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

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СКАЧАТЬ Major Abbot, a member of the New South Wales corps, was commissioned as deputy judge advocate in Van Diemen's Land. He adjudicated in petty session as a magistrate, and by the accommodation of law to the circumstances of the colony, dealt in a summary manner with capital offences where prisoners were concerned. Thus sheep stealing and crimes against the person, committed by prisoners, were punished by flogging, and removal to a more penal station; and thus, while a prisoner of the crown might escape with a milder sentence, free persons for similar offences were placed in jeopardy of their lives.

"The experiment of a reformatory penal colony," said Sir James Mackintosh, "is the grandest ever tried; but New South Wales is governed on principles of political economy more barbarous than those which prevailed under Queen Bess."[97] This great statesman, who declared no provincial sphere seemed to him so worthy a noble ambition, as to become the legislator for these colonies, never failed to denounce the accumulation of illegality and folly.

      At this stage of our inquiry, it may be proper to scan this singular government. The legislators who authorised its establishment, prescribed as little as possible: all beyond the repression of crime was hidden from their eyes. They saw that punishments must be necessary, and provided for their infliction; but the complicated arrangements which grew out of the colonisation, were left to the adjustment of chance, or the discrimination of ministers, and ultimately to the caprice of naval and military governors.

      The extemporary character of their contrivance and expedients, is sufficiently apparent. Nothing was expected: nothing was dreaded: no checks were opposed to abuses. Thus acts of tyranny were perpetrated beyond the ordinary excesses of arbitrary governments, and all classes were confounded in one regimen of despotism. The commencing measures manifested their indifference to personal rights. Intending to banish men for life, the ministers selected for the first fleet chiefly persons whose crimes only forfeited their freedom for a few years. By withholding, or neglecting to forward lists of their names, their crimes, or their sentences, they consigned them not only to perpetual exile but protracted and illegal bondage. Imitating the ministers of the crown, the governor imposed compulsory labor on free men, or detained them when their liberation was notoriously due.

Thus again, law had conveyed power to the king to deliver prisoners by assignment to shippers, but jealous of trusting the executive, the actual transportation could only be carried out as the result of a covenant with private persons. Regardless of these well-advised precautions, the ministers delivered prisoners to ships of war, in custody of captains in the royal navy, bound to obey the orders of the crown; and when loud remonstrances induced them to obtain a legislative sanction to the innovation, they were silent in reference to the past, and trusted in their party influence to protect their own agents from legal penalties.[98] No wonder, with such examples before them, the governors detained or released at their pleasure.

Bentham was the first to protest against this illegal and violent system of government, as opposed to every principle made sacred by the Revolution, by judicial decisions, or by the oaths of sovereigns. He asserted that the movers and ministers of these despotic proceedings were liable, one and all, to the visitations of the most penal laws.[99] They had legislated without warrant, had detained free persons in bondage, levied illegal duties and imposed unconstitutional restrictions, and had inflicted cruel punishments for crimes invented by themselves. The apology for usurpation, was its obvious importance and general utility; but no one will dissent from the strong indignation expressed by the philosopher, at wanton violations of British law, neglect of personal rights and parliamentary privileges.

Governor King, it is believed, first established customs.[100] Hunter had assessed the property of the colonists, upon obtaining the consent of several, for the erection of a gaol.[101] The poorer inhabitants refused to comply with the levy, and were threatened with vengeance: they knew that however useful, such taxes were illegal though otherwise just. Thus, although legislation was not shadowed by the parliamentary act, the governors assumed it in its amplest form. Among the earliest were orders respecting the production and sale of spirits: to this, the oriental penalty was attached—"his still shall be destroyed, and his house pulled down." Infraction of this law was subsequently punished by imprisonment and transportation.

Of torture, to extort confession, we have ample proof, both written and traditional: of one Collins observes, "when he trifled he was punished again; he then declared that the plunder was buried. He went to the spot, but could not find it; he was then taken to the hospital." Another was tortured in the same form; but, adds the judge, "the constancy of the wretched man was astonishing:"[102] he was in consequence acquitted! This practice continued for twenty years, and in 1825 a prosecution was instituted against a magistrate for attempting to extract confession by torture.

The tendency of undefined power to run into tyranny, is illustrated by Macquarie himself. He had prohibited the entrance of strangers within the government grounds, and to detect the offenders stationed constables on the spot, who lay in ambush: three men and two servant girls were captured and committed. The next morning, the men each received twenty-five lashes, by the written order of the governor: the women were detained in the cells for forty-eight hours. There was no appeal to law; and the sole actors were the governor and the gaoler. A process so simple was no longer to be tolerated: the public were alarmed.[103] The assumption of magisterial powers was not compatible with the office of the governor; but to authorise the flagellation of free men without trial, for a perhaps innocent trespass, was both dangerous and unjust.

      This was, perhaps, the last instance of such extravagant despotism, and it exposed Macquarie to much inquietude during his life. That a person so humane in his general character should forget the precautions due in equity and in law, and punish arbitrarily for imaginary offences, proved that no power is safely bestowed, unless its objects and extent are minutely defined.

      The civil, called the "Governor's Court," was instituted by George III. in virtue of his prerogative. It consisted of the judge advocate, and two inhabitants chosen by the governor: it was empowered to decide in a summary manner all pleas in relation to property and contracts, and it granted probates of wills.

When convicts contracted pecuniary obligations, the governor specially withdrew them from liability to arrest; and told the creditors that in trusting these debtors their opinion of their honesty must be their sole guarantee: government could not spare "the servants of the public" from their toils to answer the plaints of suitors.[104]

      From its decisions, a cause could be carried to the governor; and in sums exceeding £300, to the king in council.

Though unsanctioned by an act of parliament, this court departed widely from the practice of England. Its authority was keenly disputed by Bentham; and Commissioner Bigge, in stating its origin and operation, hints a similar doubt.[105]

Undisturbed by objections the crown, by the patents and commissions of 1814, separated the criminal jurisdiction from the civil, and created a supreme court, which adopted the English practice. By the new patent, an appeal was permitted from the supreme court to the "High Court of Appeals," consisting of the governor and the judge advocate; and, except when £3,000 were in issue, his judgment was final![106] To both these tribunals the Tasmanians were amenable; but in civil cases the appointment (1814) of a local court under the deputy judge advocate, terminated the absolute dependence on Port Jackson for judicial relief. Plaints for debts not exceeding СКАЧАТЬ