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

R v Anderson, Davis and others [1832] NSWSupC 8

piracy - ship's crew - ship, discipline on - convict ship, strike on - strike - mutiny - industrial action

Supreme Court of New South Wales

Dowling J., 14 February 1832

Source: Sydney Gazette, 17 April 1832[1 ]



jacob Anderson, James Davis, Richard Ellis, Cornelius Neile, Thomas Fagan, James Hutton, Charles Steward, Thomas Ellman, Richard Franklin, John Griffiths, William Langtree, Joseph Vaughan, Christopher Saunders, and John Payne, mariners, were indicted under the statute 11th and 12 William III., for that they, on the 6th of February last, on the high seas, within the jurisdiction of the Admiral, and about 350 leagues from the S. E. coast of Madagascar, in and on board a certain British ship or vessel called the Isabella, whereof one William Wiseman, a subject of our sovereign Lord the King, was master, and William Wiseman, Patrick Chalmers, and James Wallace, also subjects of our Sovereign Lord the King, were owners, piratically did make a revolt, contrary to the statute, &c. A second count charged the prisoners with endeavouring to make a revolt.  The information also contained four other counts, charging the offence in the same manner, but varying the names of the owners and the desciption [sic] of the vessel.

Mr. Therry (with whom was Mr. Williams) stated the case to the Jury. The learned gentleman said they were already apprised form the information, that the prisoners at the bar were charged with making a revolt, or endeavouring to make a revolt, on board the transport ship Isabella.  The very nature of the case must impress upon their minds the great and weighty importance of it.  It was of importance to all who might be coming from, or returning to, England - it was of importance to the mercantile interests of the colony - and, most of all, it was fraught with the most awful importance to the prisoners themselves.  In detailing the circumstances of this case, he would confine himself to a mere statement of the facts which he hoped to establish in evidence. God forbid! that he should employ any powers of exaggeration to deepen the guilt of the accused. For his part he held it as a principle that it was not the duty of a public prosecutor, a character in which he stood forth to-day, to employ means to secure a conviction, but to elicit the truth. And if the Jury should, after a full consideration of the whole of this case, be of opinion that the prisoners were not guilty of the crime imputed to them, he would say, with as much sincerity as his learned friend who defended them, "Let them go forth from that bar; for God forbid! that a hair of their heads should be touched unless legal guilt be established by legal proof." This was a case of a singular nature, arising out of a variety of circumstances, each forming a link in a chain of facts constituting the offence with which the prisoners were charged. The Isabella, Captain Wiseman, sailed from from [sic] London, for this colony, on the 5th of November last; and here he would observe, that the very first incident of the voyage was a remarkable one, when taken in connexion with the circumstances which occurred at a later period. The vessel touched at Plymouth, and, during her stay there, a conversation was overheard among some of the convicts on board, by a soldier on duty, to the effect that they would gladly avail them [sic] themselves of any opportunity that might present itself to take possession of the ship; in consequence so which the Surgeon Superintendent, in the discharge of his duty, confined the convicts in double irons for a considerable period. He had stated that this was a remarkable incident. Why remarkable ? For this reason, that it showed that any persons disposed to create a revolt on board knew the parties to co-operate with. From that fact, he would pass on to then date of the alleged mutiny. From 5th November to the 6th of February, nothing material occurred on board; the ships' company conducting themselves in such a manner as not to call for any marked censure on the part of their officers. No complaints were made either to the Surgeon Superintendent or to the Captain; and so far, as appeared, the voyage promised to terminate satisfactorily. However, on the 6th of February, an order was given by the second mate to the prisoner Anderson to hang up some clothes-lines - a reasonable and ordinary order on board - which he peremptorily refused to obey; and he was sent upon the poop as a punishment. There, however, he would not remain; he left the poop and went forward; aud [sic] it was on an attempt being made to send him back that the revolt took place. The whole of the sailors interfered and attempted a rescue, stating that unless Anderson's punishment was remitted, they would not touch another rope in the ship. And here it was material for the Jury to consider, that this was not conduct occasioned by a momentary impulse, but must have been the result of a deeply meditated design to avail themselves of the most trivial incident to manifest their intentions. The prisoner, Anderson, however, was, after considerable