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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Dillon [1827]

habeas corpus - ship's captain - assault - passenger on ship - insanity - ship, research voyage - mutiny - Maori - New Zealand - India

Supreme Court of Van Diemen's Land
Pedder C.J., 18 April 1827
Source: Hobart Town Gazette, 21 April 1827 [1]

The Solicitor General moved that a writ of Habeas Corpus be granted to Leonard Helmick, assistant apothecary on board the H. C. Ship Research, he being prevented from coming on shore to seek redress. It appeared upon affidavits presented to the court, that Helmick had sworn to an assault and other ill usage at sea, and that the Solicitor General and Mr. Pitcairn on going on board the ship, as his legal advisers, were prevented from seeing him. On the other hand Captain Dillon had signed a bond of 1000 rupees to return Helmick to India, and refused to suffer him to come on shore as a matter of right, but was willing that he should do so as a matter of courtesy,. The writ was granted and the case was referred till the following day, when Helmick was remanded.

Pedder C.J., 24 April, 1 May 1827
Source: Hobart Town Gazette, 28 April 1827

INTERESTING TRIAL.

Captain P. Dillon, of the Honourable East India Company's ship Research, was charged with assaulting and false imprisoning Dr. Robert Tytler, on board that ship on the high seas.
The Solicitor General (with whom was Mr. Pitcairn) opened the case. We much regret our limits prevent us from presenting our readers with the learned gentleman's speech verbatim. We must therefore content ourselves with the following concise, but circumstantial narrative.
Captain Dillon having gained the particulars of La Perouse, as before related in our columns, during his late voyage from Valparaiso to Calcutta, had called the attention of the public to them by frequent publications in the newspapers, recommending an expedition to the Malicolo islands. The subject did not, however, attract much serious notice, until, at a meeting of the Asiatic Society, at Calcutta, in November last, when urged by Dr. Tytler, Colonel Bryant, brought it before the meeting, and the motion was so warmly seconded by Dr. Tytler, who, with a spirit of enterprise highly creditable to himself, volunteered his own services, that a resolution was passed that evening recommending the expedition. The consequence was, that the ship Research was fitted out for the occasion, and Captain Dillon appointed commander, and Dr. Tytler, naturalist and medical officer, with the additional duty of keeping a separate journal of all occurrences connected with the main object of the expedition. The instructions to Captain Dillon also enjoined him to afford every assistance in his power to Dr. Tytler in his scientific researches, and (to secure accuracy in the position of the ship), to furnish him, in writing, at noon each day, with the latitude and longitude, and at all intermediate times when required. Government, still farther to insure the objects of the voyage, had instructed the Asiatic Society to communicate with Dr. Tytler on the subject, and the letter of Dr. Wilson, the Secretary to the Society, was read among the other documents by the Solicitor General. After alluding to the supposed places of the wrecks of La Perouse, it suggested the probability of some of the medals, distributed by him being found --- it advised the taking of drawings of the natives and casts of their heads --- the collecting of vocabularies of the language, arranged upon the plan of Sir Jams Mackintosh --- to note the manners and practices of the people --- the form and position of the coasts, --- to observe any traces of volcanic origin, and, in a word --- to remark and collect specimens of the zoology, botany and mineralogy of the several islands they might touch at.
About a month before the sailing of the ship, Captain Dillon had been attacked with apoplexy, attended with delirium, from which, he was mainly recovered by the attentions of Dr. Tytler, who took from him 30 ounces of blood. He had formerly had a similar attack at Valparaiso, and also at Calcutta, about 3 months before. The violent determination of blood to the head threatened sanguineous or serous apoplexy. It affected him with a sort of phrenzy, during the influence of which, he supposed that Dr. Tytler was going to poison him. The Marine Board at Calcutta inquired into the particulars of the complaint, and Dr. Tytler gave it as his opinion, that though Captain Dillon might be liable to be attacked by it under the vertical rays of the sun when among the islands, it was likely to be but temporary, and not such as to interrupt the progress of the expedition. Some little misunderstanding also arose respecting the victualling of Dr. Tytler's son, and also of Leonard Helmick, assistant apothecary. It appeared, however, amicably adjusted by reference to the Marine Board before the vessel left Diamond harbour, and every thing went on smoothly until the demand was made by Dr. Tytler for the latitude and longitude of the ship, signed as recorder of proceedings, which gave great offence to Captain Dillon. It was on the 26th of January that he sent Dr. Tytler a very outrageous letter, containing expressions which it would be improper to put in print, and accusing him of exciting mutiny in the ship, warning him that he had not the officers of the Commissariat to play with, or the mouldering bones of the late Sir David Ochterlony to ridicule. Dr. Tytler's evidence went on to state, that ---
