FOOTNOTES:

FOOTNOTES:[141]Barnwell and Cresswell's Reports.[142]An obscure publication appeared at Jamaica in 1824, designated aDefence 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 passages professedly extracted from it deserve any credit, is questionable: the authority being an opposition paper.[143]Colonel Arthur's letter to Lord Bathurst, 1820.[144]The disorders of this period will be found described in vol. ii, of this History.[145]Appeal to the British Nation.By R. L. Murray, Esq.: London, 2nd edit.

[141]Barnwell and Cresswell's Reports.

[142]An obscure publication appeared at Jamaica in 1824, designated aDefence 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 passages professedly extracted from it deserve any credit, is questionable: the authority being an opposition paper.

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

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

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

The newspapers of this hemisphere were long mere vehicles of government intelligence, or expressions of the views and feelings of the ruling powers. A censorship established fromthe 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 theSydney 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.

Sir Thomas Brisbane at first relaxed, and then removed restrictions from the press. In 1823, he permitted the discussion of colonial affairs, and in the month of October, 1824, the colonial secretary informed Mr. Howe that he ceased to be amenable, except to the courts of law.

Malice or humour, in the early days, expressed itself in what were calledpipes—a ditty, either taught by repetition or circulated on scraps of paper: the offences of official men were thus hitched into rhyme. Thesepipeswere a substitute for the newspaper, and the fear of satire checked the haughtiness of power.

TheHobart Town Gazette,[147]established by Andrew Bent, the first permanent newspaper, was under the immediate patronage and control of the government, and Mr. Emmett was the first official editor. The articles were brief, mild, and complimentary: they represented the views of the ruler; perhaps, at that time, also of the people.

On the arrival of Colonel Arthur, Mr. Bent determined to throw off official supervision, and claimed a property in the title of theGazette. The partnership between him and the government was not very distinct. Money had been lent for the purchase of material, but this he was expected to repay. His right to the property, questioned by Arthur, was allowed on reference to the governor-in-chief. The editorof Mr. Bent's choice was Evan Henry Thomas, Esq. In June, 1824, appeared the first article of the press thus set free; and, as the first, is worthy lasting remembrance. "We esteem ourselves," observed the writer, "aBEACON, placed by divine graciousness on the awfully perilous coast of human frailty." "We view ourselves as aSENTINEL, bound by allegiance to our country, our sovereign, and our God. We contemplate ourselves as theWINNOWERSfor the public." He then proceeds—"We desire to encourage the cloudless flames of rectified communion," rejecting "each effusion, however splendid, of degenerate curiosity and perverted genius—of misanthrophic ascerbity and calumnious retrospection." Such were the vows and resolutions of the father of journalists. He added, "the duties of our typo-graphic province are performed by the proprietor and one assistant." Having offered his columns for discussion, a writer of considerable colonial fame, R. L. Murray, appeared under the signature of "A Colonist." His letters addressed to Arthur, reviewed his government contrasted with that of his predecessor: they were said to approach the style of Junius; read in modern times, they may have lost much of their spirit. They were, however, offensive to Arthur, and he resolved to start anotherGazette, which should put down opposition.

As the quarrel warmed, Bent grew more daring, and the firstex-officioprosecution was instituted against him. Rather by implication than directly, the lieutenant-governor was charged with attempting to deprive Bent of his property; the fraud being defeated only by the superior justice of Governor Brisbane. In another paragraph the writer stated theextra martial incarcerationof Colonel Bradley, taught the colonists what might be expected from Arthur's anger. In one of these libels, Bent declared that he would not surrender his rights to a "Gibeonite of tyranny." The attorney-general ingeniously explained, that though Gibeon was a good man, that did not qualify the inuendo. Fox was a friend of freedom, but such was not the Foxite of tyranny. In truth, the whole discussion is painful to a friend of liberty and justice. It is difficult to imagine a less dangerous opposition than such compositions, or to account for their prosecution, except as an outbreak of offended pride.

In 1825, George Terry Howe had established theTasmanianat Launceston; but the offers of the government drew him to head-quarters, and, in concert with Dr. Ross,he became the printer of theGovernment Gazette. In this official publication there were articles of news and politics; but in 1827, theCourierbeing established, theGazetteissued as a separate publication. Mr. Bent complained bitterly of the piracy of his title: he, however, soon yielded, and changed the designation of his paper to theColonial Times, August, 1825. TheTasmanian, of Hobart Town, soon followed, and discussed the various political questions with moderation and ability.

