CASE 15: A CIVILISED ENDING
In front of a low hanging, blood-orange sunset the shadow-puppets of two convicts dragged a decomposed body from its grave onto a canvas sheet. Convicts and soldiers watched silently under the shade front of nearby huts.
The scene transpired at a compound marking one boundary of the riverside township of Wallis Plains, described in a 1826 journalist’s travelogue as a cluster of detached cottages, which may be designated a hamlet. You would suppose the inhabitants were only tenants at will, who did not care to build on other people’s ground. It’s a sorry sight to see bad buildings anywhere, and its very grating to an Englishman when he leaves the dusty streets to take a turn amongst the rural virtues of a village life, there to find nothing of the sort …
At this distance from Sydney, I indulged a hope of growing quite poetical and seeing Pan and the sylvan deities, dryads and hamadryades – but there was no such thing. Perhaps it is that they are like the kangaroos, frightened at the approach of settlers or their manners. As this place is the centre of a populous neighbourhood, it is in contemplation to beautify it with a church, and let the good folks have some excuse for saying their prayers. They in general appear a very hardy race, with a great capacity for being industrious, cleanly, honest, and obliging — all special virtues in a peasantry. I put up at the ANGEL INN, which has every accommodation for travellers: a quarter of a pipe of wine on draft, plenty to eat, and good beds. A young man (a native), told me he wished to rent it off the landlord, and had offered him £100 per annum; but he asked £200 per annum for the obscure pot-house; only think of that! The journalist’s readers could only imagine his romantic leaning if he arrived a week earlier to describe the forlorn and stark drama of the body being dragged into a cool room beside the soldier’s barracks.
For assigned convict William Constantine, watching the grim exhumation was more unsettling than the mania of a few months earlier, when he helped dig the original burial hole for the body. It took over an hour to penetrate the rock hard ground (a forewarning of the momentously harsh, four-year drought to come). The smell of decomposition hung in the air, as if awaiting the expected arrival a police investigator from Newcastle. He had no authority or understanding why, but Constantine gut’s felt none of this needed to be happening.
The following day a sweating Chief Constable Muir dismounted from his horse after a 25-mile journey. He took an unceremonious slug of water and locked himself away in the office of Lieutenant Nathaniel Lowe, the Compound’s ranking officer. The two men met six months pervious when Lowe and his 40th Regiment charges reluctantly disembarked at Newcastle for secondment to Wallis Plains. They were from active battle duty to operate what was effectively a rural civilian police force for a ruddy frontier town. While the Government engaged the Military as a key part of their desperate response to increased bushranging and altercations between Aboriginals & increased settlement, Lieutenant Lowe felt he was baby-sitting. Muir agreed with the affront Lowe found looking after settlers who on one hand demanded the cheap (and often free) manual labour assigned convicts provided, all the while expecting authorities to chase those who debunked or took to the bush (generally because of ill treatment from those same settlers). Muir differed with Lowe though on the subject of Native Aboriginal treatment. Lowe had met Indigenous types through the jolt of combat and his pride in English exceptionalism. Muir experienced a unique, rough-edged co-habitation between colonists and Aboriginals. That was until the closure of the Newcastle penal station in 1822, when full tilt, commercial settlement of the fertile Hunter River Valley turned that workable and respectful relationship into a major nuisance.
With settlement came surveyors like Henry Dangar, whose meticulous metrological skills turned maps into a textually defined nirvana of wealth and progress. Cornish placenames from his childhood appeared, almost tracing Dangar’s more personal journey from gifted drafter to ruthless grafter and landowner of bullying influence and substance.
