crunch time
By 1752 Thomas Benson was coming under increasing pressure from the Customs authorities
for his persistent tobacco smuggling, and several writs of scire facias had been
served on him. These gave the accused a grace period to challenge the charges before fines
could be levied, and Benson's lawyers were instructed to pursue every possible loophole to
postpone judgement. Despite these procrastinating manoeuvres, the total debt to the Crown had
been wracking up and now stood at £8229, a substantial sum of about £683,000 in
today's money [note
1].
Facing imminent financial ruin, in the summer of 1752 Benson began making careful
preparations for the insurance fraud that would bring to fruition the boldest of his
schemes in which, once again, Lundy Island would play an important role. The stakes
couldn't be higher. If successful, the rewards would be substantial, going some way to
meeting the fines that his legal team would be unable to delay much longer. If the plan
failed he would most likely face prosecution for a crime that carried the death penalty.
The brigantine Nightingale was the oldest vessel in Benson's fleet and was barely
seaworthy, making it the natural choice for its central role. Having selected the ship to be
scuttled and insured both the ship and its contents, no less important were the choice of a
loyal and trustworthy captain that Benson could take into his confidence, and the hiring of a
reliable crew to serve under this master.
lancey is won over
Captain Lancey was the natural choice for such a demanding mission. He was a quiet,
intelligent, and dependable family man who had served Benson well as the master of several of
his vessels over a period of ten years. Lancey would be glad of the work, as he had been idle
for some months through sickness. But could such an honest man be persuaded to take on an
assignment like this?
Lancey was delighted to receive a message from Benson asking him to serve as captain of
the Nightingale on a critical mission. Lancey was to call at Knapp House to discuss the
fitting out of the ship. Following the exchange of pleasantries Benson put the details of his
daring plan to Lancey in a light-hearted manner just to test his reaction. When Lancey didn't
respond, Benson asked if he had ever thought of scuttling a ship in this way. Taken aback,
Lancey reminded his employer that at no time had he done anything dishonest, and this
question could only be a trap to test his integrity. Realising that he was getting nowhere,
Benson dropped the matter.
About a week later Lancey received an invitation to dinner with some other guests at Knapp
House. The wine flowed freely and Benson was in fine form, entertaining the guests with
anecdotes deflating the pomposity of the leading politicians of the day. As the guests were
preparing to leave, Benson took Lancey aside and asked him to remain awhile. He again
broached the subject of the plan to scuttle the Nightingale, urging Lancey to help him
execute it.
Lancey would have none of it, saying that if this was to be the condition of his employment
then he would have to find another captain. This time Benson was determined to resolve the
matter to his satisfaction. He plied the hapless Lancey with more wine and continued to
argue his case with great persistence, prevailing on him to consider how happy he would
make his dear wife and children if he accepted this generous commission, and promising to
shelter him from prosecution should the crime be exposed. In a moment of weakness Lancey
yielded to this emotional blackmail, agreeing to go along with Benson's fiendish plan and
captain the Nightingale for this ill-starred voyage.
final preparations
Benson entrusted the recruitment of most of the Nightingale's crew to his close confidant
Thomas Powe, a corruptible Appledore tailor. Powe had form, having previously assisted Benson
in some shady operations, and it is quite likely that he was aware of what lay in store for
the Nightingale.
One day in June Powe was propping up the bar as usual in his favourite Appledore watering
hole when in sauntered James Bather, a young but experienced sailor who had served in
Benson's fleet before, including on the privateer Benson's Galley. Bather had been out of
work for most of the year, and was none too keen to see Powe as he owed him some money.
This is Bather's version of the encounter, given in testimony later.
I had come home passenger in one of Mr Benson's vessels, and owed Mr Powe some money, and
when I saw him would have shunned him; he called me to him, and asked me to go with such a
vessel; I told him I had made a very bad summer's work of it, and could not pay him; he
said "If you will go in the Nightingale, you shall make your summer's work, your year's
work double". I did not understand what he meant by that. He said "You shall go Boatswain
of the Nightingale, and have 30 shillings a month"; I agreed to it, and went and helped rig
the vessel...
Apart from Bather, whose important role in the final outcome will be revealed later, other
members of the crew will be introduced as the story unfolds.
