# A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 6

CHAPTER VI.
ON THE HIGH SEAS.
Authorities.—Despatches etc. (especially for 1817) in Colonial and Record Offices and Sydney Gazette. P.P. 1812, II.; 1819, VII.; 1822, XX.; 1823, X. Jenkyns (Sir H.), English Rule Beyond the Seas.
Though the Judge-Advocate had a Commission as Judge of the Court of Vice-Admiralty, there were but few matters with which his court, being one of instance only, could deal. There was, for example, no Commission giving jurisdiction in cases of prize, and when, during the American War, British vessels put in bringing prizes for adjudication, they had to be sent on to India or Ceylon. The court might take cognisance of "all breaches of the laws of trade, navigation and revenue, as well as suits for the recovery of seamen's wages". There was, however, a great ignorance of Admiralty law in Sydney, and in point of fact the only case brought before the Court of Vice-Admiralty from 1810 to 1821 was that of the Tottenham in 1818. Questions of seamen's wages were generally submitted to the magistrates, and the Judge-Advocate's Commission was thus for all practical purposes non-existent.
Macquarie had, of course, no control over commanders of the Navy, and occasionally found his powerlessness in this respect inconvenient, though visits from King's ships were not frequent. During the war with America a few put in for refreshments and repairs, and amongst others the Samarang, sloop of war, with Captain Chase in command. He brought with him from India a supply of £10,000 worth of silver dollars for use in the Colony, and stayed some time in the harbour, "most tyrannically trampling upon the personal freedom of His Majesty's ​subjects". The truth was that Captain Chase was preparing to take the sea once more, and not wishing to fall in with an American vessel without his full crew on board, was filling vacancies by the method of the press-gang. As he kept to his ship, and as pressing for the Navy was legal, Macquarie could not restrain him, and by Chase's orders men were impressed "both afloat and ashore". The Governor pointed out to Lord Bathurst how unsuitable was the "Impress Service" to a country where the "great mass of the population is made up of Convicts," to press whom was "at direct variance with the object of their transportation". The Secretary of State agreed and made representations to the Admiralty, but as the war soon came to an end no more was heard of such practices and the matter dropped. Except for naval store-ships coming to New South Wales or New Zealand for timber, or vessels on voyages of discovery, the whole territory lay beyond the track of the Navy. It was in the trade with New Zealand and in the South Sea Islands and in transportation of convicts that the limits of the jurisdiction of the courts of New South Wales were most severely felt.
The traders in the South Seas were rough, adventurous men ruling with foul speech and brutal punishments their wild and turbulent crews. The annals of the Pacific are filled with stories of murder and revenge. They tell of outrages on the natives followed by fierce reprisals, mutinies successful or unsuccessful alike ending in bloodshed, and scarcely credible oppressions practised by the captains on their crews. Macquarie's missionary-magistrates had jurisdiction only when crimes were committed on land. Even then, being wholly without coercive powers, they could do nothing effective. In New South Wales itself there was no court which could take cognisance of offences committed on the Islands or on the High Seas. The only thing ​that could be done was to hold an investigation into any charge brought against a ship's master or crew—a purely magisterial inquiry which was only effective if followed by committal and then the trial of the accused in England.
The case of Theodore Walker illustrates many of the evils of the South Sea trade, and shows how incurable they were while the scope of the colonial courts was so restricted.
Early in 1813 a small vessel, the Daphne, was trading in the South Sea Islands. At Otaheite the master added to his crew by carrying off four or five natives. These natives, joining with some coloured men of the ship's company, mutinied, killed the master, took possession of the vessel, and either killed the remainder of the crew or put them ashore without food or water on adjacent islands. Some of them, however, survived, and spread the story of the mutiny. The death of the master, said Macquarie, though lawless, was no more than fitting retribution, for he had been guilty of the most wanton and vicious crimes. On one occasion some friendly natives came on board his ship to trade with him, and looked with the greatest respect and curiosity at all it contained. The captain, wishing to get quickly away, ordered the crew to clear the visitors from the ship, and they were flogged and beaten off. Their canoes had meanwhile been swamped, and the natives, unable to get to them, were drowned in full view of the Daphne as she stood off to sea. The savagery to which her captain afterwards fell a victim could scarcely equal the cold cruelty of this episode.
The crime of mutiny did not go unavenged. A short time afterwards, when the Daphne was in the Bay of Islands, the brig Endeavour, Theodore Walker, master, came into harbour there. Walker at once attacked the mutineers, and after some shots had been exchanged the firing from the Daphne ceased, and word was brought that her crew had abandoned her. Walker boarded the ship immediately and ordered a search. One man, a Lascar, who had been one of the leaders of the mutiny, was found in hiding. Walker ordered him to be taken on board the Endeavour and hanged him at the yard-arm. Henry, one of the missionary magistrates, reported these events to Macquarie, November, 1813, and the story was known when Walker reached Sydney. The Governor ordered the magistrates to ​hold an inquiry into the death of the Lascar, as a result of which Walker was committed to gaol until future proceedings might be decided upon. The evidence was sufficient to support a charge of murder, and, on the advice of the Judge-Advocate, Walker was admitted to bail, and the matter referred to the Secretary of State.
Lord Bathurst consulted the Home Office and the Law Officers, and in July, 1815, instructed Macquarie to send Walker and the necessary witnesses to England in order that he might be tried at the Admiralty Sessions under a special Commission.
It was not easy for the Governor, when he received these instructions at the end of 1815, to get together the witnesses who had been examined by the magistrates in 1813, nor could they be compelled to go to England. In the end he sent Walker home with as many witnesses as he could. Nothing further appears of the case in any Colonial Office Documents. It seems that Walker was never tried, and the only result of Macquarie's labours was the ineffective Act of 57 Geo. III., cap. 53.
