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Onus v Minister for the Environment and Aboriginal cultural heritage protection – By Sophie Howe
The execution of Michael Magee
DR AUKE ‘JJ’ STEENSMA, BARRISTER & SOLICITOR, STEENSMA LAWYERS1
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I say, I shot the Sherriff, oh Lord And they say it is a capital offence, yeah I Shot the Sheriff Bob Marley 19732
On Wednesday 2 May, 1838, an Irish Catholic by the name of Michael Magee, would have the dubious and ignominious honour of being the first person executed in South Australia. Aged 25, Magee would die near Montefiore Hill, ‘just below the junction of Mills and Strangways Terrace’,3 at the hands of an incompetent executioner.
His crime? Magee was ‘found guilty of shooting at with intent to kill, Mr Samuel Smart, the Sheriff of the province’,4 after a failed attempt to rob the hut of the Sheriff.
‘Jack Ketch’, the name was given to executioners of the time, was almost comically dressed in clothes that were packed with padding and a large protruding hump on his back. His face, it is said, was covered ‘with a horrible hand-made mask painted white around the eyes’,5 to prevent his identification.
At the time, South Australia had no state-appointed executioner. On the day of the execution, despite £10 being offered to anyone who would conduct the execution, no one took up the offer. It is suspected that eventually, a cook of the South Australian Company, who was said to be a person known to Magee, was convinced into taking the appointment of ‘Jack Ketch’.6 He reluctantly did so.
The South Australian Gazette and Register noted; ‘The unfortunate man was perfectly resigned to his fate, and had to all appearance made the best use of the short time allotted to him’ and ‘during the whole time, he envined the greatest firmness’.7
The reality of what happened that day on Montefiore Hill is far grimmer…
and would proclaim the province of South Australia. As the colony started to grow, it did so without a Gaol. The Adelaide Gaol would not be built and operated until 1841. South Australia, after all, was a free state, of people who came as migrants, and not transported convicts. The colony did not require infrastructure to house the ‘Prisoners of Mother England’ that had been transported to the shores of Terra Australis.
Any petty offenders were taken aboard HMS Buffalo. HMS Buffalo was moored in Glenelg, and the perpetrators were placed in irons and placed in the hold. Any more serious offenders were sent to the colony of Van Dieman’s Land, to serve their time or punishment at Port Arthur.
However, in 1837, HMS Buffalo returned to England and therefore denying the fledgling colony a gaol. To facilitate the need for housing criminals, a series of tents with set up on the banks of the Torrens River. To prevent the prisoners from escaping, they were chained to logs.
By this stage, throughout the colonies of Australia, there was an increasing number of escaped convicts, roaming the settlements, and often undertook a violent ‘robbery under arms’ and upon completing their task, would flee into the vast expanse of bush.
South Australia however, did not suffer the scourge of bushrangers as the other colonies had. No gangs were roaming the Adelaide plains, stagecoaches being robbed, though there was petty crime, but not undertaken by the stereotypical bushranger.
However, local settlers of the fledgling state accused the perpetrators of the pestilence of petty crime on:
an ‘illegitimate’ class who threatened to destroy their utopian dream. Members of this ‘class’, which included escaped or emancipated convicts, associates or anyone tainted by convictism like runaway sailors and those living at whaling stations such as Encounter Bay on Fleurieu Peninsula.8
In May, 1837, pursuant newly legislated Supreme Court Act (1837), the colony’s first Sherriff, Samuel Smart, a solicitor,9 was appointed by Governor Hindmarsh. The act ‘provided that the Court should have ministerial and other officers as might be necessary for the administration of justice in the Court and for the execution of its judgments and other orders’.10
Samual Smart had been a solicitor in Van Dieman’s Land, and by some accounts; ‘zealously pursued escaped convicts and ticket-of-leave men for Van Diemen’s Land (Tasmania), who’d terrorised whole Adelaide neighbourhoods’.11 The Bunyip newspaper of Gawler later wrote of him; ‘Mr. Smart was well-known here as being a co-trustee with the late Mr Phillips for the Gawler Special Survey’.12
THE CRIME OF MICHAEL MAGEE
The crime that Michael Magee committed was that he and two other felons, one identified as Morgan, broke into the hut of Sherriff Smart. Sherriff Smart would be targeted by those described as ‘three “Vandemonian” convicts in Adelaide’.13
As they committed the crime, Michael Magee discharged his musket pistol at Sherriff Smart. The South Australian Chronicle wrote that ‘he failed in his object, the ball having merely grazed Mr Smart’s ear, and done him providentially no further injury than a few gunpowder marks on his left cheek’.14
Magee and the other were subsequently captured. Morgan escaped and would
later be captured at the whaling station at Encounter Bay, and returned the trial. He would then be sent to Van Dieman’s Land, to serve his time and punishment at Port Arthur.
