History of New South Wales
From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789
G. B. Barton - 1889
PART I
Phillip and His Staff
IT is not possible to estimate Phillip's position in the colony accurately without some reference to the principal members of the establishment of which he was the head. Each of these men bore an active part in carrying on the work with which the Governor was entrusted, and the services rendered by them in their several capacities deserve some distinct recognition. Two of them, Hunter and King, succeeded him in the government of the colony, and a third, Collins, became Lieutenant-Governor of Van Diemen's Land. In their cases as well as in his, it is necessary, in order to understand the course of events, to ascertain as far as possible the character of the individual as well as the nature and extent of his work; but to do this requires us to trace each man's career from the beginning, as we find it recorded in the annals of the time. So far as the principal figures on the stage are concerned, there is not much difficulty in doing so, owing in a great measure to the fact that they left behind them a good deal of useful material for the purpose in the shape of their own journals. They stand out distinctly enough. That Phillip was, on the whole, fortunate in the selection of colleagues made for him in England may be admitted, notwithstanding the complaints he had occasionally to make. With one exception - that of the commanding officer of the marines - they appear to have been all more or less active, if not enthusiastic, in the performance of their duties. He had a personal friend as well as an efficient officer in Lieutenant King of the Sirius, whose services at Norfolk Island proved of no little value to him. On the other hand, he was painfully hampered by the want of cordiality shown by Major Ross; while his difficulties were often aggravated by the fact that the head of the judicial department was by no means qualified for the post in which he found himself installed. With these exceptions, Phillip seems to have had little reason to find fault with his officers. Had fortune so far favoured him as to secure a zealous co-operation on the part of the military, and a wise as well as a humane administration of justice, many obstacles would have been removed from his path, while his work would have been made comparatively easy.
First on the list stands Captain Hunter of the Sirius, whose Historical Journal forms a valuable contribution to the history of the colony. The work affords good evidence of an intelligent if not of a highly cultivated mind, and it shows in a very conspicuous manner the great interest he felt in the foundation of the colony. Recollecting that naval officers in his day were not usually men of much educational attainments, Hunter's book deserves to be regarded as a highly creditable performance. The strictly nautical details to which he could hardly avoid giving a prominent place in its pages, show him to have been an accomplished as well as a careful seaman, although he was unfortunate enough to lose the Sirius at the very time when her services were of vital importance to the starving population of Sydney Cove (1). But his mind was large enough for something more than navigation; and although he does not enter into any expression of his personal views or feelings on the subject, his reader soon begins to see that the captain of the Sirius had his heart in the work in which he was engaged. He was an active as well as a cordial colleague of Phillip in every thing that could tend to promote the interest of the settlement. Difficulties did not keep him idle. A few days after his arrival with the transports in Port Jackson, he set off with a six-oared boat and a smaller one, for the purpose of making as good a survey of the harbour as circumstances would admit. His tracings of the survey, as well as his chart of the coast between Botany Bay and Broken Bay, published at page 101 of his quarto, remain to show how well the work was done. The interest he took in the exploration of the country inland led him to publish at the same time a "Map of all those Parts of the Territory of New South Wales which have been seen by any person belonging to the Settlement established at Port Jackson," constructed by Lieutenant Dawes in March, 1791. As the first of all our exploration maps, it has historical as well as geographical interest, and deserves to be carefully studied by those who would understand the history of Australian exploration in its earliest stage. Another useful map, representing the progress of the settlement, was drawn by Hunter in 1798, and published by Collins in the second volume of his work, facing the title-page. The original tracing contains a note in Hunter's handwriting, informing us that "the red lines show the country which has been lately walked over." The exploration of the unknown interior interested him, apparently, quite as much as it did Phillip, whom he accompanied on several expeditions. He was one of the party which discovered the Hawkesbury River, and his account of the journey is full of interest. It was on this occasion that they met with the interesting little adventure with the young native woman and her child, sketched by Hunter on the spot, an engraving of which appears on his title-page. On this as on other occasions he showed how warmly he seconded Phillip's efforts to gain the good-will of the natives, by treating them with kindness, especially when in distress.
The first flag-staff and look-out station at the South Head were put up by Hunter at his own suggestion, at a time when every eye in the settlement was anxiously turned in that direction in the hope of seeing a ship from England with supplies. This was in January, 1790, when the provisions in the public store were not enough to last more than six months, even at half the usual allowance.
We all looked forward with hope for arrivals with a relief; and that every assistance necessary for strangers might be at hand, I offered, with a few men from the Sirius, to go down to the south head of the harbour, there to build a look-out house and erect a flag-staff upon the height, which might be seen from the sea; and which might also communicate information of ships in the offing to the Governor at Sydney Cove. The Governor approved of my proposals. I went down with six men, and was accompanied by Mr. White and Mr. Worgan, the surgeons of the settlement and Sirius. We erected a flag-staff and lived in a tent for ten days, in which time we completed a tolerably good house. At the end of ten days I was relieved by Mr. Bradley with a fresh party (2).
During Phillip's residence in the colony, Hunter made a voyage in the Sirius to the Cape of Good Hope to obtain further supplies of provisions; sailing in September, 1788, and returning in May of the following year. He concluded his account of the voyage with a remark which shows the opinion he had formed with respect to the existence of a strait between New Holland and Van Diemen's Land - a matter which had been a subject of speculation for many years among navigators.
In passing (at a distance from the coast) between the Islands of Schouten and Furneaux and Point Hicks - the former being the northernmost of Captain Furneaux's observations here, and the latter the southernmost part, which Captain Cook saw when he sailed along the coast - there has been no land seen; and from our having felt an easterly set of current, when the wind was from that quarter (north-west), we had an uncommon large sea, there is reason thence to believe that there is in that space either a very deep gulf or a straight, which may separate Van Diemen's Land from New Holland (3).
The opinion then formed was afterwards confirmed by Bass's voyage in the whaleboat. In December, 1797, when Hunter was Governor of the colony, he supplied Bass with the boat and a crew of volunteers from the men-of-war in port, for the purpose of exploring the coast to the south and south-west. The results were reported to the Secretary of State by Hunter in a despatch, in which he said that Bass, when at Western Port, -
found an open ocean westward, and by the mountainous sea which rolled from that quarter, and no land discoverable in that direction, we have much reason to conclude that there is an open straight through, between the latitude 39° and 40° south, a circumstance which, from many observations made upon tides and currents thereabouts, I had long conjectured.
The existence of this strait was a subject of discussion in Cook's time, but we have seen that Furneaux reported against it, and his opinion apparently satisfied Cook. Hunter's observations during the voyage with the First Fleet seem to have led him to a different conclusion, in which he was confirmed on his subsequent voyage from the Cape of Good Hope. Referring to the run up the coast on the former occasion, Tench remarked:-
Owing to the weather, which forbade any part of the ships engaging with the shore, we are unable to pronounce whether or not a straight intersects the continent thereabouts; though I have been informed by a naval friend that, when the fleet was off this part of the coast, a strong set off shore was plainly felt.