By this Act "murders and manslaughters committed on land at the settlement of Honduras by any person within the settlement, or committed on the islands of New Zealand or Otaheite or within any other islands or places not within the British dominions, nor subject to any European state or power, nor within the territory of the United States of America, or any person sailing in or belonging to a British ship, or who had sailed in or belonged to and had quitted any British ship to live in any such island or place, might be tried and punished in any ​part of the dominions of the Crown under the Act". But the scope of the Act was restricted and no Commission issued for the trial of such offences nearer than Ceylon. Bigge reported that it might be efficacious if extended so as to cover all offences committed by British subjects on the high seas, and if a Commission were issued for their trial in New South Wales. But up to 1822, at any rate, the Act had never been enforced.
There was, however, in the transportation of the convicts, a whole chapter of events taking place on the high seas which had a peculiarly strong interest for New South Wales. It was practically impossible between the Colonial Government, with its limited jurisdiction, and the Home Government, so remote from the point of disembarkation, to enforce efficient safeguards for the good treatment of the convicts. The statistics in themselves suggest that, due consideration being had to the sentiments and appliances of the period, the service was not badly carried out. From 1810 to the end of 1819, 18,761 convicts were despatched to Sydney, and only 236 died on the voyage. But now and again this favourable picture was obliterated, and in the light of judicial inquiry horrors such as those on board the Chapman, or hideous depravity such as that on the Friendship, took its place. These inquiries made only too clear the helplessness of the Government adequately to punish or prevent.
Between 1810 and 1820 many improvements were made in the organisation of the transport service. In 1812 it was carried out by a Transport Board under the orders of the Treasury and Home Office. The Treasury sent an order to the Board to take up vessels which were engaged through the underwriters at so much a ton for the voyage. Provisions were supplied for the convicts for the voyage and for nine months after their arrival by the Victualling Board. The convicts and their services were assigned to the master of the ship, who had ​complete control over them during the voyage. The master of the ship and the owners signed a Charter-party whereby the master was bound to hand over the convicts in safety to the Governor at the end of the voyage and was liable to heavy penalties if he did not. He was also bound by Instructions from the Board to fit up the ship in particular ways for the reception of the convicts, to allow them on deck as much as possible, and to note in his log-books all that happened on the voyage. The log-book was submitted to the Governor's inspection at Sydney, and if he was satisfied that the master had carried out his contract satisfactorily, treating the convicts fairly, serving out their rations regularly and in the right amounts, he gave him a certificate to that effect. If no certificate were given, or if the Governor gave a bad report of the master's behaviour, he might be prosecuted in England or lose part of the payment for his services. If the certificate were in order, however, he received an honorarium from the Treasury. The owner or master of the transport was under the further obligation of providing a surgeon, whose duty it was to care for the health of the prisoners, and to keep a full and particular diary of the voyage. This diary also was submitted to the Governor, who might, if he felt any suspicion of its genuineness, require the surgeon to make an oath on the subject.
The duty of the surgeon was to keep the convicts in good health just as that of the master was to keep them "safe," and the surgeon received a reward if the Governor's certificate was satisfactory. It was, of course, a very difficult thing to decide whether illness on board was or was not the fault of the surgeon. On the General Hewitt there was an outbreak of fever and great mortality, but Macquarie, after an inquiry held in Sydney, did not consider himself justified in withholding the surgeon's certificate. The Home Office, however, refused to recommend him for a gratuity to the Treasury, and the Under-Secretary wrote to Goulburn asking that Macquarie should be more strict in future. In 1815 a change was made and the Government ​placed the convicts in the charge of a surgeon-superintendent appointed by the Transport Board from the naval surgeons. This officer was responsible, not to the master of the ship, but to the Board. The guard of soldiers who always accompanied the transports, and were usually under the command of a young officer of the rank of lieutenant, was under the joint control of the surgeon and the captain. The naval surgeon was a great improvement on former transport doctors, and the death-rate fell considerably. At the same time the system introduced a new difficulty by dividing the power between surgeon and master. This difficulty was in no way lessened by the new and more detailed Instructions issued by the Board in 1819.
"The two points," wrote Bigge in his first Report, "on which such a collision of authority have most frequently occurred are the admission of the convicts to the deck, and the taking off their irons at an early period after leaving England; both, it has been observed, of considerable importance to the maintenance of their health and discipline.
"It is to the interest of the surgeon-superintendent to deliver the number entrusted to him in a good state of health; it is to the interest of the master to deliver them only in safety; and the heavy penalty into which he enters, for the punctual fulfilment of this part of his duty, must naturally outweigh the contingent value of the remuneration that is promised for his general good conduct and humane treatment; or the consideration of prejudice or loss that an opposite line of conduct may occasion to his owners. It is the opinion of Mr. Judge-Advocate Wylde, that to remedy these doubts and discussions which take place between the masters and surgeon-superintendents ​of convicts, the authority of the surgeon should be more defined, and that to him should also be given the property in their services and the safe custody of their persons."
Bigge thought that such a course would have been a dangerous one, for the master who was responsible for the safe navigation of his ship should have power to interpose whenever he considered it endangered by any concessions or laxity of discipline amongst the prisoners. He thought the only remedy lay in the fearless exercise by the surgeon of the right to enter in his journal any refusal of the master to do what the surgeon considered necessary for the health and fair treatment of the convicts. If the master and surgeon agreed in treating them badly there was no remedy.
