The History of Tasmania, Volume I

by John West

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]