The naval friend was most probably Captain Hunter, whose skill as a navigator was shown throughout the passage. When "the long wished for shores of Van Diemen" appeared in sight, his passengers were surprised to find that he had predicted the hour at which land would be seen:-
We made the land at two o'clock in the afternoon [of the 7th January, 1788], the very hour we expected to see it from the lunar observations of Captain Hunter, whose accuracy as an astronomer and conduct as an officer had inspired us with equal gratitude and admiration.
After the wreck of the Sirius in March, 1790, at Norfolk Island, Hunter remained there in weary captivity with the officers and crew of the ship, to the number of eighty, for eleven months, no means being available for taking them to England. The Supply had been sent to Batavia in order that a Dutch ship might be chartered and laden with provisions for the settlement; and on her return she was again sent to Norfolk Island in order to bring away the shipwrecked crew.
This information I received with joy, as our situation was now become exceedingly irksome; we had been upon this small island eleven months, and during a great part of that time, through various causes, had been oppressed by feelings more distressing than I can find words to express.
They left the island in February, 1791, and on reaching Sydney, Hunter learned that Phillip had made a contract with the master of the Dutch snow, then lying in the harbour, for the passage of the officers and crew to England -
a piece of information which I did not by any means feel a pleasure in hearing; for, anxious as I was to reach England as soon as possible, I should with much patience rather have waited the arrival of an English ship, than embarked under the direction or at the disposal of a foreigner.
The mistrust of foreigners shown in this instance seems to have been a common feeling among English officers at the time. When King reached the Cape of Good Hope on his way to England in October, 1790, he declined a passage in a French frigate because he had heard rumours of a complication between England and Spain. This state of suspicion was more than justified by the cruel treatment which Flinders met with from the French, when he put in to the Mauritius in distress in 1803. King had cautioned him strongly before he sailed against going there.
Hunter, however, was obliged to resign himself to his fate, and shortly afterwards sailed in the Dutchman for England viâ Batavia and the Cape of Good Hope, reaching his destination in April, 1792, after a voyage of nearly thirteen months. A letter which he addressed to the Lords of the Admiralty on his return, advocating the passage by Cape Horn on the homeward voyage, in preference to that by the Cape of Good Hope, or northward viâ Batavia, throws a curious light on the state of navigation at the time it was written.
In the curious group gathered together on the shores of Sydney Cove, there was but one man with whom Phillip was connected by old associations; and that was the second lieutenant of the Sirius, Philip Gidley King, who had sailed with him on a cruise to the East Indies in a frigate he commanded some six years before the First Fleet left the Channel. There was a difference of twenty years between them in point of age; Phillip being in his fiftieth and King in his thirtieth year when they stood under the British flag, drinking the health of King George and prosperity to the colony of New South Wales. A portrait of the young lieutenant, with a sketch of his previous career in the navy, was published in Phillip's Voyage - where he is described as "an officer much esteemed by Phillip as of great merit in his profession; and highly spoken of in his letters as a man whose perseverance in any service might be fully depended on." So it proved. King's face in the portrait is clearly cut and intelligent, with an expression that enables us to understand Phillip's feeling towards him. The two men had formed a friendship on board the Europe which lasted throughout their lives. How strong and how enduring the tie that bound them may be seen in a letter written from Bath by King, with a trembling hand, seven days before his death in September, 1808, to his son, "dear Phillip," so named after his old comrade:-
As this letter may probably reach you before you sail, I just write to say that I came here on Tuesday with Mr. Lethbridge, on his return to London, merely to see Admiral Phillip, whom I found much better than I possibly could expect from the reports I had heard, although he is quite a cripple, having lost the entire use of his right side; but his intellects are very good, and his spirits are what they always were (4).
ABOVE: Philip Gidley King
This is the last glimpse we have Phillip, after his return to England. He lingered on till 1814. The meeting between the two old ex-governors at Bath, both in the last stage of weakness and decay, furnishes a touching proof of the affection which had so long existed between them.
Although King had entered the navy when he was only twelve years old, he managed to learn the French language sufficiently for conversational purposes; an accomplishment which proved useful when he paid a visit to La Pérouse at Botany Bay, and also when the French ships under Baudin anchored in Port Jackson while he was Governor of the colony. He has left an interesting account in his journal (5) of the visit to La Pérouse, to whom he was sent by Phillip in February, 1788, with offers of assistance. He was accompanied by Lieutenant Dawes, and the young officers were received with all the hospitality usual on such occasions. After they had dined on board the Boussole, La Pérouse and his officers went on shore with them - at the point which now bears his name - where, says King -
I found him quite established; he had thrown round his tents a stockade, which was guarded by two small guns, and in which they were setting up two long-boats, which he had in frame. After these boats were built, it was the intention of M. Peyrouse to go round New Ireland, through the Moluccas, and to pass to the Island of France by the streights of Sunda.
The unhappy Frenchmen did not know then that a very different track had been marked out for their ships on the chart of destiny. After the party had gone through the stockade they went to the observatory, where they found the astronomer of the expedition at work in a tent; and as conversation naturally turned on scientific matters, the Frenchmen paid a well-merited compliment to Captain Cook, saying that at every place they had touched at and been near, they had found all his nautical and astronomical observations exact. La Pérouse added, with the epigrammatic point characteristic of French genius:-
Enfin, Monsieur Cook a tant fait qu'il ne rien laissè a faire que d'admirer ses oeuvres.
These are the last spoken words which history has preserved of the unfortunate Frenchman; and King did good service to his memory when he recorded them in his notes (6).
Phillip lost no opportunity for promoting his friend's interests. It was at his instance, no doubt, that King was appointed to the Sirius; and one of the Governor's first official acts, after the proclamation of the colony, was to send him to Norfolk Island with a commission appointing him commandant - thus placing him in the direct path to promotion. The service was an important one, because it involved the establishment of a branch colony to which the elder one would have to look for assistance in the trying times that lay before it. One of the immediate objects in view was the dressing of the flax-plant, the Home Government having been led to believe that the Royal Navy would soon be supplied with better sail-cloth and cordage from Norfolk Island flax than from any other material then known. That expectation was never realised, although flax-dressing afterwards formed one of the principal industries on the island for some years. The plant grew there as luxuriantly as it did in New Zealand; but the art of manufacturing it was unknown until April, 1793, when two natives of New Zealand were seized and carried away from their homes for the purpose of being employed as teachers. They were restores to their own country in the following February, when, according to Collins (p. 346), they had completed the purpose for which they were taken, by giving such instructions in the process of preparing the flax-plant that, even with very bad materials, a few hands could manufacture thirty yards of good canvas in a week. They had not been kidnapped by King's orders; but, nevertheless, in order to satisfy himself that good faith was kept with them, he resolved to see them home; and having appointed a deputy to carry on the government during his absence from the island, he sailed with them to New Zealand - an act of humanity which, however, involved him in an unpleasant correspondence with Major Grose, them administering the government of New South Wales.
