the expression which brings this prisoner to the crime of murder as its immediate instrument & adviser. You heard the unhappy man who was murdered among you say that he was a district constable ; you also heard him require you to give yourselves up to him ; you, Brown and Ford, it is melancholy to remark, saw repeatedly the prisoner Buckley turning round and levelling his piece at his pursuers ; and at length you heard the explosion ; one of you, that is Timothy Ford, having repeatedly told the actual murderer Buckley to keep a strict eye upon his nearest pursuers ; having also endeavoured to wrest the gun away from the man who had it, how was it possible to say for what purpose ; the whole of his conduct was against the slightest sentiment in favour of him. His Honor the Judge of the Court went to considerable length in the retrospection of an evidence which admitted, not of contradiction ; and performed the painful duty of passing sentence of condemnation with that degree of energetic sympathy which has ever distinguished him as a Gentleman of feeling.

The unhappy men were yesterday executed. ( Friday  9 April 1819 )

Two other unhappy criminals, John Green and John Brennan, received sentence of death at the same time, for the crime of breaking into a dwelling house in the day time, and nearly murdering its occupier. They were condemned with the others, under the dreadful stipulation that they might a few days outlive the persons with whom they were at the same time sentenced.

A STORY OF 1803.

“The Man They Could Not Hang.”

(BY W.R.S.)

The fatal legend “Death” appears with lamentable regularity at the foot of recorded proceedings of the Australian Criminal Courts in the concluding years of the 18th century, but as will later be shown, pardons and remissions were as frequently granted by subsequent Governors, as they were by Phillip at the beginning of the settlement in Sydney. Remembering the harshness of the Criminal Code, one is repelled by documents which denote the sacrifice of life for relatively trivial offences, but the extraordinary developments of the case recorded here, which are probably unique in actual human experience, bring it within the historic purpose of the present articles.

A BURGLARY AND A MURDER.

A long series of documented records of evidence before the Lieutenant-Governor in the Court of Criminal Jurisdiction led the writer to follow up the sequel to the trial of a number of persons charged with burglary and murder, which was narrated in the Sydney “Gazette” of October 2, 1803. Reducing the story of the crime from a pile of depositions in the possession of the Supreme Court, it appears that one night in August, between 7 and 8 o’clock, the dwelling house of a settler named Breeze was entered, and a desk containing jewellery, money, and valuable documents was removed. The matter was promptly reported to the Chief Constable, who stationed watchmen through the night in the bush at the back of the dwelling. One of the watchmen, Joseph Luker, came on duty at midnight, and at once set out on a patrol. Early in the morning the desk was found, and not far away the body of Luker, who had been brutally murdered. So fiercely had he been attacked that the guard of his cutlass was found imbedded in his brain. The gruesome discovery caused horror throughout the settlement. The Sydney Militia Corps were called to arms, and blockaded every avenue of escape from the town, and frantic search for the assassins began, every officer, military or civil, including the Lieutenant Governor, joining in the hunt.

Suspicion was at first attached to a man named Bladders, who was charged and held, but before long others were arrested. Many witnesses were examined, the Court adjourned from day to day, and excitement in the town reached fever heat.

EIGHT SENTENCED TO DEATH.

The arrest of Bladders followed a finding of a Coroner’s Court composed of twenty “very respectable Inhabitants.” The boon of trial by jury had not yet been conferred on the colony, though agitation for the reform was growing amidst the free population, and the tribunal charged with the final jurisdiction was still of the military type, created by letters patent at the landing. As the facts were sifted, suspicion swung steadily in the direction of four men, Joseph Samuels, John Ruffell, Bladders, and Isaac Simmonds, and the final solution appeared in sight when Samuels, while denying the murder, confessed the theft, and assisted the Government officials to recover portion of the loot which had been buried in the bush. Ruffell was also charged with the theft, but after trial was acquitted. The more serious charge of wilful murder was preferred against Isaac Simmons and William Bladders, but the Court were of the opinion that the evidence offered by the Crown was insufficient to convict, so that they also were discharged.

