History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789

G. B. Barton - 1889

PART II

The Civil and the Military

 

A MUCH more serious question than the case of Mary Turner presented itself to Phillip's eyes when he read the correspondence between the Judge-Advocate and Captain Campbell. The latter having distinctly declined to sit again in the Criminal Court, and having also appealed to Major Ross as his authority for the view he had taken of his duty in that matter, it became necessary to settle the question at once. If the other officers should follow his example, no Court could be held and there would be no means of dealing with offenders. The course taken by Phillip will be seen in the following passages of his despatch to the Under Secretary of the Admiralty, dated 5th June, enclosing copies of the correspondence for the perusal of their lordships:-

After having pointed out the authority by which the Criminal Court was established, how much it was the officers' duty to sit as members of that Court when called on, and the obvious necessity of it, I informed Major Ross, as I had done the day I first heard of the business, that the Judge-Advocate had declared in the most solemn manner that he never had intended any offence to Captain Campbell by his letter; and as I saw no reason for that officer's refusing what was most undoubtedly a part of his duty, I desired that he would think seriously of the consequences. The precept for assembling a Criminal Court was ready to be issued as soon as the names of the officers were inserted who were next for that duty, and if Captain Campbell should persevere in refusing that duty, I desired to have his reasons in writing.

It will be seen from this statement that Phillip's first effort was aimed at conciliation. He had seen Collins before taking any step in the matter; and having learned that  the judge's letter was not intended to convey the offensive meaning attributed to it by the captain, he informed Major Ross accordingly, in order that his friend's sense of injury might be removed. At the same time he was quite prepared to deal firmly with him, and for that purpose requested to have a statement in writing of his reasons for declining to sit. The Major then undertook to see his friend, the result of their consultation being another visit to the Governor:-

Major Ross soon after brought me a letter, and as he told me Captain Campbell was fixed in his opinion that the sitting as a member of the Criminal Court was no part of his duty, and which he therefore declined, I desired that the officer next on the roster for that service might be named in his room; but Major Ross said that he did not see how that could be done, as he believed I should find the officers in general of opinion that the sitting of members of the Criminal Court was not a duty to which they were obliged to submit, but a service in which they had volunteered, and added - "That he knew of no articles of war to compel them."

The letter brought by the Major was the one he had received from Captain Campbell, and which he did not think fit to produce at his first interview with Phillip. It raised the question whether there was any power, outside the Commanding officer, to compel officers of the detachment to sit as members of the Criminal Court against their inclination. Here we get an insight into the reasons of the Major's opposition. He objected to his officers being ordered to do duty by any other hand than his own. He had heard the Act of Parliament read, and consequently knew that it authorised the Governor - or in his absence the Lieutenant-Governor - to convene the Court from time to time; but, nevertheless, he would not admit the force of it, and did everything in his power to induce his men to resist the Governor's exercise of authority over them. This interpretation of his conduct is suggested by the opening lines of Campbell's letter, which plainly imply that, if the officers should choose to resist, the Major admitted that he could not compel them; and if he could not, how could any one else? In his own words, he knew of no article of war to compel them.

I had been given to understand, soon after the Commission for establishing the Criminal Court had been read, that the officers thought it a very disagreeable duty, and that it was looked on as an hardship by some, but I never had supposed officers thought it a service which they were at liberty to decline at their pleasure; and I observed to Major Ross that I could hardly believe it possible that such an opinion was general, but which would be known as soon as the precept for assembling the Court should be issued.

At the same time, being desirous to restore tranquillity if possible, I consented to the demand then made by Major Ross, that a Court of Inquiry might be ordered to give an opinion on the Judge-Advocate's letter before the precept was issued; and after having pointed out the consequences that must follow the officers refusing what was so necessary a part of their duty, and which, being declared such by an Act of Parliament require no articles of war, or particular instructions to the Commandant of the detachment, I assured him that while there were ten men in the detachment, officers should not be wanting to form a Criminal Court.

