Trial Notes

From the web site of Macquarie University, Sydney, Australia:

The case of R v Firth and others [1832] NSW Supreme Court, charges of piracy – ship’s crew – ship, discipline on – whaling – mutiny – strike – Admiralty jurisdiction – industrial action

Supreme Court of New South Wales

Dowling J., 29 February 1832

Source: Sydney Gazette, 3 March 1832 [1]

John Firth, John Stanaway, Charles Williams, John Collins, John Hayes, William Rogers. John James Wainsborough, Robert Clarke, Charles Brown, George Waters, John Mains, Antonio Martin, Nicholas Romar, John Taylor Thomas Duperoy, Robert Manning, John Dunn, Charles Ward, Thomas Appleby, and Thomas Wilson, were indicted under the Statute 11th and 12th of William III, for that they on the 30th of December last, upon the high seas, and within the jurisdiction of the Admiral of England; to wit, three leagues distant from the south east end of New Ireland, in parts beyond the seas, on board a certain ship or vessel called the Harmony, whereof one John Marshall, a subject of His Majesty, was owner, and one John Robert Taylor, also a subject of His Majesty, was master, feloniously and piratically did make a revolt, contrary to the statute. A second count charged the prisoners with endeavouring to make a revolt; and a third count, with having feloniously and piratically confined the master.

Dr. Wardell, with whom was Mr. Wentworth, stated the case to the jury. – The information against the prisoners at the bar, said the learned gentleman, is framed under an Act of the 11th and 12th of William the 3rd, and contains three counts, each charging a separate offence. The first count charges them with making a revolt on board the ship Harmony; the second, with endeavouring to make a revolt; and the third, with unlawfully confining the master. Gentlemen, the statute under which the prisoners are indicted, though one of a highly penal nature, is also one, the necessity for which may be understood when you direct your attention to the bar, and behold the number of men that are stationed there I say, gentlemen, you will then perceive the necessity for an enactment of this description, and understand the mischief which it was intended to restrain. The prisoners were mariners on board the Harmony – two of them, Firth and Stanaway, being the first and third mates, who, so far from becoming the ringleaders in the transactions which will be detailed to you in evidence, as I shall be enabled to prove they were, should, from the trust reposed in them, have been the very first to step forward and repress them. Gentlemen, the Harmony was engaged in one of those speculative voyages which are now followed to a considerable extent, not only by the mercantile community of the parent state, but by capitalists in this small portion (with respect to population) of the British dominions. They were on board a whaler; and, gentlemen, if discipline be at all necessary to be preserved at sea, it must be on board such vessels as take long voyages, and occupy stations at a great distance, where it is impossible for a master to obtain assistance to repress the misconduct of his crew. All these circumstances show the necessity that strict discipline should be preserved on board vessels of this description; and, in order that it may be enforced, the necessity of an Act of Parliament like this, which subjects offenders to such highly penal consequences. Gentlemen, the ship sailed from England in August, 1830. Everything went on well, as far as I am instructed, as respects the crew, until the 26th of December last, when a refractory spirit manifested itself in the conduct of the third mate. At a particular period of that day, it was his duty to be on deck; but, whether contemplating something of an improper character, or from some other cause, he chose, instead of remaining below, to go up to the fore-top-mast. The master, who was on deck, expostulated with him, and desired him to come down. But, gentlemen, what was the reply? “I’ll be d–d if I do!” The master again expostulated, when he answered that “he was not going to be treated like a b–y boy on board,” accompanied with much coarse language and threats. Finding expostulation useless, the master suspended him from duty. Next morning the feelings of the other prisoners became manifest; so that it is obvious the third mate must have been contemplating something of an improper nature when he disobeyed the orders of the master. The chief mate addressed the master, and asked “what he intended to do with the third mate?” The master said he could not trust him; that he would man the third mate’s boat himself, and sent a boat-steerer in his own boat. Upon this, the chief officer grew outrageous, and exclaimed, “if he could prevent the crew from doing duty, he would.” About three of four days after this, some whales were seen, and the master ordered the boats to be lowered. The chief officer again asked what he intended to do with the third mate?” The master repeated what he had before said; upon which the chief officer immediately countermanded the order to lower the boats, and peremptorily demanded the release of the third mate. This was refused, and the chief officer then himself directed the boats to be lowered, but on the master attempting to go into one of them, he was resisted and prevented from doing so. He then asked the chief officer “if he intended to take the command of the ship from him?” The chief officer said “he did; that he had commanded a better ship than ever that was.” The master then went into the cabin, armed himself with a pistol, and returned on deck, but was instantly rushed on by several of the crew, disarmed, and all business suspended for that day, [sic] On the following, day, the master, upon reflection, considering it would be best for the interests of all, consented to release the third mate, thinking that there would then be no further interruption of the objects of the voyage. He did release him accordingly, and directed him to return to his duty. This step, however, so far from satisfying the crew, showed only what their real intention were; that the affair of the third mate had been make a mere pretext; and that they were resolved so to embarrass the voyage, as to put an end to it altogether, by taking the management of the ship out of the hands of the master; – for, when asked if they would now proceed, they, to a man, refused to whale any longer. The master, finding himself in this predicament, was compelled to leave the whaling-ground in the middle of the season, and proceed to Sydney. Here, then, gentlemen, was a revolt, within the meaning of the Act of Parliament, on the part of the sailors; by taking the command of the vessel, superceding [sic] that of the master, putting him under restraint, and compelling him to deviate from his voyage; to the detriment, not only of the owners, but of all partied interested in the original design. Gentlemen, if acts like these were unrestrained, the maritime interests of the country would be destroyed. In the outline of the case which I have thus laid before you, I have not thought it necessary to gibe any colouring to the transactions I have detailed. I rather wish that you should be guided solely by the evidence itself that will be laid before you, rather than by any colouring which I could give it. I shall, therefore, after having stated this short history of the case you have to try, leave you to learn form the witnesses the fact from which you will be best enabled to collect the nature of the acts charged against the prisoners at the bar.