From 1810 to 1820 the average length of the voyage was four months. No description can include all the variety of good and evil conditions which existed on different ships. The character of master and officers affected the convicts no less than that of the surgeon-superintendent. But in general outline life on one transport differed little from that on another. The convicts slept in long prisons below deck, in bunks and hammocks. In these prisons they worked and ate their food and spent the greater part of the day. They were allowed on deck in small parties, well guarded and for but a few hours at a time. When they first came on board they wore double irons, but these were usually struck off as soon as the voyage commenced. They were occasionally replaced as punishment for insubordination or disobedience, and corporal punishment was often inflicted. The surgeon was bound, however, to make an entry in his journal of all punishments. The hospital which was fitted up on each transport was a favourite resort, for there discipline was relaxed and more liberal rations given. But the surgeon had stringent instructions only to admit those who were suffering from severe or contagious diseases.
The voyage must have been intolerably tedious. The men ​came, not from the disciplined prisons of the present day, but from the ill-regulated gaols and hulks of a hundred years ago. There life had been brutal and squalid, but full of excitement. On the transport there were long days of idleness, varied by agonies of sea-sickness. As they became used to the movement of the ship they found no way of filling the hours save gambling (nominally forbidden), quarrelling and plotting. The plots ranged from mean tricks to get another man's rations or to get an extra hour on deck, to conspiracies to gain possession of the ship and sail to far-off climes. The surgeon usually kept a school for the boys and such of the men as cared to learn to read or write. Far more fascinating must have been the school of crime of which the old and seasoned convicts were dominies and ushers. There they learned a new tongue, that strange and debased English which has a peculiar vigour in spite of its sordidness. Some of the surgeons compiled vocabularies of this thieves' patter or "flash" slang. These, and some rather frivolous collections of anecdotes, are all that remain of their observations—for a unique opportunity for the student of criminal psychology was wasted in the hands of the naval surgeons.
A scanty supply of bibles formed the prison library, and a few of the convicts hoarded greasy volumes, telling tales of crime and horror, which would have been confiscated on discovery. No occupation could be permitted for which tools which could be turned into weapons of offence were necessary, and by 1820 no surgeon had discovered any employment not requiring them. The men were in this respect worse off than the women, for the latter could at least sew.
The fear of mutiny made convict transports insecure for the conveyance of passengers, though as a matter of fact no mutiny did actually occur in these years. It was, however, a good introduction to service in the Colony, for the voyage provided ample opportunity for gaining a knowledge of part of the population. While probably the worst type of convict was most prominent on board the ship, it must be admitted that many ​behaved with a quiet resignation and decency which commended them to officers and passengers.
The treatment of the female convicts differed little from that of the men. There was no punishment by flogging, nor were the women put in irons, and the usual punishments were the wearing of a wooden collar and in extreme cases the cutting of their hair.
The chief evil on the female transports was of a very insidious and terrible nature. The usual conditions of the voyage were first made known to the Colonial Office through a letter from Nicholas Bayly, a gentleman-settler, to Sir Henry Bunbury. "Women and sailors," he wrote, "live together on the ships coming to the Colony, and remain on board when the ship gets into port until it leaves."
The Secretary of State was genuinely horrified and directed Macquarie to make immediate inquiries. This was but one of several complaints made by Bayly, and anonymous extracts from his letters were included in Lord Bathurst's rather peremptory despatch. Macquarie at once concluded that Marsden, with whom he was on the worst of terms, had written the letter, and was furiously angry.
"… I need only appeal to your Lordship's candour," he wrote, "with the question: How is it possible that I, dwelling in New South Wales, can prevent or be answerable for the prostitution of the female convicts antecedent to their arrival within my Government. … All therefore that remains for me to remark … is that I have never for an instant, directly or by connivance, sanctioned or allowed any prostitution of female convicts, after their arrival in this Colony."
The case of the Friendship a few months later made it perfectly clear that he was well aware of the circumstances. This vessel carried female convicts, and when it came into port the complaints of some of the women and the report of the surgeon ​caused Macquarie to order a magisterial inquiry. Already one inquiry had been held into the conduct of officers and crew at St. Helena by a British admiral stationed there. But the surgeon wrote to the Governor "from whatever circumstances that transpired at the investigation the effrontery of the aggressors was considerably increased, and every act of profligacy appeared to have received the sanction of law, ocular demonstration being considered indispensably necessary for conviction; and even then it was held that there was no power vested in the authority of New South Wales to punish the offenders."
The Bench of Magistrates at Sydney absolved the master of the ship and the surgeon-superintendent of all blame, saying that they had done what they could to restrain the officers and crew.
In his report to Lord Bathurst, Macquarie said: "Your Lordship will perhaps conceive … that I have been aware of these abuses having frequently existed heretofore, and of course that I should have reported them before the present time. In explanation, I have only to observe that the present time is the first occasion where the facts have been brought to view at all, whilst there is reason to apprehend that on similar occasions the officers were as generally guilty as the crews, and that a good understanding was thereby preserved between all parties, and of course no complaints were made." "It is true," he continued, ​"I have incidentally learned that such malpractices did exist among the men and women in some of the female transports, but I have not felt myself warranted in making any direct report of such circumstances until the present time, as no complaints were made to me thereon."
He suggested no remedy, though he expressed himself as eager to carry out any directions which his Lordship might give "in order to save the poor unprotected creatures from being involved in a profligacy during the passage which perhaps the natural inclinations of many of them might be averse to, but which, I have no doubt, when once forced upon them, will tend strongly to render them abandoned during their future lives".
With all his humanity Macquarie never displayed genuine interest or care for these women. He seemed to turn with loathing from the terrible subject. He knew his prohibitions were disregarded, but he made as few inquiries as possible, as though he feared to touch one abuse lest a thousand should show themselves.
