James Cuthbert was tried for the crimes of incest and assault in the Dundee Circuit Court of Scotland in April 1865. He pleaded guilty to the assault but denied the charge of incest. The assault, described in Scottish terms as ‘the effusion of blood’ charge, was against one of his daughters.[1]
The incest offence was said by Lord Cowan to be ‘of such a nature as to be totally unfit for publication’, a decision which led to Cuthbert’s trial taking place in a closed session lasting two hours, with the jury taking about ten minutes to reach its verdict.[2]
James Cuthbert, born in 1824, was a married man of 40 years of age at the time of his arrest, described as a labourer, residing at number 55 Castle Street, Montrose. A previous conviction of assault was taken into consideration, and with previous accusations of incestuous practices against his name, he was sentenced to transportation for life.[3] (Cuthbert’s previous conviction for assault was recorded on 20 January 1864, when he pleaded guilty and was fined 7/6d, or ten days’ imprisonment. He chose to pay the fine.[4])
Background
James Cuthbert was born on 27 February 1824 at Montrose, in Forfarshire, Angus County, to James Cuthbert and his wife Euphemia (née Goodlets.)[6] James married Mary Hughes at Montrose on 11 September 1842.[7] Mary was born at Fettercairn in Kincardine, Scotland. The 1861 Census describes the household as follows –
James Cuthbert (37), born Montrose, dock labourer.
Mary Cuthbert (37), wife, born at Fettercairne, Kincardine.
James H. Cuthbert (15), son, apprentice seaman, born Montrose.
Isabella Cuthbert (13), apprentice flax spinner, born Montrose.
Maria Cuthbert (12), born Fettercairne.
Amelia Cuthbert (2 months), born Montrose.
Jean Cowie (4), scholar, born Montrose.
Mary Ellen Bowie (2 months), born Montrose.
A baker by trade, James Cuthbert was working as a labourer at the time of his arrest in 1865. While awaiting transportation, he served time on a convict hulk.[8] He was received from Portland Prison and was transported to Western Australia onboard the Norwood, arriving at Fremantle on 14 July 1867.
Arrival in WA
On arrival James Cuthbert’s age was recorded as 43. He was described as a baker, 5’9”, with grey hair, hazel eyes, a long face, sallow complexion, middling stout, married, with five children. He had a distinguishing mark on his right arm. His wife was listed as May (Mary) Hughes or Cuthbert, aged 43. Their children’s names were James (21), Isabella (19), Maria (17), Amelia (6), and Sarah (4). The family’s address was 112 Castle Street, Montrose.[9]
[Following her husband’s transportation in 1867, Mary Cuthbert (48), washerwoman, can be found at the time of the 1871 census, living at number 3 Southesk Street, Montrose, with her children James (25), seaman Royal Navy; Mary (12), flaxworker; Amelia (10) scholar, and Sarah (8) scholar.]
Employment Record in WA
James Cuthbert’s employment records show that he mostly worked as a baker, with brief periods spent as a roadworker and general servant. Following his release on Ticket of Leave in September 1875 he spent most of his early working life in the York District —
7 Nov 1875 – Baker, employed at York by Joseph Bishop.
25 April 1877 – Baker, employed by Henry Beard of York.[10]
3 June 1879 – Baker, James Archdeacon, York.
9 Feby 1880 – Thomas Molloy, Perth.
10 Jany 1881 – Baker, Henry Beard, York.
22 June 1881 – Roadmaking, S.S. Parker, York.
28 Nov 1881 – Baker, R. Maggs, Perth.
17 May 1882 – Ditto.
20 July 1882 – Contract work, Geo. Lilly, York.
8 Sept 1882 – Baker, Joseph Barrett, Perth.
10 Nov 1882 – General Servant, Mary Jackson, railway line.
22 Jany 1883 – Ditto.
2 April 1883 – Baker, H. Beard, York.
30 April 1884 – J. A. Cooper, Perth.
10 Nov. 1884 – Baker, Robert Maggs, Perth.
18 Feby 1885 – Ditto.
16 June 1885 – Baker, Paul Michan (?), Perth.
2 Oct 1887 – Ditto.
7 Jany 1886 – Baker, Robert Maggs, Perth.[11]
James Cuthbert’s employment record was constantly interrupted by arrests and appearances before local magistrates on charges brought about by his drinking habits. He spent time in prison on a regular basis, either in the York gaol, or for more serious offences, in Fremantle Prison.
Alcoholism was rife in the community, with regular appearances by both men and women in the Courts. James’s Tickets of Leave were constantly renewed, leaving him open to arrest for breaking the rules and being out after hours. His regular stints in the lock-up at least gave him a break from the effects of alcohol. A random selection of Court records tell a sorry tale —
1877
YORK COURT HOUSE
THURSDAY, 20TH DECEMBER.
