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<center>'''‘A Convenient Cloak for Cruelty? -'''</center>

<center>'''Mutinies and Conspiracies on Early Australian Convict Transports’'''</center>

<center>Paper delivered to the 7<sup>th</sup> International Congress of Maritime History,</center>

<center>Perth, Western Australia on 27 June 2016</center>

<center>by Gary L. Sturgess </center>

= Abstract =
Of the 47 ships that carried convicts to New South Wales between 1787 and 1801, one in four experienced a mutiny, actual or planned, by the convicts and/or the soldiers. For the most part, this was an Irish problem, with the conspiracies involving hardened political rebels with antipathy to the British Crown.

This paper examines the course of these mutinies and conspiracies, the violence employed in suppressing them, the conditions that contributed to the fear of mutiny and the use of excess violence, and subsequent legal oversight.

= 1. False Alarms? =
In a paper written on the ship as he returned home from New South Wales in 1801, recently-retired Governor John Hunter observed that rumours of planned mutinies on convict ships were sometimes used to justify abusive behaviour:

. . . the creating false alarms of mutiny or insurrection, has some times excused the inforcement of too great a degree of severity in the discipline, <nowiki>and this, rather than real disease, caused in this ship [the </nowiki>''Hillsborough''] so great a proportion. . . to die. . . The alarm of mutiny is a very convenient cloak for cruelty; and if the prisoners were better treated, there would be less occasion to dread it; but it is an excuse for every thing wicked that a bad man can devise.<ref name="ftn1"> John Hunter, ''Remarks on the Causes of the Colonial Expense of the Establishment of New South Wales, &c'', London, 1802, p.48.</ref>

Two decades later, Commissioner John Bigge, who had been sent out to investigate the transportation system on behalf of the British government, wrote that ‘the fear of combinations amongst the convicts to take the ship, is proved by experience of later years to be groundless. . .’<ref name="ftn2"> John Bigge, ‘Report of the Commissioner of Inquiry into the State of the Colony of New South Wales’, Ordered to be Printed by the House of Commons, 19 June 1822, ''House of Commons Parliamentary Papers'', p.3.</ref>

Hunter had never spent time on a convict transport: he had originally sailed out with the First Fleet, but he had done so on the quarter deck of ''HMS Sirius'', one of two naval vessels accompanying the expedition, and the risk of a mutiny on that voyage was minimised by the large number of marines being sent out to the new settlement. Bigge had sailed to New South Wales on the ''John Barry'', a copybook of a convict voyage, with an experienced surgeon superintendent and three teachers, very little sickness, no deaths, and no mutiny or rumour thereof. He had no knowledge of the conditions which prevailed in the early years of transportation.

In fact, over the first decade and a half of the Australian transportation system, from 1787 until 1801, there were 11 mutinies and conspiracies – more than one in four of the ships that carried male convicts and/or soldiers to New South Wales in that period. Of these, there were five actual mutinies (one of them successful) and six conspiracies that were sufficiently advanced for clear evidence to exist of the mutineers’ intentions (such as large numbers of cut irons or the accumulation of implements that could be used for that purpose).

There were a further eight ships where rumours of a planned conspiracy provoked some kind of intervention on the part of the ships’ officers, and where the seriousness of the situation is open to debate. What cannot be denied, however, is that many of the mariners and free passengers who sailed on these voyages were terrified of an uprising by the convicts and/or the soldiers (many of the latter having been recently been released from gaol themselves).

Knowing that James Willcocks, the master of the ''Lady Shore'' (1797), would shortly be killed by mutinous soldiers on the outward voyage, it is difficult not to be moved by his increasingly desperate pleas for intervention by the authorities before his ship sailed from Portsmouth. Willcocks was no coward: when his ship had been taken by a French privateer on her previous voyage, he had insisted on remaining on board and had convinced his captors that they should release her.<ref name="ftn3"> Journal of the ''Lady Shore'', IOR L/MAR/B/429B, 19-22 July 1796.</ref>

But as he prepared to sail for New South Wales in April 1797 with a shipload of female convicts and a detachment of British, French and Irish recruits being sent out to the settlement, Willcocks was terrified at the incendiary behaviour of some of the soldiers, and asked for their firearms to be taken away. When their commanding officer, Colonel Francis Grose, came on board to investigate, his concerns were dismissed and Willcocks was accused of being violent and overbearing. The unfortunate man resigned himself to his situation and set about preparing his will.<ref name="ftn4"> J.G. Semple Lisle, ''The Life of Major J.G. Semple Lisle'', London: W. Stewart, 1799, pp.188-189; King to the Transport Board, 23 May 1797, TNA ADM108/46/324; Willcocks to King, 27 May 1797, TNA HO42/40/134-136a. His will is at TNA Prob 11/1307.</ref>

Passengers on the ''Royal Admiral'' (1800) were mortified when they discovered that 140 of the convicts were being admitted on deck for fresh air at one time. Some of the prisoners had boasted that they would take the ship, and the passengers organised their own watch to supplement the one provided by the guard. James Wilshire, who was going out to the settlement to take up a position in the commissariat, wrote in his journal:

<nowiki>Before we left Spithead they said if they should take the ship from us, they would make every one walk the plank. The Captain is a very religious and I believe a very good man, but I am afraid he shows too much lenity to such vile depraved characters, as I am afraid that all the comforts and attention for their good which possibly can be shown will, [at] the first opportunity, be inhumanly repaid by putting us under the greatest tortures of death which possibly be described. . .</nowiki><ref name="ftn5"> James Wilshire, ‘Journal by Ja<sup>s</sup> Wilshire Kept on Board the Royal Admiral, Capt<sup>n</sup> W<sup>m</sup> Wilson, Comm., from England to New South Wales’, 5 May to 16 July 1800, Mitchell Library, SLNSW MLMSS 1296, 22 June 1800.</ref>

There was no mutiny on the ''Royal Admiral'', and we will never know whether the convicts were serious in their boasts about taking the ship. What cannot be denied is that James Wilshire and his fellow passengers were in fear of their lives.

Questions of security and freedom mattered – too much liberty and some of the prisoners would mutiny or escape; too little and more of them would die from sickness and disease. If the ships’ officers routinely over-estimated the prospect of an uprising and confined the prisoners too much, they were responsible, in part, for the high mortality rates on the early convict voyages. If the majority of conspiracies were fictions, dreamed up by convict informants to curry favour with their gaolers (and if junior military officers, naval lieutenants and/or naval surgeons would have been less affected by such fantasies), then the contractual system used for transporting convicts prior to 1815 was inherently flawed. If the legal and administrative framework governing these contracts was incapable of preventing excessively violent and abusive responses to mutinies and conspiracies, then government is to be condemned for relying on a system that was incapable of protecting the prisoners in the passage to Botany Bay.

This paper explores the security arrangements on board the early convict transports (1787-1801), each of the 19 mutinies, conspiracies and alleged conspiracies that occurred during that period, and the manner in which the ships’ officers responded.<ref name="ftn6"> The mutinies include the ''Albemarle'' (1791), the ''Marquis Cornwallis'' (1795), the ''Lady Shore'' (1797), the ''Ann'' (1800) and the ''Hercules'' (1801).

The conspiracies were on the ''Boddington'' and the ''Sugar Cane'' (1793), the ''Britannia'' (1796), the ''Barwell'' (1797), the ''Hillsborough'' (1798) and the ''Minerva'' (1798).

The alleged conspiracies were on the ''Scarborough'' (1787 & 1790), the ''Britannia'' (1791), the ''Royal Admiral'' (1792), the ''Surprize'' (1794), the ''Friendship'' (1799), the ''Royal Admiral'' (1800), and the ''Atlas'' (1801). </ref>

= 2. Managing through Contract =
The overwhelming majority of convicts shipped to Australia between 1787 and 1868 were transported by private contractors, and in the first three decades – from 1787 until 1815 – the ships’ officers were responsible for their day-to-day management.

Contrary to the claims of some historians, the First Fleet was managed under same the arrangements, with the difference that the commodore of the fleet (and Governor-elect of the new settlement), Captain Arthur Phillip, had over-riding authority, and chose to intervene in the management of the prisoners throughout the voyage.<ref name="ftn7"> On the misunderstanding, see Robert Hughes, ''The Fatal Shore'', London: Collins Harvill, 1987, pp.144-5, based on Charles Bateson, ''The Convict Ships, 1787-1868'', 2<sup>nd</sup> edition, Glasgow: Brown, Son & Ferguson, Ltd., 1985, pp.10-11, 20. Statements about how the contractual system actually worked are based on a detailed analysis of the documentary record for the First Fleet (1787) and the ''Lady Juliana'' (1789), available from the author.</ref>

In the early years, naval lieutenants usually accompanied some of the ships, as ‘agents for transports’: their experience had traditionally been limited to regulating the loading and navigation of naval transports, and while they were charged with the additional responsibility for monitoring the management of the prisoners, they were not qualified for this role.<ref name="ftn8"> No particular instructions were given to the naval agent on the First Fleet, but the agent who accompanied the ''Lady Juliana'' (1789) had responsibility for ‘watching over the proceedings of the contractor and his agents’ and ensuring that ‘proper attention’ was paid to the convicts. (Sydney to the Treasury, 24 April 1789, TNA HO36/6/253-256 & TNA T1/667/398-399, 404; Steele to Stephens, 3 June 1789, TNA T27/40/257)

The agent on the Second Fleet (1790) was to see that the women were kept separate from the men, and to ensure that they were not abused or ill-treated. He was to visit the ships whenever the weather permitted and to ensure that the prisons were washed and aired, and that the convicts were kept clean and had their clothes changed and washed. He was also to see that justice was done to the prisoners, but his authority extended only to keeping a journal and reporting on the masters’ behaviour upon arrival. (Rose to the Navy Board, 15 August 1789, TNA T1/672/209 & TNA T27/40/344; ‘Copy of a Warrant to Lieut. Shapcote, Agent for Transports, n.d., TNA CO201/5/345-346)

On the Third Fleet (1791), the agents were simply to ensure that the charter party was complied with, and to keep a journal. (Navy Board to Lieut. Samuel Blow, 25 January 1791, Alexander Hood, ‘Papers relating to Captain Alexander Hood's command of the ''Hebe'', Channel and Irish Sea: relating to the Convict Transport ''Queen''’, 18 November 1790 to 21 April 1791, National Maritime Museum, Greenwich (hereafter NMM) MKH/9, MS68/099)

The instructions for the ''Kitty'' (1793) were similar to those of the Second Fleet. (Warrant issued to Lieut. Daniel Woodriff, 4 January 1793, TNA ADM106/2640)

No more naval agents were appointed until the ''Earl Cornwallis'' (1800), with authority superintend the care, management and victualling of the convicts. (Transport Board to Hunter, 7 August 1800, TNA ADM108/67/270) This was the last occasion on which they were used.</ref>

Following the high mortality on the Second Fleet, naval surgeons were appointed as ‘surgeon superintendents’ on several of the ships, again responsible for oversight rather than direct management. They enjoyed mixed success, and with the outbreak of war in 1793, naval surgeons could no longer be spared for such duties.<ref name="ftn9"> Surgeon superintendents were appointed to the ''Royal Admiral'' and ''Bellona'' (1792), ''Boddington'' and ''Sugar Cane'' (1793), ''Surprize'' (1794), ''Marquis Cornwallis'' (1795), ''Ganges'' and ''Britannia'' (1796), ''Lady Shore'' (1797) and ''Minerva'' (1799), and then no more until the ''Northampton'' (1814). The ''Boddington'', the ''Sugar Cane'', the ''Marquis Cornwallis'', the ''Britannia'' and the ''Minerva'' all carried Irish convicts, and the Irish government persisted with surgeon superintendents long after the British government had ceased to use them. The status of the surgeon on the ''Ganges'' is unclear: he was going out to take up a position in the colony, and was assigned responsibilities for the convicts as well. The master of the ''Lady Shore'' did not intend to carry his own surgeon, presumably because the women would have the freedom of the deck, and he felt he should not be responsible for the health of the soldiers. The government appointed a surgeon instead.

