The History of Tasmania Volume I Part 12

This was not the only charge exhibited against Arthur. In Honduras, slavery existed in its foulest forms.[142]

Colonel Arthur obtained the countenance of an important cla.s.s of politicians, by the compa.s.sion he expressed for the negro race, and his exposure of the connivance of magistrates at the cruelty of masters. He minutely described the sufferings of several women of color in his despatches to the secretary of state; and especially denounced that atrocious bench, which admitted a plea of owners.h.i.+p in justification of the crime of maiming. The details given by Arthur fully justify his interference, and the enmity of a people by whom they were tolerated inflicted no disgrace. Thus a mistress, whose careless severity injured the eye and severed the ear of a negro woman, pleaded the rights of property, and the magistrate admitted the defence, although the character of the sufferer was unimpeached. In flogging, the owners often stripped off the lower clothing of the female slaves, threw them on the ground, and fastened their limbs to stakes.[143]

Wilberforce and Stephen, the great advocates of slave liberation, who possessed influence with the executive, considered Arthur a valuable coadjutor in their glorious cause, and were supposed to pardon the arbitrary spirit of his government for the sake of his philanthropy.

This evangelical alliance was a standing subject of reference and criticism.

It may be proper to notice the moral state of this colony on Arthur's a.s.sumption of office. The meeting which adopted a farewell address to Sorell, authorised a similar compliment to Arthur on his accession. It was couched in the language of cold respect: parting reluctantly with their late governor, the people were less disposed to welcome his successor. The reply of Arthur was not less formal and cold: he took occasion to express his conviction that the moral example of the free population was essential to the improvement of a cla.s.s less favored; and that while employing his authority for the general welfare, he was resolved to maintain the rights of the crown. Such sentiments and purposes were just; but scarcely likely at that moment to be heard with pleasure. The good sense of Sorell discountenanced the excesses of vice, but the moral standard of England he had not attempted to raise. The domestic circ.u.mstances of Arthur were more favorable to his authority as a censor; and happily for our ultimate welfare, he resolved to discourage violations of social decorum. Many settlers, whose rank in life made them unwilling to contract lawful marriages with prisoners or their offspring, were surrounded by a numerous race. Their example affected those in stations beneath them. To arrest this domestic evil, was doubtless the duty of Arthur; but it was not always performed with consideration. Many were unable to marry; but were unwilling to abandon connexions sanctioned by the circ.u.mstances of the colony and the habits around. They were placed under a ban: the favours of government were denied them. Such as were in subordinate offices were dismissed; and however lasting the utility of this rigour, its immediate consequence was irritation, resistance, and contempt.

The state of the prisoner population, though considerably ameliorated by Sorell, was far from satisfactory. Left much at their own disposal from the hours of labor till their return, they were masters of that portion of their time most suitable for dissipation and crime. The extent of their depredations, and the deliberation with which they were performed, indicated an extensive confederacy. The subordinate police, p.r.o.ne to connive with offenders, was ill-regulated and insufficient. Goods were carried off in ma.s.ses: bags of sugar and chests of tea were abstracted from the stores; cart loads of property were swept off at once. The habits of the populace were daring, profane, and intemperate; and to coerce such materials into order, required the utmost vigour and discretion.[144]

The chief justice, John Lewes Pedder, Esq., brought from Great Britain the charter of the supreme court, which was proclaimed in the market-place on the 7th May, 1824. On the 24th of the same month, the court opened for business, and Joseph Tice Gellibrand presented his commission as attorney-general. In his opening speech he declared his resolution to adopt the maxims of the ill.u.s.trious Hale. He eulogised the jurisprudence of his country, and especially trial by jury; but the military uniform which appeared in court, if it did not lesson its utility, deprived the inst.i.tution of its grace.

The first person tried was named Tibbs, for killing a negro, who while watching for thieves was himself taken for a robber. Though not a constable, he found pleasure in detecting the crimes of others, and had in some instances succeeded. He fell a victim to this singular pa.s.sion: he was haunting the premises of a settler, by whose servant he was slain.

The first prosecution for libel was at the instance of Mr. R. L. Murray.

