wretched man was astonishing:"[102] he was in consequence acquitted! This practice continued for twenty years, and in 1825 a prosecution was instituted against a magistrate for attempting to extract confession by torture.
The tendency of undefined power to run into tyranny, is illustrated by Macquarie himself. He had prohibited the entrance of strangers within the government grounds, and to detect the offenders stationed constables on the spot, who lay in ambush: three men and two servant girls were captured and committed. The next morning, the men each received twenty-five lashes, by the written order of the governor: the women were detained in the cells for forty-eight hours. There was no appeal to law; and the sole actors were the governor and the gaoler. A process so simple was no longer to be tolerated: the public were alarmed.[103] The assumption of magisterial powers was not compatible with the office of the governor; but to authorise the flagellation of free men without trial, for a perhaps innocent trespass, was both dangerous and unjust.
This was, perhaps, the last instance of such extravagant despotism, and it exposed Macquarie to much inquietude during his life. That a person so humane in his general character should forget the precautions due in equity and in law, and punish arbitrarily for imaginary offences, proved that no power is safely bestowed, unless its objects and extent are minutely defined.
The civil, called the "Governor's Court," was instituted by George III. in virtue of his prerogative. It consisted of the judge advocate, and two inhabitants chosen by the governor: it was empowered to decide in a summary manner all pleas in relation to property and contracts, and it granted probates of wills.
When convicts contracted pecuniary obligations, the governor specially withdrew them from liability to arrest; and told the creditors that in trusting these debtors their opinion of their honesty must be their sole guarantee: government could not spare "the servants of the public" from their toils to answer the plaints of suitors.[104]
From its decisions, a cause could be carried to the governor; and in sums exceeding £300, to the king in council.
Though unsanctioned by an act of parliament, this court departed widely from the practice of England. Its authority was keenly disputed by Bentham; and Commissioner Bigge, in stating its origin and operation, hints a similar doubt.[105]
Undisturbed by objections the crown, by the patents and commissions of 1814, separated the criminal jurisdiction from the civil, and created a supreme court, which adopted the English practice. By the new patent, an appeal was permitted from the supreme court to the "High Court of Appeals," consisting of the governor and the judge advocate; and, except when £3,000 were in issue, his judgment was final![106] To both these tribunals the Tasmanians were amenable; but in civil cases the appointment (1814) of a local court under the deputy judge advocate, terminated the absolute dependence on Port Jackson for judicial relief. Plaints for debts not exceeding £50 were entertained by this court, and creditors contrived to bring their claims within its jurisdiction, by dividing the amount into bills of £50. This evasion of the law, although it defeated the intention of a superior court and lessened its business, was useful to both parties; it decreased the difficulty and expenses of suits. It was more equitable in its operation than the supreme court: the owner of a vessel could carry up his own witnesses to Sydney, and at the termination of a trial convey them home without delay; but the less opulent debtor or creditor found himself practically excluded from redress.
Mr. Judge Abbot was, however, not eager to assume his office, and it was not until 1816 that he commenced operations. The accumulation of debts must have been great, for at his first session fourteen hundred plaints were entered: nor did he exhaust the suitors by delay, for eleven hundred were disposed of during that year. Two inhabitants, chosen by the governor sat as assessors; and being known, and knowing all parties, they often discussed in private beforehand the causes awaiting their verdict![107]
The deputy judge advocate held in contempt the net-work of the law, by which equitable rights are sometimes entangled: his was a court of request without appeal, and he took pleasure in asserting its finality. For the convenience of suitors he allowed agents to practice in his court: these gentlemen had somewhat more legal knowledge than the judge, and often exasperated his antipathies by its ostentation. They would dwell on the dignity of his court: his decision was irrevocable; even the lord chancellor of England, they would say, was subject to the revision of a still higher court than his own, but the deputy judge advocate decided the cause for ever. Trusted with such resistless jurisdiction—such onerous responsibility, how great must be his care to avoid an error beyond correction—an injustice that could not be undone but by an act of parliament! Such were their addresses: occasionally heard with complacency—and, it is said, not always unsuccessful. The most famous of these practitioners were Messrs. R. L. Murray and Evan Henry Thomas. The last gentleman was an emigrant, and issued a rhetorical advertisement for employment as a preceptor; but renouncing that calling, he provided himself with a blue bag, the sole qualification essential, and paraded the vicinity of the court: here some suitor found him. What he wanted in experience he made up by industry; and thus carrying his cause, established his reputation as a pleader.
Abbott was a lover of fair play: when one of these gentlemen stated a cause, he expressed a wish that the other side could be placed in as clear a light. Willing to show how well he comprehended the case, the agent for the plaintiff set before the court what the defendant might allege; and Abbott, admitting its force, determined in his favor! The equitable judge decided that the plaintiff should pay the defendant the unsought balance of his bill.
On such a primitive plan were minor rights protected. Although the decisions were often grounded on imperfect proof, the substantial equity of Abbott's adjudications was rarely questioned. In cases under £5 the court received no fee, but in higher causes a small sum was paid. The agents obtained what they could, as the recompense of their professional toils.
Major Abbott continued to preside as deputy judge advocate, until his office was abolished. After visiting England he returned to Launceston with the appointment of civil commandant. He died in 1832: the inhabitants spontaneously honored his funeral. He was esteemed as a person of a generous nature and upright intentions. Major Abbott entered the army at the age of thirteen: he was in the service of the crown fifty-three years, forty-three of which were spent in the colonies.
FOOTNOTES:
[77] 14 Geo. iii. c. 83.
[78] "Whereas it may be found necessary that a colony and a civil government should be established, and that a court of criminal jurisdiction should also be established, with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof." The court, described as above, is then authorised, to try "outrages and misbehaviours, as if committed in this realm would be treason or misprision thereof, felony or misdemeanour."—27 Geo. iii. Nothing is said of legislative power.
[79] Collins, vol. i. p. 32.
[80] Bigge's Jud. Report, p. 34.
[81] Holt has left a graphic picture of a justice, which must be received, perhaps, with some reservation;—"I was walking with Barrington, the most accomplished pickpocket: he was arm-in-arm with Richard Atkins, Esq. I wished to have some conversation with them. A bottle of rum was produced,