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

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СКАЧАТЬ by this court, and creditors contrived to bring their claims within its jurisdiction, by dividing the amount into bills of £50. This evasion of the law, although it defeated the intention of a superior court and lessened its business, was useful to both parties; it decreased the difficulty and expenses of suits. It was more equitable in its operation than the supreme court: the owner of a vessel could carry up his own witnesses to Sydney, and at the termination of a trial convey them home without delay; but the less opulent debtor or creditor found himself practically excluded from redress.

Mr. Judge Abbot was, however, not eager to assume his office, and it was not until 1816 that he commenced operations. The accumulation of debts must have been great, for at his first session fourteen hundred plaints were entered: nor did he exhaust the suitors by delay, for eleven hundred were disposed of during that year. Two inhabitants, chosen by the governor sat as assessors; and being known, and knowing all parties, they often discussed in private beforehand the causes awaiting their verdict![107]

      The deputy judge advocate held in contempt the net-work of the law, by which equitable rights are sometimes entangled: his was a court of request without appeal, and he took pleasure in asserting its finality. For the convenience of suitors he allowed agents to practice in his court: these gentlemen had somewhat more legal knowledge than the judge, and often exasperated his antipathies by its ostentation. They would dwell on the dignity of his court: his decision was irrevocable; even the lord chancellor of England, they would say, was subject to the revision of a still higher court than his own, but the deputy judge advocate decided the cause for ever. Trusted with such resistless jurisdiction—such onerous responsibility, how great must be his care to avoid an error beyond correction—an injustice that could not be undone but by an act of parliament! Such were their addresses: occasionally heard with complacency—and, it is said, not always unsuccessful. The most famous of these practitioners were Messrs. R. L. Murray and Evan Henry Thomas. The last gentleman was an emigrant, and issued a rhetorical advertisement for employment as a preceptor; but renouncing that calling, he provided himself with a blue bag, the sole qualification essential, and paraded the vicinity of the court: here some suitor found him. What he wanted in experience he made up by industry; and thus carrying his cause, established his reputation as a pleader.

      Abbott was a lover of fair play: when one of these gentlemen stated a cause, he expressed a wish that the other side could be placed in as clear a light. Willing to show how well he comprehended the case, the agent for the plaintiff set before the court what the defendant might allege; and Abbott, admitting its force, determined in his favor! The equitable judge decided that the plaintiff should pay the defendant the unsought balance of his bill.

      On such a primitive plan were minor rights protected. Although the decisions were often grounded on imperfect proof, the substantial equity of Abbott's adjudications was rarely questioned. In cases under £5 the court received no fee, but in higher causes a small sum was paid. The agents obtained what they could, as the recompense of their professional toils.

      Major Abbott continued to preside as deputy judge advocate, until his office was abolished. After visiting England he returned to Launceston with the appointment of civil commandant. He died in 1832: the inhabitants spontaneously honored his funeral. He was esteemed as a person of a generous nature and upright intentions. Major Abbott entered the army at the age of thirteen: he was in the service of the crown fifty-three years, forty-three of which were spent in the colonies.

      FOOTNOTES:

      [77] 14 Geo. iii. c. 83.

      [78] "Whereas it may be found necessary that a colony and a civil government should be established, and that a court of criminal jurisdiction should also be established, with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof." The court, described as above, is then authorised, to try "outrages and misbehaviours, as if committed in this realm would be treason or misprision thereof, felony or misdemeanour."—27 Geo. iii. Nothing is said of legislative power.

[79] Collins, vol. i. p. 32.

[80] Bigge's Jud. Report, p. 34.

[81] Holt has left a graphic picture of a justice, which must be received, perhaps, with some reservation;—"I was walking with Barrington, the most accomplished pickpocket: he was arm-in-arm with Richard Atkins, Esq. I wished to have some conversation with them. A bottle of rum was produced, and some pleasant conversation about Ireland passed. At length I wished to retire, and Mr. A. said he never allowed any bottle off his table till he saw it emptied. We finished the half gallon bottle, and of course were not a little elevated. Mr. A. acted as a kind of deputy, when Judge Dore was not able, which not unfrequently happened: when spirits were plenty in the colony, he was generally indisposed." Mr. Croker adds, that "Atkins was appointed as a substitute to Collins in 1796, by the secretary of state, until the arrival of Mr. Dore in 1797."

[82] Bigge's Jud. Report, p. 2.

      At Norfolk Island a court of criminal jurisdiction departed still further from the precedents of civil justice. An act authorised the government to convene a court of four military or naval officers, to decide on questions of life and death, even when free men were implicated.

[83] "Yesterday, the bench assembled, when a free man, formerly belonging to Fort Dalrymple, was found guilty of stealing a silver watch from George Guest, jun., his property, and sentenced to labor for the government for the term of five years, and moreover to receive 500 lashes."—Derwent Star, Feb. 6th, 1810.

[84] Holt's Memoirs, vol. ii. p. 202.

[85] Such punishments were not always unmerited, but they were capricious. A magistrate tied a carter to the wheel of his waggon, and inflicted 300 lashes for cruelty to his bullocks; but Dr. Montgarret ordered the blacksmith to be flogged, for presenting his bill!

[86] Mann's Picture of New South Wales, 1811.

[87] Bentham's Plea.

[88] Bigge's Jud. Report, p. 17.

[89] Ibid.

[90] Bigge's Jud. Report, p. 6. Wentworth, p. 43. edit. of 1820.

[91] Bigge's Report, p. 48.

[92] Macarthur's New South Wales: its present state and future prospects, 1837.

[93] Bigge's Report.

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