FOOTNOTES:

FOOTNOTES:[185]Letter to Darling, 1830.Major Mudie says—"Being scarcely ever sober, he left his business to be done by a convict clerk, who had been a lawyer of some sort previous to his transportation from England."—p. 245.[186]9th Geo. iv. sec. 22.[187]August 13, 1832.[188]Captain Glover stated, that the events of the 23rd of May had been dramatised in the following strain:—The ambassador of that meeting was admitted to the king: "Ho, ho, Mr. Ambassador," said the king, "the people of Van Diemen's Land want an assembly, do they; what do they want it for?" The posed ambassador replies, "Because they do, your Majesty." "Because they do, Mr. Ambassador, is that the reason they gave?" "Please your Majesty, I am not certain they gave that reason." "What do you think of that, Goderich?" says the king. "Oh, all nonsense," said Goderich. The ambassador, on retiring, requested an answer, and was informed, "there was none." The ambassador, in his turn, asked the reason. "Why because we wont—that's all."[189]From theTasmanianreport of meeting.

[185]Letter to Darling, 1830.Major Mudie says—"Being scarcely ever sober, he left his business to be done by a convict clerk, who had been a lawyer of some sort previous to his transportation from England."—p. 245.

[185]Letter to Darling, 1830.

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

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

[187]August 13, 1832.

[188]Captain Glover stated, that the events of the 23rd of May had been dramatised in the following strain:—The ambassador of that meeting was admitted to the king: "Ho, ho, Mr. Ambassador," said the king, "the people of Van Diemen's Land want an assembly, do they; what do they want it for?" The posed ambassador replies, "Because they do, your Majesty." "Because they do, Mr. Ambassador, is that the reason they gave?" "Please your Majesty, I am not certain they gave that reason." "What do you think of that, Goderich?" says the king. "Oh, all nonsense," said Goderich. The ambassador, on retiring, requested an answer, and was informed, "there was none." The ambassador, in his turn, asked the reason. "Why because we wont—that's all."

[189]From theTasmanianreport of meeting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Captain Serjeantson, of the 40th regiment, a gentleman connected with several opulent settlers, was murdered (1835). The family collected £500: to this the governor added £100 more, for the discovery of the murderer, who was found to be Hunt, a bushranger, afterwards shot by a small settler, and who dying confessed the crime. In this case, a constable, Drinkwater, proposed to another to earn their free pardons. The plan sketched was to deposit shot in the hut of a man at Campbell Town, who was suspected, resembling that extracted from the body of the deceased. A constable, invited as an accomplice, betrayed the project; not, however, until the proof of its existence was indisputable. The same constable had proposed to throw a sheep stolen from the flocks of Mr. Willis, on the premises of a man, "on whom there was a down."

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

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

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

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

The hostility of the opulent emigrants to the eligibility of emancipists was intense and lasting. This was still more active when the trial of criminal issues passed into their hands (1833). They asserted that the criminal at the bar was too literally tried by his peers, and that scenes disgraceful to public justice were enacted in the retiring room. It required all the authority of the court to repress antipathies so openly avowed. The rancour excited by this question is scarcely credible: a gentleman addressed the judge from the box before he was sworn, and asked if he was expected to deliver a verdict with twice convicted felons? Appearances of partiality and corruption were quoted to prove the pernicious effect of their admission. The magistrates, usually hostile to the measure, returned as fitand proper persons, those whom they knew would disgrace the box. Some flagrant cases were exhibited as specimens of the whole: a juror, out on bail for horse-stealing, resolutely acquitted another charged with cattle-stealing, and was convicted himself. Thus, it was said, returns to the summons of jurors, in one instance, was "hanged;" in another, "transported for life."

