LAW AND DISORDER
Arusty iron fence surrounds the grave but the simple sandstone headstone has tipped over into the grassy stubble. The aura of death is compounded by an air of neglect: the headstone’s inscriptions have been rendered almost invisible by 130 years of wind, rain, frost and relentless antipodean sunlight. This is the gravesite of 19th-century police magistrate Edward Denny Day (and his wife, Margaret), located on a sloping paddock in the Old Glebe Cemetery at Maitland in NSW’s Hunter Valley.
When author Terry Smyth visited Day’s grave, he was dismayed to see how rundown it was. Nevertheless, his visits confirmed his suspicion that the fearless police magistrate remained an overlooked historical figure, a “forgotten hero” who stood up for indigenous rights on Australia’s lawless frontier when it was unfashionable, even dangerous, to do so.
“This [Day’s story] is something everybody should know,” says the Sydney-based writer. The author of last year’s Australian Confederates clearly hopes his second historical book, Denny Day: The Life and Times of Australia’s Greatest Lawman, will help create a place in the pantheon of respected national figures for the 19th-century law enforcer, who “changed history and shocked the world”.
Day’s key legacy was his capture of 11 men involved in the 1838 Myall Creek massacre in which at least 28 unarmed Aboriginal children, women and men were slaughtered as they camped on a pastoral station in northwestern NSW. Up to 12 children were murdered and beheaded in this orgy of violence. One Aboriginal man was burned alive; one woman was spared from the slaughter only to be repeatedly raped by the killers.
The Myall Creek case marked the first time white men in the penal colony were convicted — and subsequently hanged — for massacring Aborigines. Smyth argues that without the police magistrate’s investigation, which involved a 300km trek on horseback, justice would not have been done. “The killers would have gotten away with it but for Day’s intervention,” he asserts.
Denny Day is partly a biography of the adventurous if austere police magistrate who hunted bushrangers and brought the Myall Creek murderers to justice, and partly an account of one of Australia’s worst frontier massacres and its aftermath. As the book documents, of the 11 men the police magistrate arrested, seven faced trial. The case eventually would involve two dramatic trials, as the first ended in a not-guilty verdict: the jury had taken just 15 minutes to make up its mind.
In the second trial, which partly focused on the murder of a young Aboriginal child, the seven defendants were found guilty of murder. All were sent to the gallows and this caused uproar in the colony. Earlier, the Sydney Herald, then the voice of pastoralists and squatters, had fumed: “The whole gang of black animals [the murder victims] are not worth the money the colonists will have to pay for printing the silly court documents.”
Given these virulently racist attitudes, Smyth contends that “it was easy to get away with these things [abusing or killing Aborigines on the remote frontier]. You could hide in plain sight and nobody would care.” But Day conducted a forensic investigation, unusual for its time, collecting human teeth, a jawbone and — most moving of all — a young child’s rib bone from the murder site.
“He could have easily gone through the motions but he didn’t. He had a stubborn belief in old-fashioned justice,” says Smyth. “It’s very easy to make the right noises as people often did in those days. But to get in the saddle and go there, that surprised everybody.”
While travelling to the remote crime scene, Day and his investigating posse were shot at and stampeding cattle were redirected their way. “I have had to encounter every obstacle that unwilling witnesses could possibly throw in my way,” the police magistrate wrote in his understated way at the time. Nearly 200 years later, Smyth, a father of three grown children, spent a week on horseback navigating some of the same countryside as Day. “It was difficult. I can’t imagine how difficult it would be to actually gallop downhill while shooting at somebody,” the author says.
Here he is referring to Day’s most daring case — his capture in 1840 of bushrangers known as the “Jewboy gang” (because their leader was Jewish), who were wanted for robbery and murder. At one point, Day was involved in a shootout with the gang that was “redolent of the American wild west” — a musket ball grazed the magistrate’s ear and he wrestled the shooter to the ground. (Six gang members were arrested and later hanged.) This dramatic capture “sort of redeemed Day”, says Smyth. But the predominant colonial view seemed to be that the magistrate’s role in the Myall Creek case was best forgotten: when the father of 11 died in 1876, aged 75, newspaper obituaries failed to mention his investigation.