This gentleman, formerly a captain in the army, had been transported for bigamy. At an early age, while stationed in Ireland, he became acquainted with a presbyterian lady, and was married to her according to the rites of her faith. Considering himself trepanned, he came to the conclusion that the ceremony was void, and subsequently espoused another. Twenty years after, he was prosecuted; but not at the instance of the parties more immediately concerned. In an appeal to the British nation, published at the time, he ascribed the charge to malice; and he made several unsuccessful efforts to obtain the reversal of the sentence. In the opinion of eminent counsel, the ceremony was invalid; and many years after, the judges decided that the marriage of a presbyterian and an episcopalian in Ireland, could only be celebrated by a clergyman of the establishment. Sir Samuel Romilly and Mr. Whitbread called the attention of the Commons to the extreme severity of the sentence, and were resisted by the ministers with party warmth.[145]

Murray was educated at Westminster and Cambridge; and had spent twenty years in the service when his commission, as captain in the Royal Waggon Train, was declared forfeited. After residing some time in New South Wales, he settled in this island: his extensive experience and literary talents procured his admission to the limited society. Having adopted the opinion that an independent colonial government would not add to the freedom or prosperity of the colony, he opposed the pet.i.tion. The committee for its promotion set up a placard, which referred to the history of the dissentient, and exposed themselves to a criminal prosecution.

The establishment of a court seemed to be the signal for an outbreak of disorder and violence. Many prisoners escaped from confinement, and for a long period a succession of depredators alarmed and pillaged the colony. The settlers promptly tendered their a.s.sistance to the government, to garrison the towns or scour the bush. Their a.s.sistance was chiefly valuable for the moral support it afforded, and its influence on the minds of the labourer in bondage. The exploits of the bushrangers properly belong to the history of transportation, and are related in Vol. ii. p. 194. The terrors they spread r.e.t.a.r.ded the occupation of the country, and joined with the a.s.saults of the natives made the life of a Tasmanian farmer one of considerable danger. At this time the remote estates were guarded by soldiers: loop-holes pierced the walls; fierce dogs were stationed as sentinels; and the whole strength of a district was sometimes employed in pursuit. Few settlers have escaped a.s.sault and loss. Many families, who in Great Britain thought of an armed robber only with feelings of terror, by long familiarity with scenes of danger, acquired a cool courage, which would not dishonor a soldier by profession. The unsparing sacrifice of the robbers captured, gradually terminated the practice of bushranging, and the colony enjoyed a long season of comparative repose.

The duties, levied first by the authority of the governor-in-chief, and afterwards sanctioned by parliament, were collected by the Naval officer, who received 5 per cent. on the amount: he also performed the duties of treasurer. Dr. Bromley, the surgeon of the first fleet, subsequently made seven voyages to the colonies, when he obtained the appointment. The infrequent examination of the accounts, exposed the treasury to undetected pilfering, and the colony to loss: in 1824, a large defalcation was discovered, which, ascertained by a jury of merchants, amounted to 8,269. They recommended the defaulter to the lenient consideration of the government, as the victim of others. Dr.

Bromley had been subject to the daily peculation of servants, and robbed of cash and plate, to the value of 500, at once. His integrity was not impeached: the public business, however, had been conducted without check. The per centage was abolished, and the offices of treasurer and collector separated, and confided to Mr. Jocelyn Thomas and Mr.

Hamilton.

The admission of goods liable to customs had been lax. The new settler landed his rum duty free, when intended for his own use; but smuggling was carried on to a large extent, and the protection of the revenue required a more severe supervision. The rigour was not always exercised with courtesy; and the vallise of Mr. Edward Lord, formerly acting-governor, was detained by the naval officer, with some expressions of indignity.

The merchants were deeply offended by the imposition of a duty at Hobart Town, higher than was fixed by Brisbane at Port Jackson, as injurious to their trade; and that duties levied prior to landing, were sometimes imposed on wines never actually delivered. They requested that the charges might be equalised with the other port, and that the excess already taken should be restored. In reply, Arthur not only refused to entertain the pet.i.tion, but vindicated with great ardour the conduct of Hamilton, as a traduced and excellent public officer. Such was the answer to the merchants who complained of excessive and unequal imposts.

