Skip to Content

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

R. v. Walton et al. [1827] NSWSupC 7

piracy - Admiralty jurisdiction - reception of English law - Norfolk Island - New Zealand - convict escape - Crown mercy - convict escape - hulk

Supreme Court of New South Wales

 

Forbes C.J. and Stephen J.,[1] 20 February 1827

Source: Australian, 21 February1827

 

John Walton, William Douglas, John Edwards, Charles Clay, alias Todhunter, John Smith, Richard Hicks, William Browne, James O'Neil, Edward Colthurst, Charles Daley, and William Ryan; were capitally indicted for piratically seizing of the brig Wellington, the property of Mr. Joseph Underwood at sea, 40 leagues from Norfolk Island, on the South Seas, on the 21st of December last, and stealing a quantity of clothing and muskets, the property of the Crown.[2] 

Mr. John Harwood examined; is Master of the brig Wellington, sailed from this Port on the 11th of December last, bound to Norfolk Island; and thence to return to Sydney was chartered by government to convey 66 male prisoners, a party of soldiers, and stores, to that settlement.  Whilst in lat. 31, and long. 164, about 250 miles distant from Norfolk Island, on the 21st of December last, as the ships officers were employed in taking the sun's altitude about noon, some of the prisoners rushed forward, secured the officers and crew, while others rose upon the guard and forced them below.  The prisoner Douglass approached witness, and presented a loaded musket, which he had previously got forcible possession of from one of the soldiers.  Another prisoner named Lynch, at the same time, laid hold of witness, commanding him to surrender.  Lynch shouted liberty or life; several other prisoners surrounded witness and confined him a prisoner on deck.  Douglass stood over him with a musket.  Walton shortly came up and demanded his charts, which were given him.  Walton then asked witness which was the nearest port to put into for water, as he declared he was not going to Norfolk Island.  Witness advised him to make for the Bay of Islands or New Caledonia, but recommended the former place.  Walton adopted the suggestion, and altered the course of the vessel accordingly.  The prisoners then confined below, two passengers and the first and second mate.  The sailors were put into an after cabin; the troops were put down the forehatchway with some of the prisoners who had not joined in the piracy.  Same evening a gale of wind sprang up, the sailors were in consequence ordered on deck, and commanded to work the vessel.  The troops had their muskets loaded at the time they were taken by the prisoners; heard several shots fired about that time.  As soon as the prisoners had got possession of the ship, they gave three cheers, and shouted liberty or life; they then began to knock off their irons.  Walton instantly assumed the command; a steward, and a first and second mate were resolved to be appointed out of their own number.  Prisoner Douglass, was elected by his associates to be the first officer, prisoner Edwards, second officer, and prisoner Clay, steward.

Walton was present at the time that the three men assumed their respective appointments in the vessel.  A guard was raised among the prisoners, to the number of about 40. - O'Neil acted as serjeant of the guard.  Those men took the military clothing from the soldiers, and dressed themselves in the same.  All trunks and cases on board were diligently searched, and broken open in quest of ammunition.  The prisoners then loaded their small arms.  The brig carried two long 4-pounders on the quarter deck - they were loaded by the prisoners - regulations were entered into by the prisoners for the purposes of subordination in the ship.  A council of seven was formed, and one John Lynch, a prisoner, was sentenced to undergo a punishment for some misdemeanor.[3]   The Wellington was proceeded with to New Zealand.  On arriving there the Sisters and Harriet whalers were lying at anchor.  Captains Duke and Clark, of the respective vessels, came in company on board the Wellington.  They made a second visit in the evening of the same day.  Witness was assisted by one of the New Zealand natives to convey a note privately to Mr. Fairburn a missionary, intended for Captain Duke, acquainting him of the situation of the ship, and enclosed the manifest, &c.  Captain Duke came on board several times after. Walton made a visit to the Sisters.  He returned home shortly after, saying he wished he knew who was the writer of a letter out of the ship, for he would knock the man's brain out.  About day light on the following Sunday morning, a shot was fired from the Sisters - a second shot was fired about two minutes after, which cast away the fore top mast rigging of the Wellington.  The Harriet next opened a fire upon the brig, and discharged the whole of her six guns.  The two ships continued to keep up an irregular fire, but ceasing at intervals.  The prisoners ran below, leaving the deck clear.  They did not return the fire.  At this time witness was in the cabin, Walton and Edwards were there.  An American black came on board to enquire of the prisoners what were their intentions.  Walton told the black that he would keep the crew, guard, and prisoners below.  That all should share the same fate, unless the natives were removed from the shore.  Witness told Walton that several canoes of natives, provided with 200 stand of arms, were coming on board, and intended to massacre the whole.  The prisoners then consulted together, and some paper writing was sent to Capt. Duke of the Sisters.  This was followed by a dismissal of all the natives about the shore. Some of the prisoners left the vessel for the shore. The remainder continued on board, where they were locked below with the soldiers.  The former were retaken on shore by the natives, and brought back to the vessels.  The occupations of the prisoners at the bar were as follow - Walton acted as Captain, Douglass chief mate, Edwards 2nd mate, Clay steward, O'Neil serjeant of the guard, Brown as ordinary seaman, and the remaining four men as soldiers.