The following witnesses were then called on the part of the Crown :-

John Robert Taylor examined by Mr. Wentworth – I am master of the ship Harmony, of which John Marshall is the owner; on the 26th of December last she was off New Ireland, engaged in a whaling voyage; she is a British vessel; I am a British subject, and so also is the owner; on the 26th of December, about one o’clock p.m. I perceived the third officer, Mr. Stanaway, going up the for-top-mast rigging, and asked his what he was going to do there; he said to put ropes on the fore-topsail-yard; I desired him to come down, and send some one else; he said he would be d–d if he did; I then told the boy who was with him to come down, and bring the things with him; Stanaway then came down to me on the quarter-deck, and asked me what I thought he was, or if he was a b–dy boy in the ship? I told him I did not consider him as that, and desired him to look after the crew that were at work on deck; he said he would not, while I had any thing to say on deck, and that he was officer of the watch;

He then abused me, by calling me a “b–dy rogue,” a “rascal,” and said he would make me remember, before he left the ship, what I was about; I told him to go to his work, and he asked me if I remembered once telling him about some canvass on the main-stay; I said I did, and he replied that he did wrong for not knocking me down on that occasion; he then began to bring up words that occurred in Timor Straits, and said I might stop his wages if I was not satisfied with his conduct; I told him that was in my power long before, had I thought proper to do it; about five o’clock p.m. the same day, we saw whales, and lowered down the boats, but returned to the ship without any; when we came on board, Stanaway asked me if I had seen any whales whilst we were away; we lowered four boats; I was in one, and the first, second, and third officers in the others; I told him I had seen whales, and was close on one, if the first officer had not come in my way; when the first officer came on board, I asked him which of us had frightened the whale? he said, neither one nor the other; I told him I thought he did; he replied that I knew nothing about it; I then ordered the steward, as usual after being in chase of whales, to give the people their grog, and went to supper with my officers; when we were getting up, Stanaway told the first and second officer to stop, as he had something to say to them; they replied that they knew nothing about it, and went out; Stanaway then asked me if he was third officer of the ship? I told him as long as he did his duty I should consider him as such; he then went out on the quarter-deck, where I shortly after followed, and he called me a “b–dy rogue,” a “rascal,” and a “mean fellow;” this he repeated several times in a loud voice; he then went to the binnacle, and while standing there, he swore, unless I altered my conduct to him, he would do no more duty; I said I had always treated him in a proper manner, and would not alter it; he then swore he would not do any more duty; I then told him, as he had put himself off duty, I should keep him from doing any more duty, and desired him to go to his cabin below; he said he had as much right to the cabin as I had, as my owner, John Marshall, had placed a chair in it for him, and that he would sit in it without I or the the [sic] mate dragged him out, and he should like to see that; I said he should not sit again at the same table with me; he swore he would, and I left the deck and went into the cabin; it was then eight o’clock, and I desired the steward to till the first and second officers to come to their grog; they did so, and I went out; Stanaway came to the door to go into the round-house; I asked him what he came there for, and he said to get his grog; I told him he should not go into the cabin again; he then pushed me before him into the round-house; I went to the table and took hold of the decanter of spirits; he asked me if I was not going to give him some of the rum? I told him no, and he replied that he had a great mind to smash my head against the mizen-mast; I then went round into my sleeping cabin, and Stanaway again asked me if I was not going to give him some grog; I looked through the door of my cabin, which was open, and told him, no; he then said he had a great mind to smash the tumbler he had in his hand on my heard; I stepped on one side, fearing he would throw it at me, and remained so till he went out of the cabin; I then went on the quarter-deck, and in about five minutes he came and asked me “what the h–l I was going to do with him; I told him to go away, that I wanted nothing to say to him; he then went and sat down by the chief mate on the hen-coop, and in about five minutes, he came to me again, and asked me “what I thought of myself, who I was, and what a b–y South-Sea captain was?” I said I was master of the ship, and he replied, that I was not; I asked him who was, and he said we all were masters; I told him I would let him know the contrary, and desired him to go below; he refused, and