No details have survived of the instructions for the surgeon superintendents on the ''Royal Admiral'' and the ''Bellona''. On the ''Boddington'' and ''Sugar Cane'', they were to assist the ships’ surgeons ‘in the necessary attendance on the sick’, and enforce ‘a compliance with the several stipulations made with the contractor. . . for the maintenance & supply of the convicts & guard during their continuance on board’. The masters were contractually bound to obey all orders of the surgeon superintendents for the convicts’ welfare. (Late Draft of the Contract for the ''Boddington'' and ''Sugar Cane'', TNA CO201/7/346-9; ‘<nowiki>Draft [Nepean] to W. Richard Kent’, 12 December 1792, TNA CO201/7/420-422</nowiki>)

We have no details of the instructions given to the subsequent surgeon superintendents, but it is clear from the inquiry into the floggings on the ''Britannia'', that the surgeon of that ship had not been given clear authority over the master. (F.M. Bladen (ed.), ''Historical Records of New South Wales'', 7 Volumes, Sydney: Government Printer, 1893-1901 (hereafter HRNSW) Vol. 3, pp.235, 276-7, 488)</ref> It was not until the end of the Napoleonic Wars in 1815 that naval surgeons could once again be used, although it would take several years for them to assume full responsibility for the day-to-day management of the prisoners, and some chose to defer to strong-willed captains.

Thus, from 1787 until a little after 1815, convicts were managed through a chain of authority cascading down from the Home Office to the Navy Board (and after 1794, the Transport Board), from them to the convict contractors and/or the ship owners, and from owners to masters. These early ships were, in essence, floating prisons, managed under contract, with the contractors’ agents responsible for the health and well-being of the convicts as well as the navigation and management of the vessel.

= 3. Security on Convict Ships =
Prisoners on board convict ships were not confined as a form of punishment, but in order to prevent mutinies and escapes. This was consistent with 18<sup>th</sup> century notions of imprisonment, where the inmates enjoyed a great deal of freedom within the gaol throughout the day. In Britain, prison inmates were generally not provided with meals by their gaolers, receiving instead a county allowance and purchasing their own provisions. Men were often allowed to associate with the women throughout the day, which helps to explain why so many female convicts came on board the convict ships with a young child or in a state of pregnancy.<ref name="ftn10"> Wayne Joseph Sheehan, ‘The London Prison System, 1666-1795’, Ph.D. Dissertation, University of Maryland, 1975, Chapter 4; Margaret DeLacy, ''Prison Reform in Lancashire, 1700-1850'', Stanford: Stanford University Press, 1986, Chapter 1.</ref>

Convict women were freed from their irons as soon as they were brought on board, and it was only the refractory who were confined throughout the course of the voyage. In many cases (until 1819 at least), they were permitted to form sexual relationships with the ships’ officers and (less often) the crew – there was, as yet, no appreciation that, as long as they occupied the subordinate status of prisoners, the women might not be able to make a truly independent decision in such matters.

Boys were rarely ironed, sick convicts were usually freed from their shackles, and it was common for 20 or 30 of the more trustworthy men to be given the freedom of the deck to assist in sailing the ship and providing cleaning, cooking and nursing services for their fellow prisoners.

In these early years, the male convicts were generally kept in single irons – shackles around each ankle connected by a chain – and when the weather permitted, they were allowed on deck for several hours a day for exercise, while the prison was cleaned and fumigated. On smaller ships, the convicts’ quarters were located on the lower deck, and on vessels with three decks, they were assigned to the lowest, known as the orlop deck. In wet weather and high seas, and in extreme cold, there was no alternative but to leave the convicts locked down in their quarters.

Unruly convicts might be loaded with a second set of irons, referred to as ‘double irons’, and in some cases with ‘heavy irons’. If they were particularly troublesome, they might be confined in shackles joined with a bar iron (as opposed to a chain), a neck brace, handcuffs and/or thumbscrews (the latter designed to disable and not a form of torture as some have assumed), or ‘stapled’ to the deck. In the early years of the Australian transportation system, it was only the First Fleet – for the reasons already mentioned – where the male convicts were freed from their irons throughout the entire voyage.

Security was usually provided by a small detachment of soldiers. When plans for the Australian transportation system were first being developed, Lord Sydney and his under-secretary, Evan Nepean, imagined that the contractors might provide the necessary guards, but this idea was quickly abandoned when it was realised how many marines would accompany the First Fleet.<ref name="ftn11"> ‘Draught to the Lords of the Treasury’, 18 August 1786, TNA CO201/2/3-10; Steele to Commissioners of the Navy, 26 August 1786, Public Record Office, TNA T27/38/336-337; Navy Board Minutes, 18 October 1786, TNA ADM106/2622.</ref>

There were no soldiers on the next voyage, since the ''Lady Juliana'' (1789) carried only female convicts, and when plans were being made for the Second Fleet, the Home Office expected (yet again) that the guards would be provided by the contractors. This proposal was abandoned when shipbrokers made it clear that they would have great difficulty in obtaining insurance (because of a concern among underwriters about the prospect of mutiny).<ref name="ftn12"> Wellbank Sharp & Brown to Navy Board, 24 August 1789, TNA T1/671/232; Navy Board to Thomas Steele, 24 August 1789, TNA T1/671/231; Treasury to Navy Board, 29 October 1789, TNA T29/61/73.</ref> Plans to raise a new regiment for service in New South Wales were by then well advanced, and these were expedited so that a small detachment (of 15-20 men) could sail on each of the three convict transports that made up the Second Fleet.

With the outbreak of war, the government had better things to do with its soldiers than to send them to the far side of the globe, and it became commonplace for half a dozen deserters to be taken out of the Savoy Prison and sent on board the convict transports, where they were handed a uniform and musket.<ref name="ftn13"> Lewis to The Honorable Colonel Fox, Chatham Barracks, 31 December 1792, TNA WO4/845/73.</ref>

Unsurprisingly, this practice caused deep concern among the masters of the convict transports. These men were often unruly, and the ships’ officers feared that they would conspire with the convicts to take the ship. Soldiers were significant players in two of the five mutinies, at least two and possibly four of the six conspiracies, and at least one of the alleged conspiracies in the ships in the period with which this paper is concerned.

In the case of the ''Surprize'' (1794), the deserters were initially placed down among the convicts, and subsequently released and appointed as sentries on the main hatch which led into the prison.<ref name="ftn14"> Lewis to Sir Hew Dalrymple, Chatham Barracks, 13 January 1794, TNA WO4/845/92-3; Lewis to John King, 15 January 1794, TNA WO4/845/93; Campbell to the Navy Board, 17 February 1794, TNA T1/728/198-199 & HO35/14; Thomas Fyshe Palmer, ''A Narrative of the Sufferings of T.F. Palmer and W. Skirving during a Voyage to New South Wales'', 1794, 2<sup>nd</sup> ed., Cambridge, 1797, pp.16-17.</ref> The 74 soldiers on the ''Lady Shore'' were not there to provide security since the ship was carrying female convicts and only two men. But they did include a number of French prisoners of war (who had claimed that they were royalists), some Irish recruits (always regarded as suspect) and several deserters brought directly from the Savoy.<ref name="ftn15"> ‘Return of a Detachment of the New South Wales Corps, embarked at Gravesend on board the Lady Shore, under the Command of Ensign Minchin, 27<sup>th</sup> March 1797’, based on remarks made by Corporal John Spice, TNA WO40/16/60; Statement of Simon Murchison, 21 January 1798, TNA ADM108/19/144 & HO42/44/90a; </ref>

Following the mutiny on that ship, the contractors and ship owners were reluctant to have a military detachment on board, and for several years some of the masters were paid to provide their own security. However, this practice had ceased by 1803, and thereafter soldiers were always employed.<ref name="ftn16"> There were no soldiers on the ''Hillsborough'' (1798), the ''Friendship'' (1799), the ''Ann'' (1800) or the ''Perseus'' and ''Coromandel'' (1802). The use of contracted guards seems to have ended with the ''Rolla'' (1802) – Minutes of the Transport Board, 14 December 1801, TNA ADM108/70/334.</ref>

Contrary to what has often been assumed, the soldiers were not responsible for managing the convicts day-to-day, and they had no say over when the convicts were allowed on deck, what chains they wore, and whether they would be punished. Until sometime after 1815, it was the ships’ officers, and particularly the master and the surgeon, who were responsible for these matters.

The First Fleet was somewhat different. Phillip gave a great deal of authority to the naval surgeons and assistant surgeons who were accompanying him out to live in the settlement, assigning one to each of the transports carrying the largest numbers of male convicts. He also instructed the marine officers to work in collaboration with the ships’ masters in making decisions about the convicts’ security, and we can find a number of examples of this happening throughout the voyage.<ref name="ftn17"> John White, ''Journal of a Voyage to New South Wales'', Sydney: Angus & Robertson, 1962, pp.70-71; Stephens to Smith, 24 February 1787, TNA ADM2/1178/151; Stephens to Collins, 2 March 1787, National Marines Museum, Portsmouth (hereafter NMaM) Arch11/52/2, p.166.</ref>

When the NSW Corps joined the Second Fleet, the senior officers attempted to take control of convict security, imitating what they (wrongly) believed to have been the situation on the First Fleet. This resulted in considerable tension between the ships’ officers and the officers of the NSW Corps, which was quickly resolved in favour of the former. The principal reason for this was that the contractors and ships’ captains had provided a financial bond of £40 for each convict, guaranteeing that they would be delivered to their specified destination, but the Navy Board also recognised that at the end of the day, the responsibility for the security of the ship must lie with the master.<ref name="ftn18"> Trail to Camden, Calvert & King, 19 November 1789, TNA T1/674/268; Shapcote to Navy Board, Minute of 21 November 1789, TNA T1/674/266; Shapcote to Navy Board, 23 November 1789, TNA T1/674/267; Navy Board Minutes 23 November 1789, NA ADM106/2631; Note on reverse of Hill to Barnard, 21 November 1789, TNA T1/674/259a; Navy Board to Shapcote, 23 November 1789, TNA ADM106/2347/267; Navy Board to Treasury, 23 November 1789, TNA T1/674/264; Treasury Minutes, 25 November 1789, TNA T29/61/207. There appears to be no documentary record of the instructions from the War Office to Grose and Hill; John Harris, ‘Paper Delivered by the Surgeon’s Mate of the New South Wales Corps contain<sup>g</sup> the proceed<sup>gs</sup> of Mr Gilbert’, 4 December 1789, TNA HO42/15/404-407.

 Gareth Cole, ‘Who Has Command? The Royal Artillerymen aboard Royal Navy Warships in the French Revolutionary and Napoleonic Wars’, and Britt Zerbe, ‘The Marine Officer is a Raw Lad, and therefore Troublesome: Royal Naval Officers and the Officers of the Marines, 1755-1797’, in Helen Doe and Richard Harding (eds.), ''Naval Leadership and Management, 1660-1950'', Woodbridge, Suffolk: The Boydell Press, 2012, pp.61-76, 77-92</ref>

= 4. Legal Authority on Convict Ships =
The captain’s authority over the convicts arose from the Common Law governing relations between masters and servants. This was also the foundation of the master’s authority over his crew, whom he was legally entitled to chastise physically for the security and wellbeing of the ship.

In the case of the ship’s company, this arose out of the contract of employment created when the articles of agreement were signed by the crew shortly after coming on board. In the case of the convicts, the master-servant relationship arose from a legal instrument known as the contract of effectual transportation, signed by city and county gaolers and the convict contractors and ships’ masters when the convicts were brought on board. This transferred legal property in the convicts’ service to the master for the duration of the voyage, so that, in law, they were his servants until their arrival in New South Wales.

