Mr. Baxter, the puisne judge elect, had been attorney-general of New South Wales. His relations with Darling had not been cordial, and he was disgraced in the eyes of the public by domestic differences: his wife was insane, and he himself was intemperate. Just before he left Sydney for Van Diemen's Land, he was bound over to keep the peace, and was declared insolvent. On his arrival, the royal warrant for his induction had not reached the colony, and after some delay he returned to New South Wales, and thence to Great Britain, where he died. Mr. Baxter ascribed his ruin to his grant from the crown: he employed persons to look after his estate, and they conducted him to beggary.[185]

The lieutenant-governor resolved, if possible, to exclude Baxter from an office which he could only dishonor, and pa.s.sed an act, p.r.o.nounced by the lawyers a piece of "doubtful and dangerous" legislation, by which the clause of the charter requiring two judges was expunged, thus const.i.tuting the court of one. The act of parliament, however, authorised the measure: the council had power to repeal or annul a patent, until the pleasure of the crown were known. The act was approved, and remains among the laws. Occasions might occur, when the course of justice would be arrested in a small community by requiring many officers to const.i.tute a court.[186]

The reformers were not disheartened by their failure: they a.s.sembled again the following year,[187] at the request of the Hornes, the Gellibrands, and the Gregsons. The effort was unavailing. In 1834, it was renewed with still more earnestness: the former parties, reinforced by many important accessions, maintained the popular cause. Repeated disappointments excited some bitterness, which was expressed in strong terms.[188] Mr. Thomas Horne reminded the home government that they would make "a dissatisfied and turbulent people, ready to use their power, and a.s.sert their rights, if necessary, by force of arms." He advised the oblivion of minute grievances, and said, "were the angel Gabriel to propose one measure, and Satan another, if he considered Satan's the most politic, he should have the honor of adopting it."[189]

But neither importunity nor threatenings prevailed.

These efforts were renewed in the following year; but in 1835 some of the chief advocates of a legislative a.s.sembly deprecated the penal inst.i.tutions of the colony, and proposed that all convicts, on their arrival, should be set free: of this plan, Mr. R. L. Murray was a distinguished advocate.

A deputation from the meeting for free inst.i.tutions, requested the intercession of the governor with the crown; but he replied, that if the grant of free inst.i.tutions, and the discontinuance of penal coercion, were connected by one common advocacy, the interests of the colony, of the crown, and of philanthropy, would demand the most serious precaution. He maintained that all British rights were conceded, "excepting the elective franchise;" and quoted with more cleverness than dignity, their statements of colonial opulence, to show how little they had suffered by a former denial of their prayers.

Mr. Gellibrand, senior, was a person of intellectual tastes and lofty spirit. His early life had been spent among liberal politicians: he was a zealous advocate of freedom, but still more of knowledge and virtue.

Mr. Gellibrand, junior, was a lawyer of popular talents, whose practice as a barrister made office of little importance, and who, when discarded by Arthur, opposed him with incessant vigour. His eloquence was never exhausted, and his learning as a lawyer obtained him consideration in the court, which his boldness as a pleader often threw into jeopardy.

Mr. Thomas Horne exhibited a fervour in the popular cause, worthy his kinsman. The rest were chiefly settlers, and patriots from resentment or conviction.

These meetings preserved the principles of const.i.tutional freedom; and if they did not hasten its possession, reiterated its lessons and prepared for its enjoyment. Whatever temporary turmoil the meetings created, they were conservative of great interests, and deserve a grateful remembrance. These appeals to the British legislature were commonly accepted in silence: by the crown they were graciously received and forgotten. They had no perceptible influence on colonial policy, and only acquitted the settlers of indifference to rights, which can never be valued at too high a price.

The surplus revenue, accruing from year to year, suggested to the secretary of state the imposition of police, and gaol expenses on the colony. The non-official members of the council, except one, voted against the appropriation. They denied that the supposed advantages conferred by prisoner labor, justified a claim on the colonial funds for the support of a great national object; and they added this remarkable pa.s.sage:--"The influx of moral pollution has been perpetuated, and the colony doomed for ever to be the gaol of Great Britain, and destined never to rise to any rank among the British colonies."[190] A dim fore-shadowing of that universal sentiment to which the constant attempts to lessen the profits of prisoner labor gave rise. The revenue was largely dependent on the consumption of liquors, and upon habits which generate crime and impose expenses on the public. It received an appropriate destination: funds contributed chiefly by drunkards for the repression of criminals. Such was the apology for exactions enormous, when compared with the population; a view not easily impugned, except that in such cases the interest of the government ceases to be hostile to vices which increase its wealth.

