law.

be believed that his influence with the Governor was not 1788-96 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 The criminal 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 Judicial opinion as the Judges in England, who were so much in the opinion of it 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. 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 Hunger and pressure of starvation.† 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

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.

"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. 210. 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 illbehaviour 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.

theft.

1788-96 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.

Public safety.

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*-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 Collins's book. After Death from 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

starvation.

*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.

months, and be chained for that time to two other de- 1788-96 linquents of the same class.* 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 Potatoes 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.

at stake.

views of

for rape,

The peculiar circumstances of the time led to a singular distortion of views with respect to the moral nature of the Distorted offences brought before the Court. While the heaviest crime. 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 Pardon recommended to mercy and pardoned by the Governor, "on condition of his residing, during the term of his natural life, at Norfolk Island."+ 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 that was so or not, the mercy extended to the offender contrasts strangely with the hard but none 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 + Ib., p. 80.

66

* Account of the Colony, pp. 110, 111.

for theft.

1788-96 times robbed the public stores of flour, meat, spirits,

Occasio facit

furem.

tobacco, and many other articles."* 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 nowa-days would entail nothing more than a term of imprisonment, while a criminal assault on a child should meet with Inversion of so much merciful consideration, seems an absurd inversion principles. 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.

Result of panic.

*Tench, Complete Account, p. 17; Collins, p. 59.

THE COURTS OF LAW.

THE Letters Patent by which the Courts of Law were established in the colony, under the authority of the Act of Parliament passed in 1787, created a system of judicature of An original a wholly novel description. Three Courts were thus insti- system. tuted: a Court of Civil Jurisdiction, composed of the JudgeAdvocate and two persons appointed by the Governor; a Court of Criminal Jurisdiction, composed of the JudgeAdvocate and six officers, naval or military; and a Court of Vice-Admiralty, composed of seven Commissioners selected from the civil service as well as the naval and military. The jurisdiction conferred upon each of these tribunals was practically unlimited.

Court.

The Civil Court was empowered to hear and determine. in a summary way, actions relating to lands and houses, The Civil actions of debt and contract, actions of trespass, "and all manner of other personal pleas whatsoever." No limit was placed to the pecuniary amount involved, and no exception was made as to any special class of actions; nor was any distinction recognised between Common Law and Equity. The process was simple. On a complaint in writing made Procedure. by the plaintiff, the Judge-Advocate issued a warrant under his hand and seal directed to the Provost-Marshal, stating the substance of the complaint, and requiring him to summon the defendant to appear. If the amount in dispute exceeded £10, the officer was directed to bring the defendant personally into Court or take bail for his appearance; the defendant being further required to find security for the satisfaction of any judgment that might be given against him.