Phillip could not have given a stronger proof of his desire to restore tranquillity than he did when he consented to Major Ross's demand, that a Court of Inquiry should be ordered to give an opinion on the Judge-Advocate's letter. The idea of a Court of any kind being ordered to give an opinion on a letter was so absurd that he might well have dismissed it with very little ceremony - especially after he had taken the trouble to communicate the judge's assurance that he was innocent of any intention to give offence. But to show that his concession on that point was not weakness, he assured the Major that "while there were ten men in the detachment, officers should not be wanting to form a Criminal Court"; in other words, if there were only ten men left among the marines, he would make six of them officers and summon them to attend the Court. That was a hint which there was no mistaking; it was plainly intended to mean that the Governor would not allow himself to be thwarted in the performance of his duty.

The Court of Inquiry which was ordered to meet on the Judge-Advocate's letter, to which Captain Campbell had taken offence, having reported that they did not think themselves competent to judge of the matter laid before them [as it was a private disagreement, which appeared to involve in itself a point of law], that Court was dissolved, and Major Ross came to inform me that Captain Campbell would protest against the report, which he said was a partial report in stating that the matter before them was of a private nature, and desired that the request made by the members of that Court for copies of the letters laid before them might not be granted. Captain Campbell declined afterwards Campbell making any protest against the proceedings of the Court of Inquiry, and copies of the letters, which they thought necessary in order to justify their proceedings to the Admiralty, were given them.

The decision of the Court of Inquiry was exactly what might have been expected. The contention raised by Campbell as to the duty of officers in relation to the Criminal Court was not submitted to the Court of Inquiry; it was merely asked to pronounce an opinion on the merits of a certain letter. It is not easy to see what would have been gained even if the Court had expressed an opinion on the subject, seeing that it could not have touched the main question at issue. The pertinacity with which Ross held on to the captain's quibble showed itself much too plainly when he went to inform the Governor that "Captain Campbell intended to protest against the report on the ground that it was partial." The idea of a protest under such circumstances was even more absurd than that of a Court solemnly sitting to report on a letter. The Major does not seem to have felt any scruple in showing that he looked upon Campbell's quarrel as his own, since he did not object to become the bearer of messages between him and the Governor.

The adjutant of the detachment had my orders to give the Judge-Advocate, as usual, the names of the officers who were next for the duty of the Criminal Court, as soon as the Court of Inquiry had made their report; but he then came to inform me that Major Ross did not choose to let him give the names of the officers at the Judge-Advocate's request; and desired that it might appear in general orders, or that a verbal message might be
sent him from me. The message was sent, and in the names given to the Judge-Advocate Captain Campbell's appeared, and he sat the next day as a member of the Criminal Court.

This was a flank movement of the Major's, intended to humiliate the Judge-Advocate in the eyes of the Governor and the detachment, by showing that his authority to collect the names would not be recognised by the Commanding officer. Up to this time it was the judge's duty to send to the adjutant for the names, and on receiving them to prepare a precept for the Governor's signature. It was not very consistent with the dignity of his judicial office that he should be employed in summoning the jurors to attend his Court; but the duty was imposed upon him either because he was the only person on the establishment who was supposed to have a knowledge of legal forms and proceedings, or because he usually acted as secretary to the Governor; or possibly for both those reasons. When the precept was signed and sealed, it was handed to the Provost-Marshal, whose duty it was to show it to the officers concerned a day or two before the date fixed for the sitting of the Court; the names being also inserted in the battalion orders of the day. The senior officers of the navy were always called upon to serve, when any King's ship happened to be at anchor in the harbour.

Still desirous of conciliating Ross and his friend as much as possible, Phillip consented to this further exaction on his part, although it involved a slight to the Judge-Advocate from which he should have been protected. The message required by Ross was sent from the Governor to him, but Campbell's name was inserted in the list of officers called upon to serve; and when the Court sat on the following day, he appeared and took his seat as quietly as if nothing had happened. He was not prepared to try conclusions with the Governor when it came to the point. There can be no doubt that he knew his duty under the Act quite as well as any of his brother officers; and that the position he took up on the matter was a foregone conclusion between him and the Major. Phillip explained his views on that point as follows:-

As no legal inquiry into the conduct of any officer could be made here, and as Captain Campbell was the only officer who could be called on to sit as a member of the Criminal Court who did not think it a part of his duty, I judged it best, for the quiet of the settlement, to let him sit as a volunteer when his name was returned.

