For
NAIDOC WEEK July 2022
Genocide and the European aesthetic
It was only two decades ago that the Archives Office of Tasmania displayed online scratchy black and white photographs of Tasmanian Aborigines with the catalogue tag "Flora and Fauna" in the same category as the extinct thylacine (Thylacinus cynocephalus), known as the "Tasmanian Tiger".
The confections of the 19th century colonists of lutruwita/Van Diemen's Land/Tasmania displayed in public archives and museums of photographic images, sculptures and literary texts that represent Aboriginal people continue causing distress to viewers, whether proferred by these institutions as the antique artefact memorializing the reality of historic genocide, or as benchmarks in a progressive national narrative moving forward the Western reformation of indigenous peoples. The most frequently reproduced images since the 1860s have featured Tasmanian Aboriginal elder and leader Truganini, a Nuenonne woman from Bruny Island also known as Trucaninni, Lallah Rookh and Trugernanner (1812-1876).
This plaster bust representing Truganani was cast in 1836 by
Benjamin Law. It was purchased at the time by Jewish merchant and former convict Judah Solomon. Law's sculptural aesthetic was simple: dressing down Truganini's right breast to reveal a naked nipple was only to dress up her femininity better in the neo-Classical tradition of beauty, the European ideal.
Cast plaster bust of "Trucaninny" [NPG, sic] 1836 by Benjamin Law (1807-1890)
Purchased by the National Portrait Gallery, 2010.
Photo taken at the National Portrait Gallery 2021
Copyright © KLW NFC Imprint & KLW NFC Group Private Collection 2021
Information re bust of Truganini by Benjamin Law, National Portrait Gallery, Canberra 2021.
Photo copyright © KLW NFC Imprint & KLW NFC Group Private Collection 2021.
Cast plaster bust of Woureddy, companion to bust of Truganini by Benjamin Law, 1835
Photo taken at the National Portrait Gallery July 2022
Copyright © KLW NFC Imprint & KLW NFC Group Private Collection 2022
The poem below titled simply "
Lines", written by
Ann Elizabeth Kearney in June 1875, is another representation of Truganini confronting to 21st century sensitivities, though the author might not have had the least inkling of the degree of racism she was parlaying with her celebration of the fair skin and rosy lips of 10 year old non-indigenous Trucannini Graves - the "TASMANIAN BELLE" - over and against the "dusky" darkness of the race believed soon to become extinct, represented by Truganini whose name John and Jessie Graves had appropriated for their daughter at birth in 1864.
The Kearney and Graves families
John Woodcock Graves the elder (1795-1886), famous for his composition of the song "D'ye ken John Peel", was a family friend and frequent visitor of Thomas Kearney's father, William Keaney (1795–1870) of Laburnam Park, Richmond, Tasmania. His son, lawyer and townsman John Woodcock Graves the younger (1829-1876), defended Thomas Kearney (1824-1889) in a dispute in 1875 over the conveyancing of a lease five years earlier, in 1870, to neighbour William Searle for use of a road on his property. The defense was Kearney's state of intoxication and severe delirium tremens prevented him from knowing what he was doing. Thomas Kearney's wife, Ann Elizabeth Keaney nee Lovell, showed her gratitude to John Woodcock Graves for his defense of the case in June 1875 by writing a poem praising his pretty youngest daughter Trucaninni Graves.
Though not indigenous, two of the four daughters born to solicitor John Woodcock Graves the younger and Jessie Graves nee Montgomerie were named after the two notable Tasmanian Aboriginal women who survived the colony's history of genocide, Truganini (1812-1876) and Mathinna (1835–1852). When Anne Elizabeth Kearney published this poem titled "
Lines" in June 1875, Trucaninni Graves was ten years old, named at birth (with the variant spelling) to honour Truganini who was thought to be "
the last one of a doomed race" by many, if not most, including Ann Elizabeth Kearney in this poem. The role John Woodcock Graves the younger played in Truganini's life was to provide comfort or "succour" in her last years, the poem suggests, and a promise of protection of her remains in death. She died aged 73 yrs, on 8th May 1876. He died six months later, aged 47 yrs, on 30th October 1876. The poem as displayed here from a private collection, was printed on silk.
Lines written on seeing the beautiful daughter of Mr. Graves, who is named after the last Tasmanian Native, and afterwards meeting Queen Trucaninni at the corner of Elizabeth and Macquarie Streets by Kearney, Anne Elizabeth, author.
Date 1875.
TRANSCRIPT
Lines
Written on seeing the Beautiful Daughter of MR.
GRAVES, who is named after the last Tasmanian
Native, and afterwards meeting Queen Trucaninni
at the corner of Elizabeth and Macquarie Streets.
I SAW thy dusky namesake, gentle child,
And still more fair by contrast did'st thou seem,
With rosy lips that on me sweetly smiled,
And eyes more lovely than a poet's dream.
I gazed upon poor Trucaninni's face,
And thought how sad her heart at times must be,
To think she was the last of all her race
Who once had wandered through the forests free.
I looked upon her, and I wondered not
That Trucaninni now is known to fame -
The last Tasmanian may not be forgot
While thou, fair girl, inheritest her name.
Thy noble Father, with a generous hand,
Succoured the last one of a doomed race -
Made her be happy in her native land,
And reign a Queen, if only for a space.
In after years, when I have passed away,
And other lips than mine the tale may tell;
Thou shalt be known in every poet's lay,
As "TRUCANINNI - THE TASMANIAN BELLE!"
ANN ELIZABETH KEARNEY.
June 19th, 1875.
Source: Extract from "THE AUSTRALIAN CHURCHMAN"
Published in the Jeanneret family files (p.75)
Link: https://ianjeanneretphoto.files.wordpress.com/2019/06/jeanneret_book-1.pdf
[Above]: Truganini (1812-1876) and John Woodcock Graves jnr (1829-1876)
Tasmanian Archives and Heritage Office. https://stors.tas.gov.au/NS407-1-54
Photo copyright © KLW NFC Imprint 2015 ARR
Above: An unattributed photograph of Tasmanian Aboriginal woman Truganini seated, with John Woodcock Graves the younger standing over her, taken shortly before her death, aged 73 yrs, on 8th May 1876. He died six months later, aged 47 yrs, on 30th October 1876 of congestion of the lungs and pneumonia.
