Attorney-General and barrister EDWARD MACDOWELL, cases 1840-1849
The mistrial of JOHN BUCHANAN indicted for rape of a child 1849
Edward Macdowell (1798–1860)
Source: Archives Office Tasmania RT52475
A Private Friend
In January 1849 Elizabeth Rachel Nevin's uncle, merchant mariner Captain Edward Goldsmith, was presented with a silver goblet as a token of appreciation for his services to the colony of Van Diemen's Land's horticultural enterprises. The occasion was scheduled to take place on Wednesday, 17th January 1849 with Captain Goldsmith's "private friend", barrister Edward Macdowell, nominated to make the presentation, but he was otherwise "engaged in Court." Edward Macdowell was at the Supreme Court Hobart acting as counsel in the defense of John Buchanan, charged with the rape of a six year old child, reported in the press as either Mary Ann Challenor or Challender. Presentation of the goblet to Captain Goldsmith proceeded with Mr. W. Carter in Edward Macdowell's absence.
TRANSCRIPT
TESTIMONIAL TO CAPTAIN GOLDSMITH.-A handsome twelve-ounce silver goblet was presented to Captain Goldsmith on Wednesday, last, as a testimonial in acknowledgment of the services he has rendered to floral and horticultural science in Van Diemen's Land, by importing rare and valuable plants from England. The expenses incurred were defrayed by private subscription. The testimonial was presented by W. Carter, Esq., in the name of the subscribers, who observed that he had hoped the task would have been committed to abler hands. Mr. Macdowell, who was engaged in Court, he said, had been first deputed to present the testimonial, as being a private friend of Captain Goldsmith. A token twenty times the value would no doubt have been obtained had the subscribers publicly announced their intention.Testimonial to Captain Goldsmith
- Upon receiving the cup, Capt. Goldsmith remarked that he would retain the token until death ; and, with reference to some observations made by Mr. Carter, intimated it was not improbable he should next year, by settling in Van Diemen's Land with Mrs. Goldsmith, become a fellow-colonist.
- The goblet, which was manufactured by Mr. C. Jones, of Liverpool-street, bears the following inscription:-"Presented to Captain Goldsmith, of the ship Rattler, as a slight testimonial for having introduced many rare and valuable plants into Van Diemen's Land. January, 1849." The body has a surrounding circlet of vine leaves in relief. The inscription occupies the place of quarterings in a shield supported the emu and kangaroo in bas relief, surmounting a riband scroll with the Tasmanian motto-" Sic fortis Hobartia crevit." The foot has a richly chased border of fruit and flowers. In the manufacture of this cup, for the first time in this colony, the inside has undergone the process of gilding. As heretofore silver vessels of British manufacture have taken the lead in the market through being so gilt, it is satisfactory to find that the process is practically understood in the colony, and that articles of superior workmanship can be obtained with out importation.
LOCAL. (1849, January 20). The Courier (Hobart, Tas. : 1840 - 1859), p. 2.
http://nla.gov.au/nla.news-article2967009
So who was Edward Macdowell, and what did the phrase "private friend" denote exactly, in 1849?
1840: Distillers' claims
Merchant mariner Captain Edward Goldsmith was a licensed wholesaler of liqour. His premises at 19 Davey St. Hobart were next door to John Leslie Stewart's brewery. They would have been among those affected by Governor Sir John Franklin's 1840 proposed bill to impose excise duties on distillers if Edward Macdowell, Attorney-General, had not protested. This account of Macdowell's role in the protest was published in 1884 by James Fenton:
The condition of the finances occasioned Sir john Franklin much difficulty during the first two years of his administration. The revenue derived from Customs, although annually on the increase, was still found inadequate to meet the expenditure incidental to the growing wants of the colony. Under the existing form of government direct taxation was impracticable. It was therefore determined to prohibit local distillation, on the assumption from ascertained facts that the excise duties were in many instances evaded by the distillers, and that its total suppression would largely benefit the revenue.
The question of compensation to the distillers, who would thus be injuriously affected, created a diversity of opinion in the Council. Pedder, the Chief Justice, who held a seat in the Legislature, strongly opposed the proposal to leave the matter of compensation to a committee appointed by the Executive, urging the principle that such claims should be settled by a jury. Mr. Edward Macdowell, the Attorney General, also objected to the proposals of the Governor as embodied in the bill before the Council, on account of their apparent injustice. As Attorney-General Mr. Macdowell was expected to support measures submitted by the Governor. Under the existing system there was no room for the exercise of conscience, he was therefore requested to resign his office. The Secretary of State being appealed to, approved the principle thus laid down, that it was the duty of a member of the Government to support its measures. By a strange concession to expediency His Honor the Chief Justice was made an exception to this rule. Franklin had ultimately to abandon the objectionable clauses of his bill, and after much delay the claims of the distillers, amounting to £7,431, were paid.
