The Coroner found that the death William Hawthorn of Brighton South had been caused by a gun shot wound wilfully inflicted, but there was insufficient evidence to determine the perpetrator. Nevertheless, James Hawthorn, William’s brother, was charged with murder by the police and taken before Walstab and Reid at the Brighton Court. There one justice of the peace ruled there was no prima facie case presented by the prosecutor and the prisoner should be discharged, but the second justice thought otherwise and committed the prisoner to stand trial for murder. Initially the trial took place at the Central Criminal Court at Melbourne before Justice Holroyd on June 17, 1884, who summed up the case three days later in upwards of two hours. Despite the judge’s advice the jury failed to agree so James Hawthorn was remanded for a further trial. This new trial commenced on July 23, 1884 before the Chief Justice of Victoria, the Hon William F Stawell. On this occasion the jury, after deliberating for over an hour, brought in a verdict of guilty accompanied by a plea for mercy. Justice Stawell in pronouncing the sentence of death indicated the jury’s plea of mercy was one in which he could not concur. James Hawthorn was hanged at ten o’clock on August 21, 1884 at the Melbourne gaol.
Melbourne Gaol, c1865.
William and James Hawthorn sailed from Liverpool on January 11, 1865 on the Thunderbolt and arrived in the colony of Victoria in May of that year. William was twenty three years of age and James twenty one. Together they took up residence in the Shire of Moorabbin and farmed ten acres of land which they jointly purchased. In addition to erecting a cottage and cultivating the land as market gardeners they undertook road making contracts for the Shire of Moorabbin.  Later an additional thirty one acres of land was jointly purchased by the brothers but conveyed in William’s name because he believed it saved expenses.
In 1880 James married and moved to a cottage he built on his half of the 31 acres. There he worked as a market gardener, grazed cattle on his half of the original ten acres, and at times joined his brother in contracting work. William, remaining a bachelor, had also prospered, employing several men in his contracting business. Newspaper reports after William’s death portrayed him as the more successful of the two brothers, the steady breadwinner who by his thrift and industry as a small contractor had saved sufficient money to purchase property. James was portrayed as being altogether idle, reckless and drunken. The Brighton Southern Cross correspondent attacked these reports published in the daily press, pointing out that although James was occasionally reckless and indulged in sprees he was overall a thoroughly industrious and hard working person who had contributed to the purchase price of the properties.  This view was supported by 42 fellow gardeners and residents in Brighton South who saw James as a quiet, kindly-disposed hard-working man, whose mind was excessively overwrought with extraordinary disappointment and loss 
The trouble between the brothers arose over the question of ownership of the land. James took the matter up in the court where Justice Molsworth dismissed the suit saying that William should not hold all the land in his name, but as the land was already divided between them, they should settle the matter without recourse to the courts.  The Argus report suggested William held under mortgage certain deeds belonging to James which he refused to give up, and he refused to consent to the sale of the property in question unless he was securely guaranteed payment of the money owing to him. This deadlock still further embittered the feeling between the two men, it was claimed.  Their father, who indicated in his petition for mercy that the brothers were on friendly terms and their solicitors were completing negotiations to implement the recommendations of the judge, did not support this lingering resentment of one brother towards the other. William was to buy James’ interest in the land, £120 of which was to be settled on James’s eldest son, and James was to leave the property with his family and work with his wife’s brother. 
On the night of March 21, 1884 William was asleep in his bedroom together with his nephew. His mother and father, in an adjoining bedroom separated by an inch partition, were the only other occupants of the house in Bluff Road, Brighton South. Mrs French, a servant, was in her hut about 60 feet from the house and seven or eight men were asleep in an outhouse about 70 feet away. The assailant approached the house and through the unglazed window fired the shot that smashed into William’s right shoulder as he was lying on his back. William’s initial reaction was to fall to the floor, but after seeing a piece of burning wadding on the bed, and realizing he had been shot, he called his nephew to get his mother. “I knew I was shot because I smelt the powder. I did not hear the report or noise of any kind, I simply, felt the blow on my shoulder”, he said. 