Bigge believed that the evil might be brought to an end by giving the master more control over his crew in this respect, and power to the New South Wales magistrates to punish them further, if necessary, by forfeiture of their wages, right of appeal being allowed to the Court of Vice-Admiralty at Sydney. This, however, would not have touched the evil when the master himself was implicated.
Macquarie was unsparing in hunting out the perpetrator of any crime against the male convicts, and no more awful example of the tragedy possible under the system of transportation could be found than that afforded by the case of the Chapman.
The arrival of this transport with Captain Drake in command from Ireland on the 26th July, 1817, was the signal for a remarkable outburst of feeling throughout the town of Sydney. The publication of the Gazette was delayed a little that news of the arrival might be inserted, for the shipping news was, of course, ​of great interest to the people of this remote Colony. In this instance there was a thrilling adventure to report: "The complement of prisoners received on board the Chapman was nearly 200," said the Gazette, "seven of whom, we have unhappily to deplore, were killed in a daring mutiny, and a number of others wounded. The attempt was made to take the ship, and what is still more terrible to relate, the mutineers were joined by several of the ship's company; who, with the ringleaders, have been kept in confinement ever since." Such was the story circulating in the town that evening.
The muster was not held immediately, and on the 30th July Campbell, the Governor's Secretary, wrote thus to Captain Drake:—
"The Surgeon-Superintendent of Convicts on board your ship … informed me yesterday that you had declined striking the irons off the convicts previous to the muster which I am to hold on board to-morrow morning unless you received special instructions from me." He therefore desired that unless there was strong cause to apprehend danger the usual custom should be complied with and the men relieved of their irons.
He received no answer to the letter, and when he went on board next day found that his request had not been complied with. Drake said "he had received them in irons and would land them in irons". Campbell then proceeded to the work of the muster, and carried it out with such thoroughness that it occupied him for fully two days.
The condition of the men who had worn double irons for almost the whole voyage was such as to move him to pity and anger. The more he pressed his inquiries the more cause did he have for indignation. For the first month, from 17th March to 12th April, nothing had gone seriously amiss. But on the 12th, two of the convicts reported that the rest of the prisoners were conspiring to take the ship. On the night of 17th April an alarm was given that they were trying to force the grating of the hatchway which formed the prison door. It was a hot night, and the convicts were many of them lying on the floor of the ​prison where it was cooler than in the bunks. When the alarm was given the soldiers fired and continued to fire for some time through the grating. They killed three men and wounded twenty-two. Frightened to go down in the dark, the surgeon left the wounded and the dead uncared for through the long stifling night. From that time only half rations were served out, and every night seventy (sometimes a hundred) men had been chained naked to an iron cable in the prison. These were the chief facts reported by Campbell to the Governor in one of the most terrible documents of the convict times.
The master and surgeon had acted throughout without waiting for proofs and in blind terror. There was much reason to doubt whether there had ever been any real cause for this terror, whether a plot had ever been formed, and whether the story of two tale-bearers, confirmed by conversations overheard by terrified and suspicious men, had not been a complete fabrication.
When Macquarie received the report he was much disturbed. An examination of the hatchways made it quite certain that no attempts had been made to force the gratings. That much being known, he determined to detain the Chapman until further inquiries had been made, and Captain Piper, the naval officer, was instructed to retain the ship's register and not to let it out of his hands without special authority from the Governor. "The object of this injunction," wrote Campbell, "is to guard against any risk of the master of the Chapman endeavouring to escape from the harbour, which would be facilitated by his possessing the register." This was on the 9th of August, and four days later Macquarie appointed by warrant a Court of Enquiry, consisting of Judge-Advocate Wylde, D'Arcy Wentworth, Superintendent of Police, and J. T. Campbell, the Secretary, to investigate the occurrences of the voyage. The court had power to demand the presence of witnesses, to administer oaths and require the production of documents.
"Not having any court in this Colony," wrote the Governor to Lord Bathurst, "competent to take final cognisance of crimes ​committed on the high seas, I will feel it my duty so far to exercise the general powers with which I am entrusted for the protection of His Majesty's subjects in the territory as to send home prisoners these persons who shall be deemed most criminal (if criminality be attached to the proceedings by the Court of Enquiry), for your Lordship, and His Majesty's Government, to adopt such measures thereon as may appear due to the circumstances of the case."
The court met for the first time on the 20th August and closed its proceedings—protracted by reason of Wylde's other judicial duties—on the 4th of October.
The period was not a tranquil one. The position of the officers and crew of the Chapman was dangerous, for the Sydney people knew, most of them from personal experience, the miseries of the voyage and the helplessness of the prisoners under harsh discipline. Stories told by the convicts from the Chapman were repeated in every tavern, and it was little wonder that there was talk of vengeance in the air. Drake, the master of the Chapman, wrote to Campbell on the 19th August:—
"In consequence of ill-treatment my ship's company have received from the people here, particularly on Sunday night, when several of them were unmercifully beaten, and their lives threatened, as was mine and my officers, and as we are to attend to-morrow at the court-room, I beg you will have the goodness to give us protection to and from that place. Several of the people on shore were heard to say last night, that to-morrow should be their day for revenge and that they would have my life. Under these circumstances I beg you will take it into consideration."
Campbell asked Wentworth to provide special police protection, and told Drake of the arrangement without concealing his contempt and scepticism; but there is no reason to suppose that Drake exaggerated the case.
