Ten Rogues

by Peter Grose

  The court heard two more witnesses: the steward Nichols and the free man McFarlane. In the magisterial judgement of the Hobart Town Courier, ‘they added nothing to the facts’. It was now the turn of the convicts to speak for themselves. None of them made any attempt to challenge the prosecution witnesses’ version of events. In the words of the Courier:

  The prisoners in their defence, stated that they were compelled to join the mutiny, especially Lyon, who, it appears, was well acquainted with the navigation of that part of the coast; they laid considerable stress on the kindness they had shown Mr Hoy and his companions, particularly Shiers, who declared that his intention in rushing into the cabin was to save Mr Hoy’s life, by preventing any other person from taking it. Porter declared that the hardships they had endured, previously to their arrival at South America, were indescribable, and they all avowed that they had given themselves up to the Government there.

  The jury retired at about 6 p.m. They were back in half an hour with a unanimous verdict: guilty as charged. The court adjourned for two days without passing sentence, though there could hardly be much doubt as to what the sentence would be. The case held the colony spellbound. As the Courier put it:

  This case seems to have excited considerable interest; and the Court was excessively crowded during the whole trial. Lyon and Porter are intelligent and what may be termed ‘smart’ men; Shiers, apparently a quiet man, and Cheshire a weak lad. Porter was busily occupied in taking notes, of which he availed himself in his cross examinations.

  So the trial ended, with the inevitable sentence still to come. But then something quite remarkable happened. As is so often the case, commercial expediency joined the side of the angels and galloped to the rescue of the convicts. The convicts’ cause was popular with the public. Two local newspapers took it up.

  The most spectacular intervention came on 5 May, with still no sentence passed by Chief Justice Pedder. An article appeared in the Hobart edition of the weekly newspaper The Tasmanian, buried in a long report on the activities of the Legislative Council. As it was published a mere nine days after the trial had concluded and, given the detailed and sophisticated arguments put forward, the anonymous author must have given the case a lot of thought before putting pen to paper. The article was not simply a plea for leniency out of regard for the convicts’ non-violence and generosity. Instead it argued that the whole prosecution case was wrong in law. It was a clever legal argument, and the convicts had not used it in their defence nine days earlier. So The Tasmanian’s anonymous scribe must be credited with coming up with the winning defence.2

  According to the newspaper, for charges of piracy and mutiny to stick, the prosecution needed to find its way around three points. First, piracy can only be committed on ‘the high seas’. Second, for the seizure of a vessel to be a crime, the vessel itself must have proper legal status—it needs to be ‘registered’ if it is a merchant ship, or ‘commissioned’ or in possession of a ‘warrant’ if it is a King’s ship, and the necessary paperwork to prove this point had never been put forward by the prosecution. Finally, for mutiny to be proven, the mutineers must have refused to obey the orders of a person duly authorised, and recognised as such in some tangible manner by the accused. In the view of the newspaper, the prosecution failed on all three points.

  There could be no question that the Frederick had not been seized on the high seas. It was seized inside Macquarie Harbour. As any fool could tell, there was a ton of difference between a harbour and the high seas. Furthermore, the Frederick had as yet no warrant or commission from the King, and had not been registered as a merchant vessel. It was therefore not a vessel in any legal sense, so anyone seizing it had not seized a vessel. Finally, there was no evidence that either Captain Taw or David Hoy were duly authorised to command the ship, and certainly no evidence that their authority was ‘recognised’ in some ‘tangible manner’ by the convicts. So the conviction of the prisoners was unsound, and hanging them would be a monstrous injustice.

  What the men had done, according to The Tasmanian, was to steal a pile of wood belonging to the King. The old argument that if it looks like a duck, walks like a duck, and quacks like a duck, then it is a duck, had no place in the newspaper’s case. The pile of timber stolen by the convicts may have looked like a brig, and even sailed like a (leaky) brig, but that still didn’t make it a brig. For it to be a vessel in the legal sense it needed a warrant or registration papers, and there were none produced. For the convicts’ actions to be deemed a mutiny, there had to be authorised persons to mutiny against, and the convicts had to recognise their authority. There were no such persons.

