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STUDIES IN ECONOMICS AND POLITICAL SCIENCE
EpITED BY THE Hon. W. PEMBER REEVES
DIRECTOR OF THE LONDON SCHOOL OF ECONOMICS.
No. 16 in the series of Monographs by
writers connected with the London School
of Economics and Political Science.
A COLONIAL AUTOCRACY
Laon
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NEW SOUTH WALES
UNDER GOVERNOR MACQUARIE
1810-1821
BY
MARION PHILLIPS
B.A, (MeLBouRNE), D.Sc. Economics (Lonpon)
LONDON
P. S$. KING & SON
ORCHARD HOUSE, WESTMINSTER
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This work is the Thesis on which the
Author obtained the Degree of D.Sc.
a in the Faculty of Economics, of the
sy University of London, Fune, 1908.
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PREFACE.
THE selection of the period of New South Wales history covered
by this book, of the years 1810 to 1821, may seem to call for ex-
planation. The choice was not arbitrarily made, but was due to
the fact that the publication of the historical records of the State
commenced by the New South Wales Government in 1892
ceased in 1901 with the issue of the seventh volume of the series,
containing the documents of the years 1809 to 1811. These
documents consisted of official papers and a few private letters,
and by their help the history of the Colony may be traced from
Captain Cook’s first voyage to the end of 1811. It was there-
fore obvious that further research should commence where this
publication left off. By going back, however, to the commence-
ment of Governor Macquarie’s rule in 1810, the period is brought
to a natural conclusion with his return to England in the begin-
ning of 1822.
Very little has been written of the history of Australia apart
from tales of exploration and travel. Each volume of the
Historical Records of New South Wales, however, is prefaced by
an introduction to some extent summarising the documents, so
that an easily verifiable account of the history of the Colony may
be obtained up to the end of 1811. But the documents are
not well arranged, and the introductions are scanty and confused,
and it is almost a matter of research, even before 1811, to gain
a clear idea of the state of the country and the course of its
development.*
1 The History of New South Wales from the Records, by G. B. Barton, vol.
i., gives a full and authentic account of the Colony up to 1792.
Vv
vi PREFACE
For these reasons it has seemed necessary to give an account
in considerable detail of events taking place in the years im-
mediately preceding Macquarie’s arrival, and to describe fully
the conditions of the Colony—social, economic and political—
at that time.
From the beginning of 1812 the documentary evidence in
the Public Record and Colonial Offices, the files of the Sydney
Gasette (in the Public Record Office) and Parliamentary Papers
have formed the basis of the following chapters in the history
of New South Wales. All accessible printed books have also
been examined, on the whole with very little result. The only
contemporary historian of any note is W. C. Wentworth; but
apart altogether from the narrow limitations of his book, no
one in search of facts would find much profit from a study of
his early work.
In later days G, W. Rusden is the only historian who has
dealt in detail with the subject. In his History of Australia
he devotes one chapter of more than a hundred pages to Mac-
quarie’s governorship, and he appears to have had before him
many important official despatches and much private corre-
spondence. Unfortunately Mr. Rusden made many errors in
chronological and other facts which really vitiate the greater
number of his conclusions, and this part of his history is not
only too summary to be of great value, but too inaccurate to be
of much consideration. Mr. Jenks’ History of Australia, which
is by far the best and most reliable book upon the subject, deals
very lightly with early days, the years from 1801 to 1821 being
passed over in two pages. Even in such a specialised treatise
as that of Mr. Epps’ Land Laws of Australia, the system of
land distribution before Lord Ripon’s Regulations in 1831 is
accorded an equally unimportant position.
_ In spite of the fact that so little attention has been given to
Macquarie’s governorship, it is a time of considerable interest
and importance. From a small settlement dependent even for
PREFACE vii
its food-supply upon other countries, New South Wales grew
during this period into an agricultural Colony providing its own
food, beginning to establish manufactures and exporting wool.
A few years after Macquarie’s return it was even able to support
a civil establishment without help from the Imperial Treasury.
In these years also is seen under peculiarly simple and isolated
conditions the working of “ military ” government—a curious and
anomalous system of autocracy working through the forms of
civil law. It is in the study of this system that the true signifi-
cance of what at first sight seems merely a series of personal
quarrels between the Governor and the judges emerges as a
conflict of principles, as the outcome of the real intellectual
difficulty of reconciling the due administration of the law with
a judiciary dependent upon an autocratic Governor. The fact
that it was a one-man government also renders very important
the study of this one man’s character and training, his prejudices
and opinions. Macquarie, himself a man of very ordinary
ability, is an intensely interesting figure in Australian history,
because for twelve years the development of the country was
almost wholly dependent upon his guidance. The period illus-
trates too the almost inevitable failure of such an autocracy, and
it comes to an end with the commission of J. T. Bigge, who was
sent from England in 1819 to investigate on the spot the com-
plaints against the Governor, and to inquire generally into the
Colony’s affairs. Acting upon the reports of the Commissioner,
the Home Government in 1823 granted to New South Wales
some measure of Constitutional Government, and thus accom-
plished the first step in that progress which led to the great
autonomous measures of 1855. The years from 1810 to 1821 form
a distinct period in this transition, and behind the simple con-
stitutional history of the time are all the complex elements
which went to make up the social and economic organisation
of the people. These Englishmen settled in southern seas
found that they had to face old problems as well as new, and
viii PREFACE
in dealing with both they reproduced with many interesting
modifications the administrative methods to which they had
been accustomed. Thus, for example, the magistrates had to
deal with the evils of the liquor trade ina peculiarly acute form,
and ways had also to be found for carrying out the easier duties
of public benevolence. For the latter purpose many associa-
tions came into being, and it was largely through the sense of
corporate existence gained by these means that the colonists
began to demand towards the end of the period a fuller share
in the work of Government. During these years also the ques-
tions of taxation, the organisation of trade, internal and external,
the distribution of and above all the conditions of labour passed
through important stages. Finally there was ever present the
unsolved problem of the reform or restraint of the criminal.
New South Wales at this period ceased to be a mere penal
station and became a Colony. Although the convicts still formed
the majority of the population, the free settlers and the convicts’
children gained steadily upon them in numbers, wealth and in-
fluence. Macquarie deliberately adopted the principle that New
South Wales was for the convict and not for the free colonist,
and the story of his government is largely the story of the
momentary success and final defeat of this policy, a defeat
followed by some years of bitter class enmity.
Yet the idea which fired Macquarie’s enthusiasm was worthy
of attention, and to turn the criminal into a useful, self-respecting
citizen populating the empty lands of a newcountry, and alone
building up a new state, was a fine and generous plan.
The introduction of free settlers privileged to employ convict
labour, the faults and weakness of an autocratic government,
and above all the mental atmosphere of the beginning of the
nineteenth century with its narrow religious outlook and severe
class rigidity, made its complete realisation impossible. Never-
theless the experiment of colonising-transportation was not
altogether a failure. If for the most part the convict remained
PREFACE ix
unreformed, his children, even those of the first generation, were
creditable to the British stock from which they were descended.
Between 1810 to 1821 this first generation of Australians reached
the age of men and women. They bore no sign of a convict
taint, no heritage of vice or weakness, and this strange method
of colonisation which gave to the country a fast-increasing
population, brought with it no penalty of physical or moral
-degeneration.
One other aspect of New South Wales history may be in-
dicated here—the relation of the Home Government and the
Imperial Parliament towards this infant Colony. By a study
of Parliamentary Papers and Debates, as well as periodical
literature and newspapers, an attempt has been made to set
forth the attitude of English politicians towards New South
Wales, and the result of that attitude as embodied in the work
of inquiry and legislation.
The author cannot let this opportunity pass of recording
her grateful thanks to Mr. Graham Wallas and Mr. Sidney
‘Webb. Mr. Graham Wallas supervised her work in his
official capacity, but he took a very generous view of his
duties, and the author can scarcely measure the extent to
‘which she benefited by his advice, admonition and criticism.
To Mr. Sidney Webb her debt is also great, for he read this
thesis in manuscript and made invaluable suggestions. She
owes much too to the School of Economics, for no seat of
learning could with finer generosity have welcomed the
stranger within the gates.
MARION PHILLIPS.
Lonpon, ¥uly, 1909.
TABLE OF CONTENTS
CHAPTER I,
INTRODUCTION. THE LAND AND THE PEOPLE .
CHAPTER II,
THE DEPOSITION OF BLIGH. - : g P
CHAPTER III.
THE ADMINISTRATIVE PROBLEM . ; :
CHAPTER IV.
THE Liquor TRADE :
CHAPTER V.
LAND, LABOUR AND COMMERCE . “ . ;
CHAPTER VI.
On THE HicuH Seas . .
CHAPTER VII.
THE STRUGGLE BETWEEN THE EXECUTIVE AND THE JUDICIARY
CHAPTER VIII.
THE EMBARRASSMENTS OF AN AUTOCRAT . .
CHAPTER IX.
THE STIRRING OF POLITICAL ASPIRATIONS . 5 fi
CHAPTER X.
New SoutTH WALES AND THE IMPERIAL PARLIAMENT :
xi
PAGE
109
166
190
233.
260
289
BIBLIOGRAPHY.
PRINTED BOOKS, PERIODICALS AND NEWSPAPERS.
Barton (G.B.). History of New South Wales from the Records, vol. i., 1783-1789.
Sydney, 1889.
Becke (L.) and Jeffery (W.). The Naval Pioneers of Australia. London, 1899.
Bennet (H.G.). A letter to Earl Bathurst . . . on the condition of the Colonies
of New South Wales and Van Diemen’s Land as set forth in the evidence
taken before the Prison Committee in 1819. London, 1820.
Bentham (J.). Letters to Lord Pelham. London, 1802. A Plea for the Con-
stitution. London, 1803.
Castlereagh, Viscount, Second Marquis of Londonderry, Memoirs and Correspond-
ence of, edited by his brother (C. W. Vane, Marquis of Londonderry).
London, 1848-1853.
Collins (David). An Account of the English Colony in New South Wales, etc.
London, 1798. Second Edition, 1802 (1788-1801). Second Volume, 1804
(x801-1804).
Colonial Office List, 1905.
Eden (Sir F.). The State of the Poor. London, 1797.
Eden (W.), first Lord Auckland. History of New Holland from its Discovery in.
1816 . . . and Discourse on Banishment. London,1787. Second Edition
in same year. Third Edition, 1790.
Edinburgh Review, vol. ii., April, 1803. Vol. xxxii., July, 1819.
Encyclopedia Britannica Supplement. Article ‘‘Colony”’ by James Mill.
London, 1824.
Essays, Geographical, Philosophical and Political. London, 1812.
Gentleman's Magazine, vol. \xxxix., February, 1819.
Jenks (E.). History of Australian Colonies, Cambridge Historical Series. Cam-
bridge, 1895.
Jenkyns (Sir H.). English Rule beyond the Seas. London, 1902.
Johnston (Lieut.-Colonel G.). Proceedings of a General Court-Martial for the
trial of, on a charge of mutiny exhibited against him by the Crown, for
deposing W. Bligh, etc. London, 1811.
Macquarie (L.). A letter to the Right Hon. Viscount Sidmouth in Refutation of
Statements made by the Hon. Henry Grey Bennet, M.P., in a Pamphlet
On the Transportation Laws, the State of the Hulks and of the Colonies
in New South Wales. London, 1821.
Marsden (J. B.). Memoir of the Life and Labours of Samuel Marsden. London,
1858,
xiii
xiv BIBLIOGRAPHY
Marsden (S.). Am answer to certain calumnies in the late Governor Macquarie’s
pamphlet, etc., London, 1826. Statement including correspondence, etc.
London, 1828.
New South Wales. Governor’s Court. Rules and Orders. Sydney, 1815.
New South Wales, Historical Records, 1783-1811, vols. i.-vii. Sydney,
1892-IgoI.
New South Wales. Standing Orders. 1802-1806.
O’Hara(—). History of New South Wales, 1788-1812. London, 1817.
Second Edition, 1818.
Romilly (Sir S.). Memoirs of the Life of. London, 1840.
Rusden (G. W.). History of Australia. London, 1883.
The Times, 1818-1824, Proceedings of Parliament, etc.
Wallas (Graham). Life of Francis Place. London, 1898.
Webb (B. and S.). History of Liquor Licensing in England, principally from
1700-1830. London, 1903.
Wentworth (W. C.). A statistical, historical and political description of the
Colony of New South Wales and its dependent settlements in Van Diemen’s
Land, etc. London, 1819. Second Edition, enlarged, London, 1820.
Third Edition with an Appendix, etc., London, 1824.
Wilberforce (A. M.). Private Papers of William Wilberforce. London, 1897.
Wilberforce (R. I. and S.). Life of William Wilberforce. London, 1838.
Correspondence of W. Wilberforce. London, 1840.
Yonge (C. D.). Life of Lord Liverpool. London, 1868.
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DOCUMENTS
I. COLONIAL OFFICE.
MANUSCRIPT,
t. Despatches from Secretary of State and Under-Secretary to Governor
Macquarie.
2. Letters from Colonial Office to persons in New South Wales,
3. Letters to persons in United Kingdom (Domestic Correspondence).
4. Commissions of Government Officers in Colony.
5. Circular letters to Colonies, etc.
II. RECORD OFFICE.
PRINTED.
The Sydney Gazette. The only newspaper in the Colony and the official organ
of the Government. Contains General and Government Orders, Pro-
clamations, and all official notices and advertisements, as well as general
news.
MANUSCRIPT,
- Despatches from Governor of New South Wales to Secretary of State or
Under-Secretary, with Enclosures,
2. Despatches from Secretary of State and Under-Secretary to Governor
Macquarie.
3. Letters from Colonists to Secretary of State or Under-Secretary.
4. Letters from other Government Departments to Colonial Office.
5. Letters from private persons in United Kingdom to Colonial Office.
6. Correspondence between Bigge (Commissioner to New South Wales) and
persons in the Colony.
7. Despatches of Bigge to Secretary of State or Under-Secretary.
8. Documents and Minutes of Evidence collected by Commissioner Bigge.
9. Reports of Commissioner Bigge.
a!
Ill) PARLIAMENTARY PAPERS.
The following abbreviations are used in this list; H.C., 1812, IL., signifying
House of Commons’ Papers, 1812, Volume II.
1798. Report respecting Convicts Transported to New South Wales and Nor-
folk Island. Select Committee on Finance. (H.C., 1798.)
XV
xvi DOCUMENTS
1812. Report of Committee on Transportation with Minutes of Evidence and
other Documents. (H.C., 1812, II.)
1816. Expenses (Annual) of New South Wales, 1812-1816. H.C., 1816, XVIII.
Letters and Enclosures of Lord Bathurst to Governor Macquarie and of
Governor Macquarie to Lord Bathurst concerning Report on Transporta-
tion. (H.C., 1816, XVIIL)
1819. Report of and Minutes of Evidence taken before Committee on Gaols and
Prisons. (H.C., 1819, VII.)
1822, Report of Commissioner of Inquiry (J. T. Bigge) on the state of New
South Wales and its Government, Management of Convicts, their Character
and Habits. (H.C., 1822, XX.)
1823. Reports of the same on the Judicial Establishments of New South Wales
and Van Diemen’s Land, (H.C., 1823, X.)
1823. Instructions to J. T. Bigge, Esq., January, 1819. (H.C., 1823, XIV.)
1828. Letter from late Governor Macquarie to Lord Bathurst, 27th July, 1822.
(H.C., 1828, XXI.)
IV. STATUTES.
The following short notes have been made in order to show the relative importance
of different statutes and to facilitate reference.
A full account has been given of 4 Geo. IV., cap. 96, because of its great im-
portance in Australian History.
1784. 24 Geo. III., cap. 56.
Gives permission to His Majesty in Council to transport convicts to some place
beyond the seas.
1787. 27 Geo. III., cap. 2.
Establishes Criminal Court for New South Wales.
1790. 30 Geo. III., cap. 47.
Enables His Majesty to authorise his Governor or Lieutenant-Governor of
places beyond the seas, to which felons or other offenders may be trans-
ported, to remit the sentences of such offenders.
1799. 39 Geo. IIL, cap. 51.
Continues various Acts referring to transportation of offenders.
1802-1803. 43 Geo. III., cap. 15.
Facilitates some details in carrying out the transportation of convicts.
1806. 46 Geo. III., cap. 28.
Continues the Transportation of Offenders’ Act until 1813.
1813. 53 Geo. III., cap. 39.
Continues Transportation of Offenders’ Act for one year.
1813. 54 Geo. III., cap. 15.
For the more easy recovery of debts in New South Wales.
1813. 54 Geo. III., cap. 30.
Continues Transportation Acts for two years.
1815. 55 Geo. III., cap. 156.
Continues Transportation Acts for one year and makes certain minor altera-
tions therein,
DOCUMENTS xvii
1816. 56 Geo. III., cap. 27.
Continues Transportation Acts until 182r.
1817. 57 Geo. III., cap. 53.
For more effectual Punishments of Murders and Manslaughter committed in
Places not within His Majesty’s Dominions,
181g. 59 Geo. III., cap. ror.
Amends some minor points in 56 Geo. III., cap. 27.
181g. 59 Geo. III., cap. 114.
Stays proceedings for one yearagainst any Governor or other persons concerned
in imposing and levying duties in New South Wales; continues for one
year certain duties; empowers Governor to lay duty on spirits made in
New South Wales.
181g. 59 Geo. III., cap. 122.
Permits vessels under 350 tons to trade with New South Wales.
1820. 1 Geo. IV., cap. 62.
Continues 59 Geo. III., cap. 114 until 1822,
1821. 1 and 2 Geo. IV., cap. 6.
Continues for two years the Transportation Acts.
1821. 1 and 2 Geo, IV., cap. 8,
Continues 59 Geo. III., cap. 114 until 1823.
1822. 3 Geo. IV., cap. 96.
**An Act to continue until the First Day of January, 1824. An Act passed in
59 Geo. III. .. toauthorise the imposing and levying other duties on goods
imported into the said Colony; and to suspend, for ten years, the payment
of duty on the importation of certain goods, the produce of New South
Wales.”
By this Act, Governor may impose by Proclamation or Orders rates and duties
on importation of rum or spirits from United Kingdom or British West
Indies not exceeding 1os., and on others not exceeding 15s, per gallon
on tobacco 4s. a lb.; on all other goods not the produce or manufacture
of United Kingdom, imported direct from United Kingdom—duty not
exceeding 15 per cent. ad valorem.
He may also reduce and revive such duties.
He may make regulations for levying the duties.
He may impose fines and penalties for breach of the regulations, provided true
copies of such regulations be transmitted to Secretary of State by
Governor for His Majesty’s Approbation.
The account of application of duties so collected to be transmitted to Treasury.
1823. 4 Geo. IV., cap. 47.
Continues Transportation Acts.
1823. 4 Geo. IV., cap. 96.
“An Act to provide until the First Day of July, 1827. . . tor better administra-
tion of justice in New South Wales and Van Diemen’s Land, and for
more effectual Government thereofand for other purposes relating thereto.”
The important sections of this Act provide as follows :—
I. Supreme Court for New South Wales, and one for Van Diemen’s Land.
Each to have one Judge called a Paes) Justice paid by salary and not fees.
xviii DOCUMENTS
2.
3.
4
Lal
25.
27.
Courts to be Courts of Record. All pleas, Civil, Criminal or mixed, and
Jurisdiction in all cases whatsoever.
Courts to have jurisdiction over Piracies and Offences committed at sea or
in islands in India or Pacific Ocean.
Trial for crimes, misdemeanours and other offences cognisable by Court to
be prosecuted by information and tried by Judge and seven Officers of
Army or Navy. If there are not seven Commissioned Officers, Magistrates
to be appointed who may be challenged.
. Actions at Law to be tried by Chief Justice and two Magistrates. Right
of challenge given.
parties desire a Jury of twelve such Jury may be empanelled. Chief
Justice is to be the Judge of the Law in all cases.
. Qualification of Jurors is to be freehold of fifty acres or freehold dwelling
of £300 value.
. His Majesty by Order in Council may extend Jury Trial.
. Supreme Court to have Equitable and Ecclesiastical Jurisdiction.
. If amount of suit is above £500, appeal to be allowed to Court of Appeals.
. Court of Appeal in New South Wales to consist of Governor assisted by
Chief Justice of Van Diemen’s Land. Similar Court for Van Diemen’s
Land.
. Appeal from this Court to Privy Council under regulation by Charter or
Letters Patent from His Majesty.
. Courts of Session to be established with Summary Procedure and carefully
defined Powers. To have jurisdiction in Criminal cases short of capital.
. Courts of Request to be established for hearing Civil Suits under £10.
Commissioner to preside. Paid by salary not fees.
. Council to be established called a Legislative Assembly with power to make
laws. To be appointed by Warrant by His Majesty.
. His Majesty in Council may establish any Law dissented from by the
Council.
. No tax to be imposed by Governor and Council except for local purposes.
. 59 Geo. III., cap. 114 made perpetual.
. All laws to be laid before Chief Justice for his certificate that they do not
contravene the Law of England.
. All laws to be transmitted to His Majesty within six months.
. Laws and Orders in Council to be laid before Parliament.
. Pardons already given to convicts by Governors to have same effect as
pardons under Great Seal.
. In future pardons must be transmitted to His Maiesty for approbation or
allowance. Afterwards may have effect within New South Wales as if
under Great Seal.
. Any convict unduly returning to be punished by death.
. Persons assisting convicts to escape to be guilty of misdemeanour. Penalty
£500, or imprisonment for two years.
2 Geo, II., cap. 36, extended to New South Wales.
. Artificers, etc., may enter into indentures to serve any persons in or about to
go to New South Wales.
Persons to whom they have contracted may maintain actions against any
other persons employing them.
—
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DOCUMENTS xix
1824. 5 Geo. IV., cap. 84.
More strictly defines powers of Superintendents of Convicts on transports.
Convict whose sentence has been remitted by Governor, and who is free so long
as he remains in Colony, may have right of owning property and being
sued in the Courts.
Consolidates all the Transportation Acts,
DEBATES IN PARLIAMENTS CONCERNING NEW SOUTH WALES.
Important Debates are indicated thus *
1810. 4th May. (Hansard.)
gth May. Sir S. Romilly moved address to King to put in force 19 and
34 Geo, III. ve Penitentiary Houses. Withdrawn. (Hansard.)
*5th June. See above. Lost. 52-69. (Hansard.)
1811. 13th February. (Hansard.)
4th March. Committee on Penitentiary Houses appointed. (Hansard.)
1812. 4th February. Sir Samuel Romilly gave notice of motion to repeal
29 Geo. III. relative to transportation of convicts. (Hansard.)
12th February. Committee on Transportation appointed. (Hansard.)
1813. 8th January. (Hansard.)
1815. 22nd June. Bill to extend duration of Transportation Acts introduced
(Hansard.)
1816. *2oth February. Offenders’ Transportation Bill First Reading. (Han-
sard.) Same. Second Reading. (Hansard.)
3rd April. Tierney moved address to Prince Regent praying for abolition
of Third Secretary of State. (Hansard.)
1817. *1oth March. Bennet presented petition from settlers in New South
Wales. (Hansard.)
29th April. Tierney moved for Committee to inquire into advisability of
abolishing Third Secretary of State. (Hansard.)
1819. *18th February. Bennet moved the appointment of Committee to in-
quire into system of Transportation and State of New South Wales.
Lost 93 to 139. (Hansard.)
Ist. March. Lord Castlereagh moved appointment of Committee on
Gaols and Prisons, which would also inquire into State of New South
Wales. Carried. (Hansard.)
*23rd March. Brougham presented petition of Blake and Williams.
(Hansard.)
*7th April. Bennet moved address to stay departure of female convict
ship to New South Wales. Lost. (Hansard.)
181g. 29th June. First Reading of New South Wales Duties Bill. (Times,
30th June, 1819.)
and July. Committee stage of New South Wales Duties Bill. (Times,
3rd July, 1819.)
1823, and July. Sir J. sischassen Cocossbaa
South Wales Jurisdiction Bill. (Haneard)
*7th July. Ms. ‘Wilmot Elevtoa ivoduond eles eeitbackiion of jew
South Wales Jurisdiction Bill. Went into Committee. (Times, 8th
July, 1823.)
8th July. Bir Jomnos Mackintoohprcsootet lian! of Hie
(Times, gth July, 1823.)
gth July. New South Valet jstieiieien ot Nea é
roth July, 1823.) .
roth July, 1823. New South Wales Jurisdiction Bill read a
and passed. (Times, 11th July, 1823.)
Pe
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28 a aE
—
CHRONOLOGY
(Events taking place in England are in italics.)
1808, January. Bligh deposed.
1809, May. Macquarie appointed Governor ; Ellis Bent appointed ¥udge-Advo-
cate.
1810, April, October. Lord Liverpool becomes Secretary of State; Bligh leaves
Sydney.
1811, May, June, July. ¥ohnston’s Trial.
1812, June. Lord Bathurst becomes Secretary of State ; Committee of House ef
Commons on Transportation.
1813. New Charter of $ustice issued for New South Wales; appointment of
Feffery Hart Bent as $udge of Supreme Court.
1814, July. J. H. Bent arrives at Sydney.
1815, November. Death of Ellis Bent.
1816, January. Recall of the Bents.
January. Appointment of Wylde and Field.
1817, May. J. H. Bent leaves Sydney.
1819, January, March. ¥. T. Bigge appointed Commissioner ; appointment of
Committee on Gaols.
1820, July. Macquarie’s Resignation accepted.
November. Sir Thomas Brisbane appointed Governor.
1821, February. Bigge leaves Sydney.
November. Brisbane arrives at Sydney.
1822, February. Macquarie leaves Sydney; Bigge presents Report I.
1823. Bigge presents Reports II. and III.; 4 Geo. IV., cap. 96.
1824. Death of Macquarie.
he
1 *
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ABBREVIATIONS
R.O. = Record Office.
C.O. = Colonial Office.
MS. = Documents in Manuscript.
D. = Despatch.
Encl, = Enclosure to D., etc.
H.R. = Historical Records of New South Wales, 1788-1811 (published by New
South Wales Government).
P.P. = Parliamentary Papers.
H.C. = House of Commons.
C. on T. = Report of Committee on Transportation, together with minutes of
Evidence and Appendices, P.P., 1812.
C. on G. = Report of Committee on Gaols, etc., P.P., 1819.
Bigge’s Report, I. = Bigge’s Report on Convict System, P.P., 1822.
Bigge’s Report, II. = Bigge’s Report on Judiciary and Police, P.P., 1823.
Bigge’s Report, III. = Bigge’s Report on Agriculture and Trade, etc., P. P., 1823.
Appendix Bigge’s Reports. = Appendices to Reports in R.O. consisting of minutes
of evidence, documents, etc.
S.G. = Sydney Gazette.
G.G.O. = Government and General Orders.
xxiii
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CHAPTER 1.
INTRODUCTION: THE LAND AND THE PEOPLE.
Autuorities.—Historical Records of New South Wales (especially Volume
VII.). Report on Transportation, P.P., 1812, II]. Report on Gaols, P.P., 1819,
VII. Bigg’s Reports, P.P., 1822 and 1823, Vols. XX and X. Report of Trial of
Lieut,-Colonel Johnston. Eden’s History of New Holland. Memoir of Samuel
Marsden.
WHEN Colonel Macquarie landed at Sydney at the close of
1809 the population of the settlement he was to govern was
already over 10,000. In the twenty-two years which had
passed since the foundation of the Colony of New South Wales
in 1788, the numbers had increased at arate of nearly 500a
year—an increase in population then without parallel in the
course of modern colonisation. The cause was not far to seek ;
what would under a system of voluntary emigration have been
remarkable, was but the natural result of forced emigration, of
the system of “ Colonising-Transportation ” of which New South
Wales was the first example. The custom of sending convicted
criminals to the plantations was indeed an old one, and one not
peculiar to England, but the system put into practice in 1788
differed in important features from any which had been
practised before.
The final triumph of the North American Colonies in 1783,
by closing that channel, had left a fast increasing number of
prisoners on the hands of the Government. The previous
course had been to send a large proportion of the convicts to
serve as bond-servants to colonial planters and farmers, Once
they were consigned to the masters of the merchant vessels who
offered for this service, the direct responsibility of the Govern-
ment was at an end, and the convicted criminal served out his
sentence under a form of mild restraint. Indeed the mildness
of the punishment was condemned in the House of Commons
I
2 A COLONIAL AUTOCRACY.
so late as 1776 by Mr. William Eden,' who a few years after-
wards suggested hard labour at home or slavery in Moham-
medan lands in exchange for Christian captives as more
efficacious punishments.”
Again, the bond-servants formed a minority and an unim-
portant minority of the whole colonial population.
When this system was interrupted by the revolt of the
Colonies in 1776, and brought altogether to an end by the peace
of 1782, the Government decided to recommence the transporta-
tion of convicts, apparently unconscious of the extent to which
they were creating a new policy. Under the new scheme not
only were the majority of the colonists convicts, but they were
almost entirely, for the first few years wholly, under the direct
control of the Government. By an Act of 1783, the King in
Council was empowered to declare any territory in the foreign
possessions of Great Britain to be a place to which convicts
might be transported. At the same time an expedition ex-
amined the West Coast of Africa in the search for territory, but
reported that it was too unhealthy even for the social outcast.
Yet to find some suitable country for the purpose became daily
more urgent. With the growing humanity of the times the
commutation of the death penalty grew increasingly frequent.
England offered no places of confinement for the men whose
sentences were thus commuted save the pestilent, over-crowded
prisons or equally horrible river hulks,
Meanwhile the immediate settlement of New Holland * was
being pressed upon the Government.’ The opportunity of
achieving both objects was too good to be lost, and in 1784 the
scheme received the serious attention of Lord Sydney, the
Secretary of State for Home Affairs. In 1786 a further step
was taken, and Orders in Council issued which declared the
East Coast of New Holland to be a place within the meaning
1 Afterwards the first Lord Auckland.
2 See History of New Holland, by William Eden, 1787, p. xxx. Discourse on
Banishment.
#24 Geo. III. cap. 56.
*i.e., Australia. New Holland was the earlier name for the Colony. In
Flinders’ Charts, published in 1814, the name Australia was used, and Macquarie
in D., 4th April, 1317, hoped that the name would be adopted. One of the earliest
names given by the voyagers of the seventeenth century was Terra Australis.
® See H.R.,1., Pt. I1., Memorial of Matra to Lord Sydney, 23rd August, 1783.
THE LAND AND THE PEOPLE. 3
of the Act of 1783. In the following year the project was put
into execution and a small fleet dispatched under the command
of Captain Arthur Phillip of the King’s Navy, who was to estab-
lish the settlement and be its first Governor. His command
consisted of 1,100 all told, including a military garrison, 500
male and 250 female convicts and a sprinkling of free emigrants.
In January, 1788, he landed his people at Port Jackson, and
founded on its shores the town of Sydney.!
The expedition created scarcely a ripple of excitement in
England, full of interest though it was to a few students of
criminal law. One of these, William Eden (afterwards the
first Lord Auckland), wrote a History of New Holland, in
the preface to which he discussed the new experiment.? The
suggestions made by him in 1776 in the speech referred to
above had apparently fallen on barren ground, and he took
it as an accepted fact that so far no means of keeping convicts
at home had answered “the end of their exemplary correc-
tion,” and that some way must be found of “exonerating this
country of its obnoxious members”? New Holland seemed a
suitable location, and the annexation of that island was on other
counts desirable. He spoke with careful vagueness of the con-
siderable changes which had taken place since England first
turned over troublesome subjects “to the use and .benefit of its
infant colonies”—changes “in the interests and political situa-
tion of many leading states of Europe”.* Whatever the actual
facts here alluded to, it seems at least worthy of note that two
days after Phillip landed at Port Jackson a French fleet was
sighted in the offing, and that for the next forty years each im-
pulse towards extended exploration and settlement in Australia,
which was fostered by Government, was almost without excep-
tion coincident with a similar enterprise rumoured or in course
of execution by France.
However desirable such a settlement might be, Eden con-
sidered that to invite “the industrious and respectable artisan
1 Named after Lord Sydney.
2 The book was published in 1787. It gives an account of discovery and
explorations from 1616 to 1787. Eden was an intimate friend of the younger
Pitt, and probably expressed the views of the Government in regard to the new
settlement.
3 History of New Holland, Preface, p. v. 4 Tbid., p. vii.
4 A COLONIAL AUTOCRACY.
to exchange his own happy soil for the possession of territory,
however extensive, in a part of the world so little known” would
have been justly censurable. For such a purpose there remained
criminals who, having forfeited their lives or liberties to justice,
“have become a forlorn hope, and have always been adjudged
a fair subject of hazardous experiments; . . . if the dangers
of a foreign climate or the improbability of returning to this ©
country be considered as nearly equivalent to death, the devoted
convict naturally reflects that his crimes have drawn on this
punishment, and that offended justice in consigning him to the
inhospitable shore of New Holland does not mean thereby to
seat him for his life on a bed of roses.” ?
There was, however, a difficulty in the likelihood that the
punishment would not prove a heavy one, and would thus en-
courage the commission of offences (a condition said to have
been realised thirty years later”) or might prove a fatal argu-
ment for the multiplication of capital penalties. On the
whole the prospects of the new settlement were hopeful, the
future home of the convicts was likely to be better than they
expected or deserved, and “such of those unhappy people as
testify an amendment in their morals, or an inclination to em-
brace the profession of honest industry, will probably not be
shut out from enjoying in some measure even the comforts
of life ”.®
Of the Colony as an instrument of commerce, and ultimately
of profit to the mother country, he had high expectations, and
he pushed aside the less optimistic views of colonisation to
which the loss of America had given point. He argued that
the errors and prejudices of past ages could not be fairly ad-
vanced “against the success of similar measures, when under-
taken at this period with the assistance of superior lights ”.*
It is melancholy to reflect that the decree of the “ superior
lights” was the foundation of a penal settlement under military
government. Having founded it, so lacking in forethought
and energy were these high powers that delay in sending
1 History of New Holland, Preface, pp. v-vi.
*See H. G. Bennet in House of Commons, Hansard, vol. 39, p. 478, 18th
February, 1819.
8 Ibid., p. vi. 4 Tbid., p. ix.
THE LAND AND THE PEOPLE. 5
store-ships kept the little colony, cast out like a band of
shipwrecked mariners on this uttermost island, for more than
two years on the verge of starvation. With a'!population of
criminals and soldiers whose character was little better, people
in whom greed was a dominant sentiment and self-restraint
non-existent, Phillip weathered through four years of Governor-
ship beset on all sides by difficulties of almost incredible
magnitude. The community was as much alone as a ship in
mid-ocean until the hitherto uncultivated soil yielded crops,
and the few head of cattle increased. There were no means of
getting away. The merchant vessels which had formed the
bulk of Phillip’s fleet had returned, and the crazy old Sirzus,
the King’s ship under his command, had been lost soon after.
While the Government at home delayed in sending store-ships,
they added to Phillip’s difficulties by sending more convicts.
However, by 1792, when Phillip, broken in health and spirits,
returned to England, brighter prospects were dawning and the
immediate danger of famine had been put to rest by more
liberal supplies from home. Phillip never returned to New
South Wales, for shortly after his arrival in England he suc-
cumbed to an illness from which he had long suffered. Three
naval governors followed him, Hunter, King and Bligh. The
last was deposed and arrested by the colonists at the beginning
of 1808, and it was as his successor that Lachlan Macquarie,
the first soldier to hold the command, took the oaths of office
on New Year’s Day, 1810.
The work of free settlement had made little progress. The
stream of emigration from England to all parts of the world
flowed very slowly, and no definite efforts were made to divert
it towards New South Wales. Phillip’s eager prophecy that,
given fifty farmers, future prosperity would be assured, may
have received theoretic approval, but was disregarded in practice.
Nor was any enthusiasm felt for the new system of “colonising
transportation”. In 1798 a Select Committee on Finance
declared that New South Wales was “already fully supplied
with convicts” and advocated, the establishment of home peni-
tentiaries.'_ In 1803 Lord Hobart, Secretary of State for War
1See Report of Select Committee on Finance, P.P. 1798.
6 A COLONIAL AUTOCRACY.
and the Colonies, said: “If you continually send thieves to one
place, it must in time be super-saturated. Sydney is now, I
think, completely saturated. We must let it rest and purify
for a few years and it will again be in a condition to receive.” 1
Mr. Wyndham, who held the same office in the shortlived
ministry of 1806, thought it well to encourage free emigration
as a counter-irritant, so to say, to the convict population.”
Little was done to improve affairs in these directions.
Certainly during Lord Hobart’s term of office, after an un-
successful attempt to form a penal colony at Port Phillip, two
settlements were established at Hobart Town and Port Dal-
rymple in Van Diemen’s Land. Nevertheless the vast majority
of the convicts were still shipped to New South Wales, and
when in 1811 the population of Van Diemen’s Land had
reached 1,300, not a fifth part were prisoners. In the older
Colony the proportion was more than one-half.*
In the first seven years of settlement, from 1788 to 1795,
5,765 men and women were transported to New South Wales,
and of these 3,377 either died or returned to England at the
expiration of their sentences. But 1,633 men and 755 women
remained in the Colony in 1795 who had either served their
time, been pardoned or emancipated, or were still prisoners.
In the next fifteen years, that is until the beginning of 1810,
6,525 convicts were despatched to Sydney. There is no reason
to believe that the proportion of those who died or returned
had greatly changed, for as the inducements to settle in the
Colony increased so also with growing prosperity did the means
of leaving it. Taking, therefore, the percentage of those who
remained in the preceding seven years, there would in 1810 be
3,232 men and 1,905 women who had arrived as convicts.
As in the whole population of 10,452 there were 2,654
children, not more than 2,346 men and 315 women in the
settlement had not been transported. Of the men the military
‘See H.R., V., Appendix, p. 835. Quoted in letter of Banks to King, 8th
- April, 1803.
*R.0., Wyndham to Bathurst, 1806.
* Every year a “ General Muster” was held and a fairly complete Domesday
compiled of the inhabitants, cattle and crops throughout the Colony. That
made in 18ro has been lost, and the basis of the calculations which follow is the
record for 1811.
THE LAND AND THE PEOPLE. 7
garrison accounted for 1,416 and the civil staff for 30. Many
of the women were the wives of the soldiers and men on the
civil staff. Certainly not more than goo men and 300 women
belonged to the class of free settlers. Some of these, it is
impossible to say how many, were the first of the Australian-
born, the offspring of the earliest settlers“and convicts, then just
reaching the borders of adult life. There cannot under any
circumstances have been in 1810 more than 600 or 700 voluntary
adventurers.”
It was only natural that, at a time when in all countries the
boundaries of class were well-marked, the ranks of a population
so strangely recruited as that of New South Wales should be
crossed and recrossed by lines of social distinctions. The
broadest division was that between convict and free, which
marked a man from the moment at which he first set foot in
the territory. No matter what position he afterwards attained,
whether he rose from prisoner to landed proprietor or fell from
freedom to the ranks of the colonial gaol-gang, the important
thing was not what he had come to be but how he had come
to be there. Among the convicts themselves new divisions
came into existence—the chief of them that between the men
who were and the men who were no longer prisoners. From
the vocabulary of slavery this class gained its name, and a body
of freed but not freemen was formed within the convict ranks.
The distinction between “freed” and “free” cut deep into the
social, economic and judicial structure of the Colony. By
completing his sentence or by means of a free pardon or a
conditional pardon or “ emancipation,” which gave him freedom
so long as he remained within the colonial boundaries, a prisoner
might join the ranks of the freed, but the taint of servitude kept
him from the full rights of citizenship. It was, however, only
as the Colony began under Macquarie to emerge from infancy,
1 Probably 300 would be an outside limit.
2 The estimate of the male convict population is probably too low. This
should very possibly be larger and the free element smaller, for in 1820 the free
settlers (excluding the Australian-born) were reckoned at as low a figure as
794. See Chapter V.
3 The social, and to some extent the legal, consequences of imprisonment in
a colonial gaol differed according to the nature of the crime, and also according
to whether the offence was a crime by English or by Governor-made law only.
8 A COLONIAL AUTOCRACY.
and gradually cast aside the chains of military government,
that the full force of these restrictions came to be felt.
There was a second twofold division of an economic rather
than social nature crossing that of convicts and free, the division,
namely, between those who received rations from the Govern-
ment stores and those who did not—between the “‘victualled ”
and the “not-victualled””. To those who were “on the store,”
a ration of meat and grain varying with the harvests and the
frequency of home supplies, was served out each week, and in
1811 Government provided 4,227 full rations.!. As these in-
cluded the half rations for women and quarter rations for child-
ren, the total number of persons for whose food-supply the
Government was responsible was considerably over 4,000. The
“victualled” included the civil department, the military and
police forces with their families,’ 1,347 convicts in Government
employ, 80 land proprietors, the families of 40 of them and go of
their convict servants. Rations constituted a great part of the
remuneration of the small employees of Government, and in the
lower ranks of the police force food and clothing formed the
only wages. For the farmers the supply of rations was part of
the system of land grants and “ indulgences” to free and convict
settlers.*
The establishment of these Government stores issuing
rations to about half the population influenced strongly the
agricultural development of the Colony. Government not only
granted land and assigned convict servants, but was also the
chief purchaser of the produce of farmer and grazier, and the
Government price ruled the market.* Socially the stores in
Sydney and in the townships were the chief rallying points
for settlers and traders, who would come thither and loiter
about, discussing the prospects of rain, and the laziness of
convict servants, the findings of the Criminal Court and the
struggle against Napoleon, the depredations of the natives on
their peach trees, and the eternal glories of George III. and the
In 1810 there were fewer rations served out, but it is impossible to find the
exact increase.
*In a few cases the families were not “ on the store ”.
8 See later in this Chapter.
*In 1810 Government purchased three-fifths of the wheat grown in the
colony. C. on T.
THE LAND AND THE PEOPLE. 9
British flag. Indeed the popularity of these informal “club-
rooms” was such that Macquarie found it necessary, in the
interests of public business, to issue an order on the subject
wherein he expressed “a hope, after this Notice of the incon-
venience arising from such habit, that persons not having actual
business at the said stores and granaries, will desist from
lounging there in future.” !
When Macquarie came to the Colony there were only three
populated districts, Sydney, Paramatta and the Hawkesbury?
The first had a disproportionate share of the people ; for with an
acreage of 24,301, it had a population of 6,156—more than
half of the whole. The area of Paramatta was nearly double
that of Sydney,’ but the population was only 1,807—and at the
Hawkesbury River settlement there were 2,389 inhabitants
occupying 28,704 acres.
The difference in kind between town and country populations
was not so great as that in quantity. While the merchants and
traders, who were usually landholders as well, belonged almost
entirely to Sydney, in other respects the description of the
people of one district serves equally well for that of all. Thus
the classification given by Alexander Riley, a merchant of New
South Wales, of the society of Sydney is not only an accurate
account of that district, but well describes the whole settlement.*
In his first class, Riley placed the officers, civil and military,
and gentlemen. To say that such and such men were gentle-
men was easy enough—to assign reasons for saying so was
more complex. Riley did not attempt to do it. Yet in so
small a community, and one which from its isolated position
was peculiarly self-centred, such distinctions counted for much
in the amenities of colonial life. Broadly speaking, profession
or birth formed the usual standard. But a merchant came
within the charmed circle, and so might a retail trader if his
1S.G., 7th August, 1813. Government Public Notice and Order.
2 Far north of Sydney a small settlement had been established to work the
coal mines at Newcastle at the mouth of the Hunter River. There seventy
*‘ incorrigible” convicts worked under guard of a garrison of thirty. The labour
was more severe and the comfort less than in the southern settlements, and
Newcastle (called also ‘Coal River’) was used as a place to which the New
South Wales Courts might order the transportation of prisoners.
3 42,627 acres.
4 Evidence before C. on G., 1819.
10 A COLONIAL AUTOCRACY.
wealth were great and his “address” conciliatory. In so smalf
a population the claims of each individual could be tested, and:
occasionally—rigid as was the general rule—reason and human-
ity triumphed over the levelling of the criminal law, and an
ex-convict returned to his previous rank in society! The
great test of a man’s position and pretensions were the hosts.
with whom he dined. Save during Bligh’s rule, to dine at
Government House was a mark of gentility, while to dine at
the regimental mess was even more decisive. A great number
of the “ gentlemen-settlers ” were retired army and navy officers.
who applied with zeal the peculiar caste rules of the services.
For the most part they were simple, commonplace men, physic-
ally courageous and intellectually vapid, men guided by a
strange jumble of uncomprehended motives—blind loyalty to.
the King, their regiment or ship—blind acceptance of the
Church of England—mingled with love of liquor, greed of gain.
and indifference to the usual tenets of morality. Few were
men of striking ability or forceful character, for the colonial
garrisons, which formed a back-water of the Service and the
retired list, had little to show in those times of war in the way
of brains or energy. All that was best was seeking promotion
or glory on the field of battle.
The merchants were on the whole made of better stuff, for
their business called for more intelligence and enterprise
than the farming and grazing which usually occupied the
gentleman-settler.*
Riley’s next division consisted of the traders and settlers
who had come to the Colony as freemen. This included shop-
keepers and tradesmen, and those who in England would have
been tenant-farmers, together with schoolmasters and Methodist
missionaries. The farmers amongst them were to be found
chiefly on the small rich allotments along the banks of the
Hawkesbury. Their intercourse with the traders and settlers.
* Three examples may be given in which men who had been transported
associated freely with the gentlemen settlers and Government officials, Ensign
Barrallier, who had been transported for killing his opponent in a duel, the Rev.
H. C. Fulton, for supposed complicity in the Irish Rebellion, and Sir H. B.
Hayes, ex-Sheriff of Cork, for the abduction of a young girl.
* There were, however, probably few merchants who did not farm some land,
and few settlers who were not interested in some trading project.
THE LAND AND THE PEOPLE. II
who had been convicts and who formed Riley’s third class was.
comparatively free, and marriage between them and the children
of freedmen or prisoners was frequent and generally approved.
Indeed such connections were far more encouraged and less a
matter for reproach in early years than at a later date,
The lowest rung of the social ladder was made up of convicts
still under sentence and “free labourers”. This was, of course,
a social and in no sense a legal equality. The development of
a class of “ poor whites” was an inevitable consequence of the
existence of servile labour. The free man fell from the social
and economic point of view when he became a competitor of
the bond-servant whose labour was compulsory although paid
for by food, clothes and a yearly wage. The normal condition
of a free man in a country where land might be had for next to
nothing and cultivated with scarcely any capital was that of
proprietor not labourer, and when Riley placed the latter beside
the convicts, he described with perfect accuracy such a man’s
status in the Colony.
Probably no more extravagant and careless system of land
distribution has ever been adopted in a British colony than
that of the first fifteen years of Australian settlement, for al-
ready, at the beginning of 1811, 117,269 acres had been
alienated. The administrators of the new Continent had two
objects before them—one, to rid England once for all of her
delinquent population—the other, to make the Colony self-
supporting, In the beginning it was not thought necessary
to do more than establish the convicts on the land at the ex-
piration of their terms of servitude. Phillip’s instructions were
quite explicit! Emancipists? were to receive grants of 30
acres if single, 50 acres if married, with 10 more for each child.
The grants were to be free of all fees and taxes for ten years,
after which a quit-rent, fixed at sixpence for every 30 acres, was
to be charged.* In addition to these advantages, Government
undertook to provide the ex-convict and his family with ra-
tions for twelve months, to give the necessary tools and seed
1See Instructions, H.R., I., Pt. II., p. 85, pars. 9, Io.
mics Men who had been convicts. This was a usual term in New South
8 The amount of the quit-rent was left blank in Phillip’s instructions, but
was settled soon after at the above rate.
12 A COLONIAL AUTOCRACY.
grain, and to allow him stock on easy terms. By Macquarie’s
time the period within which the settler remained ‘‘on the
store,”! which had been left to the Governor's discretion in
Hunter’s instructions in 1794, had been generally accepted as
eighteen months.
One reservation and one restriction were imposed. The
Government reserved for itself timber suitable for naval pur-
poses on all land granted by the Crown, and made the grants
to ex-convicts conditional on residence by the grantee.2 But
to give or to withhold'lay wholly in the Governor’s discretion.
The ostensible claim to a grant was good behaviour during
servitude, but the standard of conduct might well vary as men
of different’ character succeeded one another in the seat of
patronage,
Though these convict farmers were intended to form the
motive power of agricultural progress, Phillip was directed in
his instructions to report on the best means of settling mili-
tary and other subjects on the land. Finding convict labour
of a low standard, and convict settlers lacking in energy, Phillip
strongly recommended the emigration of trained agriculturists.*
The Secretary of State disregarded this advice and began by
authorising him to make grants to the non-commissioned
officers and men of the garrison and later to the officers and
civil staff. Finally the Governor was permitted to make
grants to any free settler. The instructions laid down for
Governor Hunter in 1794 were still in force in 1810. Any
person applying for a grant might receive from the Governor
land not more than a hundred acres above the amount granted
to an emancipist and with similar freedom from taxes for ten
years.* After that a quit-rent of one shilling for each fifty
acres was to be paid. Under special circumstances, a full ac-
count of which had to be transmitted to the Secretary of State,
grants of larger area might be made to free settlers or emanci-
pists.° The former had to pay registration and surveying fees
‘ Colonial term for receiving rations from Government.
: * See H.R., VII., p. 133, etc., par. g. Instructions to Macquarie, 9th May,
1809.
* See above, p. 5.
4See Instructions to Macquarie, par. 12.
5 Tbid., par. 13.
THE LAND AND THE PEOPLE. 13
in all cases before receiving their land. A free settler had,
however, the right to receive convict servants if the Governor
could spare them from the public services, and if he undertook
to feed and clothe them satisfactorily! Although nothing was
said in the Governor’s Instructions about victualling these
settlers, they were usually placed on the store for the same
time as the emancipists. This was one of the indulgences
held forth to encourage emigration and settlement. While the
giving of the grant, the extent of the indulgences, the number
of servants, the situation, extent and quality of the land (apart
from the general proviso that good and bad was to be equally
distributed *) depended, in the absence of special orders from
the Secretary of State, wholly upon the will of the Governor,
the settler had on his side unfettered power to deal with his
land in whatever way he pleased. He might or might not
reside there, he might or might not clear or cultivate it, and
finally he could sell it on the very day he took possession.
The only restraint upon him was his expectation of favours to
come, and his knowledge of each Governor’s principles and
prejudices.
These instructions suggest a multiplication of small holdings
of thirty to two hundred acres each and that such was the in-
tention of the Government is borne out by the clauses regulating
the reservation of land for the Crown and public services. The
“planters ” were to be settled in townships in order that as near
neighbours they might better help and defend themselves and
each other, and in each township was to be established a town
in which special areas would be reserved for definite public
purposes. Further, between every 10,000 acres granted to
settlers, the Governor was to set aside 500 acres for the Crown
which might be leased for any term up to fourteen years. With
the progress of the settlement the Crown would thus retain
between every cluster of farms a tract of land of which the value
would steadily increase. But the irregularity resulting from
special grants of large areas, and the dangers and inconveniences
in a new country of leaving broad belts of uncleared land between
1 See Instructions to Macquarie, par. 14.
2 Tbid., par. 16. 3 Tbid., pars. 17, 18, 19, 20.
4 e.g. Fortifications, churches, markets, etc.
14 A COLONIAL AUTOCRACY.
the cultivated sections, made the regulation unpopular with
surveyors and Governors, and it was aJmost totally disre-
garded. !
The whole of the town of Sydney had been proclaimed by
Phillip a Government reserve and thus brought under leasehold
regulations? Governor King had further restricted the leases
of town lots to a period of five years. This short time of cer-
tain occupation (for renewal was always problematical and there
was no compensation for improvements) undoubtedly dis-
couraged substantial building enterprises. In Sydney the houses
were for the most part built of wood, with light flat roofs, varied
occasionally by a stone building of similar shape and equally
devoid of decoration. The town had rather the appearance of a
cluster of sheds, and doubtless inspired by contrast in Macquarie
that dream of architectural beauty which brought him later into
much trouble and difficulty. * .
Notwithstanding the intentions of the Government there was
in 1810 anything rather than a regime of peasant holdings. In
the General Muster only 808 persons were returned as proprietors
though 95,937 acres were given as “settled,” and the stock, ex-
clusive of Government herds, which amounted to a few thousand
head, was estimated at 49,587 head.® For a few years the
practice of giving extensive grants to civil and military officers
had been pursued, and in many cases these had been joined into
single estates by private sale. Several members of the New
South Wales corps had retired from the army before 1810 in
order to devote themselves to their farms, and some who went
with the regiment to England in that year returned to the
Colony to live on the estates they had previously purchased or
been granted. Occasionally also the Secretary of State had
sent “ gentlemen-settlers” to New South Wales with promises
?R.O., MS., Macquarie to Bathurst, D. 18, 4th April, 1817, in reply to D. 3rd,
December, 1815. See also Chapter V.
*Crown reserves could be leased as the Governors thought fit. See In-
structions above,
* He once contravened his own regulation by the simple if illegal method of
incorporating in a five years’ lease the promise of regular renewal up to twenty-
two years. See D. 18, above.
*See especially Bigge’s Report, I.
* Information on this subject is very scanty, and it is only by indirect evidence
that the relative conditions of each district can be even approximately estimated.
THE LAND AND THE PEOPLE. 15
of grants of three, four or five thousand acres in chosen localities.
These great estates lay chiefly in the Sydney and Paramatta dis-
tricts. In these, 66,938 acres were occupied, of which 56,939
were given over to pasture and less than a tenth to crops. At
the Hawkesbury more than a third of the area occupied was
under crop or lying fallow, and only 18,000 acres were used for
pasture. In this district small holdings were the general rule.
As early as 1805 Governor King spoke of the scarcity and
“exorbitant” cost of labour.’ He attributed it to the common
practice pursued by the colonists of obtaining larger grants than
they could afford to cultivate themselves and then letting out
the surplus. It was a bad system, and was one cause of the
growing jealousy felt by Government against large estates. It
created a wholly unnecessary class of middlemen, and by in-
creasing the amount of land on the market weakened one of
the incentives to good conduct for the convict, making it less im-
portant for him to earn his grant during the period of servitude.
The need for labour, however, was not likely to be great so long
as pastoral farming held first place, for climate and natural
grasses favoured even careless breeding. While a few men of
enterprise and foresight were occupied in improving fleeces with
a view to exporting wool, both sheep and cattle brought large
profits to those who bred for slaughter only. But the amount
of stock in the Colony was not yet sufficient to guarantee a
constant supply and salted meat was still sent from England.
To check wasteful destruction of cattle and also cattle-stealing,
Government officials supervised all slaughtering and received a
fee for so doing.
There was, indeed, no freedom of trade, internal or external.
The two staple products, meat and wheat, found their chief
market with the Government, and were bought at a set price
approved by the Governor. Following the English custom,
the retail bakers sold their loaves at a cost fixed each week by
the Sydney bench of magistrates, who based their decision on
the price of corn in the market. The bakers were also ordered
by the same authorities to make their bread of a certain fine-
ness, or in times of scarcity of a certain coarseness of grain.
1H.R., VI., p. 39, King to Earl Camden, r5th March, 1805.
16 A COLONIAL AUTOCRACY.
These restrictions were as nothing in comparison with those
on the import trade, by which alone the colonists could be
provided with manufactured goods, whether necessaries or
luxuries. In the first place the Charter of the East India
Company made it necessary for the Home Government to
prohibit commercial relations with India, China or any “known
South Sea island” without the express permission of the
Governor.! The coasting trade, however, from Newcastle in
the north to the Derwent at the south of Van Diemen’s Land
was in the hands of the New South Wales Government and
the colonists. A clause in the Governor’s instructions directed
him not to allow the building of ships in the Colony for the
China or East India trade, but it is doubtful whether the clause
was ever enforced.” Governor Bligh introduced a very trouble-
some regulation in the interests of Sydney as the headquarters
of the whole settlement which Macquarie allowed to remain in
force. In accordance with this all ships bound for Van
Diemen’s Land from other than colonial ports had to put in
first at Port Jackson in New South Wales. It was supposed
that as Van Diemen’s Land was on the direct route from India
and the Cape, the port of Sydney would without this regulation
be subordinated to that of Hobart.*
The port dues and customs were general and heavy. All
imports save those from Great Britain paid a uniform ad
valorem duty of 5 per cent., and duties were laid on colonial
timber and coal brought to Sydney from other parts of the
Colony. The products of the South Seas, sandalwood, pearl-
shells and déche-le-mer paid from £2 Ios. to 45 per ton, and
there was no drawback allowed on re-exportation.*
When the naval officer® who collected the duties had
passed the cargo, the goods became subject to a curious regula-
tion. In the earliest times the Government had been the only
importer, and a system of investments in goods on behalf of
? Macquarie’s Instructions. The permission of the Governor of Bengal also
appears to have been necessary. See Chapter V.
* Bigge speaks of a colonial vessel of less than 350 tons register trading to
Cape Colony and to Batavia. Report III.
® When the restriction was removed in 1812 it was not found that Sydney
suffered at all.
* For fuller treatment of this subject see Chapter V.
® The Government official in charge of the port.
THE LAND AND THE PEOPLE. 17
the Government to be bartered for corn and meat had been
commenced. The growth of private trading enterprises had
made this no longer necessary, and on Macquarie’s assumption
of office it was brought to an end.!_ For some time before
that, however, the bulk of the trade had been in the hands of a
few merchants who were able to charge exorbitant scarcity
prices. To prevent such exploitation of the people’s needs
the Government placed a maximum price on imported goods,
allowing in general 50 per cent. profit. In the dearth of
competition the maximum price became the sole price of the
merchant, though the retailer might still further heighten it.?
The trading population in these early years was indeed a
strange one. Officers both civil and military were concerned
in every kind of enterprise. Division of employment was
almost unknown. A man might be captain or commissariat
officer in the army as well as sheep-breeder, farmer, butcher,
merchant and ship-builder; and with scarcely one exception
he was a rum-dealer as well. The subject of spirituous liquors,
their importation, distillation, distribution and consumption,
fills many pages of the history of New South Wales. It must
be remembered that it was in England also an age of in-
temperance, and that the population of the settlement was
recruited from the two classes most prone to drinking, the
soldiery and the criminals. Amongst the rank and file as in
the mess-room, a soldier was not long in learning to drink—
just as a man who was a criminal, so to say, by accident, had
little hope of escaping the vice in the prisons of England.
The rest of the population, unprovided younger sons, failures
and adventurers, were not men who would turn with horror
from the excesses and immorality induced by reckless drinking.
It is true that there were honourable exceptions, poor and rich,
1See Letter of Instructions to Macquarie, 14th May, 1809. H.R., VIL,
P- 143.
* There are no complaints to be discovered of the merchants against the
fixing of the maximum price. This certainly suggests that the regulation was
not strictly enforced.
’ Marsden (Rev. S.) in An Answer to Certain Calumnies in the Late Governor
Macquarie's Pamphlet, etc., published in 1826, pp. 8-10, explains that it was
necessary in early times to give grants of land to officers of the Government in
order to ensure enough corn being grown in the settlement to feed the people.
This was undoubtedly the case before 1800.
2
18 A COLONIAL AUTOCRACY.
and that there were some notably peaceful and happy home-
steads—but it is unluckily true that in 1810 they were still
exceptional.
Those in authority laid down the simple rule—never possible
in practice—that the convicts were not to be supplied with
liquor, and also sought to regulate the quantity to be imported.
Yearly the growth of population made this task more difficult.
Under the instructions drawn up for Admiral Hunter in 1794,
it became necessary to produce the express permission of the
Governor in writing before landing any spirits. Under regula-
tions drawn up in the Colony this spirit, having paid a heavy
duty, might be sold by the importers to officers and others in
certain quantities decided upon by the Governor. It was,
however, quite within the Governor's discretion to decide at
any time that the settlement was already sufficiently supplied,
and King, who followed Hunter in 1800, turned away more
than one cargo of spirits and became extremely unpopular on
that account. Officers of all ranks and the merchants threw
themselves into the business of monopolising the spirit trade
and raising the price for retailer and consumer. The convicts
and emancipists, unable to obtain a regular supply, became
more and more eager for the liquor. They were there, unwill-
ing immigrants, deprived of liberty, living under better but less
exciting conditions than in the hovels and slums of London;
the pickpockets had no pockets to pick, the forgers and
coiners no bank notes or coins to counterfeit. Those who
had not been habitual criminals had endured a long schooling
in degradation by constant companionship with their fellows—
first while waiting for trial, then in prisons or river hulks,
and finally packed close together for a six months’ voyage.
For these the separation from homes and families and father-
land was harder to bear. They had a chance to make a fresh
start in New South Wales, but they had also the continual
bitterness of self-reproach. Under these circumstances nearly
all the prisoners drank, and drank wildly, a few perhaps
seeking indifference—the majority to gratify a physical craving.
When spirit could be bought the poorest were willing to sell
all they had to get it. The limits on importation caused a
multiplication of illicit stills, The home authorities refused to
THE LAND AND THE PEOPLE. 19
legalise colonial distillation, and the eagerness for drink was such
that the Government could not prevent its illicit distillation.
But far worse than this was the,system of the “ rum-currency,”
by which labour, land and produce were bartered for spirit It
was a currency of great elasticity, affected by the personal
equation and still more by the length of time between cargoes
and the quantity landed. No method could have been more
effective in the oppression and spoliation of the weak, poor and
ignorant. Yet it became the general custom with all classes,
and though King and Bligh both forbade payment by rum,
Macquarie had still to face the difficulty in 1810 and found it
impossible to bring it toan end.? The quantity of coin was
next to nothing, the paper currency depreciated and the debtor
as anxious as the creditor to be paid in liquor, while the small
settler would exchange house, land and stock for a few days’
orgie.
The state of drunkenness had its most serious side in the
pauperism and misery into which the poorer classes were led,
and the impulse it gave to evil ways of gaining wealth in the
rest of the community. Immorality as well as drunkenness was
rife. Marriages between the convicts were infrequent before
1810, but cohabitation was customary. The female convicts
lived not only with prisoners but with men of all classes. Few
of the women transported were of good character, and there were
fewer still who could retain their decency in companionship with
the wretched dregs of humanity who formed the majority, and
in face of the terrible practices indulged in on the female trans-
port vessels.* After the long voyage out the women were
assigned as servants to the settlers and officers of the Govern-
ment. There were no regulations as to these assignments,‘
and abuses whereby the servant became the mistress were
general. So common were these and similar practices that
when the New South Wales Corps left the Colony in 1810
Macquarie granted pardons to many female convicts:in order
1Cf. “ Gin-currency” of West Africa.
2 See Chapter IV. and also Proceedings of a General Court Martial for the
trial of Lieut.-Col. Johnston on a charge of mutiny exhibited against him by the
Crown and for deposing W. Bligh, etc., London, r8rr, p. 246.
3 See also Chapter VIII.
4See Letter of Instructions to Macquarie, 14th May, 1809. H.R., VII.
P. 143.
20 A COLONIAL AUTOCRACY.
that the men and non-commissioned officers might marry and
take with them the women who had been their companions and
were the mothers of their children.
The women who were not thus assigned remained in
Government employment, working in a woollen factory at
Paramatta. But even these found homes with the male con-
victs in the town, many leading lives as shameful as those they
had left behind them in the dens of London.
Yet in spite of this promiscuous breeding, in spite of the
prevalence of the bar-sinister, the children of these unions were
of strong physique, lacked neither mental nor moral force, and
sought to live soberly and decently. The family affections, too,
were strong, and child murder or even neglect practically un-
known. That women tried to preserve their innocent but
illegitimate babies was natural enough in a country where to be
a mistress and not a wife was the more usual condition.
The established forms and conventions of civilisation were
difficult to establish in a little penal settlement cut off by the
seas from the whole world. The ordinary decencies and comforts
of life were dispensed with as carelessly as the marriage laws.
Macquarie was disgusted with the rough-built houses and the
badly clothed, uneducated children of even prosperous settlers.
Mud and paling huts or two-roomed houses with a lean-to or
skilling at the back were the ordinary country dwellings. But
the climate exacted little in the way of shelter and clothing and,
save in time of flood or famine, convict and settler alike lived
better than they had been accustomed to doin England. Only
here and there, however, had families established themselves in
the country as in a permanent home. For the majority of the
“‘ gentleman-settlers ’’ it was a place to make money in, money
which was to be spent in re-establishing themselves in the old
country, and which might be easily made in the liquor traffic.
In the twelve years which followed Macquarie’s arrival, no
change was more remarkable than in this feeling that New
South Wales was only the scene of a temporary exile.
Rough and plain as was the life of the settler, at least the
fear of fierce native raids which pressed upon the American
pioneer was absent. The aborigines took quietly the establish-
ment of the white folk upon one of their hunting grounds.
THE LAND AND THE PEOPLE. 21
Phillip indeed did his best to conciliate them ; and though, until
Macquarie came, his successors showed little interest in their
condition, peaceful relations were customary. In law the native
could claim equal protection with the white man, but this
equality was difficult to enforce even in the Courts. Amongst the
out-lying population, when a black man stole the corn or fruit
of a settler, it was often impossible to prevent the injured party
from wreaking summary vengeance upon a whole tribe, and that
brought in its turn indiscriminate reprisals. The Governors
attempted, with varying success, to put an end to all private
punitive expeditions, and to secure that black and white should
both be brought to justice. The worst offenders against the
natives were the escaped convicts who sometimes led precarious
lives in the forests. On the whole the ‘blacks suffered little.