With the Nightingale's crew finalized and her repairs completed, the cargo was readied for
the Excise Officers' inspection. Benson was on hand to supervise, ordering one of his crewmen
to conceal from the Officers a mystery item that he referred to simply as "a hogshead of dry
goods". The legitimate cargo, as listed in the Bill of Lading, included a large
quantity of Spanish salt, locally made woollen cloths, Irish linen, pewter, and some boxes of
cutlery.
A platform was battened down above the cargo space to berth the convicts, ostensibly en
route to Maryland. They arrived from Exeter Gaol, a pitiful bunch of twelve men and three
women, the men chained in pairs and the three women manacled together. Once Customs
clearance had been given Benson gave Captain Lancey his final instructions. The ship then
slipped from its moorings into the Pool of Barnstaple to await a favourable wind before
sailing out across the bar into the Bristol Channel.
the last voyage of the nightingale
The first leg of the Nightingale's journey was a short one; after two days she dropped
anchor in the Lundy Road, not only to shelter from the strengthening westerly wind as in
Lancey's account of events, but also to execute phase one of Benson's plan. The entire cargo
apart from the 350 bushels of salt were to be taken off and concealed on the island,
violating the Excise laws: the Master's Report Outwards signed by Captain Lancey stipulated
that no cargo would be unladed or unshipped anywhere in Great Britain[note 2].
Peter Marshall, a former master of the Nightingale and one of Benson's most respected
captains, was sent to Lundy by Benson to supervise the operation, along with Powe who was
detailed to arrange insurance cover for each crew member. It wasn't until he came aboard
and received Lancey's instructions that Marshall learned that the ship's cargo was to be
secreted on the island. Likewise, apart from Lancey, the crewmen had no knowledge of the
plans to scuttle the ship. But when Powe interviewed each in turn to offer them a generous
amount in a promissory note as insurance "in case the vessel should miscarry in her outward bound voyage to
Maryland", their misgivings became evident. They were offered varying amounts, depending on
their rank; the first mate John Lloyd was promised £60 and the bosun James Bather
accorded £40. Suspecting Benson of villainous intent, Bather at first refused his
note and was only satisfied when Powe offered to raise it to £45. The notes were
retained by Captain Marshall, to be passed on to the wives of the men for safekeeping.
The transfer of the cargo to the island began after nightfall, with the remainder being
taken off the following night; the operation was concealed from the convicts by covering
their platform with a tarpaulin. The following morning was a misty one, and the wind was
light as the Nightingale resumed her voyage. After sailing some 50 miles to the west of
Lundy, Lancey sighted another vessel bearing towards them through the haze, the Charming
Nancy from Philadelphia. After the exchange of greetings, a line was thrown from the
Nightingale, and the Charming Nancy's master was offered a bottle of wine and a fresh
cabbage as a parting gift after which she continued her journey eastwards.
Lancey decided that conditions were perfect for commencing phase two of the operation; the
Charming Nancy would make slow progress in such calm conditions, and should remain near
enough to rescue the Nightingale's crew after she was abandoned.
Lancey ordered the men to hoist the lifeboat outboard ready for lowering. The boat was a
large one from Captain Marshall's former vessel, the Catherine, and the operation required
all hands. The sailors Richard Sinnett and Francis Shackestone were ordered to open up the
hogshead that Benson had asked them to hide from the Excise Officers; it was filled with
small tar barrels and wads of oakum soaked in tar which was spread over the sail in the
hold.
Sinnett was then asked to cut a hole in the bulkhead between the bread room and the hold;
working too hurriedly, he cut his leg with the axe and Bather finished off the job. Lancey
then ordered Bather to bore a hole below the water-line which was plugged with a marling
spike. Finally, Bather pushed a lighted candle from the bread room into the hold, setting
fire to the wads of tarred oakum, and pulled out the marling spike.