Ann Elizabeth Kearney née Lovell (1827-1898)
When Ann Elizabeth Lovell married Thomas Kearney on 30th March 1848 according to the rites and ceremonies of the Wesleyan Church at the private house of her father, Esh Lovell of Carrington, Richmond (Tasmania), she was 20 years old. Her sister Margaret Rachel Lovell, 18 years old, married William Kearney the younger, Thomas Kearney's brother, on the same day.
Ann Elizabeth's husband Thomas Kearney (1824-1889) was a farmer, 24 years old, living on his grant of 32 acres at Richmond (Tasmania) at the time of their marriage. Thomas Kearney's father, William Kearney, ran a horse stud at Laburnam Park, Richmond until his death in 1870. The 1851 census registered nine people at Thomas Kearney's property, identified as Colebrook, Lower Jerusalem in the district of Richmond. Two daughters, Catherine who died at 10 days from convulsions in 1850, and Clara who died of "atrophy" (genetic disease causing spinal muscular weakness and wasting) also at 10 days in 1851 were born before their son William Kearney (named after his father's father) was born on 29th March 1852 . Their births were all registered by their father, Thos. Kearney, whose addresses varied from "Colebrook", Coal River, to "Colebrook Dale", Lower Jerusalem in the district of Richmond. The birth of William was countersigned by medical registrar Dr John Coverdale whose own wife Ann Harbroe had given birth at Richmond three days earlier to a son, William Percy Coverdale. More births followed, registered by their mother at various addresses either on the same property or in the same district: "Spring Hill Bottom", Coal River, and Enfield where her death was registered in 1898. In all,
eleven births were registered to Ann Elizabeth Kearney between 1849 and 1866. For details, see Resources below and visit this wiki:
https://www.wikitree.com/wiki/Kearney-1237
The circumstance of these addresses given by Thomas Kearney of his property at Richmond assumed critical importance in 1870 when he was approached by William Searle from a neighbouring property to sign a lease over an area of land which was later disputed as to whether it was a public or private road. The case brought by the plaintiff, Searle's trustees, before a jury five years later, in 1875 called on the defendant's wife Ann Elizabeth Kearney as a witness, who identified herself straight up as
a poetess. Under cross-examination by the Attorney-General for the plaintiff, she told how she now regretted having written lines in thanks to Mr Searle when he had paid her husband Thomas for the lease in 1870 at a time he was heavily in debt and desperately ill from alcoholism because she thought Searle had saved her husband from committing suicide, but by 1875, she thought Searle's singular objective was to get hold of the Kearney's property by fraudulent means.
The Case, 17th June 1875
The plaintiffs are the trustees of the late William Searle, of Richmond, and they claimed to recover from the defendant the sum of £100 damages for the wrongful obstruction of a certain high road and right-of-way on the Laburnum Park estate at Richmond.
1974. Animals - Horses - Neptune Stud, Colebrook, Tasmania.
Copyright © National Archives of Australia 2022
The Case 1875
LAW INTELLIGENCE.The Mercury (Hobart, Tas) 17 June 1875: page 2.
https://nla.gov.au/nla.news-article8937970.
LAW INTELLIGENCE.
SUPREME COURT.
CIVIL SITTINGS. WEDNESDAY, 16TH JUNE, 1875.
Before His Honor Mr Justice Dobson, and juries of seven.
SIMMONS AND OTHERS v. KEARNEY.,
The hearing of this case was resumed.
The plaintiffs are the trustees of the late William Searle, of Richmond, and they claimed to recover from the defendant the sum of £100 damages for the wrongful obstruction of a certain high road and right-of-way on the Laburnum Park estate at Richmond. Defendant pleaded six pleas. (1.) That the plaintiffs were not possessed of the messuage or land as alleged. (2.) That they were not entitled to the said right-of-way. (3.) That plaintiffs claim to the said alleged right-of-way was made by virtue of a deed of agreement in writing made with William Searle, which agreement he (defendant) was induced to make by fraud, and had repudiated and abandoned. (4. ) That he was so intoxicated when he made the agreement as to be incapable of executing it. (5.) That the road was a public highway. (6. ) A general plea of not guilty. On these pleas issue was joined.
The ATTORNEY-GENERAL, instructed by Mr C. Butler, appeared for plaintiff ; and Mr BROMBY, instructed by Messrs Graves and Crisp, for the defendant.
Frederick James Windsor deposed : I am the chief draftsman in the Lands and Works department, and have the charge of charts and plans. I produce the original volume of diagrams of surveys in 1848, from which the grants were made. That contains the diagram of 32A acres of land granted to Thomas Kearney. It shows that the land was intersected by the main road from Richmond to Jerusalem, and it also shows the road from the main road to the road claimed. The road was surveyed by Mr Shaw, then contract surveyor, and now in New Zealand.
To Mr BROMBY : That plan merely shows the survey of the land in 1848. Of my own knowledge, of course, I know nothing about it.
Charles Searle deposed : I am the second son of the late William Searle, and the present tenant of Laburnum Park, under the trustees of my father's will. The plan produced represents the three roads near Laburnum Park. The road " B " is the road in general use by the public. Road " C " is a private road which leads from the main road to Laburnum Park. We have used that private road a little more than ten years. For some years before the lease was made, the road was in actual use. At the point where that private road joins the main road, my father had a large painted gate put up, upwards of ten years ago. That was the road always used by my father and family going to Richmond ; it was the carriage-way to the house. At the other end of the road, a ford was made at considerable expense. Kearney, frequently, before the lease in 1870, used the private road, and therefore knew of it and the gate and ford. We used the road up to July, 1874. Kearney asked me to use the old public road marked "A," saying at the same time that we had a right-of-way through the sixty acres called "The Park." I told him I would consult with my mother, and did so, after which I told Kearney that I would agree to his proposal. The old public road had been practically unused for years, it had a post-and-rail fence on one side and a hedge on the other. The private road was, however, a little nearer Richmond, and we seldom, if ever, therefore, used the old public road. Kearney's proposal to me was this - I met him in March, 1874, and he asked me whether mother would mind using the old public road, as he wanted to cultivate the sixty acre paddock. I said I did not think she would mind using it if he would make it good, and he then said that we had a right of way through the paddock. Between March and July, however, Kearney did not make the road good. In July I spoke to the defendant about the road. I asked him why his sons had ploughed it up, and he said that as soon as they had time they would make the old public road good. After that the gate was locked at the Jerusalem end. At the latter end of July, Kearney told me that he had had a fence put up across both the private and the old public roads. I formally told him that I should require him to open the road. He said he would not do so. The next morning I went to him and asked him for the key, and he said he would not give it. I then told one of my men to draw the fastening of the gate, and with that Kearney threatened to knock either of us off our horses if we threatened to touch the gate. That was the gate on the private road "C". We have never used the road since. The gate had been locked some months before, Kearney telling me it was to prevent other people going through. Kearney's house is just opposite the gate ; the key was kept there, and for some months the gate was always unlocked when we wanted to pass through. The fence across both roads " A" and " C" is still there and they are both ploughed up. We have now to come to Richmond by the road "B," and to cross by a different ford. The difference is half-a-mile. Besides the distance, the ford affects the value of the Laburnum Park property. The ford at the junction of reads "A" and "C" is a much better one ; it is the one made by my father, and is not so steep as the one on road "B." The closing of the road would make a difference in the value of the property of £10 a year. On the white gate, at the end of road " C," there was written " Private entrance to Laburnum Park."
