by Peter Grose
Whereas in and by certain indentures bearing date the twenty sixth day of July instant made between Thomas Shelton of the Sessions house in the City of London Esquire of the one part and the said Joseph Lachlan of the other part Reciting the convictions sentences and orders of transportation of the several convicts named or contained in the List or Schedule hereunto annexed And also reciting that His Majesty by his Royal Sign Manual bearing date the twenty-sixth day of April last had been pleased to give directions for the transportation of the said Convicts and had graciously thought fit to authorize and empower the said Thomas Shelton to make a Contract or Contracts with any fit person or persons for the effectual transportation of the said Convicts and to take security for the person or persons so contracting for the effectual transportation of them pursuant to the sentences and orders in the said Indentures recited concerning them respectively It is witnessed that the said Thomas Shelton by virtue of such power and authority and consideration of the Contracts and Agreements of the said Joseph Lachlan therein mentioned and of the securities given by him the said Joseph Lachlan by Bonds or Writings Obligatory bearing even date with the said Indentures for the effectual performance thereof did contract with the said Joseph Lachlan he being a fit person for the performance of the transportation of the said Convicts And further reciting that the said Joseph Lachlan in consideration of the property which he the said Joseph Lachlan his Executors Administrators and Assigns would have in the service of the said convicts for and during the remainder of the terms of their transportation and for divers other good causes and considerations him thereunto moving Did covenant contract with and agree to and with the said Thomas Shelton that he the said Joseph Lachlan his Executors Administrators or Assigns should and would forthwith take and receive the said Convicts and transport them or cause them to be transported effectually as soon as conveniently might be to the Coast of New South Wales or some one or other of the Islands adjacent pursuant to the sentences and orders concerning them in the said Indentures mentioned and should and would procure such evidence as the nature of the case would admit of the landing there of the said convicts (death or casualties by sea excepted) and produce the same to whom it might concern when lawfully called upon and should not nor would by the wilful default of him the said Joseph Lachlan his Executors Administrators or Assigns suffer the said Convicts or any or either of them to return to Great Britain or Ireland during the terms for which they were respectively ordered to be transported the dates and terms of which said sentences are mentioned and set forth in this List or Schedule hereunto annexed And Whereas the said Joseph Lachlan hath taken and received the said Convicts on board a certain ship or vessel called the “Asia” of which James Landsay is Master and Commander which said Ship or Vessel is now lying at Woolwich bound to New South Wales aforesaid in order to transport the said Convicts pursuant to their said respective sentences and orders Now Know Ye that the said Joseph Lachlan for and in consideration of the sum of Five Shillings in hand at or before the sealing and delivery of these presents the Receipt whereof the said Joseph Lachlan doth hereby acknowledge and for divers other good causes and valuable considerations him thereunto moving Hath bargained sold assigned transferred and set over and by these presents Doth bargain sell assign transfer and set over unto His Excellency Major General Sir Thomas Brisbane Knight Commander of the Bath and Governor in Chief of the Territory of New South Wales and Islands adjacent All his Right
Whereas Daniel Denysson Esquire, His majesty’s Fiscal in this Settlement of the Cape of Good Hope, has reported to me that the Convict William Paris in his custody has been sentenced by the Board of Landdrost and Heemadon of the Cape District to Transportation to New South Wales or one other of the Islands adjacent for the Term stated in his Sentence, an authenticated Translation of which Sentence fiatted by me is forwarded to His Excellency the Governor of New South Wales and whereas the Convict Ship Asia, James Lindzee Master, is now lying in Table Bay bound to New South Wales aforesaid, on board which it is fitting and expedient the aforesaid Convict should be placed and secured in pursuance of his sentence.
These are therefore to require and command the said J. Lindzee commanding the Convict Ship Asia to receive on board the said Ship and Keep in due Security for conveyance to New South Wales the said Convict William Paris for which purpose this Warrant given under my hand and seal shall be to him the said J. Lindzee a Sufficient Warrant and Authority.
Dated at the Cape of Good Hope this Twenty Sixth day of November 1800 and Twenty Three.
By His Excellency’s Command
Charles Somerset
APPENDIX II
Here is the full text of the article that appeared in the 5 May 1837 edition of The Tasmanian (Hobart Town) setting out the legal argument refuting the charges of piracy and mutiny against Porter, Lyon, Cheshire and Shiers. The article is unsigned. It also includes musings about the purposes of transportation, and the inhumanity and possible illegality of the harsh regime imposed on the convicts.
Four men, prisoners of the Crown, were found guilty of piracy last week. The offence was in carrying off a vessel, or rather (as one of them in his defence objected to the charge of carrying off the Brig Frederick) a quantity of wood and other materials so fastened as to possess the means of becoming a brig—but possessing no one constituent, necessary to justify those materials being then so called.