Governor John Hindmarsh was outraged by what had occurred. He would establish what was to be the first-ever, not just in Australia, but in the world, a ‘centrally organised, armed, mobile, uniformed and paid police force’.15
On Thursday, 12 April, 1838, Michael Magee was found guilty and sentenced to death, as he had committed the act. Governor Hindmarsh felt it prudent that Michael Magee be publicly hanged as ‘a forceful display of emigrant resolve’,16 and their first task would be ‘to preserve order at the public hanging of Michael Magee’.17
The site of the execution chosen was some 100 yards from the iron stores in North Adelaide.18 The reason for this location was simply that the tree that they had chosen, had ‘a thick, horizontal bough over which the noose could be thrown, and because it was the only such tree on government land’.19
Unfortunately, the fledgling colony did not have an executioner to undertake the act. A sum of £5 was offered for any person taking the role of ‘Jack Ketch’. No person came forward. After referring to the State charter, it was noted that if a ‘Jack Ketch’ could not be appointed; the role should fall onto the colony Sherriff, Samuel Smart. It was decided that if Sheriff Smart were to execute Michael Magee, the person who had attempted to kill him, it ‘would have been unseemly’.20 Later the sum rose to £10. Again no one came forward. The task would eventually, it is suspected, fall on an acquaintance of Magee, a cook of the South Australian Company.
Making matters even worse for the young Irish Catholic Magee; the fledgling state was without a Catholic priest, and therefore there would be no Catholic Priest in attendance. Magee agreed that attendance would be made by the colony Chaplain a person of the Catholic persuasion.
WEDNESDAY 2 MAY 1838 - THE BOTCHED EXECUTION OF MICHAEL MAGEE
Wednesday, 2 May, 1838, was the day of the execution. Many of the locals, it is estimated that between 500 and 1000 people, depending on the accounts which you read. The crowd, including women and children, made their way to the site on the bank of the Torrens River, to witness the spectacle of the demise of Magee, and have a picnic on the river bank.
Just before 9 AM, the crowd witnessed the ‘execution procession’ surrounded by Governor Hindmarsh’s recently established mounted police. Two horses pulled the carriage. Upon the carriage; ‘sat a timber coffin - and upon the coffin sat Magee’.21 Sitting next to him was ‘Jack Ketch’ in his grotesque outfit.
As Magee, was taken to the place of execution, he could only be; ‘attended by Mr Phillip, a gentleman of the Catholic persuasion, and the Rev. C. B. Howard, the Colonial Chaplain’.22 He remained in constant prayer till he reached the site of his execution.
After ascending the makeshift scaffolding on the carriage, Magee asked if he could address the crowd. He stated that he was guilty and accepted his fate. Magee then uttered that he was not an escaped convict from Van Dieman’s Land, but had come to the fledgling state as a free man, ‘as any man present’.23 The South Australian Gazette and Colonial Register noted that; ‘during the whole time, he envined the greatest firmness’.24 As Magee spoke ‘Jack Ketch’ was ‘busied in adjusting the rope and greasing it up with his filthy fist’.25
‘Jack Ketch’ then placed the noose over the head of poor Magee and put it on the left side of his face, near the ear. A cap was placed over his face, and the two horses were given some gentle encouragement with a whip, and the carriage began to roll forward. As it rolled forward, Magee slid ever so slowly off the wagon.
The noose, not being firmly placed, slipped and came to rest under his chin. Magee began to struggle, and it was clear to ‘Jack Ketch’ that the poor wretch’s neck was not broken.
Magee left hanging and swinging, managed to loosen the binds around his hands and proceeded to attempt to relax the noose around his neck and relieve the constriction. He began to scream;’ Oh God! O Christ! Save me!’.26 ‘Jack Ketch’ jumped down off the carriage, not knowing what to do, or stop Magee’s pitiful screaming, ran to his horse, got on and rode into the distance, still dressed in clothes that were packed with padding and a large protruding hump on his back. His face, covered ‘with a horrible hand-made mask painted white around the eyes’,27
The crowd angrily cried to the mounted police who were present at the execution, too; ‘fetch him back!’. They immediately gave chase.