Under the law of master and servant, chastisement had to be proportionate. It must be inflicted for sufficient cause; it could not be visited with undue severity. It could be inflicted for past offences, or to promote good discipline on board the ship. It was for this reason that punishment for theft and insolence on most convict transports was usually limited to confinement and a flogging of a dozen or two dozen lashes.<ref name="ftn19"> Charles Abbott, ''A Treatise of the Law Relative to Merchant Ships and Seamen'', London, 1802 (hereafter Abbott), pp.125-127, 394-397; Francis Ludlow Holt, ''A System of the Shipping and Navigation Laws of Great Britain'', London: Joseph Butterworth and Son, 1824 (hereafter Holt), p.260; Richard Henry Dana, ''The Seamen’s Friend'', 4<sup>th</sup> edition, Boston: Thomas Groom and Company, 1845, pp.192-193.</ref>

Mutinies were quite a different matter. The ships’ officers were entitled to use reasonable force to defend themselves and ensure the safety of the ship, and if this resulted in the death of a mutineer, they were protected by the privilege of self-defence. Where possible, offenders should be secured so they could be brought before an appropriate tribunal, but the justification of self-defence extended to the execution and the severe flogging of mutineers, if a conference of the ships’ officers concluded that this was necessary for the safety of the ship.<ref name="ftn20"> Abbott, op. cit., pp.127-128; Holt, op. cit., p.261; Richard Henry Dana, op. cit., pp.193-4; Richard Henry Dana, ‘Two Years Before the Mast’, in Richard Henry Dana, Jr., ''Two Years Before the Mast & Other Voyages'', New York: The Library of America, 2005, p.348.</ref>

Comparisons have sometimes been made between the convict trade and the slave trade, but convict transportation was closely regulated by law. No prisoner could be moved from a county gaol to a convict transport or from ship to shore, without appropriate paperwork. When, in November 1786, a young prisoner from Norwich named Susannah Holmes was brought onto the ''Dunkirk'', a convict hulk at Plymouth where she was to be held awaiting the arrival of the First Fleet transports, the captain refused to allow her ten-month old son on board. This was not because of heartless indifference, but because there were no official papers authorising him to receive the child into his establishment. It was only when the Norwich gaoler obtained a written instruction from the Home Secretary that mother and child could be reunited.<ref name="ftn21"> ''Morning Post & Daily Advertiser'', 4 December 1786.</ref>

In English law, a convict was a ‘freeman’ not a slave, and when the matter was eventually dealt with in an insurance case, the courts utterly rejected the suggestion that the prisoners could classified as part of the ships’ cargo.<ref name="ftn22"> The reference to a convict being a ‘freeman’ is from the judgement of Mr Justice Park in an insurance case ''Brown v Stapylton'', Court of Common Pleas, Easter Term 1827, 4 Bingham 119. Park acknowledged that a claim could be made on the life of a slave thrown overboard, a reference to the ''Zong'', but was firm in relation to convicts, he wrote ‘the authorities are clear, that there can be no estimation of the life of a freeman’.</ref> By contrast, in the Africa trade, the slaves regarded in law as a form of property who could be bought and sold, and whose lives could be insured in case of their deaths in the course of a mutiny.

Following his decision in the infamous case of the ''Zong'', where the ship owners claimed the insurance on slaves deliberately thrown overboard because of an alleged fear that the ship would be lost due to a lack of water and provisions, Lord Mansfield observed:

<nowiki>. . . if they [the slaves] die a Natural Death they [the underwriters] do not pay but in an Engagement [that is, a mutiny] if they are attacked and the Slaves are killed, they will be paid for them as much as for damages done for goods, and it is frequently done, just as if Horses were killed, they are paid for in the Gross, just as well as for Horses killed, but you don’t pay for Horses that die a Natural death.</nowiki><ref name="ftn23"> This statement is from the records of the Abolitionist, Granville Sharp, and does not appear elsewhere, but it certainly reflects Mansfield’s understanding of the law – see James Oldham, ‘Insurance Litigation Involving the Zong and Other British Slave Ships, 1780-1807’, ''The Journal of Legal History'', (2007) 28:3, pp.299-308 at p.316.</ref>

There was never any suggestion that convicts occupied the status of livestock and there was no question of them being insured as cargo.

Nor was there any of the cold-blooded murder and mass rape that occurred on Stalin’s convict ships as they carried political and criminal exiles to Siberia between 1932 and 1953. One searches in vain for a single allegation of rape on board the ships that carried British and Irish convicts to Australia between 1787 and 1801 (the focus of this paper).<ref name="ftn24"> Martin J. Bollinger, ''Stalin’s Slave Ships: Kolyma, the Gulag Fleet, and the Role of the West'', Annapolis: Naval Institute Press, 2003.</ref>

This would mean little if the convicts lacked any means of responding to abuse, but from the First Fleet onwards, prisoners could sue the ships’ officers for loss of property, and it was not unusual for complaints about mistreatment to make their way to the Home Secretary (prior to sailing) or the Governor of the colony (upon arrival), and for formal investigations to be launched. By the end of the first decade, convicts were routinely mustered upon their arrival in Sydney Cove and asked whether they had any complaints about their gaolers.<ref name="ftn25"> The first civil court case in Australian history involved two of the convicts, a husband and wife, successfully suing one of the ships’ captains for the theft of their property – Log of the ''Alexander'', 5 April 1788, TNA ADM51/4375; NSW Court of Civil Jurisdiction: Case Papers and Minutes of Proceedings, 1788-1809, 2 July 1788, in SANSW 2/8147; Bruce Kercher and Brent Salter (eds), ''The Kercher Reports'', Sydney: The Francis Forbes Society for Australian Legal History, 2009, pp.15-20; Henry and Susanna Cable to Mrs Dinah Cable, 17 November 1788, copy sent to the Keeper of Norfolk Castle, published in ''Norfolk Chronicle'', 18 July 1789, pp.2-3; Johnson to Nepean, 12 July 1798, in George Mackaness (ed), ‘Some Letters of Rev. Richard Johnson’, Part II, Australian Historical Monographs, Volume XX (New Series), No.5; John White, ''Journal of a Voyage to New South Wales''<nowiki> [1790], Sydney: Angus & Robertson, 1962, pp.148-149. For legal commentary on the case, including the suspension of felony attaint, see David Neal, </nowiki>''The Rule of Law in a Penal Colony'', Cambridge: Cambridge University Press, 1991, pp.1-8.

From the First Fleet onwards, there are numerous examples of a convict complaint making its way to the Home Secretary or the Governor, followed by an investigation. On the First Fleet, see the example of Elizabeth Barber – Paul G. Fidlon, et al (eds.), ''The Journals and Letters of Lt. Ralph Clark, 1787-1792'', Sydney: Australian Documents Library, 1981, p.35. Some of the convicts on the Second Fleet lodged complaints before sailing about their irons – Nepean to Shapcote, 5 December 1789, TNA HO42/15/402-403; Shapcote to Nepean, 6 December 1789, TNA HO42/15/399; Statement of Donald Trail, ‘Accounts and Papers Relating to Convicts on Board the Hulks, and Those Transported to New South Wales’, Ordered to be Printed 10<sup>th</sup> and 26<sup>th</sup> March 1792, ''House of Commons Sessional Papers of the Eighteenth Century'', (83) 1791-92, (hereafter ‘Accounts and Papers’) pp.259-368, at p.334.

The first formal mention of a muster relates to the ''Britannia'' (1796) – ‘Journal of the Proceedings of the Ship ''Britannia'' from the Downs to Port Jackson and China, Commencing upon the 3<sup>rd</sup> of September 1796 & Ending upon the 30<sup>th</sup> of June 1798’ (hereafter Journal of the ''Britannia''), Dixson Library, SLNSW MSQ35, 30 May 1797. However, it is not clear that it was formalised at that time. The practice was certainly routine by the ''Minerva'' (1799) – Pamela Jeanne Fulton (ed.), ''The Minerva Journal of John Washington Price'', Melbourne: Melbourne University Press, 2000 (hereafter Price), p.144.</ref>

When it came to mutiny, these protections were imperfect since public officials and judicial officers were reluctant to second-guess decisions made on an isolated ship in the middle of the Atlantic, but as we shall see, the legal and administrative oversight of convict ships generally served to constrain excessively abusive conduct.

= 5. Mutinies and Conspiracies =
Fourteen of the 19 mutinies, conspiracies or alleged conspiracies in the period 1787 to 1801 took place or were intended to take place in the first month after sailing, the intention being to take the ship to France or North America.<ref name="ftn26"> For one of the mutinies we have no details.</ref> The only successful mutiny, that of the ''Lady Shore'', occurred seven weeks after sailing and the soldiers took the ship into La Plata, a Spanish port (in what is now Argentina). This was a risky course of action, and the Spanish authorities were at first uncertain how to treat the mutineers.<ref name="ftn27"> John Black, ''An Authentic Narrative of the Mutiny on Board the Ship Lady Shore'', Ipswich, 1798, pp.34-5.</ref> It followed that once the convict transports had entered the South Atlantic, they were generally free from any serious threat of mutiny.

Among the mutinies and the conspiracies that reached an advanced stage of planning, there were two broad strategies – to attack the sentries when the convicts were on deck for exercise (by far the most common) and/or to take one of the ship’s senior officers, preferably the captain, hostage while there were inspecting the prison, and then to negotiate.

There was understandable fear of an uprising among the hardened political rebels which some of these ships were carrying, and this fear was not unjustified. Of the 18 voyages where the convicts were involved, nine involved Irish convicts: the ratio of transports carrying Irish convicts in this period was only around 25 percent. Of the five actual mutinies, three involved Irish convicts, and the uprising on the ''Lady Shore'' included Irish soldiers (although it was not led by them). Four of the six proven conspiracies were also planned by Irish political prisoners. So to a considerable extent, this was an Irish problem.

Soldiers played some part in two of the five mutinies and two of the six conspiracies, although they were thought to have been involved in at least two of the other conspiracies. Crew members were involved in at least three of the mutinies and conspiracies, and there were concerns of them possibly playing a role in four others. Women convicts were potentially important because they had the freedom of the deck; they were thought to have been involved in two cases, and there were suspicions of them playing a role in two more.

== 5.1 Mutinies ==
Among the convict mutinies, the pattern was broadly similar to that of the ''Albemarle'', one of the convict transports in the Third Fleet (1791) and the first ship to experience a convict uprising. She was 13 days out of Portsmouth, and had been separated by storm from the other ships in her division. There was no advance warning. A number of convicts had been allowed on deck for exercise in the morning, at a time when most of the watch were aloft. Several of the prisoners rushed the sentries, seizing their weapons and were charging the helmsman when the captain – who happened to be on deck at the time – slipped into his cabin, grabbed his blunderbuss and shot one of the ringleaders in the shoulder. This caused the mutineers to abandon their attack and retreat below.

All hands were called on deck, the small arms were issued, and a search party was sent below. They returned with three of the ringleaders, the first of whom confessed, probably under the threat of hanging, and named the other two as the principals, one of whom was the man that had been wounded in the affray. A conference was convened between the naval agent, the captain, the ship’s officers and men, and the soldiers, and (as the captain later wrote):

. . . it was unanimously thought proper for the future preservation of the ship and our lives, and to strike terror in the convicts, immediately to hang the two last at the fire-yard-arm; this had the desired effect upon the convicts in general, who immediately sent us a letter confessing all their horrid intentions, and of taking the ship to America.<ref name="ftn28"> ‘Extract of a Letter from Madeira, 24<sup>th</sup> April 1791, Account of the Mutiny on B’d the Albemarle’, TNA CO201/6/291-292; HRNSW Vol. 1:2, pp.487-488.</ref>

Two other prisoners seem to have died as a result of their injuries. Another two were given two dozen lashes, and the informant was given three dozen, a remarkably mild response to a mutiny, where some of the ship’s officers might well have lost their lives. Two of the crew who had passed knives to the convicts (probably for cutting through their shackles), and otherwise assisted, were placed in irons and delivered to British authorities at Madeira.<ref name="ftn29"> On the convicts who seem to have died from their wounds – Extract of a Letter from Lieutenant Young, 24 April 1791, TNA T1/694/208. On the floggings and the crew members – Robert Parry Young, ‘Remarks on board the ''Albemarle'' Transport, the 9<sup>th</sup> April 1791’, TNA T1/694/211 & TNA HO28/8/101-102a.</ref>

With the notable exception that the participants were not Irish, the insurrection on the ''Albemarle'' was typical of a convict mutiny – a sudden attack on the sentries while the prisoners were on deck for exercise, assistance from some of the crew or the guard, a successful counter-attack led by the captain and crew rather than the soldiers, confessions extracted through flogging or the threat of something worse, a formal conference of the ship’s officers and crew, a unanimous decision that prompt action must be taken for the safety of the ship, the execution of one or two mutineers, followed by a relatively moderate amount of flogging and closer confinement.