These maps ignored the Aboriginals’ existing template of land and place, wherein the individual human body existed simultaneously as a metaphysical and material entity. Eating, shitting, breathing, dying, rock, rivers, mountains, animals also signified laws and codes for living – part of songlines pronouncing welcome, warnings, passage, hunting rights, water, food, other countries, kinship, and seasonal changes. Within these were the keys to secret ceremonial places, sacred ancestor resting places and sources of the world’s creation. Far from being barbarians, the Aboriginals philosophically considered how their cosmos worked, rather than just accept that it did: curiosity begat ethnology of rich purpose, designed on understanding and sharing. Practicality and ephemeral belief fed emotional, physical and spiritual resilience; life as acceptance, death, renewal, and with pragmatism rather than fear of what next week might be.
For all that, unappreciative Europeans like Lowe and Danger defined Aboriginality as an inferior reflection of European ways. Dreamtime narratives of creation, moody spirits, revengeful lovers and imperfect heroes were bowdlerised into children stories: to imagine them otherwise mocked biblical aseity, and the divine Christian dogma of providence: the only certified transcendent purpose. Like Barbarians the world over, Aboriginal values were antagonistic to the prime Christian doctrine declaring man as uniquely blessed by God, and therefore separate from nature. This superiority theology smoothly married the 18th century global zeitgeist of material progress to revelation, and God became The Great Entrepreneurial Banker. New frontiers of settlement like the Hunter Valley likewise invoked the Old Testament’s divine model of the Promised Land, encouraging social narratives of solipsistic bravery and stoicism: individuals survived and tamed the Australian bush. Syndicated Newspapers popularised and entrenched this mythos, recasting the original inhabitants as threatening and devious shadows lurking in the wild, scroungers waiting to steal — or worse ̶ from the indomitable settler. In this upended world, fear beget distrust, social missteps became misunderstanding, and suspicion grew into violent altercation. Aboriginals were outsiders in their own story, unentitled to their own land, and subject to laws they had never seen or agreed to. Living became a potentially criminal act, the daily hunt more dangerous than meeting an angry Bogeyman or a people-eating night spirit. Within forty years, the curiosity of first contact was a quaint, archival miscellany in the forgotten diaries of long gone convicts and military officers.
By 1832, The New South Wales Calendar and General Post Office Directory redefined land into distinctive, class based property terms and religious parishes: small farms and settlers, stations, farms, estates, farms for veterans, farming establishments, residences, and sheep runs. Larger operations in the Hunter Valley such as Ravensworth Estate maintained armed patrols to minimise stock loss from bushrangers, neighbouring small landowners, convict runaways, and disenfranchised Natives. The Surgeon Superintendent James Bowman owned the 11,000-acre sheep run. His shepherds rounded up vulnerable strays, and generally warned off trespassers. One perimeter patrol resulted in two men failing to return. After two days one appeared to a search party, frightened and worse for wear after surviving two fireless nights alone. His partner had ran off and got lost in thick bush chasing a shadow figure at duck. There was a distant heard musket shot then nothing. It took another day’s searching before the partner was discovered face down in scrappy bushland. Flies communed on deep gashes to his neck, forehead and body. His fired musket was lying a distance away.
Dr Archibald Little found the body with the help of Jackey Jackey, after the two greeted each other near a Native track. Jackey explained to the local physician the gubba had shot at him without warning while was drinking from a stream. The gubba chased him and tried to wrestle Jackey into submission. Jacky applied bludgeon to protect himself. The man kept coming. Jacky kept countering, repeatedly, until the man stopped moving and breathing. Jackey was going back to the town to tell the gubbas, but changed his mind when he heard armed possies thumping about the area. He had laid low until recognising Mr Little. Knowing the quick-witted and formidable Jackey well, Little found his explanation of self-defence was convincing and believable. He persuaded Jackey to give himself to the law, assuring him the superior mercy and reason of British justice would vindicate him and see him right in the eyes of all the settlers.
