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Sir John Eardley-Wilmot took office as Lieutenant-Governor of Van Diemen’s Land on 21 August 1843.[1] He had been in the job a little over a week when, on the evening of Tuesday 29 August, the escaped convict Martin Cash shot dead a Hobart Town convict constable in the street outside a public house. Three years later, in April 1846, Wilmot was recalled in disgrace. The two episodes look unconnected but they are not. The same judge sits at the centre of both, and the manner in which Wilmot handled the first tells you almost everything about why the second finished him.
A constable, a bushranger, and a coroner
National Library of Australia, 26313837
Peter Winstanley[2] was a convict constable, working off the remainder of his own sentence as a prisoner of the Crown, when he was called out into Brisbane Street on the strength of a shout of ‘stop thief’ and was shot at close range. He died the following Thursday morning.[3] Martin Cash — absconder from Port Arthur, colonial folk-villain, the most wanted man in the colony — was run down, beaten half-senseless with the butt of his own pistol, and dragged off to the Penitentiary still fighting.
Image: TAHO SC195-1-11
The inquest into Winstanley’s death was held at the gaol on Friday 1 September, so that Cash could be present without being marched through the streets.[4] It was conducted by T.W.N. Champ, Coroner for Hobart — a name of some interest to anyone tracking Champ’s own career, since it places him presiding over a bushranger’s committal a full thirteen years before he became the colony’s first Premier.[5]
Champ addressed Cash directly, had him listen to the evidence, and let him put questions to the witnesses if he wished. Cash mostly declined. After six hours the inquest jury returned a verdict of “wilful murder” against Cash alone, and he was committed for trial on the coroner’s own inquisition.[6]
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Lawrence Kavenagh, Cash’s associate and fellow Port Arthur absconder, was not part of that verdict. His committal came from a separate matter entirely: the armed robbery of a Launceston mail coach near Epping Forest in July, for which he was tried on 7 September before Mr Justice Algernon Sidney Montagu and found guilty.[7] It is worth being precise about this, because the two men’s names are often run together in later retellings as though they were both convicted of Winstanley’s murder. They were not – only Cash was.
Sentenced together, on different grounds
On Saturday 16 September, Cash and Kavenagh stood in the dock together to be sentenced. Justice Montagu addressed Cash first, at considerable length, working through the legal question that had occupied him since the trial — whether Winstanley, chasing a suspected felon through the streets on the strength of a ‘stop thief’ cry and no formal warrant, had been acting with lawful authority. Montagu concluded that he had, that the jury had rightly found wilful murder, and ‘that duty I have this day to perform’: Cash was sentenced to hang on Monday morning, 18 September, his body afterwards to go to the surgeons for dissection.[8]
Kavenagh was sentenced immediately after, in harder terms if anything — Montagu ran through his record since transportation from England at fourteen, his years at Norfolk Island, a flogging of 150 lashes, a prior conviction in Sydney for attempting to shoot the New South Wales Colonial Secretary — before sentencing him to death as well, ‘within a very few days’ of Cash. But Montagu drew one careful distinction between the two men even as he condemned them both: Cash’s offence was murder, over which ‘the Executive Council has [no] power of mitigation… which can only be done by Her Majesty the Queen, the fountain of mercy.’ Kavenagh’s offence — highway robbery — was not murder, and so, Montagu noted, ‘the Executive Council has power of mitigation’ even as he begged Kavenagh not to expect it.[9]
Nobody could have expected what came next.
The furore
Within days, the new Governor exercised exactly the mitigating power Montagu had just described. The Launceston Examiner of 27 September reported it as a genuine shock: ‘the general public feeling of surprise, not unmingled with openly expressed dissatisfaction, at a result which few, if any, seem to have entertained.’ The paper’s comparison was pointed — James Boutell, hanged that May for robbing a servant of a Mr Kemp’s on Constitution Hill, a far slighter record than Kavenagh’s, and no reprieve for him.[10]
Wilmot let the public criticism run for a fortnight before answering it publicly, in his own words, at a dinner of the Midland Agricultural Association on 13 October. It is worth quoting him directly, because his account overturns the tidy version of this story — that a merciful new Governor rode in and spared two bushrangers from a vindictive old judge:
‘I allude to Cash, recently rescued from the jaws of death. That was the act of the judge himself, and I was in no way whatever concerned in it… I, myself, was astonished at his reprieve… I reprieved Kavenagh ten minutes before the time appointed for his execution.’[11]
Image: Trove