== 5.2 Conspiracies ==
Planned mutinies that were discovered before an attack was launched were usually exposed by prisoners who were in some sense outsiders (gentleman convicts, or in one case, a Jewish prisoner), or by men who had the confidence of the ship’s officers (convicts who had been freed from their chains to work about the ship, and/or were regular informants). It might be regarded as strange that ‘trusties’ or informants would be approached by the conspirators, but it was valuable, if at all possible, to have the assistance of someone – soldier, crew member, female convict or trustie – who had the freedom of the deck. 

There is much less uniformity in the pattern of the conspiracies, since the details were pieced together from informants’ accounts and whatever could be ascertained through flogging the alleged conspirators. In either case, we cannot exclude the possibility that there was some measure of lies or fantasy, although in the cases described here as conspiracies, there was physical evidence of the intention to mutiny – in most cases, a significant number of cut irons or the accumulation of cutting implements. If the ship were in port, that would indicate an intent to escape, but if they were at sea, then the removal of their irons, or the accumulation of a significant number of knives and other metal objects, could only mean an intention to mutiny.

The ''Barwell'' (1797) was carrying English convicts, but the conspiracy seems to have emerged among the soldiers, some of whom had been riotous since coming on board. Two of the guards (at least one of whom was Irish) had been court-martialled and sent ashore, and the sergeant of the guard had run from the ship before sailing with several of the crew. The naval agent at Portsmouth had reported to his superiors: ‘The ''Barwell''’s officers consider the guard as worthless, and as little deserving of trust as the convicts!’<ref name="ftn30"> Patton to the Transport Board, 24 October 1797, TNA ADM108/49/395.</ref>

Four and a half months into the voyage, two of the convicts reported that several of the soldiers had approached them about launching a mutiny. The muskets had been loaded, and they would be handed over to the convicts once they had commenced the attack. A search was conducted and a number of convicts were found to be out of irons, and the bulkhead (which functioned as the bars to the prison) had been tampered with.

Following a consultation among the ship’s officers, somewhere around two dozen of the convicts were flogged, most with two or three dozen lashes, although the ringleaders were given six, eight and ten dozen. By the standards of the day (and in comparison with the punishments handed out to mutinous soldiers or marines), this was not especially severe. Three of the soldiers were flogged – several dozen lashes – and confined among the prisoners. There was also evidence against one of the two Ensigns – the most high-ranking of the soldiers on board – but it was not unequivocal, and he was confined to his quarters for the rest of the voyage.<ref name="ftn31"> Journal of the ''Barwell'', IOR L/MAR/B/420G, 36-37; ''R v George Bond'', Court of Vice Admiralty, Letters of Marque and Related Documents, Registrar of the Court, 1795-1812, 20 August 1798, TNA HCA1/64 & SRNSW, 5/1163, p.91ff.</ref>

== 5.3 Alleged Conspiracies ==
With the eight alleged conspiracies, the ships’ officers were relying entirely on what they had been told by convict informants and what could be extracted from confessions obtained through flogging or the threat of the same. It was these cases that Hunter and Bigge had in mind when they wrote of false alarms and the groundless fear of combinations, although there were fewer of them than there were actual mutinies and proven conspiracies.

It is impossible for us to know today, if it was then, which of these supposed conspiracies were real and which were not. Most of the actual conspiracies were first revealed to the ships’ officers in exactly the same way as the ones for which we have little or no external evidence.

In several cases, there is evidence that the informants were expecting favourable treatment as a result, but given that they were placing their lives in jeopardy by informing on their fellow-prisoners, this is perhaps not surprising. And on several occasions, the alleged conspirators claimed that the master had deliberately suborned witnesses, through offers of payment or other favours, but they would say that, wouldn’t they? Then as now, it is extremely difficult to get to the bottom of these stories.<ref name="ftn32"> Allegations were made of witnesses suborned or threatened in cases involving the ''Surprize'' (1794), the ''Barwell'' (1797), and the ''Minerva'' (1798).</ref>

What is clear, is that the ships’ officers were terrified of a convict mutiny. In almost all cases, the alleged plot involved the immediate execution of the ship’s officers, and the fate of Captain Willcocks and his chief mate (on the ''Lady Shore'') seems to confirm that their lives were at risk, particularly when (as was almost always the case) they took the lead in resisting an attack.

From the very beginning of the Australian transportation system, there was good reason to suspect that the convicts would take the ship if they could. Of the last three ships sent to North America (in 1784, in the immediate aftermath of the War of Independence), two had been successfully taken by the convicts.<ref name="ftn33"> Regarding the mutiny on the ''Swift'' and the ''Mercury'' (1784), see Emma Christopher, ''A Merciless Place'', Sydney: Allen & Unwin, 2010, Chapter 12.</ref> And in the spring and summer of 1786, in the months before the First Fleet was commissioned, there had been two serious insurrections on the hulks, resulting in a number of deaths.<ref name="ftn34"> ‘Report of all the Convicts. . . on board the ''Fortunee'' Hulk. . . from the 20<sup>th</sup> February to 26<sup>th</sup> May 1786’, TNA T1/638; ‘Report of Convicts under Sentence of Transportation. . ., on board the ''Censor'' Hulk. . . from the 12<sup>th</sup> April to the 12<sup>th</sup> July 1786’, TNA T1/634.</ref>

These fears were periodically reinforced by reports of conspiracies on the smaller vessels that carried the convicts from the outer regions of Britain and Ireland to their port of embarkation. In 1789, there was a plot to take the ''Peggy'', a small vessel bringing down some prisoners from Scotland, revealed by a convict informant, Thomas Watling, who would go on to become a prominent artist in the colony.<ref name="ftn35"> ''Caledonian Mercury'', 11 & 13 June 1789.</ref> The following year, there was an insurrection on a sloop carrying convicts from Lancaster to Portsmouth, which required the intervention of the navy before it was finally put down.<ref name="ftn36"> ''Caledonian Mercury'', 1 February 1790, p.2.</ref> There was another conspiracy on one of the convict ships in Ireland in 1796, again revealed by one of the prisoners.<ref name="ftn37"> ''London Chronicle'', 13 September 1796</ref>

And of course, the taking of the ''Lady Shore'' and the murder of Captain Willcox received significant attention in the British press in May 1798 when the news of the mutiny first arrived home, and again in late 1799 when one of the mutineers who had been captured was tried and executed.<ref name="ftn38"> ''Mirror of the Times'', 23 November 1799; ''Lloyd’s Evening Post'', 25 November 1799; ''General Evening Post'', 26 November 1799; ''Whitehall Evening Post'', 26 November 1799; ''Evening Mail'', 27 November 1799; ''Times'', 27 November 1799, p.3; ''Observer'', 1 December 1799; ''Evening Mail'', 4 December 1799; ''Times'', 5 December 1799, p.3; ''Morning Herald'', 5 December 1799; ''London Packet or New Lloyd’s Evening Post'', 20 December 1799; ''Times'', 21 December 1799, p.3; ''Oracle & Daily Advertiser'', 21 December 1799; ''Naval Chronicle'' II, July to Dec 1799, pp.629-630; ''St James’s Chronicle or British Evening Post'', 21-24 December 1799; ''London Packet or New Lloyd’s Evening Post'', 23 December 1799; ''Lloyd’s Evening Post'', 23-25 December 1799; ''Lloyd’s Evening Post'' & ''London Packet or New Lloyd’s Evening Post'', 25-27 December 1799.</ref>

As already noted, these fears were heightened when there were Irish convicts on board, particularly political insurrectionists, many of whom were hardened by civil war and what would now be regarded as terrorist activities. Joseph Holt, an Irish rebel leader who sailed with his family on the ''Minerva'' (1799), and enjoyed the freedom of the deck, told the chief mate that he was a fool to have thought of trusting him with a gun when the ship being chased by a privateer: given half a chance, he said, he would have turned it on the poop deck and freed as many of the convicts as he could.<ref name="ftn39"> T. Crofton Croker (ed.), ''Memoirs of Joseph Holt'', London: Henry Colburn, 1838, Vol. 1, pp.47-52.</ref>

Similar concerns were held whenever there were republicans on board. Rumours of conspiracy followed the so-called Scottish Martyrs – gentlemen exiles rather than convicts – who were sent out to New South Wales on the ''Surprize'' (1794). And while the claims that they were at the heart of conspiracies on board that ship were probably unfounded, there is no doubt that these men had been deliberately provocative in stirring up republican sentiments among the officers and passengers, and in forming improper relationships with some of the prisoners.

Those ships that sailed in the immediate aftermath of the extensive naval mutinies at Spithead and Nore in 1797, the ''Lady Shore'' among them, had additional reasons to be concerned. The sailors on the ''Hillsborough'' (1798) refused to sail unless a prisoner named Thomas McCann was removed from the ship. McCann had been a sailor on the ''Sandwich'' and had originally been sentenced to death for his part in the Nore mutiny. Since coming on board, he had been organising protests among the convicts over the state of their provisions, and the crew were concerned that he would lead a mutiny. Even though he was removed from the ship, his influence persisted, with the convicts continuing to organise protests when they felt that they were not being given their full rations.<ref name="ftn40">=  William Noah, Voyage to Sydney in the Ship Hillsborough 1798-1799. . ., Sydney: Library of Australian History, 1978, p.19; G.E. Manwaring and Bonamy Dobree, The Floating Republic: An Account of the Mutinies at Spithead and the Nore in 1797, Barnsley: Pen & Sword Books, 2004, p.277. =
</ref>

So while we cannot be certain which of these alleged conspiracies were real, there were often good reasons for the ships’ officers to be concerned. Hunter’s and Bigge’s criticisms need to be read with some scepticism.

= 6. Responding to a Convict Mutiny =
== 6.1 Suppressing the Insurrection ==
The initial response to a convict mutiny was usually led by the ship’s officers and not by the military guard. On the ''Albemarle'' (1791), it was Captain George Bowen who seized a blunderbuss and shot one of the ringleaders, causing the mutineers to retreat. With the ''Marquis Cornwallis'' (1795), the search of the convicts’ quarters for weapons was led by the Captain, Michael Hogan, and then an attack on the prison shortly thereafter when the conspirators attempted to break out. In the case of the ''Lady Shore'' (1797), it was Captain John Willcocks and his first mate who immediately responded, while (according to one report) the ranking military officer was hiding under his bed.<ref name="ftn41"> On the ''Albemarle'' (1791) – George Bowen, ‘Extract of a Letter from Madeira, 24<sup>th</sup> April 1791, Account of the Mutiny on B’d the Albemarle’, TNA CO201/6/291-292 & HRNSW Vol. 1:2, pp.487-488; Robert Parry Young, ‘Remarks on board the Albemarle Transport, the 9<sup>th</sup> April 1791’, TNA T1/694/211 & TNA HO28/8/101-102a; Account of Robert Cock, TNA CO201/6/294-295 & HRNSW Vol.2, pp.447-9.

On the ''Marquis Cornwallis ''(1795) – Letter from an officer on the ''Marquis Cornwallis'' to his brother in London, 22 October 1795, published in ''Edinburgh Advertiser'', 15 January 1796.

On the ''Lady Shore'' (1797) – J.G. Semple Lisle, ''The Life of Major J.G. Semple Lisle'', London: W. Stewart, 1799, p.195</ref>

Captain James Stewart of the ''Ann'' (1800) was undertaking his regular inspection of the convicts’ quarters when he was seized by some of the prisoners, as part of a coordinated plan to take the ship. He escaped with the assistance of several other convicts, and while the details are scant, he was part of the group that rescued his mate and the gunner. On the ''Hercules'' (1801), Captain Luckyn Betts was the first man out of the cabin to confront the mutineers who had charged the quarter deck, and had a blunderbuss snapped in his face. (It misfired.)<ref name="ftn42"> On the ''Ann'' (1800) – Letter from Captain Stewart at Rio de Janeiro, 26 August 1800, published in Hull Packet, 10 February 1801. On the ''Hercules'' (1801) – Betts to the Court of Vice Admiralty, 8 July 1802, ‘Proceedings of a Vice Admiralty Court held at Sydney the 6<sup>th</sup> day of July 1802. . .’, TNA CO201/21/249-250.</ref>

The affray rarely lasted long. On the ''Albemarle'' (1791), it was a matter of seconds; on the ''Hercules'' (1801), it seems to have lasted about 15 minutes. However, there was often a period of some uncertainty before the security of the ship was fully restored. Having quelled the insurrection, the ship’s officers would search the prison, and bring up those who were suspected of being involved. They would also inspect the prisoners’ irons, to ascertain whether they had been cut. Metal implements, particularly knives, were used for sawing through the iron, and the convicts would disguise their efforts by filling the furrows with coloured wax.