To Mr BROMBY : I have been in possession of Laburnum Park for two years. I am 23 years of age. My father had the painting put on the gate more than ten years ago.
To His HONOUR : My mother has the house and garden, and I have the rest of the estate. I pay her £150 a year for it, under a verbal agreement.
Alexander Goldie deposed : I reside in Victoria, and was formerly the owner of Laburnum Park. I have known the old public road "A" since 1826. "B" was the public road from 1826 to 1846. Kearney is a very old resident. His father was one of a committee with me in 1833 to fix the roads in the neighbourhood: I made the road " B " in order to avoid the inconvenience of people passing just past my house along road "A," and I also made a good bridge. The road " B " was then used by the public, who ceased to use road " A," but I continued to use it. Neither the defendant nor anybody else ever interrupted me using that road. The Enfield people always used that road during the time I was there. It was a decided loss to the estate to have the road closed, a loss, I should say, of quite £10 a year. I knew the late Mr William Searle well ; he was as thoroughly honest as any man that ever lived.
John Gitters deposed :-I was last year in the employ of Mr Chas. Searle, of Laburnum Park. In August last I went, with Mr Searle to the gate at the entrance of the private road. Kearney was there. Mr Searle asked him for the key of the gate, but he refused to give it, and he took a panel out of the fence, and threatened to knock us both down if we attempted to go through.
Winston Churchill Simmons : I am a farmer at Richmond, and one of the plaintiffs in this action. I am well acquainted with the three roads "A," "B," "C." I consider the road "A," the old public road, to be of permanent advantage to Laburnum Park property, and I don't think the previous witnesses have over-estimated the loss to the estate by the closing of the road. The private road, " C," was a better road than "A"; it is more direct, and not so steep. Mrs Searle's lease has about two years to run, the unexpired term of a seven years lease.
That was the case for the plaintiffs.
Mr Bromby submitted that the plaintiffs should be non-suited on two grounds- (1) that they were reversioners of the property, and not in possession according to the first count of the declaration, and that therefore they could not bring the action ; (2) that the old public highway had not been a public highway, for more than 20 years.
The ATTORNEY-GENERAL contended that the reversioners, and not the persons who had transitory possession of the property, were the proper persons to sue ; and with regard to the second point, if a public way was once established, no amount of non-use by the public could extinguish that way. The learned counsel applied to be allowed to amend the declaration on the first count.
His HONOUR overruled both objections, and permitted the declaration to be amended.
Mr BROMBY addressed the jury for the defendant, resting his defence mainly on the allegation that the defendant was in a state of intoxication, and therefore did not know what he was doing when he signed the agreement in question. He called Thomas Kearney, who deposed : I am the defendant in this case, I remember the month of August, 1870, when I was asked to sign a lease by Mr Searle. Bills came in from Richmond, and I went to Mr Searle and asked him to advance me some money to pay them. He had previously advanced money on my wife's property, at eight per cent, and he said he would advance money on my property at the same rate. Just before the lease was signed Mr Searle asked me if I would allow him a right of road through the land. I said " no," but I told him he could use the road he was then using until I wanted to cultivate the land. I got the money from him on the 3rd of August. I had been drinking for some days before that, and when I got up that morning I told my wife that I would turn over a new leaf and not drink any more. I felt delirium tremens, however, coming on me, and I went to Richmond to get some more drink. When I got back at three o'clock, my wife told me that Mr Searle wanted me to go over to his house. I went there, I have an indistinct recollection of signing a lease then. I don't remember how many times I signed my name. Some cheques were given to me. I was anxious to get the money to pay the bills I owed, and the cheques were made out in the names of the various parties, and one also in my wife's name. The sixty acres are nearly all cultivated now. If there was a road through that land, it would greatly diminish its value, I was born on the property, 51 years ago. I remember the public road " B" being made by Mr Goldie. My father made the old public road " A " through my property ; but after Mr Goldie made his road " B," the public used it. The public used the other road, but only on sufferance. Mr Searle asked me to sell him the sixty acre piece ; he offered me £450, but I refused it.
To the ATTORNEY-GENERAL : The sixty acre paddock had not been in cultivation till last year. I never promised to make good the old public road, nor did I first make a proposal to young Searle about the road. He first came to me. I have now ploughed up both roads. I knew long before 1870 that Mr Searle was using the private road " C," and I knew it was a great convenience to him. I have been of intemperate habits for 35 years; I began young. Mr Searle on many occasions tried to induce me to give up drinking. In 1865, he got me to sign the pledge, and had been very kind to me in a variety of ways ; in fact he was so all the time I knew him, except on this one occasion. I think he cheated me then, because I was not in a fit state to sign an agreement. There are three signatures, and they are written in a firm hand. Mrs Searle and Sarah Roberts are mistaken in saying I was sober when I signed the lease. I went to Mr Searle's for the express purpose of signing the lease and obtaining money. I don't remember whether the lease was read to me or not. When my wife told me what I had done in signing the lease, I thought I had been tricked ; but I said nothing about it, nor should I have said anything, had not this action been brought.
John Woodcock Graves deposed : I am the attorney to the defendant. I have known the defendant a long time, and knew his father before him. During the time I have known the defendant, he has been frequently intoxicated. His property was being damaged by his intemperate habits, and I drew up a settlement of some property on Mrs Kearney. By that document I made Mr Searle the trustee. At that time Mr Searle had not made a claim of the right-of-way.