said he would “like to see the b–r who would put him below;” he then said to the chief officer that he had better put him in irons, as he was sure to do some mischief that night, and then added, “that he should like to see the b–r that would do it;” he then lay down, and nothing more occurred that night; on the following morning, at breakfast, about half-past seven, the chief officer asked me what I was going to do with Mr. Stanaway, I asked him if he did not think Mr. Stanaway behaved bad to me? he said yes; he then asked me who was to head the third mate’s boat; I told him I would myself; he asked me who was to head my boat; I said Thomas Appleby, and he replied, if that’s it, no boats shall be lowered, if I can help it; the second officer was present at this time; the same day I asked Appleby to go to the mast-head in the room of the third mate, to look out for whales; he said he would go to the mast-head, or head my boat, but keep the watch he could not, as the men would not obey him; I told him I would keep watch with him, and he said, “very well, Sir, I’ll do any thing for the good of the ship;” we did keep the watch, and the third mate remained off duty; on the 30th of Dec , about 5 p.m., the vessel was off New Ireland, about the South-East end, from 9 to 15 miles from land, when whales were reported in sight; I consulted with the first officer, who was with me at the mast-head, and asked him if he did not think we should do better with the boats than with the ship, as the wind was light; he said we should do better with the boats, and I then ordered the whaling-lines to be put in, and every thing made ready for lowering; the first mate then came down, and went into his own boat, and I ordered the boats to be lowered as speedily as possible, as fast as they were ready; the first mate then came to me, as I was standing near the bow-boat, and asked me who was going in it? I said I was, and he replied, that I should not; he then called to the crew not to allow any boat to be lowered, unless Mr. Stanaway was allowed to go in his boat; I asked him if he was going to take the command of the ship, and some of the crew called out “yes”; I said he should not; several of the crew, among which was John Taylor, Williams, and John Dunn, sung out, “put him in irons;” I again asked the first mate if he was going to take the command of the ship; there was then a general call-out amongst the crew; the first officer said he was, and told Mr. Stanaway to go in his boat; I said he was under arrest, and should not, and went forward to prevent the boat being lowered; the first mate asked me what I went forward for, and I told him to prevent its being lowered, unless I went in it; I caught hold of the boat’s falls, and the chief officer, catching hold of me by the collar, swore he would “break my b–y neck if I did not let it go;” some of the crew assisted, but I can’t tell their names, for I was overpowered; I then took out my knife to cut the falls, and prevent the boat being lowered, but was prevented by Martin; by this time they had lowered the boat, and sent her away with the third officer, against my wish; I then went on the quarter-deck, and asked the first officer if he did not think himself the ringleader in all the mischief, and he said “yes, and would stand by the consequences;” I then asked him if he meant to persist in taking the command out of my hands, or to keep the ship in the mutinous state in which she was; he said he did, and I replied,, that he should not while I had breath in my body; he then called out to the crew to lower the remaining boats; I swore if another oat was lowered without my knowledge, or if any of them laid violent hands on me, I would take his life; the first mate, however, persisted, lowered his own boat, and rowed away; I then went into my cabin, took a pistol which I was in the act of loading as I returned to the deck, when the crew laid hold of, and took the pistol from me, which John Maine fired off; the chief mate then returned on board, and asked me what I was going to do with the pistol, or who I was going to shoot? I told him any one who attempted to take the command of the ship, or to lay violent hands on me; I had 33 souls on board, including myself; the crew then mustered on the quarter-deck, and some proposed putting me in irons, and some confining me to the cabin; John Taylor, Williams, and Dunn, were amongst them, but many more spoke, of whom I have no recollection; I reasoned with the men, and told them the consequence of their mutinous conduct would be a forfeiture of their wages, but they still persisted, and would not go after the whales, unless the third mate was allowed to go upon his duty; I said he should not go into a boat with my consent, but thinking it might be for the benefit of the ship, I said that I would consider of it by the morning, and they all went about the ship’s business; I kept the watch that night without the assistance of Appleby, and at day-light in the morning of the 31st of December, the second officer called me up, for him to go to the mast-head; after