A Battle against the odds, Chapter 12, part 11

 My transcription of the NSW family history book A Battle against the odds, Chapter 12, part 11.

This part deals with the trial of John Smith (1795-1866). Old Bailey Fourth Sessions 1816.
Today the Old Bailey trials have been digistised. John Smith's trial  in April 1816 is here.
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Fourth Sessions 1816

 
291. JOHN SMITH was indicted for burglariously breaking and entering the dwelling-house of Edmund Simkins , at about the hour of seven in the night of the 17th of February , with intent to steal, and for burglariously stealing therein, one lookingglass, value 4l. the property of the aforesaid Edmund Simkins .
EDMUND SIMKINS. On the 17th of February last, in the evening, at about a quarter past seven o'clock, I was sitting in my kitchen with my family, at my house, No. 24, Greenfield-street, Commercial-road, at the parish of St. Dunsten Stebonheath , and I was alarmed by something over me, as if something had dropped; some one of the family exclaimed, there is some one in the parlour; that was the room above. I immediately ran up stairs, and discovered the prisoner with a glass, resting on the ledge of the window; it was a looking-glass; the window was open; the shutters had been put to; the sash was thrown completely up. I was in the room not ten minutes before; it was then down. I have not a doubt but that the prisoner at the bar, who was in the room, had opened the window; the sash is fastened down by a catch, or a window drop. I found this catch forced from the window, and lying on the floor. This is part of the catch; that had been entire, and fastened to the window, and I found this knife also in the room; it was not there ten minutes before. I found the prisoner at the bar getting out at the window, with the looking-glass resting on the ledge; the glass was removed from its place. There is a little wooden railing outside, that he might have rested his foot on in getting out; he might have got out without breaking the glass or damaging himself. When I saw him getting out, I gave the alarm of stop thief; he had got one foot on the chair, and the other on the table. The watch was not set. I gave the alarm of stop thief, and a young man was passing, and saw him coming from the window, and threw him down into the kinnel, and I found him in his custody, when I secured him; this was about a quarter after seven o'clock, it was dark. When I went up, I had not a candle with me, but I knew the prisoner was the same man when I went round, because I have a lamp just opposite to me, and another by me. The prisoner is the same man whom I saw in the room. He begged very hard for mercy, and hoped I would let him go. I am sure the window was down when I went up about ten minutes before. No person could get in at the window, or force it up, without forceing this catch off.

WILLIAM ALTHORNS. I was passing by before the alarm was given, and seeing the prisoner coming out of the window, I thought proper to seize him; I threw him off the rail into the kinnel; the rail is under the window. I held him down a minute or two, when there was a cry of stop thief, and the last witness, Simkins, came out; I did not let go of him until I put him into the hands of Simkins. The prisoner said he had done nothing, he had done nothing, let him go, let him go.


Simkins, Re-examined. I took the prisoner to Lambeth-street office, and delivered him into the custody of Ebenezar Dalton. The glass was not taken out of the house, because I had put it back again; he had moved it from its place.

EBENEZAR DALTON. On the 17th, I was standing in the office, between seven and eight o'clock in the evening, and I heard a bustie in the street, and went out; I saw Mr. Simkins and two or three more bringing this man to the office, and it was with great difficulty we got him in; I took him in, and searched him; but there was nothing on him. The next morning I went to the house that had been broken open, and there I received this knife and catch. The knife agreed with the mark on the window; there was an appearance of force on the window, where it had been broken open.

Prisoner's Defence. On the day in the indictment, I was very much intoxicated, and was returning home through Greenfield-street; I had come from Ratcliffe Highway; a person stopped me, and charged me with a robbery, and I knew myself to be innocent, and I made no resistance. It is impossible to break open a house without any instrument; and it is well known that that knife, (even if it was proved to be mine,) could not break open this window; they searched me, and found nothing on me.

Simkins. Re-examined. The looking-glass had been fixed to the wall. I have not the least doubt that that is the man,(pointing to the prisoner,) who was getting out of the window when I went up stairs; he was dressed nearly as he is now.
Prisoner. Q. Did you see my face - A. I did.

JURY. We should suppose that the power of that brass would cesist the power of that knife.
Simkins, Re-examined. Q. Your window is in a frame - A. Yes, it slides up.
Q. Do you see that knife, it does not seem very strong; how do you suppose it could break that brass - A. I don't know how it could be broken off, but I found it broken off, and the window open. He could not open the window without breaking the catch; the glass of the window was not broken at all.

