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.
Benson had his eye on Captain Lancey to lead 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.
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.
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 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.
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:
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.
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:
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.
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":
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.
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:
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.
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.
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.