"On reading Captain Dillon's letter, accusing me of mutiny, I considered that it shewed lunacy in every line. My impression then was, that he was becoming perfectly deranged, and differently affected from his state of delirium at Calcutta. I wrote him an answer with a determination not to give offence. I considered him as a patient."
"On the 28th, the New Zealand prince dined with us. I asked him to drink wine. Captain D. touching him on the arm said something to him, and he refused me with an angry look. The ship was going on very well, and I observed, we shall see how she will do among the rocks of Tucopia. I said this in allusion to Commodore Hayes's words at Calcutta, that she was only fit for a rice hulk --- that she might run down to Hobart-town, but would not do for the rocks and reefs of Tucopia. I wished rather to defend the ship. She is not an armed ship, [2] but sails with a register and the Company's pass, and has a port clearance. Captain D. started up in a passion, and said people talk about ships who know only about gallipots. He had made use of threatening expressions daily after leaving the Bengal pilot. On my sending the receipt, signed as recorder of proceedings, I heard him exclaiming, that he had a mutinous villain on board. I wrote a second receipt with the words added verbatim from my instructions, in order to pacify him. On receiving it he became perfectly frantic. He called to the gunner to bring his blunderbuss -- that there was a mutinous scoundrel in my cabin -- ordered him to bring me out -- to lash me to the capstan and to give me 5 dozen lashes. I said Captain D. there is no occasion for all this violence -- I have hitherto obeyed all your orders, and will do so now. I then wrote a third receipt, signed simply with my name. I wrote with the same feeling as I would give my purse to a highwayman, and not voluntarily, because I thought my life in danger, and I considered I resigned my situation in the ship. On receiving the third receipt, he exclaimed --You villain, why did you not send this at first. If you dare again to repeat the conduct you used to day at table, I will try you by drum head court-martial. I saw Captain D, go into the cuddy and take some ball cartridges out of a pouch, and that circumstance determined me to write the letter to Mr. Blake, the chief officer of the ship which I did, (this letter contained Dr. Tytler's opinion of Captain D's state of mind). The communication had been made officially, but confidentially, and it did not come to the knowledge of Captain D. till a month after.
"On the 27th of February I heard a violent altercation between Mr. Dudman (2d officer), and Mr. Blake. Dudman ran to Captain D. who came out of his cabin, and taking off his Manilla straw hat, gave me a violent blow on the shoulder, saying, I arrest you in the name of his Britannic Majesty, and seizing me very forcibly by the arm, shoved me before him into my cabin, saying go in and consider yourself a prisoner. Mr. Blake and Martin Buchart afterwards came into my cabin and took away my fire-arms and sword. I continued in my cabin from the 27th of February to the 14th of March. Armed savages were placed as sentries at Captain D's. door, who used to sit on an arm-chest at my door and keep me in a continual state of alarm. They had been drilled as marines, but never placed as sentries until the 27th of February. On the 14th of March I was requested to attend the sick in the ship, which I did. On the 21st I wrote to Captain D. on the state of my health, and requested to be allowed to go on shore at Van Diemen's land. Captain D's. reply was here put in, refusing the request, and adding, that he had charges of a civil and criminal nature to prefer against Dr. Tytler, before a British court of justice. On the 31st March, about 3 A. M. it was blowing a gale. I heard Captain D. say -"how quiet the ship is - all the people are asleep, it is wonderful - except the Doctor, poor man, he looks very ill, I really feel for him." The time, the state of the elements, and the circumstances altogether, produced an impression which I shall never forget. I went up to him and said -" Captain D. if these are your sentiments, here is my hand, and I give it you with all my heart." "No, Sir," said he, "had I known you were there, I would not have said it."
An entry from Captain Dillon's private journal was read, stating the determination of Morgan McMurrah to grill and eat Dr. Tytler on the arrival of the ship at New Zealand, from which he was diverted by being reminded that Dr. Tytler wore a red coat like his friend Lord Combermere. Dr. Tytler also underwent a long cross-examination as to his having said that Captain Dillon's frequently picking up the carpenter's chips and other small pieces of wood on deck indicated that aberration of mind called by physicians venalio floccorum, or a hunting after straws and little particles.

