On the 5th of April 1827, the Honourable East India Company (HEIC) survey vessel Research anchored in the Derwent two miles from Hobart. The next day her captain, Peter Dillon, was arraigned for assault and wrongful imprisonment by the ship’s doctor, Robert Tytler. He was convicted, fined fifty pounds and sentenced to two months imprisonment.
In 2010 two Australian academic lawyers, John Bourke and Rosemary Lucadou-Wells (henceforth, B&LW), published a review of the case in the Macquarie Journal of Business Law, in which the conviction was accepted, from the start, as fully justified. The second paragraph in their review consisted of a single sentence, without qualification of any kind. It stated that:
During the expedition, Captain Dillon assaulted the doctor and wrongfully imprisoned him in his cabin.
It is a statement that ignores several curious features of the case and its conclusion.
The voyage of the Research had its origins in the discovery by Dillon of European artefacts on the island of Tikopia, in the far south-east of today’s independent Solomon Islands. These led him to believe (correctly, as has now been firmly established) that the two ships of the lost LaPérouse expedition had been wrecked on the neighbouring island of Vanikoro. On arrival at Calcutta, his intended destination, he reported his discovery to the authorities and suggested an expedition be mounted under his command to locate the wrecks and rescue any survivors. This was eventually agreed by the Marine Board of the HEIC, but with some modifications, the most important of which was that the expedition should use the Research rather than Dillon’s own vessel.
Figure 1. Hobart in 1827. Tasmanian Museum and Art Gallery Q194.42
Unfortunately, the Board also appointed Robert Tytler, then serving with the Bengal Infantry, as expedition surgeon and naturalist. By the time the Research reached Tasmania, relations between captain and surgeon had broken down to such an extent that Dillon had placed Tytler under arrest. Once in Hobart, however, it was Tytler who reached the authorities first, accusing Dillon of assault and wrongful detention. The trial was held before Lord Justice John Lewes Pedder, the Chief Justice of the colony, with a jury consisting of six officers from the military garrison. Despite the conviction, which effectively endorsed Tytler’s contention that Dillon was mad, he was released after a few days detention, continued his mission without Tytler, and eventually brought it to a successful conclusion.
So was the conviction justified? Dillon’s own account, retailed at length in his 800-page Narrative of the Discovery of the Fate of La Perouse, suggests something very different. Of course, nothing in it that was written by Dillon himself can be accepted as true unless independently corroborated, but it includes extensive quotations from letters, newspaper accounts and official documents, and in the discussion below it is assumed that these are true to the originals, since in most cases this would have been easily verifiable at the time.
On the first charge, of assault, Dillon claimed that he merely placed his hand on Tytler’s shoulder when arresting him, and it is understandable that the placing of hand on shoulder should be experienced very differently by the two people directly involved. There is no record of Tytler’s stature and build, but according to the Australian Dictionary of National Biography Dillon ‘was an impressive figure, 6ft 4 ins in height and heavily built’, and even a gentle tap on the shoulder by such a man might be experienced by the recipient as a grievous assault. However, when he was sentencing Dillon, Pedder noted that the arrest, the only occasion on which assault was alleged, had been made without violence. How, then, does the conviction on that count be correct? Nonetheless, B&LW were in no doubt that it was.
Where the charge of wrongful imprisonment is concerned, consideration has to be given to the report of the trial published in The Tasmanian of 3 May 1827 (see Dillon, p.413), in which Pedder instructs the jury to note
……… that they were not to try this case by their notions of mutiny or martial-law that, in point of fact, the ship in question was precisely similar to a merchant vessel trading from London to these colonies; and that the defendant had no more authority than the master of such a ship would have over his officers and crew. He observed, that the only points for the consideration of the Jury were – 1st. Had an assault been committed; and then, had a justification been made out to their satisfaction? A justification might be made in two ways, either by the Doctor writing a letter to the officer representing the Captain to be mad, when he knew at the same time that he was not mad, and by that means dispossess the Captain of the command or, by his representing what he believed to be true, but what was not so in fact ; and that the defendant, at the time he put Dr. Tytler under arrest, believed the Doctor had made an untrue statement for the purpose of taking the command from him. The Chief Justice expressed his opinion that, in either of these cases, the justification had been made out, and the defendant would be entitled to a verdict ;
There are several points here that might be thought worthy of discussion by legal professionals, but which B&LW chose to ignore. The first is the contention that ‘the ship in question was precisely similar to a merchant vessel trading from London to these colonies; and that the defendant had no more authority than the master of such a ship would have over his officers and crew’. Now the Research was not a merchant ship, and it carried no cargo. It was a survey vessel that had, immediately prior to Dillon’s appointment, been employed as a warship in the Anglo-Burmese war. It was sailing under detailed instructions prepared in part by the government of British India and carried an armament of sixteen cannon. It was not unusual for merchantmen to be armed in those days, but the 73-man crew was far in excess of what any merchantman would carry, and its captain would be correspondingly conscious of the threat posed by any hint of mutiny. Dillon, commanding a crew most of whom were strangers to him, had reason to be nervous.
A second point concerns the letter to which Pedder refers, which had been written by Tytler to the chief officer of the Research on the 28th of January but of which Dillon only became aware on the 27th of February, when its content was reported to him by Dudman, the Second Officer. It was this letter that prompted his decision to arrest Tytler, although he was not able to see it because by that time it had been destroyed, as had a copy made by the draughtsman, John Russell. Dillon therefore had to rely on a verbal report as to its contents, as did the court in Tasmania, but what they had was an approximation provided by Tytler from memory. According to the 8 May report in The Tasmanian, as reproduced by Dillon (pp.410-411), Tytler’s remarkably full memorial ran as follows:
To the Chief Officer of the H. E. I. C. Ship Research.
Sir;—In consequence of the dreadful scene which occurred this afternoon, when Captain Dillon came to the door of my cabin, and used threats merely for sending him a receipt for the longitude and latitude, signed in a manner which, by my instructions from Government, I am perfectly justified in employing; together with his raving about the mouldering bones of the late Sir David Ochterlony, and his correspondence with me for the last three days, I have not the smallest doubt, in my mind, as to his being in a state of mental aberration, which occasionally bursts forth into violent fits and frantic madness. I conceive it therefore to be an imperative act, and official duty in me, to communicate this my recorded opinions to you, the result having followed from over excitement and exposure, as I predicted it might to the Marine Board at Calcutta. I accordingly leave it to you to confer with your brother officers as to the proper steps to be taken in this case generally, for the preservation of the ship and the lives of all on board. I throw myself upon you and the officers for protection. My own life and that of my son I consider especially in danger, my being in the cabin next to him, and he having conveyed loaded fire-arms into his room for some purpose unknown. Captain Dillon ought now to be confined in his cabin, and take medicine, and be bled and purged, otherwise I fear his malady will increase and become permanent; and this I declare, before God, to be my solemn opinions communicated to you.
I am, Sir, your most obedient servant,
(Signed) R. Tytler, M. D.
Presumably Tytler would have avoided ‘remembering’ anything that would have completely destroyed his case, but what he did provide seems incendiary enough. Any sea captain who became aware that a document of this nature had been circulating among his officers for some weeks without his being informed would feel that strong action on his part was needed, and Pedder’s summing-up would seem to have left the jury with no option but to acquit. However, and unfortunately for Dillon, the extract given above from his summing up is incomplete. In full, its final sentence read:
The Chief Justice expressed his opinion that, in either of these cases, the justification had been made out, and the defendant would be entitled to a verdict ; but upon the latter point, the Jury ought to be satisfied that the Captain called his officers together, and consulted them upon the subject, and took all proper means of informing himself upon the nature and contents of the communication made to the officers. (Dillon, p.413).
Given that none of his officers had seen fit to inform their captain about the letter until a month had passed, it would not be surprising if he had doubts about how many of them could be relied upon, and Pedder’s contention that a captain should call his officers together goes some distance beyond the law as stated by Charles Abbott. Abbott’s ‘Treatise of the Law Relative to Merchant Ships and Seamen’ is the authority cited by B&LW, but it merely says he should ‘consult’. Later editions allow for even the consultation to be dispensed with in some circumstances.
Another aspect of Pedder’s conduct of the case that deserves further legal consideration is his description of Dudman’s action in eventually informing Dillon of the letter and its contents as ‘most wicked’. One might have thought that, on the contrary, it was his duty to do so, as soon as he became aware of it himself, and at a time when it was still in existence.
Why, one might ask, did Pedder take this view, and also add that final sentence quoted above, which was so prejudicial to Dillon’s defence? Although B&LW placed some weight on poorly-substantiated differences in religion between Dillon and Tytler, they gave no consideration to differences in social class. It is hard to believe they did not play a part. Dillon had been born in Martinique, the son of an Irish immigrant, and had spent most of his life at sea as a trader. In that profession he had been successful enough to captain his own ship, but trade in general was not regarded as a gentlemanly occupation in 19th century Britain, and trade in the lawless South Seas less than most. Tytler, in the other hand, was a member of a prominent Scottish family of scholars, lawyers and doctors. His father’s cousin Alexander had been awarded the judicial title of Lord Woodhouselee in 1802 when appointed a Lord of Session in the Scottish Courts, and his younger brother, John, who followed him to India, had a distinguished career as both a doctor and a scholar. It is easy to imagine that Pedder would have seen Robert Tytler as ’one of us’.
Lawyers stick together.
Even, judging by B&LW’s very different treatment of Dillon and Tytler, after a lapse of 200 years. It seems that the fine old tradition of the kangaroo court is still alive in what may, or may not, have been its native land.