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.
FOOTNOTES:
[Footnote 154: _Report of the Lords of the Council_, May, 1849.]
[Footnote 155: Despatch, 1828.]