(BEFORE W. COWAN ESQ., R. M. and J. SEWELL J.P.)
JAMES CUTHBERT, baker, was charged by Henry Beard, with stealing 34 loaves of bread on the 18th instant. It appeared from the evidence that on Tuesday last Mr. Beard had to be in attendance at the Police Court, and left Cuthbert in charge of a batch of 184 loaves of bread. Cuthbert was sober at the time, and when Beard returned he found the batch drawn and prisoner the worse for liquor, the prosecutor thought there could not be the proper quantity of loaves upon the table, so counted them, and found only 102. Prosecutor learnt upon enquiry, that prisoner had offered some bread for sale and demanded payment, a proceeding that had never before occurred. Subsequently it was found that a number of loaves had been left in the oven, and burned. Prosecutor stated he did not wish to press the charge. Prisoner stated that Beard was wrong in accusing him of stealing the bread, and had he not been so hasty in giving him in charge, he might have been able to explain the matter. However he was aware that his master was the loser, by his (the prisoner’s) neglect and he was willing to pay for all the damage that had been done. The case was dismissed, the prisoner to pay the value of the bread, and other costs incurred.[12]
1878
YORK COURT HOUSE
[Before W. Cowan, Esq., R. M.]
Thursday, 16th May, 1878.
JAMES CUTHBERT, t. l., was charged by P.C. Farley with using obscene and indecent language, and committing a breach of the peace on the 14th instant. Sentenced to one month’s imprisonment for each offence.[13]
1878
YORK COURT HOUSE
Dec 24th, 1878.
James Cuthbert, t.l., was charged by P. C. Eaton with using obscene and indecent language in the public street. Fined 5s. or seven days. For being drunk at the “York Hotel” he was further fined 5s. or seven days. For being out after hours, he was ordered to be confined, awaiting an answer from Fremantle.
1887
AT the City Police Court, yesterday, James Cuthbert, charged with a breach of the
ticket-of-leave regulations, was sent to prison for three months.[14]
1879
James Cuthbert, t.l., was charged by P C Osborn with being drunk, using obscene language, and violently resisting the Police. The Magistrate kindly awarded him one month’s imprisonment for each offence.[15]
1889
Perth Police Court
FRIDAY, March 15. (Before the Police Magistrate.)
James Cuthbert, a ticket-of-leave holder, was charged with having committed a breach of the Convict Regulations by being found illegally at large in the Perth district. The prisoner admitted the offence; but pleaded in excuse that he had wandered away in the bush, where he had been without anything to eat since the previous Monday. The police stated there was nothing more recorded against the man than repeated drunkenness.
Mr. Leake: Well, I will give you the benefit of your good character. Go away this time, but mind you obey the regulations for the future.[16]
1898
THE POLICE COURTS
TO-DAY’S PROCEEDINGS PERTH. (Before Mr. A. S. Roe, P.M.)
A Change to Highgate.—An old man named James Cuthbert was brought in from Highgate Hill and charged under the Vagrancy Act. The old fellow had left the Depot to take a change of lodgings in a hollow tree at Highgate, which he ornamented with newspapers.
Having benefited by the sojourn, Cuthbert was sent back to the Depot.[17]
James Cuthbert (Colonial Convict No. 9422) spent his latter years in the Old Men’s Home at Fremantle. He was granted a Remission Certificate in December 1901.[18]
James Cuthbert passed away in Fremantle, Western Australia, in May 1907.[19]
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[1] Montrose Standard, 31 March 1865.
[2] Montrose Standard, 14 April 1865.
[3] National Records of Scotland, High Court of the Judiciary Precognitions 1808 – 1917, Archive Reference AD14/243.
[4] Dundee Advertiser, 20 January 1864.
[5]Dundee, Perth, and Cupar Advertiser, 9 September 1864.
[6] Scotland, Select Births, https://www.ancestry.com
[7] Scotland, Select Marriages, https://www.ancestry.com
[8] Convict Hulks, Quarterly Returns, Series HO8, Piece Nos. 168-172.
[9] Convict Registers (R15-R16)
[10] Henry Beard was formerly Convict No. 4494, arriving on the Clara in 1857. (See his story on this website.)
[11] Convict Department, General Register (R15-R16)
[12] Eastern Districts Chronicle, 22 December 1877.
[13] Eastern Districts Chronicle, 25 May 1878.
[14] West Australian, 29 December 1887.
[15] Eastern Districts Chronicle, 1 March 1879.
[16] Daily News, 15 March 1889.
[17] Daily News, 19 September 1898.
[18] Fremantle Prison Convict Database, https://fremantleprison.com.au
[19] WA Department of Justice, Death Index, Reg. No. 139.