Source: Fenton, James (1884) A History of Tasmanian from its Discovery in 1642 to the Present Time. pp 150 -151
Cited by : http://www5.austlii.edu.au/au/journals/AUColLawMon/1884/2.pdf
1848: Sir William Denison's "private friend"
The term "private friend" in the 1840s referred to those of the same social class who were not their professional advisers, clients or beneficiaries in a legal sense. The term applied to both men and women in mixed or same gender relationships. In the 1850s, a private friend of a sex worker was the lover kept separate from the business: (Sanger, History of Prostitution, 1858). In colonial Hobart, the term "private friend" could mean someone held with affection in a relationship that was beneficial to both parties, but in at least once case, it denoted corruption involving Sir William Denison and his private friend Peter Degraves (1778–1852).
In 1848, the water course, called the town tunnel conveying the water supply to Hobart from kunanyi/Mt. Wellington along the Hobart Rivulet was closed, so as to divert water for use at Degrave's manufactories and mills (now the Cascades Brewery). The press used the term "private friend" to describe the cosy relationship between businessman Peter Degraves and the Lieutenant-Governor Sir William Denison who was seen to permit it in violation of the Queen's law.
Diversion of Hobart Rivulet
Source: Hobarton Guardian, or, True Friend of Tasmania (Hobart, Tas.), Saturday 30 September 1848, page 2
TRANSCRIPT
RIGHTS OF THE INHABITANTS TO AN INDEPENDENT SUPPLY OF WATERSource: Hobarton Guardian, or, True Friend of Tasmania (Hobart, Tas.), Saturday 30 September 1848, page 2
... Sir W. Denison appears to have wilfully confounded two properties belonging to the inhabitants, which are quite distinct - namely, the whole water of the Hobart Town rivulet, and the town tunnel or water course, by which the water was for so many years conveyed into the town - both belong to the citizens, and they demand the restoration of both, which his Excellency has permitted a private friend of his own to usurp.
Sir W. Denison may speak of the tunnel with as much contempt as he treats the inhabitants — he may term it a ditch, or call it by any other name he chooses, but he will not by such means alter facts. It is, however, much to be regretted that accuracy is so completely disregarded. The tunnel is a covered drain and not a ditch. The ditch is that, by which the water after passing through Mr. Degraves' manufactories and over his mill wheel, is conveyed into the temporary wooden box, termed the reservoir, from which the inhabitants are now wholly supplied, and into the said ditch, the workmen were in the habit of "emptying" themselves. The tunnel or water course by which the inhabitants were supplied for so many years with water, was considered by the legislature of sufficient importance to be vested in the Queen, notwithstanding the contemptuous manner His Excellency may allude to Her Majesty's property; and the legislature also enacted, that if any person wilfully prevented the flow of water to, or diverted the water from any such tunnel or water course, every person so offending, shall, upon conviction, forfeit and pay for every such offence a penalty or sum not exceeding fifty pounds.— This is the law. We believe that Sir W. Denison, by a solemn oath, pledged himself to administer the law faithfully and impartially — but instead of doing so, he has, for the last twenty months openly protected an individual in setting the law at defiance, and in usurping the property of Her Majesty...
This ongoing problem of contamination of the Hobart Rivulet water supply to residences in Davey Street may have caused the death from typhus of Captain Edward Goldsmith's elder son Richard Sydney Goldsmith in mid-1854. In its course from the foothills of kunanyi/Mt. Wellington to the River Derwent it was used as a sewerage channel. After extensive rainfall and flooding throughout March 1854, Captain Goldsmith petitioned the Hobart City Corporation on behalf of residents to lay down water pipes to contain the sewerage on the one hand, and provide clean water for household use.
Edward MacDowell (1798–1860)
See Addenda below for biographical details. Edward Macdowell was -
- barrister (1833-1855) Tasmania, Australia
- solicitor-general (1833-1837) Tasmania, Australia
- public servant (1837-1841) Tasmania, Australia
- public servant (1845-1855) Tasmania, Australia
- crown solicitor (1851-1855) Tasmania, Australia
- barrister (1855-1860) Victoria, Australia
THE LETTER from CHARLES BUTLER
Below is an extract from a private letter addressed to Bishop Montgomery, written by 82 year old solicitor Charles Butler of Ellerslie, Hampden Road, Battery Point, Tasmania. The letter was in response to a request by the Bishop for an account of some of Tasmania's prominent early colonists dating from Charles Butler's arrival in Hobart in 1835. Butler started the letter on 27 November 1902 and finished it on 28 December 1902, although the original request from the Bishop was sent in June 1899. He duly acquitted the task with short biographies of Bishop Nixon, Mr McLachlan, Captain George Read, Captain Swanston, Mr. John Learmouth, Sir Alfred Stephen, Thomas George Gregson, George Meredith and Edward Macdowell on whom he showered faint praise.
TRANSCRIPT
2nd. Decr. 1902.Typescript of letter from Charles Butler to Bishop Montgomery re reminiscences of early colonists -
Edward Macdowell was Attorney-General, a Barrister of great eloquence, a very handsome Irishman but not a good lawyer and not a worker. He would at times go into Court without looking at his brief or scarcely so pick up the merits of the case during its progress and make a splendid reply at the conclusion. He was I believe a University man highly educated but without application. He married Capt. Swanston's daughter.
