New South Wales

New South Wales

The Right Honble

Lord Viscount Goderich

Parramatta

6th November 1827

John Kingsmill
George Walpole
John Owens
James Hincks &
Robert Harvey
5 / My Lord,
I have the honour to transmit herewith for His Majesty’s gracious allowance, agreeably to the 35th Section of the 3rd Geo 4th Chap 96, Conditional Pardons for the five Convicts named in the Margin.
The peculiar nature of the case of these individuals, and their exemplary conduct since their arrival in the Colony early in the year 1825, has induced me to (examine?) them as objects not undeserving the Royal Clemency.
These men were employed in the Police in Ireland, and were found guilty of Manslaughter at the Maryborough assizes in the year 1826.
The enclosed copy of a Memorial which they addressed to the Lord Lieutenant of Ireland, certified and recommended by twenty two Magistrates of Queen’s County, and of the Memorial of the Petit Jury, by whom they were tried, bear evidence to their having acted in compliance of the orders they had received, on the occasion which led to their conviction, the legality of which order, being given by the Magistrate, they had no reason to doubt, I have the honour to be, with the utmost defence and respect.
Your Lordship’s
Most obedient and
Most humble Servant
Ra Darling

To His Excellency the Marquis

Wellesley, Lord Lieutenant and

General Governor of Ireland

The humble Memorial of John Kingsmill, George Walpole, John Owens, James Hincks, Robert Harvey and Robert Bolton* (since died of the wounds received in the unfortunate affray) now Prisoners in His Majesty’s Gaol of Maryborough, under sentence of Transportation herewith.

That Memorialists were tried before Mr Justice Moore at the late assizes for the Queens County – for the Murder of a Man named Richard McDaniel, and having been found guilty of Manslaughter, were sentenced to Transportation, your Memorialist John Owen for seven years, your memorialists George Walpole and James Hincks for fourteen years, and your other Memorialist for life.

The unfortunate event for which they were tried occurred while Memorialists were acting in the discharge of what they conceived to be a (bounden?) duty, by endeavouring to enforce, under the immediate order of their Chief Constable, an order or Resolution, entered into by a general meeting of the Magistrates of said County, at Maryborough, on the 11th March 1822, at which meeting seventy-five Magistrates being present, it was resolved, that the Public Houses in the District of said County, should be closed at Nine o’clock at night, and the other parts of the County at Ten.

That the carrying of said order into effect, which Memorialists were obliged from time to time to do, imposed upon them, from it’s nature an insidious and dangerous duty. That Memorialists were first apprised of the illegality of said order by the learned Judge before whom they were tried, who in his charge to the Jury, told them that if they believed the evidence for the Prosecution, the offence amount to murder, but inasmuch as said order was illegal, Memorialists could not be found guilty if a less offence than Manslaughter.

That your Memorialists are advised and humbly submit, that had said order been legal, the learned Judge would, as in duty bound, have left it in the power of the Jury to return a Verdict of General Acquittal, but that in consequence of the general illegality of said order, the Jury had no alternative but that of finding Memorialists Guilty, either of Murder or Manslaughter, and were precluded altogether from considering whether the act imputed to Memorialists, might not constitute either Excusable or Justifiable Homicide.

That the Verdict found by the Jury demonstrated that they did not believe the Evidence on the part of the Prosecution, yet in consequence of the legal obstacle arising out of the order of the Magistrates, the Jury were prevented from exercising their Judgement, upon any circumstances in the evidence offered on the part of the Memorialists, which might have entitled them to a general Acquittal.

That Memorialists cannot but feel that if said order of the Magistrates had not been made, the unhappy event which led to the conviction of Memorialists would not have happened, and they humbly submit that they ought not, in any manner to be prejudiced or held responsible for the illegality of an Order, which they were obliged by their Oath and the Act of Parliament under which they were appointed, to obey – and therefore that their case ought to be considered as they conceived it was legal and justifiable.

Memorialists therefore humbly pray that your Excellency taking the foregoing circumstances into your gracious consideration, may extend such (remission of relocation?) of their respective Sentences to your Memorialists, as to Your Excellency may see (fit?).