King's tenure of office under Phillip's commission lasted until March, 1790, when he was recalled for the purpose of being sent to England with despatches, "in order to give such information to his Majesty's Ministers respecting the settlement I had established as could not be conveyed by letter." Probably there was another reason for this mission, the state of affairs at Sydney Cove being so desperate at that time that the necessity for bringing it home to the minds of Ministers by personal representations must have been strongly felt. King was accordingly discharged from the Sirius and placed in the position of an envoy, with the prospect of further promotion in addition to a trip home. During his two years' residence on the island, he had not spared himself in his efforts to cultivate the wilderness of pines and supple-jacks which he was expected to convert into a granary. His first garden was made in "a fine valley, in which a number of plantain or banana trees were found," to which he gave the name of Arthur's Vale in memory of his friend, whom he had already commemorated by naming Phillip Isle - an island off the coast - after him. The sort of country he had to operate on at that time may be judged from his description of it:-
I took the first opportunity of examining the island around me, and found it almost impenetrable from the size of the trees and the entangled state of their roots, which were in general two feet above the ground, and ran along it to a considerable distance. On the spaces of ground unoccupied by these roots there grew a kind of supple-jack, which in general was as thick as a man's leg; these supple-jacks ran up the trees, and as they grew in every direction they formed an impenetrable kind of network; bending some trees to the ground and then taking root again, they twined round other trees in the same manner, until the whole became an impervious forest. As I had only twelve men (one of whom was seventy-two years of age, and another a boy of fifteen), exclusive of the mate and surgeon, my progress must be very slow (7).
When Cook landed on the island in October, 1774, he found the ground, for about two hundred yards from the shore, "covered so thick with shrubs and plants as hardly to be penetrated farther inland."
King's work was evidently cut out for him when he was required to commence farming in country of that description, without any assistance in the shape of skilled labour. Having been at sea since he was twelve years of age, he could hardly tell the difference between one plant and another; he did not even know the flax-plant when he saw it (8); while the men sent with him, unskilled as they were, were too few to enable him to make much progress in clearing and cultivating. But difficulties gradually gave way before his energy and perseverance; so that when he left the island in March, 1790, he was in a position to describe the result of his farming operations with no little satisfaction, and to discourse on crops and soils as if he had been a farmer all his life. Thirty acres of public land were under cultivation when he left, while eighteen were covered with private gardens; the population numbering four hundred and eighteen, exclusive of eighty men belonging to the Sirius. His management, therefore, had proved a success, and fully justified the confidence which Phillip placed in him.
But King had other work to do on the island besides seed-time and harvest. No chaplain had been sent with his little company, for there was none to send; and consequently the duty of giving religious instruction fell upon him. Every Sunday morning at eleven the congregation were summoned to his cottage by the church-bell, "which was a man beating on the head of an empty cask;" when every one was required by general orders to "come clean and orderly and behave themselves devoutly." He was a Justice of the Peace, too, as well as a minister of magisterial functions. He was, in fact, a complete Court of Criminal and Civil Judicature in himself, although no commission had been issued to him for that purpose beyond his appointing as a magistrate (9). Collins says (p. 14) that he was "sworn in as a Justice of the Peace, taking the oaths necessary on the occasion, by which he was enabled to punish such petty offences as might be committed among his people, capital crimes being reserved for the cognisance of the Criminal Court of Judicature established here." But as almost all offences were capital crimes at that time, the distinction had very little meaning, except when a really serious case, such as murder, might occur. Soon after his arrival, for instance, King detected one of the marines in the act of stealing rum out of a small vessel in his (King's) tent, where it had been placed for safety. The offence was serious, and had it been committed at Sydney Cove, the case would have been tried before the Criminal Court, and would have resulted in a sentence of death. One of the most painful cases brought before it was that of a young convict who, availing himself, as Collins says (p. 32), of the opportunity that was given on the evening of his Majesty's birthday, when everyone was abroad looking at the bonfires, entered an officer's tent for the purpose of stealing, but was surprised and secured after a struggle in which the thief received a sword wound from the officer. A peculiar interest attaches to this case, arising from a pathetic letter written by, or rather for, the offender to his mother on the eve of his execution, and published by Tench (10). There was no essential difference between that case and the one mentioned by King; but while one offender suffered death within twenty-four hours after his conviction, the other was much more mercifully dealt with. King might have reserved the case for trial at Sydney, as he did on a subsequent occasion; but instead of doing so, he assembled the people and ordered three dozen lashes to be inflicted on the offender in their presence, first "causing him to be led by a halter to the place of punishment" - probably to remind him of the penalty he had escaped. The flogging, however, did not produce the desired effect; for three days afterwards a convict boy was detected in the act of stealing the surgeon's allowance of rum in his tent. Here was another offence for which sentence of death would have been pronounced at head-quarters; but as the boy was only fifteen years old - he had been transported for seven years - King again dealt summarily with the case, ordering a hundred lashed, "which I hoped would have a good effect."
The boy of fifteen got a hundred lashes because three dozen had failed to make a good impression on the able-bodied marine. The logic of the sentence is not convincing at the present day; but it was evidently considered good reasoning at the time. The case deserves attention as an illustration of the theory and practice of the flogging system a century ago. King's views on the subject were those of a naval officer; he administered punishment in accordance with the practice on board his Majesty's ships. He certainly had not gained any experience in that form of discipline at Sydney Cove, which he had left before it was well established there. Nor is there any reason to believe that he was an unmerciful administrator of the law; on the contrary, his summary dealing with these cases showed that he had no desire to resort to extreme measures; while his action on the discovery of a conspiracy among the convicts to seize a ship and make prisoners of the guards, as well as himself, showed that he was not disposed to abuse his powers (11). The only punishment he inflicted on that occasion was to put two of the ringleaders in irons, and deprive them of their garden ground; one of them being afterwards sent to Sydney for trial.
King sailed for England viâ Batavia a few days after his return to Sydney Cove in April, 1790, with despatches from Phillip. The narrative of his voyage might form a curious chapter in the history of navigation. The progress made in the art during the last century could not be better illustrated than it is in his experience on that occasion. The traveller now-a-days between Sydney and London has many different routes to choose from; each of them offering a variety of temptations in the shape of luxurious voyaging, with an economy of time that seems marvellous when compared with the eight or ten months usually occupied on the passage home a hundred years ago. But the only means of reaching England open to King was by way of Batavia; and when there he had to trust to chance for a ship to the Cape of Good Hope, and so on to England.
