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

Roberts v. Moncrief (1828) Sel Cas (Dowling) 88; [1828] NSWSupC 7

convict discipline, ship, discipline on, false imprisonment, new trial

Supreme Court of New South Wales

Dowling J., 13 March 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461[1 ]

Thursday 13th March 1828

Roberts v Moncrief

Before Dowling J

[pp 276-277]

[Where Boatswain of a convict Ship was ordered by the Master, with the authority of the Surgeon superintendant to Flog a Convict boy and having refused so to do he was placed in confinement on the poop: Held that conduct of the Master was lawful; and the Plaintiff after refusing to perform the general duties of the Ship, was confined in like manner during the remainder of the voyage.  Held also that the Master was not liable.]

[p. 276] Action on the case for false imprisonment.

Plaintiff Boatswain of Ship John of which Defendant Master Plaintiff hired himself to Defendant to do and perform duties of Boatswain under the direction of the Defendant and entered and undered [sic] charge; that vessel proceeding on her voyage when Defendant ordered plaintiff to inflict Corporal punishment on a Convict felon that plaintiff was only to navigate the Ship  Plaintiff refused to inflict such punishment on the high seas: - that in consequence of such refusal Plaintiff was forced on the Poop and detained for 115 days during all which time suffered pain and anguish day and night deprived of his dayly allowance of meat drink

2 Count   31. August 1827.  On high seas [p. 277] without reasonable or probable cause and without the licence of Plaintiff directed him to be kept on the poop to be imprisoned for 115 days during which time suffered by vertical Sun, and deprived of dayly allowance of meat drink and other necessarys.

3rd Count  with causing the plaintiff to be imprisoned and confined for 115 days and other wrongs to damage of Plaintiff £500.  Plea not guilty.

Mr Rowe   Plaintiff confined on deck for 155 days on poop by night and day with a covering or tarpaulin not sufficient to keep out rain or cold, for refusing to flog a Convict.

Food one Biscuit per day and an allowance.  State reduced Legs swollen.

He applied to soldiers for a pricker to get relief by flowing of blood.  But for kindness of soldiers and Messmates Plaintiff must have lost his life.

No part of the duty of a Boatswain to inflict punishment on Convicts  No part of the duty of Ships Company to inflict punishment on these persons.  [p. 278]  If it is duty should be a matter of special agreement.

Witnesses should be examined de be ne esse.[2 ] 4 G. 4. C. 96. s. 37.

Punishment by surgeon with approbation of Commander.

No entry in Log book.

Not an insolent refusal but respectful

About a month after the vessel left London A first relived from duty

With fresh cause directs him to be imprisoned 114 days, night and day heat and cold - 1 biscuit and water.

In the harbour confines him for 20 days in New South Wales - no complaint

Prisoner escaped from the Vessel

No complaint against him when disturbance took place active in suppressing.

Assisted vessel in distress

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Deposition taken before J. Stephen Esqr  Examined in pursuant to the rule of Court 31st Jany 1828 - Rule 35.

[p. 279] Robert Philips disobedient

Wm Aldwell sent to Gaol for misbehaviour

James Wareham Lucy Ann, Left ship and refuse to work

John Thomson of John now Lucy Ann sent to Gaol for knocking off work

Francis Sells A few days after leaving the Land

Thomas Howard knocked off duty

Wm Willoughby Apprentice.

James Stefford Let 40 Regt.

I came out to this Country in the John a Convict Ship came with the guard to be security to the vessel and guarded the Convicts the Commander was John Moncrief the Defendant.  The Boatswain was the plaintiff.  We left Sheerness on 22nd July 1827 Tonnage 460 188 Convicts 46 Ships Company including the three Mates.  I had the Command of the Detachment.  Three Cuddy passengers 30 men 4 women and 3 children.  We arrived on the 25 Nov. 1827.

The Plaintiff at first did duty I saw no neglect of his duty.  We had been at [p. 280] sea three weeks when he ceased to do his duty.  I have heard from Defendant that the reason he did not do his duty was because he refused to flog one of the Convicts.