Inspector Muir quickly established a kindred answer to his questioning from the soldiers: The Aboriginal Native Jackey Jackey arrived at the compound in chains during the afternoon, and spent the night in the barracks lock up for his transfer to Newcastle gaol. Shouts and gunshot woke up the barracks the following morning. The Native was shot and killed attempting to escape into the bush around breakfast time. No one could explain to Muir how Jackey might run off with his feet ironed together, which made even walking a rhythmic struggle. Jackey’s decomposed body also clearly showed multiple musket shot wounds to his chest and body, suggesting he was facing his eliminators. Muir could not establish any further information from assigned convicts. Most claimed to have been asleep, or off-site working. The rest could not remember much at all from a singularly uncommon day. This seemed unlikely considering the incident occurred during a communal breakfast time, before men set out for the day. Making Muir’s job more difficult was the hefty and uncooperative shadow of the regimental Sergeant. Muir had to ask him more than once to leave after he attempted answering or belittling Muir’s questions on the men’s behalf.
It seemed to Muir Lieutenant Lowe and his men had decided any loose explanation was enough for the killing of a black man. It had taken Archibald Little to follow up and report the missing man in the first instance. A frustrated Muir revised his strategy and persuaded one or two fragile convicts like William Constantine that they were safer confiding in him, rather than trusting themselves to a few blow-in soldier boys.
Muir procured two new statements that constructed a more gruesome and plausible picture of the execution day: Awaking from a night in Wallis Plains lock-up, a still shackled Jackey was manhandled from his cell before breakfast. After some bullying abuse and pummelling from soldiers, he found himself before the Lieutenant. After a short discussion, Sergeant Moore ordered troops into a strict unit and marched Jackey to the tree line separating the compound from the bush. He was dressed in a red shirt, tied to a tree and executed at close range without ceremony. If not for the heavy chains on his feet and hands, the scene might have resembled a lazy and benign weekend parade.
Constantine further told Muir that Sergeant Moore (a bull of a man you did not argue with) ordered himself and two other convicts (who Constantine refused to name) to bury Jackey’s body. One of the executioners had shot out Jackey’s cock and testicles. Constantine still held the bloody and discoloured face in his memory, like oil on water. Moore had baited Constantine, telling him to be careful if he saw the red shirt pulled out in public, it often meant a condemned man was nearby. Constantine admitted digging the grave, but others buried the body. Moore had scared him into saying nothing … no one would believe him anyway … best to say he didn’t know the Negro from a bad penny… in the end, it was just one less thieving, murdering black.
After corroborating Constantine’s version of events with two other convicts, Muir confronted a startled Lt Lowe and indicted him for the wilful murder of the Negro black of the colony named Jackey at Wallis Plains, in the month of August last. Unlike Jacky, Lowe was free to travel down at his own pleasure.
Jackey Jackey was a popular moniker for Native males, who played on the name themselves, enjoying the way it folded on the bouncing rhythm of their speech. At Lieutenant Lowe’s Newcastle trial, the court clerk pronounced the assassinated Jacky as having multiple titles: Jackey Jackey, alias Commandant, alias Jeffery. As the trial proceeded, the court showed less and less interest in the strapping Wanarua man’s past or personhood, and by its end, he was recorded as being a Negro black … whose real name was unknown.
Jackey had no one to tell of him growing up nearby the Newcastle Prison where the Coquun River spilled into the ocean. No one would recall him laughing at the idiot Worimi who thought the gubbas were the returned spirits of lost ancestors. No one would explain his experience of the gubbas spreading and settling upriver, taking everything without treaty or trade, these strangers of little curiosity and less respect. Then they found the grand cedar forests around Bo-un: Place of the Bitterns (as Jackey’s tribe knew Wallis Plains). While intrigued by their industriousness and impressed by their weapons, their disregard and mistreatment of sacred spaces made Jackey sick. They levelled and burnt the land without ceremony or acknowledgment, cutting down the monumental cedar trunks and sending them down river for transmutation into houses, farms, fences, furniture and firewood. Watering holes, creeks & rivers were rerouted or dammed, reshaping the alluvial river plain into access roads for machines and carts and industrial husbandry.