Ann Elizabeth Kearney, examined by Mr BROMBY : I am the wife of defendant, and have been married to him 27 years. I have lived a great many years in Richmond. My husband was given to intemperate habits, very much so five years ago. In 1870, in the month of July, my husband was suffering from delirium tremens, and continued drinking to the 2nd of August. On that day Mr Searle asked me where he was, that he had the lease ready for him to sign. I told him I was afraid he was not in a fit state to sign it. On the 3rd of August he was ill in bed, and begged of me for God's sake to get up and give him a drink. He went out while I was getting his breakfast ready, and did not return home till the afternoon. Mr Searle came to the house after, and I had a conversation with him about the lease of the land. I arranged with him about the rent to be paid for the 60 acres, and how it was to be paid in advance. Mr Searle spoke to me about the condition of my husband, saying that he was on the verge of insanity, and that if something was not done at once he would surely go mad. When my husband came home in the afternoon with the cheques he was very much agitated, and when I hesitated to sign the cheque drawn in my favour, he become so excited that I thought he would have murdered me. After Mr Searle died I saw Mrs Searle in reference to the document containing the right-of-way, and subsequently saw it at the office of Mr C. Butler. I remember the disturbance in reference to the fences of the public road being destroyed, but I have never seen that road used by the public since.
Cross-examined by the ATTORNEY-GENERAL : I fix upon the period the 3rd August from the violence of my husband, which was unusual, and from the date of the cheques which he brought, home, the reason the cheque I have spoken of was made payable to me was that he should not have the money, and he became violent because I refused to sign it, and he wanted to have it cashed. When he went to sign the lease he did so with the one idea of getting the cheques to pay his debts, and he did pay them. I cannot tell if the public road was used by the Enfield people for taking cattle to water. Mr Searle at one time I thought was very kind to us ; but I think differently now. I am a poetess. I wrote the lines produced in thanks to Mr Searle because he had saved my husband from committing suicide. I think now the object Mr Searle had was to get hold of our property.
Annie Kearney, daughter of defendant, gave evidence corroborative of the last witness as to the condition of her father on the 3rd of August.
Cross-examined : He was very tipsy before he went to Mr Searle. He had been drinking for three or four days before then. It was his custom, when he went to Richmond to return home drunk. I fix the date the 3rd of August, from the way in which he behaved to my mother on that date. The first I knew of the deed about the road was when my mother came from Mr Butler's, and said that Mr Butler had produced the paper, but that it was illegal. I cannot tell if she said that the paper was signed on the 3rd of August, 1870.
Ada Kearney, another daughter of the defendant, also testified that her father was tipsy on the 3rd of August, 1870. She fixed upon the date from the violent behaviour of her father towards her mother.
Alexander Gibbons, storekeeper, examined by Mr BROMBY : I have known defendant for 35 years. I have lived in the neighbourhood of Richmond a great length of time. I remember in August, 1870, meeting Kearney in the paddock coming from Mr Searle. He said he had been signing articles at Mr Searle's, and seeing that he was under the influence of drink, I made the observation, " I hope you knew what you were signing." Defendant had a piece of paper in his hand. I had frequently seen defendant tipsy before.
Cross-examined : It was Kearney who remembered our meeting in the first instance I remembered it afterwards.
S.B. Fookes, rector of Richmond, examined by Mr BROMBY, deposed to knowing defendant for many years as a very intemperate man. He did not know of the road in dispute ever having been used as a public road.
John Stonehouse, examined by Mr BROMBY, deposed that he knew Kearney's property. Knew it for 42 years. The road used to go to the Falls from the public road leading from Richmond to Jerusalem was abandoned in 1840, and the road called the public road, and now known as such, was adopted.
Richard Cook corroborated the last witness.
This concluded the case for the defendant, and Mr BROMBY summed up the same, contending that the evidence established beyond a doubt that the defendant when he made the agreement conveying the road to the late Mr Searle, was not in a fit state to execute such a document, and that therefore it was null and void, and ought to be so declared. As to the question that the road was a public road, he submitted that there was no evidence of that, and, further that if it was a public road it had been abandoned.
His HONOR : Do you contend, Mr Bromby, that a public road can be abandoned ?
Mr BROMBY ; Yes.
His HONOR : Have you any authority ?
Mr BROMBY : I have but I have not the books with me.
His HONOR said that the authorities laid down that a public road, even though it might have been fenced across, could not be abandoned, excepting by Act of Parliament. The principle was that " Once a highway, always a highway."
Mr BROMBY, (after some discussion) said he would confine his contention to the allegation that the road never was a public road.
The ATTORNEY-GENERAL replied on the whole case pointing out that the non-use of a public road did not amount to a cession of it as such, and in support of his view quoted Shelford on Real Property. He then proceeded at length to deal with the allegation contained in the defendant's plea that he was so drunk at the time he made the agreement as to be incapable of executing it, submitting that it was monstrous to suppose that a man having entered into a legal contract should be allowed to turn round and say - when the person with whom that contract was, laid in his grave, and was unable to confront him-that he was induced to enter into the agreement while under the influence of drink. It must be shown that he was so far drunk as to be wholly incapable of comprehending the meaning of the contract, and that Mr Searle must have known that he was in that state. He submitted that the evidence for the plaintiffs was entitled to belief, and if so, then the jury must find their verdict in their favour.
His HONOUR then summed up the whole case to the jury, telling them that if the defendant was so drunk when he signed the deed as not to know what he was doing and that Searle knew he was so drunk, there could be no doubt whatever that the deed would not hold water. He then reviewed the evidence on either side on that point, and left the case in the hands of the jury ; directing them if they found the road was a highway still it could not be abandoned by non-user, and plaintiff would be entitled to compensation for any damages they had sustained from the obstruction of that highway.
Mr BROMBY asked His Honour, to direct the jury in finding on the plea of drunkenness, to say whether the defendant when he executed the deed was drunk only, or whether he was drunk to the knowledge of Mr Searle.
HIS HONOUR assented, and desired the jury to decide on the plea as suggested by the learned counsel.
The jury retired at 5 p.m., and at 6 o'clock they came into Court with a question on which they desired His Honour's ruling. The question was whether, if the defendant was drunk, but not drunk within the knowledge of Searle, that would invalidate the deed.
