Читать книгу History of Tasmania - John West - Страница 31
ОглавлениеSECTION V
Under the former act, the attorney general could refuse to file a bill, and exercised this discretion in a case of libel. The new law authorised the court to permit an information to be exhibited by any person, and the attorney general was bound to indict, except in felony or capital prosecutions. Mr. Jennings, a solicitor, claimed the interference of the court against the attorney general, Mr. Montagu. Savery, who was transported for forgery, was sued for a debt; but Mr. Montagu, who had been a passenger with the debtor's wife, and felt interested in his welfare, stayed proceedings by verbal guarantee. When Jennings attempted to enforce the agreement, Montagu replied that he was more to be affected by the sun than the wind; and added, "I know how to defend myself against a person ten times more able or wicked than yourself." The judge decided that the attorney general was not bound to sign a bill of indictment against, or to prosecute himself.
The indemnity due on a returned bill of exchange was decided by the court (1826), on a friendly suit, Cartwright v. Mulgrave, at the expense of the merchants. It was deemed proper to give a high compensation, both to solace for disappointment, and discourage a careless issue of bills. The plaintiff paid £112 currency for £100 sterling, calculating that £120 currency would be required in London for the £100 sterling. The assessors fixed 25 per cent. to cover all losses, and the sum has been allowed by the supreme court on all similar cases to this day.
Captain Dillon, of the Research, East India Company's ship, the discoverer of the relics of La Perouse, visited Hobart Town. He was prosecuted for assault and false imprisonment by Dr. Tytler, a gentleman commissioned by the Asiatic Society to conduct the scientific enquiries the voyage might favor. He was seized, confined to his cabin, threatened with the lash, and guarded by New Zealand savages, among whom were two, called by Dillon Prince Brian Boru, and his Excellency Morgan M'Murrah, who espoused the quarrel of the captain, and offered to grill and eat the unfortunate physician. The jealousy and violence of Dillon strongly indicated insanity, and Dr. Tytler represented his fears to the second in command. This opinion became known to the captain, and led to the assault and imprisonment, from which the doctor was released by a writ of habeas corpus. The chief justice, in pronouncing judgment, explained the absolute power and stringent responsibility of a captain in the management of his company, and sentenced Dillon to fine and imprisonment: the latter was remitted, in consideration of his enterprise.
The public treasury was robbed of £1,400 (1827). The thieves entered at night, while the sentinel was on guard, and the rifled chest was found hidden under a tomb in the adjacent burial ground. Three persons, and the sentinel, were tried for the offence; but on the second day, the crown prosecutor was not in his place. This truant lawyer was enjoying a breakfast, while the court and prisoners were watching the door of entrance. The patience of the judge gave way, and he directed a verdict of "not guilty" to be entered. The crown relieved the treasurer from his responsibility for the loss.
The case of Isaac (Ikey) Solomon, a noted receiver, occasioned a long discussion of great colonial interest. This man having been committed for trial, escaped from Newgate; but his wife, implicated in the same transaction, was transported. A short time after, he appeared in Van Diemen's Land, under the name of Sloman, and applied for his wife as an assigned servant: to this the governor consented, but transmitted to England an account of his presence. Towards the close of 1829, a letter, enclosing an affidavit of Mr. Wontner, the governor of Newgate, was addressed by the secretary of state to the governor, directing the arrest of the fugitive. A consultation was held at the secretary's office, to which Mr. Gellibrand was invited, who declared that the instruments forwarded were insufficient. A warrant, however, was issued for Solomon's capture, and he was lodged in gaol. On the application of Mr. Gellibrand, the supreme court granted a writ of habeas corpus, and the question arose whether a colonial secretary had power to act under instructions from the secretary of state, and without examination transmit a person, on a presumption of guilt, over half the globe. The judge admitted that the boasted liberty of the subject would be a delusion, were such powers vested in the local authorities. After a lengthened research and repeated hearing, he was unable to find a precedent, or to solve the difficulty of a case so new.