The forced detention of the Chapman of course caused the captain great loss and injury, and he was probably uneasy as to the result of the inquiry. While Macquarie was at Parramatta, and Lieutenant-Governor Molle in charge at Sydney, Drake ​made an attempt to leave the port. Molle and Macquarie were on bad terms, and Campbell, always very faithful to his chief, was anything but cordial to the Lieutenant-Governor; but at midday on the 2nd September he warned him that the Chapman was to be carried off the next night. No attempt was made, however, until next morning, when she "hoisted a Blue Peter and fired a gun as a signal for her leaving the port". Molle did not know what to do, and sent round to Campbell, who refused to assist or suggest. He pointed out that he had warned Molle the day before, and as he had not heard what measures had then been taken, he could not presume to offer advice on the situation.
Molle then sent a military guard on board with orders to fire on the officers "in case the ship offered to move".
On the 4th September, Drake wrote to the Governor stating that his ship was ready for sea and demanding the cause of detention; and not receiving an answer, applied to the Judge-Advocate. He learned that certain officers must be detained, but the ship might depart as soon as he had replaced them. On the 24th he asked for the ship's register, and the naval officer of course refused to give it up.
"I stated," Drake wrote to Macquarie on the 14th October, "to the Special Committee … on the 4th instant, that I had nothing further to offer in evidence. The same indecision seems still to pervade their councils, the ship's register is withheld, the ship is occupied by a military force and laying at heavy expenses ready for sea." He wrote again in a similar strain on 28th October. The Secretary replied: "I have it now in command from his Excellency to inform you that he cannot possibly interfere in your case until the Court of Enquiry shall have reported on the circumstances of the charges alleged against you. His Excellency desires it to be perfectly understood that the detention of certain officers of the ship Chapman on criminal charges need not at all interfere with the ship proceeding ​conformably to the port regulations from hence … on proper officers being appointed to take charge of her."
Drake wrote again, and his letter concluded in these words:—
"If there be specific charges against any of the officers or crew of the ship Chapman, I have to solicit that those of the officers and crew of the said ship so charged be withdrawn from on board by the proper authorities, that arrangements may be forthwith made for their being properly succeeded in their different stations on board."
It was the difficulty of deciding on the specific charges which was the cause of the delay. Though the court held its final sitting on the 4th October, it did not report to the Governor until the 17th November. On the 9th, Wylde wrote to him describing his efforts to obtain a unanimous report, but he was unsuccessful, and on the 17th Campbell presented one report and Wylde and Wentworth another.
On many points the same views were put forward in both. No proof had been forthcoming that a mutiny had ever been projected. The means taken to arrest what those in command deemed to be mutinous attempts (though on amazingly little evidence) had been far in excess of necessary self-defence. One night an alarm was given that the convicts were trying to seize the boats, and that night four innocent men were shot down. The alarm was proved at the inquiry to have been utterly without foundation. The proofs of shooting by three soldiers of the guard were quite conclusive, and they were committed to the Sydney gaol to be tried for murder in England. It was in regard to the captain of the ship, the surgeon-superintendent, the officer of the guard, and the three mates, that the reports differed. Campbell proposed that these men should all be committed for trial on criminal charges of varying heinousness from murder downwards, and Macquarie concurred. He had read through the evidence, depositions, log-books and journals which had been before the Court, and discussed the matter with Campbell and probably with Field, the Judge of the Supreme Court. Field had also communicated his opinions to Wylde, ​who had sent him notes of the evidence, and on this occasion Field and Macquarie had been in agreement.
Thus fortified in his opinion, Macquarie wrote to the Judge-Advocate, so soon as he had received the reports, that he felt himself compelled by his sense of public duty "to dissent entirely from the opinion given by you and D'Arcy Wentworth, Esq. … as to the degree of criminality of the parties concerned, and of there not being sufficient grounds for committing them for trial in England. … I feel it my indispensable duty to request you will as soon as practicable reassemble your Committee of Enquiry for the purpose of revising your own and Mr. Wentworth's report. I must also request that the Hon. Mr. Justice Field may be solicited to join the Committee and give his legal opinion as to the course which ought to be adopted in regard to the commander of the Chapman, the surgeon-superintendent, the officer commanding the military guard, and three mates of the Chapman, one of whom, Mr. Baxter, appears to have been the most active and sanguinary in the long series of cruelties and atrocities committed on board the Chapman." There followed a paragraph of which the unconscious and impertinent patronage must have made Wylde's blood boil. "After having revised your report," wrote the Governor to his chief Law Officer, "and added thereto the Hon. Mr. Justice Field's legal opinion, I request you will favour me as soon as possible with the result, that I may adopt such measures as may then appear expedient on the occasion." Thus Wylde was to learn worldly wisdom from Mr. Campbell and law from Mr. Justice Field.
Field wisely declined to join the Committee. "I beg leave to submit to your Excellency," he wrote, "that not having had the benefit of hearing all the evidence and inspecting all the documents before that Committee, it is too late for me to come in as a member of the Committee, and give an opinion against ​that of two members who heard all the evidence as it came from the mouths of the witnesses, and were able to judge of their veracity from their manner, which in trial is always considered as important as the matter, although it undoubtedly is less so in examinations in order to committal for trial. … I shall be very happy," he continued, "to give Mr. Wentworth my opinion upon the Criminal Law of any state of facts he may lay before me; but if he, as a magistrate, has any doubt whether certain facts amount to murder or not in law, it is his duty to commit for trial and the opinion of the judges, and not to take upon himself to dismiss. … As far as the Judge-Advocate, it is not for me to presume to advise him: at your Excellency's request, I read the whole of the evidence and the superintendent's journal: upon these I had no doubts of the steps which ought to be pursued, and wrote two friendly letters of advice as to the law and facts to the Judge-Advocate. … But if after Mr. Wentworth is apprised of my legal opinions he shall still persist in the tenour of his report, I can only say that I shall be most happy to give the same opinion publickly and officially to your Excellency which I have given privately and friendlily to the Judge-Advocate."
