# History of Australia/Chapter 9

CHAPTER IX.
GOVERNOR DARLING.
Governor Darling arrived in New Soath Wales in Dec. 1825, after touching at Hobart Town and conveying the instructions of the Colonial Office as to the separation of the island government from that of New South Wales. He was a soldier and influenced by military ideas. A presentiment that he would be so influenced seems to have been instinctive with the leaders of the popular party—the emancipists and self-styled patriots. Brisbane had warmed their sympathies by his recent cordiality, and they were in no humour to welcome his supplanter. The incoming Governor was received like the outgoing king:
"As in a theatre the eyes of men Are idly bent on him that enters next . . . Wen so, or with much more contempt, men's eyes Did scowl on Richard. No man cried, 'God save him!'"
Darling bore with him a Royal warrant appointing his Legislative Council, consisting of the chief military officer (Stewart, who had in that capacity administered the affairs of the colony in the brief interval between the departure of Brisbane and the arrival of Darling); the Chief Justice; Archdeacon Scott; the Colonial Secretary, Mr, Alexander Macleay (who arrived in Jan. 1826, and was to succeed Major Goulburn); John Macarthur; Robert Campbell; and Charles Throsby. The Executive Council was to consist of the same persons, with the exception of the three last-named colonists. It must have been with strange feelings that Macarthur and Campbell were sworn (20th Dec. 1825) ​as members of the Legislative Council. In 1803 Campbell had been one of the few respected persons who abetted Governor Bligh when, under the guidance of Crossley the convict, Macarthur was lawlessly imprisoned. Campbell had given evidence in favour of Bligh at the trial of Colonel Johnston. In 1825, Macarthur and Campbell were styled "trusty and well-beloved," in a warrant under the hand of the King appointing them members of the Legislative Council; and the warrant was subscribed by Lord Bathurst, from whom it had been so hard to wring consent that Macarthur should be permitted to return to his home in 1817. The warrant of 1825 was revoked in 1827, and a new one was issued; but the change was merely formal. Stewart was no longer named in it, but the "officer next in command to the Commander of the Forces was placed in the Council, and Colonel Lindesay (39th Regt.) in that capacity took his seat. The other members were reappointed. Soon after Darling's arrival it was thought advisable to present an address to him, and a public meeting was called, at which William C. Wentworth was the moving spirit. He admitted that the new Council was an improvement on its predecessor, but advocated agitation for an elected Assembly, and sounded the popular note of taxation by representation. Darling replied in general terms; and, without committing himself to any party, proceeded with his new Colonial Secretary to introduce administrative reforms which previous laxity had made necessary. In this, as in his task of raising the tone of society, the Governor was to look for aid from the Colonial Secretary, who was noted as a man of science, and in addition to his services under the Crown had been for many years the highly esteemed Honorary Secretary of the Linnean Society, which unanimously ordered a painting of him by Sir Thomas Lawrence. That two persons freshly arrived from the mother country should concur in removing from the public offices some relics of the convict element introduced by Macquarie and untouched by Brisbane, can hardly be wondered at; yet Darling and Macleay incurred the odium of the emancipists by weeding the departments. The order which they had not found they attempted to secure by checks and counter-checks. They infused a ​ higher sense of duty among officials. The emancipist and self-styled patriot party turned savagely on the Governor, and Dr. Wardell and William Wentworth ere long vented their fury in the columns of the Australian. After this introduction of the Governor, the progress of discovery during his rule must be alluded to.
In 1827, Allan Cunningham combined his botanical researches with exploration. He traversed with six men the affluents of the Nammoy and the Gwydir, discovered Darling Downs, and returned to his starting-point at the head of the Hunter river. Two years afterwards he went. to Moreton Bay by sea; and exploring the sources of the Brisbane river, connected his two expeditions, and named Cunningham's (Pass or) Gap in the cordillera near Darling Downs. Darling selected, for the command of another exploring party, Captain Charles Sturt of H.M. 39th Regiment. With this leader Mr. Hamilton Hume was associated. In a time of drought (1828) they started for the interior, in which Oxley had found marshes and expanse of water. They found a waste of dry polygonum scrub with patches of reeds and a small muddy channel to which the Macquarie had dwindled. An attempt by Sturt to follow its course failed. Hume made excursions, and after much hardship the explorers suddenly came upon a large river, which they named the Darling. To their horror they found the water salt. They were in sore straits for themselves and their cattle; and the unerring skill of Hume was never more welcome than when he discovered, not far from their camp, a pool of fresh water which relieved their distress. Striking the Darling in long. 145.33 E., lat. 29.37 S., they descended many miles without finding any alteration in the character of the river. They turned northwards, and again encountered the Darling, salt as before. After four months and a half they returned, having ascertained that the Macquarie and Castlereagh rivers, and, inferentially, the Nammoy, Gwydir, and the Darling Down rivers, flowed into this new great river, now called the Darling, below the confluence of the rivers converging from the slopes of the cordillera.
Sturt was again commissioned in 1829 to explore the more southern rivers. The Lachlan had been essayed vainly by Oxley. Sturt sought the Murrumbidgee, whose ​ waters, fed from the Snowy Mountains, were to bear him to a new and unexpected terminus. Hume could not accompany him, though asked to do so. Not only his skill in the bush, but his knowledge of the natives caused regret at his absence. On the Darling Sturt and Hume had seen many natives, and no hostilities had taken place. Mr. (afterwards Sir) George Macleay was Sturt's companion and friend in his new undertaking. Forming a depôt on the Murrumbidgee, near its junction with the Lachlan, Sturt went down the river in a boat. They passed the junction with the river which Hume had named after his own father; but Hume was not there to recognize it, and Sturt unfortunately, but unwittingly, discarded Hume's patronymic, and named the river the Murray, in honour of Sir George Murray, then Secretary of State. The boat bore them bravely downwards; they saw hundreds of natives; they were saved from an attack of one tribe by the heroism of another native (of a tribe recently seen), who dashed across the river and arrested the uplifted arm of a leader. They returned in 1830, amidst much privation and in great prostration, and Sturt published a narrative which proved him as modest as brave. They had traced the united Murrumbidgee, Murray, and Darling waters into Lake Alexandrina, and thence to the sea in Encounter Bay. They had connected their journey across the land with the labours of Flinders, and the footsteps of others. They had found on the coast that the natives had seen white men before, and, unlike their brethren in the interior, had been made to dread fire-arms. Sturt's people were watchful and returned safely; and in all his explorations Sturt never took the life of a native. Governor Darling acknowledged his services by an official notice of his exploits, and the Colonial Secretary, Mr. Macleay, had the pleasure to see his son's name included as that of one who had done the State some service in the expedition. A sad fate awaited the next explorer who visited Lake Alexandrina. Captain Barker, a brother officer of Sturt, had succeeded Captain Stirling as commandant at Raffles Bay, and when that settlement was, like its neighbour at Melville Island, abandoned in 1829, Barker was stationed at King George's Sound. Governor Darling instructed him to hand over the ​last-named settlement to Captain Stirling, who had become Governor of (Western Australia or) Swan River; and then to make a more accurate survey at Lake Alexandrina than had been possible for Sturt. The gallant Barker, who was reputed to be well acquainted with the aborigines, and kindly disposed towards them, fell a sacrifice to the hatred inspired by less humane visitors. Being the only one of the company who could swim, he crossed the channel, which connects the lake with the sea, alone, taking his compass on his head. His companions saw him no more. Sturt bewailed the loss of one so true and just, so intelligent and dauntless, so kind and indefatigable, and thought it probable that the "cruelties practised by sealers had instigated the natives to take vengeance on the innocent as well as on the guilty." Lt. Kent, the second in command, prevailed upon a sealer at Kangaroo Island to go with him and a native woman to inquire concerning Barker's fate. She was told that he had been speared and thrown into the sea.
Numerous attempts to form settlements during the governments of Brisbane and Darling evinced the desire of English Ministers to exclude foreign nations and furnish fresh outlets for British enterprise. There is documentary evidence to show that to the promptness of Lord Liverpool's Administration it was due that only the flag of England was permitted to float over Australian soil. The traditions of Pitt, who first erected it there, still prevailed in Lord Liverpool's Cabinet, which comprised the great Peel and the brilliant Canning. What Governor King implored the Addington Ministry to do in order to extinguish French pretensions in 1802, while Lord Liverpool (then Lord Hawkesbury) was Foreign Secretary, the same nobleman while Prime Minister sanctioned in 1826, when those pretensions were believed to be recrudescent.
Early in 1826 Lord Bathurst wrote to Governor Darling. Establishments at Western Port and Shark Bay were contemplated. These, with the post at Melville Island, were to secure the whole territory from the intruding French, who were sending out discovery ships. Darling pointed out that as the western boundary of his government was the ​129th degree East Long., "it will not be easy to satisfy the French, if they are desirous of establishing themselves here, that there is any valid objection to their doing so on the West Coast; and I therefore beg to suggest that this difficulty would be removed by a Commission . . . describing the whole territory as within the government." Darling at once sent expeditions to occupy Western Port and King George's Sound. He confidentially enjoined the officers in command to be careful, if they should see the French, "to avoid any expression of doubt as to the whole of New Holland being within this government, any division of it which may be supposed to exist under the designation of New South Wales being merely ideal, and intended only with a view of distinguishing the more settled part of the country. Should this explanation not prove satisfactory it will be proper, in that case, to refer them to this government for any further information they may require."
If the French should be found landed,—"you will, notwithstanding, land the troops (two officers with eighteen rank and file-agreeably to your instructions, and signify that their continuance with any view to establishing themselves, or colonization, would be considered an unjustifiable intrusion on His Britannic Majesty's possessions."
The French corvette L'Astrolabe arrived in Sydney soon afterwards. Darling was informed by her commander that the expedition was scientific only, but he wrote that it was perhaps fortunate that the British ships Warspite, Success, and Volage, were lying in Sydney. That fact, with a knowledge that H.M.S. Fly had sailed for Western Port, might make the French captain "more circumspect in his proceedings than he otherwise would have been."
Captain Wright took charge of the settlement at Western Port. Captain Wetherall of H.M.S. Fly assisted in forming it. Hamilton Hume was asked to go, but "impaired health prevented his complying." Hovell (his fellow-traveller in 1824) accompanied Captain Wright. Captains Wetherall and Wright furnished exhaustive reports. The former spoke of the "prospect of rendering Port Phillip in some degree tributary to the establishment" at Western Port. He soon perceived that Mr. Hovell was at fault, and reported: "It is very evident that (Western Port) is not the ​country described by Messrs. Hume and Hovell, and that they could never have been there, as their accounts are not applicable to a single point either of it or to the anchorage."