Having succeeded in obtaining a passage from Batavia to England in a small packet belonging to the Dutch East India Company, he sailed in August; but he had not been five days at sea before the whole of the crew, captain included, with the exception of four men, were rendered unfit for work by an attack of putrid fever, caused by "the pestiferous air of Batavia." King was thus forced to take command of the ship and to navigate here with a crew of four men, while the rest, confined below, were rapidly becoming delirious; even the surgeon on board being so ill as to be incapable of rendering assistance. To prevent contagion, he put up a tent on deck for himself and his crew, whom he would not allow to go below. Under these circumstances, he saw that there was nothing to do but to bear up for the Isle of France, or Mauritius, where they arrived in a fortnight. During that time, seventeen of the crew died. On reaching Port Louis, a passage to France in a French frigate about to sail was offered to King, but having "heard of a misunderstanding between England and Spain," he thought it his duty to remain on board the Dutch vessel, notwithstanding the risk of fever.
Having cleansed his ship and taken a fresh crew on board, he sailed for the Cape of Good Hope in September, and anchored in Table Bay after eighteen days at sea. There he found the unfortunate Lieutenant Riou, of H.M.S. Guardian - which had been wrecked by collision with an iceberg in December of the previous year - "waiting for orders from England." A two months' voyage from the Cape brought King to England on the 2oth December - the passage from Port Jackson having taken over eight months.
On his arrival in London, King lost no time in delivering his despatches to the Home Office and the Admiralty. The journal he had kept at Norfolk Island was also handed in at the same time; and was subsequently, at the instance of Sir Joseph Banks, published in Captain Hunter's volume. During his interview with Evan Nepean at the Home Office, King was surprised and pleased to learn from him, for the first time, that a commission appointing him Lieutenant-Governor of Norfolk Island had been signed by his Majesty and sent to his agent to be forwarded to him. He had not then received an official letter written on the 1st February, 1790, by Lord Grenville - who had succeeded Sydney at the Home Office - in the following terms:-
I have laid before the King the representations made by Governor Phillip of your services since you have been employed under his command, and I have the satisfaction to acquaint you that his Majesty has, as a reward of those services, been pleased to sign a commission appointing you Lieutenant-Governor of Norfolk Island, to which appointment it is intended to propose in the next estimate laid before the House of Commons an annual allowance of two hundred and fifty pounds.
His position in the service and consequent prospects of promotion were thus assured, through the representations of his friend. The day after he left his despatches, he had an interview with the First Lord of the Admiralty, Lord Chatham, the Prime Minister's brother, who had succeeded Lord Howe; and on the following day he saw Lord Grenville, who had probably some misgivings as to the state of affairs at Sydney Cove, owing to the wreck of the Guardian and the consequent loss of stores. Their lordships wished to get some authentic information on the subject, and had sent for King. The conversation which took place at the two interviews was fortunately noted down by him shortly afterwards, in the following words:-
On the 22nd December, 1790, I saw Lord Chatham, whose enquirys were first directed to the situation of the colony in New South Wales, and the prospects it afforded for maintaining the colonists. As my stay at Port Jackson was so very short, I could give his lordship no other information on that head than stating the actual situation of the colony for want of provisions and stores at the time I left it; and the great inconvenience that would be experienced by the loss of the Sirius. In answer to his lordship's questions respecting Norfolk Island, I gave him a detail nearly similar to that contained in my journal, that I had delivered to Mr Stephens (12) the preceding day.
Lord Chatham did not seem to take much interest in the prospects of the colony, beyond the pressing question of the hour.
Lord Grenville having desired to see me after I had been with Lord Chatham, I waited on him the next morning, the 23rd. After several general questions, to which I gave nearly the same answers as to my Lord Chatham, his lordship asked if I thought the colony would experience any total want of provisions before the probable time that the Neptune and other ships might arrive there? In answer to this question, I informed his lordship that when I left Port Jackson, the 21st April, 1790, the pork was calculated to last out till ye 26th August, the rice and flour until the 19th December, at the ration of 2lb. of flour, 2lb. of rice, and 2lb. of pork each man for seven days; and supposing the ships were not more than ten weeks from the Cape of Good Hope to Port Jackson, they would arrive two months before the pork was expended; on which his lordship said he had little doubt that the colony was amply relieved by the Justinian, which sailed a single ship.
This remark of his lordship's show how easily Ministers managed to satisfy themselves about the position of the colony, notwithstanding the wreck of the Guardian. The Justinian, as Collins tells us (p. 119), narrowly escaped being wrecked on the coast of New South Wales; had that happened, the colonists might have been starved out before relief was brought by the arrival of the Supply from Batavia in September, 1790, followed by a Dutch vessel in December. The Justinian arrived in June, after a five months' voyage. A fortnight before her arrival, the Lady Juliana came in with female convicts; and shortly afterwards three other ships dropped anchor, filled with convicts in such a state of exhaustion from illness that four hundred and eighty-eight of them were placed in hospital as soon as they were landed. These ships formed the Second Fleet.
His lordship next asked if I thought the marines would be desirous of remaining in the colony as soldiers or settlers? I replied that I never had an opportunity of knowing their opinions or wishes on that subject, but that I had my doubts whether many of them would wish to remain when relief took place. On his lordship asking the same question respecting the convicts, when their terms became expired, I said that I believed returning to England was what they in general looked forward to; but that I thought it probable, as the country advanced in resources and cultivation, that many might be induced to become settlers, and instanced the prospering state of one of that description who I had settled before I left Norfolk Island.
No question about free settlers, even the idea of sending them out had not yet assumed shape. The conversation ended with a friendly remark from his lordship, which naturally led King to put in a word or two for himself:-
His lordship then, with much politeness, expressed his unwillingness (as I was so lately arrived) to propose my immediate return to Norfolk Island. I assured his lordship I felt it both my inclination and duty to be in readiness to go whenever my services might be thought necessary; and after expressing the sense I had of the honour done me by his Majesty's appointing me Lieutenant-Governor of Norfolk Island, I took the liberty of saying that I hoped not to be thought presuming in soliciting the honour of obtaining a step in the navy. His lordship politely remarked that he should be happy to see my wish gratified, but that promotion in the navy by no means rested with him.