I know as a fact that the Plaintiff was a prisoner on the poop   I understood from Defendant that Plaintiff ceased to do duty by order of Defendant   He was confined from about a month or five weeks after the voyage commenced until I landed at Sydney.  I landed in two days after the Vessels arrival and I then left the plaintiff a prisoner on the Poop he was actually confined to the Poop.  To my knowledge I never saw him off the Poop during the whole of that time.  I saw no other restraint except orders

I understood and heard Defendant say that he had ordered the Plaintiff to be confined on the Poop.  We frequently had rain and hard weather during the passage.  I have seen him during rain and other weather on the poop, and whenever I did see him he was on the Poop. He had a sort of Tarpaulin to cover him but it appeared [p. 281] to me to be an old one it appeared to be a bad one.  I have heard from Defendant that he had stopt Plaintiff's allowance except his allowance of bread and water.  The weather was very cold during the time of Plaintiff's confinement.  There was hail but no snow.  I never had any conversation with the Plaintiff.  The Plaintiff appeared rather cold.  The hencoop was placed all round the poop.  The Plaintiff was confined in the space between the Coops, where he had his bed   I never saw the Plaintiff take anything but his bread.  There were three Centries on deck.  None were near where Plaintiff was.  I never interfered with the Defendants Duty nor he with mine.

It was not immediately that the plaintiff was ordered on the Poop after he left off duty but only days afterwards.

Mr McConoll was the Surgeon superintendant he died during the passage.  About a month before we arrived.  Shortly before his death he threw himself overboard.  He was picked up by some of the crew.

[p. 282] By the Court.  There were several instances of punishment inflicted on the Convicts for misbehaviour during the voyage.  On one occasion the Mate inflicted the punishment and in the other instances one of the Convicts was appointed by the Surgeon, in one other instance one of the Sailors inflicted the punishment.  After the Surgeons death the Defendant had the Command of the Vessel and instances occurred where it was necessary to punish the Convicts.

In general during the voyage the Convicts were disorderly.  The Boatswain is the next person in authority to the Mates and Captain.  He has to order the sailors to work and take care of the Ship and do their duty.

It is a situation of trust and confidence.

Thomas Sutherland  I am a Private in the 40th Regiment  I was attached to the guard under the Command of Lt Stefford on board the John.  The plaintiff did not perform the duty of boatswain during the voyage.  He [p. 283] ceased.  I saw the Defendant go up to him on the Poop with some cats in his hand.  The boatswain came down Shortly, and went forward towards the head of the Ship   about a fortnight after this I saw him in confinement on the poop.  I heard Defendant tell Mr Millwood 2nd Mate that he was to be confined on the poop and afterwards I did see him in confinement from about the beginning of August until we left the Ship on the 27 or 28 November last.  We remained on board in the harbour 3 days   the Plaintiff was on the poop day and night during the whole of that time.  I saw him myself during the whole of that time.  He had an old Tarpaulin to cover him.  We had a good deal of rain on the passage.  The boatswain has has [sic] shown me the holes in the tarpaulin two or three times and I have seen his bed wet after the rain.  His limbs seemed benumbed.  They were blue and Black.  His legs.  I saw him with a soldiers pricker put it in behind hiss leg.  I dont know whether it was to relieve himself.  It did not bleed.  He had a pound of biscuit bread with water. [p. 284]  The biscuit was the same as the sailors had.  I know that he has been irregularly served with bread.  I have seen him take bread and peas from the hen coops near were [sic] he lay.  He seemed as if he was hungary.  During the voyage there was a disturbance among the Convicts.  The Plaintiff was confined at that time.  It was in the night in the prison of the Ship.  The Plaintiff came down into the hold with a cutlass which he took from one of the men.  I saw him go down during the time with a cutlass.  I believe this was after the Doctor died.  He had been in confinement for some length of time before this disturbance took place.  There was a soldier in each hatchway, and another soldier named Francis Northwood went down.  I never saw the Plaintiff assist the vessel but once or twice after he was confined.  I saw him once after the Doctor was thrown overboard, assist in pulling up the boat which had been let down to save the Doctor.  At times when the weather was rough he has assisted at the Wheel.  I once saw him assist Ellis [p. 285] when a gale came on.  The prickers we wear are made of brass metal.  The pricker perforated the skin of the Plaintiff.  I dont think it was likely to cure.  It was behind the back part of the knee.  The Captain seemed to be careful about not letting us know when we crossed the line.  It was after the hot weather was over that this disturbance took place.

The Plaintiff said at the time he was pulling up the boat let down for the Doctor "A bread and water pull is better than an able seamans" and the first Mate laughed.  The boat had caught against something it was said as a joke.  He was smiling.  I knew he was not able to pull as an able seaman.  He seemed in that weak state that he could not do it as well as an able seaman.