being on deck about five or ten minutes I looked up, and seeing no one at the mast-head, I asked Appleby whose mast-head it was, and he said it was Mr. Marshall’s, meaning the owner’s; I asked him whose look out it was at Mr. Marshall’s mast-head, and he said he did not know and did not care, “for he’d be d–d if he’d go there again without signing fresh articles;” I then asked John Hayes to go up, but he said he had been there last, and would not go again; it is an essential and important part of the duty of whalers, on the ground, to keep a look-out at the mast-head; we always keep three men there; I then asked the second officer why he was not at the mast-head, and he said it was no use being there to out for whales as no one would go in the boats; I sent the boy to call the first officer, who, with the second officer came into the cabin, and I told them the crew appeared determined not to whale any more then, and rather than hinder the object of the voyage, I would put up with al the ill-language and abuse I had received from the third officer, and allow him to go into his boat; I then asked the first and second officers if they were satisfied; they said “Yes,” and I said the crew can require nothing further of me, when the first officer replied “I don’t know;” I then went on deck, called Mr. Stanaway, and told him to go to his duty; he said “Very well, sir,” and walked on one side; I then called the crew together, told them the third mate had gone to his duty as usual, and that I hoped they would conduct themselves well to get a good voyage; all the crew were present, and made a general answer that they would whale no longer; I heard Taylor, Appleby, Williams, Dunn, Rogers, and Wood, prisoners at the bar, say so; I reasoned with them on the consequences of taking the ship off the whaling ground, but all to no purpose, for Taylor said “If I did not take the ship to Sydney, she might go to h-ll for them;” to the best of my knowledge all the prisoners were there at that time; none of the crew except one, who stepped on one side, dissented from what Taylor said, except the apprentices, the steward, and the cook, not of whom took any part in these transactions; on the same day, about 1 p.m., I proposed to the first mate to call the crew aft and try them again; he did so, and I proposed that he should himself tell the crew, if they would not go another Japan season, they would whale till April or May; he did propose this in my presence, and the answer was “No.” adding that he might save himself the trouble of asking them any more, as they were sworn one to another to whale no longer; Appleby said this, and also swore that “He hoped his b–dy arms might drop off if he whaled any longer;” I asked him if he spoke for himself or for the crew, who were all round him;” he said “for the crew and for himself,” and at the same time several voices answered to the like effect; all the prisoners were present at that time, and must have heard this; none of the crew dissented but one man of whom I have already spoken, namedAbel Saman, a foreigner, who stepped on one side; the mates were also willing to whale at this time; John Dunn said, “if there were whales alongside in the fleuk ropes, they should not be got in if he could help it;” Rogers said, if I did not take the ship to Sydney, the first mate should; the first mate said he would have nothing to do with it; the crew then left the deck, and I told the first mate, as the crew would whale no longer, we had better make our way to Sydney as speedily as possible, and ordered preparations to be made for the voyage; at this time, we had provisions on board to last for eighteen months; we sailed from England on the 4th of August, 1830, and arrived here in the present month; we considered ourselves on the whaling ground from New Ireland to this port; we saw several whales, but as the crew had all sworn not to whale, the whaling-gear had been put away to prevent it from spoiling; when we met these whales, the crew did not express or show any disposition to return to their duty; when these occurrences took place, it was just at the beginning of the whaling season off New Ireland; the season lasts there from December to May; after that it was my intention to go to Japan; we had 100 tuns of oil on board, and the ship would have held 200 more; there was nothing in the state of the health of the crew to render it necessary to return to this port; I should not have come here, but for the occurrences I have mentioned, until my provisions were expended; I swear that all the prisoners at the bar took a part in these transactions; when we arrived here, the first mate presented a document in vindication of his conduct, to Mr. Church, the agent of the ship, and Mr. Marshall, the son of my owner; this paper-writing is it; it is a narrative of these transactions, in vindication of his conduct; he used to write at my cabin table, until he began to write in a book like this, and then he wrote below; these are the ship’s articles, executed in London, after the usual form according to the statute.