Dissatisfied with the reply, they required the sheriff to call a public meeting, to address the governor-in-chief, the colony being still a dependency. This the sheriff, Mr. Dudley Fereday, declined, complaining that his honor Colonel Arthur was not mentioned in the requisition, and the object of the meeting not sufficiently defined. A meeting was therefore called to reprobate the ignorance and presumption of the sheriff; but the dispute ended without any other practical consequences than a wide impression that the government was despotic and contemptuous.

A more important variation between the colonies was displayed on the question of trial by jury. The magistrates of New South Wales were required to shew cause for the non-issue of a precept to the sheriff, to summon a jury. The rule _nisi_ was made absolute. Chief Justice Forbes decided that the magistrates derived their commission from the king, and not the parliament; that their functions and obligations were settled by common law; were not mentioned, and therefore not taken away by the act.

The petty session thus traced its existence to the royal commission: the supreme court to the parliamentary law.

When the report of the determination by Judge Forbes reached this colony, Mr., now Sir Alfred Stephen, brought the question before the court in a similar manner. He argued that it was the duty of the court to construe the act of parliament in a form the most favorable to the subject. On the other side it was maintained, that the colony was too small to furnish civil juries, and the parliament had superseded them.

The act itself which inst.i.tuted the military jury for the supreme court, and gave civil juries in civil cases, left the extension of the practice to the royal discretion alone.

Judge Pedder, in giving judgment, stated that according to the practice previously in the colonies no civil juries had been known, and the act of parliament which conferred trial by jury did not give a common one, but retained the military jury. On the whole he was of opinion that parliament had overruled common law, and taken away trial by jury, except as provided by the act, or extended by the king.

Thus, while Judge Pedder ruled that the petty juries were illegal, at New South Wales they were sitting under the sanction of the then superior authority. That the decision of our supreme court was a more correct interpretation of the intentions of parliament, is scarcely to be doubted; but the words of the act did not necessarily extinguish a common law right, and the intention of legislators is not law. The decision of Forbes was more agreeable to Englishmen, though scarcely compatible with the condition of the country.

The treatment of Mr. Gellibrand, the attorney-general, who was dismissed from his office by Arthur, for unprofessional conduct, excited great interest in the legal circles of Great Britain. The disagreement sprang chiefly from a trial, Laurie _v._ Griffiths, characteristic of the times. The plaintiff sued for damages for the illegal capture of a vessel of 12 tons, of which he was the owner and master. The vessel, called the _Fame_, was found by the brig _Glory_ in Twofold Bay.

Griffiths, the owner of the _Glory_, invited Laurie on board, and made him prisoner. He then boarded the _Fame_, deprived her of charts and compa.s.s, and amidst the shouts of his seamen fastened her to the tail of the _Glory_. In this condition she was carried triumphantly towards Launceston; but a storm arising, the _Glory_ enc.u.mbered by the _Fame_, cast her adrift, when she was exposed to great danger. The prize-master ran her on sh.o.r.e, and the party wrecked, after fourteen days journey through the woods, reached George Town. The justification pleaded was that the plaintiff had conveyed prisoners from Port Jackson, and was liable to forfeiture; that he had embarked in an unlawful voyage, and intended to visit Launceston to circulate forged paper. No proof of these a.s.sertions was offered, and the jury granted 460 damages; a verdict which the government found no occasion to disturb.

Mr. Gellibrand, upon the close of the action, was called to account for mal-practice. Mr. Dawes, an attorney, presented a statement to the governor, which was forwarded to Judge Pedder, who returned it as not within his province. Mr. Alfred Stephen, therefore, brought the complaint formally before the court, and moved that Gellibrand should be struck off the rolls. The main question was this: whether a barrister holding a general retainer could, without license, advise the opposite party, or whether he could draw pleas for both. It was maintained by Mr.

Stephen, that the practice was dishonorable and dangerous: in the early stages of a cause facts might become known to a barrister, which would make him a formidable antagonist to his former client. He a.s.serted that whether the practice were common in England or not, it was detestable; and if allowed, would compel him to relinquish the profession, "or seek an honorable pittance elsewhere."