In order to satisfy himself as to the actual state of opinion among the officers on the main question at issue - for up to this point Phillip had nothing before him but Campbell's letter and Ross's verbal statements - he determined to see some of them personally on the subject.

I had sent for several of the officers before the Court met, in order to point out to them the consequences which would follow their refusal of so essential a part of their duty; and the officers I saw on that occasion assured me that they had never doubted its being a part of their duty after they heard the Act of Parliament and the Commission read which established that Court. But Major Ross afterwards, on the 6th May, telling me that he was still of opinion that many of the officers did not think the sitting as members of the Criminal Court any part of their duty, I desired that he would assemble the officers that their separate opinions might be taken on that head.

The Major was not prepared to give way even when he found that the officers generally did not agree with him, and was injudicious enough to put the matter to a final test and by taking their opinions formally in writing. Phillip sent special instructions to him by the adjutant for this purpose, worded as follows:-

The  Governor  requests  that Major Ross will assemble the officers of the detachment now at head-quarters and report to him their separate opinions, whether or not they think it their duty to sit as members of the Criminal Court established in this country. This the Governor desires as Major Ross, their Commandant, is of opinion they do not think it a part of their duty. Captain Campbell having already given his opinion, the Governor does not wish to press him further on that head.

Thereupon - the date of this proceeding was the 6th May - the Major assembled the officers and put the question to them one by one:-

Whether they look upon sitting at the Criminal Court as a military duty or an extra duty in compliance with an Act of Parliament, and whether they had any knowledge of it before their arrival in this country?

That was not the question which the Governor had desired to be put. He wanted to know whether the officers considered it their duty to sit; not whether they looked upon it as a military or an extra duty - a point in which he was not in the least concerned. Anticipating a defeat, the Major appears to have drawn this distinction so that those officers whose consciences would not allow them to take a road for his view of the matter, might still have the appearance of supporting him. If they answered the question as he put it, they would say that they looked upon the Court business as an extra duty, and he would then be able to raise some further contention with Phillip.

Thirteen officers were present and recorded their answers; the first on the list being Captain Tench, who expressed himself as follows:-

I had no knowledge of the Act of Parliament previous to my arrival in this country; from the moment I read it I looked on it as Captain Tench's duty to sit on Criminal Courts whenever ordered, and still look on it as such.

The others answered to the same effect; all agreeing that since they had heard the Act of Parliament read, they considered it their duty to sit as members of the Criminal Court whenever ordered. There were only two of them who had seen the Act in England. None of them took any notice of the distinction put before them in the question between "a military duty" and "an extra duty in compliance with an Act of Parliament" - a refinement to which its author apparently attached some importance.

The result was, therefore, that the Major did not find a single supporter among them - a fact which enables us to understand the secret of Campbell's opposition. The matter was too simple to admit of any doubt about it all; and if it was clear to the subalterns, it may be inferred that it was equally clear to the Captain and the Commandant.

So far as this question was concerned, there was no room left for further discussion; but another and very different one, which assumed the undignified appearance of a squabble, broke out immediately afterwards. Some one was kind enough to report to Phillip certain unguarded expressions with reference to his conduct which had been made use of by Ross when addressing the officers at the meeting. How this complication came about, and what was done in consequence of it, was explained by Phillip in his letter:-

Being sometime after informed that the officers had been assembled and the Governor's conduct in calling on Captain Campbell to sit as a member of the Criminal Court had been stated to them by Major Ross as oppressive, and that endeavours had been used to induce them to join in Captain Campbell's opinion "that the Criminal Court was not a part of their duty," I then thought it necessary to enquire what grounds there were for such a report; and the first officer I spoke to on the subject doubting of the propriety of saying what passed at a meeting to which he had been called by his  Commandant,  I directed the Judge-Advocate to send for some of the senior officers then in quarters, and to ask them the necessary questions, and the adjutant who had assembled the officers and attended the meeting was afterwards sent for.

