HISTORY OF AUSTRALIA. vol; ii. HISTORY Of AUSTRALIA BY G. ^Y. RUSDEN AUTHOR OF " HISTORY OF NEW ZEALAND ' IN THREE VOLUMES VOLUME II. IT 11 b ir CHAPMAN AND HALL, Limited MELBOURNE AND SYDNEY : GEORGE ROBERTSON 1883 [The Eight of Translation and Reproduction is re.Krved.] I n 11 9 a 1) : CI-AV AND TAYLOR, PEINTEES. CONTENTS OF VOLUME 11. CHAPTEE IX. PA SB GOVERNOR DARLING ... ... ... ... ... 1 CHAPTER X. GOVERNOR BOURKE ... ... ... ... ... 50 CHAPTER XL GOVERNOR GIPPS ... ... ... ... ... 179 CHAPTER XII. GENERAL CONDITION OF COLONIES ALTERATIONS OF CONSTITU- TIONS — CROWN LANDS — IMMIGRATION ... ... ... 384 CHAPTER XIIL CESSATION OF TRANSPORTATION ... ... ... ... 554 CHAPTER XIV. DISCOVERY OF GOLD 601 451023 AUSTRALIA. CHAPTER XI. GOVERNOR DARLING. Governor Darling arrived in New South Wales in Decem- ber 1825, after touching at Hobart Town and conveying the instructions of the Colonial Office as to the separation of the island government from that of New South Wales. He was a military man and much influenced by military ideas. A presentiment that he would be so influenced seems to have been instinctive with the leaders of the popular party, — the eman- cipists and self-styled patriots. Brisbane had warmed their sympathies by cordiality on his departure, and they were in no humour to welcome his supplanter. The incoming Governor was received like the outgoing king : " As in a tlieatre the eyes of men Are idly bent on him that enters next . . . E'en so, or with much more contempt, men's eyes Did scowl on Ricliard. No man cried, ' God save liim ! ' " Darling bore with him a Royal warrant appointing his Legis- lative Council, consisting of the chief military officer (Stewart, who had in that capacity administered the affairs of the colony in the brief interval between the departure of Brisbane and the arrival of Darling) ; the Chief Justice ; Archdeacon Scott ; the Colonial Secretary, Mr. Alexander Macleay (who arrived in January 1826, and was to succeed Major Goulburn) ; John Macarthur ; Robert Campbell ; and Cliarles Throsby. The Executive Council was to consist of the same persons, with the exception of the three last-named colonists. It must have been VOL. ir. B 2 Australia. with strange feelings that Macarthur and Campbell on the 20th December, 1825, were sworn as members of the Legislative Council, In 1808 Campbell had been one of the few respect- able persons who abetted Governor Bligh when, under the guidance of Crossley the convict, Macarthur was lawlessly imprisoned. Campbell had given evidence in favour of Bligh at the trial of Colonel Johnston. In 1825, both Macarthur and Campbell were styled "trusty and well-beloved," in a warrant under the hand of the King appointing them members of the Legislative Council of the colony ; and the warrant was sub- scribed by Lord Bathurst, from whom it had been so hard to wring consent that Macarthur should be permitted to return to the colony in 1817. The warrant of 1825 was revoked in 1827, and a new one was issued ; but the change was merely formal. Stewart was no longer named in it, but the " officer next in command to the Commander of the Forces " was placed in the Council, and Colonel Lindesay (39th Regiment) in that capacity took his seat. The other members were re-appointed. Soon after Darling's arrival it was thought advisable to present an address to him, and a public meeting was called, at which William C. Wentworth was the moving spirit. He admitted that the new Council was an improvement on its predecessor, but advocated agitation for an elected Assembly, and sounded the popular note of taxation by representation. Darling replied to the address in general terms ; and, without committing him- self to either party of colonists, proceeded with his new Colonial Secretary to introduce administrative reforms which previous laxity had made necessary. In this, as in his task of raising the tone of society, the Governor was to look for aid from the Colonial Secretary, who was noted as a man of science, and in addition to his services under the Crown had been for many years the highly esteemed honorary Secretary of the Linna3an Society, which unanimously ordered a painting of him by Sir Thomas Lawrence. That two persons freshly arrived from the mother country should concur in removing from the public offices some relics of the convict element introduced by Macquarie and untouched by Brisbane, can hardly be wondered at ; yet Darling and Macleay incurred the odium of the emancipists by weeding the departments. The order which they had not Discoveries. 3 found they attempted to secure by a system of checks and counter-checks. They effected much good by infusing a higher sense of duty among officials. The emancipist and self-styled patriot party turned savagely on the Governor, and Dr. Wardell and William Wentworth ere long vented their fury in the columns of the * Australian.' After this introduction of the Governor to his new sphere of duty, the progress of discovery during his rule must be alluded to. In 1827, Allan Cunningham combined his botanical researches with a spirit of discovery. He traversed with six men the affluents of the Nammoy and the Gwydir, discovered Darling Downs, and after a severe journey returned to his starting-point at the head of the Hunter river. Two years afterwards he went to Moreton Bay by sea ; and, exploring the sources of the Brisbane river, connected his two expeditions, and named Cun- ningham's (Pass or) Gap in the cordillera near Darling Downs. Darling selected, for the command of another exploring party, Captain Charles Sturt of H.M. 39th Regiment. With this leader Mr. Hamilton Hume was associated. In 1828, a time of drought, they started for the interior, where Oxley had found unending marshes and expanse of water. They found a waste of dry poly- gonum scrub with patches of reeds and a small muddy channel to which the Macquarie had dwindled. An attempt by Sturt to follow its course failed. Hume made excursions, and after much hardship the explorers suddenly came upon a large river, which they named the Darling. To their horror they found the water salt. They were in sore straits for themselves and their cattle ; and the unerring skill of Hume was never more welcome than when he discovered, not far from their camp, a pool of fresh water which relieved their distress. Striking the Darling first in long. 145-33 E., lat. 29-37 S.,they descended many miles without finding any alteration in the character ot the river. They turned and explored northwards. They again encountered the Darling, salt as before. After four months and a half they returned to the settlement, having ascertained that the Macquarie and Castlereagh rivers, and, inferentially, the Nammoy, Gwydir, and the Darling Down rivers, flowed into this new great river, now called the Darling, below the confluence of the rivers converging from the slopes of the cordillera. 4 Australia. Sturt was again commissioned in 1829 to explore the more southern rivers. The Lachlan had been essayed vainly by Oxley. Sturt sought the Murrumbidgee, whose waters, fed from the Snowy Mountains, were to bear him to a new and unexpected terminus. Hume could not accompany him, though asked to do so. Not only his skill in the bush but his know- led'^e of the natives caused regret at his absence. On the Darling Sturt and Hume had seen many natives, and no hostilities had taken place. Mr. {afterwards Sir) George Macleay was Sturt's companion and friend in his new undertaking. Forming a depot on the Murrumbidgee, near its junction with the Lachlan, Sturt with a chosen band started down the river in a boat. They passed the junction with the river which Hume had named after his own father; but Hume was not there to recognize it, and Sturt unfortunately, but unwittingly, discarded Hume's patronymic, and named the river the Murray,^ in honour of Sir George Murray, then Secretary of State. The boat bore them bravely downwards; they saw hundreds of natives ; they were saved from an attack of one tribe by the heroism of another native (of a tribe recently seen), who dashed across the river and arrested the uplifted arm of a leader. They returned in 1830, amidst much privation and in great prostration, and Sturt published his narrative which proved him as modest as brave. They had traced the united Murrumbidgee, Murray, and Darling waters into Lake Alexandrina, and thence to the sea in Encounter Bay. They had connected their journey across the land with the labours of Flinders, and the footsteps of other white men. They had found on the coast that the natives had seen white men before, and, unlike their brethren in the interior, had been made to dread fire-arms. Sturt's people were watchful and returned safely ; and in all his explorations Sturt never took the life of a native. Governor Darling acknowledged Sturt's services by an official notice of his exploits, and the Colonial Secretary, Mr. Macleay, had the pleasure to see his son's name included as that of one who had done the State some service in the expedition. A sad fate awaited the next explorer who visited Lake Alexandrina. Captain Barker, a brother officer of 1 The colonists have an unfortunate tendency to supplant the aboriginal names. IIuw much better a name is Karaula than Darling for a river! DlSOOVEKIES. 