His HONOUR replied that it would. That was how he had directed the jury in his summing up, and he had been fortified in his opinion by other authorities than that mentioned in the case, since the jury had retired. If the jury found simply that defendant was drunk, but that he was not drunk within the knowledge of Searle, then the bargain would stand good so far as Searle was concerned.
The jury again retired, and after twenty minutes deliberation, they sent to ask for information as to what damages would carry costs.
The ATTORNEY-GENERAL offered no objection, and the reply was forwarded that anything above £7 would carry costs.
Shortly after, the jury returned a verdict for the plaintiff on the first count, with 40s. damages. On the second count they found that defendant was drunk when he signed the deed, but not to the knowledge of Mr and Mrs Searle; and on the third count that the road marked "A" was a public highway, but that it had ceased to be used ai a highway since 1863.
The ATTORNEY-GENERAL asked what damage was assessed on the second count. The jury were bound to state some damages.
The Foreman : One shilling.
Mr BROMBY asked His Honour to take a note of his objection as to whether drunkenness with or without the knowledge of either was a good defence or not. If he could maintain that it was, then he should submit, on the finding of the jury on that count, that plaintiffs were not entitled to a verdict.
His HONOUR said he would do so.
The Court then adjourned until 10 o'clock next (this) morning.
Source: LAW INTELLIGENCE. The Mercury (Hobart, Tas. : 1860 - 1954) 17 June 1875:page 2.
https://trove.nla.gov.au/newspaper/article/8937970
SUPREME COURT - TERM SITTTNGS. TUESDAY, JUNE 20.
Before their Honors the Judges. SIMMONS AND OTHERS V. KEARNEY.
A rule nisi had been granted last week for arrest of judgment and nonsuit in this case, the right to a road being in question. The rule was enlarged for a week, and the Court strongly recommended that the parties should come to terms.
Source: SUPREME COURT—TERM SITTINGS. (1875, July 1). Launceston Examiner (Tas. : 1842 - 1899), p. 3.
https://nla.gov.au/nla.news-article52900123
The final decision in this case was published on 10th July 1875. Thomas Kearney as the defendant was fined 40 shillings for obstructing the road which he had signed over to the plaintiff Searle in 1870, but since the jury believed that Searle claimed that Kearney to his knowledge was not intoxicated at the signing of the deed, the accusation that Searle had acted fraudulently was dismissed.
Simmons and Others v. Kearney was a suit in which the plaintiffs sought to recover damages, assessed at £100, for the obstruction by the defendant of a certain private road and public highway in the Richmond district. The defendant pleaded several pleas, but that on which the greatest reliance was placed was that wherein he alleged that the deed of agreement, by which he had parted with his right to the plaintiff to use the private road, he being to the knowledge of the late Mr. Searle (whose trustees the plaintiffs are), intoxicated at the time it was executed, and therefore, unable to comprehend its meaning. The jury found a verdict for the plaintiffs on the first count alleging the obstruction, and awarded them 40s. costs. On the defendant's plea of drunkenness, they found that he was drunk when he executed the deed, but not to the knowledge of Mr. Searle ; and as to the obstruction of the highway, they stated that the highway was a public road, but that it ceased to be used as such in 1873. The verdict substantially is therefore for the plaintiff.
Source: LEGAL. Mercury (Hobart, Tas. : 1860 - 1954), Saturday 10 July 1875, page 1
https://nla.gov.au/nla.news-article8938453
https://stors.tas.gov.au/LPIC13-1-88_35
Photograph - Colebrook Mansion
Item Number:LPIC13/1/60
Start Date:01 Jan 1880 End Date: 31 Jan 1880
Location:Launceston 34 1 4
Creating Agency: Anson Brothers, Photographers (NG143)
Archives Office Tasmania
Link: https://stors.tas.gov.au/LPIC13-1-88_35
The four Graves sisters
It was during these court proceedings in June 1875, in which her husband Thomas Kearney was defended by solicitor John Woodcock Graves' instructions (to Mr. Bromby) that Ann Elizabeth Kearney wrote her poem about meeting Aboriginal elder Truganini (1812-1876)) on a street corner, prompting her to celebrate her namesake, the non-Aboriginal daughter of solicitor John Woodcock Graves, Trucannini Graves. The first-born of these four sisters, Jean Porthouse Graves, was photographed by Thomas J. Nevin in 1872:
Jean Porthouse Graves, 14 yrs old,
Detail of photograph (below) printed as both a stereograph and carte-de-visite
Stereograph in double oval buff mount with T. Nevin blindstamp impress in centrePhoto copyright © KLW NFC 2014 ARR
Taken at the TMAG November 2014 (TMAG Collection Ref:Q1994.56.5)
Jean Porthouse Graves, born 20th January 1858 at Hobart to John Woodcock Graves, solicitor, Upper Bathurst St Hobart, and Jessie Graves formerly Montgomerie. She was unnamed at birth. Jean Porthouse Graves married solicitor Francis Knowles Miller at Melbourne, Victoria in 1885. She died at her residence, Rembrandt Square London, aged 91 yrs, on 30th July 1951.
Mathinna Isabella Graves, born 1st August 1859 at Hobart to John Woodcock Graves, solicitor, Bathurst St Hobart, and Jessie Graves formerly Montgomerie. Mathinna Isabella Graves died at her residence, Orrong Rd, St Kilda Victoria, aged 88 yrs, on 29th June 1948.
Mimi Graves was born on 20th November 1862 at Hobart to John Woodcock Graves, solicitor and Jessie Graves formerly Montgomerie. Her birth was registered by a friend - H J D Baily (?) Argyle St.
Trucaninni Graves was born on 2nd November 1864 at Hobart to John Woodcock Graves, solicitor, Bathurst St Hobart, and Jessie Graves formerly Montgomerie. Her birth was registered by her mother Jessie Graves, Princess St. Hobart.
The eldest, Jean Porthouse Graves (1858-1951) was an admirer in her teens of photographer Thomas J. Nevin. She made his acquaintance in January 1872 when he was assigned official photographer of VIP's on a day trip to Adventure Bay, Tasmania, a trip organised by her father John Woodcock Graves the younger. In her album of photographs and newspaper clippings, some documenting the history of her grandfather's fame as the composer of the English folk song "D'ye ken John Peel", John Woodcock Graves the elder, she kept a half dozen photos by Thomas J. Nevin of that trip in 1872, plus a few taken later of all four daughters at the family home, Caldew, in West Hobart, after her father's death in 1876.