The course adopted by Phillip in this matter seems to show his intention to deal with Ross as a quasi-delinquent. Instead of sending him a formal request to assemble the officers and report their separate answers to certain definite questions, as he did before, he instructed the Judge-Advocate to draw up the questions, and to send them in an official communication - looking very much like "a lawyer's letter" - addressed to five of the senior officers, who were requested to meet him on the subject. This was done accordingly on the 28th May:-

It having been reported that the Major-Commandant of the detachment, did in the presence of many of the officers, declare that the Governor's calling on Captain James Campbell to sit as a member of the Criminal Court, established by Act of Parliament, for the trial of criminal causes in this country, was oppressive; and that the said Major-Commandant did publickly address the officers then present, in order to induce them to concur with Captain Campbell in refusing to acknowledge the duty of the Criminal Court to be any part of the officers duty;  and to persuade them to refuse sitting as members of the said Criminal Court; I am, in consequence of the said report, desired by the Governor to call upon such officers of the detachment who were present at that meeting; and to put the following questions to them; in order that it may be known how far the said report is founded in truth.

1. Was there such a meeting, and what reason was assigned by the Major-Commandant of the detachment for assembling the officers?

2. Did the Major-Commandant at that meeting say that the Governor's conduct in calling on Captain Campbell to sit in his turn as a member of the Criminal Court was oppressive?

3. Did he ask the officers to join Captain Campbell in refusing to sit as a member of that Court, or what was said on that subject?

The answers sent in fixed the responsibility of the objectionable language on the Major, beyond a doubt. The
statement sent in by Captain Tench may be taken as a specimen of the whole:-

1. The meeting was held on Monday, the 27th of April, by order of the Major-Commandant. The reason he assigned for such meeting, was to repeat a conversation he had had with the Governor, to lay before them a letter he had received on service from Captain Campbell in consequence of a correspondence he had had with the Judge-Advocate, and to read the letters which had passed between them, all of which were read to the officers by the adjutant.

2. To the best of my recollection the Major-Commandant said he had told the Governor that his conduct respecting Captain Campbell was oppressive, and that officers were not to be driven in cases where they did not feel themselves at ease to act; they were not to be compelled.

I recollect that the Major made use twice of the word "oppressive" in speaking of the Governor's conduct.

3. He did not ask the officers to join Captain Campbell in refusing to sit as members of the Criminal Court - but it is my opinion that the whole tenor of Major Ross's conversation pointed that way. My reason for thinking so is, that Major Ross more than once mentioned to the officers assembled that he had told the Governor that both he, and the officers at large, considered the sitting as members of the Criminal Court as what they volunteered, not as a duty.

As soon as the officers had left the Judge-Advocate, they went straight to the Major and informed him of what had taken place. His  curiosity being naturally excited with respect to the questions put, he wished to know what they were; but instead of giving him the desired information, his friends referred him to the  Governor. It does not appear that he took any steps to satisfy himself on the point; as Phillip said - "Major Ross has never mentioned that business to me."

The consequences that must have followed had the officers in general been of their Commandant's opinion, will be obvious to their lordships; but as no legal inquiry could be made respecting the conduct of the officer to whom, as the Lieutenant-Governor and Commandant of the detachment, I was naturally to look for support, and from whom the situation of this colony at the time called for an address of a very different nature, I did not think it proper to direct any more officers to be sent for on the subject, unless Major Ross should desire it, when the officers informed him they had been examined respecting that meeting; and which they did as soon as they left the Judge-Advocate, and being asked what questions had been put to them, they desired to refer him to the Governor for the questions and their answers, but Major Ross has never mentioned that business to me, and I have therefore thought it best to let it rest in its present state.

This was the concluding paragraph of Phillip's despatch, which may be taken as an illustration of his method of dealing with matters requiring some diplomacy. While he had every right to feel annoyed with the line of conduct adopted towards him by the head of the military force, to whom, as he said, he had naturally to look for support, he contented himself with quietly reporting the proceedings to the Admiralty and the Home Office, leaving it to the Government to dispose of the matter as it might think fit. Dependent on the military, as he knew himself to be, he could not safely have dealt with the Maior as his temper would have prompted him to do, and was consequently obliged to temporise and make concessions, instead of resenting his aggressions at once. But he contrived to have his own way in the end, notwithstanding; and all through the struggle he appears to have made Ross feel that he was determined to have it. This result could not have been accomplished without considerable tact, patience, and self-control; for if he had been as hot-headed and irascible as his adversary, nothing could have prevented a violent collision between them.