In helpless recognition, some of Jackey’s tribe took up gubba ways – salves to linen clothes, God, flour, arithmetic, tobacco and drink. A few like Jackey played at spying by taking up work as guides, quietly seeking out gubba words and customs to interpret its boastful utility. This work allowed him to steer the gubbas away from sacred sites or songlines still unscathed. He watched as further diasporas of coastal and Valley Native tribes headed west into the channel country and desert plains. They found hard living groups surviving around unreliable lake and river systems, where nature decided how many, and how much. Some of the new arrivals were welcomed in, some not.
Jackey understood organised retaliation was ultimately futile, but the legend of Pemulwuy the Dharug man and the recent story of the Wiradjuri man Windradyne also exhilarated him. Pemulwuy was said to be immune to musket shot (twice left of dead after being shot at close range). He also miraculously slipped prison chains and escaped from gaols (the gubbas not appreciating the stealth of tribal teamwork). Their pugnacious deeds fuelled Jackey’s disgust for this new world of selfish ignorance. Armed resistance was a warrior’s expectation, but Jackey understood it was also a last option in a world disintegrating around you. The new world might be a waking nightmare, a confused misery of iniquity, but the ancestors also taught that quiet resilience was also a way beyond mere survival. Jackey resolved to hide in plain sight, deftly moving between two antipathetic ways of being.
Jackey’s defiant stare into the executing-eyed barrels on the day of his death was an empty gesture to the rifleman, whose main aim was his heart. Certainly, Jackey did not want to die, but he felt the surrounding “Everywhen” strengthening his composure: his end connected him to the stuff that would outlive his final breathing day. In this flow of being, gubbas and their bullying was momentary in the greater scope of time that was beyond them all, one that kept them always in the present: Like Pemulwuy, Jackey’s blood dripping back into the earth of his country was a miniscule, but integral element in the slow accumulation of moments. He was part of an irrepressible process beyond the precious and transitory idea of yesterday, today and tomorrow that his executors always craved control of.
The trial for the wilful murder of the Negro black of the colony named Jackey at Wallis Plains, dismissed the question of illegal execution, reframing it instead around a more fanciful, avantgarde debate on whether international law had any relevance within infant colonial boundaries. After a high-handed discussion quoting social philosophers like Pufendorf, de Vattal and Barbeyrac, the trial judge reminded both legal sides to return to more immediate concerns of mercy and guilt relating to the death of Jackey at Wallis Plains. This was, he noted, problematic enough, because if mercy was the bulwark of British law, the reality of the new Australian frontier of convicts, settlers, and Natives made it unclear which group was entitled to its surety.
Within this context, the death of Jackey exemplified an increasingly wild frontier conflict between whites and blacks. Indigenous men like Jackey existed in an irreconcilable legal void in this new world. British ownership of the continent was deigned right and correct. Without a treaty, the Aborigines were essentially legal savages. The original Letter Patent that landed with the First Fleet in 1788, demanding Natives retain access to their land and values, had disappeared from legal debate by the 1820s. Instead the legal personhood of an Aboriginal was a religious reflection, inasmuch as the Native had no history of the revelation of Biblical Christianity. For some, this ensured they were non-citizens without rights, which no protection rules could undo. As Mr Wentworth asserted for the prosecution, First, he [Aboriginals in general] does not understand the forms of our Courts — He has not sense to comprehend the meaning of those forms by which he would be tried; and in the next place, if he did possess that knowledge he could not have that trial, which, by the laws of England, he would be entitled to … are Negro Natives an alien enemy? He is not, because his tribe is not in hostilities with the British Sovereign. Is he an alien friend? He is not, because his tribe may be, and in fact is in a state of public hostility with individual subjects of the British Sovereign, and because no friendly alliance has ever been entered into. He is not a subject of the British King, because his tribe has not been reduced under his Majesty’s subjection, and because there has been no treaty, either expressed or understood, between his country and that of the British King, and because in fact there could be no treaty between him as a member of no commonwealth and the British King.