In the case of Laurie _v._ Griffiths, Mr. Gellibrand had drawn the pleas for the plaintiff, and afterwards acted officially against him; he, however, transferred the fee he received to Mr. Stephen, when he was compelled to relinquish the cause. The profession, almost unanimously, a.s.serted that the custom of the English bar warranted the practice of Gellibrand. The judge stated that he was not concluded by the custom of the English bar, and that the court might treat as a contempt a practice tolerated at Westminster: he considered the custom pernicious, but dismissed the case, and left the governor to act for himself.

The appeal of Mr. Gellibrand to the profession perfectly vindicated his conduct. It was found that the first counsel in England often acted against a retaining client, and sometimes drew pleas on both sides.

Thus, in a question of a right of way, the same counsel drew the declaration, the plea, and the replication. However objectionable at first sight, where legal technicalities are so fatal to even a right cause, it would be no small hards.h.i.+p were an opulent person permitted to engross the legal talents of an island, and exclude his antagonist from the possibility of obtaining justice. The excitement occasioned by this dispute was of long continuance, and motives were freely imputed.

Although the chief justice dismissed the motion of Mr. Stephen, the governor determined to press the charge, and appointed a commission of enquiry. Additional matter was urged: it was said that Gellibrand advised a client to enter an action against a magistrate, whom his office might oblige him to defend, and that his intimacy with Mr.

Murray did not become his relations with the government. Mr. Sergeant, now Judge, Talfourd regretted that by quitting the commissioners appointed by the governor, he had damaged his case. The crown had a right to dismiss; but he was clearly of opinion that the proceeding of the local officers was the effect of either "malice or mistake." The charges of professional malversation he p.r.o.nounced too absurd for notice; that the practice was not only allowable but often imperative.

Mr. Stephen, on his pa.s.sage to this colony was involved in a quarrel, which ended in an a.s.sault. On his action he obtained 50 damages. His bill of costs, twice that amount, was published, to contrast with the professional scruples which inspired his opposition to Gellibrand. This bill consisted of one hundred and twelve items, among which the following: "to instructions for replication," "for brief," "retaining fee." Many other such payments of self to self, pa.s.sed the taxing of the master. After paying actual expenses, Mr. Stephen, however, handed the surplus to a chanty.

The master of the supreme court arrived in October, 1824. This gentleman was the brother of the late William Hone, a party writer of great celebrity, whose opinions in early life were extreme, both in reference to politics and religion. For publis.h.i.+ng parodies, which employed the language of the _Common Prayer_ as a vehicle of political complaint, he was tried by Lord Ellenborough. His fame was greatly increased by the pertinacity and skill of a successful defence. He afterwards wrote the _Day Book_, a work of ability and research; and in the last years of his life he embraced the faith, and died with the reputation of an ardent christian. Joseph Hone, Esq. succeeded Mr. Gellibrand. The uniform gentleness of his character has been respected by the press: he is mentioned only to be praised.

The arrival of General Darling was a time of festivity: he proclaimed the independence of the colony on New South Wales, December 3, 1825.

While present, he was ent.i.tled to govern; but when he set sail, Arthur, who had been addressed as "Your Honor," a.s.sumed the authority of governor-in-chief, and, responsible only to the home-office, became "His Excellency." The colonists were less delighted with the possession than the prospect of a chief governor; although the spirit of General Darling was not more favorable to the enlargement of their liberties.

The legislative and executive councils were appointed, consisting of officers of the government: among them, it is said, a relative of Spencer Perceval, the statesman. He had been nominated to an office in this colony, but he never arrived; his name is, however, second on our first list of legislators.

The division of the island into police districts, subject to a stipendiary magistrate (1827), brought the prisoner population under the more direct control of the government. It was a great improvement in the internal discipline of the colony. Gentlemen, themselves masters, were liable to the bias of a position full of vexation and disappointment, and less favorable to a cool and impartial administration of justice.

The executive revised their sentences, and thus reflected on their judgment. Nor were they willing always to spare the time required by a patient investigation, or to distinguish between a frivolous and a proper defence. Some curious examples of magisterial equity are often told: one rose from the bench, when he heard his waggon in the street, and delivered his sentence in his progress towards the door--"I can't stop: give him fifty." A cattle stealer owed his life to the same impatience of enquiry: before the charge was half investigated, the magistrate said, "give him fifty"--an easy compromise with the hangman.