The extent to which official jealousy operated on Ross's mind was shown in a much more ludicrous form shortly
after the termination of this discussion. On the 26th August, he addressed the Governor in a formal letter respecting another grievance of which he had to complain; and as it furnishes perhaps the best specimen on record of his peculiar weaknesses, it deserves attention. In. the first three paragraphs, he unconsciously shows us how inflated he was with the sense of his importance as Lieuteiiant-Governor, and at the same time how sensitive to anything that appeared at all likely to lessen it. His allusion to " the west side of the cove " renders it necessary to explain that as soon as the settlement had been formed, Phillip placed that part of it under Ross's command, the main body of the convicts being stationed there, while the opposite side of the cove was under his own supervision; the detachment of marines being camped at the head of it, between the two, and near the stream.

Your excellency's having so repeatedly told me that the working convicts employed on the west side of the cove were to be under the command and authority of the Lieut.-Governor, so far that none of them should be removed from it by your excellency without his knowledge, that it cannot have escaped your memory.

It would be presumption in the extreme in me to suppose your excellency  not  to  know  that  when  either duty, business, or pleasure may at any time induce your excellency to absent yourself from this cove, there cannot then remain in it any authority superior to that of the Lieut.-Governor.

Taking, therefore, your perfect recollection of  the first and knowledge of the second for granted, I shall proceed to acquaint your excellency with an account of what I cannot but deem an insult offered to me in my character of Lieutenant-Governor since your excellency went last from this place.

The account of the "insult" which follows these introductory flourishes contains a pitiful detail of camp gossip; but it shows how trifles, light as air, may serve to inflame official jealousy as readily as other forms of it. It also shows the plentiful lack of wit, as well as occupation, which led the Major to pass so much time in listening to tittle-tattle among the soldiers and convicts - a habit which lay at the bottom of all the petty disturbances in which he figured so prominently.

About 12 o'clock yesterday, Fuller, the carpenter, told me that Fuller [Thody] the convict plasterer had been with him to tell him that he was informed of Bazely's having been looking for him the day before in order to direct him to join Bloodsworth's gang. Soon after, in my walks to visit the guard, I saw Bazely, and asked him that how Thody came by him to be ordered to join Bloodsworth's gang. On his saying that it was the desire of Mr. Brewer [the Provost-Marshal], I desired him to let Mr. Brewer know that I wanted to see him, and that he would find me with the officer of the guard. Mr. Brewer came soon after. I asked him how Thody came to be ordered away from the works  that he was employed in on the west side. His answer was, indeed he did not know; but that Mr. Collins had directed him to order Thody to join and work with Bloodsworth's gang from that morning. I then desired Mr. Brewer to go to Captain Collins, and tell him from me that I wished to know how Thody came to be ordered away from the officers' huts where he was at work. Captain Collins's answer, by Mr. Brewer, was that he knew nothing more of it than that when the Governor was going away he left such
orders with him.

The gist of this rambling narrative is that the Governor had insulted Major Ross because he had requested Captain Collins to give certain instructions with reference to the employment of the plasterer, instead of having communicated direct with the Lieutenant-Governor. On this fact - which seemed to him "of too serious a nature or tendency to pass over" - he proceeds to comment in the most solemn manner.

However much I felt myself hurt by this impropriety of the manner in which the order came, I immediately determined with myself to give way to it, so far as to cause the man to be taken off from the officers' hut at which he had been at work, and sent over to the other side, which was immediately done. But I at the same time determined the business of too serious a nature or tendency to pass over without making your excellency acquainted with it; for however trivial it may at first view appear, yet the nature of it, the quarter from whence it came, your excellency's name having been made use of upon the occasion, as well as the terms upon which I am too well known to stand with you, render it absolutely necessary for me, in justice to my own consequence and character, to request that your excellency will please to direct me to be informed of the cause of such authority being assumed by those in whom no such power can at present be vested.