One of four extant photographs taken on 31st January 1872 and printed in various formats from Thomas J. Nevin's series advertised in the
Mercury, 2nd February, 1872, as the Colonists' Trip to Adventure Bay (Bruny Island).
[From lower left]: John Woodcock Graves jnr, solicitor; his daughter
Jean Porthouse Graves; above her, R. Byron Miller, barrister; on her left, Sir John O'Shanassy, former Premier of Victoria;
[Centre top]: Lukin Boyes, son of auditor and artist G. T. W. Boyes, leaning on stone structure
[Extreme lower right]: James Erskine Calder, former Surveyor-General, Tasmania
Single unmounted carte-de-visite photograph of large group at Advenure Bay 1872
From the Miller and Graves family album
Photos recto and verso: copyright © KLW NFC Imprint 2015 Private Collection
Verso of above: One of four extant photographs taken on 31st January 1872 and printed in various formats from Thomas J. Nevin's series advertised in the Mercury, 2nd February, 1872, as the Colonists' Trip to Adventure Bay (Bruny Island).
Verso with T. Nevin late A. Bock , 140 Elizabeth St. Hobart Town commercial stamp
Verso inscriptions include these identifiable figures at the "Picnic":
Father = John Woodcock Graves jnr,
Sir John O'Shanassy = former Premier of Victoria,
Self = Jean Porthouse Graves, daughter of John W. Graves,
L. Boyes = Lukin Boyes (?), son of G.T. W. Boyes
From an album compiled by the families of John Woodcock Graves jnr and R. Byron Miller
Private Collection © KLW NFC Imprint 2015
Truca Graves
A lion sculpture greeted visitors on the steps of Caldew, West Hobart, home of the family of solicitor John Woodcock Graves the younger, first photographed by Thomas J. Nevin ca. 1870 as a stereograph with Byron Miller, Lukin Boyes, Frederick Boyes, and sisters Jean, Matte, and Truca Graves.
Above: Group portrait of two male adults, one boy and three girls, members of the Graves, Miller and Boyes family taken by Thomas Nevin ca. 1870 at Caldew, West Hobart.
Stereograph in arched mount on yellow card
TMAG Ref: Q16826.10
Possible identification as follows:
Frederick Lukin Boyes: the boy seated on the grass who died in 1881, aged 16 yrs, son of Lukin Boyes.
Lukin Boyes, Customs Officer: the man seated on right in light clothing who is patting a goat or deer.
Jean Porthouse Graves (born 1858): the teenage girl sitting next to Lukin Boyes, daughter of John Woodcock Graves jnr (not pictured here).
Robert Byron Miller, barrister: sitting on the same bench, whose son Francis Knowles Miller later married Jean Porthouse Graves.
Two more of John Woodcock Graves four daughters: the two other girls, one sitting on a chair at extreme left, and the other seated on the grass, were possibly Mimi (born 1862),
Trucaninni as Truca (1864) or Mathinna as Matte (born 1859). The latter two were given Aboriginal names at birth.
This photograph (below) was taken of Jean Porthouse Graves about seven years later, noted as "self" along the edge of the page on which it was pasted in her family album. She stood in the doorway of Caldew ca. 1877, gazing directly at the photographer. Her father, solicitor John Woodcock Graves jnr by this time was deceased. He had died suddenly in 1876 of congestion of the lungs and pneumonia, leaving a widow, pictured here seated in the doorway and four daughters. Listed as present here by Jean are two of her sisters, Trucaninni (Truca) and Mathinna (Matte), with their father's former colleagues R. Byron Miller standing next to Jean, and Lukin Boyes, seated with one of the Graves' daughters. Lukin Boyes was a witness at the marriage of John Woodcock Graves to Jessie Montgomerie in 1857.
Inscribed on page: "Caldew, Hobart, Mother, Matte, Mister Miller, Lukin Boyes, Truca, self"
Inscribed on page: "Caldew, Hobart, Mother, Matte, Mister Miller, Lukin Boyes, Truca, self"
From the Graves and Miller family album, complete page below
Photos copyright © KLW NFC Imprint 2015 Private Collection
Inscribed on page: "Caldew, Hobart, Mother, Matte, Mister Miller, Lukin Boyes, Truca, self"
From the Graves and Miller family album
Photos copyright © KLW NFC Imprint 2015 Private Collection
Earlier poetry by Ann Elizabeth Kearney née Lovell
The first, published in 1849 was penned a year or so prior to Ann Lovell's marriage to Thomas Kearney in 1848. Written in the voice of an unnamed widow who is at that moment relinquishing her child Agnes to death, the poem may have been based on real events in Ann Lovell's family. Then again, it may be little more than a generic poem expressing grief at death in the Romantic tradition, produced by a young poet practicising her art.
1848: "A Widowed Mother’s Lament on the Death of Her Only Child"
Source: Argus (Melbourne, Vic. : 1848 - 1957), Friday 17 August 1849, page 4 Original Poetry
TRANSCRIPT
A WIDOWED MOTHER'S LAMENT ON THE
DEATH OF HER ONLY CHILD
And must I give thee up, my child ?
A fair young mother weeping said -
Long, long was this sad heart beguiled,
With hope, but that at last is fled.
Yes, death is stamped upon thy brow,
The clammy drops are gathering there,
And thou wilt leave thy mother now,
A pray to anguish and despair.
No more, no more, thy gentle smile
Shall wake this heart to hope again
No more, no more, wilt thou beguile,
With soothing words, thy mother's pain.
Thy lip hath lost its roseate hue,
Thy cheek 's deprived of healthful bloom,
And thy soft eyes, of heavenly blue,
Must soon be closed within the tomb.
Thou wert the only solace left,
Thy mother's widowed heart to cheer;
Death, cruel death, has me bereft
Of all, save thee, my Agnes dear.
I know 'tis useless to repine,
And murmur thus, 'gainst Heaven's decree
I must my only hope resign,
Yes, Agnes, I must part from thee.
I yield thee, though this bleeding heart
Can scarcely bear to let thee go,
Oh, Agnes ! thus from thee to part,
It is, indeed, excessive woe.
Forgive, dear child, my selfish love,
That would thy gentle soul retain,
That will not let it mount above
To that bright world, released from pain.
