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

R. v. Wilson and Windeyer [1838] NSWSupC 62

ship's crew, desertion - reception of English law, admiralty - mandamus - in forma pauperis - statutory construction

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 16 June 1838

Source: Sydney Herald, 18 June, 1838[ 1]

Saturday - In Banco - Before the three Judges.

The Attorney-General moved for a rule nisi calling, upon Henry Croasdaile Wilson and Charles Windeyer, Esqs., to shew cause why a mandamus shall not be issued compelling them to hear a case under the Merchant Seamen's Act.  He merely moved for a rule nisi because he saw the Magistrates were in Court, and the object was more to have the opinions of their Honors on the Merchant Seamen's Act than to follow up the matter by taking out the mandamus.  The affidavit of David Roxburgh, master of the ship Duchess of Northumberland, stated, that he appeared at the Police Office on the 5th day of June, and charged one desertion, under the sixth section of the Act 5th and 6th William IV., cap. 19,[ 2] and that he produced the articles of the ship signed by the said Campbell, by which he undertook to proceed from London to this Colony and any intermediate ports and back to a port of discharge in Europe, and deposed that the said Campbell left the ship without permission on the 15th of May and had not returned; and that Mr. Lewis Morris, first officer of the said ship, produced the log-book, containing an entry that the said Campbell left the ship on the 15th of May, at eight am , that he walked leisurely over the ship's side, and as he did not take his clothes with him then, he imagined that he must have conveyed them away before; and that the Magistrates refused to hear the case, as they imagined it did not come within the meaning of the sixth clause of the Act.  He (the Attorney-General) apprehended that the opinion of the Magistrates must have been that the sixth clause does not apply to this Colony.  It is a matter of notoriety that the master of vessels complain that this clause of the Act is not enforced, and in fact they say that men are encouraged to desert by not being punished under this Act.  There is an Act of Council in force which applies to seamen who have signed articles in the Colony, but that does not affect seamen engaging in England.  He confidently submitted that the sixth clause must be looked upon as applying to this Colony.  The learned gentleman here read the clause: - "And be it further enacted, That in case a seaman shall at any time, after having signed an agreement as hereinbefore mentioned, neglect or refuse to join the ship on board of which he shall have engaged to serve, or shall refuse to proceed to sea in her, or shall absent himself therefrom without leave, it shall be lawful for any Justice of the Peace in any of His Majesty's dominions at home or abroad, near to the place where such ship shall happen to be, upon complaint of the fact made upon oath by the master, mate, or owner thereof, and such Justice is hereby required, by his warrant, to cause such seaman to be apprehended and brought before him; and in case such seaman shall not give a reason to the satisfaction of such Justice for his neglect, refusal, or absence, as the case may be, upon due proof of such neglect, refusal, or absence, it shall be lawful for any such Justice to commit such seaman to the House of Correction, there to be kept to hard labour for a period not exceeding thirty days: Provided always, that in case such seaman, on being apprehended and brought before the said Justice, shall consent to join the ship and procede on the voyage for which he shall have agreed, it shall be lawful for the said Justice, at the request of the master, instead of committing such seaman, to cause him to be conveyed on board the said ship, or to be delivered to the master for the purpose of proceeding on the voyage, and also to award to the master such costs incurred in the apprehension of the seaman as to such Justice shall seem reasonable, not exceeding in any case the sum of forth shillings, which shall be chargeable against and may be abated from the wages to grow due to such seaman."  The seventh clause of the Act which relates to any temporary absence from the ship after she has left her first port of clearance, clearly shews that it was the intention of the Legislature that the Act shall be applied in all cases.  The Attorney-General was proceeding in his argument, when

The Chief Justice said he had shown sufficient to obtain the rule nisi.

Colonel Wilson said that the Attorney-General was quite right in stating that it would not be necessary to issue a mandamus if their Honors would express an opinion.  The business could be done without issuing a mandamus, if the Court would allow him to state the grounds on which the Bench had come to its decision.

The Chief Justice said that there could be no doubt the Magistrates had acted from proper motives, but as the Attorney-General had thought the matter of sufficient importance to mover for a mandamus, it had better be regularly argued by the bar.

Mr. R. Windeyer as amicus curiƦ suggested that the Magistrates might not choose to make any opposition to the rule.

Mr. Justice Burton said that in that case the mandamus would be granted.

The Attorney-General said that he was surprised any one could read the Act as the Magistrates appear to have done.


Dowling C.J., Burton and Willis JJ, 23 June 1838

Source: Sydney Herald, 25 June, 1838[ 3]


Exparte Roxburgh. - In this case a rule had been obtained, calling on the Magistrates to shew cause why a mandamus compelling them to entertain a case under the sixth clause of the Merchant Seamen's Act should not be issued.

