Decisions of the Superior Courts of New South Wales, 1788-1899
R v Higgins and others  NSWSupC 6
R. v. Higgins, Fuller, Anderson, Thomas, Belford and Walsh
mutiny - ship's crew, revolt - piracy - Burton J., attitude to jury - death recorded - ship, discipline on
Supreme Court of New South Wales
Burton J., 14 February 1833
THURSDAY. - Before Judge Burton and the usual commission.
Daniel Higgins of Chili, and Henry Fuller, James Anderson, William Thomas, John Belford, and Edward Walsh, of London, Mariners, were jointly indicted, for that on the 31st of October, 1832, on the high seas within the jurisdiction of the Admiralty of England, 50 leagues from Phoebe's Island, near the Equator, in the Pacific Ocean, on board the ship Eliza Frances, belonging to Edward, Thomas, and William Jarvis, subjects of our Sovereign Lord the King, whereof George Lawson was master, feloniously did make a revolt, against the form of the statute.
The second count charged them with endeavouring to make a revolt.
The following are the circumstances detailed in evidence by Capt. Lawson. On the 31st October when in Long. 175 West, while setting in his cabin he head Higgins the cooper talking on deck in a loud voice, he went up, when Higgins came over to the starboard side and said, ``I must have a cooper's shop here," the Captain asked for what, he replied ``there are so many casks to reduce," Capt. Lawson answered that he had no more to do than any other man in his place, Higgins then said he had not meat enough and could not work, the Capt. replied, he could not have more, he could not afford it, Higgins then said he would have it, and if they (the rest of the men) were all of his mind he'd be d-d but they'd have it while it was in the ship, and then threw down the hammer with which he was working, within a short distance of the Captain's feet. All the ship's company were about the deck at the time, and must have heard what took place. On the Captain coming on deck in the evening after supper Thomas came aft on the starboard side and the rest of the prisoners on the larboard side. Thomas said, ``we wish to have more meat," the Capt. replied they could have no more, but when whales were alongside, or they were hard at work he would allow them some for breakfast, they all said they could not work without a pound and a quarter; after a good many words the Capt. called all hands aft, and said, ``now, you that will work for 1lb. go on one side, and you that won't on the other," the six prisoners and four others went on the starboard side, the rest of the crew on the larboard side, the prisoners then went below and did no more work. During the conference they behaved highly insolent, especially the cooper, and nearly surrounded the Captain. The Captain did not confine them, he had no means, and considered the ship in danger if he had used coercion. The next day they saw whales and lowered two boats; on hearing ``whales!" reported, the prisoners came on deck and went aloft up the fore rigging, laughing and jeering, the boats did not catch any whales, but if he could have manned all his four boats the Capt. thought he should have caught some as the ship was surrounded with them, they fastened to one but it ran from 11 o'clock to 4, when they were obliged to cut. In consequence of 10 of the men refusing duty the Captain left the whaling ground, as they could only man two boats without them. Higgins was cooper, Thomas, Belford, and Fuller boat steerers, and Anderson and Walsh seamen. Three or four days after leaving the whaling ground the prisoners came aft and asked the Captain if he would take them on duty again at 1 lb. of meat per day, he said - ``no, if you had come and offered your services the day whales were alongside I would have come to terms with you, but now I am going to Port Jackson, where you may have it settled by the laws of your country.
In cross examination by Mr. Rowe, Captain Lawson stated that at the first part of the voyage the men were allowed 1¼lb of meat, which was reduced to 1lb. on his arriving at the Marquesas in June. He had wood and water on board for about six weeks when he intended to have gone to New Zealand, he never intended to have come to Port Jackson, and he was sorry he had come; the men went on the starboard side of the deck at his request, but he did not order them below; previous to that he told them they had better go below and settle it among themselves. The cooper had about £70 due to him, the others from £10 to £20 each. Thomas said to him during the argument that twice before in the same ship they had knocked off work on a similar occasion, when the Captain humbled to them and they did not see why Capt. Lawson should not humble to them now.
The defence set up was that the men were ordered below by the Captain, when they made up their minds in case of whales appearing in sight to render every assistance in their power, but on offering the Captain so to do, they were refused, and that their only object in going aft to the Captain was in consequence of a promise made by him to give them a quarter of a pound of meat extra when on the whaling ground.
Mr. Rowe then addressed the Court. Was any revolt proved as charged in the information, but on the contrary, the Captain had never desired them to return to their duty after he had desired them to go on different sides of the deck, and it had been sworn even by the Captain himself that they had offered and been refused. There was no evidence in point of law to go to the Jury whether they revolted, on the contrary, there was not even an attempt to revolt.
Judge Burton observed that the question of revolt was one of mixed law and fact, he would state the law of the case and he would require the assistance of the Jury as to the facts.
His Honor then summed up. This case was one of importance to the public interest, and to the prisoners of the bar. To the public interest, as it related to a ship belonging to the first commercial nation in the world, and this Colony was fast rising into similar repute; to the prisoners of the bar, as it was a capital offence, and if legally convicted, he must pass sentence of death upon them. He hoped the Jury would approach this case with moderation, and see what the Captain had a right to expect from his crew, and what the crew had to expect from the Captain. The crew had a right to expect from the Captain full protection, their allowance and any little indulgences he could allow, ought not to be refused; while on the other hand the Captain had a right to expect full and ready compliance with his orders. He knew the character of a British sailor, and was of opinion that many of these cases of mutiny and revolt originated in the improper conduct of the Captain; a British sailor - he meant one who could and would do his duty if justice was done him, would generally do justice. Sailors must be protected from the illtreatment of Captains, and Captains from mutinous conduct of sailors. If the sailors had felt themselves aggrieved when they came into any port, they would be protected by the laws. One owes to the other protection, and the other implicit obedience. The Captain has the power of a Sovereign on board his vessel, and the character of a parent, the most honorable of the two, and the seamen owe to him the most implicit obedience. A revolt is the throwing off that obedience, or in the real statutary [sic] sense of the term, the duty a sailor owes to the master, disobedience of orders, and refusing to do work, as much as when the subject sets himself in and against his Sovereign. The Act under which the information was framed, was passed in the reign of William the Third, when the country was in a state of warfare with other countries, and when there was a Pretender to the Throne of England granting letters of marque to subjects of England to fight against other subjects of England. The statute also sets out the form in which they are to be tried. Had they been tried in England, they would have had the advantage of a Grand Jury to say, whether this was piracy or not, they would have had the advantage of being tried by twelve men nearer their own condition in life than the present Jury, and then would have had the right to challenge any of the Jury, without assigning any reason. He promised with these observations, to shew the disadvantageous position in which the prisoners at present stood. Here the information was filed by His Majesty's Attorney General, of whose legal knowledge and good intentions he had no doubt; but the English security of a Grand Jury he never wished to see dispensed with. The dispositions of the gentlemen in the box were, he was aware, inimical to anything like mutiny, but in saying this he relied on their gentlemanly spirit, to take perfect care to be plain and private citizens in this case, and not mix up the feelings of soldiers in a case where citizens were concerned. The question for their consideration was, was this a revolt, or an attempt to cause a revolt; to remedy alleged grievances was no defence to such an act; to cause a revolt there must be a throwing off the lawful authority of the person against whom they revolted. Had they thrown off this authority, or had the Captain dispensed with their labour. The Jury having retired for about ten minutes, found all the prisoners guilty.
The prisoners having been called up for judgment, Judge Burton addressed them as follows:- Prisoners at the bar, I have hesitated, and have been requiring the assistance of the gentlemen about me to ascertain whether it was in my power to avoid passing sentence of death upon you, and I am glad to find a precedent in this Court, where judgment of death has been recorded instead of sentence being passed in a case similar of your own, and by doing, my feelings will be spared, as well as your own.[ 2] You have been convicted of a dangerous act, for all those that go down to the sea in ships, that has put you, six young, healthy, and till now respectable young men, on a footing with pirates, felons and robbers. Although I am of opinion from all the circumstances of the case that you are objects for mercy, as you stayed your hands from actual violence, yet I shall not recommend you to be pardoned, but that a minor punishment be inflicted; but you, Higgins and Thomas, must expect a more severe punishment, and I shall only recommend a mitigation of your sentence, on condition that you be all transported for a certain period from this Colony. I am grieved to see six young men belonging to such a noble profession, in such a situation. You are adjudged to be pirates, felons, and robbers, and the sentence of the Court is, that judgment of death be recorded against you.
[2 ] According to the Sydney Gazette, 16 February 1833, the judge said that a law passed in the reign of William III made punishment of death certain in cases such as this, but another in the reign of George IV happily dispensed with that in mitigated circumstances. Justice Burton decided to recommend leniency to the governor, which would mean transportation to another part of the colony for some time.
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.
There is also an excellent article on this topic in the Sydney Herald, 14 May 1835.