== 6.2 Investigating Rumours ==
Where the ship’s officers were informed of the conspiracy by one of the convicts, the master would sometimes wait for better evidence. On the ''Marquis Cornwallis'' (1795), two of the prisoners passed a message to Captain Hogan, who had them brought aft for questioning. They revealed that the sergeant of the guard had offered to provide them with knives in return for payment. Hogan asked the ranking officer, an ensign, to have the troops fall in with their kits, which were searched. Sergeant Ellis was found to have six knives in his bag, and the ensign revealed that several days before, the sergeant had lied to him about having lost four of these knives, and he had given him two more. The touch-holes of six firelocks had also been spiked, and two pistols sent to Ellis for cleaning had been disabled. A search was conducted of the prison, but it appears that nothing of significance was found. Hogan decided to wait for stronger evidence. He cautioned his mates and the petty officers, along with some of the seamen whom he particularly trusted, to watch for any sudden attack, and he later wrote that he was keeping a strict eye on the conduct of the soldiers. It was only when he obtained further evidence from another source that Hogan began a formal interrogation of the suspects.<ref name="ftn43"> TNA CO201/13/146; HRNSW Vol.3, p.110.</ref>

Captain William Hingston, master of the ''Hillsborough'' (1798), reacted in a similar way. He was cautious about the information he had been supplied by a convict informant, and after arming the crew, set a trap designed to encourage the mutineers to show their hand.<ref name="ftn44"> Ebenezer Beriah Kelly, ''Autobiography'', Norwich: John W. Stedman, 1856, pp.17-19.</ref> Much the same appears to have happened on the ''Minerva'' (1799), where a number of stories were passed to the captain before any action was taken. Still uncertain as to the seriousness of the plot, the ship’s officers revolved to lock the supposed ringleaders in a strong room rather than flogging them to extract confessions. More specific stories emerged later in the voyage, when stronger action was taken.<ref name="ftn45"> Pamela Jeanne Fulton (ed.), ''The Minerva Journal of John Washington Price'', Melbourne: Melbourne University Press, 2000 (hereafter Price), pp.83-84, 88-89.</ref>

On the ''Royal Admiral'' (1800) one of the passengers, a junior official going out to take up a post at New South Wales, reported rumours from among the convicts. Captain William Wilson reacted in a measured way and tightened security.<ref name="ftn46"> For example, Wilson had a barricade constructed across the deck, and allowed the passengers to organise their own watch – Journal of the ''Royal Admiral'', IOR L/MAR/B/338-I and ‘Journal by Ja<sup>s</sup> Wilshire Kept on Board the Royal Admiral, Capt<sup>n</sup> W<sup>m</sup> Wilson, Comm., from England to New South Wales’, 5 May to 16 July 1800, Mitchell Library, SLNSW MLMSS 1296, 20 & 23 June 1800.</ref> On the ''Hercules'' (1801), where there was later a violent insurrection, the master made no response when the first stories emerged.<ref name="ftn47"> See the evidence of Thomas Trotter, Proceedings of a Vice Admiralty Court, 6 July 1802, CO201/21/245-246.</ref> The master of the ''Atlas'' (1801), which sailed at the same time as the ''Hercules'', suspected that the convicts had poisoned the guard, a highly improbable scenario. Captain Richard Brooks was jumping at shadows, but he investigated the supposed conspiracy over several weeks, trying to make sense of the limited evidence available to him, all the time allowing the convicts on deck (carefully chained) for daily exercise.<ref name="ftn48"> Journal of the ''Atlas'', IOR L/MAR/B/27E, various entries from 27 February to 11 April 1802.</ref>

It was common for the ships’ officers to flog the convicts in order to extract a confession, and punishment would often cease once a prisoner had admitted his role and implicated others. An officer on the ''Marquis Cornwallis'' (1795) explained to this brother that following the revelation of the conspiracy: ‘We got upon deck the ringleaders, to the number of forty, who, after a severe punishment, confessed the whole.’<ref name="ftn49"> Letter from an officer on the ''Marquis Cornwallis'' to his brother in London, 22 October 1795, published in ''Edinburgh Advertiser'', 15 January 1796.</ref> Captain Hogan wrote: ‘When each man received punishment, he gave information against others, evading as much as possible the part he had in it himself. . .’<ref name="ftn50"> TNA CO201/13/150a; HRNSW Vol.3, p.109.</ref>

A British official at Madeira wrote about the mutiny on the ''Albemarle'' (1791) when the ship called there briefly to offload the two sailors suspected of being involved. He reported that when the first of the ringleaders was brought on deck, he was threatened with immediate hanging: ‘he, from terror, declared that if they would pardon him he would discover the whole plot, which he accordingly did’. He named another two men as the ringleaders, one of whom had been wounded in the affray.<ref name="ftn51"> Robert Cock to the Duke of Leeds, 13 May 1791, TNA CO201/6/294-295; HRNSW Vol.2, pp.447-449.</ref>

The probative value of evidence extracted through flogging or the threat of hanging, is of course highly questionable, and such practices had ceased to be employed in the British criminal justice system. The author has been unable to find any precedents for this extraordinary practice on board these merchant ships, which was not challenged by any of the authorities at the time.

== 6.3 The Ship’s Council ==
There appears to have been a convention that masters would convene a conference of the ship’s officers, and ideally, the passengers and crew members as well, before making any firm decisions about the response to a mutiny, particularly when a decision involved the execution of one of the mutineers. There also seems to have been a practice of including a relatively senior officer from another ship, if one was in company, or that individuals independent of the ship’s officers would be involved.

There was no legal obligation in English maritime law to consult with the ship’s officers before disciplining the crew, but according to Abbott (1802):

. . . the master should, except in cases requiring his immediate interposition, take the advice of the persons next below him in authority, as well as to prevent the operation of passion in his own breast, as to secure witnesses to the propriety of his conduct. For the master on his return to this country may be called upon by action at law, to answer to a mariner, who has been beaten or imprisoned by him, or by his order, in the course of a voyage; and for the justification of his conduct, he should be able to shew not only that there was a sufficient cause for chastisement, but also that the chastisement itself was reasonable and moderate, otherwise the mariner may recover damages proportionate to the injury received.<ref name="ftn52"> Charles Abbott, ''A Treatise of the Law Relative to Merchant Ships and Seamen'', London, 1802 (hereafter Abbott), pp.126-127.</ref>

The masters of East Indiamen were expected to bring an offender before a ‘consultation’ of officers prior to issuing any punishments, and there appears to have been a widespread convention that British seafarers would not be discharged in foreign ports without formal consultation.<ref name="ftn53"> On the former, see Peter Earle, ''Sailors: English Merchant Seamen, 1650-1775'', London: Methuen, 2007, p.154.</ref> The first known example of this is the Strange fur-trading expedition to the north-west coast of America in 1785-86 (in the ''Captain Cook'' and the ''Experiment'') where the owners, David Scott & Co of Bombay, wanted a council of the officers to be held if unruly men were to be put ashore at a foreign port:

. . . & as You have not the aid of martial Law, we have to desire Your discharging every officer and man that may show the least tendency to subvert discipline, at the first English Port or at China. In such case we would advise Your holding a Council of the Officers, & entering their report on the Log Book; as we feel an interest in every man who embarks on the expedition, it would be pleasing to see that no person was discharged but in consequence of the voices of the Officers.<ref name="ftn54"> David Scott & Co, ‘Sailing Directions to James Strange Esq., Director of the Exploring Expedition to the No. West Coast of America and towards the North Pole’, 7 December 1785, in ''Records of Fort St. George: James Strange’s Journal and Narrative of the Commercial Expedition from Bombay to the Northwest Coast of America'', Fairfield, Washington: Ye Galleon Press, 1982, p.35. </ref>

And legislation passed in 1799 for the further regulation of the slave trade, prescribed that the masters of ships engaged in that trade were not to discharge unruly mariners without first consulting with one of His Majesty’s ships of war.<ref name="ftn55"> Abbott, pp.128-129.</ref>

While there was no comparable body of law or practice relating to the transportation of convicts, it is clear that most of the masters acknowledged the convention that they should consult with their officers, at least when exemplary punishments were required following a mutiny. What is perhaps of greater interest, is that over time, this formalised into a legal obligation.

As previously noted, there was no legal authority to try and punish mutineers, be they crew members, passengers, soldiers or convicts; any execution, flogging or confinement had to be undertaken as an act of self-defence. It is for this reason that most accounts of these ships’ conferences explicitly state that they executed the prisoner for the preservation of the ship and her crew. It was also conventional to report that such decisions were unanimous.<ref name="ftn56"> Examples include the ''Albemarle'' (1791), the ''Royal Admiral'' (1792), the ''Surprize'' (1794), the ''Marquis Cornwallis'' (1795), the ''Barwell'' (1797), the ''Minerva'' (1798), and the ''Ann'' (1800).</ref>

Thus, on the ''Albemarle'' (1791), the master convened a conference that included the naval agent (a naval lieutenant assigned to the convoy for monitoring the navigation), the ship’s officers and crew, and the soldiers. The naval agent specifically noted in his account that there were no other ships in company to hold a formal trial. According to the captain:

. . . it was unanimously thought proper for the future preservation of the ship and our lives, and to strike terror in the convicts, immediately to hang the two last at the fire-yard-arm. . .<ref name="ftn57"> ‘Extract of a Letter from Madeira, 24<sup>th</sup> April 1791, Account of the Mutiny on B’d the Albemarle’, TNA CO201/6/291-292; HRNSW Vol.1:2, pp.487-488.</ref>

On the ''Marquis Cornwallis'' (1795), the First Mate wrote:

It was therefore agreed unanimously, by all the free persons on board, that the ringleaders should be punished with severity, which was put into execution. . . Had these steps not been taken the ship could never have been secure, as it evidently appeared the convicts, headed by the serjeant, had bound themselves by oath to murder the captain and the principal officers.<ref name="ftn58"> HRNSW Vol.3, pp.107-108.</ref>

While we lack a detailed account of several ships, there appear to have been ship’s conferences on all of the vessels where mutinies or conspiracies occurred, except three. One of these was the ''Lady Shore'', where the mutiny was successful, but in the other two cases – the ''Britannia'' (1796), the master was strongly censured and on the ''Hercules'' (1801), found guilty of manslaughter for the failure to consult. The situation is much more complicated when it comes to the alleged conspiracies, since in some cases, the reaction was mild, but we know of ship’s councils in two of the eight cases.

It was usual for there to be a judicial inquiry when these ships arrived in Sydney, particularly where men had died, where there had been a significant amount of flogging, and/or where there was a formal protest by one of the convicts or military officers. As long as there had been a conference and unanimity, it was rare to second-guess the decisions taken in the immediate aftermath of the mutiny or conspiracy. However, it was also rare for the authorities in Sydney to impose further punishment on the conspirators, even where the ship’s officers had deferred making a decision until their arrival.

In the case of the ''Britannia'' (1796), there had been extensive flogging and some of those punished had subsequently died. A judicial inquiry was held and, as the Judge Advocate reported in his journal: 

As these punishments had been inflicted by the direction of the master, without consulting any of the officers on board as to the measure of them he was highly censured. . .<ref name="ftn59"> ‘Proceedings of a Bench of Magistrates. . . Charges Imputed to Captain Dennett’, 13 June 1797, TNA CO201/14/31ff; HRNSW Vol.3, pp.240-277; HRA Series 1, Vol.2, pp.33-68; Papers re Deaths on Board the ''Britannia'', 5/1156, No.13, Reel 1929 or COD 261.</ref>

The second case was that of the ''Hercules'' (1801), where Captain Betts was prosecuted in the Court of Vice Admiralty, for the deaths of 12 or 13 convicts in the course of the insurrection, and for executing one of the ringleaders in the immediate aftermath. He was cleared of the deaths that occurred as a direct result of the mutiny – indeed, very little evidence was taken in relation to this charge, so it appears that the court did not regard it as a matter requiring serious attention.