Source: Hobart Town Gazette, 5 May 1827

Dr. Tytler having undergone a long cross-examination, several other witnesses were called in confirmation of the facts, which he had stated. On Saturday morning, the counsel for the defenee addressed the jury at considerable length. In alluding to Dr. Tytler's observations upon the vessel, which had given offence to Captain Dillon, the counsel chose to designate it "dastardly conduct," upon which Dr. Tytler left the court and did not return during the remainder of the trial.
Mr. Dudman, the 2d officer of the ship, was the principal evidence on which the defence rested. It appeared that the same day on which he informed Captain D. of the letter which Dr. Tytler had written a month before regarding his state of health, he had a quarrel with Mr. Blake the 1st. officer, upon which occasion he told him, it was all a mutiny fore and aft the ship.
Chief Justice. Did you believe there was a mutiny on board that ship?
Mr. Dudman. Yes, I believe there was a mutiny growing at that time.
Chief Justice. What were your reasons?
Mr. Dudman. I frequently observed Dr. Tytler talking privately to the officers of the ship, and also to the men at the wheel. I never endeavoured to ascertain what Dr. Tytler said to them. I do not know what their conversation was. When Dr. Tytler visited the sick, I frequently went round with him by Captain D's. orders to see that he had no evil communication with the ship's company. This witness went so far as to say, that knowing Dr. Tytler had written the letter which he did respecting Captain D's. health, he considered his life was in his hands, that he should have been strung up to the yard-arm, and that he believed himself to be the only friend that Captain Dillon had onboard .
During the cross-examination, the following passages from Captain D's. private journal were produced in court.
Jan. 28. "I then asked what he meant by ridiculing the ship in the way that he did - if it was his intention to deter the young officers and every person on board from proceeding on the voyage, or if he intended to breed a mutiny in the ship, so as to cause her return to Calcutta. He replied, that he heard those reports from Commodore Hayes, and Captain Crawford; I replied, that this was no excuse for his mutinous conduct, and if he persisted acting thus, that I would bring him to the capstan and have him flogged with 5 dozen, or put him in double irons. This plain unvarnished declaration of mine had a much better effect than if I had written a ream of paper into letters. The doctor promised to be a good boy and to play no more naughty tricks; upon which I withdrew from the cuddy.
Jan. 25. The Doctor favoured me with another long letter to-day, which is hereafter copied. I had not time to reply to it, but mentioned to my New Zealand friends, that the Doctor wished to converse with them. They asked me on what subject. I said I did not know. They replied, "we have seen the Doctor abuse you very much at Diamond harbour; you are our friend and protector, you have brought us from our native country over a sea three months long, (meaning the length of the voyage from New Zealand), and have victualled and clothed us. You have also loaded us with presents to take to our country. You are the relations of our fathers and friends in New Zealand. We are therefore directed by our God to fight for you. Those men that are not your friends, cannot be ours. We will not speak to the Doctor. We will kill and eat him if he lands in our country." On hearing this plain statement from these gentlemen, I did not wish to force them to converse with the Doctor, knowing it to be useless. I at the the same time recommended, for the sake of the New Zealand God and all my friends and relations in their country, on no account to molest the Doctor. If they did, Lord Combermere, who had behaved so kind to them, and gave this ship to carry them home, would be angry. The prince paid a little attention to this remonstrance. His excellency Morgan McMurrah was inflexible in his resolution, and openly declared that it was his intention to have the poor Doctor grilled, as an entertainment for his numerous wives and friends, the first opportunity that offered, after his arrival in the River Thames. I am therefore determined the Doctor shall not land in New Zealand. I would not mention this conversation, was it not that I wish to shew men in civilized life, what the poor uncultivated savages of New Zealand are capable of doing, and how far susceptible they are of remembering favours received."
We much regret that our limits forbid us from giving any part of the Solicitor General's eloquent reply, or of the very lucid and instructive charges of his Honour the Chief Justice. The jury retired for an hour and a half and returned a verdict of guilty on the 4th count only, which contained the assault on the 27th February, and imprisonment for 14 days. They added their opinion, that Dr. Tytler had not exercised sufficient caution, in as much as he spoke of subjects which were disagreeable to Captain Dillon.