As the flames started to spread and the smoke began to billow out of the hold, the crew
made half-hearted attempts to extinguish the fire, acting as if they were the innocent
victims of some sudden misfortune. Meanwhile Lancey perpetuated the charade by yelling at
the prisoners, accusing them of starting the fire. The convicts protested their innocence
as they were quickly moved to the boat to be joined by the rest of the crew. The boat had
not been afloat long before Captain Nicholson of the Charming Nancy, having seen smoke
coming from the Nightingale, altered course and took its occupants onboard. Some hours
later a second vessel, the Endeavour, came into view; knowing the Endeavour's master
Captain Cook, Lancey was able to persuade him to take his crew and the convicts to Clovelly
on the North Devon coast from where he made his way back to Benson at Knapp House.
bather sings
At first Benson was uneasy, taken aback by the unexpectedly early return of the
Nightingale's crew with the convicts, but Lancey convinced him that both Captain Cook and
Captain Nicholson had accepted his explanation for the fire and all had gone according to
plan. Fearing that one of the crew would expose the truth behind the foundering of the
Nightingale, Benson insisted that Lancey and his men visit the Bideford Public Notary the
following day and sign an affidavit stating that the sinking of the vessel was an accident.
Such a declaration would be required to satisfy the insurers in any case, and if they didn't
pay out Benson wouldn't have honoured the promissory notes, so it was in the crewmen's best
interest to sign. Their declaration included this passage, recalling the masquerade as the
scuttling was under way:
..to the very great surprise and astonishment of all on board, it was observed by the
master that smoke suddenly issued from the hold, whereupon, the master immediately ran
forwards to the place where the convicts were confined, imagining they might have contrived
to have had some fire to have been conveyed among them; and upon lifting up the main
hatches, the fire ascended with great vehemence in the master's face; whereupon they used
their utmost endeavours to extinguish the flames, but all proving vain and ineffectual,
they then immediately got out their boat, and every one on board betook themselves to it,
or they must all have inevitably perished with the ship.
[1, p35]
The Notary delivered the sealed document to Knapp House the following day for all to sign
across the seal to complete the procedure. Though Bather had signed the document the day
before, he didn't turn up this time, choosing to spend the morning in Barnstaple instead. It
was market day and the ale houses were abuzz with rumours about the sinking of the
Nightingale. Word got round that Bather was in town, and there were many folk keen to offer
him the price of a jug of ale just to hear his account of events.
Bather was unaccustomed to being feted in this way and was enjoying being the centre of
attention. By now emboldened through inebriation, the story he recounted in the tavern was
to cast a long shadow over Benson and Lancey. Word soon reached Matthew Reeder, a leading
Barnstaple merchant and bitter rival of Benson, that Bather had been giving the low-down on
the scuttling of the Nightingale. He called Bather to his office and offered him sufficient
inducement to reveal his full account of the affair.
After obtaining Bather's confession, Reeder told him that he would be handsomely rewarded
if he went to the insurance assessor in Exeter to testify to the facts of the scuttling of
the Nightingale. This he did, but not before calling on Benson and adding his signature to
the sealed affidavit, and then claiming a down payment on the insurance money from Powe.
Instead of receiving a reward for his confession in Exeter, as Reeder had promised, Bather
was examined before a Justice of the Peace who decided he was sufficiently implicated in the
crime to be held in custody and he was committed to Southgate Prison.
Meanwhile Lancey was blissfully ignorant of Bather's confession until the first mate John
Lloyd paid him a visit to break the news on August 26th, a day of violent gales in which many
ships were lost in the Bristol Channel. Believing that Benson's good offices would protect
him from prosecution, Lancey dismissed Lloyd's suggestion that he should go into
hiding.
the game is up
Not long after hearing of Bather's disclosures Lancey visited Powe in his Appledore
tailor's shop to get his opinion. Powe railed against Bather with a string of expletives, but
didn't think it would come to much as it was only his word against the rest who would stick
to the story they had given under oath. Minutes later as Lancey made he way home he was
accosted in the street by two men: a local constable accompanied by a bailiff of the Sheriff
of Exeter who produced a warrant for the arrest of the Nightingale's captain and crew,
charging them with destroying the ship with intent to defraud the insurers. Lancey was
detained in the Swan[note
3], a Northam ale-house owned by Benson. When news of the arrest spread through the
tightly knit community, several of the crew gave themselves up voluntarily.