Wright wrote (27th March 1827) that the country was scrubby, and that his own and Hovell's researches had failed to reveal the fine pasture land seen in 1824. Hovell had been "occupied twelve days in looking at the country north between Western Port, the mountains, and Port Phillip, but never got to the latter." Wright resigned his charge to his successor, Lieut. Burchell, and Hovell prosecuted his researches, which were duly reported to the Colonial Office. He thought he had found Hume's terminus on the Bay near a very extensive freshwater marsh, twelve to fifteen miles long, separated from Port Phillip by a narrow ridge or bank of sand not more than from two to three hundred yards wide." This was the Carrum Swamp, which bounded Tuckey's explorations in 1803 under Collins; but though Hovell, in one of his reports (27th March), alluded to Tuckey's narrative, he failed to observe that Tuckey's land journey from Collins' Camp was perforce confined to the eastern shore of Port Phillip, while the journey of Hume was entirely on the west. Having, as he thought, "near the head of the Bay, ascertained the spot which terminated the journey of Mr. Hume" and himself—he returned, unconscious of the fact that between him and any part of the country traversed by Hume ran the everflowing Yarra-Yarra river, and that the waters of Port Phillip lay between him and the place he thought he had reached.
It must seem strange to those who know the country that he could stand on the ridge of sand which he described, near the Carrum Swamp, without recognizing on the opposite western side of Port Phillip the Station Peak of Flinders, close to which he passed with Hume, and which Hume learned was called Willamanata by the natives.
Darling thought Hovell's services of little value. appeared that Western Port does not possess the necessary requisites for a settlement," and "should your Lordship consider that the object of taking formal possession has been answered," the persons sent to establish the settlement might perhaps be withdrawn. Lord Goderich ​authorized the abandonment of the place, and early in 1828 Darling withdrew the whole establishment. But in Van Diemen's Land John Batman, one of those men who (on account of the faculty possessed by Hamilton Hume of divining their way through unknown tracts) were called "good bushmen," had in 1827 applied for a grant of land at Western Port. He induced Mr. J. T. Gellibrand to join him. They proposed to take live stock to the value of from £4000 to £5000 to the spot where Batman would reside. But Governor Darling wrote: "Acknowledge, and inform them that no determination having been come to with respect to the settlement at Western Port, it is not in my power to comply with their request.' Batman, thus foiled for the time, nursed his project until 1835, when he was more successful.
At King George's Sound, Major Lockyer, the commandant, selected the site of Albany, where a military post was kept until it was transferred (1830) from the control of New South Wales to the young colony formed. at Swan River in Western Australia.
Captain Stirling, R.N., had joined in exploring expeditions in New South Wales, and had subsequently formed a settlement at Raffles Bay. He had surveyed Swan River in 1827. His report led to a project to form a settlement there. Mr. Barrow wrote from the Admiralty to the Colonial Office (1828), that with Western Port, King George's Sound, and Swan River "on the south and west, and Raffles Bay on the north, I think we may consider ourselves in unmolested possession of the great continent."
​ Financial considerations arrested the proposed official settlement. But private speculators stepped in. Mr. Thomas Peel, with others, offered to provide shipping to carry 10,000 emigrants to Swan River at the rate of £30 a-head. In return they asked for grants of land, of which they calculated the value at 1s. 6d. an acre. They were to receive 4,000,000 acres for £300,000. They offered 200 acres free of rent to each male emigrant. The scheme was not carried out, but it led to another in which Mr. T. Peel was the leader, and of which the Government approved.
Captain Stirling was to be Governor of the first free settlement in Australia. No convicts were to go thither. Immigrants were to receive, in the order of their arrival, grants of land proportioned to the capital they were prepared to invest. They were to satisfy the Governor as to the capital they possessed, and to receive 40 acres for each £3 of invested money; but they were not to receive the grant in fee simple until they had expended at the rate of 1s. 6d. an acre in improvements. There were conditions of reversion to the Crown in case of default of expenditure. To Mr. Peel were assigned a quarter of a million, with possible extension to a million, of acres on condition of taking out emigrants, at a graduated scale, by which for all persons over ten years of age Mr. Peel was to receive 200 acres. The Governor might acquire a hundred thousand acres. He landed on the 1st of June, 1829, to found the new settlement; and before the end of 1830, thirty vessels had arrived with more than a thousand claimants for acres. Captain Stirling did what he could to satisfy them; but what he did was of no avail. In proportion as a man had more land he was in more difficulty as to its use.
Every man's neighbour was in dim distance. Spread over wide tracts, and commanding no labour, the puzzled landholders had neither roads nor markets. They gazed in stupor at their unprofitable wastes. The old problem of labour assumed a new phase under new conditions in a new land. Land—the presumed wealth of the colony—could purchase no labour, and yet land was the commodity with which it had been hoped to buy everything. Con​tractors, surveyors, and others were to receive payment in the same barren element of exchange. Many immigrants had property of some kind, but few carried with them the means of building houses, or commanding labour. Land in proportion to attracted capital was the loadstone; but the attracted capital in vain sought congenial employment. There was no hope of profit from it. Some settlers fled from a colony whose hardships were intolerable. The few sheep and cattle seemed likely to fall a prey to the teeth of the few colonists, and starvation would ensue. Some who fled retained their grants nominally.
Mr. Peel, after taking £50,000 and 300 servants to the colony, was left without a servant, while his property was wasted; and when it had been wasted, the servants who had abandoned him returned, starving, to demand employment and food. He, the victim of an experiment to which he had so largely contributed, was as helpless as the men who had abandoned him. The inexorable laws of co-relation between capital and labour had never been more notably violated, or more notably avenged themselves. Governor Stirling was driven to seek assistance from England in an emergency which neither he nor his employers comprehended.
The root of the failure was to be explained by a man then rising into notoriety—Edward Gibbon Wakefield. Commencing his career by being convicted of abduction in 1826 (unattended, however, by the coarser constraints sometimes resorted to), this remarkable man became the life of a Colonization Society, whose labours were to influence, though not control, the Colonial Office, the Parliament, and colonists. They furnished ideas; and in a world of red tape and routine, to furnish an idea is to create. Wakefield's first trumpet-sound in the arena of colonization was an anonymous letter, published in London in 1829. Grasping the subject with a master hand, embellishing his brochure with touches of power and the raciness of reality, he arrested attention and partly com​pelled belief. Society, officials, settlers, labourers, politics were woven into his work "The Opposition," he said,
"consists of emancipated convicts who have obtained wealth and importance; of the children of convicts, and of certain free immigrants—men of fiery, and in many cases of generous, tempers; of whom some cannot tamely brook subjection in their own persons; some hate oppression in the abstract, and some are filled with a high ambition, like that which urged the robber-shepherd to found Rome. These are the leaders of four-fifths of the population. They are bent upon procuring for the colony a government of colonial origin. They want trial by jury and a Legislative Assembly. They talk even of perfect independence. They are rebels, every one of them, at heart; and nothing but a sense of weakness deters them from drawing the sword."
He underrated the prospects of wool-growing. Production, he thought, must soon outpace demand. The latter was then supposed in England to be limited to thirty million pounds, and Wakefield foresaw that Australia would soon produce far more. He proclaimed the evils of the convict system, and the curse it entailed. He depicted a possible "extension of Britain." The crime and misery produced in Britain by excess of people in proportion to territory, might be reduced if not annihilated by a system which would place within reach of British population the territory in the colonies. In one place people hungered for land, in the other land panted for people. He would not make the colonies "new societies, but extensions of an old society." If "this plan be too magnificent for execution may we not construct a smaller edifice on this model? In plain English―if the principles here suggested be correct, why should they not be reduced to practice upon whatever scale?"
In an Appendix he supplied terse articles—
1. That a payment in money of ——— per acre be required for all future grants of land without exception. 2. That all land now granted, and to be granted, throughout the colony be declared liable to a tax of ——— per cent. upon the actual rent.
3. That the proceeds of the tax upon rent and of sales form an Emigration Fund, to be employed in the conveyance of British labourers to the colony free of cost. 4. That those to whom the administration of the fund shall be entrusted be empowered to raise money on that security, as money is raised on the security of parish and county rates in England. 5. That the supply of labourers be as nearly as possible proportioned to the demand for labour at each settlement, so that capitalists shall never suffer from an urgent want of labourers, and that labour shall never want well-paid employment. ​6. That in the selection of emigrants, an absolute preference be given to young persons, and that no excess of males be conveyed to the colony free of cost. 7. That colonists providing a passage for emigrant labourers, being young persons and equal numbers of both sexes, be entitled to a payment in money from the Emigration Fund, equal to the actual contract price of a passage for so many labouring persons. 8. That grants be absolute in fee without any condition whatsoever, and obtainable by deputy. 9. That any surplus of the proceeds of the tax upon rent and of sales, over what is required for emigration, be employed in relief of other taxes, and for the general purposes of Colonial Government.
If Wakefield's belief were true, the principles on which Western Australia had been founded were false. The year 1829 witnessed the publication and the experiment. For this reason they are here placed side by side. The Colonization Society, which sprung from the anonymous author's ideas, will properly be dealt with hereafter.
It is sufficient to mention him now in connection with the occupation of new lands.
While the land of Australia was thus parcelled out, the treatment of its original inhabitants was of the customary kind. On the Hunter River, in former times, the commandant had availed himself of their services in capturing runaways and bushrangers. Backed by a knowledge of his support they had shown a courage and confidence not exceeded by their skill in tracking. The usual injuries by white men produced the usual results.
A native whom the authorities described as Jackey Jackey (with two aliases) was seized on the Upper Hunter in the winter of 1826, was taken seventy miles to Wallis Plains (Maitland), and was on the 31st July handed to Lt. Lowe, 40th Regt., the officer in command. His fate became the topic of rumour not altogether condemnatory.
Brave men as well as others had arrived at the cowardly conclusion that the brutalities of the whites were inevitable, and that their consequences must be condoned or neglected by the government. Some were insolent enough to declare that it was the dispensation of Providence that the black race must be "stamped out" by the white.
Darling's own conduct deserves censure. The Attorney-General, Saxe-Bannister, reported (Aug. 1826) that there was a common statement that the military had taken upon ​ themselves to "put men to death in cold blood, and that the magistrates do not at all interfere." He was convinced that Darling could not be aware of these things. He appealed to him to stop them. Darling did little. The crime had occurred at the Hunter River, and it was to a resident in that district that Brisbane had intimated that if the blacks were shot there was no occasion to report the fact. The natives there were numerous and warlike, however, and to the disgust of some residents seemed disinclined to be shot. Settlers sent to the Governor a petition praying for protection "from the incursions of numerous tribes of black natives, armed and threatening death to our servants" . . . "until the threats and murderous designs of the natives shall have subsided, the lives of our labourers and our property will be exposed to the revenge and depredation of these infuriated and savage people."
Darling replied (5th Sept.) that nothing was to be feared, and the settlers should show no apprehension. "Vigorous measures among yourselves would more effectually establish your ascendancy than the utmost power of the military. . . . I strongly recommend you to unite and take measures for your own defence, and you may be satisfied that in any exertion you may make, you shall receive every necessary support. He observed that some of the memorialists resided in Sydney, and recommended them to live on their properties. It would have the effect of preventing irregularities on the part of your own people, which, I apprehend, is in many instances the cause of the disorders committed by the natives."
Thus stirred, the settlers obeyed. The natives retaliated. Bannister reported (7th Sept. 1826) that "extremely violent proceedings were going on, on both sides." Darling ordered a detachment of the military to the district, to "punish the natives agreeably to my instructions on this head, which, under present circumstances, will, I have no doubt, prove the most effectual course."
Bannister, "placed in a situation of great difficulty," asked for a copy of the Instructions. He thought "that the indiscriminate slaughter of offenders, except in the heat of immediate pursuit, or other similar circumstances, ​ requires preliminary solemn acts; and that to order soldiers to punish any outrage in this way, is against the law, which is powerful enough to guard the public peace from any permanent aggression." Darling vouchsafed no reply, and in the following month Bannister was out of office.
The atrocities which occurred can be only faintly pictured by the imaginations of those unacquainted with the characters of the class in whose hands firearms were thus freely placed, and over whose doings there was no control. Bannister, cognizant of the atrocities, was determined to denounce them in England. The Governor thought some explanation expedient, and wrote to the Secretary of State (6th Oct. 1826). He spoke of outrages committed at the Hunter—
"A report having reached me that a native, who was apprehended by the mounted police as having been concerned in the proceedings above alluded to, had been shot while in custody, I immediately gave orders that the matter should be investigated by the magistrates of the district. This order, after some delay, occasioned by the absence of Lieut. Lowe, was acted upon."
​ The murder of Jackey Jackey, which Governor Darling confessed it was impossible to "subscribe to as a measure of justifiable policy," had been perpetrated with little or no attempt at concealment. Thomas Farnham delivered Jackey Jackey to Lieut. Lowe one evening, and if his evidence, afterwards given, was true, heard Lowe on the following morning order that the prisoner, without trial or investigation, should be shot. Another man said he saw Jackey Jackey tied to a tree and shot. Both witnesses concurred in the statement that three soldiers having fired, the fourth stepped up and put the poor creature out of his misery. The body was buried by two men in obedience to the order of a sergeant. The constable was interrogated by a magistrate (Mr. Close, late of the 48th Regt.), and concealed the fate of the prisoner.
Lieut. Lowe's absence postponed inquiry for a time; but knowledge shared by so many persons could hardly be stifled. Two men, to remove means of proof, removed the body of the murdered man. The man who had buried it saw them do so, and consented not to tell the truth unless put upon oath. It was not until May 1827 that Lieut. Lowe was put upon his trial in Sydney before a military jury. Dr. Wardell defended him, and contended that the Court had no jurisdiction to try a British subject for an offence against a native. A native was neither entitled to be tried before the Criminal Court as a British subject, nor to a jury de medietate lingue as a foreigner. He was beyond the pale of all law, and the inference was that no atrocity against him was punishable. Chief Justice Forbes overruled such wild words, and the trial proceeded. Witnesses for the defence contradicted portions of the evidence.
​ To vindicate the majesty of the law, a black man was put upon his trial at the same session. As none of his friends were present, and none could have given evidence if present, "Black Tommy" was hanged without delay. The hearts of the white men might accuse them, but legal proof was not available. Amongst those who held the diabolic doctrine that the shooting of a black fellow-creature was not an offence, no witnesses against a white murderer could be found. Perjury was deemed venial in such a case.
It is sad to reflect that early mismanagement at Western Australia caused for a time disgraceful relations between the two races. An accidental publication casts light upon the time. Mr. Moore held a civil appointment at Perth, and was also engaged in pastoral pursuits. He wrote letters to England, which were published, without his revision, as "Letters and Journals" from Swan River. He thus described the state of affairs in May 1833:—
"A murder was committed by the natives in consequence of the following provocation. Some time ago a man who had come from Van Diemen's Land, when escorting a cart, saw some unoffending natives in the way. 'D — n the rascals,' he said, 'I'll show you how we treat them in Van Diemen's Land,' and immediately fired on them. That very cart, with two men who had been present at the transaction, was passing near the same spot the day before yesterday, when they were met by about fifty natives who had lain in ambush, and the two men were deprived of life so suddenly, that Mr. Phillips (who had been about two hundred yards behind) was hardly in time to see Yagan thrust a spear into one of them. . . . A reward has been offered for the head of Yagan whether dead or alive."
One Midgegoro was taken, and there was "great perplexity as to what should be done with him. The populace cry loudly for his blood, but the idea of shooting him with the cool formalities of execution is revolting." Thus Mr. Moore wrote on the 20th May. On the 22nd, he added, Midgegoro was "shot at the gaol-door by a party of the military. We are all anxious to see how the others will conduct themselves after this execution, if they discover it. . . . there were none of them present at it." On the 27th Mr. Moore, with two others, saw Yagan with several ​ natives in sight of the military quarters. Yagan was wary, but bold. To his inquiries as to the fate of Midgegoro Mr. Moore would give no reply. Yagan said he would take life for life. "There is something in his daring which one is forced to admire," Mr. Moore said. Though close to the encampment, neither Moore nor his companions attempted to capture the chief; but gave information after he was gone. A strong band was sent out, but it was not by them he was killed. A white lad, who was received in a friendly manner at the camps of the natives, went behind Yagan and shot him. The assassin threw away his gun, and ran for his life, but Yagan's companions pursued and speared him.
Mr. Moore reported that the man who afterwards preserved the head of Yagan also flayed from the body a portion of the skin. Englishmen might well be shamed by the doings of their countrymen thus made known to them by a gentleman who held a high position in the colony.
Fortunately for the national reputation, the second Governor of Western Australia, Mr. John Hutt, established a new order of things, though not before many dark deeds had been done such as Mr. Moore described.
Saxe-Bannister's resignation having been referred to, it may be well to dismiss him from these pages. Chief Justice Forbes owed him ill-will for the advice to the magistrates which (in 1824) excluded ex-felons from jury lists; but Forbes was not paramount with Darling, who, military and loyal, could not tolerate the opprobrious epithets which Forbes was reported to apply to a monarchical form of ​government. Forbes also associated freely with members of the emancipist party who assailed Darling's alleged severity towards the convict class. It was to himself that Bannister owed his fall. When on good terms with Brisbane, he had thought himself justified in refusing to draft a Bill indemnifying magistrates involved in the "Torture Proceedings." He now told Darling that "if the Governor is doing what seems to the Attorney-General to tend to bring the peace and welfare of the colony into danger, he is bound to state his opinion to the Governor." Darling replied that he would ask his advice on legal matters. "On all others I alone am responsible, and I can have no desire to place you in so unpleasant a predicament as that of giving opinions on subjects with which you have no right to interfere."
Deeming his salary inadequate, and having (he said) no time to eke out his emoluments by practising at the bar, Bannister had tendered his resignation unless the Secretary of State would sanction an increase of salary. Lord Bathurst took him at his word, and announced that "since it appeared to be his wish," a successor had been appointed; and Darling wrote to him:—"The acceptance of your resignation having been notified by the Secretary of State, I shall make immediate arrangements for placing the duties in other hands."
The retiring Attorney-General having vainly requested the Governor to prosecute the Australian newspaper, placed ​ his personal effects on board the ship which was to carry him from the colony, spoke (20th Oct.) for nearly six hours in a case in which he prosecuted Howe, the editor of the Sydney Gazette, for libel; fought a duel with Dr. Warden on the 21st, and departed on the 22nd from a wondering society.
The New Constitution Act of 1828 removed the short-lived institution which in 1825 constrained the Chief Justice to resort to an ex post facto law. No grand jury was continued or established by the Act 9 Geo. IV. cap. 83. The fifth section enacted that "until further provision be made as hereinafter directed for proceeding by juries, all crimes, misdemeanours, and offences cognizable in the said Courts respectively, shall be prosecuted by information in the name of His Majesty's Attorney-General." Thenceforward grand juries were withdrawn from the land until their reappearance in the youthful South Australia in 1837. The administration of justice became a department of State. The safeguard which Englishmen had fondly cherished as their heritage from the days of Alfred,—which Blackstone believed to be ​ guaranteed in terms under Ethelred,—which did not sink with the fall of Harold, and was embodied in the Great Charter as the right of every freeman, in words which the great Chatham pronounced worth all the classics, and the Bible of the English Constitution,—trial by jury in completeness,—was thenceforward indefinitely taken from Englishmen in New South Wales. It is a proof of the sway of custom that no serious effort has been made to restore it. Neither responsible government, nor abuse of power by a government, has to this day roused the people of New South Wales to the evils they undergo by its loss. It is bad to lose a prime guarantee for due administration of the law; it is worse that the people should not be trained from the highest to the lowest in the duty of administering it. The taint has spread downwards and numerous stipendiary magistrates have in great part extruded from petty sessions the unpaid magistrates who once distributed justice and friendly counsel to their neighbours. Official routine has superseded union of feeling. A bond, which was as wholesome for the country gentleman in stirring his sympathies as it was for his poorer neighbours to profit by them, has been rent asunder by the craving for formality and the servility of a government department. But whether Forbes had or had not reason to be satisfied with the extinction of grand juries, there could be no doubt as to the destruction of his devices with regard to common juries at Courts of Quarter Sessions. The argument with which he had overthrown the resistance of magistrates in 1824—that as the Act of 1823 was silent the common law must be held to prevail—was in express words rendered impossible by the Act of 1828. The 17th ​ section enacted that offences should be tried "before Courts of General and Quarter Sessions respectively in such and the same manner" as that "prescribed with respect to trials before the Supreme Court."