James Brooks  I belonged to the military detachment on board the John.  The Plaintiff did not continue to do the duty of boatswain during the whole voyage.  The Plaintiff had only a pound of biscuit and cold water during the time he was on the poop.  I have been on [p. 286] the poop when his allowance has been brought up.  This I saw several times.  I never saw any meat or grog served out to him.  I have heard Defendant say that that [sic] he would have the Plaintiff confined for refusing to flog a Convict boy.  He said he the Plaintiff should have a pound of bread and water a day.  I received 1 lb biscuit, and a pound of meat, and peas, lime juice and tea, and Cocoa and sugar; a gill of grog a day.  The fowls were fed with barley, peas and biscuit refuse.  I have seen plaintiff take peas out of the hen coops and eat them.  He appeared to me to eat them from hunger.  I have heard him complain to the Defendant for his usage.  He has asked for more provisions and the Defendant said he should have no more.  He has complained as if he was in want.  They have been made than once.  The Defendant said he would not give him any more provision.  He looked very cross and said he should not have any more.

The weather was very cold, and very wet indeed part of the time.  The Plaintiff [p. 287] was confined by day and by night in rainy as well as fine weather he had only an old tarpaulin.  The Tarpaulin did not keep the wet out there were holes in it.  I have been under the tarpaulin myself when it has rained and then I knew the rain came in   he had his own bed best part of the time, but when the Doctor fell over, it was thrown over board and then he had no bed to be on for nearly a week.  I have seen his bed wet through very often, I have seen his legs and arms they were very blue and discoloured   I have seen him sit down and rub them for near an hour together I have seen him run a brass pin in them to draw blood but none flowed.  I have seen him do this three or four times this was when his legs were discoloured   I remember a disturbance among the prisoners.  I was on Centry in the middle Hatchway.  I saw Plaintiff go into the hold with the first second Mates and with the Captain into the hold   Northwood a soldier was also with him.  He went down and pointed out the hole where the prisoners got out some of them had been out [p. 288] there was a bottle found with the boys.  After the disturbance was quelled the first mate brought him a glass of grog but he durst not drink it.  He said he had been so long on bread and water he was afraid it would hurt him.  He then returned to the poop, and he continued there until we arrived in Sydney.

The first Mate went and asked him to return to his duty just after the Doctor died but he said he had been so long confined on the poop he would see whether he could not get satisfaction when he got here.  This I only know from hearsay.  The Plaintiff doubled the Tarpaulin but it was so old and torn all to bits it was not worth two pence.  He put the brass pricker into his leg 3/4 of an inch in several places in the calf of his leg but no blood flowed.  He said his legs were so much numb and dead that he could not feel.  He could walk it was as much as he could do   it was just off the Cape when the Doctor jumped over board.

By Court The Captain had dayly opportunities of [p. 289] seeing this state in which the man was.  He appeared weak   when he first came on board he was a strong and hearty man.  He looked very bad at the end of the voyage.  After put on bread and water the Captain of the ship had had opportunities of seeing the alteration in his health.  After we had been on shore a week he came to see us at the barracks.  He was then rather in better health.  After he was put under arrest he voluntarily assisted the ship inn a storm, and was active in recovering the Doctor.  In the early part of the voyage he was active in the discharge of his duty.

Francis Northwood

I was one of the guard on board the John.  The Plaintiff was confined by the orders of the Defendant.  I heard him order it.  He told him to go on the poop for that he had too much liberty on deck and that he was not to be allowed off.  He was not to be allowed off to do duty.  He was to consider himself a prisoner on the poop.  I never saw [p. 290] him off the Poop only one night when there was a piece of work below when the prisoners were breaking through the deck.  He went with a Cutlass to assist the guard.  He went down along with me.  He pointed out a hole through the deck under the bed clothes.  The Plaintiff had a piece of old tarpaulin to cover him on the deck   I have seen his bed wet very often it was very cold in passing the Cape.  The Plaintiff was then on the poop.  He appeared cold and perished.  I have seen the Plaintiff picking peas up and eating them out of the hen coops.  His allowance was bread and water and very small.  I never saw him drink of grog.  I saw the Plaintiff on shore about a fortnight or three weeks after we arrived.  When he came aboard he was in a very good state of health, and very active.

When on the poop I have seen him look very bad indeed.  The Plaintiff did not return to his duty because when asked, to return he said he was a prisoner and confined so long and his constitution so weak that he would try to get some satisfaction.  This was said about 6 weeks before his arrival at Sydney.

