The Expedition to Botany Bay, by Watkin Tench

CHAPTER X.

The reading of the Commissions, and taking Possession of the Settlement, in form. With an Account of the Courts of Law, and Mode of administering Public Justice in this Country.

Owing to the multiplicity of pressing business necessary to be performed immediately after landing, it was found impossible to read the public commissions and take possession of the colony in form, until the 7th of February. On that day all the officers of guard took post in the marine battalion, which was drawn up, and marched off the parade with music playing, and colours flying, to an adjoining ground, which had been cleared for the occasion, whereon the convicts were assembled to hear His Majesty’s commission read, appointing his Excellency Arthur Phillip, Esq. Governor and Captain General in and over the territory of New South Wales, and its dependencies; together with the Act of Parliament for establishing trials by law within the same; and the patents under the Great Seal of Great Britain, for holding the civil and criminal courts of judicature, by which all cases of life and death, as well as matters of property, were to be decided. When the Judge Advocate had finished reading, his Excellency addressed himself to the convicts in a pointed and judicious speech, informing them of his future intentions, which were, invariably to cherish and render happy those who shewed a disposition to amendment; and to let the rigour of the law take its course against such as might dare to transgress the bounds prescribed. At the close three vollies were fired in honour of the occasion, and the battalion marched back to their parade, where they were reviewed by the Governor, who was received with all the honours due to his rank. His Excellency was afterwards pleased to thank them, in public orders, for their behaviour from the time of their embarkation; and to ask the officers to partake of a cold collation at which it is scarce necessary to observe, that many loyal and public toasts were drank in commemoration of the day.

In the Governor’s commission, the extent of this authority is defined to reach from the latitude of 43 deg 49 min south, to the latitude of 10 deg 37 min south, being the northern and southern extremities of the continent of New Holland. It commences again at 135th degree of longitude east of Greenwich, and, proceeding in an easterly direction, includes all islands within the limits of the above specified latitudes in the Pacific Ocean. By this partition it may be fairly presumed, that every source of future litigation between the Dutch and us will be for ever cut off, as the discoveries of English navigators alone are comprized in this territory.

Nor have Government been more backward in arming Mr. Phillip with plenitude of power, than extent of dominion. No mention is made of a Council to be appointed, so that he is left to act entirely from his own judgment. And as no stated time of assembling the Courts of justice is pointed out, similar to the assizes and gaol deliveries of England, the duration of imprisonment is altogether in his hands. The power of summoning General Courts Martial to meet he is also invested with, but the insertion in the marine mutiny act, of a smaller number of officers than thirteen being able to compose such a tribunal, has been neglected: so that a Military court, should detachments be made from headquarters, or sickness prevail, may not always be found practicable to be obtained, unless the number of officers, at present in the Settlement, shall be increased.

Should the Governor see cause, he is enabled to grant pardons to offenders convicted, “in all cases whatever, treason and wilful murder excepted,” and even in these, has authority to stay the execution of the law, until the King’s pleasure shall be signified. In case of the Governor’s death, the Lieutenant Governor takes his place; and on his demise, the senior officer on the spot is authorised to assume the reins of power.

Notwithstanding the promises made on one side, and the forbearance shewn on the other, joined to the impending rod of justice, it was with infinite regret that every one saw, in four clays afterwards, the necessity of assembling a Criminal Court, which was accordingly convened by warrant from the Governor, and consisted of the judge Advocate, who presided, three naval, and three marine officers.

