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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Shiers [1837]

piracy - Macquarie Harbour - ship's crew - convict escape, to South America

Supreme Court of Van Diemen's Land

Pedder C.J., 26 April 1837

Source: Hobart Town Courier, 28 April 1837[1]

Supreme Court - Criminal Sittings

Before his Honour the Chief Justice and a Military jury

William Shiers, Charles Lyon, James Porter, and William Cheshire were indicted for piratically and felonously carrying away, on the 30th of January, 1834, the brig Frederick, Charles Taw, master, belonging to Our Sovereign Lord the King, and of the estimated value of £1200 from the high seas, to wit, Macquarie Harbour on the Coast of Van Diemen's Land. There were 3 counts in the indictment - the first charged them with Piracy, the second with breaking their trust as sworn mariners, and the third was the same as the second, excepting that it did not state Charles Taw, the master to be a subject of Our Lord the King.

The particulars of the case will fully appear from the evidence of Mr. Hoy, who built theFrederick, and who was in her at the time of the capture.

David Hoy examined. - by the Solicitor General. Knows the prisoners; in January 1834 saw them at Macquarie Harbour, they were prisoners of the crown, and were employed, Shiers and Cheshire as shipbuilders, - Lyon and Porter as part of the pilots crew; on the 12 of January they were all acting as seamen on board the Frederick, which was built at Macquarie Harbour, and is the property of the crown and worth about £1200 with all her tackle; Prepared to leave Macquarie Harbour on the 11th January, when they weighed anchor about 10 a.m.; and proceeded about 23 miles down the harbour, close to the bar, where they came to anchor the same evening. Weighed anchor again on the 13th having remained 2 nights and one day near the bar; ran back up the harbour about 2 miles, and then came to anchor again; Witness did not weigh anchor again, At this time the vessel was lying at anchor near Wellington Head, where vessels generally stay, when the win is foul for crossing the bar; was about 300 yards from the shore in the harbour, inside the Gates: where witness cast anchor for the last time between 8 and 9a.m. Nothing particular occurred till between 6 and 7 p.m.; at that time witness was in the cabin with the master, Charles Taw, when two men rushed in, and one of them presented a pistol at witness's head; the other had a tomahawk and, he thinks, a musket; William Shiers is the man who presented the pistol at witness, he said - "We have got the vessel, and if you don't give yourself up, I will blow your brains out!: Witness asked him, what he meant? And parried off the pistol; witness and Shiers then came to "grips," witness endeavouring to get possession of the pistol, and called out for assistance, expecting to be helped by the soldiers. Mr. Taw and the other man were in "grips:" together; but witness could not rightly tell what happened from the agitation he was in; but Shiers quitted him and went up the cabin stairs, the other man went up stairs also. A man of the name of Nicholls, who acted as steward, was in the passage at the foot of the cabin, when the men went up stairs. Witness now went to the bulkhead, which divided the cabin from the steerage, where the military ought to be, and endeavoured to drive a board down, that the soldiers might pass into the cabin; he succeeded so far as to see into the soldiers birth, but saw neither soldiers nor arms. When Shiers and the other man went on deck, the cabin door was shut and the slide at the top drawn partly over. Several voices on deck called to witness to come up and save his life, as they had secured the military and got their arms; they called both to witness and Mr. Taw by name; and said, if they did not come up, they would shoot them; Witness remonstrated with the men, and endeavoured to induce them to go to their duty, telling them if they did the matter should be kept a secret for ever; they answered they had got the ship, and they would die to a man, before they would give her up; they had got their liberty, and they were determined to keep it. Witness could hear several voices say this, but a man named Russen, made the strongest observation. Mr. Taw then asked witness where his, witness's pistols were; witness said they were in his chest; Mr. Taw said he had a musket, and that was all the arms he had, and they must endeavour to sell their lives as dear as possible. Witness went to open his chest, the people being still clamorous on deck, saying if they did not come up, they would give upon them. As witness was opening his chest, he heard one man exclaim in a more authoritative voice than the others - "Give me the musket, and I'll shoot the ----!" Thinks a man named Leslie said this. A shot was now fired from above through the skylight, and the ball passed through the lid of the chest, over the keyhole. Witness then stepped back, when another shot was fired, which passed about 8 inches from the first; witness then tore open the lid of the chest, and taking out his pistols told the man he should sell his life as dear as possible, and shoot the first man he could see through the skylight, and again endeavoured to persuade them to return to their duty; they answered as before - they had got their liberty, and they were determined to keep it. This scene continued for about an hour and a half, witness advising and the men threatening. Witness heard some one on deck say, they had better shoot the two ---- at once - others said - "No; we will not commit murder, if we can avoid it." Witness thinks Shiers was one of the men, who said no; he was satisfied of it at the time, and has been since. Before witness and Mr. Taw came on deck, they were convinced, from what they