[p. 291] Corporal Jno Fox  I was Corporal of the guard on board the John.  I saw the Plaintiff confined on the Poop as a prisoner.  I went on the poop he was covered with an old sailcloth as I thought.  He was confined up to the arrival of the vessel.  He looked very bad, every morning.  I saw no change in his bodily health at the end of the voyage.

Plaintiffs Case

Evidence for Defendant

Norton for Defendant

WilliamChief Mate Examination

ReidDe bene esse

21 December

Wm Milwood 2nd Mate

Wm Brigg Ship Steward

John Edwards Apprentice

James Gabbott Ships Boy

Francis Hutton Carpenter

John Joseph Hunter 3rd Mate

Edward Mathews Ships Boy

Henry Wiffin apprentice

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[p. 292]

Mr Elyah Smith

I am one of the Chaplins of the Colony and came passenger in the John.  I remember Plaintiff being confined in the Poop.  I understood that he was confined on the Poop for refusing to flog a convict boy, and that this confinement was at the instance of the Surgeon.  This was generally understood in the ship.  The Surgeon died on the 16th October a short distance from the Cape of Good hope.  On the 16 October the day the Surgeon died. The Plaintiff addressed me first and state that the Captain was desirous to throw the blame off his own shoulders on those of the Surgeon and that the Captain wished him to resume his duty.  I said that I would by all means advise him to do so, though I did not know anything of the circumstances; and that the Captain and Surgeon having come out with Convicts before, they would certainly not have ordered him to inflict the punishment had they not [p. 293] considered it their duty.  He said would be very well satisfied if he could get clear of the Ship.  I told him it would be better for him to leave the ship with a few pounds in his pocket, than be idle during the whole passage, or words to that effect.  I understand him to refuse and decline doing his duty.

I cannot recollect how long he had been at this time in confinement from 6 to 8 weeks.  I cannot speak as to the state he then was.  I never observed him to suffer from the cold.  I never saw his legs not to notice them.  I never heard the report of the horrid state of his legs.  He was kept by night as well as by day.  I understood it was by the directions of the Surgeon, and at his instance.  The Plaintiff spoke to me first.  At one time I took pity on him and considered that he was ill used.  I dont know of the propriety or impropriety of the conduct of the Captain; but I think the suffering was brought on by his own misconduct, by not doing what was considered as part of his duty considered by the surgeon and the Captain. [p. 294]  Latterly I think his punishment was brought on by his on misconduct and that he had only himself to blame.  I did not at first understand the case but latterly I was of opinion that his refusing to inflict punishment on a Convict, would have a dangerous effect upon the subordination of the Ship and would have been productive of mischievous consequences.  It appeared to me to be a new Tarpaulin.  I left the Ship on the 26th November I gave the Plaintiff on one occasion a small quantity of rum 1/2 a pint from my own store on another two with Tobacco from my own store   I also gave him some books of amusement and Instruction.  I gave the refreshment secretly because my opinion was that it would have given offence to the Captain   I conceived it the most prudent method, and I gave it to him because I considered he was cold and it might be acceptable to him.  This was in the dusk.

The Plaintiff seemed always disposed to lend a hand to assist the Ship as far as I observed.  On one occasion [p. 295] when walking the poop he said he thought the man made himself comfortable and that he had everything he wanted.  Mrs Smith accompanied me.  I believe she did administer relief to him on one occasion.  I though I might be taking an improper part.

Mr John Wm Gosling

I was a passenger in the John   I remember the Plaintiff being Boatswain.  I saw the Plaintiff every day almost during the passage.  He did not appear to me to be lame or that there was anything the matter with his legs.  He did not appear to be in any difficulty in walking not the least.  I cant say that the mode of living affected his health.

The plaintiff was rather of a ruddy complexion I did not assist with anything.  I cant say that I saw any alteration in him   I have seen him shivering with the cold and all the other Ships company.  I did not see his legs.  Did not hear him complain to the Commander   I have frequently seen him give a hand to assist in the [p. 296] navigation of the Ship, when there was a pressure of duty.  It was not a rainy passage after passing the Cape.  I understood from Captain Moncrief that the Plaintiff was to be confined to his simple allowance of bread and water.  I heard him desire the Mate to furnish him with his allowance of bread and water.  I conceived it to be a positive order decidedly so, I remember seeing his bed drying after having been thrown overboard to the Assistant Surgeon.

George Smith shoemaker living in this town.  I know the Plaintiff.  I saw him on board the ship a day or two after she came in.  I saw him on the poop he appeared to me to be in the same state that he is now.  He did not appear to be ill.  He looked the same as he does now.  It was three weeks or a month after the ship arrived that I saw him at the Kings Wharf I spoke to him.

