Hunter Living Histories

This work is conducted in memory and respectfully honours the First Australian People, the Aboriginal People of this land.

Thanks to historian Dr Mark Dunn who, whilst conducting research for his PhD, came across this important sketch map located  within the State Records of New South Wales, showing the actual location of the attack on Burigon, Chief of the Newcastle Tribe, which resulted in his death in 1820.

The murder of Burigon was a landmark case in Australian legal history. His murderer, John Kirby,  was the first white man tried, convicted and hanged for the murder of an Aboriginal person under British Law.

The overlay below helps us to picture the key sites in the drawing. The nearest plan is one drawn by James Meehan in 1818, and can be viewed here: https://hunterlivinghistories.com/wp-content/uploads/2010/02/1818-meehan-map83.jpg

The sketch is a little difficult to interpret, given the orientation of the Church, and the path leading to the “town”, so we would welcome people’s opinion as to where the approximate location of where Burigon was attacked and eventually died would be today.

We understand that Wallis’s Hill was the ring road that looped around the early burial ground around Christ Church. The Aboriginal camp is located behind the Church. Kirby and Thompson absconded from the Blacksmiths Shop (Location 13 at the base of Macquarie Street). The “Pathway” “From the Town” is probably Wallis Street. The Church is approx 150 yards away. Issac “Elliot & Constable” (James Wills or Wells) were 50 yards from where the “Murder commit(ted)”. Menslowe (or Mencelo) was approaching up the path around Wallis Hill. Following the attack, Mr Fenton, assistant surgeon tended Burigan’s wounds “in his own quarters” (location 4, near the Hospital which is location 5) and Burigon was later found, deceased, close to the Church on the 7th November 1820.

Another interesting area of investigation is the “Croppy make big Jack booey“. Is this a reference to the “Croppy Boy” Irish ballad relating to a doomed young “croppy” or rebel?

Thanks to Dr Mark Dunn, Dr Ann Hardy and Richard Neville we have assembled engravings, paintings and accounts relating to Burigon, and his murder. These have been reproduced below. We will be very interested in hearing from researchers, after reading the accounts transcribed below.

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Burrigon (or Buriejou, Long Jack or Burigan) is pictured in the engraving below, described by Captain James Wallis: “All the principal figures in the fore-ground are from original portraits; the tall figure laughing, on the left, is the chieftain or king of the Newcastle tribe, called Buriejou, – a brave, expert fellow, who has lately presented Governor Macquarie with his eldest son, to be placed in the native institution, as a proof of his confidence in British humanity”

Reference: Corrobborree or Dance of the Natives of New South Wales New Holland is Plate VI (6) from Captain James Wallis’ An historical account of the colony of New South Wales and its dependent settlements : in illustration of twelve views, engraved by W. Preston from drawings taken on the spot by Captain Wallis. To which is subjoined An accurate map of Port Macquarie and the newly discovered River Hastings by J. Oxley. London : Printed for R. Ackermann by J. Moyes, 1821.

 

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Transcription by Richard Neville (Mitchell Librarian & Director, Education & Scholarship):

The sketches are likenesses of two brothers of the Newcastle tribe. Burigon commonly called Jack was the elder and chieftain of his tribe, he was a keen shrewd fellow attached to me and to the Europeans generally from interested motives, for we often administered to his wants, tho they are not as numerous as ours still savages have them, a tomahawk, a fish hook, tobacco, sugar, rum, Kangaroo and in cold weather a blanket were objects of Jacks ambition often when hungry he has said to me “Massa shoot now for me to Patta” when the bird fell the process was very simple thrown on the fire the feathers were quickly scorched; to rub them off, tear open the body take out the entrails, give it another cast for a few moments on the fire, and then devour it, was all quickly performed and satisfied for the time Jacks appetite. He was tall and gaunt, very expert with his waddy or club t’was his sceptre and with the prowess of arm sustained his Kingly dominion. I once witnessed his power he came and told me he had got a second wife I congratulated him and asked how Mary his present wife would like it, he answered very well, that she was a murrybudgeree girl( very nice). In a few days he came to me in much distress to say his beautiful, his blooming had been taken from him by his brother Dick and sought my influence to recover her. I declined as I never interfered in their disputes. The following day I was near our barrack and Jack with me where the ladys appearance with Dick raised a storm. Jack seized her by one arm and Dick by another, she threw herself on the ground and to save her arms from being torn from her body I interfered. I then told her to go where she pleased when seeming to prefer Dick, Jack appeared satisfied in bestowing a few thumps in an awkward manner on his brother and then was walking off when Dick “drawing his wanna” threw it with all his force and unnerving aim it struck his shoulder stung with the pain and irritated by his treachery Burigon turned round and taking his fatal Waddy from his belt he struck his brother one blow on the side of the head was enough he fell and was borne away senseless.