  The Tasmanian went on to argue a more general point. When the system of transportation of convicts had been set up, the intention was that transportation itself was the punishment, in that it severed ‘every tie of kin and country which endears the human being to life’. There had been no suggestion in the original legislation that there should be ‘after punishment’ on top of the transportation. However, a custom had grown whereby the original British sentence of ‘transportation’ had morphed into a sentence of slavery in a far-off land. This was a cruel and unjustified additional punishment. As the newspaper proclaimed, shouting its verdict in CAPITAL LETTERS:

  Had such an announcement as this been made when the punishment of transportation was first adopted, the manly feeling of the British character would have risen in arms against such monstrously wicked cruelty! No! The transportation itself was the punishment—and dreadful indeed it is, easily pronounced as are the few words in which it is delivered; and UNJUSTLY, as in too many cases it is admitted to be pronounced.

  We will quote the words of Governor King, and those of all his predecessors and all his successors, until the monstrous doctrine became established little by little—for how true is the French proverb c’est le premier pas que coute [roughly ‘It’s the first step that costs the most’] that independent of the sentenced punishment of transportation to the Antipodes, there was another punishment to be added, SLAVERY, to be rendered WORSE THAN DEATH!—‘It is my business,’ said the original Governors to the Crown prisoners, ‘to keep you if I can, for you of course will get away if you can.’

  The newspaper argued that, in the face of the unproclaimed and unlawful additional brutal punishment handed out to those sentenced to transportation, punishment which went way beyond the original intention of the court sentence, it was entirely reasonable for men to try to get away. These men and women had been sentenced to transportation. But that was their only sentence, and that was enough. They had not been sentenced to slavery.

  While we have no way of knowing what went on in the minds of the lieutenant-governor and the chief justice, all the evidence points to the fact that The Tasmanian’s argument seriously rattled Justice Pedder. Four men had been tried in his court and found guilty of piracy. That carried a mandatory death penalty, so he would have little choice when passing sentence. But what if the men were hanged and it was subsequently found that the case against them was unsound? Might that make the chief justice a murderer in fact, if not in law? Pedder decided to keep pondering.

  In 1837 the system of justice worked differently from today. It was possible, of course, for convicted men and women to appeal against their sentence. But they usually appealed for mercy or even a pardon, and their appeal went to the Executive Council of the colony rather than to a higher court located in a far-off Mother Country. If they wanted a verdict overturned, they could appeal to the House of Lords or to the colonial secretary in London, but that process was lengthy and inefficient and, in the case of the House of Lords, expensive. With the journey from Van Diemen’s Land and back taking anything up to a year, a condemned man might be well and truly hanged before the colonial secretary had a chance to intervene. So an appeal to the colony’s local Executive Council held out better prospects of success overturning a sentence.

  The Executive Council, which effectively ruled the colony, consisted of the lieutenant
-governor, the chief justice and various handpicked worthies from among its more prominent citizens. It is significant that the anonymous scribe in The Tasmanian directed his plea to ‘Mr Kemp’. Anthony Fenn Kemp was a rich maverick who had just been reappointed magistrate by Lieutenant-Governor Sir John Franklin after quarrelling with Franklin’s predecessor, George Arthur. Kemp was also a member of the Executive Council. The Tasmanian described him as someone who had served ‘under all the Governors, from the first landing up to Governor Macquarie inclusive’, and a close friend of ‘Captain John Macarthur, the father and founder of the Australian Aristocracy’.3

  In general, justice in the form of hanging in Van Diemen’s Land in 1837 was dispensed with the least possible delay. Anyone sentenced to death had a life expectancy of months at the very best, and mere days if he or she was unlucky. However, the article in The Tasmanian and subsequent representations had clearly sowed seeds of doubt in the minds of the authorities, and they chose to leave the four men unhanged while they deliberated.

  Meanwhile, the four convicted men were far from idle. Members of the Executive Council continued to agonise over their case. That gave the men time to look around for grounds to appeal. The article in The Tasmanian was a good starting point, and they were not without friends in the colony.

