Samuel Henry Hivall

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Dianne Jones on 28th April 2021

1836, 12 February: According to Samuel Hivall’s VDL Conduct Record, he was executed at Hobart on this day (see https://stors.tas.gov.au/CON31-1-19$init=CON31-1-19p131). 1836, 20 February: Samuel Hibbell [Hivall], Thomas Harris and Robert Smith were buried in the Parish of Trinity, Co of Buckingham. However, the record of their deaths lists the date of their executions as 13 February 1836 (see https://stors.tas.gov.au/RGD34-1-1p192j2k).

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Dianne Jones on 28th April 2021

1836, 12 February: This report of the trial in the Supreme Court was published on p6 of the Tasmanian. Note: Henry Samuel Hivall is called Hibbill and Hibbell. “SUPREME COURT. (Before Mr. Justice Montagu.) On Tuesday [9 February], three unfortunate men — Hibbill, [Thomas] Harris, and [Robert] Smith, were found guilty of the murder of Captain Bragg, of the schooner Industry, by throwing him overboard about three hundred miles to the westward of Hokianga, in New Zealand. Mr. Ross, who was appointed by the Court to defend them, took the three following objections to the case going to the Jury:— 1.—That the actual death of Captain Bragg was not proved. The evidence went farther than that the three men (and a fourth —Wells, who was not put upon his trial), had lifted him off the deck upon the rail of the vessel, from whence he went overboard, and was only seen in the water to throw off his hat; and, as a cask was thrown overboard to him, it was not impossible but that he might have been picked up by some of the vessels passing in that track. 2.—That the Act 9 Geo. iv., "for the Administration of Justice in these Colonies", gives jurisdiction to the Supreme Court to try offences committed on these seas, either by British subjects or on board British vessels, and the Industry was not either charged in the information, nor proved in evidence to be a British vessel, nor that the prisoners were British subjects. 3.—That the only evidence of any premeditated intent to take Captain Bragg's life was, that someone was heard to say "throw him overboard"; but that there was no evidence to prove that it was either of the prisoners, and it might have been the fourth man. That the mate was at some distance on the deck in great alarm, and could not state positively whether either or any of the prisoners had their hands on Captain Bragg. That the boy came on deck only at the moment the Captain was falling from the rail. That it was shewn that the fourth man was on the spot who was not charged in the information, and who must have been the best evidence, and, therefore, ought to have been called. Mr. Ross argued his points with much zeal and ability. In support of the first, he cited the numberless instances of persons supposed to have been murdered, but who afterwards appeared alive. As to the second, he urged with much force that the only jurisdiction the Court possessed in cases such as these, is derived from the Act of Parliament, and that therefore the terms of the Act must be strictly complied with. That in the Act, the jurisdiction of the Court was strictly limited to British subjects and British vessels only; otherwise it would include every offence committed on board ships of all nations, American, Russian, or any other which might visit these seas, every act committed on board which would be subjected to the control of the Court here. In respect to the third, he pressed that there was no proof whatever of any previous intention by the prisoners to destroy the Captain, and that therefore they were entitled to the benefit of the absence of any evidence against them, as to the utterance of the words, "throw him overboard". The learned Judge considered himself bound in the discharge of his duty, to overrule all Mr. Ross's objections. His Honor admitted that Lord Hale had laid it down, that it was necessary in order to convict for murder, either to produce the dead body or to prove the death, and that that doctrine had been adhered to by English Judges in more than one instance. But His Honor considered that in such a case as the present, it would be impossible to convict, where the Capt. might be thrown overboard, when the ship was going swiftly through the water, or in the night, when the body of the murdered person could not be seen, and the only proof of the murder might be the actual throwing overboard. "It is," said His Honor, with great feeling and emphasis, "for the Jury to decide in this case whether they will give the unhappy men at the bar the benefit of any doubt as to the fact whether Captain Bragg had been picked up, and was still alive. I wash my hands of all responsibility thereon. It is for you, Gentlemen of the Jury, to weigh well whether you will consign these three men to the executioner, for that must be the certain consequence of your verdict of guilty. The Executive in such a case as this can have no alternative. The law must take its course if you find the prisoners guilty. Yours is the responsibility, and you will therefore well consider the verdict you are about to return. The Jury retired for ten minutes, and then returned the verdict, Guilty. His Honor then proceeded to pass the dreadful sentence of death upon the three unhappy men. He implored them in the most feeling terms, to make the most of the short time allowed them by the law, to supplicate the mercy of the Creator. He referred to the provisions of the law against murderers, by which they were prohibited from all intercourse with their friends, to be fed only upon bread and water, and to have their bodies anatomized. He besought them to take advantage of the spiritual assistance they would receive from the Rev. Mr. Bedford (who was on the bench, in the opinion of many that although no doubt with the best and kindest intentions, yet in not the most accurate taste) who he was convinced would be with them the moment they were removed from the Court, and to whom he entreated them to confess all their offences, and particularly that for which they would pay the forfeit of their lives. Prisoner Hibbell [Hivall].—I am ready to confess it now. I threw him overboard. I did it to save my own life. I have saved it for the short time I have since lived, for I know well, from Captain Bragg's threats, that he would have taken mine when I got to New Zealand, and I should have been eaten! Mr. Justice Montagu continued his very solemn address. He denied that there was anything which he could discover in the Captain's conduct to justify such an apprehension. His Honor repeated his solicitations to the prisoners, to prepare for the awful change which awaited them, and ended a most impressive address, which produced breathless attention in the crowded Court, by passing sentence of death upon the prisoners in the usual appalling terms, to be carried into effect on the next morning but one (yesterday). It is understood, that in the course of Wednesday [10 February], Mr. Justice Montagu, with an anxious desire to give the unhappy men every possible benefit which could arise from Mr. Ross's objections, consulted His Honor the Chief Justice thereon, the result was that after a long and most anxious consideration of those objections, a respite was received at the gaol at midnight of Wednesday until this day [Friday]. The unfortunate men have conducted themselves uniformly from their arrival with the utmost firmness and resignation. They persisted in their having been under the impression that it was Captain Bragg's intention to act with equal severity towards them on their arrival at New Zealand, even to the extent of giving them to the natives. It is a lamentable affair altogether. We cannot but hope that the throwing the unfortunate Captain Bragg overboard was the effect of a sudden impulse, rather than of pre-arrangement. Even if their lives are saved by the accidental defect in the information, a terrible example is afforded equally of the necessity of mild and humane deportment in those in authority, as of the certain fatal consequence which inevitably follows to those in subjection, of resisting that authority, or of giving way to the impulse of the hateful passion of revenge, even for real, much less apprehended injury. Their Honors the Judges, after the most anxious consideration, felt themselves compelled to overrule Mr. Ross's objections, and the dreadful sentence of the law was carried into effect this morning.”

