The History of Tasmania Volume I Part 14

Clergymen of such names emigrated about the time, and rumour could easily supply the rest.

When the const.i.tutional act approached its term, the colonists determined to seek not only for trial by jury, but a voice in the legislature. A pet.i.tion adopted by a meeting held in 1827, was confided to a deputation, who were instructed to forward it through Arthur, and to entreat his concurrence with its prayer. A time was fixed to receive them; but when at the government-house, they were met by a blundering message, postponing the interview for one hour. Deeming themselves and their const.i.tuents slighted, they declined a second attendance. Arthur published a vindication of himself: he stated that business of great importance with Mr. Curr, prevented his examination of the doc.u.ments; he had requested the delay only to prepare himself for the audience, and regretted that the colony were deprived of his friendly offices by an unreasonable caprice. This paper fell into the hands of the deputation a few hours after the vessel had sailed with despatches for the secretary of state. They considered this a manoeuvre, contrived to stifle their defence; and instantly dispatched a fast sailing boat to pursue the s.h.i.+p with an exculpatory letter.

By a circular of Lord Bathurst,[153] still in force, it was announced to the colonists that their complaints must pa.s.s through the governor's hands to the home-office. Duplicates without new matter might be forwarded by other channels; but an answer could only be expected on the arrival of the governor's report.

The violation of this rule the deputation imputed to the necessity of the case; to counteract an attempt of the governor to evade its spirit.

Their prompt.i.tude was unavailing: for his share in the transaction, the name of Mr. Gellibrand was expunged from the list of magistrates, by Lord G.o.derich's orders.

The hostility of Arthur to the pet.i.tion was well understood, and there were many others who did not sympathise with its object. Sir John Owen presented it to the Commons without a word. The ministers expressed their desire to grant free inst.i.tutions, so soon as the colony was ripe to enjoy them, when Mr. A. Baring (Lord Ashburton) remarked that colonies are never ripe for free inst.i.tutions until they get them.

Mr. Marshall, the s.h.i.+pping agent, attempted to form an a.s.sociation in London (1828), for the protection of these colonies. All persons, commercially or otherwise interested, were eligible for members.h.i.+p. A correspondence was projected with the leading colonists, and it was a.s.sumed the British government would readily attend to representations emanating from such a source. The scheme did not obtain the support it merited, and the scattered colonial interests could never be combined for a joint action. The partizans of Arthur ridiculed the plan, and it came to nothing.

The const.i.tutional act, which became law, July 25, 1828, to terminate 1836, but extended until now, differs in many of its provisions from the last. The governor is president, and has a deliberative and casting vote. The council is increased from five or seven to ten or fifteen; the oath of secresy is abolished; drafts of acts are _gazetted_; a law cannot be made by the crown or the governor alone; two-thirds of the council must be present; although previous duties are confirmed, no new tax can be imposed except for local purposes expressed in the bill; ordinances must be conformable to English laws; all statutes in operation at the date of the act were applied to the colony, all others may be adopted. A member may draft a bill, which the governor must lay, _verbatim_, on the council table, with his reasons for refusing to propose it. A member may record his protest, and a majority is necessary to pa.s.s a measure. The members are appointed by the crown, and vacancies are filled up by the governor: they must be resident; _ex-officio_ they are magistrates. The preliminary certificate of the chief justice, required by the former act, is subst.i.tuted by another clause, which compels the council to reconsider a bill declared by the judge repugnant to the laws of England, or the act const.i.tuting the council.

The British legislature, in criminal cases, establishes a military jury alone: challenge is allowed for direct interests, and magistrates may act in default of commissioned officers; but in civil actions a.s.sessors are continued. But the local council is authorised to inst.i.tute trial by jury, under such limitations as may be deemed meet. It is under this act of parliament that the colony has seen the jury-box delivered up to civilians; but awaits the hour which the law itself foretells, when in recognising the ancient principle of representation it records the purpose of resuming it, "so soon as the cause shall cease to operate which had forbidden its immediate observance."[154]

In transmitting this bill, Sir George Murray explained that by the clause which superseded the veto of the chief justice, it was intended to avoid a collision of opinion between the high functionaries of government. Nothing, however, but the most urgent necessity would justify the governor in setting aside his opinion.[155]

FOOTNOTES:

[Footnote 149: April, 1826.]

[Footnote 150: _Letter from a Lady_ (Mrs. Adey), inserted in the _Morning Herald_, 1827.]

[Footnote 151: _Mudie's Felonry of New South Wales_, p. 52.]