However, Betts was found guilty of manslaughter on the second charge and fined £500, a substantial sum of money. Based on the evidence at the trial, it seems likely that all of the officers agreed with his course of action, but he had failed to conduct a formal consultation; and the execution had possibly occurred an hour after the mutiny was over (although there was conflicting evidence on this point). The sentence was suspended for confirmation by the Home Secretary, and the ultimate outcome is unknown.<ref name="ftn60"> ‘Proceedings of a Vice Admiralty Court held at Sydney the 6<sup>th</sup> day of July 1802. . .’, TNA CO201/21/244-254.</ref>

== 6.4 Punishment ==
While the execution, flogging and/or confinement of mutineers were strictly-speaking not punishments, but rather acts of self-defence necessary to ensure the safety of the ship and its crew, contemporaries were not always careful in making this distinction.

''Executions''

There were executions on four of the 11 ships where an actual mutiny or conspiracy was involved. Two of the ringleaders of the mutiny on the ''Albemarle'' (1791) were hung at the fore-yard arm following a ship’s council. Lieutenant Robert Parry Young, the naval agent, was clearly uncomfortable with the decision, writing to the Admiralty that it was for the general good and the safety of the ship: ‘I had no authority for so doing but the moment required a severe example’ and he hoped their Lordships would support him if there were any bad consequences. ‘It was with difficulty I could prevent the ship’s company from executing more of them from revenge, for had the convicts not been repulsed, the massacre would have been considerable on our part.’<ref name="ftn61"> Young to Stephens, 24 April 1791, TNA HO28/8/99-100a; TNA T1/694; TNA ADM106/2638, 7 July 1791; HRNSW Vol.1:2, pp.487-8.</ref>

In the case of the ''Ann'' (1800), one of the principals was shot in the presence of all the convicts, who had been assembled on deck for the purpose. Captain Betts shot one of the ringleaders on the ''Hercules'' (1801), not so much as a considered act designed to suppress any further intentions of mutiny, but on an adrenalin high, egged on by the other officers on the quarter deck.<ref name="ftn62"> On the ''Ann'' (1800) – Letter from Captain Stewart at Rio de Janeiro, 26 August 1800, published in Hull Packet, 10 February 1801. On the ''Hercules'' (1801) – Betts to the Court of Vice Admiralty, 8 July 1802, ‘Proceedings of a Vice Admiralty Court held at Sydney the 6<sup>th</sup> day of July 1802. . .’, TNA CO201/21/249-250.</ref>

We have few details of what transpired on the ''Sugar Cane'' (1792), but the decision was taken by the naval agent, following what was described as ‘the necessary inquiry’. The one brief account we have of the episode says that many of the convicts were out of irons, but there is no mention of an actual uprising. There appears to have been some kind of judicial inquiry upon arrival in New South Wales, since the Judge Advocate wrote that the Agent:

. . . thought it indispensable to the safety of the ship to cause an instant example to be made, and ordered one of the convicts who was found out of irons to be executed that night. Others he punished the next morning; and by these measures, as might well be expected, threw such a damp on the spirits of the rest, that he heard no more during the voyage of attempts or intentions to take the ship.<ref name="ftn63"> David Collins, ''An Account of the English Colony in New South Wales''<nowiki> [1798], Sydney: A.H. & A.W. Reed, 1975 (hereafter Collins), Vol.1, p.261.</nowiki></ref>

It is difficult for us to imagine why such an extreme response was considered necessary, but it needs to be placed in context. These men were bound together in a small society, surrounded by water, thousands of miles from the nearest British authorities. The punishment for ‘piracy’, the legal term for a mutiny at sea, was hanging on the shoreline at Execution Dock. The British Navy would go to great lengths to track down mutineers who successfully took one of their ships, sending the ''Pandora'' all the way out to Tahiti, in an attempt to capture the men who had taken the ''Bounty''.<ref name="ftn64"> Geoffrey Rawson, ''Pandora’s Last Voyage'', London: Longmans, Green and Co Ltd,'' ''1963.</ref>

In some ways, the early Australian convict transports were in a similar position to the wagon trains that crossed the American prairies in the second half of the 19<sup>th</sup> century, where the emigrants were obliged to make and enforce their own system of justice once they had moved beyond the boundaries of the state. When confronted with a killing by one of their number, the emigrants were obliged to organise a search party, constitute a court, make a decision on guilt or innocence, agree on a form of punishment and carry out the same.

As with merchant ships, they relied on a form of popular justice, meeting as a body politic to make decisions rather than deferring to the notional leader of the company. And, as with the merchant ships, it was not unusual for them to appoint strangers – individuals from other companies, or people they had met along the trail – to perform the functions of judge and jury.<ref name="ftn65"> John Phillip Reid, ''Policing the Elephant: Crime, Punishment, and Social Behavior on the Overland Trail'', San Marino, California: Huntingdon Library, 1997, pp.110, 117-132.</ref>

Expulsion was an option, but whether from a sense of justice or a concern for their fellow emigrants, there were numerous occasions on which they resigned themselves to the necessity of taking the offender’s life. As a journal-keeper on one of these wagon trains wrote:

It was justice conscientiously administered, without law – an action necessary under the circumstances. . . It was a matter the necessity of which was deplorable, but the execution of which was imposed upon those who were on the spot and uncovered the convincing facts.<ref name="ftn66"> Ibid p.196.</ref>

There were, however, a number of significant differences between American wagon trains and British merchant ships. The ships’ masters were expected, as a matter of convention and ultimately of law, to organise a conference of all the officers before making life and death decisions. In taking a life, they were expected to have acted in the immediate aftermath of a violent uprising, and for the safety of the ship; unlike the emigrants on the Overland Trail, they were not permitted to organise a criminal trial and execute justice in their own right. Unlike the wagon trains, merchant ships engaged in the convict trade were bound by a formal system of justice, and they were subject to the criminal law once they arrived at their destination.

''Flogging''

Flogging was relatively common on merchant and naval ships, for the maintenance of order, and it was generally necessary on ships carrying convicted criminals to the Antipodes. It was a disciplinary measure, similar to the corporal punishment imposed (at the time) by a parent on a child, a teacher on a student or a master on a servant. In the case of insurrections, it was also justified as a means of self-defence to restore the safety of the ship.

In most cases, floggings were confined to the ringleaders, or to convicts who had been caught out of irons, and the number of lashes was relatively few. On the ''Albemarle'' (1791), for example, once two of the ringleaders had been hung, punishments were administered to a handful of others – three dozen to one and two dozen to another two. This was an extraordinarily mild response, given the seriousness of the threat to the ship.<ref name="ftn67"> Robert Parry Young, ‘Remarks on board the Albemarle Transport, the 9<sup>th</sup> April 1791’, TNA T1/694/211 & TNA HO28/8/101-102a.</ref>

With the ''Ann'' (1800), one of the ringleaders was shot and another was given 250 lashes. That was a serious punishment, but properly administered it should not have threatened the man’s life. Floggings of this kind were frequently handed out to soldiers and marines for offences that were much less serious.<ref name="ftn68"> Letter from Captain Stewart at Rio de Janeiro, 26 August 1800, published in Hull Packet, 10 February 1801.</ref>

In the case of the ''Barwell'' (1797), the risk of a mutiny was very real, with a significant number of the convicts out of irons. The ship’s journal is difficult to read, but it appears that several dozen men were given two or three dozen lashes, a mild punishment, however one of the ringleaders was given ten dozen, another eight and several six. This was a measured response and it would not have been considered inappropriate by the authorities in Sydney or at home.<ref name="ftn69"> Journal of the ''Barwell'', IOR L/MAR/B/420G, 36-37.</ref>

The punishment on the ''Marquis Cornwallis'' (1795) was more extensive. As noted above, there was clear evidence in this case that the sergeant of the guard had been collecting knives so the convicts could cut their irons, and he had disabled many of the sentries’ weapons. A significant number of convicts had freed themselves from their shackles. It will be recalled that Captain Hogan was slow in responding, waiting until he had clear evidence that the conspiracy was real, and he interrogated the suspected mutineers over several days, collecting detailed statements. Forty-two men and eight women were punished, in varying degrees. There was a second conspiracy around four weeks later, and on this occasion, around forty of the leaders were ‘severely punished’.

Unfortunately, the surviving sources do not explain how many lashes they were given. The only occasion where a number is mentioned is two dozen lashes given to one of the soldiers, a mild punishment. The subsequent inquiry by the Judge Advocate concluded:

. . . we have no difficulty in saying we think Mr Hogan, situated as he found himself with a dangerous conspiracy in his ship on the point of breaking out and headed by some of the most daring and desperate offenders that the jails of Ireland could produce, could scarcely have acted otherwise than he did, and we are of opinion that nothing but the steps he took ensured the safety of the ship and the preservation of the lives of all on board.<ref name="ftn70"> ‘Inquiry re Conspiracy. . . ‘, SRNSW SZ765, Photocopy COD 17, p.387; TNA CO201/13/160a.</ref>

''Confinement and Removal from the Ship''

Where military officers, gentlemen convicts or crew members were involved, and/or where the evidence was unclear, ships’ captains were much less willing to resort to violent punishment and suspected conspirators were confined in some way. 

''The ship’s company:'' The crew members on the ''Albemarle'' (1791) who were thought to have assisted with the mutiny were confined and offloaded at Madeira: there is no evidence that they were flogged, and it is unlikely that they were later punished in any other way. This was not unusual: when sailing in company, it was common for unruly crew members to be removed from the ship and placed on board the commodore, or one of the other vessels in the convoy.<ref name="ftn71"> Robert Parry Young, ‘Remarks on board the ''Albemarle'' Transport’, the 9<sup>th</sup> April 1791, TNA T1/694/211 & TNA HO28/8/101-102a.</ref>

On the ''Surprize'' (1794), Captain Campbell had become increasingly concerned at the behaviour of his Chief Mate, a Mr Macpherson. At a time when there were already allegations of a conspiracy among the convicts, some of the crew claimed that Macpherson had deliberately set the sails so as to cause her to drop back in the fleet. Campbell spoke to the commodore (''HMS Suffolk'') and had him removed from the ship. While the Scottish Martyrs sought to make a great deal of this, it is clear that Macpherson was openly associating with the republican exiles, and had suffered some kind of breakdown; he had lost the confidence of his captain. There was nothing untoward about Campbell’s response: two weeks later, the master of the ''Ponsborne'', an East Indiaman sailing in company with the ''Surprize'', sent three men, including the boatswain’s mate, on board the ''Suffolk'' for disorderly behaviour, receiving three others in their place.<ref name="ftn72"> ‘A Conspiracy. Declaration of Joseph Draper & Others v Tho<sup>s</sup> Palmer, W<sup>m</sup> Skirving and Other Conspirators, 1794. For His Excellency the Governor of New South Wales’, SRNSW 5/1156, pp.2, 4 & 12<nowiki>; </nowiki>Patrick Campbell at TNA CO201/12/188-189 & HRNSW Vol.2, pp.860-1; Journal of the ''Ponsborne'', IOR L/MAR/B/462J, 15 May 1794.</ref>

''The military guard:'' One of the soldiers on the ''Boddington'' (1793) was placed in irons for the duration of the voyage, with the expectation that he would be punished in the colony. There is no evidence that he was.<ref name="ftn73"> Kent to Nepean, 18 March 1793, TNA HO42/25/160-161a.</ref> On the ''Marquis Cornwallis'' (1795), Sergeant Ellis – against whom there was clear evidence of his complicity in the plot – was confined on the poop deck and then flogged to extract a confession, although the number of lashes is unknown. One of the privates was also flogged, twice, receiving two dozen the second time, but another two were merely confined and one of these had his head shaved.<ref name="ftn74"> TNA CO201/13/150a, 156, 158a; HRNSW Vol.3, pp.103-109.</ref>

''Convicts:'' While Captain Campbell believed that two of the Scottish Martyrs were at the bottom of the conspiracy on board the ''Surprize'' (1794), he was conscious that their treatment was being closely followed in the British press, and they were simply confined. Campbell wrote to the ship‘s owners:

I have taken every means in my power to be cautious in the treatment of so many descriptions of people, and it is reasonable to suppose from the connections of Palmer and Skirving, the two apparent ringleaders of this Plot, that every exertion will be used in their favour, and to slander those whose lives they meant to take but whatever you may hear you may rest perfectly satisfied that I have taken such cautious Steps as to put it out of the power of the most malicious to injure me or any of the Civil Officers appointed by Government. . .<ref name="ftn75"> Copy of Capt. Campbell’s letter from Rio Janeiro to Messrs Camden, Calvert & King, n.d., TNA CO201/12/186.</ref>

On the ''Minerva'' (1799), Captain Salkeld responded to the initial rumours of a conspiracy by locking 14 of the supposed mutineers in a strong room. The stories persisted, but Salkeld was unable to find hard evidence of a conspiracy. The surgeon, John Washington Price, described their dilemma:

Though we are sensible of his guilt, yet we could not procure sufficient evidence against him (those who could give it being afraid to come forward), we permit him to remain unpunished, but two of his confederates who have been in the habit of both receiving and forwarding messages from and to him have been put in double irons with a chain passing from each through the bars that are a midship in the prison. And there we leave them to commune together and to deliberate on the best method to effect their liberation.<ref name="ftn76"> Pamela Jeanne Fulton (ed.), ''The Minerva Journal of John Washington Price'', Melbourne: Melbourne University Press, 2000, pp.120-121.</ref>

= 7. Accountable in Law =
As previously observed, the masters of convict transports were legally accountable for the manner in which they responded to a mutiny or a conspiracy on board their ships. Prior to the formal establishment of a Court of Vice Admiralty in 1798, the Governors relied on the Judge Advocate and a bench of magistrates to conduct administrative inquiries into mutinies, conspiracies and allegations of maltreatment on board the convict transports.