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

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

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

The attorney-general, Alfred Stephen, was desirous of substituting for the assessors a jury of seven, instead of twelve. His project was opposed by Mr. Kemp, and indeed very generally disapproved. It was argued, that the chances of influence multiply as the number of jurors are decreased, and that the national practice was the only safe guide. The amount of discussion that attended the dispute was prodigious: pamphlets, and letters without end. The prejudice of the people was, however, on the right side: although there is nothing sacred in an ancient number, the retrenchment must have increased the facility of corruption. The law, as it ultimately passed, removed the danger, by giving either party a right to demand a jury; and to the party against whom the application was made, a choice between a petty and special jury; but three-fourths were taken as the whole, after six hours deliberation.

This act was framed in virtue of an order of council by the king in 1830. It provided that in criminal prosecutions where the governor, or any inferior officer, civil or military, could be interested in the result of a trial, a jury taken from the special jury list should try the issue.[195]

To Arthur the colonists were not indebted: the secretary of state had, long before, announced the determination of the government in favour of the measure. It was not carried out until nearly four years after its authorisation. The removal from the colony of the stigma of military juries, was delayed until 1840, when the trial of crimes and misdemeanours was entrusted to the hands of the inhabitants, and the grand bulwark of public and private freedom raised in Tasmania.

The convictions for perjury were not numerous: the whole system partook of the unsoundness of its elements, and the inhabitants were indebted for their safety to those principles of humanity, which, in the absence of interest and passion, regulated the measures of the government, and restrained its agents from atrocious conspiracies.

FOOTNOTES:[190]Signed by C. Swanston, T. Anstey, J. Kerr, C. M'Lachlan, R. Willis, W. A. Bethune.[191]Letter produced by Mr. Kelsy, of the Colonial office.[192]Twelve months imprisonment, £200 fine, and sureties in £500 for two years.[193]Par. Pap.1837.6th Geo. iv. c. 5, disqualified a person to serve convicted of any capital offence, except free pardoned.7th & 8th Geo. iv. c. 28. sec. 13, gave to a conditional pardon under the sign manual the same effect as great seal.In cases not capital, service had the effect of free pardon: 9th Geo. iv. c. 32. sec. 3.All the laws of England were adopted by the Act of 1828: thus the disqualification for jurors, in cases capital, was taken away.Judge Forbes stated, that in civil issues the juries had some difficulty in comprehending the distinction between law and fact:ad questionem facti respondent juratores, ad questionem legis judices.[194]The original Simon Stukely was a quaker, who went to Turkey with an intention of converting the Grand Turk: he narrowly escaped decapitation, by the interposition of the English ambassador. He was afterwards confined in an asylum: in answer to inquiries how he came there, he replied—"I said the world was mad, and the world said I was mad; and they out-voted me."[195]Passed, 5th November, 1834.

[190]Signed by C. Swanston, T. Anstey, J. Kerr, C. M'Lachlan, R. Willis, W. A. Bethune.

[191]Letter produced by Mr. Kelsy, of the Colonial office.

[192]Twelve months imprisonment, £200 fine, and sureties in £500 for two years.

[193]Par. Pap.1837.6th Geo. iv. c. 5, disqualified a person to serve convicted of any capital offence, except free pardoned.7th & 8th Geo. iv. c. 28. sec. 13, gave to a conditional pardon under the sign manual the same effect as great seal.In cases not capital, service had the effect of free pardon: 9th Geo. iv. c. 32. sec. 3.All the laws of England were adopted by the Act of 1828: thus the disqualification for jurors, in cases capital, was taken away.Judge Forbes stated, that in civil issues the juries had some difficulty in comprehending the distinction between law and fact:ad questionem facti respondent juratores, ad questionem legis judices.

[193]Par. Pap.1837.

6th Geo. iv. c. 5, disqualified a person to serve convicted of any capital offence, except free pardoned.

7th & 8th Geo. iv. c. 28. sec. 13, gave to a conditional pardon under the sign manual the same effect as great seal.

In cases not capital, service had the effect of free pardon: 9th Geo. iv. c. 32. sec. 3.