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Dianne Jones on 28th April 2021

1836, 5 January: Samuel Henry HIVALL was indicted for the “wilful murder of [Captain] Gibson Bragg” (see https://stors.tas.gov.au/CON31-1-19$init=CON31-1-19p131). Note: In a newspaper report not reproduced here, the Captain is called Sibson Bragg. See selected newspaper reports below. 1836, 8 January: The following report was published in the Hobart Town Courier, p2: “The schooner Industry, which arrived from New Zealand on Monday evening, has returned under distressing circumstances attending the loss of the master Capt. Bragg, with all the cargo untouched as she left Launceston. On her arrival at Hokianga on the 30th November, she was boarded by Captain Young of that place, who learned from the mate that Capt. Bragg had fallen overboard about 350 miles from land, and he requested Capt. Young to take charge of the vessel and pilot her up the river. The ebb tide, however, compelling him to come to anchor not far from the heads, the mate took an opportunity of stating to him that the crew, consisting of four athletic young men, had mutinied and thrown their unfortunate master overboard. To avoid the exciting of any suspicion on the part of the four sailors of the communication thus made, Capt. Young and the mate very prudently abstained from any further private conversation on the subject. The former as pilot remained on board all night, and succeeded in bringing the schooner up the river with the first flood tide, and anchored within a few yards of Mr. McDowell's, R.N, the British Resident at Hokianga, under his own battery of eleven guns. That officer with a promptitude, characteristic of a British naval officer took immediate steps for the apprehension of the mutineers, and with the aid only of his own European establishment and a few friends who happened providentially to be at his house at the time, he succeeded in securing all the four. He then lost no time in taking the depositions of all who could give information on the subject, the mate and boy as well as the four immediately implicated in the murder, the particulars of which we forbear to touch upon as the men were fully committed at the police office on Tuesday for trial before the Supreme Court, which it is understood comes on to day. Being thus secured, it was necessary to keep a guard over them, a duty which though heavy the respectable settlers of the river cheerfully came forward to perform. The assistance of Capt. Crow of the Brazil Packet was particularly serviceable and deserving with that of all the others of much commendation. Mr. McDowell, having consulted with Mr. Oakes and the other intelligent settlers, resolved on sending the schooner direct to Hobart Town with the offenders, in order that the ends of justice might as speedily as possible be attained. To make the voyage safe a guard of New Zealanders was engaged under the control of Mr. Oakes, aided by Mr. Cooper who navigated the vessel and Mr. Harper. Notwithstanding this precaution, however, on Sunday last, while yet at sea, three of the offenders being on deck though in irons as usual, seized a moment when only two of the crew were beside, to acquire a second time the command of the vessel. One of the two made his escape from their attempt by running up the rigging while the other jumped into the cabin, from which Mr. Oakes with much presence of mind immediately rushed with a loaded firelock followed by the others, when the three, (the fourth refusing to join in the attempt) were still more securely confined by attaching their chains to the iron cable.” 1836, 12 January: This report on p7 of the Colonial Times was dated 6 January 1836: “This day four seamen who had been forwarded from New Zealand to this Town, charged with the murder of Captain Bragg, were examined at a great length, by the Chief Police Magistrate. The evidence of the mate and a boy, was most serious against three of them, the fourth appeared not to have taken an active part in the murder, nor was anything adduced, that he tried to prevent it, and consequently by the law, as it relates to the crime of murder, he is equally culpable, and liable to be tried with the others for the offence. They were fully committed for trial, and will be tried at the next Sessions of the Supreme Court. One of these unfortunate creatures recently became free at Port Arthur [Henry Samuel Hivall], where he was constantly in difficulty, through his vicious and dissipated habits, another lamentable instance of the fatality that attends some characters.”

