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HISTORICAL RECORDS

OF

AUSTRALIA.

SERIES I.

UNDER SECRETARY GOULBURN TO GOVERNOR MACQUARIE.

(A circular despatch per transport Wanstead; acknowledged by Governor Macquarie to Earl Bathurst, 28th April, 1814.)

Downing Street, 3rd July, 1813.

1813.

3 July.

Victory over

French at

Sir, I have Lord Bathurst's directions to transmit to you a Gazette Extraordinary, Published this day, containing an Vittoria. Account of a Glorious and decisive Victory obtained over the French Armies in Spain by the Combined Forces under the Command of General the Marquis of Wellington upon the 21st Ultimo near Vittoria. I have, &c.,

HENRY GOULBURN.

GOVERNOR MACQUARIE TO EARL BATHURST.
(Despatch* marked "No. 6 of 1813," per whaler Phoenix.)
My Lord,
Sydney, New South Wales, 31 July, 1813.

31 July.

the military.

An Occurrence which has lately taken place in this Garrison lays me under the necessity of making a representation of it to your Lordship, and founding thereon some requests which I trust will appear to Your Lordship equally necessary to be complied with, as they do to me. Previous to entering on the immediate Subject of this Com- Misconduct of munication, I am much distressed in being obliged to represent to Your Lordship that gross irregularity of behaviour and an alarming degree of Licentiousness have for a length of time past, but too strongly, marked the general Conduct of the Officers and Privates of the 1st Battalion of the 73rd Regiment, which relieved the 102nd Regt. on my assuming the Government of this Country. In laying this general Charge, I feel however

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1813.

31 July.

Insubordination of officers.

Murder of
Holness

by military
officers.

Trial of McNaughton and Connor by the criminal court.

Evidence for the defence.

much gratified in exempting from it Some of the Officers, in whose honor and integrity I repose the fullest Confidence, and I am alike bound to add, that, were a better example held forth than is at present, the Privates would, as a body, be as correct as those of other Regiments.

Unfortunately however, this is not the case, but, on the Contrary, several of those, whose Military rank and duty alike require them to restrain Acts of insubordination and resistance to the Civil Authority, are the foremost in trampling down all Order, and in exhibiting Scenes of disgraceful riot and confusion to the dread and terror of the peaceful Inhabitants of this place.

Having premised so much, I am now to acquaint Your Lordship, that at an early hour of the night of the 30th Ulto. a very peaceable and unoffending man in the lower ranks of life, called William Holness, was murdered in the Streets of Sydney by Lieutenants Macnaughton and Connor of the 73 Regt. and with Circumstances of a most aggravating nature in the Case, language held, and wanton Cruelty exercised by the Perpetrators.

In consequence of the Inquest held the next morning on the body of the deceased, and the strong unequivocal evidence then given both as to the facts and the Perpetrators, the Coroner committed Lieutenants Macnaughton and Connor to Gaol for trial, and a Criminal Court was ordered by me to take cognizance of the Affair on the 16th Instant.

The Prisoners were accordingly brought to trial on that day before a regularly Constituted Court, consisting of the Judge Advocate, One field Officer, Three Captains and Two Subalterns of the 73rd Regt. and Royal Veteran Company. The Evidences on the part of the prosecution were principally those who had given testimony at the Inquest, and their testimonies were Clear and distinct to the same facts and circumstances as on the former occasion, and had not their evidence been in some degree shaken by Counter evidence on the Defence no doubt could have possibly existed of the Conviction of the Prisoners. Evidences were however procured, who so far varied from those on the part of the prosecution, that the Court finally returned a Verdict of Manslaughter, sentencing the prisoners to a fine of One Shilling each, and to Six Months imprisonment in the Gaol at Parramatta.

It is painful to observe that very material Contradictions took place in the evidence on behalf of the Prisoners; and other circumstances of strong suspicion arose against the Credibility of those Witnesses, whilst, on the other hand, the evidence of

the Widow of the deceased and of the other Witnesses for the prosecution were plain, clear and Satisfactory. The Circumstances of this Case are of so disgraceful a Nature that I feel I should be deficient in my Duty to My Sovereign and the Public, were I not to give them the fullest publicity, accompanied by the strongest expression of My Sentiments of Reprobation.

1813.

31 July.

criticism of verdict.

Under these Considerations, I published on the 17th Inst., Macquarie's being the day after the trial, "Government and General After Orders, Military Department," principally addressed to the Military under my Command, but at the same time keeping in view what I felt due to the Public at large, in the expression of My Sentiments on this unhappy occasion. For Your Lordship's perusal and Consideration I have now the honor to transmit You herewith, attested Copies of the proceedings of the Criminal Court, and of the "After Orders" published by me in Consequence of the lenient Verdict of that Court.

criminal court.

This Sentence being in direct variance with what was generally expected, and particularly by several of those who had been eye witnesses of the disgraceful scene, but were not called on in the prosecution, owing to the full and clear case made out by those who were brought forward, excited a Public sensation of strong surprize and much indignation. Neither could the popular Popular feeling Sentiment be suppressed or restrained that "little Justice could against the be expected towards the Poor, whilst the Court consists of brother Officers to the Prisoners at the Bar." In fact, My Lord, the present Construction of Our Criminal Court is such as must necessarily induce a popular, if not a just, feeling against its decisions; especially when as in the present Case, Some of the Members, who constitute that Court, were the intimate friends of the Prisoners. And I apprehend that this Circumstance will tend to convince all unprejudiced persons that such a Court is ill constructed either for the acquiring the Character of Impartiality or of strictly administering Justice.

criminal court.

