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Colonial Cases

R v. Cavanagh, 1864

[piracy - stealing, ship]

R v. Cavanagh and others

Consular Court, Shanghai
13 July 1864
Source: The North-China Herald, 16 July 1864

 

H.B.M. CONSULAR COURT.

July 13th.

Before Sir HARRY PARKES, K.C.B., H.B.M. Consul,

W. KESWICK, W. LEMANN, Assessors.

[Tight left margin]

THE QUEEN versus CAVANAGH and MACLEAN, & DYAS.

The prisoners were arraigned on two separate charges, 1st for having in company with other persons, boarded the Tsatlee, assaulted the master and carried off the vessel; [and] with having attempted to deliver her to [the] rebels, in violation of the neutrality [.......ance] of 17th January, 1853.

The prisoners pleaded Not Guilty

Mr. ROBINSON, who appeared for the defendants, objected that the prosecutor out to [state] on what charge the prisoners should be [tried].

The COURT over-ruled the objection, at [the] same time promising to take it into consideration as the case proceeded.

Mr. EAMES having briefly stated the case [for] the prosecution, called

ARCHIBALD COOMB LOWELL, who stated: - [I was] in command of the Tsatlee in March.  I recollect the night of the 7th of that [month].  I was asleep in my berth, when I was awakened by feeling my hands grasped, and [......ing] up, saw three men in my cabin.  I [??????????] the name of one of them.  The [man] who held my hands said that, if I kept [quiet], there would be no harm done.  I saw [the mate] run out of the after-door, and at the [same] time heard a noise on deck, and the [?????ne] working.  I was detained in my [cabin] till morning.  I was several times asked [to] join the captors, and offered an equal [share] if I would do so.  They said, if I [would] not, they would let me go in the [?????ing].  After day-break, I repeatedly [requested] them to release me and the mate, but [they] each time refused, telling me to hold on  [a little] longer till we had passed the Imperial [??????].  Shortly after, we came to some stockades and some Europeans on the bank hailed [the] steamer.  I attempted to go on deck but [was] prevented.They ran by the stockades, [and] came to a barrier which they could not [get] across; and I then told them that, if they [would] give me up command of the steamer, [I would] do the best I could for them when [they] got back to Shanghai.

Whilst they were debating, Captain Curtis was hailing [????] from the bank.  Having taken command, I answered the hail, and went back to [the] spot where he was standing, and made [???] to a gun boat.  Shortly afterwards General Ching sent for me and I went to him.  In reply to his question as to what I was doing there, I told him I had come on an [excursion].  I was allowed to return to the steamer, but was again sent for about half [an] hour later, and questioned as to how I [came] up, and who were the men I had with [me].  I asked him to give me a guard to go on board; I told him that they had stolen the steamer and had compelled me to accompany [???].  He sent the guard, and at my request took the captors out of the vessel.  I then asked to be allowed to take the steamer [........y], but he refused, though he gave me a letter to the Futai asking his will on the subject.  The Futai also refused, but allowed [me] to come down to Shanghai, where I gave [my] testimony before the U.S. Consul.

GEORGE MURRAY, the chief mate of the Tsatlee, and STANLEY BENNETT, a Captain of the Imperial service, were here examined, [and] corroborated the above statement in its [main] points.

July 14th.

LY-CHEE stated as follows through the medium of an interpreter: I am a sailor on board the steamer Tsatlee.  I remember the day was Monday.  I don't recollect the date.  On Monday morning was anchored off Customs.  Came up to tow vessels, and anchored at the Hong-que wharf.  Three sailors, three stokers and one cook were on board.  The Captain and mate told the men not to keep watch.  The cook went on shore, leaving six men on board.  We all went to sleep and then heard a noise; we started up and found the hatches locked.  We all slept beneath the hatch.  At 7 o'clock (in the morning) the hatch was opened, and we were called up to carry a bag of coals to the engine room.  The vessel was steaming at the time.

We came to Kuhing-loo near Soochow.  The Captain went to speak to an Imperial officer there.  The steamer was fastened to Ching's stockades; this was between 4 ½ and 5 o'clock.  I carried one bag of coals, six of us went into the engine room. Nobody was there but the head engineer.  I see him in court.  The Captain or mate did not tell me to do anything at Kuhing.  After carrying the coals to the engine room we went below again.  We were not told to do so.  There were eight persons on deck.  The noise by which we were awakened was the noise of the wheels on the engine.  I did not hear any one speak. I am certain we were all below.  I had been ten or twelve days in the boat.  Some of the strangers gave orders, but I don't know which.  No orders were given to me.  I heard none given to the others.  I was ordered in Chinese by one of the foreigners to carry coals from the after cabin to the engine room.  We were below at the time.  The coal was stowed under the fining table.  The Captain does not understand Chinese.  I did not see the person who spoke.  I got up and saw that it was not a Chinaman.  The Engineer never gave orders in Chinese.  None of us were ill-treated that night or the following day.