FOOTNOTES:

[Footnote 185: Letter to Darling, 1830.

Major Mudie says--"Being scarcely ever sober, he left his business to be done by a convict clerk, who had been a lawyer of some sort previous to his transportation from England."--p. 245.]

[Footnote 186: 9th Geo. iv. sec. 22.]

[Footnote 187: August 13, 1832.]

[Footnote 188: Captain Glover stated, that the events of the 23rd of May had been dramatised in the following strain:--The amba.s.sador of that meeting was admitted to the king: "Ho, ho, Mr. Amba.s.sador," said the king, "the people of Van Diemen's Land want an a.s.sembly, do they; what do they want it for?" The posed amba.s.sador replies, "Because they do, your Majesty." "Because they do, Mr. Amba.s.sador, is that the reason they gave?" "Please your Majesty, I am not certain they gave that reason."

"What do you think of that, G.o.derich?" says the king. "Oh, all nonsense," said G.o.derich. The amba.s.sador, on retiring, requested an answer, and was informed, "there was none." The amba.s.sador, in his turn, asked the reason. "Why because we wont--that's all."]

[Footnote 189: From the _Tasmanian_ report of meeting.]

SECTION XV.

The case of Mr. William Bryan was before the public for many years. Mr.

Bryan was an enterprising settler, and owned 11,000 acres and extensive herds, and was engaged in many speculations of public utility. He erected a valuable mill, and under his auspices a company was formed, which purchased a steam vessel. She was brought to the colony by Captain Alexander Wales: when, however, he arrived, the project was defeated by the altered position of Mr. Bryan's affairs.

Samuel Arnold, a herdsman of Mr. Bryan, was convicted of cattle-stealing (1833), and sentenced to death. The police magistrate, Mr. Lyttleton, who committed him for trial, alleged against his master a culpable incaution, and Judge Montagu uttered a severe censure from the bench on the same account. Mr. Lyttleton, on going outside the court, addressed several gentlemen, of whom Mr. Dry was one. He remarked, that though the man was sentenced to die, he would do his utmost to save his life; and added, that another person ought to be standing in his stead. This was supposed to refer to Mr. Bryan, who deputed a young friend, Mr. Lewis, to demand an explanation, or appoint a meeting. Not only did Lyttleton decline this, but he transmitted an account to the government, and the attorney-general prosecuted Lewis for endeavouring to provoke a duel.

Mr. Bryan now appealed to the public, and tendered his resignation as a magistrate: he complained that he had been calumniated, and satisfaction refused. Arthur rejected his resignation, and dismissed him from the commission of the peace; and instantly recalled his a.s.signed servants, twenty-two in number. Thus deprived of laborers, in the midst of harvest, his crops rotted on the ground; and his stock neglected, became diseased and were scattered. He was indebted to the sympathy of his neighbours, and to the extent of his wealth, that his property was not destroyed, and his credit wholly subverted. The effects of this measure were disastrous, and excited general distrust.

Bryan ascribed his treatment to an early difference with Arthur. The land he obtained on his arrival was less than he claimed, and he appealed successfully to the secretary of state; but he was told by a friend of the governor, that this was an offence not to be pardoned: no man could appeal against Arthur with final impunity.

Mr. Bryan was not altogether a martyr. He received upon the whole 4,000 acres of land; and in a letter to Arthur, he wrote:--"Permit me to return you my sincere thanks (as much for the manner as the matter) of your very kind letter of the 11th instant. To the same principle of impartiality which you have evinced in my cause, I leave the increase of my grant, resting quite satisfied that if my exertions deserve it they will be rewarded."[191] Mr. Bryan had then received 1,500 acres; he afterwards received 2,500.