Burigon came to me next morning in distress to tell me his brother Dick was dead (murgy) and that his tribe would kill him. I advised him to remain in one of my offices until the storm had subsided, he did so far a short time but appeared to pine away so at separation from his people that determining to brave the worst he left me . For a few days he remained away and then returned a frightful object, his matted hair and dark face all clotted with blood and his skull fractured in a most dreadful manner he again took up his old abode. The surgeon to the settlement kindly bound up his wounds and he recovered his health and peace of mind at the same time for the [indecipherable](blank) had assuaged the wrath and reconciled him to his subjects he had however a secondary punishment to stand from the neighbouring tribes he however did not appear to dread their vengeance so much and arming himself with a large wooden shield which he begged from me he sallied forth and returned in some days unhurt after having stood his punishment and having escaped unhurt.

Jack dived like a waterfowl, my dogs once returned to me with every appearance of having killed a kangaroo, he tracked in the direction they came from, until we found a small deep pond. Jack said “I believe kangaroo here “Massa” & dashing in soon disappeared, he remained under water until my suspense amounted to anxiety when at length his black face appeared with a smile of triumph and he held above the water a fine large kangaroo. I can now tho’ so many years have passed over me, call the scene to memory, an esteemed brother officer and countryman, an honest & brave Scotch Serjeant and the Kings of Newcastle were the principal characters,/they are all dead,/ my dogs lay panting by the margin of the pond & seemed allmost to be sharers of our anxiety as they had been of our sport, the scenery around was beautiful t’was near the close of one of those delightful days almost peculiar to New South Wales. I can call to mind Jacks broad grin & the pride and exullation with which he laid the dripping kangaroo at my feet. These are scenes in all our lives to which we turn back to with pleasurable tho perhaps with a tinge of melancholy feelings and I now remember poor Jack the black savage ministering to my pleasures, fishing, kangaroo hunting, guiding me thro’ trackless forests with more kindly feelings than I do many of my own colour, kindred, nation –

Jack proved his attachment and confidence by giving me his only son a fine boy ten years old to be sent to the native establishment formed at Paramatta by the late benevolent and truly philanthropic Governor Macquarie.

Jacks career has been I understand since terminated by a treacherous stab from a convict who by his execution soon after paid in this world the forfiet of his crime, and was the first European that suffered for an Aboriginal native of New Holland.

Dick was a shrewd active fellow but wilder and more untamed than Burigon, he appeared drowsy & fatigued as I copied his face, faithfully tho without art, Dick said I “suppose you Murgi /die/ where will you go? he hesitated for some time “ I don’t know Massa but / and he significantly pointed down / I believe I go to hell, poor Dick was soon after made wiser than I can pretend to be.

Jack formed his confidence & attachment to me in the following manner a few days before my quitting Newcastle. I saw him standing up with his only son by his side. I presumed by his countenance he had some momentous thought on his mind – he seemed agitated and & placing his hand on his sons head said with smothered feelings – I give it your permission to send to school at Parramatta this [indecipherable][indecipherable] – [indecipherable] have him made [indecipherable] [indecipherable] & comes back to Newcastle to make boat for me to fish in – & sent him to an establishment founded by the Commandant & the [indecipherable] Governor Macquarie] soon [indecipherable] and not [indecipherable] to reap the benefit of his sons labour he was treacherously stabbed by a runaway convict whom he was bringing back to Newcastle – this convict paid the penalty of his life being the first white man executed for the murder of a native.

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SRNSW: SZ 792 COD452B
Court of Criminal Jurisdiction Case Papers Nov/Dec 1820 Part II
pp. 496-519 Map page 507

Notes taken by Dr Mark Dunn

17 Nov 1820

Case papers for the murder of Burrigan include depositions from soldiers, bush constables and two Aboriginal men regarding the assault on Burrigan.

