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

R. v. Peake, Moore, Stephens, Landmark, Williams, Robinson, Nightingale and Elfred [1842] NSWSupC 40

ship's crew, discipline

Supreme Court of New South Wales

Burton J, 15 April 1842

Source: Sydney Herald, 18 April 1842


            John William Peake, Francis Moore, Thomas Stephens, Frederick Landmark, John Williams, John Robinson, David Nightingale, and Richard Elfred, were placed at the bar to take their trial for a misdemeanour, committed by combining and conspiring together on the high seas, in order to compel their Captain to allow them to do their work in a certain manner, called "watch and watch."

            The Solicitor-General appeared for the prosecution, and Mr. Michie for the defence.

            The SOLICITOR-GENERAL stated the case, and said, that the offence for the commission of which the prisoners stood charged, although not accompanied by any very aggravating circumstances, was one which it was of the utmost importance should not go unpunished. The prisoners had signed articles in London , to serve on board the Bermondsey, a whaler, on a whaling voyage, for which she was then bound . Some time after ship was out, the prisoners evinced a spirit of insubordination, and on being required by the captain to perform their usual work, refused to do so, unless they were allowed watch and watch. This, under the circumstances of the ship, could not be allowed; upon which the captain had been compelled to discontinue the object of the voyage, and come on to Sydney , for the purpose of having these men enforced by the law to a due observance of their duty.

            Henry Stokes, examined by the SOLICITOR-GENERAL, deposed :- He was chief officer on board of Bermondsey . All the defendants were seamen on board the vessel, and had signed article. The ship left London in October, 1841. When the ship was about sixteen degrees east of the Cape , witness, on one occasion, called the men to their work; this was on January the 11th , 1842. They sent a message in by the steward to the captain, asking if he would allow them "watch and watch." His answer was, "when he thought proper." Witness went forward and called them to their work, one after the other. They all went below and refused, one after the other, to come on deck. There were many still remaining on deck when defendants went below. When told to go to their duty their answer was, they would come on deck at twelve o'clock . The captain then called them, but they refused him also. Soon after this they fell in with H.M.S. Cambrian; they spoke to the captain, who said he could do nothing in it. The men returned to their duty on the 17th , and no fault could be found with them after this.

            By the JUDGE: Did not consider the ship sufficiently manned. It was usual for the first part of the voyage for all to be on deck fitting out the gear.

            Cross-examined: - The ship left London originally with 32 men, and came into Sydney with 35; at the Cape de Verd Islands they lost a number of their able seamen, and were obliged to ship in their stead eight Portuguese landsmen. At the time of the refusal to work, thought there were about none able seamen in all. In consequence of that, almost the whole work fell on the prisoners. By first part of the voyage, meant until the whaling gear was got ready. This was done generally by the time ships got to the line; and almost always before they got to the Cape. The custom of the whale fishery was, that after the completing of the whaling gear, the men were allowed "watch and watch." In demanding this, when east of the Cape , witness thought the men made a reasonable demand, and justified by the custom. The captain was in a bed about nine weeks on the voyage. He might be fretful from illness. Could not say that the demand of the men was such as a reasonable man could well have refused. Did not think, if there had been a sufficient number of able seamen on board, that any refusal to work would have taken place. The men did not appear to be acting in concert, but each answered for himself, when told to go to his work.

            The SOLICITOR-GENERAL said he had other witnesses, but as they would prove the same facts, they were not called.

            Mr. MICHIE addressed the Jury for the defendants, urging the trivial character of the offence, the mitigating circumstances which attended it, and the good conduct of the men in returning to their work on the 17th January, and continuing at their work since.

            His HONOR directed the Jury that, on the evidence, he thought he must find the prisoners guilty, although, there certainly were no such aggravating circumstances as would call for a very heavy punishment. The Jury, therefore, would find a verdict according to the evidence, and leave His Honor to award such a punishment as he thought their case deserved.

            The Jury retired, and after an absence of nearly an hour , returned into court with a verdict of guilty, coupled with a recommendation to the merciful consideration of the Court.

            Mr. MICHIE, before sentence was pronounced, said, he hoped his Honor would be pleased to bear in mind, that the prisoners had been in gaol since the 8th of March.

            Mr. Justice BURTON said he would take that circumstance into consideration, as well as the recommendation of the Jury, and thereupon, His Honor, after admonishing the prisoners upon the grave character of the offence of which they had been convicted, sentenced them to be imprisoned until twelve o'clock on the next day, and then to be discharged.

Published by the Division of Law, Macquarie University