When convicts contracted pecuniary obligations, the governor specially withdrew them from liability to arrest; and told the creditors that in trusting these debtors their opinion of their honesty must be their sole guarantee: government could not spare "the servants of the public" from their toils to answer the plaints of suitors.[104]

From its decisions, a cause could be carried to the governor; and in sums exceeding 300, to the king in council.

Though unsanctioned by an act of parliament, this court departed widely from the practice of England. Its authority was keenly disputed by Bentham; and Commissioner Bigge, in stating its origin and operation, hints a similar doubt.[105]

Undisturbed by objections the crown, by the patents and commissions of 1814, separated the criminal jurisdiction from the civil, and created a supreme court, which adopted the English practice. By the new patent, an appeal was permitted from the supreme court to the "High Court of Appeals," consisting of the governor and the judge advocate; and, except when 3,000 were in issue, his judgment was final![106] To both these tribunals the Tasmanians were amenable; but in civil cases the appointment (1814) of a local court under the deputy judge advocate, terminated the absolute dependence on Port Jackson for judicial relief.

Plaints for debts not exceeding 50 were entertained by this court, and creditors contrived to bring their claims within its jurisdiction, by dividing the amount into bills of 50. This evasion of the law, although it defeated the intention of a superior court and lessened its business, was useful to both parties; it decreased the difficulty and expenses of suits. It was more equitable in its operation than the supreme court: the owner of a vessel could carry up his own witnesses to Sydney, and at the termination of a trial convey them home without delay; but the less opulent debtor or creditor found himself practically excluded from redress.

Mr. Judge Abbot was, however, not eager to a.s.sume his office, and it was not until 1816 that he commenced operations. The acc.u.mulation of debts must have been great, for at his first session fourteen hundred plaints were entered: nor did he exhaust the suitors by delay, for eleven hundred were disposed of during that year. Two inhabitants, chosen by the governor sat as a.s.sessors; and being known, and knowing all parties, they often discussed in private beforehand the causes awaiting their verdict![107]

The deputy judge advocate held in contempt the net-work of the law, by which equitable rights are sometimes entangled: his was a court of request without appeal, and he took pleasure in a.s.serting its finality.

For the convenience of suitors he allowed agents to practice in his court: these gentlemen had somewhat more legal knowledge than the judge, and often exasperated his antipathies by its ostentation. They would dwell on the dignity of his court: his decision was irrevocable; even the lord chancellor of England, they would say, was subject to the revision of a still higher court than his own, but the deputy judge advocate decided the cause for ever. Trusted with such resistless jurisdiction--such onerous responsibility, how great must be his care to avoid an error beyond correction--an injustice that could not be undone but by an act of parliament! Such were their addresses: occasionally heard with complacency--and, it is said, not always unsuccessful. The most famous of these pract.i.tioners were Messrs. R. L. Murray and Evan Henry Thomas. The last gentleman was an emigrant, and issued a rhetorical advertis.e.m.e.nt for employment as a preceptor; but renouncing that calling, he provided himself with a blue bag, the sole qualification essential, and paraded the vicinity of the court: here some suitor found him. What he wanted in experience he made up by industry; and thus carrying his cause, established his reputation as a pleader.

Abbott was a lover of fair play: when one of these gentlemen stated a cause, he expressed a wish that the other side could be placed in as clear a light. Willing to show how well he comprehended the case, the agent for the plaintiff set before the court what the defendant might allege; and Abbott, admitting its force, determined in his favor! The equitable judge decided that the plaintiff should pay the defendant the unsought balance of his bill.

On such a primitive plan were minor rights protected. Although the decisions were often grounded on imperfect proof, the substantial equity of Abbott's adjudications was rarely questioned. In cases under 5 the court received no fee, but in higher causes a small sum was paid. The agents obtained what they could, as the recompense of their professional toils.

Major Abbott continued to preside as deputy judge advocate, until his office was abolished. After visiting England he returned to Launceston with the appointment of civil commandant. He died in 1832: the inhabitants spontaneously honored his funeral. He was esteemed as a person of a generous nature and upright intentions. Major Abbott entered the army at the age of thirteen: he was in the service of the crown fifty-three years, forty-three of which were spent in the colonies.

FOOTNOTES:

[Footnote 77: 14 Geo. iii. c. 83.]

[Footnote 78: "Whereas it may be found necessary that a colony and a civil government should be established, and that a court of criminal jurisdiction should also be established, with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof." The court, described as above, is then authorised, to try "outrages and misbehaviours, as if committed in this realm would be treason or misprision thereof, felony or misdemeanour."--27 Geo. iii. Nothing is said of legislative power.]

[Footnote 79: _Collins_, vol. i. p. 32.]

[Footnote 80: _Bigge's Jud. Report_, p. 34.]