Missionary efforts were made to teach them Christianity,
husbandry and the advantage of clothes and regular food.
They learnt very little, and though some of them hung about
the settlement, the greater number continued to wander through
the forests where each tribe kept within its roughly marked
boundaries, and where, save for occasional depredations on
lonely farms, they interfered little with the colonists.
Such were the people and such their ways of living when
Macquarie started on his difficult task of restoring peace and
establishing good government after the long distractions which
had led up to and followed the deposition of his predecessor,
Captain William Bligh.
1 See notes of a conversation with Rev. S. Marsden in a volume of Essays
Geographical, Commercial and Philosophical, published anonymously in 1812.
Royal Colonial Institute.
a ~ mn
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Spa ner mea PE
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CHAPTER II.
THE DEPOSITION OF BLIGH.
Autuorities.—Historical Records of New South Wales (especially Vol. bet
Report of Trial of Lieut.-Col. Johnston. State Trials, vols. 21, 28, 30. Coloni
Office, Domestic Correspondence, 1816.
ON the 26th January, 1808, Major Johnston, at the head of the
New South Wales Corps, marched through Sydney to Govern-
ment House and placed Governor Bligh under arrest. Leaving
him there a prisoner, Johnston, urged by a number of civilians,
at whose head stood John Macarthur, and with the ready
support of his officers, took over the administration of the
Colony under the title of Lieutenant-Governor.
When the first news of these events reached Downing Street
in September, the Colonial Office were already aware that
Bligh, the hero (or culprit) of the “ Bounty” mutiny, was proving
by no means a popular ruler. Complaints were often made
against the best of Governors, but in Bligh’s case they were
forcible and unceasing. There was the case of D’Arcy Went- ’
worth, an assistant surgeon on the staff, but a man of wealth
and influence, who had been suspended without cause shown
and with a lack of justice which the Minister himself censured.
Again, on the formal ground that he had received no public
instructions, Bligh had refused to comply with the requests of
some settlers coming from England for land, cattle and convict
servants. These men, Townson, Doctor of Laws and man of
science, the brothers Blaxland, who were graziers, and a Captain
Short, had brought definite written promises from ministers of
large indulgences adequate to the capital they proposed to
expend. Disappointed in their hopes and impatient at the
delay, they soon found themselves arrayed in the ranks of the
1 Castlereagh to Bligh, 15th May, 1809. H.R., VII., p. 147.
(22)
THE DEPOSITION OF BLIGH. 23
discontented. Bligh’s scrupulousness was treated with extreme
dryness by the Colonial Office, and he was instructed to comply
with the private agreements already before him.! Another
important complaint was that lodged with the Commander-in-
Chief by Major Johnston, and referred to the Colonial Office
in June, 1808.” This letter dealt in detail with the Governor’s
harsh, arbitrary and abusive behaviour towards the military, and
his occasional interference with the orders of their commanding
officer.
But of many troubles the Colonial Office were informed
by Bligh’s accounts alone. More absorbing than all the rest
were the tortuous windings of his quarrels with John Macarthur,
that turbulent spirit who had been at daggers drawn with each
succeeding governor, and who as agriculturist, merchant and
trader stood head and shoulders above the rest of the colonists.
Bligh, who had been warned of the temper and the guile of
this ‘“ Botany Bay perturbator,” as Governor King called him,
was foolish enough to treat him with insulting lack of courtesy
from the outset, and in the case of Bligh alone did Macarthur
and not Macarthur’s opponent have public opinion behind him.
The Home Government, long accustomed to these quarrels,
were not much disturbed, and it was probably thought natural
that some friction should arise between the military forces and
the naval officer whom it was then thought fit to have at the
head of the Colony. The responsible Minister may well have
hoped to maintain Bligh’s government undisturbed, supporting
him against his turbulent subject, while admonishing him to
adopt a more conciliatory tone towards the soldiery. At that
moment, indeed, Lord Castlereagh and his Under-Secretary
Edward Cooke, who were responsible for the administration of
what was then the one Department of War and the Colonies,*
had good reason to wish that New South Wales should remain
1 Castlereagh to Bligh, 31st December, 1807. H.R., VI., p. 399.
2 Johnston to Lieut.-Colonel Gordon, Military Secretary to Commander-in
Chief, 8th October, 1807. H.R., VI., p. 652. Sent to Colonial Office, 13th June,
1808.
3In 1794 “ Mr. Dundas (afterwards Lord Melville), who was then Secretary
of State dealing with the Home affairs of the Department, was appointed
‘Secretary for War,’ and also nominally Secretary of State for the Colonies, but
the Departments of War and the Colonies were not actually united until r8or,
when Lord Hobart was created Secretary of State for the War and Colonial
Department.” Colonial Office List, p. xi.
24 A COLONIAL AUTOCRACY.
well in the background. It was the year in which the Penin-
sular campaign commenced, and in September the uproar raised
by the Convention of Cintra was at its height. The events of
January, however, the subversion of Bligh’s government by the
military garrison, demanded some attention, and when despatches
arrived, scanty as was the information they conveyed, some
course of action had to be agreed upon. On the one side, there
were despatches from Bligh enclosing letters from Gore, his
Provost-Marshal, who had been deprived of his office and
suffered harsh treatment, and from Palmer, the Commissary,
whose lot had been similar. From the revolutionary party
came an official despatch, an interesting and partial account
from the pen of John Macarthur, who then held the self-created
and unsalaried office of Colonial Secretary. There were also
two letters from Doctor Townson, the first explaining his
reasons for supporting Johnston, the second his reasons for
withdrawing his support. By neither action had he found him-
self any nearer to his prime object, the grant of land and
servants promised him, and though he certainly gave both sides
of the matter, his letters rather clouded than cleared the real
issue. For he took both sides with a fiery vehemence and
reckless zeal in searching out unworthy motives that created
scepticism rather than assisted conviction.
But whatever the final judgment was to be, it was impossible
to pass over a successful mutiny, even of a far distant garrison,
and immediate action had to be taken.
On the 20th October (and in pre-telegraphic days, with a
great war in progress near at hand, this cannot be considered
dilatory procedure), the Commander-in-Chief agreed with the
Colonial Office that the New South Wales Corps should be
immediately recalled. Originally enlisted in England for
service in the Colony, it had been stationed there for nearly
twenty years, and had conclusively proved the impolicy of per-
manently keeping any regiment in such a situation.2 Even
Macarthur, whose allies and tools they had been, wrote of the
- officers in 1810 that “a more improper set of men could not be
collected together than they have latterly become.”
1 For these letters see H.R., VL, pp. 299, 571, 575, 738-
? Castlereagh to Duke of York, rrth October, 1808. H.R., VI., p. 778.
* Macarthur to his wife, 3rd May, 1810. H.R., VII., p. 368.
THE DEPOSITION OF BLIGH. 25
The 73rd, a Highland regiment then in Scotland and under
the command of Colonel Lachlan Macquarie, was selected to
take its place. It was a gallant regiment, whose bravery at
Mangalore was commemorated by the right to inscribe that
word upon the colours. It was not until November that the
next move wastaken. Castlereagh then offered the Governor-
ship to Brigadier-General Nightingall, departing for the first
time from the precedent of appointing post-captains in the
navy. It was thought necessary, he wrote, “that the Govern-
ment should be placed on a more respectable basis, and that,
for this purpose, a general officer, with a regiment of the line,
should be sent there, to whom should be entrusted the adminis-
tration of the Colony.”! He considered a “ military Governor”
a necessity for the settlement?
Nightingall accepted the post, but his departure was delayed
by illness. Early in April of the following year, Castlereagh,
feeling that some one should be sent at once, wrote to the King
suggesting that Macquarie as Lieutenant-Governor should take
out his regiment and set about restoring regular authority in
the settlement, leaving Nightingall to follow as soon as he could.
But before this could be done Nightingall resigned his appoint-
ment, and in May Macquarie sailed, bearing a commission as
Governor-in-Chief and Captain-General of New South Wales
and its Dependencies.
Although he had been highly recommended to the Colonial
Office before the transfer was finally made, the appointment
was largely due to accidental circumstances, and a series of
chance occurrences thus led to the despatch of the Governor
whose name and fame, for good and for evil, has been more
distinctly written than that of any other over the Eastern half
of the Australian Continent.
The first choice of the Colonial Office had fallen on a soldier
of considerable distinction and wide experience.’ In accepting,
1 Castlereagh to Nightingall, r4th December, 1808. H.R., VL, p. 812.
2See Castlereagh’s Correspondence, 1851, vol. viii., p. 205. Letter to
H. Alexander, Esq., 13th May, 1809. :
* Nightingall, afterwards Sir Miles Nightingall, entered the army in 1787.
He served in India and in England with Lord Cornwallis, was with Abercrombie
at Porto Rico, and at San Domingo with Maitland. He arranged the evacuation
of Port-au-Prince. He commanded the 4th Battalion in Ireland during Cornwallis’
Viceroyalty, and was on the staff when the latter went as Ambassador-Extra-
ordinary to France in 1812. He was also Military Secretary during Cornwallis’
26 A COLONIAL AUTOCRACY.
Nightingall had dwelt more on the drawbacks of the position
than the advantages ; the salary (42,000) was small, the dis-
tance great, and in short, unless he was fairly sure of a pension of
not less than £1,000 for the rest of his life, he could not under-
take a service attended with so many disadvantages, and. . .
which at the outset must be viewed as both difficult and un-
pleasant.! The near prospect, however, of obtaining a regiment
would perhaps in the eyes of his friends justify his accepting a
situation which otherwise might be considered by a military
man of fair prospects and good expectations as little better
than a waste of time.” Indeed the prospect of four or five
years in New South Wales, “ deprived of almost all communica-
tion with England,” was for him a prospect of profitless exile.’
Very different was the view taken of the position by Sir
Joseph Banksin 1795. ‘“ You have,” he wrote to Hunter in 1795,
“a prospect before you of no small interest to the feeling mind
—a Colony just emerging from the miseries to which new
colonists are uniformly subjected; to your abilities it is left to
model the rising state into a happy nation, and I have no doubt
you will effect your purpose ”.*
Such high aims and eager hopes had animated Phillip when
he set out to found 'the Colony in 1788, but of his three naval
successors not one echoed his enthusiasm. Hunter, for ex-
ample, “a pleasant and sensible old man,” > after four years of
office, put his view with much ingenuousness. “My former
knowledge and acquaintance with this country,”® he wrote,
“encouraged me in a hope, which, however, has in some re-
spects proved delusive, that I should with ease to myself and
with proper effect and advantage to the public” (a considera-
tion he places second) “have been able to manage all the
duties of my office ”.’”
Viceroyalty in India. In 1805 he was madea K.C.B. After resigning his ap-
pointment as Governor of New South Wales he went again to India, where he
was given the command in Bengal. He returned to England in 1819 and sat in
the House of Commons for Eye from 1820 to 1826. See Dictionary of National
Biography.
? Nightingall to Castlereagh, 6th December, 1808. H.R., VI., p. 810.
2 Ibid. 3 Ibid.
‘Sir Joseph Banks to Hunter, 30th March, 1797. H.R., III., p. 202.
°H.R., IIL., p. 730, 13th October, 1799. Letter from a ship’s officer.
® He had been second in command in the fleet of 1788.
7 Hunter to Sir Samuel Bentham, 2oth May, 1799. H.R., IIL, p. 673.
THE DEPOSITION OF BLIGH. 27
The appointment was indeed one which a navy captain
would covet. Promotion continued, a pension was a practical
certainty, the salary sufficient, and a good field offered to ad-
vance a son Or marry an unportioned daughter.1_ The qualifi-
cations required were such as every man and every man’s
friends would readily believe that~he possessed—‘ Integrity
unimpeached, a mind capable of providing its own resources
in difficulties without leaning on others for advice, firm in
discipline, civil in deportment, and not subject to whimper
or whine when severity of discipline is wanted to meet emer-
gencies.”? But when Lord Castlereagh decided to look higher,
he found the offer did not appeal strongly to a general officer
of ability in time of war. This makes it all the more remark-
able that, when Nightingall relinquished his appointment, the
choice fell on a man whose whole heart exulted in the work,
and who for twelve years bent the whole energy of mind and
body with: eager zest to what he felt to be the public good.
It is true that Lachlan Macquarie was often wrong, was often
vain, was often obstinate, but not infrequently he was right
and he was never indifferent. Fitted by his training for the
work of a military governor, hereditary instincts doubtless
accounted for his leaning towards the patriarchal system, for
he was the heir of the sixteenth chief of a clan of Ulva. But
he had entered the army at a very early age, and by the time
of his appointment had served thirty years in that “school of
subordination.”* He was a staunch Tory and Episcopalian,
and appears to have had the manners of an Englishman rather
than a Scotchman. He had seen much active service, chiefly
in India, had been in America, at Alexandria, and for three
years Assistant Adjutant-General in London, a post which had
made him known in official circles and increased his good re-
pute. In 1805 he had gone back to India, returning to take
command of the 73rd in 1807. On the 15th May, 1809, he
sailed with his regiment to New South Wales.*
1 See, ¢.g., Banks to Bligh, 15th March, 1805. H.R., VI., Introduction,
XXXV.
2Banks to Bligh. Ibid.
3 A favourite phrase of Macquarie’s constantly recurring in his letters. —
4For these details of Macquarie’s career see Dictionary of National
Biography.
28 A COLONIAL AUTOCRACY.
With him there went as Judge-Advocate, Ellis Bent,
Barrister-at-law and member of the Northern Circuit. The
Judge-Advocate was the one judicial officer in the Colony,
presiding in Civil and Criminal Courts, acting as chief judge
and chief prosecutor. The appointment of Ellis Bent, a man
learned in the law, to this post, marked an important develop-
ment in the history of the settlement. Collins, who held the
office first, was a captain of Marines,! and Gore, who succeeded
him, had been without either legal or military knowledge.
Then had come Richard Atkins, a hard drinker and a born
fool. King had put the case in strong language. He had
felt it “indispensable as well for the benefit of the inhabitants
as for a guide to the Governor that a professional man be ap-
pointed, either as Judge-Advocate or Chief-Justice, who can
give the Governor (who cannot be supposed to be a lawyer)
that conclusive information which is so requisite, and who is
able to counteract the chicane and litigious conduct of a few
transported practisers, who have practised sufficient of the laws
of England to know the chicanery and evil purposes a bad man
can turn them to”. But the matter rested until the Bligh
affair gave conclusive proof of the need, and Ellis Bent, appar-
ently at the suggestion of Nightingall, obtained the appoint-
ment. He was a Master of Arts of Cambridge and had been
a gentleman commoner at Peterhouse. Some calamity in-
volved his family in a ruin which induced him, while still
under thirty, to give up his position and prospects at the Bar
and accept this post in a far-off country for the sake of his wife
and young family. He was a man of singularly sweet dis-
position, and for the four years which preceded his early death
he fulfilled the multifarious tasks allotted him with justice,
dignity and ability. There is little to be found which tells of
him directly, but his judgments and expositions of the law, his
official letters, and the opinions held of him by all sorts and
conditions of men, all alike suggest a man of great delicacy of
_ mind, gentleness of bearing and acuteness of intellect.
? He was afterwards Lieutenant-Governor at the Derwent, Van Diemen’s
Land, from 1803 to 1810.
27 H.R., V., p. 188, 7th August, 1803.
See Bent’s letter to Castlereagh, 30th November, 1811. H.R., VIL,
p- 641.
THE DEPOSITION OF BLIGH. 29
During the long voyage he and Macquarie became close
friends and must have discussed through many a long day in
the windless tropics or southern seas the work which lay before
them. Close allies they remained until two years before Bent’s
death, and this period when Macquarie could always call upon
the serene intellect and judicial firmness of his Judge-Advocate
covers by far the best years of his Governorship.
Before the new Governor was the double task of restoration
and administration. But though he was to bring the guilty to
justice, he was not to play the part of avenger. His instruc-
tions with regard to the recent disturbances were transmitted
to him on the eve of his sailing, and so well was their secret
kept that, twelve months after, the purport was known in Eng-
land by rumour only.t' In drawing them up, the Colonial Office
had before them the additional information contained in
Major Foveaux’s despatches which had arrived in March, 18009.
Foveaux had started from England on his return to Norfolk
Island ? of which he was commandant, before the news of Bligh’s
deposition had reached England, and landed at Sydney in July,
1808. He was senior to Johnston in the corps and also bore
the commission of a Lieutenant-Governor. Bligh was in great
hopes that Foveaux would take his part, and the other sides
were correspondingly depressed. Not long, however, was the
matter in doubt. On the very day of his arrival, Foveaux de-
cided to accept the position as it stood, taking over the com-
mand himself and remaining at headquarters. The only
changes he made were to remove Bligh from his dignified im-
prisonment at Government House and place him in an officer’s
barrack, and to treat his adherents with increased severity.
The officer in command of the whole New South Wales
Corps, Colonel William Paterson, was then Lieutenant-Gover-
nor at Port Dalrymple in Van Diemen’s Land. Several
colonists considered that Foveaux’s commission superseded
1 Macarthur to his wife, May, 1810. H.R.,.VII., p. 370.
2In accordance with his instructions, Phillip had sent Lieutenant King to
make a settlement at Norfolk Island early in 1788. The island had an area of
about 13,000 acres and was situated off the coast to the north-east of Port Jackson.
The settlement was not a success, and was finally abandoned in the first years of
Macquarie’s Governorship, the settlers receiving farms in Van Diemen’s Land in
a district to which they gave the name of New Norfolk.
30 A COLONIAL AUTOCRACY.
Paterson’s, which was of earlier date. But he and Foveaux
decided that this was not the case, and the latter afterwards
claimed that in continuing Bligh’s arrest, he acted under the
orders of his superior officer, Colonel Paterson. His first des-
patches, however, those which arrived in March, threw scarcely
any light on the causes of his action.
In those days Secretaries of State for the Colonies had
often to decide in the dark or at least the twilight, imagination
filling in with more or less success the dim places in the story.
The Presidency of Madras supplied a useful precedent, and so
similar was the course followed on this occasion, that Lord
Castlereagh probably considered that case before it was referred
to by the law officers of the Crown in November, 1809.
It was the case of Lord Pigot, Governor of Madras, and
four members of his Council. In 1776 adispute arose concern-
ing the affairs of a native prince, and each party in the Council
strove by every means in its power to carry its own point.
Both sides used very questionable methods, and finally the
majority in the Council, who were opposed to the Governor’s
measures, by a high-handed and illegal action replaced the head
of the forces by a partisan of their own, ordered him to arrest
and imprison Lord Pigot, and took upon themselves the govern-
ment of the Presidency. Corruption was at the root of the
matter, and as usual in such cases the Court of Directors pur-
sued a somewhat wavering course. They sent orders to rein-
state Lord Pigot, but instructed him to embark for England
within a week of such reinstatement. These orders came too
late, for Lord Pigot died in prison a week before they reached
Madras. They also gave directions to try the officers of the
army who were concerned in the disturbance before Courts
Martial in India, and recalled four members of the Council.
There is nothing which shows that any officers were brought to
trial, but some small officials were prosecuted. In England,
after a pretence at an inguiry, the East India Company did
nothing more with regard to the four members who were the
_ real culprits. But Parliament took the matter up, and in 1779
the Attorney-General, in accordance with the terms of an ad-
dress of the House of Commons, laid an information against
them in the Court of King’s Bench, where they were tried before
THE DEPOSITION OF BLIGH. 31
Lord Mansfield and a special jury fora misdemeanour. The
jury brought in a verdict of guilty and they were fined in the
penalty of £1,000 each, a purely nominal punishment for men
who had grown rich in the service of the East India Company.!
In general outline Bligh’s case was similar. He quarrelled
with Macarthur, and very soon, by means which were not illegal,
but had the savour of oppression, brought him before a Bench
of Magistrates. It is unnecessary to relate the details of the
affair. Macarthur was contumacious and was summoned to
stand his trial before the Criminal Court, which was composed
of the Judge-Advocate, Richard Atkins, and six military officers
belonging to the garrison. Macarthur protested that as Atkins
owed him large sums of money which he would not pay, and had
for long been on the very worst terms with him, on this account
he was not a fit and proper person to preside as Judge-Advocate
at his trial. The Governor insisted that he had no power to
dispense with his attendance as Judge-Advocate and the trial
commenced. The prisoner at the bar read a long argument
full of citations from legal authorities (though where in a Colony
almost devoid of lawyers and lawbooks he found his Blackstone
and the rest, it is hard to imagine), in which he sought to prove
that the Judge-Advocate, not being an impartial person, could
not legally form part of the Court. Atkins was bewildered
though obstinate, but the weight of Macarthur’s learning com-
pletely overwhelmed the six officers, unused as they were to the
pomp of civil law. They unanimously upheld the objection
and appealed to Bligh. He declared that he could do nothing.
Without the Judge-Advocate, he claimed, there could be no
Court ; and in the Crown alone lay the power to recall Atkins and
make a new appointment. The officers held to their point, re-
manded Macarthur to his bail, and adjourned. This took place
in the morning. So soon as he heard of what they had done,
Bligh summoned the six officers to appear before him on the
_ afternoon of the following day. Rumour said that he intended
to arrest them on a charge of high treason. At the same time
he ordered Macarthur to be committed to the town gaol, claim-
ing that, as without the Judge-Advocate there could be no
Court, he could not have been legally remanded to his bail.
1See Mill, History of India and State Trials, xxi., 1,045.
32 A COLONIAL AUTOCRACY.
That day Johnston, the officer in command of the forces, came
up to town. On the following morning, January 26th, 1808,
Macarthur was released by the soldiers from gaol and a requisition
presented to Johnston calling upon him to arrest Bligh and take
over the Government. This was immediately carried out. It
was afterwards claimed that had the officers been sent to prison,
the regiment would have mutinied and got beyond all control,
and that Bligh’s life was saved by his arrest. It was certainly
a very peaceful revolution which was accomplished, for within
two hours the “subversion” of Bligh’s government was com-
plete—with no shots fired nor violence of any kind.
It was with Bligh, the mutiny’s victim, with Johnston the
commander and Macarthur, “the prime mover and instigator,” }
and with Foveaux who had by implication approved the arrest,
that Macquarie’s instructions dealt.2, Immediately upon his
arrival, if he found Bligh still in Sydney, he was to reinstate him
in the Government. But Bligh had disturbed the tranquillity of
the Colony and of the Colonial Office. Complaints against him
had been many and weighty. His temper too was one more
inclined to indignant revenge that decent clemency. Influenced
by all these things, the Colonial Office decided that discipline
required only his nominal reinstatement, and he was instructed
to hand over the Government to Macquarie within twenty-four
hours and return as soon as possible to England, where he would
be needed for the prosecution of the insurgents.
Major Johnston was to be placed under close arrest and sent
to England, there to be tried by court-martial for mutiny.
Foveaux’s case was to be left over for the time being. He
would return with the New South Wales Corps, and then a de-
cision would be arrived at. It was more difficult to deal with
Macarthur. The members of the Madras Council were tried in
England by virtue of a statute * relating to offences committed
in India, but for offences committed by a civilian in New South
Wales he could be brought to trial in that Colony only.
Macquarie’s orders were that if Macarthur was still in New
South Wales and charges were preferred against him, he was to
be brought before the Criminal Court of the territory.
1 Bligh’s term for Macarthur.
2 Letter from Castlereagh, 1809, 14th ae, H.R., VIL., p. 143.
%13 Geo. III., cap. 63.
THE DEPOSITION OF BLIGH. 33
The progress of events in the Colony led to the complete
abrogation of these instructions. By the end of 1809, of the
four principal actors, Foveaux alone remained,
When Bligh’s arrest had been accomplished, two courses
were open to Johnston. One was to send for Paterson at
Port Dalrymple and to administer the Government until his
arrival by right of seniority alone. The other was the one he
followed of proclaiming himself Lieutenant-Governor and thus
performing a complete act of usurpation, It is true that within
a week a despatch was sent to Paterson, but it did not contain
an enthusiastic invitation for his presence. Paterson wrote at
once to Lord Castlereagh and to the Commander-in-Chief and
then relapsed into the helpless state of ill-health to which age
and drink, or hard service, had brought him. A full year
elapsed before he decided that there was a ship which would
carry him with safety to Port Jackson, and long before that
time Foveaux was in Sydney appealing to him as his superior
officer for instructions and approval. Paterson was little
fit to give either, and indeed took no real part in the whole
affair.
The self-constituted Lieutenant-Governor had got quickly
to work. On the 29th of January, 1808, a bell-ringer went
through Sydney calling a meeting at the church for the even-
ing. The triumphant party turned out in good array. An
address and a sword of honour were voted to Johnston, and more
addresses to Macarthur and the regiment. Macarthur thanked
the people and made a flaming speech upon his wrongs. The
hot excited crowd heard his pious hope that no harm would
come to Bligh, but must have been far more thrilled by his
furious denunciation of the Governor and the Magistrates as
“blood-thirsty villains eager to drink his blood”.! At the
height of their enthusiasm, increased by the heat (it was mid-
summer) and by liberal potations, the meeting agreed to send
a delegate to England to state their case to Ministers, and
forthwith appointed Macarthur. A subscription list for his
expenses was opened and £400 promised on the spot. But
by next day faction had broken out, the party split up, and
1 Bligh to Castlereagh, 30th April, 1808. H.R., vi., p. 607.
3
34 A COLONIAL AUTOCRACY.
Macarthur refused to go. The plan was abandoned and the
money never collected.*
On the whole Sydney was for Johnston, but the small
settlers from the Hawkesbury to Paramatta stood firm for
Bligh, who had been popular with them from the beginning of
his Governorship. Even stronger than their affection for Bligh
was their hatred of Macarthur.2 He had started as a Lieu-
tenant of the New South Wales Corps, sold out as captain in
1804, and devoted himself to the cultivation of the finest estate
in the Colony. It lay in the Cow Pastures, the richest tract
of land then discovered. There he grew fine wool and made
experiments in cultivating fruit and vines. He also carried on
trade with China and the South Sea Islands, and was one of
the biggest rum-dealers in a rum-dealing community. His
enterprise and his success were alone enough to arouse envy.
His hot, defiant temper, his commercial greed, his burning
conviction that all who opposed his will sought only for his
ruin, his power of raising a personal injury to the status of a
national wrong, the very domestic virtue which made his home
an example to the country-side—all marked him out as a man
whose few friends would be far outbalanced by the number of
his enemies. His multifarious interests brought him into con-
nection, and with Macarthur that meant into collision, with
nearly every man in the Colony, and his vigorous tempestuous
spirit had left not one corner of the territory undisturbed.
It was known to be by his persuasion that Johnston had
taken the title of Lieutenant-Governor,* and it was supposed by
the settlers to be for Macarthur’s benefit that the Government
was carried on. Although he would accept no salary when he
took the office of Colonial Secretary and became the real head
of the administration, they still believed that he was reaping a
1 Bligh to Castlereagh, 30th April, 1808. H.R., vi., p.
2In 1805 addresses were presented to King on his departure and Bligh on
his arrival. They were signed by three persons—one representing ‘the garrison,
one the civil staff, and one the settlers. Macarthur signed for the settlers. A
large number of these protested against this, alleging that his action was “ uncon-
stitutional and unauthorised,” and that they never would or could accept him as
their representative on any occasion. H.R., VI., p. 188.
’ This was never proved in black and white, but short of that it was quite
pg that the general impression that this was the case was in accordance with
the facts.
THE DEPOSITION OF BLIGH. 35
profit somehow. Probably they were right, for Macarthur was
not the man to hold power idly, and if he had ever suffered a
grievance would have used every weapon that came to his
hands to redress it. The officers themselves who had accepted
his interpretation of the law and acted in ignorant good faith
began to wonder if Macarthur, in seeking to form a new
Government, had not been furthering some schemes of his own.
But however much the settlers feared and distrusted
Macarthur, they had more to suffer under Foveaux. He and
Macarthur had long been on bad terms, and with his arrival
the Colonial Secretary fell into the background. The new
Lieutenant-Governor was a clever and vigorous man, and had
no need of the strengthening arm on which Johnston had
leant. But his administrative training had been gained in the
bad school of Norfolk Island, where harsh and rapid measures
had been adopted to govern a small isolated community of
convicts and soldiers, often on the verge of famine or insurrec-
tion. Foveaux could deal adequately with the commercial
and agricultural needs of the country, but in ruling men he
relied too much on the methods of sudden arrests and quick
and arbitrary punishments. When Paterson did at last reach
headquarters in January, 1809, Foveaux remained the real
though no longer the nominal chief. Paterson went up to
Paramatta and nursed his infirmities at the Governor’s cottage
in peaceful retirement. The Government went on in his name,
and it was nominally under his orders that Macarthur and
Johnston sailed for England in the Admiral Gambier merchant
vessel in March, 1809. They went to lay their case against
Bligh before the Home Government, and in the same month
Bligh also set sail in His Majesty’s Ship Porpotse of which
he held the command. At first he was to have been sent off
in the Admiral Gambier, but after long negotiations an agree-
ment was drawn up and signed by him and Paterson, and he
was allowed to set forth upon the journey on his own quarter-
deck. By the terms of the agreement Paterson was to allow
him the number of attendants and companions he desired,
while he was bound on his side to sail straight to England.
The terms were broken by both, and Bligh put in at Van
Diemen’s Land, where he remained until the beginning of 1810.
36 A COLONIAL AUTOCRACY.
On his arrival Lieutenant-Governor Collins received him with
the honours due to a Governor-in-Chief, but proclamations
from Paterson and Bligh’s own unreasonableness made him
change his tactics, and Bligh had to take to his ship again,
For some months a war of petty vexations and counter-pro-
clamations was kept up. The Porporse harassed the craft in
the Derwent, while Collins cut off her communications with
the shore.
It was while here that Bligh heard with satisfaction the
rumours that a regiment and eight ships had sailed to his assist-
ance. Probably he looked forward to the bombardment of
Sydney, a course he had urged, when under arrest, upon Captain
Kent of the Porpotse as a means of accomplishing his release,
Johnston and Macarthur were in England before Macquarie
reached Sydney. The Colonial Office, probably hearing that
they were on their way, sent all the papers bearing on their
case for counsel’s opinion. This was in September, 1809.
Counsel declared that both Macarthur and Johnston were guilty
of high treason and that the civilians and officers who aided
them or confirmed their action afterwards, as Foveaux had done,
were alike implicated in the crime. But though they had
“levied war against the King in his realm,” they could be tried
only in the Colony, ‘‘and by the judicature there erected.” !
Johnston, however, was amenable to military law also and so
might be tried by a court-martial in England for mutiny. Mac-
arthur would have to be sent back to New South Wales to stand
his trial there.
Before this advice could be acted upon, Macarthur was in
England and actively at work seeking political support. John-
ston’s patron, the Duke of Northumberland, and the Honour-
able Arthur Elliot, Lord Minto’s brother, seem to have been
the allies upon whom chiefly he relied, but he was busy making
acquaintance with many members of parliament. Ministers
preserved complete secrecy as to any intentions they might
have. In October Lord Liverpool, with C. C. Jenkinson as
Under-Secretary, replaced Castlereagh and Cooke at the Colonial
Office. The change was greeted with joy by Macarthur, who
1 Opinion of Harris. H.R. VII., p. 209, 12th September, 1809.
THE DEPOSITION OF BLIGH. 37
considered Cooke “a northern bear” of autocratic principles.
Cooke was specially likely to be unfavourable to Macarthur
because he was a close ally of Sir Joseph Banks, one of Mac-
arthur’s most powerful enemies.
The new Ministers sought a fresh legal opinion, this time
from the Attorney and Solicitor-General. This was given in
November, 1809.1. They suggested that Johnston might be
tried by court-martial in England for mutiny, as had already
been advised. With regard to the civilians concerned, their
crime was softened from “high treason ”to mere “ misde-
meanour,” as in the case of the four members of the Madras
Council in 1779. The trials of these persons, however, must
take place in New South Wales.
Meanwhile Macarthur was preparing for a great fight with
Bligh. At one time he thought of procuring a seat in Parlia-
ment to forward his cause. At another he proposed to bring a
civil action against him and claim £20,000 damages. All the
time he was vastly over-rating the interest felt by the British
public and the venom of his opponents.*, The Colonial Office
bided theirtime. In the autumn of 1810 the New South Wales
Corps, now gazetted the 102nd Regiment, arrived. Paterson
had died on the voyage and Johnston was ordered to rejoin and
take command. In October, 1810, Bligh reached England.
In Bligh’s absence in Van Diemen’s Land, Macquarie had
taken over the government at once in accordance with the in-
structions entrusted to him in such a case. Bligh had come up
to Sydney in February, 1810, and from then until the middle of
May had busied himself collecting evidence and deciding what
witnesses he would take home with him. Government were to
pay their expenses, and of course those in Government depart-
ments could be ordered to go with him. Altogether he took
ten, six of whom were private individuals who went voluntarily.
He was eager to bring the civilians who had taken part against
him, and who were still in New South Wales, before the
Criminal Court on charges of treason. Intense, therefore, was
his disgust when the Judge-Advocate hesitated, doubting if the
1See H.R., VII., p. 229, 17th November, 1809.
2See H.R., VII., Macarthur’s letters to his wife, p. 239, 28th November, 180),
and p. 453, 11th November, 1810.
38 A COLONIAL AUTOCRACY.
crime of treason attached to the Colony at all. And so “ doubts
and difficulties have arisen . . . as to what other charge or
indictment can be laid,” Bligh wrote sadly to the Secretary of
State, regretting that he was unable to inform his Lordship of
any proceedings against them.!
It is more than possible that in Bent’s hesitation there was
policy as well as legal caution. Macquarie certainly was eager
to get Bligh out of the territory, and so have one element the
less to disturb the tranquillity for which he hoped. In addition
to this Bligh was detaining the King’s ships, the Hindostan and
Porpotse, and very considerably straining the resources of the
Colony to provision them. Macquarie was ready to give him
all the assistance which strict justice and a high sense of the
position he held required, but not the zealous aid which would
have been inspired by friendship. Indeed from the day his ship
anchored in Port Jackson he had been much in sympathy with
and wholly conciliated to the interests of Foveaux, whom he
recommended in the highest terms for the post of Lieutenant-
Governor of Van Diemen’s Land.? But in spite of his par-
tiality for Foveaux and his dislike of discussing the question,
Macquarie could still give a fair account of Bligh’s case. On
10th May, 1810, he wrote to Lord Castlereagh “. . . in justice
to Governor Bligh I must say that I have not been able to
discover any act of his which could in any degree form an ex-
cuse for, or in any way warrant, the violent and mutinous
proceedings pursued against him on that occasion, very few com-
plaints being made to me against him, and even those few are
rather of a trifling nature.
“On the other hand there cannot be a doubt but that
Governor Bligh’s administration was extremely unpopular,
particularly among the higher orders of the people; and from
my own short experience, I must acknowledge that he is a
most unsatisfactory man to transact business with from his want
1? Bligh to Castlereagh, gth March, 1810. H.R., VII., p. 309.
?It was expected that Collins’ behaviour to Bligh (see above) would lead to
his recall. However, before such an event could take place, even ifit had been
contemplated, Collins died in March, 1810. His funeral was arranged by Lieut-
enant Lord, his next in command, at a cost of £123. Macquarie referred home
before paying it. The bill is printed in full in H.R., VII., and is a most interest-
ing document of at least forty items.
THE DEPOSITION OF BLIGH. 39
of candour and decision, in so much that it is impossible to
place the smallest reliance on the fulfilment of any engagement
he enters into. ... Thus far, My Lord, I have deemed it my
duty to state my sentiments in a private letter, respecting
Governor Bligh’s conduct; but I trust that I shall be excused
by Your Lordship for refraining from entering more fully into
the merits of the transactions and disturbances connected with
his arrest.” }
Included in the instructions which dealt with individual
persons concerned in Bligh’s deposition had been some clauses
of a general nature. Macquarie carried these out by three
Proclamations, one issued on Ist January, the others on 4th
January, 1810. Though it was impossible in Bligh’s absence to
reinstate him, the Instructions on this head were quoted in the
first Proclamation in order to make it known that Bligh had the
support of His Majesty’s Ministers. Two years had passed
since his arrest, and the enthusiast in the cause, John Macarthur,
was absent. It was no wonder that those of his party who re-
mained should have grown cool. They had gained little, and
they had all to fear and nothing to expect from the decision of
the Home Government. From the economic point of view,
which consciously or unconsciously influenced their ardour, the
most vehement of Bligh’s opponents felt that the restoration of
regular government would ease the situation. The Lieutenant-
Governors, not feeling quite sure as to the legality of their posi-
tion, had hesitated to draw heavy bills upon the Treasury, so
that there was a scarcity of the only stable part of the currency.
Major Abbott put the case very succinctly in 1808. “The
Colony is quiet,’ he wrote. “There is no money.”? But a
Governor in whose title there was no flaw would of course not
feel himself thus restricted.
Before Macquarie’s arrival it had been rumoured that the
Colonial Office had condemned the action of Johnston. His
party found, however, that there was greater hope than they
had expected of conciliating the authorities, and that hope they
eagerly seized. The first Proclamation ended with a friendly
1 See H.R., VII., Macquarie to Castlereagh, roth May, 1810, p. 377- :
2 Abbott to Ex-Governor King, 4th September, 1808. H.R., VI., Appendix,
p- 835.
40 A COLONIAL AUTOCRACY.
paragraph in that style of paternal dignity touched with pom-
posity which became so familiar during Macquarie’s rule. The
Governor hoped “that all party spirit which has unfortunately
resulted from the late unhappy disturbance will end, and that the
higher classes will set an example of subordination, morality and
decorum; that those in an inferior station will endeavour to
distinguish themselves only by their loyalty, their sobriety and
their industry, by which means alone the welfare and happiness
of the community can be effectually promoted ”.!
In the later Proclamation issued on 4th January, Macquarie
disclosed the remainder of his Instructions. Officials appointed
by the rebel Government were to be replaced by those who had
acted under Bligh, and grants of land and stock made by
Johnston and Foveaux were declared null and void, but with a
limitation which prevented hardship. Grants to officers or
men of the New South Wales Corps were revoked altogether,
and all grants were called in. But after full inquiry those
which had been impartially given and not as rewards for joining
the insurgents, or as mere acts of friendship, were to be renewed
under such conditions as the Governor thought fit. Legal pro-
ceedings were to serve as useful guides, but not to be considered
of a binding nature.”
The second Proclamation of 4th January safeguarded the
officials of Johnston’s government from the dangers to which
the first, by declaring their appointments illegal, would have
subjected them. They were protected from malicious or
vexatious actions. “Deliberately unlawful assumptions of
power” were not, however, included in the indemnity.
There was thus every prospect of laying old animosities to
rest. The New South Wales Corps were to leave Sydney in
April, and with Bligh also gone there would be hope of peace.
But so long as he stayed, he and his friends kept party spirit
alive. In the beginning of April the contents of Johnston’s, or
as it was usually called, Macarthur’s first despatch to Lord
Castlereagh became generally known. Copies of this and other
1H.R., VIL., p. 252, rst January, 1810.
* Amongst other trials the unfinished hearing of Macarthur’s case had been
completed. It was a good example of judicial farce, and needless to say he was
acquitted. An account of the trial may be found in H.R., VII., pp. 465-510,
and February, 1808.
THE DEPOSITION OF BLIGH. 4I
papers had been sent by Macquarie’s hands to Bligh, not for
publication but to assist him in preparing his case against the
insurgents. Either by some breach of faith or culpable
negligence, their contents were disclosed. At once Bligh’s
friends proposed to hold meetings at Sydney and the Hawkes-
bury to vote addresses of “ condolence and congratulation,” and
to disavow a paragraph in the despatch which they considered
false and malicious. The passage in question ran as follows :—
“... it will be apparent that I had no alternative but to
put Governor Bligh in arrest to prevent an insurrection of the
inhabitants, and to secure him and the persons he confided in
from being massacred by the incensed multitude.” }
It was felt that such meetings would ease the fears of some,
be valuable evidence for Bligh, and could not be opposed by
Macquarie without giving great offence to his predecessor.
Yet it was the very way to rouse feeling of the bitterest kind.
A requisition was brought to Gore, now reinstated as Provost-
Marshal. The Governor gave his consent, and a meeting was
called for 11 A.M. on the 11th of April at Sydney. According
to colonial custom, the Provost-Marshal took the chair.2 The
meeting was a large one. Although the New South Wales
Corps had embarked a few days before, several of the officers
were present. The chiefs of Johnston’s party came in feudal
bands, surrounded by their servants and dependents. ‘The first
resolutions dealing only with the address were declared carried
amidst great confusion. Then Gore read the paragraph from
the despatch and put the blunt question, “whether any person
or persons at the meeting would avow that he or they had had
a design to massacre the Governor and the officers in whom
he confided, if Colonel Johnston had not seized and imprisoned
the Governor ?”
At this there was great uproar and cries of “No, no, no such
intention,” and D’Arcy Wentworth shouted across in just wonder
and contempt: “What, man, do you think we are going to
put a rope round our own necks?” A question so absurdly
worded as that put by Gore could have only one answer, and
1 See H.R., VI., p. 575, 13th June, 1808.
2For detailed account of way in which meetings were called, etc., see
Chapter III.
42 A COLONIAL AUTOCRACY.
in the roar which greeted it the meeting was doomed. The
address was put, declared carried, signed by a few and carried
away. Bligh’s people retired,and the meeting was left to the
other side. At once Simeon Lord and Gregory Blaxland,
two leaders in Johnston’s party, brought forward two motions,
condemning the meeting as likely to promote discord, and
pledging themselves to Governor Macquarie to stand loyally
by the Proclamation of Ist January.
Gore refused to put these motions, claiming that the business.
for which the meeting had been called was completed and that
it could deal with nothing else. Blaxland and Lord hurried
off to complain to the Governor. A few minutes later,
Macquarie sent for Gore and rated him for his partiality.
Gore was very aggrieved ; and though he was with good reason
partial to Bligh, was very likely, as he said, “only attempt-
ing to do his duty under extremely trying circumstances”.
But he gave in at once, saying he would put any questions
that any one present should give him. All three returned
to this very patient meeting and it was adjourned until three
o'clock. Gore tried to get out of the distasteful business by
refusing to take the chair, but the meeting would not forego.
the triumph, and declared that “usage and custom” required
that he should preside. The following resolutions were then
put and carried :—
“1. Resolved unanimously, That this meeting, convened
for the purpose of addressing William Bligh, Esq., is calculated
to provoke and renew animosities, which must tend to destroy’
that unanimity and good understanding so essentially necessary
to the advancement and improvement of this infant and rising
Colony.
“2. Resolved, That it is the firm and unanimous determina-
tion of this meeting to support and carry into full effect, as
far as in them lies, His Excellency the Governor's Proclamation
of the ist of January, 1810, recommending harmony and a
conciliatory spirit to subsist between every individual in the
Colony.
1 Report of Johnston’s Trial, which is the authority for this account, has John,
not Gregory, Blaxland. But John Blaxland had already left Sydney.
THE DEPOSITION OF BLIGH. - 43
“3. Resolved, That these Resolutions be signed by the
Chairman and printed twice in the Sydney Gazette.”
The promoters in strict consistency with the conciliatory
character of the resolutions refused to sign them, for a few
signatures would have detracted from the general unanimity of
the proceedings, and poor Gore was therefore forced as chair-
man to affix his own signature in solitary grandeur according to
“usage and custom”. Into the Gazette the resolutions never
found their way, though at first the Governor gave a gracious
consent. Later on, however, he sent for Gore and told him
that “upon reconsidering the last resolutions and the original
address, as signed by the persons who made the requisition to
me, he thought it would be partial and unfair to publish one
and not the other; therefore he directed that neither of them
should be published, and neither of them were”.?
This was the last of Bligh’s party as a party, and the pro-
ject of holding a meeting at the Hawkesbury was dropped
altogether. Bligh sailed in May, and the colonists were left
to seek fresh quarrels whereby to train their newborn political
instincts.
It was not until April, 1811, that Johnston was ordered
into arrest, and in May his trial for mutiny commenced at
London. It lasted until the 2nd July, and never perhaps was
a court of military officers so bored by any judicial proceedings.
The evidence was voluminous, full of repetitions and quite in-
conclusive. No legal justification was found for Johnston, but
apparently the Court was satisfied that he had a moral justifi-
cation, for though he was found guilty he was merely cashiered.
Macarthur declared afterwards that Johnston was frightened
into keeping back evidence.® He himself proved a most
troublesome witness, pouring out with irrepressible volubility
matter irrelevant to the questions of his examination, but
skilfully designed to impress the Court. The Court, however,
was not so easy to dominate as his friends of the New South
Wales Corps.
_ 1 There was a fourth Resolution, ‘“‘ That the above Resolutions were carried
unanimously”. The promoters were evidently determined that there should be
no possibility of mistake on that point.
2 Gore’s Evidence, pp. 102-3 and Appendix, p. 458, Johnston’s Trial.
3 H.R., VII., Introduction, xlii.
a A COLONIAL AUTOCRACY.
The Judge-Advocate General advised the Colonial Office to
rest satisfied with Johnston’s trial and to conduct no further
prosecutions. In forming this decision he was influenced by
the fact that none of the officers concerned were likely to
return to the Colony in any public capacity.! Some, however,
did return not long afterwards. Johnston himself ended his life
quietly on his farm at Annandale near Sydney.
He was an insignificant man, made a leader against his
will and afterwards used as a scapegoat, and his trial put an end
to a military career not without its bright moments. In 1804
he had by courageous and prompt measures put an end toa
convict rising which might have grown to formidable dimen-
sions. With only twenty men he had met and dispersed some
hundreds of rebels. It was strange that a simple military
officer, quite without force of character and lacking in self-con-
fidence, should play a leading part in two such important
crises.
Johnston’s trial showed the immense difficulty of dealing
with political crimes committed at so great a distance and in
so smalla settlement. Ina Colony without lawyers (save those
convicted of felonies), the line between legal and illegal, so
blurred and wavering to the layman’s eye, must often be
crossed. And when acts are called in question years after their
accomplishment, before a court thousands of miles from the
place of their commission, the severity of the judge is lessened,
the vigour of the prosecution weakened. It is true that Wall,
Ex-Governor of Goree, was tried, convicted and hanged for
the murder of a negro subject twenty years before. General ©
Picton also was convicted of illegally ordering the infliction of
torture when Governor of Trinidad, five years after the com-
mission of the crime.? But in both cases the crimes were acts
of violence and cruelty. Johnston was guilty of mutiny cer-
tainly, but of neither a dangerous nor violent description, and
he had obviously been another man’s tool.
Bligh’s story came to an end with the trial. Though
technically he was triumphant, Government was chary of
trusting commands to a man who had twice been the victim of
1H.R., VIL, p. 553, 4th July, 1811.
2 Trial of Wall, 28 State Trials, 51. Trial of Picton, 30 State Trials, 225.
THE DEPOSITION OF BLIGH. 45.
a mutiny. His naval promotion went on and he died a Rear-
Admiral of the Blue, but he never again had a ship nor admin-
istered a government. With poetic justice, Macarthur was the
one of the three to suffer most. Ministers could not prohibit
his return to New South Wales if he desired to go. But bya
course of inaction they could effectually keep him an exile
from the wife and daughters to whom he was sincerely devoted.
For he knew that his enemies in New South Wales would set
prosecutions on foot against him, and that his return thither
was dangerous unless the Government would extend their pro-
tection to him. For five years he remained in Europe with his
sons, superintending their education and studying fruit and
vines and wool culture, while his wife managed the flocks and
fields in New South Wales. Then in 1816 he approached the
Colonial Office and asked that the past might be buried in
oblivion. All seemed favourable until Macarthur discovered
that Lord Bathurst, then the Secretary of State for War and
the Colonies, promised the indemnity he asked for only under
the belief that Macarthur was ready to express contrition and
regret for his behaviour in the past. Macarthur refused such a
condition with indignation.1 He would not accept permission to
return if it could even be supposed “to imply such an acknow-
ledgment”. Lord Bathurst was reluctant to let him go without
his making some show of submission. Macarthur would do no
more than promise to leave public affairs alone for the future.
His family supported him in this stand.? It was claimed for
him that his honesty and firmness of character were sufficient
guarantee for the future.* Lord Bathurst thought that to let
an impenitent rebel return without making a contrite confession
was dangerous. After a long correspondence this opposition
was withdrawn, and Macarthur and two of his sons returned to
Australia. There is no record in the Colonial Office Papers
of the reasons why this favour was granted. According to
Macarthur it was due to his threat to disclose the facts which
Johnston had been frightened into suppressing.*
For the remainder of Macquarie’s governorship Macarthur
1C.0., Domestic Correspondence, 14th October, 1816.
2C.0. Same. Edw. Macarthur to Goulburn, 17th November, 1816.
3 Same. 4See H.R. VII., Introduction, xlii.
46 A COLONIAL AUTOCRACY.
lived peacefully and much respected in his home on the Cow
Pastures near Paramatta. The fiery days of his youth were
passed, but he remained the same strenuous worker, persevering
in all that he did, constantly setting on foot new enterprises, a
brave man and a magnificent coloniser.
CHAPTER III.
THE ADMINISTRATIVE PROBLEM.
AvuTuHorITIES. — Despatches, etc. (See Bibliography) in Record and Colonial
Offices. Sydney Gazette. P.P., H.C., 1812, II.; 1816, XVIII.; 1819, VII.;
1822, XX.; 1823 X. Historical Records of New South Wales. Rusden,
History of Australia.
As Governor-in-Chief of New South Wales and its dependen-
cies, Macquarie ruled over an extensive area. New South Wales
alone, by the words of his commission, included the Eastern
half of the continent, then known as New Holland, from Cape
York in the north to South Cape, the southernmost point of Van
Diemen’s Land. Although Bass Straits, which separated Van
Diemen’s Land from the mainland, were discovered in 1798, no
alteration had been made in the terms of the Governor's
commission, which were identical with those of Phillip’s, and
described the whole as one continuous stretch of country.
But beyond New Holland and Van Diemen’s Land, the
Governor’s rule reached over all the islands adjacent in the
Pacific Ocean, and in the same latitude. At Norfolk Island}
only had any settlement been made, and at the beginning of
Macquarie’s period of office its abandonment had been decided
upon. Over the remaining islands the Governor’s control was
amere shadow. A considerable trade was carried on by English
and colonial vessels with New Zealand and the South Sea Islands,
and several missionary stations also had been established. ?
Moved by the missionaries’ accounts of the violence and lawless-
ness of the traders, Macquarie made attempts to control their
conduct. In January, 1814, he issued regulations for the masters
of colonial vessels trading thither, and appointed one of the
missionaries at Otaheite on the Commission of the Peace. At
1 See Chapter II., p. 35.
2 Chiefly by Church Missionary Society. Some were Methodist missionaries.
(47)
48 A COLONIAL AUTOCRACY.
the end of the same year he made a similar appointment at the
Bay of Islands, New Zealand. New Zealand was 1,500 miles
away, Otaheite no less than 5,000. Macquarie claimed that
both lay within the geographical limits of the territory of
New South Wales.! They were so far as their latitude was
concerned, but it is more than doubtful whether Otaheite could
be called “adjacent”. The appointments were passed over in
silence by the Colonial Office, and though these magistrates
kept Macquarie informed of events happening within their
districts, there is no sign of their ever having acted in a
magisterial capacity.2 They did not materially improve the
disorderly ways of the traders.
Over Van Diemen’s Land, the Governor-in-Chief exercised
general supervisory powers. Before Macquarie’s arrival there
had been two Lieutenant-Governors in the island, one at the
Derwent* in the south, the other at Port Dalrymple in the
north. Both had previously been on an equal footing, and
neither strictly subordinate to New South Wales. But from
1810 their relations were placed on a definite basis, Port
Dalrymple lost its Lieutenant-Governor and received a com-
mandant under the orders of the Lieutenant-Governor at Hobart
Town in his place. The Lieutenant-Governor himself received
his orders, and conducted his correspondence with the Colonial
Office through the Governor at Sydney. The latter became his
responsible chief, and being “ held accountable by His Majesty’s
Ministers for the general control, improvements and expenses
of those settlements,” issued to the Lieutenant-Governor full and
particular instructions. Collins’ successor, Major Davey, an
officer of Marines, who came out in 1813 bearing a bad reputa-
tion which his conduct in the Colony fully justified, received
very “pointed and strict” directions from Macquarie. His
1R.O., D. 1, 17th January, 1814. By a Proclamation issued on the 4th
December, 1813, Macquarie attempted to restrain the masters of trading vessels
from committing outrages on the South Sea natives. By its provisions only ships
of British or Indian Registry were to be cleared out for these parts in the ordin
way. Masters of ships of the Plantation Registry were to enter into bonds wi
the naval officers in the sum of £1,000 to refrain from molesting the natives.
There is no indication that the terms of the Proclamation were complied with, and
it is unlikely that the amount of the bond could have been recovered in any case.
2See Chapter VI. On the High Seas, p. 167.
% Headquarters were at Hobart Town on the Derwent.
4 Now Launceston. 5 D. 1, 28th June, 1813. R.O., MS. 6 Thid.
THE ADMINISTRATIVE PROBLEM. 49
expenditure of public money was to be supervised, and he was
altogether forbidden to grant land or cattle! upon his own
authority. But the distance from headquarters was great, the
voyage often lasting more than three weeks, and on the plea of
urgency instructions were constantly set aside. When Davey
was recalled in 1815 at Macquarie’s earnest request, and Lieu-
tenant-Colonel Sorell succeeded him, the government of Van
Diemen’s Land fell into capable and trustworthy hands, and the
Governor-in-Chief was relieved of a heavy and harassing re-
sponsibility. Until 1824, however, the settlement continued to
be subordinate to that of New South Wales, and Macquarie
relaxed his supervisory powers very little even with so capable
an officer as Sorell.
In New South Wales the Governor’s powers were more
direct. But there was a distinction to be drawn between
military and civil administration. Newcastle, for example, and
Paramatta until 1814, were governed by military command-
ants. In the case of Newcastle, the Governor drew up a
complete set of instructions which covered the whole ground
of the commandant’s duties and which he was obliged to obey,
though of course the common law bound him also. There are
no such instructions for Paramatta among the records, so that
it is probable that being but a few hours’ journey from Sydney,
no written orders were found to be necessary. But at these
military posts the whole system of administration emanated
from the Governor. In the other districts, the basis of ad-
ministration was the system of England supplemented and
occasionally reversed by the regulations of the Governor.
However, as the responsible head of each department, his
supervision and direction were constant. To the systematic
and conscientious mind of Macquarie, it was necessary to
attend fairly to each duty. No sooner had he taken over the
Government, than he drew up the order of his working day.
Each morning at ten o'clock he received the reports of civil
officers, and of the military officers at eleven, and “gentlemen:
on business or visits of ceremony” between twelve and two..
All applications for land, stock, or other indulgences had to be
14,¢,, from the Government herds.
4
50 A COLONIAL AUTOCRACY.
presented in writing either as petitions or memorials before
twelve o’clock every Monday. In cases of great urgency
alone was any departure from these rules to be permitted.
Governor King had once issued an order that no applica-
tions were “in future to be made to the Governor on Sundays,
nor will (he) be interrupted when passing through the streets
or speaking to an officer”.? The order well illustrates the
haphazard methods it sought to cure. It was not the smallest
of his virtues that Macquarie accustomed the Colony to formal
regularity in public business. But it was no easy task, and
when he altered his hours in 1813 he concluded the order in
the following terms :—
“In order to prevent frivolous and unnecessary applications
in future, His Excellency desires it may be clearly and dis-
tinctly understood that having laid down the foregoing Regu-
lations for his own government, he will not in any instance
deviate from them.” *
By the new order, requests of a general nature were to be
made on the first Monday of each month. Applications for
land and cattle were to be submitted once a year only, on the
first Monday in June, and petitions and memorials for pardons
and other mitigations of sentences on the first Monday in
December.
During the Governor's occasional absences from head-
quarters, the commanding officer of the garrison took his
place, under the commission of Lieutenant-Governor, receiving
reports and conducting the ordinary business routine of ad-
ministration. He could not, however, under Macquarie’s in-
structions, call the courts together, grant land or stock, pardons
or emancipations, or undertake new expenditure,* No diffi-
culties arose under these instructions until 1821. In that year
Macquarie made a tour of Van Diemen’s Land, leaving Lieu-
tenant-Governor Erskine in command at Sydney, with Major
Goulburn lately arrived from England as Colonial Secretary.
One day the latter called upon Mr. Justice Field and asked
1S.G., G.G.O., 8th January, 1810.
2G.G.O., 24th January, 1801. H.R., IV.
$G.G.0., oth January, 1813. P.P., H.C., 1816, XVIII.
* Macquarie’s Instructions to Lieutenant-Colonel O’Connell. H.R., VIL,
p- 634, 30th October, 1811.
THE ADMINISTRATIVE PROBLEM. 51
him to draw up a bye-law for the prevention of accidents from
the removal of gunpowder in too great quantities. Field at
once drafted a proclamation embodying the English law on
the subject, and this was issued by the Lieutenant-Governor.
So soon as Macquarie saw it, he wrote a letter of rebuke to
Erskine, and on his return to Sydney recalled the proclamation
by means of a Government Public Notification! He did this
without consulting his judicial officers, and in very clumsy style.
“His Excellency the Governor,” ran the notice, “from due
consideration of the Powers and Authority vested by His
Majesty in him solely, as Captain-General and Governor-in-
Chief of this Territory and its Dependencies, has deemed it
fitting and necessary . . . to declare and notify. And he does
hereby make this public declaration and notification that the
said Proclamation so issued and published, during His Ex-
cellency’s late Public tour of inspection in the Southern part
of this Territory .. . is wholly without force and authority.”
“Fortunately,” wrote Field to Lord Bathurst, “the private
understanding between Governor Macquarie and Lieutenant-
Governor Erskine was too good to permit a quarrel between
them ; but as this may not be the case with a future Governor
and Lieutenant-Governor, I have thought it my duty to submit
this question of authority to the decision of your Lordship.” *
Field’s legal opinion was that when the Governor “ absents
himself from the seat of government thither (Van Diemen’s
Land), but leaves the Lieutenant-Governor of the Territory of
New South Wales . . . to administer the Government in Azs
own name, and allows the Lieutenant-Governor of Van Diemen’s
Land to administer that Government in zs own name, it
amounts to an ‘absence out of the Territory and its Depend-
encies’, . . so that the Lieutenant-Governor has then the
power by his commission, even with no more oaths than those
originally taken, to do whatever is necessary to carry on the
Colonies both of New South Wales and Van Diemen’s Land.
. . . If nobody is authorised to make any law or regulation
while the Governor is at sea within the Territory, how long
is New South Wales to wait without necessary Laws and
1$.G., 14th July, r82r.
2 Field to Lord Bathurst, rst August, r82r. R.O., MS.
52 A COLONIAL AUTOCRACY.
Regulations (Martial Law for instance) in the case of the
Governor’s non-arrival at the dependency for which he sailed,
or non-return home by stress of weather or perils of the sea.”
He went on to discuss other powers of the Lieutenant-
Governor. “As to the Lieutenant-Governor’s power to ap-
point members of the Court, the Charter of Justice expressly
gives him this ‘in the absence of the Governor,’ without saying
‘from this Territory and its Dependencies’. But in both cases
the word ‘absence’ must be construed secundum subjectam
materiam. in the last case there is no question; and the
question in the first case is, whether this is an absence to the
intent and purpose of carrying on the state, which Governor
Macquarie does not deny his late absence of three months was ;
for he allowed the Lieutenant-Governor to appoint and dismiss
constables, to receive returns and reports, etc. Nor does he
dispute the ‘imminent risk’ which called forth the regulation in
question from the Lieutenant-Governor’s ‘zeal for the service’
He only asserts ‘ /ta lex scripta est’ : as long as I am ‘ geographic-
ally within the vast latitude and longitude of the Territory
either on land or at sea, nobody else can make Laws or Regula-
tions for the Colony’. This is a question which [| think a new
commission should set at rest.” *
Field’s view seems to be supported by law and common-
sense. The Colonial Office, however, left his letter unanswered.
It was considered again in 1824, but as the Governor no longer
exercised legislative powers, it was a matter of no further im-
portance.’ It was not only during the Governor’s absence that
business suffered interruption. Sometimes the whole administra-
tion was brought to a standstill, and the Colony as it were
hushed to silence while the Governor and his secretarial staff
prepared despatches for England, and while the vessel which
was to bear them waited impatiently in the Sydney Cove As
the one direct channel of communication between Ministers
in Downing Street and ten thousand British subjects in the
1 Quotation from Government Notice, 14th July, 1821.
?Enclosure to Field’s letter to Bathurst, rst August, 1821. See Erskine’s
letter and its enclosures to Bathurst, 15th September, 1821. The discussion led
to a violent quarrel between Erskine and Field. R.O., MS.
*C.0.,MS. Papers for 1824 to 1825.
4 See, e.g., S.G., G.G.O., 22nd March, 1817.
THE ADMINISTRATIVE PROBLEM. 53
Southern Seas, the Governor was bound to record every im-
portant occurrence and every measure he thought fit to take.
Details of population, accounts of expenditure, judicial reports,
all had to be copied in duplicate or triplicate and transmitted
to the Colonial Office.
In the first year of Macquarie’s rule, the means of convey-
ance were very irregular. By the most direct routes, by the
Cape of Good Hope or Rio Janeiro, the voyage occupied from
four to eight months. But many of the ships touching at
Sydney returned to England by way of India or were bound
for the whale-fisheries in the South Seas. The Colonial Office
complained in May, 1812, that no public despatches had arrived
since April, 1811, although two whalers, which had put in at
Sydney, had since reached England.! Macquarie replied that
these conveyances were not reliable. Whaling vessels often
spent six or twelve months on their fishing stations. The
voyage by India also was usually a protracted one.? Lord
Bathurst replied that not having received a public despatch from
the Colony for above fifteen months, he was anxious “to learn
more in detail an account of its progress and prosperity, which
you state to be still uninterrupted ; and in order to prevent the
inconvenience which results from so infrequent a communication
between the Colony and the mother country, I have to request
that for the future you will avail yourself of any opportunity
which may offer of forwarding your despatches to India to be
sent home by the first Company’s ship which may be about to
proceed to England”.?
From this time Macquarie found himself making some-
what similar complaints of the Secretary of State. “I have
much to lament,’ he wrote in March, 1816, “that I have not
yet been honoured with communication from your Lordship
on several very interesting and important points relative to the
Colony . . . as contained in my despatches . . . in the years
1813, 1814 and 1815.4 The Secretary of State in his reply
reminded him ‘‘how much the length and uncertainty of the
1D. 5, May, 1811, C.O., MS.
2D. 6, 17th November, 1812, R.O., MS.
34.¢e., East India Company’s ship. D. 21, r9th May, 1813., C.O., MS.
4D., 22nd March, 1816. R.O., MS.
54 A COLONIAL AUTOCRACY.
voyage to New South Wales must at all times interfere with a
very regular communication”.’ In this case Macquarie’s com-
plaint had been made before the answers could have reached
him, for his previous despatches had been very much delayed.’
With the progress of the trade of New South Wales and the
increasing frequency of convict transports from 1816 onwards,
the difficulties of communication were lessened. But it did not
become less difficult to ensure that attention should be directed
to each important detail, either by Macquarie or by the officials
at Downing Street, who were occupied with matters of more
varied interest. . The need of such intercourse was urgent be-
cause of the Governor’s extensive powers. While the greater
share of colonial patronage remained in the hands of Ministers *
the Governor administered the oaths of office, might suspend
or dismiss officials, appoint justices of the peace, coroners and
all minor judicial and executive officers. He had power to
pardon all offences save wilful murder or treason. He had the
custody of lunatics and administration of the estates of minors.
He might raise troops or declare martial law. He could alien-
ate crown lands, appoint fairs and markets, ports and harbours,
He could make regulations for shipping and trade. By his
warrant alone could public money be issued.* He sat as a
Court of Appeal in civil cases. Over the discipline, distribution
and labour of the convicts he had complete control, and over
the whole Colony a general power to “ pursue such measures as
are necessary” for its peace and security. Over the navy he
had no jurisdiction, save that its members when on shore were
amenable to the Colonial Courts for all breaches of the peace or
of colonial regulations.®
Instructions under the sign-manual or simply transmitted
by the Secretary of State might at any time modify these
powers. In practice the Governor was expected to refer all
1D., 30th January, 1817. C.O., MS.
2 Ibid.
5 4,¢., the appointment of the officers on the colonial staff, judicial, adminis-
_ trative and medical.
* But it must be disposed of by him “for the support of the Government, or
for such other purposes as shall be particularly directed and not otherwise”. He
had no power to raise money. See H.R., VII., p. 131, Commission, 8th May,
1809, and also Chapter X. later.
5 Ibid,
THE ADMINISTRATIVE PROBLEM. 55
important proceedings, especially such as involved expenditure,
to the Secretary of State before taking action in regard to them.
In addition to his responsibility to the Ministers of the
Crown, the Governor was under the restraining influence of
English law. He looked forward toa return to England at
some future time. When he did so, however; any illegality
committed by him in New South Wales might be questioned
in the English Courts. He could plead there neither Com-
mission nor Instructions. For all practical purposes a despot
in New South Wales, in England he was a plain citizen subject
to the ordinary course of law.!