Arthur resolved to put down the liberty of the press. It had, indeed, been asserted that this measure was dictated by Lord Bathurst; but the manner in which it was defended by Arthur, identifies his memory with the scheme. An act was passed, at the close of 1827, which laid the colonial press at his feet. This ordinance appointed a license, subject to the will of the governor, and made the continuance of a paper dependent on his pleasure: authorised a tax of threepence each, and took securities for penalties. Bent was refused a license, and even his right to publish an advertising sheet was disputed. He therefore published monthly, from the 1st March, 1828, theColonial Advocate; a work of considerable merit, and containing much valuable information. It was, however, 5s. a number, and not adapted to colonial circulation. TheAustral-asiatic Review, by Murray, also made its appearance in February, 1828; and although the publishers of these productions were injured by the law, the governor was not the gainer.

It was not to be expected that the colony would quietly submit. An address, signed by Meredith and several other magistrates, animadverted on the measure with just severity. They declared that the restrictions imposed were needless, unconstitutional, and debasing: that they were an insult to the colony; contrary to the implied engagements of the crown, when emigration was invited. The reply of Arthur asserted, that so long as this was a place for the reception of convicts, the press could not be free: that it was dangerous to authority, and calculated to destroy the security of domestic life. Some opinions expressed by the remonstrants, he pronounced presumptuous and unjust. In the controversy, the people were successful, as they were nearly unanimous. The law was disallowed by Lord Sir G. Murray, and the press set free. However offensive the remarks of these writers, to describe their suppression as a measure of police, was both disingenuous and absurd.

Alarmed by the threats of prosecution, the author of the"Gibeonite libel" presented an apology in the following supplicating terms:—"We avow our readiness to preserve inviolate the best and most endeared interests of this community; and we trust that, before misanthropy again can rally his vituperative legions to assault us, we may re-evince toallhow staunch is our allegiance, and how sullyless our zeal at the post of probity!" The unfortunate printer could not soften his prosecutor, and was cast in damages and expenses amounting to £500.

In 1829, Launceston was favored with two newspapers: theAdvertiser, and theCornwall Press. Both started together, and both manifesting the spirit of rivals. TheAdvertiserwas the property of Mr. John Fawkner. Its opponent belonged to Mr. S. Dowsett, and reached the nineteenth number. The following are memorials of their fraternal sympathies. TheCornwall Pressdescribes his rival as "an addle-pated upstart—a superannuated Zany." His writings "as the frothings of a beer cask." "Condescending to notice 5 feet 2¼," he remarks, "we dropped from our proper elevation." What that might be, it is not difficult to conjecture, if the rejoinder is to be credited:—"if he had his right place, he would be wearing a leather apron and scouring pewter pots." Such were the literary love tokens of those days. It will be seen, that the quarrel of Arthur with the press, was continued to the end of his administration.

FOOTNOTES:[146]Gazette, November, 1824.[147]"We are indebted to the Italians for the idea of newspaper. The title of theirgazettaswas, perhaps, derived fromgazzera, a magpie or chatterer; or, more probably, from a farthing coin peculiar to the city of Venice, calledgazetta, which was the common price of newspapers."—D'Israeli's Curiosities of Literature, p. 53.

[146]Gazette, November, 1824.

[147]"We are indebted to the Italians for the idea of newspaper. The title of theirgazettaswas, perhaps, derived fromgazzera, a magpie or chatterer; or, more probably, from a farthing coin peculiar to the city of Venice, calledgazetta, which was the common price of newspapers."—D'Israeli's Curiosities of Literature, p. 53.

Captain Dixon, commander of theSkelton, came to Van Diemen's Land in 1820. On his return to England, he published a small volume on the capabilities of the country. He suggested the formation of a pastoral company, with a capital divided into £100 shares, as a profitable scheme. Causes foreign to this enquiry reduced the marketable value of money, and awakened a speculative spirit in Great Britain: projects of every kind found favour—a madness fraught with insolvency, fraud, and ruin. But in the meantime the Van Diemen's Land Company had been formed. Men of opulence and prudence, when compared with common projectors, were concerned in its origin. They proceededwith caution, and postponed the issue of their share list until their plans were laid. Nor did they promise a dividend, but as the result of a considerable outlay, and at a distant date. Yet they drew a brilliant picture of this colony, and delineated in vivid language the riches of its soil, its relative position, and its future destinies. "Such advantages," said they, "could not long escape the penetration of the British public." It was, among their objects, to relieve Great Britain from dependence on foreign wool; to improve the quality of the Australian flocks: this object they have contributed to accomplish.