But should your excellency say, and I cannot possibly bring myself to think you will, that you on going away from here left your orders relative to the employing convicts with the Judge-Advocate, in place of leaving them with the Lieutenant-Governor, I have in such case to request that you will please to explain to me the line of conduct which, as Lieutenant-Governor of  this  settlement, you wish me either to preserve or follow, assuring yourself that I shall endeavour to pursue that line, at least till such time as a power superior to either of us shall determine the bounds of both and redress our grievances. At present I acknowledge myself as much in the dark with respect to the line of conduct you expect me to pursue as Lieutenant-Governor, or what you expect from me or that I shall do, as I was the first day of our meeting in London. But as this may be a subject of future discussion,  I shall conclude this with my having the honour of being, &c.

It appears from the Major's reference to "the terms on which I am too well known to stand with you," that something like an open ruptnre had taken place at this time between  him  and  Phillip - the  result, probably, of  the discussion raised by Campbell's letter. The camps on the east and west sides of the cove were somewhat like those of hostile armies - one acting strictly on the defensive, the other watching every opportunity for attack, either by open fire or an occasional pot-shot. The result was not doubtful, but every movement of the enemy makes us feel how fortunate it was that Phillip contrived to keep cool throughout the struggle.

On receiving the Major's letter, Phillip informed Collins of its contents, and requested him to send his account of the matter in an official letter to the Governor. The effect of it was that he had received the instructions referred to on a Saturday, but had forgotten to carry them out until the following Monday - for which neglect he offered his apology. Ross was replied to on the day after his communication was received, in a letter which not only explained away the supposed insult, but conveyed a much-needed hint on another matter.

A few days before I went to Rose Hill, a list of all the convicts and their various employments was made out by my directions, and by which it appeared to me that James Thody was unemployed. I, therefore, desired the Judge-Advocate to order him to join the bricklayers then at work for some of the officers; and last night on my return received your letter, stating that an insult had been offered you, as Lieutenant-Governor, during my absence, by the Judge-Advocate, in ordering a man employed under your directions to a different work.

I will, sir, repeat to you what the Judge-Advocate says on that head, in his own words:- That he forgot to give the order The order the day I desired he would; and when he did recollect it he gave orders for that purpose; but on being told that the man was employed by your directions at Lieutenant Kellow's hut, as he was certain I did not know he had any work in hand when I gave the order for his joining the bricklayers' "party."

This, sir, if admitted, will, I presume, satisfy you that no insult was intended. I had myself informed you that I was going up the harbour for two or three days; and with respect to any orders being left with the Judge-Advocate that should have been left with the Lieutenant-Governor, there is not a shadow of reason to suppose anything of the kind ever was intended, and of which you must be sensible.

And in answer to your question as to what line of conduct I wish you to pursue, I have, sir, only to wish that the peace of the settlement may not be disturbed; and that you will be so good as to be a little more guarded in your expressions; for I am certain that you will think on reflection that the answer you gave to the convict, who came to tell you his time was expired, - "Would to God my time was expired too!" - was not calculated to make him satisfied with his situation, till the necessary information is received from Government respecting those people, who draw their own conclusions from what they hear, and perhaps very different from what the words are intended to convey. I did not, sir, take notice of the impropriety I saw in such a declaration, when you told me that was the only answer you gave to the convict (who was afterwards sentenced by the Criminal Court to a severe punishment, which he most undoubtedly deserved), as several officers were then present; but I repeat it, sir, that I am certain you must see the impropriety of it.

The time cannot be far distant when a legal inquiry can take place, and all complaints will then be attended to; till when, his Majesty's service requires some little forbearance on your part as well as on mine.

The Major's inquiry as to "the line of conduct which, as Lieutenant-Governor of this settlement, you wish me either to preserve or follow," would have justified Phillip in a forcible retort, had he been inclined to reply in that fashion. He might have reminded Ross, for instance, of his very irregular conduct in connection with the vacancy occasioned by the death of Captain Shea, one of his officers. When that event occurred, he offered the company to the Judge-Advocate, without even acquainting the Governor with his intention to do so; although the position occupied by Collins rendered such a proposal a matter of serious moment to the head of the Government. The facts in this case - much more important, by the way, than those which formed the substance of Ross's complaint - were communicated to Nepean by Phillip in a letter dated 2nd February.

The present situation of this colony renders it necessary to state the following particulars, and which you will please to communicate to the Right Honorable the Lord Sydney.