TUESDAY 1st of MAY.
The Solicitor General prayed the judgment of the court upon Captain Dillon, who appeared upon the recognizance he had entered into on Saturday. His Honour the Chief Justice then addressed the defendant, and commenting on the part which Mr. Dudman had chosen to take in the affair, observed that Dr. Tytler had acted upon the occasion with great prudence and discretion. "It is of so much importance, continued his Honour, not only to masters of ships, but to passengers and others under their control, to have it well understood what are the real powers of the master, that I shall take this opportunity of again mentioning the doctrine laid down upon the subject by Lord Chief Justice Abbott, in his work on shipping, in the passages which I read to the jury on the trial. I should be the last person to say any thing to diminish the due or proper authority of the commander of a ship. But it is fit that you and others should learn, that great as this power is, it is not "despotic," but one which is to be exercised with caution, moderation and justice. Lord C. J. Abbott says: "By the common law, the master has authority over all the mariners on board the ship; and it is their duty to obey his commands in all lawful matters relating to the ship, and the preservation of good order. In case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner; his authority in this respect being analagous to that of a parent over his child, or of a master over his apprentice or scholar. Such an authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board. But it behoves the master to be very careful in the exercise of it, and not to make this parental power a pretext for cruelty and oppression." He also states that "the master should, except in cases requiring his immediate interposition, take the advice of the person next below him in authority; as well to prevent the operation of passion in his own breast, as to secure witnesses to the propriety of his conduct." Now with respect to this, if a seaman were to be guilty in presence of the crew, of open violence or other offence requiring immediate interposition, perhaps the master might be justified, from the necessity of the case, in awarding punishment. But even in such a case, he could not I apprehend be justified in inflicting punishment, without hearing the party in his defence, for that would be contrary to the plainest principles of justice. It seems clear, however, that the offence of revolt, or attempt to excite one, (which are by a particular statute made "capital felonies)," could not be punished by the master; for these being specific crimes, the offender should be arrested merely, for the purpose of being handed over to a proper legal tribunal."
His Honour went on to comment on the testimony of Dudman, whose conduct, if it was not most weak, had been most wicked. If Captain D. had made inquiry when he told him of the letter, Mr. Blake would have informed him that no such thing as mutiny could be pretended. It was evident that provocation from Dr. Tytler, if any, was of the most remote nature. From the time of the receipt being sent on the 28th of January, nothing like a dispute took place, and it would be going too far to say that Captain D. could have been influenced on the 27th of February by any recollection of such an occurrence. I fear, said his Honour, that I must come to the conclusion, that from the commencement you entertained a violent dislike to Dr. Tytler. As to the bad sailing of the ship, it was a common topic of conversation, and it does not appear that you ever quarrelled with any individual about it except Dr. Tytler alone. How Dr. Tytler, after your outrageous ebullition of feeling on the 28th of January, could write any other letter than he did, I cannot conceive. I have, however nothing to do with what then took place. I shall confine myself to the arrest and its attendant aggravations, bearing in mind that that arrest was not committed with violence.
Nevertheless, it is proper, Captain Dillon, that you should be made to feel, that the power given to masters of ships is one conferred on them for promoting the general interests committed to their care, and not one to be exercised by them for the redress of their own wrongs, or the gratification of their own resentments. Taking the whole circumstances of the case into consideration, I can come to no other conclusion than that your conduct towards this gentleman has been very oppressive, and it is my duty to mark it accordingly. His Honour the Chief Justice then gave judgment, -- "That Captain Dillon be committed to the custody of the Sheriff for 2 calendar months, pay a fine of £50 to the King, and enter into a recognizance himself in £200, and two sureties in £100 each to keep the peace towards Doctor Tytler for 12 months."

