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

G. B. Barton - 1889

PART I

Phillip And The Military

 

NOT only had Phillip put on record his aversion to extreme measures in dealing with offenders, but he also indicated the course of action which he proposed to adopt for the purpose of ensuring order and good conduct among the people under his charge. In his despatches of the 9th July and 30th October, 1788, he speaks in feeling terms of "the little plan I had formed in the passage for the government of these people," which he had been obliged to give up on account of the stubborn disinclination of Major Ross to "interfere with the convicts" - as he put it. The little plan which had suggested itself to Phillip's mind as a better means for maintaining order than the frequent use of the lash, or even the gallows, was simply that officers should use their personal influence among the men for the purpose of encouraging them in well-doing, whenever an opportunity might offer. The request he made of them soon after landing was as follow:- "That officers would, when they saw the convicts diligent, say a few words of encouragement to them; and that when they saw them idle, or met them straggling in the woods, they would threaten them with punishment." There was not much in this, as Phillip said, that "would degrade either the officer or the gentleman;" but the officers, acting under the Major's inspiration, did not look at it in that light. They were not concerned in promoting order and good conduct among the convicts. They were sent out on garrison duty; their official instructions were comprised in "a letter sent from the Admiralty to the Commanding Officers of Marines at Portsmouth and Plymouth;" they would govern themselves by that letter, and not by any requests they might receive from Governor Phillip. On these grounds they absolutely declined to "interfere with the convicts" in any way, even to the extent of giving an occasional word of encouragement to the diligent, or a caution to the idle; although, at the same time, they claimed a right to convict labour in the cultivation of their gardens. So punctilious were they with respect to the strict lines of their military duty, as they conceived it, that they thought "the being obliged to sit as members of the Criminal Court an hardship," because they were not paid for it. "They did not suppose that they were sent out to do more than garrison duty;" and they thought themselves "hardly dealt by in that Government had not determined what lands were to be given them." These demands were no doubt designed to bring pressure to bear upon Phillip, in order that he might obtain from the Home Government the concessions to which they considered themselves entitled. They thought they ought to have their grants of land immediately,as well as convict labour for its cultivation; and also that they ought to be paid for their services in the Criminal Court. Because he did not adopt their views on these points, they had no hesitation in giving him plainly to understand that they "declined the least interference with the convicts, unless when they are immediately employed for their own conveniency, or when they are called out at the head of their men."

Phillip thus found himself, soon after his arrival in the colony, in a position which every day threatened to bring him into collision with the head of the military force; and the attitude assumed by Major Ross was such as to leave very little hope of satisfactory relations being ever established between them. This was the beginning of the dissension between the civil and the military authorities which continued through succeeding administrations, and finally culminated in the deposition of Governor Bligh. It owed its origin to the absence of any instructions from the Home Government with respect to the exact position of the military force in relation to the Governor. The necessity for some such definition of duty did not present itself to the Government when the expedition was being organised; nor did it occur to Phillip, since there is no reference to it in his letters. Probably both he and Lord Sydney took it for granted that the Act of Parliament passed in 1787 rendered any special instructions from the Admiralty unnecessary. But they might have known that nothing, according to historical precedents, was more likely to happen under such circumstances than dissension between the two powers. The antagonism which grew up between Governor Phillip and Major Ross was but a reproduction, on a very small scale, of the violent struggles between the civil and military authorities which formed the prelude to many of the great revolutions recorded in history. That the difference between himself and the Major was not carried to violent extremes must be attributed to Phillip's tact, good temper, and self-control. He had provocation enough, had he been irritable and vindictive, to justify him in any steps he might have thought fit to take for the purpose of asserting his authority as Captain-General and Governor-in-Chief. But he wisely refrained from taking any steps of the kind, contenting himself with proper representations of the matter to the Secretary of State.