They applied to Lord Bathurst for 500,000 acres of land. By his countenance they obtained an act of parliament, under which the charter of their incorporation, on the 9th November, 1825, passed the great seal. By this charter they were authorised to employ their capital in cultivation and sheep farming; to lend money on mortgage and to persons engaged in fisheries; to undertake public works on security of tolls: but they were debarred from banking and commerce.

Lord Bathurst consulted Colonel Sorell: he was favorable to the company; but forwarned them that no large blocks of fertile land remained unlocated. The company received a grant of 250,000 acres, to be taken on the north-west coast in one square block; bounded by Bass's Strait on the north; on the westward by the ocean; and by a line drawn from shore to shore. After some debate, this land was valued to the company at two shillings and sixpence per acre, and the whole quit-rent charged, was "four hundred and sixty-eight pounds, sixteen shillings:" redeemable at twenty years purchase—£9,575. In the measurement, one-fourth allowed for useless land. The employment of convicts entitled the company to remission of quit-rent; £16 annually each man.

Mr. Edward Curr, at first the secretary of the company, became their agent. Having some time resided in Van Diemen's Land, he had returned to England, where he published a book on the state of the country, remarkable for its clear narrative and sober delineation. The first ship dispatched by the company was theTramnere(1826), followed by theCaroline. Some time was lost in selecting the settlement, and Circular Head was chosen. On a closer inspection, the district was not found encouraging. Near the shore the country is heavily timbered, and the high lands towards the westward were found barren and cold. Mr. Curr wasanxious to bring his line as far possible towards the sun; but the governor held him to the literal agreement, under an impression that the grant was already improvident and excessive. The whole scheme was distasteful to Arthur: a powerful company having interests of its own, whose head-quarters were in London, might have been a counterpoise to his influence, had it not been pushed to the extremity of an inaccessible country. By the oversight or complaisance of Lord Bathurst, the rule which made the outlay of capital the condition of a grant, was not inserted in the covenant. The public works promised by the proprietors were never undertaken, and their establishment was but a larger farm than common. They ultimately obtained several blocks of land, which gave them command of an intervening country of 150,000 acres, at Woolnorth; 20,000 at Circular Head, 10,000 at the Hampshire Hills, 10,000 at the Middlesex Plains, 150,000 at the Surrey Hills, and 10,000 at the islands on the coast. The total actual cost, including survey, was 1s. 6d. per acre.

The operations of the company were conducted on a liberal scale: artizans were sent out. The proprietors were promised a remission of £16 for men, and £20 for women, on the quit-rent. This was the first encouragement of free emigration to this quarter of the world. A road was opened with Launceston, chiefly useful to absconders. The importation of sheep and horses of great value, was beneficial to the country. The sheep of the company cost £30,000 (1830), when they exported wool to the value of £2,000. The servants of the company left them on the expiration of their engagements: many before. The reports of the proprietors eulogised the management of Mr. Curr, and affirmed that the moral influence he had acquired rendered his government easy and his people contented. They asserted that ardent spirits were excluded: there were no police or prison, and none required. These statements varied from fact. The company provided no religious teaching for its people; and Mr. Curr, a Roman catholic, could not be expected to promote heretical creeds.

The losses sustained by the company were great: the cold destroyed the stock, and their crops often perished from moisture. On the Hampshire Hills many hundred lambs died in a night. Sometimes the season never afforded a chance to use the sickle: in the morning the crop was laden with hoar frost, at noon it was drenched with the thaw, and in the evening covered with dews; and thus rotted on theground. The agent, however, did not despair, and the company anticipated a dividend in 1834, at the latest!

The company provided a numerous staff; beside the agent, were a commissioner, an agriculturist, an architect, and surveyors. Its local affairs were confided to a council of three, Curr being the chairman; but the divided sovereignty was impracticable, and the "Potentate of the North," as he was sometimes called, soon reigned alone.

Servants engaged in Great Britain at low wages, on their arrival often escaped from the farms, and exposed the agent to great vexation. Sometimes they were pursued, and brought back by force: it was at last agreed to cancel their indentures, on repayment of the cost of their passage. In 1834, the population on the estate amounted to about 400 persons, of whom more than 200 were prisoners of the crown.

