THE HONOURABLE EAST INDIA COMPANY SERVICE

LETTERS OF MARQUE QUERY

An incident that took place on board the ship Huddart had far reaching implications involving a court case against Captain Bayliffe and a promanent solicitor called William Garrow, pictured in the recent television drama series Gallows Law.

On Tuesday 12th May 1807, the Huddart was sailing towards the Cape of Good on its return voyage. The ship's commander Captain Bayliff when two sails appeared on the horizon. Captain Bayliff gave instructions to sail towards the ships and ordered all passengers below decks. One of the passengers, a Mr Boyce, refused to go:-

Mr Boyce, a passenger refused in a most extraordinary manner to repair to his quarters - in consequence of which I remonstrated with him on the impropriety of so doing, which having no effect I appealed to the Officers in general what was to be done in such a case.

It was the unanimous [decision] of all that such conduct ought not to be passed over. The ships being in sight the remainder of the passengers on board all at their respective quarters, I knew no other means than to confine him in irons, concurring the example to be too bad a nature to admit of less violent measures. After breakfast the following morning I ordered the people on deck - and requested they would by no means suffer their sense of duty to be led away by the conduct of Mr Boyce. I thought it advisable to explain the nature of the Act of Parliament which provides against persons serving on board ship bearing Letters of Marque - by subjecting them to Marshal Law. After the above and the two strange ships not being in sight, I released Mr Boyce.

The Huddart arrived at St Helena on Sunday 14th June, Mr Boyce left the ship and found his own way back to England.


The reader will note that Mr Boyce left the ship at St. Helena along with his daughter. Mr Boyce brought an action against Captain Bayliff to recover compensation in damages for false imprisonment and special damages of 100 for extra expense incurred in leaving Huddart at St. Helena and entering passage for himself an his 8 year old daughter on another ship to England. The case was heard at The Court of King's Bench, Friday 11 December 1807 before the Lord Chief Justice, Lord Ellenborough. Mr Garrow was for Mr Boyce the Plaintiff and the Attorney General for Captain Bayliff. The Jury gave their verdict after one hour of deliberation in favour of the Plaintiff who was awarded 80. This was some way short of the total damages sought for false imprisonment and travelling expenses. Lord Ellenborough was at pains to protect the rights and status of Captains at Sea under Letters of Marque. The Boyce v. Bayliff(e) case became notorious in legal circles and is included for debate in many books concerned with the leniency or otherwise of the judgement. Incredibly Mr Boyce (a Major in the Army) was still not satisfied. Immediately following the above verdict a further action was brought by Boyce against Major Douglas of the 2nd Reg't. Native Infantry who was a passenger on board, for helping the Captain to fetter Boyce and in so doing apparently giving verbal abuse and threatening him with the butt of a musket. Among the witnesses called were Mr Hubbert (understood to be the Captain's gentleman servant) and Corporals Ward & Turner from the detachment of the 77th Regiment of Foot. Counsel for the Defendant said that all this had been covered in the earlier Cause and complained of abuse of his professional duties. After a few words from his Lordship a verdict was found for the Plaintiff, though only the small sum of 40 shillings was awarded for damages. Transcripts of the Law Reports published in The Times for both cases follow in Appendices A and B. Thomas Gabriel Bayliff, then of Southgate, Edmonton, London, Esq. died at Bembridge, Isle of Wight, 13 July 1833. His Will was Proved at London 25 October 1833 and Administration granted to his son The Rev. Thomas Timothy Lane Bayliff. Immediately following the above case on the same day the following case was heard:

Law Report in The Times,12 Dec 1807, page 3; Issue 7229; Col D
At Court of King's Bench, Friday 11 December 1807
Boyce v. Douglas

With the Plaintiff; our readers have become sufficiently acquainted in the last cause. The Defendant is a Major in the army. Mr Garrow stated many of the facts we have already mentioned, and then proceeded to the particular foundation of the present action, which was for an assault. The Defendant, an Officer of rank, as the Plaintiff was conducting to the poop to be put in irons there, condescended to present the butt-end of a musket to his head, and had the Defendant not been restrained by a brother Officer, who arrested his hand, would probably have had to answer for a much more serious offence. This act was accompanied by the most indecent and opprobrious language. "You d----d scoundrel (said he) if you utter a word, I will knock your brains out. The offence was aggravated by the helpless situation of the Plaintiff at the time. There was no justification on record. Mr Hubbert, and Corporals Ward and Turner, proved the assault. The Attorney General said the whole question was disposed of in the previous cause, when full and abundant compensation was made to the Plaintiff. This action was trumped up for the advantage of the Solicitor. The Learned Counsel expressed much indignation at such professional persons, who ought to respect more both their characters and their duties. After a few observations from his Lordship, a verdict was found for the Plaintiff. Damages 40s.

Law Report in The Times, Dec 1807, page 3; Issue 7229; Col C
At Court of King's Bench, Friday 11 December 1807
Boyce v. Bayliff(e)

The Plaintiff was a tavern-keeper at Bombay; the Defendant was the Captain of the Huddart East India-man. This action was brought to recover compensation in damages for false imprisonment, during his passage in the said ship, and further, a special damage of 100 being the extra expense he had incurred in leaving the ship at St.Helena, and entering as passenger on board another vessel. Mr Garrow, for the Plaintiff, said, that his client had passed through various situations in the army, until he had reached from the ranks to the respectable post of Conductor of Ordnance. He had afterwards engaged in lucrative occupation at Bombay. This person and a daughter of the age of eight years, who he was desirous should have the benefit of an European education; and in order to place her out to advantage, and to afford her his protection in her passage to Europe, he took a place for her and himself on board the Huddart; but the terms on which he engaged did not entitle him to the privileges of the principal cabin. Notwithstanding this circumstance, during the early part of the voyage, he was permitted to occupy the poop, and to take his recreation there with the superior officers and passengers. The Captain thought fit, without any reason being assigned, on a sudden to debar him of those means of enjoyment. He complained, but his remonstrances were ineffectual; and therefore, without any further interference, he contented himself in his retirement, and amused himself with the exercise of the paternal duties towards his infant child. Notice was indeed given him, that she might have the run of the ship; but he would not avail himself of this permission, that his daughter might not be exposed to the promiscuous society of the crew of an Indiaman; without the protection of his superintendence.

On the 11th of May some strange vessels hove in sight, and it was thought expedient to make preparations, either for the purpose of attack or defence. In this situation of things every person on board had assigned to him his particular station, and the Plaintiff was ordered to the poop, for the purpose of discharging a dangerous duty, from whence he had been driven as a place of recreation. He resisted this order of the Captain, offering at the same time to fulfil his duty any where else; but his pride would not permit him to join that company from which, under painful circumstances, he had been excluded.

In a moment of rashness and cruelty, the Defendant ordered that he should be put in irons, that with this disgraceful encumbrance, he hould be exposed on the poop; and until eight o'clock the next morning he was continued in fetters. When he came to St. Helena, being incapable of enduring the society of those before whom he had been thus exposed, he took his passage for England by another vessel; and for false imprisonment, and subsequent expenses, by this new means of conveyance, he brought the present action.

Numerous witnesses were called, both on the part of the Plaintiff and Defendant. After the Attorney General had been heard for the latter, and Mr Garrow in reply.

Lord Ellenborough said that there was no pretence for the charge to be made for the trans-shipment of the Plaintiff and his child, since it did not appear that the ill usage complained of continued to the time of the arrival of the Huddart at St. Helena, so that there was no immediate motive for removal. It seemed that the Captain had given the Plaintiff the privilege of joining the society of the principal cabin, although the terms on which he entered the ship only entitled him to the carpenter's cabin. What the Defendant had conceded in the way of favour in this way, he had a right at any time to withdraw; and there could be no cause of action if that right was exercised.

In the sequel, two frigates were discovered in the distance, and the whole crew was ordered on deck to be assigned the respective duties the approaching danger seemed to require. While the corresponding orders were issuing the Plaintiff was directed to go to the poop. Thus commanded he refused obedience from the false notion of pride. The Captain had the right to give the order, and with it the Plaintiff ought to have complied. Just notions of pride, if his Lordship might use the expression, should have instructed him in that obedience. He should have said to himself; I have been driven from the sphere of my amusement by the Captain but in the moment of danger and difficulty he has sent me thither for the general defence, and honour requires that I should faithfully and manfully discharge the public duty. What the Captain ought to have done in this situation, it was not necessary to enquire; it was sufficient to say, that he exceeded his authority by ordering that the Plaintiff should be put in irons; for this act, proved by the evidence, he was charged with inflicting false imprisonment, and no justification was entered on the record. This being omitted, in every view of the Plaintiff was entitled to the verdict of the Jury; but the Gentlemen would recollect, in assigning compensation to the Plaintiff, that large damages would interfere with that due authority which should always be exercised by persons sustaining the responsible character of this Defendant, to whose prudence the lives of some hundred individuals was committed.

Large damages would make men in such circumstances reluctant to exert their power, on proper and necessary occasions, for the common good. From what appeared, the Defendant was a man of respectable and gentlemanly habits, and was a man not likely, indecently, much less tyrannically, to demean himself. At the same time serious attention should be paid to these particulars, the rights of individuals were to be regarded, and sufficient compensation ought to be made for their infringement. After the Jury had retired for about an hour, their Foreman delivered a verdict for the Plaintiff. 80.


Incorporate next or part of

Details of Capt. Thomas Gabriel Bayliff

ADDENDUM POSTED FEBRUARY 2010: This narrative was written and added to my web site in late 2008. In the court case at the end a Mr Garrow is seen as the barrister representing Mr Boyce as plaintiff against the defendant Capt. Thomas Gabriel Bayliff. In November last year (2009) BBC TV transmitted four episodes of their new legal drama series "Garrow's Law". This concerns the above William Garrow of Lincoln's Inn early in his career and the reader will agree that the timing is quite remarkable. I would recommend anyone to see these episodes, conveying as they do the character of Garrow and the atmosphere in court etc.