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

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СКАЧАТЬ while Judge Pedder ruled that the petty juries were illegal, at New South Wales they were sitting under the sanction of the then superior authority. That the decision of our supreme court was a more correct interpretation of the intentions of parliament, is scarcely to be doubted; but the words of the act did not necessarily extinguish a common law right, and the intention of legislators is not law. The decision of Forbes was more agreeable to Englishmen, though scarcely compatible with the condition of the country.

      The treatment of Mr. Gellibrand, the attorney-general, who was dismissed from his office by Arthur, for unprofessional conduct, excited great interest in the legal circles of Great Britain. The disagreement sprang chiefly from a trial, Laurie v. Griffiths, characteristic of the times. The plaintiff sued for damages for the illegal capture of a vessel of 12 tons, of which he was the owner and master. The vessel, called the Fame, was found by the brig Glory in Twofold Bay. Griffiths, the owner of the Glory, invited Laurie on board, and made him prisoner. He then boarded the Fame, deprived her of charts and compass, and amidst the shouts of his seamen fastened her to the tail of the Glory. In this condition she was carried triumphantly towards Launceston; but a storm arising, the Glory encumbered by the Fame, cast her adrift, when she was exposed to great danger. The prize-master ran her on shore, and the party wrecked, after fourteen days journey through the woods, reached George Town. The justification pleaded was that the plaintiff had conveyed prisoners from Port Jackson, and was liable to forfeiture; that he had embarked in an unlawful voyage, and intended to visit Launceston to circulate forged paper. No proof of these assertions was offered, and the jury granted £460 damages; a verdict which the government found no occasion to disturb.

      Mr. Gellibrand, upon the close of the action, was called to account for mal-practice. Mr. Dawes, an attorney, presented a statement to the governor, which was forwarded to Judge Pedder, who returned it as not within his province. Mr. Alfred Stephen, therefore, brought the complaint formally before the court, and moved that Gellibrand should be struck off the rolls. The main question was this: whether a barrister holding a general retainer could, without license, advise the opposite party, or whether he could draw pleas for both. It was maintained by Mr. Stephen, that the practice was dishonorable and dangerous: in the early stages of a cause facts might become known to a barrister, which would make him a formidable antagonist to his former client. He asserted that whether the practice were common in England or not, it was detestable; and if allowed, would compel him to relinquish the profession, "or seek an honorable pittance elsewhere."

      In the case of Laurie v. Griffiths, Mr. Gellibrand had drawn the pleas for the plaintiff, and afterwards acted officially against him; he, however, transferred the fee he received to Mr. Stephen, when he was compelled to relinquish the cause. The profession, almost unanimously, asserted that the custom of the English bar warranted the practice of Gellibrand. The judge stated that he was not concluded by the custom of the English bar, and that the court might treat as a contempt a practice tolerated at Westminster: he considered the custom pernicious, but dismissed the case, and left the governor to act for himself.

      The appeal of Mr. Gellibrand to the profession perfectly vindicated his conduct. It was found that the first counsel in England often acted against a retaining client, and sometimes drew pleas on both sides. Thus, in a question of a right of way, the same counsel drew the declaration, the plea, and the replication. However objectionable at first sight, where legal technicalities are so fatal to even a right cause, it would be no small hardship were an opulent person permitted to engross the legal talents of an island, and exclude his antagonist from the possibility of obtaining justice. The excitement occasioned by this dispute was of long continuance, and motives were freely imputed.

      Although the chief justice dismissed the motion of Mr. Stephen, the governor determined to press the charge, and appointed a commission of enquiry. Additional matter was urged: it was said that Gellibrand advised a client to enter an action against a magistrate, whom his office might oblige him to defend, and that his intimacy with Mr. Murray did not become his relations with the government. Mr. Sergeant, now Judge, Talfourd regretted that by quitting the commissioners appointed by the governor, he had damaged his case. The crown had a right to dismiss; but he was clearly of opinion that the proceeding of the local officers was the effect of either "malice or mistake." The charges of professional malversation he pronounced too absurd for notice; that the practice was not only allowable but often imperative.

      Mr. Stephen, on his passage to this colony was involved in a quarrel, which ended in an assault. On his action he obtained £50 damages. His bill of costs, twice that amount, was published, to contrast with the professional scruples which inspired his opposition to Gellibrand. This bill consisted of one hundred and twelve items, among which the following: "to instructions for replication," "for brief," "retaining fee." Many other such payments of self to self, passed the taxing of the master. After paying actual expenses, Mr. Stephen, however, handed the surplus to a chanty.

      The master of the supreme court arrived in October, 1824. This gentleman was the brother of the late William Hone, a party writer of great celebrity, whose opinions in early life were extreme, both in reference to politics and religion. For publishing parodies, which employed the language of the Common Prayer as a vehicle of political complaint, he was tried by Lord Ellenborough. His fame was greatly increased by the pertinacity and skill of a successful defence. He afterwards wrote the Day Book, a work of ability and research; and in the last years of his life he embraced the faith, and died with the reputation of an ardent christian. Joseph Hone, Esq. succeeded Mr. Gellibrand. The uniform gentleness of his character has been respected by the press: he is mentioned only to be praised.

      The arrival of General Darling was a time of festivity: he proclaimed the independence of the colony on New South Wales, December 3, 1825. While present, he was entitled to govern; but when he set sail, Arthur, who had been addressed as "Your Honor," assumed the authority of governor-in-chief, and, responsible only to the home-office, became "His Excellency." The colonists were less delighted with the possession than the prospect of a chief governor; although the spirit of General Darling was not more favorable to the enlargement of their liberties.

      The legislative and executive councils were appointed, consisting of officers of the government: among them, it is said, a relative of Spencer Perceval, the statesman. He had been nominated to an office in this colony, but he never arrived; his name is, however, second on our first list of legislators.

      The division of the island into police districts, subject to a stipendiary magistrate (1827), brought the prisoner population under the more direct control of the government. It was a great improvement in the internal discipline of the colony. Gentlemen, themselves masters, were liable to the bias of a position full of vexation and disappointment, and less favorable to a cool and impartial administration of justice. The executive revised their sentences, and thus reflected on their judgment. Nor were they willing always to spare the time required by a patient investigation, or to distinguish between a frivolous and a proper defence. Some curious examples of magisterial equity are often told: one rose from the bench, when he heard his waggon in the street, and delivered his sentence in his progress towards the door—"I can't stop: give him fifty." A cattle stealer owed his life to the same impatience of enquiry: before the charge was half investigated, the magistrate said, "give him fifty"—an easy compromise with the hangman. A reverend gentleman met a party of men brought up for disobedience: he sent them back, with "ah, well, give them five-and-twenty all round." It was common to send a note with the man whom it was intended to punish: he was flogged, and sent back. A man, suspecting the contents of such a missive, gave it to his fellow-servant, who was flogged in spite of his protests. Another, who had been on a similar errand before, returned next day to his master, complaining bitterly of his suffering; but he had destroyed the note and eluded the triangles. Such eccentricities of justice could not last beyond the rudest era.

      The site of the capital narrowly escaped a second change. The commissioner, Mr. Bigge, considered that the seat of government should be fixed nearer to the source of the river Derwent. Brighton was nominated СКАЧАТЬ