From the time of the Colony’s foundation the Governor had
acted without a Council. Hunter had keenly felt the need of
one to share his responsibility and help him with legal ad-
vice. But he thought such a Council should consist of civilians,
and to this there was an insuperable difficulty. For it was in
the task of putting an end to the liquor trade that he wanted
advice and support, and there was scarcely a civilian in the
settlement who was not himself engaged in this “nefarious
traffic”. King, who superseded Hunter in 1800, when the
drink traffic was at its height, with “the unpopular task of
becoming a reformer” before him, was well aware of the isola-
tion in which he stood.? “Confidential persons to assist me,” he
wrote, “I brought none.”* Yet even from Government officials
he expected and obtained no support in his work of reformation.
With regard to King’s successor Bligh, Crosley, a famous
convict attorney, wrote in 1817 that he had been employed ten
years before in “ giving legal advice to the Governor and Magis-
trates of his Council assembled to oppose the rebel party”.
The gathering, however, was not deserving of so fine a name,
for it can have been nothing more than an informal meeting of
1 The Commission and Instructions of the Governor of Cape Colony at this
time were almost identical with those of the Governor of New South Wales.
See those issued to Earl Caledon, rst August, 1806, printed in Cape Records.
See also Theal, History of South Africa, iii., pp. 133, 134. See also Chapter X.
2Evidence before C. on T., 1812. é ,
3 Memorandum of King, quoted in Rusden, History of Australia, vol. i., pp.
227, 228.
4Same. King did a great deal of good work in suppressing the drink traffic,
but he had a very difficult and unpleasant term of office.
5 Crosley’s Petition to Lord Bathurst, 1817. R.O., MS.
56 A COLONIAL AUTOCRACY.
Bligh’s friends. Bligh himself was doubtful of the expediency
of forming a Council, especially one with law-making powers.
“Tt would,” he said, “require a very just and wise man to go
among them to form any code of laws.”* John Blaxland, a
“oentleman-settler,” made a somewhat similar proposal for “a
humane and enlightened Governor assisted by a Council”.? A
Committee of the House of Commons on Transportation, which
examined witnesses on the condition of New South Wales in
1812, also recommended the formation of a Council.? They
considered the power exercised by the Governor of issuing
regulations which might create new offences and assign new
punishments too great to remain in the hands of one man. It
had, they pointed out, already created dissatisfaction, and it
could not be expected that, however well exercised, it would
ever cease to do so, They proposed that the Governor should
retain a right to act contrary to the advice of his Council, but that
the dissentient members of the Council should in such a case
be entitled to protest, and to demand that their protests should
be transmitted to the Secretary of State. ‘“ The acquiescence of
the Council would give popularity to the measures of which it
approved, and its expressed approbation might have the effect
of checking such as were evidently inexpedient.” ¢
This Report was sent to Macquarie in November, 1812. In
the covering despatch Lord Bathurst wrote that to this recom-
mendation “His Majesty’s Government feel no disposition to
accede”, The Governor was to be left unfettered by a Council.
The difficulty of selecting suitable members, the discussions to
which their opposition to the Governor and their protest against
his conduct might give rise, the consequent formation of par-
ties, the long time which must elapse before decisions of the
1 Evidence toC. on T., 1812. Bligh perhaps thought it better to leave things
as they were than to attempt to find such a Governor.
? Blaxland to Liverpool. H.R., VII., p. 230, 27th November, 1809.
’ There is also an interesting paper of suggestions in the Colonial Office
Records for 1809, and printed in H.R., VIL., p. 113, etc., written by a Mr. T. W.
Plummer and endorsed in Macquarie’s handwriting. Plummer was probably the
friend mentioned in Macarthur’s letters who was a merchant of London. He
proposed a Council for the Governor with legislative and judicial but not
executive functions. It was to consist of the Governor, three officials and two
magistrates elected by the inhabitants. The Governor was to have the power of
overruling a majority of the Council.
4C. on T., 1812.
THE ADMINISTRATIVE PROBLEM. 57
Secretary of State could arrive, and the danger of weakening
the higher authorities in a society composed of such discor-
dant materials, all more or less influenced the determination of
the Government.!
Macquarie agreed with this reasoning, and even indulged “a
fond hope that this measure will never be resorted to in this
Colony”.? The result of the decision was that the party spirit
which it was feared a Council might create was fostered and
encouraged by the disappointment of not receiving one. The
Governor, directed to consult with “ the best-informed characters
in the settlement,” * continued to seek advice in those quarters
where he thought it would be most favourable to his own views.
As the population and importance of the Colony became greater,
he found himself more and more compelled to widen the circle
of his counsellors.
The criminal judicature of the Colony had been established
by statute and a Commission under the Privy Seal in 1787,° the
civil judicature by the latter only.
The Criminal Court convened by the Governor from time
to time as occasion required, consisted of the Judge-Advocate
and six officers of His Majesty’s forces by sea or land. King’s
ships were so seldom in port that in practice the six officers
came to be furnished entirely by the regiments stationed for
the time being in New South Wales. They were selected in
the same way as for a General Court-martial, and the aspect of
the Criminal Court was wholly military, for they appeared in
“the insignia of duty, the sash and sword”.® Save that the
Judge- Advocate presided, the procedure also was assimilated to
that of courts-martial. Having administered the oath to the
other members, the Judge-Advocate received it from them in
his turn. He also exhibited the charge against the prisoners,
being indeed the only Crown prosecutor. Procedure was by
examination, the Court administering the oath to witnesses.
1D. 13, 23rd November, 1812. R.O., MS.
2D. 2, 28th June, 1813. R.O., MS.
3 Instructions, H.R., VII., p. 133, etc.
427 Geo. III., cap. 2. See Bigge, Report, II., 1823, and Field to Bigge,
23rd October, 1820. R.O., MS. or
5 Usually called the Charter of Justice. The judicial constitution here de-
scribed was altered in some respects in 1814. For these alterations see Chapter VI.
6 Collins, History of New South Wales, 2nd ed. 1802, p. II.
58 A COLONIAL AUTOCRACY.
But the law was the law of England—not military law.
In the times when six soldiers with another soldier as their
President had done justice in the Court, this distinction had
probably been more theoretical than real, but under the presi-
dency of Ellis Bent the rule of law easily triumphed.
The Court took cognisance of “all such outrages and mis-
behaviours as, if committed within this realm, would be treason
or misprision thereof, felony or misdemeanour.’’ After hearing
the evidence, the Judge-Advocate addressed the members as-
a judge charges a jury. The Court then retired and decided
upon the verdict, which was that of the majority,? and the
sentence. Verdict and sentence were then pronounced by the
President. The execution of the sentence was entrusted to the
Provost-Marshal who had in each case to receive the Governor's
warrant. The Governor thus passed in review every sentence
pronounced by the Court.
The military appearance of the Court, and the absence of
trial by jury, were both considered grievances by the colonists.
The Committee on Transportation favoured the appointment
of Petty Juries in Criminal trials.* They based this recom-
mendation largely on the opinions in its favour expressed both
by Bent and Macquarie.* The latter indeed was an advocate
for Grand Juries as well as Petty ones. The Secretary of State
did not think fit to adopt the suggestion, and trial by jury was
not granted for many years.
The Court of Civil Judicature was composed of the Judge-
Advocate and two magistrates appointed by the Governor. An
appeal lay from this Court to the Governor and from him
to the Privy Council. This arrangement was in many ways
unsatisfactory. In the first place, the Governor, a man without
technical legal knowledge, must either decide a case for himself
or apply for advice to his only law adviser, the Judge-Advocate,.
127 Geo. IIL., cap. 2.
2 The agreement of at least five members was necessary for the immediate
execution of the death penalty. If four only were in favour of it the case had to
be referred for the consideration of the Crown.
$C. on T., 1812.
* Bent to Liverpool, rgth October, 1811. H.R., VII., p. 621. Macquarie’s.
Despatches, passim. Especially see D., 28th June, 1813, R.O., MS. See also
Appendix to C. on T., 1812.
THE ADMINISTRATIVE PROBLEM. 59
against whose decision the appeal itself was made.! In the
second place, if either side wished to appeal further and to
carry the case to the Privy Council, the expense and delay were
such as to make a creditor ready to accept any compromise,
and thus to put a premium on sharp practice and vexatious
proceedings.”
In early days the Civil Court had been occupied by small
matters only, and to such a summary procedure was applicable,
But by 1810 the causes had grown in complexity and in amount.
Trained lawyers were necessary to expound the suits brought
before it. But the Colony could only provide attorneys from
the convictranks. At first Ellis Bent, with the horror of a man
who held high the honour of his profession, had determined to
bring to an end their pollution of his Court. Realising, however,
that such a course would have inflicted real injury on the parties,
he gave way,® and drew up a Rule by which a special permission
to plead might be given by the Court in each case. The
attorney had, however, to exhibit a written instrument “duly
executed by the person in whose behalf he shall be authorised
to appear,” and to lodge with the chief clerk a certificate from
the Governor's Secretary declaring him a free inhabitant of the
territory.* Under this regulation some emancipists, of whom
George Crosley was the most prominent, engaged in lucrative
practices.
In this Court a convict could neither sue nor be sued,
According to Bligh this was one of “the old-standing regula-
tions of the Colony”.’ It imposed a real hardship, for many of
the convicts, and especially the ticket-of-leave men, entered
freely into business contracts. Indeed it cut both ways, as
may be seen from Crosley’s case. When Dr. Harris was
1 Of course the two magistrates in the Civil Court could have given a verdict
in which the Judge-Advocate did not concur. In practice, however, this never
occurred.
2D., 13, 23rd November, 1812, Bathurst to Macquarie. R.O., MS.
8 See his letters of 1814 and 1815 to Lord Bathurst, especially that dated
Ist July, 1815. R.O., MS.
4Rule of the Court of Civil Jurisdiction, S.G., 5th October, 1812, “ Free
inhabitant ”’ included those free by servitude or pardon. Parties might still appear
in person if they wished to.
5 Evidence before C. on T., 1812. There is no such regulation to be found
in the colonial records. It was, however, the accepted custom of the Courts—
and founded on the law of England.
60 A COLONIAL AUTOCRACY.
examined as a witness for Johnston at his trial in 1811, he was
asked why Governor King emancipated Crosley. “To put
him within the power of the Colonial Courts,” replied Harris,
“that people might be able to recover their debts from him.” *
Though in his commission the Governor's prerogative of
mercy was expressed in general terms as the power to pardon
offences, there were two distinct sides to its exercise. On the
one hand, there was the power to the head of the executive
to pardon men convicted of offences committed wzthin the
territory. On the other, there was the power exercised as
Governor of a penal colony to pardon convicts transported
for crimes committed outszde the territory.2 In the one case,
the offence, in the other, the offender was the prime matter
for consideration.
In pardoning men convicted in the Colonial Courts or in
mitigating their sentences, the Governor was restricted in one
respect only. In the case of murder or treason, he might
grant a reprieve but not a pardon.* Macquarie used these
prerogatives freely and constantly both with regard to sen-
tences of the Criminal Courts and the magistrates. His war-
rant to the Provost-Marshal was not given without careful
scrutiny of each case, and he was largely guided by personal
opinion and knowledge of the individuals concerned. He did
not, however, consider it necessary to consult the judge who
had passed sentence. Ellis Bent sometimes learnt of a par-
don or reprieve for the first time on meeting in the street a
man who had lately stood before him in the dock under sen-
tence of death. Bent’s successor, Judge-Advocate Wylde, ad-
mitted that the Governor only consulted him in capital cases,
and that then he sometimes acted contrary to his advice.®
1Johnston’s Trial, p. 327.
2This power was given in general terms by 30 Geo, III., cap. 47. The
whole question of the effect of the Governor’s pardons was raised in 1818 and
will be treated in Chapter 1X. See also Bigge Report, I., 1822, P.P., XX.
%In 1811 Macquarie pardoned two men convicted of murder. Finding that
he was not authorised by his commission to do so, he at once wrote to the Secre-
tary of State explaining the mistake. The pardons were confirmed by the Crown,
and the men released accordingly. The incident affords a curious illustration
of the neglect with which even a conscientious Governor treated the terms of his
appointment. See H.R., VII., p. 613, D., 18th October, r8r1.
‘Bent to Bathurst, rst July, 1815. R.O., MS.
® Wylde’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
THE ADMINISTRATIVE PROBLEM. 61
When the Governor did uphold the sentence of the Court, Bent
frequently found that punishments were “frittered away and
rendered nugatory in the execution” This was one of the
reasons why Bent resented the Governor’s personal supervision
of the gaols.”
Until 1815 the matter had not been brought before the
Colonial Office. In so far as the Governor abused his power
and weakened the punitive effects of the Criminal Law, it was
illustrative of a defect inherent in small communities under any
form of personal government. The population was small
enough for the Governor to feel that he knew something of
each man in it—it was large enough for him to be constantly
misled by that belief.
In his treatment of the transported convicts this feeling of
ommiscience again led him astray. Colonial custom and the
instructions to early Governors had long settled the three
methods by which their sentences might be mitigated. The
first of these was by the grant ofa ticket-of-leave, which exempted
aconvict from labour for the Government or as an assigned
servant, and allowed him to work for himself. The Govern-
ment ceased to clothe or feed him, but he remained under the
surveillance of the superintendent of convicts and was legally
still a prisoner. The ticket-of-leave was granted during plea-
sure only, and might be recalled if its holder were guilty of
misconduct, or if his labour were needed for the public works.
The “emancipation” or conditional pardon was the next grade.
This gave a convict complete freedom within the territory, but
within the territory only. Finally there was the “ free” or ab-
solute pardon which restored him to complete freedom within
or without the Colony.*
In the first years of his rule Macquarie granted few remissions
and those with great circumspection.° His predecessors had
been less discriminating. The Committee on Transportation
in 1812 decided that the power exercised by the Governor was
1 Bent to Bathurst, rst July, 1815. R.O., MS. Of course the Governor
could not increase a punishment.
2 Bent to Bathurst. Above. 3D. 2, 28th June, 1813. R.O., MS.
4Same. These remissions of sentence, etc., apply to male and female con-
victs alike.
5 Bathurst to Macquarie, D. 13, 23rd November, 1812. _R.O., MS.
8e.g., King and Crosley. See above.
62 A COLONIAL AUTOCRACY.
one which served no useful purpose and was open to great
abuse. The Governors, they thought, had been more influenced
by love of popularity and favouritism than by the desire to
reward exemplary conduct.!. They were shocked to find that
so many as 150 pardons had been granted in one year. They
proposed therefore that for the future all conditional and
absolute pardons should be granted through the Secretary of
State, the Governor having only the right torecommend. The
delay of one year would, the Report stated, be the only in-
convenience.? They also advised that an annual return should
be made of the tickets-of-leave, together with the reasons for
giving them.
Lord Bathurst was ready to accept these recommendations
in their entirety,? Macquarie, however, argued ably and success-
fully against them.*
“It appears to me,” he wrote, “by no means necessary,
towards the internal management of this Colony, that the
Governor of it should have the power of granting absolute
pardons.” But there were, he thought, objections to its with-
drawal. ‘At the hour of death a convict feels more from the
idea of dying a convict than for death itself. I have myself
been more than once induced . . . to grant pardons to men in
this state, who had . . . long been living as if they had been
free, and possessed of large property, previous to my arrival in
this Colony. . . . It would certainly prove a great drawback
to their reformation and exertion to reflect that after meriting
their pardons, death might intervene before they would be
obtained.”
To withdraw the power to grant conditional pardons he
thought would greatly “retard the improvement and prosperity
of this country. . . . Until a convict is emancipated he is not
eligible to receive a grant of land, to act as a juryman,° or to be
1The evidence does not appear sufficient to warrant this statement.
*C.on T., 1812. This is a very sanguine view. The voyage to England
and back again would take at the very least twelve months without allowing
any time between receiving the Governor’s recommendations and deciding
to adopt them.
3D. 13, 23rd November, 1812. R.O., MS.
4D. 2, 28th June, 1813. R.O., MS.
5 Atthis time Macquarie was looking forward to the immediate establish-
ment of trial by jury. More than a conditional pardon, however, would have been
necessary before a convict could act as juryman, See Chapter IX.
—
te
i
if
‘7
if
i
"
i
ee
THE ADMINISTRATIVE PROBLEM. 63
employed in any situation of trust or command.” Again, “in
‘some cases, the persons recommended will probably forfeit the
indulgence for which they have been recommended, and before
it is received they may be under various sentences here at the
time their emancipations arrive from England, which could not
then be well acted upon. Alli this would tend to endless trouble
and confusion of representations backwards and forwards, which
can only be imagined by those accustomed to these extra-
ordinary persons who, while convicts, are panting for freedom,
and when once restored to freedom too frequently forfeit it.”
He stated that it would be difficult to give a correct return of
tickets-of-leave as they were issued during pleasure and liable to:
be recalled at any moment. As the holder remained under
surveillance he did not think the indulgence would lead to
mischief, and it had the advantage of saving the Treasury of
expense.
Macquarie concluded his plea by enclosing for the Secretary
of State’s perusal an Order which he had drawn up for the regu-
lation of all mitigations of sentence.’ Petitions and memorials
praying for these indulgences were to be presented once a year
only, on the first Monday in December. Each application was
to be signed and countersigned by the resident Magistrate and
Chaplain of the district to which the convict belonged. If he
lived in Sydney he must have a certificate also from the
Superintendent of Police. The signatories must have known
the applicant personally, and certify that he was “sober, in-
dustrious, and honest”. A convict asking for an absolute par-
don must have resided in the Colony for fifteen years if: under-
going a life sentence, and for three-fourths of the period of any
other. For a conditional pardon the necessary period of
residence was ten years if a prisoner for life, or two-thirds of
any other term. Before asking for tickets-of-leave the appli-
cants must have been three years in the territory. Good
conduct within the Colony was the only ground upon which a
claim to any of these indulgences might be based.
Lord Bathurst was satisfied with the arguments and regu-
lations put before him by the Governor, and pressed the matter
1G,G.0., oth January, 1813.
64 A COLONIAL AUTOCRACY.
no further, The regulations remained in force, and the Governor
continued to exercise full powers of granting remissions of sen-
tence throughout Macquarie’s time. But in 1819 the question
was again raised.
The Hon. H. Grey Bennet, a member of Parliament, who
was instrumental in obtaining a House of Commons Committee
on New South Wales in 1819, published in the following year
“ A Letter to Lord Bathurst,” in which he commented on the
evidence delivered before it.1 He approved of Macquarie’s
regulations of 1813, but asked “ Are they practically in force?
Have any exceptions been made and in what instances? Were
these rules meant to have any operation in New South Wales,
or were they only to produce an effect on the Colonial Office,
and obtain the rescinding of that Order, arising from the sugges-
tion of the House of Commons Committee in 1812?”’ A com-
parison of dates at once shows that this last suggestion was
without foundation. Macquarie published his regulations before
he received the report of the Committee and Lord Bathurst’s
despatch proposing to adopt the suggestion. But Macquarie’s
own despatches and orders, the evidence before the Committee
of 1819, and the information collected by Commissioner Bigge
in 1819 and 1820—show that Bennet’s other queries were fully
justified.
In two respects Macquarie deviated greatly from the rules
he had laid down—firstly, in regard to length of residence—and
secondly, in regard to granting the indulgences at one time of the
year only.
From 1813 to 18202 he granted 170 free pardons, and in
twenty-six instances the necessary length of residence had not
been reached. In the same period he granted 1,217 conditional
pardons, 285 of which were exceptions, while amongst 1,716
tickets-of-leave no less than 450 had been issued before the
recipients had been three years in the Colony. *
Macquarie undoubtedly considered that he had the right
1“ A Letter to Earl Bathurst . . . on the condition of New South Wales and
Van Diemen’s Land as set forth in the evidence taken before the Prison Com-
mittee in 1819, 1820." A copy of this pamphlet is to be found in the Library of the
Royal Colonial Institute and another in the Colonial Office Library. There is no
copy in the British Museum.
24.e., from the time when the Order came into force.
% Appendix to Bigge’s Report. R.O., MS.
THE ADMINISTRATIVE PROBLEM. —_ 65
in “the exercise of his supreme authority,” ! to deviate in par-
ticular cases from the lines laid down by himself. He was
supported in this belief by many colonists. But he never made
even an attempt to enforce rigidly the three years’ residence
in regard to tickets-of-leave. In the despatch of the 28th June,
1813, he wrote that they were frequently conferred immediately
on the arrival of the convicts who had been “in the line of
gentlemen” before their condemnation. Sometimes they were
given very recklessly as in the following two cases. A convict
was transported in 1815 for the second time. His sentence was
a life one. Immediately he arrived at Sydney he was given
a ticket-of-leave. He married the daughter of a publican, and
with her dowry, and the proceeds of a tobacco investment he
had been allowed to make on the voyage from England, he set
up a licensed house in Sydney.* The other example is that of
Lawrence Halloran who arrived in 1817. Macquarie was cen-
sured by the Colonial Office in 18204 for having granted him
a remission of sentence. He explained that he had not done
so, but had simply “exempted him from manual labour by giving
him .. . a “cket-of-leave, which is revocable at the Governor’s
pleasure, or even by a single magistrate in case of an offence
being proved against the holder... . .”. The man was advanced
in years, had a short sentence of seven years, was “of liberal
education,” and so far as Macquarie knew there was nothing
very serious against him. Bigge, however, found out some
curious facts about the matter. Halloran had been known to
the Governor’s Secretary some years before as a schoolmaster
at the Cape of Good Hope, and before he had entered on the
career of blackmail and defamation against Earl Caledon and
General Grey, the two successive Governors of that Colony, which
had been the cause of his transportation. Not knowing of
these facts, the Secretary had suggested to the Governor that
1See G.G.O., 24th March, 1814, in which he proposes to deviate from a rule
laid down by himself as to the distribution of spirits. He uses the words quoted
above in explanation of his action.
2¢.¢., Riley. See Evidence before C. on G., 1819.
The licence was in his wife’s name. He could not hold one, being still
technically a prisoner. His behaviour seems to have been good on the whole, but
he had not been transported for a second time merely to increase his fortune!
#D., 14th July, 1820. C.O., MS.
5D. 10, 2zoth March, 1r82x. R.O., MS.
® Bigge Report., I., III., and Evidence in Appendix to Reports. R.O., MS.
5
66 A COLONIAL AUTOCRACY.
Halloran should have a ticket-of-leave and follow his profession
of teaching. As soon as he received it Halloran lodged a com-
plaint against Captain Lambe, the master of the transport on
which he had travelled, and the complaint was investigated by
the Sydney Bench of Magistrates. They decided that it was
unfounded and malicious, and ordered Halloran to give up his
ticket-of-leave and return to Government labour. Halloran ap-
pealed to the Secretary for protection and kept his ticket-of-
leave. The magistrates protested, and after some angry pas-
sages the ticket was finally withdrawn. But instead of being
placed in a gang of Government workmen, Halloran was as-
signed as servant to Simeon Lord, his intimate friend,and after
a few months was again in possession of a ticket-of-leave.1 He
soon had the largest and most fashionable school in the Colony.”
The story is a startling commentary on Macquarie’s despatch.
It was certainly very difficult to know what to do with men
of Halloran’s type, who were unused to any sort of manual
labour. A few could be used as clerks, but the supply was far
greater than the demand. To give them tickets-of-leave was
an easy, and appeared to be a cheap way, out of the difficulty.
The case was different with regard to the free and condi-
tional pardons. It was recognised that there might be many
men who proved themselves fit to receive pardons before they
had lived the necessary time in New South Wales. But there
were instances in which pardons were given or withheld which
showed no such grounds of reason. There were, for example,
pardons free and conditional given not as rewards for good
conduct but as recompense for working on the new road
built over the Blue Mountains, or even for sending carts and
horses toassist. There was no need to give this encouragement,
nor was such a need ever pleaded. The absurdity of the thing
is clear enough when the case of such a man as Hodge, one
out of many, is considered. He hired a cart for a few pounds,
sent it as his own, received an emancipation and at once opened
a sly-grog shop.®
1 Bigge’s Report, I.
2Ibid., I11. Halloran apparently laid the foundation of secular education
in Australia. Bigge was scandalised to find no Bibles or other books of re-
ligion in his school.
’Ibid.,1. Also Evidence in Appendix to Reports in R.O., MS.
THE ADMINISTRATIVE PROBLEM. 67
Amongst those who fulfilled the requirement of residence
many received pardons who were of known bad character.!
On the other hand, several men who had been steady and in-
dustrious were retained in Government service because they
had a knowledge of some trade useful in carrying out the
Government works.” This created a feeling of indignation
which need never have arisen, had not Macquarie’s own order
given the appearance of a vight to what was only an indul-
gence.
The effects of the Governor’s laxity was much increased by
the carelessness of the magistrates who signed petitions with-
out ascertaining that the prisoner had resided for the full number
of years required.* Their lack of zeal in these duties was not
to be wondered at. Throughout the year Macquarie was in the
habit of granting pardons without consulting them,‘ and with-
out requiring compliance to the forms of his regulations. But
occasionally he rebuked them publicly for their use of what
was after all a discretionary power ina manner which roused
hot indignation.® Thus in 1814, he said in a General Order
that he had been ‘‘ forced to reject a number of applications
. . . which, although they bore the signatures of the magistrates,
were in many instances (within His Excellency’s own know-
ledge) not entitled to the consideration they solicited ”.
The second important breach of his regulations was the
result of the irregular manner in which he granted indulgences
from time to time on mere personal application.’ When a
convict became a freed man he might receive a grant of land,
tools, stock and rations for one year, and thus become for the
time being a heavier charge than before on the revenue. It
was thus desirable to increase as little as possible the number
of pardons for each year. Macquarie adopted a most remark-
able system for achieving this object. In December, 1813, he
1 See Bigge’s Report, I. Also MS. Evidence in Appendix, passim.
2 Bigge’s Report, I. 3 Ibid.
4Ibid. The number of pardons varies little from year to year, but in
some years Macquarie refused to receive any memorials at all at the fixed time,
having granted all the pardons he intended to already. See later.
5 Bent to Bathurst, 1st July, 1815. R.O., MS.
6 G.G.O., roth December, 1815.
7In 1819 he granted seventy-two pardons during the year and nearly 200 at
the regular presentation. See Returns in Appendix to Bigge’s Reports. R.O.,
MS.
68 A COLONIAL AUTOCRACY.
sent a circular letter to the magistrates saying: “The number
of applications made yesterday for free pardons or emancipa-
tions having far exceeded the Governor’s expectations, and
being in fact more than double the number he can comply with
for two years to come, it is his desire that you shall not counter-
sign any further or new applications of that nature, until
those you have already certified shall have been finally disposed
of”.1 In 1814 he received five hundred memorials, and con-
sequently directed that no more should be presented in 1815,”
and in 1816* he ordered that none should be presented in 1817.
Finally in 1820 he refused to receive petitions for conditional
pardons or tickets-of-leave.* Bigge was present when those for
181g were presented to Macquarie, and gave an account of the
proceedings.® “The crowd . . . was very great; and observ-
ing their impatience the Governor addressed them, and informed
them that he would grant no tickets-of-leave to those who had
not been three years in the country, nor any other indulgence,
except in conformity to the terms of his Proclamation of the
year 1813.”° This address produced no effect. There was
great difficulty in preserving order in the presentation of the
petitions to the Governor, who, on perusing the statements and
looking at the certificates, either wrote in pencil or in the margin
the initial letters of the indulgence that was to be given, or re-
jected the petition altogether. The petitions exceeded seven
hundred ; they were collected by the major of brigade and two
clerks, who, with the superintendent of convicts, were the only
persons present.
From the returns sent in to Bigge it appeared that at this
period Macquarie did actually grant two free and sixty-five
conditional pardons as well as thirty-eight tickets-of-leave
which were exceptions to his regulations.’
1 Quoted in G.G.O., roth December, 1814.
2G.G.0., roth December, 1814. 3 Tbid., 1816,
4 Tbid., 11th November, 1820.
5 Bigge’s Report, I. The Governor was ill in December, 1819, and therefore
received the petitions, etc., early in January, 1820,
84.¢., G.G.O. of 1813.
7In Return in Appendix to Bigge’s Reports. R.O., MS. The number of
pardons granted varied little from year to year. In 1813 there were fifty-one free
pardons given and in 1814 thirty-nine. But from 1815 to 1820 the number never
rose above twenty. In 1818 there were 312 conditional pardons granted, but in
other years, from 1813 to 1820, there were never more than 170.
:
.
|
.
THE ADMINISTRATIVE PROBLEM. 69
The magistrates were the pivot on which the administrative
organisation of the settlement turned. They not only con-
ducted the business “usually transacted by Justices of the
Peace in England,” but were constantly engaged in enforcing
order and discipline amongst the convicts. | They gradually
took over from the Civil Court all processes for the recovery
of small debts. A Proclamation of July, 1810, laid down a
summary procedure for such suits, and fixed a schedule of fees
ranging from threepence to two shillings and sixpence. An
Act of 1813 enabled debts to be proved on oath before a chief
magistrate either by a private individual or the Crown, and
also made provision for levying distress.2 Finally in 1820 a
Proclamation issued by the Governor conferred on the magis-
trates the jurisdiction given them in England by 20 Car. II., cap.
Ig, over questions arising upon wages or contracts for labour
in husbandry under the sum of ten pounds.* They had in
addition to all these duties the general supervision of their
districts.*
Their most onerous tasks were those connected with the
convict system. “All complaints either of neglect of duty or
of ill-treatment on the part of Government men or their em-
ployers are to be made to the district magistrate, whose duty it
will be to punish and redress mutually the ill-behaved and
injured party.”® They also investigated all complaints
brought before them by gaolers and superintendents, and exer-
cised over the convicts what would in the case of free men
have been a criminal jurisdiction.®
No magistrate could order any punishment without ex-
amination on oath unless he actually saw an act of neglect,
disorderliness or insubordination committed.’ In no case
1Ellis Bent to Bathurst, rst July, 1815. R.O., MS.
257 Geo. III., cap. 15. An Act for the more easy recovery of debts in His
Majesty’s Colony of New South Wales.
3$.G., 5th February, 1820. See Wylde’s Evidence, Appendix to Bigge’s
Reports, K.O., MS., and Bigge’s Report, II. Both considered that the magis-
trates strained the meaning of the Act and were too ready to go outside the
proper sphere of their jurisdiction. peep
4¢,.g., Marsden was expected to supervise the asylum at Castle Hill in the
Parramatta district.
5 G.G.O., roth September, 1814.
8 See, e¢.g., Bigge’s Report, I. He thought this a wise arrangement.
7See Hunter’s Evidence, C. on T., 1812.
70 A COLONIAL AUTOCRACY.
could a single magistrate order a heavier punishment than fifty
lashes."
Before Macquarie’s time a Bench, which usually consisted
of three magistrates, had ordered floggings of three hundred
lashes, and’ sometimes a resident magistrate in a distant part of
the settlement exercised the powers of a Bench.? But such
cases had been exceptional.
The usual punishments were flogging, imprisonment in the
gaols and hard labour in the gaol-gangs, solitary confinement
on bread and water, or transportation to the coal mines at
Newcastle. Except in the last case, the duration of a punish-
ment ordered by the magistrates never lasted more than a year
and seldom so long. Before Macquarie, all severe magisterial
sentences had been reviewed by the Governor before being put
into execution. Under his administration, however, an altera-
tion was made in this system. All the proceedings of the
Sydney magistrates were laid before him immediately after
their meetings, and even the slightest sentences had to be ap-
proved by him.* But apparently no similar supervision was
exercised over the magistrates of other districts. Even the
quarterly returns of all fines and punishments ordered by them
on delinquents of every description was very irregular, and the
details recorded very scanty.2 Transportation to Newcastle
was carried out differently. The magistrates simply committed
and the Governor allotted the term for which the prisoner
would be kept there, and on the report of the Commandant
that term might be lengthened or curtailed. Occasionally,
however, the Superintendent of Police at Sydney sent a man
thither without the Governor’s order if he thought it necessary
to separate him at once from his companions.’ But neither
1It must be remembered that a hundred years ago this was a comparatively
light punishment.
2 Hunter’s Evidence. See above.
3 G.G.O., roth September, 1814. There is a reference in this Order to im-
prisonment in the stocks as an alternative to corporal punishment, but no stocks
seem to have been provided in any part of the settlement.
* Bent to Bathurst, rst July, 1815. R.O., MS.
5G.G.O., roth September, 1814. See also Bigge’s Report, II. On one
occasion, in 1819, the Sydney Bench took upon itself to reconsider and reverse
a decision of the Resident Magistrate at Parramatta, Hannibal Macarthur.
Macarthur wrote indignantly both to the Governor and to Bigge, and Macquarie
directed the Bench to expunge the record from their Book of Proceedings. See
correspondence on the subject, Appendix to Bigge’s Reports. R.O., MS.
® Riley, Evidence, C. on G., 1819.
THE ADMINISTRATIVE PROBLEM. 71
Governor nor magistrates had power to extend the servitude
of the convicts by keeping them at Newcastle beyond the term
of their original sentences. Often the only evidence before
the Commandant of the length of a sentence was the assertion
of the men themselves, and rather than incur the responsibility
of false imprisonment he had to permit prisoners to return to
Sydney.!
In all districts of New South Wales, by means of the reports
of gaolers and superintendents which were made directly to
him, the Governor for all practical purposes exercised a com-
plete and important supervision over the punishment of prisoners
by order of the magistrates. The whole management of the
gaol-gangs was in his hands. In 1810 that at the Sydney gaol
had been the only one, but in 1814 he established gangs at
Parramatta and at Windsor and Liverpool, the two towns
in the Hawkesbury district.2 At the same time he limited the
numbers in each, a restriction which owing to the smallness of
the gaols and the growing population was difficult to maintain.
It also made it impossible for the magistrates to carry out his
Order in the spirit he wished. For Macquarie’s chief object in
forming the gaol-gangs was to lessen the necessity of resort to
corporal punishment. But when there was no room in the
gaols and the gangs were filled, the magistrates could enforce
no other punishment.®
Macquarie was always inclined to clemency,‘ and in his
management of the gaol-gangs Bent considered that he was
far too indulgent.’ The intention was that the men of the
gang should work sometimes in chains, always wearing a “ parti-
coloured” dress, and be closely confined in the gaol at night.
Their hours of work also were longer than those of other
convicts in Government employ. “ At present,” wrote Bent in
1815, “the gaol-gang, in common with everything else,® is under
1 Bigge’s Report, I. See also Evidence in Appendix, R.O., MS. Of course
the Criminal Court could impose sentences of transportation according to Eng-
ag 16.6.0. roth September, 1814.
3Ibid. See Bigge’s Report, II. and Evidence, especially of Parramatta
magistrates, in Appendix to his Reports. R.O., MS.
4See opinions of both Wylde and Bent. These judicial officers found
Macquarie too ready to pardon.
5 See Bent to Bathurst, rst July, 1815. R.O., MS.
84.¢., connected with the gaols and convicts.
72 A COLONIAL AUTOCRACY.
the sole and immediate control and direction of the Governor,
and it has of late been much employed in the rooting-up
stumps and laying out a road in the Governor’s domain, where
much of the effect of the punishment is lost from its want of
publicity.” !
It was one of Macquarie’s worst faults that he laid down
rules for others from which he absolved himself. “Formerly,”
to quote Ellis Bent again, “no punishment was inflicted even ©
on a prisoner, but by order of the magistrates or of the Criminal
Court upon a hearing of the parties concerned—and I consider
that it would have been better if that system had not been dis-
continued.”* Governor King had taken the same view, that in
such matters the Governor had rights equal and not greater
than those of any other magistrates.2 Macquarie took quite a
different view. “The Governor,” wrote Bent, . . . “upon the
gaoler’s reports orders the punishment of prisoners . . . without
any hearing or examination before him and without the
knowledge or intervention of the magistrates; instances of
corporal punishment inflicted in the lumber-yard by the mere
authority of the Governor, and without any previous hearing
or trial, are frequent, and persons have been flogged in the
public market-place by a similar warrant granted in the same
manner.
“Tt is true that in all these cases the offenders have been
persons in the service of Government or of individuals to whom
their services have been assigned by Government.”4 The
power which Macquarie thus indulged with respect to the
convicts, in the end he exercised and defended in regard to
free men.’ That was, however, a momentary lapse from dis-
cretion ; and with this one exception it was not an unjustifiable
though, perhaps, an unwise exercise of power. Bigge found
in 1820 that Macquarie was in the habit of ordering punish-
ment for Government servants on the verbal report of the chief
engineer, but only in cases where prompt action appeared
1 Bent, rst July, 1315. MS. R.O. Bigge thought the gaol-gang an ineffec-
tive form of punishment, but did not say whether it was inherently ineffective or
merely badly organised. See Report I.
2Bent. See above. ® Evidence in C. on T., 1812.
*Bent. See above.
5 See Chapter VIII., case of Blake and two others.
THE ADMINISTRATIVE PROBLEM. 73
necessary. All others were reserved for examination by the
Superintendent of Police or by the Bench of Magistrates."
As a convict was not distinguishable from the rest of the
inhabitants by any outward sign, escaped prisoners, run-away
servants and ticket-of-leave men wandered about the country,
passing themselves off as free, and cheating, trafficking and
creating disorders. The Governor, to put an end to this
_ vagrancy, issued an Order in August, 1810. It provided that
men free by servitude or emancipation must carry their certifi-
‘cates, ticket-of-leave men their tickets, and other convicts
passes from magistrates or from their masters stating where
they were going and what was their business. If these orders
were neglected the convict might be sent to Sydney by any
magistrate to work in the Government gangs. After 1814 the
only magistrate in Sydney who could issue these passes was
the Superintendent of Police.* It was an Order which was
very difficult to carry out, and indeed was very imperfectly
obeyed. Under it a very curious abuse grew up by which
masters who did not wish to feed, clothe and pay their convict-
servants gave them passes and allowed them to go about work-
ing for themselves. These passes were as valuable as tickets-
wf-leave, and from the frequency with which they were given
by acertain magistrate, came to be known as “Captain Cox’s
Liberty ”.*
The establishment of the Sunday Muster rendered it easier
to follow the movements of the convicts about the country.
Until Bligh’s time it had been the custom to muster the convicts
in Sydney every Sunday morning and march them to church.°
Macquarie revived it in Sydney at the beginning of 1810 and
extended it by the advice of one of the chaplains® to the rest
of the territory in 1814.’ At headquarters the convicts and
1 One case in which prompt punishment was thought necessary was that of a
‘conspiracy to escape by cutting out a ship in the harbour; another was the case
of two sawyers at Pennant Hills who tried to stir up their comrades to refuse to
work. See Bigge’s Report, I.
2 G.G.O., 18th August, 1810. 3 Tbid., roth October, 1814.
4 Evidence of Howe, Chief Constable at Windsor in Appendix to Bigge’s
Reports. R.O., MS. Cox was Resident Magistrate of the district.
5 See C. on T., 1812.
6 Rev. Mr. Cartwright. See his Evidence, Appendix to Bigge’s Reports. R.O.,
MS.
7G.G.O., roth September, 1814. The convicts called the Sunday Muster a
**Full Bench”. See Howe’s Evidence above.
74 A COLONIAL AUTOCRACY.
ticket-of-leave men were mustered for a special inspection by
the chief superintendent and occasionally by the Governor. In
the other districts “all the male convicts, whether assigned to-
settlers or on ticket-of-leave . . . (with the exception of stock-
men and such other persons as the magistrates under special
circumstances may see fit to exempt), are to assemble and be
mustered by the district constable every Sunday morning at
ten o’clock in such central part of the district as shall be pointed
out by the magistrate; and to proceed from thence under the
direction of the constable to the nearest church or place of
divine service, in case there shall be one within three miles. . . .
On these occasions it will be expected that the assigned servants
and persons on tickets-of-leave shall not only be punctual. . .
but also clean and decent . . . and any of them who shall at-
tend either unshaved or intoxicated, or absent themselves ex-
cept in cases of sickness or other unavoidable cause, are to be-
reported by the constable to the magistrate of the district, who
is to reprimand for the first offence and punish every subsequent.
one by placing the offender in the stocks for one hour.”?!
The masters of assigned servants were enjoined to assist in
carrying out this order on pain of having their men withdrawn.
This threat was never enforced, though it was well known that
some masters did their best to hinder their men from attendance.
The muster rolls were to be kept in a uniform manner in all
districts, and to be submitted every Monday to each resident
magistrate that he might punish defaulters and those who had
not conducted themselves with propriety. The magistrates were
asked to attend the muster occasionally in person to assure
themselves that the proceedings were carried out in an orderly
manner.
How far the Sunday Muster was successful it is hard to say.
If it was held near a licensed (or unlicensed) house, drinking
and intoxication were the inevitable result. When it brought
the convicts into a town as it did at Parramatta, it was an
unmixed evil. Marsden, the senior chaplain, and Hannibal
Macarthur, the two chief magistrates at Parramatta, opposed it
strongly and refused to enforce the order ; and Bayly, Townson
1G.G.0. See note on stocks above.
THE ADMINISTRATIVE PROBLEM. 7s
and Sir John Jamison agreed with them. Anything which
brought the convicts together in large numbers was open to
serious objections, and these were all the stronger if after the
muster there was no church within three miles for them to go
to. Often, too, when they were being marched to church they
took the opportunity of stealing all kinds of portable articles
from the houses they passed. At the same time the muster
gave undoubted assistance in securing a reliable register of the
prisoners’ whereabouts, and was a means of tracing escaped con-
victs. Unfortunately the constables were for the most part too
illiterate to do the work properly, and the registers were very
badly kept. With the exception of Marsden the chaplains
seemed to approve of the musters, but they were naturally pre-
judiced in favour of any regulations which secured them a good
congregation. Bigge had little to say for the attention which
the convicts gave to the service. They had no bibles or prayer-
books, and though quiet on the whole they were occasionally
guilty of irregularities of conduct which caused the preacher to
interrupt his discourse for the purpose of rebuking them.!
The only remuneration received by the magistrates con-
sisted of four convict servants each, clothed and “ on the store”.
Their appointment and dismissal was in the hands of the
Governor, and was not until 1820 in any way controlled by the
Ministers at home.?. The whole duty of selection belonged to
Macquarie alone, and the task was no easy one. Marsden
rightly considered that “the happiness and prosperity of this
country depend very much upon the selection of proper men
as magistrates”. Governor Hunter had felt this so strongly
that he had urged the Government to obtain suitable men from
England. This had not been done, and he had therefore been
forced to appoint the only available persons, members of the civil
and military staff. Bent thought “the procedure of the Bench
of Magistrates had been much affected by the number of military
1 For whole of this subject see Macquarie’s Despatches, passim, and letters of
Bayly to Marsden. See also Bigge’s Report, I., and Evidence in Appendix, R.O.,
MS., passim, 8th December, 1817, Letter to Sir Henry Bunbury.
2In 1820 the appointment of Dr. Redfern was objected to by the Secretary
of State. See Chapter IX.
3 Marsden to Wilberforce. Correspondence of Wilberforce, published 1840,
vol. ii., p. 183, 27th July, 1810.
4C. on T., 1812.
76 A COLONIAL AUTOCRACY.
officers who had acted upon it,” and in particular that the
system of laying the Book of Proceedings before the Governor
immediately after the meeting was a bad survival of those
times.! Though the Governor was no longer compelled to se-
lect as magistrates officers of the military or civil staff, it was
not easy to find good men for the duties, such as were capable
of carrying out the laws and not mere “ agents of the Governor ”.?
Bent suggested that the judicial officers should be consulted
in such appointments, but Lord Bathurst disregarded his advice.
The deterioration in the character of the magistracy, which took
place in the first five years of Macquarie’s governorship, Bent
thought was due to bad selections and to the Governor's habit
of not merely supervising but interfering in their judicial and
administrative actions.*
There were not more than eight magistrates in the Colony
when Macquarie added to their number Andrew Thompson and
Simeon Lord.* Both had come to the Colony as convicts, and
both had been under twenty at the time of their conviction.
They were illiterate, ignorant men, and when they were placed
on the Commission of the Peace both were living “openly in
profligacy ”.6 Thompson had for some time been chief constable
at Windsor, kept a shop and owned several houses there, and
was strongly suspected of illicit distilling. Lord was a retail
merchant, afterwards an auctioneer who sold “small articles
by the hammer,”® and finally a manufacturer. Not content
with making them magistrates, Macquarie shortly afterwards
named them as Road Trustees with the Rev. Samuel Marsden,
The chaplain, however, refused to act with them, basing his re-
fusal not on their convict status but on the notorious immorality
of their lives. - After angry communications both by letter
and by word of mouth, Macquarie accepted this refusal, but he
never forgave Marsden for thus opposing his plans.’ He
treated Marsden’s action as a deliberate censure on his scheme
1 Bent, rst July, 1815. R.O., MS. 2 Ibid.
% See above and also Chapter IV., the Governor's interference with regard
to the grant of licences. :
*Thompson in January, 1810, and Lord in August, r8ro.
5 Marsden to Wilberforce. See above. Neither of them had been transported
for very serious crimes.
® Riley, C. on G., 1819.
7See Marsden’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
THE ADMINISTRATIVE PROBLEM. 77
of raising “emancipists” to the magistracy, which was through-
out his governorship one of the main planks of his policy.
Marsden certainly did not approve of it, and without doubt it
made the few men of standing in the Colony less ready to take
a magisterial office, and lowered its character in the eyes of the
colonial population.!
The police constables throughout the country were appointed
by the Governor. He acted, however, on the recommenda-
tion of the resident magistrates of the various districts or the
Superintendent of Police in Sydney.2 Macquarie was the first
Governor to set about organising this force, and in 1810 he
established a complete system of police for Sydney. The town
was divided into five districts with forty-five petty constables,
five district constables, one of whom acted as chief constable, an
assistant superintendent, and finally a superintendent of police.*
To this post was annexed a salary of £200 a year from the
Police Fund, and except for a short interval in 1820 it was held
throughout Macquarie’s governorship by D’Arcy Wentworth,
the chief surgeon and Treasurer of the Police Fund.t The
pay of the district constables consisted of £10 year, slop-cloth-
ing (continually in arrears), an allowance of spirits, a ration
and a half for themselves and rations for their families. The
petty constables received the same without the salary of £10.
In 1817 the district constables lost the rations for their fam-
ilies and received another 410 a year as compensation. The
country police received the same remuneration and were drawn
from the same class of men. Nearly all of them were convicts
or ex-convicts, and very few free men of decent character could
be persuaded to undertake the duties. The method of pay-
ment was thoroughly bad and degrading, and one of the greatest
difficulties in enforcing order and protecting property in the
1¥For fuller treatment of this subject of the position of “ emancipists” see
Chapter VII.
2 Wentworth, in evidence before Bigge, said that he himself had the whole
ower of appointing and dismissing constables. Perhaps he had the real power,
but he certainly had not the nominal power. See S.G., passim, The Governor
appoints or dismisses “ on the recommendation of” is the form used.
3G.G.O., October, 1810, and G.G.O., December, 1810. Number of petty
Repet il was increased to fifty in 1819, and to sixty-four in 1820. Bigge
4 Almost all the revenue raised in the Colony went into the Police Fund,
which was used for many purposes besides those of police. See later.
78 A COLONIAL AUTOCRACY.
Colony was due to the fact that the constables themselves were
not to be trusted.
The Police Regulations published on the Ist of January, 1811,
were of an exceedingly stringent character, but not more so than
the turbulent and peculiar population of Sydney required. Lord
Bathurst approved them but took exception to oneclause. His
objection was that “it gave power to a single magistrate to in-
flict corporal punishment on free men as well as on convicts.’”’*
Macquarie denied that it did so, adding “ No free man is ever
corporally punished by the sentence of the superintendent of
police or any single magistrate. Free men, whatever their
offence may be, are always brought before and tried by a Bench
of Magistrates whose sentences must be approved by me before
they are carried into execution.”? The line between the man
who had been and the man who ought to have been transported
was sometimes hard to draw. Governor King and Macquarie
each failed to do so on one occasion at least.*
Some important clauses of the Regulations were very imper-
fectly carried out. The registration of the places of abode of all
persons, free and convicts alike, at the superintendent’s office at
Sydney and at the magistrate’s office in the other districts was
difficult to enforce and allowed to fall into neglect. The regu-
lation would have required free men to submit themselves to the
inquiries of convict police officers. The chief constables too
were, for the most part, too illiterate to carry out the work.
Wentworth substituted a census taken by his assistant which
was altered from time to time as occasion arose.* It was very
difficult also to trace the movements of the convicts from one
master to another, a difficulty which was increased by the fact
that the escape of Government or settlers’ servants was made
known not to the police but to the superintendent of convicts,
who inserted a notice in the Gazette but made no other com-
munication of the fact.
The revenue of the Colony rested on a remarkably insecure
basis. In his evidence before the Committee on Transportation,
1 Pars. 5,6. This seems ee Sew interpretation. of the clause. See D.-
12, 23rd November, 1812. _ R.O.,
2D. I., 28th June, 1813. RO. MS.
3 See Wentworth’s Evidence, Appendix to Bigg’s Reports. R.O., MS.
4 Bigge’s Report, II. 5 Ibid,
THE ADMINISTRATIVE PROBLEM. 79
Bligh admitted that the Governor imposed “duties on trade and
on merchants and exports at his own pleasure”! But he added
**the Governor had the power of levying duties at his own will,
and was justified in that power by his orders from home”. The
trace of misgiving apparent in this answer was not without cause.
The assumption of power, though unquestioned until 1815 and
exercised by each Governor from 1794, was quite without legal
foundation. Yet the Governor’s Instructions assumed it, and
though not especially mentioned in his Commission it was taken
for granted by Secretaries of State and Governors alike. It
could not indeed have been conferred without an Act of Parlia-
ment, for New South Wales was not a Colony obtained by con-
quest; and even had it been originally conquered, Parliament
had already intervened in its affairs by the Act establishing
the Criminal Court in 1787.?
But the assumption of power went farther than the raising
of revenue. The Governor made laws “of a most important and
penal nature,” as well as imposing duties and taxes, though “ such
a power is not founded on any Act of Parliament nor provided
for by the Governor’s Commission.”* The Secretary of State
said in 1815 “ The power of the Governor to issue Government
and General Orders in the absence of all other authority, and the
necessity of obeying them, rests now on the same foundation on
which it has stood since the first formation ofthe Colony”.* In
that position the matter rested until 1817. °
The chief items of revenue were the duties on imports and
port dues. Of these Macquarie allocated three-fourths to the
Police Fund and one-fourth to the support of the Orphan
School. The other sources of revenue were fees and fines and
1 Evidence to C. on T., 1812.
287 Geo. III., cap. II. The law on the subject before 1810 may be found
in Cowper’s Reports of Cases in the King’s Bench, 1774 to 1778, pp. 204-214.
Campbell v. Hall, 1783. See opinion quoted there of Sir Clement Wearye and Sir
Philip Yorke in 1722, p. 211. See also Sir Samuel Romilly’s opinion ve Trinidad,
26th June, 1806, printed in Memoirs, published 1814, vol. il., p. 149.
3 Bent to Bathurst, 14th October, 1814. R.O., MS.
4 Bathurst to Bent, 11th December, 1815. C.O.,MS. In a memorandum by
Governor King, 2nd January, 1806 (H.R. VI., p. 1) he records that Macarthur told
him of the opinion of an English barrister that the local regulations were illegal.
Macarthur, however, did not name the barrister, and King gave no further attention
to the subject.
5 See Chapters VIII. and X.
6 After 1816 seven-eighths went to the Police Fund and one-eighth to the
Orphan School. The latter had been founded by Governor King.
80 A COLONIAL AUTOCRACY.
the payments for licences, There is no need to include quit-
rents, as none were collected before 1822. In 1811 the Police
Fund reached £10,000, and by 1820 it had risen to £25,884.
The objects for which the Fund was established were
specified as “gaol and police expenses of every description .. .
together with such other expenses as might necessarily be
incurred in ornamenting and improving the town of Sydney
and in constructing and repairing the quays, wharfs and bridges,
streets and roads within the limits thereof”.? But there was
in fact no charge which could be incurred which was not from
time to time defrayed out of the Police Fund.* It went, however,
but a little way in meeting the needs of the Colony. The burden
on the Imperial Treasury before 1817 was nearly £240,000 per
annum, and after that year it increased in consequence of the
increase in the number of convicts transported. In 1814, a
fair average year, the expenditure in round numbers was as
follows * :—
1. Transportation of convicts ; . £55,000
2. Food sent from England for the
convicts (salt pork, etc.) ; 23,000
3. Clothing, tools, stationery and jehar
manufactured goods sent from
England for the use of Government 31,000 ©
4. Expense of Marine Establishment
(vessels which went to and fro from
Van Diemen’s Land to Newcastle) 1,700°
. Expense of Military Establishment 20,000
. Expense of Civil Establishment ; 13,000
7. Bills drawn by the Governor, Com-
missioner, etc., for the purchase of
provisions, etc., for the use of the
Colony, and paid by the Treasury. 83,900
Total, £227,600.
Our
1 See Appendix to Bigge’s Reports. R.O., MS.
2 Wylde’s Evidence, Appendix to Bigge’ s Reports, R.O., MS. Wylde
quotes * ingaiaaal Order, 1810,
3 Thid. 4P.P., 1816. |
5 These are the figures belonging to 1813, as in 1814 there were some
exceptional expenses under this head,
THE ADMINISTRATIVE PROBLEM. 81
The Governors were expected to send to the Colonial Office
quarterly, or if that were impossible, yearly accounts of the ex-
penditure under the last head! By this means any financial
excesses or improper payments might be checked, for the
Treasury, when the bills were presented for payment, appealed
first for the advice of the Colonial Office. This was one of the
reasons why the irregularities of communication were con-
sidered so regrettable.? The Secretary of State in a despatch
of 1812 dealt with the whole financial position very severely.
“ Although,” he wrote, “bills have been presented for payment
dated the 11th March, 1811, I have received from you no in-
formation in regard to any payments which have been made in
the Colony subsequently to 30th September, 1810... . From
that period . . . notwithstanding the accounts you then trans-
mitted of the flourishing state of the Colony, the expenditure
has continued to increase.
“In giving my opinion to the Lords Commissioners of the
Treasury that the bills which had been presented for payment
should be accepted, I have been governed solely by a consider-
ation of the hardship which individuals would sustain and the
additional expense to which Government might be eventually
liable had they been protested.” ®
No Secretary of State was likely to go further than this.
Rebuke and reproach, and asa last resort perhaps recall, were the
only weapons of financial control so long as the Governor was
honest and the calls on the Treasury not absurdly extravagant.
“It is impossible,” wrote the Minister in the despatch just
quoted, ‘“‘for me to point out what expenses have been un-
necessarily incurred, or in the execution of what services re-
trenchments might have been made.” He could only enjoin
rigid economy in general terms, and urge that in undertaking
public work “your first object should be to make the colonial
revenue applicable to that part of the expenditure of the
Colony which now falls so heavily upon the Treasury of this
country”. Nor were such works to be commenced “ without
1D. 20, 4th May, 1812. Liverpool to Macquarie. R.O., MS. 2 Tbid..
3 Ibid. The despatch is signed by Lord Liverpool, then Secretary of State
for War and the Colonies, but was probably written by Robert Peel, then beginning
his illustrious career as Under-Secretary.
4D. 21, 5th May, 1812. R.O., MS.
6
30) A COLONIAL AUTOCRACY.
having the previous sanction of His Majesty’s Government for
their construction, or without being enabled to prove most clearly
and satisfactorily that the delay of reference would be productive
of serious injury to the public service.” !
With regard to the Governor's legislative powers, his right
to regulate the lives of the convicts was, of course, beyond ques-
tion. But the regulations issued from time to time by each
successive Governor and upheld by the Colonial Courts, dealing
with all subjects from illicit distilling to observance of the
Sabbath, touched all the inhabitants—free, freed, and in ser-
vitude. The claim to this right was based on the words of the
Governor’s Instructions? the needs of a penal settlement and
the status of a military Governor. The last claim had neither
validity nor logic. For though in name a “ military Governor”
he ruled through a civilian staff with a judicial establishment
appointed under Act of Parliament. The Criminal Court itself
with all its military appurtenances and its summary procedure
was a Court of Record and administered the law of England.
It was this law which the Judge-Advocate was sworn to ad-
minister, yet by his Commission he was brought under the
orders of the Governor.’ It was an impossible position. If the
Governor promulgated orders which were opposed to law, was
the Judge-Advocate to enforce them in the Court? Bent pro-
tested that he was bound by his oath not to do so—the Colonial
Office held that he was bound by his Commission to obey the
Governor. The magistrates might be placed in an equally
difficult dilemma. An instance occurred under Governor King
in 1806. He had reissued an Order of Governor Hunter’s and
enjoined the magistrates to enforce it more rigorously. The
Order, intended to put an end to illicit distilling, prescribed the
punishment of “banishment” for all free persons convicted of
the offence. A Bench of seven magistrates refused to pronounce
1D. 20, 4th May, 1812. R.O., MS. Shortly after this, Lord Bathurst and
Henry Goulburn replaced Liverpool and Peel at the Colonial Office. In financial
matters they were less exigent than their predecessors.
2 The terms in the Instructions were very general, contained in the duty “to
pursue such measures as are necessary,” for the peace and security of the Colony.
See H.R., VIL., p. 133, par. 2.
3 See Commission, H.R., VII., dated May, 1809.
4 See correspondence of Bent with Colonial Office, 1814 to 1815, R.O., MS.
See also Chapter VII.
{
THE ADMINISTRATIVE PROBLEM. 83
_ this sentence. The Governor demanded an explanation, and
they replied that they considered it their duty to enforce to the
utmost of their power the Order which “the executive power
has issued for the public weal, but at the same time they do not
think themselves vested with sufficient authority to send every
person out of the Colony for any disobedience of a colonial
order, which they conceive would be infringing the power of
the Governor ; and they further are of opinion that it is a matter
of great delicacy for them to pass any judgment on orders
issued by the executive authority ; that the power of the magis-
trates extends no further than finding the culprit generally
guilty of Governor Hunter's Order... leaving it to the
Governor to inflict the prescribed penalties”. 1
In other words “we think your Order is illegal and refuse
to take the responsibility of breaking the law”. To plead the
orders even of a military Governor would not have availed in
an English Court.
There was, however, a middle path which, more often than
not, remained open. So long as the Governor’s regulations
were within reasonable bounds, supplementing and not con-
flicting with the law, the necessities of the Colony formed a
sufficient justification for the colonial judges and magistrates,”
This was the view generally held in the settlement. An ad-
dress to Macquarie in 1812, for example, thanked him for “the
considerable approaches already made under your Excellency’s
Government, to model the Jaws that rule us after their revered
original, the blessings of which we sanguinely look forward to
your paternal efforts procuring us (in) all the plenitude we may
deserve”. ®
The Colonial Regulations took the form of Government and
General Orders or Proclamations. ‘ Atall times,’ wrote Bent,
“they emanate from the sole authority and will of the Governor,
and are made, revoked, altered or partially dispensed with as
that will directs.”* But the Governor sometimes required the
1Rusden, History of Australia, vol.i., p. 252. See also H.R., VL, p. 104,
Ist July, 1806.
2This was the view held by Judge-Advocate Wylde and Judge Field. See
Evidence of both in Appendix to Bigge’s Report. R.O., MS.
3S.G., 18th January, 1812.
4 Bent to Bathurst, 14th October, 1814. R,O., MS.
84 A COLONIAL AUTOCRACY.
help of his only law adviser, the Judge-Advocate, to ensure
legal accuracy in the phraseology of his regulations. Mac-
quarie claimed that when so called upon, the Judge-Advocate
had no option but to obey. Bent held that he was bound to
give advice, but that he might refuse to draw up any particular
order desired by the Governor if he considered it illegal, since
he might in such a case have to give judgment against it in the
Courts.!. Wylde held a similar opinion but gave way on the
Governor’s insistence.2 Orders and Proclamations were pub-
lished by insertion in the Sydney Gazette. As no Governor
had ever considered himself bound by the laws of his prede-
cessors, and no orderly record of them had ever been kept, Bent
found in 1811 that no one really knew what laws were in force,
and that many of them were quite inconsistent one with an-
other. He began to collect and revise them, but was hindered
by pressure of work, and in 1819 his successor, Wylde, was
similarly prevented from completing the task.*
The Gazette was under official superintendence and had
been published weekly from the time of its establishment in
1803.4 It contained much news from English papers, of war,
scandal and politics, as well as the chronicles of New South
Wales and Government notices. Before going to press the
whole contents were approved by the Governor’s Secretary
who was referred to as the “censor of the press”.° The price,
three shillings a month, was admittedly high, but the price of
paper was exorbitant. All Orders and Proclamations were
published on three successive Saturdays ® and as much publicity
as possible given to them. Probably they were posted in the
towns and townships. Sometimes the chaplains were ordered
to read them during service, an order disliked by several of
them and disobeyed by Marsden. He declared that such a
practice was “irregular and improper,’ and that the subjects
1 Bent to Colonial Office, 1811 to 1815, passim. R.O., MS.
2 Wylde’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
* Bent, see above. Bigge’s Report, II.
* Before 1810 the publication had been on two occasions discontinued for a
few weeks owing to lack of paper. The type was occasionally peculiar—capital
letters replacing worn-out small letters, etc.
5 He had, of course, no legal right to such a title.
6 The day on which the Gazette was published. In Bligh’s time it came
out on Sunday. Macquarie, who was a strict Sabbatarian, altered the day of
issue to Saturday.
THE ADMINISTRATIVE PROBLEM. 85
and their treatment were often quite unsuitable to a place of
worship."
It was natural that under this despotic Government, and
in a Colony peopled for the most part by outlaws, criticism of
those in authority should not be allowed. Petitions, Public
Meetings, Associations were all hedged round by restrictions,
But in that era of Tory reaction and the Six Acts, the colonial
population had remarkably little to complain of. They could
not complain, for example, when King in 1803 refused to allow
Sir Henry Brown Hayes, a convict who had been “in the line
of a gentleman,” to hold a Free Masons’ Lodge and initiate
new members. Nor was it surprising that when in spite of his
prohibition a meeting was held, he passed an “exemplary sen-
tence” on Hayes of hard labour at the settlement then just
about to be formed at Van Diemen’s Land.2, Two years after-
wards King conducted a curious campaign against petitions.
He prohibited the landing of a cargo of spirits. Thereupon
some settlers presented a petition praying that the prohibition
be removed. King refused the prayer of the petitioners and
summoned the magistrates to consider whether the signatures
had been properly obtained. The magistrates recommended
the “discharge of the delinquents” and quoted the Bill of
Rights. The petition they said had perhaps been irregular in
form but that was the result of ignorance only. King then
drew up regulations of the manner in which future petitions to
the Governor were to be presented.? Three magistrates were to
give their consent to the promotion. When the petition had
been signed by one person, its purport was to be submitted
to the Governor. He might then allow more signatures to be
obtained, and when the petition was finally presented would
“consider and decide on its propriety”. His object was to
prevent “seditious and ill-disposed persons going about getting
up petitions signed by the credulous and unwary for the most
1See Marsden to Bathurst, 1818. R.O., MS. The Orders often referred to
public-house licenses, price of spirituous liquors, the carrying of waddies by the
natives, etc. See Vale to Bathurst, 16th April, 1818. R.O., MS.
2See S.G., G.G.O., 17th May, 1803. It is surprising that later in the year
Hayes was still in Sydney and that so far as appears he never did go to Van Die-
men’s Land. A Masonic Lodge was afterwards formed in New South Wales, but
not by the convicts.
3 See for this episode Rusden, History of Australia, vol. i., p. 250.
86 A COLONIAL AUTOCRACY.
destructive purposes”. Petitions requiring one signature only +
were exempted altogether from these provisions. The penalties
were those “ provided on that behalf by the laws of England”. 2
These regulations appear to have remained in force up to
the time of and aiter Macquarie’s arrival. They embody in-
deed the whole attitude of the Government towards any form
of political activity in the colonists. Macquarie’s attention was
first directed to such matters by an association formed between
“ diverse Victuallers, Publicans and others” who combined to-
gether and “injuriously, with a view only to their own interests,
without due notice or just cause, altered the then subsisting
rate of exchange between the bills drawn for the public service
and the promissory notes issued by different individuals, known
by the name of currency, by means whereof great confusion
had been introduced into all private dealings and transactions”.
This form of association was to be prevented for the future and
for that purpose it had become “highly necessary to define
more specifically the regular form of assembling the inhabitants
of this territory ”.®
In accordance with the Proclamation issued, any meeting of
more than six persons was an unlawful assembly unless the
following regulations had been observed. First, a requisition
stating the purpose of the proposed meeting must be made to
the Provost-Marshal, signed by at least seven householders
resident in the district in which the meeting was to be held.
The Provost-Marshal, within twenty-four hours, if possible,
must submit the requisition to the Governor. If the latter con-
sented, the Provost-Marshal convened the meeting through the
medium of the Sydney Gazette stating its time, place and pur-
pose. This notice must be inserted at least five days before
the meeting, and the Provost-Marshal had to attend and pre-
side at it when it took place. The necessary powers were
given to Judges and Justices of the Peace to disperse unlawful
assemblies and to inflict fines and imprisonment on those in-
fringing the regulations. Any publican permitting the unlawful
assembly at his house would immediately forfeit his license,
lé.g., petitions for remissions of sentence. 2G.G.0., 8th June, 1805.
