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RESEARCHED BY PETER KILLACKEY
A Narrative of the Expedition to Botany Bay
by Watkin Tench
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CHAPTER X.
The reading of the Commissions, and taking Possession of the Settlement, in form. With an Account of the Courts of Law, and Mode of administering Public Justice in this Country.
Owing to the multiplicity of pressing business necessary to be performed
immediately after landing, it was found impossible to read the public
commissions and take possession of the colony in form, until the
7th of February. On that day all the officers of guard took post
in the marine battalion, which was drawn up, and marched off the parade
with music playing, and colours flying, to an adjoining ground, which had been
cleared for the occasion, whereon the convicts were assembled to hear
His Majesty's commission read, appointing his Excellency
Arthur Phillip, Esq. Governor and Captain General in and over the territory
of New South Wales, and its dependencies; together with the Act of Parliament
for establishing trials by law within the same; and the patents under
the Great Seal of Great Britain, for holding the civil and criminal courts
of judicature, by which all cases of life and death, as well as matters
of property, were to be decided. When the Judge Advocate had finished reading,
his Excellency addressed himself to the convicts in a pointed and judicious
speech, informing them of his future intentions, which were, invariably
to cherish and render happy those who shewed a disposition to amendment;
and to let the rigour of the law take its course against such as might dare
to transgress the bounds prescribed. At the close three vollies were fired
in honour of the occasion, and the battalion marched back to their parade,
where they were reviewed by the Governor, who was received with all the honours
due to his rank. His Excellency was afterwards pleased to thank them,
in public orders, for their behaviour from the time of their embarkation;
and to ask the officers to partake of a cold collation at which it is
scarce necessary to observe, that many loyal and public toasts were drank
in commemoration of the day.
In the Governor's commission, the extent of this authority is defined to reach
from the latitude of 43 deg 49 min south, to the latitude of 10 deg 37 min
south, being the northern and southern extremities of the continent of New
Holland. It commences again at 135th degree of longitude east of Greenwich,
and, proceeding in an easterly direction, includes all islands within
the limits of the above specified latitudes in the Pacific Ocean.
By this partition it may be fairly presumed, that every source of future
litigation between the Dutch and us will be for ever cut off,
as the discoveries of English navigators alone are comprized in this territory.
Nor have Government been more backward in arming Mr. Phillip with plenitude
of power, than extent of dominion. No mention is made of a Council
to be appointed, so that he is left to act entirely from his own judgment.
And as no stated time of assembling the Courts of justice is pointed out,
similar to the assizes and gaol deliveries of England, the duration
of imprisonment is altogether in his hands. The power of summoning
General Courts Martial to meet he is also invested with, but the insertion
in the marine mutiny act, of a smaller number of officers than thirteen
being able to compose such a tribunal, has been neglected: so that
a Military court, should detachments be made from headquarters,
or sickness prevail, may not always be found practicable to be obtained, unless
the number of officers, at present in the Settlement, shall be increased.
Should the Governor see cause, he is enabled to grant pardons to offenders
convicted, "in all cases whatever, treason and wilful murder excepted,"
and even in these, has authority to stay the execution of the law,
until the King's pleasure shall be signified. In case of the Governor's death,
the Lieutenant Governor takes his place; and on his demise, the senior officer
on the spot is authorised to assume the reins of power.
Notwithstanding the promises made on one side, and the forbearance shewn
on the other, joined to the impending rod of justice, it was with infinite
regret that every one saw, in four clays afterwards, the necessity
of assembling a Criminal Court, which was accordingly convened by warrant
from the Governor, and consisted of the judge Advocate, who presided,
three naval, and three marine officers.