Major Ross was evidently disposed to act an aggressive part at every opportunity. Not satisfied with thwarting Phillip's good intentions with respect to the management of the convicts, he endeavoured to place still more serious obstructions in his path. He incited his officers to raise technical objections as to the Governor's power to summon them to attend the sittings of the Criminal Court. One (1) of them having declined to sit, Phillip appointed a Court of Inquiry to investigate the matter; but the only conclusion the Court could come to was, that they did not think themselves "competent to give an opinion on a private dispute, which appeared to them to involve in itself a point of law." He then proceeded to convene the Court in the usual way, but was again met by further objections from Major Ross. How the matter ended will be seen from Phillip's statement in his despatch:-

I had sent for several of the officers before the Court met, in order to point out 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, on the 6th May, telling me that he was still of opinion that many of his 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 result was that all the officers who were assembled, to the number of thirteen, gave it as their opinion that they were bound to sit. Ross then turned upon Phillip and charged him with being "oppressive" in his conduct, as if he had taken advantage of the officers' good nature to convert into a duty what they had merely volunteered to do as a matter of courtesy. But as Phillip did not continue the discussion, it came to nothing, and Major Ross was left to mature some other project for the purpose of embarrassing the Governor. He was not long in doing so. In one of Phillip's despatches written in February, 1790, he informed Lord Sydney of another complication in which he had found himself involved with the Major. In order to prevent the nightly plundering of the gardens which supplied the settlement with vegetables - at that time a matter of great importance, owing to the small stock of provisions remaining in the public store - the Governor had made an order directing the night-watch, then composed of convicts, to detain any soldier or seaman who might be found straggling or in the convicts' huts "after the tap-too has beat," and to give information at the nearest guard-house. A soldier having been detained under this regulation, Major Ross immediately interfered.

He sent the next morning to tell the Judge-Advocate that he considered a soldier's being stopped when not committing any unlawful act as an insult offered to the corps, and that they would not suffer themselves to be treated in that manner, or be controlled by the convicts, while they had bayonets in their hands.

When this intimation was reported to Phillip by the Judge-Advocate, the allusion to the bayonets was cautiously omitted, Collins probably thinking that it might be a little too much for his temper. The order was thereupon modified, and by a new one the night-watch was directed - "not, in future, to stop any soldier unless he is found in a riot, or committing an unlawful act, in which case such soldier is immediately to be taken to the nearest guard."

Major Ross sought to justify his interference in this matter on the ground that the order objected to had "put the soldiers under the command of the convicts;" although he knew that soldiers were in the habit of robbing the gardens, and could not be checked by any other means. The withdrawal of the order amounted to saying that they might continue to rob the gardens as much as they pleased, since the night-watch would not be likely to interfere with them after that. Phillip, as he expressed it, found himself "driven to the necessity of withdrawing an order calculated for the public service;" he had either to withdraw the order or defy the Major of marines. He was no doubt considerably galled when he was afterwards told about the "bayonets;" and he felt it due to himself to explain his position when writing his account of it to Sydney. He did so by adding the following paragraph in a parenthesis:-

Hence I beg leave to observe to your lordship that the last sentence, respecting the bayonets, was never mentioned to me till this business was settled. I should not have been induced to withdraw the order which directed the night-watch to stop a soldier by so pointed a menace, for I should not have thought it could tend to the good of his Majesty's service.

But the Major now felt that he was even with Phillip. If he had been obliged to give way on the Criminal Court question, he had compelled the Governor to withdraw his obnoxious order. This was the spirit in which the Lieutenant-Governor played fast and loose with the public service. It was nothing to him whether or not the soldiers under his command stole other people's vegetables, in a time of famine, every night; the corps was not to be insulted by placing them under the control of the police. Nor did it matter much in his eyes whether or not the Criminal Court was prevented from sitting, and offenders were allowed to go free; it was an "oppressive duty" for an officer of marines to take part in the administration of justice, unless he was paid for it.

It was a very fortunate thing that the Major was not always successful in checkmating the Governor. Had he succeeded on the Criminal Court question, for instance, the administration of law would have been brought to a dead stop, the Governor's authority would have been set at defiance, and the convicts would have been left to do as they pleased. The Major's tendency to carry things to extremes was displayed but too clearly in this instance. Apart from all sense of public duty, the terms of the Act were so clear that no room for a reasonable doubt could have been left in the mind of any officer who read it. Captain Tench and twelve other officers admitted that they always thought it their duty, from the moment that they heard the Act of Parliament read, to sit as members of the Court. Nor is it likely that any officer would have formed a different opinion, had he not been encouraged to do so by the Commandant - who slily told them that if they objected to sit, he knew of "no Article of War to compel them." There was no Article of War on the subject; nor were there any instructions from the Admiralty, as there should have been; but there was the Act of Parliament, which, in definite language and with unmistakable intention, pointed out the duty it imposed on every officer of his Majesty's forces by sea and land within the colony.