’ Proclamation, 27th November, 1813, S.G., drawn by Ellis Bent. See
Wylde’s Evidence in Appendix to Bigge’s Reports. R.O., MS.
THE ADMINISTRATIVE PROBLEM. 87
_ ipso facto, on summary conviction before one magistrate on the
oath of one credible witness, and even then would be liable to
_ proceedings in the Criminal Court. The Proclamation ended
with special provisions against unlawful combinations in restric-
tion of the currency.
The Governor thus exercised complete control over all
_ public discussion. No newspaper was printed except the official
Gazette; the Government owned the only printing-press, and no
meeting could take place without the Governor’s consent, nor
continue in session in the face of his prohibition. His official
representative occupied the chair at all meetings. In fact it
was the Governor who decided whether his Government should
be criticised, and when, and by whom. Thus unfavourable
criticism—which is healthy criticism—was choked and confined,
and dissatisfaction found its only outlet in “midnight cabals”
and factious resistance.
CHAPTER IV.
THE LIQUOR TRADE.
AUTHORITIES.—Despatches, etc., in Record and Colonial Offices. Sydney
Gazette. P.P., 1812, II.; 1819, VII.; 1822, XX.; 1822, X. Report of Trial
of Lieut.-Colonel Johnston.
“THE great objects of attention,” wrote Castlereagh to
Macquarie on the 14th May, 1809,' “are to improve the morals
of the colonists, to encourage marriage, to provide for education,
to prohibit the use of spirituous liquors, to increase the agricul-
ture and stock so as to ensure the certainty of a full supply to
the inhabitants under all circumstances.”
Each of these was important in itself—but by far the most
urgent was the question of the liquor trade, on which the whole
progress of the Colony, agricultural and moral, in no small
degree depended.? To prohibit the importation and “use” of
spirits altogether was a counsel of perfection which it would
have been utterly impossible to carry out. Nor was it possible
to prevent convicts being supplied with liquor, for there was no
outward sign, no distinctive dress which marked them off as
belonging to that class. Even if it had been made an offence
for publicans to serve them, assigned servants might still have
received liquor in lieu of wages from their masters.*
Putting aside therefore any form of direct prohibition, three
suggestions were made for regulating the liquor traffic.’ In
the first place it was suggested that importation should be free—
but subject to a high duty. Inthe second, that sale after impor-
tation should be by permit only. Thirdly, that all private barter
of spirits for corn or necessaries should be strictly prohibited.
1H.R., VII., p. 143. 2 See Introduction, Chapter I.
’Ifthe settlement had been made a “ prohibition area” the garrison would
have become mutinous and discontented.
4See Wentworth’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
5H.R., VII. See above.
(88)
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THE LIQUOR TRADE. 89
Against this evil system of barter, to begin with the third
suggestion, there was needed something more powerful than
prohibition, mightier even than the “strong personal laws” !
of the Governors. Had these sufficed, it would have been
brought to an end by Bligh. But this was very far from being
the case. Lieutenant Minchin of the New South Wales Corps,
who was a witness at Johnston’s trial in 1811, asserted that it
was a necessary custom owing to the lack of other currency,
that it had been sanctioned by every Governor except Bligh,
carried on by all descriptions of persons in the Colony, and still
continued. “You don’t mean,” exclaimed a member of the
court, “that it has continued without intermission?” “It
ceased for a short time,” replied Minchin, “but was begun again
by Governor Macquarie ; he saw the necessity of it, and suffered
it to go on; he himself made a purchase of land off me with
spirits.” ?
In April, 1811, the Governor made an agreement with
Nicholas Bayly, a gentleman-settler, in which one of the con-
ditions was, ‘“‘ That the Governor gives me 500 gallons of good
Bengal rum”.* Macquarie’s first Order on the subject was as
late as 1815, and strictly forbade the barter of spirits “for the
produce of the Colony or for manual labour”.* But the penalty
attached to disobedience was the indefinite one of incurring
“the displeasure of Government” and ceasing “to derive any
indulgence from it in future”. Wentworth said in 1819 “that he
had heard of settlers up the country paying in rum, but he
knew nothing of that practice among the civil and military
oficers”.° But although the Government had by that time
ceased to use the rum-currency, and perhaps the “ higher orders ”
of settlers had followed their lead, the practice of barter was
still general among small settlers, and many unlicensed dealers
bought spirit to exchange with them for pigs and wheat.° In
1 This phrase is used by Jones in his Evidence before C. on G., 1819.
2 See Report of Johnston’s Trial, Evidence of Lieutenant Minchin, p. 246. _
3 Bayly to Sir H. Bunbury, 8th December, 1817. Enclosure dated 1st April,
z811. R.O., MS.
4G.G.O., 19th August, 1815.
5 See Evidence in Appendix to Bigge’s Reports. R.O., MS. ;
®See Evidence of various convicts in Appendix to Bigge’s Reports in
R.O., MS.
go A COLONIAL AUTOCRACY.
fact the inducement to this kind of traffic was far too great to
be overcome by the mild methods of Macquarie’s Order.
Lord Castlereagh’s second proposal referred to the custom
already in force of allowing certain persons only to purchase
spirit in wholesale quantities. Their numbers were not so small
as to make the trade a close monopoly, though small enough to-
allow the Governor to control its distribution. A few months
after his arrival, however, Macquarie adopted a course which not.
only created a monopoly but closed the Colony to free importa-
tion for some years.
He found that there was great need for improved hospital
accommodation in Sydney. The building in use was little better
than a ruined shed, and yet the Government had to care for all
the sick convicts and many amongst the poorer class of settlers.
Macquarie was reluctant to place so heavy a charge as the
building of a hospital on the revenue at this early period of his.
governorship and listened willingly to any alternative proposal.
He accepted the one put before him by Simeon Lord, D’Arcy
Wentworth and Garnham Blaxcell. The two first were high in
his favour and had just been appointed on the Commission of
the Peace. Blaxcell was a typical colonial adventurer. He
had held many posts under the Government, knew the settle-
ment from one end to the other, and had had a hand in every
kind of colonial enterprise.
These three offered to build a hospital within three years.
ona plan approved by the Governor, receiving in return the
sole right of importing liquor into the Colony for general con-
sumption. The amount fixed upon was 15,000 gallons a year,
and this of course was exclusive of the supplies imported for
the garrison and for the private use of the civil and military
staff. The terms were accepted. The contract was signed on
the 6th November, 1810, and came into force at the beginning
of 1811. Macquarie had not referred to the project in his
despatch of the 27th November, 1810, and the Colonial Office
heard of it for the first time in 1812 when his despatch of 18th
October, 1811, reached England.
This long interval was productive of difficulty. Early in
1810 Macquarie had strongly recommended the opening of the
ports, saying “it would be good and sound policy to sanction
THE LIQUOR TRADE. or
the free importation of good spirits under a high duty of not
less than 3s. or 4s.a gallon.”! But he had added that he would
wait until he received further instructions from the Secretary
of State before carrying out this proposal.
The Secretary of State sent extracts from the despatch to
the Lords of the Committee of the Privy Council for Trade, and
was informed on the 7th March, 1812, that they concurred with
Macquarie’s views. At once several licenses were given to ex-
port cargoes of merchandise and spirits to New South Wales.”
These cargoes had already been despatched when the Colonial
Office heard of the hospital contract.* “Many objections,”
wrote Lord Bathurst, “might be urged to an engagement of
this nature, under any circumstances. But I am surprised that
you did not foresee the embarrassment which would inevitably
be occasioned in the execution of this contract by the adoption
of the suggestions contained in your despatch of the 30th April,
1810. . . . It must be left to your own discretion to take such
measures as may appear to you to be best calculated . . . todo
justice to the several parties whose interests are affected by the
arrangements which have been made in New South Wales and
in this country.” +
The Governor made the best he could of the difficulty he
had created by permitting the spirits to be landed and in-
demnifying the monopolists for this breach of contract by ex-
tending its duration for another twelve months. He justified
his conduct in originally making the agreement rather quaintly.
“When I recommended that measure” (of free importation) he
wrote, “I had no idea of the restriction being taken off by the
Government at home. I expected instructions from Your
Lordship, authorising me to open the Port here when I con-
ceived it best so to do. . . . Your Lordship will be pleased to
recollect that one half of that period” (of the monopoly) “ must
have nearly expired before I could expect to receive an answer
from Your Lordship, besides concluding that it would be left
to me, if permission was given, to make use of it as I saw best
and most conducive to the welfare of the Colony.” ®
1D. 30, 1810. Printed in H.R., VII., p. 335.
2D. 34, 19th May, 1812. Liverpool to Macquarie. R.O., MS.
3 Ibid. 4 Ibid
5 For further effects of the hospital contract see later in this chapter.
92 A COLONIAL AUTOCRACY.
In the despatch of April, 1810, he had strongly recommended
the establishment of a distillery. By this means a market
would be provided for the surplus grain of the Colony. Other-
wise there was not sufficient encouragement for the farmers.
When seasons were good and the crops heavy there was no
means of selling the surplus corn, the area of cultivation for
the next year was reduced and the food-supply in lean years
seriously threatened.!
The Committee on Transportation in 1812 adopted this
proposal. But they regarded it as an alternative to free im-
portation, and stated in their Report “that they are of the
opinion that an unlimited supply of spirits may be furnished
to the Colony in a manner much more conducive to its interests
than by a free importation”. They regretted “that the hos-
pital contract prevented the immediate establishment of a
distillery.”
Lord Bathurst refused to adopt the suggestion and stated
his views at large to Macquarie? “By a reference to Mr.
Campbell’s evidence,” * he wrote, “it will appear, and indeed you
must be aware from your own experience, that the Colony does
not produce more than sufficient for its own consumption, and
consequently that whatsoever proportion of the corn crop were
now applied to distillation must be withdrawn from the sub-
sistence of the inhabitants* . .. Whether the quality of the
spirit made in the Colony will be superior to that now imported
from Bengal or America is a point on which I possess no very
adequate means of deciding.® I confess myself in some degree
at a loss to comprehend the effect which the proposed measure
is intended to produce upon illicit distillation ; unless it is under-
stood that the distillation of spirits should henceforth be gener-
ally permitted without any restriction or limitation whatsoever ;
for if duties are to be imposed they will be met by the same
desire for evading them ; and if they are altogether withdrawn
1 See also Chapter V. 2D. 13, 23rd November, 1812. R.O., MS.
% Before C.on T. Mr. Robert Campbell, not the Governor’s Secretary, J. T.
Campbell.
* This is only partly true. The small encouragement to farmers kept the
area under cultivation at a low figure.
5 This was one of Macquarie’s arguments. H.R., VIL., p. 335. D., 30th April,
1810,
ee SO a re
THE LIQUOR TRADE, 93
there is too much reason to apprehend the consequences which
may result from the reduced price of an article, the injurious
effect of which upon the morals and health of the inhabitants
is only equalled by the avidity with which it is required.” He
concluded by asking the Governor to express an opinion on the
subject, a somewhat farcical request, since it was upon the
Governor’s opinion that the Committee had founded their
proposal which he was thus invited to criticise.
Macquarie reiterated his previous arguments, but it was not
until 1819 that the Colonial Office gave way. Even then they
had misgivings. Commissioner Bigge, who went to New South
Wales in that year, was instructed to inquire whether “ distill-
ation in the Colony could be so checked and controlled as to
prevent the indiscriminate and unrestrained dissemination of
ardent spirits throughout a population too much inclined already
to immoderate use of them, and too likely to be excited by the
use of them to acts of lawless violence. ” }
There was no doubt in Bigge’s mind as to the economic ad-
vantages to be expected from permission to distil, and in 1822
distilleries were established under very stringent regulations.?
The hospital contract expired on the 31st December, 1814,
and the building was completed shortly afterwards. Macquarie
always held that the contract had been very advantageous to
the Government, who had gained much and lost nothing by its
means. Thecontractors had paid duty on the spirits they im-
ported, and laying stress on this, and on the fact that there was
now a hospital of an imposing description to beautify the town
of Sydney, Macquarie neglected all other sides to the matter.
He overlooked, for example, the fact that the hospital was much
larger than was necessary, so much larger indeed that for some
years half of it was set aside and used as a court-house. Its
architecture, too, was of so ornate a description and so far beyond
the skill of the workmen that the building was already falling
into decay in 1820.2 However, the rum hospital, erected “ by such
a sacrifice of public morals and expediency,” * still forms part of
the Parliament House of New South Wales at the present day.®
1 Instructions to Bigge. P.P., XIV., 1823. 2 See Chapter V.
8 See Bigge’s Report, III. Also despatch to Bathurst, D. 9, 24th August, 1820,
R.0O., MS.
4 Thid. 54,.¢., the columns and portico.
94 A COLONIAL AUTOCRACY.
“ Public morals” were affected in several ways. There was
in the first place the impropriety of permitting an officer of the
Government already filling so many important posts as D’Arcy
Wentworth, to become a party to such a contract. There was
sufficient evidence to show that he reaped to the full the ad-
vantage placed in his hands. As Superintendent of Police his
influence was great both in regard to the licensing and conduct
of public houses. The four years during which the contract
lasted were generally regarded as those in which the licensed
houses were most disorderly. Wentworth would not agree that
their number was too great, replying to remonstrances that it
was good for trade and good for the Police Fund. Thirty-one
annual licenses were issued in 18 10, but in the following four years
the numbers were sixty, one hundred and seventeen, ninety-three
and one hundred and ten, numbers which were not reached again
in Macquarie’s time.”
. The amount of spirit which the contractors were allowed to
import was placed at 45,000 gallons or 15,000 gallons a year.
When the time of the contract was extended to four years the
amount was increased proportionately. It was only in 1812 that
any spirit but that assigned to the contractors was landed, and
the amount of this extra importation was 10,000 gallons, Leav-
ing this out, the total number of gallons imported during the
four years was 144,000 gallons.* One-third of this was probably
on Government account,‘ but even allowing for that the con-
tractors imported at least 40,000 gallons more than was allowed
to them in the original covenant. Macquarie seems to have
thought that because the Government received a greater sum in
duties by this means, the violation of the terms of the contract
was of no account. The profits of the monopoly were immense,
for spirit sold during its currency at 30s. the gallon was in 1815
selling at 17s.°
So soon as the hospital contract expired Macquarie issued
1 Evidence of Dr, Harris, See Appendix to Bigge’s Reports. R.O., MS. See
also evidence of H. Macarthur and others.
? Return in Appendix, Bigge’s Reports. R.O., MS.
® This is calculated on the returns of 1819 and 1820. In previous years there
is no separation made.
*See Return, Appendix to Bigge’s Reports, R.O., MS.
° Evidence of Lara. Appendix to Bigge’s Reports. R.O., MS.
THE LIQUOR TRADE. 95
an Order declaring the ports of New South Wales and Van Die-
men’s Land open for the importation of spirituous liquors as
well as all other merchandise, “subject, nevertheless, to such
duties as are now, or shall hereafter be laid upon them by the
authority of this Government”.! The duty on spirits was fixed
at 7s.agallon, It was levied on the quantity and not the strength,
and consequently merchants imported spirit from 20 to 30 per
cent. above London proof.? In 1818 the duty was raised to Ios.
a gallon. There are no means of calculating the amount of
liquor smuggled into the Colony, nor of deciding whether it in-
creased when'the duty was raised. Wentworth said it was very
great, and with untrustworthy constables and so high a tax it
is sure to have been considerable.’
From the year 1800 the retail trade in liquor had been
regulated by a licensing system similar to that of England.
Governor King was the first to deal with the subject, and his
Orders were dated 27th October, 1800. Unlicensed vending
was to be punished by a fine of £410 or two months’ hard
labour “on the hulk” for the first offence, and three months
for the second. In such cases a magistrate might issue war-
rants to the constables to search unlicensed houses and seize
any spirits which they found. Half of it was to go to the
informer and half to be sold for the benefit of the colonial
revenue.
Under this Order licenses were granted annually by the
Governor on the recommendation of the magistrates. The
licensee paid £3 and gave security himself in 420 and two
others in £10 each. No publican was allowed to sell liquor in
the forenoon or during the time of Divine service on Sunday,
and all public houses were cleared at the beating of “ tap-too”. °
The penalty for infringement of these regulations was depriva-
tion of the license and a fine of £5. Seamen, soldiers and con-
victs could not be given credit above 20s. A publican who
sued such a customer for any sum above this was non-suited
and had to pay treble charges.
1 Government Public Notice, 31st December, 1814.
2 Appendix to Bigge’s Report. R.O., MS.
3 Evidence, Appendix to Bigge’s Reports. R.O., MS.
4In 1810 there was no “ hulk” nor was there any trace of such a thing.
5 4,e., at g o'clock.
96 A COLONIAL AUTOCRACY.
In 1804 licenses for beer only were issued at a lower rate
than spirit licenses, but appeared to have been discontinued
before 1810.
Macquarie found that in spite of these regulations there
were numbers of unlicensed houses in Sydney, and a great
many more licensed ones than were at all necessary.1 Taverns
were found thickly clustered, especially in the wildest and
wickedest part of the town, known as “ The Rocks”. The spirits
sold, the Bengal and Jamaica rum, were of a particularly fiery
kind, though probably not as deleterious as the gin which had
wrought such havoc in England. Macquarie sought at once
to bring the trade within reasonable limits. The cost of the
license was raised to £20 and the number of houses reduced to
thirty-one for the whole settlement. Twenty only remained
in Sydney. The penalty for unlicensed vending was raised to
#20, half of which together with half the stock was to go to
the informer.”
The illicit trade continued, and probably the drastic reduc-
tion in the number of licenses tended to encourage it. In June
the Governor gave notice that he was ‘‘resolved to prosecute
such persons ” (the unlicensed publicans) “ with the utmost rigour
of the law, and to have them most severely punished for so
daring a breach of the Orders and Regulations of Govern-
ment.”* The gains of illicit dealing, however, far out-balanced
the fines imposed.
In the same year the question of beer licenses was again
brought forward. When the grant of separate licenses had
been discontinued those houses and those houses only which
were licensed for wine and spirit could retail beer. The reduc-
tion in their number curtailed the brewers’ market, and a re-
vival of beer licenses was suggested as profitable for them and
also for those publicans whose houses had been closed by the
reduction in the numbers of licenses. Some of the latter peti-
tioned the magistrates on the 22nd June, praying for licenses
to retail beer and ale. As they were “reputable housekeepers”
the Bench recommended nearly fifty of them to the Governor.*
1In 1809 there were tor unlicensed houses.
2G.G.0., 17th February, 1810. 3G.G.O., gth June, 1810.
4S.G., 23rd June, 1810.
THE LIQUOR TRADE. 97
A month later the Governor adopted their recommendation
and issued a General Order in which he explained what he
meant to do and why he meant to do it.!_ It had, he said, been
represented to him “that it would be a great accommodation to
the labouring people, and to the lower classes of the inhabitants
in general, to have plenty of good wholesome beer brewed for
their drinking and permitted to be retailed to them at a moder-
ate price; his Excellency the Governor in view to their con-
venience as well as to encourage the settlers . . . to grow
barley for this and other purposes, has been pleased to direct
licenses to be granted to fifty persons at Sydney to vend and
retail beer. . . .” The licensee was to pay 45 and give security
in £25 for himself and produce one surety in like sum, promise
to keep an orderly house and not to sell wine or spirits.
But there was an illicit trade in beer as well as spirits of
which the suppression had to be attempted. In December an
Order was issued imposing a fine of £20 on unlicensed vendors,
half to go to the informer.? Applications were at the same
time invited for four licenses in the country districts in order
that the advantages of “good wholesome beer” might be
enjoyed in all parts of the settlement.
In the following year a Proclamation dealt at large with the
retail liquor trade. The process for levying fines for unlicensed
vending was strengthened, but the magistrate was given power
to mitigate the penalty in any sum not less than 45.4 The
sworn testimony of one trustworthy witness was declared
sufficient evidence for a conviction, and the proceedings might
take place before a single magistrate. The prosecution must
be initiated within three months of the offence, and a
conviction disqualified a publican from receiving a license at
any future time. To sell in quantities of less than two gallons
was to retail, and any one therefore selling in such quantities
must have a license.» Payments by pawn or pledge were for-
bidden, and no sum of less than 20s. contracted at one time
would be recovered in the Courts.
1G.G.0O., 23rd June, 1810. 2 Ibid., 22nd December, 1810.
3 Proclamation, 30th March, 1811.
4In 1816 the penalty was reduced from £20 to £10 with an additional £5"
for every fresh offence. G.G.O., 27th January, 1816,
5In 1817 the limit was raised to five gallons.
7
. 9
; is
98 A COLONIAL AUTOCRACY.
The number of licenses was increased in 1811 and again in
1812, and all publicans were enjoined to keep “ decent and com-
fortable houses.” In 1813 there were ninety-three and in 1814
one hundred and ten, but in 1815 they were reduced to eighty-
five and remained at about that figure until 18202
A change was made in 1816 with reference to the beer trade.
All those who received wine and spirit licenses were compelled
to take out beer licenses also, and were bound under a penalty
of £10 to furnish it when called for. There were no longer to
be separate houses for the sale of beer and ale. As the number
of houses was slightly decreased the brewers made a great outcry,
and in accordance with truly British sentiment they carried
their point. The regulations were recalled and the Governor
granted twenty beer licenses for Sydney and twelve for the
other districts.*
Macquarie’s final attempt to close the unlicensed houses was
made in 1817. The amount of the fine was raised to £30 and
the whole was togo tothe informer. Conviction had to be sought
before a Bench of Magistrates however, and not as formerly be-
fore a single Justice of the Peace. Yet the offence continued
and convictions were remarkably few. Two reasons for this
were suggested to Bigge, one, that certain of the magistrates,
notably the Superintendent of Police at Sydney and the Resi-
dent Magistrate at Parramatta, sold spirits wholesale and did not
favour the prosecution of any of their customers. Bigge, how-
ever, came to the decision that although it was a mistake for any
magistrates to be interested in this trade, no such charges could
be supported. The other reason given for the failure of
prosecutions was that the witnesses were very seldom such as
could be relied upon. This certainly had something to do with
it, but the real cause lay in the fact that the punishment was not
sufficiently severe and that the Governor treated delinquents too
leniently. A conviction for unlicensed vending should have
been a disqualification for a future license. Macquarie, however,
did not invariably follow that course. In one instance a man
1 Public Notice, 25th January, 1812. 2 See above.
8 G.G.O., 27th January, 1816. It was hoped that this would encourage the ~
drinking of beer instead of spirits.
4G.G.0., 25th May, 1816. 5 Proclamation, 22nd February, 1817.
6 Bigge’s Report, II.
THE LIQUOR TRADE. 99
__ who had been successfully prosecuted for unlicensed vending
four times in two years was permitted to take a license in the
_ third year.’ It was obviously important that drinking should
_ not be encouraged by a multiplication of facilities, and that the
public houses should be decent and orderly. The issue of
_ licenses gave the Government considerable power in regulating
_ the number and conduct of these houses and it also brought in
_aconsiderable revenue.’ It is difficult to say what was under-
__ stood byan “orderly house”. Governor King forbade gambling
and drunkenness, probably with very little effect. Macquarie
laid stress on the house being “commodious” and fit for the
reception of travellers, and warned the publican not to allow
“low and profligate characters” to make it a resort or the centre
of disturbance. Nine o'clock was the closing hour for them all,
- but on “ The Rocks,” at least, the police made few efforts to en-
force this rule. To distinguish licensed from unlicensed houses
_ the former were ordered to hang signboards before their doors
and a list of these was published in the Gazette. The tavern
company was often riotous and the inn parlour the place of
brawls.4 The duty of the Government was to lessen these evils
_ by selecting suitable “housekeepers,” and by keeping them
strictly to the conditions under which the licenses were granted.
_ By no means could it have been easy to find amongst the
population of Sydney, licensees of undoubted propriety. But
Macquarie’s system had obvious faults. He reversed the former
_ custom by which the Governor granted licenses on the advice of
_ the magistrates, thus leaving the real power to them ; putting in
_ its place one by which the magistrates granted the licenses by
direction of the Governor. ‘“ .. . I have always understood,”
_ wrote Bent in 1815, “‘ that licenses to vend spirituous liquors has
1 Evidence in Appendix to Bigge’s Reports. R.O., MS.
2The revenue was from £1,400 to £2,000 annually. Macquarie laid great
_ stress on its importance. Thus in G.G.O., 7th August, 1813, in speaking of un-
_ licensed retailing, he said, “ Magistrates and other peace officers are called on to
exert themselves in detecting and punishing all such frauds on the revenue”.
t) 3 The police often allowed dances to take place in the licensed houses, during
__ which there were scenes ot great disorder.
i 4See G.G.O.’s 1810 to 1817, passim. The public houses were probably not
so bad as those in England, and especially those in London. ‘
(i 5 Bigge says Macquarie continued the old custom. See Report, II. This,
_ however, is a mistake. See G.G.O. of King in 1800 and the notices in Sydney
_ Gazette, which show that the system of 1800 continued until 1810, See also,
_ Bent’s letter quoted below.
100 A COLONIAL AUTOCRACY.
always been not only nominally but actually granted by the
magistrates at each district; and I think your Lordship will
agree with me... that such a system is most accordant to
the law of England and the dictates of reason. . . . The in-
fluence and patronage arising from this source is now wholly
engrossed by the Governor to the injury of the public . . . and
greatly to the diminution of the influence of the magistrates.” !
The procedure was settled by Macquarie in the Order of
1813.2, Applications for licenses or renewals were sent in the
form of memorials to the office of the Governor’s Secretary.
Those which were approved by the Governor were handed over
to the Bench of Magistrates, or rather a list of their names was
transmitted to them. The applicants attended the meeting of
the Bench with their sureties, paid over their fees and securities
and received their licenses. ‘‘I am sure,” wrote Bent, “your
Lordship will be surprised on hearing that this list was never
in any instance previously committed to me or to any of the
magistrates, nor was I ever consulted with regard to a single
person named in the list.”*
Every memorial had, according to the regulations, to be ac-
companied by certificates from the resident chaplain and magis-
trate of the district in which the applicant resided. After 1815
the Superintendent of Police was for this purpose the Resident
Magistrate of Sydney. But the Bench, who technically granted
the licenses, really acted as “the clerks of the Governor”. “And
I cannot but think,” said Bent, “that it would have been much
more delicate and less injurious to the credit of the magistrates,
as well as equally legal, if his Excellency had directed them to
have been made out and granted exclusively by his Secretary ”.*
The certificates of the magistrates and chaplains attached
to the memorial were to certify the applicants’ “ correct, orderly
and strictly moral conduct,” and each applicant was to possess
a good and commodious house. But the Governor frequently —
1 Bent to Bathurst, rst July, 1815. R.O., MS.
2G.G.O., 30th January, 1813.
% Bent, see above. From 1816 to 1820 the only magistrate who attended
the meeting of the Bench at which licenses were granted was Wentworth, and he
came in order—as Treasurer of the Police Fund—to receive the fees. See
Wylde’s Evidence, Appendix, Bigge’s Report. R.O., MS.
4 See above, 5G.G.O., 19th August, 1815.
THE LIQUOR TRADE. IOI
_ dispensed with these requirements, and even applicants to whom
the Superintendent had refused certificates obtained licenses
by the Governor's order.!_ Nor had the chaplain’s signature
_ always been attached to the successful memorials, In the case
of Sydney this laxity might well have been justified by the dic-
_ tates of common-sense, for the Rev. Mr. Cowper was inclined,
_ like many other clergymen, to regard attendance at church as
the final test of morality.2. At the same time the neglect of
_ their recommendations or refusals to recommend made the
_ Magistrates perfunctory in their duties, and to a large extent
accounts for the number of worthless persons to whom they
gave certificates. The combined opinion of the Bench would
have given far greater security than a testimonial signed by
an irresponsible magistrate and confirmed or set aside by the
_ Governor. It was impossible for the latter to “have individually
so many opportunities of becoming acquainted with the charac-
ters of the inhabitants as the magistrates, who have them more
_ immediately under their control”. In the few instances in
_ which the Bench did offer their opinion, Macquarie acted in op-
position to it. A license given in spite of their contrary advice
had later to be withdrawn,* while in another case his indepen-
dent mode of action led to a shameful abuse. “A man...
convicted of felony before His Majesty’s Court of Criminal
Jurisdiction, and sentenced to hard labour at the Coal River,
not only succeeded in obtaining his remission from that sentence,
but actually received and still has a license to keep a public
house, and this only a short time after he had received the
sentence of the Court.” ®
One regulation was rigorously adhered to. “No person,”
declared the General Order of 30th January, 1813, “ who is still
under sentence of the law as a convict, will receive a license,
neither are any constables, clerks or other persons in the service
of Government to be licensed as publicans”. However, the
disqualification did not extend to the free wives of male con-
victs or the free husbands of female convicts.’ Probably the
4 <4 Evidence of Assistant Superintendent of Police, Appendix to Bigge’s Reports.
; t Riley, C. on G., 1819. * Ibid.
4Tbid. Case of Mrs. Packer. 54.e., Newcastle.
6 Bent, rst July, 1815. R.O., MS. 7 Riley, C. on G., 1819.
102 A COLONIAL AUTOCRACY.
————t—*t
wives of “constables, clerks and other persons” were similarly
admitted to a share in this profitable trade.
The method of withdrawing licenses was open to objection
on grounds both of law and policy. Bent pointed out that the
magistrates had no power to act in the matter, but that the
license was withdrawn by the Governor “simply on the report
of the magistrates not stated to be made after an examination
on oath or any judicial examination whatever—and that the —
punishment is not to take place immediately but prospectively.
... As all persons taking out licenses pay to the Colonial
Fund .. . thesum of £20... I cannot but think that the
Governor in such measures has exercised a species of Criminal
Jurisdiction not only not granted to him by his Commission but
expressly given to the Court of Criminal Jurisdiction.”! The
fact of prospective deprivation was generally made known by
orders published in the Gazette,and these show not so much a
salutary severity as deplorable capriciousness. A few examples
suffice to illustrate this.
In September, 1812, Joseph Chitham, a publican of Pitt
Street, lost his license because it “clearly appeared ” that he had
been “in the habit of purchasing and vending a base kind of
spirits, clandestinely distilled, and that his conduct in other re-
spects had been highly reprehensible”.2 There is no reference
at all to any judicial proceedings upon which these opinions are
based. |
The case of Elizabeth Watson of York Street was more
curious, The following account appears in a Government and
General Order :—
“From the evidence lately brought forward on the trial of
Ormsby and Eleanor Irvine, on an indictment for the wilful
murder of Serjeant Robert Morrow, of His Majesty’s 73rd Regi-
ment, in a public house in York Street, Sydney, it appeared that
Michael Casey, the occupier of that house, did not by any means
exercise the authority which it was his duty to have done in his
own house to restrain those altercations which unhappily took
place and terminated in the death of a well-behaved and loyal
subject: And a license having been granted to that house, in
1 Bent, rst July, 1815. R.O., MS. 2G.G.O., rath September, 1812.
a re
NS Se
~ a
\
det etme gg ame
THE LIQUOR TRADE. 103
the name of Elizabeth Watson (resident therein), for the retail
of spirituous liquors and wines; and the conduct of the said
Michael Casey in the foregoing instance being highly culpable,
his Excellency the Governor is pleased to direct and order
that from the Ist day of August next ensuing, the license granted
to that house in the name of the said Elizabeth Watson, for the
retail of wine and spirits as aforesaid, shall cease and determine
and be held forfeited and cancelled ; and that no spirits or wine
shall be sold by retail or otherwise in that house, from and after
the said 1st day of August next, on pain of prosecution of the
offending party in the same degree as if no license as aforesaid
had ever been granted to the said house.” ?
Now in this trial nothing in the evidence proved particular
negligence on the part of Casey, and the license was not in his
name. It had not been proved, nor had any attempt been made
to prove, that the house was badly conducted or frequently the
scene of disorder. The deceased had certainly met his death
in the place, and it had been the outcome of a drunken brawl
in which the dead man had bornea part. But the evidence
had shown that his death was accidental and the prisoners had
not received capital sentences. The licensee herself had not
been called nor was she even referred to in the evidence, yet
she suffered quite as severely as the principals. Macquarie ap-
pears to have acted in her case without any recommendation
from magistrates or judge.”
He refused, on the other hand, to renew a license for a man
who kept a good house and was recommended by the Bench, on
the ground that he had signed a petition to Parliament which
Macquarie considered of a seditious nature.’
The whole effect of the Governor’s system was to lessen the
severity of the magistrates and cause them to leave to him the
responsibility and unpopularity of regulating the trade. It is
characteristic of the administration that from 1810 to 1820 there
is not one instance of the securities of the licensee being called
for. The requirement was treated as a mere formality, and it
1G.G.0., 9th July, 1814.
2 Elizabeth Watson may, of course, have lived with Casey, but there is no
evidence as to their connection.
3 Riley, C. on G., 1819.
104 A COLONIAL AUTOCRACY.
was the general custom for one publican to offer himself as
security for another!
In 1820 there was a complete revolution. For some time
Hannibal Macarthur and Judge-Advocate Wylde had been
urging Macquarie to revert to the English system, and relegate
the granting of licenses to the magistrates altogether. One
abuse on which they laid great stress was the frequency with
which retail shop-keepers and bakers were licensed to sell
spirits, thus giving the greatest encouragement to their
customers to stay in the shop drinking.2 Macquarie was
ready to meet their wishes, and when the time drew near at
which the licenses would be renewed, Wylde wrote a letter of
reminder. So far, the concession proposed was “to leave to the
magistrates convened for that purpose the discretion at least
of recommending to your Excellency in the first instance such
persons as would seem to them in full Bench most fit in respect
of general character or otherwise to obtain such indulgence—
even if the grant itself of the license, as in England, should not
yet be wholly left with the Bench”.* The Governor replied
that he intended to follow the old custom for one year more.
His reason was that he intended greatly to reduce the number
of licenses. Then having, as it were, put everything in order,
he would “gladly leave the matter in thg hands of the magis-
trates ”.*
Shortly afterwards a difficulty arose through the decision of
the chaplain at Sydney not to sign any of the memorials “on
grounds not exactly relevant to the general competency of those
persons to keep respectable houses of entertainment”.® The
Governor made up his mind to cut the knot by referring “the
several petitions to the knowledge and discretion of the Bench
of Magistrates, only desiring that the whole numbers to be
granted . . . shall not on any account exceed the number
1 Evidence of Assistant Superintendent of Police, Appendix, Bigge’s Reports.
R.O., MS.
? They seemed to think that the magistrates could put an end to this and
. that the Governor could not.
8’ Wylde to Macquarie, rst January, 1820, in Appendix, Bigge’s Report.
R.O., MS.
* Macquarie’s reply, 22nd January, 1820. See above.
5 Campbell (Governor’s Secretary) to Wentworth, rrth February, 1820, Ap-
pendix to Bigge’s Reports. R.O., MS.
THE LIQUOR TRADE. 105
: _ licensed for the last year ; and desirous that you will reject in zoto
_ all those persons whose names are now transmitted in a list
_ from the Governor, and who are ascertained to be unfit for
or unworthy of such indulgence”.! On receipt of this letter
_ Wentworth, who was at the time chairman of the Bench, wrote
_ to Judge-Advocate Wylde proposing that on this occasion the
latter should preside.’
Wylde acted upon the suggestion and laid down for the
_ assembled magistrates the principles of the English licensing
laws. In spite of Wentworth’s opposition they decided on
_ putting these principles into practice, with the result “that the
_ number of licenses was greatly reduced, some of the most
| respectable people did not obtain licenses, and those who had
purchased liquor and built houses in expectation of having
_ their licenses continued have suffered very great injury ”.*
| They inquired very thoroughly ‘ into the situations and trade
_ of the parties, the accommodations and the local wants of the
town of Sydney, and adopted the two licensing statutes 2 Geo.
II., cap. 28, and 21 Geo. II., cap. 37 as their guiding lights.
They declared very firmly that they would “exercise no further
_ power as to granting licenses for the ensuing year after that
2 .- aa Ly a 5
i Some of the former licensees and some new applicants were
_ apparently not fully aware of the new departure, and had not
sent in their applications in time. The Governor had frequently
given orders for the issue of licenses during the year, and they
relied on this. Several of them, to the number of fifteen, pre-
sented their memorials to the Judge-Advocate, who simply
quoted the law and refused to consider them. But with
_ Macquarie they were more successful. On the 4th March he
_ sent to the Bench orders directing that licenses be granted to
_ four of the applicants. Unfortunately the Judge-Advocate was
out of town. But there were license forms in blank signed by
1 Campbell (Governor’s Secretary) to Wentworth, 11th February, 1820, Ap-
_ pendix to Bigge’s Reports. R.O., MS.
2 He had only lately given up the chairmanship.
3 Wentworth’s Evidence to Bigge. See Appendix to Reports. R.O., MS.
by 4See J. A. Wylde to Wentworth, 7th March, 1810, Appendix. R.O., MS.
et 5 They met on the rgth February to grant the licenses. See J. A. Wylde to
Y Wentworth, 7th March, 1820, Appendix. R.O., MS.
106 A COLONIAL AUTOCRACY.
the Judge-Advocate at the office of the Clerk of the Peace, and
these were sent down to the Court House. The magistrates
thought Wylde had left them already signed for this purpose,,
and allowed them to be granted to the four publicans. When
Wylde heard of what had happened he wrote to Wentworth
explaining the mistake, and pointing out that such a course
would not be admissible in the future.!. He also sent a copy of
this letter to Macquarie, who replied in his very worst style.
“T return you my best thanks for informing me in this manner of
the law respecting licenses, which had you condescended to
have made me acquainted with sooner I should have been fully
disposed to have regulated my conduct by. But not knowing the.
law on this particular subject, and the persons who had subse-
quently to the Igth February applied for spirit licenses being
equally ignorant of it, I exercised my own judgment and what.
I considered my prerogative—agreeably to the customs and
usages observed and acted upon in this Colony for the last.
thirty-two years—in promising a few additional licenses for
the current year to persons under peculiar circumstances. .
These persons, therefore, to whom such promises have beer
made by me, of receiving spirit licenses for the present year,,
must receive them accordingly.”? The Judge-Advocate an-
swered shortly. In effect he said that the Governor had
handed over the matter to the magistrates, who had at their
meeting publicly stated their policy, and now the Governor was
taking the matter out of their hands again. “On the present.
occasion,” he concluded, “it is for your Excellency to determine
as to the obligation of promises made (as your Excellency sug-
gests) under an ignorance of the law—a plea, however, which.
cannot at all stand the applicants in stead”. ®
In accordance with this opinion, when the memorials came
before the Bench on the 11th March, 1820, an entry was made
in the Book of Proceedings that they did not consider it com-
petent for them to make for the ensuing year any additional
1 Wylde to Wentworth, 7th March, and to Macquarie, 1820, Appendix, Bigge’s:
Reports. R.O. See also Wentworth's and Wylde’s Evidence, Appendix, Bigge’s. Ss
Reports, MS.
5 bapa to Wylde, roth March, 1820, Appendix as above.
§ Wylde to Macquarie, roth March, 1820, as above.
THE LIQUOR TRADE. 107
grants for spirits or other licenses, and the statement was signed.
by those present, Wylde, Wentworth, Lord and Brooks.
Nevertheless two of the applicants did receive licenses,
though how they got them neither Bigge nor any one else
seemed able to discover.’
The magistrates in this first year reduced the number of
licensed houses from sixty to forty-one, and a new era of order
and strict regulation set in. As they had for many years com-
plained of Macquarie’s lax administration they naturally started
with vigorous severity, but probably settled down before long
into an easier pace.
It is impossible to calculate with absolute accuracy the
amount of liquor consumed in the Colony, or to compare the
conditions before and after 1810. The only evidence is that of
Lara, a decent publican of Parramatta, who declared that three
times as much liquor was drunk in his house after 1810 as had
been before.* It is probable that all the liquor imported at any
time would have easily sold, and that a steady supply, such as
was procured by the hospital contract and by opening the
ports in 1815, did not appreciably affect the amount of drunken-
ness, but did lessen the amount smuggled into the Colony, and
brought to an end the worst features of the rum traffic.
It is not even possible to find the exact quantity imported
after 1810; for only that which paid duty, and therefore no
supplies on Government account, were entered in the Naval
Officers’ books‘ before 1819. But the supplies for Government
may be reckoned on the basis of 1819 and 1820. The consump-
tion, so far as it can be ascertained from the amount imported,
can only fairly be reckoned over a number of years, for the im-
portations varied a great deal. Taking the four years of the
hospital contract, the consumption of imported spirit appears
to have been about 3°5 gallons per head of the whole population,
or 4°6 gallons per head of the adult population. From 1815 to
1820 it averaged 4°3 gallons for the whole and 5°6 gallons for
the adult population. Over the whole period the consumption
1 Appendix to Bigge’s Reports. R.O., MS. 2 Bigge’s Report, II.
8 Appendix to Bigge’s Reports. Evidence of Lara. R.O., MS.
4The spirit imported by the contractors paid duty, and was therefore entered
by them.
108 A COLONIAL AUTOCRACY.
must have been nearly 5 gallons per head, and the women prob-
ably drank as much as the men. This calculation, of course,
leaves out altogether the smuggled spirit and the beer and ale
brewed in the settlement.
In England the consumption of spirit doubled between
1807 and 1827, and the spirit licenses increased by 11,000.!
Nevertheless, the average amount consumed in 1830 was
only $ gallon per head.?
As the young Australians drank little,’ the remarkably large
consumption of liquor in New South Wales must be attributed
to the convicts. But in spite of this the death-rate was low,*
and crimes of violence were not so frequent in proportion to
the population as in England.® The clear sunlight, the fine
spaciousness of the new country had given strength, vigour and
hope to the thieves and pickpockets, the drunkards and profli-
gates, the sinned against and the sinning, whose presence made
the very name of Botany Bay a by-word.
1 Goulburn, Chancellor of Exchequer in 1830. Quoted in Webb’s History
of Licensing Laws, 1902, p. 113.
2 Twenty-eighth Report of Commissioners of Inland Revenue, 1885. Quoted
in Webb, see above, p. 109.
3 See Evidence, C.on T., 1812. Riley, C. on G., 1819. Bigge’s Reports,
passim. Macquarie’s Despatches, passim, etc.
4 The death-rate from 1810 to 1820 was about 20 per 1,000. This is low for
the period and considering the number of old men sent out. The figures are, how-
ever, very rough. The birth-rate—calculating on somewhat incomplete returns
which include only the children baptised—for the same period was nearly 30 per
1,000. Appendix, Bigge’s Reports. R.O., MS.
5 Wylde’s Evidence, Appendix, Bigge’s Reports. R.O., MS. From 1816 to
1820 (the only years for which returns are available) there were 100 cases of
eg on violence before the Criminal Court. See Appendix, Bigge’s Reports.
-O., MS.
CHAPTER V.
LAND, LABOUR AND COMMERCE,
AUTHORITIES.—Despatches, etc. (especially Appendix to Bigge’s Reports).
Record and Colonial Offices. Printed: Sydney Gazette. P.P., 1812, I1.; 1816,
XVIII; 1819, VII.; 1822, XX. ; 1823, X.
IN 1820, 356,845 acres of land had been granted by the
Crown in New South Wales! Macquarie was responsible for
grants amounting to 239,576 acres—the remaining 117,269 acres
having been alienated by his predecessors. Thus in the twenty
years before his arrival less than half as much land had been
lost to the Crown as was granted by Macquarie in ten years.
But the increase was fully justified by the growth of population
from 10,452 in 1810 to 24,939 in 1820, and, according to the
ideas of the time, he had shown great moderation. With regard
to the distribution of the land the returns of 1819 are found to
be more complete and more accurate than those of 1820. Re-
ferring, therefore, to the muster of 181g it appears that 337,114
acres were then held by settlers in the Colony, of which 145,054
acres belonged to free emigrants or native-born, and 192,060
acres to those who had been convicts and had become free by
pardon or servitude.? At this time* there were in the whole
population 2,804 persons (excluding children) who had never
been convicts, and 1,497 of these had been born in the Colony.
The whole adult population reached 19,232, so that the number
of men and women who had been transported and were still in
New South Wales was 16,428. The free population, hardly a
1 The figures are those in Appendix to Bigge’s Reports, R.O., MS., reduced by
one-twelfth in accordance with his statement as to their accuracy in Report III.
2 Thereturns (Appendix, Bigge’s Reports) give 1,502 free proprietors and 9,861
freed. But the wives and families of the proprietors appear to be counted—so that
these figures are quite misleading. There were in 1819, 794 free men, and 4,002
freed. A few ticket-of-leave men held land.
31819.
(109)
110 A COLONIAL AUTOCRACY.
fifth of the whole, held more than half the land. Naturally the
“emancipists” looked with jealousy on the free settlers, who
swallowed up vast estates, while they in return regarded the
“emancipists” and convicts in the light of labourers for their
benefit and resented their establishment upon the land. “ Both
parties,” as Bigge said, “look upon each other as intruders.” !
The “emancipists” did not owe all their land to the Govern-
ment. Nearly two-thirds had been acquired by purchase from
private individuals, a fact which illustrates the wealth they had
at their command as well as the extent to which Crown grants
changed hands.” But in spite of the ease with which land could
be obtained, or more likely because of it, agriculture made very
slow progress. In 1820 Oxley, the Surveyor-General, one of
the most cautious of men, declared that not one-eighth of the
people were occupied in farming, and he condemned unsparingly
the careless and indolent means of production pursued by the
majority of emancipists.®
What the Colony wanted, if its staple produce was to be found
in agriculture, was men trained to farming, or else with money
enough to employ those who were. The Colonial Office, how-
ever, long entertained a doubt whether New South Wales
should be treated as an agricultural or pastoral country, and
this doubt was reflected in their regulation of free emigration.
Before 1810 the number of emigrants had been so small
that each individual case had been treated on its own merits.
No general lines had been laid down, but the tendency was to
make large grants. In 1804, for example, Macarthur was
promised 10,000 acres (afterwards reduced to 5,000) in the Cow
Pastures, on the tacit understanding that he was to carry on
sheep-farming on a large scale.* Blaxland, who went out in
1806, engaged to employ a capital of £6,000 in the Colony, and
was to receive 3,000 acres. In his case there was no reference
to the use to be made of the land. Townson, in 1807, was
promised 2,000 acres, but owing to the overthrow of Bligh’s
government his grant was not made out until 1810, nor received
1 Bigge’s Report, I.
2 The figures in 1820 of land held by emancipists give (in round numbers)
35,000 acres by grant and 50,000 by purchase.
3 See Evidence in Appendix to Bigge’s Report, R.O., MS.
* Macarthur to Bathurst, 18th October, r82r. R.O., MS.
LAND, LABOUR AND COMMERCE. III
a
f
by him until May, 1811. He found in the grant certain condi-
_ tions of which he complained angrily, stating that in the original
_ compact in 1807 there had been no mention of conditions as to
capital, cultivation or residence.! Sir John Jamison, who had
_ some property left to him in New South Wales and went out in
_ 1814, asked for a grant of 2,500 acres. His request was refused,
_ and Goulburn wrote to him that such promises had been made
_ in the past “ when the inconvenience of improvident grants had
not been sufficiently known”. 2
These words give the key to the policy pursued with
tolerable consistency from 1812 until Bigge’s Report of 1823,
_ a policy to which Macquarie fully assented.* “Large grants
_ of land to individuals,” wrote Goulburn in 1820, “have been
the bane of all our Colonies, and it has been the main object
of Lord Bathurst’s administration to prevent the extension of
_ this evil by every means in his power.”
From 1810 onwards no.acreage was specified in any order
for land given by the Colonial Office, but settlers were furnished
with letters to the Governor from the Secretary or Under-Secre-
tary of State directing him to grant them land in amounts
proportionate to the capital of which they could show them-
selves to be possessed. The area and location of a grant was
_ thus placed within the Governor's discretion. His Commission
_ restricted the former to 2,000 acres, unless special recommenda-
_ tion were transmitted to the Secretary of State. The Colonial
Office was probably not aware how often Macquarie overstepped
these limits without making any reference to the subject in his
despatches.®
In 1812 the following circular letter was drawn up for the
information of applicants :—
“Mr. Peel is directed by Lord Liverpool to acquaint .. .
1 Townson, enclosure to letter of Wilberforce to C.O., roth April, 1817. R.O.,
MS.
2 Goulburn, Under-Secretary of State to Jamison, 3rd January, 1814. C.O.,
Ss
3D., 30th April, 1810. H.R., VII., p. 335.
4 Goulburn to the Lord-Register of Scotland, rst December, 1820. R.O., MS.
He mentions 1,500 acres as too large a grant to be given to one man. ;
! 5 Jamison, who only received a grant of 1,500 instead of 2,000 acres, gives five
instances of grants of 3,000 and four of 2,000 acres each. No special representations
had been made of any of these. Letter to C.O., roth July, 1819, R.O., MS.
112 A COLONIAL AUTOCRACY.
in answer to his application for permission to proceed to New
South Wales, that no persons are allowed to go out as free
settlers to that Colony, unless they can prove themselves to be
possessed of sufficient property to establish themselves there
without the assistance of Government, and who can produce
the most satisfactory testimonials and recommendations from
persons of known respectability.” *
Free passages on convict transports were granted to suitable
emigrants.
In 1813 there were twenty-nine applications for permission
to go to New South Wales. Ten of these were accepted, six-
teen refused, and'to the remaining three no answers appear to
have been given. From the correspondence in this and other
years one or other out of four qualifications seem to have
always been necessary. They were (1) a capital of at least
4400; (2) references as to character; (3) friends or relatives
in the Colony who could provide the applicants with a home or
with employment ;? (4) influential friends in England. There
was not much patronage to dispense in regard to offices in
New South Wales, but a gift of land was valuable, and there
were many applications from political allies urging the claims
of relations or dependents. Such men were not usually the
best of emigrants * and occasionally the Colonial Office refused
to pass them altogether.* But Macquarie had already reason
to complain in 1812 that it was “becoming almost a constant
practice for persons who wish to get rid of some troublesome
connections, to obtain permission from the Secretary of State’s
Office for their being allowed to come out here”.®
1See Appendix 36, C. on T., 1812.
2 An “ emancipist,” e.g., wrote to his wife, ‘‘ with the affection of a friend and
the sincerity of a husband,” urging her to join him in Sydney. R.O., MS.
% They were often bad Government servants too. Davey, e.g., who was a
very expensive failure as Lieutenant-Governor of Van Diemen’s Land, was forced —
on Lord Bathurst by Lord Harrowby. See Correspondence. R.O., MS.
4They refused one man who had lost all his money on the race-course and
whose friends wished to give him a fresh start. They also declined to assist in
sending out a young man whose father deplored that the Grand Jury, “ out of
mistaken clemency,” had thrown out a bill for theft against him. The father had —
hoped that his son would have been safely transported and England well rid of —
him. R.O., MS,
5D. 6, 17th November, 1812. R.O., MS. He thought too much attention
was paid to friends in England. ‘Mr. Lord,” he wrote in 1813, ‘‘ thinks, because
he happens to have a wealthy brother who is a Member of Parliament, he ought
LAND, LABOUR AND COMMERCE. 113
He was indeed constantly impressing upon Ministers that
gentlemen-settlers, encouraged by “extraordinary concessions,”
did not further the Colony’s progress in agriculture, and that
they were the most discontented, unreasonable and troublesome
persons in the whole country.!. Macquarie firmly believed
that the best settlers were the emancipated convicts, and he put
this view forward so often and so urgently that the Colonial
Office naturally accepted it. But English sentiment could not
allow them to submit without misgiving to the whole Colony
being turned into a penal settlement, and in various ways free
emigration was continued.
In 1814 the custom was still followed of placing new settlers
“on the stores” and providing them with convict servants, also
“on the stores,” for eighteen months. Macquarie was urgent for
some reduction in this, and readily agreed to Lord Bathurst’s pro-
posal to reduce the time to six months.? But when the latter
suggested in 1816 doing away with the indulgence altogether,
Macquarie demurred, and although in the following year he ad-
mitted that there was no longer any need to put free settlers on
the stores, he took no step in that direction. The difficulty was
that many of the “gentlemen-settlers,” or settlers of the “ first
class,” came out so miserably poor that in the absence of Govern-
ment assistance they would have starved. But before 1817 the
Colonial Office had much relaxed their regulations. In 1814
they had given up the practice of granting free passages, largely
because they found that many emigrants who pleaded the costli-
to receive whatever he asks for.”” D.1, 28th June, 1813. R.O., MS. Lord (Lieu-
tenant Edward Lord of Van Diemen’s Land) did receive an extra grant through his
brother’s intercession a little later.
The more suitable type of emigrant was the one thus described “. . . he
would be everywhere and under any Government a peaceful subject. I believe
he has no taste whatever for politics, and a natural dislike . . . for all those dis-
cussions which are so common, so bitter and so calculated to alienate the mind
from the Government and introduce malevolent feelings.” See Letter to C.O.,
1821. MS., R.O.
1D. 8, 17th November, 1812. MS., R.O. The persons to whom Macquarie
refers are mostly those who came out in Bligh’s time with promises from the
Secretary of State, which for one reason and another were never fully carried out.
But Macquarie’s opinion of ‘“‘ gentlemen-settlers” never materially altered. _
? Bathurst to Macquarie, D. 4, 3rd February, 1814. C.O., MS., and Macquarie’s
reply, D., 7th October, 1814. R.O., MS. Also G.G.O., 28th December, 1816.
Reduction of time to six months then first put in force.
3D. 3, 31st March, 1817. R.O., MS. Hewished emancipists still to have the
six months’ indulgence. In 1821 all settlers, emancipists and free, were still allowed
to be six months on the stores.
8
114 A COLONIAL AUTOCRACY.
ness of the voyage returned whenever they found their private
business required it without suffering any severe hardship. On
rare occasions passengers were still permitted to make the voyage
on transport vessels, but they had to pay for their own provisions,
which was then no small item of expense.!. In 1815 emigrants
were openly discouraged, doubtless owing to Macquarie’s re-
presentations, and emigration to the North American Colonies
suggested in place of New South Wales. In 1816 the Govern-
ment removed all restrictions on emigration, allowing any persons
to go to New South Wales on private vessels without further ques-
tion, but did not in all cases give them letters to the Governor
supporting their requests for land.2 The consequence was that
in 1816 many settlers arrived in New South Wales without
letters to the Governor, who was in some doubt what to do with
them. Several had no means of maintaining themselves, and
one was a Methodist preacher, or, as Macquarie said, a sectary,
and, the Governor thought, unsuitable to such a Colony.’
He therefore proposed “ that instructions should forthwith be
given by His Majesty’s Government to the Commissioners of the
Customs (more particularly at all the out-ports) never to permit
any person whatever, whether male or female, to embark or sail
in any private trading-ships or vessels bound for this Colony, un-
less they produce properly authenticated passports from your
Lordship’s office, authorising them to come to this Colony and
specifying in what capacity.”’ *
This step was not taken, for emigration, which had during
the war been anxiously restrained, was now eagerly desired.°
In 1818 Macquarie again urged that no poor settlers, but
only monied men of respectability, should be sent out. The
Colony did not need “decayed adventurers” who as soon as
they took possession of their farms sought to sell them and en-
gaged in objectionable pursuits, keeping public houses, hawking
1See C.O. Domes. Corresp., 1814. MS.
2C.0O. Domes. Corresp., 21st August, 1816. MS.
3“* We require regular and pious clergymen of the Church of England, and
not sectaries, for a new and rising Colony like this.’’ D. 7, 1816. R.O., MS.
4D. 7, 1816. R.O., MS.
5 Becket, ¢.g., Under-Secretary at the Home Office, wrote to Goulburn in
1820: ‘*Can you not tempt some of our superabundant population to go to New
South Wales ?” and an official at the Treasury wrote: “ Is there no way for a man
to get there but by stealing ?’’ R.O., MS., 1820. There are numbers of letters in
which the need of emigration is taken for granted and the means discussed,
LAND, LABOUR AND COMMERCE. 115
_and the like.! He thought an emigrant should have at least
_ £500, and so be able to take “six or eight male convicts off the
store,’ and reduce the expenses of the Colony.
The stream of emigration, good and bad, was very slow. In
the four or five years before 1818 Riley could not remember that
more than twenty settlers had arrived. Many of these knew
nothing of farming, and if they stayed on their land had a hard
struggle to make a living after the six months for which they
_ were “on the stores” had elapsed. If there was any delay in
getting the land the six months’ indulgence counted for nothing
_ at all.2 There was an effort made to prevent this from occur-
ring in 1817, but it does not appear to have been enforced.’
hi In 1819, the Secretary of State began to advertise New
| South Wales as a good place for emigration. A short note in
_ the Gentleman's Magazine reported his intention to encourage
free settlement there, and stated that emigrants should be
_ persons “ possessing considerable science, activity, integrity and
_ property”. Such “alone could redeem the character of the
Colony and make it a fit residence for civilised man,” and “en-
_ able it to become an assistance instead of a burden to the mother
country ”’.®
| The way in which emigration was encouraged was simply
by making it easier to obtain grants. But the increase in the
number of settlers in 1819 and 1820 was remarkable. A mer-
chant ship from Leith took out seventy passengers early in 1820,
_ and as many more were expected to leave the same port in
June. This sudden influx piled up great arrears of work in the
_ Surveyor’s office, and Macquarie had much difficulty in finding
1D. 8, 16th May, 1818. R.O., MS.
f 2 Riley and Jones, Evidence to C. on G., 1819. Riley probably refers only to
_ emigrants who had some property or standing, not to the many labourers and
__ artisans who were for the most part the husbands of convicts.
___ 8 Riley makes no mention of it. It was an Order of the 24th May, 1817.
<] “ The public will take notice that persons seeking to be put on the stores and to
_ obtain other indulgences by virtue of their having obtained locations or promises
ie of grants of land will not be considered as having any claim thereto until they
_ Shall have taken out their grant, cleared a portion of the lands assigned to them,
__ and built a dwelling-house thereon ; and none of the accustomed indulgences will
__ be extended in future unless where a full and complete compliance has been
_ rendered to the present rule on that head.” See later in this chapter.
Ue 4It became a more frequent subject of reference in the English newspapers
_ generally at about this time.
5 Gentleman’s Magazine, February, 1819, p. 175.
116 A COLONIAL AUTOCRACY.
land for the newcomers and the growing numbers of emancipists.
One numerous class of settlers whom he much disliked were —
discharged soldiers who had served in the Colony, and were per- —
mitted the usual indulgences by the Secretary of State. Mac- —
quarie characterised them in the lump as “lazy, dissipated, —
turbulent and discontented”. These oid soldiers were allowed
grants of land without having any capital at all, but other —
emigrants had to be possessed of a capital of £400 or £500. ©
However, the Colonial Office did not inquire very particularly
into its existence, and Macquarie often found that it was —
“fictitious”. In many cases the settler brought goods on credit,
and his “capital” was simply his expectation of profit on the
adventure. In order to find out more certainly what was the
real amount of an emigrant’s resources Macquarie adopted the ~
system of requiring any one he suspected of exaggeration or —
fraud to make an affidavit of the exact value of his property —
and of the uses to which it was to be turned.? |
By 1821 the majority of emigrants were going to Van Die-
men’s Land instead of New South Wales. This change was
due in part to the favourable reports of the island colony cir- —
culating in England, and in part to the fact that all the land
within one hundred miles of Sydney had already been granted.8
Since Macquarie’s arrival he had opened for settlement the dis-
trict of Airds, near Sydney, in 1810, and in 1816 the plains of
Bathurst, one hundred and forty miles away over the Blue
Mountains. Port Jervis would have been settled in 1818, but
that the military strength in Sydney was too weak to allow of
a detachment being sent thither. Illawarra and Emu Island*
had been opened for selection in 1819, and by 1821, 20,550 acres
had been granted there. There was, however, one tract of land
within easy distance of Sydney to which only two settlers had
access. This was the famous Cow Pasture country where Mac-
arthur and his friend Davidson had their estates long before
Macquarie’s arrival. Over the rest of the pastures the wild
cattle roamed at will. The history of this herd is both quaint
and interesting. When Phillip arrived in 1788 he brought with
1D. 19, 22nd August, 1820. R.O., MS.
2 D. 32, 28th November, 1821. R.O., MS.
3 Ibid. 4 This was a tract of land in the interior.
a ee ge
i LAND, LABOUR AND COMMERCE. 117
him a few cattle from England. Almost the whole herd!
_ escaped from a careless herdsman and were given up for lost.
_ But a few years afterwards they were discovered already greatly
_ multiplied in the rich pasture land beyond Parramatta. Here
_ they remained, and when Macquarie made a tour of the country
in 1811 he reckoned their number at several thousands. Asin
_ theory they belonged to the Government, great efforts were
_ made to preserve them,’ but they were a standing menace to
_ security, for the pastures made a fine hiding-place for evildoers
and the herds provided a constant temptation to cattle-stealing.
Stringent regulations were made forbidding any one to cross
the river which formed their eastern boundary, and killing or
stealing the wild cattle was made a felony without benefit of
| _ clergy. No one could go into the pastures without a pass from
the Governor except, of course, Macarthur, Davidson and their
families, friends and servants. The regulations were so stringent
that they were very reluctantly enforced, and the preservation
_ of the cattle became altogether too troublesome. A determined
effort was made to tame as many as possible and to shoot the
_ rest, using the skins and carcases. Macarthur was eager to
assist in getting rid of them, for they were a temptation to his
_ servants and a danger to hiscrops, Finally in 1819 Macquarie
decided to incorporate as many as he could with the tame
Government herds during the next twelve months and then
open the whole area to settlement.* In 1820 he had gathered
in about 320, but he delayed making any grants in the Cow
Pastures, and by the end of 1821 it was still a project and
_ nothing more.®
Besides the settlers from England and those who had been
transported, there were the native-born colonists whose demands
for land had to be satisfied. This class were indeed at some
disadvantage, for the convicts on regaining their freedom hada
14.¢., about five or six head! ery
2 It was expected that they might in time spread over the whole continent.
Many strayed cattle belonging to settlers mixed with the original stock, but the
original breed remained easily recognisable, and on this ground the Government
claim the whole number.
3 See enclosure to D. 18, 4th April, 1827. R.O., MS.
4D. 20, 24th March, 1819. R.O., MS.
5 See Macarthur to Bigge, Appendix to Reports, 8th October, 1811. R.O.,
MS.
118 A COLONIAL AUTOCRACY.
certain right to a grant! and the settlers from England had the
support of the Secretary of State, while the native-born had
only their own unaided merits. Bigge thought that these young
people had been treated with neglect, especially those who were
the children of convicts. He suggested that the same capital
need not be required from them as from immigrants, and that
they might receive small grants of land with greater generosity.”
In general, land was given to any one who asked for it and who
had the means of cultivating and stocking it. But the Governor
had complete, unfettered and unquestioned power to refuse such
a request without further explanation. Under these circum-
stances some obtained land very easily while others had to wait
for it. Occasionally old settlers received new grants and with
them the indulgences of new settlers ; but though, on the face of
it, this seemed a corrupt practice, Bigge, who inquired into it,
decided that it had only been permitted in cases of hardship
where the settler had suffered some unexpected or overwhelm-
ing misfortune.*
The failure to increase in any great degree the agricultural
output of the Colony is obvious from the figures alone. While
Macquarie was writing vague but favourable accounts of progress,
the returns of the General Musters were telling a tale of agri-
cultural stagnation. In 1810, 21,000 acres had been cleared, and
7,500 acres had been under cultivation. In the five years
which followed some progress was made, for in 1815, 36,700
acres were returned as cleared and 19,000 under cultivation ;
and the progress is the greater because the population had
altered very little.6 But between 1815 and 1820 the popula-
1 See Governor’s Instructions, H.R., VII. The “right” was, of course, not
a legal right, but it was a kind of moral one.
2 Bigge’s Report, III. Bigge also suggested the foundation of a school of
agriculture where youths of this class especially might learn practical farming
at Government expense.
Macquarie refused altogether to give grants to single women. A Miss
Walker, a woman of some fortune, asked for one and received the answer that,
‘* according to the regulations laid down,” the Governor could not give grants to
ladies. See Correspondence with Bigge, 19th January, 1821. R.O., MS. Ap-
pendix to Bigge’s Reports.
% This was recognised by the Colonial Office, who seldom took up any settler’s
complaint.
4 Bigge, Report III.
5 The figures are given in round numbers. In 1810 the population was
10,452, in 1815 it was 12,911.
—
he
7
A
Se
LAND, LABOUR AND COMMERCE. 119
_ tion nearly doubled. Nevertheless in 1820 the acreage under
crop was only 31,000 and the area cleared 55,000.!
The agricultural future of the Colony was therefore not re-
_ garded as hopeful. It was suggested in 1819 that Van Diemen’s
Land would become the great wheat-producing centre, supplying
New South Wales as well as herself, and that New South Wales
would be to her as Ireland then was to England.? Yet it had
already been found from experience that there was no product
- of the Temperate Zone which could not be cultivated with
success in New South Wales.? The profound discouragement
of the colonists was not therefore based upon any particular
vagaries of climate. The leading settlers all gave three reasons,
the ignorance and indolence of the small proprietors, the re-
stricted market, and the inefficiency of labour.