Mr Isaac Elliott, Principal superintendent: 10 oclock on morning of 27 Oct, party of 4 soldiers and 2 bush constables set out to pursue Kirby and Thompson who had absconded the previous night.   As leaving they received info from an Aboriginal woman that the two convicts had been apprehended and were being held at the Native Camp.  Party continued with the woman to the rear of the Church and met the natives coming in with the prisoners.  Immediately on Kirby seeing the soldiers, he turned and extended his left arm as if to seize the head of the Chief, who screamed out and one of his tribe struck Kirby down with his waddy.  Kirby got up and tried to run but was seized by a bush constable.  Elliott saw the wound across Burrigan’s abdomen and applied his pocket handkerchief to it.

James Wells, bush constable testified, saw Kirby reach out with his arm and get struck down.  Wells seized Kirby as he attempted to run.
John Meutzlowe, bush constable.  Was in advance of the party and saw Kirby get struck by Burrigan, after which Kirby ran towards the party which Meutzlowe believed he was doing for his own protection from the natives.  Meutzlowe believed Kirby intended to do him some injury and kept him at bay with his musket.  Burrigan again struck Kirby on the head, a scuffle ensued and at the same moment Kirby threw something out of his hand.  He then noticed that Burrigan was wounded in the belly.

John Smith Chief Constable accompanied by two constables went into the bush behind the church on 7th Nov and came across Burrigan leaning on shoulder of another, in much pain.  He remained with Burrigan a few minutes before continuing.  On returning same way after about 1 hour he found Burrigan lying on the ground much worse with a woman tending him.  Burrigan died while he was with him, immediately a native nearby said ‘Croppie make it Boyee’meaning the wound he had received had killed him.

James Blake constable accompanied John Smith on the 7th and saw Burrigan die.

McGill, a black native gave deposition in Newcastle to a JP.  He was with the party of natives who took Kirby and Thompson prisoner on night of 26th Oct.  Runaways were kept confined over night and in morning were taken towards the settlement.  Says when they met the party of soldiers, Kirby called Burrigan over and on Burrigan going up, Kirby immediately struck him with a knife and attempted repeated attacks but was prevented and threw the knife away

Nerang Jack, a black native, states he was with party of natives who took runaways and saw Kirby cut the native chief

Sketch map provided showing approximate site of the attack

Morriset, in sending the prisoners to Sydney for trial advised that prisoner Thompson was likely to turn evidence for the Crown.

________________________

From the above it is disturbing that no record of Burigon receiving medical treatment for his wounds appears in these depositions. Did they just leave him to die over a period of days?

Dr Ann Hardy located the report in the Sydney Gazette, 16 December 1820, that provides the deposition of Mr Fenton, assistant surgeon, that confirms that he did receive medical treatment, but, according to Fenton could not be convinced to stay, and after three days decided to re-join is tribe to be traditionally healed. Burrigon did return after five days to have his bandages changed, but later died of his wounds.

The Sydney Gazette and New South Wales Advertiser (NSW : 1803 – 1842)
Saturday 16 December 1820 P.3
http://nla.gov.au/nla.news-page494754

THURSDAY.—John Kirby and John Thompson were indicted for the wilful murder of Burragong, alias King Jack, a native chief at Newcastle, on the 27th. of October, and the first witness called in support of the prosecution was

Isaac Elliot, a superintendent at that settlement ; who deposed that the two prisoners charged were employed in the blacksmiths’ shop there ; that Kirby had been removed thither from hence, two years ago, under sentence of the Criminal Court ; and that Thompson was also sent thither, for endeavouring to effect an escape from the Colony ; that on the 26th of November they were absent from their work, and he discovered that they had both run from the settlement ; which being reported to the Commandant, he immediately dispatched a military party, attended by two constables, in quest of them. In ten minutes after the party had left, a black woman arrived with information to deponent,  of two men being taken up by some natives, who were conducting them into the town : the pursuing party were in consequence recalled from their adopted route, and joined by deponent, went out to meet the natives with their prisoners ; and shortly met a number of natives (accompanied by the two prisoners), all armed with spears and other weapons, the murdered chief guarding Kirby ; both the prisoners very soon descrying deponent and the pursuing party : immediately whereupon the natives set up a yell and shout, and clearly articulated the words ” Croppy make big Jack booey,” by which was to be comprehended that one of the white men had killed Jack their chief ; whom the prisoner Kirby was seen to raise his arm to seize upon, but fell himself from a blow by a waddy.