The bailiff met with the Town Clerk of Bideford who had been commissioned to act for the
Prosecutor, one George Coad, an underwriter from the insurers
[note 4] in Exeter, to decide on the next
step. The Town Clerk reasoned that since each member of the crew, including Bather, had
signed the affidavit declaring the sinking to be an accident, there were no grounds for
detaining them; the bailiff disagreed. Eventually they came to an accommodation: Lancey,
Lloyd, and John Sinnett, the younger brother of Richard, were to be held and the remaining
crew members discharged. John on this his first time at sea had served as ship's cook and
took no active part in the scuttling. It was likely that Bather had suggested to the
Prosecutor that such an inexperienced sailor could be made to perjure himself and back up
Bather's version of events under pressure, for without at least one other participant in
the affair turning king's evidence there was little chance of a successful prosecution.
The following day the three prisoners were transported to Exeter where they were examined
on two separate occasions by the Prosecutor before the bench presided over by Mr Justice
Beavis. At length they were all committed for trial; Lancey and Lloyd were taken to the
county gaol where they were treated well under the watchful eye of Mr Manley, the Keeper of
the Gaol, the official whose task it was to bring the convicts bound for Maryland to
Benson's ships. In contrast, poor Sinnett was incarcerated in St Thomas Bridewell where he
was kept in irons. A mixture of carrot and stick was tried on him by the Prosecutor in a
vain attempt to get him to change his story, but he remained stubbornly loyal to Captain
Lancey with whom he corresponded frequently during his imprisonment. His letters suggest he
truly believed the loss of the Nightingale to be an accident and he comes across as a pious
and honest young man.
In early December Mr Manley was ordered to take Lancey and Lloyd to London. At their first
overnight stop at Axminster they chanced to meet up with the keeper of Southgate Prison in
Exeter. He was returning from London after taking Bather and Sinnett there. Bather had
repeatedly tried to escape during the journey and had eventually been put in irons. Mr
Coad, the Prosecutor, had hoped that by having the two of them together, Bather would be
able to persuade Sinnett to back his story. In a long rambling letter to Lancey describing
the journey, Sinnett makes it clear that he suspected they were trying to keep Bather as
close to him as possible which he resisted, as in this extract:
So when I came out [of the coach], Bather came out too, and mind gave me that they wanted
to bring me into a snare; for, I believe it was a contract between Glose [the gaol keeper]
and him, for he would have us lie together; but I would not, nor did not......; and when I
came to London, Glose would have Bather and I hand-bolted together. But I told them that
they should hand-cuff me, but not with Bather, nor I was not......
Lancey and Lloyd were examined before Sir Thomas Salisbury, Judge of the Admiralty who had
jurisdiction over offences committed on the high seas. Lancey remained steadfastly loyal to
his employer under interrogation.
In the course of the Examination it was plainly put to Lancey that if he would provide
evidence against Benson he would be granted his liberty and no charges would be brought
against him, and he was given time to think this over. It was a hard decision to make.
Lancey knew that if he was brought to trial and found guilty the punishment would be death,
or at best transportation for life. To his credit he chose the harder way, he refused to
betray his employer, to turn King's evidence and face whatever trouble lay ahead. And so,
on Monday, December 18th, Captain Lancey and Lloyd were committed to Marshalsea Prison to
await their trial.
[1, p49]
Two days later Powe was arrested in his Appledore shop and taken to London where he was
detained in Marshalsea Prison too, charged with aiding and abetting the wilful and
felonious destruction of the Nightingale.
In the 18th century London's penal institutions were dreadful places to be incarcerated in
by today's standards. Marshalsea was visited in 1774 by the prominent English prison reformer John
Howard. In his report he wrote that Marshalsea had no infirmary, no regular food allowance,
and the practice of "garnish" was still in place, whereby new prisoners had to pay a fee to
other prisoners on arrival.