[Footnote 152: Dr. Wardell was murdered some years after by bushrangers.]

[Footnote 153: May 20th, 1826.]

SECTION V.

Under the former act, the attorney general could refuse to file a bill, and exercised this discretion in a case of libel. The new law authorised the court to permit an information to be exhibited by any person, and the attorney general was bound to indict, except in felony or capital prosecutions. Mr. Jennings, a solicitor, claimed the interference of the court against the attorney general, Mr. Montagu. Savery, who was transported for forgery, was sued for a debt; but Mr. Montagu, who had been a pa.s.senger with the debtor's wife, and felt interested in his welfare, stayed proceedings by verbal guarantee. When Jennings attempted to enforce the agreement, Montagu replied that he was more to be affected by the sun than the wind; and added, "I know how to defend myself against a person ten times more able or wicked than yourself."

The judge decided that the attorney general was not bound to sign a bill of indictment against, or to prosecute himself.

The indemnity due on a returned bill of exchange was decided by the court (1826), on a friendly suit, Cartwright _v._ Mulgrave, at the expense of the merchants. It was deemed proper to give a high compensation, both to solace for disappointment, and discourage a careless issue of bills. The plaintiff paid 112 currency for 100 sterling, calculating that 120 currency would be required in London for the 100 sterling. The a.s.sessors fixed 25 per cent. to cover all losses, and the sum has been allowed by the supreme court on all similar cases to this day.

Captain Dillon, of the _Research_, East India Company's s.h.i.+p, the discoverer of the relics of La Perouse, visited Hobart Town. He was prosecuted for a.s.sault and false imprisonment by Dr. Tytler, a gentleman commissioned by the Asiatic Society to conduct the scientific enquiries the voyage might favor. He was seized, confined to his cabin, threatened with the lash, and guarded by New Zealand savages, among whom were two, called by Dillon Prince Brian Boru, and his Excellency Morgan M'Murrah, who espoused the quarrel of the captain, and offered to grill and eat the unfortunate physician. The jealousy and violence of Dillon strongly indicated insanity, and Dr. Tytler represented his fears to the second in command. This opinion became known to the captain, and led to the a.s.sault and imprisonment, from which the doctor was released by a writ of _habeas corpus_. The chief justice, in p.r.o.nouncing judgment, explained the absolute power and stringent responsibility of a captain in the management of his company, and sentenced Dillon to fine and imprisonment: the latter was remitted, in consideration of his enterprise.

The public treasury was robbed of 1,400 (1827). The thieves entered at night, while the sentinel was on guard, and the rifled chest was found hidden under a tomb in the adjacent burial ground. Three persons, and the sentinel, were tried for the offence; but on the second day, the crown prosecutor was not in his place. This truant lawyer was enjoying a breakfast, while the court and prisoners were watching the door of entrance. The patience of the judge gave way, and he directed a verdict of "not guilty" to be entered. The crown relieved the treasurer from his responsibility for the loss.

The case of Isaac (Ikey) Solomon, a noted receiver, occasioned a long discussion of great colonial interest. This man having been committed for trial, escaped from Newgate; but his wife, implicated in the same transaction, was transported. A short time after, he appeared in Van Diemen's Land, under the name of Sloman, and applied for his wife as an a.s.signed servant: to this the governor consented, but transmitted to England an account of his presence. Towards the close of 1829, a letter, enclosing an affidavit of Mr. Wontner, the governor of Newgate, was addressed by the secretary of state to the governor, directing the arrest of the fugitive. A consultation was held at the secretary's office, to which Mr. Gellibrand was invited, who declared that the instruments forwarded were insufficient. A warrant, however, was issued for Solomon's capture, and he was lodged in gaol. On the application of Mr. Gellibrand, the supreme court granted a writ of _habeas corpus_, and the question arose whether a colonial secretary had power to act under instructions from the secretary of state, and without examination transmit a person, on a presumption of guilt, over half the globe. The judge admitted that the boasted liberty of the subject would be a delusion, were such powers vested in the local authorities. After a lengthened research and repeated hearing, he was unable to find a precedent, or to solve the difficulty of a case so new.