She wept in silence, as she gazed
Upon the corpse of that fair girl,
As, with her hand, she gently raised,
And parted back the clustering curl.
Then said - I will no more repine,
or murmur, 'neath the chastening rod,
Freely, my all I will resign,
And yield thee, Agnes, up to God.
A. E. Lovell.
Source: Original Poetry. (1849, August 17). The Argus (Melbourne, Vic. : 1848 - 1957), p. 4.
https://nla.gov.au/nla.news-article4769272
This second poem, written in 1872 can be taken as autobiographical in some part, written in the years when Ann Elizabeth Kearney suffered verbal and physical violence from her husband Thomas Kearney, details of which were stated before judge and jury in 1875 in the case SIMMONS v. KEARNEY (see transcript above of The Case). She told the court then of his alcoholism, his "
intemperate habits" and her fear "
he would have murdered me" when hesitating to give him money to buy more alcohol. His daughters Ada and Annie Kearney also testified to the violent behaviour of their father towards their mother. Richmond residents too remembered him as a "
very intemperate man". Thomas Kearney's neighbour Mr. Searle thought "
he was on the verge of insanity, and that if something was not done at once he would surely go mad". By his own admission Thomas Kearney said his intemperate habits began young, 35 years ago. His friend and lawyer John Woodcock Graves saw him frequently intoxicated and said in court that the damage he was causing to the property resolved his decision to draw up a settlement to sequester some portion for Ann Kearney. For her part, as this poem testifies, her life was a "harsh battlefield". She had grown old prematurely, without hope, her heart "stern and cold," betrayed by the inconstancy of "Man's love, ah!"
1872: "A Life's History: Sad but True"
Source: ORIGINAL POETRY. (1872, May 4). The Tasmanian (Launceston, Tas.), p. 2.
https://nla.gov.au/nla.news-article201344718
TRANSCRIPT
ORIGINAL POETRY
A LIFE'S HISTORY: SAD BUT TRUE
Life was once a scene of gladness,
All I look'd on bright and true;
Grief came not with brow of sadness
To mar the picture fancy drew.
The future seemed a landscape fair,
Deck'd with bright flowers that could not fade,
And loving friends were smiling there,
Who now are in the dark grave laid.
Yet even in childhood's happy day,
Too soon I learnt earth's joys are brief;
Death snatch'd my dearest friend away,
'Twas then I knew my first great grief.
But childhood's tears, though for a while,
In bitterness and sorrow flow,
Are quickly followed by the smile
Of roseate hope's delightful glow.
Then came a time, when at my feet,
One knelt my trusting heart to woo;
The words he spoke were passing sweet,
He fondly vowed he e'er be true.
Ah! then my girlish fancy dream'd
Of man's enduring love and worth,
And he I worshippped only seemed
A being all too bright for earth.
Alas! to see mine Idol fall,
To find he was indeed but clay,
Has strewn a dark funereal pall
O'er all that once was bright and gay.
Man's love, ah! 'tis a thing of change -
The fleeting passion of the hour;
Inconstant still he loves to range.
And gather sweets from every flower.
There was a time I sadly wept
O'er each harsh word, each broken vow;
Then hope its cheering beacon kept
To guide where all is darkness now.
Now o'er my soul the waveless calm
Of cold despair is darkly spread;
The future cannot bring alarm
Or gladness for all hope has fled.
Ah! years of weary care and strife
Have made me prematurely old;
In the harsh battle-field of life
This heart has now grown stern and cold.
Well, let that pass, 'tis mine to yield
Submission to the Almighty's will;
He knows my lot, and He can shield
The sorrowing heart that trusts Him still.
A.E. KEARNEY
Ann Elizabeth Kearney's Will
The final apportionment of the combined properties of Ann Elizabeth Kearney's inheritance from her father's estate, Carrington, and the residue of her husband's estate at Laburnam, including her own portion at Enfield, Richmond, Tasmania, was finalised by her executor, her son Albert Kearney, at her death from influenza in 1898. This copy of her original will is held at the Archives Office of Tasmania.
TRANSCRIPT
In the Supreme Court of Tasmania
Ecclesiastical Division
Be it known unto all men by these present that on the fifth day of November in the year of our Lord one thousand eight hundred and ninety eight the last Will and Testament of Ann Elizabeth Kearney late of Richmond in Tasmania deceased (widow of the late Thomas Kearney) deceased who died at Enfield Richmond aforesaid at or on about the thirteenth day of June one thousand eight hundred and ninety eight (a true copy of which Will is hereunto amended) was exhibited and proved before this Honorable Court and that administration of all and singular the goods chattels rights credits and effects of the said deceased proven [?] the Island of Tasmania and the Dependencies thereof was and is hereby committed to Albert Edward Kearney of Richmond aforesaid farmer one of the executors in the said will named (Reserving nevertheless to Thomas George Kearney William Kearney and Ernest Charles Kearney all of Richmond aforesaid the other executors in the said Will named full power and authority at any time hereafter to apply for and obtain Probate of the said Will and administration of the goods chattels rights credits and effects of the said deceased either jointly with the said Albert Edward Kearney or otherwise as the case may require). The said Albert Edward Kearney having been first sworn well and truly to perform the said Will by paying first all debts of the said deceased and then the Legacies therein bequeathed so far as the estate shall therein to extend and the law finds him and to make and exhibit unto this Honorable Court a true and perfect inventory of all and every the goods and chattels rights and credits and effects of the said deceased on or before the fifth day of May ?? ensuing and to render a just and true account of his executorship when he shall be lawfully called thereunto And further that he believes the goods chattels rights credits and effects of the said deceased at the time of her death did not exceed in value the sum of Fifty pounds in Tasmania and the Dependencies thereof.
Given under my hand and seal of the Supreme Court of Tasmania on the fifteenth day of November in the year of the Lord one thousand and eighthundred and ninety eight.