Witness further deposed, that no blow was struck by the natives until the murderous act had been committed by the prisoner Kirby. The other prisoner at the bar had only endeavoured to effect his escape, but was secured by one of the constables, as was Kirby also, who had risen, and endeavoured to run off. Deponent saw the deceased in a wounded state, by some sharp instrument, in the belly, and bound him round ; had him conveyed into the town ; had a search made for the destructive implement, which could not be found. After ten days survival, the deceased went to deponent with an order from the worthy Officer that commands the settlement, to receive a suit of cloathing, and then said he was murry bujerry, meaning that he was much recovered ; but in five days after, deponent heard that this kind, useful, and intelligent chief had breathed his last. The fatal wound was given on the 27th of October, and he painfully languished till the 7th of November ultimo.

James Wills, one of the constables who attended the party, corroborated the foregoing evidence ; and particularly to the fact that no blow was struck by any native before he saw Kirby stretch out his arm towards the wounded man, and heard the yells and shouts of the natives ; and that while in the act of hand-cuffing the two prisoners, the prisoner Kirby expressed his regret at not having killed the deceased outright. He saw the deceased a few days after in the woods, and he then expressed a complaint of much illness, owing to his wound, and in a few days after he was dead.

The other constable of the party, Mencelo, corroborated the foregoing testimony.

Mr. Fenton, assistant surgeon of the 48th Regiment, gave testimony of the deceased having been brought into the settlement wounded, and was attended to with every care, in his own quarters ; where he would not continue after the third day, though every persuasion was used to detain him, he being desirous of resorting to the expedients practiced by themselves in wounded cases. Dr. Fenton described the wound to have been received in the abdomen, and extremely dangerous. In five days after his quitting, he returned, and Dr. Fenton dressed his wound, he then appearing in a convalescent state ; but he soon after heard of his death. Dr. Fenton had no doubt of the death ensuing from an internal mortification in the abdomen, occasioned by the wound proved to have been inflicted by the prisoner

John Kirby ; against whom a verdict was returned of Wilful Murder ; and sentence of Death was immediately pronounced upon him—his body directed to be dissected and anatomised.—John Thompson was acquitted.

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Gionni Di Gravio
February 2016

June 2016  Update

Thanks to Fiona Sullivan, State Records New South Wales, who kindly photographed the original depositions from which Dr Mark Dunn made his initial notes. Dr Ann Hardy has kindly transcribed the original documents relating to the case below:

SRNSW: SZ 792 COD452B

Court of Criminal Jurisdiction Case Papers Nov/Dec 1820 Part II

pp. 496-519 Map page 507

(Transcription: Dr Ann Hardy & Gionni Di Gravio)

p. 496

39 Newcastle John Kirby for murder depositions tried 10am 20 Nov. 1820

 

p. 497

Newcastle, Nov 18^th 1820

Sir,

I have the honour to enclose deposition taken before me in a case of the murder of a Black native of the name of Burragon alias Jack chief of the Newcastle tribe, The natives could not of course be examined in oath, but in case you think it necessary that his man should be sent

To The Honourable
The Judge Advocate

p. 498

to Sydney for trial there is another native who speaks good English, who I will endeavour to find and who will be a material evidence as from what I can believe he was the man who was there at the moment to the parties, as the man who knocked the (Aboriginal?) down. Every endeavour has been made to find the Knife with (which?) the wound was inflicted, but (without effect?) – John Kirby the man (who?) inflicted the wound in as brutal a manner is under Sentence to the

 

p. 499

Settlement for life, the other John  Thompson for two years, about a year of which has expired.

It is very extraordinary that no European saw the Blow given nor the knife in the possession of Kirby.

I hope you will not find it necessary to send for either the Chief Superintendent Elliott, or Smith the Chief Constable.

I have the honour to be

Sir

Your Obd-Humble Serv

J. T.  Morisset J.P.

p. 500

18 Nov 1820

Major Morisset

The King

v

Kirby (Laws?)

Murder

p. 501

Northumberland to wit }

Proceedings in the Court room at Newcastle before James Thomas Morisset Esquire J. P. on Friday the 17th day of November in the year of Our Lord One thousand eight hundred and twenty.

Mr Isaac Elliott being sworne deponent & saith that about 7 oclock in the morning of the 27^th of October last, a party consisting on four soldiers and two bush constables were about to be dispatched after John Kirby and John Thompson who had ran from the settlement the preceding night when he the Deponent received information form a Native woman that the said runaways were in custody at their the Natives Camp –

That in consequence of such information Deponent ordered the party to proceed with him on going at the back of the church Deponent with the aforesaid military and constables met the natives with the prisoner John Kirby and John Thompson in custody.