Mr. Montagu, the attorney-general, maintained that the writ had been improperly granted; that on the face of the warrant there was no illegality. The chief justice, however, was dissatisfied, and desired proof that the secretary of state could grant a warrant without sworn testimony in cases of felony, and that Mr. Burnett, the colonial secretary, possessed the same powers. Mr. Montagu, who had recently suffered ill health, refused to argue the question; and to the complaint of the bench replied with asperity. The chief justice still urged that he had received no a.s.sistance on the part of the crown. Montagu rejoined, that speaking not as attorney general, but as an advocate, he repelled such a.s.sertions. "I will not," said he, "allow your honor, or any man in Christendom, to dare to make such observations without repelling them." The caution of the chief justice was extremely gratifying to the colony. The arrest went to the foundation of personal freedom, and a.s.sumed a power capable of great error and perversion.

In this case there was no danger of mistake; and the governor, having no doubt of the prisoner's guilt, determined he should not escape: Mr.

Capon, the chief constable, cut the knot by putting Solomon on board a vessel, and conveying him to England. The adventure was barely successful; Solomon was acquitted on the greater part of the indictments. The legal claim of parties to the plunder found on his premises could not be established, except by his conviction.

On a trial of Salmon and Browne, for a murder at Macquarie Harbour (1829), a military jury exhibited that inst.i.tution in no pleasing form.

They disagreed on their verdict. Lieutenant Matheson conceiving that the facts did not sustain the indictment, declined to convict. His co-jurors were unanimous; and after three days and nights resistance he submitted.

On the Sat.u.r.day evening the men were sentenced, and executed on the Monday following. Their confession left no doubt of their guilt: they had committed murder that they might escape from misery; but they a.s.serted that the princ.i.p.al was Browne, and the accessory Salmon--the reverse of the indictment. During their long consultation the jurors were allowed refreshment; but on the Friday evening several resolved to elope: at a late hour they broke past the astonished constables, and returned to their homes. They were, however, recalled by the sheriff, and kept under stricter watch until the trial ended.

Amus.e.m.e.nts of the turf, officially patronised in other countries, were discouraged in this. From an early date, occasional matches were made for large stakes; but in 1827, races were regularly established at Ross.

The course was lined off, a stand erected, in which about fifty well dressed persons were spectators. The riders were equipped in different colored clothing, and as they darted along, obscured at intervals by foliage, the scene was picturesque and animated. A race was contested by Messrs. Gregson and Hardwicke, which the latter lost. A public dinner followed; but the waiter was blindfolded, and his pudding stolen as he entered the tent. The hats and coats disappeared; and one cavalier was robbed of his boots. "These things," said the reporter, "are fraught with discomfort, and disgraceful in themselves:" an opinion which time has not shaken.

Arthur probably had no great taste for such pleasures; but he ascribed his unwillingness to support them, to their tendency to excite the prisoner population, and seduce them into disobedience and crime. No regulations or punishments could hinder their haunting the tents, or deter them from intemperance and consequent miseries.

Happily dissention disappeared in the presence of distress. Arthur's name is on the list of subscription for the family of Captain Laughton, who having lost his property by s.h.i.+pwreck and fraud, was drowned on the coast. Governor Arthur gave twenty guineas, and thus fixed the high scale of colonial benevolence, which no vicissitude of public affairs has abated.

The largest private subscriber was Captain Carne, of the _c.u.mberland_; not less unfortunate than Laughton. When no tidings were heard of the vessel, it was supposed she had foundered; but in the year 1828, Captain Duthie, of the _Bengal Merchant_, threw light on her fate. He had found the _Clarinda_, Captain Crew, at Rio, who had been boarded in lat. 8 S.

The pirates chained him to the deck while they robbed the vessel: he saw a bucket, on which he could trace the word _c.u.mberland_. Some of the pirates proposed that Crew should walk the plank, but were resisted by the Captain. A little black boy, s.h.i.+pped by the _Clarinda_ at the Cape de Verde Island, remembered the pirate vessel as often seen in that port.

In what form the _c.u.mberland_ perished is not certainly known. Pirates executed in England for other crimes, were supposed to be guilty of this: more than a hundred and fifty persons perished by their violence.

Some they cut down, and others they cast overboard. They were driven to the port of Cadiz by a storm, and attempting to negociate a bill they were detected. A s.h.i.+p of war conveyed them to Gibraltar, where several suffered; others were forwarded to England, and condemned there. The story of the capture was long a standing topic in the unarmed merchantmen that pa.s.sed her track. As the emigrant, even now, approaches the supposed lat.i.tude, he hears with bated breath the fate of the _c.u.mberland_, whenever a strange sail darkens the horizon.

FOOTNOTES:

[Footnote 154: _Report of the Lords of the Council_, May, 1849.]

[Footnote 155: Despatch, 1828.]

SECTION VI.