When the new Constitution was proclaimed, a Royal Warrant enlarged the Legislative Council. The number was to be not less than ten, nor more than fifteen. Chief Justice Forbes, Archdeacon Scott, Colonial Secretary Macleay, Attorney-General Baxter, Collector of Customs Cotton, Auditor-General Lithgow, Lt.-Col. Lindesay, were the official members. John Macarthur, Robert Campbell, Alexander Berry, Richard Jones, John Blaxland, Captain Phillip P. King, R.N. (son of the former Governor), and Edward C. Close, one of the worthiest men in the land, were the unofficial gentlemen of the colony. The Governor himself presided over the Council, of which the full number was fifteen. The Royal Warrant provided that in case of death of a non-official member the vacancy should be filled from the following leading colonists:—J. T. Campbell, Hannibal Macarthur (nephew of John Macarthur), G. Wyndham, A. B. Spark, T. M‘Vitie, G. T. Palmer, Archibald Bell, William Ogilvie, or William Macarthur (a son of John Macarthur). In Sept. 1829, Archdeacon Scott having retired, his successor, the Rev. W. G. Broughton (who owed his promotion to the great Duke of Wellington), took his seat in the Council, of which for ​many years his talents made him the most distinguished member.
Governor Darling's new Council passed a General and Quarter Sessions Act (29th Sept. 1829), which enacted that "free persons" should be tried "before the Courts of General and Quarter Sessions, and seven commissioned officers of His Majesty's sea and land forces," in like manner to that prescribed in the Imperial Act for the Supreme Court. By sec. 5 of that Act (9 Geo. IV. cap. 83), it was provided that, until other order might be taken, military or naval officers should be the jurors, and in default of the requisite number, seven, the Governor should nominate magistrates to act as jurymen. Thus the emancipist element was entirely excluded from juries at the Quarter Sessions Courts. The local legislature had power to pass jury laws, but the application of juries, even in the Supreme Court, was limited by the Imperial Act to cases in which "either of the parties" in an action might be desirous of having issues of fact tried by a jury constituted under any colonial law or ordinance. The Court, moreover, had power to award or to refuse trial by jury. The Supreme Court was composed of one or more judges and two assessors (magistrates). In all criminal trials the juries were military. If the emancipist party desired to open the door of admission to juries they were compelled to work in the direction of so framing the local jury laws as to serve their purposes. Their hopes rested on the Chief Justice. During the discussion of the Jury Bill, Archdeacon Broughton became a member of the Council (16th Sept.) The Chief Justice was active in modelling the measure. It was referred to a sub-committee (24th Sept.), and was passed (9th Oct.) It provided (sec. 4) that in all actions wherein the Court should award trial by jury, jurors should be residents in or within twenty-two miles from Sydney, having a clear income from real estate of £30, or from personal estate of £300; and that "no man not being a natural-born subject of the king, and no man who hath been or shall be attainted of any treason or felony, or convicted of any crime that is infamous (unless he shall have received for such crime a pardon, or shall be within the benefit of some Act of Parliament, having the force and effect of a pardon under ​ the Great Seal for such crime), shall be qualified to serve on any such jury." In construing this clause the magistrates excluded all emancipists who had not received a full royal pardon. The emancipist class fumed when they saw that no man who had been convicted was summoned. An order was applied for, calling on the sheriff to show cause against a mandamus to compel him to insert the names of certain emancipists. Wentworth and Wardell argued for the mandamus, against the Solicitor-General on the other side. The application was dismissed on the ground of irregularity, but the Chief Justice allowed it to be made known that, in his opinion, the magistrates were wrong in excluding from the lists persons whose terms of sentence had expired.
It may be mentioned, parenthetically, that in 1880 Governor Darling invited the Council to consider the propriety of introducing generally trial by jury. The Secretary of State wished for their opinions, and Darling was not indisposed to introduce trial by jury. The Council passed an amending bill. There were two dissentients, but the majority would not consent to delay. Disqualifying everyone who had undergone a colonial or second conviction of "treason, felony, or other infamous offence," the bill left all others whose sentences had expired, or who had received full pardons, eligible as jurors. When the magistrates excluded the names of all whose sentences had expired, the Governor had ascertained the opinion of Forbes that persons who had "served their terms of transportation" were eligible as jurors. The opinion was, with important exceptions, confirmed by three judges (Forbes, Dowling, and Burton) who were asked by Governor Bourke in 1884, at the unanimous request of the Legislative Council, "whether a person who has been convicted of a transportable offence, and whose sentence has expired, or been remitted by an absolute or conditional pardon, is legally qualified to sit upon a jury in England." The careful reply which was then furnished was dictated by no political feeling. It analyzed the various enactments in force by the dry light of reason. Free pardons, or a conditional pardon of which the condition had been performed,—servitude of punishment inflicted on a person convicted of ​ felony not punishable with death, remission of sentence ratified by the king,—left the convict eligible, "because such offences create no disqualification, but only incapacity of the offender so long as he is deprived of his liberty. But persons convicted of perjury under 5 Eliz. c. 14, could only by Act of Parliament be restored to eligibility, and those convicted of transportable offences accounted infamous (such as perjury at common law, subornation of perjury, and forgery in some cases), who had not received free pardon, would not be held eligible in England; nor would those convicted of infamous offences below the degree of felony and not transportable, of the nature of the crimen falsi.
With this opinion no man quarrelled. But with the earlier and more sweeping verdict of Forbes many were discontented. Although the local juries were at that time confined to civil issues, it would be difficult to exaggerate the heart-burnings which were created in the community. What! an untainted man sit to dispense justice by the side of an emancipated felon! Flesh and blood would not endure it. Mr. Robert Campbell, jun. (although his father supported Forbes in many matters), protested from the jury-box against the disgrace. He was overruled; but the moral sense of the community recognized that he had reason on his side when the notoriously shameless were seen seated arrogantly by the side of the reputable. The advocates of the emancipist party were driven to allege that, in order to discredit the class, the framers of the jury lists included its specially unworthy members.
A singular phase of opinion was observed for many years. There was a preference amongst litigants for military juries. Their probable ignorance of commercial affairs was assumed to be counterbalanced by their sense of honour and superiority to undue influence. But the leaders of party discarded such considerations. They seized every occasion to increase the rancours which existed. Once when a military jury had concluded its labours, and a civil jury entered the box, the new-comers found that their predecessors had made offensive inscriptions aimed at emancipist jurors and Judge Forbes. Complaint was made, the unknown libellers were censured ​ by Judge Dowling, and their handiwork was obliterated. But it was engraven on many minds, and the scars were not removed for years. It is fair to record the fact that the libellers had been provoked by coarse denunciation of themselves as a class.
In response to a despatch from Brisbane, Lord Bathurst (July 1825) directed the Governor to prepare, at "the earliest opportunity," a law to control the press, and insist upon periodic licenses before publication of any newspaper. Darling communicated with the Chief Justice on the subject, and showed him the despatch. Forbes hesitated to certify under the Act 4 Geo. IV. cap. 96, that the issue of a revocable license as suggested by the Governor was not repugnant to the law of England, so far as the circumstances of the colony admitted its application. Without Forbes' certificate (sec. 29) the Governor could neither lay before his Council nor pass into law any measure. He requested the Judge to state how far he felt himself "at liberty to sanction the measures directed by Lord Bathurst." Forbes evaded the question by saying he was "ready to certify any ordinance so far as I am authorized by law." Darling sent him draft Bills, and Forbes declined to certify one which made licenses revocable at the Governor's pleasure. He begged that legislation might be postponed till the law officers in England could be consulted. He was anxious to avoid setting his hand "solemnly to a certificate that a measure recommended by so high an authority as the Secretary of State is repugnant to the law of England." Darling replied that the safety of the colony was endangered by the licentiousness of the press, and duty forbade delay during tedious reference to England. He sent the Bills back as those which His Majesty's Government had directed, and which Forbes as Chief Justice was required to sanction. But Forbes was resolute not to certify a measure which he said was not consistent with the laws of England, and which he knew would subject his intimate associates to the discretion of the Governor. Darling caused Bills to be prepared in a different form. The revocable license was abandoned. On the 24th April 1827, he laid two measures before the Council. One—to prevent mischiefs arising from publications by "persons ​ not known," and to regulate publications, and restrain "abuses arising from the publication of blasphemous and seditious libels." The other—to impose a duty on newspapers. They were both read a first time on that day. The first measure required that no one should publish a newspaper after the 1st May 1827 until an affidavit had been lodged setting forth the names of the printer and publisher, with the title of the paper and the place of printing. The Colonial Secretary moved that the name of the editor should be inserted in the affidavit. Forbes and Campbell vainly opposed the amendment. A stringent clause was passed to the effect that on a second conviction for publishing a blasphemous or seditious libel, "tending to bring into hatred or contempt the government of the colony," the offender might be banished for such term of years as the Court might order. Forbes trembled for his impetuous friends, Wardell and Wentworth, who might fall within the mesh. He pleaded successfully for postponement till the following day. On the 25th the Council passed the Bill, Forbes being present. The Bill to impose a duty on newspapers was again postponed. On the 2nd May Macleay moved, and Colonel Stewart (Lt.-Gov.) seconded, a proposal that the duty should be fourpence. The Archdeacon moved, and Macarthur seconded, an amendment that it should be sixpence. Fourpence was the sum fixed upon. Forbes was absent. On the 3rd May the Bill was passed, with a third Bill to "prevent the publishing of books and papers by persons not known." Forbes was again absent but he was not idle.
The impost of fourpence was deemed a crushing one upon the publications of his friends. His certificate was required, and he resolved to refuse it. Meantime the Acts had been promulgated. On the 30th May the Council met. Forbes was present with four others; but the Governor sent a message by the Colonial Secretary, regretting that he could. not meet the Council. On the 31st neither Darling nor Forbes attended. Again the Colonial Secretary carried the Governor's regrets to five members who attended. The manoeuvres which led to the abortive sittings can be surmised by reading the following memorandum which ​ the Council directed the clerk (Douglass, the friend of Forbes) to enter in the Council Book."
