The History of Tasmania, Volume I

by John West

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."