The case of Mr. William Bryan was before the public for many years. Mr.
Bryan was an enterprising settler, and owned 11,000 acres and extensive
herds, and was engaged in many speculations of public utility. He
erected a valuable mill, and under his auspices a company was formed,
which purchased a steam vessel. She was brought to the colony by Captain
Alexander Wales: when, however, he arrived, the project was defeated by
the altered position of Mr. Bryan's affairs.
Samuel Arnold, a herdsman of Mr. Bryan, was convicted of cattle-stealing
(1833), and sentenced to death. The police magistrate, Mr. Lyttleton,
who committed him for trial, alleged against his master a culpable
incaution, and Judge Montagu uttered a severe censure from the bench on
the same account. Mr. Lyttleton, on going outside the court, addressed
several gentlemen, of whom Mr. Dry was one. He remarked, that though the
man was sentenced to die, he would do his utmost to save his life; and
added, that another person ought to be standing in his stead. This was
supposed to refer to Mr. Bryan, who deputed a young friend, Mr. Lewis,
to demand an explanation, or appoint a meeting. Not only did Lyttleton
decline this, but he transmitted an account to the government, and the
attorney-general prosecuted Lewis for endeavouring to provoke a duel.
Mr. Bryan now appealed to the public, and tendered his resignation as a
magistrate: he complained that he had been calumniated, and satisfaction
refused. Arthur rejected his resignation, and dismissed him from the
commission of the peace; and instantly recalled his assigned servants,
twenty-two in number. Thus deprived of laborers, in the midst of
harvest, his crops rotted on the ground; and his stock neglected, became
diseased and were scattered. He was indebted to the sympathy of his
neighbours, and to the extent of his wealth, that his property was not
destroyed, and his credit wholly subverted. The effects of this measure
were disastrous, and excited general distrust.
Bryan ascribed his treatment to an early difference with Arthur. The
land he obtained on his arrival was less than he claimed, and he
appealed successfully to the secretary of state; but he was told by a
friend of the governor, that this was an offence not to be pardoned: no
man could appeal against Arthur with final impunity.
Mr. Bryan was not altogether a martyr. He received upon the whole 4,000
acres of land; and in a letter to Arthur, he wrote:--"Permit me to
return you my sincere thanks (as much for the manner as the matter) of
your very kind letter of the 11th instant. To the same principle of
impartiality which you have evinced in my cause, I leave the increase of
my grant, resting quite satisfied that if my exertions deserve it they
will be rewarded."[191] Mr. Bryan had then received 1,500 acres; he
afterwards received 2,500.
Mr. Bryan instituted an action against Mr. Hortle, the agent of
government in the recall of his servants. The issue depended greatly on
the manner of trial--whether by assessors, or a jury of twelve. The
court possessed a discretion. The law officers asserted, and the judges
allowed, that the colonists were disqualified by common interest to form
an impartial judgment, and a jury was refused. Bryan then dropped the
action, which he objected to entrust to assessors, directed perhaps by a
member of the executive: for the same reason he withdrew his proceedings
against the police magistrate for defamation of character. He returned
to England: sought redress from the ministers, but in vain. On this
case the opinion of impartial persons can hardly err. Yet the right of
the governor to withdraw men, though not to be exercised in a wanton and
destructive manner, was hardly to be disputed. The opinion of the
English law officers of the crown favored that view, although it would
be dangerous to take their version as decisive. "We," say they, "are
clearly of opinion, that under the 9th section of 9th Geo. iv. c. 83,
governors can revoke assignment of a convict, of whose sentence it is
not intended to grant any remission; and we think there is nothing
against the apparent policy of the act which militates against that
construction."
For carrying a challenge to Mr. Lyttleton, Lewis was put on his trial.
The conventional turpitude of the offence wholly depended on the
provocation. A magistrate could not be covered by his privilege when
standing in the street, and announcing his opinions to the loungers
there; but Lyttleton, himself the sole witness, denied the words
imputed, and his cross-examination was impeded by the court. Lewis read
a written defence, and reproached the attorney-general with prosecuting
an offence recently committed by himself: for this the accused was fined
£10 by the judge, who advised him to retire and revise his notes. On
resuming his speech, he was again stopped and fined. Complaining that
the course required by his defence was unjustly obstructed, he became
silent. A military jury found him guilty; and the judge condemned him to
pay £150, and suffer an imprisonment of eighteen months.
The aspersion of the character of a magistrate by an imputation so
serious, was the sole alleged justification of the challenge. The words
attributed to the police magistrate, Lyttleton, he had denied; but, on
his return home, became convinced by the testimony of Mr. Dry, sen.,
that he had sworn falsely. He communicated this impression to the
attorney-general, but without result.