All the laws of England were adopted by the Act of 1828: thus the disqualification for jurors, in cases capital, was taken away.

Judge Forbes stated, that in civil issues the juries had some difficulty in comprehending the distinction between law and fact:ad questionem facti respondent juratores, ad questionem legis judices.

[194]The original Simon Stukely was a quaker, who went to Turkey with an intention of converting the Grand Turk: he narrowly escaped decapitation, by the interposition of the English ambassador. He was afterwards confined in an asylum: in answer to inquiries how he came there, he replied—"I said the world was mad, and the world said I was mad; and they out-voted me."

[195]Passed, 5th November, 1834.

TheTrue Colonistnewspaper was published daily during 1835: the editor, Mr. Gilbert Robertson, filled its columns with strictures on government, and in a style which might be termed heroic, if inspired by truth. The rashness of his imputations was never surpassed. He heaped on the governor, and the members of his administration, charges of misdemeanour and felony. One day he denounced them at the police-office, and the next printed his accusationsverbatim. He libelled the governor (whom he accused of altering a deed after its enrolment) in a paper, headed "a fearful discovery;" and declared him not less deserving than others of a capital conviction. Robertson charged an overseer of Arthur with feloniously receiving hay for the governor's use, and with his connivance. His nephews, Captains Forster and Montagu, were each accused of a felonious appropriation of property belonging to the crown. For these imputations, Robertson suffered fine and imprisonment;[196]in part remitted by the clemency of Arthur. Such charges were a buckler to the governor against the current scandal of the time. They were transmitted to the colonial-office: they destroyed the moral weight of the press, andcast suspicion on just complaints, yet emanating from a community which tolerated such extravagance.

It is not to be inferred that the opponents of Arthur's government, generally sanctioned these excesses. The violence of periodical writings resulted partly from the paucity of topics, and was mainly a necessity of trade. The limited field of discussion huddled all disputes into a squabble. The writers could not forget the names of their antagonists: they espoused with vehement zeal the trivial quarrels of this or that functionary; officers, who were dismissed, supplied anecdotes of those left behind, which were worked up in every form. The want of ideas and information would have withdrawn many writers from the combat, had they not possessed CAPITALS, exclamations (!!!!), and dashes—officered by epithets of horror, as an army of reserve. These attempts to impart energy to weakness, and terror to insignificance, gave to the articles of many old newspapers the aspect of auction bills, rather than political disquisitions.

The reader of a better era may fancy this description shaded; but the writer, in preparing this work, has explored many a volume, and shudders at the memory of his toils: he would not assign them to his worst enemy. Such were not all: there were writers on either side, whose opposition was discriminating, and who enlightened the understanding without debasing the taste. The press was the more licentious, because nothing else was free; but it raised a barrier against official corruption. Men of integrity were annoyed, but rarely injured. It intimidated the corrupt, and protected the oppressed. Considered in detail it was often detestable; but it prevented mischief more serious and lasting.

These contentions embittered colonial life: they were daily renewed. The topics they embraced were rarely interesting beyond the moment: they filled the ephemeral publications of the day, and they now lie entombed in those repositories of the literary dead.

From 1831 to the termination of Arthur's government, the circulation of newspapers prodigiously increased: the improvement of the postal establishment facilitated their spread. Settlers, who delighted in their controversies, or dreaded their censure, subscribed to them all. With a few honorable exceptions they rivalled each other in recklessness of statement and roughness of diction. No lover of truth will accept their testimony, or transmit their praises.They were often what they were denominated by the chief justice—"a moral guillotine."

