[mutiny – ship’s crew – criminal law, special verdict – maritime law – admiralty - piracy]

R. v. Blandford and others

Supreme Court of New South Wales

Burton J., 13 April 1841

Source: Sydney Herald, 14 April 1841[1]

SUPREME COURT. - CRIMINAL SPECIAL
SITTINGS.

            Tuesday. – Before Mr. Justice Burton and a common jury. Henry Blandford, Richard Brantt, Henry Smith, Henry Williams, Henry Northcott, John Moorcroft, and John McDonald, all seamen of the ship Brothers, were indicted for mutiny and insubordination on board that vessel, on the 6th of January, while off the Cape of Good Hope, on her passage to Sydney with two hundred and seventy-eight emigrants. The indictment contained two counts, the first charging revolt, and the second charging them with insubordination on the high seas.

            From the evidence given in the case it appeared that while the ship was lying at anchor in Table Bay, on the 6th of January last, the prisoners refused to weigh the anchor of the vessel in order to enable her to proceed to sea, and the captain was therefore obliged to get aid from the emigrants on board the ship to get her under weigh. After the vessel was on the high seas the prisoners continued refractory, and when it became necessary to shorten sail refused duty.

            The defence consisted of 1st, a complaint of a deficiency of hands. 2nd, it was alleged that the Captain had no right to place the men in stocks, which had been constructed on board for the purpose of punishing those who were refractory. 3rd, the prisoners by their cross-examination of the witnesses endeavoured to impress the Court with the idea that they had been maltreated by being ironed for three days in such a way that they could not answer the calls of nature. 4th, some of the prisoners asserted that the witnesses were mistaken in their evidence as regarded them.

            During the examination of the Captain, His Honor called on the Attorney-General to make his election, as to which of the counts of the indictment he would proceed on; when Mr. Therry said he should proceed on the second, viz., that for the insubordination on the high seas.

            Previous to putting the case to the jury, His Honor remarked, that they were called on as jurors representing the country, to return a verdict for or against the prisoners, who were brought before them under the authority of the Act 9 Geo. IV., chap, 83, by which the Supreme Court of this colony was empowered to try offences committed on the high seas. The present was not a case within the ordinary jurisdiction of the Court, nor was it a case of an ordinary description. His Honor then recited the clause of the 11th and 12th of William IV., for the infringement of which the prisoners were indicted; and stated they were called on to determine two points, viz:- 1st. Whether the revolt alleged against the prisoners, was committed under circumstances, as to be within the meaning of the said Act? 2. Did the insubordination charged against the prisoners amount to a revolt, or not? His Honor informed the jury, that shortly after his arrival in this colony, he acted as judge in a case somewhat analogous to the one before the Court, when, as in the case they (the jury) had just heard, the offence was charged as a breach of the 11th and 12th of William IV., under which, but few convictions had taken place. He characterised this Act as being peculiarly stringent, inasmuch as it charged nearly all acts of insubordination committed on the high seas as being acts of felony, piracy, &c., or acts committed for the purpose of aiding and abetting principles in the commission of these crimes; but in his opinion there might be very aggravated acts of insubordination committed on board ships at sea, which could not be regarded as being acts of felony of piracy; but in 1825 the interpretation to be given to the clause of the Act in question had been settled by the solemn opinion of ten of the Judges of England, who, in a case which came before them, held that acts of insubordination committed on the high seas, although not perpetrated for the purposes of felony or piracy, were within the meaning of the Act; although such was not his opinion, still as a Judge, he had felt himself bound to give way to that of the Court, as independent of the opinion delivered by the Judges in 1825, some cases had been tried before the Supreme Court of New South Wales, in one of which His Honor the Chief Justice and he himself (Judge Burton) had acted on the opinion delivered by the Judges in England; he had, however, in the conscientious maintenance of his individual opinion when called on in the discharge of his duty as a Judge to pronounce sentence in a case where a conviction took place before him, shortly after his arrival in the Colony recorded the sentence of death; but afterwards had recommended the individuals convicted before him to be pardoned; and should a conviction take place in the case before the Court, he should act in a similar manner, as although there could be no doubt but that if the jury believed the witnesses, a most gross act of insubordination had been committed. Still there was nothing in the evidence to lead them to conclude that the offence had been committed for the purposes of piracy; and, therefore, the Court would be placed in a dilemma as, should the jury return a verdict of guilty, it would be called on to award a sentence which would not be carried into effect. On the other hand, should the jury acquit the prisoners, then, by their discharge, the Court would be inflicting a serious injury on the commercial interests of the colony, by not punishing the prisoners for the offence they had been guilty of. He was sorry to have to say, that in the present state of the maritime laws as regarded this colony, they acted but as a powerless shield for protection; but he trusted the time was not far distant when these would be so remodelled, that while it would award a due punishment for each offence, juries would not then be placed in the disagreeable position of either acquitting prisoners, or of finding them guilty of crimes, which, if punished according to law, would subject them to an undue degree of punishment. His Honor considered it his duty to state, that if the verdict should be against the prisoners, he, in the exercise of his discretion as a judge, should bring the case before the Court, in order to have it solemnly argued. He intimated that he had mentioned these things in order to disabuse the jury of an idea that he was inimical to the interests of the mercantile portion of the community; on the contrary, it was his earnest desire to see them prosper; but, at the same time, it was his determination to support the authority of the Court, and to administer the law without respect of persons. In the difficult circumstances in which the court was placed, he would suggest to the Jury the propriety of considering whether or not they would be warranted in returning a special verdict, the purport of which would be that they found the act of insubordination charged against the prisoners proved; but that they left it to the Court to determine what was the law in the case. In order to aid them in the technical form of such a special verdict, should they feel it their duty to return it, His Honor dictated the following to the Registrar, who wrote it down and subsequently handed it to the Jury. “The jury on their oaths say that the prisoners, Henry Blandford, Richard Brantt, Henry Smith, Henry Williams, Henry Northcott, John Moorcroft, and John McDonald, being mariners on board the ship Brothers, on the 6th of January, 1841, being then at anchor in Table Bay, Cape of Good Hope, did unlawfully refuse to obey the orders of the said Thomas Grayburne, he being then and there master, and on board the said ship, and did unlawfully refuse to obey the commands of the said captain, and did on the 7th of January following, (the said ship being then on the high seas, within the jurisdiction of this Court,) refuse to obey the lawful commands and orders of the said master, and did revolt from the authority of such master; but whether they did make a revolt within the meaning of the statue of 11th and 12th of William IV. The jury are not apprised.” The jury retired for three quarters of an hour and returned the above verdict, when the prisoners were remanded.

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