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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Peyton [1807] NSWKR 3; [1807] NSWSupC 3

convict escape

Court of Criminal Jurisdiction

Atkins J.A., 27 June 1807

Source: Minutes of Proceedings, 1788-1815, Court of Criminal Jurisdiction, State Records N.S.W. 5/1149[1]

[459] Isaac Peyton, Hugh McDonald, Susannah Harrison, William Welsh, Dennis Molloy, John Worthington, George Boyden, James Derbyshire alias Peter Millington, James Hargreaves placed at the bar vide indictment no. 8 [for attempting to escape the colony].

           Benjamin Peat sworn says that he was half owner of a vessell called the Argument and that Hugh McDonald one of the prisoner was owner of the other half. That about ten weeks back McDonald applied to him for the vessell to take some casks to middle Harbour which he agreed to and the [460] next morning McDonald with a man named Francisco took her from Sydney Cove to Cockle Bay. From some information he had received he thought he had done wrong to lend her and in consequence he went to Cockle Bay and brought the boat back to the cove. McDonald asking the reason for her being removed into the cove. He told him that he thought he had done wrong in allowing her to go to Cockle Bay and that if he had any thing to put in her he might bring them to the wharf and then ship them, not neither still or warm should go on board her. That eight casks were put on board her by McDonald at sun down. The same day McDonald with Francisco came to him and asked him to put them on board which he did and he then returned on shore and soon after McDonald and Francisco weighed the anchor for the purpose as they said of going to the Middle Harbour. But still suspecting that Middle Harbour was not their place of destination he followed her [461] in his small boat and got on board her, but not finding the things on board which McDonald had informed him he was going to take to middle harbour he lent him his small boat to go in search of them and while he was gone he told a man who was on board that he suspected the vessell would not come back any more; and to prevent her going out of the harbour they ran her on shore at Farm Cove, and about 12 or 1 o'clock that night they got her off and returned with her to Sydney Cove. The next morning McDonald came to him and said you lent me a pretty dance last night. I answered that I suspected the vessell was going to be run away with and that every person should take care of themselves and desired him to take the casks out of her, for she should not go at all and two days after he went to the Hawkesbury with her and returned in a fortnight or three weeks. That on the 21st of May he was again going to the [462] Hawkesbury. McDonald came to him and said he would go with him and went on board, and they set sail but suspecting something he kept a good look out. When abreast of Bradleys Point he saw a boat which he suspected was for the purpose of cutting him off, on which he hauled his wind and stood a contrary course. At the same time the boat changed hers and came after him, and he saw Francisco in her. That he desired McDonald to go below her, for he suspected that the persons four in number in the boat were going to seize the vessel. He thought it prudent to bear down to the Speedwell, a vessell belonging to Andrew Thompson. On hailing her he desired the master of her to send him a man and a gun, for he suspected that the boat in sight had an intention to seizing the vessell that his partner McDonald who was on board him was one of the gang. The boat then steered for the North Shore but observing the vessell putting about with an intention of returning [463] to the cove, the boat again pursued them. Deponent says that he desired Warner to take the small boat and acquaint the persons who were in the King's boat at the South Head with the circumstance which was done, while himself followed the boat and coming up with them and waved his hand to them, but coming up close to them they put about with an intention of avoiding him. They rowed towards the North Shore where they landed.

           Question by McDonald. At the time you desired McDonald to go below did he make any resistance:?

           Answer. He did not but said he would go where I thought proper.

           Question. What reason had you to suspect I was not going with the vessell to Middle Harbour ?

           Answer. Because he did not bring the sugar on board which he said he meant to do and because the vessell was too large for that purpose, for a smaller one would have done.

           Question. At the time she was going to Hawkesbury and yourself and McDonald, was there not a tombstone belonging to McDonald on board her?

           [464] Answer. There was.

           Question. What things had McDonald on board besides a few slops?

           Answer. I cannot tell.

           Question. Did not McDonald inform you that he had many debts to collect at Hawkesbury?

           Answer. Yes he told me he wished to get the corn round.

           Question by the court. Can you take on yourself to say that the boat that was following you was with an intention of boarding and seizing the vessel?

           Answer. No other than that of her putting about after me and seeing Francisco on board her.