The police and a doctor were called. Doctor O’Hara attended to the wound which was caused by a gun loaded with No 6 shot, the greater portion of which had entered the arm near the shoulder and penetrated about seven inches along the back. Constable Oliver stationed at Picnic Point quickly responded to the call for assistance. He was fortunate to find two Queensland aboriginal trackers at Russell Street who within two hours were following the imprints of the assailant’s tracks from outside the window where the shot was fired. The tracks led through an acacia fence to James Hawthorn’s house.
At the house Constable Oliver took possession of a pair of boots and an old long double barrelled gun which he believed had recently been discharged even although there was sand in the muzzle. Plaster casts were made of several tracks which matched the imprint of the boots. The trackers pointed out the spot where a gun was thrust into sand and the window sill of William Hawthorn’s house where a firearm was rested in order to get a steady aim.  After the preliminary investigations James was taken to Middle Brighton Police Station where he was charged with shooting his brother with intent to murder.
The coroner’s jury did not return a verdict against James Hawthorn, but he was subsequently committed for trial at the local court. At the criminal Sessions, on 20th June, the jury failed to agree, but at the following session he was again tried, convicted, and sentenced to death.  The judge on the latter occasion pointed to the estrangement that existed between the brothers due to the quarrel over property, the arguments between them that had been witnessed by others, the heavy drinking that James had engaged in with companions on the day of the murder, the recently discharged gun and the tracks, matching James Hawthorn’s boots, leading from his house to the window of the deceased. Chief Justice Stawell noted that “the case was in some respects one of circumstantial evidence” but “the jury found the prisoner guilty.” 
Supreme Court, Melbourne c1890.
Four petitions were made to the Governor of Victoria, Sir Henry Brougham Loch, for commutation of the death sentence imposed upon James Hawthorn. One was from forty two neighbours of James, one from the jurymen who sat in judgement at the Coroners Court, one from his father, and one from James himself. His neighbours, including John King of Kingsland, Samuel Clayton, Joshua Daff, James Exley, William Viel, Charles Tuck, Robert Keys, Charles Burgess, and Joseph Richards, argued on the basis of the character of James and the fact that he was overwrought by recently family events that mercy was appropriate.
The jurymen from the Coroner’s Court in their petition drew attention to the tracks and the casts of James Hawthorn’s boots made by police officers, as well as the improbability of only one person hearing the report of James Hawthorn’s gun. James denied that the tracks between his brother’s house and his own were his although he did acknowledge another set of tracks crossing these were made by him on his return from Brighton. Because the police only took four casts, three of the right foot and one of the left which was destroyed they were unable to check the veracity of James’s story. The jurymen pointed out that the nails in the heel of the boot did not in any way correspond with the casts there being two rows of nails on one half of the heel and only one row on the other half besides other differences.’  Moreover, the jurymen, after considering the nature of the wound and the power of the gun, doubted that the shot that ultimately killed William could have been fired through the window. If it had been, they thought, William’s nephew and his mother and father, sleeping in the next room should have heard it. They dismissed the evidence of Mrs French as being improbable.