Mr. Bryan inst.i.tuted an action against Mr. Hortle, the agent of government in the recall of his servants. The issue depended greatly on the manner of trial--whether by a.s.sessors, or a jury of twelve. The court possessed a discretion. The law officers a.s.serted, and the judges allowed, that the colonists were disqualified by common interest to form an impartial judgment, and a jury was refused. Bryan then dropped the action, which he objected to entrust to a.s.sessors, directed perhaps by a member of the executive: for the same reason he withdrew his proceedings against the police magistrate for defamation of character. He returned to England: sought redress from the ministers, but in vain. On this case the opinion of impartial persons can hardly err. Yet the right of the governor to withdraw men, though not to be exercised in a wanton and destructive manner, was hardly to be disputed. The opinion of the English law officers of the crown favored that view, although it would be dangerous to take their version as decisive. "We," say they, "are clearly of opinion, that under the 9th section of 9th Geo. iv. c. 83, governors can revoke a.s.signment of a convict, of whose sentence it is not intended to grant any remission; and we think there is nothing against the apparent policy of the act which militates against that construction."

For carrying a challenge to Mr. Lyttleton, Lewis was put on his trial.

The conventional turpitude of the offence wholly depended on the provocation. A magistrate could not be covered by his privilege when standing in the street, and announcing his opinions to the loungers there; but Lyttleton, himself the sole witness, denied the words imputed, and his cross-examination was impeded by the court. Lewis read a written defence, and reproached the attorney-general with prosecuting an offence recently committed by himself: for this the accused was fined 10 by the judge, who advised him to retire and revise his notes. On resuming his speech, he was again stopped and fined. Complaining that the course required by his defence was unjustly obstructed, he became silent. A military jury found him guilty; and the judge condemned him to pay 150, and suffer an imprisonment of eighteen months.

The aspersion of the character of a magistrate by an imputation so serious, was the sole alleged justification of the challenge. The words attributed to the police magistrate, Lyttleton, he had denied; but, on his return home, became convinced by the testimony of Mr. Dry, sen., that he had sworn falsely. He communicated this impression to the attorney-general, but without result.

The conduct of Judge Montagu, on the trial of Lewis, was represented as harsh and captious; but was explained by subsequent disclosures. A clever barrister, who secretly advised the accused and framed his defence, went into the judge's room, before the sitting of the court, and in conversing with Montagu intimated the very improper course Lewis intended to take. Montagu replied, he would certainly fine him. It was under these suspicions, that he began the trial: he was thrown off his guard, and the prosecution involved in an irreparable mistake. When the court sat to sentence the accused, the lawyer was there to urge the illegality of the conviction.

Lewis complained to the secretary of state, who referred his case to the law officers of the crown, who a.s.serted "that it is an unwarrantable proceeding, on the part of a judge, to fine an accused party for saying anything which he may consider essential to his defence, provided it shall be consistent with public decorum." The secretary of state directed compensation: this, a board estimated at 1,700. The governor was, however, desirous of depriving Lewis of the indemnity, and the legislative council resolved, seven to four, that the observations of Mr. Lewis were not within that qualification; and requested that, if the secretary of state persevered in his determination, he should pay the complainant from the land fund. Such resistance was obviously official, and without moral weight, and the money was eventually paid.

Several months after the departure of Mr. William Bryan for Great Britain, his nephew, Mr. Robert Bryan, and another, were charged with cattle-stealing. The constables who professed to watch the prisoners, alleged that they saw the animal in question driven homeward by the accused, and on the second day following discovered the skin thrown into the scrub. Witnesses contradicted the constables, who were all prisoners of the crown, in some material points. The young man was sentenced to death. The capital penalty was not inflicted; but it was the popular notion that he was the victim of a conspiracy.

The young man, Robert Bryan, was tried on two separate indictments, and such was the evidence, that many unprejudiced persons concurred in the verdict: yet the witnesses against him were open to suspicion. It was commonly a.s.serted that he was sacrificed; if not by the contrivance, with the concurrence of the government.

The trial was reported by the _Colonial Times_. The editor, Mr Henry Melville, pointed out in strong language the suspicion of unfairness; the dependence of the jury; the presence of the governor at Launceston during the trial; the infamous character of certain of the witnesses; and the overruling a challenge of a juror by the prisoner. The remarks of Melville were carried beyond the tolerated bounds of public criticism; the attorney-general, Stephen, induced the court to issue an attachment. The defendant was required to admit the authorship: this being done, the judge whose conduct he had censured p.r.o.nounced the sentence.[192] To judge, condemn, and imprison, at once and by the party offended, included all that tyranny could ask. Any reference to the proceedings of a court, which the judge might choose to p.r.o.nounce a libel, might consign to perpetual imprisonment. A similar case, at Newfoundland, was discussed in the House of Commons, and the ministers joined the opposition in severely reprehending the practice. The papers published the debate, and Arthur slowly obeyed the signal, and gave Melville his liberty.