Source: Colonial Times, 11 May 1827

The King, on the prosecution of Dr. Tytler, 
against Captain Dillon.

This case, which has occupied the attention of the Court for four days, and excited considerable interest, was for an assault and battery committed by the defendant on Dr. Tytler, on the 28th February last, and for confining him in prison up to the time of the arrival of the Research in the Derwent, on the 6th of April last.
The facts which were proved by the examination of the prosecutor's witnesses, were as follows:--
Captain Dillon having acquired some information at the Malacoli Islands respecting the fate of Count La Perouse, communicated the particulars of his discoveries to the Supreme Government of Bengal, in the month of October last. In the month of November the subject engaged the attention of the Asiatic Society, of which Dr. Tytler was a member, when it was determined that the Society should solicit the interference of Government, and upon that occasion Dr. Tytler offered his services as a volunteer.
The Supreme Government of Bengal entered fully into the views of Captain Dillon and of the Asiatic Society; and, being firmly persuaded of the truth of Captain Dillon's statement, resolved to equip a vessel under Captain Dillon's command, for the express purpose of procuring authentic information respecting the fate of Count La Perouse and his associates, and for the purpose of procuring scientific knowledge, Dr. Tytler was appointed surgeon to the ship, botanist, &c.
The Honorable East India Company's surveying ship Research having been selected by the Marine Board as being properly adapted for this expedition, was commissioned for the purpose and Captain Dillon appointed to command her.
About a fortnight before the Research sailed, Captain Dillon was taken ill, and reported by Dr. Tytler to the Marine Board at Bengal, to be labouring under delirium. The Board having required a report upon the subject, and also as to the probability of the malady impeding the object of the expedition, Drs. Savage and Adam were called in, who reported that the malady was temporary.
A few days before the ship sailed from Diamond Harbour, some dispute took place between Dr. Tytler and Captain Dillon, respecting the provisions to be allowed to Mr. Hillawick, the dresser, in which the Dr. accused the Captain of ungentlemanly conduct, and quitted the table with some warmth. The matter in dispute was referred to the Marine Board.
On the 27th Jan. the Doctor introduced at the dinner table some conversation respecting the ship Research. He observed, that Commodore Hayes's opinion was, that the ship was only fit for a rice hulk, that she might slip down to Van Diemen's Land, or be lost on the rocks of Tucopia. Captain Dillon, highly offended at such observations being made in the presence of his officers, left the cabin in a rage.
The latitude and longitude were presented daily to Dr. Tytler, for which he had given a receipt merely sign "R. Tytler, M.D." On this day the receipt was signed "Recorder of Proceedings to the Supreme Government." This put Captain Dillon in a great rage; he abused Dr. Tytler, called him scoundrel, &c. and threatened him, if he ever addressed language at the table, similar to what he had done that day, which was calculated to intimidate his officers, he would have him tried by a drum-head Court Martail, tied to the capstan, and give him five dozen. The Captain accused the Dr. of mutiny, brought against him a loaded blunderbuss, loaded his fire-arms, &c. Various letters had up to this time passed between the parties, and in which the Captain had used abusive expressions towards Dr. Tytler.
On the evening of the 27th day of January, Dr. Tytler wrote a letter to the Chief Officer, Mr. Blake, stating that he considered his life in danger, that it was his decided opinion the Captain was mad, and throwing himself upon the protection of Mr. Blake and his brother officers. The original letter was shewn by Mr. Blake to the other officers, and to Captain Speek, a passenger. Not a word was said to Captain Dillon respecting this letter until the 28th February (the day the assault took place.) A copy of the letter was made by Mr. Russell, the 2d officer, but sworn to have been destroyed about the 24th day of February; the original letter was sworn to have been returned by Mr. Blake to Dr. Tytler, about the 6th of February, and stated by Dr. Tytler to have been destroyed by him about six days afterwards, and no copy taken. Dr. Tytler however stated, from memory, that it was to the following effect:--