The New South Wales and Van Diemen's Land Establishment, formed at the same time, received a grant of 40,000 acres. They engaged to improve the stock of Van Diemen's Land, and introduced valuable horses. Colonel Latour was a leading partner; Captain Thomas, speared by the blacks in 1831, was superintendent of the company's affairs, which however were unprofitable for many years.

To these establishments the colony is indebted chiefly for the introduction of valuable stock. In this they were rivalled by private settlers. Bulls, of the Fifeshire breed, were imported by Mr. Patrick Wood; of Normandy, by Captain Watson. Saxon sheep were imported by Messrs. Gilles; from the flock of the Marquis of Londonderry, by Mr. R. Harrison; by Mr. Anstey, from the flock of Sir Thomas Seabright; by Mr. R. Willis, from that of Mr. Henty, of Arundel. Many others might be mentioned, but these were in advance of the public companies; and by 1830, little could be added to the varieties of the fold or the stall.

Among those employed in the Van Diemen's Land Company's service was Jorgen Jorgenson, whose adventurous life made him remarkable even among vagabonds. He was born at Copenhagen, 1780. After some employment in the coal trade, he accompanied the expedition of Flinders; and afterwards, as mate on board theLady Nelson, attended the first party to Risdon. Having returned to Europe, and become commander of a privateer in the service of his country, he was captured after a smart resistance by the British shipsSapphoandClio.

He obtained, while out on his parole, the merchant shipMargaret and Anne, to carry provisions to Iceland, where the people were suffering extreme privation. On a second voyage the governor, Count Tramp, prohibited the intercourse: Jorgenson landed while the people were at church, and aided by his seamen took the governor prisoner. He then, with extraordinary impudence, issued a proclamation stating that he had been called by an oppressed people to assume the reins of government. He proceeded to reform its various departments: he lightened the taxes, augmented the pay of the clergy, improved the system of education, established trial by jury, formed an army consisting of eight soldiers, and fortified the harbour with six guns. Having performed these exploits, he returned to London in a prize taken from the island. His proceedings were already known to the ministry, and he was arrested as an alien at large. Jorgenson made no small stir by his appearance among legislators and conquerors. After a variety of adventures, in which he was often on the borders of crime, he pawned the linen taken from his lodging, and was sentenced to transportation. In Newgate he was employed as a dispenser of medicine. After four years detention he was released; but was retaken, having neglected to quit Great Britain, and transported for life. Such is the account he gave of his imprisonment. The penalty might have been commuted; but he undertook to write on various subjects, and created some trouble; he was therefore forwarded to this colony. Here he was chiefly employed as a constable; detected many crimes, and brought several to the scaffold. A woman, who had assisted him in discovering certain offenders, became his wife; and he was often seen fleeing from her fury through the streets. He, however, survived her, and at length closed his singular career in the colonial hospital.

Jorgenson made great pretensions to literature. He wrote a treatise on religion, and another on the treaty of Tilsit: in this country he published a pamphlet on the funded system, and a narrative of his life by himself. With a knowledge of the writer, it is amusing to read the grave strictures of the London critics, who complained that he bounded with amazing rapidity from one subject to another, without leaving a trace of his track: now among the stars—then on a steam engine chasing infidelity—or pelting atheism with meteoric stones.[148]

FOOTNOTES:[148]Of the fitness of Jorgenson to discuss theological questions, the reader may judge from the following passage taken from his preface:—"No religion on earth, except the Christian, establishes the link of the chain which must necessarily exist between the creator and intelligent creature. After consulting history, chronology, the laws of mechanism and the laws of nature, as unfolded by observation and experience, he discovered that events must have happened nearly at the time mentioned, and precisely after the manner described. At length his mind was satisfied, that God had made our yoke easy and our burden light."—Religion of Christ the Religion of Nature.Written in the condemned cells of Newgate, by Jorgen Jorgenson, late governor of Iceland. Capes, London, 1827.

[148]Of the fitness of Jorgenson to discuss theological questions, the reader may judge from the following passage taken from his preface:—"No religion on earth, except the Christian, establishes the link of the chain which must necessarily exist between the creator and intelligent creature. After consulting history, chronology, the laws of mechanism and the laws of nature, as unfolded by observation and experience, he discovered that events must have happened nearly at the time mentioned, and precisely after the manner described. At length his mind was satisfied, that God had made our yoke easy and our burden light."—Religion of Christ the Religion of Nature.Written in the condemned cells of Newgate, by Jorgen Jorgenson, late governor of Iceland. Capes, London, 1827.