After a stay of nearly three months in England, King set out on his return to the seat of his government in H.M.S. Gorgon, commanded by Captain Parker - after whom his son Phillip Parker King was named. They sailed on the 15th March, and arrived in Port Jackson on the 21st September, 1791. The voyage was a pleasant one, judging from the account of it written by Captain Parker's widow and published in 1795. King had many reasons to enjoy the trip; he had not only his commission as a Lieutenant-Governor, but also another as a master and commander in the navy, having obtained the step for which he had asked Lord Grenville (13). In addition to the commissions, he had a wife whom he had married during his stay in England. Mrs. Parker tells us of many little excursions on shore at Teneriffe, Port Praya, and the Cape, enjoyed by the passengers of the Gorgon - amongst whom was Mr. Grimes, a surveyor, who was sent in 1802 by Governor King to survey Port Phillip. This lady's homely narrative gives us a sketch of social life in Sydney, at the time of her arrival, which seems to show the bright side of a picture too generally looked upon as without even a tint of colour. Let us take her sketch of "Sidney Cove" to begin with - the slopes of which, as she saw it, were still radiant with green, although the ground was very rocky; stately trees crowned the heights on either side; here and there a house or public building, surrounded by huts; red-coated soldiers on guard, with bayonets glistening in the sunlight, and gangs of labourers at work in all directions. Here is her account of what she saw on landing:-
When we went on shore, we were all admiration at the natural beauties raised by the hand of Providence without expense or toil; I mean the various flowerly shrubs, natives of this country, that grow apparently from rock itself. The gentle ascents, the winding valleys, and the abundance of flowering shrubs, render the face of the country very delightful. The shrub which most attracted my attention was one which bears a white flower very much resembling our English hawthorn; the smell of it is both sweet and fragrant, and perfumes the air around to a considerable distance (14).
The Gorgon being the first man-of-war that had entered the harbour since the foundation of the colony, her arrival formed an important event in its social history, and one that was no doubt particularly pleasing to Phillip and his officers. A lively exchange of hospitalities took place between Government House and the ship, at which many cherished memories of Old England were revived. The anniversary of his Majesty's accession to the throne occurring a few days afterwards, Phillip celebrated the occasion by a dinner which, as Collins tells us, "was served to upwards of fifty officers, a greater number than the colony had ever before seen assembled together." The guests of course included the naval officers in port. Then came a breakfast on board the Gorgon, at which "the conversation was very interesting; the one party anxiously making inquiries after their relatives in England, and the other attentively listening to the troubles and anxieties" which had been endured by the colonists. "Governor King and his Lady," we are told, resided on shore at Governor Phillip's, "to whose house the visitors generally repaired after breakfasting on board," and from which parties were made for "several pleasant excursions up the Cove to the settlement called Parramatta." The trip up and down the river gave them an opportunity of seeing the various points of beauty in that branch of the harbour, which were fully appreciated. On reaching Parramatta, Phillip took his friends to his house, described as "a small convenient building placed upon a gentle ascent, and surrounded by about a couple of acres of garden ground; this spot is called Rose Hill (15)." Here the day was spent; and among the objects of interest that attracted attention was "the beautiful plumage of the birds in general, and of the emu in particular," two of which were met with in the woods. During the stay of the Gorgon in port, the excursions included visits to many of the little coves about the harbour, where they found oysters as well as scenery to dwell upon:-
Here we have feasted upon Oisters just taken out of the sea; the attention of our sailors, and their care in opening and placing them round their hats in lieu of plates, by no means diminished the satisfaction we had in eating them.
ABOVE: Governor's House, Rose Hill - 1790
The ingenuity displayed in improvising plates out of their hats was creditable to the jack-tars of the Gorgon; but the oysters, alas! have gone, with the flowering shrubs and birds of brilliant plume. From scenes like these it may be gathered that life in Sydney Cove, even in 1791, was not altogether without its charms for those who had opportunities of enjoying it. Phillip was evidently fond of showing his visitors all the attractions of a new and beautiful country, and was probably not a little proud of his dominions. "The fatherly attention of the good Governor upon all occasions" is specially noted by his guest, whose stay in Sydney was rendered "perfectly happy and comfortable" by his kindness, combined with "the friendly politeness of the officers." Good things were not altogether wanting at their tables at this time - a happy contrast with their sufferings of the previous year. Presents of eggs, milk, and vegetables were frequently sent on board the Gorgon by the military gentlemen on shore; kangaroo was considered a delicacy, and emu was said to taste like beef. Thus the month in port went pleasantly by; and when at last, on the 26th October, "Captain King and his Lady, with Captain and Mrs. Paterson, and several other military officers destined for Norfolk Island" had gone on board the Atlantic, they were "accompanied to the end of the Cove by the Governor, Judge-Advocate, Captain Parker, and many others, who were anxious to be in their company as long as possible."
When Phillip determined to send King to England and to put Major Ross in his place at Norfolk Island, he accomplished two objects of some personal interest to himself; he removed one man from a position which enabled him to prove obstructive, if not mischievous, and he did a considerable service to the other. The line of conduct adopted by the Major had rendered it difficult, if not impossible, to look for any cordial co-operation from him; and the only means by which the strained relations that had grown up between them could be improved was by sending him to another field of exertion. The necessity for distributing the population at head-quarters, in consequence of the scarcity of provisions, afforded Phillip an opportunity for doing so. Ross was accordingly sent to Norfolk Island in the Sirius, with two companies of marines and some two hundred convicts, early in March, 1790. The ship had no sooner reached the island than she was wrecked on the reefs, but without any loss of life. This event gave rise to a singular display of authority on the part of Major Ross:-
The instant the ship struck, Lieutenant-Governor Ross ordered the drums to assemble all the marines and convicts: martial law was then proclaimed, and the people were told that if anyone killed any animal or fowl, or committed any robbery whatever, they would be instantly made a severe example of (16).
In other words, they would be tried by a Court-martial and executed. This proceeding appears to have been the result of a sudden panic which had seized the Major. The wreck of the Sirius no doubt placed the people on the island in a difficult position; their numbers had been largely increased by the new arrivals, while the imminent loss of the stores and provisions on board threatened them with starvation; their lives at any rate would depend on rigid economy in the distribution of food. In this emergency, it occurred to the Major that, as there was no Court in the island empowered to inflict the penalty of death for stealing provisions, many men might be tempted to take advantage of the fact, and the public safety might be thereby endangered. The only remedy he could think of was to substitute military law for the civil, which practically meant taking the power of life and death into his own hands. Hunter and King, accepting him as an authority on the subject, allowed themselves to be persuaded that this was the proper thing to be done under the circumstances. The arguments by which he justified his course of action were recorded in King's journal at the time:-
At ten in the morning of the next day, Lieutenant-Governor Ross, Captain Hunter, all the commissioned officers of marines and of the Sirius, and myself, assembled in the Government House, when the Lieutenant-Governor laid the situation of the island before the meeting, and pointed out the necessity of a law being made by which criminals might be punished with death for capital crimes, there being no law in force on the island that could notice capital offences: he also proposed the establishment of martial law until further orders, which was unanimously agreed to; and that in all cases where sentence of death was pronounced, five persons out of the seven should concur in opinion.