[Mr. Gurner here read the first mate’s log, containing a narrative of a considerable portion of the occurrences off New Ireland, which corroborated the principal part of the captain’s evidence.]

Cross-examined by Mr. Stephen – The seamen were upon monthly wages, but partners in the cargo of oil that might be obtained; it was not their place to remonstrate with me; it was their interest as well as mine to get as much oil as we could; I have advised with my officers upon the best mode of filling the ship; Mr. Stanaway may be a better whaler than any one of board; he has been very fortunate; I can’t say how many whales he has killed; I always gave my officers the preference of going after whales; I can rise no higher in my profession, and they can; no whale was struck by Stanaway on the day he was put under arrest; I did not consider Mr. Firth in a state of revolt until the 30th of December; Stanaway remained off duty until the 30th; and the crew made no open revolt until the chief mate told them to hold on the boats; my pay depends upon the quantity of oil shipped, and upon my good conduct; it was not so much the interest of the crew keep on deck as it was mine, for several reasons – first, seamen whaling out of this port get the 120th instead of the 170th, which is the proportion out of London – secondly, when they sail out of Sydney, they are upon the grounds as soon as they clear the Heads; whereas, from England, they are a considerable time in getting thereby, most of them were in debt to the ship; I laid my complaint at the Police Office about a fortnight back; we have been in port about 17 days; it might be on Wednesday last that the prisoners were taken up to the Police Office; I did not know that any of the men applied for their wages; I was never asked by, or made promises to, any of the seamen, to come forward and give evidence in this business: the prisoner, Clarke, stopped me in the street, and begged that I would not think any thing more about it, as he was sorry for what had happened; I never said that no more whales should be taken, and that I would proceed on to Sydney; I threatened to shoot the first man who opposed me in my duty; I was so enraged at the mutinous conduct of the whole crew, that I do not recollect having particularly mentioned Mr. Firth; I believe it to have been Maine who took the pistol from me and fired it off.

By Mr. Foster – The whole of the crew did not conduct themselves properly before this; it frequently happens that seamen give advice, and if I considered it to be for the good of the ship, I would follow such advice; this is my first trip as captain of a whaler; Firth acted improperly many times before the 30th of December; after I considered him in a state of revolt, I did propose to him that he should persuade the crew to continue on the ground; my reason for doing so was, because Firth had seduced the men from their duty, and would be the most likely person to bring them round again; the crew must have been aware that he owner had an agent in this port; I do think that, knowing this, they would come to Sydney; I have heard them say that they had committed an act which entailed a forfeiture of their wages, and that they might as well come to Sydney at once; before the whaling-gear was put away, I promised to look over all that happened provided they returned to their duty and pursued the whaling voyage; to the best of my opinion Maine took the pistol from me; I never said that the boats should not be lowered, or that I would blow out the brains of any of the crew if they lowered a boat until we got to Sydney; I never said I did not “care a d–n for the ship,” and that if she got upon a rock I would not try to get her off; I never myself proposed that the ship should come to Sydney.

Re-examined – The crew had not inducement that I had to remain out; I had something to lose, but many of the crew had not; many of them were in debt; Stanaway was in debt to the amount of £32 10s.; Taylor, Williams, Appleby, Waters, Clarke, Browne, Wood, and Dunn, had also over-drawn; they had no wages to forfeit by coming into this port; they might ship from here at a much higher lay; I did not know that the men had committed a felony, nor do I think they were aware of it; on the first rough sketch of the affair which I presented to the Magistrates, they did not think it sufficient to found proceedings upon, and I had to procure a more formal one, which was delayed some days on account of Mr. Wentworth’s absence from town; I consider the chief officer to have been the ringleader of the mutiny.