Of this offence the jury found them guilty, and but for the careful, humane, and most praiseworthy consideration of the Chief Justice Pedder, they would have received sentence of death. That that last terrible judgment of the law would have been carried into effect under all the circumstances for such an offence, even had it been committed as it was charged to have been, which it was not, none who have seen or has heard of Sir John Franklin venture for a moment to apprehend.
Before we proceed to offer a few, and but a few, observations upon this affair, we wish to draw attention to what was the original ‘intent and purpose’ of ‘transportation,’ and what was the conduct of the first Governors of these Colonies towards those whom the custody of the unhappy persons subjected to that operation of the law, was confided.
In the accuracy of what we are about to state, we appeal to Mr. Kemp, who is, we believe, since the death of his old friend and brother officer, Captain John Macarthur, the father and founder of the Australian Aristocracy; the father of the Colonies, if not of both Colonies, certainly of this.8 Mr. Kemp, when a Captain in the 102nd regiment, filled the important offices, and it is only justice to him to state with great honour and credit, of Commandant at the most important stations in both Colonies.
He served, we believe, under all the Governors, from the first landing up to General Macquarie9 inclusive. Up to the removal of that ever-lamented and revered man, what was the principle [sic] feature of transportation? Those who were subjected to that of itself severe punishment, severing asunder as it does, every tie of kin and country which endears the human being to life, was sentenced as at present, to ‘transportation beyond the seas’—those were and are the precise words of the sentence. That sentence so passed was carried into effect, but the punishment was considered to be, as the sentence conveyed, the transportation.
There was no after punishment to be inflicted by construction of law, or by collateral enactments made to evade the shock which humanity would have received at the time when the punishment of transportation was first adopted, had it been accompanied by a denouncement that it was a consignment to slavery of the most heart-cutting character, ‘worse than death itself’ as it is now avowed from the Bench to be; and this, no matter what might be the nominal period of endurance: ‘for life, and as far as possible, upon the after generation beyond the grave.’
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. And how did the Governors, who were the first Administrators of that punishment in these Colonies, consider themselves bound, in common fairness, to act towards those who were subjected to their ‘Gaolorship’, for such at the very best is the Government of a ‘Penal Settlement?’
We will quote the words of Governor King, (words used by all his predecessors and his successors, up to the excellent Macquarie) that Governor being as is well known as rigid a disciplinarian as ever trod the quarter deck, yet withal with a heart too kindly to add gall to wormwood—what were his words 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.’
We appeal to Mr. Kemp, and to all the original Colonists of the olden time, whether this was not the relative compact between Governor and prisoner? What is it now? The miserable wretch undergoing ‘slavery worse than death’ who should give way to the first impulse of his nature—that love of liberty, (that first and greatest of blessings) inherent to man, is to suffer death, for obeying that impulse, injuring no human being by that giving way! What is not the exquisite cruelty of this injustice, of thus indicting by man over his fellow-man, the last terrible punishment which man possesses the power of inflicting over his fellow, for thus giving way to the first impulse of his nature—for complying with that principle instinctively implanted in all animated nature from the first to the last in the scale—the love of liberty! Throughout the whole of that scale, man is the only animal in whom the love of torturing its kind seems to be such a source of delight, that to invent the best means of gratifying it is absolutely rendered into a science, to which a denomination is affixed—prison discipline!
Let us now look at the particular circumstances of the case before us. Four men are charged with mutiny and piracy—crimes punishable, and we believe always, with death. There are three ‘essentials’ to these crimes: first, a ship, or vessel, properly so called; second, persons duly authorized in command, that authority recognized in some tangible manner by those on board; third, the crime of ‘piracy’ as so distinguished by law, can only be committed on ‘the high seas.’ Let us see how far any of these essentials are comprehended in the case under consideration.
First, the ‘vessel’ charged to have been piratically carried away possessed no one attribute to bring her within the legal extent of that term. There are many essentials thereto. A register of a merchant ship—a commission, or a warrant of some sort for a King’s vessel—in a word, some distinguishing character of such a nature as shall bring her within the meaning of the term. Did the floating bundle of materials in this case so consist? The very opposite would seem to be the fact. The hull of a vessel, certainly with temporary equipment to enable her to be brought to the place where the real equipment has to take place, was put in motion, and was afterwards carried away by the accused (from whence we shall see by and by) previous to her being so equipped, established, registered, warranted, or in some other way rendered a ship or vessel, properly so called, within the meaning of the legal extent of the term ‘piracy.’ That which the accused took away was, in fact, as far as a legal offence goes, a mere bundle of materials of various descriptions.
Was there the next ‘essential,’ a person duly authorized, convinced, recognized as such in some tangible manner by the accused? Nothing of the sort. The evidence went to show that some persons, named Taw and Hoy, were on board—but what was the nature of their authority, or how recognized by the accused, there was not (we refer to the reports in the newspapers, which we suppose to be correct) one tittle of evidence. Thus much for two ‘essentials’ to the crime of piracy.