difficulty, got once more upon the poop, and put in irons by order of the captain; but not before he was dispossessed of a mallet which he laid hold of, and with which he threatened to knock out the brains of the first person who attempted to execute the order of the captain, by putting irons on him. On the evening of the same day, the prisoner, Payne, being stationed at the wheel left it without being relieved, and joined the rest of the crew, who were then in a most alarming state of disturbance - an abandonment of a trust of such deep importance, as regarded the safety of the vessel, which was rendered still more perilous in consequence of the whole of the sailors refusing to supply his place. If any evidence were required of the disposition of the mentor to show what their intentions were, this conduct amply furnished it. Because the commander of the ship would not obey their orders, and liberate a sailor who was put under restraint for misconduct, they all strike work, and one abandons the helm, letting the vessel drift where she might, and leaving a large so large a portion of his fellow-creature without that protection which he was bound to afford! If these facts were established, in evidence he asked the Jury how they could come to any conclusion other than that the prisoners at the bar were guilty of the offence with which they were charged in the information. However, the Captain and the Surgeon Superintendent, with the concurrence of the Officer of the guard, had the refractory seamen put in irons that night; and on the following day every reasonable attempt was made to induce them to return to their duty. Owing to the remonstrance of Captain Clarke, nine of them did return; one of whom, however, the prisoner Griffiths, changed his mind in the course of the day, and said he wished to be again put in irons, for he would do no more duty unless the others were liberated: and in that state the whole of the prisoners were brought to Sydney after having been asked individually if they would return to their duty, which they individually refused to do. There was also another incident to which he thought it his duty to cal the attention of the Jury. And here it was but just to state that this was the only circumstance in the conduct of any of the soldiers who formed the guard on board which called for any reproof from him and he only noticed it because, coupled with what took place at Plymouth, it tended to shew the countenance, and the aid the ship's company might have relied upon had they been enabled to carry their designs into full execution. On the morning the disturbances took place - namely, on the morning of the 6th of February - the whole of the guard ran upon deck; and, when an attempt was made to induce them to go below, one of them to go below, one of them exclaimed that "he did not care for being flogged," or some such words, and called out "Hurra for the sailors!" Now if that united sentiment had pervaded the soldiers, and that, for one moment only they had co-operated with the sailors perhaps at this day, the fate of theIsabella and of all on board, would be but a tale of history. If Captain Clarke - the commander of the guard - had cut down that man at the moment, he (Mr. Therry) would say that it was a justifiable act. Captain Clarke, however with cooler judgment, consulted with those about him, and the consequence was that the man was flogged upon the spot. The disposition of the crew was also further shown by an expression made use of at the commencement of these transactions; for when they were ordered to go aft, some of them called out to the soldiers, that they "could stand fire, and they might fire and be d--d!" Besides these there were many other circumstances, indicative of the same disposition, and clearly demonstrating that all they wanted was an opportunity to complete that revolt which their conduct manifested they had determined upon. The prisoners continued in irons during the remainder of the voyage, from the 6th of February to the 5th of March; during which time the vessel was navigated by the officers, the seamen who returned to their duty, and the boys, with the assistance of the soldiers afforded by Captain Clarke, and occasionally, by some of the convicts. Having detailed this brief outline of the case, avoiding - as he trusted he had - all inflammatory statements, there was still one circumstance which, consistently with the duty imposed upon him, he could not suffer to pass without notice - namely the nature of the ship on board of which these occurrences took place. It was a British convict ship. The disposition of the convicts was evinced by what took place at Plymouth; and he would ask whether the most alarming results were not to be apprehended from the conduct of the prisoners ? Had the example of these men been followed - had the conduct which they pursued been general on board - had they been joined by the convicts, as it was natural to suppose they would be, what must have been the consequence? By taking the ship to any port in America, these men, from a state of degradation and of bondage, would be restored to a state of freedom. Was not this

The game such desperate men would choose, With all to gain, and nought to lose?

He, therefore, submitted to the Jury, that there was a distinction between this case and one occurring in the ordinary merchant service - a wide distinction, and one which could not fail to impress upon their minds the necessity for the highly penal statute under which the prisoners were indicted. The learned counsel concluded a very elaborate and eloquence address, by citing some recently decided cases under the Act of the 11th and 12th of William III., and proceeded to call the following witnesses :-

William Wiseman examined by Mr. Williams - I am master of the ship Isabella; she is a British ship; I am a British subject; she came here as a convict ship; I am part owner of her; my partners are Patrick Chalmers and James Wal ace, [sic] British subjects; I embarked from London, and left Woolwich on the 17th Nov.; the crew consisted of forty-five in all; we brought out 220 convicts, and 41 soldiers, including officers, 4 women, and 8 children; we were bound to Sydney; I produce the ship's articles; I know the prisoners at the bar; they were all seamen on board the Isabella; they signed the ship's articles; to the best of my knowledge, they are all natives of Great Britain;on the 6th of Feb. the ship was in lat. 41° 20' S. and about 55. East longitude, about 350 leagues from Madagascar; on that day, in consequence of a report brought by one of the mates to me, that Jacob Anderson refused to do his duty, I gave an order that he should be put on the poop, out of the way of the other seamen; I did not see him on the poop till about five in the afternoon; he was sent there as a prisoner; at this time the other seamen were on the quarter-deck, making use of very violent language, and saying they would not work a stroke in the ship; Thomas Elman, to whom I spoke for some time, said they were "treated more like dogs than men, and they would do no duty unless allowed to go on as they pleased;" all the prisoners and several more of the crew were present then; after they went forward I ordered the present then; after went forward I ordered the top gallants to be clewed-up; the men were making use of very violent language on the forecastle, and saying we might steer and work the ship ourselves, meaning me and the mates; some of them said we might fire on them if we pleased, as they could stand shot; all the prisoners except Davis and Anderson, were forward; those two were on the poop; John Payne had the wheel at that time; he left the wheel and went forward; there was little wind at the time, but it was cloudy, and threatened squalls in the evening, which was my reason for ordering to the top gallants to be clewed-up; I saw Payne come down off the poop, and I saw the wheel without any one at it after he came down; I sent one of the officers for him, but he joined the other men, and did not come back; it would require at least 36 seamen to navigate the Isabella properly; in consequence of this disturbance, the prisoners and the other men were called aft to answer to their names; they were individually asked if they would return to their duty, and each said he would not do any duty; soon afterwards they were put in irons, and sent below to their berths; before this I consulted with Captain Clark, the Surgeon Superintendent, and the first and second officers, on the propriety of putting them in irons; I recollect no complaints by the crew before Anderson was sent on the poop, except about a fortnight previous, about the provisions, which I found on looking into it, was unfounded; next morning nine of the men came  and expressed a willingness to do their duty, but in the evening, Griffiths, who was one of them, came forward, and said he would do no duty, and he was accordingly returned to his confinement; the prisoners were kept in irons till our arrival here; they were allowed to be on deck two hours every day; the ship was navigated to Sydney by the mates, boatswain, carpenter, joiner, five or six boys, the eight men who returned to duty, the soldiers, and in the day we used to be assisted by the convicts; we could not well navigate the ship without their assistance while the prisoners used to be on deck; they had an opportunity of seeing me helping to work the ship, but they never offered to assist me; I remember a soldier being punished; the prisoners were on deck at the time.

Cross-examined by Mr. Rowe - I do not know what the neglect of duty in Anderson was on the 6th of February, except from the report made to me by the chief mate; I did not send for Anderson in consequence; I had some conversation with him in the morning, and requested him to return to his duty , and he said he would, but he was very insolent; I directed the steward to stop his grog that day for his misconduct in the morning; I do not know at what time the irons were put on him; I desired them to be put on him for leaving the poop, where he was ordered after he refused to do duty the second time; I recollect only one complaint by the crew before the 6th of February, and that was remedied; we left Plymouth on the 27th of November, and at this time were out about three months; the crew, at one time, resisted an order to bring their hammocks on deck, and one of them behaved very ill on the 24th of December; after the prisoners were put in irons, they had an opportunity of communicating with the rest of the crew; there was a partition between the place where they were and where the other sailors were, and what was said by either might  be heard through it; after the prisoners were placed in irons, they were guilty of no violent conduct till our arrival here; I never heard them attempt to induce any of their fellow-seamen to revolt after they were put in irons, but the language made use of, before that was highly calculated to produce such a result; there is a difference between grumbling at an order, and collecting twenty or thirty men together to consult whether they would do duty or not; they said they were in a merchant ship, and would do as they pleased; I heard one man say something about the ship's articles, and that he would seek redress on his arrival in New South Wales, adding, "and you may navigate the ship as you can;" Ellis and Stewart, used words to the effect I have stated; none of the prisoners, except Anderson, were in irons at that time; I saw him on the poop, and I believe he was in irons; the others were not put in irons till they refused a second time to do any duty; what I have stated were the only acts of disobedience during the voyage which I thought it necessary to take notice of; there were a variety of things in the hold of the ship; the magazine was partly under the place where the prisoners were confined, and partly under the place where the soldiers lodged; they would have had great difficulty in breaking through the deck to get at the magazine; I did not keep the arm chest in the magazine; I never heard any of the prisoners say they would be ready to assist in case it came on to blow; no report to that effect was ever brought to me; I did not actually see Payne leave the wheel, but I saw the wheel without any one at it, and Payne going off the poop; I saw the fourth mate, Mr. Reid, on the poop at the time; I do not know that he took the helm from Payne; I don't think any one took it from him; I saw the helm empty; I saw some of the soldiers on deck at the time, but whether near the wheel or not I can't say; I did not say anything to Payne for leaving the helm; I was busy with the other men at the time; the ship was then in a state of confusion; the most dangerous time at sea is in calm, cloudy weather; a sudden squall might come on and blow the ship's masts over the side while the wheel was empty; the men did not confine me, there was a military guard on board; I never entered into a written contract with any of the seamen respecting the quantity of grog they were to be allowed per day.

Re-examined - Grog on board a ship is not a matter of right; it may be given or withheld according to the behaviour of the men, which is the case in most voyages now.

By the Jury. - Payne's time for being at the wheel was out about ten minutes; he was not relieved in consequence of the dispute on board; we could not get a man to take the wheel.

By the Court - I put these men in irons, because I did not think if safe, with 220 convicts on board, to suffer them to be at large, in consequence of the disposition they manifested; the convicts were allowed to come on deck by turns during the day; some of them were without irons.