Other witnesses were called, who corroborated the evidence of the Captain, with respoct [sic] to different periods of the transactions spoken to by him.

This was the case for the prosecution.

Upon being called on for their defence, some of the prisoners declined saying any thing; other, and particularly the chief officer (Firth) made statements which corroborated the evidence of the prosecution; but justified themselves on the grounds of the incompetency of the master, and of his having broken the articles, by making the ship a three-boat instead of a four-boat ship, as agreed upon at the commencement of the voyage.

Mr. Stephen, on behalf of the prisoners, submitted that this was not a case within the statute [sic] The words of the statute were, “If any persons, being on board such ship or vessel, as aforesaid, shall feloniously and piratically make a revolt, &c.” Now, these words, “feloniously and piratically,” coming first, must, of necessity, he contended, be taken to signify an intention to commit some felony or piracy; in other words that some act must be done which would have amounted to felony or piracy before the enactment of the statute under which the prisoners were indicted. To revolt or rebel, even without an intention to run away with the ship, but to subvert the authority of the the [sic] master, he admitted was an offence within the statute. But, he considered to constitute a revolt, even in that case, there must be, not merely a disobedience of orders, but an entire subversion of the authority of the master, in the same way as rebellion is taken to mean a throwing off of allegiance to the Sovereign. Here all resistance was with reference to the objects of the voyage, in which all the prisoners were interested, on account of the peculiar mode of payment. Not merely the words of the statute were to be taken; the spirit of it was to be looked to, which was to preserve the lives of men on the high seas, and not to entail the highest penal consequences for disobedience of orders, which only occasioned a forfeiture of wages. The learned gentleman also submitted that the statute related to vessels employed in the merchant service only, and had not reference to whalers, the seamen employed on board of such vessels having a certain share in the proceeds of the voyage, and not a fixed rate of wages.

Mr. Justice Dowling – As at present advised. I am of opinion that this is a case within the statute, and that it must, therefore, proceed.

The following witnesses were then called for the defence :-

John Wood – I was a mariner on board the Harmony; I remember, on the 30th December last, when a signal was given from the mast-head that whales were in sight; I heard the captain have a dispute about allowing Mr. Stanaway to lower his boat; I heard him say if there was not another drop of oil to come into the ship, that Stanaway should not go into the boat until the ship arrived at Sydney; I was at the mast-head at this time, where I went after the first mate came down; after this I came on deck and heard a disturbance about the captain not allowing Stanaway to go into the boat; when the captain mentioned the words about the ship going on to Sydney, all the crew held up their hands and said “Agreed upon;” the captain, at the same time, said, “to save the ship, if she was going upon a rock, he would not throw out a rope;” the crew said they did not want him to wreck, but to do the best he could for the benefit of the ship and owners; next morning he called up all hands, and asked what they meant to do; the day before I saw him with a pistol, when he swore he would shoot the mate, and all who attempted to lay hands on him; I did not see any one lay hands on him, but I saw him attempt to cut the tackle-falls of a boat to prevent its being lowered; Stanaway was attempting to get into it, but the captain said he should not; there were three men in the boat at this time; if he had succeeded in cutting the falls, the boat would have gone down, and, perhaps, two or three hands been lost; the chief mate prevented him from cutting the falls; I did not see any part of them cut, but I saw the captain take the knife out of his pocket.

Cross-examined by Mr. Wardell – I never heard any one insist on going to Sydney, till the captain proposed it; they said, as he had broken the voyage, by not catching whales when they were alongside, they would not whale any more, but come to Sydney; there were only two hands to go in the boats after he had broken the voyage; they would not whale when he proposed; they would do any thing but whale; that they would not do.

Re-examined – After this statement, they did every thing towards the navigation of the vessel; he swore by “G-d” there should be no more boats lowered down till we got to Sydney.