The conduct of Judge Montagu, on the trial of Lewis, was represented as
harsh and captious; but was explained by subsequent disclosures. A
clever barrister, who secretly advised the accused and framed his
defence, went into the judge's room, before the sitting of the court,
and in conversing with Montagu intimated the very improper course Lewis
intended to take. Montagu replied, he would certainly fine him. It was
under these suspicions, that he began the trial: he was thrown off his
guard, and the prosecution involved in an irreparable mistake. When the
court sat to sentence the accused, the lawyer was there to urge the
illegality of the conviction.
Lewis complained to the secretary of state, who referred his case to the
law officers of the crown, who asserted "that it is an unwarrantable
proceeding, on the part of a judge, to fine an accused party for saying
anything which he may consider essential to his defence, provided it
shall be consistent with public decorum." The secretary of state
directed compensation: this, a board estimated at £1,700. The governor
was, however, desirous of depriving Lewis of the indemnity, and the
legislative council resolved, seven to four, that the observations of
Mr. Lewis were not within that qualification; and requested that, if the
secretary of state persevered in his determination, he should pay the
complainant from the land fund. Such resistance was obviously official,
and without moral weight, and the money was eventually paid.
Several months after the departure of Mr. William Bryan for Great
Britain, his nephew, Mr. Robert Bryan, and another, were charged with
cattle-stealing. The constables who professed to watch the prisoners,
alleged that they saw the animal in question driven homeward by the
accused, and on the second day following discovered the skin thrown into
the scrub. Witnesses contradicted the constables, who were all prisoners
of the crown, in some material points. The young man was sentenced to
death. The capital penalty was not inflicted; but it was the popular
notion that he was the victim of a conspiracy.
The young man, Robert Bryan, was tried on two separate indictments, and
such was the evidence, that many unprejudiced persons concurred in the
verdict: yet the witnesses against him were open to suspicion. It was
commonly asserted that he was sacrificed; if not by the contrivance,
with the concurrence of the government.
The trial was reported by the _Colonial Times_. The editor, Mr Henry
Melville, pointed out in strong language the suspicion of unfairness;
the dependence of the jury; the presence of the governor at Launceston
during the trial; the infamous character of certain of the witnesses;
and the overruling a challenge of a juror by the prisoner. The remarks
of Melville were carried beyond the tolerated bounds of public
criticism; the attorney-general, Stephen, induced the court to issue an
attachment. The defendant was required to admit the authorship: this
being done, the judge whose conduct he had censured pronounced the
sentence.[192] To judge, condemn, and imprison, at once and by the party
offended, included all that tyranny could ask. Any reference to the
proceedings of a court, which the judge might choose to pronounce a
libel, might consign to perpetual imprisonment. A similar case, at
Newfoundland, was discussed in the House of Commons, and the ministers
joined the opposition in severely reprehending the practice. The papers
published the debate, and Arthur slowly obeyed the signal, and gave
Melville his liberty.
Motions for attachment have not often disgraced the administration of
justice: they are relics of barbarous times. This process was issued
against Fawkner, the editor of the _Launceston Advertiser_, who escaped
by an apology; and it was moved for by the attorney-general, Stephen,
against Murray and Melville, for calling an affidavit of the
solicitor-general--to the effect that a fair trial could not be obtained
in Bryan's case with a colonial jury--"an extraordinary document!" The
judges dismissed the application, when Stephen remarked, that he
"thanked God he despised the observations, as well as the scoundrel-like
motives which influenced them."
The intermixture of cattle of various owners, in the extensive forests
belonging to the crown in the northern districts, afforded opportunities
for plunder, and frequently occasioned disputes and quarrels. The
herdsmen were often careless and dishonest, and their masters were
liable to share the reproach of their mistakes or guilt. The marks
distinguishing such property easily escaped the memory: it was often
left to the choice of the magistrate to commit for felony, or resign the
dispute to a civil tribunal.
The constabulary were mostly prisoners of the crown. Their office
entitled them to an earlier attainment of their liberty than other
convicts: the detection of a serious crime gave them claims for a still
quicker liberation; and the desire of freedom prompted them to lay
snares for persons suspected, and even to commit a crime that they might
charge it on the innocent. Thus, they would sometimes slaughter a
branded beast, and throw its skin on the premises of the selected
victim. Such atrocious wickedness was certainly not common, but that it
sometimes occurred is beyond all doubt.