"It having been communicated to the Council that His Honour the Chief Justice has refused to re-certify the Bill No. 3 for imposing a duty on newspapers, which passed the Council with the blank filled up with the duty of fourpence on the 3rd May, the Council judge it expedient to record the following facts relative to the progress of that Bill through the Council. First, that when the Bill was laid before the Council by the Governor on the 24th April, the Chief Justice being present, the clerk read the Bill, stating that the sum of fourpence was marked on the margin in pencil, to which no objection was made by the Chief Justice. Secondly, that on the 2nd May the Bill was read a second time and the clauses were read seriatim. Upon the introduction of a clause for the preventing of the forgery of stamps, the clerk was desired to wait on the Chief Justice at the Court Bouse, where he was presiding at a trial, and request to know if he saw any objection to the insertion of that clause, which the Chief Justice said he would certify. The clerk was desired to summon the Chief Justice and Mr. Campbell to attend the next day. On the 3rd day of May the Colonial Secretary, upon taking his place in the Council, said the Chief Justice was obliged to go to Court, but that he was happy to say he had seen the Chief Justice, who stated to him he had no objection to the Bill."
On the same day a government notice was promulgated to the effect that the publication of the Duty on Newspapers Act was premature, and that the Act was suspended. Forbes had saved his friends from the impost, but had not raised his own reputation. The Council did not meet again for about seven months. It was noticeable that Darling, though thus thwarted by Forbes, did not, like Bligh or Macquarie, rail at thwarters. He maintained a decorous bearing to all. Not even a libel on his brother-in-law (resented by a challenge to Dr. Wardell in March 1827), and the exchange of several shots, provoked the Governor to a display of ill-feeling. A contemporary letter from Macarthur (May 1827) to his son in England explains the matter.
"The Governor maintains a profound silence. . . . Four newspapers are published, all in the convict interest, and the editors are all desperate radicals, alike shameless and unprincipled. Our Chief Justice is their idol, and on him they rely for protection whether their libels be aimed at individuals or against government. Fortunately this dangerous man has reached his mark. . . . Colonel Dumaresq says without reserve that Forbes is the most artful and dangerous man he ever knew. . . . The most intimate companions of Forbes are Wardell, Wentworth, and Dr. ​Douglass. . . . He has been heard to say that he would have no objection to sit down with ———," ———, or ———, any other emancipist gentleman . . . amongst all respectable persons he is detested. . . . You can have no idea of the operation of these fire-brand papers upon the common people, and every one not connected with the convict interest admits that the most dangerous consequences are to be dreaded. Their present most appareut effect is discontent, determined idleness, and in many cases insubordination and open contempt towards their masters and the magistracy. Forbes did not attend the Council when the Bill was passed. All the other members were unanimous, though several doubt as I do whether fourpence is sufficient to prevent the paper from being bought by the prisoners.
Macarthur's evidence, as an eye-witness, is valuable. There could have been no coolness towards him in Darling's "profound silence," for the Gazette shows that in June. 1827, Macarthur's sons, James and William, were made magistrates. Though the Governor kept his own counsel he was not blind to the danger of retaining the tool of Forbes in the confidential post of Clerk to the Council. An honourable man of any opinions may be trusted, but in such a position a willing creature without high feelings can hardly fail to be mischievous. As early as Aug. 1826 Lord Bathurst confirmed Douglass in the situation of Commissioner of Requests, which Darling had "selected for him in preference to that of Clerk of the Council." A military locum tenens held the latter office for a short time, but it was afterwards filled (in 1828) by the appointment of Edward Deas Thomson, who was for fifty years to fill a foremost place in public life and public esteem in Sydney. Douglass misconducted himself in such a manner that he was content to obey an order of the Governor directing him to leave the colony in May 1828. It is proper to mention that the Law Officers in England thought that Forbes correctly executed his duty in refusing to certify the Licensing Act, and in acting upon the opinion he had formed" with regard to the Stamp Duty. The Colonial Office, however (sec. 21, 22 of the Constitution Act of 1828), withdrew from the functions of the Chief Justice a power which gave him a veto upon legislation, and which tended to make him a partisan. The feelings of Forbes were perhaps soothed by ​the fact that the withdrawal was not confined to his own case. It extended to Van Diemen's Land. Meantime, though the Stamp Duty Bill was shelved, the laws which had been passed were not allowed to slumber.
The editor of the Monitor, Mr. E. S. Hall, was repeatedly convicted, fined, and imprisoned. The publisher of the Australian newspaper, in which Wentworth and Wardell gave vent to their wrath, was fined £100 and imprisoned for six months for a statement that in the case of the soldier Sudds, the Governor had substituted his will for the law. The contentions of the time were not limited to the Courts. In the duel between Dr. Wardell and the Governor's brother-in-law, which was fought a few weeks before the Bills to control the press were introduced by the Governor, the lawyer underwent Colonel Dumaresq's challenge, and though both antagonists were grazed by the first discharge, two more shots were exchanged before the seconds could persuade Dr. Wardell to make a verbal apology, and induce the cool but determined Dumaresq to accept it. A turf club of which the Governor was patron was made the conduit of the hot passions of the time. Wentworth and Wardell had, at a meeting of the club in 1827, assailed the Governor. Darling withdrew his patronage. Recriminations were exchanged, and Darling brought his power to bear on those public officials who were members of the club. Too late the club disclaimed the connection with politics which they had sanctioned. Dr. Wardell was prosecuted for a libel stating that the Governor's departure would be hailed with pleasure. By the jury law, unless both parties agreed to have a civil jury, the jurors were military officers. The officers were objected to as under Darling's control. The objection was overruled. The jurors were fruitlessly challenged in "array." The imputations against them for servility were refuted by their conduct. They could not. agree upon their verdict. Late on Saturday night they reported that they could not agree, and with consent of all parties they were allowed to depart until the Monday morning, pledging their honour that they would hold no conference about the trial out of doors. On the Monday, still unable to agree, they were discharged. Personal animosity so pervaded Darling's enemies that when a dis​ordered man, armed with two pistols and a carving knife, assailed him as he was leaving church, there were to be found some who agreed that a Governor was to blame, and that his assailant was aggrieved.
When the Act 9 Geo. IV. cap. 88, arrived in the colony in 1829, Darling was relieved from the necessity of obtaining the Chief Justice's certificate that projected measures. were not repugnant to English law. In Jan. 1830 he amended the stringent Newspaper Act of 1827. Banishment was not to be for such term of years as a Court might order, but might be severe.
"If any person shall be legally convicted of printing or publishing any blasphemous or seditious libel, or any libel tending to bring into hatred or contempt the Government of the colony as by law established, or the Governor or Acting-Governor for the time being, or to excite any of His Majesty's subjects to attempt the alteration of any matter in Church or State as by law established, otherwise than by lawful means, or to adopt any illegal proceedings, and shall after being so convicted offend a second time and be legally convicted, such person shall on such second conviction be adjudged to be banished from New South Wales for such term of years, not less than two, nor more than seven, as such Court shall order."
For publication after such second conviction there was a fine of £100 for each offence. One can understand the wrath of publishers at such an enactment, and their determination to wage war against Darling by impeachment in England. The Home Government thought the Act too harsh, and (27th Sept. 1831) Darling carried a short measure repealing the portion of it which related to banishment. Publichouses; the administration of justice; a census; dividing fences; pounds; the Orphan School lands; and the control of convicts, formed the basis of Darling's legislation. Brisbane's Act legalizing notes payable in Spanish dollars was abrogated by an Act (1826) "to promote the circulation of sterling money of Great Britain in New South Wales."
A celebrated Act, known as the Bushranging Act, dealt, in April 1830, with the crimes of "robbery and house-breaking, and the harbouring of robbers and housebreakers." It was introduced and was passed in one day (21st April 1830), when one Donohue and his accomplices were at large. Chief Justice Forbes moved the necessary suspension of the Standing Orders. Suspected persons might be ​apprehended without a warrant, and detained pending proof, of which the onus was on themselves, that they were wrongly suspected. Anyone carrying arms might be arrested. Anyone suspected of carrying arms might be searched. General warrants to search any houses might be granted by any magistrate; constables might break in and enter anywhere with such warrant by day or night, and on reasonable cause might seize firearms and arrest inmates. Persons found with firearms, and not accounting for them to the satisfaction of a magistrate, were guilty of misdemeanour, and liable to three years' imprisonment. All were bound to assist in carrying out the law; which might be pleaded in all suits against functionaries, and gave them treble costs if the appellant should fail. Robbers and housebreakers were to be executed on the day next but two after sentence. The audacity of the bushrangers seemed to justify inordinate powers on the part of the police, and the end was in a few months obtained. The criminal classes for long years associated Darling's name with oppression. It could not be denied that severity was called for at his hands. Bushranging had assumed alarming proportions. At one time in the Bathurst district more. than fifty desperadoes collected together, and a regular but indecisive engagement took place between them and the settlers at Campbell's river. The police afterwards suffered loss in an encounter with them.
​ The Robbery and Housebreaking Act (21st April 1880) gave unexampled powers to the authorities. Donohue and his companions after severe encounters died red-handed or on the scaffold. Two of them, Walmsley and Webber, stopped the venerable Marsden. While his daughter emptied his pockets to satisfy the thieves, the old man seriously warned them against their occupation. If they pursued it he should "next see them on the scaffold." His words were prophetic. In a few days he attended Webber at his death; Walmsley gave evidence and was pardoned. The soldier-corps of mounted police, though few in number, did yeomen's service throughout the country during this terrible time. Every settler kept himself in readiness to resist attack.
Norfolk Island had recently been re-occupied as a penal settlement, and a daring outbreak occurred amongst the prisoners in 1827. They had intended by a simultaneous dash to surprise the garrison, seize the arms, and possess the island. Fifty of them secured their guards and overseers as a first step. Four soldiers passing casually towards the hospital were chased, and only one escaped to warn the officers. The insurgents then fled to the small Phillip Island, some miles distant, taking arms with them. in three boats, and leaving only one disabled boat at the settlement. On the following day the boat was repaired, and the commandant with a few soldiers pursued the runaways. After some firing, he killed three, captured eleven men, and returned to Norfolk Island with the boats in which the insurgents had fled. There were pigs and goats. on the small island to support life, but by degrees in subsequent visits, the commandant recaptured all the prisoners without any loss to the attacking force. A vessel carrying
​ convicts to Norfolk Island in 1827 was seized by them; they compelled the master to navigate her. Intending to go to South America they touched at the Bay of Islands. Two whaling vessels were there. Their captains suspected the newcomers. The missionaries summoned the Maoris. The whalers fired upon the convicts, who surrendered, and were guarded by the Maoris until they could be sent back to Sydney.