The spirit of contention was promoted by the peculiar fabric of society. The great majority of the colonists were below the period of human life, when the temper becomes cautious and the passions calm. Its narrow sphere magnified their temporary importance. Every man might claim, or forfeit benefits the government could bestow, and thus multitudes had personal grievances, or unsatisfied expectations. The hostilities of the day were almost invariably associated with some sense of individual wrong. A grant of land desired by one, was given to another; a valuable servant was denied on some public pretence, and then assigned to a favored applicant. One found his mercantile tenders always rejected, while another, by some unintelligible process, engrossed the custom of the crown. A youthful stranger was invested with the honors of a justice, when colonists of long standing were left undistinguished. The infractions of rule involved one master in public disgrace; another, was a licensed transgressor. Such was the complaint, which might be easily illustrated by examples; but they are such as a knowledge of mankind will amply explain, and are inevitable when the form of government is arbitrary, and where its functions enter into all the details of private life.

This was felt towards the close of Arthur's administration, and many, not prone to party strife, were anxious for its termination. The meetings to petition were more frequent, and assumed a more general character. As the causes of dissension became better understood, the patronage of the governor ceased to be considerable, and no colonist was a lover of unprofitable despotism. These sentiments prevailed in both penal colonies.

A "political association" was formed in Van Diemen's Land: a standing council was organised, under the auspices of certain leading politicians, who discussed the measures deemed necessary to amend their social and political condition. Mr. Thomas Horne, the secretary of this body, opened a correspondence with the governor, and endeavoured to direct his attention to its complaints. Arthur declined recognising his credentials, without an express sanction from the crown. The association, however, carried on its debates. The council deliberated in public: the members were assembled in the body of the hall, and spectators were admitted to the gallery. Their proceedings were reported inthe newspapers, but with party coloring. By Dr. Ross they were turned into bitter ridicule: his remarks were retorted with cruelty and insult. A storm collected around him he could not disperse, and he laid down his pen soon after, with expressions of ill-concealed anguish.[197]

FOOTNOTES:[196]"I charge Mr. Fitzpatrick, late overseer of the government farm, with stealing or embezzling a quantity of hay, the property of the crown; and one John Compton, the overseer of Colonel Arthur's farm at the Marsh, with receiving the hay. I also charge Mr. Davidson, late superintendent of the government garden, with embezzling, and Captain Forster with receiving, four Norfolk Island pines, value £20, the property of the crown. I have another distinct charge against Captain Forster, and one against Captain Montagu, for stealing or receiving certain building materials, the property of the crown."—True Colonist, Feb 26, 1835.

[196]"I charge Mr. Fitzpatrick, late overseer of the government farm, with stealing or embezzling a quantity of hay, the property of the crown; and one John Compton, the overseer of Colonel Arthur's farm at the Marsh, with receiving the hay. I also charge Mr. Davidson, late superintendent of the government garden, with embezzling, and Captain Forster with receiving, four Norfolk Island pines, value £20, the property of the crown. I have another distinct charge against Captain Forster, and one against Captain Montagu, for stealing or receiving certain building materials, the property of the crown."—True Colonist, Feb 26, 1835.

The recall of Arthur, long anticipated by his enemies, at length arrived. Some months before, he had been informed by the secretary of state, that "having continued him in his government for the unusual period of twelve years, the crown intended to name his successor." On the recommendation of Mr. Huskisson, the duration of an ordinary government was limited to six years: special reasons withdrew Van Diemen's Land from the operation of this rule.

The ministerial changes at the seat of empire left Arthur's influence unimpaired. The variations of national policy rarely reached his sphere. Unwelcome orders he managed to modify or evade. The difficult nature of his duties, the distance of his government from supervision, and the weakness of the free population, enabled him to assume and maintain for many years a discretion all but unlimited. The state of the colony on his arrival has been already noticed. The measures he adopted to coerce and control the convict population, and to subdue the aborigines, will be found in the second volume of this History. He repressed the outrages of the lawless, and restored comparative tranquillity. Under his auspices the chief town, which he found consisting of a few frail dwellings, assumed the aspect of a commercial city. Many, he received in chains, were established in social happiness: many immigrants, who arrived with slender resources, had risen to opulence.