5 Start, had succeeded Captain Stirling as commandant at Raffles Bay, and when that settlement was, like its neighbour at Mel- ville Island, abandoned in 1829, Barker was stationed at King George's Sound. Governor Darling instructed him to hand over the last-named settlement to Captain Stirling, who had become Governor of (Western Australia or) Swan River, and then to make a more accurate survey at Lake Alexandrina than time or provisions had made possible for Sturt. The gallant officer, who was reputed to be well acquainted with the aborigines, and kindly disposed towards them, fell a sacrifice to the hatred inspired by less humane visitors. Being the only one of the company who could swim, he crossed the channel, which connects the lake with the sea, alone, taking his compass on his head. His companions saw him no more. The gallant Sturt bewailed the loss of one so true and just, so intelligent and dauntless, so kind and indefatigable. Sturt thought it probable that the " cruelties practised by sealers had instigated the natives to take vengeance on the innocent as well as on the guilty." Lieutenant Kent, the second in command, prevailed upon a sealer at Kan- garoo Island to go with him and a native woman to inquire concernincf Barker's fate. She was told that he had been speared and thrown into the sea. Numerous attempts to form settlements during the govern- ments of Brisbane and Darling evinced the desire of English Ministers to exclude foreign nations from Australia, as well as to furnish fresh outlets for British enterprise. There is docu- mentary evidence to show that to the promptness of Lord Liverpool's Administration it was due that only the flag of England was permitted to float over Austialian soil. The traditions of the sway of Pitt, who first erected it there, still prevailed in the Cabinet which comprised Mr. Goulburn, Lord Bathurst, the great Peel, and the briUiant Canning. What Governor King implored the Addington Ministry to do in order to extinguish French pretensions in 1802, while Lord Liverpool (then Lord Hawkesbury) was Minister for Foreign Affairs, the same Minister while Premier sanctioned in 1826, when those pretensions were believed to be revived.^ 1 I observe that credit has been given to Lord John Russell for asserting the British claim. He may have made it in words, after it had been estab- 6 AUSTIIALIA. Early in 1826 Lord Bathurst wrote publicly and privately to Governor Darling. Establishments at Western Port and Shark Bay were contemplated. These, with the post at Melville Island, were to secure the whole territory from the intruding French who were sending out discovery ships. Darling promptly pointed out that as the western boundary of his Government was the 129th degree of East longitude, "it will not be easy to satisfy the French, if they are desirous of establishing themselves here, that there is any valid objection to their doing so on the West Coast ; and I therefore beg to suggest that this difficulty would be removed by a Commission . . , describing the whole territory as within the government." Darling at once sent expeditions to occupy Western Port and King George's Sound. He confidentially enjoined the officers in command to be careful, if they should see the French, " to avoid any expression of doubt as to the whole of New Holland being within this government, any division of it which may be supposed to exist under the design- ation of New South Wales being merely ideal, and intended only with a view of distinguishing the more settled part of the country. Should this ex2:)lanation not prove satisfactory it will be proper, in that case, to refer them to this Government for any further information they may require." If the French should be found landed, — " you will, notwith- standing, land the troops (two officers with eighteen rank and file) agreeably to your instructions, and signify that their continuance with any view to establishing themselves, or colo- nization, would be considered an unjustifiable intrusion on His Britannic Majesty's possessions." The French corvette ' L' Astrolabe ' arrived in Sydney soon afterwards. Darling was informed by her commander that the expedition was scientific only, but lie wrote that it was perhaps fortunate that the British ships, ' Waropite,' ' Success,^ and * Volage,' were lying in Sydney. That fact, with a knowledge that H.M.S. 'Fly' had sailed for Western Port, might make the French captain " more circumspect in his proceedings than he otherwise would have been." Captain Wright took charge of the settlement at Western lished in fact ; but Lord Liverpool's Ministry had placed the matter beyond doul)t, and there was no room for anything afterwards except words. New Settlements. 7 Port. Captain Wetherall of H.M.S. 'Fly' assisted in forming it. Hamilton Hume was asked to go, but " impaired health pre- vented his complying." Hovell (his fellow-traveller in 1824) was engaged to accompany Captain Wright. Some sealers who had crossed from Van Diemen's Land were found at Phillip Island, where they had two acres of wheat and maize growing well. Captains Wetherall and Wright furnished exhaustive reports. The former spoke of the " prospect of rendering Port Phillip in some degree tributary to the establishment " at Western Port. He soon perceived that Mr. Hovell was at fault. The difference of opinion between Hovell and Hume as to the point they reached in 182-1 has been related. When Hovell had an opportunity, in 1826, of testing the point he made further blunders. Wetherall reported : " It is very evident that (Western Port) is not the country described by Messrs. Hume and Hovell, and that they could never have been there, as their accounts are not applicable to a single point either of it or to the anchorage." Wright wrote (27th March, 1827) that the country was scrubby, and that his own and Hovell's researches had failed to reveal the fine pasture land seen in 1824. Hovell had been " occupied twelve days in looking at the country north between Western Port, the mountains, and Port Phillip, but never got to the latter." Wright resigned his charge to his successor. Lieutenant Burchell, and Hovell prosecuted his researches, which were duly reported to the Colonial Office. He thought he had found Hume's terminus on the Bay near "a very extensive fresh- water marsh, twelve to fifteen miles long, separated from Port Phillip by a narrow ridge or bank of sand not more than from two to three hundred yards wide." This was the Carrum Swamp, which bounded Tuckey's explorations in 1803 under Colonel Collins ; but though Hovell, in one of his reports (27th March), alluded to Tuckey's narrative, he appears to have been incapable of perceiving that Tuckey's land journey from Collins' Camp was perforce confined to the eastern shore of Port Phillip, while the journey of Hume was entirely on the Avest. Having, as he thought, "near the head of the Bay, ascertained the spot which terminated the journey of Mr. Hume" and himself 8 Australia. — he returned, unconscious of the fact that between him and any part of the country traversed by Hume, ran the ever- flowing Yarra-Yarra river, and that the waters of Port Phillip lay between him and the place he thought he had reached. It must seem strange to those who know the country that he could stand on the ridge of sand which he described, near the Carruni Swamp, without recognizing on the eastern side of Port Phillip the Station Peak of Flinders, close to which he passed with Hume, and which Hume learned was called Willanmanata by the natives. Darling saw no encouragement in the reports he received. Ho thought