Last week we published the first of a three-part account of the horrific 1859 attack on a young mining agent in Daylesford. He was tarred and feathered by a number of his acquaintances in the main Street of Daylesford.
The case excited great local interest and charges were laid against the perpetrators. This week, we publish an account of the court case published in the Mt Alexander Mail.
The Court Case
Mt Alexander Mail 23 February 1859
On Monday last, a special Bench of magistrates sat at Daylesford police court, for the purpose of hearing the charge of tarring and feathering, adjourned from the previous week. J. P. Hamilton Esq., the Acting Stipendiary Magistrate for Castlemaine, presided, in accordance with instructions from the Attorney-General, and there were present with him C. F. Cameron, and E. S. Parker Esqs. The Court, which is a very small and inconvenient building, was crowded long before the proceedings commenced.
The case, from the respectable position in life occupied by most of the defendants, as well as from the peculiar character of their offence, excited a great interest. The magistrates having taken their seats, Arthur Cruickshank (poundkeeper), Thomas Egerton Harvey (Crown-bailiff), W. G. Hart (auctioneer), J. Addis, J. Cummerford, W. Patchil, and Robert Reid, surrendered to their bail, and pleaded not guilty to a charge of aggravated assault and false imprisonment.
Mr. Thompson appeared for the prosecution; Mr, Moultrie defended Hart; and Mr. Paynter appeared on behalf of the other defendants. Mr. Paynter intimated that he had some preliminary objections to make, but he had consented to reserve them until Mr. Thompson had opened the case.
Mr. Hamilton : Mr. Thompson, are you counsel for the Crown in this case? This is a criminal charge.
Mr. Inspector Ximenes explained that he had not heard of the case until Mr. Montgomery had placed it in the hands of Mr. Thompson; had Mr. Montgomery applied to him, he would have seen that the defendants were brought to justice. However, he had no objection to leave the case in the hands of a gentleman who was much better able to conduct it than himself.
Mr. Paynter remarked that as his preliminary objection was to the effect that the Bench had no jurisdiction, he thought he had better state it at once. He was prepared to show that the criminal jurisdiction of magistrates in matters of this kind was ousted, and would have done so at once, only he did not wish to deprive his learned friend of the opportunity of making an eloquent speech, which he had prepared.
Mr. Thompson: My learned friend is eloquent and frolicsome too (a laugh).
Mr. Hamilton said the Bench did not wish to hear a speech; Mr. Thompson had better confine himself to the facts.
Mr. Thompson said he did not wish to make a speech. Having stated that the information was laid under the 4th and 9th clauses of 16th Victoria, the learned gentleman proceeded as follows:—May it please your worships, I appear here on behalf of Mr. W. J. Montgomery, who complains of having been made the victim of a gross and cowardly assault. Gentlemen, we are living in the 19th. century, in a colony bearing the name of an illustrious lady, illustrious by birth, illustrious by virtues, illustrious by position—where the people enjoy an enlightened liberty—
Mr. Hamilton : Mr. Thompson, I am sorry to interrupt you, but it would be much more satisfactory to the Bench if you would confine yourself to the simple facts without making any address. The bench are not a jury, they are only dealing ministerially.
Mr. Paynter hoped their worships would not decide that before hearing his objection.
Mr. Thompson remarked that if the Bench declined to hear any comment, he must submit. He then proceeded to read a copy of the information stating the facts subsequently detailed in evidence, his concluding remarks eliciting a loud cheer from the spectators.
Mr. Hamilton cautioned the public that a repetition of such an expression, whether of approbation or disapprobation, would cause him to clear the court. In consequence of this intimation perfect silence was maintained during the remainder of the proceedings
Mr. Thompson then called W. J. Montgomery, who deposed—I am the prosecutor in this case, and know the defendants. Mr. Cruickshank is the poundkeeper, Harvey is crown bailiff, Hart is an auctioneer, Patchell is a laborer working in Cumberford and Addis’s claim. I have had no quarrel with them.