Newgate Prison,
where Sinnett was held, was even worse, with the practice of extracting payments from
prisoners on arrival, or for minor privileges such as removing irons, being flagrantly abused
by the Keeper, and Bather's gaol, the Poultry Compter was notorious for its atrocious conditions too, as
graphically described in this contemporary account in which the wretched prisoners plead with
the visitors to give them their "garnish":
The mixture of scents that arose from mundungus, tobacco, foul feet, dirty shirts, stinking
breaths, and uncleanly carcasses, poisoned our nostrils far worse than a Southwark ditch, a
tanner's yard, or a tallow-chandler's melting-room. The ill-looking vermin, with long,
rusty beards, swaddled up in rags, and their heads, some covered with thrum-caps, and
others thrust into the tops of old stockings. Some quitted their play they were before
engaged in, and came hovering round us, like so many cannibals, with such devouring
countenances, as if a man had been but a morsel with 'em, all crying out, 'Garnish,
garnish'......
benson takes flight
Following the arrest of Lancey and the others Benson was under enormous pressure from the
ensuing scandal, and in November 1752 Benson left Northam for London, desperate to arrange
bail for the imprisoned crew members so as to get them out of the country before the trial.
He was fearful that his own position would be untenable if pressure from the Prosecutor
persuaded some of the crew to give evidence in court backing Bather's story. In addition, he
was regularly being called before the Court of the Exchequer in London to answer the writs
for smuggling lodged previously. This came to a head in the following February when, on the
advice of his lawyer, Benson gave up his attempts to delay the process further and judgement
for the debt of £8229 was given against him. Once the judgement became known, the
chances of his raising bail receded: three separate attempts were made without success.
He suffered further humiliation as his creditors descended on his rented house in
Parliament Street, waiting daily on his doorstep. He was forced to come and go by the back
entrance. Once it became clear to the Court that he was not in a position to pay the fines,
an Order was issued for the seizure of Knapp House and his other properties as security.
Benson returned to Knapp at the end of June when, in an attempt to preserve his remaining
assets, his lawyer was instructed to create a trust with his relatives William and Thomas
Melhuish as trustees that would take over the running of his trading vessels and cargoes.
This was a shrewd move that he turned to his advantage later. Facing financial ruin with
his reputation in tatters, and Lancey's fate now in the hands of the jury, in December of
the same year Benson slipped out of the country to seek refuge in Portugal.
lancey takes the rap
The trial of Captain Lancey, John Lloyd, and Thomas Powe commenced on February 25th in
1754 at the Court of the Admiralty. No charges were preferred again John Sinnott, still
languishing in Newgate Prison, nor was Bather in the dock.
Captain Marshall was an important witness for the prosecution, though his only involvement
with the Nightingale's last voyage was in supervising the unloading of the cargo on Lundy.
He hadn't signed the affidavit or "Protest" declaring the sinking to be an accident, so was
not perjuring himself. Other members of the crew were eventually persuaded by Coad to turn
king's evidence to avoid being prosecuted themselves, thereby strengthening the Crown's
case by corroborating Bather's testimony.
Lloyd's defence was chiefly that he wasn't a party to the plot and had known nothing of it.
The jury found him not guilty. Following a legal ruling it was decided that the Admiralty
Court did not have jurisdiction to try Powe as he was neither Captain, nor a mariner on the
Nightingale. He was further remanded in custody for trial at Exeter Assizes in March 1754
for "compounding a felony committed by Thomas Benson". But as Benson had fled the country,
the trial was postponed and he was eventually discharged a free man in 1758. Despite
very supportive character references from Marshall and others, the jury found Lancey guilty and
the judge sentenced him to be "hanged by the neck until dead". After the trial John Sinnott
was freed, as were Lloyd and Bather.
Lancey was transferred to Newgate Prison pending his execution. He showed great fortitude
in his final days, bearing no resentment against Bather or Benson. The Newgate Ordinary, or
chaplain wrote of him:
In several conversations that passed between the prisoner and me, I don't remember that he
expressed any resentment against either his Prosecutors, or Bather who made the
Discovery
[note 5],
whose account he admitted, in general, to be true. For two days and two nights, he would
not suffer his prayers to be interrupted, even by sleep, and to his last hour, behaved with
a steadiness and composure, very seldom seen on the like solemn occasion.
On Friday, June 17th, 1754, Captain Lancey met his barbarous end at Execution Dock in
Wapping, the usual setting for death sentences passed down by the Admiralty Court.
