[135] Eye-witness.
[136] Mr. Fitzgerald, a respectable settler, speared by the natives (1831), was carried to his grave by his neighbours; but was indebted to a prisoner, sought out for the purpose, for the religious rites usual at funerals.
SECTION IX
On the 19th July, 1823, the British legislature enacted a law for the "better administration of justice in New South Wales and Van Diemen's Land, and for the better government thereof;" to expire at the close of the session of parliament, 1827. The old courts with their military functionaries were superseded,[137] and a supreme court erected; whose jurisdiction extended to causes, criminal, civil, and ecclesiastical. The judges were entitled to the powers and jurisdiction enjoyed by the courts of King's Bench, Common Pleas, and Exchequer of England; and to enquire into and determine all treasons or other crimes committed within the Indian or Pacific Oceans. The military jury of seven officers on full pay, were retained; but the court proceeded according to the forms of civil tribunals. The trial of civil issues was confided to the judge, and two justices of the peace chosen by the governor; the right being given to either party to apply to the court for a jury of twelve freeholders. The king was authorised to extend trial by jury at pleasure. Causes of more than £500, or a less sum with consent of the judge, were subject to appeal to the governor of New South Wales; and appeals in certain cases were allowed to the king in council. The rules of court were authorised by the king. Courts of quarter session, and of request for sums under £10, were established. The governor, with the advice of a council of five or seven, or the major part of them, was empowered to enact ordinances not repugnant to the laws of England. The duties levied under former acts were made perpetual, but the council were inhibited from imposing a tax, except for local purposes. The governor, with one member assenting, could pass any law: or, for the suppression of a rebellion, although all might dissent: and the king was empowered to enact an ordinance which the council might reject.
It was provided also, that the king might erect Van Diemen's Land into a separate colony: confer on the acting-governor, in the absence of the governor-in-chief, the various powers conveyed by the act; and, in that case, terminate the dependence of the supreme court on the court of New South Wales. On these extensive powers the checks provided were the requisite preliminary certificate of the chief justice, that the ordinances proposed were consistent with the laws of England, or the circumstances of the colony; the exposure of these acts on the table of the House of Commons; the obligation of the governor to show cause for the act passed in defiance of his council; the prohibition of direct taxation, except for local purposes: guarantees of little value at the time of their adoption, but rendered of greater importance by the growth of freedom in the empire at large.
The act of parliament did not pass without animadversion and discontent. Sir James Mackintosh moved that a jury of twelve should be substituted for the clause constituting a military jury—the most obnoxious portion of the bill. In this he was seconded by Mr. Wilberforce, but the proposition was defeated by a majority of eleven. Mr. Canning recommended a compromise between the friends and opponents of the bill, by limiting its duration to five years, and to this the minister assented.
The capacity of the colonies to furnish jurors was long a subject of debate, Mr. Justice Bent stated, that after full consideration he recommended a grand and a common jury, in conformity to the English law, and the trial of convicts by the police;[138] but Commissioner Bigge pronounced against the scheme, and was confirmed in his opinion by the leading colonists of the time. The whole state of society opposed serious objections to its adoption, and it was scarcely practicable in Van Diemen's Land.
The settlers were generally desirous that Van Diemen's Land should be erected into a separate colony. To this, Sorell was opposed. He thought the measure premature: tending to augment the expenses of government; to deprive the people of the advantages of an appeal to the elder colony, and of participation in that more liberal system of government a larger community could demand. A public meeting was, however, summoned, and a petition adopted by acclamation. The sole dissentient present, Mr. Murray, was roughly treated by the petitioners.
The nearer inspection of a chief authority, and the more ample means possessed for good, were its advantages; but it occasioned a more rigid separation in social life, multiplied offices which might have been long confined to the elder colony, and removed too far the governor and courts from effectual oversight and appeal. The colony was not sufficiently consolidated to oppose a force of public opinion to the despotic tendencies of the new constitution.