heard, that if they did not come up in two minutes they should be murdered. Witness heard some one cry out - "Bring along the pitch pot, and let us empty it down on them." Witness was persuaded that Cheshire was the man who said this; and believes it was their intention in so doing to [???] him and Mr. Taw, so as to oblige them to come up, without being fired upon, and not with a view to take their lives. Mr. Taw and witness then consulted, and concluded it would be a wilful waste of life if they held out any longer, as there was no assistance; they then agreed to come on deck, and the men promised not to hurt them; the men ordered them to come up one at a time; witness then went up within 2 or three steps of the deck, when they ordered him to stand; his head and breast were at that time above the companion; witness saw two men standing with muskets presented towards him; these were Russen and Lesley; impressed with an idea that they meant to shoot him, witness asked if they intended to murder him in that cold-blooded manner; they said no - but he (witness) must make no resistance but turn round and have his arms bound. Witness did so, and a man named Fair tied his arms behind him. Porter then took charge of him, and placed him under the care of a man named Jones; Porter had a cutlass in his hand, with the point broken off. Witness remained bound, and saw Mr. Taw, about 10 minutes after brought forward bound in the same manner - he was placed on the opposite side of the dock. When in the cabin, witness could only see the men on deck as they passed by the skylight; saw Shiers, Lyons, and Porter, pass by at various times; witness does not recollect whether Lyon was armed. While witness was on deck, saw all but Lyon, but cannot swear that he saw him; Cheshire was armed with a musket. Witness remained on deck 10 or 12 minutes, and then went down to the cabin, with his arms still tied. Shiers and a man named Barker, went with him into the cabin; witness went down to receive some clothes from his chest, as the men had said they would give them some clothes before they put them on shore. Witness got some clothes and returned to the deck. Some better clothes than witness had on, were in the chest, and Barker, who seemed to be superior, interfered, and said witness should not have them as they wanted those clothes for themselves. Barker demanded witness's watch, and said he must make no resistance, as he (Barker) would have the watch; he took it. Witness had a small pocket compass in the chest, and Shiers said he (witness) had better put it in his pocket; this was unknown to Barker; upon coming on deck witness was walked forward on the main deck near the gangway; about 2 minutes afterwards, he observed a boat about 40 or 50 yards from the ship; two soldiers and another man were in it; some one on board the brig hailed the boat to come alongside; thinks it was Porter; she did come alongside, and witness saw that the third person was a man named Macfarlane. Some of the crew now fetched up 2 soldiers from the forecastle; but witness is not positive whether they were tied or not; a person named Tait, was board; they were ordered into the boat alongside, and went; then witness and Mr. Taw were ordered down and went after some hesitation; their hands were unbound before they went into the boat; when witness first came from the cabin, Russen and Lesley were on the harbour side of the deck, the companion being on the starboard side; Shiers and Barker a little farther forward, each armed with a pistol; Porter stood at the forepart of the companion, the door opening on the afterside; Cheshire was by the mainmast, with a musket; witness recollects seeing upon but does not recollect his position when witness got into the boat there were 4 soldiers, Tait, Macfarlane and Nicholls; Barker and he thinks Porter ordered them to pull on shore, and then to shove the boat off; witness begged hard for the boat, but they would not let him have it. Macfarlane and one of the military pulled the boat ashore; when about 30 yards from the vessel, they were ordered to stop; they did so, and presently afterwards they saw a whale boat and 4 men coming after them; the men in the whale boat ordered them to pull on for the shore; two of the men were armed with muskets; believes Porter and Lyon were in the boat, but will not swear it, they pulled ashore; the whale boat following; they landed and shoved off the boat which was taken in two by the whale boat, which went alongside the brig and the men went on board; it was a clear, starlight night, and between eleven and twelve o'clock when we get ashore.

By the Court. - Tait, Nicholls and Macfarlane landed with witness and Mr. Taw, and remained with them.

Examination continued. - Saw a boat the next morning come from the brig to the shore; went towards the boat but was told not to come near; or they would not land, what they had got for us; they landed some provisions, and different articles belonging to the military, such as knapsacks, coats, &c; this was between 6 and 7 in the morning. The boat returned a second time with some flannels, some dressing (for witness's back) and a pair of shoes. Shiers was in the boat the second time; witness had been asking all along for the boat, but was told he could not have one till the brig went over the bar, when they would send one, with some more provisions, to the pilot's house; they went to the pilot's house, the same day the boat came to them; but no boat was sent to them; nor did they receive any thing more from the ship. Witness saw the Frederick pass through :"the Gates, " cross the bar, and proceed out to sea; this was, witness thinks, on the 15th or 16th of January; lost sight of the vessel, which stood out in a south west direction; witness has never seen her since; Charles Taw was a North Briton.