Wylde himself replied to the Governor with admirable patience and restraint. He pointed out that in his report he had "not gone the length of asserting the opinion that there was not sufficient grounds for committing the parties concerned … for trial in England," but only that there was not sufficient evidence "to justify the commitment of the officer of the guard, the superintendent, or the master of the ship, on a charge of murder or on any other charge of a criminal nature, as would exclude them from being admitted to bail thereon". He expressed himself as quite willing to meet Field, and he had already called a meeting of the Committee for the next day.
The Governor received this letter at a "quarter past ten in the evening," and replied early next morning that Wylde might know of Field's refusal.
The Committee met, and Wylde and Wentworth sent a ​message to the Governor by Campbell. The Governor then wrote to Wylde in the following terms:—
"I have received a communication from you by Mr Secry. Campbell to the effect that you and Mr. Wentworth feel yourselves so fully satisfied of the accuracy of your late report … that you do not conceive you can by any further revision be induced to alter it, and at the same time suggesting that in the present stage of the business, you can conceive that the proceeding most proper for me to adopt would be to call on you as chief Law Officer of the Crown to furnish me with your opinion and advice in regard to the measures to be adopted in the further prosecution of this affair." This advice Macquarie asked for and received a few days later.
Wylde proposed to send the officer in command of the guard and the surgeon, who held a naval commission, to England to answer either before a Court-Martial or a Court of Criminal Jurisdiction. To secure the due appearance of the master and three mates, he proposed to take recognisances or to hypothecate the ship. The latter course, which was the one adopted, "whether ultimately valid or not, is justified by the occasion and in terrorem". In the case of the three soldiers already mentioned, the ordinary course could be followed. The witnesses, he thought, should enter into recognisances of £100 each to appear when called upon, except, of course, the soldiers and convicts, who would simply be sent home by the Government.
There was a possible difficulty in regard to the arrest of the surgeon, but Wylde was of opinion that "whatever question might be raised as to his being amenable to a Court-Martial in respect of charges arising in service as a surgeon and superintendent of a convict transport during the passage, yet in consideration of the full and general powers of your Excellency's Commission as Governor, I can only give it as my opinion that your Excellency will be equally empowered and justified, upon the report made, to adopt, at least in limine, the same measure and proceeding as against Lieutenant Busteed" (the officer of the guard) "leaving Surgeon Dewar 'to be in England proceeded against and tried as the merits of his offence shall require'."
​Macquarie very reluctantly consented to all these arrangements except with respect to Baxter, the third mate, "who appears to have taken all along so very prominent and sanguinary a part in the various enormities committed on board the Chapman," and whom he wished to send home a prisoner.
The Judge-Advocate went into the whole matter once more. He thought this difference in opinion arose from the Governor's regarding everything which occurred on the whole voyage as one continuous act—"whereas it appears to me, that in legal consideration and principle—and your Excellency can be aware that I can know of 'Justice and Expediency' in no other sense—the occurrences necessarily divide themselves …" and must be considered separately. Baxter, he thought, was not sanguinary, and his prominence was due simply to the fact that the convicts were his especial charge. "If," he added, "your Excellency 'is so decidedly of opinion that he should be sent home a prisoner,' I am not aware of any reason why your Excellency should hesitate to act upon it, for I have already suggested, that it remains a mere point of discretion in the committing magistrate, and that under all the circumstances I am not prepared to say that the commitment of any of the officers, and of course of Baxter, would under any circumstances induce any consequences upon the magistrates to suit or indictment, and if not on a magistrate, a fortiori, I consider not on your Excellency as Governor—but such a step cannot consistently surely be taken by a magistrate who views the whole case in a light which reflects nothing of the wilful, malicious murderer, who breathes in malice prepense and moves not in apprehension and alarm, but in atrociousness, consciousness and purpose." Wylde could not conclude without giving Macquarie a short lesson, in somewhat involved phrases, on the correct judicial attitude. Referring to a passage in the Governor's letter, he said: "With respect to your Excellency's observation, that your opinion on this case has not been formed upon 'the influence of Mr. Justice Field's or any other person's opinion on the subject, however much I may and do respect that gentleman's high legal ​authority'—I beg leave, with submission, to express my hope, that your Excellency on reconsideration will be satisfied that the tendency of my observations as to any influence goes no further than as to legal construction and principle—not upon the facts merely, but on the facts as involving legal distinctions, proceedings, etc., and in this sense I trust I may be free from any apprehension that your Excellency would think it unfit to be observed that your opinion ought to be influenced—not upon the facts abstractly considered—but 'by high legal authority' on legal considerations and points arising from these facts—and to which I myself thought it due, on a difference of opinion, to enter so at large into the grounds, as was the only motive that urged me at all to the remark in general excuse and explanation. I trust that no assurance on my part will be requisite to satisfy your Excellency that I could not have any intention of even in the least remarking upon that independence of judgment and conduct which so peculiarly belong to your Excellency's measures and Government."
The Governor closed the correspondence in a conciliatory fashion, adopting all Wylde's proposals and expressing his feeling "that in such cases as the present, involving 'questions of a legal nature and construction,' it is peculiarly the province of the first Law Officer of this Government not merely to suggest but also to carry into effect the measures to be adopted for the ends of justice."
