[convict discipline – convict service – Norfolk Plains – trespass – Launceston, water supply – Arthur, Lieutenant Governor, attacks on]

Best v. Cheyne

Supreme Court of Van Diemen’s Land

Montagu J., 9 January 1839

Source: Launceston Advertiser, 10 January 1839[1]

            Mr. Stephen for plaintiff, Attorney-General for defendant. This was an action for damages alleged to have been done upon certain land hired by the plaintiff by the defendant Captain Cheyne, Director-General of Roads, during the prosecution of the proposed water-line from the South Esk to Launceston - Verdict for plaintiff, £71 14s. 6d.

Source: Cornwall Chronicle, 5 January 1839

            It is with astonishment that we hear that Captain Cheyne, the Director General of Roads and Bridges, has given notice of appeal against the decision of the Magistrates at Norfolk Plains on information very properly laid again him for employing convicts, contrary to the Government regulations.  We should not have given this matter further notice than we took of it last week, but for this extraordinary determination of the gentleman, who, we think, would have shewn consistency in not attempting to defend the charges against him, knowing as he did, that they were justly brought again him; and that he had, contrary to law, employed in his service, men sent for punishment to a chain gang by a bench of Magistrates.

In Captain Cheyne’s observations upon prison discipline, he says, that the present system is not esteemed to be that severe punishment that it might be.” The Captain should have added, when left to the execution of officers who set the established regulations of the system at defiance, and, in direct violation of them, screen offenders from the punishment awarded them by Magistrates of the territory, to labor for their (the officers) individual and private emolument.

“Men,” again says the captain, “labouring under the same sentence meet with very different degrees of punishment, according to the character of the individuals to whom they may respectively be assigned.” This remark equally applies to the situation of convicts sent into chain gangs for punishment and in the case now alluded to, it is evident that the system cannot be considered defective, because had the convicts whom Captain Cheyne released from punishment been made to labor according to the sentence of the Magistrates as a punishment due to their conduct, instead of being introduced into his private establishment as domestic servants, the end of prison discipline in this particular instance would have been completed. As it is, it is frustrated by an officer appointed to carry its measures into execution - hence, “men labouring under the same sentence, meet with very different degrees of punishment.”

Again, says Captain, “I do not impute to the Government any remissness in the selection of individuals (to be) entrusted with convicts.” We beg leave to state, as our opinion, that the Government will show a very great remissness in Captain Cheyne’s case, if it does not, instanter, relieve him from any further charge of convicts. After exhibiting himself in his observations in so very correct a shape, knowing, as he cannot fail to know, the regulations of the system, and not only barefacedly violating them, for which he gets fined, but afterwards for appealing against the just decision of the Magistrates, we think the very dangerous example he sets to the Colony is reason sufficient for the Government to mark his conduct with its heaviest displeasure. If it does not, we shall be furnished with another instance of the unjust application of the laws. The Government is bound to protect Magistrates in the faithful performance of their unpleasant duties. But leaving the gallant Captain’s observations on the shelf for the present, we return to the case before us.

It would seem, as we are informed, that a convict, after having been in the service of several respectable gentlemen, the last of whom was that of the Rev. R. R. Davies, was declared to be incorrigible; and, that having, when in the service of Mr. Davies, seduced an immigrant girl, and robbed his master to support her, and moreover had made away with wine and other little matters of nourishment sent to the unfortunate female by charitable people during her confinement, was punished by the Norfolk Plains bench of Magistrates by being sentenced to work in chains in a road gang, and was accordingly enrolled in the Perth gang under the control of Captain Cheyne. This man is an excellent gardener, and he is discovered - not working in chains upon the roads - but working (although with chains on his legs yet separated and worn without inconvenience to him) in Captain Cheyne’s garden for his, Captain Cheyne’s private advantage and accommodation.

The other case is a tailor - an equally incorrigible genius; - after the exercise of every indulgence and kind treatment - he was taken before the Norfolk Plains bench on some serious charge, and sentenced to labor in chains on the road. He was sent to Captain Cheyne’s party and is discovered - not at work on the roads - not fulfilling the sentence of the Magistrates, but in Captain Cheyne’s kitchen - cross-legged upon a board, making clothes for the noble Captain and the members of his family.

These are the particulars of the cases for which informations were laid against Captain Cheyne - and upon which he was fined £20 - and against which he has appealed, not, we understand, against the illegality of the fine - not against the justice of it - but upon the grounds - that as Perth, the place of his residence is in the Campbell Town district the case should have been tried by the Bench in that district. This is a quibble we should have hoped no gentleman in the Colony could be mean enough to have taken advantage of. In the present instance, however, it will avail nothing, any Bench of Magistrates having power to entertain a charge for harbouring and employing convicts in whatever district the offence may be committed.

We trust that the Magistrate who honestly [???] of the informations very justly laid against the Director of Roads, will not permit their authority to be trampled upon, and thereby furnish to the incorrigible characters whom they visited with deserved punishment, and all others who they hereafter be charged before them with improper conduct, the opportunity to laugh at them and to consider their decisions as of no value when opposed to the necessities of the Superintendents of the Roads. Let the decision against Captain Cheyne be reversed after the patient hearing the case received and the proof of guilt, and even the admission of the correct Captain - then, say we, that every person already fined for a similar breach of the regulations, has been unjustly fined, and is entitled to have the amount of fine returned, and to be compensated for the injury inflicted upon him. We will go no further - we say, that if such is the fate of Cheyne’s case, the power of Magistrates in this Colony has ceased, and the sooner we give up to the visionary doctrine of Captain Cheyne and Maconochie, the better, perhaps for the Colony, for with such an opposition, by the head of a government department to a just decision, given by a competent tribunal, and his declarations, subversive of all equitable discipline, we are constrained to say that if, for the sake of appearance only, the Local Government do not take serious notice of the matter, it fails in its duty to the British people - the free Colonists, and the well-disposed of the prisoner population, and mischievously must such conduct effect the depraved of the convicts.