''Unreported Inquiries:'' There is no formal record of such an inquiry for the ''Albemarle'' (1791), where two of the mutineers had been executed, but the Judge Advocate wrote a detailed account of the mutiny in his journal, which almost certainly means that he conducted some kind of investigation.<ref name="ftn77"> Collins, Vol.1, p.151.</ref> The same applies to the ''Sugar Cane'' (1792), where one of the many convicts out of irons had been executed.<ref name="ftn78"> Collins, Vol.1, p.261.</ref>

A number of papers have survived relating to events on the ''Surprize'' (1794). Shortly after their arrival in Sydney Cove, two of the Scottish Martyrs submitted a petition to the Governor, insisting that Captain Campbell had obtained confessions and testimonies through promises, bribes, threats and torture, and proposing that criminal charges be instituted against him. Campbell provided the Governor with a contemporaneous account of the events on board the ship, and the evidence that had been collected throughout the course of his inquiries, seeking the prosecution and punishment of two of the Martyrs and their followers.

There is no record of these matters in the journal of the Judge Advocate, and the Acting Governor, Francis Grose, and Governor Hunter (when he arrived) seem to have dealt with the matter themselves, refusing to take any action against either side.<ref name="ftn79"> ‘A Conspiracy. Declaration of Joseph Draper & Others v Tho<sup>s</sup> Palmer, W<sup>m</sup> Skirving and Other Conspirators, 1794. For His Excellency the Governor of New South Wales’, SANSW 5/1156; HRNSW Vol.2, pp.862-873, 879-882.</ref> One of the Martyrs later published a self-serving account, and historians have been inclined to accept their version of events, but we are no better equipped to ascertain the truth today than Governor Hunter was in 1794.<ref name="ftn80"> Thomas Fyshe Palmer, ''A Narrative of the Sufferings of T.F. Palmer and W. Skirving during a Voyage to New South Wales'', 1794, 2<sup>nd</sup> ed., Cambridge, 1797.</ref>

''Formal Judicial Inquiries:'' The first detailed transcript of a judicial inquiry relates to the flogging of convicts on board the ''Marquis Cornwallis'' (1795). Captain Hogan lodged a formal ‘protest’ concerning the mutiny shortly after arrival, but the formal investigation was initiated as the result of a written complaint by the corporal of the guard who had been confined for his supposed part in the conspiracy. He accused Hogan of ‘inhumane treatment’ and false imprisonment. The inquiry was chaired by the Judge Advocate, David Collins, assisted by the Acting Colonial Surgeon, William Balmain, in their capacity as Justices of the Peace.

Balmain conducted some kind of preliminary investigation, collecting statements in the form of affidavits, and the hearing itself seems to have lasted for a single day. Collins and Balmain reported to the Governor:

We beg leave to lay before you the accompanying depositions and papers, from a careful examination of which we have no difficulty in saying we think Mr Hogan, situated as he found himself with a dangerous conspiracy in his ship on the point of breaking out and headed by some of the most daring and desperate offenders that the jails of Ireland could produce, could scarcely have acted otherwise than he did, and we are of opinion that nothing but the steps he took ensured the safety of the ship and the preservation of the lives of all on board.<ref name="ftn81"> ‘Proceedings on Board the Ship ''Marquis Cornwallis'': In the Matter of Capt. Hogan’s Treatment of the Convicts’, SANSW SZ765, Photocopy COD 17 pp.387-398; TNA CO201/13/154-160a; ‘Conspiracy to Seize the ''Marquis Cornwallis''’, HRNSW Vol.3, pp.102-111.</ref>

Another inquiry was conducted the following year by three justices of the peace into the floggings on the ''Britannia'' (1796). Once again, there was some form of preliminary investigation to marshal the evidence, and testimony was heard over five days. The magistrates reported to the Governor:

After maturely considering the Evidence on both sides that has been brought before us on this Occasion, We are unanimously of Opinion that Captain Dennett’s Conduct in punishing the convicts in the manner he did for conspiring to take the Ship was imprudent and ill-judged, in as much as he did not take the sense of the Officers and Ship’s Company, individually, as to the steps necessary to be adopted for the preservation of the Ship and the lives of the People therein, for altho’ they might have been all present, and many of them assisting on that occasion, yet their not having been formally consulted renders it questionable whether the Captain’s proceedings would have met their unanimous approbation, and so far his Conduct in this instance may be regarded as bordering on too great a degree of severity. But we also clearly concur of Opinion that the Surgeon (Mr Byers) was beyond all the other Bystanders particularly culpable in not stedfastly protesting against the Cruelties which he charges Captain Dennett with and was therefore inexcusably negligent and indifferent in the performance of his duty, and consequently in an eminent degree, accessory to the inhumanities he complains of, such is our Opinion of the first charge. . .

Since this was an administrative process, they also recommended reform of the transportation system:

Before we conclude, we here beg leave to offer to his Excellency our Opinion that all Ships coming to this port with Transports should have on board an Officer of the Crown, who should be invested with proper power and authority, as well for the conducting of the Ship as the particular inspection and direction of the management of the Convicts on Board.<ref name="ftn82"> ‘Proceedings of a Bench of Magistrates held at Sydney ye 7<sup>th</sup> June &c 1797’, TNA CO201/14/52; ‘The Case of the Convict Vessel the ''Britannia’'', HRNSW Vol.3, pp.240-277.</ref>

''Court of Vice Admiralty:'' The only trial in the Court of Vice Admiralty in this period involved the prosecution of Captain Luckyn Betts of the ''Hercules'' (1801) for the unlawful deaths of 13 convicts in the court of the mutiny, and the deliberate execution of Jeremiah Prendergass, one of the ringleaders, shortly after the insurrection had been suppressed. Evidence was heard over two days, and as previously noted, Betts was found guilty of manslaughter:

The Court after mature deliberation are satisfied that a mutiny actually existed on board the ship Hercules of which the prisoner Luckyn Betts was Master, do therefore acquit him of the first Count in the Indictment but find him guilty of Manslaughter on the Second And do Sentence him to pay a Fine of £500 to be appropriated to the Orphan Fund of this Colony, and that the said Luckyn Betts be imprisoned until the said Fine of £500 be paid.<ref name="ftn83"> ‘Proceedings of a Vice Admiralty Court held at Sydney the 6<sup>th</sup> day of July 1802. . .’, TNA CO201/21/244-254 at p.254; ‘The Trial of Captain Betts’, HRNSW Vol.4, pp.810-818 at p.818. </ref>

The prosecution was based on the evidence of the senior military officer on board, supported by his subordinates, and Betts’ account was corroborated by the ship’s officers. There seems little doubt that at the time, the military officers had supported Prendergass’s execution, which may account for the finding of manslaughter rather than murder.

This was probably the most serious convict mutiny in the history of the Australian transportation system, and the court showed little interest in the deaths which occurred in the process of suppressing it, in spite of evidence indicating that some of these occurred in remote corners of the ship in the final stages of the insurrection.

The court was most concerned to establish the circumstances surrounding Prenderass’ death, and focused on the time which had elapsed since the retaking of the quarterdeck and the failure of Betts to hold a ship’s council. The defence witnesses insisted that the safety of the ship had not yet been secured, and Betts sought to defend his actions by describing his emotional state at the time:

A Blunderbuss had been Snapt at my Head the Consequence of which the Head of Providence had averted. I had just heard the solemn declaration of a dying man, who was reproaching Prendergass for being the Sole Author of the Mutiny. Prendergass had but a little time before been detected with an Adze in his Hand Attempting the Life of one of the Seamen. . . the deck was Strewed with dead Bodies, the Confusion was great, the Agitation of my Mind was more than Language can describe, and perhaps, unless You, Gentlemen, can for a Moment conceive Yourselves in my Situation, it will be impossible for you to have any thing like and adequate Idea of it.<ref name="ftn84"> ‘Proceedings of a Vice Admiralty Court held at Sydney the 6<sup>th</sup> day of July 1802. . .’, TNA CO201/21/249-250.</ref>

Again, this may help to explain why the finding was not murder. Governor King suspended the sentence, and deferred to the authority of the Home Secretary, however the ultimate outcome of the matter is not clear. The Transport Board did not consider that he had breached his contractual obligations.<ref name="ftn85"> Transport Board to King, 14 November 1803, ''Historical Records of Australia'', Series 1, Sydney: Library Committee of the Commonwealth Parliament, 1914 (hereafter HRA) Series 1, Vol.4, p.425.</ref> 

''Prosecution of Mutineers:'' There was little interest in pursuing the mutineers once they had arrived in New South Wales. Given the violence of some of the insurrections, and the seriousness with which mutiny was regarded in British courts, this comes as a surprise. None of the convicts who were involved in the mutinies on the ''Albemarle'' (1791) and the ''Hercules'' (1801), the most violent of the uprisings, were tried upon their arrival in New South Wales. Some of the supposed conspirators on the ''Barwell'' (1797) were tried and acquitted.<ref name="ftn86"> HRNSW Vol.3, pp.467; TNA HCA1/64.</ref> Five of the seamen on the ''Hercules'' (1801) were charged ‘with force and arms upon the High Seas of piratically feloniously and wickedly combining to stir up bring about and make revolt and mutiny and did contribute to seize the ship and murder the officers and passengers’, but the evidence was not strong and the prosecutions were abandoned after the first of the men were acquitted.<ref name="ftn87"> ‘Proceedings of a Vice Admiralty Court. . .’, 14 July 1802, TNA CO201/21/255-257.</ref>

British courts were reluctant to revisit the decisions made by ships’ captains a thousand miles away, in the middle of the Atlantic Ocean. They were often faced with widely differing accounts of what happened by parties who had developed deep suspicion, and in some cases, loathing, for one another in the course of the voyage. Criticism tended to focus on procedural matters – the time elapsed since the security of the ship was restored, and whether the captain had consulted with his officers.

But unlike wagons trains on the Overland Trail, convict transports were governed by law, and it is clear that ships’ captains moderated their behaviour out of a concern at possible criminal prosecution and, in the case of well-connected gentlemen convicts, potential scrutiny by the press.