On Wednesday, Feb. 9, about 2 p.m., I was in a tent on the Wombat reef. Cruickshank came up and asked if anyone was in. I came out and said “Hallo, do you want John Collier?” He said, “I won’t have anything to do with Collier; you come to Hart’s store, Blakely wants to see you there.” I had no business with Blakely, but I walked down with Cruickshank. On the way down we talked about the loss of cattle he had that day sustained, and I commiserated him.
On arriving at the Chapel, he said, “I will go on and put up my horse.” He asked me to follow him; I did so, but entered Hurt’s store alone. As I approached the store, I saw two men there, Daniel Brown, and William D. McCausland, standing there; they came towards me, and as they passed I noticed a peculiar expression on Brown’s face. I went into Hart’s store. He was standing at the door of a bedroom, and I heard the sound of people’s voices talking inside. Hart was looking out from the door, his body being partly in the room. As I passed he went in, and the voices ceased. I went on into the sitting room (witness made a plan of the room). Cruickshank came in immediately, and said to me, “Sit down, Blakely will be here in a minute.” I then sat down. Almost at the same moment, Cruickshank seized my arm, and Reid, Patchil, Cumberford, and Addis rushed into the room, Reid seized my left hand.
It seemed as if the cry “Sit down,” had been the signal for their entrance. Patchel had a head stall in his hand when he entered. Reid and Cruickshank then took hold of the collar of my top coat, as if to lift me up and drop me out of it. I asked them to allow me to unbutton my coat. They did allow me, but they continued to hold my hands. I said to them, “Well, gentlemen, whatever you are going to do, you are going to break the law and I shall hold you accountable for it.”
Cruickshank replied, “Oh, never mind the law we will take care of the law.” When my coat was off Patchil came behind me and pinioned my arms with the halter he had. Cruickshank then let down my trousers He unbuttoned them and let them fall down to my ankles. I had no drawers on. They did not take my shirt off. They then (my trousers being about my ankles, and hobbling me) pushed me along the shop into the street.
My legs were bare. Addis came up with a broken gin-bottle containing tar, and one of the others (I cannot tell which) had a brush. When l was pushed to the front of the door, Cruickshank, Reid, Harvey, and Addis tarred me.
Mr. Paynter: Are you quite sure of Harvey? Be cautious, now.
Complainant: Yes, I am most positive about him. He was the most impudent of the lot (a laugh); he cut a lot of capers about me while tarring me, and seemed to be admiring his work (laughter). I think Reid used the brush after Harvey, but I was in that peculiar state of mind at the time that I cannot recollect distinctly. Reid took a whole bundle of feathers to shake them over me; he seemed desirous to exceed his orders.
Mr. Paynter objected to this evidence.
Complainant: Reid took the brush from one of the parties, dipped it into the tar, and then rubbed it on my naked person. He then took some feathers and put them on the tar on my person. Harvey occupied more time than any of the others in tarring me. Addis called out to parties in the store, “Any more of ye? Come on.” Patchil then came out and put some tar and feathers on me. Cumberford was present but I do not remember that he touched me, inside or out. He was present, but did nothing to me, neither did he assist me. They then all went back to Hart’s store. I was ashamed at my position, and followed them for the purpose of going into the store, but Addis said, “No, no; you can’t come here,” and shut the door in my face. I think Hart assisted him to close the door.
By Mr. Parker: This took place in the public street, about half-past two in the afternoon.
By Mr. Thompson: My trousers were down, I was tarred and feathered behind from the small of my back to the middle of the knee.
By Mr. Parker: They lifted the hind part of my shirt to tar me; they did not tar me in front.
By Mr. Thompson: During this proceeding some persons in Hollis’s tent cried out shame. Leonard Gibson came out of Hollis’s and assisted me into it.
Mr. Thompson: Is Gibson here?
Complainant: Well, I heard that Reid had been making him drunk this morning. (A laugh.)
Mr. Paynter objected.