‘The worst of the small proprietors were the emancipists, who
were totally unused to farming, and cropped their land contin-
uously until it reached the stage of exhaustion, and then sold
it for what it would fetch. Macquarie, who always wrote as
though he held a brief for the emancipists, blinded himself to
the fact that the majority of them would not farm and did not
care to learn to do so. They took all they could out of the
land in as short a time as possible, and returned with their profits
to the delights and dissipations of the town.
The need of a wider market for grain was a more serious
trouble. An attempt to export flour to the Cape of Good Hope
in 1815 proved a failure and was not repeated. A\ll distillation
being forbidden, the demand of the people for food alone regu-
lated the corn supply. The Government was the greatest buyer
1 The following table may describe the position more clearly :—
1788-1810, 21,000 acres cleared.
7,500 acres under crop.
Population in 1810, 10,452.
1810-1815, 17,500 acres cleared.
II,500 acres under crop.
Population in 1815, 12,911.
1816-1820, 18,300 acres cleared.
12,000 acres under crop.
Population in 1820, 23,939-
Figures for 1820 are slightly over-stated. See Bigge, III. Appendix, Bigge’s
Reports. R.O., MS.
2 Riley, C. on G., 1819. :
3 Ibid., 1819. He gives a long list of successful experiments.
|
|
.
1|
|
120 A COLONIAL AUTOCRACY.
and consequently the farmers were at the mercy of the Gover-
nor’s regulations. In 1810 the Government had given 3,630
weekly rations, and in 1819 the number had increased to 7,292,
z.e., the Government which victualled 34 per cent. of the popula-
tion in 1810, victualled 28 per cent. in 1819. In the latter year
the ration consisted of seven pounds of meat and seven pounds
of wheat a week, a slight increase in the ration of earlier years."
The Government did not go into the market and buy wheat
at a competitive price, nor did it call for tenders. It simply
fixed a price per bushel and opened the Government stores at
certain times and allowed the settlers to bring in their wheat in
the amount required. In 1813 the price fixed by Macquarie was
eight shillings a bushel, which he considered would “repay the
expense of labour and allow a reasonable profit”. In 1814 he
raised it to ten shillings per bushel. “The principal farmers,”
he wrote, “all acknowledge that ten shillings per bushel for
wheat is a fair liberal price and that it allows them a handsome
profit. Yet in scarce and unfavourable seasons these same
persons will not sell their wheat to the Government under fifteen
or sixteen shillings, and they have repeatedly * even raised the
price on Government to twenty shillings per bushel ”.*
This puts the real ground of the farmer’s complaint in a
nutshell, and the Treasury suggested to Lord Bathurst in 1816
that the stores should be supplied by tender at a competitive
price. The Deputy-Commissary in New South Wales had
favoured this alteration, pointing out that the fixing of a low
price in times of scarcity made it impossible to get all the grain
required, while in years of plenty the Government paid too
much. Macquarie, however, thought the fixed price necessary
to afford protection to the poorer settlers,’ and gave no oppor-
tunity or temptation to the rich to buy up and engross the corn.
On one occasion in 1814 “ there was an artificial scarcity created
1 This was the ration for prisoners, and was less than the ration to Govern-
ment officials and gentlemen-settlers.
2D, 1, 28th June, 1813. R.O., MS.
8 This is a mere rhetorical flourish. It had happened twice only.
4D. 40, r2th December, 1718. R.O., MS.
5Enclosure. Treasury to C.O. R.O., MS.
6 D, 3, 31st March, 1817. R.O., MS. Macquarie suggested that the system
of supplying by tender might be safely introduced by the end of 1818, but let the
matter rest and made no such change when the time arrived.
.
|
|
LAND, LABOUR AND COMMERCE. 121
and industriously circulated by a few capricious and wealthy
settlers on the plea of the unproductiveness of the three past
harvests. On this... taking place I called on the grain
_ growers to give in tenders for supplying the King’s stores—on
_ which the Government was compelled to pay as high as fifteen
_ shillings per bushel for the greater part . . . although after-
_ wards it was proved that there was more than a sufficient
_ supply of wheat in the Colony at that moment for maintaining
_ the whole of the population.” !
; That was the way in which the matter presented itself to
_ Macquarie, but it takes on a rather different light when the
| whole of the facts are laid bare. In 1813 the harvest was so
| bountiful that in Macquarie’s words it could have supplied twice
| the population, but in consequence of the restricted demand the
_ greater part of it was wasted. The Government bought what
_ they required at eight shillings a bushel, and much of what was
left, instead of being bought at a low price and stored against
a bad season, was thrown to the pigs and cattle and treated as
| valueless. Under any circumstances the position would have
_ been discouraging, but on this occasion there were specially
' disastrous features. In 1812 there had been a scarcity, and
| Macquarie had imported from Bengal a shipment of corn at
| eight shillings the bushel which arrived in 1813. Thus even
the Government made a very small demand upon the settlers ;
_ and as the harvest was so plentiful, prices in the open market
fell as low as three shillings and sixpence a bushel? In the
_ following year (1814) only 1,300 acres were put under crop,
_ although an additional 4,000 acres of land was alienated by
_ the Crown within the same period.
: In 1817 the settlers were again in difficulties. “Proceeding to
_ the year 1817,” said Riley, in his evidence before the Committee
on Gaols, “I see by the Gazette the stores were ordered by the
_ Governor not to open until the 1st of March, and then only one
a4 day in the week. The harvest is so early in New South Wales
_ that the settlers would have been able to commence supplying
_ in the middle of January. Previous to the 1st of March .. .
1D. 3, 31st March, 1817. R.O., MS.
2 The Government and perhaps a few landowners alone had storage room.
3 The demand even at that price was very weak. Riley, C. on G., 1819.
122 A COLONIAL AUTOCRACY.
a most disastrous flood took place and overwhelmed the unfortu-
nate cultivators of the Hawkesbury and Nepean in ruin; the
greatest distress was also experienced throughout the Colony
from the consequent scarcity. In February this year wheat was.
reduced as low as seven shillings and maize to two shillings and —
sixpence sterling in the market, as in consequence of the stores.
not being opened the growers were compelled to sell it at this.
low rate; but in October in the same year the average of wheat
rose to twenty-five shillings and sixpence sterling per bushel and
maize to twenty shillings.”
This was stated before the Committee on Gaols, who asked :— —
“Was that part of a general system—the opening of the
stores at so late a period in the year... .?”
“ Of late years it has been,” Riley answered.
“Can you give to the Committee any reason why such order
was issued ?”
“T really cannot.” }
Riley laid great stress on the injuries suffered by the settlers.
from the importations of Bengal, several of which took place be-
tween 1812 and 1817. The injudiciousness of the Government
in taking such a course is obvious. The whole razson détre of
a fixed price was to give constant encouragement to growers and
to equalise the ups and downs of the market. By importing
from India, Macquarie made the demand quite as precarious as
it could have been under a competitive system, while the pro-
ducers gained none of the profit to be reaped from a free trade.
The farmers were unable to take full advantage of a scarcity, —
and yet not allowed the compensation of a fair price in time of
surplus. The small settlers suffered severely in 1813 and 1814,
although a few wealthy men may, as Macquarie said, have been
lucky in extorting high prices from the Government.
Macquarie himself was ready to admit that something further
in the way of encouragement was needed by the settlers.
He thought much would be accomplished by permitting the
establishment of distilleries which would provide a wider market
for surplus grain. The opposition of the Colonial Office being —
1 Examination of Riley, C. on G., 1819. Out of the seven floods on the
Hawkesbury between 1806 and 1820 five were in February, March or April. See
Appendix, Bigge’s Reports. R.O., MS.
2 See above, Chapter IV.
LAND, LABOUR AND COMMERCE. 123
finally overcome in 1819, Bigge and Macquarie held consulta-
tions with leading colonists in 1820 as to the regulations for the
trade! These were published in 1821? and distillation com-
menced in 1822. Wheat, rye, barley, oats and Indian corn were
to be used in the distilleries, but if on two successive days the
price of wheat in the market was above ten shillings a bushel, the
Governor might prohibit distillation from any grain, and peaches
could be used as a substitute.
To prevent distillation falling into the hands of a few
wealthy settlers only, the license to distil was issued at the
moderate cost of £25, and stills with as small a capacity as
forty-four gallons might be used. The distilleries might be
established in any district, and it was hoped that the settlers
would thus be able to dispose of their grain without having the
expense of bringing it down to Sydney.
At the end of Macquarie’s governorship, therefore, the future
for the agriculturist was considerably brighter than it had been
for the preceding ten years.
The other important branch of production was that of stock-
raising. The Government ration included a pound of meat a
day, and so constituted the chief market for the settler’s supplies.
The reasons against supplying the stores by tender were even
stronger here than in regard to grain, for it would have been
far easier to engross stock than wheat. The system adopted,
however, was not quite the same.
The Governor issued an order stating the price at which
meat would be received, and stock-owners then tendered a
certain number of pounds at that price. Soon after the Com-
missary published in the Gaze/te a list of names of those whose
tenders were accepted, the amount which would be received
from each, and the dates and place of delivery. Only the
actual owners of the stock could tender supplies, a rule en-
forced with some strictness to prevent engrossing and check
cattle-stealing.®
For some time after Macquarie’s arrival the price of meat
1S.G., 30th December, 1820. 2 Regulations, roth February, 1821. S.G.
3If aman tendered cattle for the stores who had not given in any returns
of cattle at the previous General Muster, his tender was refused unless he could
make some conclusive explanation of how he became possessed of it. See S.G.,
oth January, 1817.
124 A COLONIAL AUTOCRACY.
stood at od. alb. In December, 1816, the Governor, finding
that the herds and flocks were greatly increased, reduced the
price to 6d. from the 24th of the following January. Tenders
which had been made at od. were declared null and void and
new tenders at 6d. called for. Riley described the results of
this measure in 1819. “I consider,” he said, “that they (the
settlers) have also suffered severely by the reduction of the
price of meat . . . by which the property of every stock-holder
in the Colony was most considerably lowered, so much so, that
many settlers, when sued to pay their debts to Government for
cattle purchased at £28 per head, were incapable of finding a
market for them at 410; it was a measure that injured the
property of every individual in the Colony. . . .”
In 1818 the price was further reduced to 5d. a Ilb., and
Macquarie congratulated himself on the savings he was making
for the Government. These amounted to no less than £9,000
for the year; but it is doubtful whether, when the effects on the
settlers are taken into account, the real saving amounted to
anything at all. It was, as Riley said, “a very expensive
economy”.* Macquarie’s own theory differed rather from his
practice. Thus he wrote in 1819:° “Such is the overruling
influence that this Government must necessarily possess in
the market, that were a Governor to order the price of animal
food to be reduced from its present rate of 5d. per Ib. to 2d.,
and that of wheat from 10s, to 5s. a bushel, 1 have no doubt
the grazier and cultivator would furnish the stores so long as
their present stock on hand would enable them; but such would
be the inhuman policy of doing so, that in less than two years’
time there would not be a bushel of wheat grown for the supply
of the stores, nor further attention paid to the increase of herds
or flocks, and the country, so far as it depended on the free
population, would be abandoned and once more become a
desert.”
As it was, Bigge thought the cattle were being slaughtered
in too great a number, and that the herds were not increasing
rapidly enough. The great number of convicts arriving in
1S8.G., 28th December, 1816. 2S.G., 18th January, 1817.
4 Ibid.
3C. on G., 1819.
5D. 26, 12th June, 1819. R.O., MS.
LAND, LABOUR AND COMMERCE. 125
181g and 1820 had placed a severe strain on the colonial
resources, for their rations had to be provided from the time
of their disembarkation. Bigge urged that the old practice of
sending salt-meat provisions sufficient to supply each batch of
convicts for six months should be reverted to.1 In 1810 the
cattle, sheep and pigs in the settlement numbered 57,0002 In
1820 they numbered 178,000. The pasture lands in 1810 had
covered 75,000 acres, and in 1820 they covered 334,000 acres.
The increase was of course great, but the land was less heavily
stocked than it had been, and Bigge’s precautionary advice was.
probably needed.
So far comparatively few settlers had turned their attention
to wool-growing. In fact for practical purposes Macarthur may
be said to be the representative of the whole wool-trade of the
Colony. It was he who first brought New South Wales wool
to England, and it was on account of this wool that he received
his grant of 5,000 acres in the Cow Pastures with a promise of
5,000 more when his flocks had so increased as to require them.
Above all it was his triumphant success that stirred others to
follow in his footsteps.
The first notice of New South Wales wool sold in England
appeared in the Sydney Gazette in 1813.2 “Ten or twelve
packs” had been sold and had averaged 5s.a lb. The duty
was then 7s. I1d. per cwt.4 From that time each year some
wool was exported. In1818 it amounted to 71,299 Ib., in 1819
to 112,616 lb. and in 1820 to 175,433 lb. The price in 1820
ranged from ros. 4d. a lb. for one especially fine bale to Is, 24d.
per lb. for coarse wool. The duty was then increased to Id, a
Ib. and the freight varied from 3d. to 44d. a lb.°
In 1819 Riley stated that the settlers in general wished to
cultivate wool, but the Government offered them no assistance.®
Both Macquarie and Lord Bathurst, in discouraging large estates,
effectually discouraged sheep-farming. Macarthur, for example,
had not received his additional 5,000 acres, and although in 1821
he had altogether 9,600 acres, it was not all in one place, and
1 Macquarie to Bathurst at suggestion of Bigge, D. 11, 3rd July, 1821. R.O.,
A Wie round numbers. 3 §.G., 17th April, 1813.
4S.G., 1oth September, 1814. 5 Bigge’s Report, III.
® Riley, C. on G., 1819.
126 A COLONIAL AUTOCRACY.
he considered himself unable to add to his flocks, which then
amounted to 7,000 head. He occupied by permission 1,000 acres
besides his own estate in the Cow Pastures, and was anxious to
have it granted him outright so that he need have no fear of
suddenly being deprived thereof.?
Bigge was altogether in favour of large grants and of foster-
ing by every possible means the wool-trade of the Colony. A
proposal submitted to Macquarie in 1820 with this purpose in
view met with his approval. The promoters proposed to form
a joint-stock company for the growth of fine wool and “ pe-
cuniary assistance was requested by advances from the Police
Fund ; the assignment of agricultural labourers as they arrived
from England; an unlimited range for flocks of sheep in the
interior, not approaching nearer to the settled estates than five
miles, and an importation of sheep of the pure Merino breed at
the expense of Government, the cost of which was to be repaid
at a future period, and in the meantime to be secured upon the
shares of the subscribers and the flocks of sheep as they might
be produced.
“The objection made by Governor Macquarie to this pro-
posal appears to have arisen from an apprehension of the
consequences of placing so many convict labourers in remote
situations, under no better control than that of the individual
superintendent of the establishment whom it was proposed to
appoint. This circumstance forms certainly the essential ob-
jection to the extension of settlements in which convicts are
employed, or their removal to a great distance from the residence
of some individual clothed with authority to control and punish
them ; and as far as the proposal made to Governor Macquarie
limited the number of superintendents, I concur with him in
the objection he made. I am not aware that the proposal was
founded upon any general support from individuals in the
Colony ; I am disposed to believe that, from the indisposition
already adverted to in the proprietors of stock to leave their —
establishments in the settled districts and to repair to those
more remote for the purpose of devoting themselves more
exclusively to the growth of fine wool, they would gladly have
1 Macarthur to Bigge, 18th October, 1821, Appendix to Bigge’s Reports. R.O.,
MS. He held 7,000 acres by grant or permission and 2,600 by purchase.
LAND, LABOUR AND COMMERCE. 127
_ embraced any proposition that had a tendency to exempt them
_ from individual exertion, and in which no other or greater de-
gree of risk or expense was to be incurred than that of paying
the salary of the superintendent and the subsistence of a certain
number of convicts,” !
€ : The uncertain conditions of labour due to the convict system,
_ which raised a difficulty in this case, affected every kind of
colonial enterprise. Yet the existence of a supply of servile
_ labour was considered in England to be one of the great ad-
_ vantages of emigration to New South Wales.? Convict ser-
_ vants were held out to intending settlers as a kind of bait, not
only those servants for whose keep the Government made them-
selves responsible during a short period for the benefit of new
settlers, but also the convict servants whom they were allowed to
_ receive at any period under conditions laid down by the Governor.
Owing partly to these conditions, and partly to the bad
_ qualities inherent in all forms of servile labour, convict labour
was not a success. The whole tendency of this branch of
_ Macquarie’s policy was to raise the status of the assigned ser-
_ vant to that of a free labourer, but he could not alter the legal
_ condition of prisoner or the moral irresponsibility of forced
_ labour. In 1820 there were 8,864 men and 587 women who
were still prisoners. Of the women there is little to be said.
__ About 250 worked in the Government wool factory at Parra-
_ ™matta and the remainder either went into domestic service,
_ married,’ or lived with convicts or free men in Sydney or the
other districts. Some of them were joined by their husbands
_ from England and started with them in trade, usually as licensed
_ victuallers.* In accordance with Government Orders female
_ convicts were assigned as domestic servants only to married
men, and the master had to enter into indentures to keep the
servant three years, to clothe and feed her suitably, and pay
her wages amounting to £7 a year.’ For the most part they
™~
att B
1 Bigge’s Report, III.
2 See, ¢.g., Westminster Review, April, 1825, Article on Emigration. Also
Wentworth’s Account of Australia, first published 1819, 3rd ed., 1824, p. 92.
3 Ti they married they were usually given tickets-of-leave, sometimes pardons.
There were 270 women with tickets-of-leave in 1820,
4 These also usually received tickets-of-leave.
5 The cost of clothing appears to have been deducted from the £7.
ere ae
128 A COLONIAL AUTOCRACY.
made very bad and quarrelsome servants, and complaints w
universal.
The male convicts were assigned to settlers or kept to work
for the Government. At the end of 1819 there were in Govern-
ment service altogether 2,476 male convicts, and 200 were serving
colonial sentences at Newcastle. The remaining 6,388 prisoners
were in the service of the inhabitants of the Colony both free
and freed. Their masters were not all employed in agricultural
pursuits. In Sydney, for example, and the district surrounding -
it, there were 2,368 assigned servants, most of the masters of
whom were occupied in the town, Great landowners, such as.
Macarthur and William Cox, had as many as a hundred convicts,
and Wentworth and an emancipist named Terry, who owned
the two largest estates in the Colony, probably had still more.
Settlers with farms of five to fifty acres usually received one
servant with their grant, and were allowed to retain him at their
own expense if they wished. This was something of an innova-_
tion, for before 1811 a convict servant was not allowed to any one
farming less than twenty acres.!_ For reasons which will appear
later it was an innovation which received little approval from the
magistrates.
While the convicts were being thus distributed over wider
and wider areas their distribution was in another way restricted.
It had for long been customary to allow to each of the civil
officers of the Government and of the officers of the garrison
a domestic servant subsisted at Government expense. Lord
Bathurst learnt of this practice for the first time from one of
Macquarie’s despatches, and immediately directed him to bring
it toan end. This was done by a Government Order in 1814,
and at the same time it was announced that Government would
no longer give rations to the families of officers on the civil staff?
It was thought necessary, however, to exempt from this rule the
subordinate officers, the superintendents, overseers, clerks and
1 According to the scale drawn up by Oxley in 1821, servants were thus”
allotted. Farms of too acres or less, I servant; 200 to 400, 2; 500 to 750, 3;
1,000 tO 1,700, 4 ; 2,000 to 2,500, 5; 3,000 or over, 6,
2G.G.O., 3rd September, 1814. The Order quotes the words of Lord Bathurst's —
Despatch, which was usually done when an order likely to be unpopular had to be
enforced. Of course officers could still have convict servants if they undertook to
provide for them.
LAND, LABOUR AND COMMERCE. 129
_members of the police force, to whom convict servants on or off
_the stores were assigned as part of their remuneration. The
only advantage to these employees from the possession of
_ servants was the chance of hiring them out to others or per-
mitting them, in return for their weekly rations and a payment
of a few shillings, to work for themselves or, as it was called, “be
on their own hands”. The superintendent of convicts in 1819
reckoned that such a servant “on the store” was worth I0s, a
week, and “ off the store” was worth 5s. Thus the remuneration
was equal to a salary of £13 to 426a year. Indirectly it cost
more than this to the Government, for these servants were the
| worst class of people in the Colony and it was almost impossible
to control them. Macquarie made an attempt to improve the
system in 1814. In order that these convicts should be known
| and their place of residence properly registered, all those masters
(who were, many of them, convicts themselves) who hired out
their servants “shall immediately send in to the principal superin-
tendent a report in writing, and signed by them, of the names and
present places of residence of their said Government men, and
also the names of the persons by whom they are hired. On
_ receiving this report the principal superintendent is to grant a
certificate to each man so transferred, specifying to whom he
belongs and how, where and by whom employed.
“ The Government men thus disposed of, when possessed of
the prescribed certificate . . . are not to quit the employ of the
person or leave the district mentioned therein without applying
to and obtaining the permission of the next District Magistrate,
the person obtaining it is to obtain a fresh certificate from the
principal superintendent . . . surrendering the certificate granted
on the former occasion. .. .
“ All such lists and changes are to be transmitted once in each
month to the respective magistrates concerned therein.” *
| These regulations did not touch the evil of the servants who
did odd jobs on their own account, or carried on iniquitous
practices such as the receiving of stolen goods for their masters.
_ Nor was it strictly enforced, and by 1819 had been completely
forgotten. In 1817 Macquarie wished to abolish this mode of
1G.G.0., 1st October, 1814.
9
130 A COLONIAL AUTOCRACY.
payment, but hesitated to do so under the impression that the
colonial funds did not warrant the commutation. He could not
grasp the fact that the “unseen” expense was far greater than the
“seen”. The whole system was unsparingly condemned by
Bigge in his report of 1822. It had indeed no possible ground
of justification. It gave practical freedom, without even an
obligation to work for a living, to a class of men neither able
nor anxious to profit by it, and it let loose upon the town some
hundreds of convicts ripe for every dissipation that was offered
them.
The number of convicts not in Government service who re-
ceived Government rations amounted in 1819 to 1,821, while
there were 4,567 who did not receive them assigned to settlers.
It was this body of men who constituted the most important
factor of the labour problem.
The following method was that adopted in their distribution.
After the arrival of a convict transport the prisoners were
mustered on board by the Governor's Secretary, who inquired
into their treatment on the voyage. The chief engineer?
and superintendent of convicts then asked each man what was
his trade or to what work he was accustomed. All those who
were artisans or mechanics were at once set aside for the Govern-
ment gangs, where their knowledge was needed to carry out the
public works. As men of skill were few, a good workman was
kept a long time in the service, and found it difficult to procure
tickets-of-leave or other mitigations of sentence, and the more
skilful and steady he was the less chance he had of freedom.
The good mechanics, hearing of these things from old hands
transported for a second time, or in some of the mysterious ways
in which they managed to procure information which the
authorities studiously strove to keep back, would try to conceal —
their trade from the superintendent. On the other hand un-
skilled workmen who wanted to stay in Sydney, instead of being —
sent to the country, often made a pretence of being mechanics —
and skilled labourers.”
The Government having thus attempted to pick out the
most useful men and any others that were needed, the servants
1 He was the head of the Public Works Department of Government.
2 Notice in S.G., r2th April, 1817. Convicts who do this are threatened with
hard labour at Newcastle.
LAND, LABOUR AND COMMERCE. 131
_ for settlers were selected from the remainder. Applications
were made for them to the principal superintendent, who sent
whomsoever he thought fit. Occasionally the Governor gave him
_ directions to supply some well-known settler with men of a
_ particular stamp.’ But the settlers generally were not per-
_ mitted to apply to the Governor, and applications for men of
_ particular trades were forbidden.? Those prisoners who were
_ still left were sent to country districts in numbers proportionate
_ to the requisitions made by the resident magistrates. Large
__ proprietors applied to the superintendent, but smaller folk applied
_ through the magistrates who distributed the convicts on their ar-
_ tival from Sydney. A few even of the large landowners preferred
to get their servants in this way, not caring to have anything to
do with the superintendent, who had himself been a convict.
They disliked Macquarie’s system, which took the place of draw-
ing lots and then choosing from the whole number of convicts
in the order thus ascertained. The magistrates often conducted
the distribution in this way, and Marsden introduced a refinement
upon it which was very illustrative of colonial feeling. The lots
were drawn in two divisions, and those of the first division
chose their men before the second draw took place. The first
division consisted of free men and the second of emancipists,
Such was the manner of distributing the prisoners on the
arrival of atransport. But throughout the year constant appli-
cations for servants were made both to the superintendent and
the magistrates. These were satisfied by assignments from the
Government gangs in Sydney by the superintendent and in the
other districts by the magistrates. But in 1820 the latter were
ordered to refer all applications to Sydney on the ground that
the superintendent would best know what men could be spared
from Government service.®
1¢.¢., Some for Sir John Jamison; a gardener for Hannibal Macarthur; a
blacksmith for Cox. Appendix, Bigge’s Reports. R.O., MS.
2G.G.O., roth January, 1817.. Humbler persons found it very hard to get
mechanics. A tanner, who had great difficulty in getting a workman fit for his
trade, said, “I did apply and was told none had arrived; but I know that one was
sent to Mr. Cox, another to an overseer as an assigned man on the store: this
‘man I employed by paying the overseer 5s. per week!” Evidence, Appendix to
Bigge’s Reports. R.O., MS. c
3 From 1814 to 1820, 2,418 mechanics arrived and of these 1,587 were assigned
to Government. Macquarie to Hannibal Macarthur, 20th November, 1820. For
the whole of this subject see Evidence and Documents in Appendix to Bigge’s
Reports. R.O., MS.
132 A COLONIAL AUTOCRACY.
In this service the work was very varied. A few men were
employed in the Commissariat and Secretarial Departments but
the great majority of them were put to manual labour. They
were employed in clearing the land, in making roads and bridges,
public buildings and churches, lighthouses and fortifications and
processes subsidiary to these, brick-making, stone quarrying,
sawing timber, rough carpentering, nail-making and rough
iron casting! A small Government farm and a market garden
required theilabour of a few gangs, but both these enterprises
were commenced only a few years before Macquarie’s departure.
The increase in the number of convicts transported neces-
sarily increased the number employed by the Government.
Between 1810 and 1820,'16,943 male convicts arrived at Sydney,
and 11,250 of these came after 1816.2, Macquarie had great
difficulty in supplying work for them, and it was impossible to |
assign all that he did not require to the settlers. He attributed —
their inability to take a greater number off his hands to losses _
due to two floods of the Hawkesbury and Nepean Rivers in 1816
and 1817.2 Another flood in 1819 caused many settlers to send
back their servants, whom they were no longer able to support,
and this further increased the Governor's difficulties. In 1820
Macquarie wrote that “ ifany more male convicts arrived he would
have to settle Port Macquarie * or Port Jervis,” and the necessity
of detaching some of the garrison at Sydney to protect and keep
order in the new settlement was, in the weak state of the 48th
regiment, a very heavy responsibility.° Meanwhile the scale and
expense of the public works were increasing at a furious rate.
In 1811, £3,005 were disbursed from the Police Fund on their
account, and in 1815, £6920, but in 1819 and 1820 the amount
reached £16,486 and £14,568 respectively. In the face of this
Macquarie wrote: “ The cost and expense of these public build-
ings and other works consist chiefly in the number of artificers
and labourers employed in them, the feeding and clothing of —
them being almost the entire expense—the whole of the material
14.e., Of imported iron, chiefly odd pieces from the transport vessels, etc.
® All were embarked before the end of 1820. Some may have arrived early in
1821. Appendix to Bigge’s Reports. R.O., MS.
3D. 8, 16th May, 1818. R.O., MS. * Now Brisbane, Queensland.
5D. 28, 1st September, 1820. R.O., MS. The garrison received reinforce-
ments, and it was decided to settle Port Macquarie in 1821.
LAND, LABOUR AND COMMERCE. 133
{with the exception of the iron-work, glass and paint) being
made and procured by these Government men—and as such a
vast number of male convicts at present unavoidably remain in
_ the hands of Government, who must be clothed and fed at all
_ events, the expenses of erecting these public edifices are compara-
_ tively small, whilst they afford employment for the prisoners
who could not be distributed amongst the settlers’.! This
_ statement of the case is disingenuous, for the iron, glass and paint
could not amount to £14,000. Much of the labour indeed was
paid for, being done either by free or freed men or in overtime
_ by prisoners, and much of the raw material was bought from
private individuals who supplied the Government by tender. The
expense too of superintending the work was often heavy, and
_ occasionally the whole undertaking was carried out by contract?
Bigge considered many of Macquarie’s public buildings unneces-
sary, all of them too ornate and most of them jerry-built, and the
section of his first report which deals with the subject is admirably
scathing.®
Until 1819 the Government servants were not housed in
barracks but left to find their own lodgings. In order that they
might have money for this purpose they were allowed to work
for themselves—“ to be on their own hands ””—after three o’clock
each day. On the whole, the men thus left at liberty found it
easier to rob and plunder for this money than to work for it.
_ Indeed for the ordinary workman there was not much employ-
ment to be found, though a man with a trade had no difficulty.
But in 1819 a new convict barrack was opened at Sydney,
__ and at the end of the year there were 688 men lodged within it.
This left 1,252 prisoners outside who regarded it as a special
favour that they were allowed to find their own lodgings. The
men in barracks having no longer any need to work for them-
selves, the hours were extended to six o’clock, and somewhat
unreasonably the longer hours were required of the men out-
side as well as inside. But all the convicts were allowed to “ be
on their own hands,” on Saturday and Sunday, although on the
1D. 20, 24th March, 1816. R.O., MS. :
2See any of quarterly accounts of the Police Fund, and also Evidence in
Appendix to Bigge’s Reports. R.O., MS. and Report III.
3 See also Bigge’s Ds. to Lord Bathurst, 1819 to 1820. R.O., MS.
# Riley, C. on T., 1819.
a
134 A COLONIAL AUTOCRACY.
latter day they still had to muster for church-parade, “ shaved
and in clean clothes”. At the same time an increase in rations
which brought them up to 1 lb. of meat and 1 Ib. of wheat a
day was expected to compensate them for the increase in the
hours of labour.!. Those within barracks enjoyed also a liberal
supply of vegetables, and they were, on the whole, the only men
who greatly benefited by the change. In the summer Govern-
ment gangs commenced work at six o'clock, had one hour off
for breakfast and one for dinner, and thus had a ten hours’ day
and a fifty hours’ week. In the winter they commenced work
after breakfast at nine o’clock and continued until six, with an
hour's intermission for dinner, thus doing eight hours’ work or
forty hours in the week.
The Saturday holiday was necessary for the men out of
barracks that they might make their lodging money, to the men
in barracks that the overseers might bring their men’s rations
from the Government store. But this freedom on Saturday
and Sunday to a great extent undid the wholesome effects of
the restraint throughout the week. Wentworth found that
Monday was his heaviest court-day and that most of the Govern-
ment servants spent their free time in drinking, fighting, gam-
bling and committing petty larcenies.?
When Macquarie wrote to Lord Bathurst about the new
barracks, the latter was rather troubled by the account of its
advantages given by the enthusiastic founder. He feared that
Macquarie’s attention to the convict’s comforts rendered trans-
portation an ineffective punishment.? The rations were too
liberal and the week’s work too easy.‘
This opinion was shared by most of the colonists, especially
those who were not themselves in Government service. As
interested spectators they quickly saw that discipline in the
Government gangs was very slack,’ and that the work was done
in a leisurely and slovenly manner. Much was to be accounted
1 There was nearly a mutiny among the sawyers at Penmant Hills on account
of the longer hours. See Evidence of Major Druitt, Appendix, Bigge’s Reports.
R.O., MS.
2 Wentworth’s Evidence, Apress Cisse’ 8 Reports. R.O., MS.
8D. 5, 27th March, 1820. C.O., 4 Ibid,
5 Discipline in the Government Sena naturally affected the men in the
settlers’ service.
LAND, LABOUR AND COMMERCE. 135
for by the inefficiency of the overseers,’ who were usually convicts
_ themselves and had little influence over the men. The overseers
_ and men played into each other’s hands, and the former were
reluctant to report misconduct or neglect of work... It was also
the unanimous opinion of the magistrates and landowners that
“the convicts” did best at task-work as long as it was strictly
measured. Druitt, the chief engineer, opposed such a system,
giving as sufficient reason that if put to a task the men scamped
the work, and that it was unfair to conscientious or slow
workers. He pointed also to its failure when he did give it.
But he really never allowed it a fair trial, for no man was per-
mitted to leave the labour yard until the six o’clock bell whether
his task were finished or not. Occasionally work had been allotted
in weekly tasks, but in such a way that the men often finished on
Wednesdays and spent the remainder of the week in idleness.?
It was no wonder that the Government service became popu-
lar amongst all the prisoners except the good mechanics * and
that the landowners thoroughly disapproved of Macquarie’s
system. It was not merely their poverty which prevented them
from taking men off the Government’s hands. The disinclination
of the men themselves to go into the settler’s service, their con-
sequent unwillingness to work, and the cost of their keep and
wages, all constituted serious hindrances.
In 1804 a Colonial Regulation had decreed that every master
to whom a servant was assigned must agree to feed and clothe
him in a satisfactory manner and to give him 410 a year as
wages. No agreement was drawn up, but by taking a convict
servant a settler necessarily accepted the conditions. The
rations were expected to be equal to those given by Govern-
ment and the wages were in payment for work done after three
o'clock. These regulations were republished by Macquarie
in 18144 and in 1816 he ordered the wages to be paid, if the
1 Major Druitt did not agree in this opinion. According to him it was easy
to keep discipline in the barracks because the men were always ready to inform
against each other. But the man who tells tales is quite a different individual
to the man who reports neglect of duty. See, however, Druitt’s Evidence, Ap-
pendix, Bigge’s Report. R.O., MS. thy
2¢.g., in the saw-mills and on the road-gangs. For the discussion in regard
to task-work see magistrates, etc., to Bigge in Appendix to Reports, R.O., MS.
3 One mechanic was kept for fifteen years in Government service. See Riley,
C. on G., 1819.
4G.G.O., 10th September, 1814.
136 A COLONIAL AUTOCRACY.
servants desired it, in money,’ but a deduction of £3 might be
made for clothing.?
The Order issued in 1814 discloses the difficulties of the
small settlers with their Government men.
“It having come to the knowledge of the Governor,” the
Order runs, “ that the practice of remunerating Government men
for their extra time and labour either by permitting them to
employ certain portions of their time for their own benefit, wher-
ever they may choose to engage themselves, or to cultivate grain
or rear pigs or other animals in lieu of giving them the wages
prescribed by the established regulations of the Colony, his Ex-
cellency cannot avoid calling the attention of the public to the
consideration of the ill consequences necessarily resulting from
either the one commutation or the other. Those persons who
have been in the habit of giving up portions of their* time to
their Government men, must be aware that they thereby enable
idle and disorderly persons in the class of assigned convicts to
pass into parts of the country where their persons are not known ;
whilst the latter, availing themselves of that circumstance, com-
mit the most flagrant and atrocious acts under the idea that they
will avoid detection.
“That robberies very frequently escape detection by the
sudden retreat of the perpetrators from that part of the country
where they committed their depredations, is too notorious to be
controverted: This fact fully evinces the necessity for doing
away the practice.
“Those Government men who have the indulgence of culti-
vating ground and rearing stock instead of receiving their pre-
scribed wages, frequently become the receivers of stolen grain
and provisions, which, being blended with that of their own
rearing, baffles detection, and justice is thereby defeated.
“ Settlers or others who do not require the entire services of the
men assigned to them, or who cannot afford to pay them for
their extra labour, are required to return them forthwith to the
principal superintendent of convicts at Sydney, or to the magis-
trates of the district to which they respectively belong.” *
But the evil against which this Order was directed was the
1G.G.0., 7th September, 1816. 2 Ibid., December, 1816.
%4.e., The servants. 4G.G.O., roth September, 1814.
LAND, LABOUR AND COMMERCE. 137
_ tesult of collusion between master and man, and therefore one
_ which was difficult to stamp out.
The payment of wages in money was very generally con-
_ -demned by masters on the ground that their servants spent the
_ money as soon as they could on liquor. The settlers preferred
to pay the regulation wages and any extra remuneration in what
_ -wascalled “ property ”—that is, tea, sugar and tobacco. This was
_ profitable to the master because the price of these goods was
_ usually from 40 to 70 per cent. above ready-money wholesale
cost, and 25 to 35 per cent. above the Sydney retail price! On
_ the other hand the servant did in reality get more for his money
_ in this way than if it went straight into the publican’s pocket.
The servants of small settlers usually sat at their master’s
tables and shared their food. Their ordinary diet consisted of
tea, sugar, bread and meat, and spirits as often as possible. The
social position of the poor man’s servant, who sometimes farmed
a few acres of his master’s land for himself and often married
his master’s daughter, was higher than that of the servants of
wealthy settlers, but the latter were better fed. They received
the Government rations with an additional 7 lb. of wheat, tea,
sugar, milk and vegetables. Compared with the diet of the
_ peasants and artisans of the United Kingdom they lived ex-
_ ceedingly well? Their clothing, however, was bad. In the
Government service, owing to delays in sending slop-clothing,
| _the men were often very ragged. It was costly to supply them
_ with colonial-woven garments, and the Governor would not
_ tisk such an expense. Bigge, however, stoutly condemned this
- economy, saying that the convicts might have been justified
in revolting, forced to go about, as they were, indecently clothed
in rags.®
fe The settlers’ complaints of their servants were very numer-
ous and of increasing frequency during Macquarie’s governorship.
; In earlier days severe punishment for insubordination, and a
more suitable class of field labourers, had largely accounted for
1 See Appendix, Bigge’s Report. R.O., MS. ;
2Cf., e.g., Sir F. Eden’s The State of the Poor, 1797, vol. i. Meat even once
a week was a luxury with many, wheaten bread a rarity, and tea and sugar
scarcely used at all. :
; 3Report I. It was, however, very difficult to prevent the men from selling
if their new clothes.
i
4
<
a,
? ,
*f
the smaller number of complaints. Cox described the convicts —
who arrived in I8Ig as a quarter boys under twenty-one and
more than half the remainder artisans, factory-hands or “‘ forgers.
who were not used to any work at all”! Riley also described
the majority as being quite useless and not worth their keep to
the settlers. The Governor by an Order in 1815? and another
in 1818 ® tried to stifle the settlers’ complaints and force them to-
keep whatever men were sent to them, but the Orders were
never enforced.* As the class of labourer deteriorated, their
demands rose. Many indulgences which had previously been
given as rewards of merit were now claimed as matters of right.
Good and bad servants alike had to be paid the minimum wage:
of £10, and masters found themselves forced to offer:more than
that in order to secure good workmen. Some of the settlers,
who had, or were supposed to have, influence with the Governor
in gaining pardons for their men,’ had no difficulty in making
them work, but others, although they treated them well, found.
them more insubordinate every year. Of these Macarthur was
the most notable, and he gave a full account of his methods to
Bigge.® “My servants,” he wrote, “are not often tasked, for
they will not perform a task without continual reference to
the magistrate to compel them by punishments, which I always.
very reluctantly do.” The method I adopt is to find them well,
clothe them comfortably, and give sometimes extra rewards. I
cannot, however, boast of my success, for most of the farm ser-
vants are idle and neglectful, and the losses I sustain amongst
my stock, in consequence of their carelessness, are alarmingly
great. . . . I require my servants to work from sunrise to sunset,
allowing them one hour for breakfast and another for dinner.
“Each man receives weekly 7lb, of beef or mutton and one
138 A COLONIAL AUTOCRACY.
1 Cox’s Evidence, Appendix, Bigge’s Reports. R.O., MS.
2G.G.0., September, 1815.
’ Tbid,., 18th January, 1818. Ifa servant were returned as useless, the settler —
was not to receive any more Government men in the future. In 1819, 234 boys.
arrived and 2,708 men. See statistics in Appendix to Bigge’s Reports, MS.
probably include only those under eighteen).
4 Evidence of Superintendent of Convicts. Appendix, Bigge’s Reports. R.O.,
MS ‘
5e.g., William Cox. See Bigge’s Reports, I. and III.
® Macarthur to Bigge, Appendix to Reports. R.O., MS. Macarthur had then —
about 100 convict servants.
7 He would have to pay their wages whether they finished their tasks or not,
unless they absolutely refused to work at all.
a LAND, LABOUR AND COMMERCE. 139
_ peck of wheat; in clothes, tea, sugar, tobacco and money to the
value of £15 a year, unless they are idle and worthless, when I
confine the allowance to £10, which is the rate of wages estab-
lished by Government. To those who behave well I give
gratuities varying from £1 to £5, but I regret to say this
_ practice does not much swell the amount of my expenditure.”
His house-servants he paid from £10 to £15, and that he
_ was a good master is evinced by the fact that not one of his.
_ servants ever attempted to run away.
In addition to the convicts he employed some ticket-of-leave
_ men and free labourers, whom he paid according to contracts
_ made with each Of them individually, and not in accordance
_ with the scale of wages drawn up by the Governor in 1816.
_ Cox, who had 120 convict servants as well as some who were
not convicts, paid his ploughmen (convict or free) 410 to £15
a year, and his mechanics £15 to £25, but as he may have paid
the whole amount in “property” it is difficult to draw any
comparison between Macarthur’s and his methods.
Work. King’s Scale. ag : lar Sas
£s D. 4.8 De
Felling forest timber per acre 010 oO o 8 o |tTacre.
-| Burning off forest timber peracre.| I 5 0 I o 0 | 65 rods.
Felling timber brush ground per
acre . shale at Fae T he 012 0
Breaking up new ground per acre| I 4 0 I o oO | 65 rods,
Chipping in wheat 3 ‘ YE De ae o 6 o | xI$acres.
These are about half the items. The lower price in Macquarie’s scale is due
to the fact that the wages are to be paid in sterling money. In King’s scale they
are “ colonial currency,” which was much depreciated. In King’s time, the work-
ing hours were fifty a week.
Such were the general conditions of the workmen in the
settlement in 1821. There was practically no distinction be-
tween free and convict labourers. In Sydney the wealthy
ticket-of-leave men, who had in many cases brought money
1See Appendix, Bigge’s Reports. R.O., MS. The G.G.O., 7th December,.
1816, regulates the wages of labourers, making no distinction for a few agricultural
operations between convict and free. It may be compared with the scale drawn
up by King, 31st October, 1801. H.R., IIL, p. 252.
2 The convict, however, was subject to what was really a criminal jurisdiction
of the magistrates.
140 A COLONIAL AUTOCRACY.
with them from England, insulted the eyes of the free with
their lavish ostentation, their rings and chains and their dashing
curricles.'_ The old distance and respect were things of the
past. The convict prisoner or ticket-of-leave man passed the
civilian without salute—nay, he even took the inner side of the
path. Labour was fast becoming an ordinary market commodity
to be bought and paid for, instead of a debt due from the outcast
to those within the ranks of respectability. Meanwhile as the
economic power of the convict labourer increased, his social
ostracism became yet more rigorous.” An objection universally
taken by the colonists to the convict system throughout this
period was that large bodies of convicts were kept in Govern-
ment service in the towns, and that by such an arrangement
the object of their reform was lost. Macquarie himself felt the
truth of this, but could see no alternative. Bigge collected the
opinions of the magistrates and other leading settlers, who showed
a quite remarkable agreement.? They suggested the distribu-
tion of the convicts over the country and their employment in
agriculture. All of them, they considered, would be fit, no
matter what their previous lives had been, to clear the ground,
grub up the stumps and burn off the wood. Thus employed
they would have hard work for their bodies, be separated from
bad associates, and enjoy time for reflection on past misdeeds,
The difficulties of superintendence were admittedly great.
Convict overseers were not approved of, some considering that
the convicts gained great advantages simply from having
‘‘sentlemen” set over them.* Macarthur said frankly that
there never had been a good system of convict management and
evidently thought there never would be. As he was himself a
strong man with a gift for organisation, he favoured a system
which gave more freedom to the employer.
1 See, e.g., Sir John Jamison. Correspondence with Bigge. Also Dr. Harris,
same, Appendix to Bigge’s Reports. R.O., MS.
2 There is not the least doubt that the feeling between convict and free was
far more bitter at the end of 1820 than it had been at the beginning of r8ro,
See whole of Bigge’s Reports and Evidence and Documents, passim.
% See answers to circular sent by Bigge in Appendix to Reports. R.O., MS,
The worth of the answers, of course, varies very much, and the fact that they were
more or less all agriculturists probably gave them a bias in favour of that form of
labour,
4 See, e.g., Lieutenant Bell’s reply. Whether the convicts would profit by the
severity or by the example of the “ gentleman,” he does not say.
—
LAND, LABOUR AND COMMERCE. 141
“Tf a large body of respectable persons could be induced to
settle in the Colony,” he wrote, “much good might be accom-
plished. Provided the new settlers were of a description to
_ compel their servants to execute a due quantity of work to de-
termine the amount of their rewards, and to make the quality
f _ and to some extent the quantity of their food depend upon the
convicts’ industry and good behaviour. . . . I am sensible that
_ such an authority as I have described would sometimes be mis-
_ used by harsh and selfish men . . . and that such abuses of
power might escape detection. But that portion of evil, or, I
fear, a greater one, must be submitted to; for experience has
proved . . . the pernicious and demoralising operation of
general regulations which place the good and bad servant, the
honest man and the thief, upon the same footing, and authorising
him not only to claim but to insist upon the same indulgence.”
He summarised his views by saying that a convict should be com-
pelled to work for his living and to refrain from vicious practices,
but that he should be duly rewarded for good work and good
conduct.
Thomas Moore, an experienced settler and magistrate, made
a proposal of a novel kind to which unfortunately no attention
was paid.
“All persons,” he suggested, “receiving convicts into their
employ should take the entire management and superintendence
of them themselves, and in every agricultural district I would re-
commend a village or small town to be established in the most
central part of it, where there should be fixed such Government
mechanics as may be necessary for the benefit of that particular
district. In each of these towns a magistrate should preside,
and three respectable settlers should be appointed to act as
appraisers, who, with the magistrate, shouid be empowered to
fix the quantity and price of every kind of agricultural labour
that may be performed by convicts within that district.” }
No one approved of the method of payment. Some con-
sidered it inconsistent with a state of servitude that convicts
1 This is, perhaps, too simple and patriarchal—but it would have been a good
idea to form such small settlements of Government men all over the country.
Fixed regulations were a virtual necessity for convict labour unless Macarthur’s
view was to be adopted.
142 A COLONIAL AUTOCRACY.
should receive wages at all, food, clothing and shelter being all
to which they hada right. Cox objected that that would have
placed them altogether in the position of slaves. Marsden, after
thirty years’ experience, could suggest no alternative scheme and
yet condemned the one in force. The opinion of the majority
was that the Regulations had not sufficient elasticity and gave
no opportunity for grading the men according to their merits.
Bigge himself came to the very lame conclusion that
Government servants ought not to receive wages but only oc-
casional rewards, and that more settlers should be encouraged
to come from England. Thus more employment would be
provided for the convicts and less encouragement for them on
regaining their freedom to become “prematurely proprietors
and masters”. Like those who were sheep-farmers, he dwelt
much on the moral value of shepherding, and indeed there was
acertain fascination in the picture of the London thief watching
his lambs beneath the she-oaks and haply repenting on the evil
of his past... The ignorant townsman, used to the noise and
hubbub of cities, must have trembled at many a ghost in the
quiet melancholy of the Australian forest.
Riley, who with the exception of Macarthur was the most
far-sighted of the settlers, and who seems to have been slightly
inoculated with the theory of free trade, put his finger on the
real need of the Colony—free labourers with a knowledge of
agriculture. He thought more convicts would then be employed,
for “the settlers would be enabled so to extend their cultivation
in many instances, that they would require the addition of
other servants to assist them. I know that many persons are
at this moment prevented entering into the cultivation of hemp
and flax solely from the want of servants who are adapted to the
raising and preparing these articles, and one man capable of
giving directions for the produce of them could give occasion to
the employ of many inferior labourers.”
He calculated that £30 a head would cover the cost of send-
ing out such labourers, and that immediately on their arrival at
Sydney they would find masters ready to give them 420 a year
and their board. The masters might then become responsible
1 See Reports III. and I,
|
|
LAND, LABOUR AND COMMERCE. 143
__ tothe Government for the passage money, and Riley suggested
that it should be repaid in three yearly instalments of £10, de-
ducted from the man’s wages,! There were not sufficient
_ colonists who recognised the great “indirect” cost of convict
labour to press this experiment upon the Government, and no
_ attempt was made to carry it out. Many contented themselves
_ by agreeing with Cox that after all the work of the convicts
_ during thirty-two years had been incredibly great and success-
ful, especially when it was called to mind that “a great many
_ of them never did nor could be made to labour in England”.
| From the first Macquarie attempted to make the occupation
of the land a real thing. All grants issued by him contained
three conditional clauses which had not been included before.
The chief one was the prohibition of any transfer or alienation
within five years of the receipt of the grant. If the condition
were violated, the transfer or alienation would be null and void
and the land revert to the Crown. The other two directed,
under the same penalty of reversion to the crown, the clearing
and cultivation of certain proportions of the whole area within
five years.’
Theoretically the conditions were admirable, in practice no
one paid any attention to them. Judge-Advocate Bent himself
sold his own grant and a grant made to his twin sons before five
years had passed, and his case was not an isolated one. Many
emancipists being devoid of inclination and capital, sold their
farms immediately at about 5s. an acre. Sometimes a grantee
was allowed to occupy his land before it had been measured or
the grant made out. In such cases the land was frequently sold
and another owner in possession under the ‘‘ permissive occupa-
tion ” before the first grantee had completed his title ; and instances
1 Riley, C. on G., 1819.
2 Cox, Reply to Bigge’s Circular. See above.
3 This condition was suggested in letter of Plummer. See Chapter III. above.
Macquarie in his first despatch (30th April, 1810. See H.R., VII.) wrote as though
he varied the proportion according to the circumstances of each grant. Bigge
(Report III.), wrote as though the same proportion was named in each. In Town-
son’s grant the amount to be cultivated was 167 acres out of 2,000, a rather odd
number (enclosed in one of Wilberforce to Cox, letter R.O., MS., 1817). This is
the only case in which the amount is mentioned. Probably custom regulated the
proportion, and, in any event, no attention was paid to the condition, and “an ap-
pearance of an attempt to cultivate” was considered sufficient compliance.
4D. 1, 24th February, 1815. R.O., MS.
144 A COLONIAL AUTOCRACY.
had occurred of the Provost-Marshal carrying out execution —
against the ‘‘ permissive occupant”. Sometimes the land was
not sold outright but purchased by instalments, and when the
five years were up the “tenant” applied to have the grant made
out inhis name.?_ In no case within Oxley’s knowledge had the
Crown resumed or threatened to resume any grant even though
the violation of the conditions had been notorious.*
The others had been equally disregarded. If the farm was
small and the owner continued in possession, he did as a rule
clear and cultivate the required area.* If it was too small for
pastoral purposes he had indeed no other way of making a living.
But the restricted and uncertain market, the great varieties of soil
and climate, made it impossible to carry them out in all cases—
and to enforce the conditions would have been unjust and im-
politic. Marsden attributed the delay in getting the land under
cultivation to lack of discrimination in making grants to emanci-
pists who did not attempt to cultivate .but sold it at once, thus
reducing the supply of labour and increasing the amount of land
on the market; especially as the land purchased was usually
added to the great estates for pasture. This was probably true®
and much good might have been done by requiring the
emancipists to produce at least £20 before making them grants
of more than ten acres. Bigge thought that when distillation
should be permitted, the conditions might well be enforced.’
While the conditions laid down by Macquarie were neglected
by the colonists, those laid down by the Secretary of State
were neglected by Macquarie. His Instructions ordered him to
1 Bigge’s Report, I. Sometimes they borrowed money on it ata dollar (5s.)
an acre.
2 Oxley’s Evidence. Hewas Surveyor-General. Appendix, Bigge’s Reports.
R.O., MS.
3 In August, 1804, a grant was held to be cancelled by reason of non-fulfilment
of conditions. No other case arose on the point until March, 1821, when Judge
Field, on circuit in Van Diemen’s Land, reversed the previous judgment. He gave
judgment as follows: ‘‘In the case of a conditional grant, though the condition
be unperformed, the king cannot regrant without office found, by 18 Henry VI.,
c.6; that is, without the inquest of a jury to ascertain whether the condition be
performed or not... . If this were not so all the grants of the Colony would be
mere tenancies at the will of the Crown,” See Appendix, Bigge’s Reports. R.O.,
MS.
4 Bigge’s Report, I.
5 Marsden to Bigge in Appendix to Reports. R.O., MS.
® Bigge’s Report, III. 7 Tbtd.
LAND, LABOUR AND COMMERCE. 145
‘reserve 500 acres for the Crown adjacent to every 1,000 acres
allotted to settlers... In 1815 Lord Bathurst called his attention
to the neglect of these Instructions and directed his compliance
therewith.? Macquarie consulted Oxley, and they agreed in
opposing this policy. It had not been done in other colonies, and
‘the Crown, Oxley said, had not suffered from its neglect, and in
New South Wales it had been wisely disregarded from the first.
Lord Bathurst admitted the first part of the statement and the
second so far as to agree that the Colony’s progress had been
ameliorated by these means.* But he went onto say: “I see no
reason why in future the reserves on behalf of the Crown should
not be in such situations as to ensure the rapid augmentation of
their value from the cultivation of the adjoining allotments. It
may, indeed, in some cases expose settlers to temporary incon-
venience to have their respective establishments separated by an
uncultivated reserve, but it must be recollected that this incon-
venience is in general the only price paid for the land they culti-
vate, and it is not therefore just that the Crown should lose
the only benefit which it derives from its liberality to them.
I must therefore leave it to your discretion in future to make
these reserves in such a manner as may give to the Crown every
fair advantage without materially interrupting the comfort and
_ safety of the inhabitants.” 4
Macquarie, relying upon his discretion, therefore made no
_ change in his previous practice, reserving pieces of land here and
_ there for the Crown as he thought fit.
_ The next omission was in the collection of the quit-rents.
In 1814 Lord Bathurst proposed to raise them Is. an acre on
the land of free settlers. Macquarie, with the advice of the
| Surveyor-General, demurred.> Macquarie proposed a rate of 2d.
an acre for emancipists and Is. for fifty acres for free settlers.
Oxley suggested that there should be a diminution in the rate
for grants of 500 and over, but Macquarie pointed out that the
larger the grant was the more easily could the owner pay the
1 Par. 17, H.R., VII. See above. See also Chapter I.
2 21D. 57, 3rd December, 1815, C.O., MS., and D. 18, 4th April, 1817, R.O., MS.
' 3D. 16, 24th August, 1818. R.O., MS. See quotations from Oxley in this
_ despatch.
4See D. 11, 7th October, 1814. R.O., MS.
5 Ibid.
10
quit-rent.! Finally no alteration was made, The exact amount
was for the moment quite unimportant, as few quit-rents were
collected before 1821 at the earliest.2 In 1820 the Assistant-
Surveyor was appointed collector and assigned an extra allow-
ance for that duty. He proposed that where old grants had
been consolidated and new ones given he should wait until the
quit-rent became due under the new grant; and that where land
had been transferred he should collect from the last person to
whom it had been transferred.* The amount then due including
arrears was no more than £375.+
In 1821 Macquarie found that so many settlers arrived by
each ship that his old system of inquiring separately into each
case and giving grants in accordance with the settlers’ merits
was no longer practicable. With Oxley’s help he drew up a
scale of grants proportionate to the amount of capital at the
settlers’ disposal, which came into force in 1821.°
Settlers with a capital of £100 received grants of 100 acres.
146 A COLONIAL AUTOCRACY.
” ” ” 200 ” ” 200 _ ,;
” ” ” 300 ” ” 300 ,»
” ” ” 400 ” ” 400 ,,
” ” ” 500 » ” 500 »
” ” » 7 50 ” ” 640 a,
” ” ” T,000 ” ” 800
” ” ” 1,500 ” ” 1,000
” ” ” 1,700 ” ” I ,280 »
” ” ” 2,000 ” ” 1,500 ,,
” ” ” 2,500 » ” 1,760 ”
” ” ” 3,000 ” ” 2,000 »
To those who had larger capital than this Oxley proposed to
sell Crown lands at ros. or 7s. an acre. He proposed, also, the
following changes in the system of land distribution, all of which
met with Bigge’s approbation.
1See D. 11, 7th October, 1814. R.O., MS.
24.e., since 1809. Certainly none had been collected in the towns, and there —
are no accounts of its collection anywhere else.
%See Meehan to Macquarie, 3rd February, 1821. Appendix to Bigge’s Re-
R.O., MS.
4 Bigge’s Report, III.
5 Bigge recommended this scale. See Report, III., and D, 32, 28th November, —
1821. R.O., MS.
LAND, LABOUR AND COMMERCE. 147
. ‘(1) That the country intended to be settled should be
_ previously surveyed and laid out in districts, subdivided into
_ farms of such sizes as are most usually granted, and that with
_ teference to the localities of the country and its natural divi-
_ sions, each district should not contain more than thirty-six
_ square miles, and that the farms should form squares in similar
proportions. .
th “(2) That the districts should be surveyed and submitted to
__ the approval of the Governor at least six months prior to being
_ open to the selection of individuals. The maps of the different
__ and vacant districts being open to the inspection of all persons
having orders for land, would enable such persons to know what
i lands the Governor intended to settle, and also give them suffi-
_ cient time to examine the lands and make their selection, which
_ having done, the settler could experience no delay in being put
in possession or receiving their title deeds.
“(3) Whatever portion of land may be given to the free
_ settlers, it should be optional for them to purchase a further
_ quantity in addition to their free grant, in proportion to that
_ grant, at 5s. an acre, paying a deposit of 10 per cent., and the
: remainder by instalments every six months, giving in the whole
a credit of three years, when, on the purchase being completed,
_ agrant should pass to them. Ai failure in payment of any in-
_ stalments should not deprive the purchaser of his right, pro-
_ vided the whole arrears were made good with interest at the
period the last payment came due; a failure in the ultimate
i would necessarily subject the original purchaser to the loss of
_ his deposits, and the land would revert to the disposal of the
_ Governor.
bs “(4) Certain portions of each district should also be set
apart for public sale to individuals who have already received
_ grants as settlers. . .. A similar deposit should be paid by
__ and credit given to purchasers of this description as to those of
_ the first, and the lowest price at which the public lands should
__ be set up for sale should be 5s. an acre.” !
Bi Oxley thought he could carry out all these reforms with the
i addition of two assistants to his staff. He had, however, very
1 Bigge’s Report, III.
148 A COLONIAL AUTOCRACY.
heavy arrears to make up in 1821, and numbers of settlers were
waiting for their land to be surveyed and grants made out.
It was at this time unusual to give leases of Crown lands ex-_
cept in the towns. Occasionally permission was given to pasture
sheep on vacant land adjoining an estate, and rights of common
had been given to settlers at Richmond in the Hawkesbury dis-
trict as early as 1804.1 In 1820 many farms were let by their
owners on leases of seven or fourteen years at rents of 20s. an
acre if paid in money, and 30s. if paid in grain. These were
usually small estates of five to twenty acres.”
The land in the townships, in Parramatta and in Sydney,
was generally leased from the Crown for periods of seven or
fourteen years. Before Macquarie’s time it had never been
made the subject of grants, but in 1810 he strongly advised that
good building should be encouraged by alienating the land out-
right, and his advice was adopted.* On the Hawkesbury the
settlers had built their houses on the low lands in the midst of
their corn-fields, and whenever the river rose in flood their houses
were devastated. Macquarie offered them additional allotments.
on the high land, to be considered inseparable from their farms,
that they might build homesteads above the danger line, but very
few consented to move. Probably they were afraid to leave
their corn unprotected in the fields below.‘
The houses in the country were very plain and cheap, cost-
ing asa ruleno morethan £100. The convict servants on large
estates built huts of mud and bark, each two sharing one between
them. Macarthur had thought of building them large mess-
houses, but they had a distaste of living in great numbers, due,
he suspected, to the fear of each that plans of mischief, and es-
pecially cattle-stealing, would be discovered and betrayed by
others.®
Riley believed house rent to be higher in Sydney than in
1 Bigge’s Report, III. It was granted by Governor King, and the document
which is printed in Report III. is a very strange one. Bigge held that it was good
in law. Macquarie set aside commons for some of the townships he founded.
See H.R., VII., p. 468. G.G.O., 15th December, 1810.
? Cox, Evidence to Bigge, Appendix to Reports. R.O., MS.
3D., 30th April, 1810. H.R., VII. See also Plummer’s letter, Chapter Iil.,
a G.G.O., 15th December, 1810, p. 468. H.R. VII. He made similar efforts
later.
5 Macarthur’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
LAND, LABOUR AND COMMERCE. 149
_ England, and building was costly if much imported material was
used.* In 1820 there were 1,084 houses in Sydney, thirty-one
of which belonged to the Government. Sixty-eight were built
of stone and 259 of brick, but they were not of an imposing
_ appearance.” The situation of the town, however, was so lovely
that under any circumstances its appearance must have been
attractive.
At this time more than half the population of the Colony
lived in the town, 12,079 men, women and children being housed
in 1,084 buildings.* Such a population was wholly dispropor-
tionate to the rest of the settlement, and sufficient employment
could not be found for its inhabitants. Riley, speaking of the
condition of things in 1817 or 1818, said that there were at least
a hundred convicts and a majority of the ticket-of-leave men
who could find nothing to do,* and this number must have
greatly increased by 1821. It was not possible that there could
in so young a settlement be enough work to employ so large a
city population. There were, according to Riley, six or eight
people who would have been called merchants in England,
and a considerable number of traders, but how many he did not
say.° At least the civil and military officers were no longer
ostensibly amongst that number. After a long fight Macquarie
had succeeded in putting an end to their open trading operations.
At the end of 1810 he had begun by writing to O’Connell, who
was in command of the 73rd regiment, pointing out that his in-
structions both from the Secretary of State and the Commander-
in-Chief forbade his officers to carry on commercial, agricultural,
cattle or grazing speculations, “as being derogatory to the
character of any officer, subversive to military discipline and con-
trary to the customs of the army”. But having heard that
certain officers had been engaged in such enterprises, he re-
quested O’Connell to inform them publicly that these practices
must not continue, and that if such facts came to his notice in
1 Riley, C. on G., 1819.
2 Appendix, Bigge’s Reports. R.O., MS. ,
3 The population includes the people in the surrounding districts, and the
houses are probably those within the town limits only. The barracks is, of course,
counted as one building and so is the gaol. But nevertheless there seems a great
number of people in excess of the houses. Probably there were some huts not
included in the Return.
4 Riley, C. on G., 1819. 5 Ibid.
150 A COLONIAL AUTOCRACY.
the future the offenders would be brought before a court-martial.?
In 1814 a somewhat similar warning was given to the civil
officers,” and in 1816* the warning was made stronger by quota-
tions from a despatch of Lord Bathurst’s. After that time there
were no complaints of a public nature, and though Macquarie
wrote to the Secretary of State that several officers of the 46th
had entered into grazing speculations, he took no action against
them in the Colony. Very likely they managed their business
through agents, or at least made it appear as though they them-
selves were not actually engaged therein. So long as grants of
land were given to civil and military officers, it was of course
impossible to prevent them turning their estates to as profitable
uses as they could. The civil staff continued throughout this
period to have grants almost as matters of right, and indeed to
the judges they were offered as inducements to taking the posts.
But with regard to the military officers, Macquarie as early as
1813 asked for written instructions prohibiting him from mak-
ing them grants, wishing to have Lord Bathurst’s support
publicly given in following an unpopular course.* Although
Lord Bathurst did not give the instructions required, Macquarie
consistently refused to give further grants to any officer or
officer's wife.© As land was selling at as low a price as §s. an
acre, those who wished to have farms of their own might pur-
chase them, but in many ways the Governor strove to prevent
them from touching trade concerns. Thus in 1814 he put an
end to a profitable business which had long been carried on by
Government servants of buying articles from the King’s stores
ostensibly for their own use and then selling them with great
profit to the settlers.®
1H.R., VIL, p. 471, 15th December, 1810.
2G.G.0., 1814. 3 Ibid., 1816.
4D., July, 1813. R.O. He had up to that time given only three grants to
members of the garrison. One to Lieutenant-Colonel O’Connell, “in his civil
capacity of Lieutenant-Governor, on his marrying the daughter of Governor
Bligh,” the second, to the wife of Major Geils, because ‘‘they had so large a
family”’ ; and the third, to the wife of Paymaster Birch, made at the time when the
latter was insane ‘‘as a provision for his young family, he having purchased a
large stock of horned cattle while he was labouring under that mental derange-
ment.”
5 Lieutenant Blomfield complained to the Colonial Office that the Governor
refused to give him a grant when he married Miss Brooks, which he thoughta
very great hardship as her dowry consisted of a herd of cattle.
® See G.G.O., 1814, above.