Motions for attachment have not often disgraced the administration of justice: they are relics of barbarous times. This process was issued against Fawkner, the editor of the _Launceston Advertiser_, who escaped by an apology; and it was moved for by the attorney-general, Stephen, against Murray and Melville, for calling an affidavit of the solicitor-general--to the effect that a fair trial could not be obtained in Bryan's case with a colonial jury--"an extraordinary doc.u.ment!" The judges dismissed the application, when Stephen remarked, that he "thanked G.o.d he despised the observations, as well as the scoundrel-like motives which influenced them."

The intermixture of cattle of various owners, in the extensive forests belonging to the crown in the northern districts, afforded opportunities for plunder, and frequently occasioned disputes and quarrels. The herdsmen were often careless and dishonest, and their masters were liable to share the reproach of their mistakes or guilt. The marks distinguishing such property easily escaped the memory: it was often left to the choice of the magistrate to commit for felony, or resign the dispute to a civil tribunal.

The constabulary were mostly prisoners of the crown. Their office ent.i.tled them to an earlier attainment of their liberty than other convicts: the detection of a serious crime gave them claims for a still quicker liberation; and the desire of freedom prompted them to lay snares for persons suspected, and even to commit a crime that they might charge it on the innocent. Thus, they would sometimes slaughter a branded beast, and throw its skin on the premises of the selected victim. Such atrocious wickedness was certainly not common, but that it sometimes occurred is beyond all doubt.

Captain Serjeantson, of the 40th regiment, a gentleman connected with several opulent settlers, was murdered (1835). The family collected 500: to this the governor added 100 more, for the discovery of the murderer, who was found to be Hunt, a bushranger, afterwards shot by a small settler, and who dying confessed the crime. In this case, a constable, Drinkwater, proposed to another to earn their free pardons.

The plan sketched was to deposit shot in the hut of a man at Campbell Town, who was suspected, resembling that extracted from the body of the deceased. A constable, invited as an accomplice, betrayed the project; not, however, until the proof of its existence was indisputable. The same constable had proposed to throw a sheep stolen from the flocks of Mr. Willis, on the premises of a man, "on whom there was a down."

The intentional encouragement of perjury cannot be imputed to the government; but necessity induced a most perilous laxity of feeling.

Thus on a trial, the judge not only stopped the case, but committed the prisoner policemen for perjury: these persons were discharged by the attorney-general, and established again as constables. Their oaths had already produced several capital convictions, and they became qualified to accuse and convict the most upright men. The ignorant police agents considered that the successful prosecution of any person, regarded by their officers with hatred, would ent.i.tle them to benefits; and even the prisoners in service discriminated between those whom they might accuse with impunity, and such as were protected by their connections. Nor was this all: in the height of political excitement, a prisoner was arrested in the neighbourhood of Mr. Gregson's dwelling, who avowed his intention to a.s.sa.s.sinate that gentleman, in the expectation of a reward.

The affair of Mr. Bryan increased the anxiety of the colony to obtain trial by jury, independent of the court and the influence of the executive. By the custom of England, this privilege could only be suspended by martial law, when the ordinary courts were closed: wherever the authority of the crown was recognised, the accused was ent.i.tled to trial by his peers. Nothing could be more alien from the habits of Englishmen, than to lodge the functions of grand jury in the hands of an officer of the crown, or commit life or liberty to the verdict of a military jury. A paramount necessity required the practice for a time; but a change was delayed, by the hesitation of the government, long after the colonies contained a body of freemen.

The decision of Judge Forbes, instanced in a former page, which determined that the common law right remained with the session of magistrates, had been acted on for a time. Emancipists sat on these juries, and exulted in the privilege. Their press, in publishing the list, distinguished the members of their body by affixing stars (*) to their names. The act of parliament (1828) set aside the interpretation of the judge; but when it took away the common law right, it gave power to the crown to authorise the inst.i.tution of juries, at the discretion of colonial legislatures. Thus an ordinance ent.i.tling to trial by jury in civil cases, was established in New South Wales (1829). The chief justice strongly favored the eligibility of emancipists, who were three times more numerous than the immigrant population. The non-official members of the council were generally opposed to their admission; but the measure was carried by ten against five. Thus, although the trial of criminal causes still remained with the military, the courts could not withdraw civil wrongs from the verdict of civilians. By this act the officers of government were liable to some responsibility, and in several instances were cast in damages, notwithstanding the efforts of the crown to defend them.

