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

R. v. Tibbs [1841] NSWSupC 8

passenger on ship - assault - immigrant ship, conditions on

Supreme Court of New South Wales

February 1841

Source: Sydney Herald, 9 February 1841[1]

            James Tibbs, John Rogers, Thomas Rogers, John Farral, and Michael Roach, were indicted for having while on board the immigrant ship Resource, on the high seas, committed a violent assault on one Richard Pounds, by fastening him to the windlass, and giving him a dozen lashes. The parties were all indicted as natives of England, but it came out during the trial that four out of the five prisoners were natives of Ireland, who had been put on board the Resource at Plymouth, from an Irish steam boat. The first witness called was Richard Pounds, who being sworn, said, I am a plumber, a native of Kilkenny; I arrived on the 22nd of November; I embarked at Plymouth in theResource from a steamer which had conveyed me from Dublin : we were five months on the passage : we embarked on the 21st of June, and sailed next day. The ship called at the Cape of Good Hope and stayed one week; I went on shore: I cannot swear how many passengers were on board: we were all bounty immigrants. After we had left the Cape I recollect something happening between me and the prisoners, all of whom were fellow-passengers of mine; four of them are my countrymen, all Irishmen, the only Englishman in James Tibbs. One evening on a Sunday morning between one and two o'clock, on board the ship, I was dragged out of my bed : half the voyage I slept on the poop, and the other half down the after hatchway. John Rogers dragged me out of my bed. I went to bed about three quarters past ten; had a glass of spirits and water before I went to bed; a man named Patrick Gallatley slept with me; there were three poop messes, each of eight persons, all full. After I was dragged out of bed I dressed myself as quickly as possible, as they made use of such dreadful language that I was afraid; I saw the two Rogers there and Farrell; I wanted to go to the doctor, but they would not allow me. Tom Rogers seized me by the stock; I made my escape and went to the chief-mate, Mr. Sharp, and he told me to go below; I then went to the doctor and told him ; he came, with his lamp in his hand, and ordered all of us to go below; I then went to the second-mate's door, and told him, when one of the passengers, named Maurice Conroy, commenced looking for me in the women's apartment, where they said I was whispering to Mrs. Conroy; I immediately took to the rigging, when Farran came up and ordered me down, and Roach was also coming up the rigging when I went down, they then took me forward and tied me across the windlass. I got loose and they tied me again; I again got loose and told them there was no occasion to tie me as I would stand it quietly. Tibbs then, on the order of Farranand Roach, gave me a dozen, which were given me over the left shoulder so hard that I could not lift my hand to my head for a week after. Farren and Roach wanted me to have another dozen, and I cried out that I was not able to bear it, then they wanted me to have half a dozen, and Tibbs said I was not able to bear it; next morning the reason alleged why I was so punished was, because they said I had cut off the rope securing the women's apartments; they did not bring me to trial, but before that they had tried to bring me to trial, because they said I was not married and was bringing out a bad character as my wife; I would not shew them my marriage line; I am a married man. I was married in St. Paul's parish, Dublin, by the Rev. Mr. Shipson.

            Cross-examined - I am certain I sailed from Plymouth in the Resource. The men were often in among the women after the regulated hours; I had not so much as a glass of spirits and water; I got it from Mr. Sharp, the chief mate, as I was frequently doing extra jobs, repairing the ship's pumps; we got no spirits except when sick; the captain generally knew that I got spirits from the chief mate. There was frequent quarrelling and fighting on board.

            Cross-examined by Mr. A'Beckett - I was pulled out by John Rogers; I was in the women's apartment that night, when she was going to bed, in order to get some tobacco, which I could not keep in my own box, for it would have been stolen; most of us were in the habit of smoking in bed; none of the women said anything about my being in their apartment; I got in through the ventilators; I could have called to my wife to bring me my tobacco. None of them were married. Rogers's mother was there, and one child. There was a female named Isabella Chambers on board, to whom I often spoke, with the knowledge of the chief mate; my wife, Isabella Chambers, and myself, all went in the same way; I was in good terms with them up till that night, but they always owed me a good deal of spite, because I would not join in their societies; they had it against me all the voyage, because I would not go in with them; I did not complain to the captain, as he was always for taking their part against me; they might have accused me and my wife of bringing out Isabella Chambers to the chief mate. They called my wife a bad character. The chief mate treated Isabella Chambers to spirits; she is not twenty years of age; my wife is twenty. My wife, Isabella Chambers, myself, and the chief mate, were all standing at his cuddy door on the night in question, about 10 p.m.; my wife asked him for a small piece of ribbon; she wanted it for some purpose I know not of; my wife and I got about a glass and a half of spirits, but Isabella did not taste it that I saw. The rest of the passengers found fault because my wife and Isabella went so often together. There was a young man named Draper there. My wife got the bit of black silk ribbon from the chief mate. I did not want the tobacco on the poop. Isabella Chambers had a sister on board; I did not hear her chide her. After I was in bed, I smoked abou6t a minute, and then stopped; I was undressed and in bed when they dragged me out by the shoulders; the captain knew that we were in the habit of smoking in bed; I afterwards heard that they did it to me because I would not show my marriage certificate; they afterwards called me a blackguard, and charged me with trying to seduce the girl Chambers. The society I would not join was one they made on board; was one that they made for flogging the Protestants.

            By Mr. Broadhurst. The chief mate was put under arrest by the captain for entering something in the log-book about the men; I never saw her with Sharp by herself. There were between sixteen and seventeen Protestants on board; two more of them were flogged - they flogged them as fast as ever they deserved it : there was none to take the part of witness at the flogging. Dr. Lee never examined the marks which the witness then received. The ribbon was shoe ribbon. The spirits which the mate had on board were what he had obtained at the Cape, it was called "Cape smoke." I don't blame Tibbs half so much as the others; I could not say whether I ever told him so.

