Coldstream.

Navigating the Lower Saint Lawrence in the 19th Century.

Quebec Mercury #88. Tuesday, July 24, 1832.

	Court of Vice-Admiralty. Lower Canada. Saturday, 21st July, 1832. The Coldstream - Hall.
	Judge Kerr. This is a suit brought by William Warr, seaman, against the captain and first officer of the ship Coldstream, chartered by the East India Company, to recover compensation in damages for an assault and false imprisonment alleged to have been inflicted on the voyage from China to this port. The summary petition, besides a prayer to award £200 damages, concludes for the payment of the promovent's wages, and a rescission^G of the articles, so far as respects him, on the ground of ill treatment. The defendants, by their responsive allegation, justify on the plea of mutinous, disobedient, and disorderly behaviour. There has been laid before the Court, as is not unusual in such suits, much contradictory evidence, but the circumstances, as they appear to me, are the following: On the night of the 25th May last, when the Coldstream was near the Banks of Newfoundland, they experienced a strong gale of wind and all hands were ordered to take in the foresail. When the gear was sufficiently up for furling and everything prepared, the men were sent up on the yard to furl the sail. When they were upon the yard, Warr who was aloft, called out that if the ship was not kept away before the wind, they could not furl the sail. Mr. Taylor, who had then assumed the command on deck, observed that there was a sufficient number of men on the yard to furl the sail in the hardest gale of wind that ever blew, and refused to keep the ship away. Perceiving the men mediate, coming down without obeying his orders, he called out to them, "Let me see the man that lays down before the sail is furled". On this Warr was heard to address his companions on the yard, "Let us all go down together in a body and see what he will do with us." This seems to have had its effect, and Warr & Walsh taking the lead, the men all came down upon deck. At the time, Captain Hall, on coming from his cabin, sharply remonstrated with the men for their conduct, and accusing Warr of being their ringleader. He shook his clenched hand in Captain Hall's face, telling him that he was no gentleman, and the most scandalous captain that he ever sailed with. It also appears, that on Mr. Holbrook, the second officer, interferring and desiring him to desist, Warr called him a liar and a half drilled soldier and that the rest of the officers were no better. After much more abusive language, both to Captain Hall and his officers, Warr was, by Captain Hall's orders, placed in irons. This happened early in the morning of 26th May, and on the same day a Court of Inquiry being assembled in the cuddy, and the officers being of opinion that it became absolutely necessary for the maintenance of subordination and discipline of the ship that Warr should be punished, he was accordingly condemned to receive three dozen lashes at the gangway. In the necessity of this punishment, Mr. Harrison, the surgeon, concurred, though he states that being only connected with the health of the ship, he had no vote on the occasion. It further appears that the boatswain's mate, whose duty it is to inflict such punishment, whether from sympathy towards his messmate, or from unskilfulness in the use of the instrument, only exhibited a mockery of punishment, and as Mr. Harrison states, "dropped the cats upon his back", and on this Captain Hall desired Mr. Taylor to complete the punishment, which was done accordingly. This is the case, as disclosed in the evidence, though it has been attempted on the part of the promovent to give a colouring to the transaction which does not belong to it. It has been said that the punishment was inflicted with great severity, even with cruelty, insomuch that the blood streamed from the back, and that the blows were not inflicted between the shoulders, as is usual, but on the neck, side and loins, and as represented by Goddard, who admits he himself had been flogged, that Warr's back was, from the severity of punishment, like a jelly; but this is contradicted by the surgeon, who says, that no blood was drawn, nor was the skin broken, and that in his opinion, Warr was able to do his duty the same day. In these facts he is confirmed by Mr. Holbrook, and by Dyer and Davenport. It has also been represented that when Warr was brought on deck to be punished, Captain Hall seized him rudely by the lips, and that previously to his being flogged, no intimation was given to the crew as to the cause of his punishment. On both points, however, the promovent's witnesses are contradicted. On the second by Scott, the promovent's witness, and by Mr. Solby, the third officer, and on the first point, the fact is explained away by many of the defendant's witnesses, who swear that when Warr was brought to the gangway his language was so abusive and seditious, that Captain Hall only put his hand on his mouth to prevent the continuation of it. The promovent's advocates have relied on the testimony of some of the crew, who swear that the behaviour of Warr was always respectful and obedient, and particularly on that of Goddard, the boatswain's mate, who is pleased to say, that Warr is a civil, honest, and quiet man, and that he never uttered a bad word. But how is this to be reconciled with the evidence of Walsh (who appears throughout this matter to have been a co-ringleader), for he swears that when Captain Hall said several abusive words to Warr, he made a reply to some of them, and that he persisted in speaking until he was threatened to be gagged. Walsh does not mention the promovent's words, but other witnesses supply the deficiency; for Dyer, the sailmaker says, that when Captain Hall desired him to hold his peace, he told him that he had spoken in the company of gentlemen, where he, Captain Hall darest not show his face, and that he, Warr, had been flogged in a better ship and by a better man, and by his, Captain Hall's master. That during this time, to use the witness's own expression, Warr "hobbed his head in the Captain's face." He further says that though he had been eleven years at sea, he never saw a captain so insulted; to the same effect, in the testimony of Davenport, the carpenter, who says that Warr's conduct was mutinous, desperate and outrageous. That when he was brought up to be flogged his tone and manner was unruly and disrespectful, and that though he, the witness, had been ten years at sea, he never saw such unruly conduct. So says Mr. Solby, the third officer, who states that Warr insultingly said to Captain Hall "I have spoken to your masters on his Majesty's quarter deck". And that on all occasions of dissatisfaction among the men, Warr was always the spokesmen. In this they are corroborated by Messrs. Comyn and Sewell, the midshipman, the first of whom says that Captain Hall repeatedly told Warr to hold his tongue, which he refused to do, insisting to speak and at the same time, pushing his head to use his words in the captain's face; that he never addressed Captain Hall by the word "Sir", and his gestures and deportment were so menacing that he appeared to the witness to have thereby intended to provoke Captain Hall to some act of violence. The counsel for the promovent have called in question the right of the master under any circumstances of misbehaviour to inflict so public an act of castigation on a seaman; but the cases of the Agincourt and Lowther Castle, and that of the Inglis, East Indiaman, to which my attention has been called, clearly establish the right to punish in the mode proved to have been practised on this occasion, the master thereby assuming on himself the responsibility which belongs to the punishment, being necessary for the due maintenance of subordination and discipline, and that it was applied with becoming moderation. The same maritime principle has been adopted by a neighbouring commercial and enlightened nation, justly boasting of the freedom of its laws and institutions. Indeed, it is an arbitrary power which dire necessity sanctions, and in the execution of which necessity and moderation alone can justify. On the whole, I have no hesitation in saying that this individual, by his influence on the minds of the crew, led them to an act of disobedience and mutiny. The mutiny "tis true was not carried so far as to lay violent hands on their commanding officer or to put him into confinement; or to carry away the ship; yet considering that Warr excited the men to come down from the yards in a body in disobedience of the orders of the captain. That on Captain Hall's saying he would shot the first man who came down on deck, Warr scoffingly said "and pray who will shoot the second?" I cannot, coupled with the whole of his language and behaviour, but consider him as a mover of sedition, having a direct tendency to subvert the good order and discipline of the ship. His punishment of course became absolutely necessary for the preservation of the whole concern. I am also of opinion that it was in no degree excessive under the circcumstances which called for it. The conduct of Captain Hall is admitted by all the witnesses, excepting on this occasion, and that even by Walsh, to have been mild and humane, and his going down to visit Warr, when in irons and saying to him, "Warr, I never confine a man without seeing that he has a convenient place to lay down upon", is, to me, a convincing proof of his reluctance to punish this individual, and a desire to forgive him if he had showed the least contrition for his conduct. In respect to Mr. Taylor, the other defendant, it must be recollected that he was the first officer of the Coldstream, which had a crew of about sixty men, and that on him devolved the active duties of the ship, and the enforcing of all lawful commands. Such a person must often incur the odium^G of the crew, and I am not surprised that his character should be represented as arbitrary, and his orders unreasonable. However, it is not for the crew to pass judgment on their superior officer, and to rise up against his authority. Nor am I at all inclined to believe, contrary to the weight and respectability of the witnesses in his favour, that he was in a state of intoxication on the night of the 25th of May, or that such is the habit of his life. I have patiently gone through the evidence on both sides, and the result is that I decree this suit to be dismissed and condemn the promovent to pay expenses. Messrs. Usher and Aylwin, for the promovent. Messrs. Stuart and Black for the respondents.

Posted:
Dec. 5, 1999.

Updated:
July 15, 2003.