Attempts were made in the county of Cornwall to form a collegiate inst.i.tution, for the education of youth and the advancement of science (1826). It was proposed to erect buildings, to govern the college by a directory of patrons, and to establish a public library and lecture room. For these purposes a fund was contributed: twenty-four persons subscribed 50 each on the spot. A commencement was made at Norfolk Plains; but the project failed, and sunk into a private academy.

In 1828, the government determined to establish a school at New Norfolk, called the "King's Grammar School." The members of the government were the board of guardians: the master was in holy orders. This effort was also frustrated. Such attempts were not, however, lost: they were in reality, not only the pledges but the causes of final success.

But the establishment of the King's Orphan School (1828) was successful.

It was chiefly designed for the numerous children whose parents were unable to support them, who had deserted, or who were dead. It was placed under the guidance of a committee, and afforded protection to many children who must have sunk under the influence of a vicious example. In this island the fatherless have found mercy. In the absence of natural ties, the settlers have often displayed a parental tenderness in educating the children of the outcast and the stranger.

The public inst.i.tutions which multiplied at this period, tended to mitigate the spirit of party. In 1826, several master tradesmen met to project a mechanics' inst.i.tute. In 1827, they called a meeting of the inhabitants, who having chosen Mr. Gellibrand their chairman, organised the inst.i.tution: the governor was invited to be patron, the chief justice was chosen president, and Mr. James Wood appointed secretary.

Dr. James Ross, called the "Birkbeck of Tasmania," delivered the first lecture (July 17), on the science of mechanics. The second, on astronomy, by Mr. Gellibrand, senior: Mr. Hackett, on steam engines; Mr.

Giblin, senior, on astronomy; and Dr. Turnbull, on chemistry, completed the course. Mr. James Thomson gave lessons in geometry to a youthful cla.s.s. These efforts languished during the absence of the secretary in Great Britain; but in September, 1829, the former lecturers reappeared: contributions were increased, and a library and apparatus were obtained from England. In 1830, two hundred members were enrolled, and the inst.i.tution was promoted by all cla.s.ses of society.

Among its supporters, Dr. James Ross occupied the first place: a man whose name will be ever mentioned with respect. His political career does not receive or deserve unqualified praise: as a partizan of Arthur, he sometimes sanctioned by his pen what it is difficult to vindicate; but he contributed to the intellectual advancement and external reputation of the colony, beyond any person of his day. Dr. Ross was the son of a Scotch advocate: educated at Aberdeen University, and some time employed as a planter in Grenada, where he became an advocate of negro freedom. He afterwards established a school at Sevenoaks, Kent; but his family kept pace with his fortunes. He determined to emigrate, and arrived in Van Diemen's Land in 1822. Some error in the s.h.i.+pment of his goods, upon the schedule of which he claimed 2,560 acres, deprived him of one-half. He chose his location on the Shannon, and called his cottage the "Hermitage." Here he was vexed with the incursions of cattle, the perfidy of his servants, the dread of bushrangers, and the visits of the blacks; and he willingly accepted the office of government printer, which Mr. Bent had lost. The _Courier_, his newspaper, patronised by the governor, obtained a large circulation, and in 1830 published 750 copies. He wrote with great facility and copiousness. In a letter to a friend, he said--"I write my articles, engrave my vignettes, set the types, adjust the press. Sometimes I set up a few lines myself, and dictate at the same time to one or two of my compositors. Sometimes I write three lines of a sentence for one, three lines of a sentence for another. I teach my own children, nine in all, at the same time that I write paragraphs."[156]

A genial spirit, except when troubled by political anger, usually sparkles in the writings of Dr. Ross, and in such case they are rather unfair than bitter. Wherever Arthur disliked, Ross opposed. He denounced the emigration of the poor, and Archbishop Whately charged him with baseness, in supporting the penal system of transportation; but no colonist would question his sincerity. Dr. Ross retired from his literary labors in 1837, and not long after closed his earthly toils. In his last address to the public, he said, "independence of spirit has been my motto; freedom my watchword; the happiness of my fellow-men my object; and the truth of our religion my buckler and consolation." Such was his account of himself; and may be left as his merited eulogium to posterity.

A hand-bill, published during the heat of a political quarrel, from the head-quarters of his foes, is a curious specimen of party spleen, and may be taken as the set-off to his own:--"Here lieth the body of James Ross, printer: formerly a negro driver: who spent the remainder of his days in advocating the cause of torture, triangles, and the gallows."

Then follow couplets, among which are these:--