That immediately on John Kirby’s seeing the aforesaid party of soldiers & constables deponent states he John Kirby turned round and stretched out his left arm, as if to seize the Head of the Native Chief, who screamed out loudly, and one of his Tribe immediately struck Kirby on the head with his waddy and knocked him down, Deponent saith he Kirby

p. 502

Kirby
got up and endeavoured to run but seized by a bush constable named Meutzlowe, Deponent then went up to the Deceased who he found to be wounded in abdomen deponent bound up the wound with his Pocket Handkerchief. Thomas Elliott

2. James Wells (a bush constable) being called and duly sworne Deposeth that on the morning of the 27^th October last he accompanied the Principal Superintendant, and soldiers in search of John Kirby and John Thompson who ran from the settlement the preceding night. Deponent states that on ascending the Church Hill he saw several Natives with the Runaways in Custody, further states he saw John Kirby reach out his Arm as if to Seize the Head of the deceased when he was knocked down by a Native. The prisoners John Kirby and John Thompson then endeavoured to make their Escape. Deponent further sath he secured Thompson who together with Kirby were immediately handcuff’d, Deponent saith John Kirby express’d regret “that he had not cut the buggers head off”.

James Wells

p. 503

3. John Meutzlowe (a bush constable) being only sworn deposeth and saith that on the morning of the 27th of October last he accompanied the Principal Superintendent and a party of Military in Search of John Kirby and John Thompson who ran from the settlement the preceding night. Deponent states he was in advance of the Party and saw the prisoners John Thompson and John Kirby in Custody of the Natives who on perceiving Deponent, ran in Different directions but before they did so Deponent saw the Deceased (Native Chief) strike Kirby on the with his Waddy. Kirby being closely pursued by the Natives ran towards Dep(onen)t. as he Deponent now believes for protection against the Natives, Deponent being at the moment apprehensive that his Kirby’s intention was to do him some injury, he kept him off with the Muzzle of his Musket, threatening at the same time to shoot him if he did not surrender, on which the deceased (Native Chief) again come up & Struck Kirby on the head with his Waddy, a scuffle ensued. Deponent at the same moment saw Kirby throw something out of his hand. Deponent then said that the Deceased (Burragan) Native Chief was wounded in the belly and saw the Superintendent endeavouring to Stop the blood with his Handkerchief. The Prisoners were then secured and brought in

John (x his mark) Menslowe

 

p. 504

4th John Smith Chief Constable being sworne saith that on Tuesday the 7th Instant he went into the bush accompanied by two of his Constables that at about the Distance of a Mile from the Settlement he saw the Deceased (Burragan/the Native Chief) leaning on the Shoulder of a Native Woman apparently to Deponent in much bodily pain. [In margin: 7 Nov. wounded 27 Oct. = In as to interval as known to Constables] Deponent states he remain’d some few minutes with the Deceased and then went on to where he was going. During an absence of about an hour this Deponent returned by the same way and again saw the Deceased laying down apparently much worse. Deponent Stopp’d for the space of half an hour, during which time Deponent Saith the Deceased frequently put his hands to his belly which were immediately removed by the Native Woman attending him, Deponent states that during the time he remain’d with the Natives, the Deceased (Native Chief) died and immediately a Native Standing by exclaim’d that Croppie make it Boyee. meaning by the wound he had received he had died. Deponent then returned to the Settlement and reported the foregoing circumstance to the Commandant.

John Smith

p. 505

5th James Blake (a Constable) states that he accompanied the Chief Constable to the bush on the afternoon of the 7th Instant when about the distance of a Mile from the Settlement this Deponent saw the Native Chief (Burragan) leaning on the Shoulder of a Native Woman. Deponent States that after an absence of about an hour he return’d by the way where the (Deceased) was laying apparently very ill and full of pain frequently putting his hands to his belly which were removed by the Woman attending him, Deponent States at the desire of the Chief Constable he Stopp’d for about half an hour with the Natives during which time this Deponent Saw the Deceased Native Chief (die) Deponent further states that immediately after the Deceased died he the Dep(onen)t. heard a Native standing by say that Croppie make it boyee, meaning that from the wound he had received from Kirby was the cause of his death.