The Attorney-General moved that the rule be made absolute.

Colonel Wilson said, I rise to present to the consideration of your Honors a few reasons, why, in my opinion, the rule should not be granted; and in doing so, I am quite aware of the disadvantage I am under in appearing in person instead of by Counsel; nor am I unaware of the old adage of "he that conducts his own cause has a fool for his client;" but I cannot consider this as my own cause, for I am quite indifferent whether your Honors grant the rule or not.  Before proceeding to the argument, I feel that some reasons ought to be given for my appearing in person, one is, that we might have reasons to urge that we could not communicate to a third party; Mr. Windeyer may not know the reasons on which I came to the conclusion that the sixth clause of this Act cannot be applied to the case under consideration, and I may not know Mr. Windeyer's.  Another reason is, that the Magistrates may not be able to set aside money enough from their salaries to fee (fee's the word, I think, said his Worship, appealing to one of the Counsel who sat near him) Counsel to appear for them.  I am quite sure that there are many gentlemen at the bar who would plead for us without fee, but there is a rule, I understand, which prevents them from doing anything for nothing.

The Chief Justice suggested that the Colonel should have appeared in forma pauperis.

Col. Wilson.  Although the magistrates are poor I do not think it would be becoming in us to appear as paupers, and therefore that course was not open to us.  I also regret that the learned Attorney General is against us, as we are deprived of the benefit of his advocacy on the occasion.  It was once said by Paley, one of the greatest advocates of our holy religion, that he was too poor to keep a conscience.  But although poor, I look upon it as a matter of the utmost import that a magistrate should have a conscience, and as we have a conscientious objection to applying this clause as it is wished we should, I appear to oppose it.  The object of the present motion I believe to be friendly; there is no intention of imputing laziness nor any disinclination to do our duty.  The Act of Parliament begins by reciting that "whereas the prosperity, strength and safety of the United Kingdom and of His Majesty's Dominion, &c it is necessary to aid, by all practicable means the increase of the number of seamen, and to give them all due encouragement and protection;" so that one great object of the act is to protect the seamen and encourage their registry, and the act here goes on to say what shall be done by seamen, what forms of articles shall be signed and what penalties shall be enforced if these clauses are violated.  The next step in the act is to point out what is to be done at the port of clearance, and it appears to us that the sixth clause has reference to what is to be done at the port of clearance only, in all cases where the seamen after having signed the articles refuse to proceed in the ship or absent themselves therefrom, in which case the magistrate is empowered to send them to the House of Correction for thirty days.  That this clause only applies to the port of clearance is evident from the seventh clause, which points out what is to be done after the ship leaves the port of clearance in case the seaman absents himself from his duty, and the ninth which points out what is to be done if he desert.  Then comes the question, if these clauses point out what is to be done in these cases why is a different punishment awarded in the sixth? - because the punishment that is suitable in the one instance, is not just or equitable in the other.  I am aware that the opinion of an unlearned person is light compared with that of an Attorney General who from long experience, is enabled by looking at the title page or back of a book to tell what it contains, but I must say that he cannot have read the act over above once; if he had read it twice he must have seen the difference.  Had it been any body else but my learned and temperate friend I should have said he must have been half seas over when he read it, or he could not have said the Act makes no difference between the port of clearance and any other port; and I am quiet sure that when your Honors read it you will see that it does.  The Act begins by shewing what shall be done upon engaging the sailors and before the ship sails, and at the seventh clause commences what is to be done after she leaves the port of clearance.  I am aware the Attorney-General relies upon the expression at home or abroad, but my reading is that wherever the ship happens to be, means the port of clearance, and would be applicable in Sydney, in all cases where this is the port of clearance.  In the following clauses the offence named is refusing to do duty, but in this as there is no duty before he joins the ship, the offence is refusing to join.  So with respect to the punishment, thirty-days imprisonment; if it was intended to apply to all cases a man may loose all his earnings in a six months voyage, as after he is lodged in gaol the captain may up with is anchor and leave him there; and the unsuitableness of the punishment does not rest altogether on the seamen; a captain of a vessel may have twenty or five and twenty of his men leave him at once, and if all these men are put to gaol how is the anchor to be got up? how are the objects of the voyage to be fulfilled.  If a seaman after leaving the port of clearance neglects his duty he looses a certain portion of wages; in the port of clearance there are no wages; in the port of clearance there are no wages due, and he is properly punished by imprisonment, and when he comes out of prison he is in the same situation as when he went in, and the captain can get other men which he cannot do here.  I am sure that when the Attorney-General was moving for his mandamus he considered himself a legislator, and if I was a legislator I should wish to see another act in force; not this one, but another perhaps more severe.  But at the same time I should not wish to made the laws with regard to seamen, that they should feel a terror in coming here instead of looking at it as a port that is desirable to get to; if it is as terrible to seamen as it is to offenders I think it would have a bad effect, and masters of vessels would not be able to get men to come here; it is necessary as the Act says, that encouragement be held out to seamen.  There is not a word in the clause which does not satisfy me, that it is only intended to apply to the port of clearance; but the latter part of it, after reciting that it shall be lawful for the magistrates at the request of the master to send the man on board, says and "also to award to the master such costs incurred in the apprehension of the seaman as to such Justice shall seem reasonable, not exceeding in any case the sum of forty shillings, which shall be chargeable against and may be abated from the wages to grow due to such seaman; it does not say taken from wages due because non are due, if it was intended to apply to cases after the ship had left the port of clearance, it would have said as in other clauses to be deducted from wages already due.  My avocations are rather those of a Commissioner of Police than a Justice, and I am frequently absent when these maritime cases are decided; and as my colleague is more acquainted with the matter than I am, I shall leave him to fill up the vacancies in my argument.  The Colonel concluded with a number of pleasantries, for which we have not room in our present number.