  _____________

  1 This is, among other things, an understandable misspelling by the Hobart Town Courier’s court reporter. On 11 March 1831 Major Perry Baylee (not Bailey) had become Sarah Island’s last commandant, succeeding Captain Briggs.

  2 The article is reproduced as Appendix II of this book.

  3 As there was, and is, no ‘Australian aristocracy’, this was a dubious accolade at best.

  Chapter 11

  APPEAL

  An unexpected figure now moved to centre stage of the Hobart drama. The new arrival was G.K., the anonymous government clerk who had visited Sarah Island eleven times between 1822 and 1832 and who wrote so perceptively and movingly about the plight of the convicts incarcerated there. In his account of his entry into the Hobart fray, he says he received a message from Thomas Capon, the Hobart Town gaoler. The message came ‘in early April of 1837’, which means it was sent and acted on before the trial of the four convicts began on 26 April. The message was simple: a prisoner awaiting trial was asking to see G.K. The prisoner was Jimmy Porter.

  G.K. had previously convinced himself that a message he deliberately failed to deliver had contributed to the decision to complete the Frederick at Sarah Island, forcing the ten convicts to remain behind and thus making possible the seizure of the brig. Thus G.K. saw himself as part of the conspiracy to steal the Frederick, though he was anxious to keep this explosive fact secret from his wife and the world in general. He was sympathetic to the convicts, and readily agreed to see Jimmy in Hobart Gaol. In G.K.’s words: ‘Porter greets me with a friendly grin and a handshake that sends a chill down the spine. I do not have to ask. Porter knows exactly of my role in the conspiracy to build the Frederick. In his eyes I am one of them.’

  Nevertheless, Jimmy’s request came as a surprise. ‘Sir,’ said Jimmy, ‘I want you to teach me to write! I want to write [my story] for myself.’

  ‘Well,’ G.K. replied, ‘I will do what I can.’

  G.K. dived into the task with gusto, visiting Jimmy ‘every few days’. He concentrated on ‘helping Porter to shape his sentences’ as Jimmy set out his version of the seizure of the Frederick and the voyage to Chile. G.K. also brought Jimmy some books to read—Caesar’s Gallic Wars (which served as a primer), and Gulliver’s Travels, which Jimmy declared ‘the best story he’d ever heard’. (Jimmy eventually made his way through the entire book.)

  This process continued for a week or so until a second prisoner asked to see G.K.: this time it was William Shiers. As G.K. tells it: ‘An hour of conversation with William Shiers is to produce a conviction in me about these fellows which will occupy me for the next two years, nearly all my spare waking hours, and indeed what working hours I am able to steal from the Treasury’ [then G.K.’s employer].

  Shiers was the first prisoner to take seriously the legal arguments put forward by The Tasmanian. As G.K. reports:

  The appeal for clemency, to have the death sentence commuted to a further term of life transportation, is already in process but Shiers is not at all confident in its success and he proposes another line of appeal, not against the sentence but against the original charges of piracy and mutiny. Porter treats Shiers’ idea with savage mockery and Shiers wants me to make some enquiry among the legal fraternity of my acquaintance to see if the appeal might have some substance.

  G.K. sought out David Hoy, who by then had transferred to Port Arthur, where he enjoyed the title of acting master shipbuilder. Hoy told G.K. that he had spent the past two years in ‘Napoleonic exile’ on South Bruny Island building a lighthouse. He was inclined to think he had been sent there as punishment for his suspected complicity in the Frederick conspiracy. G.K. met Hoy at his private shipyard on Battery Point in Hobart, where the keen-eyed G.K. spotted several ‘graduates’ of Sarah Island. One of the ex-prisoners was effusive in his praise for Hoy and what he had learned from him. ‘Best thing that ever happened to I,’ said John Knight. ‘Set for life, I be.’

  Hoy turned out to be willing to join G.K. in helping the four convicts. He agreed that Shiers’s wild scheme to challenge the charge of piracy might just succeed in a court of law, and offered to prepare a statement setting out the relevant maritime law. However, he also advised caution, particularly in revealing that he (Hoy) had agreed to help the defence team. ‘I may be a liability if it is known,’ he warned.