"To Mr. Blake, Chief Officer of the H.C.S. Research.
"Sir, In consequence of the dreadful scene which occurred this afternoon, when Captain Dillon came to the door of my cabin, and called the gunner into the cuddy to lash me to the capstan and give me five dozen lashes, merely for sending him a receipt for the longitude and latitude, signed in a manner which, by my instructions from Government, I am perfectly justified in employing; together with his raving about the mouldering bones of the late Sir David Ochterlony, and his correspondence with me for the last three days, I have not the smallest doubt, in my mind, as to his being in a state of mental aberration, which occasionally bursts forth into violent fits and frantic madness. - I conceive it therefore to be an imperative act of official duty in me, to communicate this my recorded opinions to you, the result having followed from over excitement and exposure, as I predicted it might, to the Marine Board in Calcutta. I accordingly leave it to you to confer with your brother officers as to the proper steps to be taken in this case of emergency, for the preservation of the ship, and the lives of all board. I throw myself upon you and the officers for protection. My own life and that of my son I consider especially in danger, me being in the cabin next to him, and he having conveyed loaded fire-arms into his room for some purpose unknown. Captain Dillon ought now to be in his cabin, and take medicine, and be bled and purged, otherwise I fear his malady will increase and become permanent; and this I declare, before God, to be my solemn opinions communicated to you. - I am, Sir, your most obedient servant,
(Signed) "R. Tytler, M. D."
"H.C.S. Research, at sea, January, 1827."
Matters went on tolerably quiet until the 28th February, when a dispute between the Chief Officer and Mr. Dudman was referred to Captain Dillon. Upon that occasion, Mr. D. told the Captain there was a mutiny fore and aft the ship, and that if he had seen the Doctor's letter he would have been satisfied of it. The Captain found from Mr. Blake that the letter had been destroyed. He learnt from Mr. Russell that the copy made by him had also been destroyed; but he was informed that the Doctor had stated that he was mad, and that he ought to be confined to his cabin, and bled and purged profusely. Captain Dillon observed to his Officers, that he must put a stop to this, -- and went to the quarter-deck, laid his hand upon the Doctor's shoulder, put him under arrest, and sent him to his cabin. The Doctor remained under close arrest for two hours, during which time his arms were taken away. A letter was then read to him by the Chief Officer, informing him that he was at liberty to walk the decks as usual, but not to be allowed to hold any conversation with any officers of the ship. This permission was refused by the Doctor, and he remained in his cabin for 14 days, and was in fact under arrest at large up to the arrival of the ship in the Derwent.
The case for the prosecution lasted three entire days, viz. Tuesday, Thursday, and Friday; and, on Saturday, Mr. Gellibrand addressed the Jury, on behalf of Captain Dillon, in a speech of two hours, in which he animadverted upon the conduct of Dr. Tytler to the defendant, and his conduct in the witness-box. He exhorted the Jury to lay aside any prejudice which the unguarded expressions of Captain Dillon were calculated to produce on their minds, more especially as the prosecutor was an officer of their profession; that, in point of fact, all the causes of irritation, up to the 28th February were only introductory to the matter in issue, which simply was - whether an assault had been committed on the 28th February; and if so, whether Captain Dillon was justified. Mr. Gellibrand contended, that the representations made by Dr. T. to Mr. Dudman, the day after the ship sailed, that the Captain was mad - the repetition of the same sentiment at the cuddy table - and the introduction of a conversation respecting the ship dangers of the rocks of Tucopia, were highly calculated to produce disunion between the officers and Captain - to lessen his authority - and to produce in the minds of the officers - that the Captain was unfit to have the command - that the officers were engaged upon an important discovery, fraught with danger, and where fear should be expelled from the minds of all. Mr. G. declared that he would offer nothing in extenuation for the expressions used by the defendant, but that the defendant was only to be tried for his acts, which were as