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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 habits a better guarantee for the legality of their administration.[81]

The minor offences of prisoners passed under the summary adjudication of magistrates. They often indulged in the lowest humour or furious passion: they applied torture to extract confessions, and repeated flagellation until it became dangerous to life.

The long delay of legislative remedies, when omissions and defects were discovered, is a proof of ministerial indifference. The crown provided a court of criminal jurisdiction for Port Phillip: the jurisdiction was strictly local, and the judge advocate ceased to act when Van Diemen's Land was occupied; but twenty years elapsed before the deficiency was supplied. Again, the criminal court of New South Wales was limited to islands adjacent to the eastern coast.[82] The discovery of Bass's Strait proved that Van Diemen's Land was not included in this geographical definition, and the scrupulous or idle judges for a long time evaded the holding of courts in this island, which was thus surrendered to disorder. In the absence of a legal court, the magistrates set up a jurisdiction of their own. Criminal trials were dispatched by the simplest process, and the mixed penalties of a military and civil court inflicted on the assumed offender.[83] Thus, the negligent provision for the administration of justice secured impunity to crime, or seemed to require an arbitrary tribunal.

The proclamation of martial law, was to relieve the government from the restraints of forms. The facility with which justice could be administered by it, was illustrated at the Castle Hill insurrection: no life being lost on the government side, the victorious troops arranged that every third man convicted should be hanged. They drew the names of the sufferers by lot, and were proceeding with great vigour, when the appearance of the governor suspended the execution.[84] The dangerous usurpation in both Norfolk Island and Van Diemen's Land, led to the hasty sacrifice of life.

The scarcity of corn was once deemed a sufficient justification, when there was no appearance of sedition: at these times the government seized boats, or whatever was deemed useful for the public service, and imitated the most irregular actions of the Stuarts.

The subordinate authorities were supposed to partake the license of their superiors. One commandant, Colonel Geils, fixed a spiked collar on the neck of a free woman; another flogged a female through Hobart Town for abusive language; and another tied up a free man on the spot, for placarding a grievance, when as yet there was no press.[85] Davey, having ordered a person to the triangles, answered his remonstrances with a pleasant jest: the sufferer reminded him that he could not flog him; the governor answered that "he would try," and the flagellator soon determined the problem in favor of authority. Indignant exclamations of free men were deemed preposterous by a body of officials, who regarded the diffidence of civil government as absurd, and considered power as the standard of right.

The administration of justice is described by a work of the times:—"I have known," wrote a contemporary witness, "men, without trial, sentenced to transportation by a single magistrate at his own door: free men, after being acquitted by a court of criminal judicature, banished to another of the dependant settlements. I have heard a magistrate tell a prisoner (then being examined for a capital offence, and who had some goods, supposed to be stolen, for which he would not account), that were he not going to be hanged so soon, he (the magistrate) would make him say whence he got them. I have known depositions destroyed by the magistrate."[86]

The courts were limited by the laws in force within the realm, but the realm was not defined;[87] and thus what portion of the law was applicable, was left in thirty years' doubt, until the commissioner royal stated that the omission had prevented several executions.[88] The same number of years were required to ascertain whether laws passed in Great Britain subsequent to the era of colonisation were the laws of the colony.

Law officers of the crown were permitted to define authoritatively the import of acts of parliament, and on their official decisions the colonial judge convicted, and the governor executed a criminal.[89]

The persons commissioned as justices constituted a court in avowed conformity with such tribunals in England, but they adjudicated on the orders of the governor, and inflicted the penalties he appointed; though the supreme court, sitting concurrently with these "benches," rejected the legislation of the governor as invalid, when the basis of an action: one judge supported them by his moral countenance, although he knew them to be without legal authority.[90] Judge Advocate Wylde, however, declared the legislative authority of the governor equally binding with acts of parliament—a doctrine never surpassed by the most subservient advocates of an unlimited monarchy.[91]

The crown authorised the governor to grant remissions, but while he omitted the formalities requisite to perfect those pardons, the minister neglected to require them. For thirty years the error was undetected, and until a fraudulent creditor evaded a bill due to an emancipist; but several years were allowed to pass, even when the mistake was discovered, before it was fully corrected.

The ministers authorised the governors to grant land to settlers. For forty-six years these delegates divided the domain of their sovereign, as if it were his personal property, and without the consent of parliament, when a court of this colony decided that all such titles were void in law, whether acquired by purchase or under the old quit-rent tenure.[92]

Above two hundred thousand pounds had been levied by successive governors since the illegality of taxation was first submitted to the notice of the cabinet. In gathering this money, not only had property been seized, destroyed, and confiscated, but many persons had been imprisoned, and suffered all the miseries of felon bonds: yet when arrears, which the indulgence of the government had permitted to accumulate, were made a subject of legal procedure, the whole fabric of taxation and legislation by the governor's will, fell down.[93]

The judge of the supreme court could not be insensible to the serious personal responsibility of longer supporting illegal taxation: he privately admonished the governor, who withdrew his actions. An act of indemnity released the ministers who advised, and the governors who enforced their demands, from the punishment of usurpation; and granted them power to do by law, what in defiance of law they had done so long.[94]

Ingenious aggravations were made to the common penalties of a crime: Collins relates that a witness convicted of perjury, was condemned to the pillory: his ears nailed to the post as an additional punishment.[95]

The courts of those times confounded everything together, and deciding the perjury of a witness, often tried two parties at the same moment. Flogging witnesses was an ordinary result of investigations, when they did not end in convictions: so late as 1823, Judge Wylde ordered a witness to be taken outside, and receive instanter one hundred lashes.[96]

The long privation of this colony of judicial protection, not only hindered the due administration of justice, but encouraged imprudence and fraud. In the year 1814, when the crown erected a supreme court at Sydney for the decision of civil causes, 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 £50 were entertained 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.