Cross-examined for the prisoner Walton - was not in sight of any land when the brig was taken by the prisoners - understood that it was their intention to make for New Zealand, and that it was their ultimate intention to deliver up the vessel - their object being solely to regain their liberty - does not know that any of the prisoners at the bar were on the deck when he was arrested - whilst in the cabin witness was assaulted by the prisoner Douglass, who appeared to take an active part in the proceedings - did not see Colthurst on the deck.

By the Court - Colthurst did not take any forcible part in the transactions to witness's knowledge.  The prisoners at the bar were received on board the brig from the Phoenix hulk for transhipment to Norfolk Island.  The owner of the brig is Mr. Joseph Underwood - witness was the sailing master.

Mr. Wm. Buchanan examined - was a passenger on board the Wellington on the 21st of December last - was on the quarter-deck - heard a noise in the fore part of the vessel - on looking thence, saw a prisoner wresting a firelock from a soldier - witness suspecting the intentions, attacked one of them, but was opposed by others - one man knocked him down and deprived him of sense for a few minutes - the whole of the prisoners on deck had by this time possessed themselves of fire-arms - Walton, Douglas, and Edwards demanded the charts from the Captain - about a dozen of the prisoners stood by at the time - Edwards appeared to take the direction of the marine guard duty - O'Neil acted as serjeant of the guard - Brown was engaged as a sailor - Daly paraded the deck with fire-arms - never saw any other of the prisoners with fire-arms in their possession - Colthurst did not appear to be an active agent in the business witness was confined to his cabin.

Several witnesses were called to identify the prisoners as parties implicated in the seizing of the vessel, and afterwards keeping the command on board.

Some legal objections were taken in behalf of the prisoners which were overruled by the Court.[4] 

The Chief Justice summed up at considerable length; and the Jury; after about ten minutes consideration, found all the prisoners Guilty.  They were remanded.

The Court was crowded to great excess during the whole of the day.  The trial seemed to excite the most intense interest.

 

 

Forbes C.J. and Stephen J., 26 February 1827

Source: Australian, 1 March 1827

 

The court was crowded to great excess this morning, in consequence of its being known that the pirates would be brought up to receive sentence.  At a few minutes past 10 o'clock, the Chief Justice and Mr. Justice Stephen entered the Court, and took their seats.  The rush of strangers to procure seats was considerable.  After a little delay the prisoners were put in the dock, to receive judgment in the following order: -

John Walton, William Douglass, Charles Clay, John Edwards, James O'Neil, James Smith, William Browne, Edward Colthurst, Charles Daly and William Ryan.[5] 