“signed” “signed”

John Kingsmill James Hincks

George Walpole Robert Harvey

John Owen Robert Bolton

We the undersigned Magistrates of the Queen’s County, have read the foregoing Memorial, the truth and force of the statement of which we fully admit, and feeling most deeply and anxiously, the extent to which the Magistrates of said County, who concurred in the Order or Resolution above referred to, was necessary to, and responsible for the Act, which led to the Conviction of the Prisoners, do most humbly, but earnestly entreat your Excellency’s consideration to the view of the Prisoners case, presented by the above Memorial, not only on their account, but in that of the Magistrates of said County.

Signed by

De Vesoi

I Johnstone Rochford

Arthur Vessey

John Hawkesworth

James Edmund Scott

James Horan

James White

Wm Meagher

Wm W Despard

Charles White

Launcelot Arasdaile {one of the Jury}

John Cape Chetwood

Matthew Cassan

Richard Warburton

James Smith

John (Gibeando?) (Foreman of the Jury}

Robert Kenny

Thomas Pigott

Richard Arasdaile

John Baldwin

Edward Dunn
To His Excellency the Lord Lieutenant General

and General Governor of Ireland

The Memorial of the Petit Jurors by whom John Kingsmill, John Owens, George Walpole, James Hincks, Robert Harvey and Robert Bolton late Police Men, and now under sentence of Transportation, were tried at the late assizes of Maryborough before the Honourable Mr Justice Moore.

Humbly Showeth

That although fully convinced at the Trial of the above Prisoners, that there was a most material difference in the shades of guilt proved against them, yet that under your Memorialists view of the Law laid down to them, they could not in their Verdict discriminate between these shades of guilt proved against them, yet that under your Memorialists view of the Law laid down to them, they could not in their verdict discriminate between these shades.

That under their impression some of the Prisoners were necessarily included in the general verdict, against who no credible evidence was adduced of their having wilfully engaged in the affray, which however fatal in it’s result, was evidently sudden, unpremediatated and instantaneous, and arose from Prisoners endeavours to discharge a duty imposed upon them by the Magistracy.

That Memorialists considering the very doubtful light in which the Evidence of the principal Witnesses for the Prosecution appeared, from their near affinity to the deceased, their vindictive feelings, and their being manifestly tampered with, and made up for the occasion, and also weighing the highly respectable evidence as to the character of all, but particularly of Kingsmill, in point of humanity and peacableness of disposition, did not calculate on a sentence which in the case of three of the prisoners, Kingsmill, Harvey and Bolton, was to the utmost extent of Punishment inflicted by a recent Statute.

That on the Trial Memorialists impressions respecting the culpability of the Prisoner Kingsmill, mainly rested on the belief that he had the Command of the Party, and did not use his utmost endeavour to prevent mischief. Whereas it has appeared that he had not the sole authority over the party. Many of the Police engaged being under the Command of another Sergeant, this added to the hurried manner in which the Prisoners rushed successively into the room where their Comrade, Bolton, a slight lad, was found on the floor covered in blood, and apparently engaged in a mortal struggle with and under the deceased, a man of great strength and size, which circumstances rendered interference on the part of Kingsmill, impossible in a matter of such momentary duration.

That Memorialists are now aware that deceased was a very ferocious and quarrelsome character, and appears to them to have been the first aggressor, from his violent attack on Kingsmill and Owens, which led to the affray, so unhappily terminated in his death.

That Memorialists have good reason to believe that Bolton from his perilous situation under the deceased, must have had apprehension for his life, and that under such impressions, he did inflict the mortal bayonet wound of which all the others present, appeared to have been totally ignorant.

That Memorialists on the most serious consideration of the aforegoing circumstances – find much matter in Extermination of Prisoner Guilt, and feel it a matter of conscience and justice, to lay the same before the Head of His Majesty’s Government, and they therefore most humbly pray for Your Excellency may be pleased to take the care under your gracious consideration, and grant the Prisoners such delay or such mitigation of Sentence, as Your Excellency shall seem fit.

I do hereby Certify that the Original Memorial of which the above is a True Copy, has been signed by all the Individuals who composed the Jury.

| “signed” |

John (Gibeando?)

Foreman of Jury Magistrate King and Queen’s Counties