  Hoy and G.K. agreed on a strategy well ahead of its time. In 1837 Van Diemen’s Land was scarcely a democracy. It was ruled by an appointed governor supported by an appointed Executive Council, all of them answerable to a colonial secretary in London, half a world away. In the circumstances, local public opinion would seem to be unimportant at best, and irrelevant at worst. Hoy and G.K. agreed that the new lieutenant-governor, Sir John Franklin, was desperate to drum up a bit of public support. Franklin was a Royal Navy admiral and a renowned Arctic explorer. He was personally liked, particularly because his appointment ended the reign of the despotic and despised Governor Arthur.

  Franklin’s wife Lady Jane was regarded as ‘difficult’, in that she was a strong and determined woman who took up unpopular causes such as female convicts’ rights.4 Some of her unpopularity was beginning to rub off on Sir John. What he needed was a public relations coup. On the evidence of newspaper articles and letters it is clear that there was already plenty of support for the Frederick convicts, so here was an opportunity for Sir John to do well by doing good.

  Hoy wrote a letter to the editor of The Tasmanian, and the newspaper published it. At Hoy’s suggestion, G.K. began attending meetings of the Anti-Transportation League. As G.K. tells it: ‘On my rather modest suggestion during one meeting, [the Anti-Transportation League] took up the cause of the Frederick men.’ So the first tentative rumblings of support for the four condemned convicts were beginning to show signs of swelling into a roar of popular outrage.

  While all this was going on, Jimmy continued to write his story under G.K.’s tutelage. More than once, G.K. and Hoy had to dampen Jimmy’s unquenchable desire for self-promotion. Whenever Jimmy tried to suggest in the journal that he had led or inspired or even encouraged his fellow convicts to take drastic steps to secure their freedom, a restraining hand was placed on his shoulder. ‘You could hang for that,’ his two muses warned him. The result was a longish document devoted to the singular cause of saving Jimmy from the hangman. It played down his role, and suggested he was an innocent dupe led astray by a bunch of hard men.

  G.K. and Hoy, in their new capacity as public relations team for the defence, now had another idea. The new proprietor of the Hobart Town Almanack was William Gore Elliston. He had been a London theatrical entrepreneur, about as chancy a profession as exists on the planet, befo
re moving to Hobart. He decided to apply his entrepreneurial talents to Van Diemen’s Land by borrowing heavily to buy the most popular newspaper in the colony, the Hobart Town Almanack and Van Diemen’s Land Annual. Now Elliston had an urgent problem. He desperately needed to get his hands on a shedload of cash to repay the massive loans he had undertaken to buy the newspaper. This could best be done through a swift surge in the paper’s circulation. What better way to attract extra customers than with an exclusive rattling-good-yarn first-person true story, one that had already captured the public’s imagination? The story also had the advantage of being set in Van Diemen’s Land. Some of his readers might even know some of the central characters.

  Jimmy completed the journal on 1 November 1837, and it was published in the 1838 edition of Hobart Town Almanack and Van Diemen’s Land Annual. According to G.K., it was an instant sensation: ‘It appealed to the readers, so Porter became for a time quite a celebrity.’

  G.K. was certainly not taken in by Jimmy, nor did he wholeheartedly embrace the facts set down in the journal. ‘I cannot of course vouch for its accuracy,’ he wrote afterwards, ‘and knowing James Porter a little I would doubt it entirely free of fabrication.’ G.K. even attempted a little early-days psychoanalysis. ‘In the months I listened to his tales of derring-do, James Porter displayed a characteristic I now understand to be narcissism. Nothing he did was ever considered bad or wrong.’

  While all this was going on, the appeal process continued behind closed doors. These matters were normally settled within months or even weeks of a trial, but the four men’s appeal remained undecided for more than two years, an incredibly long time between conviction and execution in the nineteenth century. Jimmy and his backers were optimistic. The final paragraph of Jimmy’s Hobart journal spelled this out: ‘We were found guilty and sentenced to be hanged; but which we have every reason to believe will be commuted to transportation for life. And our case has gone home for the opinion of the English Judges.’ It was dated: ‘Gaol, Hobart, 1st November 1837’.