Captain Serjeantson, of the 40th regiment, a gentleman connected with
several opulent settlers, was murdered (1835). The family collected
£500: to this the governor added £100 more, for the discovery of the
murderer, who was found to be Hunt, a bushranger, afterwards shot by a
small settler, and who dying confessed the crime. In this case, a
constable, Drinkwater, proposed to another to earn their free pardons.
The plan sketched was to deposit shot in the hut of a man at Campbell
Town, who was suspected, resembling that extracted from the body of the
deceased. A constable, invited as an accomplice, betrayed the project;
not, however, until the proof of its existence was indisputable. The
same constable had proposed to throw a sheep stolen from the flocks of
Mr. Willis, on the premises of a man, "on whom there was a down."
The intentional encouragement of perjury cannot be imputed to the
government; but necessity induced a most perilous laxity of feeling.
Thus on a trial, the judge not only stopped the case, but committed the
prisoner policemen for perjury: these persons were discharged by the
attorney-general, and established again as constables. Their oaths had
already produced several capital convictions, and they became qualified
to accuse and convict the most upright men. The ignorant police agents
considered that the successful prosecution of any person, regarded by
their officers with hatred, would entitle them to benefits; and even the
prisoners in service discriminated between those whom they might accuse
with impunity, and such as were protected by their connections. Nor was
this all: in the height of political excitement, a prisoner was arrested
in the neighbourhood of Mr. Gregson's dwelling, who avowed his intention
to assassinate that gentleman, in the expectation of a reward.
The affair of Mr. Bryan increased the anxiety of the colony to obtain
trial by jury, independent of the court and the influence of the
executive. By the custom of England, this privilege could only be
suspended by martial law, when the ordinary courts were closed: wherever
the authority of the crown was recognised, the accused was entitled to
trial by his peers. Nothing could be more alien from the habits of
Englishmen, than to lodge the functions of grand jury in the hands of an
officer of the crown, or commit life or liberty to the verdict of a
military jury. A paramount necessity required the practice for a time;
but a change was delayed, by the hesitation of the government, long
after the colonies contained a body of freemen.
The decision of Judge Forbes, instanced in a former page, which
determined that the common law right remained with the session of
magistrates, had been acted on for a time. Emancipists sat on these
juries, and exulted in the privilege. Their press, in publishing the
list, distinguished the members of their body by affixing stars (*) to
their names. The act of parliament (1828) set aside the interpretation
of the judge; but when it took away the common law right, it gave power
to the crown to authorise the institution of juries, at the discretion
of colonial legislatures. Thus an ordinance entitling to trial by jury
in civil cases, was established in New South Wales (1829). The chief
justice strongly favored the eligibility of emancipists, who were three
times more numerous than the immigrant population. The non-official
members of the council were generally opposed to their admission; but
the measure was carried by ten against five. Thus, although the trial of
criminal causes still remained with the military, the courts could not
withdraw civil wrongs from the verdict of civilians. By this act the
officers of government were liable to some responsibility, and in
several instances were cast in damages, notwithstanding the efforts of
the crown to defend them.
While civil jurors were confined to civil issues, they sat in the box
occupied at other times by the military jury. An officer had amused his
leisure, while sitting on a trial, by tracing caricatures of the civil
jurors, and writing libels on the benches. Thus insulted, they appealed
to the court for protection. The judge was unwilling to interfere; but
being pressed, remarked, that were the authorship traced to a military
juror, he would close his court rather than intrust to such hands the
administration of justice (1830).
The hostility of the opulent emigrants to the eligibility of emancipists
was intense and lasting. This was still more active when the trial of
criminal issues passed into their hands (1833). They asserted that the
criminal at the bar was too literally tried by his peers, and that
scenes disgraceful to public justice were enacted in the retiring room.
It required all the authority of the court to repress antipathies so
openly avowed. The rancour excited by this question is scarcely
credible: a gentleman addressed the judge from the box before he was
sworn, and asked if he was expected to deliver a verdict with twice
convicted felons? Appearances of partiality and corruption were quoted
to prove the pernicious effect of their admission. The magistrates,
usually hostile to the measure, returned as fit and proper persons,
those whom they knew would disgrace the box. Some flagrant cases were
exhibited as specimens of the whole: a juror, out on bail for
horse-stealing, resolutely acquitted another charged with
cattle-stealing, and was convicted himself. Thus, it was said, returns
to the summons of jurors, in one instance, was "hanged;" in another,
"transported for life."
