The History of Tasmania (Vol. 1&2). John West

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      SECTION IV

       Table of Contents

In planting the colony of New South Wales, it was requisite to provide a form of government adapted for a community without precedent. That instituted was equally alien from established usage. It conferred powers on the governor beyond the dreams of ordinary princes, and violated all the constitutional guarantees which support the rights of subjects. The American colonies derived their constitutions, some from the prerogatives of the crown, others from parliament, under acts prescribing their structure and limiting their jurisdiction. In some cases the British legislature authorised the crown to convey the powers of government at its own discretion, and its own agents. In the reign of George III.[77] the parliament passed the Quebec Act, which defined the powers of Canadian legislation and judicature, and thus established a course that has never since been abandoned.

The immediate design and composition of the Australian colony precluded the forms of constitutional freedom: the object of the laws and regulations were but remotely connected with the ordinary interests of British citizens. Having obtained, therefore, the authority to institute a government, the crown put into commission the powers it received, but left to the local authorities to interpret and apply them.[78]

      The court of criminal jurisdiction was composed of seven officers, of whom the judge advocate was one. It could only assemble on the summons of the governor: his precept determined who, or whether any should sit, and thus regulated the jury: as their commander his influence was great—greater, as the dispenser of royal patronage.

      The powers of the grand jury devolved on the judge advocate, who framed the indictment, and determined beforehand the probability of guilt: he thus sat in a cause which he had judged already. The prosecutor conducted his own case: witnesses were examined in open court, and the accused was unassisted by counsel. Nor was unanimity required: yet five in seven were necessary in capital cases, to authorise an immediate execution. The judge advocate deliberated with his co-jurors in secret, and the court was re-opened only when they had agreed upon their verdict, and determined the sentence. Thus in ordinary cases the weight of authority in deciding guilt, as well as apportioning punishment, usually rested with an officer officially connected with the government. The operation of this court was liable to serious constitutional objections. It was in the power of the governor to exclude the subject from the protection of the law, by shutting up the court, and by the arbitrary selection of its members to anticipate its decision.

In conducting the business of the court, its members dispensed with the niceties of law, and gave their verdict upon what appeared to be the substantial merits of the case. From the age of fourteen, the first judge advocate had been employed in the royal marine service, and whatever intelligence his writings display, they exhibit utter disregard of rights recognised by the British constitution. His successors in office, for two-and-twenty years, until the appointment of Mr. Ellis Bent, were gentlemen connected with the military profession, who were unassisted, except by such lawyers as the lottery of transportation threw in their way: thus, while they were limited by parliament to a jurisdiction according to the laws of the realm,[79] they were more than usually unacquainted with their nature, and indifferent to their observance.

      Such were the inherent defects of this form of judicature, from the large influence possessed by the executive; which could determine the time of sitting and the members of the court; which denied the right of challenge, and accepted the concurrence of five voices only in cases of life and death—and those of persons subject to the influence of the governor and unaccustomed to weigh evidence, or to defer to the maxims of civil tribunals. But if the constitution of the court was a subject of just complaint, the creation of new offences by unauthorised legislation, was still less acceptable to English statists.

      The court proceeded smoothly, so long as none but convicts or persons of trivial influence were in question; but the dispute with Governor Bligh disclosed the dangers with which it was fraught: the sympathy of the jurors with the accused frustrated his prosecution, and overthrew the executive.

      The esprit du corps of the jurors occasionally appeared in their verdict: the decision of a cause in which an officer was the aggressor, or one which interested the passions, did not command the confidence of the people.

      The jeopardy of justice was illustrated by a dispute, in which the Rev. Mr. Marsden was complainant, and the secretary of the governor the defendant. Mr. Campbell was the censor of the New South Wales press: he admitted an article, which imputed to Mr. Marsden (1817) the abuse of his office as agent for the missionary societies, and of using muskets and gunpowder as articles of traffic with the natives of the Pacific. The judge advocate in this instance was said to attempt to shelter the offender by the influence of his three-fold office—as the law adviser of the governor, the public prosecutor, and member of the court of criminal jurisdiction. His reluctance to admit the evidence, and to take the preliminary steps in the prosecution, and his direction to deliver an inoperative verdict, were held fatal evidences that impartiality could not be secured by uniting functions so inconsistent with each other.

The jurors were not unfrequently interested: in some instances the prosecutor sat as witness and judge, giving the principal evidence in the case in which he was both to decide the guilt and apportion the punishment.[80]

      The establishment of a court of criminal jurisdiction was alone authorised by the parliament: the necessity for supplemental laws was not foreseen, but was soon perceived. The governors assumed the legislative authority, under the disguise of orders and regulations, often contrary to the principles of English law, and sustained by penalties unknown in Great Britain. These were not collated until a late period: their provisions were imperfectly promulgated. In enforcing them, the governors relied on the impotence of resistance, and justified their enactment on the ground of expediency.

      Had the parliament conveyed a legislative power, the ordinary precautions and limitations would have been embodied for that purpose: thus the free subjects of the king would have known the extent of their liabilities, both to prohibitions and penalties. An unfettered despotism drew no distinction, but rejected all questions of legality as contumacious.

Among the subordinate officers, were some high in rank, natives of France, who had emigrated during the revolution, or had by incurring the hatred of its government deserved the patronage of our own. Profoundly indifferent to the rights of freedom, and ignorant of the forms or proper subjects of judicial investigation, an "order" was far more sacred in their eyes, than the volumes of Blackstone. English gentlemen might have recalled the solemn warnings of history which check aggressions on private liberty, but an exiled adherent of Bourbon princes was not likely to be embarrassed by educational prejudices. Not that British officers were really more scrupulous, or offered by their СКАЧАТЬ