The case in which Governor Darling's severity was most persistently impugned, and which has afforded to some persons their standard for judging him, was his conduct towards two soldiers, Sudds and Thompson, of the 57th Regt. When Darling arrived in Sydney (Dec. 1825) he found a disposition amongst some of the soldiery to quit the service in order to become convicts. So captivating had the rewards of felony become under Macquarie's sway that soldiers were known to commit crimes in order by means of conviction to join the ranks of felons.
The new Governor issued an order (2nd Jan. 1826) to check intimacy between convicts and soldiers. Of the former were many thousands, of the latter 1500, in the colony. In April 1826 two men mutilated themselves for the purpose of obtaining their discharge. Each of them underwent the loss of an arm in consequence of the self-inflicted injuries. The Governor, instead of discharging them, detached them as Pioneers at a distant penal settlement. Five men of the regiment had already committed robberies or maimed themselves, when (Nov. 1826) Sudds and Thompson openly committed a robbery to procure their discharge. They were sentenced by the Quarter Sessions to transportation for seven years. The Governor commuted the sentence to labour on the roads in chains; and, to "render their removal from the corps as impressive as possible," caused it to be effected in the presence of the troops instead of in the gaol. Stripped of their uniform, clad in convict garb, with iron collars on their necks, and irons weighing about fourteen pounds rivetted ​ round their ankles, they were drummed out of the garrison. and marched to the gaol. Sudds was alleged to have been unwell at the time; he was admitted to the gaol hospital; his irons were removed. The medical officer reported that the poor man refused all sustenance except a little tea, declared he would never work in irons, and wished himself out of the world. He became delirious (26th Nov.), was sent to the general hospital, and died on the following day. The medical officer could find "no apparent disease" to account for the death.
Thompson underwent some portion of the sentence, and Dr. Bowring (Sept. 1835) presented a petition from him to the House of Commons for redress. The Governor reported that much as the death of Sudds was to be regretted it could not be imputed to severity; "none was practised or intended." But soon he was himself accused of brutality. When other causes of difference arose the sufferings of Sudds were brought forward against the Governor.
​ In England the cases of Sudds and Thompson were investigated on several occasions. Lord Goderich in 1827, and Sir George Murray in 1829, inquired into them. The former thought Darling blameless and persecuted, the latter that there was no ground for complaint against him. In 1830 the Attorney and Solicitor General, Scarlett and Sugden (afterwards Lords Abinger and St. Leonards), examined the case, and advised that there was no ground for the proceeding against General Darling. Yet the case was brought before Parliament subsequently. Robert Robison was in 1825 captain on half-pay in the 17th Light Dragoons. In that year he was appointed to the command of "out pensioners," or "the New South Wales Royal Veteran Companies." In 1828 he was brought before a court-martial on eight charges, for insubordination, disobedience, and other matters, and found guilty on four, and in part guilty of three other, charges. He was sentenced to be dismissed.
The finding was confirmed in England in 1829 and promulgated in the colony in April 1830. As Robison's friend Wentworth knew Sir James Mackintosh, it was hoped that Mackintosh would take up the case in Parliament; but Mackintosh having died, Dr. Lushington in 1833 presented a petition from Robison to the House of Commons, and asked for the minutes of the court-martial. Mr. Robert Grant, Judge-Advocate-General, defended the court, and Dr. Lushington's motion was rejected after a debate in which Sir H. Hardinge and Sir James Scarlett supported Mr. Grant, and Daniel O'Connell opposed him. Robison wrote a voluminous letter to Lord Althorp, "as the chief Minister of the Crown in the House," to contravene Mr. Grant's speech. Lord Althorp replied that he was sorry to be obliged to say that Robison had failed to answer Mr. Grant's speech.
Robison sent a memorial to Lord Hill, Commander-in-Chief. One peer and twenty-seven members of the House of Commons, including O'Connell, supported it. It was fruitless. Meantime Darling was proceeding against Robison for libel. Robison then determined to carry the war into his enemy's camp. O'Connell (Aug. 1834) pre​sented a petition in which Robison accused Darling of various misdoings, and in particular of brutality to Sudds and Thompson. He reported the weight of the irons put upon them as in his opinion thirty pounds. He was probably ignorant that they had been weighed in Sydney. Mr. O'Connell promised to take the matter up in the following session, unless some other member would do so. Meanwhile Robison (11th Dec. 1834) was found guilty of libel, and judgment was delayed (by reason of affidavits put in by Robison) until the 15th June 1835, when Lord Denman, and Justices Littledale, Patteson, and Williams sentenced him to four months' imprisonment in the Marshalsea. "On the whole of this matter (the Court said with reference to Sudds and Thompson) we can see no reason for censuring the conduct of General Darling."
Not daunted by this judgment, Mr. Maurice O'Connell moved (30th July) for a select committee to inquire into the conduct of Darling while Governor of New South Wales as regarded Sudds and Thompson and other matters. His speech was violent. Mr. Joseph Hume supported him. Sir George Grey contended that the legality of the sentence on Sudds and Thompson was not a matter which the House could deal with. Mr. Cutlar Fergusson, the new Judge-Advocate-General, objected (like his predecessor) to interference with the finding of the court-martial on Robison. O'Connell stormily denounced the treatment of Sudds, and aided by the votes of those whom on another occasion he called "base, bloody, and brutal Whigs," O'Connell prevailed. By 55 votes against 47 the motion was carried. The committee contained the names of Mr. W. E. Gladstone, Daniel O'Connell, Sir John Hobhouse, Dr. Bowring, Dr. Lushington, Henry Lytton Bulwer, Sir Henry Hardinge, Joseph Hume, and others. Lord J. Russell succeeded in carrying an instruction to the committee which withdrew from their purview the court-martial on Robison, although Maurice O'Connell fought hard for the privilege of examining Darling's conduct with regard to that court. There was hot strife in the committee. Sir Henry Hardinge protested against converting it into a criminal court where General Darling was charged with murder or manslaughter and where witnesses could not be ​ examined on oath. It was "the worst and most democratic Star-Chamber that ever existed." Maurice O'Connell had caused heavy irons to be made as a pattern of those used in Sydney. Sir H. Hardinge described him as "the member who conducted the prosecution," and indignantly told the House that he would not continue to attend the committee unless he could be assured by the Speaker that there was any precedent for a select committee trying a man for murder. On the 1st Sept. Mr. Tooke brought up the report of the committee. It stated that
"The conduct of General Darling with respect to the punishment inflicted on Sudds and Thompson was, under the peculiar circumstances of the colony, especially at that period, and of repeated instances on the part of the soldiery of misconduct similar to that for which the individuals were punished, entirely free from blame, and that there appears to have been nothing in General Darling's subsequent conduct in relation to the case of the two soldiers, or in the reports thereof which he forwarded to the Government at home, inconsistent with his duty as a public functionary, or with his honour as an officer and a gentleman."
Dr. Bowring and other members of the committee were displeased with the report. On the 10th Sept. he presented a petition from the soldier Thompson, averring that he had reached London too late to appear before the committee, and praying for an opportunity to make known the injury he had sustained from confinement "in irons of a cruel and unprecedented form and weight." Dr. Bowring arraigned the report; but Lord Dudley Stuart, who had voted for the inquiry, confessed that as the evidence proved that Darling was not aware of the illness of Sudds, and as the irons used were neither cruelly heavy nor calculated to inflict torture he did not think Thompson's evidence could rebut that which had been received. Mr. Freshfield, a member of the committee (33 in number), stated that there were only three dissentient voices on the acquittal of General Darling. Thompson's petition was ordered to lie on the table. General Darling was received at Court, was knighted, and honoured with the Grand Cross of the Order of Hanover. Robison printed the various debates on his case with explanatory notes, and Darling circulated the judgment of the King's Bench under which Robison was ​ imprisoned, and in which Darling's conduct with regard to Sudds and Thompson was pronounced undeserving of censure.
Governor Darling proved at a very early period that he was no respector of persons. In 1827, in a Public Order referring to "an individual" whose convict servants had been withdrawn by an order of one of a bench of magistrates, the Governor announced, to prevent misunderstanding on a point of so much importance to the inhabitants and the prisoners of the Crown, that he had been instructed that the local government was not precluded from making any necessary regulation "respecting the re-assignment of the service of convicts," and that the Governor, "empowered to assign that service, is fully competent to modify" it "as justice and good policy may require."
If convicts should be insufficiently fed or clothed, improperly treated, or suffered to work abroad or go at large, their masters were liable to lose them. The Governor's enemies styled such an announcement tyrannical because it recognized his power to recall prisoners who had been assigned or transferred to their wives or friends, and who might desire to remain in such nominal bondage.
Previous to the introduction of the bill for restraining the press there was a questioning of Judge Stephen which deserves to be recorded. He had, in discharging prisoners brought before him under the Habeas Corpus Act, declared that he deemed their rights as "sacred in the eye of the law as those of freemen;" and Governor Darling inquired whether the report of his remarks was correct. Stephen disclaimed accountability to the Governor for his judicial exercise of his functions, and requested that the letter of inquiry, with the reply to it, might be forwarded to the Secretary of State. The Australian newspaper was not slow to comment on the wretched state of "vassalage" to which it was sought to reduce a British judge and the Courts of Judicature.
In 1828 Darling appointed a board to assist him in determining on applications for grants of land, which became oppressively numerous as immigration and population increased. The earliest grants had been coupled with conditions of residence, cultivation, reservation of timber ​ for naval purposes, and quit-rents of 6d. per 30 acres (the usual grant) in cases of emancipists, and 2s. per 100 acres from free settlers, after ten years.
Macquarie slightly varied the early conditions. Brisbane withdrew the cultivation clause, and made settlers maintain a convict servant for each 100 acres granted to them; and in 1823 he made his grants liable to a quit-rent of 158. for each 100 acres.
In 1824 the Colonial Office issued new regulations. Immigrants might receive four square miles (or 2560 acres) as a grant. They might furthermore buy land.