This proceeding is one of many illustrations met with in our early history of the marked propensity shown by military men for setting aside the magistrate, and assuming arbitrary power at a moment's notice. There was no precedent for the act; nor was there any authority for it; still less was there any justification. The only justification recognised by English law is necessity; but that means a necessity demonstrated by facts, not an imaginary one (17). At the very least, Ross might have waited until his fears had been realised; and he might have waited in safety, seeing that he had an overpowering force of marines, to say nothing of the crew of the Sirius. Apart, moreover, from the absence of any justification for his proceeding connected with the existing state of affairs, there was the fact that the power to proclaim martial law did not rest with him, but with the Governor of the territory; the proclaiming of martial law being at all times a matter for the consideration of the Executive Government, and not of the military employed in enforcing it (18). Although the Major held a dormant commission as Lieutenant-Governor, that did not invest him with supreme power at Norfolk Island while Phillip was at head-quarters. As a matter of fact, at the time he undertook to establish military law his position was simply that of Major of marines; King being still commandant of the island (19). But although he was still commandant, and as a magistrate had power to enforce law and order, calling in the aid of the military if he found it necessary (20), Ross did not hesitate to supersede him in order to carry out his own plans for the "good government" of the island. The manner in which he accomplished this purpose was characteristic. As soon as the wreck took place, he summoned a meeting of "all the commissioned officers of his Majesty's navy and marines at this place, for establishing such rules and regulations as may be necessary for the good government of the settlement on the present occasion." These gentlemen, who were termed a "council," were peremptorily "required to meet the Lieutenant-Governor at Government House" on the same day. When the Council was assembled, a series of resolutions, embodying the Major's ideas of good government, was drawn up and agreed to. The first declared that seven commissioned officers should comprise a General Court-martial; but that sentence of death should not be passed in any case unless five members of the Court concurred in the judgment.
By means of this resolution, Ross at once got rid of the difficulties in the way of holding a General Court-martial, which had proved insuperable at Sydney Cove. There it had been held that such a Court could not be constituted unless thirteen officers were present; and when that condition was complied with, it was laid down by the marines that they could not act under any warrant unless it came from the Lords Commissioners of the Admiralty. For that reason they declined to recognise the validity of a warrant issued by Phillip under the authority of his Majesty's commission. The resolution, therefore, proposed to create a Court at Norfolk Island for the trial of offences with the same jurisdiction as the Criminal Court at Sydney Cove, to be convened by no better authority than a warrant under the hand of Major Ross. It is true that when martial law is proclaimed, the constitution of the Courts convened under it may be left to the discretion of the officer charged with the duty of enforcing it; and it is not absolutely necessary that there should be any Court at all (21). But that view of the matter holds good only where military law has been legally proclaimed by the proper authority, under circumstances which would be held to justify an interruption of the ordinary course of justice.
Another resolution declared that "all marauding or plundering, whether of public or private property, will be deemed capital crimes;" in other words, a charge of theft would be followed by sentence and execution. Thus the island was placed under military law in its strictest form; King's command was extinguished, and civil government on the island was at an end (22).
The proceedings which took place on the occasion of the proclamation formed a pretty little scene for a melodrama:-
At eight o'clock in the morning, all persons on the island were assembled near the lower flag-staff, on which the Union was hoisted: the marines were drawn up in two lines, leaving a space in the centre, at the head of which was the Union. The colours of the detachment were then unfurled, and the Sirius's crew were drawn up on the right, and the convicts on the left, the officers being in the centre. The proclamation was then read, declaring that the island was to be governed by martial law until further orders: the Lieutenant-Governor next addressed the convicts, and after pointing out the situation of the settlement, he exhorted them to be honest, industrious, and obedient. This being concluded, the whole gave three cheers; and every person, beginning with the Lieutenant-Governor, passed under the Union flag, taking of their hats as they passed it in token of an oath to submit and be amenable to the martial law, which had then been declared.
Major Ross remained in charge of the island until King's return in November, 1791, when the Major sailed for Sydney, and shortly afterwards for England. On his departure, his position as commanding officer of the forces was occupied by Major Grose, who arrived in the Pitt, transport, in February, 1792, the first detachment of the New South Wales Corps, of which he was major commandant, having reached the colony in June, 1790. Grose's career in the colony after Phillip had left it formed a singular parallel to that of his predecessor. Under his rule as Lieutenant-Governor, military power became supreme, the magistrate was suppressed, and the colony was governed in much the same fashion as a camp. Grose's commission as Lieutenant-Governor of the colony was publicly read "on the parade in front of the quarters," a month after his arrival; but he did not enter into office until the following December, when Phillip returned to England.
The appointment of a captain of marines to such a post as that of Judge-Advocate at the foundation of the colony was a striking departure from the ordinary rules of the service. The office was a purely civil one; and in view of the fact that the Judge-Advocate presided over the administration of law in the settlement, the selection of a military man for the post can be explained only on the ground that it was intended to administer law in accordance with military rules and practice. Collins had no judicial experience to guide him in his new career. He had not acted as a Judge-Advocate in any of the military tribunals in England; but he had no doubt seen many trials by Court-martial during his time of active service in the navy. He held his appointment at Sydney Cove until 1796, when he returned to England; and after waiting some six or seven years for the promotion he had earned by his services and sufferings in the colony, he was appointed in 1803 Lieutenant-Governor of the projected settlement on the shores of Port Phillip - which he turned into a settlement on the shores of the Derwent. In addition to his judicial duties, he acted as secretary to Governor Phillip for some time after their arrival, and was consequently brought into frequent and familiar contact with him. The position he thus occupied peculiarly fitted him for another and more important office which he conferred upon himself - that of the annalist of the colony; a capacity in which he did great service to the colonists as well as to the Home Government. Although he confined his attention too exclusively to the mere occurrences of the day - a process which resulted in giving his work the character of an almanac, or rather a calendar - the narrative itself is a faithful record of the events connected with the foundation and early years of the settlement, and entitles its author to the grateful remembrance of his readers. The painful duties he was so frequently called upon to discharge as Judge-Advocate had no doubt coloured his impressions of surrounding circumstances, and gave the gloomy character to his chronicle which makes itself so forcibly felt in the present day. Writing day by day as if he had the fatal black cap on his head, he could hardly avoid giving prominence to the dismal scenes in which he was so often compelled to take part.