Whether or not Major Ross entertained any doubt in his own mind as to the duty imposed on the officers of the detachment by the Act of Parliament, it is clear that in acting as he did on this and other occasions he had quite forgotten the promise voluntarily made by him in a letter to Nepean, written from Portsmouth a few days before he sailed on the expedition:-

I have now only to add that this is the first instance in which the corps of marines has been employed in any way out of the usual line of duty, and as I firmly believe that any part of it being so employed is entirely owing to your friendly wish of drawing the corps forth from that subordinate obscurity in which it has hitherto moved, - impressed with this belief, permit me to offer you my own as well as the sincerest thanks of the officers of the detachment under my command for the generous opinion you have shown in favour of the corps, and to assure you that every nerve shall be strain'd in the faithful and diligent discharge of our duty; and I entertain not a doubt but that the conduct of the whole will be such as will not only do credit to your recommendation, but give satisfaction to Administration. These much-wished for objects obtained, I shall then ardently hope that what you once hinted to me might be the consequence will with your assurance take place, and that we shall no more return to our original obscurity, but become an active corps of your own creation.

Major Ross's eccentric conduct in these instances seems to have been the result of a peculiar temper rather than a studied display of insubordination. If he could not avoid coming into collision with the Governor, he was on no better terms with the Judge-Advocate or his own officers. On one occasion he made a formal complaint against Captain Collins, who, wrote Phillip, "in his turn, represented his having been treated in such a manner by the Lieutenant-Governor and Captain Campbell, before convicts and others, that he wished to resign his office (2)." The Majot not only quarrelled with the adjutant and quarter-master, but placed a captain and four subalterns under arrest for no other reason than that they, as members of a Court-martial assembled to try a soldier for assault, had passed a sentence of such a nature as, in his opinion, tended greatly to the subversion of all military discipline. The idea of punishing the members of a Court-martial because their sentence did not meet with his approval is characteristic of the man. They were no more liable to punishment for such a cause than judges or magistrates would have been under similar circumstances. If any notice required to be taken of their action at all, the proper remedy lay in an appeal to a General Court-martial, in order to have the sentence revised. But the Major evidently wanted something more than revision; he wished to bring his officers to trial in order to have them punished. In what manner he was disappointed, owing to a little difficulty which unexpectedly presented itself at the last moment. It was assumed that a General Court-martial required thirteen members to compose it, and as there were only nineteen officers in the detachment, of whom five were then under arrest, and one was ill, it was not possible to get a General Court-martial together (3). The result was that nothing could be done; the Major had to forego his revenge, and Phillip ordered the five officers to return to duty, until a sufficient number of officers to form a General Court-martial could be assembled.

This disturbance was no sooner disposed of than it seems to have been followed by another, which gave rise to more technical discussions on points of military law between the Governor and the marines. Phillip apologised to Lord Sydney for troubling him with the details of it in a despatch, but excused himself on the ground that "the very unpleasant situation of the detachment doing duty in this country, from the discontents between the Commmandant and the officers," rendered it necessary to do so - especially as it was not in his power "to restore that harmony which is so very requisite in our situation." He had received a letter from Major Ross requesting him to assemble a General Court-martial for the purpose of hearing a charge which the Major had made against one of his officers "for neglect of duty, contempt, and disrespect to him." The Governor issued his warrant accordingly, but when the thirteen officers were assembled, a question was raised as to the legality of the proceedings. The warrant was issued under the authority of his Majesty's Commission for assembling General Courts-martial; but the marines "declared that they could not sit under that warrant, being amenable only to the authority of the Commissioners for executing the office of Lord High Admiral of Great Britain (4)." Phillip endeavoured to get over the difficulty by appointing a Court of Inquiry to "inquire into the particulars of the charge, and to report whether there was or was not sufficient ground for a General Court-martial;" intending, if the report should require any further proceeding, to have the charge fully examined and reported on by another Court of Inquiry. But the officers to whom the question was referred had no sooner met than technical objections again made their appearance; and it was finally resolved that, although the members of the Court might have proceeded to hear the case before the application for a Court-martial had been made, they were precluded from doing so by the issue of the Governor's warrant (5).

