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

Thompson v. Willet [1829] NSWSupC 68

trespass - false imprisonment - passenger on ship - ship, discipline on - damages, exemplary - provocation

Supreme Court of New South Wales

Forbes C.J., 6 October 1829

Source: Sydney Gazette, 8 October 1829[1 ]

This was an action of trespass and false imprisonment brought by the plaintiff, a passenger on board the brig Faith from England to this Colony, against the defendant who was Master of that vessel on the said voyage.  The defendant pleaded the general issue, and also a justification of the assault and imprisonment complained of.  The damages were laid at £1000.

Mr. Stephen having opened the pleadings,

Mr. Wentworth rose and addressed the Assessors to the following effect: -- Gentlemen, having heard the nature of this issue from my learned friend, it now remains for me to lay before you a detail of the circumstances out of which it has arisen, and the nature of the imprisonment and sufferings endured by my client.  The plaintiff, Gentleman, came out to this Colony many years ago as a free settler; and such was the respectability of his connexions [sic] that he received from the then Governor, General Macquarie, the largest grant of land which it was customary to bestow on emigrants, namely, 2,500 acres.  On this he resided for a considerable time, when finding it would be to his advantage to take occasional trips to England, he abandoned his rural pursuits, and leaving his farm under the management of another person, commenced as a merchant.  Gentlemen,  it was on his return to this Colony, after the second of those visits to England, that the transactions which will be detailed to you this day took place.  The vessel in which the plaintiff returned on this occasion, and of which the defendant was master, contained only three or four passengers, and the plaintiff paid the sum of £70 for his passage, being the amount required of him.  This certainly was not a very liberal price; but as the rate of passage, as well as every thing else has of late undergone a very considerable reduction, it was sufficient to entitle the plaintiff to at least moderate fare and kind treatment.  Instead of this, however, the provisions were of the very worst description, the wines nothing more that common Cape, and what is called blackstrap, which, with salt beef and pork, constituted the usual fare at the cabin table.  The plaintiff on several occasions felt obliged to complain of the treatment he received, and thereby engendered a bad feeling towards him on the part of the defendant; for very shortly after the commencement of the voyage, he thought proper to give out amongst the crew and passenger that the plaintiff was a runaway convict.  Gentlemen, it is impossible the defendant could have believed this himself; for, independently of the plaintiff having paid £70 for his passage, it was not likely he could have supposed that a man who had been a runaway convict would go voluntarily back to the place from which he had escaped.  Things, however, went on quietly in this way for some time, so quietly, indeed, that the very quietness of the plaintiff is construed into his greatest offence.  It would seem that the defendant bore in mind the old adage, that deep water runs smooth, and felt that the plaintiff intended to pay him off at the end of the voyage.  About the 6th of July last, the vessel being then off the Cape, and in about the latitude of 40o, the plaintiff got out of bed where he had been some time, about 11 or 12 o'clock at night, in consequence of a fire being alight in the cabin, and the smallness of the place rendering heat intolerable, observing as he passed the defendant who was playing at cards with a female passenger, that it was ``as hot as h--," or something to that effect.  He then went upon deck and asked the steward to get him a glass of water, and on returning to the cabin, repeated his observation about the heat, and complained that a fire should be kept up at that time of night.  The defendant, as I have already told you, was occupied at cards with the female passenger; but upon some remark on certain occurrences on board, escaping the plaintiff in the petulance of the moment, the defendant exclaimed, if he ``did not hold his d--d tongue, he would punch his head about," at the same time starting up from the table.  The plaintiff had a penknife in his hand at the time, and said, if the defendant attempted any assault upon him, he would defend himself with that, upon which the defendant rushed upon him, knocked him down, and struck him several blows.  Gentlemen, in this scuffle it is highly probable that the defendant did get pricked with the knife, but it is also evident that he did not know it; for it was not till after a second scuffle ensued, and the plaintiff was put in irons, and forced on deck when it was blowing a gale of wind and raining, it was not, I say, till after this, that the defendant found out that he was wounded.  I admit, however, that it is very probable the defendant did get pricked in either of these scuffles; but I take it to be clear law, as I have no doubt His Honor will inform you, gentlemen, that the plaintiff being assaulted in the manner I have stated, being in a place from which he could not retreat, and having warned the defendant, that if the latter had received his death in the scuffle, it would have amounted at most to manslaughter, if not the justifiable homicide.  