In 1826 further regulations offered a return of the purchase-money of land to those who received assigned servants, the maintenance of each convict being valued at £16 sterling a year, and soon afterwards special regulations invited military and naval officers to settle on terms which gave free grants for twenty years' service, and kindred advantages to junior officers. Grants of land were also given to native-born young women on the occasion of their marriage. The discovery that the Governor's grants of land were informal, because issued not in the king's, but in their own names, created anxiety in New South Wales, as well as in Van Diemen's Land, and much time elapsed before doubts were set at rest.
The offers of 1826, coupled with the impulse given to free immigration by Bigge's report and by the condemnation of Macquarie's ideas, attracted immigration. Public attention was stirred by Sturt's successful river expedition. Swan River rapidly absorbed some 4000 people. But the grantees could not command labour. Owners of hundreds of thousands of acres were deserted by armies of hired servants. Inextricable confusion followed. Starving labourers clamoured for bread, after abandoning their contracts. The proprietor of a territory could neither draw income. from nor cultivate it. Little Van Diemen's Land sent food and clothing, and carried away labourers. Swan River pined, and her population dwindled to 1500.
A territory thus occupied was but a feast of Tantalus. The disappointment of the guests was only not perpetual because colonists were not like Tantalus-immortal. They could die, therefore, if they did not depart. The Colonial ​ Office was at its wit's end. But the new prophet, Gibbon Wakefield, was ready with his racy periods and sagacious insight. Lord Goderich could not comprehend the heart of the matter, but he could play with its outside. Hærebat in cortice. He issued new regulations abolishing free grants, and fixing an upset price of 5s. an acre. All lands were to be sold by auction." There was a reservation of the precious metals and of some minor rights, by the Crown. Although these regulations reached the colonies before Darling's retirement, the consideration of their working must be deferred. Before his departure he discontinued the penal establishment at Port Macquarie, and allowed settlers to proceed thither.
Amongst the principal events during his rule may be reckoned the construction, by Mr. Busby, of a tunnel to convey water from the Botany Bay Swamps, and supersede the use of the reservoirs called tanks used in earlier days to hoard the water which crept to the bay near Pitt Street. The mountain road from the Hawkesbury (at Wiseman's Ferry) to the Hunter was completed.
A season of depression followed the excitement of immigration and free settlement under Brisbane, and a severe drought in 1828-9 brought about a financial crisis. Prices fell. Live stock purchased three or four years before were sacrificed at less than a tithe of their original cost. Free immigration was arrested, and from 1828 to 1830 not more than 2000 souls, including children, arrived. A scarcity of grain compelled the government to reduce the rations prescribed for assigned servants, and made the name of Darling odious to convicts. Rain came to drop fatness into the earth, and the crops of 1830 demanded more reapers than the government could afford to aid the settlers. A revival of immigration and good seasons restored all languishing interests.
The condition of the legal profession was considered by the judges in 1829. It was formally divided by a rule made ​ by the Supreme Court, subject to the pleasure of the Crown. All existing practitioners were allowed to elect whichever branch of the profession they might prefer to follow in the future. Admission to the bar was to be given only to those duly admitted in the courts in the United Kingdom; and attorneys were in future only to be enrolled on proof of such admission, or of having served five years in an attorney's office in Sydney, or in the Supreme Court.
Barristers had petitioned for the change, while attorneys had opposed it. The judges had not the vigour to carry out their own order, until their ranks were strengthened by the arrival of Judge Burton. With his moral support the rule was enforced in 1834.
A case tried in 1827 was discussed in every household in the colony; and perhaps deserves to be chronicled. Frederick Fisher, an emancipist, lived at Campbell Town in the same house with George Worrell. In July 1826, Fisher's sudden disappearance was made known. No inquiry was instituted, and it was suggested that as the man had only a conditional pardon, not available in England, he had gone there clandestinely, as other men were known to have gone. About ten days after the disappearance, Worrell assumed possession of Fisher's property, and in various ways hinted that Fisher had left the colony. He sold Fisher's horses, and received money due to Fisher from neighbours. One of the witnesses, Samuel Hopkins, swore that no inquiry at all was "set on foot about Fisher's disappearance."
A terrified man named Farley startled the neighbourhood by declaring (Oct. 1826) that he had seen Fisher's ghost on a fence at the corner of a paddock that had belonged to Fisher, and near Worrell's house. His story was told to a magistrate. A constable was sent for. Two native blacks assisted in the search. Blood was on the rail where Farley saw, or thought he saw, the ghost. In the direction in which the vision had pointed, the black, Gilbert (according ​to the constable's evidence), went into a water-hole (or pool), "and took a cornstalk, which he passed over the surface of the water, and put it to his nose, and said he 'smelt the fat of a white man.'" The blacks led the constable up the creek till they came to another creek, "and went up that for about forty rods, when a black man put a rod into the ground and said, 'there's something here.'" There a body was found, and identified as Fisher's. Worrell was apprehended, and at first endeavoured to throw the crime upon four men living on his farm. At the trial no evidence was admitted as to the vision seen by Farley; but it is impossible for men, even when charged by a judge, to exclude from their minds what seems to them portentous. The seizure of Fisher's property, however, by Worrell; the finding on land in his occupancy of the dead body of the man who, according to Worrell's statements, had gone away; the conflicting tales told after the body was found were, perhaps, deemed circumstantial proofs. He was found guilty, confessed his crime, and was hanged (5th Feb. 1827) three days after conviction. The story has been often told erroneously, and has been woven into fiction. These facts are compiled from the notes of Chief Justice Forbes, who presided at the trial, with the exception of the references to the apparition, which, although it led to the search for Fisher's body, could not be alluded to in a Court of Justice, nor be adduced as evidence. Nothing was ever elicited to account for the vision which Farley described, or to suggest that he previously suspected foul play on the part of Worrell or others.
Schools of a higher order than the colony had previously seen were set on foot. In 1830, Mr. Lang, the Scotch minister, went to England, and stirred up some of his countrymen to emigrate to the new land of Goshen. He worked out a scheme for establishing a college under his own guidance. A Sydney college had been founded locally by a company with a capital of £10,000, and the founda​tion-stone was laid by the Chief Justice (26th Jan. 1880). Lang was connected with the project, but longed to found an academy under his own control. The difficulty was in procuring funds. Already he had quarrelled with some of his early patrons. He speculated on the powers of negotiation in England, which he had employed for his own advantage in 1825. He was courteously received, and Lord Goderich accorded to him an extension of leave of absence, which he was sufficiently Erastian to ask for. Concealing the fact that a college had been founded, and urging the destitution of the colony in moving terms, he persuaded Lord Goderich to direct the payment from the Colonial Treasury of £3500 to himself and his coadjutors for the establishment of an "Australian College." To further his plans, Lord Goderich advanced him in England £1500 to pay for the passages of Scotch workmen to erect the buildings. They were selected by Lang himself, who returned triumphant. Aware that his devices would give umbrage to those with whom he had professed to co-operate in founding the Sydney College, he screened them from the public gaze. He, who had been indignant with Mr. Wemyss for not resorting to publicity about the Scots church in the first instance, discovered that it was undesirable with regard to a college. He wrote to John Macarthur (14th Nov. 1831): "May I request your patronage and assistance in carrying into effect the plans I have put into operation? . . . Most people would have called a public meeting to have had the principles publicly recognized, but I have so often seen public meetings in Sydney wander into the discussion of subjects altogether irrelevant . . . that I think it high time to attempt the doing of something without a meeting at all." He wished for a council of seven gentlemen. "May I request that you will do me the honour to form one of that number should you deem it expedient to lend the institution your patronage?" Macarthur took no part in the matter, and from that date the pen which had formerly praised him was employed in a different manner.
​ The promoters of the Sydney College censured him in 1832 for intriguing against its interests, and founding another under his own control. They cited against him their own prospectus, written by himself, to the effect that the success "of the institution was no longer problematical." Lang's defence was ambiguous. Having persuaded Lord Goderich that to procure the college he must have the immigrants, he told the shareholders that to procure the immigrants he was obliged to put forward the scheme of the college.
General Darling's government closed about forty years after the foundation of the colony; and the first immigrants rapidly disappeared as their children passed into middle age. The links which bound the memory of all to the pilgrim fathers were broken in every grade of society.
D'Arcy Wentworth ended his bustling career in 1827 at the age of sixty-five years, leaving a son whose name was in the mouths of all. Oxley the explorer, the friend of Flinders, passed away. Bungaree, a native, whom Flinders was allowed to take as a companion in exploration, and whom he extolled as "brave and worthy," was gathered to his fathers. Mr. Balcombe the Colonial Treasurer died in 1829, and was succeeded by Mr. C. D. Riddell. Captain Piper, whose accounts were in disorder, was superseded in his position as "Naval Officer," and his duties were undertaken by Mr. J. T. Campbell, under the style of Collector of Customs. Mr. Mackaness the Sheriff, whose presiding at a public meeting in 1827, of an imputed inflammatory character, was condemned, was removed from office, and Mr. Macquoid, a Java merchant, took his place. The extension of commerce and of pastoral pursuits, which had dated from the adoption of Mr. Bigge's recommendations, and was aided by geographical discoveries, necessitated an increase of civil establishments; and many new officials appeared upon the scene. A Registrar of the Supreme Court was appointed in the ​person of Mr. Manning. Mr. Roger Therry became Commissioner of the Court of Requests. Mr. Raymond became the postmaster. Mr. Laidley arrived as Commissary-General.
A new order of things had sprung up; but some of the old names of the colony were in high repute; and sons of honourable character were rising to bear the banner of their fathers. A singular refraction of distant fame glints through the ordinary social record of Sydney, when one sees that there was public mourning for the death of Bishop Reginald Heber in whose diocese Australia was included.
When Governor Darling left the colony the population. of New South Wales was estimated to be 51,155. The ordinary revenue was about £100,000. The wool export was nearly a million and a-half pounds. Oil was exported to nearly the amount of £100,000, while the total imports were nearly £500,000. When the Governor was about to depart, having held office about six years, there was an unexpected display of feeling. Chief Justice Forbes, in the name of the Legislative Council, presented a farewell address, signed by himself and the other members. They dwelt on the good feeling between the Governor and the Council; they assumed their full share of responsibility for the measures enacted; they pointed out with pride the advancement towards trial by jury, and the gradual substitution of Legislative enactments for Executive proclamations. Of the Bushranging Act they said, "The expediency of the act of vigour has in the event been proved by the restoration of general tranquillity." Internal security, the development of internal resources, increasing commerce, showed that the groundwork of prosperity was already laid. Collectively and individually they expressed their "unabated esteem" for His Excellency.