The Court having been addressed on some legal points; -

The Chief Justice disposed of the case in the following manner:-

In this prosecution against Walton and others, for piracy - my learned coadjutor coincides with me in the opinion I entertain of the case generally, as affects the prisoners at the bar. What has been urged in favor of the prisoners,[6] is not so much a motion in arrest of judgment, as it is to put to the Court a certain line of argument, to consider whether the prisoners can be guilty of the crime laid against them, upon the proof that has been produced; this was rather a legal point which was raised on the trial, but which I saved, to be used if thought proper by the defendants, at an ulterior stage, when the case might undergo the most careful consideration; since then, I have considered the subject, and I do not think there is a case favorable to the prisoners made out.  It has been said, suppose an application had been made to this Court for a habeas corpus, to bring the prisoners from the Hulk situated as they then were, preparatory to embarkation on board the Wellington, and destined for Norfolk Island, would the instrument, the keeper of the hulk held in his possession for keeping the men prisoners, have been considered by the Court as sufficient to warrant their detention.  It is possible that the Court might have considered the paper not to have been one of the greatest regularity - but it would also have considered whether it would be doing more justice to the public, to liberate the parties from custody, than to remand them back to prison with a more proper authority.  But there is no analogy between the two cases.  In the one instance, the parties would have appeared as complainants, on the ground of improper detention.  But, the case before the Court is, the case of prisoners who stand before the Court convicted of a capital crime, established with proof of felonious intent, by the verdict of the Jury who tried them; this is admitted by the prisoners, who urge, that what they did, was only in exercising a natural right which belonged to them, and only so much as was necessary to liberate themselves from the arrest they were under.  By their own mode of defence then, the burthen is thrown on them, to shew that they were improperly detained, and that they committed no act but what was necessary to liberate themselves.  Had the master of the vessel a warrant for the detention and custody of the prisoners; did it emanate from authority, and were the names of his prisoners specified in the warrant?  This is the case before the Court.  What is that warrant.  Why, by law, the Governor of this Colony is authorised to carry into effect the judgment of this Court.  A Colonial Act establishes penal settlements in the Colony, for the transportation of offenders who may be convicted before a competent tribunal, leaving it to the Governor to appoint the time and place, when, and where to send them. - No particular form is required by the Act whatever.  What then is the natural course to resort to.  The Governor communicates an Order to the Colonial Secretary, and the Secretary writes to the keeper of the hulk, requiring him to tranship a certain number of men, whose names are specified in writing; on board a particular vessel for removal to some penal settlement.  So much was actually done.  I do not conceive it necessary for the Governor to forward the original document of conviction, &c.  The act of transportation is begun as soon as the prisoners leave the hulk.  It is matter of proof afterwards, whether the Governor gave any orders for the removal.  It was proved in evidence, that his Excellency did so, and that it was by his Excellency's instructions the removal did take place.  I cannot allow this case to pass without saying further to prevent error going abroad - that the case of the prisoners was one of the most violent character.  The place where they committed the offence, and the means resorted to, were alike dangerous.  When once an act of violence begins it is impossible to know where it would stop.  Much bloodshed might have been the result - there were not merely nets of violence, but plunder committed.  The ship belonging to Mr. Joseph Underwood, was runaway with - and stores, the property of government, used.  I cannot allow it to be supposed, that, because parties are irregularly sent to a penal settlement, they are justified in committing piratical acts, and going into all the extremes of violence.  There does not appear any thing upon which the Court can stop its proceedings as respects the prisoners, the objections taken at the time of trial were ingeniously handled by able Counsel, whose assistance the prisoners have had, and the Court have given them its serious consideration.  I am of opinion, that there existed nothing on the face of the record which would render it liable to objection; the remaining objections are quite invalid and untenable.

Mr. Justice Stephen coincided in the opinion given by the Chief Justice.

The Chief Justice then proceeded to address the criminals.  You have been severally convicted of an act of piracy, committed on the high seas, on board a vessel called the Wellington, on the 21st of December last.  The offence charged against you was, that being on board that ship, on a voyage to Norfolk Island, you rose on the master, subdued him and the troops that were on board  possessed yourselves of the vessel, and ran away with her, changing her course from the one she was then steering - you afterwards appropriated a certain proportion of the King's stores to your use - these facts have been established against you by the verdict of a Jury; and I shall not do my duty, without, in a few words adverting to the enormity of your offence.  It falls within my own personal knowledge, that the whole of you have been convicted by this Court on previous charges - crimes for which it is possible, had you been tried elsewhere, your lives would have been forfeited.

But, it is also known to me, that there is a great degree of humanity presiding in the administration of justice in this Colony.  Some of your cases are of a deeply aggravated character.  You added to the original sins you have committed, after having, through the merciful consideration of the Governor had your lives preserved, by a mitigation of the severities of your sentences.  You now endeavour to justify yourselves, by shewing that you did not act beyond what was merely necessary to take the vessel, and would impress on the Court that it was done on a principle of self-preservation.  The plan you set out with, was to take the vessel to some port in South America, you then promised to return her to the owners.  What you might have intended to do, or what were your real views the Court cannot tell.  There might be a policy in saying you would give up the vessel.  When at New Zealand, you endeavoured to escape, to get away.  Why was it, because force was employed, and you were obliged to give up your piratical design, and surrender to the terms of your captors.  In every point of view, your case is of a very aggravated character, for you have abused that clemency, which a merciful and forbearing hand extended to you.  The sentence therefore of this Court is, "that you, and each of you, be severally hanged by the neck, until your bodies be dead."[7] 

 

 

Execution, 12 March 1827

Source: Australian, 13 March 1827

 

EXECUTION.