George Bunn Esqr

I once had a convict ship under my command.  I considered it [p. 297] to be the duty of the boatswain of a Ship to inflict punishment   I have been many years at sea and it was the boatswains province to inflict the punishment.  That is always the course on board the Royal Navy whose example we follow.  It was since 1828 as well as before.  In all cases I have ordered punishment, I have acquiesced with the Surgeon.

By Court I have been 18 years at sea and 3 voyages in the Convict Service successively.  Invariably the hands of the boatswain is the man I have known instances of men refusing but their refusal considered an act of insubordination, and I have no hesitation in saying that if a boatswain of mine refused I should consider him worthy of punishment.  I should consider the refusal of the Plaintiff to inflict the punishment as an act of insubordination.  I am a Merchant and Magistrate settled in this town.

Case for the Defendant.

Mr Rowe reply

Commander no more power to inflict punishment than I have 4 G 4. C. 96. s. 37. [p. 298]  Plaintiff right in refusing to do that which the Defendant ordered him to.

Suppose a legal order, whether the punishment has been moderate.  Imprisonment of 100 days excruciating torment.

=

Dowling J. Sums up the whole of the evidence on both sides.

I[3 ] left two questions for the consideration of the Assessors.

1st was the order given by the Defendant to the Plaintiff to flog the convict a reasonable order, and within the scope of the plaintiffs duty to and 2nd, If it was, did the Defendant exceed the bounds of reason and moderation in the mode of punishing the Plaintiff for his disobedience?  I referred to the general law relating to the contracts between a master and mariner as laid down in Abbots on shipping page 136. 5. Ed. and called the attention of the Jury to the evidence of Captain Bunn; and left the Assessors to say whether upon the evidence it might not fairly be considered [p. 299] that the suffering complained of by the Plaintiff was not drawn upon him by himself, in consequence of refusing to return to his duty when called upon.  I said I knew of no law which obliged a Captain of a Ship to give full allowance of food to a person who refused to do the Ships duty.

Verdict for the Defendant.

 

Forbes C.J., Stephen and Dowling JJ, 24 March 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 299]

Monday 24 March 1828

Rowe moved for a new Trial in this case.

Norton opposed the motion.

Cur ad vut[4 ]

 

Tuesday 25 March 1828

Before Forbes CJ Stephen J. and Dowling J.

For Judgment

Dowlings opinion

This was an action on the case for false imprisonment.  The declaration stated that on the 1st August 1827 the Plaintiff hired himself to the Defendant to serve as boatswain on board the Ship John under the directions of the Defendant and the several [p. 300] officers of the said ship on a voyage from London to New South Wales; that Plaintiff by virtue of such hiring entered on board the ship and received charge thereof as boatswain on said voyage.  Averment That whilst the ship was proceeding on said voyage, Defendant ordered and commanded Plaintiff to inflict corporal punishment on a person then onboard the ship, who was being conveyed to New South Wales as a felon convict.  And Plaintiff says that he considering his duties to the ship was only in the navigation of the same and that he was not lawfully authorised at the command or order of the Defendant to interfere with any person other than the Ships Company, or in case of any mutinous conduct on the part of the felon convicts then in and onboard the Ship, or in case of any insubordination amongst them refused to inflict such punishment to wit &c at &c  And Plaintiff in fact further saith that in consequence of such refusal to inflict said punishment he was by by [sic] the order [p. 301] and command of Defendant forced on an [sic] upon the Poop of the Ship and was there detained for a long space of time, to wit, for the space of 115 days, then next following, during all which time, Plaintiff suffered and underwent great pain and anguish occasioned by the indecency of the weather both by day and night, and without sufficient covering to his person.  And was also by the like order and command of Defendant deprived of his dayly allowance of meat drink and other necessaries , to wit &c at &c.

There were two other counts stating the Plaintiff's cause of action more generally.

To this declaration the Defendant pleaded the general issue of Not Guilty.

At the trial before Dowling J in the Supreme Court on the 13 March instant, it appeared in evidence that the Plaintiff hired himself to the Defendant in pursuance of the statute 2 G. 2. C. 36 (an act for the better regulation and government of seamen in the Merchant Service) and signed the agreement required to be executed by s.2. of that act, to serve on board the ShipJohn on a voyage [p. 302] from England to New South Wales as a boatswain.  By the terms of such agreement the Plaintiff "promised and obliged himself to do his duty and obey the lawful commands of the officers on board the said Ship or boats thereunto belonging as became a good and faithful seaman and mariner."  following the form usually adopted in the agreements between Masters and Mariners in the Merchant Service.