Mr. Windeyer said, I have nothing to add to what has fallen from Colonel Wilson with regard to the impressions under which we acted; but I have to observe, that the first case under this Act which occurred in this Colony was brought before me; I had never seen the Act, and the only copy of it in this Colony was in the possession of the complaining party, who pointed out the sixth clause to me; the offence proved was refusing to proceed to sea, and without reading the other portions of the Act, I convicted them and sentenced them to be imprisoned for thirty days, and when they came out, I believe the ship had sailed any they lost their wages.  It was only subsequently, when the case came before this Court as to my authority to imprison them for not paying costs, that I looked through the whole Act, and found the clause was not applicable, and was only intended to apply to the port of clearance.  The first part of the Act relates to what is to be done at the port of clearance; it proceeds chronologically, and at the seventh we come to what is to be done in cases of temporary absence from duty after leaving the port of clearance.  Now the sixth and seventh clause points out punishments for the same offence; in the first instance where there are no wages due, imprisonment is ordered, and in the second when wages are due there is a forfeiture.  A seaman may join a ship here on a voyage to England, and in that case this will be the port of clearance, and the clause will be applicable.  I am unaware what arguments the Attorney General may intend to use, but when applying for the rule, I noticed that he dwelt a good deal upon the words after having signed the agreement, but hose words are to be found in all the clauses, as the liability to the penalties depends upon the seamen having signed the agreement.  I will not say a word to your Honors as to the absolute inequity of the law, if in addition to being imprisoned the seaman was to be subject to the loss of all his wages and clothes.

The Attorney-General regretted being in the situation he was with regard to his two friends with whom he is so often in communication.  Whether his opinion was against it or not, it was his duty when he came forward as an advocate to support his brief without taking the trouble to form an opinion.  It was strange that the Magistrates should first have acted on the Act one way and then another without having asked his opinion.  Thinking that first impressions are generally correct and knowing in what way the Magistrates had formerly decided, at the first view of the clause, he thought the mandamus ought to issue.  The argument of Colonel Wilson would have been very cogent if addressed to the Legislature: it would then be proper to talk about the hardship to sailors; but at present the Court had only to consider how his arguments affect the law as it stands.  Their Honors would look at the sixth section of the Act, and say whether the arguments that had been used compelled them to give it the reading that was contended for.  The preamble of the Act recites that the prosperity, strength, and safety of the Realm depends upon a large supply of seamen, &c , so that his is one object of the Act, while the encouragement and protection of the seamen is another.  Facilities are afforded to the seamen for the recovery of their wages in a summary manner, and their rights are secured to them, which is encouragement to the seamen, and it is necessary that the protection of the commerce be not lost sight of.  He contended that it is essential that masters shall have the power of laying hold of and securing the persons of their mariners until the ship is ready to sail.  The Magistrate has the discretion when a ship is lying in harbour of sending the men on board at the request of the master, instead of committing them, but if they refuse to go, and are committed to prison, if the consequences follow that had been pointed out, it is the fault of the seaman, and a just punishment for his conduct.  The sixth clause is the only one which gives the master power over the seaman, and if the argument of Colonel Wilson was good, although all the men deserted from the ship, and the master saw them walking about, he could not touch them.  If seamen are refractory, what satisfaction is there for masters; the forfeiture of wages he looked upon as a mere drop in the ocean compared with the property at stake.  The ninth clause says, that in case a man desert, the master may hire another seaman, and recover from the deserter any excess of wages he may have to pay; but as there is no power to lay hold of the deserter, if the sixth clause does not apply, this provision is nugatory, and renders the Act so absurd that he could not think the Legislature would pass it.  The forty-first, second, and third clauses point out that the seamen shall not be discharged after the ship has left the port of clearance without the leave of certain functionaries, and renders a certificate to that effect necessary when the ship returns to her port of clearance; which is a sufficient protection to prevent the seamen from being left behind in a foreign port.  The Court would recollect that this act was substituted for other acts, all of which gave the power of imprisoning men for desertion, and, even if the act was more ambiguous than it is, he was confident that the Judges would hesitate before they gave the construction to it that was put upon it by the magistrates.  The sixth clause says, "if at any time after signing the agreement," and if it had been intended to restrict it to the port of clearance it would have said so.

After half an hour's consultation, the Chief Justice said he was of opinion the rule must be discharged.  He agreed as a general rule that first impressions are generally correct; but then all the circumstances must be fully considered before the impression is formed.  The Magistrates in refusing to act under the sixth clause acted properly, and gave a just interpretation to the Act.  When the rule was granted, the Judges were called upon suddenly, but they gave the Magistrates full credit for having acted from proper motives.  If the attention of the Court had been confined solely to the sixth clause, the mandamus must have been issued; but when they looked at the whole Act, they were convinced the Magistrates had acted properly.  The first part of the recital sets out that it is for the protection of commerce, and the second is that it is if or the encouragement of seamen.  Doubless [sic] the Legislature, knowing the great dangers and hardships to which seaman are exposed, cast this Act over them as a shield for their protection.  Taking the sixth clause of the Act in connexion with the other portions, it did not refer to any middle port, but solely to the port of the ship's departure.  If a seaman about to enter on a voyage signs articles in the port of Sydney, he will be amenable under that clause.  From the words of the clause, taken in connexion with the seventh and ninth, it appears where the sailor enters into the contract.  The words "near where the ship shall happen to be," mean where she shall be when the articles are signed; if it had meant London, or any particular place, it would have said so.  To read consistently with other clauses, it must refer to the case of a man refusing to join the ship after signing articles, while the next clause manifestly refers to the intermediate ports.  The Act must be read sensibly, and if the construction was put upon it which was contended for by the Attorney-General, it would be nonsense.  This construction of the Act was no fault of the Judges: their business was to interpret the law as they found it.

Mr. Justice Burton agreed with the Chief Justice.  He was of opinion that the case had not suffered by being argued by the Magistrates themselves instead of by Counsel, as the reasons they had given were very cogent.  His impression the clause; but taking it in connexion with the other parts of the Act, he was convinced the Magistrates were right.  He admitted the construction is inconvenient, but that was not to the purpose.  He did not go the whole way with the Magistrates as to the Act being for the encouragement of seamen; he thought it could never be too strictly enforced, and it could not but have a very bad effect if it once went abroad that there was any disposition on the part of the Magistrates to deal loosely with the laws regarding to seamen.  In the sixth and seventh clauses the same words occur; and he did not consider it likely that the Legislature would give two punishments for the same offence, which are inconsistent with each other; and if it had been intended that the imprisonment should be applied to the seventh clause, he thought that after declaring he shall forfeit two days pay, it would have gone on to state, or be imprisoned, leaving it to the discretion of the Magistrate.  It is quite absurd to talk about forfeiting clothes and wages, as it is well known that from the money that is advanced there is seldom much due to sailors when they arrive here; and if they have clothes of any value, they take care to remove them before they abscond.  It also sounds very well, in theory, to say that the master shall recover from the seaman that deserts, any excess of expense he may be put to; but, in practise, every one knows that is impracticable.  He was sorry that the Court was compelled to put this construction on the Act, as there is no enactment which will enable masters to keep their men in order, as in all cases where they may prosecute a man, the expense attending the Police Office will be far greater than the punishment inflicted on the men; but this is a defect in the law which lies with the Legislature to correct.

Mr. Justice Willis said, I bow with deference to the opinion of the Court, but I trust the Chief Justice will not think it nonsense when I say that I cannot agree with this decree.  Rule discharged.



[ 1]See also Australian, 19 June 1838; Sydney Gazette, 19 June 1838.

[ 2]This was known as Sir James Graham's Act.  It consolidated the old Acts relating to merchant seamen: Australian, 19 June 1838; Sydney Gazette, 19 June 1838.

[ 3]See also Australian, 26 June 1838; Sydney Gazette, 26 June 1838.

This is one of the few cases in this period to be formally reported, in this case as Ex parte Roxburgh (1838) 1 Legge 86.  Legge relied primarily on the Sydney Herald of 25 June 1838.

Published by the Division of Law, Macquarie University