LAND, LABOUR AND COMMERCE. 151
The markets of the Colony had been opened to importation
at the beginning of 1815, and apparently at that time, or more
likely before that time, the placing of a maximum price on im-
ported goods came to an end.!_ But when there were no longer
_ any Government regulations the magistrates controlled in many
_ ways the price of goods on the market. Thus they ordered a
shoemaker brought before them to sell boots at the reasonable
price of 10s. instead of the exorbitant cost of 25s. Butchers
and bakers had both to take out licenses and to conform to a
fixed scale of prices. Hawkers also had to take out licenses,
but that was for reasons of order and policy rather than anything
else, for servants assigned to the lower officials of Government
or poorer settlers, escaped prisoners, ticket-of-leave men and all
the disorderly characters in the settlement, made a pretence of
hawking goods to cover every sort of fraud and knavery. To pre-
_ vent this the hawker’s license was placed at the high price of
420 a year, and the applicant had to produce a certificate as to
character before getting it. These regulations were only issued
in 1818, and their effect cannot be computed, for there are not any
means of knowing whether the conditions were strictly enforced,”
The business population was almost entirely engaged in trad-
ing, and there was but one factory owned by a private individual
in the whole Colony. That was the establishment of Simeon
Lord, where cloth, hats, blankets and stockings were manufac-
- tured. But on many estates home industries were carried on,
and in the Government labour yard many articles were made by
_ the convicts. The colonial-made goods, however, were still so
_ costly that it was more economical to buy imported wares.
All imports save those of British manufacture were subject
to duties, but these might often be evaded. The masters and
officers of the convict transports, for example, made a practice of
bringing trade adventures of all kinds. Sometimes they brought
1G.G.O., 31st December, 1814. There is a passage in D. 74, 24th July, 1816,
C.O., MS., from Lord Bathurst which implies that the prices were still fixed; but
that is an error of the Secretary of State.
2Proclamation, 2nd May, 1818. In connection with this subject of trading
facilities attention may be called to a curious monopoly created by geen inges eA
G.G.O., 7th June, 1816. A merchant of Hobart Town fitted out a vessel whic
circumnavigated Van Diemen’s Land and discovered Macquarie’s Harbour and
Port Davey. As a reward Macquarie gave'him the monopoly of trading to both
these ports, at which there were no settlements, for twelve months.
152 A COLONIAL AUTOCRACY.
goods from England, more often spirits and tobacco from Rio
Janeiro or the Cape. In the first case the goods were not
entered at the Customs House in England, in no case did they
pay any freight, and finally Macquarie often allowed shipments
(especially of tobacco and spirit) to be landed by the master or
surgeon without paying even the colonial dues.)
In 1816 Riley and Jones, the largest firm of merchants in
Sydney, complained to the Colonial Office? pointing out that
these trade ventures were an infringement of the Charter-party *
and took up the tonnage which properly belonged to the con-
victs. What was more important from the merchants’ point of
view was that these surreptitious cargoes injured their custom.
The Colonial Office, who heard of these practices for the first
time, at once instructed Macquarie to bring them to an end.
He was directed to order a careful examination of the stores
brought by the convict vessels, and a comparison between those
and the official list sent in the Charter-party. He was not
to allow any surplus to be sold in Sydney.* Macquarie re-
ceived this despatch on the r1th May, 1818, but did not at once
impose any order. There were at the moment several transports
in the harbour, and to prohibit the sale of their cargoes would, he
thought, have been unjust to them as well as a “loss to the
revenue”.» They had so long been allowed to break the law
that perhaps he had some reason to speak of the “injustice” of
making them suddenly conform to it. Eventually he made a
prohibitory order in October. A few weeks later he re-
ceived a memorial from “ many principal inhabitants” including
Macarthur, Lord and Townson, praying that the prohibition
might not be continued.’ They pointed out that it would
greatly check “the diffusion of manufactures of the mother-
country,” but admitted that their chief reason for advocating the
1See case of Dr. Bromley. Bigge’s Report, III. and also Piper’s Evidence
in Appendix. R.O., MS.
22nd November, 1816. R.O., MS.
3 4.e,, Charter-party entered into by Masters of Transports and Navy Board.
4D. ror, r2th December, 1817. C.O., MS.
a 5D. 2, rst March, 1819. R.O., MS. Evidently he meant to make these pay
uty.
Tore was an order given to the naval officer, not a public Government Order,
7 Enclosure to D, 2, rst March, 1819. Memorial is dated r9th November, 1818.
R.O., MS.
LAND, LABOUR AND COMMERCE. 153
_ continuance of the importation of goods by the transports was
_ the restrictive nature of the Charter of the East India Company.
According to its regulations no vessels of less than 250 tons
could trade with New South Wales. The return freights were
so small that under this restriction the incentive to private
owners to send vessels to New South Wales was very weak, and
_the cost of freight thither exceedingly high. Thus the convict
_ transports were a valuable channel of trade. But there would
be no need of them if vessels of, say, 150 tons were permitted to
trade with the Colony. According to Macquarie the transports
and the ships belonging to Riley and Jones carried on the whole
_ import trade, and Riley and Jones sold badly selected shipments
at “griping extravagant prices”. He was therefore very ready
to comply with the memorial and removed the prohibition until
further representations should have been made to the Secretary
_ of State Thus the matter remained until 1820, when the re-
striction as to tonnage was removed by Act of Parliament.?
There remained then no reason for the continuance of the in-
dulgence, save Macquarie’s desire to retain it. In 1820
Goulburn, the Under-Secretary of State, proposed that private
ventures might be taken on board the convict transports on pay-
ment of the usual freight, and the Treasury were asked to make
arrangements for carrying this out, not only in England but at
the Cape and Rio Janeiro also.* Shipowners of course protested,
but without success, and the trade continued to be carried on
under these regulations.*
The eagerness which Macquarie showed throughout to per-
mit this indulgence to masters and officers of transports was
probably due to his great liking for all “discretionary” powers,
a liking shared by every autocratic Governor. It was a tolerated
illegality and therefore wholly dependent on his favour. His
_ obstinacy had also been aroused by the attempt made by a
_ colonist to seize two convict ships, the Tottenham and the
1G.G.0., 21st November, 1818.
259 Geo. III., c. 122. Passed in 1819 but came into force in 1820.
3 Goulburn to Treasury, 20th March, 1820. C.O., MS.
; 4 Jackson to C.O., 1st April, 1820. R.O., MS. There is no doubt that
__ Macquarie greatly overrated the need of this trade. In 1820, between.January and
_ April, six private merchant vessels of tonnage from 370 to 500 sailed to New
_ South Wales. See Jackson above.
154 A COLONIAL AUTOCRACY.
Elizabeth in the act of landing goods.! The Tottenham
brought a varied cargo valued at more than £1,000* and was.
seized by Mathew, a Sydney trader, on the 20th November,
1818, while she was landing goods under the Governor's permit-
Mathew had great difficulty in getting his information against
the ship sworn to, and after some trouble it was accepted by —
. the Registrar of the Court of Vice-Admiralty.2 The Judge-
Advocate proposed to open the court for the hearing of the
case on the I9th December. This long delay seemed to
Mathew a proof that the Judge-Advocate desired to deny him
justice. The truth of the matter was that Wylde, who knew
very little Vice-Admiralty law and was in that respect not
unlike the rest of the colonists, was at first in doubt whether
the matter was one for his court to take cognisance of, and
when he had persuaded himself that it was, had the more
difficult task of persuading the Governor. Macquarie insisted
that in allowing Mathew to bring his case, the Judge-Advocate
was acting in a manner hostile to the Governor's measures and
derogatory to his authority. When the Judge-Advocate per-
sisted, a complete estrangement took place between them which
lasted until the 29th of December.
When the court opened on the t9th, Mathew claimed that:
the cargo should be condemned on the grounds that the goods
had been shipped contrary to the regulations of the Navy Board
and without paying customs duties, and that the ship had no.
legal clearance. The information against the Tottenham was
thus laid for a breach of the Revenue and Plantation Laws, and
Wylde saw no way in which he could refuse to adjudicate.
Macquarie, however, held that once his permission had been
given to the ship’s master to land the cargo, any attempt to seize
the ship or goods or'question the legality of the ship’s clearance.
was an insult to his supreme authority as Governor, and as such
not within the jurisdiction of any court in the Colony. Wylde
was by nature a placid man and had borne with Macquarie for
two years, but he knew that in giving way here he would be
taking upon himself a very grave responsibility. However,
} The case of the Elizabeth was never proceeded with.
2See Ship’s Manifest, Appendix, Bigge’s Report. R.O., MS.
3 J. T. Campbell, the Governor's Secretary.
LAND, LABOUR AND COMMERCE. 155
_ though he went through with the hearing of the case, he prob-
ably felt relieved that he was able to give judgment against
_ Mathew, “dismissing the information with costs”. The grounds
of the decision were a want of legal right in the party to seize
boat or goods, that right being limited to certain parts of the
coast and to certain customs officers,! and also a want of juris-
diction in the court as a court of revenue to take cognisance
of mere disobedience to the orders of the Navy Board.2
_ The revenue collected by the naval officer who was the
chief customs official consisted of duties and taxes on shipping.
The latter were exceedingly heavy, the dues on clearances, per-
mission “to wood and water,” to anchor, to land goods, varying
from 41 to £7 according to tonnage. Coasting vessels paid
the same rates as vessels from England or elsewhere, and found
these taxes very burdensome at the end of each short voyage.*
The duties levied in New South Wales comprised the 5 per
cent. ad valorem on all goods and manufactures wot the produce
of Great Britain, first levied in 1805; the duties on spirits of 7s.
a gallon and on wine of gs. dating from December, 1814; the
duties on whale-oil, skins and timber, from June, 1813; and on
shells, sandalwood and déche-de-mer from the South Sea Islands,
_ levied from 1807.4 Those on oil, timber, shells, etc, were
practically duties on export. The sperm and black whale oil
112 Geo. I., cap. 28, and 26 Geo. III., cap. 40.
2 This is a doubtful point. Of course, as constituting a breach of contract, it
might have been heard in the Civil Court. For whole matter see Mathew to
C.O., 26th March, 1819, R.O., MS., and Evidence of Wylde, Appendix, Bigge’s.
_ Reports, R.O., MS.
3 See enclosure to D. 4, 23rd February, 1820. R.O., MS. See also Appendix
to Bigge’s Reports, R.O. A_distinction had been made before Macquarie’s time
between foreign and British vessels and between the latter and colonial vessels,
but it was discontinued.
The dues at the port of Sydney for five ships all under 500 tons were as.
follows :—
4
Ocean . 7 ‘ r > F 52
David Shaw A 7 : ? +7 ao
Fame . ? A ° . . a. AX
Melville . ‘ ° ‘ x Ss Bh
Recovery . . . . . 1s NGS
They were more than double the dues at the Cape of Good Hope. See Appendix,
Bigge’s Reports. R.O., MS.
4 See enclosure to D. 4 above. Macquarie was not sure of the accuracy of
_ the Return, and some alterations have been made when no Orders of the dates
given in the Return could be found. Probably some of the dates given are those
of Orders re-enforcing older Orders.
156 A COLONIAL AUTOCRACY.
which paid £2 10s. and 42 per ton respectively, were not
home consumption but for the English market, and no draw-
back was allowed on exportation. So also with the duties of
zd. and 14d. on fur and hair sealskins, and of $d. on kangaroo-
skins. The duty on cedar of Is. a solid foot or £1 on twenty
spars was likewise a tax paid in the Colony on exportable
produce. For these reasons such duties were unhesitatingly
condemned by Riley in 1819, and by his brother in his evidence
before Bigge in 1820. The only argument in their favour was —
the revenue to be thus obtained, but as they nearly succeeded
in putting an end to the whaling trade, at any rate, even this |
purpose was not achieved.1. The duty on sandalwood and ~
pearl-shells of £2 10s. a ton, and on déche-de-mer of £5 a ton, |
put a severe burden on commerce in the South Seas, but the
trade was not injured so much as the whaling trade, probably —
because the pressure of the duty had merely the effect of in- |
creasing the pressure exercised by the masters and crews of the -
South Sea vessels on the natives who collected these products, .
The New South Wales duties, combined with those levied in
England, brought the whole amount paid on each ton of oil
placed on the English market up to 427 8s. od., while the |
Americans, who were the most prominent rivals in the South
Seas, paid £7 more. But the freight from New South Wales
was high, being £3 a ton to India alone. In 1817 there were
forty tons of oil in bond at Sydney? waiting until the owners
could pay the duty, and in 1819 a shipment was bonded in
England for the same reason.* The duty as it stood altogether
crushed the trade. Riley advocated a bounty in place of the
tax on oil, for whaling would have been a good occupation for
young colonials and have provided freight for ships returning —
to England. The Government would have profited indirectly, —
for transport vessels were paid by tonnage, and the easier it was ~
for them to find return cargoes, the lower would be the cost for .
their trip outwards.°
1 Edward Riley's Evidence, Appendix, Bigge’s Reports. R.O., MS.
2 Riley, C. on G., 1819. ,
8 Evidence, Edward Riley. See above. R.O., MS.
4#C. on G., 1819, and Edward Riley. See above. R.O., MS.
5 Bigge’s Report, III.
LAND, LABOUR AND COMMERCE 157
The duties on South Sea products, save those on oil, had
been levied first by Bligh, and those on oil by Macquarie. But
the latter was far from defending them, and wrote that they
were “as impolitic in principle as they have been proved by the
_ experience of several years to be unproductive in revenue”. ?
_ He dwelt on the lack of other exports and the expensive out-
‘fit necessary for whaling, proposing that a drawback should be
allowed. Lord Bathurst agreed to this, and by an Act of Par-
liament of 1819 this drawback was permitted. The duties on
_ timber were withdrawn by order of the Governor in 1821.4
| Two additional imposts were laid in 1818, a duty of 6d. a lb,
_ on tobacco and an increase in the duty on spirits, which brought
_ the whole up to Ios.a gallon. The purpose of the latter was.
_ “to lighten the burthen of this Colony on the mother country”
as well as to restrain “the present immoderate consumption of
_ Spirituous liquors”.® The actual effect of the measure was to.
increase the revenue without achieving any reduction in con-
| sumption. As a matter of fact it could not have done both.
_ The tax on tobacco—a tax which it could easily stand—was
| intended to serve as a protective duty and foster home-pro-
| duction; but towards that end it was ineffective.
_- The duties were not exacted very strictly,and the Govern-
| ment were usually ready to take security for their payment.
_ In 1820 no less a sum than £4,024 was owing, and the
_ Governor held unrealised securities, some of which dated back
_ to the time of King and Bligh.®
The cotton goods, sugar, rice and tea, which formed a great
part of the colonial trade, were imported direct from India and
_ China under licenses from the Bengal Government and the
regulations of the committee of super-cargoes at Canton.’ The
_ voyage to and from China lasted about three or four months,
_ and the delays in port at Sydney were the cause of many com-
1G.G.0., 26th June, 1813. 2D, 21, 15th May, 1817. R.O., MS.
359 Geo. IIL., cap. 114. 4G.G.O., 31st March, 1821. ;
5D. 3, 15th May, 1818. R.O., MS. Macquarie was always dissatisfied with
_ the 5 per cent. ad valorem duty, wishing to substitute a more complicated scale
i a higher rate levied on weight and quantity, but Bathurst did not approve it.
D. 3. :
6 Bigge’s Report, III. See also Chapter X.
7In accordance with Charter of East India Company.
158 _ A COLONIAL AUTOCRACY.
plaints. These delays were due to the system of “detainers”
and the manner of mustering the ship’s crew. |
The system of detainers was an old one in the Colony, and
except for the period of Johnston’s and Foveaux’s administra-
tion had been always in force. Macquarie had reimposed it
immediately on his arrival and made no alterations in the
system from that time.! In accordance with his regulations
any person about to leave the Colony must give notice of his
intending departure in the Sydney Gazette at least ten days be-
fore sailing. This notice had to be inserted in two successive
issues. At least eight days subsequent to the first notice the
person about to depart had to procure from the Judge-Advo-
cate’s office a certificate stating that no detainer had been
lodged against him. Until 1817 any one might lodge a detainer
without even swearing to the debt therein alleged, but Wylde ~
insisted on this being done. The total number of detainers
lodged between 1816 and 1820 was 671, and in 1820 they showed
a distinct falling off.2 Wylde stated that under his administra-
tion the number had decreased, but no record has been kept of
those in previous years. When the Supreme Court of Civil
Judicature was closed, from 1815 to 1816, the only way in which
to secure payment was to lodge a detainer and so prevent the —
debtor from leaving the country,’ and detainers for as much as ©
43,000 were lodged. They could at any time be made the means
of fraud. A man who had arranged all his affairs for departure
could be hurried into giving security even for a debt which he ©
did not owe, and might in the end have to pay it. Those upon
whom the regulation fell most hardly were the masters of ships
frequenting the ports. When Wylde became Judge-Advocate
he found that the greater number of detainers were lodged by —
publicans against men of the ships’ crews. The masters, im-
patient to weigh anchor, would either have to pay the debts or
leave the men behind. At Wylde’s suggestion Macquarie in- —
cluded in the Port Regulations issued in 1819 a clause which
1 Government Public Notice, roth February, 1810.
2 Wylde’s Evidence and Return in Appendix, Reports. R.O., MS.
3 Moore’s Evidence, Appendix, Reports. R.O., MS.
LAND, LABOUR AND COMMERCE. 159
_ gave them some alleviation, by allowing masters to cry down!
_ the credit of their men. Only masters of British or Indian
vessels, however, were allowed this privilege, and not those of
colonial ships unless the names of the crew had been advertised
in the Gazette. This was reasonable, for the crews on the
_ colonial ships were constantly changing. The detainers were
intended to serve the double purpose of preventing the escape
_ f prisoners and securing the payment of debts, which under the
_ colonial system of judicature could not be recovered in the court
_ against persons out of the Colony. With all its defects and
_ possibilities of imposing hardships, it was found on the whole to
_ serve its purpose with tolerable efficiency.?
But the regulations for mustering the ship’s crew and
passengers were more burdensome and less efficient. It was
_ obviously the duty of the Government to make sure that no
_ prisoners escaped, and for that reason it was necessary to make
a thorough examination of each ship before its departure, to
_ muster its crew and see the passengers. But the work was
badly done, and by holding the muster on shore at the Secretary’s
_ office, instead of on the ship, no useful purpose was served.
The following description sent to, Bigge by the master of a
convict ship shows clearly the objections to Campbell’s
methods.
“The was in the first place detained ten days after it
_ was advertised ready for sea; at the expiration of which time
_ the Secretary would not muster the crew though applied to for
anearlier muster. On the tenth day, as some of my crew had
_ deserted, Mr. Campbell appointed that day week for the pur-
pose; ...I wrote to the Governor . . . on which an earlier
day was fixed by him. That day came, and I brought my crew
on shore (the ship at this time being left entirely to the mercy
1 4,¢., to publish a notice warning publicans and traders that they would not
be responsible for debts incurred by their crews.
2 One objectionable feature was the tax paid to the Judge-Advocate’s clerk
for each certificate of “no detainer,” which amounted in four years to £3,000.
This of course was specially heavy for the masters of ships who had to pay for all
their crew. Appendix, Bigge’s Reports. R.O.,MS. Sometimes persons against
whom detainers were lodged did get away without paying. Blaxcell, ¢.g., left the
Colony in 1817 when there was a detainer lodged against him for duties due to
the Crown of £2,385. There were probably many similar instances in which
private and no less important creditors were involved,
160 A COLONIAL AUTOCRACY.
of those who might plunder her),! some of whom thought proper
to go into the town against all the efforts used by the officers —
and myself to prevent them; I represented this to Mr. Campbell,
showed him the men walking away, asked what I was to do?
how I could act? was ina manner laughed at by him; during
that day I was employed in looking after magistrates, sending
constables after my people; still unable to clear my ship for
sea—I threatened again to write the Governor on the subject.
The next day I received information that my clearance was made ~
out, on getting which I had to pay £20 16s. without any reason
given why, nor could I gain any information on the subject, nor
even a receipt for the money.” The departments of Govern-
ment receive with pleasure the penalties and forfeitures on the
ship and crew, without a wish or effort to assist the captain in
the execution of his duty, though robberies of every description
are practised to (and) from his ship.” ®
To supply the Colony with a sound currency had been one
of the problems before each Governor since the time of its found-
ation. In the very early days there had been no metal coinage
at all. Two legitimate substitutes—the Government store re-
ceipts and bills on the Treasury—and the promissory notes of
individuals, the so-called “Colonial Currency,” had competed at
a considerable disadvantage with the rum-currency. The former
—the Government bills—were the more stable of the two, for
the colonial currency was subject to continual fluctuations. At-
tempts were several times made by colonists to regulate the value
of these notes by combining among themselves to raise or lower
their exchange against the Government issues. To prevent this
Macquarie forbade these combinations, and also the issue of
promissory notes with the exchange value named upon them.
This was in 1813, when a supply of silver dollars had been re-
ceived from India, and from that time it was declared that only
those notes which were payable on sight in sterling money were
to be legal tender. To keep the silver coins in the country
? According to Piper, the Naval Officer, no ship ever had been robbed or in
any way injured during these occasions. Evidence, Appendix, Bigge’s Reports.
R.O., MS.
2 These were fees on clearance and on certificates from the Secretary’s office
after the muster had beenheld.
* Appendix, Bigge’s Reports. R.O., MS. oF
LAND, LABOUR AND COMMERCE, 161
Macquarie mutilated each by cutting out a small coin for ex-
change. The value of the large coin was 5s, and of the small
Is. 3d.)
__ The Proclamation insisting that the notes should be immedi-
ately payable in sterling money was a failure, and the courts
were unable to enforce it Its objects were made more un-
attainable by the action of Commissary Allan, who arrived in
June, 1813. He persuaded the Governor to allow him to replace
the old system of store receipts at the Commissariat by the issue
f promissory notes signed by the Commissary, pointing out the
‘greater convenience and simplicity of the method. But Allan
issued notes for private as well as public purposes, and improved
his own while injuring the Government’s credit. Had he kept,
as he promised to do, within his monthly estimate, he would
have run no risk. But he did not, and Macquarie was practic-
ally forced to restore the old custom of store receipts. He did
it, however, so suddenly as to cause Allan great financial em-
barrassment, and to procure him the sympathy of the whole
settlement? In 1816 a determined effort was made to do away
with the depreciated paper currency. At the end of November
the tender of sterling money for the face value of the currency
notes was again made compulsory, but finding that this could
not be enforced, on the 7th December a Proclamation was issued
containing a schedule of the rates at which they were to be ex-
changed, and this was carried out very leniently.* Wylde in
his desire to find a stable currency to replace the promissory
notes proposed that a bank should be established, a scheme
1D. 5, May, 1812, Bathurst to M., R.O., MS. also D. 1, 28th June, 1813.
R.O., MS.
_ #Proclamation, 11th December, 1813. Bent and Wylde both admitted actions
founded on the notes which by this Proclamation were declared illegal. See
Evidence of Wylde, Appendix, Bigge’s Reports. R.O., MS.
*D. 6, 23rd June, 1815. R.O., MS. A similar attempt was made by Allan’s
Successor in 1817 with precisely the same result.
__ # Wylde described the state of affairs when he arrived in 1816 in the following
words: . . . ‘I very soon . . . had to discover, that to give effect and validity to
any of the currency notes, for the non-payment of which actions were brought,
it would be necessary altogether to overlook and dismiss from the consideration
_ of the Court in Judgment several colonial Proclamations and Orders not only of
_ old but of very recent date, which declared all such notes as (were) in question
and their negotiations to be absolutely null and void”. Wylde to Goulburn
3rd March, 1817. R.O.,MS. The Proclamations were those of 1813. It was.
| this state of affairs which gave rise to the above-mentioned meetings, etc., and
| the Proclamation, 7th December, 1816.
q II
q
which had long been advocated by Macquarie but opposed by
the Colonial Office! Now, however, without further consulta-
tion with Downing Street, Macquarie went straight ahead. The
project was mooted in November, and the foundation of the Bank
of New South Wales was decided upon at a meeting held on
22nd of that month, 1816. Macquarie granted a Charter of In-
corporation, and in 1817 the bank opened for ordinary business
and for the issue of notes? In 1820it had a capital of £20,000
in shares of £100 each, of which 120 were paid up and the
shares stood at par. The expectations of the founders had been
fulfilled and the circulating medium of the Colony for the first
time placed on a satisfactory basis.
Macquarie granted the charter for seven years with “the
usual rights and privileges of a corporation . . . provided the
same shall meet . . . the approbation of His Royal Highness
the Prince Regent”.* This was the only support lent by the
Government, except that after 1819 the colonial revenues were
deposited with it.
The Governor considered that his Commission empowered
him to grant the charter and Wylde agreed with him. The
latter based his opinion on the fact that the Commission “al-
lowed the Governor to raise boroughs, create turn-pikes and
tolls, impose port duties and imposts, and determine from
time to time the legal tender, regulate the value of the sterling
medium and of the public money and interest thereon, establish
and direct public markets, and to dispose at discretion of the
Crown lands of the territory”.* But Wylde would gladly
have made a reference home upon the question before taking
any steps had he not thought the delay likely to hasten the
‘almost inevitable final consequences of such a fictitious capital
and circulating medium”. Only by the establishment of a
bank could the colonial currency be checked. An attempt
had indeed been made to check it, but had met with signal
1D. 2, 29th March, 1817. R.O., MS. Seealso Ds. of 1810 and 1811. H.R.,
VIIL., especially 30th April, 1810.
*The notes were of value of 2s. 6d., 5s., r0s., £1 and £5. See D.
In 1821 notes in circulation amounted to £5,902. See Bigge’s Report, III.
3D. 2, 29th March, 1817. R.O., MS.
#Wylde to Goulburn. Enclosure to D. 26, 1st September, 1820, R.O.
MS. Macquarie had done these things, but many of them were not justified
his Commission.
162 A COLONIAL AUTOCRACY.
LAND, LABOUR AND COMMERCE, 163
failure. “And yet,” he continued, “in a community like this
“no great public confidence can perhaps be even expected for
some years to be found, and no contributions could have been
obtained for a common stock but on the strongest Government
_ bility or partnership risk. Such an indemnity could only and
_ reasonably satisfy, and such it appeared to me could only be
| afforded, as in the one usual way, in the grant of Letters of In-
_ corporation and the constitution of a Joint Stock Company,”
' But the charter met with disapproval from the Secretary of
State who, after consulting the Law Officers, informed the
_ Governor that he was not legally empowered to grant it and
7 that it was consequently null and void.? “You will therefore,”
wrote Lord Bathurst, “intimate to the gentlemen composing
_ that establishment that they can only consider themselves in
_the situation of persons associated for the purposes of trade, and
_ as such not entitled to any of those special privileges which it
| was the object of the charter to confer.” “So long as the
_ bank is conducted on sound principles it will of course derive
from the Government a due degree of support; but you will
_ carefully avoid incurring any responsibility on account of it, or
_ in any degree implicating the faith of the Colonial Government
_ in its pecuniary transactions.”
a Macquarie in reply referred to Wylde’s opinion and enumer-
EA ated the advantages which had already accrued. ‘‘ Antecedent
_ tothe opening of the bank,” he said, “there was scarcely a mer-
_ cantile transaction which did not become the subject of a law-
suit before payment could beeffected. . . . Now in consequence
_ of the facilities rendered by the bank, mercantile contracts and
| payments are as punctually observed and as promptly made, as
_ they could be among the most eminent merchants on the
_ Royal Exchange. These, my Lord, are effects that could
never have been looked forward to, by any other means, in a
new country like this, unprovided with any kind of specie, ex-
cept what may remain of the ten thousand pounds in dollars
sent . .. by order of Government from India.” *
th F 1 Wylde to Goulburn. Enclosure to D. 26, 1st September, 1820. R.O.,
"sD, 22, 20th October, 1818, C.0., MS.
3D. 26. See above.
4
The charter apparently remained in force although it had
been declared null and void.! Bigge considered the bank a
beneficial institution, but that no royal charter was necessary.
Without it indeed he thought a more cautious policy would be
ensured,
A curious incident had arisen when the Articles of Incorpora-
tion were drawn up and put before a meeting of the share-
holders, which was described by Wylde in his evidence to
Bigge. The Governor was dissatisfied with the 7th article,
which excluded persons who had been convicts from the direc-
tion of the bank. ‘‘ But,” said Wylde “had an ex-convict been
appointed (and it was known that one would be proposed) all
the other directors would have resigned.” Wylde saw what was
the feeling of the meeting, and proposed and carried the exclu-
sion clause. When he waited upon the Governor later to sub-
mit the articles to him, he found that this affair had already
been reported, with the result that it had “excited in him a
strong opinion and feeling insomuch that I retired from all ex-
planation.” ?
The New South Wales Bank was nevertheless largely patron-
ised by the convict and ex-convict class.) They much pre-
ferred its facilities to those of the Savings Bank, which gave a
lower interest and from which it was troublesome to draw money
at short notice.® The Savings Bank was founded by the exer-
tions of Mr. Justice Field in June, 1819, for the benefit of con-
victs and the poor people generally ; and its rules, prefixed by
164 A COLONIAL AUTOCRACY.
“ A Plain Address,” were printed and distributed to all convicts —
arriving in the Colony.
“Many of you,” so ran the address, “bring small sums of
money from England, your own savings or the bounty of your
friends, and have no place of safe deposit for them upon landing
in this Colony. Instead of trusting those sums to any private
individual, you are recommended to place them in the Public
Savings Bank”. . . . The convicts, however, responded feebly
to this invitation. They preferred to trust to some friend who
knew of an investment which promised quick though uncertain —
1 This seems the only inference to be drawn from the statement of Bigge in
1823 that the “present” charter will expire in 1824. Report, III.
2 Wylde’s Evidence, Appendix, Bigge’s Reports, R.O., MS.
§ Interest in Savings Bank was 1s. 6d. per £1.
|
LAND, LABOUR AND COMMERCE. 165
profits or to leave their money in the New South Wales Bank,
from which they could draw it at a moment’s notice. The
principal superintendent of convicts also acted in his private
‘capacity as banker and money-lender, a calling not very con-
_sonant with his official station.
With a sounder currency, a more hopeful agricultural
outlook, a prospect of encouragement to the wool-trade and
lighter duties on South Sea products, the future looked brighter
‘in 1821 than it had done for many years. But the social con-
ditions of the Colony were very troubled. The increasing
“number of free settlers, both those from England and those
born in the Colony, even the children of the convicts, began to
eo together against them. These, as they grew richer and
j became more disliked, and after 1821 began to lose ground.
‘Under Macquarie’s rule they reached their highest point socially
_and economically, and with his departure their day declined.
CHAPTER VI.
ON THE HIGH SEAS.
AvuTHORITIES.—Despatches etc. (especially for 1817) in Colonial and Record
Offices and Sydney Gazette. P.P. 1812, II.; 1819, VII. ; 1822, XX.; 1823, X.
Jenkyns (Sir H.), English Rule Beyond the Seas. |
THOUGH the Judge-Advocate had a Commission as Judge of
the Court of Vice-Admiralty, there were but few matters with
which his court, being one of instance only, could deal. There
was, for example, no Commission giving jurisdiction in cases of
prize, and when, during the American War, British vessels put in
bringing prizes for adjudication, they had to be sent on to India
or Ceylon.! The court might take cognisance of “all breaches
of the laws of trade, navigation and revenue, as well as suits —
for the recovery of seamen’s wages”.2 There was, however, a —
great ignorance of Admiralty law in Sydney, and in point of fact |
the only case brought before the Court of Vice-Admiralty from —
1810 to 1821 was that of the Tottenham in 1818.° Questions of —
seamen’s wages were generally submitted to the magistrates,
and the Judge-Advocate’s Commission was thus for all practical -
purposes non-existent.
Macquarie had, of course, no control over commanders of
the Navy, and occasionally found his powerlessness in this
respect inconvenient, though visits from King’s ships were not
frequent. During the war with America a few put in for re-
freshments and repairs, and amongst others the Samarang, sloop
of war, with Captain Chase incommand. He brought with him
from India a supply of £10,000 worth of silver dollars for use in’
the Colony, and stayed some time in the harbour, “ most tyrannic-
ally trampling upon the personal freedom of His Majesty’s sub-
1D, 28, June, 1813, and D. 11, of 1814. R.O., MS.
2 Bigge, Report II. Ibid. See Chapter V.
(166)
ON THE HIGH SEAS. 167
_ jects”! The truth was that Captain Chase was preparing to
_ take the sea once more, and not wishing to fall in with an
American vessel without his full crew on board, was filling
_ vacancies by the method of the press-gang. As he kept to his
ship, and as pressing for the Navy was legal, Macquarie could
not restrain him, and by Chase’s orders men were impressed
“both afloat and ashore”. The Governor pointed out to Lord
Bathurst how unsuitable was the “‘ Impress Service” to.a country
where the “ great mass of the population is made up of Convicts,”
to press whom was “at direct variance with the object of their
transportation”. The Secretary of State agreed and made re-
presentations to the Admiralty, but as the war soon came to an
end no more was heard of such practices and the matter dropped.
Except for naval store-ships coming to New South Wales or
New Zealand for timber, or vessels on voyages of discovery, the
whole territory lay beyond the track of the Navy. It was in the
trade with New Zealand and in the South Sea Islands and in
transportation of convicts that the limits of the jurisdiction of
the courts of New South Wales were most severely felt.
The traders in the South Seas were rough, adventurous men
ruling with foul speech and brutal punishments their wild and
turbulent crews.* The annals of the Pacific are filled with
stories of murder and revenge. They tell of outrages on the
natives followed by fierce reprisals, mutinies successful or un-
successful alike ending in bloodshed, and scarcely credible op-
pressions practised by the captains on their crews.* Macquarie’s
missionary-magistrates had jurisdiction only when crimes were
committed on land. Even then, being wholly without coercive
powers, they could do nothing effective. In New South Wales
itself there was no court which could take cognisance of offences
committed on the Islands or on the High Seas. The pnly thing
1D.8, 14th August, 1813. R.O., MS.
2 See D. above and correspondence of C.O., MS., 1814.
8 These vessels were of varying size, from 250 tons to 800 tons, for no vessel
of less than 250 tons might navigate in these seas according to the East India
Charter. The cargoes taken to the natives consisted of Bengal prints, slates and
pencils, gunpowder and muskets. The Marquesas Islands, however, were so well
supplied with muskets from America that they would take no English ones. See
Appendix, Bigge’s Reports. R.O., MS. | ase 1
4¢.g., the master of a ship would entice men to join his crew and then starve
and ill-treat them, apparently for no reason save the gratification of his brutality.
See case of “‘ General Gates,” Appendix to Bigge’s Reports. R.O., MS.
168 A COLONIAL AUTOCRACY.
that could be done was to hold an investigation into any charge
brought against a ship’s master or crew—a purely magisterial
inquiry which was only effective if followed by committal and
then the trial of the accused in England.
The case of Theodore Walker illustrates many of the evils
of the South Sea trade, and shows how incurable they were
while the scope of the colonial courts was so restricted.
Early in 1813 a small vessel, the Daphne, was trading in the
South Sea Islands. At Otaheite the master added to his crew
by carrying off four or five natives. These natives, joining with
some coloured men of the ship’s company, mutinied, killed the
master, took possession of the vessel, and either killed the re-
mainder of the crew or put them ashore without food or water
on adjacent islands. Some of them, however, survived, and
spread the story of the mutiny. The death of the master, said
Macquarie, though lawless, was no more than fitting retribution,
for he had been guilty of the most wanton and vicious crimes.
On one occasion some friendly natives came on board his
ship to trade with him, and looked with the greatest respect
and curiosity at all it contained. The captain, wishing to get
quickly away, ordered the crew to clear the visitors from the
ship, and they were flogged and beaten off. Their canoes had
meanwhile been swamped, and the natives, unable to get to
them, were drowned in full view of the Daphne as she stood off
to sea. The savagery to which her captain afterwards fell a
victim could scarcely equal the cold cruelty of this episode.
The crime of mutiny did not go unavenged. A short time
afterwards, when the Daphne was in the Bay of Islands, the brig
Endeavour, Theodore Walker, master, came into harbour there.
Walker at once attacked the mutineers, and after some shots
had been exchanged the firing from the Daphne ceased, and
word was brought that her crew had abandoned her. Walker
boarded the ship immediately and ordered a search. One man,
a Lascar, who had been one of the leaders of the mutiny, was
found in hiding. Walker ordered him to be taken on board
the Endeavour and hanged him at the yard-arm. Henry, one
of the missionary magistrates, reported these events to Mac-
quarie, November, 1813, and the story was known when Walker
reached Sydney. The Governor ordered the magistrates to
ON THE HIGH SEAS. 169
hold an inquiry into the death of the Lascar, as a result of
which Walker was committed to gaol until future proceedings
might bedecided upon. The evidence was sufficient to support
a charge of murder, and, on the advice of the Judge-Advocate,
Walker was admitted to bail, and the matter referred to the
Secretary of State.!
Lord Bathurst consulted the Home Office and the Law
Officers, and in July, 1815, instructed Macquarie to send
_ Walker and the necessary witnesses to England in order that he
_ might be tried at the Admiralty Sessions under a special Com-
- mission.”
It was not easy for the Governor, when he received these
instructions at the end of 1815, to get together the witnesses who
had been examined by the magistrates in 1813, nor could they
be compelled to go to England.* In the end he sent Walker
home with as many witnesses as he could. Nothing further
appears of the case in any Colonial Office Documents. It
seems that Walker was never tried, and the only result of
Macquarie’s labours was the ineffective Act of 57 Geo. IIL,
cap. 53. '
By this Act “ murders and manslaughters committed on land
_at the settlement of Honduras by any person within the settle-
ment, or committed on the islands of New Zealand or Otaheite
or within any other islands or places not within the British
_ dominions, nor subject to any European state or power, nor
| within the territory of the United States of America, or any
person sailing in or belonging to a British ship, or who had
sailed in or belonged to and had quitted any British ship to live
| in any such island or place, might be tried and punished in any
1D. 1, 17th January, 1814. R.O., MS.
2In accordance with 46 Geo. III., cap. 54. This was an extension of the two
_ ‘statutes, 22 Hen. VIII., cap. 15, and rz Will. IIl.,cap.7. The first of these
gave power to try offenders of treason, felony, and robbery or conspiracy at sea to
a Commission of Oyer and Terminer issued under the Great Seal. The second
gave power to try piracies or robberies committed at sea by a Commission of
% and Terminer issued under the Great Seal either in the Colonies or at sea.
The 46 Geo. III., cap. 54, extended this power to the trial of any offence com-
‘mitted atsea. Bent thought “it would be advisable either to issue a Commission
for the trial of such offence pursuant to the statute ” above, in New South Wales,
to establish there a Supreme Court of Judicature with power to take cognisance
of such offences. Letter to C.O., 14th October, 1814. R.O., MS.
‘ 3D. 7, 18th March, 1816. R.O., MS.
170 A COLONIAL AUTOCRACY.
part of the dominions of the Crown under the Act”! But the
scope of the Act was restricted and no Commission issued for
the trial of such offences nearer than Ceylon. Bigge reported
that it might be efficacious if extended so as to cover all offences.
committed by British subjects on the high seas, and if a Com-
mission were issued for their trial in New South Wales.?
But up to 1822, at any rate, the Act had never been enforced.
There was, however, in the transportation of the convicts, a- .
whole chapter of events taking place on the high seas which
had a peculiarly strong interest for New South Wales. It was.
practically impossible between the Colonial Government, with —
its limited jurisdiction, and the Home Government, so remote |
- from the point of disembarkation, to enforce efficient safeguards —
for the good treatment of the convicts. The statistics in them--
selves suggest that, due consideration being had to the senti-
ments and appliances of the period, the service was not badly
carried out. From 1810 to the end of 1819, 18,761 convicts
were despatched to Sydney, and only 236 died on the voyage.*
But now and again this favourable picture was obliterated, and —
in the light of judicial inquiry horrors such as those on board the:
Chapman, or hideous depravity such as that on the Friendship, —
took its place. These inquiries made only too clear the help-_
lessness of the Government adequately to punish or prevent.
Between 1810 and 1820 many improvements were made in
the organisation of the transport service. In 1812 it was
carried out by a Transport Board under the orders of the
Treasury and Home Office.® The Treasury sent an order to
the Board to take up vessels which were engaged through the
underwriters at so much a ton for the voyage. Provisions were
supplied for the convicts for the voyage and for nine months
after their arrival by the Victualling Board.’ The convicts and
their services were assigned to the master of the ship, who had :
1 See Jenkyns, English Rule Beyond the Seas, 1902, p. 143.
2 Bigge’s Report, II.
8 See Appendix, Bigge’s Reports. R.O., MS. Figures of number of convicts-
landed only given up to end of 1820,
4 See later in this Chapter.
5See Evidence of McLeay, Secretary to the Transport Board, before the
Committee on Transportation, 1812.
6 This provision for use in the Colony was discontinued before 1819. See
Chapter V. Hospital comforts, clothes and bedding, were also put on board.
ee ae
ON THE HIGH SEAS, 171
complete control over them during the voyage. The master
_of the ship and the owners signed a Charter-party whereby the
‘master was bound to hand over the convicts in safety to the
_ Governor at the end of the voyage and was liable to heavy
penalties if he did not. He was also bound by Instructions
from the Board to fit up the ship in particular ways for the
reception of the convicts, to allow them on deck as much as
_ possible, and to note in his log-books all that happened on the
voyage. The log-book was submitted to the Governor's inspec-
tion at Sydney, and if he was satisfied that the master had
_ carried out his contract satisfactorily, treating the convicts fairly,
_ serving out their rations regularly and in the right amounts,
_ he gave him a certificate to that effect. If no certificate were
_ given, or if the Governor gave a bad report of the master’s
behaviour, he might be prosecuted in England or lose part of
the payment for his services. If the certificate were in order,
_ however, he received an honorarium from the Treasury. The
_ Owner or master of the transport was under the further obliga-
_ tion of providing a surgeon, whose duty it was to care for the
_ health of the prisoners, and to keep a full and particular diary
of the voyage. This diary also was submitted to the Governor,
who might, if he felt any suspicion of its genuineness, require
the surgeon to make an oath on the subject.!
The duty of the surgeon was to keep the convicts in good
_ health just as that of the master was to keep them “safe,” and
| the surgeon received a reward if the Governor’s certificate was
_ satisfactory.” It was, of course, a very difficult thing to decide
_ whether illness on board was or was not the fault of the surgeon.
On the General Hewitt there was an outbreak of fever and
_ great mortality,® but Macquarie, after an inquiry held in Sydney,
_ did not consider himself justified in withholding the surgeon’s
certificate. The Home Office, however, refused to recommend
_ him for a gratuity to the Treasury, and the Under-Secretary
_ wrote to Goulburn asking that Macquarie should be more strict
in future.t In 1815 a change was made and the Government
1See later for effect of this clause in the Instructions.
2See Instructions to Masters and Surgeons from Transport Board, issued in
February, 1812. See C. on T., Appendix.
8 More than forty died and sixteen were landed ill.
4See Beckett to Goulburn, roth December, 1815, R.O., MS.
172 A COLONIAL AUTOCRACY.
placed the convicts in the charge of a surgeon-superintendent
appointed by the Transport Board from the naval surgeons.)
This officer was responsible, not to the master of the ship, but
to the Board. The guard of soldiers who always accompanied
the transports, and were usually under the command ofa young
officer of the rank of lieutenant, was under the joint control of
the surgeon and the captain. The naval surgeon was a great
improvement on former transport doctors, and the death-rate |
fell considerably.2, At the same time the system introduced a —
new difficulty by dividing the power between surgeon and ©
master. This difficulty was in no way lessened by the new
and more detailed Instructions issued by the Board in 1819. :
“The two points,” wrote Bigge in his first Report, “on
which such a collision of authority have most frequently oc-
curred are the admission of the convicts to the deck, and the
taking off their irons at an early period after leaving England ;
both, it has been observed, of considerable importance to the
maintenance of their health and discipline.
“It is to the interest of the surgeon-superintendent to de-
liver the number entrusted to him in a good state of health;
it is to the interest of the master to deliver them only in safety ;
and the heavy penalty into which he enters, for the punctual
fulfilment of this part of his duty, must naturally outweigh the
contingent value of the remuneration that is promised for his
general good conduct and humane treatment; or the considera-
tion of prejudice or loss that an opposite line of conduct may
occasion to his owners. It is the opinion of Mr. Judge-Advo-
cate Wylde, that to remedy these doubts and discussions which
take place between the masters and surgeon-superintendents
1 This was done at the recommendation of Dr. Redfern (of N.S.W.), who had
reported to Macquarie on the case of the General Hewitt, and suggested this
amongst other improvements. See MS. letter in R.O. Correspondence for 1814.
2 From 1810 to 1815—
Number embarked . x EU i (3
Number of deaths . ; : 131
From 1816 to 1820—
Number embarked 4 r Me Hi
,
Number of deaths : ;
See Returns in Appendix, Bigge’s Reports. R. O., MS. ° See Evidence of Dr.
Bromley, C. on G., 1819, which clearly shows the improvement which had taken
place. He used to keep the whole number of convicts on deck during the day, |
but that was an unusual course.
ON THE HIGH SEAS, 173
of convicts, the authority of the surgeon should be more defined
and that to him should also be given the property in their
arvices and the safe custody of their persons,”’!
_ Bigge thought that such a course would have been a danger-
ous one, for the master who was responsible for the safe naviga-
tion of his ship should have power to interpose whenever he
considered it endangered by any concessions or laxity of
scipline amongst the prisoners. He thought the only remedy
lay in the fearless exercise by the surgeon of the right to enter
in his journal any refusal of the master to do what the surgeon
considered necessary for the health and fair treatment of the
convicts. If the master and surgeon agreed in treating them
badly there was no remedy.
_ From 1810 to 1820 the average length of the voyage was
four months. No description can include all the variety of
_ good and evil conditions which existed on different ships. The
character of master and officers affected the convicts no less
than that of the surgeon-superintendent. But in general out-
line life on one transport differed little from that on another.
The convicts slept in long prisons below deck, in bunks and
-hammocks.* In these prisons they worked and ate their food
and spent the greater part of the day. They were allowed on
deck in small parties, well guarded and for but a few hours at
atime. When they first came on board they wore double irons,
but these were usually struck off as soon as the voyage com-
-menced. They were occasionally replaced as punishment for
' insubordination or disobedience, and corporal punishment was
_ Often inflicted. The surgeon was bound, however, to make an
entry in his journal of all punishments. The hospital which
_ was fitted up on each transport was a favourite resort, for there
discipline was relaxed and more liberal rations given. But the
surgeon had stringent instructions only to admit those who were
_ suffering from severe or contagious diseases.
# The voyage must have been intolerably tedious. The men
1 Bigge’s Report, I. 2 Ibid.
3 The boys slept five in one berth and the men four. See Evidence, Bromley,
_ C.on T., 1819. See also Evidence of Bedwell before C. on G., 1819. He had
_ gone out as surgeon in 1812, and stated that the men slept six in a berth of 44 feet
34 feet.
174 A COLONIAL AUTOCRACY.
came, not from the disciplined prisons of the present day,
from the ill-regulated gaols and hulks of a hundred years ago.
There life had been brutal and squalid, but full of excitement. |
On the transport there were long days of idleness, varied by
agonies of sea-sickness. As they became used to the move-
ment of the ship they found no way of filling the hours save
gambling (nominally forbidden), quarrelling and plotting. The
plots ranged from mean tricks to get another man’s rations or
to get an extra hour on deck, to conspiracies to gain possession —
of the ship and sail to far-off climes. The surgeon usually kept —
a school for the boys and such of the men as cared to learn to
read or write. Far more fascinating must have been the school
of crime of which the old and seasoned convicts were dominies —
and ushers. There they learned a new tongue, that strange
and debased English which has a peculiar vigour in spite of its
sordidness. Some of the surgeons compiled vocabularies of
this thieves’ patter or “flash” slang. These, and some rather
frivolous collections of anecdotes, are all that remain of their ob-
servations—for a unique opportunity for the student of criminal |
psychology was wasted in the hands of the naval surgeons.
A scanty supply of bibles formed the prison library, and a
few of the convicts hoarded greasy volumes, telling tales of
crime and horror, which would have been confiscated on dis-
covery. No occupation could be permitted for which tools —
which could be turned into weapons of offence were necessary, —
and by 1820 no surgeon had discovered any employment not
requiring them. The men were in this respect worse off than —
the women, for the latter could at least sew. q
The fear of mutiny made convict transports insecure for the —
conveyance of passengers, though as a matter of fact no mutiny
did actually occur in these years.’ It was, however, a good in-
troduction to service in the Colony, for the voyage provided —
ample opportunity for gaining a knowledge of part of the popu-
lation. While probably the worst type of convict was most
prominent on board the ship, it must be admitted that many
1 Judge Field wrote in reference to the Chapman in 1817: “ ... Thequestion ©
is not whether the free men believed the convicts intended to take the ship, which
I make no doubt the former did believe, and think it very likely the latter did in-
tend, as perhaps there never was a ship full of convicts yet that did not intend—
if they could”. See Field to Wylde, 29th September, 1817. R.O., MS.
oa
ON THE HIGH SEAS. 175
‘behaved with a quiet resignation and decency which commended
them to officers and passengers.!
. The treatment of the female convicts differed little from that
_ofthemen. There was no punishment by flogging, nor were the
_ women put in irons, and the usual punishments were the wear-
» ing of a wooden collar and in extreme cases the cutting of their
| hair.
, The chief evil on the female transports was of a very in-
_ sidious and terrible nature. The usual conditions of the voyage
were first made known to the Colonial Office through a letter
_ from Nicholas Bayly, a gentleman-settler, to Sir Henry Bunbury.
“Women and sailors,” he wrote, “live together on the ships
_ coming to the Colony, and remain on board when the ship gets
into port until it leaves.” ?
The Secretary of State was genuinely horrified and directed
Macquarie to make immediate inquiries. This was but one of
_ several complaints made by Bayly, and anonymous extracts
from his letters were included in Lord Bathurst’s rather per-
emptory despatch. Macquarie at once concluded that Marsden,
with whom he was on the worst of terms, had written the letter,
and was furiously angry.
« .,. . I need only appeal to your Lordship’s candour,” he
wrote, “with the question: How is it possible that I, dwelling
in New South Wales, can prevent or be answerable for the
prostitution of the female convicts antecedent to their arrival
within my Government. .. . All therefore that remains for me
to remark . . . is that I have never for an instant, directly or
_ by connivance, sanctioned or allowed any prostitution of female
_ convicts, after their arrival in this Colony.” *
The case of the Friendship a few months later made it per-
fectly clear that he was well aware of the circumstances, This
_ vessel carried female convicts, and when it came into port the
' complaints of some of the women and the report of the surgeon
1 Men recommended by master or superintendent were supposed to be treated
better than other prisoners on arrival at Sydney, but it is doubtful whether such
recommendations were of value. Men who behaved well on the voyage fr uently
turned out badly. See Evidence of Principal Superintendent, Appendix Bigge’s
Reports. R.O., MS.
2 Bayly to Bunbury, 13th March, 1816. R.O., MS.
3 Bathurst to M., D. 82, 24th January, 1817. C.O., MS.
4D. 32, 4th December, 1817. R.O., MS.
176 A COLONIAL AUTOCRACY. (
caused Macquarie to order a magisterial inquiry.1 Already
inquiry had been held into the conduct of officers and crew a
St. Helena by a British admiral stationed there. But
surgeon wrote to the Governor “from whatever circumstan
that transpired at the investigation the effrontery of the ag-
gressors was considerably increased, and every act of pro
appeared to have received the sanction of law, ocular demonstra-
tion being considered indispensably necessary for conviction ;
and even then it was held that there was no power vested in
the authority of New South Wales to punish the offenders,” *
The Bench of Magistrates at Sydney absolved the master of
the ship and the surgeon-superintendent of all blame, saying that
they had done what they could to restrain the officers and crew. —
In his report to Lord Bathurst, Macquarie said : “ Your Lord-
ship will perhaps conceive . . . that I have been aware of these
abuses having frequently existed heretofore, and of course that
I should have reported them before the present time. In ex-
planation, I have only to observe that the present time is the
first occasion where the facts have been brought to view at all,
whilst there is reason to apprehend that on similar occasions the
officers were as generally guilty as the crews, and that a good —
understanding was thereby preserved between all parties, and
of course no complaints were made.”* “It is true,” he continued,
1 These inquiries were not infrequent and were held at the Governor’s
order to investigate complaints made by any of the officers or by the convicts
at the Secretary’s muster or afterwards. Thus in the case of the ¥anus —
in 1819, an inquiry was held in consequence'of complaints made by Bayly, to
whom two women who had been assigned from that ship as domestic servants —
confessed that they had lived with the captain and surgeon throughout the
voyage. See Bigge, I., and Bayly to C.O. 1819, R.O., MS. The right of the
magistrates to hold these inquiries was based on the instruction which allowed
the Governor to make the surgeon swear to the truth of his report. See above.
See also Wylde’s Evidence, Appendix to Bigge’s Reports, R.O., MS. and Bigge’s
Report, I.
2D. 1, 3rd March, 1818. Enclosure, R.O., MS. 3 Tbid.
4D. 1, 31st March, 1818. R.O., MS. When convicts and those who were
set over them conspired together it was difficult to punish the guilty. Several
times the men, ¢.g., were given short rations and then bribed or promised bribes
so that they ‘should not complain at the muster. On two occasions these
promises were not fulfilled, and then the men complained. The magistrates
held in such case the masters and surgeons were no more guilty than the
prisoners who had been, as it were, accomplices, and therefore peace =
complaints. This was, of course, an error, for the masters and surgeon
been guilty of dereliction of duty in disobeying the instructions of the Board
whose servants they were, and in not carrying out the stipulations of the
Charter-party.
ON THE HIGH SEAS. 177
7“ ‘I have incidentally learned that such mal-practices did exist
among the men and women in some of the female transports,
but I have not felt myself warranted in making any direct report
of such circumstances until the present time, as no complaints
made to me thereon.”
_ He suggested no remedy, though he expressed himself as
eager to carry out any directions which his Lordship might
give “in order to save the poor unprotected creatures from
_ being involved in a profligacy during the passage which per-
| haps the natural inclinations of many of them might be averse
to, but which, I have no doubt, when once forced upon them,
will tend strongly to render them abandoned during their future
lives”.
With all his humanity Macquarie never displayed genuine
interest or care for these women. He seemed to turn with
loathing from the terrible subject. He knew his prohibitions
‘were disregarded, but he made as few inquiries as possible, as
though he feared to touch one abuse lest a thousand should show
themselves.!
Bigge believed that the evil might be brought to an end by
_ giving the master more control over his crew in this respect, and
power to the New South Wales magistrates to punish them
further, if necessary. by forfeiture of their wages, right of appeal
being allowed to the Court of Vice-Admiralty at Sydney. This,
_ however, would not have touched the evil when the master him-
self was implicated.
Macquarie was unsparing in hunting out the perpetrator of
any crime against the male convicts, and no more awful example
_ of the tragedy possible under the system of transportation could
| be found than that afforded by the case of the Chapman.
i _ The arrival of this transport with Captain Drake in command
i from Ireland on the 26th July, 1817, was the signal for a re-
_ markable outburst of feeling throughout the town of Sydney.
_ The publication of the Gazette was delayed a little that news of
’ the arrival might be inserted, for the shipping news was, of course,
f
'
I
’
1e.g., the state of the wool factory where the women worked at Parramatta
m was disgraceful. A new factory, which had been urgently required since 1815
_ (when the need was pointed out to Macquarie by Marsden), was built in 1819, but
was little better than the former one. See Bigge’s Report, I.
) 12
178 A COLONIAL AUTOCRACY.
of great interest to the people of this remote Colony. In this”
instance there was a thrilling adventure to report: “The com=_
plement of prisoners received on board the Chapman was nearly |
200,” said the Gazette, “seven of whom, we have unhappily to
deplore, were killed in a daring mutiny, and a number of others
wounded. The attempt was made to take the ship, and what is
still more terrible to relate, the mutineers were joined by several
of the ship’s company ; who, with the ringleaders, have been kept -
in confinement ever since.” Such was the story circulating in
the town that evening. |
The muster was not held immediately, and on the 3oth July.
Campbell, the Governor’s Secretary, wrote thus to Captain
Drake :-—
“The Surgeon-Superintendent of Convicts on board your
ship . . . informed me yesterday that you had declined striking
the es off the convicts previous to the muster which I am to
hold on board to-morrow morning unless you received special -
instructions from me.” He therefore desired that unless there
was strong cause to apprehend danger the usual custom should
be complied with and the men relieved of their irons.*
He received no answer to the letter, and when he went on
board next day found that his request had not been complied
with. Drake said Ain had received them in irons and would
land them in irons”. Campbell then proceeded to the work off
the muster, and aca it out with such thoroughness that it
occupied him for fully two days.
The condition of the men who had worn double irons for
almost the whole voyage was such as to move him to pity and
anger. The more he pressed his inquiries the more cause did
he have for indignation. For the first month, from 17th March to
12th April, nothing had gone seriously amiss, But on the 12th,
two of the convicts reported that the rest of the prisoners were
conspiring to take the ship. On the night of 17th April an alarm
was given that they were trying to force the grating of the
hatchway which formed the prison door. It was a hot night,
and the convicts were many of them lying on the floor of the
130th July, 1817. Enclosure to D. 29, 1817. R.O., MS.
2Campbell’s Report to Macquarie, rst August, 1817. Enclosure, D. 26, 1817.
R.O., MS. .
ON THE HIGH SEAS. 179
prison where it was cooler than in the bunks. When the alarm
was given the soldiers fired and continued to fire for some time
through the grating. They killed three men and wounded
twenty-two. Frightened to go down in the dark, the surgeon
left the wounded and the dead uncared for through the long
‘stifling night. From that time only half rations were served out,
and every night seventy (sometimes a hundred) men had been
chained naked to an iron cable in the prison. These were the
chief facts reported by Campbell to the Governor in one of the
most terrible documents of the convict times.
__ The master and surgeon had acted throughout without wait-
ing for proofs and in blind terror. | There was much reason to
doubt whether there had ever been any real cause for this terror,
whether a plot had ever been formed, and whether the story of
two tale-bearers, confirmed by conversations overheard by
terrified and suspicious men, had not been a complete fabrica-
tion.
When Macquarie received the report he was much disturbed.
An examination of the hatchways made it quite certain that no
attempts had been made to force the gratings.!_ That much being
known, he determined to detain the Chapman until further in-
quiries had been made, and Captain Piper, the naval officer, was
_ instructed to retain the ship’s register and not to let it out of his
hands without special authority from the Governor. “The
object of this injunction,” wrote Campbell, “is to guard against
| any risk of the master of the Chapman endeavouring to escape
| from the harbour, which would be facilitated by his possessing the
‘Teg ister.” This was on the gth of August, and four days later
_ Macquarie appointed by warrant a Court of Enquiry, consisting
of Judge-Advocate Wylde, D’Arcy Wentworth, Superintendent
| of Police, and J. T. Campbell, the Secretary, to investigate the
_ Occurrences of the voyage. The court had power to demand the
_ presence of witnesses, to administer oaths and require the pro-
duction of documents.’
“ Not having any court in this Colony,” wrote the Governor
ie to Lord Bathurst, “competent to take final cognisance of crimes
ee
14th August, 1817, D. 29, 1817. R.O., MS.
2 Campbell to Piper, gth August, 1817. Enclosure, D. 29, 1817. R.O., MS
313th August, 1817. Enclosure, D. 29, 1817. R.O., MS.
180 A COLONIAL AUTOCRACY.
committed on the high seas, I will feel it my duty so far
exercise the general powers with which I am entrusted for
protection of His Majesty’s subjects in the territory as to send
home prisoners these persons who shall be deemed m
criminal (if criminality be attached to the proceedings by the
Court of Enquiry), for your Lordship, and His Majesty’s Govern-
ment, to adopt such measures thereon as may appear due to thes
circumstances of the case.” !
The court met for the first time on the 20th August aol .
closed its proceedings—protracted by reason of Wylde’s other
judicial duties—on the 4th of October,
The period was not a tranquil one. The position of the —
officers and crew of the Chapman was dangerous, for the Sydney
people knew, most of them from personal experience, the
miseries of the voyage and the helplessness of the prisoners
under harsh discipline. Stories told by the convicts from the
Chapman were repeated in every tavern, and it was little wonder —
that there was talk of vengeance in the air. Drake, the master
of the Chapman, wrote to Campbell on the 19th August :-—
“In consequence of ill-treatment my ship’s company have
received from the people here, particularly on Sunday night, when —
several of them were unmercifully beaten, and their lives
threatened, as was mine and my Officers, and as we are to attend
to-morrow at the court-room, | beg you will have the goodness
to give us protection to and from that place. Several of the
people on shore were heard to say last night, that to-morrow
should be their day for revenge and that they would have my
life. Under these circumstances I beg you will take it into
consideration.” .
Campbell asked Wentworth to provide special police protec-
tion, and told Drake of the arrangement without concealing his
contempt and scepticism ; but there is no reason to suppose that
Drake exaggerated the case.
The forced detention of the Chapman of course caused the
captain great loss and injury, and he was probably uneasy as to
the result of the inquiry. While Macquarie was at Parramatta,
and Lieutenant-Governor Molle in charge at Sydney, Drake
1D. 29, 12th September, 1817. R.O., MS.
2 Drake to Campbell, rgth August, 1817, Enclosure, R.O., MS.
ON THE HIGH SEAS. 18
_ made an attempt to leave the port. Molle and Macquarie were
on bad terms, and Campbell, always very faithful to his chief,
_ was anything but cordial to the Lieutenant-Governor; but at
_ midday on the 2nd September he warned him that the Chapman
was to be carried off the next night. No attempt was made,
__ however, until next morning, when she “hoisted a Blue Peter
_ and fired a gun asa signal for her leaving the port”. Molle did
not know what to do, and sent round to Campbell, who refused
to assist or suggest. He pointed out that he had warned Molle
__ the day before, and as he had not heard what measures had then
been taken, he could not presume to offer advice on the situa-
tion?
Molle then sent a military guard on board with orders to fire
| on the officers ‘‘in case the ship offered to move”.2
be On the 4th September, Drake wrote to the Governor stating
" that his ship was ready for sea and demanding the cause of de-
_ tention; and not receiving an answer, applied to the Judge-Ad-
| vocate. He learned that certain officers must be detained, but
_ the ship might depart as soon as he had replaced them.* On
the 24th he asked for the ship’s register, and the naval officer
: i of course refused to give it up.
“T stated,” Drake wrote to Macquarie on the 14th October,
“to the Special Committee . . . om the 4th instant, that I had
_ nothing further to offer in evidence. The same indecision seems
_ still to pervade their councils, the ship’s register is withheld, the
_ ship is occupied by a military force and laying at heavy ex-
_ penses ready for sea.”* He wrote again in a similar strain on
- 28th October. The Secretary replied: “I have it now in com-
_ mand from his Excellency to inform you that he cannot possibly
_ interfere in your case until the Court of Enquiry shall have re-
_ ported on the circumstances of the charges alleged against you.
_ His Excellency desires it to be perfectly understood that the
_ detention of certain officers of the ship Chapman on criminal
_ charges need not at all interfere with the ship proceeding
1Campbell to Molle, 11., 3rd September, 1817. R.O., MS.
2 Drake to Macquarie, 14th October, 1817. R.O., MS.
3J. A. Wylde to M., 2oth September, 1817. R.O., MS,
4 Drake to Macquarie, 14th October, 1817. R.O., MS.
182 A COLONIAL AUTOCRACY.
conformably to the port regulations from hence . . . on
officers being appointed to take charge of her.” !
Drake wrote again, and his letter concluded in
words :—
“Tf there be specific charges against any of the officers or
crew of the ship Chapman, | have to solicit that those of the
officers and crew of the said ship so charged be withdrawn fi
on board by the proper authorities, that arrangements may re
forthwith made for their being properly succeeded in their
different stations on board.” ?
It was the difficulty of deciding on the specific aoa
which was the cause of the delay. Though the court held its
final sitting on the 4th October, it did not report to the
Governor until the 17th November. On the oth, Wylde wrote
to him describing his efforts to obtain a unanimous report, but
he was unsuccessful, and on the 17th Campbell presented one
report and Wylde and Wentworth another.
On many points the same views were put forward in both.
No proof had been forthcoming that a mutiny had ever been
projected. The means taken to arrest what those in command
deemed to be mutinous attempts (though on amazingly little’
evidence) had been far in excess of necessary self-defence. One
night an alarm was given that the convicts were trying to seize
the boats, and that night four innocent men were shot down.
The alarm was proved at the inquiry to have been utterly with- |
out foundation. The proofs of shooting by three soldiers of the
guard were quite conclusive, and they were committed to the
Sydney gaol to be tried for murder in England. It was in
regard to the captain of the ship, the surgeon-superintendent, —
the officer of the guard, and the three mates, that the reports _
differed. Campbell proposed that these men should all be-
committed for trial on criminal charges of varying heinousness
from murder downwards, and Macquarie concurred. He had
read through the evidence, depositions, log-books and journals
which had been before the Court, and discussed the matter with
Campbell and probably with Field, the Judge of the Supreme
Court. Field had also communicated his opinions to Wylde,
1 Campbell to Drake, 29th October, 1817. R.O., MS.
2 Drake to M., 8th November, 1817. R.O., MS.
ON THE HIGH SEAS. 183
who had sent him notes of the evidence, and on this occasion
Field and Macquarie had been in agreement.?