The steamer went to Soochow some 10 days before.  I was taken to general Ching's at 9 o'clock in the morning.  Nobody tied me up nor threatened to cut my head off.  Nobody else was taken to General Ching.  A black man took me to General Ching.  I had seen this black man before, when he took me at 9 o'clock in the evening to General Ching's stockades.  I was keeping watch when taken by the black man, and was asked by General Ching whether I knew any particulars of the occurrences on board while under hatches.  On hearing the noise at the hatch we stayed for one hour huddled together, being frightened.  At 12 o'clock at night we found it shut.  I never knew the hatch shut in that way before.  The hatch being fastened and hearing the steamer going ahead was the cause of our fear.  I heard of no one being tied up at Kahing.

ALOST, one of the stokers on board the Tsatlee, was next examined: - The steamer used to get up steam at 6 or 7 o'clock and go to Woosung to tow up ships.  On Monday (March 7) we went up at 1 and came back at about 4 o'clock and anchored at Hong-que wharf.  In the evening I was told that the fires were not wanted, but that a little fire should be kept.  The men finished work at 5 o'clock, had chow-chow and went to bed at 8 o'clock.  On hearing a noise caused by the engine and the wheel's they awoke and tried to get up, but found the hatch shut.  They could not get out till daylight, when they were called up in Chinese.  They were never called up in Chinese before. There was no Chinaman on board except themselves.  They were sent to the engine room to make up the fire.  A foreigner sent them to the engine-room.  It was neither the Captain nor Mate.  I went into the engine-room.  There was the Engineer and a foreigner whom I did not know in the engine room at the time.  I do not know either of the three prisoners now in the Court.  I now recognise the Engineer.  The engineer told me to put on 60-lbs of steam.  The steamer then went to Kahing-fu.  I did not go on shore there.  I came back to Shanghai in the steamer.

M. KING, a policeman, stated: - I arrested a man named Kavanagh on the 26th June.  He offered resistance by throwing himself on the ground, and throwing mud.  This happened not far from the American Consulate.  I know he was intoxicated.  He said he was an American.  He, besides throwing mud, tried to strike me on the head with a handcuff.

Mr. EAMES closed the case for the prosecution by an able address.  He first referred briefly to the disturbed state of affairs in Shanghai; and urged that their increased importance of late rendered it necessary to exercise double vigilance.  He hoped that there were no questions which at first seemed doubtful, that has not been cleared up satisfactorily.  After briefly recapitulating the particulars of the case, he added, that if the prisoners were not convicted or robbery, which he could not imagine possible, they must still be liable for larceny.  Kavanagh was the guiltiest of the prisoners; his conduct had been very peculiar on different occasions.  The testimony of the crew was also to a great extent against him, as had been satisfactorily shewn.  In fact it seemed quite evident that the Captain was not a man of ordinary nerve, otherwise he would not have acted in such a quiet way as he did when held by his assailants.  He did not doubt that the case for the prosecution had been proved beyond a question.

Mr. ROBINSON then made a few remarks for the defence.  He considered the case for the prosecution one totally unsupported, the evidence being quite contradictory.  The prisoners were not guilty of robbery.  They were at a great disadvantage not being able to call witnesses for their own defence.  He would ask two things, that the cardinal principles of English law might be attended to; that, until a man be proved guilty, he is virtually innocent; and, secondly, he would ask for that justice which it is the prerogative of every Englishman to claim. He must bear testimony to the fairness with which Mr. Eames had conducted the case.  It was impossible to understand the Captain's conduct.  There must have been watches in all the ships a round, and assistance could easily have been procured.  His anxiety afterwards to have the men arrested was merely moonshine.  He had volunteered falsehoods on different occasions, and consequently his testimony could not be relied on.

On the part of the prisoners, he thanked the Court for the patience they had displayed, and had no doubt that their decision would be favourable.

JUDGMENT.

THE Court find that the steamer Tsatlee was feloniously and violently stolen, taken, and carried away from this port of Shanghai on the night of the 7th of march; that this robbery was committed with the foreknowledge and active participation of Kavanagh and also with the participation in a less degree of Dyas and Maclean.  The Court accordingly sentence Kavanagh to twelve months imprisonment, and Dyas and Maclean to nine months imprisonment in H.B.M. Consular Jail.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School