So the two reprieves were not the same act, and not even the same author. Whatever spared Cash from the Monday morning gallows — most likely Montagu’s own doubts about the question of the constable’s he had spent so long weighing at trial — Wilmot explicitly disowns it. Kavenagh’s reprieve he claims outright, at the literal last minute, and defends on a narrow, deliberately unglamorous legal ground: Kavenagh had been convicted of unarmed highway robbery and nothing else. Whatever the public believed about his wider career as a bushranger, he had not been tried or convicted for it, and Wilmot was not willing to hang a man for crimes a jury had never heard: ‘a dangerous and unconstitutional power… to try a man for one offence, and punish him for others.’[12]
Cash and Kavenagh were still sharing the same Hobart gaol cell block five months later, in February 1844, when the pair got up what the Colonial Times called ‘a little melodramatic episode’ — Cash abusing the soldiers on duty, Kavenagh moving to strike the gaoler from behind, both of them ending the day in irons.[13] Cash’s own fate, meanwhile, had gone over Wilmot’s head entirely: as a murder conviction, it could only be settled by the Queen in Council in England, and as of early October it was still sitting there, unresolved.[14]
Two years on, a familiar name
By 1845, Wilmot had a harder problem than an angry newspaper. He had come to the colony without his wife, Lady Eliza Eardley-Wilmot, who remained in England. Hobart’s Government House under an unaccompanied widower-in-all-but-name became, in one historian’s phrase, ‘vulnerable to any suspect charges of inappropriate sociability.’[15] The colonial auditor George Boyes kept a detailed diary of the period, and it’s filled with exactly that kind of gossip — Wilmot’s fondness, as one visitor’s wife put it, “for the younger part of the fair sex,” an arm around the shoulders of house guests, “innocent familiarities” that Boyes clearly thought less innocent than advertised.[16]
While most of this was groundless, one rumour was not. In April 1845, William Sorell — registrar of the Supreme Court, son of the earlier Lieutenant-Governor of the same name — came to Wilmot with a report reaching him about Sorell’s eighteen-year-old daughter, Julia: that Wilmot had taken her to New Norfolk, where the two of them had stayed the night before returning. Sorell had heard it from Judge Algernon Sidney Montagu.[17]
It is the same Montagu. The judge who had sentenced Cash and Kavenagh to death in 1843, and whose own act — on Wilmot’s own account — had saved Cash from the gallows, was now the source of the specific, named allegation that would help end Wilmot’s career. Wilmot confronted him, tried to get the name of Montagu’s own informant, and failed; he considered referring the matter to England and did not. After his eventual dismissal, Wilmot demanded the Legislative Council investigate Montagu’s conduct over it. Bishop Nixon — of all people, since Nixon’s own letters to London had done real damage to Wilmot’s reputation on the separate, general charge of immorality — testified that the Sorell claims specifically were utterly groundless. The Catholic Bishop Willson said the same: he had never heard a word to ‘offend the most delicate ear.’[18]
The recall
The official reason for Wilmot’s recall in April 1846 was mismanagement of the convict probation system, and there was a real administrative case to be made for it — the colony was in economic collapse, and the Legislative Council’s non-official members, remembered afterwards as the ‘Patriotic Six,’ had just walked out over it.[19] Privately, though, the new Colonial Secretary, William Gladstone, wrote to tell Wilmot that rumours concerning his private life had rendered him unfit for further employment.[20] Those rumours had reached London mainly through Bishop Nixon, via a mutual friend, and through Under-Secretary James Stephen, who had separately been alarmed by an informant’s lurid (and entirely unrelated) account of vice in the convict probation gangs generally — nothing to do with Wilmot’s own conduct, but folded into the same picture of a colony morally adrift under his watch.[21]
Image: Monument Australia
Wilmot asked for the names of his accusers and a chance to answer them. He got neither. He died on 3 February 1847, still protesting he was ‘the victim of the most extraordinary conspiracy,’ his name only formally cleared by the House of Commons some months after his death.[22] Historians since have been unable to find any actual evidence that he did what he was accused of. As his most recent biographer puts it bluntly: ‘It is impossible to know if Eardley-Wilmot committed adultery while in the colony… no convincing evidence in support of any indiscretion has been located.’[23]
An afterlife nobody in Hobart could have guessed at
Julia Sorell survived the rumour that used her name. She married Thomas Arnold — son of the Rugby School headmaster, brother of the poet Matthew Arnold — who came out to Van Diemen’s Land as a school inspector; their eldest daughter, Mary Augusta, was born in Hobart in 1851, before the family left for England in 1856. Mary Augusta grew up to become Mrs Humphry Ward, one of the best-selling English novelists of her generation. Her younger sister, Julia, married Leonard Huxley and became the mother of Julian Sorell Huxley and Aldous Huxley.[24] The middle name is not a coincidence.
The reprieve of a bushranger and the ruin of a Governor share more than a judge. They share, at two removes, a grandmother to a bestselling Victorian era novelist and a great-grandmother to Aldous Huxley — which is as good a note as any on which to leave a story that began with a shot fired in Brisbane Street and a coroner’s inquest at the Hobart gaol.