The Governor then here wished to carry some particular measure in Parliament to which Mr. M. was opposed and it was arranged that Mr. M. should resign, and the Solr Genl be appointed in his place and when the matter was carried the Solr should resign and Macdowell be reappointed, which was done but the Secretary of State refused to confirm the re-appointment and both Atty and Solr Genl lost their offices. Mr. Macdowell practiced for some years here and then went to Victoria. He had a bad failing and lost much of his position which no doubt caused him to fail in that Colony in the practice of his profession. I heard he died there in bad circumstances and miserably.
Bishop Nixon, C. McLachlan, Capt G. F. Read, Captain Swanston, John Learmouth, Sir Alfred Stephen, Edward Macdowell, T. G. Gregson, G. Meredith.
Source: Archives Office of Tasmania Ref: NS2122/1/7
Series: Information Folders relating to Tasmanian Subjects of Historical Interest -
Edward Macdowell, p. 5
Charles Butler penned this paragraph about Edward Macdowell in 1902 from the comfort of these rooms at Ellerslie, Hampden Road, Battery Point, Tasmania.
Charles Butler' and family on steps of 'Ellerslie', Hampden Road, Battery Point
Stereoscopic photograph attributed to Morton Allport.
Item Number:NS2217/1/1
Date:09 Nov 1864
Butler Family Photographs. (NS2217)01 Jan 1840-31 Dec 1979
View online: https://stors.tas.gov.au/AI/NS2217-1-1
Source of photographs: Butler Family Photographs (NS2217) Archives Office of Tasmania
Stereograph: NS2217-1-1
View of Ellerslie, Battery Point: PH30-1-336
Ellerslie rooms: PH30-1-4371 and PH30-1-4372
The person - most likely a member of the legal fraternity - who transcribed the verso of this unattributed photograph of barrister and Attorney-General Edward Macdowell was also sceptical of Edward Macdowell's character, seemingly to mock the good opinion of him held by Tasmanian Surveyor-General James Erskine Calder with this quote: -
"The noblest, the best and the bravest." So thought James E. Calder!The sender of the photograph to recipients unknown dated it 16 June 1875, fifteen years after Edward Macdowell died, aged 62 yrs in 1860. No photographer's stamp or mark is visible which could accurately date and place the photograph, but it was probably taken soon after his relocation to Melbourne in 1855.
Recto: Edward Macdowell (1798–1860)
Source: Archives Office Tasmania RT52475
Verso inscription: "Edward Macdowell Barrister 16 June 1875
'The noblest, the best and the bravest.'
So thought James E. Calder!" i.e. reference to James Erskine Calder (1808–1882)
READER ALERT: you may find the rest of this post confronting and distressful.
The Case of John Buchanan,1849
On the day he was nominated to present Captain Edward Goldsmith with the specially crafted silver goblet, Edward Macdowell was otherwise engaged at the Supreme Court Hobart acting as counsel in the defense of John Buchanan who was charged with the rape of a six year old child.
These newspaper reports detailed the case over several days in January 1849. The first witness was the girl's mother. The success or failure of the trial to pass the death sentence on John Buchanan would pivot on Macdowell's argument that little credit was to be placed on the child's statement.
Hobarton Guardian, or, True Friend of Tasmania (Hobart, Tas.) Sat 20 Jan 1849 Page 4 Wednesday
TRANSCRIPT
SUPREME COURTSource: "Wednesday, 17th." Hobarton Guardian, or, True Friend of Tasmania (Hobart, Tas. : 1847 - 1854) 20 January 1849: 4. Web. 13 Jun 2021
Criminal Sittings
Wednesday, 17th
Before his Honor the Chief Justice
The jury in the preceding case, sworn yesterday, then took their seats in the jury box, and - John Buchannan [sic] was placed in the dock, charged with having committed a rape on Mary Ann Challenor, (a child six years' and a half old) on the 24th day of December last. The prisoner pleaded not guilty. Mary Blakley, (mother of the girl), on being sworn said — I am the wife of John Blakley, carpenter. I have been married twice. The name of my first husband was John Challenor. I have a daughter (now 6 years and 5 months old) by him. I have been residing at No. 3, Old Market place, and my daughter with me. I know the prisoner at the bar about 18 months. I remember the Sunday before Christmas day (here Mrs Blakley was much effected) he walked into the house, and sat d down. He asked for the little girl, I told him she was at chapel. He said he had some lolleys for her, and he wished to see her, he had a great "liking for her". He remained about a quarter of an hour, when the children returned. He said to the little girl "do you know me?" She said no. I also asked her if she knew him, She again said no. He then took her between his legs and gave her lolleys. He said he had been on board the "Bandicoot" repairing her. He had some shells, and asked the girl would she like some. She said yes. He said if Mary Ann Challenor would go to his room in Collins-street, he would give her some. I allowed her to go accompanying my three other children. My son Thomas went, and I gave him strict orders not to lose sight of his sister. The prisoner at the bar took my daughter by the hand. It was about half in hour before I saw my daughter again. The prisoner brought her back to my house, accompanying the other three children. He remained about a quarter of an hour at my house. When the child returned she had three shells, and said she had 2d. but spent it. On the Wednesday morning I observed my daughter looked pale; and had asked her what was the matter.