Abel Saman – I was a seaman on board the Harmony; I took a pistol from the captain on the 30th of December; the flint cut my hand; he said he was going to blow the chief mate’s brains out; I made a grab at the pistol, but I do not know he was aware it was I who took it; by the captain’s orders all the boats were hoisted up again, and he said, “as long as his name was John Robert Taylor, no boat should be lowered before the ship was brought into Sydney;” the chief mate then said, “Well, sir, it is almost time for us to go to Sydney, we have been knocking about so long, a three-boat ship, instead of a four;” the crew repeated this, and when the captain ordered us to take the ship to Sydney that night, we agreed to it; the captain swore, when he told us this, clapping his hand on the capstan, “if the vessel were now going on a rock, I would not lay my hand on a rope to save her;” I swear he said this; Stanaway was ordered by the chief mate to go into a boat, and the captain attempted to cut the falls, to prevent him, but was hindered by the chief mate; there were five men in the boat, and, if the captain had cut the falls, she would have gone down, and the five men who were in her have been lost, as the ship was then going at the rate of five knots an hour; a few days ago, the captain offered me a birth in the ship, and a few pounds in my pocket, if I would speak in his favour; he said he knew he had so many men against him, and that he knew he was wrong, that he was a poor man, and I could speak in his favour; this was on the 14th of February, in a house where I was taking a glass of grog; the captain was passing by and called me out; a man named Charles Berry was present; it was at a quarter past 9 o’clock; I asked the hour before I went into the house, as I wanted to know if it was time to go on board; the captain would have retained me, but I thought it best to get rid of him altogether.

By the Jury. – I do not know the sign of the house; I could not see people passing in the street from where I sat; I can’t say whether the captain came into the house of not; the publican might have heard what he said, but I never asked him; the door was open, and any one might have known me by my voice; I am a Hanoverian.

Cross-examined by Mr. Wentworth. – This was about three days after we came into port; I did not know then that there was to be any trial about this business; I thought the captain was going to be tried, and he thought he had so many against him, that he did not know then that the crew were to be brought up to the Police-Office; I was not quite sober at the time the captain spoke to me; he told me that was not the proper place for a drunken man to be, and that I ought to be on board where my “grub” was; if he had cut the falls below the belaying pin, the boat could not have been lowered; if he had cut above, I think the men in the boat would have been lost, as the ship was going five knots an hour, and there were then no other boats down.

Re-examined – When the captain spoke to me, I knew that the crew were seeking to recover their wages; the reason the captain was prevented from cutting the falls, was to save the lives of the men in the boats.

Henry Price, second officer of the Harmony, was next called, but nothing in his evidence contradicted that of the captain.

Charles Berry said he knew the witness, Abel Saman; was in his company on the 14th of February last, from three o’clock in the afternoon till nearly ten at night; Saman was drunk; he could not walk; witness was in company with him all that time, but did not drink any thing; was quite sober; was present when Captain Taylor offered Saman a few pounds in his pocket if he would speak for him; this was in Cumberland-street, near the Hop and Anchor public-house; the captain said he was a poor man, and it would be a few pounds in Saman’s pocket if he would speak in his favour.

Cross-examined – This was in the street; it was not in a public-house; it was about nine o’clock; knows that, because the drums were beating at the time; the captain met Saman and witness in the street; the captain told Saman he was drunk, and that was not a proper place for him to be in; witness never saw the captain before, and yet he offered Saman a bribe in his presence; does not know that the seamen were then instituting proceedings against the captain to recover their wages.

This was the case on the part of the prisoners

The learned Judge then proceeded to charge the Jury. His Honor, after some preliminary observations, said, the prisoners were indicted under a very old statute, enacted for wise purposes, and which still remained of full force and validity on the English statute book. By that enactment, it was provided, that, any person or persons, being on board of any British ship or vessel, on the high seas, in any place where the Admiral hath jurisdiction, who shall feloniously and piratically make a revolt, or shall endeavour to make a revolt, or shall forcibly restrain or confine the master of any such ship or vessel, on being duly convicted thereof, shall suffer death, together with a forfeiture of lands and goods, as pirates and robbers. By the 4th § of the Act 9th Geo. IV., c. 83, to provide for the administration of justice in this colony, the Supreme Court was vested with an Admiralty jurisdiction to try cases of this nature. The Court, therefore, having authority to try the case, it then became the province of the Jury to decide, from the facts detailed to them in evidence – subject to such direction, in point of law, as His Honor should give – whether the prisoners at the bar, or any of them, were guilty of the offence with which they stood charged. Two objections had been taken by one of the learned counsel for the prisoners :— first, that the acts stated to have been done by the prisoners, did not amount to a revolt, within the meaning of the statute; and, secondly, that the statute contemplated vessels employed in the ordinary merchant-service, and did not apply to vessels employed in whaling voyages; inasmuch as, mariners employed on board such vessels, were not paid at a fixed rate of wages, but by a share in the proceeds of the voyage. With respect to the first objection, His Honor, as then advised, held, in point of law, that if, by the acts of his crew, the master was compelled to abandon the original object of his voyage, and to proceed on another voyage, not originally contemplated, that such acts amounted to a revolt within the meaning of the statute. With respect to the second objection, His Honor also held, that the statute applied equally to vessels employed in the whaling trade, as to ordinary merchant-vessels; the only difference consisting in the manner in which the seamen were remunerated for their services. As then advised, therefore, subject, however, to correction hereafter, should it become necessary, he was of opinion that this was a case within the statute. His Honour then read over the whole of the evidence on the one side and on the other; and concluded a most laborious summing up, by earnestly invoking the Jury, as the case was one of the deepest importance, not only as it affected the prisoners themselves, but to the public at large, to take the whole of the evidence into their most serious consideration; and if they saw any reason to draw a distinction between the cases of any of the prisoners, to give them then the benefit of that view of it.