A series of forty-seven statistical tables, prepared by the colonial secretary, his nephew, exhibit a progress then almost unexampled. In 1836, the revenue had increased from £16,866 to £106,639; the imports from £62,000 to £583,646; the exports from £14,500 to £320,679; mills from 5 to 47; colonial vessels from 1 to 71; churches from4 to 18: the population had risen from 12,000 to 40,000; and every branch of public and private enterprise exhibited the same general aspect.

It would be absurd to ascribe to Arthur even the main credit of these results: they were the effect of that spirit of industry which ever characterises the native of Great Britain, and which nothing can wholly extinguish. Nor was this prosperity without alloy. The unproductive improvement encouraged, was sometimes unhealthy. The settlers were deeply involved: the valuation of property was raised beyond reasonable calculation. The pleasing delusion was cherished by the members of the government, whose official and private interests concurred to dupe them. Happy were they who sold. Arthur left many who, acquiring his favour by the extent of their outlay, and the vigour of their enterprise, were laden with debts from which they never recovered, and a prey to perpetual solicitude.

The great demand for sheep and cattle, created by the establishment of new colonies, gave a temporary respite: flocks were sold at £2 per head, and were purchased in large quantities. These ameliorations were only transient, and the wide regions open to adventure lessened the worth of those properties which had been valued by the farms of Great Britain, not the unpeopled wilds of New Holland.

A just estimate of Arthur's administration, must include all the peculiarities of his position, and the complicated interests he held in trust, whether they relate to the imperial government, the free, or the bond. The measures best for the colony were not always compatible with the design of its establishment. Nor must we forget that, in surveying the past we have lights which rarely attend the present; that much which experience may amend, it is not possible for wisdom to foresee.

The primary object of the crown in colonising this island, was accepted by this governor as the chief aim of his policy. The settlement of free men he considered but subsidiary to the control and reform of the transported offender: their claims, their duties, and their political rights were, in his view, determined by their peculiar position. They were auxiliaries hired by royal bounties, to co-operate with the great machinery of punishment and reformation. As the representative of the crown, he stood off from the colonists in their sympathies and ultimate views. Employed not to build up a free community of Englishmen, but tohold in check the criminality of an empire, with him the settlement was an institution requisite to the effective execution of penal laws. Such he found it: such he desired to mould its growth,and to prolong its destination. Thus, except in the capacity of employers, he regretted the arrival of free men, and warned the ministers of the crown, that by their encouragement of emigration, they were destroying the value of bond labor, the dependence of the settlers, and the adaptation of the island for the purposes of a prison.

Thus, in his official correspondence with colonists on subjects of a political nature, Arthur always avowed hostility to liberal ideas, and scoffed at their solicitude for the common rights of English people. While the opposition could avail, he resisted the liberty of the press, trial by jury, and open discussion of legislative measures. His remarks were often in a tone austere and reproving; nor did he think himself obliged to preserve that dignified complaisance which softens the differences of political life. The settlers were expected to stay at home, to keep their servants in custody, to denounce their infractions of penal rule, and as the "materials of prison discipline," (so they were denominated) to carry out a judicial sentence. They knew, before they came, they must sacrifice British rights, and with the political or social influence of transportation, beyond their own fences, they had no concern.

As an officer of the army, the profession of Arthur was not unfavorable to the main purpose he avowed: the process he conducted was, of necessity, harsh and imperative. In the selection of instruments, he preferred military men: they were without colonial scruples, and when the government was unconcerned, perhaps, without partiality. They were deficient in legal knowledge, and as magistrates sometimes overlooked the material facts; but they despised the reproaches of the press, and the censures of civilians.