Mr. MacDowell here made some remarks as to the length of time that had elapsed before there was any notice taken of the affair, and objected to what the girl told her mother, being put in as evidence. It was however overruled by the court.
Mary Ann Blakley continued - I examined my daughter, I found she was in a very bad state. [Here a conversation took place which is totally unfit for publication]. On the Wednesday I examined her linen and found it much stained. I then examined the linen she took off on the Saturday, but it was not at all stained. On Thursday morning I took her to Dr. Bright. No one but myself had examined her previous to that time. Dr. Bright examined her in my presence. I saw Dr. Seccombe examine her at the police office. My daughter May Ann did not see the prisoner at the bar again from the Sunday until the day of examination at the police office.
Mr. Macdowell cross-examined this witness at great length, during which she made several direct contradictions....
... Mary Ann Challenor, an interesting looking child was then called and His Honor then examined her as to speaking the truth, when he directed she should be sworn. She then related the manner in which the prisoner committed the offence....
William Daley, of the detective, on being sworn, stated that the child , Mary Ann Challenor, took him to Mr. Phipp's yard, and pointed out a closet where the prisoner committed the act with which he is charged, Dr. Bright was next sworn, whose testimony went to show that the offence had been committed, and that the child was labouring under a loathsome disease.
Dr. Seccombe then swore that the prisoner was labouring under a nameless disease. Thomas Clarkson, constable, was called, sworn and said — I apprehended the prisoner on the 26th December last, I told him I apprehended him for feloniously assaulting Mary Ann Challoner, a child, on the 17th Dec. last. The prisoner said oh, very well, I will go. The prisoner also said, how is it possible they can charge me with it. I took the child home to give her some shells. Mr. Macdowell at great length endeavoured to show that little credit was to be placed on the child's statement, and hoped the jury would take this into consideration. The learned Judge summed up very minutely, and the jury retired for about half an hour, when they returned and found a verdict of guilty.
http://nla.gov.au/nla.news-article163503711.
RECORDS at ARCHIVES OFFICE of TASMANIA
John Buchanan, born Scotland in 1829, arrived at Hobart, Van Diemen's Land, as a prisoner on the Ratcliffe (2), 12 November 1848. He was remanded for the sexual assault of a six year old girl Mary Ann Challenor in 1849 and released due to a judicial error. In 1866 he was sentenced to 4 years for burglary. He died on 22nd August 1892 of senile debility, aged 62 years, at the New Town Charitable Institute, Hobart.
Transport conduct record 1848:
Link: https://stors.tas.gov.au/CON33-1-91$init=CON33-1-91p38
Court records January 1849:
Link 1 https://stors.tas.gov.au/SC32-1-6$init=SC32-1-6p131jpg
Link 2 https://stors.tas.gov.au/SC32-1-6$init=SC32-1-6p132jpg
Link 3 https://stors.tas.gov.au/SC32-1-6$init=SC32-1-6p133jpg
Court record January 17th and 19th 149
Archives Office Tasmania
Link: http://stors.tas.gov.au/SC32-1-6$init=SC32-1-6p132jpg
TRANSCRIPT
Page 109 (on left)
Wednesday the 11th January 1849
The Court met this morning at 10 o'clock
Before His Honor the Chief Justice
Jury (same as in no. 1)
3. John Buchanan assaulting & carnally knowing one Mary Ann Challender an Infant under 10 yrs of age to wit 6 yrs of age
Verdict: Guilty - rem?
[Annotation] Mr. Macdowell appeared for the prisoner.
The case for the pros. closed at 1/2 p. 3pm & the address for the Def. closed at 4pm His Honor commenced his charge to the Jury & closed at 1/4 to 5, who at 5pm [?]
Page 110 (on right)
Friday the 19th day of January 1849
The Court met this day at 12 o'clock
Before both His Honors -
Upon John Buchanan being placed at the bar. His Counsel (Mr Macdowell) moved that no Judgement be passed on the prisoner on the ground of testimony of the pris. being irregularly received on his trial
Mr. Atty General was heard in support of Judgement passed on the prisoner.
The prisoner was remanded.
TRANSCRIPT
SUPREME COURT.CRIMINAL SITTINGS.Source: Colonial Times (Hobart, Tas. ) Fri 19 Jan 1849 Page 2
WEDNESDAY. JANUARY 17
Before His Honor the Chief Justice.
The following jury were sworn - J. Aldridge (foreman), R. McCracken. P. Dudgeon, J. W. Woolley, J. Belbin, J. Robinson. T. Vigar, J. Abbott, E. Ivey, J. McConnell, G. Rolwegan, J. Regan.