Hovell's services of little value. He told Lord Bathurst (April 1827) that it appeared " that Western Port does not possess the necessary requisites for a settle- ment," and " should your Lordship consider that the object of taking formal possession has been answered," the persons sent to establish the settlement might perhaps be withdrawn. He " had not found any disposition on the part of the inhabit- ants to settle that part of the country." Lord Goderich, in July 1827, authorized the abandonment of the place, and early in 1828 Darlinor withdrew the whole establishment. Regret O o was expressed at the Admiralty at the deserting of a situation which guarded the communication with Van Diemen's Land. But in Van Diemen's Land John Batman, one of those men who (on account of the faculty possessed by Hamilton Hume of divining their way through unknown tracts) were called " good bushmen," had in January 1827 applied for a grant of land at Western Port. He induced Mr. J. T. Gellibrand to join him. They owned valuable sheep, and proposed to take live stock to the value of from £4000 to £5000 to the spot, where Batman would reside. But Governor Darling's interest in the matter had vanished with the questioniog of French pretensions. He wrote : " Acknowledge, and inform them that no determin- ation having been come to with respect to the settlement at Western Port, it is not in my power to comply with their request." Batman, thus foiled for the time, nursed his project until 1835, when he was more successful. The settlement formed at King George's Sound was not pro- ductive of immediate results, but so magnificent a harbour could Swan Eiver Occupied. 9 not be derelict. Major Lockyer, the commandant, selected the site of Albany, where a military post was kept until, in 1830, it was transferred from the control of New South Wales to the young colony formed at Swan River in Western Australia, whose fortunes claim attention. Captain Stirling, R.N., had joined in exploring expeditions in New South Wales, and had subsequently formed a settlement at Raffles Bay. He had also surveyed Swan River itself in 1827. His report led to a project to form a settlement there when French intrusion was anticipated. Mr. Barrow wrote from the Admiralty to the Colonial Office (1828), that with Western Port, King George's Sound, and Swan River " on the south and west, and Raffles Bay on the north, I think we may consider ourselves in unmolested possession of the great continent." ^ Financial considerations arrested the proposed official settle- ment. But private speculators stepped in. Mr. Thomas Peel, with several others, offered to provide shipping to carry ten thousand emigrants to Swan River at the rate of £30 a-head. In return they asked for grants of land, of which they calculated the value at eighteenpence an acre. They were thus to receive four millions of acres for three hundred thousand pounds. They offered two hundred acres free of rent to each male emigrant. The scheme was not carried out, but it led to another in which Mr. T. Peel was the leader, and which the Government approved. Captain Stirling was to be Governor of the first free settlement in Australia. No convicts were to go thither. Immigrants were to receive, in the order of their arrival, grants of land ^ The Earl of Ripon in 1833 came to the conclusion that the anxieties of 1826 were groundless. He wrote: "The present settlement at Swan Kiver owes its origin, you may perhaps be aware, to certain false rumours which had reached the Government of the intentions of a foreign power to estabhsh a colony on the West Coast of Australia. The design was for a time given up entirely on grounds of public economy, and would not have been resumed but for the offer of a party of gentlemen to embark in an undertaking of this nature at their own risk upon recei^^ng extensive grants of land, and on a certain degree of protection and assistance for a limited period being secured to them by the Government (Parliamentary Paper, 1840). 10 AUSTKALIA. proportioned to the capital they were prepared to invest. They were to satisfy the Governor as to the capital they possessed, and to receive forty acres for each £3 of invested money ; but they were not to receive the grant in fee simple until they had expended at the rate of eighteenpence an acre in improvements. There were conditions of reversion to the Crown in case of default of expenditure. To Mr. Peel were assigned a quarter of a million, with possible extension to a million, of acres on condition of taking out emigrants, at a graduated scale, by which for all persons over ten years of age Mr. Peel was to receive 200 acres. The Governor was enabled to acquire a hundred thousand acres. He landed on the 1st of June, 1829, to found the new settlement ; and before the end of 1830, thirty vessels had arrived with more than a thousand claimants for acres. Captain Stirling did what he could to satisfy them ; but what he did was of no avail. In proportion as a man had more land he was in more difficulty as to its use. Every man's neighbour was in dim distance. Spread over illimitable tracts, and commanding no labour, the puzzled land- holders had neither roads nor markets. They gazed in stupor at their unprofitable wastes. The old problem of labour assumed a new phase under new conditions in a new land. Land — the presumed wealth of the colony — could purchase no labour, and yet land was the commodity with which it had been hoped to buy everything. Contractors for building, surveyors, and others were to receive payment in the same barren element of exchange. Many immigrants had property of some kind, but few carried with them the means of building houses, or commanding labour. Land in proportion to attracted capital was the loadstone; but the attracted capital in vain sought congenial employment. There was no hope of profit from it. Some settlers fled from a colony whose hardships were intoler- able. The few sheep and cattle seemed likely to fall a prey to the teeth of the few colonists, and starvation would ensue. Some who fled retained their grants nominally. Mr. Peel, after taking £50,000 and three hundred servants to the colony, was left without a servant, while his property was wasted ; and when it had been wasted, the servants who had abandoned him returned, starving, to demand employment and Edward Gibbon Wakefield. 11 food. He, the victim of an experiment to which he had so largely contributed, was as helpless as the men who had abandoned him. The inexorable laws of correlation between capital and labour had never been more notably violated, or more notably avenged themselves. Governor Stirling was driven to seek assistance from England in an emergency which neither he nor his employers understood. The root of the failure was to be explained by a man then rising into notoriety — Edward Gibbon Wakefield. Commencing an inauspicious career by being convicted of abduction in 1826, (unattended, however, by the coarser constraints often resorted to by abductors), this remarkable man became the life of a Colonization Society, whose labours were to influence, though not control, the Colonial Office, the Parliament, and the colonists themselves. They furnished ideas ; and in a world of red tape and routine, to furnish an idea is to create. Wakefield's first trumpet-sound in the arena of colonization was an anonymous letter,^ published in London in 1829. Grasping the subject with a master hand, embellishing his brochure with touches of power and the raciness of reality, he arrested attention and partly compelled belief. Society, officials, settlers, labourers, politics were woven into his work. " The Opposition," he said, " consists of emancipated convicts who have obtained wealth and importance ; of the children of convicts, and of certain free immi- grants — men of fiery, and in many cases of generous, tempers ; of whom some cannot tamely brook subjection in their own persons, some hate oppression in the abstract, and some are filled with a high ambition, like that which urged the robber-shepherd to found Eome. These are the leaders of four-fifths of the population. They are bent upon procuring for the colony a government of colonial origin. They want trial by jury and a Legislative Assembly. They talk even of per- fect independence. They are rebels, every one of them, at heart ; and nothing hut a sense of weakness deters them from drawing the sword." 