= 8. Too Great a Degree of Severity? =
== 8.1 Kindness and Humanity ==
In some cases, however, we encounter captains who sailed from England with the expressed hope of not needing to punish any of the convicts in the course of the voyage. This seems to have been the case on the'' Minerva (1799) ''where, after they had received allegations of yet another conspiracy, Surgeon Price wrote:

We have had very great hopes, and indeed wished very much, that in no instance during the voyage. . . we should have occasion to punish any of these too unfortunate men, but their hopes were frustrated, and our wishes proved abortive.<ref name="ftn88"> Pamela Jeanne Fulton (ed.), ''The Minerva Journal of John Washington Price'', Melbourne: Melbourne University Press, 2000, p.88.</ref>

The master of the'' Friendship (1799)'', Hugh Reid, took his wife with him on the voyage, and prior to sailing from Ireland, she noted in her journal that:

Captain Reid thought that it would be possible to take the prisoners to the place of their destination without having an occasion intervene for inflicting on them punishment; or any severity beyond that of attending to their safe custody. . .<ref name="ftn89"> Mary Anne Reid, ‘Cursory Remarks on Board the Friendship’'', Asiatic Journal'', September 1819, pp.238-239.</ref>

Reid had been Chief Mate on the ''Marquis Cornwallis'', and when he and his wife dined with his former master, Michael Hogan, at the Cape, he reported that the prisoners had behaved very well, and that ‘they had put it out of his power or that of his officers to lay a finger on them: and that he was in hopes of landing them at the place of their destination without introducing the machinery of punishment’. Hogan – who was clearly more comfortable with using the lash if it was required – was surprised.<ref name="ftn90"> Mary Anne Reid, ‘Cursory Remarks on Board the Friendship’'', Asiatic Journal'', November 1819, p.455.</ref>

On their return to England, Mrs Reid wrote that her husband received letters from relatives of the convicts they had carried out:

It was particularly gratifying to my husband to receive letters from the friends of those poor men whom embarked from Ireland, expressive of their sincere thanks for the great kindness and humanity shewn to them on the passage, and observing that they had mentioned that the only hardship they experienced was the necessary confinement, which the laws of their country and the safety of the ship required.<ref name="ftn91"> Mary Anne Reid, ‘Cursory Remarks on Board the Friendship’'', Asiatic Journal, ''December 1820, p.577.</ref>

What is significant is not so much that the convicts’ relatives sent these letters, but that Hugh and Mary Ann Reid were grateful to have received them. This was how Captain Reid wanted to be known.

A great deal of nonsense has been written about the transportation system, but in general, convicts on a voyage to the Antipodes were treated well. When the women of the ''Lady Juliana'' (1789) asked the ship’s surgeon if they could substitute tea and sugar for some of their daily serving of salted meat, he made a recommendation to the contractor, who passed it on to the Navy Board with his warm support. From that time forward, all female convicts on Botany Bay ships were issued with a ration of tea and sugar throughout the voyage. And when it was realised that a number of the women were pregnant, the government organised a supply of linen, which Richards arranged to have made up. On their lying-in, convict women were supplied not only with clouts and pilchers for their newborn children, but bedgowns and nightcaps for themselves. This is a very different account of the transportation system than the lurid tales that amateur and family historians like to tell.

Of course, the living conditions in a convict prison could be deeply unpleasant, particularly when prisoners were sent on board with typhus and/or the ship encountered high seas and stormy weather, but those were circumstances beyond the control of the ships’ officers.

== 8.2 An Intrinsically Pathological Situation  ==
There is one ship, however, where the level of violence used in response to the conspiracy indicates that a deeply pathological situation had developed. The atmosphere on board the ''Britannia'' (1796) was tense from the outset – shortly before she sailed from Cork, there had been an attempted mutiny on one of the convict ships, although the details are few, and it is unclear which vessel was involved.<ref name="ftn92"> ''London Chronicle'', 13 September 1796; ''Edinburgh Advertiser'', 16 September 1796, p.1.</ref>

A significant number of the men had been associated with a revolutionary movement known as the Defenders, which relied on the administration of oaths to maintain secrecy. Some of these men had participated in a violent battle with the Irish Militia in May of the previous year, and thus were familiar with the exercise of extreme violence. Others had been involved in lynch mobs and conspired to assassinate public officials.<ref name="ftn93"> Barbara Hall, ''Death or Liberty: The Convicts of the Britannia, Ireland to Botany Bay, 1797'' (hereafter Hall), Sydney: Barbara Hall, 2006.</ref>

Nor were the ship’s officers reassured by the soldiers who had been sent on board. Several of them had come directly from the Savoy prison, four had run from the ship at Cork, they were insolent and one had threatened the cook with a knife. They had proved unreliable as sentries, one falling asleep on watch, and another getting drunk with the seamen.<ref name="ftn94"> Hall, pp.237, 239; Journal of the ''Britannia'', IOR L/MAR/B/285XX, 8 & 14 November, 23 December 1796, 2 January 1797.</ref>

When Captain Dennett inquired of the resident agent at Cork whether the government had any instructions as to how to deal with such an unruly shipload of prisoners, he was told that there were none. He was to act as circumstances might require. Dennett later explained:

Left then alone in a situation entirely new, I was determined if the conduct of those committed to my charge would but permit to make them as comfortable as it was possible, but at the same time if they behaved ill to have them punished in such a manner as to deter others from being guilty of similar offences. I have always been of opinion that severity in some instances is lenity in general.<ref name="ftn95"> ‘Captain Dennott’s Address to the Court’, 21 June 1797, HRNSW Vol.3, p.275</ref>

Upon their arrival at Rio de Janeiro, the convicts were transferred to an island in the harbour for the sake of their health. While the details are scant, it is evident that several of the convicts attempted an escape, attacking the guard and trying to steal their muskets.<ref name="ftn96"> TNA CO201/14/42a, 43, 47a & HRNSW Vol.3, p.257, 258, 266; Journal of the ''Britannia'', 17, 21 & 22 February 1797, and evidence attributed to Kit Hughes on 25 March 1797.</ref>

Several days after sailing from port, one of the men who had been liberated because of good behaviour, came aft and advised the captain that the convicts in the fore prison had been administering oaths and were plotting to take the ship. Having had the story confirmed by a second prisoner, Dennett set about flogging the conspirators to make them confess – six men were given 300 lashes each in the course of the afternoon, and after some resistance, they implicated others. At the end of the day, the fore prison was thoroughly searched and a large number of cutting implements were uncovered – knives, saws, scissors, spike nails, staples and iron hoops. There was no question that an attack was being planned.

Dennett now set about punishing men for their involvement in this conspiracy and in the attempted escapes at Rio de Janeiro. The second day began with the flogging of two men who had been given 300 lashes the day before. They were given another 500 each. When the cat ceased to open their skin, Dennett had the boatswain make up another. By the time that day was over, another 5,700 lashes had been administered to 20 men, and another 1,575 were given the following day. In all, more than 8,000 lashes administered to 31 men over the course of two and a half days.

One can imagine what it must have been like in the prison of the ''Britannia'', listening to the sounds emanating from the deck above. On the third day of flogging, one of the convict women threw herself overboard. She was already suffering from mental illness, but her suicide was a reaction to the events of the previous days. One of the soldiers followed her the next day, ‘out of a fit of insanity’. Both of the men who had been given 800 lashes died in the weeks that followed, and three more besides. When the ''Britannia'' arrived in Sydney Cove two months later, several of the prisoners had to be sent to hospital, including one man who had been given 700 lashes.<ref name="ftn97"> ‘Proceedings of a Bench of Magistrates held at Sydney ye 7<sup>th</sup> June &c 1797’, TNA CO201/14/31ff; ‘The Case of the Convict Vessel the ''Britannia’'', HRNSW Vol.3, pp.240-277; HRA Series 1, Vol.2, pp.33-68; Papers re Deaths on Board, SANSW 5/1156, or Copy at COD 261.</ref>

As previously noted, a judicial inquiry was established into the events on board the ''Britannia'', which concluded that the captain’s behaviour was ‘bordering on too great a degree of severity’. It also found that the surgeon superintendent, the government’s agent on board the ship, was ‘particularly culpable in not steadfastly protesting against the Cruelties’ practised by Captain Dennett.

In the aftermath of the Stanford Experiment (1973), we understand much better what happened on the ''Britannia''. In reflecting on their experiment at the time, Philip Zimbardo and Craig Haney wrote that the anti-social behaviour of the students who had acted as guards ‘were not the product of an environment created by combining a collection of deviant personalities, but rather the result of an intrinsically pathological situation which could distort and rechannel the behaviour of essentially normal individuals’.<ref name="ftn98"> C. Haney, W. Banks and P. Zimbardo, ‘Interpersonal dynamics in a simulated prison’, ''International Journal of Criminology and Penology'', (1973) 1, pp.69-97, at p.90.</ref> The sadistic treatment of detainees at Abu Ghraib in 2003 reminds that these lessons have still not been learned.

Zimbardo and Haney have argued that to a significant extent, this behaviour is situational: ‘the ‘psychologic’ of the environment was more powerful than the benign intentions or predispositions of the participants.’ No doubt this explains some of what happened on the ''Britannia'' in 1797.

But others have pointed to role that dehumanisation plays in the abuse prisoners and prisoners of war, the systematic devaluation of human attributes in outgroups.<ref name="ftn99"> See, for example, G. Tendayi Viki, Daniel Osgood and Sabine Phillips, ‘Dehumanization and self-reported proclivity to torture prisoners of war’, ''Journal of Experimental Social Psychology'', (2013) 49, pp.325-328.</ref> There may also have been some of this in the reaction to the conspiracy on the ''Britannia'' in the middle of the South Atlantic on the 23<sup>rd</sup>, 24<sup>th</sup> and 25<sup>th</sup> of March 1797. Among the ships’ officers and the public authorities in New South Wales, there was not a great deal of respect for the Irish and there was significant fear of political rebels such as the Defenders. In writing of the conspiracy on the ''Boddington'' (1793), the Judge Advocate, David Collins referred to ‘the wild lawless Irish’, and in reflecting on the events on board the ''Marquis Cornwallis'' (1795), he wrote:

It appeared that the men were for the most part of the description of people termed Defenders, desperate, and ripe for any scheme from which danger and destruction were likely to ensue. The women were of the same complexion; and their ingenuity and cruelty were displayed in the part they were to take in the purposed insurrection, which was the preparing of pulverised glass to mix with the flour of which the seamen were to make their puddings. What an importation!<ref name="ftn100"> Collins, Vol.1, pp.262, 380-381.</ref>

Governor Hunter wrote to the Home Secretary of ‘such horrid characters as the people called Irish Defenders, who. . . I wish had been either sent to the coast of Africa or some place as fit for them’.<ref name="ftn101"> Hunter to Portland, 12 November 1796, TNA CO201/13//218a.</ref>

Governor King referred to the ‘mutinous Irish’ on the ''Hercules''.<ref name="ftn102"> King to Hobart, 9 May 1803, HRA Series 1, Vol.4, p.85.</ref> And a newspaper report in Sydney concerning one of the men who arrived on that ship claimed that ‘he was well known in Ireland during the rebellion for his abominable depravities. . .’<ref name="ftn103"> ''Sydney Gazette'', 19 January 1806, p.1.</ref>

What is striking, however, about the responses to the mutinies and conspiracies on board convict ships in the early years of the transportation system, is how rare such an abusive response was.

= 9. Conclusion =
No doubt there were false alarms, but one in four convict transports carrying men in the period 1787 to 1801 experienced a mutiny or an actual conspiracy, and if we include the mutinies on the hulks and the smaller vessels which carried convicts to the port of embarkation, then the ships’ officers did need to exercise great care in the management of the male convicts, particularly where Irish political prisoners were concerned. As the tragic fate of the captain and the chief mate on the ''Lady Shore'' demonstrated, there was a high cost to pay when the authorities under-estimated the prospects of an uprising.

Hunter was right to say that fears of insurrection sometimes excused ‘the enforcement of too great a degree of severity in the discipline’, but these occasions were rare. In general, the punishment of convicts in the passage to New South Wales was moderate, even when violent mutinies were concerned, and in several cases, we encounter masters who dreamed of carrying the prisoners to their destination without the need to punish a single one.

While the courts were reluctant to second-guess events which took place some thousands of miles away at sea, there is evidence that the prospect of subsequent scrutiny served to moderate the response to an insurrection. The situation of a convict on board a transport bound for the Antipodes was very different from that of a slave bound for the Americas, or an emigrant on the Overland Trail.

When mutinies did occur, the ships’ officers were quite willing to execute one of the ringleaders to ensure the safety of the ship, or to flog a number of the conspirators. But with only two exceptions, they paused to seek counsel from the ships’ officers, military officers, and free passengers, and there is only one occasion on which the conspiracy became ‘a convenient cloak for cruelty’.

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[Category:Mutinies]