John Buchanan was found Guilty of having on the 17th December last, criminally assaulted a child six years of age, named Mary Challender. The particulars of the case are totally unfit for publication.
SUPREME COURT.—CRIMINAL SITTINGS
https://trove.nla.gov.au/newspaper/article/226536818
How John Buchanan escaped hanging
A technical error on the part of the judge in this instance led to a pardon pending for the rapist John Buchanan. It was noted he had been capitally convicted of a similar offence in England but escaped punishment "by a technical error". He managed again to escape punishment in the Hobart Supreme Court on a judicial error.
Britannia and Trades' Advocate (Hobart Town, Tas. : 1846 - 1851), Thursday 18 January 1849, page 2
TRANSCRIPT
Wednesday, Jan. 7. John Buchanan was indicted for a rape on the person of a little girl between 6 and 7 years old, on Sunday the 17th. December last. It appeared from the evidence that the prisoner called at the house of the child's mother, living in the Old Market Place, on the Sunday evening, and under pretence of giving the little girl some shells, took her with him up Collins-street. The mother not suspecting any bad intention in the prisoner, allowed the child, in company with her brother, 10 years old, and another little brother and sister, to go. The prisoner gave the boy a halfpenny to get lollipops at the corner of Melbourne-street, and leaving the other two children while the boy in went to the shop, took the little girl into some premises in that street, and perpetrated the deed. The medical testimony of Drs. Bright and Seecombe established the completion of the offence. The circumstance was discovered by the mother on the following Wednesday, from the injury to the child's health. The evidence in this atrocious case is unfit for publication. The trial lasted till five in evening, when the jury returned a verdict of guilty against the prisoner. He was remanded for sentence. Mr. Macdowell appeared for the defence.Source: Colonial Times (Hobart, Tas.) Fri 26 Jan 1849 Page 2 Domestic Intelligence.
[We understand the prisoner, who is about 45 years of age, was capitally convicted in England for a similar offence but escaped punishment by a technical error. - Eb. B]
The prisoner awaits a pardon, because the Court has erred on a technical issue
Source: The Britannia and Trades' Advocate (Hobart Town, Tas) Thu 25 Jan 1849 Page 2
TRANSCRIPT
SUPREME COURT.
Wednesday, Jan. 24.
At 12 o'clock their Honours the Chief Justice and Puisne Judge took their seat upon the bench.
The prisoner Buchanan was placed in the dock.
The Chief Justice recapitulated the circumstances of the trial, reviewing the authorities and their application to the present case. He admitted he was wrong in denying the prisoner, by his counsel, the undoubted right he had to examine the witness when put into the witness-box, bible in hand, previous to being sworn, ; as to the witness's competency to take an oath and knowledge of its moral and binding force. The modern practice in England was for the judge at his discretion to examine the witness before the bill went to the grand jury. His reason for having refused to allow the prisoner's counsel to examine the witness in this ease as to competency, was, that he thought such an examination might defeat his own decision previously given on the subject. He had erred, and it was to be regretted.
The Puisne Judge agreed with the Chief Justice s decision; he likewise stated he had consulted Sir Alfred Stephens, who concurred with him in his opinion.
The prisoner was then remanded to the custody of the Sheriff, pending a pardon. The Attorney-General wished their Honours to direct the prosecution of the prisoner for an assault, but they declined.
Edward Macdowell advises that John Buchanan walk free
Colonial Times (Hobart, Tas.) Fri 26 Jan 1849 Page 2 Domestic Intelligence.
TRANSCRIPT
SENTENCES - ... John Buchanan, for a capital offence upon a child six years old, was found guilty by a highly respectable jury, without the slightest recommendation to mercy. The judges have since agreed with Mr. Macdowell that the prisoner ought not to be executed, but be sent to Norfolk Island, there to pass a few months, which he has to serve previous to becoming free ; so that a very short period will elapse, when this filthy disgrace to manhood will, perhaps, again be committing those diabolical crimes which can only be thought of with horror.Colonial Times (Hobart, Tas.) Fri 26 Jan 1849 Page 2 Domestic Intelligence.
POSTSCRIPT.Source: Cornwall Chronicle (Launceston, Tas. : 1835 - 1880), Saturday 27 January 1849, page 4
Buchanan, the man convicted and sentenced to death the other day for a capital offence upon a child six years old, has had another narrow escape, the Judges having decided that the conviction was wrong, on the ground that the Court had refused to allow Mr. Macdowell to examine the principal witness as to competency. The conviction was quashed, and the prisoner remanded, with the understanding that he is to be sent to Norfolk Island, until he becomes free, which will be in a few months.
John Buchanan, ship to colony Ratcliffe 2, was sentenced to 4 years for burglary at the Quarter Sessions Court Launceston on 11th June 1866 and released from the Hobart Gaol on 29th September 1869. He was 41 yrs old. Buchanan may have committed further sexual assaults on children without detection, and indeed more burglaries before his death as a pauper at the New Town Charitable Institute in 1892.