The third, that it should be committed on the ‘high seas,’ was not only not proved, but the very contrary was. The witnesses all deposed to the capture of the ‘bundle of materials’ called the Frederick, within the ‘gates’ of Macquarie Harbour—in the very harbour itself. Commanders of ships are vested with very large powers, but they are limited expressly to the time when their vessels are ‘on the seas,’ and have not the law to protect them. The very moment the anchor falls in a harbour, that very moment the powers possessed at sea cease and determine.
What then is the nature of the offence, which at the very utmost, these men could have been legally charged with, the stealing that bundle of materials for the purpose of making their escape from slavery. And here we entreat of the reader to divest himself (if possible) of all that hateful feeling arising from the fact of the enslaved condition of these miserable men. We ask of the reader in common candour to put away (if he can) from his mind reference of any sort to any other consideration than the mere abstract question of piracy. Let him not mix up with it any reference to the escape of the accused, because that it is a matter wholly foreign to the charge of piracy, provided for by other laws made expressly for the purpose, and whether rightfully or wrongfully made, quite strong enough for the purpose intended.
Let us illustrate this by supposing that a transport ship, on the passage out from England, was to be captured by a combined movement of the free sailors and the Crown prisoners; it is perfectly clear that the law would make no distinction in the offence between the two classes of men, who would be in one and the same class as offenders in the capture of the ship. They would be all equally mutineers and pirates, with which the freedom of the one, or the bondage of the other could not have had the slightest to do. So in the present case. Had the soldiers joined the prisoners, the offence of taking away the ‘bundle of materials’ would have been one and the same in all, neither diminished as to the soldiers that they were free, nor added to as to the prisoners that they were bond. The crime, be it what it may, in law, would have been the same!
Of what then have these men been guilty? That obeying the first impulse of human nature, which we commenced with referring to, they endeavoured to escape from slavery! That in that endeavour they not only committed no enormity of any, the slightest description—not even the breath of personal violence to any human being—but on the contrary, they exhibited so much forbearance in the manner in which they effected the purpose to which every feeling inherent to man so strongly induced them, that the people they put on shore expressed themselves, according to their own evidence, in the warmest terms of gratitude! Is there then in any one act of their proceeding, any one feature deserving that last of punishments which man can inflict upon his fellow man—death!
We could add many more arguments to those which we now offer upon this distressing subject—we shall however add only one, but which one involves considerations of such great importance that we are convinced they must have escaped the notice of the Chief Justice, or His Honor would assuredly have bestowed upon them his attention. We approach it with reluctance, for reasons that will be readily understood, when the occurrences of the Session are recollected. The Criminal Court here is established by an Act of Parliament, by virtue of which its proceedings take place. There are two Judges, but there is only one Criminal Court. Its sitting was by one of those Judges solemnly adjourned to a day certain.
Up to that day the Criminal Judicature was asleep, nor do we know of any authority which could awaken it until the time fixed but the actual dissolution of the Court itself, and the establishment by law of another. Yet did it awaken before the day to which it had solemnly adjourned, and proceeded to action. Repeat, we approach this point, under the circumstances, with reluctance, and we shall not further touch it, than to suggest that in the absence of all other considerations it may have some little w
eight in coming to the final decision upon the unfortunate men whose fate is now in the hands of the Chief Authority. Looking at their offence, and the nature, and the excitements to it, we trust we have offered enough to convince the generous reader of the justice of the principle by which all Governors of the olden time were guided in the matter of their gaolorship: that as the love of liberty was inherent to man, so also punishment for giving way to the impulse was equally ungenerous and unjust. That Sir John Franklin will so determine in the present case, we are perfectly convinced.
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8 The two colonies in question were New South Wales and Van Diemen’s Land.
9 This toadying nonsense is also factually incorrect. Macquarie was famously the first civilian governor of New South Wales, following four navy captains and two disastrous lieutenant-governors who were both army majors.
ACKNOWLEDGEMENTS
Nobody ever writes a book totally unaided. Authors are always in debt to publishers, editors, copyeditors, friends who read the manuscript and make suggestions, and not least to family who forgive you as you disappear straight after breakfast and emerge occasionally for coffee and a bit of grunted conversation before disappearing again until nightfall. Meanwhile, the vegetable bed goes unweeded, the refrigerator remains iced up and the kitchen tap keeps dripping.
Author’s back-up teams regularly include researchers, librarians, website designers and fellow authors who have travelled the same path. There are map-makers, cover designers, publicity directors, printers, booksellers, wholesalers, literary agents, journalists, radio hosts, TV presenters and old mates who wonder if you remember them, but they got in touch because they’ve read your books and they had a great idea for your next one. (That’s how I came to write A Good Place to Hide. Thanks again, Winton.)