__ Thus fortified in his opinion, Macquarie wrote to the Judge-
Advocate, so soon as he had received the reports, that he felt
himself compelled by his sense of public duty “to dissent en-
tirely from the opinion given by you and D'Arcy Wentworth,
Esq. . . . asto the degree of criminality of the parties concerned,
anc of there not being sufficient grounds for committing them
for trial in England. . . . I feel it my indispensable duty to
Tequest you will as soon as practicable reassemble your Com-
“mittee of Enquiry for the purpose of revising your own and
Mr. Wentworth’s report. I must also request that the Hon.
Mr. Justice Field may be solicited to join the Committee and
_ give his /ega/ opinion as to the course which ought to be adopted
in regard to the commander of the Chapman, the surgeon-
_ superintendent, the officer commanding the military guard, and
three mates of the Chapman, one of whom, Mr. Baxter, appears
to have been the most active and sanguinary in the long series
_ of cruelties and atrocities committed on board the Chapman.”
There followed a paragraph of which the unconscious and imper-
tinent patronage must have made Wylde’s blood boil. ‘“‘ After
having revised your report,” wrote the Governor to his chief
_ Law Officer, ‘‘and added thereto the Hon. Mr. Justice Field’s
legal opinion, I request you will favour me as soon as possible
_ with the result, that I may adopt such measures as may then ap-
_ pear expedient on the occasion.” Thus Wylde was to learn
| worldly wisdom from Mr. Campbell and law from Mr. Justice
| Field.
| Field wisely declined to join the Committee. “I beg leave
to submit to your Excellency,” he wrote, “ that not having had
| the benefit of Zearing all the evidence and inspecting all the
_ documents before that Committee, it is too late for me to come
q in as a member of the Committee, and give an opinion against
1 Field was never friendly with the Governor, and by 1820 was scarcely on
“ speaking terms. The division between them was due to the emancipist policy of
Macquarie, and especially to the fact that when Field opened his Court early in
_ 1817, Macquarie appointed Lord and Wentworth to sit on the Bench with him
___without telling him of the convict status of Lord and the all but convict status of
Wentworth. See Field’s Evidence, Appendix, Bigge’s Reports. R.O., MS.
2 Macquarie to Wylde, 17th November, 1817. R.O., MS.
7
es
184 A COLONIAL AUTOCRACY.
that of two members who heard all the evidence as it came
from the mouths of the witnesses, and were able to judge of
their veracity from-their sanner, which in ¢ria/ is always con-
sidered as important as the matter, although it undoubtedly is
less so in examinations in order to committal for trial....I
shall be very happy,” he continued, “to give Mr. Wentworth
my opinion upon the Criminal Law of any state of facts he may
lay before me; but if Ze, as a magistrate, has any doubt whether —
certain facts amount to murder or not in law, it is his duty to”
commit for trial and the opinion of the judges, and not to take
upon himself to dismiss. . . . As far as the Judge-Advocate, it
is not for me to presume to advise him: at your Excellency’s
request, I read the whole of the evidence and the superin-
tendent’s journal: upon these I had no doubts of the steps
which ought to be pursued, and wrote two friendly letters of —
advice as to the law and facts to the Judge-Advocate. . . . But |
if after Mr. Wentworth is apprised of my legal opinions he shall —
still persist in the tenour of his report, I can only say that I
shall be most happy to give the same opinion publickly and —
officially to your Excellency which I have given privately and
friendlily to the Judge-Advocate,” *
Wylde himself replied to the Governor with admirable
patience and restraint. He pointed out that in his report he —
had “not gone the length of asserting the opinion that there
was not sufficient grounds for committing the parties concerned
. for trial in England,” but only that there was not sufficient
evidence “to justify the commitment of the officer of the guard,
the superintendent, or the master of the ship, on a charge of
murder or on any other charge of a criminal nature,as would ex-
clude them from being admitted to bail thereon”. He expressed
himself as quite willing to meet Field, and he had already called
a meeting of the Committee for the next day.”
The Governor received this letter at a “quarter past ten in
the evening,” and replied early next morning that Wylde might ©
know of Field’s refusal.*
The Committee met, and Wylde and Wentworth sent a
1 Field to Macquarie, 17th November, 1817. R.O., MS.
2 Wylde to Macquarie, 17th November, 1817. R.O., MS.
3 Macquarie to Wylde, 18th November, 1817. R.O., MS.
ON THE HIGH SEAS. 185
sage to the Governor by Campbell. The Governor then
wrote to Wylde in the following terms :—
__ “TI have received a communication from you by Mr Secry.
Campbell to the effect that you and Mr. Wentworth feel your-
selves so fully satisfied of the accuracy of your late report .
that you do not conceive you can by any further revision bei in-
duced to alter it, and at the same time suggesting that in the
present stage of the business, you can conceive that the proceed-
ing most proper for me to adopt would be to call on you as
chief Law Officer of the Crown to furnish me with your opinion
_and advice in regard to the measures to be adopted in the further
prosecution of this affair.” This advice Macquarie asked for
and received a few days later.?
| Wylde proposed to send the officer in command of the guard
‘and the surgeon, who held a naval commission, to England to
answer either before a Court-Martial or a Court of Criminal
Jurisdiction. To secure the due appearance of the master and
three mates, he proposed to take recognisances or to hypothe-
cate the ship. The latter course, which was the one adopted,
_ “whether ultimately valid or not, is justified by the occasion and
_interrorem”. In the case of the three soldiers already mentioned,
_ the ordinary course could be followed. The witnesses, he
_ thought, should enter into recognisances of £100 each to appear
_ when called upon, except, of course, the soldiers and convicts,
'_ who would simply be sent home by the Government.
By There was a possible difficulty in regard to the arrest of the
“surgeon, but Wylde was of opinion that “whatever question
_ might be raised as to his being amenable to a Court-Martial
_ in respect of charges arising in service as a surgeon and superin-
tendent of a convict transport during the passage, yet in con-
| sideration of the full and general powers of your Excellency’s
Me ‘Commission as Governor, I can only give it as my ofznion that
your Excellency will be equally empowered and justified, upon
_ the report made, to adopt, at least zz /imine, the same measure
and proceeding as against Lieutenant Busteed” (the officer of
_ the guard) “leaving Surgeon Dewar ‘to be in England proceeded
_ against and tried as the merits of his offence shall require’.
1 Macquarie to Wylde, rgth November, 1817. 'R.O., MS.
2 Wylde to Macquarie, 24th November, 1817. R. O., MS.
186 A COLONIAL AUTOCRACY.
Macquarie very reluctantly consented to all these arrange
ments except with respect to Baxter, the third mate, “whe
appears to have taken all along so very prominent and sanguin-
ary a part in the various enormities committed on board the
Chapman,’ and whom he wished to send home a prisoner.1 .
The Judge-Advocate went into the whole matter once more. —
He thought this difference in opinion arose from the Gover-.
nor’s regarding everything which occurred on the whole voyage
as one continuous act—“ whereas it appears to me, that in legal —
consideration and principle—and your Excellency can be aware-
that I can know of ‘Justice and Expediency’? in no other
sense—the occurrences necessarily divide themselves . .. ” and
must be considered separately. Baxter, he thought, was not
sanguinary, and his prominence was due simply to the fact that
the convicts were his especial charge. “If,” he added, “your
Excellency ‘is so decidedly of opinion that he should be sent
home a prisoner, I am not aware of any reason why your
Excellency should hesitate to act upon it, for I have already
suggested, that it remains a mere point of discretion in the com-
mitting magistrate, and that under all the circumstances I am
not prepared to say that the commitment of any of the officers,
and of course of Baxter, would under any circumstances induce
any consequences upon the magistrates to suit or indictment,
and if not ona magistrate, a fortiori, 1 consider not on your
Excellency as Governor—but such a step cannot consistently —
surely be taken by a magistrate who views the whole case in a
light which reflects nothing of the wilful, malicious murderer, —
who breathes in malice prepense and moves not in apprehension
and alarm, but in atrociousness, consciousness and purpose.”
Wylde could not conclude without giving Macquarie a short
lesson, in somewhat involved phrases, on the correct judicial
attitude. Referring to a passage in the Governor's letter, he
said: “With respect to your Excellency’s observation, that your
opinion on this case has not been formed upon ‘the influence of
Mr. Justice Field’s or any other person’s opinion on the subject,
however much I * may and do respect that gentleman’s high legal
1 Macquarie to Wylde, 27th November, 1817. R.O., MS.
2 Quoted from Macquarie’s letter, 27th November, 1817. R.O., MS.
8 Wylde has “ you,” but clearly he means Macquarie, and as he is quotin;
from Macquarie’s letter the pronoun has been altered.
ON THE HIGH SEAS. 187
authority ’—I beg leave, with submission, to express my hope,
that your Excellency on reconsideration will be satisfied that
‘the tendency of my observations as to any influence goes no
further than as to legal construction and principle—not upon
the facts merely, but on the facts as involving legal distinctions,
_ proceedings, etc., and in this sense I trust I may be free from
| any apprehension that your Excellency would think it unfit to
. _be observed that your opinion ought to be influenced—not upon
_ the facts abstractly considered—but ‘by high legal authority’ on
legal considerations and points arising from these facts—and to
which I myself thought it due, on a difference of opinion, to
enter so at large into the grounds, as was the only motive that
_ urged me at all to the remark in general excuse and explan-
ation. I trust that no assurance on my part will be requisite
to satisfy your Excellency that I could not have any intention
_ of even in the least remarking upon that independence of judg-
ment and conduct which so peculiarly belong to your Excel-
lency’s measures and Government.” }
The Governor closed the correspondence in a conciliatory
fashion, adopting all Wylde’s proposals and expressing his
_ feeling “that in such cases as the present, involving ‘questions
_ of a legal nature and construction,’ it is peculiarly the province
of the first Law Officer of this Government not merely to
suggest but also to carry into effect the measures to be adopted
_ for the ends of justice.”
All the papers bearing on the case, the witnesses, including
ten soldiers and fourteen convicts, the three soldiers and the
__ two officers, were sent to England early in December. They
_ arrived in June, 1818. The surgeon at once applied to the
_ Navy Board to be released from his arrest. The Board wrote
_ to the Colonial Office supporting his petition and stating that
_ they could not find that he had been to blame for what had
_ happened. The matter was referred to the Home Office, who
_ decided that the surgeon must remain under arrest until the
_case had been inquired into by the magistrates.
The inquiry was held and a prosecution instituted against
«J the three soldiers. In January, 1819,:six months after their
if 1 Wylde to Macquarie, 28th November, 1817. R.O., MS.
OA 2 Macquarie to Wylde, 2gth November, 1817. R.O., MS.
188 A COLONIAL AUTOCRACY.
arrival in England, they were tried—and acquitted. Macquari
had later the humiliation of receiving through the Colonial
Office the following letter to Goulburn from the Home Office :-
“T am directed to request you that you will call
Bathurst’s serious attention to the public inconvenience which
attended these trials. To omit several points of minor import-
ance, it may be sufficient to particularise that it has been
necessary to set at large no less than thirteen convicts (some
of them of the worst description) who were sent to England as
witnesses, but were incompetent without a free pardon to give
evidence in this country. Lord Sidmouth! is well aware that
as Governor Macquarie is not invested with jurisdiction to try
any offences committed on the high seas, no prosecution
could in this case have been instituted in New South Wales.
But his Lordship recommends that the Governor should be
apprised of the serious inconvenience attending such a trial in”
England, and should be enjoined, in the event (Lord Sidmouth >
trusts the very improbable event) of the recurrence of so un-
fortunate a transaction as has led to the present inquiry, not to
send a case for trial in this kingdom unless he shall be strongly
impressed with the belief that the crime imputed to the accused -
will be proved to the satisfaction of a jury by a body of evidence
worthy of credit.” ?
When Macquarie had sent the last papers concerning the
Chapman to England in 1817, he had written :— P
“Altho’ I cannot but despair of effectual justice being
rendered by the mode I have, under the advice of the Judge-
Advocate, been induced to adopt, yet I still hope that sufficient -
may be effected at least to protect the persons of convicts in
future on their passage hither from the cruelties and violence
to which they have heretofore been, in a certain degree, exposed,
chiefly owing to the rude and boisterous description of men who
generally command merchant ships, and to the little care they
take to prevent their petty officers from exercising tyrannical
and unnecessary severities towards them.” ® A
He little thought that the evidence which had been accepted
1 Secretary of State for Home Affairs.
2 Hobhouse to Goulburn, 29th January, 1819. R.O., MS.
3D. 37, 12th December, 1817. R.O., MS.
ON THE HIGH SEAS. 189
. a Sy dney would be so scouted by a British jury, that the chance
punishing the men responsible for the infliction of three
10n ths’ misery upon two hundred helpless prisoners would be
) lightly weighed against the “inconvenience” of setting free
nit rtee criminals, or that the nightmare voyage of the Chap-
n would be dismissed quietly as ‘‘ so unfortunate a transac-
CHAPTER VII.
THE STRUGGLE BETWEEN THE EXECUTIVE AND THE JUDICIARY. —
Autuorities.—Despatches, etc., in Record Office (especially for the years
1814, 1815, 1816). Colonial Office (especially for the years 1815, 1816). Sydney
Gazette. P.P., 1819, VII. Historical Records of New South Wales, Vol. VII. —
IN 1809 the Secretary of State expressed the opinion that, how-
ever suitable the judicial arrangements of the Colony had been
to its infancy, they had already been outgrown. He therefore
instructed both Macquarie and Ellis Bent to report on the
changed conditions and the alterations which they considered
advisable in the Charter of Justice. Macquarie was ready at that
period to accept Bent’s lead in such matters, and it is therefore
to Bent’s letters that most importance attaches, Writing to
Lord Liverpool! on the 19th October, 1811,? Bent described in
detail the judicial needs of the settlement, laying stress on five
main points. In the first place, he advised that Criminal and
Civil Courts should be established in Van Diemen’s Land. A
Deputy Judge-Advocate had been appointed for that settlement
and had been paid a salary since 1803, but had never received
any patent of justice or commission, and consequently had never
held a court. The New South Wales judicature served
inadequately for the whole settlement.
Turning then to New South Wales, he dealt with the de-
fects of the Civil Court. In the two years during which he had
been in the Colony, 1,008 cases had come before him, involving
sums amounting to £184,500. The costs of these suits had
1 Castlereagh was Secretary of State until October, 1809, and was follov
by Liverpool, who held office until June, 1812.
2 See H.R., VII.
% According to Rusden, History of Australia, vol. i., p. 503, Collins, Liet
tenant-Governor of Van Diemen’s Land, considered the commission of the D
puty oe! iagmatpnigen related only to Port Phillip. He says that he had been
appointed to act in that district, where an attempt at settlement was made in 1803.
(190)
THE EXECUTIVE AND THE JUDICIARY. 191
weached £2,000 and the amounts recovered £59,000. The
‘growing importance and complexity of the work necessitated,
he thought, an additional judge, and lawyers to conduct the
_ pleadings.
| He suggested also that some restrictions should be laid on
_ the right of appeal from this court to the Privy Council.
. In the Criminal Court he urged that Trial by Jury should
_teplace the present system, and that prosecutions should be
' conducted by a Crown solicitor.
. Finally he reviewed the commission, status, and functions of
_ the Judge-Advocate, and recommended a complete change in
his position.
His commission was a military one while his duties were
civil. It placed him under the orders of the Governor, while at
the same time he was sworn to administer the law of England.
“ ... Ican assure your Lordship,” wrote Bent, “that the
_ comfort and happiness of any Judge-Advocate, nay, even the
' proper discharge of his duty, must depend entirely upon the
_ personal character of the person in whose hands the executive
_ power of the Colony happens to be vested.”
bl The duties of the office he considered too heavy for one
| man, and in many ways inconsistent with one another. Thus
_ in the Criminal Court he acted as judge in cases for which he
| had himself prepared the indictment, and in which he had the
_ conduct of the prosecution.
This letter of Bent’s was accepted in its entirety by the
_ Committee on Transportation of 1812, and they embodied its
_ proposals in their Report. But Lord Bathurst, the new Secre-
_ tary of State, held different views. He described in a letter to
‘ ‘tthe Governor, in 1812,! the reforms which were to take effect in
a new Charter of Justice to be issued for the Colony.
He agreed that thorough changes were necessary in the
Civil Court, that the cases required “ more elucidation than what
_ the parties, as they have no professional assistance, are able to
_ produce,” and that the decisions “are frequently too summary,
| __ while they are at the same time not sufficiently conclusive, and
_ from most of them an appeal to His Majesty in Council is al-
| lowed”.
ay 1D, 13, 23rd November, 1812. R.O., MS.
192 A COLONIAL AUTOCRACY.
He proposed to “divide the labour” and establish
courts, the Supreme Court and the Governor’s Court. In the
latter the Judge-Advocate would preside and the court be cor
stituted “as the Civil Court of Judicature now appears to be”.
It was to take cognisance only of cases in which the amount at
issue was below’£50. A similar court was to be established
at Van Diemen’s Land, presided over by a Deputy Judge-
Advocate. i
The Supreme Court was to consist of a Chief Judge and two
magistrates appointed by precept by the Governor. This Court
was to have an equity jurisdiction as well as cognisance of all
civil cases in which the amount at issue was over £50.
Procedure in the Governor’s Court was to be summary and
subject to regulations drawn up by the Judge-Advocate. In-
the Supreme Court solicitors were to be employed on either
side, and for this purpose the Government would encourage
their emigration. The rules of this court and the fees of both
were to receive the Governor's approval before publication. No
appeals were to be entertained against the decisions of the Gover-
nor’s Court and the judgment of the majority was to be final. ©
From the Supreme Court appeals might go to the Governor,
who was to be assisted by the Judge-Advocate. If the amount
concerned were over 43,000, an appeal might be taken from the ~
Governor to the Privy Council. There were also to be safe-
guards with respect to majority decisions in this court. If the
Chief Judge were in the majority, the decision was to be bind-
ing. If he were in the minority, and protested against the de-
cision, the protest was to be duly recorded, and appeal might
then be made to the Governor, who would, as in other appeals, —
be assisted by the Judge-Advocate.
The Criminal Court was to be left unaltered, and the Court
at Sydney to continue the administration of criminal justice for
Van Diemen’s Land, a settlement six hundred miles away. q
In refusing to accept the recommendations of Macquarie,
Bent, Bligh, Hunter (both ex-Governors) and the colonists ex- —
amined by the Committee on Transportation in favour of petty —
i
Advocate and two magistrates. The Governor’s Court consisted of the Judge-
1 He was not quite accurate. The Civil Court in 1812 consisted of the Judge-
vocate and two respectable inhabitants.
THE EXECUTIVE AND THE JUDICIARY. 103
juries, the Colonial Office took a strong step. But the experi-
ence of the following seven years, and the lack of unanimity
among the colonists when the question was revived in 1819, go
far to justify this hesitation, and it is probable that in 1812
much had passed in private conversation and in private corre-
_ spondence at Downing Street, which made Lord Bathurst slow
_ to accept without further inquiry Macquarie’s urgent appeal for
the establishment of juries.
__ “‘It is, however,” wrote Lord Bathurst, “a question how far
‘in criminal cases the trial by jury may not be advantageously
introduced. It is not necessary to dilate on the beneficial
P effects to be derived by that system of dispensing justice, but
before it is adopted in New South Wales, it is very necessary
_ gravely to consider how far the peculiar constitution of that
society of men will allow of the application of this distinguished
feature of the British Constitution: are there settlers in number
sufficient, capable and willing to undertake the duties. In a
_ society so restricted is there not reason to apprehend that they
“may unavoidably bring with them passions and prejudices
_ which will ill dispose them to discharge the functions of judg-
-ment? The great principle of that excellent institution is that
' men should be tried by their Peers—would that principle be
fairly acted upon, if free settlers were to sit in judgment on
convicts; and that too in cases where free settlers might be a
_ party? Would it be prudent to allow convicts to act as jury-
' men? Would their admission satisfy free settlers? Would
not their exclusion, etc., be considered as an invidious mark,
placed upon the convicts, and be at variance with the Great
Principle upon which the institution itself is founded ?
_ “These are questions which it will be very desirable should
_ be well weighed, and on which I shall be happy to have your
opinion, The proposed alterations in the (civil) Court of
_ Judicature need not wait for their solution.
“Qn the contrary it may perhaps be desirable that altera-
1Cf. e.g., the statement of Atkins, late Judge-Advocate of New South
__ Wales, in regard to settlers at the Hawkesbury: ‘I think, Sir, that except a very
_ few, a glass of gin would bias them”. (Johnston’s Trial, p. 17, 1811). Again
_ Dr. Townson in 1814 thought “jury tryal”” dangerous at a time when “‘ corruption
__ by spirits was so easy”. Enclosure in letter from Wilberforce to Colonial Office,
_ Ioth April, 1817. R.O., MS.
44 I 3
194 A COLONIAL AUTOCRACY.
tions in so important a part of the internal policy should be
gradually introduced.” q
In his reply Macquarie carried his proposals further than
before. He suggested that the Supreme Court should have the
power to order Trial by Jury in all civil cases in which they
thought “that mode of trial would be best calculated to do
justice between the parties”. He again proposed the ene
of the office of Judge-Advocate, substituting an assistant or puisne
judge, and leaving one of the solicitors to act where necesaii
at General Courts-Martial.? Another assistant judge might be
appointed to act with the Chief Judge in the Supreme Court
and thus relieve the magistrates “of a duty (which they much >
dislike on account of the great length of time occupied by these —
courts in civil cases) and the court and the public gain an
accession of professional knowledge and intelligence”.
Before this despatch reached Downing Street the n
charter, on the lines laid down by Lord Bathurst, had received
the assent of the Crown and been published as Letters Patent®
The new Chief Judge of the Supreme Court of Civil Judica-
ture, Jeffery Hart Bent, Barrister-at-Law of Lincoln’s Inn, and
brother of the Judge-Advocate, had been appointed and had
left England early in 1814. At the same time two solicitors,
with salaries of £300, had been sent out to conduct the business
of the new court.
J. H. Bent arrived in Sydney at the end of July and at once >
delivered to the Governor the Charter of Justice with which he
had been entrusted. He took the oaths of office, and the
charter was published on 12th August, 1814. Macquarie wrote
that he had every reason to believe “that this gracious measure
of His Royal Highness the Prince Regent will prove highly
beneficial to His Majesty’s subjects in this remote and improv
ing country.” * q
Ellis Bent, however, was deeply mortified by the scant at-
tention paid to his letters, and hoped that this was due to their
late arrival when the charter had already been decided upon.
ie
's
a
.
1D, 2, 28th June, 1813. R.O., MS.
2From 1810 to 1814 only three General Courts-Martial were held.
#13 & 14 Geo. III., Roll of Letters Patent.
4D. 11, 7th October, 1814. R.O., MS.
THE EXECUTIVE AND THE JUDICIARY. 195
As the Criminal Court had yet to be reformed he thought it
worth while to press his former suggestions, and to point out
inconveniences that might yet be removed. Of these the chief
was the establishment of two courts of concurrent jurisdiction.
The division of duties between the Chief Judge and Judge-
_ Advocate altogether was confusing, for the former had civil,
ecclesiastical and equity, the latter criminal, admiralty and civil
jurisdiction. A minor difficulty arose from the fact that the
two civil courts would jhave to sit at the same time, thus re-
- quiring two court-rooms and the attendance of four “of the
most respectable inhabitants of the Colony”.2 He was strongly
in favour of substituting an assistant judge for these members
of the court, who found attendance a burden and were of little
assistance to the judge.* They were, indeed, either nonentities
or obstructionists. Their lack of legal knowledge placed them
at a fatal disadvantage when they disagreed with the judge,
with the result that they gave an easy assent to his decisions,
or if they persisted in opposition found themselves reduced to
mere obstinate reiteration.‘
Bent repeated his recommendations for trial by jury in
criminal cases, and thought that grand juries also might be in-
troduced. As, however, there were not more than forty per-
sons for this duty, he suggested as a more convenient method
the practice followed in Scotland of trying cases on informa-
tion filed ex-officio by law officers of the Crown.
The provision made for Van Diemen’s Land he considered
utterly inadequate.
There was one very disquieting feature in this letter. In
1811 the Judge-Advocate had pointed out that under the com-
mission he held difficulties might arise between the executive
and judiciary. In 1814 he made it equally clear that those
difficulties had arisen. At the beginning of the year Macquarie
and the Judge-Advocate had ceased to be on terms of personal
1He suggested that a better principle of division might be founded on the
nature of the relief sought.
2 Bent to Bathurst, 14th October, 1814. R.O., MS.
3 See also letter of rgth October, 1811. H.R., VII.
4See, ¢.g., J. H. Bent’s description of Riley and Broughton. Letter to Lord
Bathurst, rst July, 1815. R.O., MS.
196 A COLONIAL AUTOCRACY.
friendliness, and at its close they were openly opposed o
matters of official concern.
The ostensible cause of the quarrel was a difference ir
opinion as to the duties of the Judge-Advocate, but the real
force pushing them apart, and making both ready to seize on
any matter for offence, lay in their entirely different attitudes
towards the emancipated convicts. |
Writing to Commissioner Bigge in 1819, Macquarie gav
the following account of his feelings towards them: “At my
first entrance into this Colony,” he wrote, “I felt as you do, z
I believe I may add every one does—at that moment I certainly
did not anticipate any intercourse but that of control, with men
who were or had been convicts. A short experience showed me,
however, that some of the most meritorious men of the few te
be found, and who were most capable and most willing to exer 7
themselves in the public service, were men who had been co
victs! I saw the necessity and justice of adopting a plan on a
general basis which had always been practically acted ‘upon
towards those people.” The plan was that once free, whether
by servitude or pardon, no retrospect should be held into any
convict’s former history, but that the emancipist should be
placed on precisely the same footing as any other inhabitant of
the settlement. Macquarie subscribed to this doctrine early in
1810? and the Committee on Transportation gave him their
hearty support. But they did so in ignorance of the practical
deductions Macquarie had already drawn from it. Although
he had spoken of Lord, Thompson and Redfern as “deserving
emancipists,’ he had said nothing of the appointment of
Thompson to the magistracy in January, and delayed announc-
ing Lord’s appointment in August.* Macarthur, who was in
England, was astounded by the news. Until then he had been
very favourably inclined towards Macquarie and was still ready
to absolve him from blame. }
“I urge,” he wrote to his wife, “that the Governor has been
misled, and involved in a mist through which it is impossible
he yet can see, by the artifice and falsehood of some persons
1 Macquarie to Bigge, 6th November, 1819. R.O., MS.
2D., 30th April, 1810. H.R., VII. See above.
3R, on T., 1812. 4 See Chapter III.
THE EXECUTIVE AND THE JUDICIARY. 107
yy whose opinions he would naturally be guided on his first
titre |. 7? 1
_ He laid the blame on Foveaux, who steadily denied any
responsibility, saying that he cautioned Macquarie against both
men.? Bigge heard in 1820 that Foveaux had recommended
Thompson, then Chief Constable at Windsor, as “a useful
man,’ a recommendation not inconsistent with cautious treat-
ment, and in no way implying that he would make a good
magistrate.* The appointment was a precipitate and remark-
able one for which the whole responsibility belonged to the
yovernor.
g In the case of both Lord and Thompson the measure was
inter to colonial Pee Reference has already been made
> Marsden s views‘ and those of Riley were similar. He de-
c “that there was no person capable of reflecting on the
m re, who did not regret that the Governor had taken so
‘premature and unexpected a step; and I think this sentiment
has equally prevailed on the minds of the discriminating pro-
f ortion of those who had originally been prisoners themselves,
s among the inhabitants who came free into the Colony. The
ppointment® unquestionably lessened the respect of the in-
habitants towards the magistracy; it was viewed by the
mercantile connections of the Colony abroad, and by every
tranger who visited it, in the same light.” ®
_ Thompson died just after his appointment, and beyond a
\ pposition that ‘‘the Governor had formed too sanguine an
” and that it was unlikely he could have commanded
e respect of the district,”’ there was nothing to be said of his
om sical capabilities. But Lord, though not lacking in
nz sagacity, was ignorant and illiterate, and followed the
‘trade of auctioneer and retail shopkeeper. These means of
1 Macarthur to his wife, 21st April, 1811. H.R., VIL, p. 524.
2 Ibid. * Bigge Sh sei II
a * Bigge shared this view of Riley’s, Report II. 5i.e., of
a: 6 Riley, C. on G., 1819. When Macarthur heard of Thompson’ s will he
ma a to his wife, 21st April, 1811, H.R., VII.: ‘‘ How, how could Governor and
‘Mrs. Macquarie be'imposed upon as they have been? I think the last stroke, of
ene the Governor part of his property, is by far the deepest he ever attempted,
hether I view it as an act done in contemplation of death or in expectation of
ne on to higher favours should he live.”
198 A COLONIAL AUTOCRACY.
earning a livelihood were thought to be derogatory to the office
of magistrate. His convict origin also was sometimes recall
by prisoners brought before him, and on such occasions unseemly
reproaches passed between the Bench and the dock.’ Finally
the irregularity of the private lives of both Thompson and Lord
was notorious.
The circumstances of these two men have been thus dial
cussed in detail because it was by their appointment to the
magistracy that Macquarie first made known to the settlement
the policy he intended to pursue. Had he selected more suit-
able men probably no opposition would have been roused. No
complaint was ever made against the inclusion of the Rev. —
Henry Fulton in the Commission of the Peace, although he
had been transported to the Colony. His crime had been
suspected complicity in the Irish Rebellion, and he had borne
himself in New South Wales with quiet self-respect. His |
convict origin seems to have been forgotten—that of Lord
never was. The other emancipists who were most favoured by
the*Governor and were admitted to his table on public as well |
as private occasions, were Redfern, an assistant surgeon;
Robinson, chief clerk in the Secretary’s office and unofficial -
poet to the Government; Meehan and Evans, assistant
surveyors ; Lord and one or two others. Redfern, who had a
large private practice, was on intimate terms with a few of his
patients, but none of the others were ever invited to the houses
of the “more respectable settlers”.2 In 1812 Macquarie asked
for the support of His Majesty’s Ministers, and particularly fe
the opinion of the First Gentleman of Europe.
‘Some men,” he wrote, “ who had been convicts, have been
appointed magistrates by me;* some of the same description
of men have been honoured with his Majesty’s Commission,*
which in my mind is alone sufficient proof of the eligibility
1 See Evidence of Harris, Appendix to Bigge’s Reports. R.O., MS.
* Redfern had been transported for complicity in the mutiny at the Nore,
Robinson's crime was the writing of threatening letters. He was called the Pec
Laureate, and used to recite odes, etc., of his own composition, on the Ki
birthday, at the Governor’s leveé and on similar occasions. These effusions may
be r in the Sydney Gazette.
* This was the first official intimation of these appointments.
*4.e,, Fulton, Redfern, Evans and Meehan.
THE EXECUTIVE AND THE JUDICIARY. 199
of these persons to any society.”! He had found them zealous
anc faithful officers and ready to assist the Government on all
occasions.
In 1813 he pressed the matter once more, and made the first
his bitter attacks upon those who opposed his policy. It
_was, he said, his invariable opinion “that once a convict has
become a Free Man .. . heshould in all respects be considered
on a footing with every other man in the Colony according to
his rank in life and character? . . . ; on the other hand, while
a man is under the sentence of the law he is not eligible to be
employed in any place of trust; he is incapable of holding a
| grant of land, and it would be highly indecorous to employ him
_ as a juryman or in any other public situation of respectability.
Persons may be found who ... may say: ‘Is not the man
_ equally to be trusted as a convict, who can be trusted, having
_ ceased to be one?’ To this I answer that independent of the
“merits of the man .. . it is a disrespect to the Laws... .
_ It is a necessary respect to the Laws that the sentence should
_ be acted upon as long as it exists) No doubt many of the Free
Settlers (if not all) would prefer (if they had ther choice) never
to admit persons who had once been convicts to any situation
_ of equality to themselves. But ... in coming to New South
Wales, they should consider that they are coming to a Convict
Country, and if they are too proud or too delicate in their feelings
_ to associate with the population of the country, they should
consider it in time. . . . No country in the world perhaps has
_ been so advantageous to adventurers as New South Wales.
| The Free Settlers who have come out as adventurers have never
felt their dignity injured by trading in every way with convicts
_... but further than it suits their interest to have intercourse
_ with them, they would rather be excused. I must, however, in
___ justice to the original Free Settlers, observe that . . . they are
not all of one mind in this respect. Amongst them some few
_ liberal-minded persons are to be found who do not wish to keep
those unfortunate persons for ever in a state of degradation.” *
a
1D. 6, 17th November, 1812. R.O., MS. :
2He forgot this when he asked Lord to dinner, for neither his rank nor
character entitled him to mix with “ respectable ” men.
3D. 2, 28th June, 1813. R.O., MS.
200 A COLONIAL AUTOCRACY.
The Secretary of State agreed in cautious terms with
general principle, for he thought “perpetual exclusion” wo
be an obstacle to the reform of the convicts of the settlement.
“ But this principle,” he continued, “may be carried too far,
and I confess that I am not as yet prepared to say that it would
be judicious, unless under very peculiar circumstances, to select
convicts for the office of magistrates, The illiberal, though not
unnatural, prejudice which you have had to encounter in your
endeavour to restore meritorious convicts to their former rank —
in society would be still more violently excited by their elevation —
to the magistracy ; and the hostile spirit which prevails between
the two classes . . . if it did not influence the conduct of the
magistrate himself, would at least diminish the respect and
deference which ought to be paid to his decisions. A failure
also in an experiment of this kind would not only render it
difficult to recur to it again, but would confirm those prejudices
against associating with convicts which I trust that time and a —
proper exercise of discretion on your part will ultimately over- ]
come.” ! .
Before he left for New South Wales, J. H. Bent, in con- —
versation with Goulburn, suggested that Lord Bathurst had —
not expressed his disapproval of the appointment of convict |
magistrates with sufficient distinctness, and received the answer —
|
{
that as “ Governor Macquarie had adopted this policy without
acquainting His Majesty’s Government that he had done so,
Lord Bathurst thought that those words would be a sufficient ©
hint to him to withdraw from it, and that it would be fair to ©
give him that opportunity of silently altering his system”? —
Bent rightly doubted “from Governor Macquarie’s known
obstinacy of character, whether anything less than a positive
command would be attended to,” for Macquarie treated Lord |
Bathurst’s letter as giving unequivocal approval to his policy.
“Tt has,” he said, “afforded me the most sincere gratification |
to find . . . that your Lordship approves of my motives and
conduct in regard to the re-admission to society of certain
persons who had formerly been convicts... .” He proposed
|
1 Bathurst, D. 24, 8th February, 1814. C.O., MS.
2J. H. Bent to Goulburn, 25th June, 1818, 'recalling a conversation held in
1813. R.O., MS. ,
THE EXECUTIVE AND THE JUDICIARY. 201
o be “ particularly cautious” not to advance to the magistracy
n person “who shall not appear . . . fully and respectably
qualified”. He considered that he had hhevetolies acted on this
D ri nciple.
b He thought at this time that the “‘ illiberality of sentiment”
Oo of which he had complained was growing weaker, though those
who still felt it were to be found in the higher class, “ where
1 more enlightened and liberal sentiment might have been
teasonably expected to be cherished ”.!
a), ‘It was unfortunate for the peaceful administration of the
Colony that he placed Ellis Bent within this unenlightened class.
_ Macquarie made the protection of the emancipists his great
work. He was their special providence, visiting with swift
displeasure all who looked at them askance or were even in-
ifferent in their cause. He was as zealous for them and for
ll that concerned them as ever a man could be for his own
whildren. In every sense “respectable” himself, stiff and un-
bending in conduct? he easily condoned in this favoured class
vices which would have deeply shocked him in others. He had,
as it were, “discovered” the emancipist, and he had all the
sager advocacy of a pioneer in the cause. Because Bent did
hot go so far as the Governor, the real liberality of his opinions
was overlooked. He felt that “such persons ought not to be
forced forward into office or society contrary to the current of
general feeling; and that the early received and honest pre-
judices of others . . . are entitled to much regard and con-
ideration”. He disapproved of Simeon Lord’s appointment
because Lord had neither the respectability nor influence to
make him useful as a magistrate, and Bent considered that his
elevation “ was as contrary to publick opinion as it was painful
(© my own feeling as a member of the English Bar”.
_ To the Governor, on fire with the vision of leading the lost
lambs of society back within its bounds, the Judge-Advocate’s
Beements appeared in quite a different light. Macquarie de-
ared himself“ particularly hurt by the illiberal manner in which
1D. 11, 7th October, 1814. R.O., MS.
eeeeasaric’ s ideal of a man and a gentleman would probably have been Sir
Bertram of “ Mansfield Park”.
“3 Bent to Bathurst, 14th October, 1814. R.O., MS.
202 A COLONIAL AUTOCRACY.
he had always treated persons who had at any time been cor
victs, however remote the period of their offences, and howeve!
meritorious their subsequent conduct may have been”. From
this course Bent had only deviated “in a few particular instances,
where he found his pecuniary interest and other personal a
commodation concerned, and on such occasion he is not at a
scrupulous . . . which conduct shows that his motives in the
one case or the other are not those arising from a strict sense
of propriety.” 1 f
The justification for this statement was probably the fac
that Bent distinguished between friendly and business relations,
and considered the latter separable from the former. Macquarie,
however, made no such distinctions. He held a very exaltec
notion of his position as the head of New South Wales society
and had neither the education nor the natural good taste which
would have induced him to distinguish one man from another
in the ranks below him. But Ellis Bent was something of a
scholar, and, with a delicacy of mind probably heightened kt
ill-health, shrank from intercourse with ignorant men of doubt-
ful character such as Lord or Thompson.
The division of opinion between the Governor and the
Judge-Advocate existed from the beginning, but for long Ben
preserved a studious discretion and kept the subject in th
background. In all that concerned the Charter of Justice they
agreed, and in 1811 Macquarie urged that Ellis Bent should b
at the head of the new judiciary. He spoke of him as havin
“most happily blended the mildest and gentlest disposition w it
the most conciliating manners, great good sense and ac
legal knowledge”?
It was Macquarie also who recommended Jeffery Hart Be
the Judge-Advocate’s brother, to the Colonial Office.*
In 1813 several causes for friction occurred. The Judge
Advocate complained unavailingly of the small size of hi
court-room.¢ The Governor complained that the Judge-Advo
cate failed to rise with the rest of the congregation when h
the representative of the Crown, entered the church.
1D.1, 24th February, 1815. R.O., MS.
2D., 18th October, 1811. H.R.., Vil.
; Ibid. *It was an office attached to his house.
_ THE EXECUTIVE AND THE JUDICIARY. 203
vo =mber a Government and General Order, signed by the
Major of Brigade, forbade “any officer on the civil or military
staf of the Colony residing at head-quarters . . . ever to absent
limself from thence for a whole day or night without previously
obtaining the Governor’s permission”.! Bent, not considering
hat he was comprehended in such an Order, took no notice of
_ Macquarie sent for him, and an angry interview was the
sult. The Governor said it was Bent’s duty to wait every
i jorning at Government House to receive his commands, and
unequivocally informed him that he considered him as an
icer on the Civil Staff”. Bent replied that he was not
und to obey the Order and “that he was not subject to
military discipline”. He was indignant that he should be
treated merely as a “subaltern officer—a mere cypher—a person
sent out simply for his (Macquarie’s) convenience and merely
to execute his commands” .4
Such was the state of their relations when the tempestuous
presence of Jeffery Bent tore them further asunder.
He was younger than his brother and had been six years
_ at the Bar. He was hot-tempered, abusive when roused, and
_ quick to resent a real or fancied slight. During the three years
he remained in New South Wales he waged unceasing war,
and his behaviour was scarcely that of a normal man. Loyalty
and affection for his brother appear to have been the only
‘gentle aspects of this enraged judge, and never had any
| Governor to deal with so angry an official. Before he left the
| Colony every spark of opposition in the length and breadth of
_ the land had been fanned into flame. Under his malevolent
eye no abuse could slumber, and under his watchful care was
fostered a fresh growth of political activity which bore plentiful
fruit in succeeding years. Yet he was moved by no high ideal
‘Nor steadfast principle. He was not in any way a vicious man.
In all the disputes in which he engaged, wherein many hard
bg th ings were said or implied against either side, there was never
_ an accusation against his honesty or his sobriety. The primary
%
___ ! The object of the Order was to prevent officers going up to their farms in
__ the country and spending “several days there to the neglect ot their public duty ”.
: Macquarie did not even pretend to think that Bent neglected his.
Bent to Bathurst, rst July, 1815. R.O., MS.
3 See above, 1st July, 1815. R.O., MS. 4 Ibid.
204 A COLONIAL AUTOCRACY.
elements of his character were a domineering temper, an over
weening conceit and a love of opposition. Ifhe did in fact give
his support always to the weaker side, this was not so muc
because he hated oppression as because he breathed hot enm ry
against the Governor and the Government.
He had scarcely left England before his troubled spi
found an inattention of which to complain. He was disappointed
that he had not been presented to the Prince Regent and re-
ceived “the honour usually conferred upon professional gentle-
men filling similar positions to the one I now hold”. He had
desired the honour not for himself but in order that “the char-
acter of the Colony might be raised a little in the eyes of the’
world”! The reply was that the honour of knighthood was
not usually conferred in such cases, and that as the Judge-
Advocate was “for various reasons” to remain the head of the
judicial establishment, there would in this case have been par-
ticular objections to such a course. Thus a grievance existed
before the new judge reached land, and he was not long in find=
ing another. “Mr. Jeffery Bent applied to me on his arrival,”
wrote Macquarie, “to furnish him:with a house in Sydney at
the expense of the Crown® , . . considering himself entitled te
that accommodation by virtue of his commission as judge”.4
The Governor knew that Indian judges were not furnished |
with houses, and refused Bent’s request. But he offered to hire
a house for him and await the decision of the Colonial Office if
the judge would promise to refund the rent paid by the Govern-
ment in the event of the decision being unfavourable. ‘“ Mr.
Bent,” wrote Macquarie, with an abruptness which suggests that
the battle between them had already been joined, “has decli
these terms.” The judge took up his quarters at Ellis Bent’s
house (which was provided by the Government) and remained
there for the next two years. His next demand was for
chambers, which he said were always allowed to English judges
in distant settlements; Macquarie acceded to this request, “im
1 Letter to Bathurst from Corunna, 21st February, 1814. R.O., MS.
2 Goulburn to Bent, 1814. C.O., MS. The Judge-Advocate’s four years’
vice and his success in the office, as ‘well as the fact that he had a military cc
mission, were the chief reasons. Some acquaintance with Jeffery Bent may h
supplied others.
*D, 11, 7th October, 1814. R.O., MS. 4 Tbid.
‘
al
fj |
_ THE EXECUTIVE AND THE JUDICIARY. 205
der,” he said, “to accommodate him as far as I felt myself
ustifiable”. After that the Governor doubtless expected to
arty his plans for the court-house without further opposition.
[In 1813 it had become clear that if another court was to be
established, the Judge-Advocate’s office would not provide suf-
ficient space. Macquarie proposed to build a court-house, and a
voluntary subscription list was opened which the Government
headed with £500. The cost of the materials Macquarie calcu-
ated at £5,000, and he wanted a Parliamentary grant of £2,000
to help out the subscriptions. The labour was to be supplied by
he convict gangs. Although tenders were called for and ac-
septed, the whole project was abandoned in November, very
much to the disgust of Ellis Bent, who blamed Macquarie for
‘no “withdrawing the artificers and labourers from other public
works”.
_ In 1814 the Governor put forward a new plan. The
hospital was almost completed and was on a scale far too ex-
tensive for present needs. It consisted of a main building con-
taining four large wards, and two detached wings of considerable
size intended for the residences of the chief surgeon and his
two assistants. Macquarie thought that half of the main build-
ing—what he called “a wing of the hospital,” should be ap-
‘propriated for theisittings of the courts. The Colonial Office,
as well as the Bents, took this to mean one of the detached
wings, and agreed that the arrangement was a suitable one.
But when the judges discovered that Macquarie meant to use
two of the hospital wards they were very indignant. After a
long discussion the matter was referred home, but it was of
course too late to make any alteration in Macquarie’s plans, and
His Majesty’s Court of Justice were “compelled to sit in the
NY ards of a common hospital ’’.? Goulburn, writing to Bent
‘in 1815, hoped that this minor matter would not disturb his
|
|
iy
7
1), x, 24th February, 1815. R.O., MS. There is no reason given for aban-
doning the scheme. Perhaps the subscriptions came in too slowly.
__—s- Bent (J. H.) to Goulburn, 16th December, 1814. R.O., MS. The wards
were used exclusively as court-rooms and fitted up as such. In 1820 at Bigge's
suggestion the plan originally advocated by the Bents was carried out with
_ Macquarie’s full concurrence, and one of the surgeons’ residences turned into a
_ Court-house. D. 12, 28th February, 1820. R.O., MS.
206 A COLONIAL AUTOCRACY.
“cordial relations” with the Governor. Alas, their cc dial
relations have long been broken past repair.
Close upon the court-rooms dispute had followed the Judge
Advocate’s retirement from the Magisterial Bench and h
quarrel with Macquarie over the Port Regulations. ;
“From the earliest establishment of this Colony,” wre 6:
Macquarie, “it has been the invariable custom for the Jud
Advocate to preside (when his health permitted) at the Ben
of Magistrates at Sydney, and Mr. Bent continued to dol
from the time of his arrival until the 31st of December last.”2
When the Book of Proceedings was laid before Macquarie on
the 31st of December he read the following entry: “On this
day the Judge-Advocate stated to the magistrates that a du
attention to his leisure, his health, and the other functions of his
office, rendered it necessary for him to decline presiding at their
meetings in future”. He had told the Governor nothing of his
intention to withdraw, though he had probably formed it some
time beforehand. “Notwithstanding it has greatly interfered
with my other functions,” he wrote to Lord Bathurst, “ and v
in my opinion improper that the Principal Judge of the Criminal
Court should perform the ordinary duties of a Police Magistrate,
a wish to render myself as useful as possible has induced me till
of late to preside at the weekly meetings of the magistrates.” #
He was, however, thoroughly dissatisfied with the position as
signed by the Governor to the magistrates, and with the
that he was not consulted as to their appointments or in refer-
ence to Orders concerning them published in the Gazette. he
Order of the roth December, 1814, had deeply offended him.
He had indeed made a fruitless protest to the Governor, who
“seemed to consider that my feelings were too acute, and added
that he would cashier any magistrate who would not attend to
his Orders ”.®
The office in which the Bench met was small, the time mid-
1 Goulburn to J. H. Bent, rrth December, 1815. C.O., MS. 4
24.e., December, 1814. Macquarie’s D. tr, = February, 1816. R.O., MS.
3 ist "July, 1815. Bent to Bathurst. R.O., MS. "q
4 See Chapter III. 4
5 Ibid. The Order censured the magistrates for the careless way in w
they granted certificates for pardons.
®rst July, 815. R.O., MS.
_ THE EXECUTIVE AND THE JUDICIARY. 207
ummer, and the Judge-Advocate in bad health. It was natural
jough that he should wish to give up this extra duty, though
is manner of doing so could hardly help giving offence to
Macquarie. But Bent was afraid that, should he mention his
ntention, the Governor would “ misconstrue the communication
und consider me as applying for permission to do that which I
sonceive His Majesty’s Charter placed within my own discre-
jon”.1 His retirement was followed by a stormy but resultless
nterview, and an Order was published in the Gazette which
mmnounced that the Judge-Advocate had thought fit to decline
presiding for the future at the weekly meetings of the Bench.?
This announcement, curt and unfriendly in tone, was the first
Iblic indication of the strained relations between them. On
the day on which he ceased to preside on the Bench the Judge-
Advocate sent to the Governor his Observations on the Port
Regulations.
__ These Regulations formed the special Trade and Navigation
Laws ofthe Colony. In October, 1810, Macquarie had re-issued
those of his predecessors, but in 1814, in view of the opening of
the ports, he decided to issue a new edition. He sent a rough
_ draft to the Judge-Advocate for his “revisal and correction’’.
For nearly twelve months pressure of work and illness delayed
the task. But on the 31st December the Governor received
from Bent a Report on the Regulations which was little likely
to please him. Instead of a corrected proof wherein exact legal
point was given to the layman’s English, he received a criticism
_ «ondemning practically all the new clauses in the draft.
_ After considering each clause and noting its defects, Bent
_ proceeded to add some “ General Observations”.
_ “Having given much attention to this subject,” he wrote, “ I
| may venture to express my opinion thus: the laws enacted at
_ different times by the British Legislature for regulating the trade
_ with the plantations, should be the basis of the Port Regula-
_ tions here. That they are supposed to apply to this Colony is
_ sufficiently clear, because every Governor, previous to assuming
his Government, is commanded by his Commission, to take an
_ Qath for the due execution of them ; and I may further add that
list July, 1815. R.O., MS. 2G.G.0., 28th January, 1815.
208 A COLONIAL AUTOCRACY.
they cannot be legally altered or dispensed with by any au
thority short of that of the British Legislature ... Thos
laws are much more ample in their provisions on almost all point
mentioned in these regulations themselves—which if they ar
considered as comprehending the whole law of the Colony or
this subject are very defective, as they totally omit several im
portant matters, and from the unavoidable looseness with whicl
they are worded afford but too many loopholes through which
offenders may escape, as it is a known principle of our laws that
all penal laws must be construed strictly, and no offender
punished unless he is brought within their very letter. To in-
troduce an abbreviation of the laws relative to the plantations
in the Port Regulations would be a work of great labour, wouk
swell them to an enormous size, and might be attended with the
mischievous consequences which would result from any inad-
vertent omission. For these reasons I consider it more advis-
able simply to notify the masters of ships that in their trade
and intercourse with this Colony they must govern themselves
by those laws of which they cannot plead ignorance. The local
purposes of the Colony undoubtedly demand consideration, b it
in providing for them the liberties and conveniences of others,
should be as little restrained as the nature of the case will admit.
Local circumstances, so far as they are connected with this sub
ject, seem to be confined to the/provisions necessary to adopt te
prevent the escape of convicts and the indiscriminate importation
of spirituous liquors ; and excepting such provisions as may be
necessary on these accounts, I see no reason why the intercourse
with the Colony should not be on the same footing as the rest of
His Majesty’s foreign dominions. I know of no Act of the
Legislature which directs otherwise.” * a
Macquarie attempted to combat Bent’s legal argument b
the usual resort to “ the peculiar circumstances of the Colony”.
If it should happen that any of the regulations were contrary
to a statute, then “the Port Regulations should be considered
as the Warrant of Authority ”.® }
As Bent persisted in his refusal to correct the drai
1 He gives as authority for this statement 49 Geo. III., cap. 17, section I. id
MS.
2 Enclosure to D.1, 24th February, 1815. R.O.,
3 Enclosure to same.
oA
THE EXECUTIVE AND THE JUDICIARY. 209
Macquarie began to lose his temper. On the oth January he
wrote, “I was very much chagrined and disappointed to find
on conversing with you this day on the subject of the Port
ations of this Territory, that you were unwilling to frame
them in the manner and on the principle proposed by me in
the manuscript draft I had some time since the honor to sub-
mit for your revisal and correction, on the plea that you did not
conceive the proposed regulations were warranted by the law.
In this opinion I must beg leave to differ from you . . . ; and
as you are the only Law Officer now here belonging to the
-rown, I must still call upon you, in this official manner, to
revise and frame the proposed Port Regulations . . . so as to
nable me to publish them with as little delay as possible. . . .
Trusting you will see the propriety on more mature reflection
‘of complying with my present request, and thereby prevent my
being compelled to resort to the unpleasant alternative of
_ making a reference to His Majesty’s Ministers on this subject,
“T am, etc.,”}
Bent took a rather high line in reply—
“ His Majesty,” he wrote, “has been graciously pleased to
_ confer upon me the offices of Judge of the Court of Vice-
f Admiralty and Judge-Advocate in this Territory. By virtue
of the first office I have to exercise various and important
judicial functions. By virtue of my office as Judge-Advocate I
am a magistrate throughout this Territory, and have to officiate
general Courts-Martial whenever called upon by your Ex-
cellency, to preside at the Chief Criminal Tribunal in the
- Colony, at one of the Civil Courts of the Territory, and judici-
| ally to assist at the Court of Appeal. To these duties I may
also add that of giving my legal opinion to your Excellency on
ch matters as you may think fit to submit to me for that
surpose. These various duties are as much as one man can
r ee perform, and I hope are sufficiently laborious to ex-
= my declining other labours not distinctly attached to my
fice and which I never did or could imagine would be required
f me.
- “I have,” he continued, “to the utmost of my ability, fur-
1 Enclosure to same.
14
210 A COLONIAL AUTOCRACY.
nished your Excellency with my observations on the proposed
Port Regulations, and beg leave to say that some of these
deviate so much from the known laws of the realm that I do
not think they can be legally enforced on your Excellency’s
authority alone. .. . If your Excellency . . . chooses to take
. . « the responsibility of acting contrary to my opinion, I think”
it becomes a delicacy due to my judicial character to select
some other person to draw them up; for .. . I cannot in the”
due discharge of my duty to my Sovereign or to my conscience
consent to attempt to give legal form to that which is illegal,
or to frame or draw up regulations many of which in the due’
exercise of my functions as a judge, and with proper regard to
my oath to administer justice according to law, I cannot oul
force in my judicial capacity. . . . Your Excellency will excuse
me for saying that your orders would be no justification to me
in my own eyes or in the opinion of His Majesty’s Ministers,
more particularly if I am right in my opinion that it is no part
of my official duty to draw up your Excellency’s Regulations.” +
Macquarie had no answer to make, and could only refer the
matter home. A few months later Bent also appealed to His
Majesty’s Ministers, reviewing very fully the Governor's exercise
of legislative powers and making a powerful plea for its restraint.
“My Lord,” he wrote, “I feel it my duty humbly to offer m
opinion .. . that when there is reason to suppose that |
circumstances require extraordinary deviations from the Laws
of England, that the Governor should first point out those
circumstances to His Majesty’s Ministers, and that the remedy
should come from that quarter which can alone give it legality.
But that a Governor of New South Wales of his own authority,
implied from but by no means granted by the words of
Commission, should make laws imposing penalties of £500, a
hard labour at the coal mines for three years, upon free British
subjects, to be inflicted at the discretion of magistrates, . .
is a circumstance which I cannot but consider to be wholly
unknown to His Majesty’s Ministers*. . . in far the greate
number of cases this power is exercised without the smalles
reference to His Majesty’s Law Officer and without any inquir
1 Enclosure, D. 1, February, 1815. R.O., MS. 2 Ibid.
3 This was penalty for taking away convicts from New South Wales.
THE EXECUTIVE AND THE JUDICIARY. arr
how far the Law of England may have provided for the subject
‘matter of them,’ and they are not regularly registered in any of
the Courts of Justice here nor . . . submitted to His Majesty
_ for approval.
“JT hope that I am not presuming too much when I express
_a humble confidence that it never could be intended that so
vast a power should be placed in the hands of any one man
without the smallest provision against its abuse ; a power which,
as far as this Colony is concerned, and under the bare pretence
of local circumstances, I will be bold to say sets the Governor
_ of New South Wales above the Legislature of Great Britain, and
at once resolves the rule of action here into the mere will of the
Governor, a will not subjected to any previous advice or
_ controul.” ?
So far as these considerations affected him as a judge he
had no longer any doubts. “I am now convinced,” he wrote,
“that it is impossible for me, unless some alteration takes place
in the opinions and conduct of Governor Macquarie, honestly
and uprightly to perform my duties under such a commission
without a total sacrifice of my peace of mind and injury to my
health, already much broken.” He asked that “with the func-
_ tions of a judge” he should also have the title, and “ that inde-
_ pendence of the Colonial Government which . . . is so essential
| to the upright execution of my office”.
Li Macquarie’s exasperation compares badly with Bent'’s
dignity. He wrote that Bent was “ insubordinate and disrespect-
_ ful,” and that he would have suspended him or sent him to
_ England had there been any one in Sydney capable of per-
_ At the same time the Governor's faith in the Port Regula-
tions had been severely shaken, and he transmitted them both
old and new for the opinion of the law officers of the Crown.®
Ve 1 An instance of this occurred some years later when Macquarie published
__ some Orders increasing the penalties on trespassing. Judge Field pointed out
_ that they went far beyond the English Law on the subject, and persuaded the
_ Governor to revise the Orders. See Appendix, Bigge’s Reports. R.O., M.S.
2rst July, 1815. R.O., M.S.
c 3D. 1, 24th February, 1815. R.O., MS. No opinion appears to have been
_ given, and in 1819 Macquarie, apparently taking silence for consent, gave them to
- Bees Atvocate Wylde to put into shape. The Judge-Advocate objected to some
_ 0f them, but Macquarie replied simply that the law officers had allowed them
212 A COLONIAL AUTOCRACY.
The Colonial Office had to deal with this dispute tog
with the difficulties arising over the emancipist attorneys, <
their action must be considered with a knowledge of both.
By February, 1815, all but official intercourse between
Governor and Judges had come toanend. The court-rooms
at the hospital were ready for use, and that fact “had been
officially signified to Mr. Justice Bent.”! The Governor had
taken that opportunity to suggest “the expediency and neces-
sity of appointing an early day for the opening of the Supreme
Court”. Bent declined to do this until Mr. Garling, the solicitor,
arrived, a reason which Macquarie characterised as “very
frivolous and ridiculous. . . as it is very possible that 3
Garling may never arrive at all in this Colony, and as there
are several attorneys (exclusive of Mr. Moore, the solicitor,
already arrived) here who have hitherto practised before the
former courts . . . but,” he added ruefully, “as I;have no con-
trol over Mr. Justice Bent, in virtue of the new patent, I can only —
remonstrate with him . . . which I have already done more
than once without effect”. )
The pretext was not really a frivolous one. The presence
of the two solicitors sent out by Government would have been
invaluable to Bent in the coming struggle. But Garling’s arrival
was so long delayed that finally the opening of the courts
could be no longer postponed.?
It was true that there were other attorneys in the Colony,
and the conditions under which they practised have been
already described.* Moore and Garling had been encouraged
to emigrate, and given salaries by the Government for no other
reason than to bring to an end the employment of these convict
attorneys.
The chief was George Crosley, who had for a long time
held the whole of the law business of the Colony in his hands.
But a year before J. H. Bent’s arrival, Eager, another con
to pass and their authority was higher than Wylde’s. After that Wylde said no
more, and the Regulations, with some alterations from those submitted to
were published in 1819. See Appendix, Bigge’s Reports. R.O., MS.
1D. 4, 24th March, 1815. R.O., MS.
2 Garling came in the Frances and Eliza, a male and female convict trans-
port, which was captured by an American privateer and afterwards reca
arrived after many adventures late in 1815.
8 Chapter III.
THE EXECUTIVE AND THE JUDICIARY. 213
had entered into competition with him, and in the last term of
‘the old Civil Court, Chartres had appeared for the first time.
_J. H. Bent thus described the three men.
_ “George Crosley was struck off the rolls of the court a
King’s Bench and transported to this Colony for perjury. .
Eager has been transported here within the last six years ae
forgery, and has never, as far as I can learn, been admitted an
attorney of any court. And Chartres has been sent here for a
_ species of the crimen falsi within the last five years, and at the
moment keeps a public house, and both ? are under the sentence
of the law.”
_ The new judge had heard of these men from his brother
before he left England, and had endeavoured without success to
obtain a definite statement from Lord Bathurst “with regard
to the practice of the convict attorneys”. In the Colony the
| divergent views of the Governor and the Bents were well
_ known, and trouble was probably anticipated. On the 22nd
April the first sittings of the new courts were summoned, and
the Governor’s precept appointing Hook and Brooks as mem-
bers of the Governor’s Court, Broughton and Riley as members
of the Supreme Court, was published on the same day. The
_ Supreme Court was to meet on the 1st May and the Governor’s
Court on the 8th.
_ The emancipist attorneys decided that to appeal straight
tothe courts was dangerous. They looked upon the Gover-
| Ror as a higher authority and sought his support first. Mac-
_ quarie explained the situation in an official letter to J. H. Bent
| dated 18th April, 1815.
_ *T have,” he wrote, “lately received memorials from some
of those attorneys who have hitherto been allowed to practise
| in the line of their profession in the Courts of Civil Jurisdic-
_ tion . . . who being now apprehensive that it is in contempla-
i tion to exclude them from that indulgence in the courts about
1 See Chapter II. for reasons why King pardoned Crosley.
h *4.e., Eager and Chartres. Both held tickets-of-leave. Eager received an
my “emancipation a few years later and a free pardon in 1819. Chartres’ license must
have been in his wife's name.
3 Bent to Goulburn, rst July, 1815. R.O., MS.
4Letter to Goulburn, 25th June, 1815. R.O., MS. See also earlier in this
: 4 lad
214 A COLONIAL AUTOCRACY.
to be opened under the new patent, solicit my interference
their behalf.” He supported their claim on two grounds
One was that their exclusion would bear hardly on those
their “constituents” who were out of the Colony and wh
causes were pending. The attorneys would suffer too, for th
asserted that they had already advanced large sums in the
cases. The other reason was that exclusion without
cause would cut them off from all means of obtaining a liveli-
hood by the practice of the profession in which they had been
brought up.! ®
Macquarie thus altogether ignored the real point at issue,
which was whether men struck off the rolls in England could
properly continue in an English Colony to practise the pro-
fession they had disgraced. Bent, of course, was furious.?
Though in comparison with later correspondence the tone of
his answer is calm, there is in it no sign of yielding. “As Iam
under the necessity,” he wrote, “of seeing the subject in a very —
different light from that in which it is viewed by your Ex- ;
cellency, and therefore of withholding my assent to the applica-_
tion of those petitioners, the respect which I entertain for your
Excellency makes me feel it desirable to lay before you the ~ .
reasons by which I am influenced.”
By the Governor’s support of the petitions he felt himself
‘placed ina most unpleasant and delicate situation, and the —
other members of the court, in coming toa judicial decision
will be subjected to the operation of an influence which ought —
never to be applied to, and is inconsistent with the independent |
deliberation of an English Court of Justice. I mean the open, J
avowed and direct communication of the opinion of the Ex.
ecutive Government on a point under judicial discussion. I
am perfectly alive to the importance of a candid union between
the Executive and Judicial Departments in this Colony, but I
must observe that the functions of each are distinct and should
i
8
118th April, 1815. Enclosure to Bent (J. H.) to C.O., rst July, 1815. R.O.,
S.
2 In 1819 many colonists who had known Bent intimately told Bigge that it
was this interference on Macquarie’s part with the business of the court
“ first excited resistance” in 2 Bent against the Governor’s measures ; but, be has"
already been seen, it did not create it. See, ea Bigge’s Report I 9
Harris’ Evidence, in Appendix to Reports. R.O.,
THE EXECUTIVE AND THE JUDICIARY, 21 5
exercised without collisions, and therefore I cannot but
think the conduct of the Petitioners most blameable, highly
disrespectful to the courts of which they wish to be admitted
as attorneys, and calculated to occasion divisions between the
Executive and Judicial Departments, by requesting your Ex-
cellency in a most unprecedented and unprofessional manner
to exercise undue influence in their favour with the Supreme
Court; thereby insinuating most unworthily and manifestly
at the court would grant to the recommendation of your
Excellency what they would not grant to the merits of their
respective cases.” !
___ This description of the facts was perfectly accurate, and Bent
_ proceeded to drive home his points in workmanlike fashion.
_ The petitioners (and by implication the Governor) appeared
to be ignorant of the law which gave to each court “the dis-
_ cretion to admit or strike off the roll of their attorneys such
“persons as they may think worthy or unworthy”. Were men
_ so ignorant of their profession to be allowed to practise it ?
But that was a small matter in comparison with others.
_ There was, for example, the fact that the petitioners omitted
the important fact that they had been transported for the crimes
_ of perjury and forgery. Yet these were the facts on which
_ the whole case turned. Crosley and Eager (and again, by im-
plication, Macquarie also) had disingenuously omitted all
- mention of them.
The injury, he proceeded, to distant clients was materially
___ lessened by recalling that under the rule of 1812 the emancipist
attorneys had practised on sufferance, only until other provision
_ might be made. There might even be a doubt whether any
such clients existed, for their names had not been given.2 The
| _ story of the money which had been advanced he treated with
_ frank scepticism. Was it likely, he asked, that Eager, for ex-
ample, who had been in the Colony less than six years, should
_ be in a position to advance large sums? But if he had done
so, he had done it knowing how small were the probabilities of
his being allowed to practise when free attorneys had come out
1 The petitions forwarded by Macquarie were those of Crosley and Eager, not
es.
2 Their names never were given.
- '
216 A COLONIAL AUTOCRACY.
under the sanction of the Government. His concluding words
were decisive.
