Skip to Content

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

The Governor v. Riggs [1820] NSWKR 5; [1820] NSWSupC 5

convict escape - sealing - false imprisonment

Supreme Court
Field J., 15 September 1820
Source: Sydney Gazette, 16 September 1820[1]

This was an action against the master of the General Gates American, upon the usual bond entered into by masters of ships coming to this port, not to suffer any person, convict or free, to be carried away without permission from the Governor; and not to quit the harbour without a proper clearance. The General Gates left the port a brig on the 29th July, 1819, and were sent back by the Master of the Dromedary, store ship, on the 12th May last, converted into a ship. It appeared by the evidence that the defendant had himself seduced and convened on board his vessel five, and suffered to be carried away five more, convicts, and one free man, from the Colony, many of them being the best mechanics in the employ of the Government. They were all set to work the ship as soon as the vessel cleared the heads; and, being bound for New Zealand, when she arrived at the Bay of Islands, they are all enrolled in the ship's articles, and employed in sealing like the rest of the crew. On the 12th April last, the General Gates fell in with the Dromedary, when Captain Skinner, being in the service of the British Government, went on board the American to reclaim the prisoners of the Crown. The defendant, upon seeing the Dromedary's boat coming towards him, sent the convicts onshore under pretence of cutting wood; and, when Captain Skinner proceeded to muster the crew, the defendant at first denied having more than three convicts, but afterwards owned to six. The Dromedary's people, however, found nine on shore. The next day Captain Skinner sent the prisoners back to this port by the General Gates, in charge of an officer and crew of the Dromedary, together with the defendant in arrest, and only two of his own ship's company; but his mate and two more were afterwards sent hither by the Prince Regent, of this port. There was a great deal of aggravating the matter on both sides, which the Court declared to enter into, in this dry action upon breaches of the defendant's bond, which were so clearly proved. The defendant's Solicitor complained of unlawful seizure, unrest, and imprisonment here; and the Solicitor for the Crown recriminated with charges of cruelty and starvation of the convicts on the sealing islands, and attempts to poison them on board of ship. But Mr. Justice Field said that these matters could not be enquired into in this action, and might become the subject of another. At present the Court had nothing to do with how the defendant was brought here: the plaintiff in this action found him here, and might sue him for this debt, like any other creditor. His present imprisonment had no connection with his original capture, whether lawful or unlawful: he was now in gaol under process of this Court, for not finding bail; and so far from having a right to complain of hardship and grievance, it appeared by the evidence before the Court, that this American, being suffered to refresh his ship here, while partaking of a valuable fishery, which we might if we pleased monopolise to ourselves, instead of repaying the hospitality of the port with gratitude, acted more like a pirate than the subject of a friendly civilised nation, and went about into low public houses seducing some of our best convict mechanics. The learned Judge had no doubt that this was a breach of the laws of nations between friendly powers, and might, perhaps, revive the embers of discord in countries now happily at peace, and involve the defendant himself in consequences of which he was little aware. The defendant pleaded that he had now left seamen on sealing islands, who if not relieved must starve. For those serious consequences he must himself be responsible. Although when he left this port, breaking through its regulations, he might not have expected to have been brought back by any other constraint than that of perils of the seas, yet he must be taken always to have contemplated those fatalities, and that necessity might bring him once more within a jurisdiction which would detain him for the penalties of his bond. And then, and not now, he should have thought what would become of the fishing parties which he had left on islands. Upon proper representations, the Governor of this Colony would take measures for the relief of those parties. All the Court had to do, was to decide whether this bond was not forfeited. They had nothing to do with the amount of the penalties, which were £500 each person carried away. Mitigation lay in the breast of the Governor. The Judge could only say that the existence of the Colony depended upon His Excellency's power to prevent the escape of convicts, and that though hundreds of ships had sailed from this port, and (he was afraid) thousands of convicts had been carried away, this was the first opportunity the Court had had of punishing so vital and offence.
The Court found a verdict for 12 penalties of £500 each, 11 for carrying away so many persons, and the 12th for quitting the harbour without a proper clearance.

Note

[1] This is another case concerning the liability of ships' Captains for the escape of convicts from the colony. It is notable for its evidence of the resentment of Americans who used the port of Sydney . See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2255 (no. 544).

Published by the Division of Law, Macquarie University