1 ' A Letter from Sydney, the principal town of Australasia. Edited by Robert Gouger, together with tlie Outline of a System of Colonization.' London : Joseph Cross, 18 Holborn, 1829. Mr. Bischoff in a work on Van Diemen's Land (London, 1832) remarks (p. 7G) upon Wakefield's evidence before a Committee of the House of Commons, on the convict system, that Waketield was "from his long confinement iu Newgate well qualified to form a correct opinion." 12 Au.STitALIA. He was less unerring as to the prospects of wool-growing. Production, he tliought, must soon outpace demand. The latter was then supposed in England to be limited to thirty million pounds, and Wakefield foresaw that Australia would soon pro- duce far more. He proclaimed the evils of the convict system, and the curses it entailed. He depicted a possible " extension of Britain." The crime and misery produced in Britain by excess of people in proportion to territory, might be reduced if not annihilated by a system which would place within reach of British population the excess of territory in the colonies. In one place people hungered for land, in the other land panted for people. He would not make the colonies " new societies, but extensions of an old society." If " this plan be too magnificent for execution may we not construct a smaller edifice on this model ? In plain English — if the principles here suggested be correct, why should they not be reduced to practice upon whatever scale ? " In an Appendix he supplied terse articles. 1. That a payment in money of per acre be required for all future grants of land without exception. 2. That all land now granted, and to be granted, throughout the colony, be declared liable to a tax of per cent, upon the actual rent. 3. That the proceeds of the tax upon rent and of sales, form an Emigration Fund, to be employed in the conveyance of British labourers to the colony free of cost. 4. That those to whom the administration of the fund shall be entrusted, be empowered to raise money on that security, as money is raised on the security of parish and county rates in England. 5. That the supply of labourers be as nearly as possible proportioned to the demand for labour at each settlement ; so that capitalists shall never suffer from an urgent want of labourers, and that labour shall never want well-paid employment. 6. That in the selection of emigrants, an absolute preference be given to young persons, and that no excess of males be conveyed to the colony free of cost. 7. That colonists providing a passage for emigrant labourers, being young persons and equal numbers of both sexes, be entitled to a pay- ment in money from the Emigration Fund, equal to the actual contract price of a passage for so many labouring persons. 8. That grants be absolute in fee without any condition whatsoever, and obtainable by deputy. The Natives. 13 9. That any surplus of the proceeds of the tax upon rent and of sales, over what is required for emigration, he employed in relief of other taxes, and for the general purposes of Colonial Government. If these Articles of Wakefield's belief were true, the princi- ples on which Western Australia had been founded were false. The year 1829 witnessed the publication and the experiment. For this reason they are here placed side by side. The Colon- ization Society, which sprung from the anonymous author's ideas, will properly be dealt with hereafter. It is sufficient to mention him now in connection with the occupation of new lands by the Government. While the land of Australia was thus parcelled out, the treat- ment of its original inhabitants was of the customary kind. On the Hunter river, in former times, the commandant had availed himself of their services in capturing runaways and bushrangers. Backed by a knowledge of his support they had shown a courage and confidence not exceeded by their skill in tracking. The usual injuries by white men produced the usual results. A native whom the authorities described as Jackey Jackey (with two aliases) was seized on the Upper Hunter in the winter of 1826, was taken seventy miles to Wallis Plains (Maitland), and was on the 31st July handed to Lieutenant Lowe, 40tli Regiment, the officer in command. His fate became the topic of rumour not altogether condemnatory. Brave men as well as others had arrived at the cowardly con- clusion that the brutalities of the whites were inevitable, and their consequences must be condoned or neglected by the Government. Some were insolent enough to declare that it was the dispensation of Providence that the black race must be "stamped out" by the white. Darling's own conduct deserves censure. The Attorney- General, in August 1826, reported that there was a common statement that the military had taken upon themselves to " put men to death in cold blood, and that the magistrates do not at all interfere." He was convinced that Darling could not be aware of these things. He appealed to him to stop them. Darling did little. The crime had occurred at the Hunter river, and it was to a resident in that district that Brisbane had written, that if the blacks were shot there was n.o occasion 14 Australia. to report the fact. The natives there were numerous and warlike, however, and to the disgust of some residents seemed disinchned to submit patiently to be shot. Settlers sent to the Governor a petition praying for protection " from the incursions of numerous tribes of black natives, armed and threatening death to our servants" . . . "until the threats and murderous designs of the natives shall have subsided, the lives of our labourers and our property will be exposed to the revenge and depredation of these infuriated and savage people." Darling replied (5th September) that nothing was to be feared, and the settlers should show no apprehension. " Vigorous measures among yourselves would more effectually establish your ascendancy than the utmost power of the military. ... I strongly recommend you to unite and take measures for your own defence, and you may be satisfied that in any exertion you may make, you shall receive every necessary support." He observed that some of the memorialists resided in Sydney, and recommended them to live on their properties. " It would have the effect of preventing irregularities on the part of your own people, which, I apprehend, is in many instances the cause of the disorders committed by the natives." Thus stirred to unlawful acts, the settlers obeyed. The natives retaliated. Bannister reported (7th September, 1826) that " extremely violent proceedings were going on, on both sides." Darling ordered a detachment of the military to the district, to "punish the natives agreeably to my instructions on this head, which, under present circumstances, will, I have no doubt, prove the most effectual course." Bannister, " placed in a situation of great difficulty," asked for a copy of the Instructions. He thought "that the indis- criminate slaughter of offenders, except in the heat of immediate pursuit, or other similar circumstances, requires preliminary solemn acts ; and that to order soldiers to punish any outrage in this way, is against the law, which is powerful enough to guard the public peace from any permanent aggression." Darling vouchsafed no reply, and in the following month Bannister was out of office.^ ^ Saxe-Bannister pnblislicfl documents connected with tlieso events, ' New South Wales in 1824-5-6 ' (Cape Town : 1827). The Natives. 15 The high-handed murders which took place can be only faintly pictured by the imaginations of those who have never known the characters of the convict class in whose hands fire- arms were freely placed, and over whose doings there was no control. Bannister was cognizant of the atrocities committed, and was determined to denounce them in England. The Governor thought some explanation expedient, and wrote to the Secretary of State (6th October, 1826). He spoke of out- rages committed at the Hunter. " A report having reached me that a native, who was apprehended by tlie mounted police, as having been concerned in the proceedings above alluded to, had been shot while in custody, 1 immediately gave orders that the matter should be investigated by the magistrates of the district. This order, after some delay, occasioned by the absence of Lieutenant Lowe, was acted upon." Darling broug-ht the matter before the Council with no further result than can be gathered from the following equivocal passage in his despatch : " There can be no doubt of the criminality of the natives who have been concerned in the recent outrages, but though prompt measures in dealing with such people may be the most efficacious, still it is impossible to subscribe to the massacre of prisoners in cold blood as a measure of justifiable policy." In one sense every Governor except Phillip had subscribed to mas- sacres which he did not check or jDunish, and Darling was no exception to the bad rule.