           Brian Overhand admitted King's evidence. Sworn says that about 8 or 10 weeks ago a man belonging to Mr Blaxcell came to him and desired him to call at his house that evening. That being fatigued he did not, but on seeing him the day after he told me to meet him at the house of Isaac Peyton, and about six o'clock that evening he went there where he found Peyton and his wife, McDonald, a man named Machie and some men from the Hawkesbury. On going into the house Peyton, his wife and McDonald were at tea which being finished a bottle [465] of rum and some water were put on the table. After some common conversation McDonald and Peyton told me they supposed I understood what I was come there for. I answered I did not. Peyton said pointing to McDonald that he was a person who owned a boat and if I wished to have my liberty it was then before me, and that if I let this opportunity slip I should never have so good an one. I then asked them where the boat was. McDonald said she was at the Hawkesbury but that he expected her down in a short time. On acquainting him that I should not be able to furnish myself with necessaries, he informed me that it should not be at a farthing expence but not everything should be paid me. On asking McDonald and Peyton where the boat was to go to, they both assured me to Batavia, and so it was agreed on between himself and Peyton and McDonald. Says that he was to navigate the vessel to that place. No further conversation passed that night, but a few days afterwards as he was [466] passing Peyton's house Peyton called him into his house and asked what it was necessary to procure for the voyage and particularly what instruments I might want. I informed a compass and quadrant were necessary and that he wanted a nautical boat if one could be procured. Peyton said that as soon as the boat was returned from the Hawkesbury he would let him know. This was all that passed at that time. A few days after he again saw Peyton when he desired me to look out for some person who might have a quadrant to sell. I went on board the Commerce with John Simmons where a man of the name of Hambleton had one for sale, which I purchased from him for two pounds. This I acquainted Peyton with the same evening, who gave me a one pound bank of England note and desired me to give it to Hambleton as part payment and the remainder should be paid in a day or two. I gave him the one pound note and I then received the quadrant, which I brought to Isaac Peyton's house. In a few [467] days I was furnished by Peyton's wife with the remaining one pound to complete the payment for the quadrant. Some few days after Peyton informed me that the vessell was arrived and as soon as she was discharged it was Peyton and McDonald's intention to bring her round to Cockle Bay for the conveniency of putting the things on board from Peyton's and Welsh's. The day the vessell was brought round to Cockle Bay, Peyton gave me an iron pot which I was to put on board her, but I carried it to Welsh's and delivered it to him. He then went home, but on passing by Peyton he found the vessell had left Cockle Bay. That he then went to Peyton house who informed him that Benjamin Peat had taken the vessell to Sydney Cove. The next day himself and Peyton's wife went to Mr Bevan's, where they purchased a compass from his clerk which was paid for by her, and carried to Peyton's house where McDonald was who informed him it was his intention to take the vessell to the North Shore that [468] evening and that he would take Francisco with him to assist which was done and at same time Francisco took with him a bundle of linen among which was the compass. At some time he was desired by Peyton and McDonald to get another boat along with John Simmons and take a number of articles with them for the purpose of putting them on board the vessel then at the North Shore. In the evening they did as they had been desired. That after going as far as Bradley's Point and not finding the vessell they returned and left the articles on Pinchgut Island and brought the boat into Cockle Bay. Some time after meeting McDonald he informed me that he had made a fresh agreement with Peat that they were to go alternately to the Hawkesbury and he thought that this was a better plan than the other. That it was his intention to put some casks on board the vessell under the pretence of going to middle harbour when the articles prepared for the voyage should be put on board her. He called at Welsh's house where he found Peyton and [469] Millington concealed, where they informed me that they had secreted themselves until an opportunity offered of their going away. On the Sunday after I carried some empty casks, jams, some pumpkins and a bag of potatoes about a mile below Bradley's Point where he landed them and left them in charge of Peter Millington. On the Wednesday Peyton asked me if I was going down with them to assist in carrying the things down to the place where they meant to leave them. I told him I would not go but defer it to the next day, when I went to Peyton's house with John Worthington where I saw McDonald who informed me that he expected the vessell would leave the cove that day and that he would inform him in time for himself and Worthington to go down to meet the vessell. About the middle of the day he met again Worthington who informed him he had seen McDonald and that he had informed him it was his (McDonald's) intention to leave the cove in the [caiss] of an hour. That he himself and Worthington immediately proceeded towards [470] where the boat lay and on going we met George Boyden when Worthington informed me that he was one of the persons who was going in the boat. That myself Boyden and Worthington got into the boat and went down the harbour with an intention of joining the vessell where the provisions and other articles were deposited. Just as they got to Bradley's Point they observed the boat that had gone down the night before pulling towards the vessel. That himself with the others who were in the boat went down to the place where the several articles were secreted, but the vessel being on the south side and seeing the impossibility of their reaching her, it blowing very fresh, I returned to Sydney but left Boyden and Worthington at the deposit, and brought with me Molloy, Mrs Susannah Harrison, another woman, two children, one box, one trunk and two boys which were intended to have been put on board the vessell.

           Question by Peyton. Do you remember bringing some wheat up in Cheer's cart to the mill some time in April on a Sunday.

Answer. I do.

           [471] Question. Did you see me at the mill at the time you was unloading the cart?

           Answer. I do not as I recollect.

           Question. Did I ever forbid you coming within my gates any more?

           Answer. He desired me not to come so frequently through the front gate for fear of my being observed.

           Question by McDonald. Did you ever see me and John Simons together before it was fixed on to go to Batavia ?

           Answer. I never saw him before that night.

           John Simmons a Prussian sworn. Says that he went on board the Commerce with Overhand for the purpose of purchasing a quadrant which was done and brought on shore to Isaac Peyton's. That he saw Isaac Peyton give Overhand a 20 shilling bill to pay for the quadrant that was brought on shore. That he has twice brought provisions from Welsh's [shilling] to the deposit below Bradley's Point, which was for the purpose of going to Batavia. That at Peyton's house he was asked by Peyton and McDonald whether he wished to have his liberty, as a better opportunity never could offer as McDonald assumed the boat [472] and that in consequence of such agreement between himself, Peyton and McDonald he furnished himself with provisions for the voyage. That John Worthington, George Boyden, William Welsh and James Derbyshire alias Peter Millington, James Hargreaves and Dennis Molloy were to go with them. That he has several times taken provisions from Peyton's house for the voyage.

           John Lincoln, clerk to Mr David Bevan, sworn, says that Susannah Harrison with some person whom he believes to be Overhand came to his master's shop and purchased a compass which she paid for.

           John Mallott sworn as interpreter.

           Francisco a Frenchman on being sworn says by his interpreter that he did receive from Peyton's house a handkerchief with some linen among which was a compass. That he went with McDonald for the purpose of conveying the same on board the vessel and that it was his intention to go to Batavia, and that he identifies the several prisoners who were to accompany him to that place.

           [473] The evidence on the part of the Crown being closed, the several prisoners were put on their defence and first Isaac Peyton who calls Henry Kable who being sworn. Question by Peyton. Did I not apply to you for a passage for myself and children in the Commerce ?

Answer. For yourself you did, but cannot recollect you did for the children. Isaac Peyton delivers into court the paper no. 1 read by the Judge Advocate

           Hugh McDonald delivers into court the paper no. 2 read by the Judge Advocate

           Susannah Harrison delivers into court the paper no. 3 read by the Judge Advocate

           William Welsh denies the charge.

           Dennis Molloy denies the charge.

           John Worthington acknowledges the intention of going away from the colony.

           George Boyden acknowledges the same.

           James Derbyshire alias Peter Millington acknowledges the same.

           James Hargreaves acknowledges the same.

           Isaac Peyton guilty, sentence ¿50 and 12 months imprisonment in H.M. jail until fine paid.

           Hugh McDonald, guilty ¿50 and 12 months imprisonment in H.M. jail until fine paid.

           Susannah Harrison not guilty, as being under the influence of Isaac Peyton.

           William Welsh, guilty ¿50 and 12 months imprisonment in H.M. jail until fine paid.

           Dennis Molloy, guilty 300 lashes.

           John Worthington, guilty lashes.

           George Boyden, guilty lashes.

           James Derbyshire alias Peter Millington, guilty lashes

           James Hargreaves, guilty lashes.

           George Boyden, James Derbyshire alias Peter Millington, James Hargreaves, John Worthington having acknowledged their offences, the court by leave to recommend them to his Excellency's consideration.

Richard Atkins J.A.


[1] This is one of several cases concerning attempted escapes from the colony. The plan was similar to that of Mary Bryant's group, to sail away from the colony to the north.

Although they were not married, Peyton and Harrison had three children together. The court treated this as a sufficient relationship for it to make the usual assumption that a wife acted under the direction of her husband, so excusing her from her crime. The record refers to Harrison as Peyton's wife. Both of them were emancipated by 1807, and apparently desperate to leave the colony. However Harrison had a conditional pardon under a life sentence, which did not allow her to return to England. Peyton's trial at the Old Bailey is online as are the Old Bailey trial record and sentence hearing of Susannah Harrison.

See also in State Records N.S.W., Court of Criminal Jurisdiction, Miscellaneous Criminal Papers, 5/1152, p. 131; Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, 5/1145, p. 397; Sydney Gazette, 28 June 1807.

On Mary Bryant's escape, see J. Cook, To Brave Every Danger: the Epic Life of Highwaywoman Mary Bryant, and on escapes generally, W. Hirst, Great Escapes by Convicts in Colonial Australia.

Published by the Division of Law, Macquarie University