Last Trove Tuesday I started to tell the story of how Nicholas Delaney was attacked and robbed on September 2, 1834, and died the next day. It’s a story about my own ancestor I came across using the National Library of Australia‘s online historic-newspapers-and-more resource, Trove.
After Nicholas was found lying dead near his house, a coroner‘s inquest into his death was held between September 4 and October 6. A coroner’s court was held at Penrith from 1821 onwards. I’ve tracked down where I could look to see if any record or index survives, but it’s on the other side of the world, so my trail has gone cold for the moment. (Update: Found it! I’ll post about it next time.)
Feloniously and violently stole
On November 1, the Attorney General, John Kinchela, informed the Supreme Court of New South Wales that “John Kennedy late of Penrith – in the Colony aforesaid Labourer… near the Kings [sic] Highway between Penrith and Mulgoa… in and upon one Nicholas Delany… feloniously did make and assault and him the said Nicholas Delany in bodily fear and danger of his life… and against the will of the said Nicholas Delany then and there feloniously and violently did steal take and carry away [his clothes and money]”.
Cutting out all the repetitive legalese of the Attorney General’s document*, John Kennedy was accused of violently assaulting and robbing Nicholas and making him fear for his life. Not of murdering him. Yet it’s quite clear from the newspaper report that Kennedy faced hanging. The trial was “put off” until Saturday, November 15.
The article continues: “Dr. Black, who attended the Coroner’s Inquest, deposed that he examined the body of the deceased; there were several contused lacerated wounds on the head, and one on the nose; probably caused by falling on a stump or stone; it was possible that a stick would have caused the wounds – but it was his (Dr. Black’s) opinion, that they were caused by falls; on examining the brain he found about three ounces of extravasated blood on the left hemisphere.”
Nobody seems to have mentioned those wounds when he was helped to Mrs Brooks’ hut, or when he got up the next morning to go home. But, Mr Justice Burton told the jury, “in order to constitute the offence for which the prisoner stood indicted, there must be either violence used, or bodily fear caused; a threat, or the production of an unlawful instrument would constitute a robbery, but the mere taking away would not. In the present case were the Jury satisfied there was a stealing? And if so, was that stealing with violence? For stealing from the person without violence, was not a capital offence.”
Everything depended on whether Kennedy assaulted Nicholas, or ‘just’ robbed him.
The judge elaborated. “In order to constitute the offence for which the prisoner stood indicted, there must be either violence used, or bodily fear caused; a threat, or the production of an unlawful instrument would constitute a robbery, but the mere taking away would not. In the present case were the Jury satisfied there was a stealing? And if so, was that stealing with violence? For stealing from the person without violence, was not a capital offence.”
That’s all the report tells us about the arguments in court. The jury must have been swayed by Dr Black’s opinion that Nicholas got “several contused lacerated wounds” on his head by falling over when drunk, or on his way home, nearly sober, the next morning.
Because, the report continues, they found Kennedy “guilty of larceny upon the person”. In other words, theft, but not assault or murder or, as the Attorney General’s document says, “taking in fear”.
Kennedy was “remanded to take his trial on another charge”, and the court document shows that on November 18 he was sentenced to be transported for life.
There’s a very interesting note by the editor at the end of the report: “(It seems very extraordinary if Delaney died of falls received when in a state of drunkenness, from which he recovered so far as to walk home.-ED )”
I feel very sad reading this. Sad that Nicholas had such a painful, lonely death and sad that he did not get justice. Because even if Nicholas’s wounds weren’t caused by Kennedy on the night of September 2, then who hit him so viciously? Was he attacked on the way home next morning?
And the story raises other questions, too. Why would the editor take the trouble to comment? And what sort of men were Dr Black and Justice Burton?
I’ll look at the background in my next post.
How did Nicholas’s murder go unnoticed by previous family historians, I wondered? The two people I could have asked, my mother and Antoinette Sullivan, are dead, so I can only guess that the Sydney Monitor article escaped those two meticulous researchers. But now with Trove, it’s so much easier to track down our ancestors.
So I apologise to everyone who has a copy of our book, A Rebel Hand: Nicholas Delaney of 1798 for not ending the story accurately. We just didn’t know. But that’s what this blog is for – publishing all the new research I’m doing into the stories of my ancestors and relatives.
In an earlier post I wrote about my 3xgreat grandmother, Sarah Marshall) and asked if she’d been murdered, as some people think. The evidence says that she wasn’t. But a legend has grown up around her haunting the graveyard anyway. This has proved to be one of the blog’s most popular (and controversial) posts.
* After my last post, Michael Wood, a Delaney cousin who has already been kind enough to let me use his photo of Sarah Marshall’s grave, got in touch and sent some pictures of the court document. The original is in the State Archives of New South Wales.
Here’s the whole Monitor article: