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

Neal v Brown [1833] NSWSupC 51

ship, discipline on - ship's crew

Supreme Court of New South Wales

Burton J., 10 April 1833

Source: Sydney Gazette, 13 April 1833[1 ]

Before His Honor Judge Burton and a special jury, consisting of the following gentlemen, viz - George Druitt (foreman), G.T. Palmer, Samuel North, James Blackett, Grayson Hartley, William Cox junior, Thomas Wills, Isaac Shepherd, H.G. Smith, David Alan, Edwin Parke and C.F.Warne, Esquires.

Neal v. Brown

This was an action of assault and battery, brought by the plaintiff, a mariner, against the defendant, who is master and owner of the ship Porteus, whaler, of the port Sydney; the defendant pleaded first, the general issue and second a justification, that the assault complained of was necessary to preserve the discipline of the said ship; damages were laid at £500.

Mr Foster in stating the case to the jury observed, that it was matter of regret to him, to find the defendant in the present action concerned in a transaction which for atrocity, and abuse of power, stood unequalled in the annals of that Court; the defendant was to his knowledge a most respectable man, he had been known to him several years, and occupied that rank in society; but the law had no respect for persons, it knows no man, fathers, brothers - all are alike in the consideration of justice.  The defendant had put in two pleas; both of which would be found to be answered satisfactorily.  With regard to the first, he was prepared with such evidence as would prove the assaults to have been committed; as to the second, it would be urged on the other side, that three distinct acts of assault of a most violent and atrocious character, as described in the declaration had been found necessary for the government of the ship, this would no doubt be made the ground for justification, but he would tell the defendant that such conduct as he had exercised was not to be justified; the law had invested him with a power which was sufficient to repress insubordination, but that he had overstepped the limit of punishment laid down by the legislature, would be made evident.  He was anxious to afford them ample information on that point, which should not rest solely on his authority, he would refer them to the law as it had been laid down by Lord Chief Justice Abbott. (Mr. Foster quoted at some length from this authority, also from Holt on Shipping).  Could the defendant's conduct conduct [sic] be compare to the cool and deliberate manner of a parent in administering a moderate and necessary correction?  He would prove to them that on the contrary, the most savage and inhuman barbarity had been exercised, that the defendant had acted under the influence of the worst feelings which could actuate the human mind.  The victim of his brutality was a free born subject of the King and a Native of the Colony, and he relied with perfect confidence in their decision, in affording to his client that justice which his case imperatively demanded.  With these observations he would proceed to call evidence.

William Henry Poole, examined - I was cook on board the ship Proteus, commanded by Captain Brown; I know Joseph Neal, he was a shipmate of mine; I had no particular acquaintance with him; he was Captain Brown's boatsteerer; Mr. Abbot was chief mate; I remember the captain ordering Joseph Neal to make sinnett; he was on the poop; there were others also making sinnett; I heard the plaintiff say, ``I will go and work where the sun is not so hot;" he said this to another man; he said he would go forward, the other man might go where he liked; the captain said ``You will go where you like, will you, you d-d mutinous rascal?" Joseph Neal said he was do d-d mutinous rascal, words arose, and a scuffle ensued; Mr. Abbot came to the captain's assistance; in the scuffle the captain struck his eye against the hencoop; he turned round to Mr. Abbot and said, did you see Neal strike me; and Mr. Abbot said he did; I was on the poop at the time; Neal did not strike the captain; nor did he lift his hand for that purpose; he was overpowered by the captain and Mr. Abbot; and tied hands and feet; Captain Brown assisted; Mr. Abbot got a boat's tackle-fall, and beat Neal until he was black and blue; he was then thrown off the poop on to the quarter-deck like a ball of spun yarn; the poop is 7 feet high from the deck; he was tied hand and foot when he was thrown down; I saw the captain make a kick at him while falling; he fell on his side on the deck; he was dragged to the foot of the main-mast; his hands were loosed, and he was tied up by his hands to the main-mast, with his feet barely touching the deck; the captain tore the shirt from off his back, and the third mate, by the orders of the captain, commenced flogging him; when he had received one dozen, the captain asked him if he was sorry for what he had done; Neal said he had done nothing to be sorry for, and therefore could not feel sorry; he then ordered the third mate to proceed, and he received another half-dozen; Neal was again asked if he was sorry, when he gave the same answer as before; the captain said he would see his backbone, and again ordered the third mate to proceed; he stopped at every succeeding half-dozen to ask the same question, Neal always gave the same answer; when he had received three dozen, the captain said cut him down, he is a d-d hardened rascal; Neal was then ordered to the cabin to have his back dressed; after his back was dressed he went forward; he did not go to his duty; he was unable; he must have been nearly cut to pieces, what with the rope and the flogging with the cat and ten tails; the third mate and another man left the ship at Steward's Island; I remember another occasion when Neal was flogged; it was about nine months ago; Neal was at the try-works; he was the principal man at the works; there was a man named Steward Mincing; Neal told him not to make so many slivers; Steward asked him who he was, and words arose; Neal said he had a right to speak if he saw him do wrong; Stewart insisted on fighting Neal, and struggling commenced, Stewart had his foot cut during the struggle with the mincing knife; Steward went aft to the cabin, and Neal was called shortly after; on coming from the cabin words took place between him and the captain, and he came forward towards the try-works; shortly after the captain and mate followed him, and he was dragged aft and tied up, and Steward was ordered to flog him, which he did; he received one dozen on that occasion;' Steward was the man who left us at Steward's Island with the third mate; I saw him dragged forward by the captain and mate; he was not stripped; I never saw him lift his hand to the officers while he was in the ship; I remember another occasion when the captain struck Neal, when he asked what that was for, the captain called him a mutinous rascal; on that occasion he was put in confinement where he remained five days and nights in irons without food; I know Jackey Mity, he is a New Zealander, a boatsteerer; I don't remember him carrying food to Neal; I did not hear Mr. Abbot speak to him on the subject; I don't think he had any subsistance during that time; the hatches were shut down; I heard the captain say if any one carried him any food he should be tied up and flogged.

Cross-examined by Mr Wentworth - I was cook; I always behaved well; I was put in irons for saying I could not cook without wood; I had words with the third mate about the wood; I struck him, but he struck me first; I did not cut the mast; there was no wood to cook the men's victuals with, and I asked for some but could not get any; If the men had not had had their provisions cooked the captain would have flogged me; he threatened frequently to do it on that account; I said if there was no wood on board the ship he had better give me the foremast, but I did not cut it; I swear I saw the captain kick and strike Neal; I was on the poop; I went there to borrow a knife of a man who was at work there; I was not supplied with a knife by the captain; most of the hands were on the poop; there was no person on the forecastle, when I got on the poop, bearing some words, I remained for some time; I did not hear Neal make use of any ill language to the captain; captain Brown ordered him to make sinnett; Neal did not say I will go when I like; the captain thought he did; he did not refuse to make sinnett on the quarter deck; the captain said he was a damned mutinous rascal; he said he was no mutinous rascal; I was near enough to see; I swear Neal did not strike the captain; the captain did not call any of the men to his assistance; the men said it was a shame that a man should be used so cruelly, that was all I heard said; two or three men said this, but I don't believe it could be heard by the captain; Neal I think is a native; he was called Sydney Joe; I am not a native.

By a Juror - I cannot say how long he was confined to his hammock after having been flogged, nor do I know when he returned to his duty; there was a railing round the poop; they did not lift him over the rail.

By the Court - He was thrown down at the ladder; thrown down anyhow.

George Phillips- I am of the Jewish persuasion; I was on board the Proteus during her last voyage; I shipped as steward; I held that situation 5 days, when I was sent forward, and was subsequently employed as an ordinary seaman; I remember Neal being flogged; I saw a scuffle between him and the captain; I was standing at the gangway; the chief mate struck him several times with a boat's tackle-fall; he was thrown off the poop on to the quarter deck, dragged to the mainmast, and tied up by his hands, where he remained while the cats were being made; the third mate flogged him; when he had received one dozen the captain asked him if he was sorry for what he had done; Neal said he had done nothing for which he could be sorry; he afterwards received four succeeding half-dozens; the captain at the end of each, asking the same question and receiving the same answer; the captain ordered him to be cut down when he had received three dozen, saying he was a damned hardened scoundrel; I remember Neal being flogged some time after; the third mate had left the ship at Steward's Island, and Neal was appointed in his room; he used to superintend the try-works; I was employed in the blubber-room carrying blubber to the mincers; there was a disturbance between Neal and a man named Steward, it was something about the mincing; the captain and Mr. Abbot came forward and secured Neal; he was tied up on that occasion also, and flogged by Steward; he received one dozen; I remember on that occasion, when the chief mate's boat was being hauled up, the captain charged Neal with not doing his best, and struck him; he afterwards took up the grains, and holding them to his breast, said he would as soon dart them into him as he would into an albacore; Neal was put into confinement in irons on that occasion, where he remained five days and five nights, without food; I was threatened with a flogging for attempting to carry some bread and water to him; if he got any meat during that time, it was unknown to the captain, there was none allowed him.

Cross-examined by Mr. Norton - I saw the beginning of the lst affray; I did not see him strike the captain nor even lift his hand, he caught hold of the rail to save his head; Mr. Abbott took a tackle fall and beat him with it over the hands until he made him let go; Neal is a man stronger enough to do his duty; I am not aware that he is a prize-fighter; he struggled hard, it was with difficulty he could be tied; the chief mate sunk his knees into his breast; from the time he was first tied up until the cat was made, was about an hour, during this time the captain and Mr. Abbott were in the cabin; Mr. Harding was on deck; I don't say I heard them consulting; the cat was made for that particular occasion; I don't know the time of the day on which it happened it was light; Neal did not refuse to obey the captain's orders; I don't know how soon he returned to his duty after being flogged, he was always disposed to do his duty, as soon as he was able he returned to work; I do not say it was a fortnight; can't say a week; I did not take particular notice; it was not my business; the man did not deserve to be flogged in my opinion; I am certain he did not on that occasion, some of the hands were called out of their hammocks on the second occasion to see him flogged; the men said it was a d-d shame to see the man flog Neal; I saw no attempt made by the men to put a stop to it; the men went below again when ordered; all hands thought it was a wrong act on the part of the captain; I did not see any sharp instruments used in the scuffle between Neal and Stewart; I did not know the man was wounded at the time, nor did I hear of it; I have no reason to know the wound on his foot was occasioned by the scuffle; Neal was kept, when put into confinement, without anything to eat, except he obtained it privately; he was in irons on the poop during the day; I am certain no food was allowed him; I have no doubt he was without food two days; I am not aware that he made a vow to starve himself; I was in trouble when off Strong's Island; I was confined below, and the hatches were battened down; we were about sailing for the coast of Japan; I was hungry for bread; I remember the captain going ashore; all hands asked him to get us something to eat, as it was impossible to work upon hungry bellies; we were allowed 1lb bred and 1lb beef, pease twice a week, and flour twice, and a small quantity of rice, nothing extra on Saturdays; we had a small quantity of spirits on a Saturday night; and when we caught fish, we got the tea-pot from the cabin after the captain and officers had done with it; the leaves were not covered with fresh tea; this portion of tea, or rather tea-leaves was for 28 men; our bread was so rotten that we were frequently obliged to give it to the pigs; 14 of us were confined; we did not swear on the bible not to work; I am not at all interested in the result of this trial; I won't say I hate the captain, but I must confess I don't like him; I did not say this morning I should like to see him flogged at a cat's tail.

Juror - When Neal was flogged by Steward, it was on the bare back; during his confinement I am sure he had no allowance from the ship; when he was acting 3d mate, it was by the captain's authority; remember hearing it was Captain Brown's orders that he should be obeyed the same as the other officers.

William Christopher - I was a seaman on board the Proteus during the last voyage; I have been on board a man of war: I was at first a servant, and afterwards an ordinary seaman; I remember the time Neal was punished off Santa Cruz; I was forward on the forecastle making sinnet, the captain called Neal to the brink of the poop; I heard the captain say something to Neal; I don't know the exact words; Neal asked if he could not make as good sinnet forward as aft; words ensued, when Neal and the captain commenced struggling together, during which the captain struck his face against the hen coop; Mr. Abbott went to the assistance of the captain; had he not caught the rail of the poop his brains would have been dashed out against the deck; I saw the chief mate strike him several times with a rope over his hand and fingers to let go his hold, which he was at length forced to do from the violence of the blows; I saw the captain kick him several times while he lay bound  on the poop; he was dragged from the place where he fell to the mainmast, to which he was tied by his hands; the captain and mates then went into the cabin, and remained for some time; the captain afterward came on deck and called Mr. Smith, the 3d mate, to punish the man; he came out of the cabin with the cats and commenced the punishment; when he had given Neal one dozen, the captain asked him if he would beg pardon; he said he had done nothing wrong, and would not beg pardon; the captain told the mate to continue flogging him; at the end of every half-dozen the captain asked him if he repented, and received the same answer as before; he continued the punishment till Neal received three dozen lashes altogether; I can't say how soon he returned to work after this; Neal was a boat-steerer; the 3d mate left the ship at Steward's Island; no person filled his situation for a long time; Joseph Neal acted in his room afterwards; I did not hear the captain say he should be obeyed; a man named Steward also left us at Steward's Island; I remember a disturbance which took place one evening, between Neal and Steward; I was before the try works; it was late in the evening; Neal was the chief man at the try works; Steward was trying out; he had had words with Neal a few days before; he told him to mince a little finer; Steward asked him what was it to him, he would mince as he liked; Neal said the finer it was minced the more oil would be got out of it; Neal said he had better do as he was told, or he would complain to the captain; Steward continued to aggravate Neal, until he struck him; a scuffle ensued, during which Steward trod upon the mincing knife ad cut his foot; when he went aft to the captain and asked for some dressing, he asked him who cut his foot, and he told him Sydney Joe did it; Neal was called aft, and charged with cutting the man's foot which he denied; the captain called him a liar and said he was the man that did it; Neal then came forward muttering as he came along; the chief mate followed him and desired him to hold his tongue; the captain immediately came forward and knocked Neal down, and gave him a kick; one of the hands who had came on deck, hearing the affray, said kick him again, he has kept the men awake all night; Neal was then dragged forward to the mainmast, and tied up; the captain asked the hands who'll flog his fellow, when Steward said, give me the cats and I'll flog him; which he did.

By the Court - The mincing knife fell off the tub when Steward cut his foot with it.

Mr. Foster - I recollect early one morning the chief mate's boat was being hoistered up; I was on the poop at the time; the captain sang out ``hoist away"; Neal said there were not hands enough, or that they could not hoist any faster, when the captain knocked Neal down; he then brought a pair of grains, which they strike fish with, and threatened to run him through with them; he was then put in irons; I can't saw how long he remained in irons; I am certain he was in confinement four days; he had no food allowed him during that time; I remember on one occasion he struck work of his own accord; when he was hoisting the chief mate's boat, he was on the after fall by himself; he said he was doing all he could; there was no man at that fall but himself; I was at the foremost fall, and must have seen them it others had been there; the falls extended across the deck.

Cross-examined by Mr. Norton - I heard some words about senuett; I saw Neal flogged; I was standing at the forecastle abaft the foresail, when I saw the captain kick Neal; I saw the chief mate strike Neal several times with a rope I never said I was near sighted; I have lost the sight of one eye, but I can see well enough; I took the helm like the other hands at first; my wages were reduced from an able to an ordinary seaman's, on account of this imperfection; I am not aware that Neal refused to perform his duty after he was punished; he went to work like other men; his being flogged certainly attracted my attention; if he had been hanged I could not have prevented it; I can't say whether he kept watch with me or not; he never lived in the cabin to my knowledge; he went in the third mate's boat; I don't know whether that constituted him third mate or not; I belong to the same boat; there were not six men at the fall hoisting the chief mate's boat; I won't swear there were three; the falls were twelve feet apart; I did not see any person but Neal at his fall; I will swear that Neal did not strike the captain; men are sometimes called from one fall to another; I don't know when he returned to his duty after being flogged.

Juror - It requires four hands to hoist the boat up, if she is water-logged, six hands; I was in Neal's boat; I obeyed him as an officer; I understood that the captain had given orders that the men should obey him; he never kept watch as third mate; it is not usual for a third mate to keep watch; I was present when Steward flogged Neal; it was on his bare back; his shirt was torn off dragging him aft.

James Simpson - I am cooper of the Proteus; I remember the disturbance off Santa Cruz; some words arose between the captain and Neal about sinnet, and a scuffle took place between them; the captain struck his face against the hen-coop.

[The examination in chief of this witness merely corroborated the former evidence.]

Cross-examined by Mr. Wentworth - I always considered Neal a quiet orderly man; Smith used to mess in the cabin; Neal did not; I was alongside the main-mast making breakers when he was flogged; I was about 24 feet from the break of the poop; I could see distinctly the larboard side of the deck; I did not see Neal strike the captain; I saw the captain's face cut on the forehead near the eye; Neal struggled very hard to prevent his being thrown down; Abbot struck him several times with one hand while he endeavoured to drag him by the legs towards the ladder with the other; he was on his back sliding down the ladder; I never was on board of a man of war; I don's want to know the meaning of a good flogging; Neal was tied up during the time the cats was making;' when he had received his punishment he was sent into the cabin, to have his back dressed; I saw it, it was cut in stripes; I did not belong to any watch; Neal did not keep watch the night he was flogged; the first time he returned to the try-works; on the second occasion our berths joined each other, his feet against my head; I don't know how long he laid by; I went in the same boat with him, not the captain's boat; on one occasion the captain threatened to take his life before he had done with him; I said that would be a pity as it would spoil the voyage; he would be taken a prisoner back to Sydney; he asked who would do it; I said I would detect a murderer wherever I could find him, on which he ordered me to leave his cabin; I don't know how many men were at the fall with Neal; I don't know anything about his pulling; I don't know whether Neal cut Stewart, or whether he cut his foot himself; I never heard Stewart accuse Neal of it; I have heard him say that the knife fell down and he trod upon it; I did not hear what complaint he made when in the cabin; I did not hear the crew call the captain to punish Neal; Stewart challenged Neal to fight, he told him to go about his business, he did not want to have anything to do with him; the evening was quite dark, it was past 8 o'clock; I heard the mate call upon Neal to silence; I did not hear Neal make use of any improper expressions; Neal was in irons four or five days; I know he wote [sic] them all one night; he we was confined on the poop, he slept there; I know he did not sleep in his berth, he was confined also down the main hatchway; I don't know whether he told the captain, he would do no more duty or not; he told me he had suffered so much ill usage in the ship, he would do no more duty; he was in irons at the time; we made as prosperous a voyage as any vessel out of Sydney; my wages was £12 a month; Neal was on the 100th lay; his share was about two tuns; £30 a tun.

Juror - I can't say how long he was confined to his hammock after having been flogged, nor do I know when he returned to his duty; there was a railing round the poop; they did not lift him over the rail.

By the court - He was thrown down at the ladder; I always considered Neal to be an obedient, orderly man, and respectful to his officers.

By a Juror - I did not say Stewart flogged Neal with a rope; I said with the cats on the bare back.

This was plaintiff's case.

Mr. Wentworth rose to address the jury on behalf of the defendant.  He observed, that his learned friend on the other side had entertained the most fearful apprehensions of the fate of his case, or he would not have dared to entrap their consciences by an intimation of this client being a native of the colony.  His opinion of their integrity must indeed be of a sorry character, when he imagined that such an intimation would have a favourable influence on their minds.  He would tell them that they did not sit there to consider a question with regard to countries, they sat to administer justice - that justice which they would administer between any two of the human species, without considering whether he was a British subject, or an African negro - that justice was demanded; he entertained too high an opinion of their morals and intelligence to labour under the least apprehension from the observations of his learned friend, unworthy and unreasonable as they were, but he could not but make a remark or one circumstance, which he feared he must look upon as a misfortune.  Among the twelve gentlemen composing the jury that day, not an individual appeared who could form an idea of the character and disposition of seamen when at sea, of the irksome and anxious duty the master had to perform in preserving order and discipline among them.  The whaling speculation was relied upon as a means of advancement to the interests of the colony; it was looked forward to as the main source of its wealth and commercial importance, a speculation in which our offspring might be actively engaged; but what might be said of it, if conduct such as was too common among seamen generally, and had been exercised by the plaintiff in this case were allowed to pass with impunity?  Why, that its existence was impossible.  Commanders had no means save that afforded by the law of carrying their authority into effect; the law had given them a power, and it had been used by his client with a discretion becoming the occasion.  The plaintiff's conduct was proved to be of a most turbulent nature, that, on the contrary, the utmost possible coolness had been exercised in the administration of the punishment which the plaintiff's conduct had rendered necessary; they had heard that upwards of an hour had elapsed between the transgression and the punishment; which was employed by the defendant in consulting with his officers, as to the expediency and necessity of the act; he had foreborn to resort to it bad as the plaintiff's conduct had been, until he had obtained their concurrence; was this an act arising out of an insatiable desire for revenge?  Was this the conduct of a man who laboured under the influence of passions excited to the highest pitch, who had no feeling to gratify, but that of revenge?  Was it not on the contrary a proof of the most cool and deliberate reflection?  He could not but regret that one whose evidence would have satisfied them as to the defendant's conduct on this occasion, had been made a party in this action, merely to preclude him from giving evidence; it was too well known to the other side, that his listening would have destroyed all their hopes, and they had found it expedient to resort to such testimony as would prevent his appearing before them; but they would learn from such proof as he had to offer, sufficient to direct their judgment as to the true bearing of the case; with these observations he would rest his case in their hands, satisfied that the result would be favourable to his client.

Evidence for the defence was then called.

William Harding - I was 2d mate of the Proteus; I recollect the disturbance between Neal and Captain Brown, I was in the cuddy; I came on deck on being called on by the captain; Neal was making sennet; I first saw Neal under the Captain; they were struggling; the captain said Neal had struck him, he denied it; the chief officer said you rascal, I saw you strike the captain; he was ordered off the poop but would not go; he persisted in denying that he had struck the captain; we were ordered to take him down by force; we laid hands on him for that purpose; he fell down by the captain dragging him, his feet were forward in the break of the poop; the captain ordered him to be tied to the main-mast; a rope was run across the deck to keep the people off; the captain called all the officers to ask their opinion whether he did or did not deserve to be flogged; the chief mate said he did; on my opinion being asked, I said I did not see the blow, but if he had struck the captain, and it was lawful to punish him; I thought he deserved it; the third mate gave his consent; the cats were made and the 3d mate flogged him, it was very slight; when he had received a dozen, the captain asked him if he repented of what he had done; he said he had done no wrong, and had nothing to repent of; he had four half-dozens after the first dozen, at each of which the captain asked him if he was sorry for his conduct; he talk a good deal to him, with a view to induce him to save himself from punishment by expressing his contrition, without effect; he was then taken down; I can't say whether he went to work that night or the next day; I did not look after him, as I thought he was rather ill; he went to work the next day; he was not unable to work; I never saw any flogging in a man of war; I have seen six lashes ashore worse than the three dozen; I was in the cuddy; I was present at the punishment, quite near enough to see the flogging; I recollect the disturbance with Steward, and he (Steward) complained he cut him with the mincing knife; it was dark; I was in the cabin when Steward Came aft, with his face and his foot cut; he appeared to have received some heavy blows; I was unable to go on deck, in consequence of an injury I had received by the blow of a whale; Steward was severely cut; it was six inches long and deep; a little higher up would have ruined him; his face was much bruised; I saw Neal that evening; there was no mark on him; the captain sent for him to ask the reason why he struck Steward; Neal said it was through Steward's obstinacy in mincing thick; the captain said, ``don't do it again:" he turned his back and said, ``I'll bed-d if I don't strike him when I like;" the captain followed him, and a scuffle took place; the captain came back in a few seconds, and Neal went to his duty; the captain went forward again, and more words ensued; Neal was brought aft soon after and flogged; after he received a dozen he went forward to his work; Steward flogged him; Steward ran away at Steward's Island; I was not present when the captain said he struck him; I remember him being brought to the cuddy and put in handcuffs; he was released on the next morning; the chief mate asked him to return to his duty, which he refused to comply, saying he had been ill used; the captain warned him of the consequences of his obstinacy in losing his proceeds of he voyage, and said he could stand by starving him if he would not return to his work.  He was confined four or five days; the captain told us he had used every means in his power to induce him to return to his duty.

Cross-examined by Mr. Foster - He was considered third mate, but had no charge of any thing but a boat; when the captain and Neal were struggling together; his feet were afterward tied with a rope; I will not swear his hands were not tied; I did not see them; he was not in the habit of striking people; he was taken from the poop by rough usage and was beaten; he was afterwards tied to the main mast and flogged with the cat-o-nine tails; it was made in the cabin, from a New Zealand fishing line; I was not asked to flog him; I may have said that I considered Neal badly used through his own bad behaviour; I did not say he had received more punishment than he deserved.

By a Juror - His general conduct through the voyage was quarrelsome; he always looked surly and grumbled continually; he was not allowed any provisions while under confinement, because he would not work; I am of opinion the punishment was necessary to preserve discipline; he was confined three or four nights; his bed was on the poop; there was a watch kept over him; he did not sleep where the ship's company slept; I cannot say whether he was allowed water or not; I knew a New Zealander named Jackey Mitv; I remember some meat being taken from him; threats were held out to him to cause him to desist from attempting to convey meat to Neal in his confinement; Neal asked the captain for something to eat; he said he would give him some if he would go to work; her used to talk to him for hours.

William Southly - I am an apprentice on board the Proteus; I recollect a disturbance between Neal and the captain; I saw Neal trying to overpower the captain; the chief mate was coming down the rigging; I heard him say, Neal struck the captain; he was afterwards overpowered and tied hands and feet, and thrown off the poop; I was present when he was flogged for striking the captain; I remember a quarrel which took place between Neal and Steward; Steward came aft to complain of his foot being cut with a mincing knife by Neal; the captain asked Neal his reason for doing it, he said he would do the same to any man who would insult him; the captain and he had words, and Neal was sent forwards; some farther disturbance took place, and the captain and mate went forward to induce him to be silent, and not to create a disturbance in the ship; Neal still persisted in talking to Steward; he was afterwards brought aft and handcuffed; he received one dozen lashes, after which he went to his duty; I was one of a party employed in hoisting up the chief mate's boat; I was at the same fall as Neal; the captain sang out that Neal was not putting his strength out, but was merely going through the motions, and asked him why he did not do the same as the other men, on which he turned round and struck the captain; he was then siezed by the mates and taken on the quarter-deck ad handcuffed until the boat was up, then sent on the poop; he only remained from 4 o'clock till 5 next morning, when the handcuffs were taken off and he was desired to go to his duty which he refused; the captain said he should receive no food until he went to work; he was again confined on the poop; I was not present when he agreed to return to his duty.

Cross-examined by Mr. Foster - I am an apprentice; I am going with the captain the next voyage; I did not say I would answer well to day; after the third mate left us on Steward's Island, Neal took his place; the captain did not take up the grains and threaten to run them through Neal; I did not hear the captain threaten to murder Neal; the cat-o-nine tails were made in the cabin; there was a consultation in the cabin by the captain and the officers before Neal was flogged; I did not hear any consultation on the second occasion; I was acting as steward when the consultation took place, and could hear the conversation of the officers; Mr. Harding, the second officer was ill in bed the captain and chief mate sat at the table; Mr. Harding did manage to get out of bed, but did not leave the cabin.

Mr. Willoughby Dowling examined by Mr. Norton - I was in the Portico of the Court when I heard G. Phillips say that he would like to see the captain flogged at a cart's tail; I was present on his examination; I heard him swear he did not say so; I swear I heard him say so; this closed the defence.

Mr. Foster rose to address the Jury, he could not help remarking on the apprehension felt by his learned friend on the other side for the success of the case, seeing as he did, the weakness of the defence he had offered, in justification.  He had to bolster up the case, introduced the last witness as a desperate resource, to give such a testimony as could not but be viewed by them, as most ridiculous.  Much stress had been laid by his learned friend on the forbearance exercised by the defendant, in resorting to a legal means of administering the assault.  He would contend that no man can unite in himself the triple character of judge, jury and executioner; which from the evidence they had heard that day was clear had been exercised by the defendant in his most unjustifiable assault, which it was attempted to cover by a mockery of a judicial procedure.  The captain's humanity was set forth on the most glowing colours by his learned friend, in his endeavours to induce the plaintiff to return to his duty and thereby save to himself the proceeds of his toil, which would otherwise be forfeited.  He had also from motives consistent with propriety endeavoured to prevail on the plaintiff to express his contrition for his conduct, which was resisted by his client with a spirit which became his character as a man and a Briton.  He was sensible he had done no wrong, and could not submit to the degradation of adding to the insult he had received.  The defendant knew he had done a wrong action, and was cunning enough to know that if under the influence of the torture, he could extract such a confession from his unfortunate victim, he was secure from the consequences of an action; but the invincible British spirit of his client had withstood the trial.  He agreed with his learned friend, that the whaling speculation was looked forward to as a source of future commercial importance and wealth to the colony; but if such conduct as the defendant's were to be tolerated, what free person would subject himself to such treatment, by giving up his liberty to such men as the defendant; their children might yet be actively engaged in this particular trade, and, if so, before they assumed command they must be taught to obey; they must be subjected of necessity to treatment such as had been suffered by his client; and what parent could contemplate it with but feelings of indignation?  He would now rest his case in their hands, with one special observation, that whatever they might have learned of the case outside the Court, they would divest themselves of all feeling on that account, and be guided solely by the evidence before them.

The learned Judge in proceeding to recapitulate the evidence observed, that he could not but take up the observation last made by the learned counsel for the plaintiff, which he regarded as one of the greatest importance, inasmuch as it went to imply the probability of an attempt at tempering with their consciences.  If any man had done so, he was to be spurned as their greatest enemy.  Their minds, as holding the balance of justice between two of their fellow creatures, would be proof against such probabilities.  He submitted the case on its own merits, it being merely one of evidence.  These were the points for their consideration:- Was the punishment administered? if so, had it been necessary to inflict such punishment, in order to preserve that discipline necessary for the good government of the ship? and had it been confine within the limits of moderation?  The jury retired for about ten minutes and returned a verdict for the defendant.

 

Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Sydney Herald, 17 June 1833[2 ]

 

Neil v. Brown. - This was an action tried last term before Judge Burton and Special Jury, to recover a compensation in damages for a violent assault committed upon plaintiff by defendant, master of the Proteus whaler, on the high seas, when a verdict was returned for defendant.  The learned Judge having read the notes of evidence, Mr. W. Foster on behalf of plaintiff, now moved for a new trial, on the ground that the verdict was contrary to evidence.  He contended that as it appeared in evidence, the plaintiff was not allowed food when in irons, the Judge ought to have informed the Jury that was perfectly unjustifiable.  He would not attempt to deny that proper subordination was necessary on board of vessels; in Holt on Shipping; it was laid down "that the master's authority over his crew, was the same as the authority of the master over his apprentice," but the law watched such authority with the greatest jealousy, as he was not authorised to punish beyond necessity.  The allowing plaintiff's conduct generally during the voyage to be put in evidence was improper, as he ought to have specified the particular acts committed by plaintiff.  There was proof that defendant kicked the plaintiff, that could not be justified; he tied him up an hour before flogging him, then gave him a dozen, and argued with him five minutes to confess that he was wrong, this he refused, then another dozen was given, and he was again asked, when he still refused, and received another dozen, this system of flogging because he would not confess was clearly illegal.  On another occasion defendant took up a lance and threatened to run plaintiff through, this showed his violence of conduct.  Then there was the quarrel with Steward, who refused to do his work, when plaintiff struck him, on complaining to defendant, he ordered plaintiff to be flogged, and ordered the very man complained of to flog him.  Defendant's conduct on both sides as agreed upon was perfectly unjustifiable, therefore a new trial ought to be granted.

Mr. Wentworth opposed the motion, on the ground that the punishment received by plaintiff was perfectly justifiable, and brought on by his own mutinous and outrageous conduct, and consequently that the verdict should stand.

The Court considered full justice had been done, and saw no reason why the verdict should be disturbed.

 

Notes

[1 ] See also Sydney Herald, 15 April 1833. On earlier proceedings, see Sydney Herald, 4 March 1833.

In 1832, the New South Wales Legislative Council passed a new Act (2 Wm 4 No. 10) to deal with the relationship between masters and servants.  The short title made clear that its aim was ``for the protection of Masters and Ships from vexatious Suits in the said Colony."  See Sydney Gazette, 29 March 1832.

[2 ] See also Australian, 21 June 1833.  It concluded with the following comment: "the judgment of the Court in this case, decides the question that masters of merchant vessels and whalers, have power to flog their men for mutinous and disorderly conduct."

Published by the Division of Law, Macquarie University