Five of the unfortunate men whom we had occasion to mention in our last as having been selected from amongst the number of others concerned in the late piratical seizure of the Colonial brig Wellington, to be the victims of justice, have terminated their existence on the gallows.  The awful ceremony was gone through before eleven o'clock of yesterday forenoon, and deemed to operate with an equally imposing effect on the unfortunate sufferers, and spectators of all classes, of whom there was a greater assemblage than usual.  Edwards, Smith, Leddington, Johnson, and Colthurst, [8] were the five men to whom it has been thought, in consideration of their former offences, which would have drawn upon each of them the law's extremest rigour, had they not been permitted to reap the advantages of a conditional pardon, mercy could not be reasonably or justly extended.  The respite in favor of Douglass, which arrived at the gaol on Sunday morning, changed his fate to that of transportation to a penal settlement for life.  He accompanied his unfortunate fellow prisoners to the scene of retribution, and with Edwards, and another of the culprits on one side, and accompanied by the Rev. Mr. Power, left the condemned cell at about half past nine - the remaining three, following with the Rev. Mr. Cowper and Mr. Therry.  On reaching the gaol yard, and after hearing their death warrant read over by the Under Sheriff, the unfortunate men separated and joined the Reverend Clergymen in prayer, with an apparently real and unaffected spirit of devotion.  Edwards' demeanor was particularly firm and composed.  It was as free from affected carelessness or hardihood as from unmanly and useless trepidation, and his last closing scene formed a remarkable contrast with that of his previous life.  After passing about twenty minutes in prayer, the five culprits rose from their knees, and ascended to the fatal platform.  When the preparations of death were nearly completed, and the Clergymen had retired, Edwards requested to be allowed a short time longer for the purpose of devotion, in which the Under Sheriff expressed his hearty concurrence.  The five unhappy men then knelt together, and with a silent and unmixed attention, heard Edwards read from a prayer book the seven penitential psalms of David.  This man's manner of repeating the whole, and particularly those passages which seemed applicable to the situation of himself and his unhappy companions, was solemn, unaffected, and impressive - his articulation, thought at times somewhat tremulous, was throughout distinct and audible, and could scarcely fail of making a deep and salutary impression on those who heard him.  "My days are vanished like smoke, and I am withered up even as grass," he pronounced with particular and affecting emphasis - his unfortunate companions seemed alike penitent and resigned. - Edwards attempted to address the assembled multitude and admitted being one of the party who assisted in pirating the Wellington, an act for which he had been convicted and was about to suffer; but added that he had been found guilty of the original crime for which he was transported wrongfully.  It may be recollected that this man was tried for a burglary in a house in Sydney; and being convicted, judgment of death was recorded against him.  He also acquitted Colthurst, another of the culprits, from any participation in the piracy.  The latter protested his innocence of that crime; but expressed no desire to live, as he hoped his peace was made with God.  They met death with fortitude, and a general impulse of regret that their previous actions should have called for this awful sacrifice, appeared to pervade the minds of the spectators generally.  By the execution of those five men the ends of justice cannot but be fully satisfied, and we must again express our desire that mercy may be allowed to resume her seat uncontrolled, and that the transportation of the remaining sixty to Norfolk Island or elsewhere, may be considered quite sufficient without the extra labor of working in double or in single irons.

Immediately after the execution Douglass was removed on board the Hulk, for transportation to Norfolk Island.

 

Notes

[1] Justice Stephen sat with Forbes C.J. on the first day of the trial, and concurred with the sentence: Forbes C.J. to Governor Darling, 26 February 1827, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 95.

[2] The Sydney Gazette reported this trial on 21 February 1827, noting that the prosecution was conducted by the Acting Attorney General, W.H. Moore.  The Monitor (24 February 1827) reported that the pirates treated the crew and passengers with courtesy.  The Australian (1 March 1827) noted the unusual sight of "Red coats and fixed bayonets, acting as constables" in the piracy trials; there were not enough ordinary constables in Sydney at the time to ensure the safe custody of the defendants.