Francis Allan examined by Mr. Therry - I am Chief Officer of the Isabella; I was in that capacity on her late voyage from England; on the 6th of February last I was doing duty on board; on the morning of that day it was reported to me by the second officer that the prisoner, Anderson, refused to do his duty, an order was given to stop his grog and it was stopped; I called him aft to lower the boat and he refused; he was then before the windlass; I ordered him on the poop where he remained some time, but about 4 o'clock I saw that he had to bring him back; I was on deck at the time, and saw the second officer bringing Anderson back, but with a great deal of difficulty; I heard several of the crew say he should not go aft; the prisoner, Davis, was one who attempted to rescue him, assisted by Stewart and Neale; Anderson told me when I ordered him, that he would not go aft on the poop; I ordered Davis, who seemed to excite the others, on the poop also; I then called the carpenter to put them in irons; I told the rest of the crew to go forward to their duty; they did not at that time; Payne was at the wheel then; I saw him leave it and go off the poop; I called to him to remain at the wheel till he was relieved, and he told me he would not, and walked away; I told Mr, Reid to take hold of the wheel which he did, and I then sent forward to know whose wheel it was, but no one would relieve the wheel or did relieve it; it is the duty of a sailor to remain at the wheel till relieved though his time be up; it was calm weather, but a little breeze; in consequence of Payne leaving the wheel, and that I could not get any one to take it, I reported the circumstance to Captain Wiseman, who mustered the hands and asked the reason for their conduct in refusing to do their duty; the prisoners at the bar were among them; they said they would not do any more duty on board till Anderson and Davis were liberated; they came aft in; a very tumultuous manner making use of very improper expressions; I heard one of the crew, but I can't tell which, say "The Officers may navigate the ship and be d--d"; I called over the names of the crew individually, and asked them if they would go to their duty, and each man, as I called his name, refused to go to his duty till Anderson and Davis were liberated, saying that we had no authority to confine them; twenty-two men refused to return to their duty; there were about five-and-thirty ordinary and able seamen on board; the crew consisted of forty-five, including four boys; there were sixteen sailors who could steer the ship, and they were among those who refused to do duty; an order was then given by the Captain, and they were put in irons; next morning five or six, owing to the remonstrance of Captain Clarke, expressed their willingness to return to their duty, and their sorrow for what had happened, and they were allowed to go to their duty; after this, one of them, the prisoner Griffith, expressed a wish to be considered a prisoner again, and said he would not do duty till the others were liberated; after this the ship was navigated by the ordinary seamen and those able seamen who returned to their duty, with the assistance of the guard and  the convicts; the following morning after they were put in irons, several of the prisoners were asked to return to their duty, and they said they would not unless Anderson and Davis were liberated; they had every opportunity of returning had they been inclined; after they were put in irons they were only allowed half-a-pound instead of a-pound and a-half of meat daily, with pease soup and as much biscuit as they could eat; I called the carpenter to put Anderson in irons and he caught up a mallet, and said he would knock the "first b--y b-g-'s brains out, that would attempt to put him in irons"; he was at length put in irons; I was on the quarter dick which Payne left the wheel, I don't remember hearing him say any thing.

Cross-examined by Mr. Rowe - I did not see the second mate have any scuffle with either of the prisoners at the forecastle; when Davis came aft on the main deck, he took hold of Anderson and endeavoured to prevent him being taken to the poop, and, as it seemed to me, endeavoured to excite the others to assist him; it was for leaving the poop, and refusing to return when ordered by an officer, and using aggravating language, that Anderson was put in irons; it was for disobedience of orders and insolence; I don't know what passed between him and  the second officer at the forecastle; it was for refusing to navigate the ship on the 6th of February that the prisoners were put in irons; it was for that and for their improper conduct and language; they all refused to clew-up the sails, and said "the sails may blow away;" it was nasty weather, between a calm and a breeze; a puff might come and blow the masts out of the ship; I heard one of the prisoners, I can't tell which, say he "hoped a b--y gale of wind would come on, and we'd soon let them loose;" I did not hear any of them say they had entered into a contract with the Captain which he had broken; I heard some of them say they would seek redress; after they were in irons they behaved, in my opinion, in a very improper manner to Captain Wiseman; I would not have put up with such conduct had I been commander; they used to be singing and carousing, and behaving in a very tumultuous manner below; the magazine was below when they were confined; they were divided from the well-affected part of the crew by a temporary partition; they could not have had access to the arm-chest, or to the arms of the military, unless they broke down bulkheads; the door of the place where they were confined used to be left open, but there was an order given by Captain Clark that they should not be allowed to come out without permission; several of they prisoners at the bar were asked to return to their duty, in my presence, after they were put in irons, but they refused; they assigned no reason for not obeying orders, but that Anderson and Davis were in confinement; they made no complaint against the Captain; during thirty years' experience at sea I never saw men better treated than the prisoners were; Elman, being an old man, was treated more like an idler on board, and yet he was one of the foremost in these disturbances; there was a complaint before this about the quality of the beef, but, generally, I never saw better beef on board any ship; they were allowed a pound-and-a-half of beef, a pound of flour, half a pint of peas, and as much biscuit as they could eat, daily; I was not below when Payne left the wheel; I was on deck; I think the Captain was in the cuddy, but I won't be positive; I saw Payne walk away from the wheel; no one took hold of it till I ordered Mr. Reid to take it; he did not take it before he was ordered by me; I did not hear any conversation between Payne and Mr. Reid; I did not hear Mr. Reid request Payne, as his time was out, to go and take his supper, and he would take the wheel.