These were certainly blemishes, but they were magnified into radical and
incurable defects (1835). The complaints of the gentry, induced Governor
Bourke to take the opinion of the judges and the law officers of the
crown: on the whole, they were fully satisfied with the result of the
law. It was remarked by a judge, that the accused would sometimes choose
a military jury, or a jury of twelve, according to the nature of the
offence: in cases of aggravated violence they often preferred a military
jury, but where conflicting testimony was likely to occur, they
preferred the greater number, only as less likely to agree. Forbes
stated that the chief difficulty was confining the juries to the
question of fact; but their verdicts had generally satisfied him. It was
the opinion of the judges, save Mr. Justice Burton, that trial by jury
had been too long deferred, and that benefit would result from its
unqualified adoption.[193]
In Van Diemen's Land, an ordinance was passed (1830), permitting the
judge to allow a jury in civil cases, whenever it was desired by either
party. The names were twenty-four: from these both parties struck out
six, and the remaining twelve were the jury. The first trial occurred
1830 (Butler _v._ Bent), in an action for libel, contained in a series
of letters written, or acknowledged, by Wells, an emancipist, and signed
"Simon Stukely." They were afterwards collected into a volume. The chief
persons in the colony were described with considerable spirit, but with
the usual injustice of anonymous satire.[194]
The danger to the fortunes of the people was more severely felt than the
peril of their liberty and lives. Thus a public meeting, demanding trial
by jury, was held in 1834: an address was presented to Arthur by a
deputation. In urging the amendment of the law, they referred to the
extraordinary powers possessed by the government. Arthur, in reply,
professed a liberal desire to gratify their wishes; but denied that he
possessed extraordinary powers, or that "they required to be watched
with more than usual jealously." He had, however, deferred the
establishment of British laws to the last possible moment, and certainly
possessed great powers; on the whole, more capable of perversion than
any ever known in a British colony.
The attorney-general, Alfred Stephen, was desirous of substituting for
the assessors a jury of seven, instead of twelve. His project was
opposed by Mr. Kemp, and indeed very generally disapproved. It was
argued, that the chances of influence multiply as the number of jurors
are decreased, and that the national practice was the only safe guide.
The amount of discussion that attended the dispute was prodigious:
pamphlets, and letters without end. The prejudice of the people was,
however, on the right side: although there is nothing sacred in an ancient
number, the retrenchment must have increased the facility of corruption.
The law, as it ultimately passed, removed the danger, by giving either
party a right to demand a jury; and to the party against whom the
application was made, a choice between a petty and special jury; but
three-fourths were taken as the whole, after six hours deliberation.
This act was framed in virtue of an order of council by the king in
1830. It provided that in criminal prosecutions where the governor, or
any inferior officer, civil or military, could be interested in the
result of a trial, a jury taken from the special jury list should try
the issue.[195]
To Arthur the colonists were not indebted: the secretary of state had,
long before, announced the determination of the government in favour of
the measure. It was not carried out until nearly four years after its
authorisation. The removal from the colony of the stigma of military
juries, was delayed until 1840, when the trial of crimes and
misdemeanours was entrusted to the hands of the inhabitants, and the
grand bulwark of public and private freedom raised in Tasmania.
The convictions for perjury were not numerous: the whole system partook
of the unsoundness of its elements, and the inhabitants were indebted
for their safety to those principles of humanity, which, in the absence
of interest and passion, regulated the measures of the government, and
restrained its agents from atrocious conspiracies.
FOOTNOTES:
[Footnote 190: Signed by C. Swanston, T. Anstey, J. Kerr, C. M'Lachlan,
R. Willis, W. A. Bethune.]
[Footnote 191: Letter produced by Mr. Kelsy, of the Colonial office.]
[Footnote 192: Twelve months imprisonment, £200 fine, and sureties in
£500 for two years.]
[Footnote 193: _Par. Pap._ 1837.
6th Geo. iv. c. 5, disqualified a person to serve convicted of any
capital offence, except free pardoned.
7th & 8th Geo. iv. c. 28. sec. 13, gave to a conditional pardon under
the sign manual the same effect as great seal.
In cases not capital, service had the effect of free pardon: 9th Geo.
iv. c. 32. sec. 3.
All the laws of England were adopted by the Act of 1828: thus the
disqualification for jurors, in cases capital, was taken away.
Judge Forbes stated, that in civil issues the juries had some difficulty
in comprehending the distinction between law and fact: _ad questionem
facti respondent juratores, ad questionem legis judices_.]
[Footnote 194: The original Simon Stukely was a quaker, who went to
Turkey with an intention of converting the Grand Turk: he narrowly
escaped decapitation, by the interposition of the English ambassador. He
was afterwards confined in an asylum: in answer to inquiries how he came
there, he replied--"I said the world was mad, and the world said I was
mad; and they out-voted me."]
[Footnote 195: Passed, 5th November, 1834.]