The retirement of Lord Bathurst, and accession of Lord Goderich, gave some hope of a change in the form, if not the agents of government. The colonist expected much from the improved tone of the English executive; but, except the rescue of the press, the sole effect was a reduction of British expenditure for the civil government, and in 1827 its total cessation.

Mr. Hood, a surgeon on half-pay, had offended Arthur by a letter: aGazetteannouncement informed him that he was placed under a ban;[149]and his name recorded, to prevent his participating in the "favors or indulgencies of the local government"—a help to official remembrance, which rulers seldom require. Thus official and opposition parties were organised: as the distinction became more marked, a social gloom overspread the capital. Whispers were heard with jealousy. The mercantile class, who alone could defy the government, and who were excluded from the "court circles," headed the opposition. "The official corps," said a satirical lady, who drew a picture of the times, "are punctilious; fearful of compromising their rank; alletiquette." The entertainments at government-house were ceremonies, rather than parties of pleasure. As the servant opened the door, he seemed to say, "you may come in, but don't speak." Some more daring spirit would venture a remark, as ballast is thrown out to send a balloon above the fogs; but caution, like Sancho's physician, interdicted the perilous indulgence, and restored the watchful silence. No Dutchman would willingly endure the Humdrumstadt on the Derwent, notwithstanding its natural advantages and commercial promise—a town without a library, and where the common spirit of detraction was exasperated by competition for those favors the governor could refuse ortransfer. The presence of power was everywhere felt, and dreaded wherever it could not be defied.[150]

The close connection and constant intercourse between New South Wales and Van Diemen's Land affected the spirit of both governments. Sir Thomas Brisbane, whose easy temper and courteous manner rendered him highly popular, was superseded by Lieutenant-General Sir Ralph Darling, whose administration after the first few months was a perpetual storm. The chief justice, inclined to liberal politics, rejected several drafts of laws which trespassed on the limits of the constitutional act, which he himself had framed at the request of Lord Bathurst. At his dictation, the ordinance against the press was less stringent than intended. The titles of land, the property of masters in assigned labor, he determined against the government. He was considered the tribune of the people. Judge Forbes, a Bermudian by birth, was educated in an American college, and charged with republican tendencies by those who designed to degrade him.[151]

Brisbane was the patron of the turf club. This office was accepted by Darling as his successor. He was invited to dine with the members: this he declined. Mr. Wentworth, as chairman of the day, made certain observations thought personally disrespectful; and when the governor's health was proposed, the band struck up, without orders from the stewards, "There is na luck about the house." Darling, informed of these proceedings, withdrew his name as patron. The club passed resolutions declaring their approval of Mr. Wentworth's speech. The governor dismissed the acting attorney general (Moore), the sheriff (Mackarness), and other officials, for their concurrence with the majority.

Two soldiers, Thompson and Sudds, to escape from the service, committed a theft, and received a sentence in the supreme court. To aggravate its rigour, Darling brought them on parade: stripped them of their uniform, fixed round their necks collars set with spikes, and loaded their legs with chains. In a few days Sudds languished and died: this result, so unexpected, was attributed in part to a latent disease of the liver, rendered fatal by grief and the pressure of the iron. The affair became the subject of parliamentary inquiry. Darling was accused of murder by his enemies: he was vindicated by ministers; but although his motiveswere uncorrupt, an arbitrary aggravation of a judicial sentence who would seriously approve?

These transactions, together with the "Stamp Act" to check the circulation of newspapers, were noticed in theAustralian(May, 1827) in terms of ironical praise; severe, but not beyond the ordinary license of public discussion. On the arrival of Mr. Baxter, the attorney general, the proprietor, Dr. Wardell, was prosecuted in the supreme court, at the instance of General Darling. Judge Forbes pointed out the violent straining of the inuendos, and through his charge led on to an acquittal. Although chosen by the prosecutor, the jury were unable to agree, and the defendant was discharged. The alleged libel stated that the stamp act "would immortalise" General Darling "in the annals of this rapidly improving colony, and act as a passport to the admiration and grateful respect of posterity." The meaning extracted by the inuendos was this: "It would render his memory for ever infamous, and cause his name to be hated and detested by future generations." The judge justly remarked, that between immortality and infamy there are many steps.