All the papers bearing on the case, the witnesses, including ten soldiers and fourteen convicts, the three soldiers and the two officers, were sent to England early in December. They arrived in June, 1818. The surgeon at once applied to the Navy Board to be released from his arrest. The Board wrote to the Colonial Office supporting his petition and stating that they could not find that he had been to blame for what had happened. The matter was referred to the Home Office, who decided that the surgeon must remain under arrest until the case had been inquired into by the magistrates.
The inquiry was held and a prosecution instituted against the three soldiers. In January, 1819, six months after their ​arrival in England, they were tried—and acquitted. Macquarie had later the humiliation of receiving through the Colonial Office the following letter to Goulburn from the Home Office:—
"I am directed to request you that you will call Lord Bathurst's serious attention to the public inconvenience which attended these trials. To omit several points of minor importance, it may be sufficient to particularise that it has been necessary to set at large no less than thirteen convicts (some of them of the worst description) who were sent to England as witnesses, but were incompetent without a free pardon to give evidence in this country. Lord Sidmouth is well aware that as Governor Macquarie is not invested with jurisdiction to try any offences committed on the high seas, no prosecution could in this case have been instituted in New South Wales. But his Lordship recommends that the Governor should be apprised of the serious inconvenience attending such a trial in England, and should be enjoined, in the event (Lord Sidmouth trusts the very improbable event) of the recurrence of so unfortunate a transaction as has led to the present inquiry, not to send a case for trial in this kingdom unless he shall be strongly impressed with the belief that the crime imputed to the accused will be proved to the satisfaction of a jury by a body of evidence worthy of credit."
When Macquarie had sent the last papers concerning the Chapman to England in 1817, he had written:—
"Altho' I cannot but despair of effectual justice being rendered by the mode I have, under the advice of the Judge-Advocate, been induced to adopt, yet I still hope that sufficient may be effected at least to protect the persons of convicts in future on their passage hither from the cruelties and violence to which they have heretofore been, in a certain degree, exposed, chiefly owing to the rude and boisterous description of men who generally command merchant ships, and to the little care they take to prevent their petty officers from exercising tyrannical and unnecessary severities towards them."
He little thought that the evidence which had been accepted ​in Sydney would be so scouted by a British jury, that the chance of punishing the men responsible for the infliction of three months' misery upon two hundred helpless prisoners would be so lightly weighed against the "inconvenience" of setting free thirteen criminals, or that the nightmare voyage of the Chapman would be dismissed quietly as "so unfortunate a transaction".
* ↑ D. 28, June, 1813, and D. 11, of 1814. R.O., MS.
* ↑ Bigge, Report II.
* ↑ Ibid., See Chapter V.
* ↑ D.8, 14th August, 1813. R.O., MS.
* ↑ See D. above and correspondence of C.O., MS., 1814.
* ↑ These vessels were of varying size, from 250 tons to 800 tons, for no vessel of less than 250 tons might navigate in these seas according to the East India Charter. The cargoes taken to the natives consisted of Bengal prints, slates and pencils, gunpowder and muskets. The Marquesas Islands, however, were so well supplied with muskets from America that they would take no English ones. See Appendix, Bigge's Reports. R.O., MS.
* ↑ e.g., the master of a ship would entice men to join his crew and then starve and ill-treat them, apparently for no reason save the gratification of his brutality. See case of "General Gates," Appendix to Bigge's Reports. R.O., MS.
* ↑ D. 1, 17th January, 1814. R.O., MS.
* ↑ In accordance with 46 Geo. III., cap. 54. This was an extension of the two statutes, 22 Hen. VIII., cap. 15, and 11 Will. III., cap. 7. The first of these gave power to try offenders of treason, felony, and robbery or conspiracy at sea to a Commission of Oyer and Terminer issued under the Great Seal. The second gave power to try piracies or robberies committed at sea by a Commission of Oyer and Terminer issued under the Great Seal either in the Colonies or at sea. The 46 Geo. III., cap. 54, extended this power to the trial of any offence committed at sea. Bent thought "it would be advisable either to issue a Commission for the trial of such offence pursuant to the statute" above, in New South Wales, or to establish there a Supreme Court of Judicature with power to take cognisance of such offences. Letter to C.O., 14th October, 1814. R.O., MS.
* ↑ D. 7, 18th March, 1816. R.O., MS.
* ↑ See Jenkyns, English Rule Beyond the Seas, 1902, p. 143.
* ↑ Bigge's Report, II.
* ↑ See Appendix, Bigge's Reports. R.O., MS. Figures of number of convicts landed only given up to end of 1820.
* ↑ See later in this Chapter.
* ↑ See Evidence of McLeay, Secretary to the Transport Board, before the Committee on Transportation, 1812.
* ↑ This provision for use in the Colony was discontinued before 1819. See Chapter V. Hospital comforts, clothes and bedding, were also put on board.
* ↑ See later for effect of this clause in the Instructions.
* ↑ See Instructions to Masters and Surgeons from Transport Board, issued in February, 1812. See C. on T., Appendix.
* ↑ More than forty died and sixteen were landed ill.
* ↑ See Beckett to Goulburn, 19th December, 1815. R.O., MS.
* ↑ This was done at the recommendation of Dr. Redfern (of N.S.W.), who had reported to Macquarie on the case of the General Hewitt, and suggested this amongst other improvements. See MS. letter in R.O. Correspondence for 1814.
* ↑ From 1810 to 1815— Number embarked. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,178 Number of deaths. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 From 1810 to 1820— Number embarked. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,583 Number of deaths. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 See Returns in Appendix, Bigge's Reports. R.O., MS. See Evidence of Dr. Bromley, C. on G., 1819, which clearly shows the improvement which had taken place. He used to keep the whole number of convicts on deck during the day, but that was an unusual course.