The Ship John of which the Defendant was Master was employed by His Majesty's Government for the conveyance of 180 Convict felons from England to New South Wales.

There was a military detachment of 30 men on board to guard the Convicts.  The Ships Company or Crew consisted 46 men including.

There was also a Surgeon Superintendant on board.  The Vessel sailed from Sheerness on the 22nd July 1827.  After the Ship had been about a month at sea the Defendant addressed the Plaintiff who was then on the deck and in the presence [p. 303] of several of the Ships Company and some of the soldiers and told him that he wanted his assistance to flog a convict boy, upon whom it was necessary to inflict some punishment.

The Plaintiff in a jeering manner said "He should hurt the Boy if he were to flog him".  The Defendant in a mild tone of voice told the Plaintiff that it was his duty and it must be done.

The Plaintiff then said it was no part of his duty to flog Convicts, that he did not come on board the Ship for that purpose and he added in an imperative tone "and Ill be damned if I do it."  The Defendant then ordered the Plaintiff to go to the fore part of the Ship saying that he was no longer his officer.The Convict Boy was in fact punished by one of the Mates.  In about a week afterwards the Plaintiff was called upon at the instance of the Defendant either to return to his duty as boatswain or to do duty as a seaman; which he refused to do, and thereupon the Defendant ordered him into confinement on the poop where he was kept and detained day and night until the Ship arrived in Sydney harbour namely until [p. 304] the 28 November 1827 with no other allowance of provision than one pound of bread and as much water as he chose dayly.  On two or three occasions during the time the Plaintiff was in confinement he was called upon to return to his duty but he refused so to do.  There was contradictory evidence as to the extent of the confinement.  The Witnesses on the one side representing that his health and constitution had been greatly injured by reason of the want of sufficient food whilst those on the other side, stated that he was in good health when he landed and had suffered nothing whatever in point of bodily strength.  It did appear that during his confinement he had been clandestinely supplied with some extra refreshment by some of the ships company and passengers on board.  It further appeared from the Evidence of a witness, who had been 18 Months at sea and had had the command of a Merchant Ship in the Convict Service during three successive voyages [p. 305] from England to New South Wales That it was the duty of boatswain to inflict punishment upon convicts when required so to do that he had known repeated instances in which this duty had been performed by the Boatswain and that he himself should consider the refusal of a Boatswain to do such a duty, as an act of insubordination worthy of punishment.  It was urged on the part of the Plaintiff that it was not the duty of the Boatswain at all, under any circumstances, to inflict punishment upon a Convict felon and that his duty was confined solely to the navigation of the Ship.  It was further urged that no such punishment could by the 4 G  4. C.96. s.37. be lawfully inflicted by any but the Surgeon or principal Medical Officer of the Ship with the concurrence of the Master, to be signified in writing under the hand of the Latter.  Dowling J. in summing the case for the Jury told them that in his opinion the provisions contained in the 37th sec: of the New South Wales Act 4 Geo 4. C. 96. ought [p. 306] not to influence the decision of this case in as much as the case must depend upon its own particular circumstances.  He said that by the Common Law the Master has authority overall the Mariners on board the Ship and it was their duty to obey his commands in all lawful matters relating to the Navigators of the Ship and the preservation of good order and such obedience they expressly promised to yield to him by the agreement usually made for their Service.

In case of disobedience  or disorderly conduct he might lawfully correct them in a reasonable manner, his authority in this respect being analogous to that of a parent over his child or the Master over his apprentice or scholar.  Such an authority was absolutely necessary to the safety of the Ship and the lives of the persons onboard but it behoved the Master to be very careful in the exercise of it and not to make his parental power a pretext for cruelty and oppression.  Considering this as the Law of England he told the Assors [sic], that this case must depend as between the [p. 307] Boatswain and the Captain of the Ship.  Who were the only parties to the Record upon the effect to be given to the terms of the Ships Articles, whereby the Plaintiff bound himself to do his duty and obey the lawful commands of the Master onboard ship during the voyage   assuming that he was right in his view of the case he left the two questions for the consideration of the assessors.  First was the order given by the Defendant to the Plaintiff to flog the Convict prisoner a reasonable order and within the scope of the Plaintiff's duty to obey under the circumstances proved in evidence and secondly If it was, did the Defendant exceed the bounds of reason and moderation in the mode of punishing the Plaintiff for his disobedience thereto.  The assessors formed their verdict for the Defendant.