James Blake

The foregoing Depositions sworne before me at Newcastle this 17th day of November in the Year of Our Lord One thousand eighth hundred and twenty {J.T. Morisset JP

p. 506

a Black Native named McGill being called States he was with the Party of Natives who took the runaways Kirby and Thompson on the night of the 26th October, States that Said runaways were kept confined until day light next morning when he with the other Natives brought them on towards the Settlement, that within a short distance from the Settlement they met with a party of soldiers and others. Dep(onen)t. further states that about that time Kirby called the Deceased (Jack) or (Native Chief) and immediately on his (Jacks) going up, Kirby struck him with a Knife and cut his belly, he Kirby attempted to repeat the blow but was prevented = further states that his saw Kirby throw the knife away.

Nerang Jack a black Native) states he was with the party of Natives who took the runaways Kirby and Thompson, that he saw Kirby cut the Native Chief and afterwards throw away the Knife that he Nerang Jack assisted to bringing the runaways to the Settlement.

The Depositions of these black Natives taken before me at Newcastle 17th day of November in the Year of Our Lord One hundred eight hundred and twenty {J.T Morisset J.P

p. 507 – Plan showing location of murder

Examination in a case of Murder of Burragan Chief of the black Native Tribe – at Newcastle – taken before J.T. Morisset Esq. Magistrate on the 17th November 1820.

p. 507

Elliott Newcastle

Ab. (about) 50 yds. * Murder committed   from the town

Pathway

Wallace’s Hill =

Wells Elliott Menslowe

p. 508

Nov 16^th 1820

On the twenty seventh of October Burrigong commonly call’d Jack Chief of the Newcastle tribe, received a wound in the Anterior part on the Abdomen which penetrated that cavity the wound was situated about two inches above the Umbilicus a little inclining to the right side, was in a transverse direction about one inch in length, and at which the Omentum protruded he died about the tenth day after the receipt of the injury I saw him a few hours previous to his decease when he complained of great pain and tension of the abdomen accompanied with considerable fever.  Although I consider the wound as the cause of his death – yet had he remained quiet and submitted to proper instructions he might have had a chance of recovery.

(?) Fenton

(Asst. Surgeon 48th Reg.?)

Sworne before me at Newcastle this 18th day of November in the year of Our Lord One thousand eight hundred and twenty – – – J.T Morisset J.P

p. 509

The King

V

Kirby (& ans?)

Dept. Asst. Surgeon Fenton

48 Reg.

p. 510

Newcastle, Dec 1^st 1820.

Sir,

I have the honor to acknowledge the receipt of your letter of the 22^nd Inst. enclosing the Summons of the following witnesses, Isaac Elliott, James Well’s, Joseph Menslowe, James Blake and Asst. Surgeon Fenton, all of whom, as also the Prisoner’s John Kirby & John Thompson will embark tomorrow on board the Brig Nelson for Sydney, except James Well’s who is in the Bush, but as I expect will back either tomorrow or the

p. 511

next day I will send him in the Brig Prince Leopold now coming into this Harbour. – I shall do my best endeavours to forward Natives who witnessed the (Murder?).

I think the prisoner Thompson is likely to become an evidence of the Crown. – Not one of the Military either saw or heard anything of the affair, they were some distance in the rear at the time it took place

I have the honor to be your obt, servt.

J.T Morisset

To the Humble Judge Advocate

p. 512

1 Dec 1820

Major Morisset

The King

V

Kirby (sans?)  {murder

p. 513

New South Wales to wit } Be it Remembered

That John Wylde Esquire the Judge Advocate of our Sovereign Lord the King for the Territory of New South Wales and its Dependencies who for our said Lord the King Exhibits the Charge in this behalf comes into the Court of Criminal Jurisdiction convened at Sydney in the said Territory by precept issued under the hand and Seal of his Excellency Governor Macquarie dated the eleventh day of November in the year of our Lord one thousand eight hundred and twenty and having power to enquire of and to hear and determine and punish all Treasons, Murders Felonies Trespasses and other Crimes whatsoever committed within the said Territory or its Dependencies and for our said Lord the King Charges and gives the said Court to be informed That John Kirby late of Newcastle in the Territory of New South Wales Laborer not having the fear of God before his Eyes but being moved and seduced by the instigation of the Devil on the