mild as the circumstances would admit, and were justifiable. He contended that the letter written by Dr. Tytler could not bear any other construction than an intimation to Mr. Blake that the Captain was mad, and unable to command the ship, and that he (Mr. B.) ought to take upon himself the command - that this construction was supported by the fact, that the letter was shown to all the officers, but concealed from the Captain - that the original letter had been destroyed, and also the copy of it which had been taken by Mr. Russell - that at the time the purport of the letter was communicated to Capt. D. he was apprised of all these facts by his officers; and therefore, believing it was the wish to Dr. Tytler to represent him as mad, when no other person in the ship formed such an opinion, he was justified in putting Dr. T. under arrest, in doing which no violence was used; and that after two hours the Dr. was only under arrest at large. Mr. Dudman proved the report he made to Captain D. in the presence of Mr. Blake, and that he considered the letter as an intimation that the Captain was mad, and ought to be confined to his cabin; and stated, that, if he had been chief officer, he would have acted on it.
The Solicitor-General (Mr. Stephen) replied upon the whole of the case, that the assault was clearly proved - that there was no sufficient justification - and that it was highly aggravated by the previous language and conduct of Captain Dillon.
The Chief Justice Pedder summed up to the Jury, that they were not to try this case by their notions of mutiny or martial law - that, in point of fact, the ship in question was precisely similar to a merchant vessel trading from London to these Colonies, and that the defendant had no more authority, than the master of such a ship would have over his officers and crew. He observed, that the only points for the consideration of the Jury were - 1st, Had any assault been committed; and then, had a justification been made out to their satisfaction? - A justification might be made in two ways - either by the Doctor writing a letter to Mr. Blake, representing the Captain to be mad, when he knew at the same time that he was not mad, and by that means dispossess the Captain of the command; or, by his representing what he believed to be true, but what was not so in fact; and that the defendant, at the time he put Dr. Tytler under arrest, believed the Dr. had made an untrue statement for the purpose of taking the command from him. The Chief Justice expressed his opinion, that, in either of these cases, the justification had been made out, and the defendant would be entitled to a verdict; but upon the latter point, the Jury ought to be satisfied that the Captain called his officers together, and consulted them upon the subject, and took all proper means of informing himself upon the nature and contents of the communication made to the officers.
In either case, the Court was desirous the Jury should specially find the facts upon which their verdict should be founded.
The Jury retired for about an hour and a half, and returned the following verdict:--
"Guilty upon the 4th count. The Jury are of opinion that Dr. Tytler should have exercised more discretion in introducing observations which he knew were irritating to the feelings of Captain Dillon."
Captain Dillon was then ordered to attend on Tuesday to receive judgment.
On that day the Chief Justice shortly adverted to the facts of the case, and stated, that he considered it necessary to mark the conduct of the defendant; and, by that means to prevent such conduct in future by masters of ships, either to officers or to passengers; and although it was true that no violence had been used, and that the prosecutor had been in close confinement only two hours, and under arrest at large 14 days, yet the facts of the case, in his opinion, manifested bad feelings, and were attended with circumstances of aggravation. The sentence of the Court was, that the defendant should be imprisoned two months in the gaol of Hobart Town, pay a fine of £50, and enter into sureties for good behaviour for 12 months.

Notes

[1] See also Hobart Town Gazette, 14 April 1827, noting that Captain Dillon of the Research had been held to bail by two magistrates to answer the complaint of Dr Tytler for assault and battery during the voyage from India.
[2] See Hobart Town Gazette, 5 May 1827, correcting this: "Errata. - In the trial of Captain Dillon, last week, -- She is not an armed ship, delete "not.""

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