            Cross-examined by Farrall. I went to Mr. Nichols to see if I might let off JohnFarrall, and he told me I might do as I pleased.

            Re-examined. - The time of going to rest varied according to the weather, we went or sat up. When Rogers came to pull me out he said, "Come out here, you ruffian." There was a quarrel between the mate and the doctor. On my oath I never saw any improper conduct between the mate and the females. I have frequently seen the surgeon turn other men out from the women's apartments.

            Wm. Tasker, carpenter of the Resource, corroborated the preceding witness' statement as to the disturbance on board the vessel, and to seeing the marks on the prosecutor's back next day.

            Thomas Williams, seaman on board the Resource, proved that the prosecutor was rope's-ended at the windlass-end on the starboard side, that before he was flogged, the prosecutor was on the mizen crosstrees.

            -  Checkers proved that Tibbs gave the prosecutor one dozen of strokes in the presence of twenty or thirty of the passengers, and that he did not cry out at all, and that he went off as soon as the flogging was over.

            Mr. A'Beckett, for the two Rogers, submitted that their was no evidence to go to the jury against his clients, John and Thomas Rogers, as there was no evidence to connect them with the assault, the prosecutor having sworn they were not present.

His Honour was of opinion, that it was a joint trespass, it was all one transaction, and he should leave it to the jury to say whether they had been parties to driving the prosecutor from his berth in order that the assault might be committed.

            Mr. A'Beckett then addressed the Court, in behalf of the two Rogers, and stated that the whole case, as against this clients, rested on the evidence of the prosecutor, which was of the most suspicious kind. It could not be denied that he had received his dozen, and he was sure that no wretch in Carter's Barracks ever deserved his corporal punishment more than the prosecutor; if what was alleged in his instructions was true, viz., that the prosecutor and his wife were acting as panderers to the unlawful propensities of the chief-officer, and also from his gross violation of the rules of decency, which were laid down in a series of rules for the preservation of good order, which he had so far violated by smoking in his birth; and concluded by stating that he would call the surgeon and captain of the vessel, to speak to the character of all the parties.

            Mr. Broadhurst, for Tibbs, admitted the assault, but thought that there was some mistake, as the assault ought to have been charged, as being made in preserving good order. He felt surprised that such a trumpery case had even been brought into the Supreme Court, when the magistrates, as they are empowered to do, might have settled the matter in the Police Court. There was also another very striking feature in the case, and that was, that although the present was a criminal prosecution, yet Mr. Callaghan did not appear before the Court as a representative of the Attorney-General, but he appeared merely as a private counsel of the present prosecutor. He did not see any reason why the public time of the Court ought to have been employed in trying such a case, unless it had been for the express purpose of affording an opportunity for the prosecutor to exhibit himself as a witness in Her Majesty's Supreme Court, before Her Majesty's Chief Justice.

            The two undefended prisoners made no defence.

            The following witnesses were then called:-  Captain William Boyle, thought that John and Thomas Rogers were unexceptionable, and Farrell was only concerned in one slight fight, which occurred on board, which was quelled by him and the doctor; all the others were quiet and peaceable well-conducted men.

            Cross-examined. - From what we heard afterwards, he thought there was reason for the repesending by the prisoners.

            Michael William Lee, Doctor of Medicine, had come out as SurgeonSuperintendant of the Resource, and felt no interest in the result of the trial; he also gave all the prisoners excellent characters excepting Farrall, who had been engaged in a fight with one of the sailors, and it was afterwards discovered that the sailor was in the wrong, having first struck Farrall.

            Patrick William Garraty, a blacksmith by the Resource from Milligan, also gave the five prisoners characters for being quiet, well behaved inoffensive men, and although he had slept with the prosecutor on the night of the assault, he saw nothing of it, but in cross examination he admitted that he heard the strokes on the prosecutor's back while lying in his berth, and that he saw his back black on the ensuing day.

            Mr. Callaghan replied to the evidence for the defence, and repelled the taunt with which he had been twitted, of appearing as a hired counsel for a criminal prosecution, by stating that the Attorney-General was not the man who would trust any case to a junior counsel, which was not at once simple, and such as he was able, to manage, as the one at present before court.

            His Honor in putting the case to the jury said, that he considered the present as a very grave charge. It had been asked why he had not the magistrates decided the case; had the prisoners been mariners, it might have been so disposed of, but not being so, the case must necessessarily come before the Supreme Court. After commenting on the illegality of the proceeding, he told the jury, that they must be convicted, that the two Rogers had been present aiding and abetting. He also stated, that had any of the prisoners been killed by the defendant, while they were illusing him, it would have been his duty to instruct the jury to have found him guilty of justifiable homicide only.

            The jury without retiring from the box, acquitted the two Rogers, and found the other three guilty of the assault, but recommended them to mercy on account of the characters they had received.

            The Judgment of the Court was prayed by Mr. Callaghan. His Honor was willing to give the utmost effect to the recommendation of the Jury, but he could not otherwise regard it as a most outrageous proceeding, such as he never had heard had occurred on board an immigrant ship since he came to the colony. The proper source of all authority on board these ships was the captain, and but for the recommendation of the jury he would have inflicted a much more severe punishment. They were then each sentenced to three months to Sydney Gaol.

Notes

[1]              See also Sydney Gazette, 11 February 1841; Australian, 11 February 1841.

Published by the Division of Law, Macquarie University