While Day’s contribution to bringing racial justice to the frontier has yet to be properly acknowledged, John Henry Fleming, ringleader of the Myall Creek massacre, escaped “scotfree”, claims Smyth. Fleming, then aged 22, was the only freeborn man involved in the crime; the other killers had been transported to Australia as convicts. Smyth says: “Day was determined to catch Fleming but he never did. Fleming was well hidden by the very wealthy and influential squatters in the upper Hawkesbury and elsewhere, so he got away with it.”
From a prosperous farming family, Fleming eventually re-emerged in Wilberforce on Sydney’s outskirts. “It wasn’t that difficult in those days to reinvent yourself,” explains Smyth. “All he did, actually, was put another M in his surname. And it was a long way from Sydney to the Hawkesbury.” Fleming went on to become a prominent farmer, church warden and — in a twisted irony — a magistrate. Today, nearly 200km from the Days’ neglected grave, lies Fleming’s elaborate vault in the Wilberforce cemetery. According to Smyth, it is the most imposing grave there. “The fanciest grave in that cemetery belongs to a murderer,” he says indignantly. “Fleming was seen as a local hero, a pillar of that community. Yet up there [in East Maitland] lies Denny Day’s and Margaret Day’s grave, with the headstone fallen into the dirt.” (Last year Maitland City Council drew up a conservation plan for the historically significant cemetery). Now 65, Smyth grew up in the Maitland area knowing nothing of Day’s exploits and achievements. He points out, though, that Day could be “curmudgeonly”: “He did himself no favours in a lot of ways.” During his early days on the bench, he ordered a flogger to give a long-haired young offender a haircut. The roughly shorn (and no Terry Smyth, left; the grave of Edward Denny Day and his wife, Margaret; a portrait of Denny Day, inset below. doubt humiliated) young man then received his sentence of 50 lashes.
Smyth’s book acknowledges that in 1830s NSW there were real fears of violent attacks by Aborigines as they struck back against white settlers, squatters and assigned convicts occupying their hunting and fishing grounds. The Sydney Herald reported 16 murders of pastoralists on the NSW frontier between 1832 and 1838. However, the broader reality was that far more blacks than whites were killed in frontier skirmishes and that reprisal killings by whites invariably claimed a disproportionately heavy toll of black lives. Moreover, in the Myall Creek case, the NSW Supreme Court found that the crime was unprovoked, and that innocent people, including “babies hanging at their mother’s breasts”, were “slaughtered in cold blood”.
Day’s colourful career as a law enforcer continued after the Myall Creek and Jewboy gang cases. In 1867 he freed part-Aboriginal female bushranger Mary Ann Ward (she was Captain Thunderbolt’s partner) after she was wrongly convicted of stealing cloth. In 1850 he was given a major promotion — he became Sydney’s police chief, but he was forced to resign six months later. His crime? Getting smashed at the lord mayor’s fancy-dress ball.
Born in Ireland in 1801, Day was part of the Anglo-Irish establishment. He served in the British army in India before emigrating to Australia in the early 1830s. Smyth says with a chuckle that his subject’s early life “took a lot of digging”, partly because the assumed facts “quite often were just bloody well wrong”.
Denny Day has proved to be a “voyage of discovery”, even for someone who had been researching the magistrate’s life, on and off, for years. As Smyth retraced the law enforcer’s steps, he “discovered how much I didn’t know about Denny Day and those times”. He also visited the Myall Creek massacre site and interviewed descendants of the victims and perpetrators. The killing field is still on privately owned pastoral land and is overlooked by a monument that has been declared a national heritage site. Visiting this haunted place “was an emotional experience”, says the author. “You look around and you just think, ‘How could the devil have once stalked these pretty hills?’ ” $34.99, is out now. by Terry Smyth, Ebury Press,
HE HAD A STUBBORN BELIEF IN OLDFASHIONED JUSTICE