Within this serpentine logic, Jackey’s death presented an unfortunate paradox: in terms of legal evidence he was a murdered victim, but as legal precedent he was an annoying cause and effect, a ghost in limbo. Far from being a victim, Jackey’s limbo status made him the problem. For Wentworth, giving him legal rights might also open an unlikely, unexplored backdoor: being outside the law in terms of personhood and identity, protection laws might encourage the more wily Aboriginal to commit the worst crimes known to civilised man. As Wentworth figured it, when men become incorporated into civil societies and civil governments, they only give up the right of punishment to the Magistrate, on condition that he will afford them protection; they are co-extensive rights, and it appears to me to follow, as a necessary consequence, from the inability of this Court to punish the aboriginal blacks; that it has no jurisdiction to punish any British subject, who may have committed an offence against them, be it of what nature or degree soever.
When Constantine was called as a prosecution witness he admitted being “present when the black was buried and taken up; the body had lain in the grave between three and four months, it was rapidly advancing to decay. I agreed with Jones to deny this to Muir, unless I was put on my oath. I did deny it once to Dr Bowman and I wish I had continued to do so. I was of no trade before I came to the colony. I was transported here; and have been punished several times while I have been here. Further prosecution questioning strangely made more of his character flaws than his evidence. It was as if Constantine was being remade into an unreliable witness. This seemed more realistic after further convict witnesses went back on their original statements. One denied ever speaking with Constantine about a cover-up by the regiment. Another denied disposing of the body and suggested instead that a man like Constantine should stick to spinning fine tunes on his fiddle, because when he opened his mouth he was a monkey without a compass.
A similar character assessment enveloped the prosecution’s other main witness, William Sainsbury. Indentured Government service at Wallis Plains was Sainsbury’s final option after arrest in Sydney for firing off a stolen pistol while drunk. Sainsbury originally told Muir that on the morning of the execution two soldiers passed by him with a chained Jackey. He watched what seemed like a conversation between the prisoner, Lt Lowe, and Sargent Moore. A party of soldiers stood by idly, leaning on their rifles. Nothing unusual for that lot he noted. Sainsbury said he had little to do with the soldiers, but did recognise one of them as Lee, whose sport was to harass indentured convicts like himself. He then watched them take the Negro away. Sainsbury heard report of at least three muskets, and then a further single shot. He returned inside his hut to finish breakfast. A short time later a fellow assigned labourer called Newton came to the door with an order from Sgt Moore, demanding Sainsbury assist burying the dead man. You never argued with Moore, and you never answered him back unless he commanded it. Sainsbury found the Negro tied to a tree. There were wounds to his cheek and through his head; the blood there had oozed into a gluttonous, purple mould. His red shirt camouflaged most of the blood coming from his chest wounds. He had seen the black man around about the town. He was called Jackey, or “Jeffrey”. It was said he could handle himself. Sainsbury said he called him nigger. That was all he knew. The defence asked just one question of Sainsbury: “Is it true you have trouble every day staying sober?”
In sharp comparison, the Prosecution declined questioning Lieutenant Lowe, after his defence first set out his character from a statement. Lowe arrived in the colony just over a year previous, but peers in Sydney already reputed him a sensitive and upright officer-gentleman. Indeed, he had served in battle at Waterloo, and then the occupation of Paris. His grandfather was the Right Hon. Richard Hamilton Viscount Boyne, while his uncle Hamilton Lowe, Esq. was a London Customs executive. Social pedigree alone made the current accusations against him almost insulting. The case, as it was, showed a good man placed in an impossible situation. These lofty words spoke directly to the jury of naval and military officers, sabotaging anything coming from the mouths of Sainsbury or Constantine.
The case revolved on creating fabricating rascals out of Sainsbury and Constantine. Their believability framed the actual sequence of events, even the execution of Jackey. As the Defence called it, both men acknowledged themselves accomplices; and their testimony was unsupported by any other evidence whatever; some of the worst characters I ever heard of any men, and two who I would not believe on oath; They were liars who claim they were never punished at Wallis Plains, but were in the gaol gang there, besides other punishments; They are men requiring repeated punishment for thefts, including one who spent time at the Newcastle penal settlement, and was then one of the worst characters in it; Loose, Idle characters; notoriously bad characters.