* ↑ Bigge's Report, I.
* ↑ Ibid.
* ↑ The boys slept five in one berth and the men four. See Evidence, Bromley, C. on T., 1819. See also Evidence of Bedwell before C. on G., 1819. He had gone out as surgeon in 1812, and stated that the men slept six in a berth of 4½ feet by 3½ feet.
* ↑ Judge Field wrote in reference to the Chapman in 1817: "… The question is not whether the free men believed the convicts intended to take the ship, which I make no doubt the former did believe, and think it very likely the latter did intend, as perhaps there never was a ship full of convicts yet that did not intend—if they could". See Field to Wylde, 29th September, 1817. R.O., MS.
* ↑ Men recommended by master or superintendent were supposed to be treated better than other prisoners on arrival at Sydney, but it is doubtful whether such recommendations were of value. Men who behaved well on the voyage frequently turned out badly. See Evidence of Principal Superintendent, Appendix Bigge's Reports. R.O., MS.
* ↑ Bayly to Bunbury, 13th March, 1816. R.O., MS.
* ↑ Bathurst to M., D. 82, 24th January, 1817. C.O., MS.
* ↑ D. 32, 4th December, 1817. R.O., MS.
* ↑ These inquiries were not infrequent and were held at the Governor's order to investigate complaints made by any of the officers or by the convicts at the Secretary's muster or afterwards. Thus in the case of the Janus in 1819, an inquiry was held in consequence of complaints made by Bayly, to whom two women who had been assigned from that ship as domestic servants confessed that they had lived with the captain and surgeon throughout the voyage. See Bigge, I., and Bayly to C.O. 1819, R.O., MS. The right of the magistrates to hold these inquiries was based on the instruction which allowed the Governor to make the surgeon swear to the truth of his report. See above. See also Wylde's Evidence, Appendix to Bigge's Reports, R.O., MS. and Bigge's Report, I.
* ↑ D. 1, 3rd March, 1818. Enclosure, R.O., MS.
* ↑ Ibid.
* ↑ D. 1, 31st March, 1818. R.O., MS. When convicts and those who were set over them conspired together it was difficult to punish the guilty. Several times the men, e.g. were given short rations and then bribed or promised bribes so that they should not complain at the muster. On two occasions these promises were not fulfilled, and then the men complained. The magistrates held in such case the masters and surgeons were no more guilty than the prisoners who had been, as it were, accomplices, and therefore dismissed the complaints. This was, of course, an error, for the masters and surgeons had been guilty of dereliction of duty in disobeying the instructions of the Board whose servants they were, and in not carrying out the stipulations of the Charter-party.
* ↑ e.g., the state of the wool factory where the women worked at Parramatta was disgraceful. A new factory, which had been urgently required since 1815 (when the need was pointed out to Macquarie by Marsden), was built in 1819, but was little better than the former one. See Bigge's Report, I.
* ↑ 30th July, 1817. Enclosure to D. 29, 1817. R.O., MS.
* ↑ Campbell's Report to Macquarie, 1st August, 1817. Enclosure, D. 26, 1817. R.O., MS.
* ↑ 4th August, 1817, D. 29, 1817. R.O., MS.
* ↑ Campbell to Piper, 9th August, 1817. Enclosure, D. 29, 1817. R.O., MS
* ↑ 13th August, 1817. Enclosure, D. 29, 1817. R.O., MS.
* ↑ D. 29, 12th September, 1817. R.O., MS.
* ↑ Drake to Campbell, 19th August, 1817. Enclosure, R.O., MS.
* ↑ Campbell to Molle, II., 3rd September, 1817. R.O., MS.
* ↑ Drake to Macquarie, 14th October, 1817. R.O., MS.
* ↑ J. A. Wylde to M., 20th September, 1817. R.O., MS.
* ↑ Drake to Macquarie, 14th October, 1817. R.O., MS.
* ↑ Campbell to Drake, 29th October, 1817. R.O., MS.
* ↑ Drake to M., 8th November, 1817. R.O., MS.
* ↑ Field was never friendly with the Governor, and by 1820 was scarcely on speaking terms. The division between them was due to the emancipist policy of Macquarie, and especially to the fact that when Field opened his Court early in 1817, Macquarie appointed Lord and Wentworth to sit on the Bench with him without telling him of the convict status of Lord and the all but convict status of Wentworth. See Field's Evidence, Appendix, Bigge's Reports. R.O., MS.
* ↑ Macquarie to Wylde, 17th November, 1817. R.O., MS.
* ↑ Field to Macquarie, 17th November, 1817. R.O., MS.
* ↑ Wylde to Macquarie, 17th November, 1817. R.O., MS.
* ↑ Macquarie to Wylde, 18th November, 1817. R.O., MS.
* ↑ Macquarie to Wylde, 19th November, 1817. R.O., MS.
* ↑ Wylde to Macquarie, 24th November, 1817. R.O., MS.
* ↑ Macquarie to Wylde, 27th November, 1817. R.O., MS.
* ↑ Quoted from Macquarie's letter, 27th November, 1817. R.O., MS.
* ↑ Wylde has "you," but clearly he means Macquarie, and as he is quoting from Macquarie's letter the pronoun has been altered.
* ↑ Wylde to Macquarie, 28th November, 1817. R.O., MS.
* ↑ Macquarie to Wylde, 29th November, 1817. R.O., MS.
* ↑ Secretary of State for Home Affairs.
* ↑ Hobhouse to Goulburn, 29th January, 1819. R.O., MS.
* ↑ D. 37, 12th December, 1817. R.O., MS.