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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Hibbill, Harris and Smith [1836]

murder - Supreme Court, jurisdiction over the seas - death, proof of - ship's crew - capital punishment - New Zealand

Supreme Court of Van Diemen's Land

Montagu J., 9 February 1836

Source: Tasmanian, 12 February 1836

            On Tuesday, three unfortunate men - Hibbill, Harris, and Smith, were found guilty of murder of Captain Bragg, of the schooner Industry, by throwing him overboard about three hundred miles to the westward of Hokianga, in New Zealand. Mr. Ross, who was appointed by the Court to defend them, took the three following objections to the case going to the Jury: -

            1. - That the actual death of Captain Bragg was not proved. The evidence went no farther than that the three men (and a fourth - Wells, who was not put upon his trial), had lifted him off the deck upon the rail of the vessel, from whence he went overboard, and was only seen in the water to throw off his hat; and, as a cask was thrown overboard to him, it was not impossible but that he might have been picked up by some of the vessels passing in that track.

            2. - That the Act 9 Geo. iv., "for the Administration of Justice in these Colonies," gives jurisdiction to the Supreme Court to try offences committed on these seas, either by British subjects or on board British vessels, and the Industry was not either charged in the information, nor that the prisoners were British subjects.

            3. - That the only evidence of any premeditated intent to take Captain Bragg's life was, that some one was heard to say "throw him overboard;" but that there was no evidence to prove that it was either of the prisoners, and it might have been a fourth man. That the mate was at some distance on the deck in great alarm, and could not state positively whether either or any of the prisoners had their hands on Captain Bragg. That the boy came on deck only at the moment the captain was falling from the rail. That it was shewn that the fourth man was on the spot who was not charged in the information, and who must have been the best evidence, and, therefore, ought to have been called. Mr. Ross argued his points with much zeal and ability. In support of the first, he cited the numberless instances of persons supposed to have been murdered, but who afterwards appeared alive. As to the second, he urged with much force, that the only jurisdiction the Court possessed in cases such as these, is derived from the Act of Parliament, and that therefore the terms of the Act must be strictly limited to British subjects and British vessels only; otherwise it would include every offence committed on board ships of all nations, American, Russian, or any other which might visit these seas, every act committed on board which would be subject to the controul of the Court here. In respect to the third, he pressed that there was no proof whatever of any previous intention by the prisoners to destroy the Captain, and that therefore they were entitled to the benefit of the absence of any evidence against them, as the utterance of the words, "throw him overboard." The learned Judge considered himself bound in the discharge of his duty, to overrule all Mr. Ross's objections. His Honor admitted that Lord Hale had laid it down, that it was necessary in order to convict for murder, either to produce the dead body or to prove the death, and that that doctrine had been adhered to by English Judges in more than one instance. But His Honor considered that in such a case as the present, it would be impossible to convict, where the Capt. Might be thrown overboard, when the ship was going swiftly through the water, or on the night, when the body of the murdered person could not be seen, and the only proof of the murder might be the actual throwing overboard. "It is," said His Honor, with great feeling and emphasis, "for the Jury to decide in this case whether they will give the unhappy men at the bar benefit of any doubt as to the fact whether Captain Bragg had been picked up, and still alive. I wash my hands of all responsibility thereon. It is for you, Gentlemen of the Jury, to weigh well whether you will consign these three men to the executioner, for that must be the certain consequence of you verdict of guilty. The Executive in such a case as this can have no alternative. The law must take its course if you find the prisoners guilty. Yours is the responsibility, and you will therefore well consider the verdict you are about to return. The Jury retired for ten minutes, and then returned the verdict, Guilty. His Honor then proceeded to pass the dreadful sentence of death upon the three unhappy men. He implored then in the most feeling terms, to make the most of the short time allowed them by the law, to supplicate the mercy of the Creator. He referred to the provisions of the law against murderers, by which they were prohibited from all intercourse with their friends, to be fed only upon bread and water, and to have their bodies anatomized. He besought them to take advantage of the spiritual assistance they would receive from the Rev. Mr. Bedford (who was on the bench, in the opinion of many that although no doubt with the best kindest intensions, yet in not the most accurate taste)            who he was convinced would be with them the moment they were removed from the Court, and to whom he entreated them to confess all their offences, and particularly that for which they would pay the forfeit of their lives.

            Prisoner Hibbill. - I am ready to confess it now. I threw him overboard. I did it to save my own life. I have saved it for the short time I have since lived, for I know well, from Captain Bragg's threats, that he would have taken mine when I got to New Zealand, and I should have been eaten!

            Mr. Justice Montagu continued his very solemn address. He denied that there was anything which could discover in the Captain's conduct to justify such apprehension. His Honor repeated his solicitations to the prisoners, to prepare for the awful change which awaited them, and ended a most impressive address, which produced breathless attention in the crowded Court, by passing sentence of death upon the prisoners in the usual appalling terms, to be carried into effect on the next morning but one (yesterday.) It is understood, that in the course of Wednesday, Mr. Justice Montagu, with an anxious desire to give the unhappy men every possible benefit which could arise from Mr. Ross's objections, consulted His Honor the Chief Justice thereon, the result was, that after a long and most anxious consideration of those objections, a respite was received at the gaol at midnight of Wednesday until this day.

            The unfortunate men have conducted themselves uniformly from their arrival with the utmost firmness and resignation. They persisted in their having been under the impression that it was Captain Bragg's intention to act with equal severity towards them on their arrival at New Zealand, even to the extent of giving them to the natives. It is a lamentable affair altogether. We cannot but hope that the throwing the unfortunate Captain Bragg overboard, was the effect of a sudden impulse, rather than of pre-arrangement. Even if their lives are saved by the accidental defect in the information, a terrible example is afforded equally of the necessity of mild and humane deportment in those in authority, as of the certain fatal consequence which inevitably follows to those in subjection, of resisting that authority, or of giving way to the impulse of the hateful passion of revenge, even for real, much less apprehended injury.

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            Their Honors the Judges, after the most anxious consideration, felt themselves compelled to overrule Mr. Ross's objects, and the dreadful sentence of the law was carried into effect this morning.

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