Ebenezar Dalton, Re-examined. I saw where the knife had made an impression; there was the mark of the knife on the sash.

THE COURT, in summing up the evidence for the consideration of the Jury, told them that if the prisoner lifted the sash after it was dark, without forcing the catch, that would constitute the crime with which he was charged.

GUILTY - DEATH , aged 19

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Transcription of  A Battle against the odds, Chapter 12, to be continued...

A Battle against the odds, Chapter 12, part 10

 My transcription of the NSW family history book A Battle against the odds, Chapter 12, part 10.

This part deals with some additional information on John and Mary Smith.

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John and Mary Smith, additional data

Quite a deal of additional material is available concerning John and Mary Smith and it seems worthwhile to include some of it in the book. Hilda and Eric have given a good account of them and other writers have given good coverages of their children. The eldest of their family, Margaret does not have a chapter especially devoted to her but she is detailed in the chapter entitled "William Mason (Jnr.) and Margaret Smith".

Data established by the late Mary Gwyther in 1981 from the Archives Office of N.S.W., gives a character reference for John in his application for a "Ticket of Leave". This was subsequently granted on 24.3.1825 – see Hilda and Eric Lukeman's story.

ARCHIVES OF NEW SOUTH WALES 4/3/81 (Mary Gwyther)

JOHN SMITH - Servant age 21, height 5/7 1/2, complexion sallow, hair black, eyes black, arrived by ship "Sir William Bensley" 10th March 1817. Servant of Samuel Terry of "Chain of Ponds" (later and now "Box Hill" on Windsor Road opposite turn off to Riverstone) attests to his character for A.T. of A.

1825/No 158 of 1632 - 4/1716 .2.

Court House, WINDSOR -CERTIFICATE OF CONDUCT 19th March, 1825.

WE, certify that John Smith who came by ship "Sir William Bensley" which arrived in the year 1817, has not been convicted of any crime or misdemeanour in this Colony, but is to our certain belief, an honest, sober, and industrious character, having served faithfully, Mr. R. Fitzgerald residing in Windsor from March 1817 to March 1820, and Mr. Samuel Terry on his farm in the district of the "Chain of Ponds" from March 1820 to March 19th 1825.

MIDDLESEX JAIL 3rd April 1816-Life

Wm.Cox - Magistrate.

John Cross - Chaplain

Masters R. Fitzgerald - (3 years) present

Samuel Terry - (5 years) attested.

Mr. F. Sullivan

Colonial Secretary

Blk Book

exd J.W. Horne

C.C. LONDON

 

The next few pages give details of John's indictment, details re crimes and punishments, and John and Mary's (Tully) marriage certificate. 

Greenfield Road and Commercial Road London E1 is not far from the Tower of London. In this street in 1816 the young John Smith in a moment of inebriated indiscretion took the action which almost caused his execution. He was reprieved and sent to Sydney Town instead. He arrived here in 1817.

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Transcription of the NSW family history book A Battle against the odds, Chapter 12.

To be continued...

 

A Battle against the odds, Chapter 12, part 9

 My transcription of the NSW family history book A Battle against the odds, Chapter 12, part 9. 

This part deals with the location of John and Mary Smith and children in the NSW 1828 Census.

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Bathurst the Less

 
The 1828 Census was taken at a time when the Smith family was living at Bathurst (less). This was located to the west of the present Marsden Park and to the east of South Creek and lies between Richmond and Windsor Roads. It was originally names after Lord Bathurst but after the crossing of the Blue Mountains in 1813 and the naming of the present city of Bathurst, the earlier place was relegated to "less". The old name is no longer used. To this day it is a flood prone area and is used primarily for grazing.
The Smith family do not appear to have lived there for many years, because of the frequent flooding and they seem to have moved to Nelson. It is thought that they were living near the intersection of Boundary and Old Pitt Town roads, Nelson, Well before their deaths, John 19.7.1866 and Mary on 15.6.1868.

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My transcription of A Battle against the odds is to be continued ...

A Battle against the odds, Chapter 12, part 8

A transcription of the NSW family history book A Battle against the odds, Chapter 12, part 8
This part deals with what we know of the final years of former convicts, John and Mary Smith in NSW

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1828 Census

 
As well as identifying that John and Mary are indeed the ones who arrived on "Sir Wm Bensley" and "Elizabeth" respectively, the Census lists the five children and the fact that they owned "five head of cattle". Children born up to 1828 were:
Margaret 9, John 6, mary 5, Henry 3, and James 2.
Obituary Notice – Sydney Morning Herald 18th June 1868
"On Monday, the 15th instant at her residence, Box Hill, Windsor Road, Mary relict of the late John Smith, aged 69 years."

Postscript

 
Banished from their native lands John and Mary found each other in this new Colony 12,000 miles from the country that had disowned them.
Surely the spark of life they passed on to their descendants burns more strongly today as we pay tribute to their memory.

By Hilda and Eric Lukeman
Currumbin, Queensland, 1986.

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This is the end of the main section about John and Mary written by Hilda and Eric Lukeman in 1986. However more is to follow from other sources regarding the trial of John Smith at the Old Bailey in 1816.

To be continued...

 

A Battle against the odds, Chapter 12, part 4

A continuation of my transcription of the NSW family history book, A Battle against the odds, Chapter 12, part 4

 Part 4 describes my GG grandfather John Smith's journey to New South Wales.

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Sir William Bensley

This is the name of the ship which brought John Smith and 198 other convicts to Australia. The ship sailed carrying 200 convicts but one died

Sir Wm Bensley was 584 tons built Ipswich 1802. Master Lew E Williams, Surgeon Wm Evans.

A V.I.P.
 

Also on board was William Sorell who had been appointed Lieutenant Governor of Tasmania to succeed Thomas Davey. Sorell went on to Hobart where he arrived on 8th April 1817. For seven years he administered the government with such ability and vigour that he earned the respect of Governor Macquarie.

Distribution

 
On 21st March 1817, 11 days after the arrival of the ship Sir Wm Bensley, Secretary Campbell sent a list of 84 convicts from his ship to Rev. Samuel Marsden J.P. at Parramatta. The 84 men "are now sent forward to Parramatta by water and you are to distribute them according to the list" wrote Mr. Campbell. They were assigned as follows to settlers in the following districts:
    

     23 Parramatta 

    25 Windsor
    20 Liverpool
    16 Bringelly

John's name was no. 19 on the list for Windsor "for general distribution". Three of the 25 were assigned to Mr. Cox and two sawyers to Mr. Howe. With a little imagination you can picture John Smith and 83 others sailing up the Parramatta River from Sydney to the wharf at Parramatta where perhaps they may have had a speech from the Rev. Gentleman himself before being split up for distribution in accordance with the list.

Fate is Kind

 
From the time John's life was spared his fortunes improved. He had a good journey to NSW aided not doubt by the presence on board of William Sorell who would have kept a critical eye on the conduct of crew and passengers alike. Now in Windsor his master was Richard Fitzgerald, himself an emancipated convict.
Author D.G Bowd in his book "Macquarie Country - a History of the Hawkesbury " published by the Library of Australian History in 1979 wrote:
"If ever a man justified Macquarie's humane treatment of emancipists Richard Fitzgerald did. Macquarie wrote much in his favour which may be summarised in his own words that he was 'a most honest, upright, good man'."
John Smith remained assigned to Richard Fitzgerald from March 1817 until March 1820.

Samuel Terry

 
John Smith was assigned to Samuel Terry "on his farm in the District of the Chain of Ponds" and he remained under Terry from march 1820 until 19th march 1825.
Samuel Terry, often referred to as "the Botany Bay Rothschild" because of his wealth and the way he acquired it, had taken over Box Hill Farm from Robert Fitz and needed and needed some workers for this and his other holdings around Windsor.

Marriage

 
On 31st July 1820 Chaplain John Cross sought the approval of Gov. Macquarie for the marriage of John Smith and Mary Ennis. Approval arrived in a letter dated 5th August 1820 and the ceremony took place on 4th September 1820 at St. Matthews Church of England Windsor. Chaplain John Cross conducted the marriage. Eleanor Barry and Joseph Harpur were witnesses. Joseph Harpur was Parish Clerk and father of Charles Harpur (1813-1868) described in the Australian Encyclopaedia as "the first Australian poet worthy of the name". 

Ticket of Leave

 
The Return of Convicts 1817-1821 shows John Smith with "co convictions". On 19th March 1825, a certificate of conduct for John was issued at the Windsor Court House signed by -
Wm Cox Magistrate
John Cross Chaplain
Rs Fitzgerald Master
Sam. Terry Present master 5 years.
A Ticket of Leave was granted on 24th March 1825 (No. 158/1632)
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This is the end of the transcribed section concerning John Smith (1795-1866) in Chapter 12 of the book The Battle against the odds. The next section will be about his wife Mary Tully

A Battle against the odds, Chapter 12, part 3

 Transcription of A Battle against the odds, chapter 12, part 3

More About John 

 
Remarkable and interesting facts about John emerge from perusal of the records. He could read and write and he was a Catholic both rare at that time and place. He was 5 ft. 8 ins, In height, dark sallow complexion, dark brown hair and dark eyes. Another description said his eyes were black.

Another Newgate Inmate

 
William Cobbett, the great reformer, who was later a member of Parliament and a force in the introduction of the 1838 Reform Bills has been a prisoner in Newgate shortly before John Smith. Cobbett was an admirer of the farmers and farm labourers, especially in Essex. Coincidentally one of the judges who sentenced Cobbett, Lord Ellenborough Chief Justice of England, was the same judge who heard John's case and passed sentence of death upon him for attempting to steal a mirror valued 4 Pounds. If John had not heard of Cobbett before he most certainly would have heard some talk about him in the nine months or so he waited in Newgate (2 months awaiting execution and seven months awaiting transportation.

The late Mary Gwyther (nee Smith) a descendent of Robert Smith (b.c 1837) lived most of her early life in Nelson. <NB my note Mary Gwyther was a daughter of Thomas Smith, first son of Robert and Cecilia Hession) Although we had not mentioned Cobbett to her she told us she remembered "old folks" saying that "old John Smith used to read books by William Corbett (sic) " . She also said this caused concern as they believed John would be in the trouble if the authorities found out although it is doubtful anyone after the 1830s regarded Cobbett as subversive. However, in Australia at that time there could have been a real danger for a "ticket of leave" man caught reading such books.
Incidentally Robert was the last of John and Mary's children to die. He lived in a neat cottage at Blind Road, Nelson and it was Robert who rode on horseback to fetch a priest for his dying father in 1866. Although not academically qualified he was "a recognised authority on matters veterinary".

Transcription of A Battle against the odds, to be continued

A Battle against the odds Chapter 12, part 2

 

Transcription of A Battle against the odds Chapter 12, part 2

A Close Thing
After he was condemned to death on the 3rd April, 1816, John Smith had to languish in Newgate Prison, dreading the moment when he would be taken outside the gates to the place of Public Execution. Great crowds used to gather in the square when executions took place. An inn still stands nearby where those with the money could reserve some rooms with an excellent view. Although there is no record of anyone interceding on John’s behalf he was reprieved on 8th June, 1816 and hi sentence was changed to Transportation for Life. He was young and healthy and this may have saved him. One might imagine the authorities reasoning thus:

“Why execute young healthy men when they can be put to work in the new Colony of New South Wales”

As John was originally from Essex (revealed many years later on his death certificate but probably obvious from his speech and general demeanour) he may have had farming experience which could have helped tip the scales in his favour. Sound reasoning from a practical establishment point of view. Very fortunate indeed for the many future Australians who would not have been born but for this favourable stroke of the pen, which saved poor John’s life and sent him to a far better place 12,000 miles away. One may consider the irony of the system of transportation which was designed as a harsh, severe form of punishment (which it was) for crimes, however small, eventually giving its victims the chance of a better life otherwise denied them.

Transcription of A Battle against the odds to be continued...

A Battle against the odds. Chapter 12 part 1

 

Our ancestors, convicts John Smith (1795 – 1866) and Mary Tully Smith (1799 – 1868), were transported to New South Wales (NSW) in 1816 and 1817 respectively. They married in Windsor, NSW in 1820 and had thirteen children.

My knowledge of this family comes from a now out of print family history book published in 1990:

Brown, Arthur John (1990). A Battle Against the Odds: Stories of Our Pioneering Families on Norfolk Island, the Hawkesbury River, Mulgrave Place, Green Hills, Box Hill, and Nelson.

The descendents  of John Smith and Mary Tully are scattered far and wide. And The Battle Against the Odds  book is only available in a few Australian libraries.