[1] Sir John Eardley-Wilmot, 1st Baronet — https://en.wikipedia.org/wiki/Sir_John_Eardley-Wilmot,_1st_Baronet
A note on his monument: A monument to Sir John Eardley Wilmot (1783-1847) is situated in St David’s Park (previously a cemetery), Hobart. Wilmot was Lieutenant-Governor of Van Diemen’s Land (ie. Tasmania) between 1843 and 1847 and died of an undiagnosed illness after being removed from office. The multi-tiered cenotaph, sometimes referred to as a mausoleum, was raised by public subscription in 1850 and placed over his remains. It was designed by William Porden Kay (1809-1870). It is in the Gothic style and features the pointed arches, blind arcading, and elaborate stonework often associated with ecclesiastical architecture. His remains were later exhumed and returned to England.
[2] https://npm.org.au/honor-roll/peter-winstanley/
[3] Colonial Times (Hobart), 5 September 1843, p.3, “Apprehension and Committal of Martin Cash — Coroner’s Inquest” — https://trove.nla.gov.au/newspaper/article/8753942
[4] An 1843 inquest was very different to what it is today. It was heard before a jury of citizens (here Mr Rout and six others), and that jury’s verdict did the work a modern committal hearing does: a finding of “wilful murder” against a named person sent that person directly to trial, with no separate step required, exactly as happened to Martin Cash. English coronial juries kept this power — in effect, the power to indict — until the Criminal Law Act 1977, prompted partly by a 1975 inquest jury naming Lord Lucan in the death of his children’s nanny, Sandra Rivett. Modern Tasmanian inquests have gone further still: under the Coroners Act 1995, they are held by a coroner (a magistrate) sitting alone, without any jury at all (s.55), and the coroner is expressly barred from finding, or even suggesting, that a named person is guilty of an offence (s.28(4)). A modern coroner who suspects a crime has occurred refers the matter on; a colonial one, sitting with his jury, could hand down the accusation himself. Coroners Act 1995 (Tas), ss.28(4), 55 — https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1995-073; “Coroner’s jury,” Wikipedia — https://en.wikipedia.org/wiki/Coroner%27s_jury ↩
[5] Hobart Town Advertiser, 5 September 1843, p.4 — https://trove.nla.gov.au/newspaper/article/264593940
[6] TAHO SC195-1-11 Inquest 929 https://libraries.tas.gov.au/Digital/SC195-1-11/SC195-1-11-929_1
[7] Courier (Hobart), 15 September 1843, p.2, “General Gaol Delivery — Trial of Lawrence Kavenagh” — https://trove.nla.gov.au/newspaper/article/2952126
[8] TAHO SC32-1-5 p. 46 https://libraries.tas.gov.au/Digital/SC32-1-5/SC32-1-5P046
[9] Hobart Town Advertiser, 19 September 1843, p.2, “Sentence of Death on Cash and Kavenagh” — https://trove.nla.gov.au/newspaper/article/264594172
[10] Launceston Examiner, 27 September 1843, p.3 — https://trove.nla.gov.au/newspaper/article/36234753
[11] Courier (Hobart), 13 October 1843, p.2, reported remarks to the Midland Agricultural Association — https://trove.nla.gov.au/newspaper/article/2952014
[12] Courier (Hobart), 13 October 1843, p.2, reported remarks to the Midland Agricultural Association — https://trove.nla.gov.au/newspaper/article/2952014
[13] Colonial Times, 20 February 1844, p.3 — https://trove.nla.gov.au/newspaper/article/8754584
[14] Hobart Town Advertiser, 6 October 1843, p.3 — https://trove.nla.gov.au/newspaper/article/264594502
[15] L. Mickleborough, Victim of an “Extraordinary Conspiracy”? Sir John Eardley Eardley-Wilmot, Lieutenant-Governor of Van Diemen’s Land 1843–46 (PhD thesis, University of Tasmania), p.296, citing E. Gilchrist, “The Victim of his own Temerity?”, pp.151–61, 250–54.
[16] ]: Mickleborough, pp.279–80, citing G.T.W.B. Boyes’ diary, RS 25/2 (7)–(8), Tasmanian Archive and Heritage Office.
[17] Mickleborough, pp.281–82, citing Boyes’ diary, 13 April 1845.
[18] Mickleborough, pp.281–82, citing Hansard, Third Series, Vol. XCIII, 7 June 1847, cols 200–01.
[19] Mickleborough, ch.9 (“Politics of rumour and scandal”); Australian Dictionary of Biography — https://adb.anu.edu.au/biography/eardleywilmot-sir-john-eardley-2015
[20] Mickleborough, pp.281–82, citing Hansard, Third Series, Vol. XCIII, 7 June 1847, cols 200–01.
[21] Mickleborough, pp.298–300, citing CO885/2/11 and Sir James Stephen’s diary, Add 7511 (AJCP M2591).
[22] Friends of Brockley and Ladywell Cemeteries — https://www.foblc.org.uk/2023/03/the-scandal-that-ended-governor-eardley.html
[23] Mickleborough, p.296.
[24] Wikipedia, “Julia Huxley” — https://en.wikipedia.org/wiki/Julia_Huxley
Wikipedia, “Mary Augusta Ward” — https://en.wikipedia.org/wiki/Mary_Augusta_Ward
family relationship cross-checked against Mickleborough, pp.281–82.