The sitting had been a sensational and protracted one, and the Court passed sentence of death on no fewer than eight persons. Immediately after the trial Governor King exercised his prerogative and remitted the penalty, in three cases, to transportation for life. Samuels and another man named James Hardwick, who had been sentenced to death for theft of clothing, were removed to gaol for immediate execution. The convictions took place on September 23, a Friday, and the executions were ordered for the following Monday. The gallows at the time had been removed from the original site in the camp to Castle Hill, and the condemned prisoners were conveyed from the city prison overnight to a gaol at Parramatta.

REPRIEVED UNDER THE GALLOWS.

An echo of the profound sensation created by the hanging of Samuels is to be found in a description written by a reporter of the Sydney “Gazette,” whose feelings are alternately swayed by horror, pity, and religious fervor.

“The two men were brought up to the scene of execution in a cart at 9 o’clock in the morning, and both conducted themselves with becoming decency. The chaplain, the Reverend Samuel Marsden, at once commenced his ministrations with Hardwick, while Samuels, who was a Jew, was being prepared by a person of his own profession. Upon leaving Hardwick, the chaplain walked over to Samuels, who was urged to purge his conscience at the last moment by revealing his part in the crime. Prominent in the multitude of spectators surrounding the hill was Simmonds, who had been brought in custody from George’s Head to witness the lawful end. At first Samuels declined to make any statement, declaring that he had taken an oath, in Hebrew, with Simmonds, while in prison, to preserve secrecy and silence. Yielding to persuasion, however, he afterwards stated that Simmonds had told him that the constable had surprised him with the desk belonging to Mary Breeze, and that he had ‘knocked him down and given him a topper for luck.’ Also, that the tragedy would not have happened if the whereabouts of the stolen money had not been concealed from him. It is not to be wondered at,” says the “Gazette,” “that testimony like that, proceeding from the lips of a dying man, whose only probable concern was to ease the burden of his conscience in the hour of death, should at once remove all doubt, if such remained, as to Simmonds’s guilt, and the feelings of the multitude broke forth in invective.”

At 10 o’clock the two criminals reascended the cart, and when just about to be launched into eternity, a reprieve for James Hardwick arrived, and was announced by the Provost Marshal.

THE ROPE BREAKS THREE TIMES.

The “Gazette” proceeds: “Samuels devoted the last awful minute allowed him to earnest and fervent prayer. At last the signal was given, and the cart drew from under him, but by the concussion, the suspending rope was separated at about the centre, and the culprit fell to the ground, on which he remained motionless, face downwards. The cart returned, and the criminal was supported on each side until another rope was obtained, in lieu of the former one. He was again launched off, but the line unrove, and continued to slip until the legs of the sufferer trailed along the ground, the body being only half suspended. All who beheld the man’s protracted suffering were profoundly moved.

To every appearance lifeless, the body was again raised and supported on men’s shoulders while the executioner prepared anew his work of death. The noose was adjusted and the body gently lowered, and when left alone again, fell prostrate to the earth, the rope having snapped off short, close to the neck.

PROVOST-MARSHAL IN TEARS.

The scene which followed numbed the writer’s powers of description. Emotion could no longer bear repression, and the Provost Marshal, he tells us, charged with humanity sped off to his Excellency’s presence to plead for mercy. The success of his mission completely overcame him. A reprieve was announced and, adds the “Gazette,” “if mercy be at fault, it is the dearest attribute of God, and surely in heaven it may find extenuation.” Samuels, it appeared, when the Provost Marshal arrived with the tidings, which diffused gladness throughout every heart, was incapable of participating in the general satisfaction.

The half-strangled prisoner slowly recovered and uttered incoherent remarks, and when fully restored to consciousness, by surgical aid, had no recollection of what had passed. The “Gazette” concludes its account: “And may the hateful remembrance of these events direct his future course.”

A test was made of one of the ropes which failed at the execution. It was found to be defective in the short section where the break occurred, the remaining length, even with two strands severed, being capable of supporting three 56lb weights.

( This remarkable miscarriage had an immediate effect, in ways which will be described in a further article on primitive punishments, suggested by a somewhat mysterious document discovered in the Court archives. )