When on the death of Captain Shea, who died the 2nd of February, '89, Major Ross, as Commandant of the detachment, came to inform me of that event, I observed to him, that First Lieutenant George Johnston, then doing duty as my Adjutant of Orders (and who was then present), would, of course, succeed to the Captain-Lieutenancy which then became vacant, as being the oldest first lieutenant in the detachment, and that I should in future do without an adjutant, as there were so few officers. No direct answer was given by Major Ross, who left me, and sending for the Judge-Advocate, offered him the company vacant by the death of Captain Shea, telling him he was directed so to do by Lord Howe, and that if he accepted the company, he was to give up the appointment of Judge-Advocate to the detachment.

It is not at all probable that Lord Howe had directed Ross to offer the vacancy to the Judge-Advocate, for the simple reason that the impropriety of such a step was manifest on the face of it. But there can be no doubt as to the reasons which induced Ross to make the offer. He knew that, if Collins had accepted it, he would have been under the necessity of resigning the office of Judge-Advocate; and as there was no means of filling up the vacancy there and then, the Criminal Court would have ceased to exist until another Judge-Advocate could be sent out from England. There was nothing to prevent Collins from accepting the offer, had he been disposed to do so; but fortunately he did not. His refusal seems to furnish an explanation of Ross's conduct towards him on the occasion already referred to. Phillip saw through this proceeding at once; and although he probably had his doubts as to the Lord Howe story, he wrote on the assumption that it was a genuine one.

This offer being declined, any interference on my part was unnecessary; but as a circumstance of this kind may happen in future, I beg leave to observe, that if the Judge-Advocate had accepted of the company, he must have given up the appointment of Judge-Advocate to the settlement, for he could not possibly have attended to that charge, supposing he had always remained at head-quarters; but which could not have been the case, for the captains relieve each other every three months at Rose Hill; therefore, if officers who may be sent out in civil employs are at liberty to resign the place they hold when any vacancy happens in the detachment, the colony in its present situation may lose an officer who is immediately necessary, and who, as in the present instance, cannot be replaced; nor is there any officer in this settlement so absolutely necessary as the Judge-Advocate, who likewise acts as a Justice of Peace, and which employs a very considerable part of his time.

When this circumstance is laid before Lord Sydney, I doubt not but his lordship will see that the civil government of this colony may be very materially affected by directions of such a nature being given to the Commandant of the detachment, and by him carried into execution without the knowledge or consent of the Governor, and which, I presume, never was intended by Lord Howe. The first information I received of any such offer being intended was from the Judge-Advocate saying that he would not accept the offer.

Having regard to the state of affairs in the settlement at that time, Phillip had good reason to complain of such a proceeding as this. The Judge-Advocate being an officer in the Civil Service, any proposal for transferring him from the position he occupied to another should have been submitted to the Governor for his approval in the first instance. By making the offer to Collins without any reference to the head of the Government, Ross meant to show his determination not to consider him in the matter.

I was the next day told by Major Ross that he intended to give commissions to the officers he promoted in consequence of Captain Shea's death; and some days afterwards he came to ask me if his giving his son a commission as a second lieutenant would meet with my approbation. As Major Ross had not even at that time
mentioned his having offered the company to the Judge-Advocate, or made any reference to me respecting the filling up the vacancy, I desired he would excuse me from giving any approbation to that appointment in particular (1).


Since it is manifest that the little differences of opinion which so often took place between Ross and Phillip are attributable to the official jealousy displayed by the former, it is a singular illustration of mistaken judgment that the weakness in question should have been attributed by some historical writers to Phillip, while Ross's share in the matter has been altogether forgotten. In a volume published in London in 1817, under the title of The History of New South Wales, the writer - James O'Hara - concluded his account of Phillip's administration with the following sketch of his character, p. 143:-

Mr. Phillip was a man of undeniable merit; at once ardent and firm in the execution of his duty. His faults could scarcely be called such; a quickness of temper, a disposition more peremptory than is absolutely necessary in command, a too punctilious jealousy of station, with manners founded upon these qualities. But if that amenity was wanting which history has sometimes delighted to paint in the character of her favourites, he was not essentially harsh or severe. He scorned the display or semblance of that benevolence of which he had such well-founded claims to the reality.