On an motion being made for a New Trial, three grounds were urged in support thereof first. That the Defendant did not signify in writing his approbation of the punishment about to be inflicted upon the Felon Convict whom the Plaintiff was called upon to flog, second, That it was not a [p. 308] part of the duty of the Plaintiff as Boatswain to inflict punishment on Convict felons; and third, That the order to inflict the punishment should have come from the Surgeon or principal Medical Officer of the Ship and not from the Defendant as Master.

These grounds having been fully argued by Counsel on each side the Court took time to consider their Judgment.

After the best consideration I have been enabled to give this case, I am of opinion that no new trial ought to be granted.  It is not necessary in giving judgment in particular case for us to put any constructions upon the effect of the 27. sec. of the 4. Geo 4. C. 96 called the New South Wales act because it appears to me that the pleadings in their present form, do not distinctly raise the question which the learned counsel for the Plaintiff in his argument of yesterday wished to submit to the consideration of the Court, and thereupon I am not to be understood as giving any opinion as to the construction to be put upon that section because I [p. 309] consider it as inapplicable to the present case.  That Section points out the duty of the Surgeon Superintendant and of the Master of a Convict Ship respectively, but I apprehend that the duties of a Surgeon and of the Master, as pointed out by the Act of Parliament have nothing to do with the duty which the Boatswain owes to the Master of the Ship.  That duty must depend upon the tenet of the Contract between him and the Master.  If the Surgeon or the Master of a Convict Ship neglect their duty, or exceed their authority the law is strong enough to punish them for their misfeazance or malfeazance, and in this particular instance the law imposes a penalty of £50 upon the Master for any neglect of the duty pointed out by the 37th Section.

I agree that Courts of Justice ought to exercise a jealous vigilance in protecting all persons placed under the authority of the Commander of a Ship, against oppression and cruelty; but on the other hand the law must uphold the Captain in the fair and proper Administration of his functions, in cases and under circumstances [p. 309 sic] where life and property require protection from the vigorous but temperate discharge of his  authority.  This desertation [sic] is peculiarly applicable to a vessel of the description now in question.  It appears to me that as between this Plaintiff and this Defendant, having reference to the general terms of their contract, the true questions for the consideration of the Assessors (who by the constitution of their Court stand in the place of the Jury) were - first "was the order given by the Defendant to the Plaintiff to flog the Convict a reasonable order to which the Defendant had a right to exact obedience?," and secondly it was a reasonable order, did the Defendant exceed the bound of moderation and reason in the mode of punishing the Plaintiff for his disobedience."  The Assessors having found their verdict for the Defendant with a due regard to all the circumstances of the case, and to the averments contained in the declaration   I am not enabled to satisfy my mind, that they have come to a wrong conclusion, and therefore I am of opinion that their verdict ought not to be disturbed. [p. 310] Upon a consultation with Forbes CJ. and Stephen J. after stating his reasons at length thought that in a case of so much importance ought to undergo revision in order to determine the right of a Captain of a Convict Ship to give such an order to a mariner.

Forbes CJ.  Thought the second question I put to the Jury was rather a question of law than of fact, to be determined upon the question whether the Defendant had taken the preliminary steps, required by the act before the punishment was awarded.

Yielding to the opinion of my two learned brothers.  I acquiesced in thinking that there ought to be a new trial but upon terms; and accordingly Forbes CJ delivered the opinion as follows:-

Having maturely considered of this case, we think it of sufficient importance to Justify a New Trial.

The state of the pleadings does not quite so regularly bring the important part of the case before the Court as it might do   In granting a new Trial therefore it will be open to the parties to amend the pleadings, the [p. 311] Plaintiff to be at liberty to bring Trespass instead of Case, and the Defendant to be at liberty to plead specially.  The costs of the former trial to abide the event of the new one; and the examinations de bene esse to be received in evidence at the new trial.

Rule Absolute

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The Court refused to enter an exoneration on the Bail piece in this case, on a suggestion that the Plaintiff meant to charge his form of action Mr Norton moved.

===

In this case the Court had granted a new Trial and now the Case was tried again by Forbes CJ and Mr Scott and Mr Raine Assessors, I attended to read my notes on the former trial.

I remained in Court during the whole of the trial except during the CJ summing up, when, I left the Court.

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[p. 312]This was the second trial of the same cause of action.