^ It is fair to him to mention that when Captain Wright reported (26th December, 1826) his arrival at Western Port to form a settlement, he added (after saying that the natives kept aloof) : " As I am aware that it is your Excellency's wish to conciliate them as much as possible, I have not allowed them to be pursued or molested in any way." The murder of Jackey Jackey, which Governor Darling con- fessed it was impossible to " subscribe to as a measure of justifiable policy," had been perpetrated with little or no attempt at concealment. Thomas Farnham delivered Jackey Jackey to Lieutenant Lowe one evening, and if his evidence, afterwards given, was true, heard Lowe on the following morning 1 The author was personally acquainted with many of the aboriginal survivors of the authorized raids in the Hunter river district, and with some of those who were eettlers at the time. 1 G Australia. order that the prisoner, without trial or investigation, should be shot. Another man said he saw Jackey Jackey tied to a tree and shot. Both witnesses concurred in the statement that three soldiers having fired, the fourth stepped up and put the poor creature out of his misery. The body was buried by two men in obedience to the order of a sergeant. The constable was interrogated by a magistrate (Mr. Close, late of the 48th Regiment), and concealed the fate of the prisoner. Lieutenant Lowe's absence postponed inquiry for a time ; but knowledge shared by so many persons could hardly be stifled. Two men, to remove means of proof, removed the body of the murdered man. The man who had buried it saw them do so, and consented not to tell the truth unless put upon oath. It was not until May 1827 that Lieutenant Lowe was put upon his trial in Sydney before a military jury. Dr. Wardell defended him, and contended that the Court had no jurisdiction to try a British subject for an offence against a native. A native was neither entitled to be tried before the Criminal Court as a British subject, nor to a jury de medictate linguce as a foreigner. He was beyond the pale of all law, and the inference was that no atrocity against him was punishable. Chief Justice Forbes over-ruled such wild insensible words, and the trial proceeded. The constable Farnham, the other witness, and one of the men who buried the slain man, gave their evidence. Witnesses for the defence contradicted portions of the evidence, and declared that it was untrustworthy. The Chief Justice told the jury that there was some mystery in the case, but much was open to conjecture. None of the witnesses had been uncontradicted, and all had at different times made different statements. If the jury believed that Lowe had acted as was imputed they would find him guilty ; if they had any doubt arising as to the credibility of the witnesses they would give the prisoner the benefit of the doubt. They did so by retiring for a few minutes, and returning with a verdict of Not Guilty. No man was astonished. To vindicate the majesty of the law, a black man was put upon his trial at the same session. As none of his friends were present, and none could have given evidence if present, " Black Tommy " was hanged without delay. The hearts of the white The Natives. 17 men might accuse them of murder, but legal proof was not available. Amongst those who held the diabolic doctrine that the shooting of a black fellow-creature was not an offence, no. witnesses against a white murderer could be found. Perjury seemed venial after murder. It is sad to reflect that early mismanagement at Western Australia caused for a time as disgraceful relations between the two races as raged in the East. There appears to have been little difficulty in establishing communication between the settlers and the tribes of Swan River. The men upon whose heads a -price was set by the Government were sometimes those whose intercourse with the whites enabled them to converse with them. An accidental publication casts light upon the time. Mr. Moore held a civil appointment at Perth, and was also engaged in pastoral pursuits. He wrote letters to England, which were published, without his revision, as ' Letters and Journals' from Swan River.^ He thus described the state of affairs in May 1833. " A murder was committed by the natives in consequence of the following provocation. Some time ago a man who had come from Van Diemen's Land, when escorting a cart, saw some unoffending natives in the way. * D — n the rascals,' he said, ' I'll show you how we treat them in Van Diemen's Land,' and immediately fired on them. That very cart, with two men who had been present at the transaction, was passing near the same spot the day before yesterday, when they were met by about fifty natives who had lain in ambush, and the two men were deprived of life so suddeidy, that Mr. Phillips (avIio had been about two hundred yards behind) was hardly in time to see Yagan thrust a spear into one of them. ... A reward has been offered for the head of Yagan whether dead or aHve." One Midgegoro was taken, and there was " great perplexity as to what should be done with him. The populace cry loudly for his blood, but the idea of shooting him with tlie cool formalities of execution is revolting." Thus Mr. Moore wrote on the 20th May. On the 22nd, he added, Midgegoro was "shot at the gaol-door by a party of the military. We are all anxious to see how the others will conduct themselves after this execution, if 1 Londun : 1834. VOL. II. C 18 . Australia. they discover it^ , . . there were none of them present at it." On the 27th, Mr. Moore, with two others, saw Yagan with several natives in sight of the miUtary quarters. Yagan was wary, but bold. To his inquiries as to the fate of Midgedoro Mr. Moore would give no reply. Yagan said he would take life for life. " There is something in his daring which one is forced to admire," Mr. Moore said. Though close to the encampment, neither Moore nor his companions attempted to capture the chief; but gave information after he was gone. A strong band was sent out, but it was not by them he was killed. A white lad, who was received in a friendly manner at the camps of the natives, went behind Yagan and shot him.^ The assassin threw away his gun, and ran for his life, but Yagan's companions pursued and speared him. Mr. Moore reported that the man who afterwards preserved the head of Yagan also flayed from the body a portion of the skin. Englishmen might well be shamed by the doings of their countrymen thus made known to them on the unimpeachable authority of a gentleman who held a high position in the colony. Fortunately for the national reputation, the second Governor of Western Australia, Mr. John Hutt, established a new order of things, though not before many dark deeds had been done such as Mr. Moore described.^ ' TIio italics are Mr. Moore's. Tliis publication excited some slianie in England : and Captain F. C. Irwin, who commanded tlie military in Western Australia, piil)lislied another work in 1835. He seemed to lament what had occurred ; but strove to soften the narration by pointing out that the authorities had satisfied themselves (as indeed Mr. Moore had mentioned) that Midgegoro had committed several atrocities, and that Mr. Moore was not in 1833 Advocate-General of the colony, but became so at a later date. 2 ]\Ir. P. Chauncey's valuable Appendix to the work on the Aborigines, published by the Government of Victoria. 3 Colonel Charles J. Napier, to whom the Government of South Australia was offered in 1835, published in that year a work upon Colonization, in wliich he denounced the treatment of the natives in Western Australia. He narrated how a party of soldiers, with the Governor, slew " from twenty- five to thirty " and " several of the children " : — he described Yagan as the "noble warrior of the Swan River," no less conspicuous "for generosity than for his courage," and added that " to the hanging of 7iative murderers, if their sentence was a just one, there can be no objection ; but to the 7}ot hanging of the settler murderers, there are very great objections ; . . . the savage has no knowledge of our law . . , the settler acts contrary to the laws of his country j knowing what is right he does wrong, and does so from Saxe-Bannister. 