Mr. Montagu, the attorney-general, maintained that the writ had been improperly granted; that on the face of the warrant there was no illegality. The chief justice, however, was dissatisfied, and desired proof that the secretary of state could grant a warrant without sworn testimony in cases of felony, and that Mr. Burnett, the colonial secretary, possessed the same powers. Mr. Montagu, who had recently suffered ill health, refused to argue the question; and to the complaint of the bench replied with asperity. The chief justice still urged that he had received no assistance on the part of the crown. Montagu rejoined, that speaking not as attorney general, but as an advocate, he repelled such assertions. "I will not," said he, "allow your honor, or any man in Christendom, to dare to make such observations without repelling them." The caution of the chief justice was extremely gratifying to the colony. The arrest went to the foundation of personal freedom, and assumed a power capable of great error and perversion.
In this case there was no danger of mistake; and the governor, having no doubt of the prisoner's guilt, determined he should not escape: Mr. Capon, the chief constable, cut the knot by putting Solomon on board a vessel, and conveying him to England. The adventure was barely successful; Solomon was acquitted on the greater part of the indictments. The legal claim of parties to the plunder found on his premises could not be established, except by his conviction.
On a trial of Salmon and Browne, for a murder at Macquarie Harbour (1829), a military jury exhibited that institution in no pleasing form. They disagreed on their verdict. Lieutenant Matheson conceiving that the facts did not sustain the indictment, declined to convict. His co-jurors were unanimous; and after three days and nights resistance he submitted. On the Saturday evening the men were sentenced, and executed on the Monday following. Their confession left no doubt of their guilt: they had committed murder that they might escape from misery; but they asserted that the principal was Browne, and the accessory Salmon—the reverse of the indictment. During their long consultation the jurors were allowed refreshment; but on the Friday evening several resolved to elope: at a late hour they broke past the astonished constables, and returned to their homes. They were, however, recalled by the sheriff, and kept under stricter watch until the trial ended.
Amusements of the turf, officially patronised in other countries, were discouraged in this. From an early date, occasional matches were made for large stakes; but in 1827, races were regularly established at Ross. The course was lined off, a stand erected, in which about fifty well dressed persons were spectators. The riders were equipped in different colored clothing, and as they darted along, obscured at intervals by foliage, the scene was picturesque and animated. A race was contested by Messrs. Gregson and Hardwicke, which the latter lost. A public dinner followed; but the waiter was blindfolded, and his pudding stolen as he entered the tent. The hats and coats disappeared; and one cavalier was robbed of his boots. "These things," said the reporter, "are fraught with discomfort, and disgraceful in themselves:" an opinion which time has not shaken.
Arthur probably had no great taste for such pleasures; but he ascribed his unwillingness to support them, to their tendency to excite the prisoner population, and seduce them into disobedience and crime. No regulations or punishments could hinder their haunting the tents, or deter them from intemperance and consequent miseries.
Happily dissention disappeared in the presence of distress. Arthur's name is on the list of subscription for the family of Captain Laughton, who having lost his property by shipwreck and fraud, was drowned on the coast. Governor Arthur gave twenty guineas, and thus fixed the high scale of colonial benevolence, which no vicissitude of public affairs has abated.
The largest private subscriber was Captain Carne, of the Cumberland; not less unfortunate than Laughton. When no tidings were heard of the vessel, it was supposed she had foundered; but in the year 1828, Captain Duthie, of the Bengal Merchant, threw light on her fate. He had found the Clarinda, Captain Crew, at Rio, who had been boarded in lat. 8° S. The pirates chained him to the deck while they robbed the vessel: he saw a bucket, on which he could trace the word Cumberland. Some of the pirates proposed that Crew should walk the plank, but were resisted by the Captain. A little black boy, shipped by the Clarinda at the Cape de Verde Island, remembered the pirate vessel as often seen in that port.
In what form the Cumberland perished is not certainly known. Pirates executed in England for other crimes, were supposed to be guilty of this: more than a hundred and fifty persons perished by their violence. Some they cut down, and others they cast overboard. They were driven to the port of Cadiz by a storm, and attempting to negociate a bill they were detected. A ship of war conveyed them to Gibraltar, where several suffered; others were forwarded to England, and condemned there. The story of the capture was long a standing topic in the unarmed merchantmen that passed her track. As the emigrant, even now, approaches the supposed latitude, he hears with bated breath the fate of the Cumberland, whenever a strange sail darkens the horizon.