Magee desperately tried to save himself and screamed ‘Lord save me! Christ have mercy upon me!’.28 The horrified crowd screamed to the Marines that were also present; to shoot him and put him out of the agony and misery that he was going through, or cut him down.
In the meantime, the mounted police caught up with ‘Jack Ketch’, and he was returned to the execution site, to witness the ‘execution jig’29 of poor Michael Magee. Not knowing what to do, ‘Jack Ketch’ ran to where Magee was hanging, jumped and grabbed his legs and shoulders, pulled down as hard as he could, in an attempt to asphyxiate him, in what the South Australian Chronicle described as; ‘choking him to death in mediaeval style’.30
Magee continued to struggle. Disturbingly; Magee took about 13 minutes31 to succumb to what was a botched execution.
The crowd grew upset, angry and directed their disgust at the methodology of ‘Jack Ketch’. The South Australian Gazette and Colonial Register of the day wrote; ‘the executioner having performed his part in rather a slovenly manner’.32
The other protagonist of this tale; Mr Smart, the Sheriff, stood up and began to convey to the angry crowd, with the assistance of the mounted police and Marines. Many stayed and watched as Michael Magee’s lifeless body was cut down, and ‘then carried on with their picnic’.33
THE FAMOUS DRAWING BY JOHN SKIPPER
In the State Library of South Australia, there is a pencil sketch, drawn by John Michael Skipper (1815-1883). The picture that graces the beginning of this paper is known as; ‘First Execution in South Australia, in 1838, for shooting Sheriff Smart’, and it is speculated that Skipper had made the sketch at the execution, as his handiwork is engrossed with ‘Sketched on the ground by J. M. Skipper’.34
The sketch depicts the executioner, complete with mask and hump, on a ladder, as Magee awaits atop of the carriage with his arms bound between the shoulders and elbows. The executioner ‘was busied in adjusting the rope and greasing it up with his filthy fist’.35
Permission was sought and granted for the use of the sketch for this paper.
PERHAPS THE ULTIMATE IRONY
The State Library of South Australia walking tours state:
There is some speculation that the body of Michael Magee was buried in what is now the bottom north-east corner of the grounds of Government House and it is possible to walk down Kintore Avenue and look over the fence into that corner of the grounds.36
The ultimate irony… Young Magee, the Irish Catholic, would find himself in the presence of English Lords and gentry, and fine South Australian Governors, perhaps greeting them with a cheeky; “It’s a fine day, begorrah (by God)”. I would like to think it correct. B
Endnotes 1 Dr Auke (JJ) Steensma, BBus (Log Mgt), JD,
P.Cert Arb, G.Cert Constr Law, GDLP, MPM,
MMR, PhD
PRI Arb 3, Adj (WA & NT), Med, NMAS,
MAICD.
Dr Steensma is a Barrister and Solicitor, specialising in Construction Law and ADR at
Steensma Lawyers in Port Adelaide. He is an
Arbitrator (Gde 3), Adjudicator (WA & NT),
Mediator (NMAS), and Expert Determination
Practitioner. He has been a member of the
LS-SA ADR committee since 2017. He was conferred as a PhD in Business Law in Feb 2019.