Darling replied in cordial terms to this and other addresses, from the Executive Council, the civil officers, and the clergy, magistrates, landholders, and merchants. But though Chief Justice Forbes might relent—might become spokesman of goodwill—though all voices concurred in tribute of grateful praise to the Governor's wife, William Wentworth, surrounded by wild spirits, and urged on by ​the sympathies of the emancipist party, which contained so many elements of evil omen, scorned the weakness of reconciliation or forgiveness. He invited a large party to rejoice at the departure of their foe. An ox was roasted whole at his grounds at Vaucluse. The worser spirits of those assembled there wound up their orgies by carrying the bullock's head in token of triumph, in noisy procession in Sydney, parading it through the streets, and exhibiting it under the cabin-windows of the ship in which the Governor's family were about to sail. An illumination of the town was proposed, but rejected by the good sense of the community. An opposition newspaper was conspicuous in exhibiting its solitary flames. The coarse display at Darling's departure was long a charge against Wentworth's judgment and taste.
Col. Lindesay, of the 39th Regiment, assumed the reins of government until the arrival of General Bourke, who had been appointed Governor.
* ↑ See above, p. 513 and note.
* ↑ The Earl of Ripon in 1833 thought the anxieties of 1826 groundless. He wrote: "The present settlement at Swan River owes its origin, you may perhaps be aware, to certain false rumours which had reached the Government of the intentions of a foreign power to establish a colony, on the West Coast of Australia. The design was for a time given up entirely on grounds of public economy, and would not have been resumed but for the offer of a party of gentlemen to embark in an undertaking of this nature at their own risk upon receiving extensive grants of land, and on a certain degree of protection and assistance for a limited period being secured to them by the Government."
* ↑ "A Letter from Sydney, the principal town of Australasia. Edited by Robert Gouger, together with the Outline of a System of Colonization." London: Joseph Cross, 18 Holborn, 1829.
* ↑ Saxe-Bannister published documents connected with these events, "New South Wales in 1824-5-6" (Cape Town: 1827).
* ↑ The author was personally acquainted with many of the aboriginal survivors of the authorized raids in the Hunter River district, and with some of those who were settlers at the time.
* ↑ London: 1834.
* ↑ The italics are Mr. Moore's. This publication excited attention in England; and Captain F. C. Irwin, who commanded the military in Western Australia, published another work 1935.
* ↑ Colonel Charles J. Napier, to whom the Government of South Australia was offered in 1835, published in that year a work upon Colonization, in which he denounced the treatment of the natives in Western Australia. He narrated how a party of soldiers, with the Governor, slew "from twenty-five to thirty" and "several of the children:"—he described Yagan as the "noble warrior of the Swan River," no less conspicuous "for generosity than for his courage," and added that "to the hanging of native murderers, if their sentence was a just one, there can be no objection; but to the not hanging of the settler murderers, there are very great objections; . . . the savage has no knowledge of our law . . . the settler acts contrary to the laws of his country; knowing what is right he does wrong, and does so from a brutal disposition; he therefore appears to be a fit subject for the heavy hand of law. . . . "
* ↑ Bannister considered himself harshly treated, and printed a defence for private circulation. He was bitterly attacked in Dr. Wardell's newspaper, the Australian, and was angry with Darling for declining to institute a government prosecution of the publisher. He had previously (June 1826) taken upon himself to caution the Governor against countenancing the press. Darling, it appeared, had invited Dr. Wardell to Government House. The Governor replied that it was impossible to suppose that the office he held was in any degree under the control, or subject to the animadversions of anyone in Bannister's position. Neither the King nor his Ministers had thought it necessary to prescribe his hospitalities, and, without meaning personal offence, he could not persuade himself that the Attorney-General was invested with any such authority. Darling, in declining to prosecute the Australian newspaper, said that the article complained of had not appeared till Bannister's resignation had been notified, and "the government could not interfere in such case without establishing a precedent which might subject it to serious inconvenience." Bannister, irritated at Wardell's unfounded insinuations as to his obtaining his appointment by undue favour, fought his duel with Wardell. It is just to state that in a letter to Darling, written at sea, Bannister regretted that he had not had "courage to refuse" Wardell's challenge James Macarthur (son of John Macarthur), writing to his brother in England at this period, said:—"Bannister's speech (at Howe's trial) seemed to petrify his enemies, the chief of whom, I need not tell you, in Mr. Forbes. He gave a luminous outline of his public conduct from the first moment of his application for the office until the day of his retirement, in which he clearly showed the punctilious correctness of all his actions, and contrasted them most ably with the conduct of Forbes. On the Torture Indemnity Bill he was most happy both in clearing himself from imputation and in turning the tide of public indignation upon the Chief Justice. There seemed to be but one feeling on this subject in the minds of the audience." (The speech was made two days after the appearance of the already-quoted article in the Australian, which admitted that the ex post facto law to indemnify tortures was the "most desperate of all desperate powers of legislation.")
* ↑ South Australia afterwards (1852) abolished them by special enactment. The convenience of administering the law by means of a departmental officer outweighs with an executive government the wider but less visible advantage of interesting the people in every branch of its administration. At a later date the late Mr. Justice Fellows caused permissive provision to be made in a Crimes Act in Victoria, by which a grand jury can be resorted to, but it has been so little used that even the mode of recourse to it has been made a subject of contention. The roots of ancient justice failed to infuse their virtues into the branches of Administration.
* ↑ "Exeant seniores duodecim thani, et præfectus cum eis et jurent. super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare" [circa an. 990]. Laws of Ethelred. The reader may find in the great work of Stubbs how under the Norman line the liberties of England were guaranteed by successive kings. In 1194, by the Articles of Visitation, the recognitors (or grand jury) of presentment were specially described. Four knights were chosen from the county. They by their oath chose two lawful knights of each hundred or wapentake. The two so chosen, chose ten knights of each hundred or wapentake, "or, if knights be wanting, legal or freemen," "so that these twelve may answer under all heads concerning their whole hundred or wapentake." It was after the visitation of 1194 that the petty jury to traverse the presentment of the grand jury came into use.
* ↑ Edward Charles Close was born 12th March 1790, at Rangamatty, near Calcutta. His father was a merchant in India. He was a posthumous child, and was taken to England when eight years old, and lived with his maternal uncle, Charles Streyncham Colinson, sheriff of the county of Suffolk, at The Chantry, Ipswich. He was gazetted ensign in the 48th Regt., 8th Feb. 1808, with which regiment he commenced and ended his military career. He was present at the battles of Toulouse, Orthes, Nivelle, Vittoria, Albuera, Busaco, and Talavera, and was unhurt. He went to New South Wales with the 48th Regt., 1817, and settled in Morpeth, 1821. He was the first chairman of the Maitland Bench of Magistrates, and the first warden of the Maitland district. He received three public testimonials and addresses while living, and the people of the Maitland district erected a memorial window in St. James' Church, Morpeth, to him after his death. He died 7th May 1866. On one of the Peninsular battle-fields, as he heard the groans of the dying, he resolved that he would, if ever possessed of means, build a church for the spiritual consolation of his fellow-creatures. He lived to fulfil his resolve at Morpeth, Hunter River.
* ↑ Votes and Proceedings, New South Wales.
* ↑ One of the characters whose ill deeds were exposed by Commissioner Bigge. There is no object in reprinting the name here.
* ↑ John Macarthur to his son, 20th May 1830: "The Chief Justice is very humble and cringing. . . . The effects of the Act have already been magical, and I think I shall be enabled to write you in about ten days that peace and security are once more enjoyed here. I am preparing two other important bills to regulate free and ticket-of-leave men, which will put these men under so wholesome a state of restraint that we shall soon become an altered community." Donohue was shot by a soldier in 1830. Webber was hanged in Jan. 1831. Dr. Wardell met his death at the hand of a bushranger in 1834. He found three men on his grounds; and, though unarmed, tried to drive them before him. One of them was reckless and shot Wardell. At his trial the murderer terrified the spectators by vile language, struck his fellow-prisoner in the dock, and was with difficulty secured by six constables.
* ↑ Gov. Darling to Earl Bathurst, 4th Dec. 1826. The sentence did not relieve the men from further military service.
* ↑ It was asserted by some persons that the irons weighed 28 lbs.; but the Colonial Secretary (Macleay) invited the editor of the Australian to examine them (Dec. 1826) and they were found to weigh 13 lbs. 12 ozs. respectively.
* ↑ Parliamentary Paper, 1835, vol. xxxix.
* ↑ Speech of Sir H. Hardinge in Parliament, 20th Aug., 1835.
* ↑ Saxe-Bannister placed charges against General Darling in the hands of Mr. Maurice O'Connell during the sitting of the committee.
* ↑ It is perhaps worth mentioning that, in 1826, Lord Bathurst directed Governor Darling to grant 10,000 acres of land to the late Governor (Brisbane) "in addition to a primary grant of the same amount." The original grant was not selected by agents until 1833, and was soon sold. Governor Gipps in 38 objected to the issue of the additional grant.
* ↑ Mr. Justice Therry in his "Reminiscences" (London: 1863) confessed that Burton's decision of character was needed to enforce the rule. He adds that the change was advantageous to the profession and to the public, and that "from that time the profession greatly improved in general estimation" (p. 341).
* ↑ The Campbell Town ghost-story, like many others, was garbled in narration. In the text, current rumours have been corrected by comparison with the words of a trustworthy informant, a medical man, who lived long in the neighbourhood, and attended Farley on his deathbed. He often conversed with Farley on the subject of the vision which scared him.
* ↑ In 1827, Lang wrote: "As I have already experienced the benefit of your friendly advice and valuable influence oftener than once, I beg you will permit me to draw upon you in a similar way once more. The subject was the preparation of a memorial for the Secretary of State.
* ↑ Mr. Balcombe had served at St. Helena while Napoleon was a prisoner there, and one of his family published Reminiscences of the captive.
* ↑ In 1836, Captain Piper was applied to by James Mudie, author of "The Felonry of New South Wales," for a certificate of character, and gave one.