The struggles between the governor-in-chief and the opposition were watched in Van Diemen's Land with interest. The same parties existed in both colonies; but Judge Pedder did not participate the political sympathies of Judge Forbes, and made no pretence to popular applause. To those who check the abuses of irresponsible power something is due; but when the balance of human infirmity is struck, it will not be always found in their favor.[152]

The employment of spies has been charged on Arthur as a chief vice of his government—a practice hardly less perilous to the innocent than guilty. Shortly before his retirement from office, Mr. Humphrey, the police magistrate, was denounced for corruption. Major Honner, who had formed a disgraceful connexion with Anne Pope, a prisoner of the crown, applied for her assignment to his service: this Mr. Humphrey refused. The major then offered to produce evidence against this officer, on condition that free pardons were granted to his witnesses, one of whom was found to be his paramour. The governor declined to pledge a reward; but Honner was assured by a member of the executive that, provided the results were satisfactory, his recommendation would be favorably considered. He forwarded a letter to the governor, who satisfied that the imputation was malicious and incapable of proof, directed the prosecution of the accuser. The transaction was unfortunate: the negociation indicated that secret informers were tolerated, and that pardons might be procured by a successful witness.

Mr. Humphrey, originally a mineralogist, who filled various offices from the foundation of the colony, received a pension of £400; but soon after died (1829). The governor eulogised in strong language his official career.

The recall of Arthur was announced, and the policy of his successor gravely debated before his career was midway. "It is a fact," said theSydney Gazette, "Colonel Davies is the distinguished individual." "The successor of Colonel Arthur," said theAustralian(1829), "is placed beyond doubt. The appointment of Colonel Gibbs is now certain." Clergymen of such names emigrated about the time, and rumour could easily supply the rest.

When the constitutional act approached its term, the colonists determined to seek not only for trial by jury, but a voice in the legislature. A petition 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 constituents 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 documents; 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 manœuvre, contrived to stifle their defence; and instantly dispatched a fast sailing boat to pursue the ship with an exculpatory letter.

By a circular of Lord Bathurst,[153]still in force, it was announced to the colonists that their complaints must pass 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 promptitude was unavailing: for his share in the transaction, the name of Mr. Gellibrand was expunged from the list of magistrates, by Lord Goderich's orders.

The hostility of Arthur to the petition 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 institutions, so soon as the colony was ripe to enjoy them, when Mr. A. Baring (Lord Ashburton) remarked that colonies are never ripe for free institutions until they get them.

Mr. Marshall, the shipping agent, attempted to form an association in London (1828), for the protection of these colonies. All persons, commercially or otherwise interested, were eligible for membership. A correspondence was projected with the leading colonists, and it was assumed 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 constitutional 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 aregazetted; 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 pass a measure. The members are appointed by the crown, and vacancies are filled up by the governor: they must be resident;ex-officiothey are magistrates. The preliminary certificate of the chief justice,required by the former act, is substituted by another clause, which compels the council to reconsider a bill declared by the judge repugnant to the laws of England, or the act constituting 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 assessors are continued. But the local council is authorised to institute 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:[149]April, 1826.[150]Letter from a Lady(Mrs. Adey), inserted in theMorning Herald, 1827.[151]Mudie's Felonry of New South Wales, p. 52.[152]Dr. Wardell was murdered some years after by bushrangers.[153]May 20th, 1826.

[149]April, 1826.

[150]Letter from a Lady(Mrs. Adey), inserted in theMorning Herald, 1827.

[151]Mudie's Felonry of New South Wales, p. 52.

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

[153]May 20th, 1826.

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 passenger 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 knowhow 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, Cartwrightv.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 assessors 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 theResearch, East India Company's ship, the discoverer of the relics of La Perouse, visited Hobart Town. He was prosecuted for assault 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 assault and imprisonment, from which the doctor was released by a writ ofhabeas corpus. The chief justice, in pronouncing 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 assigned 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 ofhabeas 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 assistance on the part of the crown. Montagu rejoined, that speaking not as attorney general, but as an advocate, he repelled such assertions. "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 assumed 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 institution 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 Saturday 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 asserted that the principal 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.

Amusements 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 shipwreck 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 theCumberland; 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 theBengal Merchant, threw light on her fate. He had found theClarinda, 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 wordCumberland. Some of the pirates proposed that Crew should walk the plank, but were resisted by the Captain. A little black boy, shipped by theClarindaat the Cape de Verde Island, remembered the pirate vessel as often seen in that port.

In what form theCumberlandperished 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 ship 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 passed her track. As the emigrant, even now, approaches the supposed latitude, he hears with bated breath the fate of theCumberland, whenever a strange sail darkens the horizon.

Back to Index Next