At all events it is evident that the justification which has been pleaded can only point to this transaction, as it is clear that such an affray could not justify an imprisonment of the character and duration which followed.  Gentlemen, had the imprisonment terminated with this night, it is probable that nothing would have been heard of the present action; but it was after and from this time, that the enormities which I am now about to detail may be dated.  Four or five days elapsed before anything further occurred, the plaintiff during that time being in the forecastle where he had been conveyed by the humanity of the sailors, who had also managed to remove the irons, which from their tightness had caused the plaintiff's arms and legs to swell; unknown, however, to the defendant, and using the precaution to replace them in such a manner as to deceive the eye whenever he or any person from the cabin approached.  Gentlemen, this act of humanity reached the ears of the defendant, and on the 12th of July, he sent a letter addressed ``To the passenger in irons, Thompson, or whatever name you chose to go by," giving him notice that if he attempted to make his appearance on deck during the remainder of the voyage, without his irons, he would shoot him.  Such a letter, one of so brutal a character, in which a poor wretch is told, if he comes on deck without his irons, that he will be shot like a mad dog, is a sufficient specimen of what this plaintiff must have endured during a confinement of five or six weeks under such a gaoler.  Gentlemen, the letter was brought by the defendant's brother, about 11 o'clock at night, when, by the kindness of the sailors, the plaintiff was asleep without his irons in the berth which one of them had given up to him.  Upon seeing the plaintiff, this gentleman immediately exclaims, ``O this can't be the prisoner; this can't be the man, Thompson; this is mutiny; I'll go and inform my brother!"  Gentlemen, he did so, and the defendant instantly came down armed with a brace of loaded pistols, and drove the unfortunate plaintiff on deck without his clothes, called all the sailors aft, and with a pistol presented at the head of each, demanded of them severally, who it was that let the prisoner out of irons.  The men alarmed by the violence of his manner, denied having given any assistance, upon which a similar inquiry was made of the plaintiff.  He hesitated in answering; the defendant repeated his demand to know who had liberated him, and not receiving an immediate reply, exclaimed, ``prisoner, I have asked you twice who took your irons off; refuse to answer the third time, and I'll fire at you."  The unfortunate wretch conceiving himself to be at the brink of eternity if he refused compliance, stammered out an answer that he had himself taken the irons off by means of a key, upon which the defendant immediately directed other irons to be brought, ordering out the chain cable, had the plaintiff fastened to it, and in this state he remained exposed the whole of the night, and until 9 or 10 o'clock the following morning, when the defendant came on deck, and pointing to a miserable dog hole in the stern sheet of the vessel, called the transome locker, said, ``see what a fine habitation I have provided for you; come be quick and crawl in."  Gentlemen, in this dungeon, about five feet long, three feet high, and two feet wide at the bottom, without a ray of light except through the chinks of the boards which also admitted the water when that part of the vessel dipped, full of centipedes, cockroaches, and other vermin with which the ship abounded, handcuffed and in leg irons, and confined to a roll of several fathoms of chain attached to a ring driven for the purpose into a beam was this miserable wretch locked up, during the remainder of the voyage, a period of five or six weeks; his only food being miserable musty biscuit, and the leavings of the sailors in the forecastle.  Gentlemen, even this he was not allowed the satisfaction of putting into his own mouth, but was fed by a cabin boy when his miserable meal was brought to him, as a nurse would feed a child with a spoon.  To complete the barbarity of the imprisonment, once only in twenty-four hours was he liberated for the purposes of nature, and that only for five minutes, when a bucket was introduced to his dungeon and if he could not make use of it then, he was compelled to remain twenty-four hours longer without any accommodation.  Gentlemen, I will not dwell upon his part of the case, as your own feelings will suggest to you what must have been the situation of this unfortunate victim under such circumstances.  As a fact, however, I may state, that the mattrass [sic] on which he lay, and which was perfectly new at the commencement of the voyage, was completely rotted from under him from the sea water and other causes.  In this state was he found on the ship's arrival here, as will be detailed you in evidence, the greatest picture of human misery that could be presented.  Gentlemen, it is impossible that a parralell [sic] case of cruelty can be pointed out in the maratime [sic] annals.  Not even in the beastly history of Dutch navigation can an instance of such inhuman barbarity be found.  Gentlemen, I will not, where the facts are so plain, attempt to work upon your feelings.  I shall at once proceed to call the witnesses who will substantiate the case I have detailed to you, and I will then call upon you for the honour of humanity, and of the sake of example to others, to award such damages as will for ever put it out of the power of the defendant to exercise such wanton cruelty toward a fellow-creature as this plaintiff has endured.

The learned Counsel then proceeded to call the following witnesses:-- 

Thomas Thornton -- I was steward of the Faith, of which defendant is master, on her voyage from England to this Colony; plaintiff was a cabin passenger on board; a Mr. Adams and Mrs. Clementson were also passengers; I remember one night during during [sic] the voyage that the plaintiff and defendant had a scuffle in the cabin; it was about 11 o'clock at night; plaintiff had been in bed, and came upon deck to me in his shirt and trowsers, [sic] saying the cabin was so warm that he wanted a drink of water; I went into the cabin to get him some water, and he followed me, and stood next the door of his own berth; he said he was almost starved, and was surprised the defendant should use him in that manner after taking £70 for his passage; defendant said if he did not hold his tongue he would make him, and then came round from the sofa on which he was sitting, seized the plaintiff and struck him, and a scuffle immediately ensured; previous to this defendant was sitting on the sofa, playing at cards with Mrs. Clementson; in the scuffle both parties fell on the cabin deck, the plaintiff being under; I was then ordered to get the irons; defendant did not complain then that he was stabbed, nor till after plaintiff was secured on deck; whilst I was looking for the irons a second scuffle ensued, but I did not sae [sic] the commencement of it; defendant and his brother, the chief mate, forced the plaintiff on deck, and when defendant returned to the cabin, I heard him say for the first time that he was stabbed; he called all hands to look at the wound; it was on the breast, and about such a one as would be made to bleed a person; plaintiff remained by the side of a hen-coop on the quarter deck; in irons, till it came on to rain, when, after some time, I believe, the men carried him into the forecastle, and put him in one of their berths; I believe he remained in the forecastle about a week, and some of the seamen out of humanity assisted in freeing him from the handcuffs, but I believe the leg irons remained on; it was a very cold night when plaintiff was first put upon deck, and he had nothing on but a light pair of trowsers and a shirt; about a week after, I saw the plaintiff brought aft, and all hands threatened to know who let him out of irons; they all denied it, and the defendant put a pistol to each man's head when he asked the question; he then came to the plaintiff and said he wanted to raise a mutiny, and that very little would induce him to shoot him, and I believe at last fired the pistol with a ball in it over the plaintiff's head; I saw defendant present the pistol at plaintiff, and heard him say if ever he caught him out of irons, when he was secured again, he would blow his brains out; defendant then ordered the chain cable to be brought out, and had plaintiff fastened to it by the leg irons; this was at night, and plaintiff remained on the bare deck for some time, till I got him his mattress, and some of the men placed their coats over him when it began to rain; he remained in this state all night, and on the following day I was ordered to clear out a locker in which we kept cabin stores; a large ring bolt was fixed in one of the beams by which plaintiff was chained by the leg irons; this locker is about 5 feet long and 4 feet high, and not above 2 feet wide at bottom; it was adjoining the rudder case, which leaked and admitted the water into the locker; there was no light except through the chinks; it had a pair of folding doors which were kept padlocked; after plaintiff was secured in this place, I was never suffered to have any communication with him; he could not possibly stand upright in the locker, which was so leaky that it was constantly wet; plaintiff was kept in that situation till his arrival here, a period of about six weeks; he was not fed during this time from the cabin table; sometimes the sailors would save him a choice bit, and send it to him; the other food which he was allowed was brought to him by the chief mate and the cabin boy, I saw plaintiff when two constables came on board to take him from the ship when we arrived here; he could not stand, but staggered about as if he was tipsy, and had a long beard, having never been shaved during the time he was in confinement; I saw the handcuffs which plaintiff had on; they were twisted round with fine cord to make them smaller, and prevent him getting his hands out; I have heard defendant call him a convict on board.

Cross-examined by Dr. Wardell -- My name is Thomas Thornton; I swear it is; I have never been on board a man of war in India; I have never served on board a man of war; I do not recollect that I ever told any one that I served on board a man of war; I might have said so in a joke; I never said that I had changed my name; I never told Mr. Adam or Mrs. Clementson that Thomas Thornton was not my name; I never told Mr. Adam that Thomas Allan was my real name; I never served on board a King's ship; I am not on good terms with the defendant; I have always given the same history of this transaction as I have given to-day; I never told the defendant that I had seen plaintiff with a penknife in his hands before the scuffle; I never told any person so; I sailed with defendant on a voyage before this; I went him with him from Rio; I did not like him as a master, and only came this voyage with him because I had no other ship; after the occurrences I have related took place, defendant was very much frightened, and always carried a loaded pistol with him, as did also Mr. Adam.

Re-examined -- There was no disposition to mutiny amongst the men; they readily assisted in putting plaintiff in irons when they were ordered to do so, and always obeyed defendant's orders.

Thomas Thorn -- I came out to this Colony as second mate of the Faith; I recollect the scuffle that took place on board between plaintiff and defendant; I was at the wheel, between 11 and 12 o'clock at night, when plaintiff came on deck and asked for a drink of water; the Steward and plaintiff then went down into the cabin, and about three minutes after, I heard the defendant say if plaintiff said such a thing again, he would punch his head about; there was silence for about a minute, and I then heard similar language repeated; after than I heard a scuffle and plaintiff groan, defendant then called out to his brother to assist in putting this d--d rascal (meaning plaintiff) in irons; shortly after I saw plaintiff forced on deck with irons on his legs and handcuffed; it was a very rainy and blowing night, and plaintiff had nothing on but a shirt and pair of trowsers; defendant said that plaintiff should remain on deck all night if the people did not chose to take him below; about 1 o'clock at night some of the crew took him to the forecastle, and I gave him up my berth; he remained there about five days; on the first night plaintiff came down, some of the men had a key and we took the irons off, and put them on when the chief mate or defendant came down; when plaintiff had been in the forecastle five or six days, the chief mate came down with a letter and a glass of grog for plaintiff, and finding the irons off he said something about mutiny, and ran to inform the defendant; plaintiff was then brought on deck, and defendant, with a pair of pistols in his hands, demanded of each of the crew who it was took the irons off; they all denied it, and defendant then presented a pistol at plaintiff's head, and threatened to shoot him if he did not tell who took the irons off, plaintiff said he had done so himself with a key; defendant then ordered out the chain cable, and took two turns of it round a gun, and had plaintiff chained to it; plaintiff remained in that state the whole of the night, and the following morning was placed in a stern locker where he remained shut up for about 6 weeks till our arrival here.

Cross examined -- The night plaintiff was first put in irons was blowing pretty fresh and raining; I could hear what the defendant said in the cabin perfectly well as I stood at the wheel; I did not hear what the plaintiff said; I heard him groan twice when, as I supposed, he was knocked down; I do not belong to the ship now; I am one of three who ran away; I entered as second mate, and defendant put me before the mast for being once or twice drunk and asleep on duty; I am not in any employment now; I am living quite comfortable, though my wages are all gone, as I took care to pay for a few weeks board before hand.

John Brown -- I was a seaman on board the Faith from England to this Colony; plaintiff was a passenger on board; it was my watch when plaintiff was brought on deck and I saw him standing by the companion in irons; it was a very dirty night; defendant said we might take him below if we choosed; some of the crew took him into the forecastle that night and we took the irons off his legs, and on the following day removed the handcuffs; he remained loose four or five days, till the chief mate discovered that the irons were off, and immediately reported it to defendant; plaintiff was then forced on deck, and defendant stood over him with a loaded pistol and threatened to shoot him if he did not tell who removed the irons; plaintiff said he did himself with a key, and defendant then had fresh irons put on and plaintiff secured to the chain cable; he remained on deck the whole of that night, and on the following morning was placed in a stern locker, where I had no communication with him after.

Cross-examined -- I do not belong to the ship now.

Benjamin Lawrence, a seaman on board the Faith, said, after plaintiff was shut in the locker I took him his provisions till we arrived here; he had the same food as the sailors; he was handcuffed and I used to cut his meat up small, and he endeavoured to raise it to his mouth with a fork in the best manner he could; he was only allowed to ease himself at meal times, if he wanted it; the irons were then taken off for about five or six minutes; the locker was in a very dirty condition; it leaked, and the bottom was covered with mud; defendant ordered me to wait on plaintiff; I have frequently known plaintiff ask for the bucket three times before it was allowed him; it was only introduced once in twenty-four hours.

Cross-examined -- I have left the Faith; I run away from her about a fortnight ago owing so [sic] the ill-treatment of defendant.

Mr. Thomas Oliver -- I am searcher of Customs; I boarded the Faith on her arrival here about the 13th or 14th of August last, and got a list of the passengers; amongst them was the name of Mr. Thompson; I said I wished to seen Mr. Thompson, and defendant replied that he was in irons in the after part of the vessel; I was then taken to the place were [sic] he was; it was a very small locker which a fastened up with padlock; when it was opened I saw plaintiff extended on his back in a very miserable plight; he had not been shaved for a very long time, and altogether I never saw any one in so wretched a condition; he had not room to sit upright; I would be very sorry to have a dog of mine confined in such a place as I found plaintiff; defendant at first shewed some unwillingness that I should see plaintiff; his face was covered with beard and filth, and the stench of the place where he was confined was such that I was glad to get away from it as soon as I could.

Dr. Bland said, I was called upon to see plaintiff at the latter end of August or beginning of September; I found him physically and mentally low, and I thought a little deranged; I could not comprehend the case at first, until I heard of the previous treatment he had received; I was informed that he had been performing several mad pranks, and I recommended that he should be watched.

George Bunn, Esq. -- I saw plaintiff almost immediately when he was taken out of the ship; he was brought before me on a warrant; he was unable to stand; I never saw any man look in a more debilitated state in my life; he appeared as if on the point of death.

J. B. Bettington Esq. -- I am Agent for the Faith; defendant is one-third owner; I have seen defendant write, and I believe the signature to this letter to be his; I do not think the Faith worth £1000; she brought out a cargo of various merchandize, but I do not know that defendant has any interest in it.

This was the plaintiff's case.

Dr. Wardell then rose for the defence.  I feel, said the learned Counsel, that this is an unfortunate case; but it is one which requires the utmost caution on the part of those who have to determine on it, that they may not be led away by these circumstances so calculated to excite the sympathies of the mind, which have been introduced into it.  If I could look upon the evidence for the plaintiff as untainted; if I could view it as evidence to be depended upon, then indeed I would be compelled to admit that the plaintiff [h]as made out a case which would place the defendant in an unfortunate situation if he could not satisfactorily justify his conduct.  But, gentlemen, I ask you to look at the character of the evidence by which this case is attempted to be supported.  I ask you to look at the feelings which actuate the principal witnesses who have been examined; at the manner in which they stand affected toward the defendant, and to think also how it is possible, seeing that the present plaintiff has already been tried for his life at the bar of this Court, that persons who pretend to have taken so much notice of all that passed, should not have allowed a single expression to pass their lips to show the culpability of the plaintiff himself.  I mention this fact, gentlemen, to show the singular character of the evidence adduced today, and how utterly impossible it is that it can be true.  Gentlemen, I ask you to look at the probabilities of the evidence, and to think whether it is possible that any human being situated as the master of a vessel is, to have acted the part towards the plaintiff deposed to by those witnesses without the least provocation whatever?  That a man should proceed to chain another, drag him on deck, place him in a dark hole and keep him there for several weeks, without provocation! can you give credit to such a statement, gentlemen; can you for a moment bring your minds to believe it possible that any one in human shape could have acted such a part without any reason whatever?  Gentlemen, on this as a general view of the evidence, I rest much, particularly as I mean to controvert that evidence by testimony of a description as different as light from dark.  Not, gentlemen, from the mouths of interested witnesses, and of the very lowest rabble, --- men who at the best of times are notoriously given to false speaking, --- men who out of their own mouths shew that they are unworthy of belief, --- runaways from the ship, gentlemen, all of who have reason to give biassed [sic] evidence against the defendant.  Gentlemen, I will prove that from the very instant of time the plaintiff set his foot on board suspicions were entertained of his character and intentions.  Up to the period of the transactions which are the subject of enquiry to-day, not a single event took place which could have called forth one angry feeling on the part of the plaintiff; for whatever the surmises of the defendant might have been, they were carefully kept to himself.  Gentlemen, on the day when these occurrences commenced, the plaintiff, after being in bed some hours, comes out into the cabin in his shirt and trowsers, and the very first words he utters are, ``is as hot as h--."  He then goes on deck, and returns again into the cabin to complain in a petulant manner about ill treatment.  Was that a time for complaint?  Had he asked for anything and had been refused?  But what was the defendant's answer?  ``This is not a time to murmur; you have the best the ship affords, and if you have any well grounded cause of complaint you can obtain redress when we arrive at Sydney."  Gentlemen, this was the mild, temperate, and judicious reply of the defendant, but what did the plaintiff do?  Why, Gentlemen, he perseveres in his provoking language and last of all displays an open penknife, accompanied by a threat of plunging it into the defendant if he attempted anything.  The female passenger who was playing at cards with the defendant saw the knife, and when, like a prudent man, the defendant, to prevent mischief, said he would take it from him, and got up for that purpose, the plaintiff moved too, and that gentlemen, to put his threat in execution.  I ask you, then, supposing I prove what I am now stating, how is it possible that the steward should know nothing of the matter?  If matters had stopped there, can anyone say that the defendant was not justified in disarming the plaintiff.

And I say, if the defendant had met his death in doing so, instead of its being, as my learned friend on the other side has told you, justifiable homicide, it would have been wilful murder.  If one man takes up arms against another, surely it is the duty of that other to endeavour to take them from him; and what did the defendant do more?  When, afterwards, the plaintiff is placed in confinement it is with the proviso that if he will be quiet, the defendant will still release him; but when he is put among the sailors, they are the very persons who release him.  Then, gentlemen, come the fears of the defendant; and we are not to consider whether he was over-fearful, but whether he acted bona fide, and really had those apprehensions.  His intention was merely to imprison the plaintiff for safety; and though we cannot produce witnesses to prove that the ship was in actual danger, we can that such was the apprehension entertained on board.  Gentlemen, the defendant may have erred in using an unnecessary degree of hardship; but we are to look at the condition of a ship at sea, to try this case by the feelings of those on board, and to see whether there was a substantial basis for the acts of the defendant; and, gentlemen, if I call persons before you who will state that nothing short of what was done would save the ship, surely you will not turn round upon the defendant and say that those acts were not justifiable.  Gentlemen, I shall call witnesses to prove that the imprisonment of the plaintiff was necessary, whether necessary or not, if the defendant acted bona fide, if he really thought it was necessary, he will stand justified in law.  The learned counsel concluded, by conjuring the Assessors not to look upon the case with excited feelings, and if they should be disposed to think that the defendant was not strictly justifiable, in having exceeded the bounds of necessary restraint, that at least they would not give vindictive damages, but award such reasonable amount as would in their opinion satisfy the justice of the case without absolutely ruining the defendant.

The following witnesses were then called for the defence:-- 

Wm. Willett, brother to defendant, and chief mate of the Faith, stated that on the night in question he was called on to assist in putting plaintiff in irons; after plaintiff was in irons and on deck, witness heard defendant say ``I am nearly done for;" when witness first went into the cabin he heard defendant say to plaintiff, ``I let you get up once because you promised not to attempt anything again;" witness did not hear plaintiff say anything in reply: there was a search made in the cabin for a penknife, and one was found under the ash pan in the cabin; the knife belonged to plaintiff, and was such a one as would have made the wound which the defendant received; the irons were kept on plaintiff because defendant thought he had been tampering with the crew; witness believed that if he was let out of his irons he would attempt to kill every person in the cabin; he was brought by the sailors into the forecastle, where he remained some days, and witness subsequently discovered that the irons had been removed, and acquainted defendant of it; when the defendant heard that, he loaded his pistols, gave witness one, and told him to go and call the men aft, to know what their intentions were; when the men came aft defendant asked them if they had taken the irons off plaintiff, and they all denied it; defendant then directed witness to order plaintiff on deck, where fresh irons were put on him; it was not afterwards thought safe to put him again in the forecastle, and he was put in the locker as the safest place; this was done in consequence of the fears entertained of plaintiff's intentions; witness had orders to permit plaintiff to go on deck twice a week, but he refused to avail himself of the liberty.

Cross-examined by Mr. Wentworth -- I never saw anything violent in plaintiff before that night; I believe plaintiff and defendant had a few words previously, but I do not know what they were about; I always though there was something strange between plaintiff and the sailors; he used frequently to be in conversation with a sailor named Thorn, but he always ceased when I approached. 