In the course of his administration, Arthur had most places at his temporary disposal: he filled them, wherever possible, with his friends; and he left his nephews in the highest appointments within their professional capacity. Arthur drew out a minute detail of official subordination: the duties prescribed for his officers were defined with labored exactness, and the reins of control met in his hands. Everything was referred to himself, and his instructions were definite, and generally irrevocable. Many persons appointed by the crown were dismissed, or thrown off, by his contrivance. Accident placed many offices in his provisionalgift. Baxter, a judge elect; Gellibrand, an attorney-general; Ferreday, a sheriff; Thomas, a treasurer; Burnett, a colonial secretary; O'Ferrall, a collector of customs; and many in lower station, relinquished or lost their appointments, by the determination of his inflexible and unflinching will. The forfeiture was sometimes obviously just; but it was a maxim of his government to fill the departments with persons who knew no patronage except his own. Among them were candidates for the same gifts, who looked for fortunes beyond the limits of their duties: they cultivated farms; became competitors for prisoner labor; and speculators in commerce. The supreme court and the newspapers were often occupied by their recriminations: sometimes they exchanged challenges, and sometimes writs. The colonists in opposition saw, not without some gratification, dissensions which seemed to weaken the common enemy; and the press was often enriched by the malice of official pens. Many were, however, too wise to quarrel: their quiet industry enabled them to combine their public and private employments, without scandal, and with success. They were, indeed, accused of peculation; but specific charges were generally rebutted, and can now only be noticed as a rumour, and dismissed as detraction.

The officers trained under Arthur acquired his tact, and imbibed his spirit: the least deemed himself something superior to the richest trader, or the most enterprising colonist. The sub-divisions among themselves were minute and rigorously enforced. They were, however, subject to vicissitudes. Those who lost their appointments furnished the material of libels: reported the peculations and duplicity of their late colleagues, and often became distinguished for their patriotism.

The patronage permitted to Arthur was enormous: to a large extent he was the almoner of the crown. Thus disaffection became highly penal: a quarrel with a magistrate, or a friendly intercourse with persons under a ban, exposed the delinquent to serious pecuniary loss. These considerations were avowed.[198]The dread of injury made the timid servile,and corrupted private intercourse. A secret influence pervaded every rank: society was embittered by suspicions and the dread of denunciation; and had not the growth of population decreased the comparative power of the government, or had its original plan been perpetuated, it must have formed a community of slanderers and slaves. The intentions of the governor, however just, could not save him from the falsehood of spies, and thus the perpetration of wrong. It was early announced that opponents would be "crushed." The extent of the "crushing system" was greatly exaggerated, and even the course of good government was commonly ascribed by the sufferer to official enmity and avarice.

The industry of Colonel Arthur was constant: his attention to the details of his government, and his perseverance as a despatch writer were universally admitted: a large proportion of his time he spent in his office, and toiled with an assiduity which would have been fatal to ordinary men. It was commonly stated that he was not very accessible; but he willingly heard those whose education and habits qualified them to suggest. Persons of every rank were admitted to an audience on a slight pretence. He was quick in estimating the characters and capacities of all who approached him.

The executive council was useful to Arthur, without obstructing his measures. When he resolved on a project, he would nominate a board, and obtain its sanction. When his private views were opposed to his instructions he affected impartiality, and seemed to yield rather than to guide. These artifices were well understood; but the colony often approved the object, and admired the ingenuity of its execution. A new colonial minister, in the hurry of his office, gladly surrendered to the governor's judgment a question often beyond his comprehension, and which to resist it was necessary to understand. Thus it was ordered to execute public works by contract instead of the gangs; to levy a tax on convict labor; to retain men seven years in chains. Boards, or commissions, which gave him the aspect of a mediator or judge, advised him to postpone andquash the disagreeable order or restriction. Thus during his government his influence was paramount, and inferior functionaries were satellites who obeyed his impulse, or were driven from their spheres.

The chief justice alone could pretend to independence: by his seat in both councils he possessed a voice in the enactment and administration of the laws—a subject of continual suspicion and complaint, and really dangerous whenever the government was a party. The chief justice ultimately resigned his seat in the executive council (1835). The secretary of state had declared in parliament that legislative and executive offices were incompatible with the proper functions of a judge.