Despite Mr Wentworth’s clever interpretation of Australia’s infant law, the Judge did conclude that in all cases the natives of this country (while they tread this soil) are entitled to the protection of our laws, unless from circumstances it be shewn they have thrown themselves out of that protection. It is sufficiently laid down in the Information, that the individual named as a negro, is entitled to the protection of the law, which will not allow another to lay violent hands on one of them, much less to destroy him. Despite this clear injunction, the Judge did advise the jury to separate any allegiance they felt for a fellow officer like Lt Lowe, and consider the question of murder exclusively in terms of witness credibility.
Five minutes later the jury returned and pronounced Lowe not guilty to the loud and general applause accompanying the announcement of the verdict. The numerous friends of Lieutenant Lowe crowded round to congratulate him on the happy termination of the trial. A second burst of applause was given as he triumphantly left the Court.
In the days after the trial Dr Archibald Little wrote to a local paper confirming he had never ‘apprehended’ Jackey as reported, while the upstanding young Native had freely (and without fear or favour) surrendered to him. The public nonetheless coded the trial as an attempted character assassination of a Gentleman by an upstart chief constable. The social malfeasance of disrupting class roles was far more harmful to a young society. Indeed the execution of an upstart was a sundry example Natives needed to keep them in their place.
While never admitting as such, Lowes trial epitomised British Law deferring its moral soul when progress and the bald pursuit of wealth was in question. The frontier was a new space in which engineering expertise and philosophical curiosity coupled intimately with the enduring, noble pursuit of wealth through trade or hard work. It was an apotheosis of self-sanctioning “British” exceptionalism, wherein the contrived and arbitrary customs of Gentlemen’s’ clubs, and education standardised the codas of class, wealth & entrepreneurism. Raw greed was veiled in polite notions of false modesty and social behaviour (material opportunity was always available to the everyman, but it was unofficially certified on always knowing your rank and place). For a man of the correct status and upbringing such as Lowe, frontier justice became an irreconcilable moral collision between the values of civilisation and savagery. Lowe’s trial prepared a future world in which the redemptive and humane ideals embedded in British common law would always be a matter of convenience rather than principle. Pufendorf’s and de Vattel’s grand ideas of empathy and rights for native peoples throughout the new world was a redundant footnote on the great, experimental Australian frontier.
In this world Aboriginals would be own worst enemies: The casual, almost serene sincerity with which they fused together the trials, joys and limitations of daily life was seen as superstitious weakness next to a muscular European Christianity promoting dominance over all things, and life as a contract-in-waiting for death. If they had bothered to listen and share rather than impose, the British might have discovered that Aboriginal law encouraged a social cohesion close to their own ideals. One dependent on strict and sophisticated relationship rules of kinship that ensured collective survival within extraordinary natural, geographical and climatic extremes. But even as the colonial experiment of laws and profit systematically censored and dismantled it, the survivors learned to carry a broken but repairable “Everywhen” within them. There were always quantums of songs, dreams, abilities, secret places, insulting jokes and family secrets. This kept a silent balance sheet of endurance and half-remembered knowledge, waiting to be passed on to some other today.
David Murray is a university medalist with a Creative Arts Phd from Newcastle Uni. He has published two books of poetry: “Swinging from a broken clock” and “Blue bottle” (Sultana Press), and contributed to Overland, The Australasian Journal of Popular Culture and the Mascara Poetry Journal.
Murray treats historical true crime creatively as a cultural marker of everyday life. It’s a process concentrating on ordinary lives while reflecting Luc Sante’s observation that ‘violence, misery, chicanery, and insanity exist in a continuum that spans history; they prove that there never was a golden age”.
Read more from David Murray’s Coal River True Crime Series