‘This paper is dedicated to my friend and mentor, the late Laurie Edmund James AM (12 April 1942 – 20 March 2020). As a lawyer, arbitrator, adjudicator, and mediator; you always had the time to offer sound counsel and wisdom to me as I grew. Thank you old friend, you shall be missed.’ 2 BobMarley, I shot the Sheriff, (Directors Cut), by
Bob Marley and the Wailers, released 1973, by the Tuff Gong – Island label, on the sixth album released by Bob Marley and the Wailers;
Burnin’. Bob Marley (6 February 1945 – 11 May 1981), the great Jamaican reggae musician, and
Rastafarian. 3 Allen Tiller, ‘Michael Magee – Adelaide’s first Execution’, (‘The Haunts of Adelaide’ website), <https://hauntedadelaide.blogspot. com/2014/04/michael-magee-adelaides-firstexecution.html?fbclid=IwAR2uAk0Mh_jiuK4k-
UXJJ9yJBE8KB8eaVgAKcU4sIzphUYT477-
ZeFfbtgs>. 4 The South Australian Gazette and
Colonial Register - 19 May 1838, South
Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 5 The Observer, ‘‘Horrific’ end to execution’,
The Observer (Gladstone, QLD, 9
July 2018, an edited extract from Last
Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 6 Alison Painter, ‘2 May 1838 The Hanging of Michael Magee’, Professional Historians
Australia (South Australia), (Adelaide, South
Australia), <http://www.sahistorians.org. au/175/chronology/april/2-may-1838-thehanging-of-michael-magee.shtml>. 7 The South Australian Gazette and
Colonial Register - 19 May 1838, South
Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 8 SA History Hub, ‘Bushrangers’, Website < http://sahistoryhub.com.au/subjects/ bushrangers>. 9 The Bunyip, ‘The Late Mr. Samuel Smart’,
The Bunyip Newspaper, (Gawler South
Australia, Saturday 25 March 1865, p4). <https://trove.nla.gov.au/newspaper/ article/97205674?searchTerm=samuel%20 smart&searchLimits=>. 10 Association of Queensland Bailiff’s, ‘South
Australia History’, (Website), <http://www. bailiff.com.au/sa/sa-bailiff-history.htm>. 11 Adelaide AZ, ‘Michael Magee hanged in botched grisly affair in 1838 after shooting Samuel Smart,
South Australia’s first sheriff’, Website. <https:// adelaideaz.com/articles/michael-magee-hangedin-botched-grisly-affair-in-1838-after-shootingthe-first-sheriff-of-south-australia>. 12 Ibid. 13 Adelaide AZ, ‘Michael Magee hanged in botched grisly affair in 1838 after shooting Samuel Smart,
South Australia’s first sheriff’, Website. <https:// adelaideaz.com/articles/michael-magee-hangedin-botched-grisly-affair-in-1838-after-shootingthe-first-sheriff-of-south-australia>. 14 The South Australian Chronicle, ‘The Death
Penalty in South Australia’, The South Australian
Chronicle (Adelaide, SA, Saturday, 1 September 1894, page 7), <https://trove.nla.gov.au/newspaper/ article/92313628?searchTerm=Michael%20 magee&searchLimits=>. 15 SA History Hub, ‘Bushrangers’, Website < http://sahistoryhub.com.au/subjects/ bushrangers>. 16 Ibid. 17 Ibid. 18 The South Australian Gazette and
Colonial Register - 19 May 1838, South
Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 19 The Observer, ‘‘Horrific’ end to execution’,
The Observer (Gladstone, QLD, 9
July 2018, an edited extract from Last
Woman Hanged by Caroline Overington,
published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 20 Allen Tiller, ‘Michael Magee – Adelaide’s first
Execution’, (‘The Haunts of Adelaide’ website), <https://hauntedadelaide.blogspot.com/2014/04/ michael-magee-adelaides-first-execution. html?fbclid=IwAR2uAk0Mh_jiuK4k-UXJJ9yJB
E8KB8eaVgAKcU4sIzphUYT477-ZeFfbtgs>. 21 The Observer, ‘‘Horrific’ end to execution’,
The Observer (Gladstone, QLD, 9
July 2018, an edited extract from Last
Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 22 South Australian Record (SA: 1837 - 1840) –
Wednesday, 12 December 1838, South Australian
Record, (12 December 1838, South Australia, page 125), <https://trove.nla.gov.au/newspaper/ article/245932171?searchTerm=Michael%20 magee&searchLimits=>. 23 The South Australian Gazette and
Colonial Register - 19 May 1838, South
Australian Gazette and Colonial Register (19 May 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=> 24 The South Australian Gazette and
Colonial Register - 19 May 1838, South
Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 25 Geni, ‘About Michael Magee’, website, (Geni, a
MyHeritage company), < https://www.geni.com/people/Michael-
Magee/6000000081545786822>. 26 The Observer, ‘‘Horrific’ end to execution’,
The Observer (Gladstone, QLD, 9
July 2018, an edited extract from Last
Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 27 The Observer, ‘‘Horrific’ end to execution’,
The Observer (Gladstone, QLD, 9
July 2018, an edited extract from Last
Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 28 Ibid. 29 ‘Execution jig’ was a ghastly term used to describe the motions of a dying person, where their deaths were not immediate, and the long drawn out death by asphyxiation, causes the dying person to kick out and wriggle in an attempt to gain breath. 30 The South Australian Chronicle, ‘The
Death Penalty in South Australia’, The
South Australian Chronicle (Adelaide,