19 As Saxe-Bannister's resignation has been referred to, it may be well to deal with it and dismiss him from these pages. Chief- Justice Forbes owed him ill-will for the advice to the magistrates which (in 1824) excluded ex-felons from jury lists : but Forbes was not paramount with Darling, who, as a military man and a loyal subject, could not tolerate the opprobrious epithets which Forbes was reported to apply to the King's Ministers, and even to a monarchical form of government. Forbes also associated freely with those members of the eman- cipist party who early assailed Darling's alleged severity towards the convict class. It was to himself that Bannister owed his fall. It has been seen that though on good terms with Brisbane he thought himself justified in refusing to draft a Bill indemni- fying magistrates involved in the " Torture Proceedings." He told Darlinfj that " if the Governor is doing what seems to the Attorney-General to tend to bring the peace and welfare of the colony into danger, he is bound to state his opinion to the Governor." Darling replied that he would ask his advice on legal matters. " On all others, I alone am responsible, and I can have no desire to place you in so unpleasant a predicament as that of giving opinions on subjects with which you have no right to interfere." Deeming his salary inadequate, and having (he said) no time to eke out his emoluments by practising at the bar, Bannister had tendered his resignation unless the Secretary of State would sanction an increase of salary. Lord Bathurst took him at his word, and announced that " since it appeared to be his wish " a successor had been appointed. But though taken at his word Bannister complained that Darling ill-treated him. After receiving Lord Bathurst's letter he told Darling in round terms that a certain ' Gazette ' notice about an alleged crime was in- correct, and that " if the Governor interposes his authority out of time and incorrectly, the safe course of the law is in danger of being perverted." Darling (who had previously offered to relieve him of his duties in order to enable him to attend to his private affairs) wrote in reply (October 1826) : " The acceptance of your resignation having been notified by the Secretary of State, I a brutal disposition ; he therefore appears to be a fit subject for the heavy hand of law ..." C2 20 Australia. shall make immediate arranoemeuts for placing the duties ia other hands." The retiring Attorney-General ^ having vainly requested the Governor to prosecute the 'Australian' newspaper, placed his personal effects on board the ship which was to carry him from the colony, spoke on the 20th October for nearly six hours in a case in which he prosecuted Howe, the editor of the ' Sydney Gazette,' for libel ; fought a duel with Dr. Wardell on the 21st, and departed on the 22nd, from a wondering society. The New Constitution Act of 1828 removed the short-lived 1 Bannister considered himself harshly treated, and printed a lengthy- defence fur private circulation. He was bitterly attacked in Dr, Wardell's newspaper, the ' Australian,' and was angry with Darling for declining to in- stitute a Government prosecution of the publisher. He had previously (June 1826) taken upon himself to caution the Governor against countenancing the press. Darling, it appeared, had invited Dr. Wardell to Government House. The Governor replied with some hauteur that it was impossible to suppose that the office he held was in any degree under the control, or subject to the animadversions, of any one in Bannister's position. Neither the King nor his Ministers had thought it necessary to prescribe his hospi- talities, and without meaning personal offence he could not persuade him- self that the Attorney-General was invested with any such authority. Darling, in declining to prosecute the 'Australian' newspaper for libel, said that the article complained of had not appeared till Bannister's resignation had been notitied, and "the Government could not interfere in such case without establishing a precedent which might subject it to serious inconvenience." Bannister, irritated at Wardell's unfounded insinuations as to his obtaining his appointment by undue favour, fought his duel with Wardell. It is just to state that in a letter to Darling, written at sea, Ban- nister regretted that he had not had " courage to refuse " Wardell's challenge. Bannister was not without abiHty. James Macarthur (son of John Mac- arthur), writing to his brother in England at this period, said : " Bannister's speech (at Howe's trial) seemed to petrify his enemies, the chief of whom I need not tell you is Mr. Forbes. He gave a luminous outline of his public conduct from the first moment of his apphcation for the office until the day of his retirement, in which he clearly showed the punctilious correctness of all his actions, and contrasted them most ably with the conduct of Forbes. On the Torture Indemnity Bill he was most happy both in clearing himself from imputation, and in turning the tide of public indig- nation upon the Chief Justice. There seemed to be but one feeling on this subject in the minds of the audience." (The speech was made two days after the appearance of the already-quoted article in Wentworth's and Wardell's paper, which admitted that the ex j^ost facto law to indemnify tortures was the "most desperate of all desperate powers of legislation." The audience might w'ell be unanimous on such a point.) New Constitution. 1828. 21- institution which had in 1825 compelled the Chief Justice to adopt the dangerous remedy of an ex post facto law, chiefly in order to shield his friend Douglass. No grand jury was con- tinued or established by the Act 9 Geo. IV. cap. 83. The fifth section enacted that "until further provision be made as herein- after directed for proceeding by juries, all crimes, misdemeanors, and offences cognizable in the said Courts respectively, shall be. prosecuted by information in the name of His Majesty's Attorney- General." It might safely be predicted that after the warning received by the Governor and the Chief Justice in the matter of the Torture Indemnity Bill of 1825, no provision to revive grand juries would be submitted to a Legislature while those function- aries had influence there, and while (by the 21st clause of the Act) it svas imperative that no law or ordinance could be passed, the proposal of which had not been first laid before the Council by the Governor himself. Thenceforward the protection of grand juries was withdrawn from the land until its re-appearance in the youthful South Australia in 1837.^ The jury of presentment, which in English history preceded the jury of traverse, was destroyed. The administration of justice became a department of State. The safeguard which Englishmen had fondly cherished as their heritage from the days of Alfred, — which Blackstone believed to be guaranteed in terms under Ethelred,^ — which did not sink with the fall of Harold, and was embodied in the Great Charter as the right of every freeman, in words which the great Chatham ^ South Australia afterwards (1852) abolished them by special enactment. The convenience of administering the law by means of a departmental officer outweighs with an Executive Government the wider but less visible advantage of interesting the people in every branch of its administration. 