I have written about John Smith and Mary Tully Smith previously and often receive enquiries about them.

 

In the interests of those who can't locate a copy of A Battle Against the Odds I have decided to transcribe and post Chapter 12, the chapter relevant to convicts John Smith and Mary Tully. 

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Transcription Part 1 

Battle against the odds, Chapter 12
John and Mary Smith
(1795-1866) (1799-1868)

By Hilda and Eric Lukeman

A difficult start

Some interesting facts about the origins of a pioneering family in the Windsor District: The Smiths of Nelson

This essay is part of our contribution to the first family reunion of descendants and friends of John and Mary Smith to be held at Windsor on Sunday, 9th March 1986.

We have gathered the material over a number of years and, as some of it may not be widely known we would like to share it with you. Hilda is descended from the second born child of John and Mary. Born 1822 he was named John, no doubt after his father. John Jnr. married Margaret Farrell in 1849. From 1857 to 1879 there were fifteen floods in Windsor. After the record flood of 1867 John Jnr. Margaret and their children left the district and went first to Sunny Corner near Bathurst, NSW and then to Collie near Warren NSW . Hilda’s husband Eric is an amateur family historian and has a keen interest in history. We have retired and live quietly in Queensland. Our two sons. We hope this essay will help further the understanding and appreciation of the difficulties faced and overcome by John and Mary Smith. Maybe this day will be the first of many and the numbers of descendants and friends attending will increase as more people find that they too are connected in one way or another with these worthy pioneers.

to be continued...

 

My convict ancestor

We first heard that we had convict ancestors in 1990 when we received news that a group of family members in New South Wales and Queensland had researched our family's history and produced a book, A Battle against the odds, about pioneers of the Hawkesbury River, Box Hill and the Nelson regions outside Sydney.

In the book we found information about my great-great-grandfather, John Smith, who  was convicted of burglary and  theft on 3rd April 1816 in London. John Smith was sentenced to death but was granted a reprieve and was transported to New South Wales on the convict ship the Sir William Bensley.

Proceedings of his 1816 trial at the Old Bailey make fascinating reading: Ref t18160403-4

My great-great-grandfather was nineteen when he stood on the dock of the Old Bailey in London and heard the presiding judge, Lord Ellenburough, read his sentence.

 Lord Ellenburough, the presiding judge at the trial of John Smith

John was accused of entering the house of Edmund Simkins with the intention being to steal a looking-glass. He was convicted on the evidence of Edmund Simkins who apprehended him and took him to the local police station with the assistance of a passer by.

 An excerpt of the trial transcript is here:


"EDMUND SIMKINS. On the 17th of February last, in the evening, at about a quarter past seven o'clock, I was sitting in my kitchen with my family, at my house, No. 24, Greenfield-street, Commercial-road, at the parish of St. Dunsten Stebonheath, and I was alarmed by something over me, as if something had dropped; some one of the family exclaimed, there is someone in the parlour; that was the room above. I immediately ran up stairs, and discovered the prisoner with a glass, resting on the ledge of the window; it was a looking-glass; the window was open; the shutters had been put to; the sash was thrown completely up. I was in the room not ten minutes before; it was then down. I have not a doubt but that the prisoner at the bar, who was in the room, had opened the window; the sash is fastened down by a catch, or a window drop. I found this catch forced from the window, and lying on the floor. This is part of the catch; that had been entire, and fastened to the window, and I found this knife also in the room; it was not there ten minutes before. I found the prisoner at the bar getting out at the window, with the looking-glass resting on the ledge; the glass was removed from its place. There is a little wooden railing outside, that he might have rested his foot on in getting out; he might have got out without breaking the glass or damaging himself. When I saw him getting out, I gave the alarm of stop thief; he had got one foot on the chair, and the other on the table. The watch was not set. I gave the alarm of stop thief, and a young man was passing, and saw him coming from the window, and threw him down into the kinnel, and I found him in his custody, when I secured him; this was about a quarter after seven o'clock, it was dark. When I went up, I had not a candle with me, but I knew the prisoner was the same man when I went round, because I have a lamp just opposite to me, and another by me. The prisoner is the same man whom I saw in the room. He begged very hard for mercy, and hoped I would let him go. I am sure the window was down when I went up about ten minutes before. No person could get in at the window, or force it up, without forceing this catch off."