Discharge of John Buchanan, 4yrs for burglary
Police Gazette Tasmania1 October 1869
1843: Edward Macdowell's defence of Martin Cash
An earlier case involving murder established Edward Macdowell's reputation for defending the indefensible and winning at sensational trials.
TRANSCRIPT
R. v. KavenaghSource: Hobart Town Advertiser, 8 September 1843[1]
bushranging, Cash, Martin, murder, mens rea, hue and cry, self defence, Port Arthur, conditions at, capital punishment, dissection, capital punishment, time of execution, robbery on highway, Crown mercy
Supreme Court of Van Diemen's Land
Montagu J., 6 and 7 September 1843
Source: Hobart Town Advertiser, 8 September 1843[1]
TRIAL OF MARTIN CASH, FOR MURDER
The avenues to the Court were crowded this morning long before ten o'clock, the hour of adjournment. On the opening of the doors the floor of the Hall of Justice was instantly filled by an anxious audience, (among whom were many females), to hear the trial of the notorious Martin Cash, whose lawless career has obtained for him "a bad eminence" among all friends of peace and order.
His Honor, Mr. Justice Montagu, took his seat precisely at ten o'clock. From the excellent arrangement made by the Under Sheriff, the javelin men prevented the Court from being over crowded, and although hundreds, composing "the pressure from without", were disappointed in obtaining admission, yet the expediency of the precautions taken were evident in the preservation of order and silence throughout the entire proceedings.
On the bench, with the learned Judge, sat J. Burnett, Esq., Sheriff of the colony; and J. Hone, Esq., Master of the Court.
The Attorney General conducted the prosecution, near whom we observed, during the whole of the day, the Solicitor General.
Mr. Macdowell appeared for the defence.
We were sorry to observe that this able advocate is labouring under severe indisposition and hoarseness. At Mr. Macdowell's request, all witnesses in the case were directed to leave the Court.
The prisoner, "the observed of all observers," was then directed to be brought in, and placed in the dock. He was dressed in a good suit of sailor's clothes, which he wore when captured; and maintained the same self possession which characterised his demeanor when the Coroner held his inquisition.
The Clerk of the Court, then read the information, which contained but one count. It charged the prisoner, Martin Cash, with having on the 29th August last, in and upon one Peter Winstanley, discharged a certain pistol, loaded and charged with gunpowder, and one leaden bullet, inflicting a mortal wound on the left breast, of which mortal wound the said Peter Winstanley, until the 31st day of the same month did languish, and languishing did live; and on the same day of the same mortal wound died; and that on the day above-named, the prisoner Martin Cash, the said Peter Winstanley, feloniously, wilfully, and with malice aforethought, did kill and murder, against the peace of our Lady the Queen, her Crown and dignity.
The prisoner, with great promptness, and in a confident tone, pleaded Not Guilty.
Read the rest of this case here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASSupC/1843/39.html?
TITLE: Thomas Bock - Sketches of Tasmanian Bushrangers, ca. 1823 - 1843
CALL NUMBER: DL PX 5
IE NUMBER: IE1076928
FILE NUMBER: FL1076998
FILE TITLE: f.3 Martin Cash
Source: https://archival.sl.nsw.gov.au/Details/archive/110327187, State Library of New South Wales
Addenda
1. BIOGRAPHY: Edward MACDOWELL (1798–1860)
Source: Australian Dictionary of Biography
https://adb.anu.edu.au/biography/macdowell-edward-2397
Edward Macdowell (1798-1860), barrister, and Thomas Macdowell (1813-1868), newspaper editor, were the sons of John and Susan Macdowell of Marlton, near Wicklow, Ireland. Edward was called to the Bar at the Middle Temple in 1824 and served for some years on the Midland Circuit before he was appointed solicitor-general of New South Wales in 1830. He lost this position when he failed to take up his duties promptly, and had to accept instead the less remunerative solicitor-generalship of Van Diemen's Land. He held office from January 1833 to September 1837 when he succeeded Alfred Stephen as attorney-general. In December 1838 his brother Thomas joined him in Van Diemen's Land.
Thomas, who had worked in London as a reporter on the Constitutional, began his newspaper career in the colony early in 1839 as editor of the Hobart Town Courier under the conductorship of William Elliston. In July 1841 he founded the Van Diemen's Land Chronicle and remained in charge until it ceased publication next December. Although both these newspapers enjoyed government patronage, the first loyalty of Thomas as their editor was not to the government but to the '(Sir) George Arthur faction', with which Edward became linked by his marriage in June 1835 to Laura Jeanette, daughter of Charles Swanston, the influential manager of the Derwent Bank.
From Thomas's arrival in the colony, the association of the Macdowell brothers was close and notorious. Many, including Gilbert Robertson and Lady Jane Franklin, suspected Edward of inspiring his brother's newspaper articles. In 1839 the Hobart Town Courier, with Thomas as editor, repeatedly attacked the solicitor-general, Herbert Jones, who had quarrelled with Edward and forced him to resign over the distillation issues bill. When these press attacks did not cease on Jones's handing back of the attorney-generalship to Macdowell after the bill had been piloted through the Legislative Council, Jones was stung to make counter charges in a letter published in a rival newspaper, Gilbert Robertson's True Colonist.
The dispute between the two law officers, each of whom appealed against the other to the Colonial Office, became a public scandal and in July 1841 both were dismissed.
The loss of his attorney-generalship left Edward free to devote his time to his legal practice, which became one of the most successful in the colony; one of its highlights was the defence in 1843 of the bushranger, Martin Cash. Freedom from office also allowed him and his brother more openly to support John Montagu, the colonial secretary and leader of the 'Arthur faction', in his quarrel with Sir John Franklin. Thomas, as editor of the Van Diemen's Land Chronicle, was responsible for the first and most damaging of the attacks on Lady Franklin in the Tasmanian press. As a journalist, he excelled in invective: his jibes at John Macdougall, editor of the Colonial Times in 1841, and Thomas Gregson in 1848 struck home so effectively that the one attempted to whip him, the other to cudgel him in public; and of the critics of the Franklins, he was undoubtedly the most skilful and unrestrained.
After 1842 Thomas, although he continued to have an occasional interest in the Hobart Town Courier and in the short-lived Spectator, ceased to play an active role as a newspaperman. In February 1840 he had been elected manager of the Tasmanian Fire, Life and Marine Insurance Co., with which was associated the Hobart Town and Launceston Marine Insurance Co., and until his death devoted himself to running these two companies. On 28 April 1845 he married Jane Palmer at Hobart. She died in 1866, and two years later he left Hobart to establish in Melbourne a branch of the Derwent and Tamar Insurance Co. He died there on 18 December 1868, survived by five children.
After the recall of Franklin, Edward Macdowell began to make his way slowly back into official favour. In 1844 his successor as attorney-general was dismissed for having fought duels with Robert Stewart and Thomas Macdowell both, according to the True Colonist, provoked by Thomas Macdowell. This led to a series of promotions which left vacant the position of commissioner of the Insolvency Court to which in March 1845 Edward Macdowell was appointed. In December 1851 he was further charged with the duties of acting crown solicitor. In March 1854 his tenure of this position was made permanent. Next year he resigned and went with his children to Melbourne where he practised at the Bar until his death on 24 April 1860.
Although the role played by the Macdowell brothers in Tasmanian history was not attractive, they should not be dismissed merely as henchmen of the 'Arthur faction'. Men of undoubted capacity and ruthless ambition, they both found time during their stormy careers to defend not only their private interests but also the conservative and realistic political principles on which they held the Arthur administration had been based.
Select Bibliography
E. M. Miller, Pressmen and Governors (Syd, 1952)
Hobart Town Courier, 29 Nov 1839, 14 Feb 1840
True Colonist (Hobart), 6 Dec 1839, 22 Mar 1844
Mercury (Hobart), 21 Dec 1868
Correspondence file under Macdowell (Archives Office of Tasmania).
2. LAURA MACDOWELL (1813-1849)
Edward Macdowell and Laura Jeanette Swanston married at Hobart on 24th June, 1835 in the presence of George Dean and Alfred Stephen. The Macdowell House "Beauley" or "Beaulieu" was purchased by Edward Macdowell in 1837 from George Bilton, a partner with Captain Edward Goldsmith in a ship building company with Messrs Haig, Meaburn and Williamson. They purchased an allotment fronting the Derwent, 115 feet, £5 5s per foot, £903 12s do do. 115 feet, £9 10s, £1092 10s; and the dwelling house and premises, £625 at Secheron Bay with intentions of constructing a patent slip. Today, Beaulieu stands as no 8, Rupert Avenue. It is the only house in the Mount Stuart area to be listed on the register of the National Estate.
This advertisement appeared in The Tasmanian, 24 May 1833;
Estate for Sale.
On Friday, the 7th June, Mr Stracey will sell by public auction. On the premises, at Twelve for One o'clock, positively without reserve, the refreshments being first disposed of, That beautiful property, Beauley Lodge. Lot 1. Will comprise the house, containing an elegant entrance hall 16 ft. by 8 ft., an elegant saloon 24 ft. by 16 ft., a comfortable dining room 20 ft. by 16 ft., all communicating by folding doors, and opening by French windows into a tasty veranda. There are five bed-rooms, corresponding in size and proportion to the others; a good kitchen, laundry, butlers' pantry, secure store-room and dairy. The out offices embrace servants' rooms, good stables, coach-house with lofts and granaries, poultry house and yard, dove cot, and an extensive range of useful buildings. There are three acres of land encircling the house, laid out with much taste, and covered with English grasses. The terms will be as liberal as the property is desirable - namely, half the purchase money may remain on mortgage at a moderate interest, for 4 or 5 years, the residue to be paid, by a cash deposit of 10 per cent, 10 per cent by 3 months bills, and 30 per cent, by approved bills at 6 months. To soften the disappointment of those who will be outbid in the purchase of Beauly Lodge, several very eligible building allotments, will be sold immediately afterwards, which are cleared, cultivated and cropped, including a large garden, well stocked with choice trees. The terms in this case, will also be liberal. It is utterly impossible any description can do justice to the intrinsic value, beauty of situation, salubrity of air, fertility of soil, extent and beauty of the commanding prospect, by land and water, of this property. And then the interior at once displays that degree of taste and elegance, it is to be deplored is not more studied in the generality of Colonial buildings. And not least must be taken into consideration, the stability of the edifice, both in regards to materials and workmanship.