day of            in the year

of our Lord one thousand eight hundred and twenty with force and (Arms?) at —

Newcastle aforesaid that is to say at

Sydney aforesaid in the Territory aforesaid

in and upon one of the Natives of the Territory of New South Wales called  –

Burrigan he being a chief of one of the Tribes of Natives at Newcastle aforesaid

p. 514

in the Territory aforesaid in the peace of God and our said Lord the King then and their being feloniously wilfully and of his malice aforethought did make aid Assault and that be the said John Kirby with a certain Stick or piece of wood of no value which he the said John Kirby in his right hand then and there had and held and with both his hands and feet the said Native called Burrigan to aid against the grounds then and there feloniously wilfully and of his – malice aforethought did cast and throw and the said Native called Burrigan so upon the Ground lying he the said John Kirby with both the hands and feet of him the said John Kirby the said Native called Burrigan in and upon the Head, Stomach back and sides of the said Native called Burrigan – then and there feloniously wilfully and of his malice aforethought did hit strike beat and kick the said John Kirby then and there giving to him the said Native Burrigan as well by such striking of him with the strike or piece of wood aforesaid as by the casting and throwing of the said Native called –

p. 515

Burrigan to the ground aforesaid as  – also by the striking beating and kicking the said Native called Burigan in and upon the Head Stomach back and sides of the said Native called Burrigan (manner?) aforesaid several mortal wounds and bruises in and upon the Head – Stomach back and sides of the said Native called Burrigan of which said several mortal wounds and bruises he the said Native called Burrigan then and there instantly died And so the said Judge Advocate gives the said Court to be informed that the said John Kirby the said Native called Burrigan then and there in manner and form aforesaid feloniously wilfully and of his malice – aforethought did kill and murder against the peace of our said Lord the King his Crown and Dignity.

p. 516

39

The King

v

John Kirby

Information

Witnesses come up

Isaac Elliott

James Wells

Jn Menslowe

James Blake

p. 517

New South Wales to wit {Be it Remembered that

John Wylde Esquire the Judge Advocate of our sovereign Lord the King of the territory of New south Wales and its depends who for our said Lord the King exhibits the charge in this behalf comes into the count of criminal jurisdiction convened at Sydney in the said territory by precept issued under the hand and seal of his excellence governor Macquarie dated the eleventh day of November in the year of our lord one thousand eight hundred and twenty and having power to enquire of and to hear and determine and punish all treasury, murders, felonies, trespasses and other crimes whatsoever committed in their the said territory or its dependencies and for our said Lord the King charges and gives the court to be informed that John Kirby late of Newcastle in the territory of New South Wales labourer and John Thompson late of the same place labourer not having that fear of gods before their eyes but being moved and reduced by the instigation of the Devil on the twenty seventh day of October in the year of our lord one thousand eight hundred and twenty with force and arms at Newcastle aforesaid in the territory aforesaid in and upon a certain Native Chief called and known by the name of Burragin in the peace of god and our said lord the king their and these – being feloniously wilfully and of their

 

p 518

malice a forethought did make assault and that the said John Kirby with a certain knife of the value of these pence’s which he the said John Kirby with left hand there said and these had and held the said Native chief called or known by the name Burrigan in and upon the right side of the belly between the short ribs of him the said Native chief Burrigan them and these feloniously wilfully and of his malice aforethought did strike and thrust giving to the said Native chief Burrigan their and these with the knife aforesaid in and upon the aforesaid left side of the Belly between the short ribs of his the said Native chief Burrigan one mortal wound of the breadth of five inches and of the depth of four inches of which said mortal wound the said Native chief Burrigan from the said twenty seventh day of October in the year aforesaid until the seventh day if November then next following at Newcastle aforesaid in the territory aforesaid did languish and languishing did live on while said seventh day of November in the year aforesaid the said Native chief Burrigan at Newcastle aforesaid in the territory aforesaid of the said mortal wound died And that the

p 519

said John Thompson their and these feloniously wilfully and of the malice – aforethought was prevent aiding helping abetting and comforting assisting and maintaining the said John Kirby the felony and murder aforesaid in manner such form aforesaid to do and commit And so the said Judge Advocate gives the said court to the informed that the said John Kirby and John Thompson their and these in manner and form aforesaid feloniously wilfully and of their realised aforethought did kill and murder the said Native chief Burragan against this peace of our sovereign Lord the king his Crown and Dignity

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39 The King

V

John Kirby

And John Thompson

Information

?

Isaac Elliott

James Wells

John

James Blake

Surgeon Fenton