As the constitution of this court is altogether new in the British annals,
I hope my reader will not think me prolix in the description I am about to give
of it. The number of members, including the judge Advocate, is limited,
by Act of Parliament, to seven, who are expressly ordered to be officers,
either of His Majesty's sea or land forces. The court being met, completely
arrayed and armed as at a military tribunal, the Judge Advocate proceeds
to administer the usual oaths taken by jurymen in England to each member;
one of whom afterwards swears him in a like manner. This ceremony
being adjusted, the crime laid to the prisoner's charge is read to him,
and the question of Guilty, or Not guilty, put. No law officer on the side
of the crown being appointed, (for I presume the head of the court ought hardly
to consider himself in that light, notwithstanding the title he bears)
to prosecute the criminal is left entirely to the party, at whose suit
he is tried. All the witnesses are examined on oath, and the decision
is directed to be given according to the laws of England, "or as nearly
as may be, allowing for the circumstances and situation of the settlement,"
by a majority of votes, beginning with the youngest member, and ending
with the president of the court. In cases, however, of a capital nature,
no verdict can be given, unless five, at least, of the seven members present
concur therein. The evidence on both sides being finished, and
the prisoner's defence heard, the court is cleared, and, on the judgement
being settled, is thrown open again, and sentence pronounced. During the time
the court sits, the place in which it is assembled is directed to be surrounded
by a guard under arms, and admission to every one who may choose to enter it,
granted. Of late, however, our colonists are supposed to be in such a train
of subordination, as to make the presence of so large a military force
unnecessary; and two centinels, in addition to the Provost Martial,
are considered as sufficient.
It would be as needless, as impertinent, to anticipate the reflections
which will arise in reading the above account, wherein a regard to accuracy
only has been consulted. By comparing it with the mode of administering
justice in the English courts of law, it will be found to differ in many points
very essentially. And if we turn our eyes to the usage of military tribunals,
it no less departs from the customs observed in them. Let not the novelty
of it, however, prejudice any one so far as to dispute its efficacy,
and the necessity of the case which gave it birth.
The court, whose meeting is already spoken of, proceeded to the trial
of three convicts, one of whom was convicted of having struck a marine
with a cooper's adze, and otherwise behaving in a very riotous and scandalous
manner, for which he was sentenced to receive one hundred and fifty lashes,
being a smaller punishment than a soldier in a like case would have suffered
from the judgement of a court martial. A second, for having committed
a petty theft, was sent to a small barren island, and kept there on bread
and water only, for a week. And the third was sentenced to receive
fifty lashes, but was recommended by the court to the Governor, and forgiven.
Hitherto, however, (February) nothing of a very atrocious nature had appeared.
But the day was at hand, on which the violation of public security
could no longer be restrained, by the infliction of temporary punishment.
A set of desperate and hardened villains leagued themselves for the purposes
of depredation, and, as it generally happens, had art enough to persuade
some others, less deeply versed in iniquity, to be the instruments
for carrying it on. Fortunately the progress of these miscreants was not
of long duration. They were detected in stealing a large quantity
of provisions at the time of issuing them. And on being apprehended,
one of the tools of the superiors impeached the rest, and disclosed the scheme.
The trial came on the 28th of the month, and of four who were arraigned
for the offence, three were condemned to die, and the fourth to receive
a very severe corporal punishment. In hopes that his lenity would not be
abused, his Excellency was, however, pleased to order one only for execution,
which took place a little before sun-set the same day. The name
of the unhappy wretch was Thomas Barret, an old and desperate offender,
who died with that hardy spirit, which too often is found in the worst
and most abandoned class of men. During the execution the battalion
of marines was under arms, and the whole of the convicts obliged to be present.
The two associates of the sufferer were ordered to be kept close prisoners,
until an eligible place to banish them to could be fixed on; as were also
two more, who on the following day were condemned to die for a similar offence.
Besides the Criminal court, there is an inferior one composed of the
Judge Advocate, and one or more justices of the peace, for the trial
of small misdemeanours. This court is likewise empowered to decide all
law suits, and its verdict is final, except where the sum in dispute amounts
to more than three hundred pounds, in which case an appeal to England
can be made from its decree. Should necessity warrant it, an Admiralty court,
of which Lieutenant Governor Ross is judge, can also be summoned, for the trial
of offences committed on the high seas.
From being unwilling to break the thread of my narrative, I omitted to note
in its proper place the sailing of the 'Supply', Lieut. Ball, on the 15th
of the month, for Norfolk Island, which the Governor had instructions
from the ministry to take possession of. Lieut. King of the Sirius was sent
as superintendent and commandant of this place, and carried with him
a surgeon, a midshipman, a sawyer, a weaver, two marines, and sixteen convicts,
of whom six were women. He was also supplied with a certain number
of live animals to stock the island, besides garden seeds, grain,
and other requisites.
A Narrative of the Expedition
to Botany Bay
by Watkin Tench |
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