The great works of Arthur were attributed by his opponents to sinister motives: those most frequently mentioned were the new wharf at Hobart Town, the road to Richmond, and the Bridgewater causeway. Arthur benefited by his fore-knowledge. The imputations of personal injustice or corruption were unfounded: what he gained, others did not lose, except by the common risks of a sale. Thus the property of the Rev. Robert Knopwood, whom he was said to defraud, was several times in the market: it was offered by advertisement many years before: its future appropriation to commerce was predicted, and was described to enhance its price. It was offered by Mr. Knopwood to Mrs. Hodgson for £800: it was purchased by Mr. H. Jennings, a nephew of Mr. Gellibrand, senior, without reference to Arthur; and was finally sold to his agent at a small advance. The new wharf rendered the purchase highly advantageous; but there was neither deceit nor oppression.

The great work he began at Bridgewater, where a magnificent causeway forms the abutment of a bridge which connects both banks of the Derwent, was a task of many years: many thousand pounds in value lie buried. Arthur had estates in its vicinity. The other charges of corruption are of a similar nature, even less substantial than these.

But although many of his works will perpetuate his memory while the country lasts, they could only be justified by their connexion with penal arrangements. The discipline prescribed did not admit of rapid movement or wide distribution. Huts were necessary for the convicts, houses for their officers, and various stores; and it was only on extensive excavations that labor could be inspected with success. The waste of expenditure was rather apparent than real. The objects contemplated were not colonial; and thus,if the local obligation is lessened, the ground of complaint is diminished.

During his government, Arthur became wealthy: his estates were numerous, and their sale realised a large amount. That he acquired them improperly is not even capable of suspicion; that he applied clandestinely the means afforded by his office to improve them, is equally destitute of evidence. Nor is it easy to see how a community can be injured by the outlay of capital acquired in its service, or the interest of its officers in the soil. The moral weight of government was compromised far more by the air of mystery which veiled, than the corruptions which debased it. The outcries raised against the disposal of land in special instances, were often misdirected: many deviations from strict impartiality were prescribed by the secretary of state, whose discretion was unlimited by regulations. Arthur was silent, and his character suffered: he despised reproach, which notwithstanding impaired his influence for good. Just before his recall, Mr. William Bryan made statements before the Commons of mis-appropriation of crown lands, which had been the text of colonial articles without number, when a secretary from the colonial-office stated that the more serious were unfounded; that many were ministerial acts; and the whole series were reduced to comparative nothingness.[199]While Arthur had the power, he was not sparing in its use: he endowed his friends. Nor is it incredible, that a private service to himself detracted nothing from weight of public obligation.

Arthur was no fickle or hesitating patron, and the qualities he approved are nearly allied to virtue: he appreciated humanity, sobriety, industrious habits, and religious decorum. Respectable men, who did not question or cross his path, might usually calculate on his complaisance. But those who reckoned up his estates; numbered the benefits conferred on his friends; estimated the cost of his government; or criticised his public works; found that he did not fear, although he detested them. The imperial officers cared not in what direction his patronage was turned, and their nominees experienced and praised his generous discretion.

The impressions of devout men were usually favorable toArthur: he told them his objects and trials with apparent humility and devotion. He listened with deep attention to their plans of usefulness, and talked, especially of the prisoners, in strains of christian compassion. His sanction was given to every benevolent scheme, and he gathered around him a very large proportion of those persons who care more for the circulation of religious knowledge than the civil enfranchisement of mankind. The ready countenance of their labors lessened, in their view, his civil faults. Nor can it be denied, that the decorous habits of the governor confirmed his religious pretensions. Wherever he appeared, ribaldry and drunkenness vanished. The open licentiousness of public officers he did not tolerate, except the offenders were distinguished by official cleverness.