By the Court. - Witness always considered Mr. Taw to be a North Briton, and a subject of the King of Great Britain. The prisoners at the bar were all prisoners of the crown at Macquarie Harbour.

Examination continued. - The vessel was built at Macquarie Harbour, under witness's inspection for the Government; witness was undoubtedly, alarmed during the disturbance, as he expected to be put to death every moment.

By the Court. - Had given up the charge of the vessel, when she first sailed; she had never been to sea before; understood Mr. Taw to be at Sydney; the Settlement was broken up on the 25th Nov. 1833, by Major Bailey, who left about 14 men with witness to finish the Frederick; witness was the last person on the Settlement; there were, besides, the convicts, 4 military, Mr. Taw, and witness; the Frederick was not launched till the 16th Dec. 1833; had been up to this time at the Pilot's Establishment at the Heads; there was no person left there, when the vessel was captured; Mr. Taw was a pilot; before Major Bailey left the settlement he directed Mr. Taw, in witness's presence, to take charge of the Frederick, after she was launched; When they left the settlement, there was nearly 3 months provisions for 16 men on board, with a sufficiency of water to bring her to Port Arthur; Mr. Taw appointed a person named Tait, a free man, to act as mate; Macfarlane was a prisoner the last time witness saw the 4 soldiers on board was on the morning of the day on which the vessel was captured; One of the soldiers acted as a corporal by Major Bailey's direction; the soldiers had arms and ammunition; they were to take orders from Mr. Taw, after he had taken charge of that vessel, they were directed to keep watch 2 and 2, the same as a seaman's watch, but not to carry their arms, as there was no necessity for it; they were to keep an eye on the seamen, to prevent any confusion, and to have their arms in readiness in their berths; witness was on deck about half an hour before Shiers came to the cabin; there were then 2 soldiers on deck; does not know whether they had their side arms on; they were both on one side of the dock, forward of the gangway; Porter and Lyons have been on board other Government vessels as seamen. The vessel lay at anchor about 3 miles from the open sea; to gain the open sea from this point, the vessel must pass "the Gates," and cross a bar when she would be in a deep bay exposed to the sea; the width of the passage through :the Dates' is about 70 yards; witness does not call the place where the vessel was lying the open sea, but Macquarie Harbour; the harbour narrows gradually down to :"the Gates." The tonnage of the ship was about 140 tons. Had known much larger vessels go 30 miles higher up the harbour than the Frederick went; vessels were constantly passing to and from the settlement. The prisoners were not hired on wages; they did their duty as seamen, and had been employed as such on board the Frederick for about 17 days. Their duty on board the vessel was as compulsory as any thing that they might have to do at Macquarie Harbour.

Cross examination by Shiers. -  When witness was in the cabin getting his clothes, Shiers, after giving him the pocket compass, said he was sorry he could not give him any more; he wrapped up a bottle of spirits in a shirt, and told him to put it up out of sight. Witness and the other persons who were sent on shore received from the ship about 18lbs meat, 25lbs of biscuit and 6lbs flour; there were plenty of potatoes and cabbages growing at the pilots; they received also, an iron pot, two or three tin pannikins, and an axe. Recollects that Major Bailey ordered marine rations to the men when the vessel was ready to go to sea, and that some rum was left for occasional use, which was accordingly served out; a good deal of it was used at the launching; recollects Mr. Taw to be on shore, and drinking rum; that he was on one occasion unwell, and confined to his room, under the influence of liquor, when he was placed under restraint; this was after the vessel was launched. Does not recollect Mr. Taw threatening to leave the men at Steward's habour for insolence. The weapon presented by Shiers at witness had every appearance of a pistol; did not think it was merely a bar of ion; has reason to know there were other arms on board, besides what ought to be; the prisoners were not allowed to carry arms; the man Barker was a very ingenious man, and used to repair arms for the civilians and the military on the settlement; he might have made some out of old iron.

The prisoner Lyon shortly cross examined this witness, but elicited nothing of any consequence to the material points of the case; Porter's questions had reference, chiefly to the quantity of provisions which were on board, with a view to show, that when the brig was captured, she could have had but a very small quantity, after deducting what was sent on shore. He questioned Mr. Hoy also, as to the darkness of the night, and elicited the fact, that when Shiers parted with the witness and the men on short, Mr. Hoy said to him that the humanity and kindness he had received from the prisoners was so great and unexpected, that he could not forget it. Cheshire'' examinations referred to his character, while employment under Mr. Hoy, as a shipbuilder at Macquarie Harbour; and the witness bore testimony to its general goodness and stated, that he had promised to procure him some indulgence when he reached Hobart Town, if he continued his good behaviour.