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Dianne Jones on 28th April 2021

1828: On arrival in VDL, Samuel Henry HIVALL was 17, single and a labourer from Westminster. He had been convicted previously and served 6 months in jail. He said all his relations were dead. He had worked last for Mr Williams, a cow keeper at Norwood (see https://stors.tas.gov.au/CON31-1-19$init=CON31-1-19p131). 1834: By this time he was at Port Arthur where his VDL Conduct Record shows he was punished on three occasions over the next 12 months for stealing (twice) and neglect of duty. Those punishments were flogging, solitary confinement and hard labour on the chain gang for a month. 1835: Samuel HIVALL was granted a Certificate of Freedom.

343

Maureen Withey on 22nd January 2021

Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 22 January 2021), February 1828, trial of SAMUEL HENRY HIVALL (t18280221-240). SAMUEL HENRY HIVALL, Theft > simple larceny, 21st February 1828. 718. SAMUEL HENRY HIVALL was indicted for stealing, on the 16th of January , 4 wine glasses, value 1s. 4d , the goods of Barnet Abrahams . BARNET ABRAHAMS. I live in Great Peter-street, Westminster , and am a broker . On the 16th of January I lost four wine glasses - they were down an area about a foot and a half off; I saw them about half an hour before - they are worth about 16d; I have seen the prisoner about Westminster. MARIA MORRIS . I am servant to Mr. Abrahams. I was minding the shop - the glasses were on a table down in the area; I did not see the prisoner before he took the glasses from the table - it was not far from the ground; the table was higher than the ground - persons passing could not take them without reaching over; it was between six and seven o'clock in the evening - I think on the 16th of January; the lamps were lighted; he came to the table; I told him to go away, or I would call my master - he used a bad expression, and before I could call my master, the glasses and the prisoner were gone: I saw him afterwards in custody of the officer - there was no other person near the table; I saw the officer before the prisoner was taken, and had described him both to the officer and to my master. GEORGE JAMES JENNINGS . I am an officer. On the evening of the 16th I learnt that the glasses were taken; a few minutes after they were taken, the prosecutor came to me, and said young Hivall had taken them - that he knew that it was him by the description of the girl; I knew the prisoner before - I took him the next evening; the glasses have not been found. GUILTY . Aged 16. Transported for Seven Years . -------------------------------------------------- Justicia Hulk Records, Woolwich. HO-9-4 4 page 43/51. Received 21 March 1828. Saml. Hy. Hivall, age 16, stg 4 wine glasses, Middx Sessions, 21 Feb 1828, 7 years, sent to Euryalus 5 May 1828. -------------------------------------------------- The prison hulk, the Euryalus, an ex-frigate of the Trafalgar fleet, was moored at Chatham. Over the twenty years that this hulk serviced juveniles, about 2,500 boys of fourteen and under passed through. There were also considerable numbers of older boys both in the juvenile hulk and distributed among the other hulks. From the Euryalus, boys were transported both to New South Wales and to Van Diemen’s Land. -------------------------------------------------- Euryalus Hulk Records. HO-9-2 4 page 9/48. Received Eight from Justitia Hulk 5 May 1828. Sam Henry Hivell, age 16, Stg 4 wine glasses, Middlesex, 21 Feb 1828, 7 years, NSW per Manlius, 11 July 1828. ----------------------------------------------------