[Footnote 81: Holt has left a graphic picture of a justice, which must be received, perhaps, with some reservation;--"I was walking with Barrington, the most accomplished pickpocket: he was arm-in-arm with Richard Atkins, Esq. I wished to have some conversation with them. A bottle of rum was produced, and some pleasant conversation about Ireland pa.s.sed. At length I wished to retire, and Mr. A. said he never allowed any bottle off his table till he saw it emptied. We finished the half gallon bottle, and of course were not a little elevated. Mr. A. acted as a kind of deputy, when Judge Dore was not able, which not unfrequently happened: when spirits were plenty in the colony, he was generally indisposed." Mr. Croker adds, that "Atkins was appointed as a subst.i.tute to Collins in 1796, by the secretary of state, until the arrival of Mr.

Dore in 1797."]

[Footnote 82: _Bigge's Jud. Report_, p. 2.

At Norfolk Island a court of criminal jurisdiction departed still further from the precedents of civil justice. An act authorised the government to convene a court of four military or naval officers, to decide on questions of life and death, even when free men were implicated.]

[Footnote 83: "Yesterday, the bench a.s.sembled, when a free man, formerly belonging to Fort Dalrymple, was found guilty of stealing a silver watch from George Guest, jun., his property, and sentenced to labor for the government for the term of five years, and moreover to receive 500 lashes."--_Derwent Star, Feb. 6th_, 1810.]

[Footnote 84: _Holt's Memoirs_, vol. ii. p. 202.]

[Footnote 85: Such punishments were not always unmerited, but they were capricious. A magistrate tied a carter to the wheel of his waggon, and inflicted 300 lashes for cruelty to his bullocks; but Dr. Montgarret ordered the blacksmith to be flogged, for presenting his bill!]

[Footnote 86: _Mann's Picture of New South Wales_, 1811.]

[Footnote 87: _Bentham's Plea._]

[Footnote 88: _Bigge's Jud. Report_, p. 17.]

[Footnote 89: Ibid.]

[Footnote 90: _Bigge's Jud. Report_, p. 6. _Wentworth_, p. 43. edit. of 1820.]

[Footnote 91: _Bigge's Report_, p. 48.]

[Footnote 92: _Macarthur's New South Wales: its present state and future prospects_, 1837.]

[Footnote 93: _Bigge's Report._]

[Footnote 94: 59 Geo. iii. 1819.]

[Footnote 95: "This sentence was put in execution before the provision store, when the mob, either to display their aversion to the crime, or what might be more probable, to catch anything that wore the form of amus.e.m.e.nt, pelted him with rotten eggs and dirt."--_Collins_, vol. ii.

p. 54.]

[Footnote 96: _Gazette_, 1823.]

[Footnote 97: Maconochie, in his supplement to _Australiana_, extracts the following pa.s.sages from one of Sir James Mackintosh's private letters, published in his _Memoirs_, p. 342-3:--"Even out of England there are many places which I should prefer to this (Bombay). You will smile at the mention of Botany Bay; but I am most serious, and I a.s.sure you that next to a parliamentary situation, to which either nature or early ambition has constantly directed my views, I should prefer, without much regarding pecuniary advantages, that of being the lawgiver of Botany Bay.... England, in rearing such a community, is preparing not only conquerors of India, but enemies to herself and to all mankind.

While on the one side the experiment of a reforming penal colony is, perhaps, the grandest ever tried in morals, it is one which is perfectly safe; for the settlement never can be worse than it is now, when no attempt towards reformation is dreamed of, and when it is governed on principles of political economy more barbarous than those which prevailed under Queen Bess. Every day the difficulties of the experiment grow with the increase of the (criminal) population.... I have heard, read, and thought so much about this extraordinary colony, that I am very confident in my general opinions; and I confess, between ourselves, that I am a piece of an enthusiast in my reforming projects," &c.]

[Footnote 98: 43 Geo. iii.]

[Footnote 99: "Not a governor, not a magistrate, that has acted thus, but has exposed himself to prosecutions upon prosecutions, to actions upon actions, from which not even the crown can save him."--_Bentham's Plea for the Const.i.tution_, 1804.]

[Footnote 100: _Wentworth_, p. 389. 1820.]

[Footnote 101: _Collins_, vol. ii. p. 214.]

[Footnote 102: _Collins_, vol. i. p. 268.]

[Footnote 103: _Bigge's Jud. Report_, p. 76.]

[Footnote 104: Collins.]

[Footnote 105: _Bigge's Jud. Report._]

[Footnote 106: Ibid.]

[Footnote 107: Ibid.]

SECTION V.

William Sorell, Esq., third Lieutenant-governor, landed 8th April, 1817.

To restore safety to the colony was the first duty of the governor: on his a.s.sumption of office he called the inhabitants together, and enabled by their subscriptions he offered large rewards, and thus inspirited both the soldiers and the constables. In less than three months the greater portion of the bushrangers were destroyed or captured. During Sorell's administration the colony suffered no serious disturbance from outlaws. This display of rigour was followed by judicious precautions: he ascertained more frequently the distribution and employment of the prisoners of the crown, and removed many temptations to disorder and crime.

It was the practice, established first a few months after his arrival, to muster the whole population annually. Notice was sent through the districts, requiring the attendance of the several cla.s.ses, who accounted for their families and their stock: the name, the residence, and civil condition of every inhabitant became known. Sorell thus ascertained the increase of cultivation and cattle, and whatever indicated progress.