By a Juror. - Mr. Taw did not direct the soldiers to go to fish; he gave them leave for one hour, but told them not to lose sight of the ship. On the day previous one of the soldiers was on shore digging potatoes, the ship was not detained on account of the potatoes, but because the wind was not fair to carry her across the bar.

By the Court. - It was when witness and Mr. Taw sat down to tea, that Mr. Taw gave the soldiers permission to go fishing in a boat to the point, a short distance off; this was about ½ past 6.

James Tait, the acting mate of the vessel, corroborated Mr. Hoy's testimony as to the progress of the vessel, and the manner in which they were landed, when the vessel w3as taken with the provisions, &c, which were given to them. He also stated, that on the afternoon of the day of the mutiny, Russen came to him with a tomahawk, and advised him to go forward; he asked - why? go forward, and you will see," was the answer. Shiers then presented a pistol to him, and said - "not a word, or I'll blow your brains out!" Witness went below, and saw 2 soldiers sitting on a chest. On his way to the forecastle he saw Porter, but did not perceive that he had any arms. He remained in the forecastle about 2 hours, when he heard Lyon say to some one - "life up the hatch, and fire down skylight," he then heard 2 shots fired. When he came on deck, Porter laid hold of his hands and tied them behind his back; he saw Lyon standing with a musket, and Cheshire also.

On the cross-examination by Lyon, Tait corroborated the fact of Mr. Taw's drunkenness especially on the Settlement; that the lower rigging was spoilt in consequence of being badly cut by Mr. Taw; that he (Taw) was very drunk when the ship was launched; it was a very wet day, and the men grumbled very much; Taw, also, got drunk with the military, but witness could not recollect the exact time; at the time the vessel was captured, Mr. Taw was in a state of perfect sobriety; he had received a wound on the head, from which blood was trickling; this was the only injury any person received.

Two other witnesses, Macfarlane and Nicholls were examined, but their testimony added nothing to the facts we have stated. The prisoners in their defence, stated that they were compelled to join the mutiny, especially Lyon, who it appears was well acquainted with the navigation of that part of the coast; they laid considerable stress on the kindness they had shown Mr. Hoy and his companions, particularly Shiers, who declared that his intention in rushing into the cabin was to save Mr. Hoy's life, by preventing any other person from taking it. Porter declared that the hardships they had endured, previously to their arrival at South America, were indescribable, and they all avowed that they had given themselves up to the Government there; Cheshire stating that he had been an inmate of the Governor's palace for nine months. Each concluded by throwing himself upon the mercy of the Court and the Jury.

His Honor summed up with his accustomed minuteness and perspicuity , and after reserving one or two technical points, left the case to the Jury, who retired about six o'clock, and after being absent about half an hour, returned a verdict of Guilty, generally against all the prisoners, who were removed, and the Court adjourned till Friday (this day).

This case seems to have excited considerable interest; and the Court was excessively crowded during the whole trial. Lynn and Porter, are intelligent - and what may be termed "smart" men; Shiers, apparently a quiet man, and Cheshire a weak lad. Porter was busily occupied in taking notes of which he availed himself in his cross examination, which were conducted with considerable acuteness.

Notes

[1]   See also Tasmanian, 5 May 1837, which account evolved into a meditation on the transportation to which the prisoners were eventually sent.  The Tasmanian also notes that there were doubts about whether the ship was seized on the high seas.

This story is told in Warwick Hirst, Great Escapes by Convicts in Colonial Australia, Kangaroo Press, Sydney, 1999, ch. 5.  The Frederick was built at Macquarie Harbour, just as that settlement was being abandoned.  The 13 convicts on board remained behind to finish off the construction and sail the ship to Hobart.  Thus they were members of the crew on its maiden voyage.  It took them six weeks to reach Chile, despite storms, a leak, and limited supplies.  They spent two years in Valdivia, and their story was soon known to the inhabitants, and even to Charles Darwin who was there at the time.  Many of the convicts escaped on other ships, but four of them were eventually imprisoned by the local government.  Porter escaped, but was recaptured.  They were finally handed over to a British naval ship, and returned to Hobart via England. 

Hirst states that after conviction, the four were confined in the Hobart Town gaol for over two years without sentence being passed, due to Pedder's doubts about the correctness of the verdict.  He claims that Lieutenant Governor Franklin decided the sentence of life transportation to Norfolk Island.  (Hirst apparently confused sentencing, the task of the judge, with royal clemency, the task of the governor.)  Porter spent only four years on Norfolk Island.  His sentence was reduced to 14 years due to his part in the rescue of some officers when their boat capsized.  That was reduced again to 7 years for further heroic actions.  He returned to Sydney, then spent a year in Newcastle.  He gained a ticket of leave in Sydney in 1846.  That was cancelled for theft, but he escaped New South Wales in 1847, supposedly for New Zealand.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania