Pedder C.J., 24 May 1824

SUPREME COURT.

VAN DIEMEN'S LAND.

May 24th, 182[4].

On this day the Court opened by adjournment, when Joseph Tice Gellibrand, Esquire, appeared, and addressed the Court to the following effect:--

``I have the honor of presenting to this Court His Majesty's Commission, by which I am appointed to the office of Attorney-General to this Colony, and of stating that I am prepared to take such Oaths of Office as Your Honor may be pleased to administer."

Upon this address, His Honor the Chief Justice expressed his satisfaction at the appointment, and desired the learned Gentleman to take his seat at the head of the bar.

The Attorney-General, having complied with the direction of His Honor, then rose, and addressed the Court:--

``May it please Your Honor, -- It now becomes my painful duty, in the exercise of the functions of that high office with which His Majesty has been pleased to invest me, to present to the Court an awful catalogue of crime.

``I feel it my duty previously, to offer some observations upon the boon which His Majesty has been graciously pleased to confer upon this Colony; and when I consider that 20 years have scarcely elapsed since this Island was a barren and desolate country, so far as regards civilization, and view what it now is, its population, its agriculture, and its riches, I consider that this is one of the most favoured spots in the world.

``When I call to mind that every thing which is valuable to man, either as a rational, social, and moral being, is possesed and enjoyed here - when I further consider that we have all these invaluable blessings without the imposts and duties which are necessarily imposed upon the Mother Country, it is natural that we should feel attached to that Government which has bestowed them, and grateful to that Providence which has blessed us with the possession of so many enjoyments.  I consider this day, a day which establishes a Court of Civil and Criminal Judicature, and which secures the rights and privileges of the subject, as one of the proudest the Colony has ever known, and I feel no small share of that pride, in being an humble instrument in aiding and assisting upon [such] an occasion.

``Although I shall be under the painful necessity of laying before the Court a heavy catalogue of crimes and misdemeanours, yet it is subject of congratulation, considering how long a period it is since there has been a Criminal Court in this place, that the offences are so few, compared with what might have been expected in a Colony so constituted as that of Van Diemen's Land.  This circumstance affords a just ground of eulogium, not only on the wise and able administration of the late Lieutenant Governor, but also manifests the vigilance and care of the Magistrates, to whom the preservation of public peace has been intrusted.

``One of the greatest boons conferred by the Legislature upon this Colony is the Trial by Jury; this is the fundamental principle of the Charter, and I trust the Court will pardon me, if instead of stating my own opinion, I give the opinions of some of those who have written upon this important subject.  Mr. Justice Blackstone's encomium is so just, striking, and beautiful, that I shall read it to the Court at length.

---``The Trial by Jury ever has been, and I trust ever will be, looked upon as the glory of the English law.  And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases?  This Trial by Jury is the most transcendant privilege which any subject can enjoy or wish for; that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.  A constitution that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages; and therefore a celebrated French writer, who concludes that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the Trial by Jury."

``I will also present to the Court the opinion of DeLolme, who though a foreigner is justly considered as one of the best of our constitutional writers; after having stated in a manner similar to Mr. Justice Blackstone, he thus expresses himself:--

``All these circumstances have combined to introduce such a mildness into the exercise of criminal Justice, that the Trial by Jury is that point of their liberty to which the People of England are most thoroughly and universally wedded; and the only complaint I have ever heard uttered against it, has been by men who, more sensible of the necessity of public order than alive to the feelings of humanity, think that to many offenders escape with impunity."

``Having thus adverted to the criminal, it may not be inapplicable that I should speak of the civil law.

``When I reflect on the humble abilities of the individual who addresses the Court - on the errors of judgment to which all are prone - on the deceitfulness of the human heart - against which, we cannot sufficiently guard - I feel a satisfaction and a consolation in knowing, that if through the influence of such causes, any individual should be unfortunately oppressed, he has his remedy in that glorious bulwork of our constitution, the writ of Habeas Corpus. - These are the boons - these are the privledges - these are the blessings - for which our fore-fathers fought, and bled, and died - and these boons, privileges, and blessings are the birthright of every Englishman - and though I am removed far from the country that gave me birth, I am bound to say, that, standing in this remote part of the world (through His Majesty's most gracious Charter), I possess and enjoy them here.

``To me is entrusted one of the most painful offices which can be sustained by any individual; added to which, I have to exercise the functions of a Grand Jury; which it is my duty to discharge honestly - fearlessly - uprightly - and, however painful and difficult may be the discharge of these duties, I am encouraged by the sentiments expressed by a man, not more distinguished as a Lawyer, than as a Christian - namely, My Lord Chief Justice Hale, who says,--

``That in the administration of justice, I am entrusted for God - the King - and Country; therefore, that it must be done uprightly, deliberately, resolutely.

``That I rest not on my own understanding or strength, but implore and rest upon the direction and strength of God.

``That in the execution of judgment, I carefully lay aside my own passions, and not give way to them however provoked.

``That I be wholly intent upon the business I am about, remitting all other cares and thoughts as [?], and interruptions.

``That I suffer not myself to be prepossessed with any judgment at all, [till the] whole business and both parties be heard.

``That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.

``That in business capital, though my nature prompt me to pity; yet to consider that there is also a pity due to the country.

``That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgment.

``That I be not biassed with compassion to the poor, or favour to the rich, in point of justice.

``That popular or court applause, or distaste, have no influence in any thing I do, in point of distribution of justice.

``Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.

``If in criminals it be a measuring cast, to incline to mercy and acquittal.

``In criminals that consist merely in words, when no more harm ensues, moderation is justice.

``In criminals of blood, if the fact be evident, severity is justice."

``I wish in few words to state the line of conduct I intend to pursue; that if, in the cases, which I must of necessity bring before the Court, and with respect to which many persons may be implicated, that whether they be high or low, rich or poor, bond or free - I must and will do my duty."

_________________

TRIALS.

William Tibbs, the first prisoner who has been tried before this tribunial [sic] of justice, was put to the bar on an indictment charging him with shooting at a black man, named John Jackson, on the 17th of January last, whereby the unfortunate man lost his life.

After the evidence had been gone through, and the prisoner had made his defence,

The learned Chief Justice, in summing up the evidence, observed, that there were but two questions for the consideration of the Jury; the first was, whether the prisoner at the bar was the person who fired the pistol, and if he was, how far he was justified in so doing.

The Jury in a few minutes returned a verdict of - Guilty.

The Supreme Court of Van Diemen's Land  opened on 10 May 1824, at which time the Registrar, Mr Sorell, read the Acts and Charter that constituted the court, as well as the governor's proclamation.  At the first hearing, George Cartwright, Hugh Ross and Frederic Dawes were admitted as attorneys, solicitors and proctors of the Supreme Court.  Mr John Beamont, former Provost Marshal of Van Diemen's Land, was appointed Sheriff: see Hobart Town Gazette, 14 May 1824.