His own character has been described by those who knew him as essentially humane; he was more than merciful in his administration of the government at Hobart Town. To a man of cultivated mind as well as kindly feeling, the frequent discharge of such judicial duties as fell to his lot must have been trying at the least; and it may readily be believed that his influence with the Governor was not seldom exercised for the purpose of tempering justice with mercy. Perhaps nothing could more forcibly illustrate the prevalent opinion with respect to the criminal code then in force than the fact that, although it was administered by a man whose personal sympathies must in many cases have revolted against its extreme severity, he had not a word to say in condemnation of it, the inference being that it did not present itself to his mind as more severe than it should be. On that point the Judge-Advocate probably held the same opinion as the Judges in England, who were so much in the habit of passing sentence of death for trifling offences at the Criminal Assizes, that they learned to look upon such sentences as absolutely necessary for the protection of society (23). Every sentence of death or flogging imposed by the Criminal Court for the first eight years of its existence was pronounced by Collins; and in many of those cases he knew, and recorded the fact, that the crime for which punishment was exacted had been committed under the pressure of starvation (24). The terrible penalties demanded by the law for such offences - in some cases death, in others many hundreds of lashes - seem so inhuman at the present day that the men who administered the law are too often held responsible for its severity. But they were no more accountable for it than the man who guides a steam-engine can be held to answer for its movement. His position as Judge-Advocate made Collins the mouthpiece of the law, but it gave him no control over it; he had no alternative but to pronounce judgment and sentence according to its letter. He had no discretionary power whatever.
During the greater part of Phillip's time, the chief question he had to deal with was the supply and distribution of food. The very existence of the colony depended almost entirely on the arrival of ships from England with provisions; and when the ships did not arrive at the expected time, death from famine could only be averted by the most rigid regulations with respect to the allowance of food. To protect the public store against depredation became a matter of urgent necessity; and the only means of protecting - according to the ideas then in vogue (25) - was to increase the punishment for theft, although it frequently happened that the offenders, from want of sufficient food, were admittedly "too weak" to endure punishment at all. A terrible illustration of this dilemma may be seen in Collin's book. After recording the death of a man who had dropped down dead at the store to which he had gone for his day's provisions - the cause of death being sheer starvation - Collins proceeds to state that the Criminal Court, when assembled to deal with a prisoner who had been caught in the act of stealing potatoes in the clergyman's garden, "finding that the severity of former Courts did not prevent the commission of the same offence," varied the ordinary punishment by directing that the prisoner before them should receive three hundred lashes, lose his ration of flour for six months, and be chained for that time to two other delinquents of the same class (26). The effect of this sentence may be estimated from the fact that "the Governor remitted, after some days' trial, that part of it which respected the prisoner's ration of flour, without which he could not long have existed." This case is chronicled by Collins without any expression of opinion tending to show that it was regarded as unmerciful; the salient feature in the case was, apparently, that the potatoes were in danger. But in justice to his memory it should not be forgotten that, at that time, the protection of the stores was undoubtedly a matter of life and death to the community. Nor was he singular in his opinion, when compared with the legislators and moralists of the age.
The peculiar circumstances of the time led to a singular distortion of views with respect to the moral nature of the offences brought before the Court. While the heaviest punishment that could be inflicted was unsparingly dealt out to those who ran off with their neighbours' vegetables or helped themselves to the contents of the public store, much more serious violations of the moral code were looked upon as comparatively venial. Collins, for instance, states that a soldier who was condemned to death in July, 1789, for a criminal assault on a child eight years of age, was recommended to mercy and pardon by the Governor, "on condition of his residing, during the term of his natural life, at Norfolk Island (27)." At that time, residing at Norfolk Island was practically no punishment, because there was a better supply of fresh provisions there than there was at Sydney Cove. Whether this was so or not, the mercy extended to the offender contrasts strangely with the hard measure dealt out to others. In March of the same year, "six marines, the flower of our battalion, were hanged by the public executioner on the sentence of a Criminal Court, composed entirely of their own officers, for having at various times robbed the public stores of flour, meat, spirits, tobacco, and many other articles (28)," There was no recommendation to mercy in that case, although it was known that the men had been tempted to commit the offence by the scarcity of provisions, and the opportunity placed in their way. That the extreme penalty of the law should be rigorously exacted for the commission of petty thefts which now-a-days would entail nothing more than a term of imprisonment, while a criminal assault on a child should meet with so much merciful consideration, seems an absurd inversion of all recognised principles in the administration of justice. The only justification that can be found for it lies in the critical condition of the community at that time, which created a feeling of alarm for the public safety rapidly developing into panic. Many analogies, however, might be found in the history of much older and wiser communities than that of Sydney Cove in the last century; for the influence of panic may be frequently traced in the legislation of the present day as well as in the administration of justice.
NOTES:
(1) "Shortly after his arrival in England (in 1801), Captain Hunter was appointed to the command of the Venerable, seventy-four guns. When cruising with that vessel in Torbay, one of the seamen accidentally falling overboard, Captain Hunter humanely ordered her to put about to pick him up. In executing this manoeuvre, the vessel missed stays, ran ashore, and was wrecked. Captain Hunter was in consequence brought to a Court-martial for the loss of the vessel, but was honourably acquitted. In the course of the trial, it is reported that, when asked what had induced him to put the ship about in such circumstances, he replied (for he was a good man rather than a worldly wise one) that he 'considered the life of a British seaman of more value than any ship in his Majesty's navy.' He was afterwards promoted to the rank of Rear-Admiral." - Lang, New South Wales, 4th ed., vol. i, p.65.
(2) Journal, p. 170. An interesting relic of the Sirius may be seen at the Electric Lighthouse near Watson's Bay, in the shape of an old iron nine-pounder mounted on a carriage, with the following inscription engraved on a copper plate affixed to the breech:-
"This gun, which formed a portion of the armament of H.M.S. Sirius, the first man-of-war that entered Port Jackson, was landed here shortly after the foundation of the colony for signalling arrivals, &c."
How the gun came to be landed from the Sirius is told by Captain Hunter (p. 89):- "In the month of September (1788), Governor Phillip signified to me that it was his intention very soon to despatch the Sirius to the Cape of Good Hope in order to purchase such quantity of provisions as she might be capable of taking on board; and that she might be made as light as possible for that purpose, he desired that I would land eight or ten of her guns and carriages, with any other articles which I judged the ship could spare for the time she might be absent, and which might answer the purpose of lightening the ship and the making of room. In consequence of this order, eight guns with their carriages, and twenty-four rounds of shot for each gun, twenty half-barrels of powder, a spare anchor, and various other articles were put on shore at Sydney Cove."
These guns were probably mounted in the first instance at the redoubt built on Dawes ' Point. The one now at the lighthouse is the only one remaining of the whole number put on shore. Four of them were sent down to South Head by Governor Macquarie soon after his arrival and previous to the erection of the old Macquarie lighthouse, to be used as signal guns. Some time afterwards three of the guns were in course of removal to Sydney in a boat, when it sank off Bradley's Head, and the guns were never recovered.
(3) Journal, p. 125.
(4) In a previous letter written from Tooting, in Surrey, in July, 1808, King wrote to his son:- "I was with Admiral Phillip a week; he is very much altered, having lost the entire use of his whole right side, arm, and leg; his intellect and spirits are as good as ever. He may linger on some years under his present infirmity, but, from his age, a great reprieve cannot be expected."