Hangings were the occasion for a public holiday, and all the town turned out to watch the
fun, the apprentice boys, the pick-pockets and the gin sodden harlots, all determined to
enjoy themselves. They took up their places the night before and passed the time drinking,
dancing and copulating in the streets. The
quality, and on occasions, even royalty, watched from
the upper windows of neighbouring houses, and celebrated the spectacle with lavish
champagne breakfasts. There was a carefully observed ritual on these occasions. The
chaplain pronounced prayers for the condemned man who usually made a last speech to the
crowd. The execution itself was a protracted business. As the drop was not long enough to
break the neck of the condemned man, his dangling body performed a convulsive dance in
mid-air to the vast amusement of the crowd.
[1,
p78]
The macabre spectacle of the twitching body was known as the Marshall Dance, after
Marshallsea Prison from where the condemned man was usually led. It was customary for the
executed prisoner to be left hanging until three tides had washed over their head before
being taken down.
life in exile
Portugal, another great maritime trading nation of the day, was a natural choice for
Benson's bolt hole. He had several influential contacts there, merchants he would have
entertained at Knapp House when their vessels were docked at Bideford. The masters of his two
remaining ships, the Peter and the Placentia, were directed by the Melhuishes to sail from
the Newfoundland cod banks to Oporto (perhaps at Benson's request) where they were to sell
the vessels. The Peter was purchased by a local man, and the proceeds enabled Benson to start
trading in a modest way using the Placentia. He was joined some time later by his favourite
cousin, Thomas Stafford, and the two of them built up a successful trading company from
scratch.
News of Lancey's death sentence, although expected, would nevertheless have come as a
terrible shock to Benson, leaving him filled with remorse. He was in constant contact with
his lawyer who no doubt would have informed him of the opprobrium being heaped on his head
in the popular press, and the clamour for his extradition to face justice, after he had
abandoned the loyal Lancey to face the gallows.
On receiving word that the British Government had made an application for his extradition,
fearing for his life he fled to Spain. With the Government preoccupied by a fresh outbreak
of war with France, Benson was able to return to Oporto where he remained until his death
in 1772 aged sixty-four. There were rumours that he had secretly returned to Knapp House
for a while before he died, but these are unsubstantiated.
notes
In the 18th century, Lundy Island was within the Braunton Hundred, a division of North
Devon. Benson's likely rejoinder would be that Lundy was effectively abroad because it was
outside British territorial waters, which only extended for 3 nautical miles at the time.
[return]
Using Inns or ale-houses as temporary secure accommodation for prisoners prior to committal
in a gaol was common at the time due to the lack of available police cells.
[return]
In England in 1752 the office of Director of Public Prosecutor to represent the Crown in a
criminal case did not exist: prosecutions had to be brought by individuals, usually the
victim of the crime, and it was the responsibility of that individual to present the
evidence at the trial. A provision permitting the court to reimburse prosecutors for their
expenses following a conviction was introduced around that time. In a scuttling case such
as this, the insurers could be regarded as the victims, so it was reasonable for them to
act as prosecutor to protect their business from bogus insurance claims.
[return]
In the legal sense, a
discovery is a deposition by which one side in a litigation
elicits information from the other side concerning the facts in the case.
[return]
bibliography
For the material on this page I am indebted to The Nightingale Scandal: The story of
Thomas Benson and Lundy by Stanley Thomas, Bideford, 1959; republished by Myrtle
Ternstrom with additional notes, Lazarus Press, 2001. ISBN 0-9523062-3-9. This informative and well-written
book can be obtained postage free by sending a cheque or postal order for £9.50 to Myrtle Ternstrom,
6 Queensholme, Cheltenham, Gloucestershire GL52 2QE.
Thomas used as his main sources the pamphlet written by Lancey when he was on remand, A
Genuine Account of the Burning of the Nightingale, Brig which stuck to the story he
had presented under interrogation, and a pamphlet produced by Bather after his release
A Full and Faithful Account of the Life of James Bather, late Boatswain of the
Nightingale, Brig. This was a shameless attempt by Bather to profit from his role in
betraying his fellow men.
Acknowledgements
The sketch of Knapp House is derived from a larger drawing by John Dyke appearing in
[1]. I am grateful to Myrtle Ternstrom
for giving me permission to reproduce this drawing.
| | last modified on
19 May 2010