2 " Exeant seniores duodecim thani, et prsefectus cum eis et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem ac- cusare, nee aliquem noxium celare " [circa an. 990]. Laws of Ethelred. The reader may find in the luminous work of Stubbs on English History how under the Norman line the liberties of England were guaranteed by success- ive kings. In 1194 by the Articles of Visitation the recognitors (or grand jury) of presentment were specially described. Four knights were chosen from the county. They by their oath chose two lawful knights of each" hundred or wapentake. The two so chosen, chose ten knights of each hundred or wapentake, " or, if knights be wanting, legal or freemen," " so that these twelve may answer under all heads concerning their whole hundred or wapentake." It was after the visitation of 1194 that the petty jury to traverse the presentment of the grand jury ciime into use. 22 Australia. pronounced worth all the classics, and the Bible of the English Constitution, — trial by jury in completeness, — was thenceforward indefinitely taken from Englishmen in New South Wales, It may be viewed as a marvellous proof of the sway of custom that not within half a century of its disuse has any serious effort been made to restore it. Neither responsible government, nor abuse of power by a Government, has to this day roused the people of New South Wales to the evils they undergo by its loss. It is not only bad to lose the superior guarantee for due administration of the law ; it is worse that the people should not be trained from the highest to the lowest in the labour of administering it. The taint has spread downwards in legal proceedings, and numerous stipendiary magistrates have in great part extruded from petty sessions the unpaid magistrates who once efficiently distributed justice and friendly counsel to their neighbours. Dry routine has superseded union of feeling. A bond, which was as wholesome for the country gentleman in stirring his sympathies as it was for his poorer neighbours to profit by them, has been rent asunder by the craving for formality and the servility of a Government Department. But whether Forbes had or had not reason to be satisfied Avith the extinction of grand juries, there could be no doubt as to the destruction of his devices with regard to common juries at Courts of Quarter Sessions. The argument with which he had overthrown the resistance of magistrates in 1824 — that as the Act of 1823 was silent the common law must be held to prevail — was in express words rendered impossible by the Act of 1828. The 17th section enacted that offences should be tried *' before Courts of General and Quarter Sessions respectively in such and the same manner " as that " prescribed with respect to trials before the Supreme Court." When tlie new Constitution was imported, a Royal Warrant at the same time enlarged the Legislative Council. By law the number was to be not less than ten, nor more than fifteen. Chief Justice Forbes, Archdeacon Scott, Colonial Secretary Macleay, Attorney-General Baxter, Collector of Customs Cotton, Auditor-General Lithgow, Lieut,-Col. Lindesay, were the official members. John Macarthur, Robert Campbell, Alexander Berry, Richard Jones, John Blaxland, Captain Phillip P. King, R.N. (son of the furmer Governor), and Edward C. Close, one of the The Legislative Council. 23 worthiest men in the land,^ were the unofficial gentlemen of the colony. The Governor himself presided over the Council, of which the full number was fifteen. The Royal Warrant pro- vided that in case of death of a non-official member the vacancy should be filled from the following leading colonists : — J. T. Campbell, Hannibal Macarthur (nephew of John Macarthur), G. Wyndham, A. B. Spark, T. McVitie, G. T. Palmer, Archibald Bell, William Ogilvie, or William Macarthur (a son of John Macarthur). In September 1829, Archdeacon Scott having retired, his successor, the Rev. W. G. Broughton (who owed his promotion to the great Duke of Wellington), took his seat in the Council, of which for many years his talents made him the most distinguished member. Governor Darling's new Council passed a General and Quarter Sessions Act on the 29th September, 1829. It was thereby enacted that " free persons " should be tried " before the Courts of General and Quarter Sessions, and seven commissioned officers of His Majesty's sea and land forces," in like manner to that prescribed in the Imperial Act for the Supreme Court. By section 5 of that Act (9 Geo. IV. cap. 88), it was provided that, until other order might be taken, military or naval officers should be the jurors, and in default of the requisite number, seven, the Governor should nominate magistrates to act as jurymen. Thus the emancipist element was entirely excluded from juries at 1 Edward Charles Close was born 12th March, 1790, at Rangamatty near Calcutta. His father was a merchant in India. He was a posthumous child, and was taken to England when eight years old, and lived with his maternal uncle, Charles Streyncham Colinson, Sheriff of the county of Suffolk, at The Chantry, Ipswich. He was gazetted ensign in the'48th Regiment, 8th February, 1808, with which regiment he commenced and ended his military career. He was present at the battles of Toulouse, Orthes, Nivelle, Vittoria, Albuera, Busaco, and Talavera, and escaped unhurt. He went to New South Wales with the 48th Regiment, 1817, and settled in Morpeth, 1821. He was the first chairman of the Maitland Bench of Magistrates, and the first warden of the Maitland district. He received three public testimonials and addresses while living, and the people of the Maitland district erected a memorial window in St. James's Cliurch, Morpeth, to him after his death. He died 7th May, 1866. On one of the Peninsular battle-fields as he heard the groans of the dying he resolved that he would, if ever possessed of means, build a church for the spiritual consolation of his fellow-creatures. He lived to fulfil his resolve at Morpeth, Hunter river. 24 Australia. the Quarter Sessions Courts. The local legislature had power to pass jury laws, but the application of juries, even in the Supreme Court, was limited by the Imperial Act to cases in ■which " either of the parties " in an action might be desirous of having issues of fact tried by a jury constituted under any colonial law or ordinance. The Court, moreover, had power to award or to refuse trial by jury. The Supreme Court was com- posed of one or more Judges and two assessors, magistrates. In all criminal trials the juries were military. If the emancipist party desired to open the door of admission to juries they Avere compelled to work in the direction of so framing the local jury laws as to serve their purposes. Their hopes rested on the Chief Justice. During the discussion of the Jury Bill Arch- deacon Broughton became a member of the Council (16th Sept.). The Chief Justice was active in modelling the measure. It was refen-ed to a sub-committee on the 24th September, and was passed on the 9th October. It provided (sec. 4) that in all actions wherein the Court should award trial by jury, jurors should be residents in or within twenty-two miles from Sydney, having a clear income from real estate of £30, or from personal estate of £300 ; and that " no man not being a natural-born subject of the king, and no man who hath been or shall be attainted of any treason or felony, or convicted of any crime that is infamous (unless he shall have received for such crime a pardon, or shall be within the benefit of -some Act of Parliament, having the force and effect of a pardon under the Great Seal for such crime), shall be qualified to serve on any such jury." In construing this clause the magistrates excluded all emancipists who had not received a full royal pardon. The emancipist class fumed when they saw that no man who had been convicted was summoned. An order Avas applied for, calling on the sheriff to show cause against a mandamus to compel him to insert the names of certain emancipists. Wentworth and Wardell argued for the mandamus, against the Solicitor-General on the other side. The application was dismissed on the ground of irregularity, but the Chief Justice allowed it to be made known that in his opinion the magistrates were wrong in excluding from the lists persons whose terms of sentence had expired. It may be mentioned parenthetically, that in 1830 Governor Jury Law. 25 Darling himself invited the Council to consider the propriety of introducing generally trial by jury. The Secretary of State wished for their opinions, and Darling was not indisposed to introduce trial by jury. He heard there was an intention to petition Parliament on the subject, which seemed unadvisablc, as the Secretary of State would naturally wait for the opinions (of the Council) which he had invited. The Council thereupon passed an amending Bill. There were two dissentients, but the majority would not consent to the delay involved by inquiry. Disqualifying every one who had undergone a colonial or second conviction of " treason, felony, or other infamous offence," the Bill left all others whose sentences had expired, or who had received full pardons, eligible as jurors. When the magistrates excluded the names of all whose sentences had expired, the Governor had ascertained