Beaulieu wasn't sold and was advertised again in November 1833 when it was described as a 'delightful residence for a family of the highest respectability'. George Bilton purchased it but only lived there for a few years before advertising it for sale in the Hobart Town Courier in December 1837. Edward Macdowell purchased it at sale but by 1842, the year he registered the births of all three of their children, he was living with his wife and family at Secheron, Battery Point, Hobart.
Sources: photo of Beaulieu, Mt. Stuart, Hobart. Copyright G. Ritchie 2013, Convict Trail
Convict Trail: https://ontheconvicttrail.blogspot.com/2013/10/beaulieu-homestead.html
Mt Stuart:https://www.mountstuarttas.org.au/?q=content/houses
1836-1841: children born to Laura and Edward Macdowell
On the 14th March 1842 Edward Macdowell, barrister of the Middle Temple and resident of Secheron (Battery Point), registered the births of all three of their children on the same day. His wife Laura Janette Macdowell nee Swanston gave birth to a son, Hay Macdowell on 9th May 1836; to another son, Swanston Hay Macdowell on 4th May 1838; and a daughter Anna Rebecca on 28th December 1841.
TRANSCRIPT
BIRTHS.—On Friday last, at Beauley Lodge, the Lady of Edward Macdowell, Esq., Attorney General, of a Son.Source: Bent's News and Tasmanian Register (Hobart Town, Tas.) Fri 11 May 1838 Page 4 Family Notices
Registration of three Macdowell births to Laura and Edward Macdowell
Registration year:1842
Record ID: NAME_INDEXES:1067144
Resource:RGD33/1/1/ no 691
Archives Office Tasmania - https://stors.tas.gov.au/NI/1067144
1849, October: influenza and whooping cough
The State Library of Victoria holds a letter sent from Launceston, 3rd October, 1849, written by Edward MacDowell to his son Hay, at Cathedral Grammar School, Rochester, England. It also has a few lines added by his younger son, Swannie. The letter refers to the outbreak of influenza and whooping cough in Tasmania and Victoria which had affected members of the Macdowell family. The letter also refers to Hay's illness in England and contains other family news.
Source: Biographical / Historical note Edward MacDowell was the father of Hay and Swannie.
Title Letter : Launceston, to Hay, Rochester, 1849 Oct. 3. [manuscript]
Author / Creator Edward MacDowell
Date 1849 Oct. 3
Description 4 p. (0.1 cm.)
Identifier(s) Accession no: MS 10543
Link to this record - http://search.slv.vic.gov.au/permalink/f/1cl35st/SLV_VOYAGER163691
1849, December: death of Laura Macdowell
Edward Macdowell's wife, Laura Macdowell died of liver complaint on December 16th 1849, just 36 yrs old.
TRANSCRIPT
DIEDSource: Colonial Times (Hobart, Tas. : 1828 - 1857) Tue 18 Dec 1849 Page 2 Family Notices
On Sunday last, in Macquarie-street, Hobart Town, aged 36 years, LAURA JEANETTE, the beloved wife of Edward Macdowell, Esq., Commissioner of Insolvent Estates, for Hobart Town.
Macdowell, Laura Jeannette
Record Type: Deaths
Gender: Female
Age: 36
Date of death: 16 Dec 1849
Registered: Hobart
Registration year: 1849
Record ID: NAME_INDEXES:1188533
Archives Office Tasmania
Link: https://stors.tas.gov.au/RGD35-1-2P272
Collection: Walker, James Backhouse
Subject: Photograph of New Town and Mt. Direction, Hobart, Tasmania from the hill above Beaulieu c.1880
Photographer: Alfred Winter Bathurst, Elizabeth and Liverpool Streets from 1869 until 1891
University of Tasmania Library Special and Rare Materials Collection, Australia.
Source: https://eprints.utas.edu.au/3503/
FURTHER READING
1. A case of malversations and libel, 1841, involved both brothers Edward and Thomas Macdowell versus Mr. Gilbert Robertson, Proprietor of the True Colonist newspaper.
Source: https://www.law.mq.edu.au/research/colonial_case_law/tas/cases/case_index/1841/mcdowell_v_robertson/
2. "Duelling in Van Diemen's Land: the dismissal of Attorney-General, Thomas Welsh, in 1844".
Appears in Papers and Proceedings: Tasmanian Historical Research Association, v.47, no.3, Sept 2000, p.185-187 (ISSN: 0039-9809)
Author Petrow, Stefan
Published Sept 2000
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