By the Court - Philip Seager - Registrar
This is the last Will and Testament of me Ann Elizabeth Kearney Widow of the late Thomas Kearney of Richmond Tasmania in the County of Monmouth Tasmania shall this twenty seventh day of September in the year of our Lord one thousand eight hundred and ninety three hereby revoke all wills made by me at any time heretofore. I appoint Thomas George Kearney William Kearney Ernest Charles Kearney and Albert Edward Kearney all of Richmond Tasmania to be my Executors and direct that all my Debts and Funeral Expenses shall be paid as soon as conveniently may be after my decease. I give and bequeath unto my son Thomas George Kearney the cottage where he now resides together with Ten acres of land including half the orchard the other half of the orchard I leave in trust to my son Albert Edward Kearney for the use of the house and to assist in the maintenance of my daughter Annie Lousia Kearney the cottage I now reside in known as Enfield Cottage together with the household furniture and all my personal effects also twenty acres of land adjoining house also eight cows and all young cattle I may be possessed of at the time of my decease. I bequeath to my daughter Florence Susanna ten acres of land adjoining Ada Emily's portion. I bequeath to my son Ernest Charles ten acres of land together with one horse iron harrows and D. F. plough. I bequeath to my son Albert Edward nine acres and one half of land with stables also one acre at present rented by P. Keady in the town of Richmond together with remainder of farming implements including winnowing machine plough dray etc I bequeath to my son William and my daughter Eva Alice thirty two and half acres adjoining the above properties to be equally divided between them I bequeath all my share and interest under the will of my father Esh Lovell deceased to my sisters to use or convert into money as they shall deem fit and expedient for the benefit of all my children share and share alike. Any sown [?] or growing crop on the property at the time of my decease to be left in trust to Albert Edward Kearney to divide as he may deem fit -
Signed by the said testator A. E. Kearney in the presence of us present at the same time who at her request in her presence and in the presence of each other have subscribed our names as witnesses -
Samuel Skemp - Myrtle Bank - Rowland Skemp -
Last Will and Testament of Ann Elizabeth Kearney 1893
Archives Office of Tasmania
https://stors.tas.gov.au/AD960-1-23-5357_1.
Resources: external links
1.
University of Tasmania papers donated from the estate of John Rowland SKEMP
Skemp, John Rowland (ed.),
Letters to Anne: The story of a Tasmanian family told in letters written to Anne Elizabeth Lovell (Mrs Thomas Kearney) by her brothers, sister and other relatives during the years 1846-1872, (Melbourne, Melbourne University Press, 1956).
https://millennium.lib.utas.edu.au/record=b1318234~S67
Reference to the index of John Rowland Skemp (1900-1967), who was the son of Rowland Skemp
https://eprints.utas.edu.au/11065/1/skemp-S12_John_Rowland_Skemp.pdf
2.
Australian Dictionary of Biography, entries on Keanery and Lovell
Kearney, William (1795–1870)
https://adb.anu.edu.au/biography/kearney-william-2290
Lovell, Esh (1796–1865)
https://adb.anu.edu.au/biography/lovell-esh-2374
3.
Archives Office of Tasmania, BDM documents
Ann Elizabeth KEARNEY
Marriage 1848
https://stors.tas.gov.au/RGD37-1-7p206j2k
Birth of child Thomas George Kearney
https://stors.tas.gov.au/RGD33-1-28-p691j2k
Death of child Catherine Kearney 1850
https://stors.tas.gov.au/RGD35-1-19p120j2k
Death of child Clara Kearney 1851
https://stors.tas.gov.au/RGD35-1-20p55j2k
Census 1851 Richmond
https://stors.tas.gov.au/CEN1-1-115-119A
Death of child Catherine Kearney 1850
https://stors.tas.gov.au/RGD35-1-19p120j2k
Birth of child William Kearney 1852
https://stors.tas.gov.au/RGD33-1-30p094j2k
Births of twins of Annie Louisa and Ada Emily Kearney 1858
Registered by her mother, address given "Spring Hill Bottom"
https://stors.tas.gov.au/RGD33-1-37p581j2k
Birth of child Florence Susannah Kearney 1858
Registered by her mother, address Coal River.
https://stors.tas.gov.au/RGD33-1-38p042j2k
Birth of child Ernest Clark Kearney 1864
Birth registered by mother at Lower Jerusalem
https://stors.tas.gov.au/RGD33-1-42p222j2k
Birth of child Albert Kearney 1866
Birth registered by mother, address "Enfield"
https://stors.tas.gov.au/RGD33-1-44p709j2k
Death of Thomas Kearney 1889
https://stors.tas.gov.au/RGD35-1-58p193j2k
Death of Ann Elizabeth Kearney 1898
https://stors.tas.gov.au/RGD35-1-67p231j2k
Will of Ann Elizabeth Kearney
https://stors.tas.gov.au/AD960-1-23-5357_1
Thomas Kearney suffered severely from alcoholism in the 1870s, yet he survived to the age of 65, his death registered from "natural causes" in the district of Richmond. His wife Ann Elizabeth Kearney died nine years later of influenza. Her address given by her son Albert Kearney to the registrar as informant was "Enfield".
4. Newspaper publications of poetry and law reports re Anne Elizabeth Kearney nee Lovell
ORIGINAL POETRY. (1872, May 4). The Tasmanian (Launceston, Tas.), p. 2.
https://nla.gov.au/nla.news-article201344718
Original Poetry. (1849, August 17). The Argus (Melbourne, Vic.), p. 4.
https://nla.gov.au/nla.news-article4769272
LAW INTELLIGENCE. The Mercury (Hobart, Tas. : 1860 - 1954) 17 June 1875:page 2.
https://nla.gov.au/nla.news-article8937970.
LEGAL. Mercury (Hobart, Tas. : 1860 - 1954), Saturday 10 July 1875, page 1
https://nla.gov.au/nla.news-article8938453
5. Descendant families
Thomas Kearney (1824 - 1889)
https://www.wikitree.com/wiki/Kearney-1237
KEARNEY.— Died suddenly on December 26th, 1889, at his residence Enfield, Campania, Thomas, eldest son of the late William Kearney, aged 65 years.
Family Notices (1890, January 4). The Mercury (Hobart, Tas. : 1860 - 1954), p. 4.
Poem "Lines" addressed to Trucannini Graves 1875
Jeanneret family files (p.75)
https://ianjeanneretphoto.files.wordpress.com/2019/06/jeanneret_book-1.pdf
1966. Carrington House, Richmond, Tasmania, home of Esh Lovell, father of Ann Elizabeth Kearney nee Lovell
Photographs of Tasmanian Buildings and Individuals Taken by Sir Ralph Whishaw (NS165)
Archives Office Tasmania: https://stors.tas.gov.au/NS165-1-363
RELATED POSTS main weblog
