1861: Robert Thomas Palin, under Ordinance 17 Victoria Number 7

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On this date in 1861,* Western Australia’s Ordinance 17 Victoria Number 7 claimed its one and only victim.

Implemented early in Western Australia’s convict era as the influx of criminals made existing settlers jumpy, this law made a wide variety of violent but non-fatal crimes potentially subject to the death penalty when committed by an escaped fugitive.

Robert Thomas Palin was a newcomer to Australia, having debarked from a convict ship only in January 1860. Despite his burglary conviction back in the mother country, he was an exemplary prisoner and earned his ticket of leave (a sort of limited furlough). He even kept a house in Fremantle and took lodgers.

In May 1861, he threw every away every bit of good will and more by burgling another Fremantle home. A Mrs. Susan Harding awoke in the moonlight to find this invader looming over her bed — and he greeted her in that classic of convict argot, “Your money or your life.”

Mrs. Harding didn’t have any — in the words of her testimony on July 3:**

He repeatedly told me to “hush.” He took hold of me by the arm and pulled my hair about, and then pulled the bed clothes down, and felt about the bed. I was afraid he was about to commit some assault — he touched my night dress, not to move it, and then I got so dreadfully alarmed, that I jumped out of bed on the opposite side of the bed. I went to my looking-glass drawer, and took out a watch and chain, which I handed him, and prayed him to leave me.

Palin did so.

Although terrifying for Susan Harding, the encounter did not result in any injury; as Palin’s boot-prints were easily followed back to his own house, even her watch and chain were recovered. To send this offender to the gallows seemed like a punishment out of the wrong century, as Perth’s Inquirer and Commercial News editorialized (June 10):

Burglary attended with violence, however brutal that violence might be, so long as it did not result fatally, is not punished with death in the United Kingdom.

… What was the violence on this occasion? Catching hold of the arm of the principal witness; and it does not appear from the evidence that even the grasp was violent, nor was it necessary to be so according to the acceptation of the meaning of the word laid down for us. It was propounded by the Chief Justice that, strictly speaking, merely laying a hand upon a person, under such circumstances, constituted violence. Is this truly the spirit of the law? …

Palin might have taken everything in that house, yet he would not have been hung. He might have threatened with the presumed pistol, have gesticulated, have stormed and terrified the occupant of the chamber almost to the verge of insanity, and yet he would not have been hung, but he touched her arm, and death is the penalty. There is something horrible in this. But there is something more fearful still when we further look into the matter and find that had he committed any enormity, even to the shedding of blood, he could not have had awarded to him a more extreme measure of punishment. …

[It is our] fervent hope that never again may the pages of our Colonial History be inscribed with so terrible a record; that never again will it be our province to allude to an event of so dreadful a character as that which has lately passed away.

The fervent hope was realized. In the only other case where Ordinance 17 Victoria Number 7 was used to secure a death penalty for an ordinarily non-capital crime, the sentence was commuted.

* As of this writing, Wikipedia avers July 6. References from 1861 newspapers make it clear that this is erroneous. (example, another).

** Yes, that’s six days before the execution occurred.

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