Source: Cornwall Chronicle, 19 January 1839

            For the information of those of our readers who are not in possession of the facts of the above case, it will be necessary for us briefly to state them. This was an action brought by Anthony Best against Capt. Cheyne, of Bridge building, road making, Prison Discipline writing - employing convicts contrary to Government Regulation notoriety, to recover compensation for damage done to him, by forcibly taking possession of a farm leased to plaintiff, and quartering a gang of convicts of from 120 to 150 in number, for a period of 18 months and keeping possession of the said land until the day of trial. Defendant, it appeared, had built huts for the accommodation of the gang - had cut down the best timber upon the land - erected sawpits - and had in other ways to injured the property as to render it valueless to plaintiff. The facts being clearly established by witnesses for Plaintiff - Mr. McDowall for Defendant, contended, that because Captain Cheyne had left as much wood upon the land as Plaintiff could carry into town with two or three carts, within the period at which his lease expired, that he had received no damage, and therefore, had nothing to complain of. The Jury, however, differed with the learned gentleman, and returned a verdict for plaintiff. Damages £92.

This action, we presume, is merely the first of a series of actions that will be brought against Capt. Cheyne, in his private capacity, for damage done by his command, and under his authority, to the property of some scores of landholders and land owners, in his mad and inconsistent attempt to lay water into his town from the New River. We call to recollection the day, now about three years since, when Colonel Arthur “broke ground” at the New River, in the presence of a few of the inhabitants who had been induced to ride to the spot to witness the ceremony - and a host of Government officials - and pledged himself to them, that in 18 months - the pure water would be running through the streets of Launceston. We knew that it was impossible that the water could be laid in from that part of the river - at which his Excellency "broke ground" and we stated at the time, and we have done so twenty times since, and we declared the whole concern to be a job, and if the public do not look to it, they will find it still as dear a job to them, as though Capt. Cheyne had succeeded in obtaining the authority of a Law, to tax the inhabitant of Launceston to the tune of £7 per cent, per annum upon the amount of their rentals, for as many years as he thought proper to levy it - and to continue the attempt! To conduct tunnels through miles of granite. Yes, we do not forget the promises, and the loud huzzas of the train of sycophants that followed them - and then, the eulogiums of the venal journals upon the gallant Colonel, and the proud boastings of the Direction General. What as it all come to? We tell the public, that if they permit it, it will come to - a dip into the Treasury Chest, to the tune of thousands of pounds, to pay damages given in actions at Law against the clever Capt Cheyne, for compensation for injuries done by him to the property of private individuals.

An Arthur job! who can reflect upon the fact, without boiling with indigestion! - without shivering with disgust! - without earnestly desiring the privilege of expending our own money! - derived from the national Industry and enterprise. At the very time this shameful job was planned, and estimated to cost £100,000, it was suggested to the Government, that from the River Nile, from the mill of My Bryan, water might be laid into Launceston, over land the whole distance, for about £3000; no tunnels were necessary; and Mr. Bryan offered to give up his mill and property for land equal to it in value in any other part of the Colony - but, had this plan been adopted, it would not have constituted a job - and the inhabitants of Launceston would have had water, which is a privilege the Arthur Government did not intend they should enjoy; again, this cheap plan did not afford opportunity for the scientific display of tunnel making and shaft sinking - and moreover, for the levying a tax of £7 per cent per annum on house rents for 40 or 50 years, or more at the pleasure of God knows who.

The wretched attempt at tunnel and watercourse making will be a disgrace to Colonel Arthur’s administration - so long as it can be recollected. His Excellency should be surcharged the amount of money and labor expended - (about £12,000 or £14,000) before the project was abandoned.

Capt. Cheyne, in his Prisoner Discipline sketches, says - the people of this Colony “are deficient in public spirit.” If they permit the public purse to be mulcted to pay his damages in actions brought against him for his illegal destruction of individual property - and his law costs, we shall perfectly agree with his excellent Director General-ship.

We trust that the verdict of the Jury will teach Mr. Cheyne a lesson he stood much in need of. It not unfrequently happens, that children of fortune - persist in the commission of acts of impropriety, until they believe they are beyond the reach of a controulable power. This we believe has been pretty much the idea of many officials in this Colony, who will be wise to apply the check - the road department gentlemen has received to themselves. It is quite necessary to ensure efficient public servants, to let them know, that the Government is not responsible for any illegal acts perpetrated by them, under pretext of their authority; - Captain Cheyne would, we dare think, have pursued a different plan with his water scheme, if he adopted it at all - had he reflected upon the probability of actions being brought against him for compensation for damage done by him to private property; and there is little doubt but the result of the late action will deter the gifted gentleman from attempting any other scheme, which he does not see clearly practicable.

Again, we caution the public against paying for Capt. Cheyne’s depredation.