As the constitution of this court is altogether new in the British annals, I hope my reader will not think me prolix in the description I am about to give of it. The number of members, including the judge Advocate, is limited, by Act of Parliament, to seven, who are expressly ordered to be officers, either of His Majesty’s sea or land forces. The court being met, completely arrayed and armed as at a military tribunal, the Judge Advocate proceeds to administer the usual oaths taken by jurymen in England to each member; one of whom afterwards swears him in a like manner. This ceremony being adjusted, the crime laid to the prisoner’s charge is read to him, and the question of Guilty, or Not guilty, put. No law officer on the side of the crown being appointed, (for I presume the head of the court ought hardly to consider himself in that light, notwithstanding the title he bears) to prosecute the criminal is left entirely to the party, at whose suit he is tried. All the witnesses are examined on oath, and the decision is directed to be given according to the laws of England, “or as nearly as may be, allowing for the circumstances and situation of the settlement,” by a majority of votes, beginning with the youngest member, and ending with the president of the court. In cases, however, of a capital nature, no verdict can be given, unless five, at least, of the seven members present concur therein. The evidence on both sides being finished, and the prisoner’s defence heard, the court is cleared, and, on the judgement being settled, is thrown open again, and sentence pronounced. During the time the court sits, the place in which it is assembled is directed to be surrounded by a guard under arms, and admission to every one who may choose to enter it, granted. Of late, however, our colonists are supposed to be in such a train of subordination, as to make the presence of so large a military force unnecessary; and two centinels, in addition to the Provost Martial, are considered as sufficient.

It would be as needless, as impertinent, to anticipate the reflections which will arise in reading the above account, wherein a regard to accuracy only has been consulted. By comparing it with the mode of administering justice in the English courts of law, it will be found to differ in many points very essentially. And if we turn our eyes to the usage of military tribunals, it no less departs from the customs observed in them. Let not the novelty of it, however, prejudice any one so far as to dispute its efficacy, and the necessity of the case which gave it birth.

The court, whose meeting is already spoken of, proceeded to the trial of three convicts, one of whom was convicted of having struck a marine with a cooper’s adze, and otherwise behaving in a very riotous and scandalous manner, for which he was sentenced to receive one hundred and fifty lashes, being a smaller punishment than a soldier in a like case would have suffered from the judgement of a court martial. A second, for having committed a petty theft, was sent to a small barren island, and kept there on bread and water only, for a week. And the third was sentenced to receive fifty lashes, but was recommended by the court to the Governor, and forgiven.

Hitherto, however, (February) nothing of a very atrocious nature had appeared. But the day was at hand, on which the violation of public security could no longer be restrained, by the infliction of temporary punishment. A set of desperate and hardened villains leagued themselves for the purposes of depredation, and, as it generally happens, had art enough to persuade some others, less deeply versed in iniquity, to be the instruments for carrying it on. Fortunately the progress of these miscreants was not of long duration. They were detected in stealing a large quantity of provisions at the time of issuing them. And on being apprehended, one of the tools of the superiors impeached the rest, and disclosed the scheme. The trial came on the 28th of the month, and of four who were arraigned for the offence, three were condemned to die, and the fourth to receive a very severe corporal punishment. In hopes that his lenity would not be abused, his Excellency was, however, pleased to order one only for execution, which took place a little before sun-set the same day. The name of the unhappy wretch was Thomas Barret, an old and desperate offender, who died with that hardy spirit, which too often is found in the worst and most abandoned class of men. During the execution the battalion of marines was under arms, and the whole of the convicts obliged to be present. The two associates of the sufferer were ordered to be kept close prisoners, until an eligible place to banish them to could be fixed on; as were also two more, who on the following day were condemned to die for a similar offence.

Besides the Criminal court, there is an inferior one composed of the Judge Advocate, and one or more justices of the peace, for the trial of small misdemeanours. This court is likewise empowered to decide all law suits, and its verdict is final, except where the sum in dispute amounts to more than three hundred pounds, in which case an appeal to England can be made from its decree. Should necessity warrant it, an Admiralty court, of which Lieutenant Governor Ross is judge, can also be summoned, for the trial of offences committed on the high seas.

From being unwilling to break the thread of my narrative, I omitted to note in its proper place the sailing of the ‘Supply’, Lieut. Ball, on the 15th of the month, for Norfolk Island, which the Governor had instructions from the ministry to take possession of. Lieut. King of the Sirius was sent as superintendent and commandant of this place, and carried with him a surgeon, a midshipman, a sawyer, a weaver, two marines, and sixteen convicts, of whom six were women. He was also supplied with a certain number of live animals to stock the island, besides garden seeds, grain, and other requisites.

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Last updated Tuesday, March 4, 2014 at 20:04