Mr. Alexander Adam, a passenger on board the Faith, detailed some of the transactions related by the other witness, and stated that plaintiff was kept in irons for attempting the life of defendant, and on account of a suspicion generally entertained that he was in collusion with the crew, and intended to take the ship.  This suspicion was afterwards strengthened when it was discovered that the crew had taken the irons off plaintiff; witness, during the remainder of the voyage, always kept a loaded pistol and a sword by his bed side, and the door of his berth locked, as also did the defendant.

Cross examined -- Plaintiff and I had a few trifling words prior to these transactions; I really think, from all appearances, that plaintiff was in connexion [sic] with the crew, and intended to seize the ship; I never witnessed any sort of disorderly conduct on the part of plaintiff on the passage; he was of a sullen, reserved disposition; I consider it was a suspicious circumstance that the crew had liberated him.

Mrs. Susannah Clemenson, a passenger on board the Faith, deposed to the scuffle which took place in the cabin between the plaintiff and defendant on the night of the 6th of July; plaintiff commenced by complaining of the want of any thing to eat or drink on board; he said he was starved; defendant told him it was no use complaining then, as he could obtain redress on his arrival at Sydney; plaintiff continued in a very abusive strain, and defendant told him is he did not be quiet he would oblige him to be so; plaintiff held an open penknife in his hand, and said he would plunge it into defendant if he attempted any thing; defendant got up to take the knife from plaintiff, when a scuffle ensued, and both parties fell, the plaintiff undermost; defendant said ``I'll forgive you for what you have done, if you'l [sic] go to bed and not attempt anything further" -- plaintiff gave his word and honour that he would, upon which defendant allowed him to get up; plaintiff then became again abusive, and upon defendant reminding him of his promises, he replied, ``I only promised for tonight", another scuffle then ensued, and defendant called for irons; when the plaintiff was being put in irons, witness heard defendant say, ``you have nearly done for me," --- a penknife was afterwards picked up on the cabin floor; the Steward was present during part of these transactions.

This was the defendant's case.

Mr. Wentworth replied at a considerable length[.]

The Chief Justice minutlely [sic] recapitulated the evidence.  His Honor was of opinion that the aggregate of testimony went to shew that the words made use of by the plaintiff in the cabin on the night of the 6th of July, whatever they were, were taken offensively by the defendant.  It was clear also that a wound was inflicted, and that in a very dangerous place, and that taking all the circumstances together the knife had been unnecessarily used; a practice which at all times was much to be reprehended.  But he did not consider this part of the case as interwoven with the particular subject of the present enquiry, or see how it could be brought to bear upon the remarkable series of occurrences that followed.  It was after the plaintiff had been transferred to the place called the transome locker, that a series of facts opened upon the Court the most extraordinary that ever came under His Honor's notice during a period of 13 or 14 years experience on the Bench.  A free man coming out to this Colony, paying £70 for his passage, to be locked up, loaded with chains, and treated altogether in the manner which had been detailed in evidence!  It was a case, said His Honor, which called upon the defendant to account in the strongest manner for his acts, and to shew that no less degree of confinement would have ensured the safety of the ship.  He would give no opinion on the nature of the case further than to observe that he did not think any thing like a justification had been shown, but leave it to the Assessors, upon the naked facts, to say what damages the plaintiff was entitled to.

The Assessors in a few minutes returned a verdict for the plaintiff, damages £500.

 

Notes

[1 ]See also Australian, 9 October 1829.

Earlier, Willet prosecuted Thompson on criminal charges of cutting and stabbing: Sydney Gazette, 15 August 1829.  The magistrates committed Thompson for trial in the Supreme Court, and the trial was held on 8 September 1829.  Mr. Justice Stephen asked the jury to consider "whether, supposing the wound to have been inflicted designedly, such provocation appeared to have been given as, if death had ensued, the offence would not have amounted to murder.  If they were of that opinion the prisoner was entitled to his acquittal under the provisions of the Act on which the information was framed."  The jury found Thompson to be not guilty: Sydney Gazette, 10 September 1829.  The audience applauded: Sydney Gazette, 12 September 1829.

Willet was also ordered to take trial for assault on the ship's steward: Sydney Gazette, 20 August 1829.

A week after reporting the trial, the Sydney Gazette, 15 October 1829, announced that Willet had been arrested and imprisoned for non-payment of the damages awarded in this case.

 

Published by the Division of Law, Macquarie University