Gibson came across to me, unfastened my arms, and pulled up my trousers and led me to Rollis’s back kitchen, where he helped to clean me. I think Hart assisted Addis to close the store door. I did not see Hart in the sitting room with the others. I saw him when I first went in. Fullerton, the storekeeper, was also in the store when I went in, and I saw him laughing at the proceeding. When Addis called out, “Any more of ye?” I think Fullerton came out and tarred me. I have suffered for some time past from palpitation of the heart, and for three nights after this occurrence could get no sleep.
Complainant cross-examined by Mr. Moultrie: Hart did not touch me. I do not remember seeing him in the store while the assault was being committed. About four or five minutes elapsed from the time when Cruickshank first seized me until I was pushed outside.
Mr. Moultrie submitted that there was really no evidence against Hart, and that he ought to be discharged. The Bench replied that the prosecution was not yet closed.
Cross-examined by Mr. Paynter: I was on good terms with all the defendants three or four days back. Had a slight quarrel with Harvey and Cruickshank about twelve months since.
Mr. Paynter: Come now, is there a single storekeeper or other respectable person in Hepburn or district, that you have not quarrelled with?
Mr. Thompson: I object to the question. It is the most indecent one I ever heard put in a court of justice.
Cross-examination continued: Two months ago I had a dispute with Harvey about half-a-crown over a bagatelle table, but it was a very trifling affair.
The cross-examination was closely followed up, but it entirely failed to shake the slightest point of complainant’s evidence in chief.
Leonard Gibson was then called. A tall hirsute specimen of the genus homo stumbled through the crowd, and stood blinking with drunken gravity at the bench. Mr. Paynter hoped the Bench would not permit his examination. Mr. Thompson said he was a most material witness.
Mr. Hamilton: What is the matter? What is the objection to the witness? (Mr. Gibson acknowledged this allusion to him with a graceful wave of his hand toward the Bench.)
Mr. Paynter: It is evident he has been indulging too freely.
Gibson: (smirkingly) I beg your pardon, Mr. P., I have not been indulging, I can speak legitimately (laughter).
Mr. Thompson: I believe there has been some foul play here. Call Henry Hollis; but I suppose he is ill too (a laugh).
Mr. Thompson’s anticipation was correct. Hollis was too ill.
Mr. Hamilton inquired whether Gibson had been served with a subpoena.
Gibson: Oh yes, your honor, the evening before last, on Friday evening (a laugh), your honor, I got my subpoena.
Mr. Hamilton: Remove him. and keep him in custody until the rising of the Court.
The accommodation of the Court being rather limited, Mr. Gibson was honored with a seat in close proximity, to the Bench, where he remained until the Court rose.
John Westwood and Julius Westwood were called in succession. Their evidence was to the effect, that they had seen Montgomery standing outside Hart’s store, with his trousers about his heels; but they saw neither tar nor feathers on his person. They, however, only had a side view. They saw Montgomery assisted by Gibson. This was the whole of the evidence for the prosecution then producible.
Mr. Paynter asked, for a remand to give time for the production of Mr. M’Causland, a material witness for the defence.
Mr. Hamilton: I may remark, Mr. Paynter, that two of your clients hold Government situations, and I should think they would regard it as to their advantage that the charge against them should be determined as early as possible. Would it not be the best way to take the case as it stands, and let the defence go to the prosecution?
Mr Paynter—Oh, dear me, that would ruin my clients.
Mr Hamilton. — Well, I am sent up here by the Government, to enquire into this matter, and it would be very awkward to have to report that a case in which two persons holding government situations, had been carried as far as this has, and yet, in effect, stood over for three months.
The defendants were then liberated on the same bail as before, to appear on Saturday next.
Mr Gibson was brought out of his corner and fined 20s and costs, or 48 hours’ imprisonment, with a caution to appear sober on Saturday.
The Court then adjourned.
To be continued! Next week: The Verdict and a Commentary.
Related Stories:
The History Files: Tarring and Feathering – The Incident
From the Daylesford and District Historical Society. https://daylesfordmuseum.net/