This was not the only piracy trial at this time.  See also R. v. Flanagan et al., 1827.  There was a further trial on 22 February 1827: see Australian,23 February 1827.  See R. v. Flanagan et al., 1827, footnote 4; and Convict Assignment Opinion, 1827, footnote 1, for discussion of the defence that some of the men put, that they were being taken to Norfolk Island illegally.

[3] The report in the Sydney Gazette (21 February 1827) gives more detail here: "7 of the conspirators were appointed as a council to try those who committed misdemeanors, by regulations which were written by Walton, and by them Lynch was tried and ironed".

[4] Only the Monitor (24 February 1827) gave details of this: "Dr. Wardell, on behalf of Walton, addressed the Court; having been retained but a few minutes before the commencement of the trial, he regretted that in a case of so much importance he had been unable to devote much attention to it, but flattered himself he should be able to shew that the information was invalid; before he went into the case, he would take the liberty of suggesting that no case of piracy had been made out, although the first evidence went partially to maintain it, yet it was admitted on the face of the general testimony, that no robbery was contemplated; the act was a violent one, but it amounted to borrowing only, with an intention of returning the vessel to her right command as soon they should have obtained their liberty.  In referring to the information, he found it framed upon common law, charging the commission of acts `against the peace of our Lord the King.'  Piracy was not (the learned gentleman contended) an offence at common law, but punishable by civil law process, as enacted by 18 Hen. VIII. C. 15, which made it statuteable, and such an offence must necessarily be `against the form of the statute;' still there were two modes of procedure open at common law and statute law; - if the former was adopted, all incidental forms and essentials were requisite; in the Court of Admiralty, constituted for the trial of offences committed on the High Seas, no jury was necessary.  If the information had not been so penned, but as `against the statute,' then the present constitution of the Court was proper.  The New South Wales Act gave it jurisdiction independent of any other act, though others were in existence.  It was to be collected from its wording, that the Court had power to take cognizance according to the forms in England, but under a restriction of jurors, from twelve civil subjects to seven officers[.]  it was not, then, to be imagined, that when a Court in England was empowered to try with or without a jury, that the Court should try according to both forms; it could not do that which civil law might do with a common law jury.  The information was in its conclusion de facto on a common law basis, and openly avowing it; with such civil law basis it had common law procedure, and if such precedent were admitted, a Court of Equity might require in like manner a jury also.  On this ground, therefore, the evidence was defective, and his opinion was supported by the exposition of the statute of Henry, in `Hawkins's Pleas of the Crown.'  It did in fact charge that as an offence, which the law said could not exist; the same laws and forms of Court were valid here as in England, and the Court had not a power superior to an English Court, unless it were practicable to take a limb of one and a limb of another in order to constitute a whole case.  Again, he (the learned counsel) had to remind the Court that the statute required the offence to be committed within the jurisdiction of the Court of Admiralty; the information set forth that it was within the limits of  `this honourable Court.'  It told then no more than if it had been silent, it contained no allegation of the Admiralty jurisdiction, and that was an essential requisite.

"Mr. Rowe, by the previous request of the Court, then rose on behalf of the other prisoners; he objected to the indictment and proceedings, because it had not been shewn that the Wellington was a `British ship,' as specified in the enactment, and on which alone an act of piracy could be committed; non constat, that although the Wellington might be the property of a British subject, yet she might be an American, or other foreign ship; there was no averment to the contrary.  Further, it was not in evidence that the prisoners before the Court were those that were charged with having been previously convicted, no record had been adduced; or that Norfolk Island was the place assigned for the reception of criminals; neither had the right of the Governor to send them thither been proved.  It was admitted that the Captain had no legal instrument to authorise their detention; gaol breaking was not punishable where no warrant of committal was held by the gaoler, and the master of the vessel having no warrant, was guilty of an illegal act in detaining the prisoners.

"The Chief Justice, in charging the jury, took a retrospect of the different statutes for the punishment of piracy.  His Honor entered into a very long and elaborate exposition of the laws, as they applied to the present case; and the relative bearings of each particular enactment, by way of meeting the arguments of the learned counsel, and demonstrating the legal constitution of the Court, overturning all the objections raised.  The evidence admitted of but little comment, it was complete in itself, and was not attempted to be contraverted in any one substantial particular.  The simple question for the jury, therefore, was the degree of guilt attaching to each of the criminals.  The jury then retired for a quarter of an hour, and returned a verdict of Guilty, against all the prisoners."

[5] The Sydney Gazette, 27 February 1827, says that the Acting Attorney General, W.H. Moore, prayed the court's judgment against 23 men convicted of piracy, that is, from all the piracy trials.  See also Monitor, 2 March 1827.

[6] The argument by Mr Rowe was summarised in the Sydney Gazette, 27 February 1827.  He said that the master of the Wellington did not have sufficient legal authority to hold the  prisoners.  The Superintendent of the hulk had not received the prisoners in the way required by statute, from the governor of the gaol.  There could be no legal detention in the master of the Wellington and the prisoners could have applied for habeas corpus.

[7] Justice Stephen concurred with the decision of Forbes C.J. to sentence all the men to death.  As usual in cases of capital sentences, the Chief Justice sent the case to the governor for consideration of Crown mercy: Forbes C.J. to Governor Darling, 26 February 1827, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 95.

[8] The leader of the pirates, Walton, is a notable omission from this list.  The Sydney Gazette on 6 March 1827 (and see 29 March 1827), argued that compassion was appropriate in his case because he had led the good treatment of those they captured.  Others, doubly or trebly convicted, deserved no such compassion.  The Australian of 10 March 1826 showed that Walton, along with the others who were sentenced to death but reprieved, were put on board the Amity on 7 March 1827, which immediately sailed for Norfolk Island.  The six men chosen to die were all capital respites; all had previously been sentenced to death, or to death recorded, before the piracy.  The selection of the six (later five) men to hang was made by the Governor and the Executive Council, but the Australian hinted that it was Forbes C.J. who was responsible for the welcome clemency shown to the majority of the pirates.  Governor Darling reported this to London on 7 March 1827, confirming that Walton had received clemency for the reasons given by the Gazette.  Darling said he would have ordered the execution of Walton, but that the Council was unanimous in recommending mercy: Darling to Hay, 7 March 1827, Historical Records of Australia, Series 1, Vol. 13, pp 146-147; the minutes of the Executive Council meeting on the issue are at pp 157-158.  The King approved the commutation of sentences of all but the five who hanged: Huskisson to Darling, 1 October 1827, Historical Records of Australia, Series 1, Vol. 13, p. 531.

The Sydney Gazette, 8 March 1827, showed that those reprieved were not to receive soft treatment: they were sentenced to work in irons for the rest of their lives.  See also Sydney Gazette, 13 March 1827. Walton was still working in chains on Norfolk Island in 1833.  He was a gentleman and scholar, claimed the Australian, 19 July 1833, who was now dragging out a miserable existence.

Colthurst was being sent to Norfolk Island as punishment for the murder of the Aboriginal boy known as Tommy.  See R. v. Chip, Ridgway, Colthurst and Stanly, September 1826.  In effect, he was hanged for the murder, because it was his former crime which led him to be one of the few pirates chosen to be hanged.  As the Monitor (24 February 1827) noted however, Colthurst was recognised by only one witness in the piracy trial.  Others said he had not taken part.  The Executive Council minutes, referred to above, state that those chosen to die were selected "either in consequence of their violent conduct whilst effecting their purpose, or from the vicious course of their previous lives".

In most cases where a prisoner was sentenced to death, the trial judge sent a short report on the case to the Governor, stating whether he recommended that the prisoner not be executed.  The circumstances of these pirates varied so much, said Forbes C.J. in a letter to Governor Darling, that he sent his trial notes instead: Chief Justice's Letterbook, Archives Office of New South Wales, 4/6651, p. 95.  Some cases of Crown mercy were apparently decided by the Governor alone, and others were referred to the Executive Council.  For an example of the former, see Forbes C.J. to Darling, 18 [sic] September 1826 saying there is no reason why Isaac Smith ought not be executed; and Darling's reply, 9 September 1826 saying he should hang.  The case of the murderers of the Aboriginal boy, Tommy, was discussed by the Executive Council.  See R. v. Chip, Ridgway, Colthurst and Stanly, September 1827; and R. v. Stanley, March 1827.

One of the convicts, Harris, escaped while the Wellington was in New Zealand.  Eventually, he joined another ship there as a seaman, but was soon discovered due to his lack of seamanship.  He was taken to Botany Bay and lodged in custody: Australian, 9 May 1827.  Another, John Lynch, escaped, but was hanged for another crime later in 1827: see R. v. Lynch, June 1827.

Published by the Division of Law, Macquarie University