Cross-examined - I have frequently seen Captain Wiseman do a sailor's duty on board after this, and none of the prisoners ever offered to assist him; that, in my opinion, was very contemptous [sic] conduct.

By the Court - The prisoners were put in irons for the safety of the ship; in my judgement it was a necessary and proper act, particularly situated as we were with so many convicts on board, to secure these refactory [sic] men; I have been five voyages to this colony with convicts, but I never sailed with Captain Wiseman before; I never sailed with any of the prisoners before; they shipped themselves at London.

Alfred Bourne - I am second mate of the Isabella; about seven o'clock in the morning watch, on the 6th of February, I ordered him to go below : he clapped his hands in defiance, said "Agreed upon," and went below; Captain Wiseman came up about half-past seven o'clock, and I informed him of what had happened; Anderson was then called on the poop, and the Captain spoke to him; at eight o'clock it was Anderson's watch below; one o'clock he was ordered to return to his duty amongst the rest of  the crew, and he refused to turn to; I was ordered by the chief mate to call him aft, and, after making some objection, he did come; he refused, on the quarter-deck, to return to his duty, and the chief mate ordered him on the poop; his grog had been stopped for not doing as he was ordered in the morning; he went on the poop, and in the course of the afternoon he made three attempts to come off; I prevented him on those occasions, but about 5 o'clock he was missing off the poop; he was in the forecastle, and I was ordered to go and tell him to come aft; I went and called him, when Davis, Stewart, Ellman, and Neale, who were also in the forecastle, said "He is here, but you shan't have him," or words to that effect; there were five of the prisoners in the forecastle at the time, and one and all dared me to come forward and touch him, saying that no officer should have him, and that if he was put in irons they would all do the same; there was also a good deal of swearing and bad language made use of; while I was in the forecastle the boatswain came in and they all went aft with him, but in a very riotous, tumultous manner; they said Anderson should not be put in irons, without they were all put in irons with him; that they would do not duty, and we might navigate the ship as we could; all the crew were present at on the poop; I went between him and Stewart, to prevent the latter going on the poop with him; Davis was making a disturbance, and a chief mate ordered him on the poop also; at 6 o'clock it was my watch, and I ordered some men to stow the jib and clew-up the sails; they said they would not, that I might go and do it myself; no duty was done by the seamen that night; I reported to the mate that they refused to do any duty, and they were all called to come aft, and asked to do their duty, but they refused, unless Anderson and Davis were released, they also behaved in a very violent and improper manner on the quarter deck; after they were called over, and refused to return to their duty, an order was given to put them in irons; when Anderson was about being put in irons, he seized a mallet, and swore he would knock the first person's brains out, who attempted it; Payne had left the wheel at this time; I saw him running off the poop; I did not see the wheel empty; Mr. Reid was at the wheel when I saw it after Payne left it; the prisoners were asked individually by Capt. Wiseman and Mr. Allen to return to their duty, but they refused to do so, and said they would not; more men than those at the bar were put in irons; but some of them were liberated next morning on expressing a willingness to return to their duty; we could not have worked the ship without liberating some of them, without the assistance of the convicts and the soldiers; the ship was navigated from the 6th of February up to her arrival in this port, with the assistance of the soldiers and the best-behaved of the convicts; the captain and I have frequently done the duty of common sailors while the prisoners were on deck; they never offered to assist.

Cross-examined - I could have given a pull, had I been so disposed, even though I were in double irons; it was to reeve the convicts' clothes-line that Anderson refused on the morning of the 6th of February; his answer was that he would not do it; I told him three times, and he said "I shant't;" that is the only answer he made me; I ordered him, in consequence, to knock-off duty till I had seen Capt. Wiseman; in our ship it was considered part of the seamen's duty to reeve the clothes-line; I have done it myself; he refused to do it, and for that refusal I ordered him to knock-off duty, and go below; he was below about half-an-hour when Capt. Wiseman sent for him, a little before breakfast; he did not return to his duty then, for his watch on deck had expired; I heard nothing farther about it till 10 o'clock; I did not hear who gave the order to stop his grog; the order given, as a punishment for not doing as he was ordered; when I went to the forecastle to look for Anderson, after he left the poop, he was behind five of his messmates getting his supper; there was no order that he should not get his supper; I did not say, as I was going in, that I would fight any of them; nothing of that sort; the men were put in irons for refusing to obey orders and general misconduct; the ship was in a state of confusion; I did not hear Anderson make use of any outrageous expression till the irons were about being put on him; he then seized the mallet, but did not strike any person, because he was prevented by the carpenter and myself; when the irons were being put upon Anderson, the other prisoners said we might do as we pleased with him on our arrival here, where he could be tried by the laws of his country; I did not hear the other prisoners making any request to be tried by the laws of their country when the irons were being put on them; I was forward when Payne left the wheel ; I saw him running off the poop; when I came oft Mr. Reid was at the wheel; the chief mate was on deck when I got aft; I did not see him when Payne ran from the wheel, but I am satisfied he was on the deck.

By the Jury - Anderson was the first man put in irons during the voyage, up to that period.

Ensign Charles Elton, of 4th regt., examined by Mr. Williams - I formed part of the guard on board the Isabella, convict ship, on her voyage to this colony; I was on the poop at the time of the disturbance; I was standing by while a man named Payne was at the wheel; he was grumbling at not being relieved; I heard him say "he'd be damned if he'd stop there any longer," and he left the wheel; he was not relieved; I saw the fourth mate, mr. Reid, come and lay hold of the wheel; the wheel was left without any person at it for some few minutes; at his time the ship was in a state of disorder; very much so.

Cross-examined - When Payne left the wheel I can't say where Mr. Reid came from; I did not see him at the time Payne left the wheel; I did not see hi till he came and took hold of the wheel; I did not hear the first mate order Reid to take the helm; I do not know whether the first mate was on deck; I did not see him; the ship did not suffer from the wheel being left, but had it been blowing hard, I should consider we would have been in a very awkward situation; when a man named Stewart was in irons, I heard him say, he "wished it would come on to blow hell and damnation, and they would be damned glad to let us out of irons."

Captain William Henry Clarke, 4th regt., examined by Mr. Therry - I had the command of the guard of the Isabella, convict ship; it consisted of 41, officers and all; I recollect the 6th of February last; on the evening of that day, I was on the quarter-deck when the master ordered the first mate to call the crew aft, and from the circumstance of a great many of them on a previous occasion refusing to obey some order about their hammocks, I suggested, in the event of any thing of the kind occurring again, and the men coming in a body, it would be the better plan to ask them their reasons individually; on this occasion they were asked individually, and they all, that is, the prisoners at the bar and eight others, said they would not return to their duty unless the two men on the poop were released; there was great disturbance on the quarter deck at the time, and a good many of the soldiers were present; I also saw a man named Payne coming down the ladder, whom I had known, just before, to be at the wheel; I looked towards the wheel and saw no one at it; I heard the first mate remonstrating with Payne on the impropriety of leaving the wheel, and desiring him to go back, which he refused to do; the chief mate then directed the fourth mate to take the wheel; in consequence of twenty-two of the sailors being put in irons, I considered, if bad weather came on, that the ship would not be in safety, and having observed eight of the men, whom I considered had been led away by the others, I had them brought to me on the poop, and, after remonstrating with them, I told them if they would take my advice, they would return to their duty, and that I would intercede for them with the captain if they wished it; they agreed to return to their duty, and continued at it during the reminder of the voyage; after the prisoners were in irons on the poop, I heard one of them say, "I wish it would blow a b--y gale of wind, and they would soon let us out of irons"; the conduct of captain Wiseman, throughout the voyage, was remarkably mild; when Anderson was on the poop, and ordered to be put in irons, I saw him snatch up a mallet, but I did not hear what he said; I heard the second mate say "If you strike him I'll knock you down"; none of the prisoners did any duty or gave the slightest assistance during the remainder of the voyages.

Cross-examined. - The first mate was on the quarter-deck when it was reported to him that the wheel had been left; Mr. Reid was on the poop; I do not know whether Payne left the wheel at the instance of Mr. Reid, but I heard him a short time before grumbling at not being relieved; when the prisoners were ordered into irons, I think I heard some of them say they would have law for it; they might have said "when they arrived in New South Wales;" that is what I understood, and it is my belief it is what they intended to do.

By the Court. - In my judgment, having reference to the state of the crew, and the number of convicts on board, I consider putting the prisoners in irons was a highly necessary precaution; it was done with my entire concurrence.

Thomas Galloway, Esq., R.N., Superintendent of Convicts, examined by Mr. Williams - I had charge of the prisoners on board the Isabella; on the 6th of February, hearing a noise, I went on the quarter-deck, and found the first and second mates among the ship's company; some of the men were pushing the chief mate about, who was endeavouring to seize one of them; the man was seized and sent on the poop; his name was Jacob Anderson; another man, for making a noise, was also sent on the poop; his name was Davis; the ship's company then went forward, and declared they would not work unless the men were released; they remained on the forecastle upwards of an hour, when Captain Wiseman ordered them to be mustered; I was present; the captain admonished them as to their proceedings, and asked them individually if they would return to their duty; twenty-two refused; the prisoners were among them; they answered variously, but generally that they would do as the others did; I understood them to mean that they would not do their duty; they afterwards refused to do duty; I know the prisoner, Ellis; he called down some imprecation upon himself and others if they did any more duty; this was before the men were mustered; the men on the poop hissed and hooted, and one voice said, "Fire away, we can stand shot;" the prisoners, with the exception of the two on the poop, were on the number; the prisoners were secured in irons; this is the second voyage I have made as Surgeon Superintendent; I consider it was proper to secure the men in irons to render the combination harmless; there was a combination; they said they would do each as the other did; the prisoner, Payne, was brought to me by the chief mate for leaving the wheel; I advised him to return to his duty; he declined, and was confined with the rest; the convicts were of a very bad description; there were always some of them under punishment; Ellis remarked he had been several voyages to this country, and was never under discipline before; he alluded to the orders given to clean the place in which they slept and messed; he said he had better be on board a man of war than do that; some of the convict assisted to work the ship; the ship could have got here without their assistance, but not in the same time; the captain was obliged to shorten sail at night from scarcity of hands; we had a very fine voyage.

Cross-examined - Occasionally we had strong breezes which obliged us to shorten sail; for refusing to do duty the men were confined; I was consulted on the propriety of doing so and gave my assent; one of the men from the forecastle called out to fire at them; it was when they first went forward in a body contrary to orders; they were put in irons to prevent their plotting with the convicts; they were placed where they could hold no conversation with the convicts; it was in the afterpart of the vessel behind part of the ship's company; I don't remember their saying anything about redress; several words were bandied about; they said they would have law on one side as well as the other;; one said "flogging is a very fine thing, I know a captain who had to pay £300 for flogging a man"; I remember the men saying nothing about redress.

Re-examined. - I remember Captain Wiseman said if they were aggreived [sic] they could seek redress afterwards.

Captain Wiseman recalled.-  The Isabella belongs to William Wiseman, and the executors of Patrick Chalmers who are Mr. Sergeant Spankie and David Charles Chalmers. [Ship's Articles produced] I saw these articles executed. [Articles read by the Clerk of the Court.]

This was the case for the prosecution.

Mr. Rowe, on the part of the prisoners, took several objections to the information, in point of law; contending that the facts proved in evidence did not bring the case within the statute. The length to which our report has already gone precludes us from giving the learned gentleman's argument in full.

Mr. Therry said he was prepared to reply, but

Mr. Justice Dowling interposed and said, "I am of the opinion this is a case to go to the Jury. If any doubt should arise with respect to the laws, the question may be raised at another stage of the proceedings, should it become necessary."

Several witnesses were called for the defence, but their evidence failed in shaking that adduced on the part of the prosecution.

The learned Judge, in summing up the evidence, said this was an information charging the prisoners with a capital felony. The information was framed on a highly penal statute passed in the reign of William the 3rd. The Court, however, was not now to consider the grounds upon which that statute was originally passed, but to look to its terms, and at the expositions it had received in modern times by eminent judges, in order to see whether the acts charged against the prisoners at the bar brought them within its provisions. Probably, if the Court were now called upon, for the first time, to interpret the meaning of this Act, if would not be disposed to construe it with the same strictness in which it had hitherto been held by eminent and learned judges - so late even as the year 1825, in the case of Hastings and Mehard, cited from the bar. In that case it had been holden that, although the objet of mariners, in disobeying the orders of the master, was to obtain a redress of grievances, still if the revolt be with an intention of subverting the authority of the commander, although there be no intention to take the ship, still the offence came within the provisions of the statute. Then came the question - "What was a revolt within the meaning of the act?" His Honor apprehended that the word "revolt," as between the master and crew of a vessel, was to be taken in the same acceptation as between the Sovereign and subject. In fair construction, it meant rebellion against lawful authority, by such means as the law did not tolerate. The question, then, for the jury was, "Were they satisfied, upon the whole of the evidence, that the prisoners at the bar combined together for the purpose of subverting the lawful authority of the master?" His Honor apprehended that a a [sic] mere solitary act of disobedience of orders, as contended by the prisoners' counsel would not entail more than a forfeiture of wages. But, did the acts charged against the prisoners amount to no more? That was a question for the consideratio of the Jury. By the terms of the contract, the "ship's articles," to which the prisoners had subscribed, a mode of payment was pointed out. The seamen had certainly subjected themselves to an arbitrary dominion; but, at the same time, that dominion, or rather authority, vested I the master of the vessel for the interests of all interested in the objects of the voyage, was to be exercised with a sound discretion. It was to be governed by the principle of the relation which existed between parent and child - between master and servant - in each of which instances an arbitrary power to a certain extent, was recognized by the law; at the same time, such power must be exercised with temperance, with moderation, and in reason. It was, therefore, for the Jury, as men of sense, as men of the world, as men of experience, to place themselves in the situation of a master of a vessel, and say whether he had exercised that arbitrary power with which the law invested him, discreetly and properly, and with a due regard to the interests of all parties concerned in the objects of the voyage. The ship's articles undoubtedly contained the reciprocal obligations to be observed between the master and the seamen; but, said the learned Judge, let it not go forth to the world - let it not be supposed that a mariner can at any time during the voyage throw up his allegiance to the master, and refuse to obey his lawful orders. If it could be held that such language might be used to the master of a vessel by his crew, no man would trust his life or property on the blanks of the high seas. Before, however, the prisoners at the bar could be brought within the scope of the information, the Jury must be satisfied that they had combined together, and were acting in concert for the purpose of controlling the captain, and putting it out of his power to do his duty towards executing the trust committed to his charge. If they were so satisfied, as at present advised, His Honor held, upon the authority of decided cases, that such a combination constituted a revolt within the meaning of the Act. Were the orders given by the captain just and reasonable orders? Were the crew called upon to obey a legitimate and reasonable command? There could be no doubt that ordering a seaman into confinement was a reasonable order, if the Jury believed that it was warranted by the circumstances of the case. It was not competent, therefore, to the rest of the crew to say, that they would not navigate the ship unless the other men were set at liberty. If this case had been one occurring in the ordinary merchant service, perhaps one would not look very jealously at the conduct of the  prisoners; but the jury would bear in mind the high trust committed to the captain of this vessel - the great care and responsibility imposed upon him, and that the lives of all on board, independently of the property under his charge at the time, might be put in jeopardy by the conduct of the crew. The jury would therefore ask themselves had the captain exceeded his authority? - and if not, what had been the conduct of the prisoners? Had they combined together for the purpose of controlling the captain, and preventing him from performing the duties imposed upon him? If so, His Honor held that, in law, such combination amounted to a revolt, and the prisoners might be convicted upon this information, if the jury believed the evidence.

The jury retired for a few minutes, and found all the prisoners guilty of revolt. Remanded.


Forbes C.J., Stephen and Dowling JJ, 2 June 1832

Source: Sydney Gazette, 5 June 1832


Jacob Anderson, John Davis, Richard Ellis, Cornelius Merle, Thomas Fagan, Charles Stewart, Thomas Ellman, Richard Franklin, John Griffiths, William Langtree, Joseph Vaughan, Christopher Saunders, and John Payne, convicted of piracy, being placed at the bar,

Mr. Rowe proceeded to contend that, upon the evidence adduced at the trial, the case against the prisoners did not come within the meaning to the Act under which they had been convicted, when he was interrupted by the Court enquiring whether he was moving an arrest of judgment, or arguing a point reserved by the learned Judge who tried the case.

Mr. Rowe said he had raised the objection at the trial, and understood it had been served by the learned Judge who presided.

Mr. Justice Dowling said he had not reserved any point for argument. He had put the case to the Jury, as one, if they found the facts stated in evidence, coming within the meaning of the Act of Parliament; expressing his intention to submit his ruling in point of law for the opinion of his learned brethren. If Mr. Rowe were to be permitted to argue upon the facts of the case as they a-ppeared [sic] in evidence, it would be necessary, in the first instance, that the Judge should read over the whole of his notes, in order that the Court might be enabled to come to a right conclusion upon the question before it.

The Chief Justice said there were but two modes, after conviction by the Jury, of bringing a case like this before the Court - by motion in arrest of judgment, arising out of some defect on the face of the record, or by argument on some point reserved by the Judge at the trial. Here Mr. Rowe was not moving an arrest of judgment, nor had the learned Judge who presided on the trial reserved any point for argument before the Court. He had merely expressed his intention to lay before his brother Judges the manner in which he had put the case to the Jury, in point of law. His Honor, Mrs [sic] Justice Dowling, had communicated with hir [sic] brethren on the Bench, the Jury having, by thei- [sic] verdict, found the facts charged against the prisoners, that the case was one within the Act; the Court was, therefore, not in a situation to hear the line of argument adopted by the prisoners' Counsel.

Mr. Justice Stephen concurred in the opinion of the other learned Judges.

Mr. Justice Dowling then directed judgment of death to be recorded against the prisoners; intimating, at the same time, that he felt himself warranted in holding out to them the hope that, under all the circumstances of the case, their punishment would be light. His Honor, however, could not suffer it to go abroad, that men in the situation of the prisoners were at any time authorised in setting the authority of their commander at defiance; or that a mere forfeiture of wages would be the sole result of a combination to controul [sic] the conduct of a master of a vessel in the prosecution of his voyage. Such a state of things was not to be tolerated; and he hoped that the present, as well as a recent conviction which had taken place for the same offence, would operate as a salutary warning, not only to the prisoners themselves, but to all others employed in a similar situation.



[1 ] See also the similar case of R. v. Firth and others, 1832.

Published by the Division of Law, Macquarie University