A reverend gentleman met a party of men brought up for disobedience: he sent them back, with "ah, well, give them five-and-twenty all round." It was common to send a note with the man whom it was intended to punish: he was flogged, and sent back. A man, suspecting the contents of such a missive, gave it to his fellow-servant, who was flogged in spite of his protests. Another, who had been on a similar errand before, returned next day to his master, complaining bitterly of his suffering; but he had destroyed the note and eluded the triangles. Such eccentricities of justice could not last beyond the rudest era.

The site of the capital narrowly escaped a second change. The commissioner, Mr. Bigge, considered that the seat of government should be fixed nearer to the source of the river Derwent. Brighton was nominated the destined city, close to an extensive and fertile country, and within easy access to the interior. Arthur was instructed to determine this question. Its chief inducement was the removal of the prisoners from the temptation of the port; but property was already invested to a large amount. The merchants strongly opposed the transfer.

The division of the government from the chief population would have destroyed its moral influence. Arthur did not press the project, and during a conference with the merchants and other princ.i.p.al inhabitants, discussed the question with courtesy. On the whole, the measure was impolitic, and finally abandoned.

The uncertainty for some time obstructed the progress of the place.

Launceston was still more unfortunate. When York Town was abandoned as the chief settlement, Paterson removed his head-quarters to Launceston; but on the visit of Macquarie he determined to const.i.tute George Town the northern capital. The superior convenience of a spot at the head of the river to one forty miles distant, gave Launceston the mercantile preference. Macquarie maintained his project to the last; but the opinion of Mr. Bigge determined the dispute in favor of Launceston, and the head-quarters, in 1824, were removed finally from George Town.

A fatality has seemed to attend the selection of chief towns.h.i.+ps in the colonies. Sydney is a second choice, Hobart Town a second, Launceston a third, Melbourne a second. New Zealand has experienced the same vexation and losses which proper surveys might easily avoid. The general government can have no sinister interest in these changes, but those who foresee and promote them may largely gain.

The princ.i.p.al objection to Launceston was the navigation of the river, which was dreaded by vessels of tonnage; but its reputation was worse than its dangers. Lighters, and even rafts, were employed to discharge s.h.i.+ps which would now approach the wharves. The _Aguilar_, Captain Watson, spent several months at George Town, and charged the detention on the river. This was resented by Arthur, who stated that the master had dispatched the mate and seamen on a sealing voyage, and loitered for the purpose of traffic; and sought to excuse the delay by defaming the port.[146]

FOOTNOTES:

[Footnote 141: _Barnwell and Cresswell's Reports._]

[Footnote 142: An obscure publication appeared at Jamaica in 1824, designated a _Defence of the Settlers of Honduras_: a work intended to refute the imputations on which his anti-slavery policy had been justified. Whether the book itself really existed, or the pa.s.sages professedly extracted from it deserve any credit, is questionable: the authority being an opposition paper.]

[Footnote 143: Colonel Arthur's letter to Lord Bathurst, 1820.]

[Footnote 144: The disorders of this period will be found described in vol. ii, of this History.]

[Footnote 145: _Appeal to the British Nation._ By R. L. Murray, Esq.: London, 2nd edit.]

SECTION II.

The newspapers of this hemisphere were long mere vehicles of government intelligence, or expressions of the views and feelings of the ruling powers. A censors.h.i.+p established from the first issue, was rigorously exercised, and the founder of the Australian press spoke of its vexations to the end of his life, with horror and tears.

This was George Howe, a Creole of St. Christopher. He arrived in New South Wales in 1800: with the sanction of Governor King, he obtained material from Great Britain, and sent forth the first-born of the Australian press, named the _Sydney Gazette, and New South Wales Advertiser_, on the 5th March, 1803. The conduct of a periodical was a work of toil and anxiety: the default of material, the paucity of local intelligence, the vices of the prisoner workmen, and the jealousy of the authorities, severely tried the industry and patience of the intrepid printer. He continued his toil until his death, having kindled the unextinguishable torch of a free press, and taken his rank with the benefactors of mankind.