While civil jurors were confined to civil issues, they sat in the box occupied at other times by the military jury. An officer had amused his leisure, while sitting on a trial, by tracing caricatures of the civil jurors, and writing libels on the benches. Thus insulted, they appealed to the court for protection. The judge was unwilling to interfere; but being pressed, remarked, that were the authorship traced to a military juror, he would close his court rather than intrust to such hands the administration of justice (1830).

The hostility of the opulent emigrants to the eligibility of emancipists was intense and lasting. This was still more active when the trial of criminal issues pa.s.sed into their hands (1833). They a.s.serted that the criminal at the bar was too literally tried by his peers, and that scenes disgraceful to public justice were enacted in the retiring room.

It required all the authority of the court to repress antipathies so openly avowed. The rancour excited by this question is scarcely credible: a gentleman addressed the judge from the box before he was sworn, and asked if he was expected to deliver a verdict with twice convicted felons? Appearances of partiality and corruption were quoted to prove the pernicious effect of their admission. The magistrates, usually hostile to the measure, returned as fit and proper persons, those whom they knew would disgrace the box. Some flagrant cases were exhibited as specimens of the whole: a juror, out on bail for horse-stealing, resolutely acquitted another charged with cattle-stealing, and was convicted himself. Thus, it was said, returns to the summons of jurors, in one instance, was "hanged;" in another, "transported for life."

These were certainly blemishes, but they were magnified into radical and incurable defects (1835). The complaints of the gentry, induced Governor Bourke to take the opinion of the judges and the law officers of the crown: on the whole, they were fully satisfied with the result of the law. It was remarked by a judge, that the accused would sometimes choose a military jury, or a jury of twelve, according to the nature of the offence: in cases of aggravated violence they often preferred a military jury, but where conflicting testimony was likely to occur, they preferred the greater number, only as less likely to agree. Forbes stated that the chief difficulty was confining the juries to the question of fact; but their verdicts had generally satisfied him. It was the opinion of the judges, save Mr. Justice Burton, that trial by jury had been too long deferred, and that benefit would result from its unqualified adoption.[193]

In Van Diemen's Land, an ordinance was pa.s.sed (1830), permitting the judge to allow a jury in civil cases, whenever it was desired by either party. The names were twenty-four: from these both parties struck out six, and the remaining twelve were the jury. The first trial occurred 1830 (Butler _v._ Bent), in an action for libel, contained in a series of letters written, or acknowledged, by Wells, an emancipist, and signed "Simon Stukely." They were afterwards collected into a volume. The chief persons in the colony were described with considerable spirit, but with the usual injustice of anonymous satire.[194]

The danger to the fortunes of the people was more severely felt than the peril of their liberty and lives. Thus a public meeting, demanding trial by jury, was held in 1834: an address was presented to Arthur by a deputation. In urging the amendment of the law, they referred to the extraordinary powers possessed by the government. Arthur, in reply, professed a liberal desire to gratify their wishes; but denied that he possessed extraordinary powers, or that "they required to be watched with more than usual jealously." He had, however, deferred the establishment of British laws to the last possible moment, and certainly possessed great powers; on the whole, more capable of perversion than any ever known in a British colony.

The attorney-general, Alfred Stephen, was desirous of subst.i.tuting for the a.s.sessors a jury of seven, instead of twelve. His project was opposed by Mr. Kemp, and indeed very generally disapproved. It was argued, that the chances of influence multiply as the number of jurors are decreased, and that the national practice was the only safe guide.

The amount of discussion that attended the dispute was prodigious: pamphlets, and letters without end. The prejudice of the people was, however, on the right side: although there is nothing sacred in an ancient number, the retrenchment must have increased the facility of corruption.

The law, as it ultimately pa.s.sed, removed the danger, by giving either party a right to demand a jury; and to the party against whom the application was made, a choice between a petty and special jury; but three-fourths were taken as the whole, after six hours deliberation.