the opinion of Forbes that persons who had " served their terms of transportation " were eligible as jurors. The opinion was, with important exceptions, con- firmed by three Judges, Forbes, Dowling, and Burton, who were asked by Governor Bourke in 1834, at the unanimous request of the Legislative Council, "whether a person who has been convicted of a transportable offence, and whose sentence has expired, or been remitted by an absolute or conditional pardon, is legally qualified to sit upon a jury in England." The careful reply which was then furnished was dictated by no political feeling. It analyzed the various enactments in force by the dry light of reason. Free pardons, or a conditional pardon of which the condition had been performed, — servitude of pun- ishment inflicted on a person convicted of felony not punishable with death, remission of sentence ratified by the king, — left the convict eligible, " because such offences create no disqualification, but only incapacity of the offender so long as he is deprived of his liberty." But persons convicted of perjury under 5 Eliz. c. 14, could only by Act of Parliament be restored to eligibility, and those convicted of transportable offences accounted infamous (such as perjury at common law, subornation of perjury, and forgery in some cases), who had not received free pardon, would not be held eligible in England ; nor would those convicted of infamous offences below the degree of felony and not transport- able, of the nature of the crimen falsi. 26 Australia. With this well-digested opinion no man quarrelled. But with the earlier and more sweeping verdict of Forbes many were discontented. Although the local juries were at that time confined to civil issues, it would be difficult to exaggerate the heart-burnings which were created in the community. What ! an untainted man sit to dispense justice by the side of an emancipated felon ! Flesh and blood would not endure it. Mr. Robert Campbell, junior (although his father supported Forbes in many matters) protested from the jury-box against the dis- grace. He was over-ruled ; but the moral sense of the community recognized that he had reason on his side when the notoriously shameless were seen seated arrogantly by the side of the reputable. The advocates of the emancipist party were driven to allege that, in order to discredit the class, the framers of the jury lists included its specially unworthy members. A singular phase of opinion was observed for many years. There was a preference amongst litigants for military juries. Their probable ignorance of commercial affairs was assumed to be outweighed by their sense of honour and superiority to undue influence. But the leaders of party discarded such considerations. They seized on every occasion to increase the rancours which existed. Once when a military jury had concluded its labours, and a civil jury entered the box, the new-comers found that their predecessors had made offensive inscriptions aimed at emancipist jurors and Judge Forbes. Complaint was made, the unknown libellers Avere censured by Judge Dowling, and their handiwork was obliterated. But it was engraven on the hearts of many, and the scars were not removed for years. It is fair to record the fact that the libellers had been provoked by coarse denunciation of themselves as a class. It has been mentioned that in response to a despatch from Brisbane, Lord Bathurst directed (July 1825) the Governor to prepare, at " the earliest opportunity," a law to control the press, and insist upon periodic licenses before publication of any news- paper. Darling communicated with the Chief Justice on the subject, and showed him the despatch. Forbes hesitated tc certify under the Act 4 Geo. IV. cap. 96, that the issue of a revocable license as suggested by the Governor was not repug- nant to the law of England, so far as tlie circumstances of the Newspaper Law. 27 colony admitted its application. Without Forbes* certificate (sec. 29) the Governor could neither lay before his Council nor pass into law any measure. The determined but courteous Governor requested the Judge to state how far he felt himself " at liberty to sanction the measures directed by Lord Bathurst." The astute Forbes evaded the question by saying he was "ready to certify any ordinance so far as I am authorized by law." Darling sent him draft Bills, and Forbes declined to certify one which made licenses resumable at the Governor's pleasure. He begged that legislation might be postponed till the law officers in England could be consulted. He was anxious to avoid setting his hand " solemnly to a certificate that a measure recommended by so high an authority as the Secretary of State is repugnant to the law of England." Darling replied that the safety of the colony was endangered by the licentiousness of the press, and duty forbade delay during tedious reference to England. He sent the Bills back as those which His Majesty's Government had directed, and which Forbes as Chief Justice was required to sanction. But Forbes was resolute not to certify a measure Avhich he said was not consistent with the laws of England, and which he knew would subject his intimate associates to the discretion of the Governor. Darling caused Bills to be prepared in a different form. The revocable license was abandoned. On the 24th April, 1827, he laid two measures before the Council. One — to prevent mischiefs arising from publications by " persons not known," and to regulate publications, and restrain " abuses arising from the publication of blasphemous and seditious libels." The other — to impose a duty on newspapers. They were both read a first time on that day. The first measure required that no one should publish a newspaper after the 1st May, 1827, until an affidavit had been lodged setting forth the names of the printer and publisher, with the title of the paper and the place of printing. The Colonial Secretary moved that the name of the editor should be inserted in the affidavit. Forbes and Campbell vainly opposed the amendment. A stringent clause was passed to the effect that on a second conviction for publishing a blasphemous or seditious libel, " tending to bring into hatred or contempt the Government of the colony," the offender might be banished for such term of years as the Court might order. 2S AUSTIIALIA. Forbes trembled for his impetuous friends, Wardell and Went- worth, who might fall within the mesh. He pleaded successfully for postponement till the following day. On the 25th the Council passed the Bill, Forbes being present. The Bill to impose a duty on newspapers was again postponed. On the 2nd May Macleay moved, and Colonel Stewart (Lieutenant-Governor) seconded, a proposal that the duty should be fourpence. The Archdeacon moved, and Macarthur seconded, an amendment that it should be sixpence. Fourpence was the sum fixed upon. Forbes was absent. On the 3rd May the Bill was passed, with a third Bill to " prevent the publishing of books and papers by persons not known." Forbes was again absent. He was not idle, however. The impost of fourpence was deemed a crushing one upon the publications of his friends. His certificate was required, and he resolved to refuse it. Meantime the Acts had been promulgated. On the 30th May the Council met. Forbes was present with four others ; but the Governor sent a message by the Colonial Secretary, regretting that he could not meet the Council. On the 31st neither Darling nor Forbes attended. Again the Colonial Secretary carried the Governor's regrets to five members who attended. The manoeuvres which led to the abortive sittings can be surmised by reading the following memorandum ^ which the Council directed the clerk (Douglass, the friend of Forbes) " to enter in the Council Book." " It havmg been communicated to the Council that his Houour the Chief Justice has refused to re-certify the Bill Xo. 3 fur imposing a duty on newspapers, wliich passed the Council with the blank filled up with the duty of fourpence on the 3rd May, the Council judge it expedient to record the following facts relative to the progress of that Bill through the Council. First, that when the Bill was laid before the Council by the Governor on the 24th April, the Chief Justice being present, the clerk read the Bill, stating that the sum of fourpence was marked on the margin in pencil, to which no objection was made by the Chief Justice. Secondly, that on the 2nd May the Bill was rea