Sydney Bench of Magistrates, Minutes of Proceedings, 8 Feb 1812  ¹  

A Bench of Magistrates
Present

Saturday
8th day of February [1812]
The Judge Advocate [Ellis Bent]
D¡¦Arcy Wentworth Esquire
S[imeon] Lord Esquire

    Joseph Bather [aka Thomas Batter] a prisoner, charged with attempting to commit an unnatural crime with one James Daley near Parramatta on the 2nd day of February instant.

    The affidavit of the said James Daley, sworn at Parramatta before R[obert] Durie Esquire, JP, [Lieutenant 73^rd Regiment] is read in the presence of the said James Daley and of the Prisoner - and the said James Daley now swears that the contents thereof are true and correct.

The said James Daley further says,
    I had only drank five pots of beer. I had not drunk any rum on the Sunday. When I awoke I was lying on my left side. I am a heavy sleeper. The hammock is a double cleaved hammock at the head & single at the foot. On the Tuesday I went before Mr (Lattule ? passim). On Monday I was so sore that I was not able to work & I told James Hall.

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    The affidavit of James Hall duly sworn before R Durie Esquire at Parramatta is read in the presence of the said James Hall and of the Prisoner and the said James Hall again swears that the same is true and correct.

    James Hall further says, that about eleven o¡¦clock on Sunday evening Daley got out of the hammock & he heard him say to the prisoner "You ought to be hanged you rascal for what you have done to me." I asked him was he robbed or what was the matter, he said "That rascal has done enough to me." I told him not to make any noise that night. The next morning he told me of it and asked me to go to a constable with him. He appeared ill on the Monday, and complained that he was very ill. On Monday night I went with him to Ramsay the Constable. He was not at home. He came the next morning and took Bather in Custody. This circumstance took place at the Brush Farm [residence of Gregory Blaxland ] near Parramatta.

    Mr Edward Luttrell  ²  sworn says: I examined the anus of James Daley. I did not find any marks of violence about the

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parts. It was on the Tuesday I examined him; he was as well then as he is now.

    The Prisoner simply denies the charge and calls the following witnesses.

    James Walton, a prisoner and Constable sworn says: Last Tuesday whilst I was on duty at Parramatta Gaol, Daley came to me; he asked to see the Prisoner. This was in the evening after they had been before the Magistrate. I asked Daley if it was anything particular, he said "Yes". I asked him what it was. He would not tell me. I told him if he had any message to send to the Prisoner I would carry it to him. He said he wanted the key of the prisoner's box, that he had things locked up in it belonging to some of Mr Blaxland's men. I went to the Prisoner and told him - he said he had nothing in it but what was his own & refused to give it me. I came back & told Daley so. He seemed very anxious to see the Prisoner. I therefore put a man of the name of James Vaughan in the prisoner's cell, out of Daley's sight, & let Daley go & talk thro' the door. There is a hole at the top of the door. He was so anxious to see the prisoner that I suspected something was not right. I never saw the prisoner till he

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came to Gaol.

    James Vaughan, a Prisoner sworn says: I recollect being posted in the prisoner's cell, the same day he was put in Gaol, by Walton. I recollect a man coming to the outside of the door & having some conversation with the Prisoner.

    He called the Prisoner Joseph, and asked him what he meant to do. The prisoner asked him what he meant by it. The Prisoner (?) Daley said What do I mean, says he, you know what I mean if you give me a guinea I will settle it. He then asked Daley what he wanted with the key of his box. Daley told him he wanted a pair of trowsers which were in the box. The prisoner then said there were not any there & he should not entrust his key with him. Daley then said if he would give him the makings of a pair of trowsers that were in the box, that he would turn him up when he came to this Court. I conceive he meant (turn ?) him to his liberty. The Prisoner said he would not. Daley then went away and said: "Well, you know the worst of it; hanging is all." He then went away. The prisoner did not charge him with having sworn falsely.

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    I am confined in the Parramatta Gaol for debt. I came to the Colony in the same ship with the prisoner. I have known him for six years.

    Joseph Daley says: I recollect having a conversation with the prisoner at the door of his cell. I asked him for the key of his box. He said he would not give it. I told him Walker had sent for it. He was out with the flock. The prisoner said he would not send it to nobody for there were things in the box that did not belong to himself; that there were the makings of a jacket & trowsers belonging to a man at the Nepean River. I told him nothing should be disturbed. Shall you not give the key says I, & I walked away over the bridge & Walton and Vaughan called me back. I returned. They said to me: "You have required a Guinea from the Prisoner & the makings of a pair of Trowsers." I said I had not required a farthing, let alone the Guinea. Walton then said, it is a pity that either of us should be guilty & that what he should have the flogging of us & especially me. I had not any thing in the box. I never told the prisoner that I would settle it if he would give me a guinea or the

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makings of a pair of trousers. Hall & I came out in the same ship.

    The Court after very mature consideration adjudged that the said Joseph Bather is Guilty of the Charge and adjudge that for the said Offence in the said Joseph Bather be exposed in the Pillory in the Publick [sic] Market Place of this Town on Saturday next between the hours of Eight & Twelve o'clock in the Forenoon of the same day for the space of one Hour that he afterwards receive Fifty lashes in Publick on his bare back & further that he be sent to Hard Labour for the space of Three Years in such parts of the Territory as His Excellency the Governor shall be pleased to appoint.

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The Sydney Gazette and New South Wales Advertiser, Sat 15 Feb 1812  ³ 

SYDNEY.

Sitting Magistrate for the ensuing Week ¡V S[imeon] Lord, [see * below] Esq.
...
    Thomas Batter, who has been convicted of an assault disgraceful to his species, was this day pillored in pursuance of the sentence passed upon him, after which he was punished with 50 lashes, and kept to labour for three years at any settlement he may be sent to.

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Government and General Orders, 17 May 1810  ⁴ 

Head Quarters, Government House,
Thursday, May 17th 1810

...
    His Excellency the Governor has been pleased to appoint D'Arcy Wentworth and Simeon * Lord, Esquires, to be Justices of the Peace and Magistrates for the Town and District of Sydney, in the County of Cumberland.-
...
    Those Gentlemen are accordingly are to be respected and obeyed as Magistrates from this date.-

By Command from His Excellency
"Signed"
John Thomas Campbell
Secretary

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John Thomas Campbell Governor Macquarie's Secretary letter to Lieut Thomas Skottowe, Commandant at Newcastle, 14 Mar 1812  ⁵ 

Secretary's Office Sydney
16th March 1812

Sir
    The Estramina not having Sailed owing to contrary winds enables me now to inform you that another prisoner is now Embarked for Newcastle, His name is John Pierce, as per Accompanying Certificate of his sentence, &c referring to mine of the 14th inst.

    I have the honor to be
        Sir
    Your Obedient Humble Servant
"Signed" JT Campbell

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List of Prisoners to be Sent to Newcastle, 14 Mar 1812

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¹  SRNSW: NRS3397, [SZ773], Minutes of the Proceedings of the Bench of Magistrates 29 Jun 1811¡V6 Mar 1813, R658, COD234. Emphasis added.

²  Edward Luttrell, surgeon, came free per Experiment 1804.

³  The Sydney Gazette and New South Wales Advertiser, Sat 15 Feb 1812, p. 2.

⁴  SRNSW: NRS1046, [SZ758], Col Sec, Proclamations, Government and General Orders and Related Records, 1810¡V19, pp. 39-40, R6038.

⁵  SRNSW: NRS936, [4/3492], Col Sec, Letters sent, 6 Jan 1810¡V16 Dec 1813, pp. 112-3, R6003. Emphasis added.

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