Trespass for an assault and false imprisonment at sea onboard of a certain Convict Ship called the John, during her voyage, with Convicts onboard from England to New South Wales.  Pleas 1st Not Guilty, and second a justification, that Defendant was Master of said Ship, and Plaintiff a mariner onboard, and conducted himself in a mutinous and disorderly manner and Defendant moderately corrected him & Issue on this plea.

Mr Norton conducted the Plaintiff and Mr Rowe the Defendants case.

The depositions taken with a view to the trial of the last cause, and my notes of the former trial were read in evidence, and no additional evidence was given.

Forbes CJ left the case to the Assessors in the following manner.

The Plaintiff complains of certain injuries to his person, technically called false imprisonment.  The facts set [p. 313] out in the evidence, clearly establish a case of confinement, exposure to the inclemency of the weather during a sea voyage, and privation of provisions.  The case calls for a justification.  Accordingly the Defendant has placed his defence on record on two grounds.  First the relation between the Plaintiff and the Defendant as master and Seaman with a general averment that Plaintiff refused to perform his duty" and secondly that the Plaintiff was guilty of "Mutinous and disorderly behaviour" to which two grounds the Defendant confined Plaintiff, and deprived him of his allowance of provisions.

These two grounds depend upon the facts of the case, and the law as applicable to them.  You will observe these two grounds that the first a general refusal to perform duty, grows out of the second, and you will review the evidence on that point, first in order of time.

First ground.  The charge of disorderly conduct of the Plaintiff is founded on his refusal [p. 314] to perform a certain act on the passage viz "to flog a Convict" onboard of the Ship John." and the questions naturally arise.  Was this a lawful command was the Plaintiff bound to object?  Had the Defendant any power to make such an order; was it the duty of the Plaintiff to execute it?

First by the general maratime, law, mariners are bound to obey all "lawful orders" of the master.  This obligation is embodied in the articles of agreement directed by the Statute.  By the general analogies of all law, orders must be lawful to ensure obedience.  The paramount obligations of law forbid any man to execute an unlawful order.  If he does, he becomes a tresspasser himself and the illegal order will not protect him.  Now under what circumstances did the Defendant order the Plaintiff to flog the Convict onboard of the John?  The person called "Convict" was indeed a prisoner, under sentence of transportation but not the less entitled to the protection of the law from personal injury on that account.  He [p. 315] was no further liable to be flogged than any other passenger unless the law expressly sanctioned it.  Let us see how far it is sanctioned.  The 4 G. 4. C. 96. s. 37 creates a tribunal onboard ship a forum economium, for the punishment of misdemeanours.

The Surgeon Superintendant may cause such a punishment to be inflicted, with the assent of the Master.  Did the Surgeon authorize the punishment in the case alluded to?  This is a question of fact for you, the Assessors to determine.

The written assent of the master, and the entry in the log book are not necessary to be proved in this course of proceeding.  We are not trying the regularity of the proceedings of the tribunal, but the fact of the punishment being authorized by persons competent to authorize.

As to the legallity of the order, I am of opinion that it was legal if you are satisfied of the proof of the fact that it was given by the Surgeon.

Secondly - Supposing the order legal as an order was the plaintiff bound to execute it?

Take Captain Bunns evidence [p. 316] into your consideration upon the point.  The act of parliament creates the duty of punishing.  Some one must perform it.  The discipline and security of the Ship require it, and it seems to fall within one of those exigencies which the Master may provide for, which the contract of the seaman all of them are bound to perform.  This is a mixed question of law and fact.

The second ground of defence is a general refusal to do duty as a mariner.  The evidence of the Chief Mate and other persons goes to this point.  The Plaintiffs refusal misrepresented to the station of Boatswain, is no justification.  There is no just station contemplated in the contract between Master and Mariner; and was bound to perform his contract the consequence of his refusal was a liability to moderate correction.   moderate was it merely commensurate with the offence?  This is a question for the Assessors on a full consideration of all the evidence touching the treatment and suffering of the Plaintiff.

[p. 317] The Assessors found their verdict for the Defendant.

Notes

[1 ] See also Sydney Herald, 27 February 1832 (R. v. Duff, chief officer convicted of assault on seaman, recommended to mercy on the ground of provocation and sentenced to pay a fine of £5).  See also Australian, 9 March 1832; Sydney Herald, 5 March 1832 (unsuccessful application for a new trial).

[2 ] De bene esse: as being good.  Acceptable provisionally; sometimes used when a witness is ill or about to go overseas.

[3 ] This refers to Dowling J., being based on his notebooks.

[4 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University