Addresses from all denominations of Christians expressed their admiration of his religious sympathies and his moral worth; and in the most bitter outburst of party spirit, his domestic character was never assailed. The testimony of Messrs. Backhouse and Walker, members of the Society of Friends, would generally be adopted by most persons of their class:—"Our first interview with Colonel Arthur gave us a favorable impression of his character as a governor and a christian, which further acquaintance with him strongly confirmed. He took great interest in the temporal and spiritual prosperity of the colonists, and the reformation of the prisoner population, as well as in the welfare of the black inhabitants."[200]

Messrs. Backhouse and Walker were authorised by the Society of Friends, and sent on a religious mission to these colonies: they brought a letter of introduction from the secretary of state, Lord Goderich, requesting the governor to forward their benevolent object.

The more violent opponents of Arthur, connected with the press, afterwards retracted their opinions; but their statements must be read with equal caution, whether they censure or praise.[201]

A collection was made by Arthur's friends in token of their regard, supposed to exceed £1,000 in value. It, however, indicated rather their liberality than their number: individual contributions were not limited. The addresses were signed by many who were conciliated by his moral sentiments, but disapproved of his government; they however, seemed to justify the ministerial applause which crowned his administration. Sir George Grey referred to these tokens of esteem, as evidence of popularity, and the contentment of the people.[202]

Arthur held his last levée on the afternoon of his departure:[203]several hundreds were present, collected from all partsof his government. He proceeded with the chief officers, civil and military, to the beach, where the 21st Fusileers awaited him: multitudes attended his progress; the wharf was crowded with spectators; a hundred boats surrounded the government barge, and followed him to the ship. The vessels in the harbour were decorated, and his numerous friends gave the usual demonstrations of favour. In these feelings many did not participate: some followed him with hisses and groans; others illuminated their houses in tokenof joy. Some fell into the hands of the police, overpowered by their excessive gladness. Having gone through the ceremony of embarkation he returned to his office, and spent the night in completing his last labors. Adverse winds detained the vessel, and he passed the Sabbath in sight of that country where his name can never be forgotten; and where monuments more durable than brass, formed by his care, will remain to the end of time.

The manners of Arthur were formal; his tastes moral; his temper vindictive. He approved the right, and usually followed it; but his resolution once taken, he did not hesitate. He devoted all who opposed him: and those whom he could not conciliate, if possible, he bore down. The sentiment of religion, however, did sometimes triumph over his antipathies. His contest with Mr. Gellibrand, the barrister, continued many years; but they met at the sacrament shortly before their final separation. Arthur approached the seat where Gellibrand was sitting, and offered his hand. This being misunderstood, a prayer-book was tendered him: he then explained, that before they joined in the solemnity which had brought them there, he was anxious for reconciliation.

Such only who know little of man, and of those conflicting passions which attain alternate ascendancy in the human breast, will survey with distrust a scene like this. In the presence of the Almighty the loftiest mind may bend without meanness, and recognise the moral grandeur of a forgiving spirit.

A few months after the departure of Arthur, Mr. Joseph Tice Gellibrand lost his life. He visited Port Phillip, a place which long engaged his thoughts: in company with Mr. Hesse, a barrister, he set out to explore the interior; they missed their way. The guide who attended them was convinced of danger: he could not prevail on them to change their route, and he returned alone. Their long absence occasioned anxiety, and parties of their friends attempted to track them: they found that when in company with the guide they had crossed the Byron, instead of the Leigh, their intended course; they then travelled on about fifteen miles by the river side, and over a plain, and entered a wood soon impervious to horsemen: then their track was lost. For several years, efforts were made to solve the mystery of their fate. In 1844, the natives directed Mr. Allen, a gentleman of credit, to a spot where they stated a white man had been murdered: there he discovered humanbones, but no evidence by which identity could be established. Beyond this, nothing certain is known.

On his return to Great Britain, Arthur was received with favour by the ministers. He was created a knight, and appointed governor of Upper Canada: afterwards, he obtained a similar office in India.

Sir George Arthur cannot be withdrawn from the rank of eminent functionaries; and his administration, on the whole, is entitled to more than respectful remembrance.

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