If "a too punctilious jealousy of station" formed a distinguishing trait of his character, there is no proof of it in the records of the time, either in the shape of official correspondence or in the narratives of his contemporaries. The only evidence of the kind consists of the statements made by Ross in his letters to Nepean, which do not deserve any serious attention.

The consciousness of his power was, no doubt, the mainspring of the extravagant conduct pursued by the Major. He was placed in the position he occupied for the purpose of supporting the Governor; but, as things stood, the Governor was placed so helplessly in his power that, instead of obtaining support, he met with nothing but opposition. That was one of the many vices which marked the form of government framed by Sydney, the consequences of which made themselves felt with increasing force from year to year, until they culminated in a revolution. When the news of the discontent reached England, and the Government at last was made aware of the position into which the civil and military forces had drifted, it was determined to recall the marines, and send out a force specially raised for the service. By that means, it was thought, the evil complained of would be absolutely eradicated, and any future conflict of the kind rendered impossible. The result was quite the reverse, and naturally so; because the source of the evil was left untouched. The Government did not understand the real position of affairs in the least, and instead of applying a remedy, it aggravated and inflamed the disease. It ought to have been manifest from the first that the Governor of such a colony should be invested with absolute instead of merely nominal power; and that nothing could be more dangerous than to invest one officer with the shadow of power while leaving the substance in the hands of another. The difficulty might have been obviated by the simple precaution of issuing peremptory instructions from the Admiralty to the marines, before they left England, of such a nature as to remove all doubt from their minds with respect to their subordination to the Governor. An alternative course presented itself in the appointment of the Commanding officer to that position; but although such a plan would have prevented any conflict between the civil and military branches of the establishment, it would have resulted in different and perhaps more serious complications.

In this, as in other instances, may be seen how naturally and inevitably the most unexpected consequences flow from mistakes in matters of government. Looking at it in the light of subsequent experience - "the stern lights of the ship" - the train of evils which marked the first years of the settlement seems but the necessary result of the unfortunate circumstances which marked its foundation. The struggle for predominance which began so soon between the heads of the civil and the military departments would probably have taken place, whoever might have been in charge of them; because it was mainly attributable to the fact that the proper subordination of the military power to the Executive had not been provided for in the first instance. Under such circumstances, it is but fair to say that Major Ross's errors of judgment were to some extent the result of stance, the position in which he found himself; and that although a man possessed of great self-restraint and desire to promote the public interests might have avoided the unseemly disputes with the Governor in which he indulged, yet according to the ordinary working of human nature they were perfectly natural if not unavoidable events. On the same principle, the still more painful phenomena which made their appearance in other directions may be accounted for by tracing them to their fountain heads in the defective organisation of the community; just as we may trace the river system of the country by following each of its broad streams to its source among the mountains. The omission to provide for the moral and religious training of the people by the appointment of overseers, teachers, and ministers of religion in sufficient number, led to consequences of which Phillip made frequent complaint; but no statement that he made on the subject affords more than a faint indication of the real extent of the mischief. The imagination of the reader must fill up the picture with the too familiar details of vice and crime rampant among a people deliberately kept in ignorance of any higher law than that administered by the gaoler and the judge. In the same way, the equally fatal omission to provide competent instructors in agriculture and other necessary arts, entailed upon the unhappy population all the miseries of a state of siege; while the neglect to establish some form of government for the natives led in after years to a state of warfare between the two races, terminating in the extinction of the savage one. And it is not less true that the fundamental mistake of founding the colony with convicts instead of free settlers brought about a series of troubles and disasters, which frequently imperilled its existence and at all times paralysed its energies; until the lapse of time and the introduction of healthier elements enabled it gradually to outgrow, and at last absorb, the fruitful source of corruption and decay (2).

 

NOTES:

1. The son was appointed second lieutenant by the father notwithstanding, and was presented by him to the Governor in that capacity, with other officers promoted at the same time.

2. The practical results of this system of colonisation may be better understood by comparing it with the plan adopted by Congress in 1787 for the settlement of unoccupied territory. An Ordinance passed in that year established the following principles of government:-

 


12/08/2005

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