James’ father in pleading for his son’s life made five points. First, as the court directed, the two brothers were negotiating a settlement over their rival property claims. Hence they were in the process of successfully resolving their difficulties through discussion. Secondly, on the night of the murder his grandson was sleeping in the same room as William, and he and his wife were next door in a room divided only by an inch partition. He distinctly heard his deceased son call out, “I am shot – call my mother,” His son did not say “I am shot – I expected it long ago,” as alleged by Mrs French. If this had been the case he maintained he, his wife and his grandson would have heard it. None provided such evidence. Thirdly, he drew attention to the prisoner’s gun, a powerful duck gun used to shoot birds in the swamp. If that gun had been fired through the window Mr Hawthorn maintained the noise would have awakened himself, wife and grandson, and his dead son would not have described the sound of the explosion as ‘like the striking of a match’. Thomas Hawthorn suggested another gun, possibly a pistol, or at least a gun less powerful than a duck gun, was the instrument used to kill his son. Fourthly, he believed the motive for the crime was robbery, a possibility rejected by the court. Thomas Hawthorn pointed out his elder son had upwards of £260 in a small box in his bedroom and was in the habit of bragging about the money he had and exposing it to friends and other people. If the shot had been fatal the thief would had ample time to remove the box or its contents. Finally, Mr Hawthorn in requesting the Governor to use his prerogative of mercy towards his son, pointed out he and his wife who were 78 years of age were certain that the prisoner was not guilty.
In his appeal to the Governor, James Hawthorn traced the inconclusive outcomes of the various trials he faced before being brought before the Chief Justice, the Coroners Court, the Magistrates Court and the Central Criminal Court. He challenged what he saw as factual inaccuracies in the judge’s summary to the jury, that the jury had been unduly influenced by information that was presented but declared inadmissible by the judge, and the casts taken of footprints were inadequate and incomplete as the three casts presented to the court were of the right boot, the fourth cast of the left boot having been lost. 
Despite the four submissions, appeals for mercy were dismissed by the Executive Council who determined that the sentence should be carried out. Consequently James Hawthorn was hanged at Melbourne gaol on August 21, 1884. Prior to his death the Rev John McLaren, and John Cromack a missionary of the Presbyterian Church, ministered to him. They reported that James was quiet, well behaved and resigned to his fate but up to the last moment he continued to protest his innocence. In a letter he dictated to the Rev John McLaren .he said “…I never murdered my brother, and took no part in it. I never intended nor threatened any such thing as his death, or expressed any statement to anyone that he ought to be killed or die; that the tracks found by the trackers were not mine, and any statement that I did so is false.” 
There were twenty spectators at the hanging, including representatives of the press. A report first printed in the Daily Telegraph, and reprinted in the Brighton Southern Cross, described the situation. “As the hour of 10 struck, the sheriff, colonel Rede, mounted the platform, and proceeded to the condemned man’s cell … Pinioned, with the white cap on his head, Hawthorn came forth, attended by his spiritual advisers. The drop is formed in the platform, on the second tier of cells, and is but a step from the condemned cell. The sheriff asked him if he had anything to say but he replied in the negative. The white cap was then drawn over his face, as Upjohn, the hangman, with the assistance of a warder, adjusted the fatal knot. Then the rev. gentleman slowly repeated the final prayer, and at the concluding words – ‘Whosoever believeth in him shall have everlasting life Amen’ came from their lips, Upjohn drew the bolt, and the unfortunate man fell heavily through the aperture. Death was almost instantaneous. After hanging for the usual time, the body was cut down.” 
Graham J Whitehead
- Public Records Office, VPRS 264/p Unit 10 – James Hawthorn, Petition of
Thomas Hawthorn to Governor.
- Brighton Southern Cross, March 29, 1884.
- Public Records Office, op.cit., Petition from residents of Brighton South.
- Public Records Office, op.cit., Petition of Thomas Hawthorn.
- Brighton Southern Cross, March 24, 1884.
- Public Records Office, op.cit., Petition of Thomas Hawthorn.
- Brighton Southern Cross March 29, 1884.
- The Argus, March 24, 1884.
- Brighton Southern Cross , August 29, 1884, reprint from Daily Telegraph.
- Public Records Office, op. cit., Statement of Judge.
- Public Records Office, op. cit. Petition of Jurymen to Governor.
- Public Records Office, op.cit., Petition of James Hawthorn.
- Brighton Southern Cross, August 29, 1884.
- Brighton Southern Cross, ibid.
Article Cat. Events in the Past
- The gaol and court photographs are from Murray, J., & McIntosh, P., The Streets of Melbourne.
Article Ref. 215