In this dilemma Phillip directed the Judge-Advocate to take the evidence on both sides, intending to send the depositions to England with the officer under arrest. Before that could be done, however, Major Ross came to the rescue with a letter in which he informed Phillip that "the officer had fully satisfied him respecting the charge," and desired that he might be "permitted to withdraw his request for a Court-martial." The officer was thereupon ordered to return to his duty, and there the matter ended. It may well be supposed, however, that it did not end so far as the principal figures in the little drama were concerned. Phillip was not at all inclined to submit quietly either to personal affronts, or to official acts evidently intended to make him feel that the Governor-in-Chief was dependent on the military for assistance in carrying on the government. Feeling that the safety of the settlement was at stake in every stage of the conflict, he refrained from taking any step which might have borne the appearance of retaliation, and allowed Major Ross to pursue his own course until the proper time arrived for checking it. When it came, Phillip disposed of him not only without any display of temper or resentment, but, on the contrary, with every appearance of confidence in his discretion - by sending him to Norfolk Island with a commission as Lieutenant-Governor.

 

NOTES:

(1) Captain James Campbell, an especial friend of the Major's. In a letter to Evan Nepean, written shortly before his leaving England, Ross implored the Under Secretary to obtain some appointment for his friend, suggesting that he might be made Judge of the Vice-Admiralty Court instead of himself (Ross): "If the above cannot possibly be done for him, do, for God's sake, endeavour at something else for him. An addition to his present income is not, I am convinced, his principal object; what I myself wish for him, and what I am sure his only wish is, some kind of appointment that would give him some little consequence in himself as well as in the eyes of his brother officers going with him, all of whom, with respect to length of service, are but as of yesterday. You, my dear sir, have no idea how much I am interested in this affair, nor how very severely I shall feel myself mortified if something or other cannot be done for him before we quit this country."

(2) Collins makes no allusion to these matters in his book, although he mentions the difficulty connected with the holding of a General Court-martial; p. 44.

(3) Post, p. 294. This difficulty was afterwards obviated by sec. 20 of the Mutiny Act, 1805, which provided that any General Court-martial holden in New South Wales might consist of any number of commissioned officers not less than five. But, before this Act, it was provided in previous Mutiny Acts that a General Court-martial might consist either of thirteen or nine commissioned officers, as the case might require, "unless the same shall be holden in any place beyond the seas, in which case the Court might consist of any number not less than seven." - Tytler, Military Law, p. 134.

(4) The facts are stated by Collins, p. 44. The officers do not seem to have had any doubt as to their power to decide a purely legal question of jurisdiction. "A General Court-martial assembled by special warrant for the trial of a particular person named in that warrant must discharge their duty by taking cognisance of the crime and pronouncing sentence, either of condemnation or of acquittal from the matter of charge. It has been doubted whether it is competent for a Court so constituted to exercise any judgment as to the legality of the trial, or the amenability of the prisoner to their jurisdiction. The Naval Court-martial appointed to try Captain Norris, in 1744, for misbehaviour and cowardice in the sea-fight off Toulon, thought proper to avoid giving any sentence, either of condemnation or aquittal, by determining that they had no right to take trial of the charge, as the accused person had previously given up his commission, and was not in his Majesty's pay; although Captain Norris himself had desired a Court-martial, which had been accordingly granted to him. The proceedings of the Court were called for in the House of Commons and referred to a committee, on whose report a motion was made and passed, that those proceedings were arbitrary and illegal. Yet there would seem to be little doubt that, if the objection to the legality of the trial is self-evident and insurmountable, the Court may suspend procedure till the objection is canvassed by the proper authority; as for example, if the prisoner is not subject to Military Law, or if the crime should be a civil offence, as murder, highway robbery, rape, &c., falling under the cognisance of the ordinary municipal Courts." - Tytler, p. 142. In this case the objection was not self-evident and insurmountable, and therefore the Court might well have proceeded to hear the case, and then referred their difficulty to the Governor, instead of deciding it themselves without reference to him or to any one else.

(5) This appears to have been a new point in the practice of military law. The officers having previously decided that the Governor's warrant was valueless, and consequently that no Court-martial could be held under it, nothing could be gained by holding a Court of Inquiry, seeing that such a proceeding is of value only as a preliminary to a trial by Court-martial. It answers the same purpose as an investigation before a Grand Jury or a magistrate in the ordinary Courts; the province of the Court of Inquiry being "to determine, on such evidence as can be brought before them, whether there is or is not sufficient cause for bringing particular persons to trial for the offence or crime before a General Court-martial." - Tytler, 341.

---

 

25/04/2004

Top of this Page
Next Chapter
Table of Contents
Article and Book Archive
Kevin Matthews History Site

A KEVIN MATTHEWS
PRODUCTION