From the Case just stated to Your Lordship, and the Obser- Necessity for vations with which I have accompanied it, I now with the reforming the utmost deference solicit Your Lordship's earliest consideration of the great necessity for reforming, or rather New Modelling, our Criminal Court in such Manner as I have had the honor of suggesting to Your Lordship in My Dispatch No. 2, under date the 28th of June, or in such other, as may appear to Your Lordship's Comprehensive Mind, better calculated for effecting this most desireable object.

The Observations on the Conduct of the Officers and Privates of the 73rd Regt., which this deplorable event has forced me to

1813. 31 July.

Removal of 73rd regiment proposed.

Necessity for periodical relief of military.

Exchanges by officers to be prohibited.

Refusal of

land grants to the military.

Land grants to
O'Connell,
Mrs. Geils and
Mrs. Birch.

disclose (for I had fondly hoped that a stricter Discipline would have been adopted and that a returning sense of honorable duty would before this have precluded the painful necessity for such disclosure) now lead me to found the following application to your Lordship.

That you will be pleased to recommend to His Royal Highness the Commander in Chief the expediency of directing the immediate removal of the 73rd Regt., and of supplying its place by One from Home, and I beg to suggest that no Regiment should be suffered in future to remain in this Station for more than Three Years at the utmost.

My reason for mentioning the period of three Years is for the purpose of guarding, as far as practicable, against the Military forming Matrimonial, or less proper Connexions with the Women of the Country, whereby they lose sight of their Military duty and become in a great degree identified with the lowest Class of the Inhabitants. I have much reason to regret many unfortunate Consequences which have resulted from such Connexions and attatchments since the arrival of the 73rd Regt., and I am therefore the more anxious to guard against the recurrence of them, for the future, by suggesting such measures as appear fittest to produce that effect.

In relieving the 73rd Regt., I beg to recommend that none of the Officers of that Corps shall be permitted to make exchanges into the Regiment destined for its relief, which I am well convinced will be attempted by several of them, particularly by those whose Conduct has least in it to recommend them to any indulgence whatever, whilst on the other hand their being suffered to remain will effectually tend to prolong the evil, they have so much fostered and been the authors of, and which it is so desireable to get fully suppressed.

A Custom had long prevailed here, previous to my arrival, of making large Grants of Land to the Military Officers, their wives, and Children:-but this has ever appeared to me so subversive of Military discipline, and of that distinction which should subsist between the avocations of the Military and the Civil Inhabitants, that I have uniformly resisted the Countenance of it, except in the three following Cases. 1st to Lieutenant Colonel O'Connell, I made a Grant of Land in His Civil Capacity of Lieutenant Governor, on his marrying the daughter of Governor Bligh*; 2nd, to Mrs. Geils, the wife of Major Geils of the 73rd Regt., on Account of their having a numerous family; And 3rd to Mrs. Birch, the wife of Paymaster Birch of the 73rd Regt., also I made a Grant at the period of His being

* Note 2.

insane, and as a provision for his Young family, He having purchased a large Stock of horned Cattle while he was labouring under that Mental derangement.

1813.

31 July.

instructions

These are the only deviations I have made from the Rule I Definite laid down on My first arrival here for My Own Conduct in this desired for particular point of My administration of this Government. It the governor. being, however, an ungracious Office in a Governor altogether to forego the practice, from His own sentiment of its inexpediency or impropriety, I would with much deference suggest that No Governor should be authorized on any occasion, in future, to give a Grant of Land to any Military or Naval Officer doing duty on this Station, or to their Wives or Children.

If this suggestion should meet Your Lordship's concurrence and approbation I have only to add, that I would solicit Your Lordship to furnish me with written Instructions to that effect.

regrets for

misconduct.

In drawing this letter to a conclusion, I beg to repeat to Your Macquarie's Lordship that I feel most truly distressed in making the present military representation of the 73rd Regt., which, from my personal connexion with it, I had formed a strong partiality for, and thence naturally became induced rather to pass over, unnoticed, some occasional deviations (when they were not of a flagrant nature) than to draw them thus into public View. My Motives, here avowed, will I trust meet Your Lordship's Approbation, and fully justify me, as well in the one Case as in the other; and I rely on Your Lordship for the adoption of such Measures as may be a Check in future to other Regiments falling into the like unmilitary and disgraceful line of Conduct.

I have, &c.,

L. MACQUARIE.

[Enclosure No. 1.]

GOVERNMENT AND GENERAL AFTER ORDERS.

Military Department.

Head Quarters, Sydney, Saturday, 17th July, 1813.

of McNaughton

Ir is with the deepest and most heartfelt Regret, That the Public censure GOVERNOR and COMMANDER in CHIEF demands the most serious and Connor. Attention of the TROOPS under his Command, whilst he conveys to them his Sentiments on the late deplorable Event of the loss of a Fellow Creature to Society, in the Death of WILLIAM HOLNESS, by the intemperate and disgraceful Conduct of Lieutenants Archibald M'Naughton, and Philip Connor, of the 1st Battalion of the 73rd Regiment.

In lamenting that Men, who ought to be the prompt and steady Supporters of the Laws of their Country, should thus become the Violators of them and the Terror of that Society which their

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