[74] "To his Excellency Lachlan Macquarie, Esq., Captain-General and Commander-in-chief of his Majesty's Territory of New South Wales and its Dependencies, &c. &c. &c.
"We, the inhabitants, settlers, and freeholders of his Majesty's settlement established at the Derwent, Van Diemen's Land, impressed with the most fervent zeal for his Majesty's government, and the most profound respect, esteem, and veneration for your Excellency, most dutifully congratulate you on your arrival at Hobart Town.
"When men, whose characteristic is industry, consider themselves governed by an Officer in whom his Majesty has reposed merited confidence, who in order to promote agriculture, encourage morality, efface dissension, and patronise the industrious and deserving part of our community, leaves his seat of government, and exposes himself and his worthy Consort, under many privations, in a small vessel, to the dangers of a coasting voyage on these seas, a natural emulation must necessarily arise in the breasts of the inhabitants to merit, by an inviolable attachment to the laws, and an adherence to the regulations of the colony, the patronage, favour, and protection of such an unequalled Governor.
"We humbly presume to hope that the favorable impressions which our industrious exertions have made on your Excellency's mind on your seeing Hobart Town and its vicinity, will become much increased on your return from that tour through the different settlements which your Excellency's intuitive mind may induce you to make.
"Independent of the high consideration in which we hold your Excellency as the Representative of our Most Gracious Sovereign, we presume to solicit your acceptance of our most unqualified respect for your Excellency's person, and with duty, in the name and on the behalf of the inhabitants in general, subscribe ourselves your Excellency's most devoted servants,
"R. W. Loane, J. Ingle,
"T. W. Birch, A. Whitehead."
"Hobart Town, Van Diemen's Land, November 26, 1811.
"Gentlemen—The address which I have this day the satisfaction to receive from you has been gratifying to me, and I beg you to believe that the inconveniences I have experienced in my voyage to Van Diemen's Land, have been amply compensated in the pleasure I feel on seeing one of the finest countries in the world in a state of rapid improvement by the exertions of his Majesty's loyal subjects settled here, in whose welfare I shall at all times feel a warm interest; and sincerely hope that the industry so happily begun will be persevered in with success.
"I return you many thanks for the sentiments of regard you have been pleased to express towards me.—I have the honor to be, Gentlemen, your most obedient and most humble servant,
"(Signed) Lachlan Macquarie.
"To Messrs. R. W. Loane, J. Ingle, T. W. Birch, and
A. Whitehead, the Committee who presented the
Address from the inhabitants of the Settlement at
Hobart Town, in Van Diemen's Land."
[75] The complimentary style in which the settlers addressed the Macquarie family was not without reason. It is said that Mrs. Kate Kearney, when the high price of her butter was complained of by the governor, stopped the supply. Mrs. Macquarie, curious to see this independent milk-seller, paid her a visit: when she entered, the old lady received her very graciously, and asked after the health of the Governor, and added, "how is the young Prince?" The story goes, that she received a valuable grant of land for this well-timed compliment. A bullock driver, who attended Mrs. Macquarie during one of these visits, annoyed her by swearing at the cattle: she promised to obtain him his free pardon, if he would only treat the animals with more civility. A hundred such stories are current; but he who has been accustomed to sift them, may take them for their worth.
[76] See vol. ii, p. 129, of this History, for an account of bushranging.
SECTION IV
In planting the colony of New South Wales, it was requisite to provide a form of government adapted for a community without precedent. That instituted was equally alien from established usage. It conferred powers on the governor beyond the dreams of ordinary princes, and violated all the constitutional guarantees which support the rights of subjects. The American colonies derived their constitutions, some from the prerogatives of the crown, others from parliament, under acts prescribing their structure and limiting their jurisdiction. In some cases the British legislature authorised the crown to convey the powers of government at its own discretion, and its own agents. In the reign of George III.[77] the parliament passed the Quebec Act, which defined the powers of Canadian legislation and judicature, and thus established a course that has never since been abandoned.
The immediate design and composition of the Australian colony precluded the forms of constitutional freedom: the object of the laws and regulations were but remotely connected with the ordinary interests of British citizens. Having obtained, therefore, the authority to institute a government, the crown put into commission the powers it received, but left to the local authorities to interpret and apply them.[78]
The court of criminal jurisdiction was composed of seven officers, of whom the judge advocate was one. It could only assemble on the summons of the governor: his precept determined who, or whether any should sit, and thus regulated the jury: as their commander his influence was great—greater, as the dispenser of royal patronage.
The powers of the grand jury devolved on the judge advocate, who framed the indictment, and determined beforehand the probability of guilt: he thus sat in a cause which he had judged already. The prosecutor conducted his own case: witnesses were examined in open court, and the accused was unassisted by counsel. Nor was unanimity required: yet five in seven were necessary in capital cases, to authorise an immediate execution. The judge advocate deliberated with his co-jurors in secret, and the court was re-opened only when they had agreed upon their verdict, and determined the sentence. Thus in ordinary cases the weight of authority in deciding guilt, as well as apportioning punishment, usually rested with an officer officially connected with the government. The operation of this court was liable to serious constitutional objections. It was in the power of the governor to exclude the subject from the protection of the law, by shutting up the court, and by the arbitrary selection of its members to anticipate its decision.
In conducting the business of the court, its members dispensed with the niceties of law, and gave their verdict upon what appeared to be the substantial merits of the case. From the age of fourteen, the first judge advocate had been employed in the royal marine service, and whatever intelligence his writings display, they exhibit utter disregard of rights recognised by the British constitution. His successors in office, for two-and-twenty years, until the appointment of Mr. Ellis Bent, were gentlemen connected with the military profession, who were unassisted, except by such lawyers as the lottery of transportation threw in their way: thus, while they were limited by parliament to a jurisdiction according to the laws of the realm,[79] they were more than usually unacquainted with their nature, and indifferent to their observance.
Such were the inherent defects of this form of judicature, from the large influence possessed by the executive; which could determine the time of sitting and the members of the court; which denied the right of challenge, and accepted the concurrence of five voices only in cases of life and death—and those of persons subject to the influence of the governor and unaccustomed to weigh evidence, or to defer to the maxims of civil tribunals. But if the constitution of the court was a subject of just complaint, the creation of new offences