(5) Hunter, p. 289.
(6) Post, p. 522.
(7) Hunter, p. 301.
(8) "The surgeon, in walking about the island, found out the flax-plant, which proved to be what we had hitherto called the iris; not having any description of the plant, I had no idea of its being what Captain Cook called the flax-plant of New Zealand." - Hunter, p. 304.
(9) The Commission given to King was short and simple:-
By His Excellency Arthur Phillip, Esq., &c.
By virtue of the Power and Authority vested in me I do hereby constitute and appoint you, Philip Gidley King, Esq., Superintendant and Commandant of Norfolk Island and of the settlement to be made thereon:-
You are therefore carefully and diligently to discharge the duty of Superintendant and Commandant of the same, by performing all and every such instruction as you have or may hereafter from time to time receive from me, for the good of his Majesty's service.
Given under my hand and seal, this twelfth day of February, 1788.
(10) Narrative, p. 112; post, p. 525.
(11) Hunter, p. 346.
(12) Under Secretary at the Admiralty.
(13) Post, p. 526.
(14) This passage bears a curious resemblance to one in Tench's Narrative, p. 118, on the same subject:- "The general face of the country is certainly pleasing, being diversified with gentle ascents and little winding vallies, covered for the most part with large spreading trees, which afford a succession of leaves in all seasons. In those places where trees are scarce, a variety of flowering shrubs abound, most of them entirely new to an European, and surpassing in beauty, fragrance, and number all I ever saw in an uncultivated state: among these, a tal, shrub, bearing an elegant white flower which spells like English may, is particularly delightful, and perfumes the air around to a great distance." Mrs. Parker evidently had this description before her when writing her own.
(15) The "gentle ascent" was called "the Crescent" by Phillip, from its natural appearance. It formed the site of the Government House built by Governor Macquarie, which is still standing, and from which Lady Mary Fitz Roy set out on her fatal drive on the 7th December, 1847.
(16) King's Journal, in Hunter, p. 383.
(17) Nothing but the necessity arising from the absolute interruption of civil judicature by arms can warrant the exercise of what is called martial law. - Clode, Military Forces of the Crown, vol. ii, p. 486.
(18) The proclamation should be made by the Executive Government, as the representative of the Crown. The MIlitary officer who carries out the orders of the Crown to supersede all law by his own authority should not be concerned in it, but should be absolutely free from all responsibility as regards the proclamation itself. - Tovey, Martial Law, p. 89.
The declaration of martial law is the act of the Government, or other supreme authority. Its execution is directed by the commander of the forces. - Finlason, Martial Law, p. 73.
(19) On his arrival at the island, Major Ross "requested that I would continue the command until my departure." - King's Journal, p. 383.
(20) Every magistrate has authority to command all subjects to assist him in the suppression of riot, and has also authority to call in military assistance when he thinks it necessary. In 1796, Lords Eldon and Redesdale stated, in a report to the Duke of Portland concerning the riots in the West of England:- "We apprehend that the civil magistrates have the same power to call for the assistance of the military, as they have to call for the assistance of others of his Majesty's subjects." - Tovey, Martial Law, p. 10.
The Latters Patent constituting the Courts of Civil and Criminal Jurisdiction expressly declared that all justices of the peace in the colony should have "the same power to keep the peace, suppress and punish riots," &c., as justices in England had; post, p. 536.
Lieutenant Cresswell, of the marines, who was sent with a detachment to Norfolk Island in June, 1789, after the discovery of the conspiracy to seize King, was worn in as a Justice of the Peace for the island before his departure. There were consequently two magistrates there when martial law was proclaimed.
(21) It is distinctly laid down that persons under martial law - that is, in case of mutiny or rebellion - may be summarily tried and convicted, without even the ordinary forms of military law, and with only such inquiry, whether by Court-martial or otherwise, as the circumstances admit of; and if by Court-martial, then by such evidence as can be obtained. - Finlason, Martial Law, p. 83.
(22) In the various cases in which martial law has been proclaimed in British colonies (collected in Tovey on Martial Law, p. 152) the act was justified by the outbreak of insurrection. The most noteable instance of the kind occurred in Jamaica in 1865, when Governor Eyre proclaimed martial law in order to suppress riot and disorder among the negroes. One of the ringleaders having been tried and executed by Court-martial, an indictment for murder was presented against Governor Eyre in England, but the bill was thrown out by the Grand Jury. Another indictment was then laid against the commanding officer of the troops who had presided at the Court-martial, but the bill was thrown out. In the course of his charge to the Grand Jury Lord Chief Justice Cockburn said:- "No one, I think, who has the faintest idea of what the administration of justice involves, could deem the proceedings on this trial consistent with justice, or, to use a homely phrase, with that fair play which is the right of the commonest criminal. All I can say is, that if on martial law being proclaimed a man can lawfully thus be tried, condemned, and sacrificed, such a state of things is a scandal and reproach to the institutions of this great and free country. I enter my solemn and emphatic protest against the lives of men being thus dealt with in time to come."
(23) Sir Samuel Romilly relates that when he introduced a bill, in 1808, to repeal the Act of Elizabeth which made it a capital offence to steal privately from the person of another, the reform met with determined opposition from many eminent lawyers. Burton, a Welsh Judge, objected to it because it proposed to leave the offence mere larceny, punishable with only seven years transportation. He thought the punishment should be transportation for life; and said that unless that alteration were made in the bill, he would vote against it. Lord Ellenborough was of the same opinion.
(24) "Their universal plea was hunger; but it was a plea that, in the then situation of the colony, could not be so much attended to as it certainly would have been in a country of greater plenty;" p. 120. While thefts were common at Sydney Cove, "at Rose Hill the convicts conducted themselves with much greater propriety; not a theft nor any act of ill behaviour having been for some time past heard of among them." To which he added, in a foot-note - "they had vegetables in great abundance;" p. 112.
(25) Tench, referring to the extreme distress prevalent in May, 1790, described the measures adopted to suppress theft of provisions as follows:- "Persons detected in robbing gardens or pilfering provisions were never screened: because as every man could possess by his utmost exertions but a bare sufficiency to preserve life, he who deprived his neighbour of that little drove him to desperation. No new laws for the punishment of theft were enacted; but persons of all descriptions were publicly warned that the severest penalties which the existing law would authorise would be inflicted on offenders. Farther, to contribute to the detection of villainy, a proclamation, offering a reward of 60 lb. of flour, more tempting than the ore of Peru or Potosi, was promised to anyone who should apprehend and bring to justice a robber of garden ground." - Complete Account, p. 43.
(26) Account of the Colony, pp. 110, 111.
(27) Ib., p. 80.
(28) Tench, Complete Account, p. 17; Collins, p. 59.