The Jury retired for about a quarter of an hour and returned into Court with a verdict of – Guiltyagainst all the prisoners. Remanded.

The trial lasted from 10 o’clock in the morning till 9 o’clock at night.

Forbes C.J., Stephen and Dowling JJ, 10 March 1832

Source: Sydney Gazette, 13 March 1832 [2]

John Frith, James Stanaway, John Taylor, Charles Williams, John Hayes, Thomas Appleby, William Rogers, John Dunn, and Charles Wood, convicted under the statute 11th and 12th of William the 3rd, for making a revolt on board the ship Harmony, on the high seas, were put to the bar to receive sentence.

Dr. Wardell prayed the judgment of the Court against the prisoners.

Mr. Stephen moved an arrest of judgment on the ground, chiefly, that the information was not sufficient to sustain the conviction, it not being drawn according to the terms of the Act of Parliament.

Mr. Foster followed, on behalf of the prisoners, and in an argument of considerable length and ability, contended, first, that the acts proved to have been done by the prisoners, did not amount to a revolt, within the meaning of the highly penal statute under which they were indicted, but merely to a non feasance, which subjected them to a forfeiture of wages; and secondly, that although the 4th section of the 9th Geo. 4th, c. 83, or New South Wales Act, gave the Supreme Court of this Colony an Admiralty jurisdiction to try offences committed on the high seas, still the statute under which the prisoners were indicted provided a specific mode of trial for such offences – in fact, a differently constituted Court altogether – and in the very section which enacted the punishment, these express words were contained, namely, “being duly convicted, according to this Act.” The learned gentleman, therefore, contended, even if the acts proved against the prisoners amounted to a revolt, within the meaning of the statute, that the Court had no jurisdiction in the case.

The Chief Justice observed that he was aware such cases as the present were tried in England by a Commission. The King might, doubtless, have issued such a Commission for this Colony; but then the Court would be bound to proceed according to the common law, and empannel [sic] a jury; and His Honor happened to know that that was the very reason why that clause in the 4th § of the New South Wales Act, giving the Supreme court jurisdiction in such cases, had been introduced.

Dr. Wardell, on the part of the Crown, replied to the arguments of the prisoners’ counsel.

The Court overruled the objections, and ordered judgment of death to be recorded against the prisoners; intimating, however, that all the circumstances of the case would be represented in the proper quarter, with a recommendation to the favourable consideration of the executive authorities.

Notes

[1] See also Australian, 2 March 1832; and see the similar case of R. v. Anderson, Davis and others, 1832.

The subject of the discipline on merchant ships was often before the Supreme Court. On 14 May 1835, the Sydney Herald published the report of an unnamed case decided by Lord Lyndhurst and others on 19 January 1831. The Herald’s report was taken from that of the Singapore Chronicle.

In 1832, the New South Wales Legislative Council passed a new Act (2 Wm 4 No. 10) to deal with the relationship between masters and servants. The short title made clear that its aim was: “for the protection of Masters and Ships from vexatious Suits in the said Colony.” See Sydney Gazette, 29 March 1832.

[2] On 3 March 1832, the Attorney General announced that he had chosen not to continue with the prosecution of 11 of the 20 crew members tried here: Australian, 9 March 1832; Sydney Herald, 5 March 1832; Sydney Gazette, 6 March 1832. Justice Dowling told them that if they had been called up for judgment, he would have felt constrained to sentence them to death.

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