“Tn a word,” he wrote, “it is my object and my duty to
render the Supreme Court of Judicature in this Territory as
respectable as possible, in the eyes not only of the Colony, but
of the world—an object which must be defeated by my com-—
pliance with the Petitioners’ request. In no other part of His”
Majesty’s dominions would they be allowed to practise as
attorneys, and whatever reason may have existed before this
time for extending such an indulgence to them, none can be
now pretended to exist after the liberal provision which His —
Majesty’s Government have made for this purpose by the ap-
pointment of respectable solicitors at a considerable expense
to the Crown—an appointment which would be rendered
wholly unnecessary by granting the Petitioners’ application.” 1
The Governor made no reply to this letter,and when the
court met on 1st May he was making a tour in the Blue ©
Mountains from which he did not return until the 19th of the
month. He thought that the admission of the emancipists was
assured, for whatever Bent might think, the two magistrates
who were to sit with him had seen the Governor’s letter and
stated their agreement with its contents.2, However, matters did
not go as smoothly as he had anticipated.
At its first meeting the court decided to hear the petitioners —
on 6th May. On that day Crosley and Chartres were heard,
but Eager was ordered to prepare a new petition, his first one
not being properly drawn. |
On oth May, Bent held a consultation with the other mem-
bers of the court and attempted in vain to bring them over to ©
his view. He argued that “If . . . those who had been con-
victs were admitted, how would it be possible to refuse to
admit any persons coming from England or Ireland struck off
the rolls at home, or of bad conduct and with the fear of it
before them. Such would naturally flock here ; and if it is not
possible for the judges at home, with the assistance of an
honourable and learned Bar, and every means that attorneys
and officers habituated to correctness in business can give, to —
1 22nd April, 1815. Enclosure to Bent’s letter, rst July, 1815. R.O., MS.
2 This is quite clear from Bent’s letter, rst July, 1815. R.O., MS.
THE EXECUTIVE AND THE JUDICIARY. 217
prevent the frauds and mischiefs which individuals suffer from
the mal-practices of those who are a disgrace to the profession
and a menace to the public, how could judges here without
such assistance or means of prevention guard against the
chicanery and the never-ceasing tricks of those who have been
xpelled their profession and transported here in punishment
) their misconduct.” He did not, however, desire to give the
two solicitors sent by the Crown a perpetual monopoly, “The
tule I should have proposed to adopt was the rule in India,
#z., that all admitted attorneys in England or Ireland, or
articled clerks to such, bringing with them their certificates
of good conduct, and all persons who had been articled clerks
to attorneys admitted here, should be admitted attorneys of
the respective courts; and that without any limitation as to
a
Broughton and Riley, the two men whom he tried to con-
vince, were of very different calibre, but alike in knowing little
‘ofthe law. Riley, who has been frequently mentioned, and who
‘was the chief witness before the Committee on Gaols in 181g,
‘was a successful merchant and an honest, straightforward and
intelligent man. He was not in any respect dependent on the
Governor's favour, but did in this case hold the same opinion.
He had sat many times with the Judge-Advocate in the Civil
Court, and had not once dissented from his views. Broughton,
who had begun his colonial career very low down on the Com-
missariat Staff and slowly risen to be Deputy-Commissary
General,’ was a burly, blusterous man, ignorant and blunt, but
heless a great favourite with Macquarie. Riley was
v nder no obligations to the Governor and was soon afterwards
sharply opposed to him in a matter of trade,* but Broughton
Was very much under Macquarie’s influence.
On neither could Bent makeany impression. “The statute
Geo. I., cap. 29, s. 4” and “the case er-parte Brownsall,” they
2 1See Bent, rst July, 1815. -R.O., MS. This rule would not have necessarily
excluded convicts who had become articled clerks in the Colony and had not
_ previously been attorneys in England or Ireland.
. 2 Bent, 1st July, 1815. R.O., MS. : 2
$It is significant that, although Macquarie several times urged Broughton’s
‘claims, he never reached a higher rank than this.
4 The trading ventures on transport vessels. See Chapter V.
218 A COLONIAL AUTOCRACY.
passed over to dwell upon the Report of the Committee on
Transportation which set forth Macquarie’s principle “that
long tried good-conduct should lead a man back to the rank of
society he had formerly filled,” leaving out, said Bent, the next
words, “as far as the case could admit”.
“ Without inquiring,” he wrote, “what shall be the marks by
which to discover long tried good-conduct, or whether the mere
circumstance of not having been brought before a Criminal Court
in the Colony is a proof of it—I may safely assert that the good-
conduct of the persons in question, . . . had neither been long
nor tried.”
The two magistrates told him that the local circumstances
of the Colony made it necessary to deviate from the strict
custom of other countries. “The local circumstances of this
Colony,” he replied caustically, “have from its first formation
been an excuse for every illegality that caprice or ignorance
could dictate. . . .”
Finding them immovable in their opinion, Bent felt himself
“obliged to come to a determination to refuse ‘to admit or
swear in persons so circumstanced, and to declare that if the
attempt were persisted in to force them upon me, till His
Majesty’s pleasure should be known, I should be compelled to
discontinue the sitting altogether ”.}
Riley and Broughton declared that Bent wished to make a
rule of general application altogether excluding emancipists
from practice. Bent on his side declared that it was the
magistrates who “‘endeavoured to mix a general abstract prin-
ciple with the case before the court”. The fact was that Bent
placed before them the general principles by reason of which he
proposed to reject the petitions in question, and that the magis-
trates confused the premises and the conclusion.*
— | ee en ie ee ee eo
The court met again on 11th May without having agreed
upon their course of action. W.H. Moore, one of the Govern- d
ment solicitors, as he and Garling were called in the Colony, ,
was admitted, and Bent administered the oaths. Crosley then t
14st July, 1816. R.O., MS. t
2 Report to Macquarie in his D. 4, 24th March, 1815. R.O., MS.
$ Bent’s letter, rst July, 1815. R.O., MS. See rule suggested by Bent above,
which shows clearly that he did not wish to exclude all emancipists indiscrimin-
ately.
THE EXECUTIVE AND THE JUDICIARY. 219
attempted to address the court. The judge declared that he
had been heard already, and after a hot dispute he was forced
to desist. Bent then pointed out to the court that the petitions
of Eager and Chartres were inadmissible as neither of them had
ever been admitted as attorneys. The issue was thus narrowed
and the case of Crosley alone remained in question. Bent
stated his determination not to admit him or any persons of
his description. Broughton was undecided about Crosley, but
would not exclude all such persons. Riley concurred in this.
The judge made a violent speech, flinging accusations against
the good faith and the characters of the two magistrates on the
Bench beside him. As soon as the court adjourned Riley and
Broughton drew up a report of the whole affair for the Gover-
nor. They refused to sit with Bent again, and resigned their
appointments as members of the Supreme Court. But the
Governor refused to accept their resignation and the court met
again on 25th May. A few minutes’ talk in the judge’s
chambers showed that no essential change had been brought
about by the adjournment. Broughton was more eager than
before to express his views, and signified his intention of making
a speech in court. Bent proposed that further discussion
should cease until His Majesty’s pleasure be known. The case
of Crosley, which the magistrates had considered a doubtful
one the week before, might stand over, and as Garling would
soon arrive no inconvenience need be suffered. The com-
promise was a fair one and should have been at once accepted.
The fact that it was not was due to Bent’s violence on the
18th May, and Macquarie’s zealous encouragement of the
magistrates after his return from the country.’
When this moderate proposal was refused and Broughton
persisted in his intention to address the crowd in the court-
room, Bent refused to open the proceedings at all and sent his
clerk to adjourn the sitting, for without the chief judge the
court could do nothing. At first the two members declined
to adjourn and threatened to commit the clerk to gaol. Finally
they gave in, and the ridiculous scene came to an end.
The Supreme Court never again sat under the presidency
1 This is quite clear from the despatches of Macquarie, especially D. 4 of 1815,
Bent’s letter of 1st July, 1815. R.O., Ms.
220 A COLONIAL AUTOCRACY.
of Jeffery Hart Bent. For two years the judicial interregnum >
lasted, and Bent, the first Supreme Court Judge of Australia, —
never heard a cause nor delivered a judgment.
It is difficult to say what other course he could have followed.
Diplomacy and conciliatory speech might have done much, but —
the Governor would only have been satisfied by Crosley’s ad- —
mission, and it was the Governor who was Bent’s real antagonist.
Had the judge given way and admitted Crosley, the principle —
of the admission of emancipist attorneys would have been es-
tablished, and there is no reason to believe that the Colonial —
Office would have interfered afterwards to reverse it.| Yet even
Riley saw that he had committed an error of judgment. “I
am compelled to admit,” he said, “that during this period? I had
occasion to observe that numbers of the very class of men [whose
cause] I had. strenuously advocated, acted with so little consid-
eration towards each other during the suspension of the law,
and took such advantage of the merchants and those to whom
they were indebted, that I could not but regret the line I had
pursued.”* He would not say definitely that the admission of
emancipists would have been actually mischievous, but only that
it was “advantageous to the territory that there are sufficient
free solicitors . . . to enable the courts to proceed without re-
sorting to that necessity,” and that it was “desirable that not
any persons should now officiate in the courts, who have not
gone free to the Colony”.
Amongst the convict and emancipist population the eman-
cipist attorneys had considerable popularity. This was born
partly of long intimacy and private association, but it was
increased by the mode they adopted of charging their clients.
The emancipist attorney took a percentage on the amount
recovered in place of ordinary fees, and was therefore willing
to undertake risky suits at no expense to his clients. So long
as the fees of the courts went to the judges this practice was
to their advantage also, for certainly it augmented the number
of cases brought before them ! +
? They would probably have acted as they did in regard to the first convict
magistrates. See above.
24.¢., while the court was closed. 3 C. on G., sine
* See Evidence of Wylde, Appendix, Bigge’s Reports. R.O., MS. Business
in the Governor's Court fell off when emancipists were excluded.
a — oe ee <> ee — ee — oe -
rn ob. SF
ae zat kt: F-
»
eo= SF” ss "S G4 BF ss
THE EXECUTIVE AND THE JUDICIARY. 221
In the Governor’s Court matters took a different turn. As.
the procedure there was summary, and suitors were not called
upon to employ solicitors, and as the amounts recoverable were
below £50, the emancipist attorneys were less eager for admission
and did not seek the Governor’s intervention. They knew too
that the Judge-Advocate was opposed to them, and when the
court met after a short postponement on 15th May, there were
no petitions for admission brought before it. Associated with
Ellis Bent were Richard Brooks and Charles Hook, both respect-
able and undistinguished colonists. They agreed at once to
the adoption of the rules proposed by the Judge-Advocate, of
which the first ran as follows :—
“It is ordered by this court that no person whatsoever who
has been struck off the rolls of attorneys of any Court of Justice
in any part of His Majesty’s dominions for any offence for
which such persons are liable by the Laws of England to be
transported, shall on any account be admitted to practise as an
attorney of this court.” ?
The court then proceeded to hear suits brought before it.
A month afterwards Macquarie asked for a copy of the Rules
and Regulations, “conceiving myself entitled,” he wrote, “to
such information from you according to the tenor of the new
patent”? Since the 22nd of April he had known that the Judge-
Advocate concurred in his brother’s opinion,® and had of course
heard of the-rule which had been passed in the Governor’s
Court.
Ellis Bent sent the copy asked for, but added, “ I respectfully
beg leave to be understood as by no means admitting a right
on the part of your Excellency to controul that court in the
adoption of such rules as it may think proper to form as the
basis of its practice ”.*
The closing of the Supreme Court created great commotion.
The emancipist attorneys proposed to hold a public meeting,
and brought a requisition to the Provost-Marshal. But when
it was laid before the Governor, he felt that the signatures were
1 Enclosure to Macquarie’s D. 5, 22nd June, 1815. R.O., MS.
2 Macquarie, D. 5, 1815. See above. ean
$ Bent (J. H.) stated the fact on his brother’s authority in his letter of 22nd
April, 1815. R.O., MS.
4 Letter to Macquarie, 18th June, 1815. Enclosure, D. 5, 1815.
222 A COLONIAL AUTOCRACY.
not of sufficient weight to justify him in allowing the meeting |
to take place. Simeon Lord was the only magistrate who had.
signed the requisition, and of the eight others five had been
convicts. An attempt was made to secure the support
“* more considerable persons,” but without success, and no meet-
ings were held. The purpose of the meeting as described in
the first requisition was ‘‘to inquire into the circumstances
which had taken place in the Law Courts”. In the second it
was more obscure, for the meeting was “to inquire into the |
Judicial, Commercial and Agricultural state of the Colony”. —
Meanwhile a very extraordinary correspondence took place
between Macquarie and Jeffery Bent. It was commenced by
the former on the 29th May, ten days after his return to head-
quarters. He had been surprised at not receiving a personal
communication from Bent, but had learned of the differences
which had arisen, and of the closing of the court, from the other
members. As a Civil Court had not sat for ten months! “the
security of persons and property, and the best interests of the
Colony ” both internal and external, were being seriously affected.
These matters had apparently escaped his attention while he
had allowed “ points of minor importance” to frustrate the great
design “ for which,” added Macquarie, in a sentence admirably
suited to inflame the temper of the judge, “I had assembled
the Supreme Court ”.
“JT cannot,” he proceeded, “forbear to express to you that
I feel much surprise, mingled with sentiments of regret” (a
constant combination of sensations in Macquarie), “that you
have not made me as Governor of this Territory any official or
other communication on this very important occasion, the ©
publicity of which could leave no doubt of its existence. If ©
official duty had not imperiously demanded a prompt communi- —
cation, I should have been disposed to expect it even as a point
of courtesy . . . in our relative situation in this country.” He
felt bitter chagrin that he had himself to open a correspondence
which he had hoped would ‘‘long ere this have commenced on
your part, as well from a sense of personal respect as from the
more distinct feeling of its being a duty incumbent on the
' 4.e., since the publication of the new charter.
> eee ON Pe ae, ee a) ee i? ee ae” lee
THE EXECUTIVE AND THE JUDICIARY. 223
Principal Judge of the Supreme Court to make me a report on
an event wherein the Colony at large is so deeply interested ”.!
Bent replied with considerable zest. If the Governor had
to complain of discourtesy, Bent also had to lament the “ un-
precedented disrespect and indignity with which as one of His
Majesty’s Judges” he had been treated. It was not a matter
of minor importance “whether persons so peculiarly circum-
stanced as George Crosley, Edward Eager and George Chartres
should be solemnly accredited, not to this Colony but to the
whole world, as in every respect fit persons to be entrusted with
the management of all legal concerns whatever . . . when I
well know that it is an object of numerous Acts of Parliament,
and of the regulations of all His Majesty’s Courts of Justice, to
‘do all that lies in their power not to admit as attorneys those
whose characters were disreputable or suspicious”. But this
‘matter had been already discussed, and he turned from it toa
more particular criticism of the Governor's communication. It
was not his duty, and he had not considered it expedient, to
report the differences which had arisen on a subject which the
Governor had already prejudged. ‘“ My functions,” he contin-
ued, ‘‘are entirely distinct frem those of your Excellency, and
in the exercise of them I am not accountable to any but to
those to whom your Excellency is also accountable; I am not
placed under your Excellency’s command either by the tenor
of my commission, by His Majesty’s charter, or by any official
instruction from His Majesty’s Ministers”. Macquarie had
assumed a superiority and a right of command over him which
he did not legally possess and to which Bent refused to submit.
The only effect of such a tone and language, he went on, was to
produce a useless irritation of his feelings. The Governor had,
by the charter, no legal right to assemble or adjourn the court,
nor had he any right to refer to Bent as the “ Principal Judge of
that Court”. He was, on the contrary, the only judge, and was
denominated “ Te Judge” in his commission and in the charter.
In that connection the Governor had been guilty of a grave
discourtesy in not addressing him as “ 7e Honourable,’ which
was as much his title as “ His Excellency ” was the Governor’s.
1 Macquarie to Bent, 29th May, 1815. Enclosure, D. 5, 1815. R.O., MS.
224 A COLONIAL AUTOCRACY.
“Can your Excellency,” he continued, “really expect that I
should under these circumstances make a communication to you _
from motives of cordiality and courtesy, which I am not bound
to do officially, on the very point wherein your Excellency’s
conduct towards me has been so deficient in the delicacy, the
etiquette, and the courtesy due to my rank and station? or that
I should make an appeal to you! ona matter in which you
not only formed but publicly expressed'an opinion so opposite
to my own? I have felt that on this subject, tho’ from my
commission I am peculiarly entitled to your Excellency’s con-
fidence, I am wholly without your Excellency’s support; al-
though I have every reason to believe that the steps which
your Excellency has taken were without the knowledge and
against the wishes of His Majesty’s Ministers.
“Feeling it to be inconsistent with my dignity and inde-
pendence as a judge to submit to any interference, or investiga-
tion, into my judicial conduct on the part of the Executive
Government of this Colony, I shall decline entering into any
further discussion with your Excellency on this subject except
we are understood to meet on terms of equality and independ-
ence of each other: and have only to add that I have sub-
mitted to the magistrates in question such terms of accommoda-
tion as they may accept without compromising their own opinions,
and which, if they refused, I shal] be justified in considering
that an improper attention to the interests and feelings of Mr.
George Crosley (my own feelings being considered as a matter
of minor importance) is the sole cause of the mischiefs and incon-
veniences which will result from the interruption of the proceed-
ings of the Supreme Court. I beg to assure your Excellency
that I shall be always anxious to evince my personal respect
and to do all in my power that can contribute to the welfare
of your Excellency’s Government, and sincerely lament that
any difference should have arisen to disturb our cordiality,
which I shall be happy to restore in any way not inconsistent
with my own honour, that of my profession and my station.”*
1 According to the charter, when the Judge of the Supreme Court was in a
minority, the party against whom judgment was given might a) to the
Governor. But in such a case as this, of admission to practise, it is difficult to
see how this cause could have been put into action.
2 Bent to Macquarie, 31st May, 1315. Enclosure, D. 5, 1815. R.O., MS.
ne le ce gr I a
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THE EXECUTIVE AND THE JUDICIARY. 225
In reply Macquarie proposed to discontinue a correspond-
ence which would probably subject him to further insult.
While thus securing the last word he referred very shortly
to Bent’s letter as being in many parts inconsistent and
containing many insinuations “as unjust as they were il-
liberal”.
Both judges and the Governor immediately referred the
whole correspondence to the Secretary of State, each adding
to the enclosures characteristic explanations and comments.
Ellis Bent put the whole position with such lucidity and modera-
tion as to be well worth quoting.
“Tt must also be considered,” he wrote, “ that offices are not
made for the individuals who may be selected to fill them, but
for the benefit of the publick; and to answer the purpose of
their institution the respectability of their characters must be
supported ; it is not sufficient to them that the habits of a
person convicted of felony have been so far improved as to
qualify him to exercise the office of magistrate or the duties of
an attorney with propriety, but it is necessary also to be satis-
fied in the one case that the character of the office, in the other
that that of the court, may not be injured by the introduction
of persons so circumstanced. A long exercise of the duties of
a magistrate in this Colony enables me to say that the character
of the magistracy has been much injured by the introduction
into it of persons who came out as transports to this Colony ; and
I am sure that respectability of the Courts of Justice will be
utterly destroyed if a similar class of persons be admitted as
attorneys,” ?
The estrangement between Macquarie and the Bents re-
mained complete. In October the Judge-Advocate became so
ill that Macquarie agreed to allow him leave of absence in order
to try the effects of a long sea voyage. Jeffery Bent at once
offered his services as Judge in the Criminal Court. He was
willing to act under the Governor’s warrant, but as he might
incur a heavy responsibility by so doing he proposed certain.
restrictions. The principal one was that the sentence of death
1 Macquarie to Bent, 2nd June, 1815. Enclosure, D. 5, 1815. R.O., MS.
2 Bent to Bathurst, rst July, 1815. R.O., MS.
15
226 A COLONIAL AUTOCRACY.
should not be executed until the pleasure of the Prince Regent
should be known.'
Macquarie refused his offer. “The disposition you have so
openly manifested to counteract my public measures,” he wrote,
“and treat my authority with marked disrespect, would of it-
self be a sufficient objection to my appointing you to that
office, but independent of so strong an objection I should con-
sider it as highly irregular as well as illegal, your officiating as
Judge-Advocate ; the duties of that office being in my opinion
quite incompatible with those of the office you hold as Judge
of the Supreme Court of Civil Judicature.” ?
To the Colonial Office the Governor wrote that the post-
ponement of the execution of death sentences would have ren-
dered altogether nugatory the purposes of a Criminal Court. *
No arrangement had been made for holding the Criminal
Court when Ellis Bent’s departure was first postponed and
then put off altogether. By the end of October his disease so
much increased that all thought of the voyage was given up.
On the roth November, 1815, he died at Sydney in his thirty-
second year. Macquarie would not forgive him, but he tried
to be just. ‘‘I still feel,’ he wrote to Lord Bathurst, “that I
should write to your Lordship in those terms which his ad-
ministration of the law in his official capacity here seems to
me to merit.” *
Jeffery Bent wrote in a strain of sadness not without dignity,
and the Colony mourned sincerely the loss of the young Judge-
Advocate. Poems to his memory were printed in the Gazette,
Marsden preached a sermon in his praise, and was reprimanded
by the Governor for a simile which he deemed blasphemous. ®
1 Bent to Macquarie, 24th October, 1815. Enclosure, D. 1, 1815. R.O., MS.
* Macquarie to Bent. Enclosure, D. 1, 1819. R.O., MS.
3D. 1, 20th February, 1816. R.O., MS. It is quite clear, however, that Mac-
quarie’s real objection was Bent’s behaviour towards him. The Supreme Court
was not likely to sit for another six months at the earliest, and the delay in re-
gard to death penalties was not of much importance.
*D. 1, 20th February, 1816. Lord Bathurst recommended Bent’s widow and
four young children for a pension, and one of £200 a year was granted. Later
~ yd given £200 to help in educating the boys. See Correspondence in R.O.
and C.O.
5 There is some confusion in this matter. Marsden and Riley both gave the
same account, but Macquarie said that Marsden’s report was not true, that his
reprimand had nothing to do with the part about Bent. See Appendix, Bigge’s
Reports, Evidence of Marsden. R.O., MS. Also Marsden’s Memoirs.
a s&s Ss wm:
am am am» & 2 ef= Ghee tees bese et Gs Ga
THE EXECUTIVE AND THE JUDICIARY. 227
“IT the more particularly remember it,” said Riley, “from my
surprise at the circumstances, as I considered the Governor had
respected Mr. Bent, whose memory was revered throughout the
Colony.”?
Another colonist wrote of him: “ He was mild and merciful,
in all legal decisions firm and just. No power could bias him
to act contrary to his convictions. His life was an example of
every public and private virtue. His death is deeply lamented
and this Colony most sincerely feels his loss.” 2
In these sad circumstances an acting Judge- Advocate had to
be appointed. Macquarie’s choice fell upon Garling, who was
the senior “Government” solicitor, and had arrived a few
months before. He needed much persuasion before he would
accept a position of such responsibility, and it was not until the
1ith of December that he consented. “Recollecting the en-
lightened mind, profound erudition, and vast legal knowledge
that distinguished the late Judge-Advocate, whose persuasive
eloquence and peculiar suavity of manner adorned his character
on the judicial seat and endeared him to all ranks of society in
this Colony,” he felt natural diffidence in his own powers. He
felt, too, that so long as Jeffery Bent was in Sydney the posi-
tion would be a difficult and delicate one.*
Bent indeed was very angry, and the humiliation was the
keener because it was he who had originally recommended
Garling to the Colonial Office. He could now do no more
than declare that he had been wholly mistaken in Garling’s
character and acquirements. He said also that his appointment
as Judge-Advocate was a piece of bribery, and had been made
in order to admit the emancipist attorneys once more to practice.*
In 1820 Garling denied this altogether, and stated that the
Governor never even mentioned the matter to him® They
1 Riley, C. on G, 1819.
2 Bayly to Bunbury, 13th March, 1816. R.O.
3 Garling to Macquarie, 11th December, 1815. Enclosure to D. 2, R.O., MS.,
1816. Macquarie had no power under the charter of appointing an acting judge
or a permanent judge in case of a sudden vacancy. __It was one of the omissions
pointed out by Field in 1820 (Appendix, Bigge’s Reports). R.O., MS. The
general powers of the Governor’s Commission and the necessities of the case in
this instance amply justified his action in making such an appointment.
4 Bent to C.O., rst March, 1816. R.O., MS.
5 See Evidence, Appendix, Bigge’s Reports. R.O., MS.
228 A COLONIAL AUTOCRACY.
were admitted, however, and probably Bent’s opinion, though
unfounded, was the one generally held. | Macquarie approved
of Garling’s behaviour as Judge-Advocate so much as to recom-
mend that his appointment should be made permanent.!
He had, however, neither the standing nor education to fit
him for such a post, and in any event other circumstances had
made such a course impossible.
Ellis Bent’s letter criticising the new patent and Macquarie’s
administration ? reached England in June, 1815. In December
the Governor’s despatch of February, 1815, which described the
dispute over the Port Regulations, was received. The Secre-
tary of State addressed a reply to Bent on the 11th December,
1815.
“JT should,” he wrote, “ willingly have taken your observa-
tions into consideration if there had been any intention . . . of
remodelling the charter . . . so lately promulgated.” Bent’s
commission also must remain unaltered, for “ The Colony did not
appear to His Majesty’s Government sufficiently advanced to
admit of withdrawing that appearance of military restraint
which had been found necessary in its first foundation, and
which the composition of its population had rendered it indis-
pensable subsequently to maintain. The continuance therefore
of a judicial officer who bore a commission exclusively military,
and who, though a military officer, was by the charter placed
above the civil judge, appeared to have many advantages with
a view to the maintenance of that due subordination in the
settlement upon which its welfare depends,” *
Bent’s proposal to register the Governor’s regulations in the
courts was opposed as “tending to give but little if any addi-
tional publicity . . . while it tends to encourage an opinion that
the sanction of the court is necessary to give validity to the
acts of the Governor”.
His conclusion conveyed a warning. “There could not
exist a greater misfortune,” he wrote, “to a settlement of so
peculiar a nature . . . than a spirit of resistance, or anything
1D, 2, 24th February, 1821. R.O., MS.
27.e., letter of October, 1814. R.O., MS.
* It appears from the foregoing pages that the military commission of Judge-
Advocate had so far created nothing but conlusion, and had not in the least
fulfilled the objects for which, acccrding to Lord Bathurst, it was retained.
ee Sg Se ey ee
a as Ss es
na =—_- as
Ce a
THE EXECUTIVE AND THE JUDICIARY. 229
more calculated to produce such a calamity than an appearance
of misunderstanding between the Governor and yourself, or a
_ suspicion that you were disposed to question or disobey his
orders.”
In fine, the Secretary of State preached endurance, patience
and submission on the part of all officials, and expected peace
to be maintained under the contradictory and incomprehensible
system of civil Government by military officers.!
Soon after this letter was despatched arrived the reports of
the emancipist attorney’s difficulty. The recall of the Bents
was at once decided upon, and by the end of January, 1816,
John Wylde and Barron Field were appointed respectively
Judge-Advocate and Chief Judge of the Supreme Court.?
Wylde had started as a solicitor and been called to the Bar in
1805, but Field, although he had been entered at the Inner
Temple in 1809, had not been called until 1814. In character
Wylde was a typical respectable attorney with plenty of public
spirit and a strong wish to conciliate all parties.* His most
noticeable fault was inability to write plain, straightforward
English, or indeed to speak it. Field, on the other hand, was
a lawyer with a love for the humanities, a considerable amount
of youthful impetuosity, a sense of humour and a hot temper.®
The Secretary of State had for some time thought that this
step would prove necessary, and though he had little sympathy
with Jeffery Bent, he intended to offer Ellis Bent a post else-
where. There was no hope of reconciliation between the Bents
and Macquarie, and there was no alternative but to recall them.
i Bathurst to Bent, 11th December, 1815. C.O., MS.
2The Colonial Office found it difficult to procure suitable men for these
appointments, and had more than one refusal. The commissions of Wylde and
Field are dated rst and 25th May, 1816. See C.O., MS., 1816.
3 Wylde’s father, who was a solicitor, went out with him to New South
Wales and became Clerk of the Peace, and practised in the courts. Wylde’s
younger brother, who spelt his name Wilde, became Lord Chancellor of England
with the title of Lord Truro. He also entered the legal profession as a solicitor.
4 See Bigge’s Correspondence with C.O., 1822 to 1823. R.O.,MS. Wylde’s
confused speech was an especially great drawback owing to the peculiar constitu-
tion of the Criminal Court. His expositions of the law were very difficult to follow.
5 Field was a schoolfellow and friend of Charles Lamb. Before he went to
New South Wales he published an edition of Blackstone and occupied himself in
journalistic work. He wrote for the Reflector and was dramatic critic on The
Times.
6 Letter to R. Bent, 31st January, 1816. C.O.,MS,. He was the father of
the judges.
230 A COLONIAL AUTOCRACY.
Macquarie’s forbearance in not exercising his power of im-
mediately suspending in extreme cases the officers under his
command was highly commended, but not the policy he had
advocated.
“Tt is not,’ wrote the Secretary of State, “against the
opinions entertained by them, but against the manner in which
they were brought forward and acted upon, that the displeasure
of His Royal Highness is directed; it was certainly competent
to the Judge-Advocate to express any lega] doubts which he
might entertain as to the propriety of the new Port Regulations ;
feeling those doubts, it was equally his duty to have lent his
assistance in rendering the regulations finally determined on
by you as free from objection as possible. The remonstrances
of Mr. Jeffery Hart Bent against the employment of convicts
in the confidential situation of attorneys was equally proper,
nor am I disposed to sanction their employment in the Colony
under any other circumstances than those which existed at the
time, namely, there being but one other attorney in the Colony,
“ Both gentlemen had clearly a right to protest against any
act of yours which they conceived to be illegal or improper, and to
transmit that protest to His Majesty’s Government; but they
were not authorised, on the ground of difference of opinion,
either to withhold from you the legal assistance which you
required or to interrupt the course of judicial proceedings.”
At the same time the Governor was reminded that “the
Laws which regulate trade are, generally speaking, as applicable
to New South Wales as to any other British colony, and all
additional restrictions not heretofore observed must derive
their justification from the necessity of the case, from their
expediency with a view to the security of the convicts or the
maintenance of public tranquillity. The internal government
of the Colony must equally be guided by the English Laws,
modified by the usages which have always subsisted there, nor
can I perceive the necessity of applying to the present state of
the Colony any more restrictive measures of police than those
which were adopted in its infancy. ~ You will therefore regulate
your future conduct as far as possible on this principle.” 1
1 Bathurst to Macquarie, D. 66, oth April, 1816. C.O., MS.
ume
i)
THE EXECUTIVE AND THE JUDICIARY. 231
To Ellis Bent, Lord Bathurst wrote in a tone of moderate
rebuke. Recent correspondence had pointed out “too clearly
that your uneasiness is excited. . . by the feeling that the
system of government. . . and the nature of the situation which
His Majesty’s Government have thought it advisable that you,
as its principal judicial officer, should continue to hold, render
it impossible for you to discharge your duty with advantage to
your country or to the Colony”.
The despatch to his brother was curt and uncompromising.
The Judge-Advocate was no longer alive when his letter of
recall was written. Wylde thus filled an office left doubly
vacant when he and Field left England in May, 1816. Shortly
before their departure Wylde happened to see a newspaper
paragraph referring to the emancipist attorneys in New South
Wales. This was the first time he had heard of the matter,
and at once he and Field pressed Goulburn to give them in-
structions how to act if further attempts were made to allow
these attorneys to practise. Goulburn then told them that the
Governor knew Lord Bathurst’s opinions, and they must apply
to him when they reached New South Wales. This they did,
addressing to Macquarie a joint letter requesting to be furnished
with instructions “in conformity with the directions and pleasure
of his Majesty’s Government as made known to your Excel-
lency ”.2. Macquarie quoted in reply a passage from Lord
Bathurst’s despatch of oth April, 1816.2 This he said was the
only instruction on the point with which he had been honoured.
He gave, however, no publicity to this despatch, and to
Riley and Broughton he stated simply that Lord Bathurst “did
not confirm the practice of the men we had supported”.* But
for a few years after the arrival of Wylde and Field the ques-
tion remained in the background, and the emancipists no longer
appeared in the courts as attorneys.
1Goulburn to Wylde, 20th May, 1816. C.O., MS.
2 See letter in Appendix, Bigge’s Reports. R.O., MS.
3 Macquarie to Field and Wylde, 11th March, 1817. Appendix, Bigge’s
Reports. R.O., MS. Macquarie says 18th April, but the despatch is dated 8th
April. See extract above, p. 230.
4 Riley, C. on G., 1819.
5 The question arose again in 1819. Crosley and a free settler, who was a
solicitor, entered into a partnership, the former to do the real work, the latter to
appear in court. The compact coming to the knowledge of Field, he crossed the
232 A COLONIAL AUTOCRACY.
Jeffery Bent was furiously indignant at being recalled and
protested hotly against his treatment. Until the beginning of
1817 he remained in New South Wales, harassing the Governor
and stirring up discontent. He arrived in England after a long
voyage by way of India in May, 1818, and began an attack on
the Colonial Office. His first demand, for a refund of the ex-
penses of his homeward voyage, was successful, but he failed
in the next. This was a request for a clear acknowledgment
that he had been recalled for political reasons, and also for a
temporary provision till he should regain his position at the
Bar. He also suggested that he should be appointed Civil
Governor of New South Wales. Finally his persistency was
rewarded by the Chief Justiceship of Grenada! From that
time he passed altogether out of the history of New South
Wales. But during the period between the closing of the
Supreme Court in 1815 and his departure in 1817 he had by
no means been idle, nor had his zeal been altogether fruitless.
free solicitor off the rolls of his court. There was much discussion in the Colony
upon the matter. The free solicitor died soon after—some said from a broken
heart, others from injuries received in a fall from his horse owing to his great
corpulency. There were few free attorneys left, and Crosley and Eager were
allowed to practise occasionally under the same terms as previously before
Ellis Bent. Crosley was a rascal but competent, and one of the few attorneys
pe understood court business. See Appendix, Bigge’s Reports, R.O., MS. and
eport II.
1 See Colonial Office Correspondence, 1818 to 1820, R.O. Major-General Bayly
ro rar Seg 3rd January, 1820, R.O., MS., speaks of him as Chief Justice for
rena
[> 4
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bel “ae S| at ap Ey
CHAPTER VIII.
THE EMBARRASSMENTS OF AN AUTOCRAT.
AUTHORITIES.—Despatches, etc. (especially for years 1816-1817, and Ap-
pendix, Bigge’s Reports) in Record and Colonial Offices, Sydney Gazette, 1816-
1817-1818. P.P., 1819, VII.; 1822, XX.; 1823, X.
No sooner was the question of the emancipist attorneys at rest
than Bent found a fresh outlet for his spirit of opposition.
This time it was against the payment of tolls on the Parra-
matta Road that he took his stand, and the ground was well
chosen, for it opened up the whole question of the legality of
the system of Government in New South Wales.
The road ran from Sydney to Parramatta and thence to
Windsor, a distance altogether of thirty-six miles. It had been
built by Macquarie in the early years of his Governorship, and
though executed by convict labour, had been a heavy charge
upon the colonial revenue. In order to liquidate “the debt
contracted to the Police Fund” by its original construction, as
well as to provide from time to time for necessary repairs,
Macquarie erected turnpikes and ordered tolls to be levied.’
In 1810 he appointed three Road Trustees, Simeon Lord,
Andrew Thompson and the Keverend Samuel Marsden.
Marsden refused to act with the others, and Wentworth was
appointed in his stead. Shortly afterwards Thompson died,
and Macquarie made no further appointment to fill his place.’
In March, 1811, the Governor published a Proclamation naming
the rate at which the tolls were to be levied and other details
of management. The Proclamation received the approval of
Lord Liverpool in a despatch of 1811.°
Macquarie’s scheme for the administration of the road was
1See D. 1., 20th February, 1816, R.O., MS. for history of the road.
2 See before, Chapter III.
3D., 22nd November, 1811. H.R., VII.
(233)
234 A COLONIAL AUTOCRACY.
certainly just and reasonable. It was probably very seldom that
the Governor of a remote colony described with exact accuracy
the working of any Government department. Approval was.
sought for the course which was to be pursued, and approval’
once obtained, the Governor felt under no obligation to report.
the many divergences into which practical administration might.
lead. Thus the three Road Trustees were reduced to two, and
of these two D’Arcy Wentworth alone conducted the business..
Bent stated in 1815 that Wentworth was the only trustee, and
in the same year Macquarie claimed that there were three; but
two, and two only, appeared in any record This uncertainty
was not very important, for the only duty of the trustee or
trustees was to farm the tolls to the highest bidder. This was
done annually, and the sum realised paid straight into the
Police Fund. All further control belonged to the Governor.
It was constant matter for complaint in the Colony that the
roads and bridges were neglected and repairs urgently needed ;
but the Road Trustees were in no way responsible, nor was any
part of the Police Fund ear-marked for such purposes. The
revenue benefited yearly by about £400 from the farming of the
tolls, but this amount was not set aside to pay for repairs, nor
was it used to repay the charge for construction, but simply went
into the general fund. Thus in practice Macquarie disregarded
the principles he had laid down for Lord Liverpool’s approval.?
To one section of the Proclamation of 1811 the Governor
strictly adhered. That was the section which relieved the
Governor and Lieutenant-Governor, with their families and
suites, from the payment of toll, since their duties required that
they should from “time to time pass into the interior”. He
offered a similar favour to the Judge-Advocate, “rather, how-
ever, as a courtesy and acknowledgment for his having oblig-
ingly framed the Proclamation and antecedently rendered me
other legal assistance and advice, than from his having any
public duties to perform which could warrant such exemption.”
Ellis Bent refused the offer, thinking with Macquarie that his
1See D. 1, 20th February, 1816, and Enclosure, Bent to M., 25th August,
1851. R.O.,MS. Bent said that in the “‘ General Almanac, published by authori
and submitted to your Excellency’s inspection ” there was only one Trustee nam
2 See Wentworth’s Evidence, Appendix, Bigge’s Reports, R.O., MS. for duties.
of a Road Trustee.
THE EMBARRASSMENTS OF AN AUTOCRAT. 235
public duties as Judge-Advocate did not call for such an indulg-
ence, and that his inclusion might be followed by demands from
other magistrates for such exemption dy right.)
Jeffery Hart Bent had no such delicacy. In August, 1815,
he decided that the exaction of toll was altogether illegal, and
determined not to pay it. His absurd sense of personal dignity
was outraged by the distinction drawn between himself, one
of His Majesty’s Judges, and the Governor and Lieutenant-
Governor, a distinction not to be found, he asserted, in “ His
Majesty’s Most Gracious Charter,” where equal civil rights were
assigned to each.2, He warned Macquarie of the course he in-
tended to pursue, on the 18th August, and marched boldly to the
attack. “But notwithstanding your Excellency has made so
mortifying a distinction between the Lieutenant-Governor and
His Majesty’s Judge,” he wrote, “and notwithstanding I am
well aware of the illegality of the demand, and that your
Excellency possesses no legal power or authority whatever to
levy taxes upon the subject, I am so much alive to the advantages
arising from good roads that I should have most willingly con-
tributed my quota towards their maintenance had I not from
the neglected state of the roads sustained considerable personal
risque (szc), and had I not found that instead of the system
general in England with respect to the turnpike roads being
resorted to here, vzz., the appointment of trustees for the pur-
pose of collecting the tolls and seeing to the due appropriation
of the money, on the roads, from which it was collected, and
who are responsible for the good state and repair of the roads,
a new and arbitrary mode has been adopted, and only one person
appointed by your Excellency, whose duty seems only to be to
let the tolls to farm, and who has not the slightest power to
lay out anything upon the roads. . . and whose office .
appears to me to be a mere blind for those who have not the
means of personal information on this point ; and had I not
also found that the sums levied are carried to a general account,
and no part appropriated to the repair of the road on which they
were collected. ...
“Under these circumstances I feel myself justified in de-
1D. 1, 20th February, 1816. R.O., MS.
2 Bent to M., 18th August, 1815. Enclosure to D. 1, 1816. R.O., MS.
236 A COLONIAL AUTOCRACY.
clining to pay a demand absolutely illegal, or to submit to a
burthen from which your Excellency has relieved yourself and
the Lieutenant-Governor and your respective families and suites.
As I must,” he concluded, “ always feel great reluctance to dis-
turb any arrangements of your Excellency, or to impede in any
manner the execution of any measures adopted previous to my
arrival at this Colony, I thought it proper before my determina-
tion became public to apprise your Excellency, in order that
an opportunity might be afforded of removing the necessity
that leads to it.” +
Macquarie made one of those answers in the third person
which are the usual refuge of persecuted dignitaries. Without
easing the situation, it inflated him with a sense of virtuous in-
dignation and stified any question of right and wrong. In-
solent and turbulent though Bent was, he knew the ways of
the law. In such matters Macquarie was at sea without chart
or pilot, and he was more than a little uneasy under the judge’s
onslaught.
And so he took a bold line and wrote: “ The Governor has
received a most insolent and disrespectful letter of this day’s
date from Mr. Justice Bent, full of gross misrepresentations and
calumnies, which merits no other answer than his expression of
contempt for the weak and ineffectual efforts of the writer to
disturb the peace of the Colony and to counteract the measures
of his administration ”.* |
Bent easily refuted the charges of ‘‘misrepresentation and
calumny.” Having once more gone over the ground covered
by his previous letter, he proceeded :—
“JT may again say that such a system is contrary to that
established in England by numerous Acts of Parliament in
cases of turnpike roads; and that it is (to me at least) both
new and arbitrary. I feel justified inthe inference I drew from
these facts that there is no person in England, hearing that a
trustee of the roads had been appointed, but would conclude
that he had the same powers and was subject to the same
responsibilities as similar trustees at home, and no one could
conceive that such person was a mere non-efficient, or that
1 Bent to M., 18th August, 1815. Enclosure, D, 1, 1816. R.O., MS.
2M. to Bent, 18th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
THE EMBARRASSMENTS OF AN AUTOCRAT. 237
your Excellency (as the fact undeniably is) had the sole and
entire control of the repairs of the roads and as to the ex-
penditure of the tolls levied from them.” !
This was irrefutable, and Lord Bathurst would undoubtedly
have taken his view. ?
The correspondence came to an end with avery queer letter
from Bent, which illustrated his attitude towards Macquarie
from the moment when he had first set foot in the territory.
“The Judge of the Supreme Court,” he began, “begs to
remind Governor Macquarie that all his relations with this
Colony, and his late as well as former correspondence with
his Excellency, have resulted solely from his judicial station,
and he had to express his sincere regret that his correspondence
should have been hitherto principally confined to a resistance
to Governor Macquarie’s improper interference with him as
judge ; and a remonstrance against measures touching (in) his
opinion on the Liberty of the Subject.” ®
Macquarie expressed to Lord Bathurst the uneasiness which
he would not show to Bent. It was apparently the first time
that he had really faced the question of his right to lay taxes,
and he was surprised at the consequences which would logically
follow from Bent’s doctrines. But he considered that the ab-
surdity of the conclusion was so obvious as to discredit the
premises. He described Bent’s letters, and then proceeded:
«. . he subsequently adds that the demand of toll is illegal,
as I possess no legal power or authority whatever to levy ¢ares
upon the subject—a position which not only goes to the render-
ing the toils so collected illegal, but by its indefinite nature
equally affects all other duties or imposts, and consequently
strikes at the existence of any colonial fund whatever—for
all duties on imports or exports—the sums levied upon
licenses for the keeping of public houses, and all others which
constitute and go to the support of that fund have been laid
on by the Governors from time to time, and of course are fit
subjects for this doctrine of resistance by all those who are
required to pay them.
1 Bent to M., 25th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
2 See D., 23rd November, 1812, from Lord Bathurst. R.O., MS.
3 Bent to M., 28th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
238 A COLONIAL AUTOCRACY.
“Tt is not for me to expatiate to your Lordship on the
dangerous consequences of any man under a colonial Govern-
ment presuming to oppose the ordinary measures of that
Government, but more particularly on the extraordinary im-
propriety of a Law Officer of Mr. Bent’s rank enlisting himself
as the champion of a weak and wicked faction to impede the
just measures of Government, to increase the taxes on the
mother country by annihilating all those levied in the Colony
itself, and to pronounce on the illegality of measures which he
might possibly have to pass legal judgment upon in his own
Court of Justice, were other persons to be found who would
render such an appeal necessary.” !
Macquarie thus confused the legal aspects of the question
with the personal one of respect to his authority, and whatever
his opinion as to the first, let no doubts disturb the decisiveness
of his action. After his declaration in August, Bent had soon
commenced hostilities. On the 6th September Redman and
Cullen, the proprietors of the Toll Gate at Sydney, made a
complaint to Wentworth, the Superintendent of Police. From
the depositions sworn by them it appeared that Bent not only
refused to pay toll, but when the gates were shut against him
shook them open and drove through at a gallop, making use of
language natural to an angry Englishman on such an occasion.”
Wentworth did not issue a summons immediately, but seeing
Bent passing his office he went out to him and tried unsuccess-
fully to reach an amicable settlement. The summons was
therefore issued and duly served.* Bent at once wrote pointing
out that as Judge of the Supreme Court he was “by no means
amenable to any criminal jurisdiction in this territory,” and
that he could not appear in answer to the summons,*
“Tt seems very extraordinary,” he concluded, “that such a
measure should have been adopted on your own authority
towards one of His Majesty’s Judges, without any avowed
communication with His Excellency the Governor.” ®
The suggestion was an ugly one, but it was probably justi-
1 Macquarie, D. 1, 20th February, 1816. R.O., MS.
2 Enclosure, D. 1, 1816. R.O., MS.
3 Wentworth to M., gth September, 1815. Enclosure, D. 1, 1816. R.O., MS.
4 Bent to Wentworth, 8th September, 1815. Enclosure, D. 1, 1816. R.O., MS.
5 Ibid.
THE EMBARRASSMENTS OF AN AUTOCRAT. 239
fied. The pretence on the part both of Macquarie and Went-
worth that they had not consulted together, and that they had
nothing to do with the action of the toll-keepers, was stultifying.
It was quite unlikely that the latter would have taken up the
matter without some encouragement from high quarters. Bent
‘was not a frequent traveller, and as Macquarie pointed out with
scorn, kept no carriage, but usually rode or walked.!_ Pedestrians
paid no toll and equestrians only a mite of 3d. Such a loss
would scarcely have been sufficient to make ignorant men like
the turnpike-keepers enter of their own accord into conflict with
an officer of high judicial standing.
The case came on before the police superintendent and was
hheard ex-parte on the 8th September, and a fine of 40s. was
imposed. This was the lowest penalty which the Proclamation
of 1811 allowed. Needless to say, Bent did not think of paying
it, and Wentworth took no further steps, but simply referred
the conduct of the affair to the Governor.”
Macquarie at once published an Order in the Gazette in
which he referred to the recalcitrant judge, not by name, but
as “an officer of very high rank in the Civil Service of this
‘Colony ”.8
The most important part of the Order ran as follows :-—
** Whilst the Governor laments that any person should be
found in the Colony so wanting in public spirit, as to wish to
evade contributing his mite towards the support of so useful and
beneficial an establishment for the country and community at
large, he cannot allow any person whatever, however high his
rank may be, to break through or set at defiance the established
regulations of the Colony, and he thus publicly declares that
no person whatever can or shall be exempted from paying the
tolls in question, excepting those few already specified in the
Government Orders.” Tne farmers of the tolls were authorised
“to instruct and direct their respective toll-gate keepers to
enforce the orders and regulations,” and to use force and call the
police to their assistance if necessary. The magistrates were
€njoined to look to it that this assistance should be efficient.
Bent of course retorted and commented at some length on
1D. 1, 1816. 8.O., MS. 2 Wentworth to Governor above.
3 G.G.O., gth September, 1815.
240 A COLONIAL AUTOCRACY.
the conduct of Macquarie and' Wentworth. He claimed again ~
that judges were exempt from all criminal process save for
treason or felony, a statement to which’ Macquarie gave no
direct answer. It may be observed, however, that Barron Field,
Bent’s successor, held that this exemption did not extend to
the colonial judges, and proposed that it should be conferred by
statute.?
Macquarie’s description of his position deeply injured Bent.
“Your Excellency,” he wrote, “has . . . considered me as an
officer under your command and not as a judge holding a
commission from His Majesty, and who is not bound by any
instructions or by the tenor of his commission to take any
orders from your Excellency, and whose commission was so
given for the express purpose of rendering him independent of
the Governor of this Colony.” ?
He avoided further conflict by abstaining from any use of
the turnpike road, and thus carried his point of never paying
toll. The apparent victory lay with the Governor, but Bent
had thrown a doubt on his power to tax, and offered to the
malcontents a tenable ground of attack against the Govern-
ment.
He soon found a more efficacious and subtle manner of
harassing the Governor, using as his tools the Rev. Benjamin
Vale, a discontented young chaplain, and W. H. Moore, a
mischievous young solicitor, one of the two who had been sent
out by the Government.
Vale had left England early in 1814 to take up the duties
of assistant chaplain on the colonial staff. Like all the chap-
lains in New South Wales, with the exception of Marsden, he
held a staff commission which placed him under “the Rules
and Discipline of War”. Marsden had originally held one of
this kind, but when he visited England, in 1808, he persuaded
Lord Castlereagh to replace it by a civil commission, fearing
that the other might render him amenable to a Court-Martial.
Castlereagh had denied that he could in any event be court-
martialled, but yielded to Marsden’s persistence, and had a
“a e@woSsTt.+ =—_™ wm cs. & te oo ss Cm
Pe ee OA “a “Se ee “Se
1 Field to Bigge, Appendix to Bigge’s Reports. R.O., MS.
2 Bent to M., zoth October, 1816. Enclosure, D. 1, 1816. R.O., MS.
_ THE EMBARRASSMENTS OF AN AUTOCRAT. 241
new commission of a purely civil nature made out, for which
Marsden had afterwards reason to be thankful.!
However, Vale gave no consideration at all to the terms of
his commission and suffered no misgivings. When he reached
Sydney he was bitterly disappointed with the position assigned
to him. Instead of having the duties of a single parish with
a dwelling and glebe attached, he found that he must provide
his own lodgings and be constantly moving from place to place
as his assistance was required now by one and now by another of
the chaplains. He had to support his wife and family on his
salary of 10s. a day without further help from the Government.
Under these conditions he obtained the Governor's permission
to return to England in 1816. The Governor indeed was glad
enough that he should go—for the disappointed clergyman
was troublesome with his constant complaints.
Before the time came for his departure, Vale thought he
saw an opportunity of recouping himself for his expenses in
the Colony. On the 19th February, 1816, the 7vaveller, an
American schooner carrying teas and other merchandise,
arrived at Port Jackson bearing a clearance in proper order
from Canton. She was the first American ship which had
visited Sydney since the conclusion of peace, and Macquarie
gave her permission to unload her cargo, He was absent from
Sydney for a few days, and when he returned on the 29th Feb-
ruary, he found that the unloading had been stopped and the
schooner seized as a lawful prize under the Navigation Act
by the Rev. Mr. Vale and W. H. Moore. The Governor im-
mediately removed the “arrest or restraint which had been
thus laid on the discharge of the cargo, and continued the per-
mission of landing,” which he had previously granted.? Moore,
who acted as Vale’s attorney, petitioned the Governor to
appoint a Judge of the Vice-Admiralty Court, but received no
answer—and so far as the 7vaveller was concerned the matter
ended there.*®
1Marsden to Wilberforce, 2cth May, 1818. Private Papers of William
Wilberforce. Macquarie once told Marsden that under the old commission he
would have brought him betore a Court-Martial and tried him for sedition. See
also Evidence of Marsden, Appendix, Bigge’s Report. R.O., MS.
2D. 4, 8th March, 1816. R.O., MS.
3 Moore’s Evidence, Appendix, Bigge’s Reports. R.O., MS. There was no
Vice-Admiralty Judge in the period between Bent’s death and Wylde’s arrival.
16
242 A COLONIAL AUTOCRACY.
Macquarie was not sure whether he had been right in
allowing the schooner to enter and unload. He had followed
the colonial precedent of the time before the war! without at
the moment having any doubts at all. He had not then, at
the beginning of 1816, received a despatch from the Colonial
Office of December, 1815, warning him “that the trade of foreign
vessels with a British Colony is directly at variance with the
Navigation Laws of this country, and although this infraction
of them might have been tolerated at earlier periods upon the
plea of necessity, it cannot now be defended upon any such
grounds.” .. .2 After the seizure had been made he felt un-
easy and pointed out to Lord Bathurst that even if he had
felt any doubts before, he had no one in the Colony to whom he
could turn for advice, for he naturally shrank from appealing
to J. H. Bent, and he was “debarred from reference to the
statutes themselves by Mr. Bent retaining both the sets which
Government had at different times assigned for the use of the
Law Court”.® He felt, however, that the precedents would go
far to justify him, but as it was probable that Vale and his
“‘abettors” would prosecute the business elsewhere,” he asked
for an Act of Indemnity in case he should be proved to have
contravened the Navigation Act.
With regard to Vale and Moore, however, he had not a
moment’s hesitation. “Mr. Vale’s conduct,” he wrote, “and
that of Mr. Moore (both officers receiving pay under the
Government) being highly disrespectful, insolent and insubor-
dinate, in making seizure of a vessel during my absence which
they were fully aware had received my sanction for entry and
discharge, I felt it my duty to remark so much to Mr. Vale,
whom I sent for on the 27th ulto. and admonished him on the
impropriety and great indelicacy of his conduct in this instance
towards me as his Governor and Commander-in-Chief. . . in-
stead of any expression of regret, he even attempted by argu-
pA“ ee ee eee oe ae ~ Pe —- ~~ <
=> == en 8S mee ee = 3 Gf Se
oa = €& se ibe =e = OF -e OF = ot
1 Before this time forty-two ships under American colours had entered and
been cleared out. Enclosure to D. 4, 8th March, 1816. R.O., MS.
2D. 60, rrth December, 1815. R.O., MS.
% Bent did not give them up until October, 1816. See correspondence on
subject. R.O., MS.
4 The Colonial Office took no steps in the matter, evidently considering the
entry of one American ship of very little importance.
THE EMBARRASSMENTS OF AN AUTOCRAT. 243
ment to vindicate the measure. . . I ordered him intoa military
arrest, his commission as assistant chaplain specifically render-
ing him amenable to Martial Law. . . and ordered a Court-
Martial.” According to Vale, the Governor charged him with
mutiny and had him marched through the town like a deserter.
Marsden attempted to dissuade Macquarie from bringing Vale
before a Court-Martial, and told him of Castlereagh’s opinion
that even under staff commissioners the chaplains were not
amenable to military law, but Macquarie was determined and
himself drew up the charges.
There were four charges, of which the first three differed
little from one another. Vale was accused of conduct “highly
subversive of all good order and discipline,” of insolence, dis-
respect and insubordination towards the Governor and Com-
mander-in-Chief, of “disgraceful and ungentlemanly conduct
highly derogatory to his sacred character as assistant chaplain”
in seizing the Traveller after “his Excellency the Governor
and Commander-in-Chief ... had permitted and regularly
sanctioned the said schooner to be entered at this port with
leave to land certain parts of her cargo”. Further, his action
“tended to bring odium and disrepute on the public measures
of the Governor,’ and Vale had acted “from seditious, un-
worthy and sordid motives”. The fourth charge dealt with his
letters to Lieutenant-Governor Molle, which were characterised
as seditious and insolent. The court found him not guilty of
the last charge, but guilty of the first, and of parts of the second
and third,? and ordered him to be “ publicly and severely repri-
manded and admonished”. The Governor, however, directed
that “in consideration of his sacred character as a clergyman,”
he would dispense with the public reprimand, and ordered Vale
to attend at Government House to have his sentence and the
order upon it read to him by the Major of Brigade, and be
privately admonished by his Excellency in the presence of his
personal military staff and the naval officer.®
As to Moore, ‘‘I have,” wrote Macquarie, “deemed it
1 Vale to Bathurst, 22nd March, 1816. R.O., MS.
2 Enclosure to D. 9, 23rd March, 1816. R.O.,MS. Vale was declared not
guilty of insolence and not guilty of disgraceful and ungentlemanly conduct.
3D. 9, 23rd March, 1816. R.O., MS.
244 A COLONIAL AUTOCRACY.
— |
necessary to mark my sense of it” (his conduct) “in such a
manner as | considered his insolence merited, and for this pur-
pose I have given directions for his salary of £300 to be dis-
continued to him from the Police Fund from the day of his
assisting Mr. Vale. ..in making the seizure, and I have
ordered him not to be continued on the Government stores ;!
at the same time withholding every other indulgence from him
which I might, under other circumstances, have been disposed
to extend to him”.?
These appear remarkably severe measures and much beyond
the occasion. What spurred Macquarie on to such a vindictive
course was certainly the fact that he knew Vale and Moore
were not acting on their own initiative.
“T have to state to your Lordship,” he told Bathurst in his
first despatch on the subject,®? “that Mr. Vale and Mr. Moore
on the occasion of the seizure proceeded direct from the house
of Mr. Justice Bent (with the notifications of seizure ready
drawn up) on board the Zravel/er, and I have besides much
reason to apprehend that their proceedings herein were under
the private advice and recommendation of that Law Officer.”
It is impossible to say to what extent Bent was responsible
for their action. He admitted himself that he warned Captain
Piper, the Naval Officer, “that he would do well to do nothing
with regard to her” (the Zvaveller’s) “entry without authority
from the Governor,” * but said he had no more to do with it.
In any event, after the seizure he was active in his support of
both Vale and Moore. Moore, he said, who had acted only as
an agent, had been more severely punished than Vale, and
without any examination into his conduct having been held.
As to Vale, Macquarie had acted illegally in bringing him to a
Court-Martial, and Bent condemned Macquarie’s behaviour to
both in a letter to the Colonial Office.’ Vale also wrote to
Lord Bathurst, taking somewhat the same line as Ellis Bent
had taken a few years before ... “I trust if it should be
ee ee er ee
= bd co =
1 He had received rations for himself as a member of the civil staff.
2D. 4, 8th March, 1816. R.O., MS.
3D. 4, 8th March. R.O., MS.
4 Evidence before C. on G., 1819, and letter to Lord Bathurst, 11th March,
1816. R.O., MS. His evidence on this subject is very confused.
5 Letter, rrth March, 1816. R.O., MS.
THE EMBARRASSMENTS OF AN AUTOCRAT. 245
decided that the colonial clergy are subject to Courts-Martial,
your Lordship will, in justice to my sufferings under the un-
known circumstances, order me all the allowances to which
military chaplains are entitled from the earliest date of my
commission, and that if it should be decided, as I trust it will,
that the colonial clergy are zot subject to Courts-Martial, your
Lordship will order me those allowances from the time I was
put under a military arrest.”
While Moore and Vale both sought the sympathy of the
Colonial Office, they were by no means inactive in the Colony.
In June, 1816, Vale drew up a petition to the House of Commons
describing the conduct of Governor Macquarie, who unfortun-
ately chose this very moment for making the most indefensible
mistake of his whole administration.
In 1815 he had laid out the Government House Domain as
pleasure gardens for the use of the public, and enclosed them
with a stone wall. There were three entrances to the park, but
the townsfolk, to save themselves the trouble of walking round
to any one of the three, and also that they might enter unob-
served, were continually breaking down the wall and climbing
over. The favourite spot for this mode of entrance was a corner
by a small plantation, which was the haunt of a very bad class
of persons. Here they would drink and gamble or exchange
stolen goods with one another, and Macquarie determined to
prevent them making bad use of the Domain by continuing to
enter it surreptitiously for these purposes. He issued no order
on the subject, but on the 18th April he directed the chief con-
stable to place one of his men zside the wall, who was, to arrest
and lodge in gaol any one attempting to climbover. The con-
stable during the first day of his watch, the 19th April, arrested
three men and two nursemaids. The latter, greatly to the in-
dignation of their mistresses, were kept in gaol all night, but
were sent home next day. But the three men were flogged in
the gaol yard by warrant from the Governor before they were
released. One of the three was a convict, one an emancipist,
and one a free man. Not one of them had—as colonial re-
putations went—a bad name, and Riley, who had been many
1 Vale to Bathurst, 22nd March, 1816. R.O.,MS. See Chapter IIIl., Bent to
C.O., 1814.
246 A COLONIAL AUTOCRACY.
years on the Sydney Bench, could not remember any of them
having been brought before him for any offence. Two days
afterwards, the emancipist Henshall, and the free man Blake,
made affidavits describing their treatment, which were taken
by J. H. Bent, because, by his account, no other magistrate in
the Colony would dare to take them."
Macquarie’s conduct was unjustifiable from the beginning.
The constable had been placed by his orders not to warn but
to trap offenders. Once arrested the only charge to be laid
against the men was that of trespassing, and the fact of trespass
should have been inquired into by a magistrate. Macquarie
might, had he so desired, have conducted the inquiry himself,
but he had no more power than any other magistrate to order
punishment without examination on oath. The punishment of
the convict was not perhaps illegal, for such summary discipline
was occasionally exercised over the prisoners. But there was
no such jurisdiction over Henshall and Blake, and the Gover-
nor’s action had not even a suspicion of legality. The free and
freed inhabitants of the Colony did not consider themselves
amenable to the “same coercive measures of Government which
are judged necessary for keeping the prisoners in order.”? Those
who saw the warrant before its execution were much alarmed,
and Wentworth had serious thoughts of suppressing it. The
gaoler was in a quandary, afraid to obey and afraid to disobey
the order2 The latter fear was the most pressing and he obeyed.
The news of what had happened spread quickly over the
town, and whenever a group of people gathered together it was
the subject of discussion. “The inhabitants of all ranks,” said
Riley, “were surprised and alarmed; until that moment the
humblest freemen in the Colony had considered their persons
safe under the Government of General Macquarie; it was an
unguarded measure, condemned and lamented by his best
friends; and from the knowledge I conceive I have of Gover-
nor Macquarie I think he must himself have regretted that he
gave the order.”
1 Evidence, C. on G., 1819. Bent did not know if the men had asked any
other magistrate to take their affidavits. Probably he asked them to make them.
* Riley, C. on G., 1819.
® Wentworth’'s Evidence, Appendix, Bigge’s Reports. R.O., MS.
* Riley, C. on G., 1819.
THE EMBARRASSMENTS OF AN AUTOCRAT. 247
Bent did his best to foment -the excitement, and it is a re-
markable testimony to Macquarie’s essential uprightness of char-
acter and to the respect with which, in spite of all his faults, the
colonists regarded him, that no rioting or disorder resulted.
But the incident created a great deal of uneasiness, which did
not die out so long as the Government remained in the hands
of one man. No reference to the matter was ever made in
official despatches, and when Macquarie did later defend his
action, his arguments were wholly irrelevant to the point at
issue. He had given way to irritation, acted precipitately, and
the only way to retrieve himself was by not repeating the mis-
take and hoping that it might be forgotten. ;
A little later another rather unfortunate incident occurred.
Some years earlier, in 1813, two lieutenants of the 73rd Regi-
ment had been tried for the murder of a man “in the lower
ranks of life” in the streets of Sydney. The Criminal Court, in
the face of much conflicting evidence, found them guilty of man-
slaughter only, fined them Is. each, and ordered them to be
confined for six months in the Parramatta gaol. Macquarie
thought the verdict too lenient and the sentence too light.
He published a lengthy Order of Reprimand and reported the
matter fully to the Commander-in-Chief.2 In due time the
73rd _ was relieved by the 48th and sent to Ceylon, and while
there the two officers were dismissed the service in accordance
with orders from the Commander-in-Chief. In May, 1816, one
of them returned to Sydney in order to marry. Macquarie
ordered him to return by the ship on which he had come.
This did not leave time to put up the banns and the Governor
refused the young man a license. Bent took up the cause of
the bridegroom and wrote two letters to Macquarie, calling
in question his right to keep any British subject from coming
1See his defence in letter to Lord Bathurst published in 1822. Bent per-
suaded Blake to go to England, and in 1819 prepared a petition which was pre-
sented to Parliament on Blake’s behalf. See Chapter IX. It is rather strange
that the measures taken by Macquarie which reflected such great discredit on him
were at the same time quite ineffective. On 6th July, 1816, he published an
Order threatening the “ most summary and exemplary” punishment for those
who injured the wall, etc., of the Government Domain.
2In the course of this Order he forbade any officer to go about the town out
of uniform.
248 A COLONIAL AUTOCRACY.
into the Colony and also his right to refuse a marriage license.
The Governor in reply “wished Mr. Bent had spared himself
the trouble of writing them; as his unsolicited opinions can in
no way alter the resolution of Governor Macquarie in the ¢ase
alluded to in those letters”.2 The young man had to return un-
married, and whether or no the lady followed him is not
recorded. :
Both these incidents were included in the petition. The
document was first drawn up by Vale and submitted to Bent.
Bent characterised it as a “miminy-piminy thing, not half se-
vere enough,” and wrote one out himself. To this draft Vale
made a few additions and brought it to be engrossed on parch-
ment by a certain emancipated clerk.2 It was then deposited
in Moore’s office and all who came by were invited in to sign it.
Vale left, taking the petition with him, in June, 1816, and
just before his departure Macquarie, thinking perhaps to con-
ciliate him, gave him a grant of land. But when he learnt more
exactly what were the contents of the petition, he withdrew the
grant.‘
“This memorial,” wrote Macquarie to Lord Bathurst in April,
1817, “ was sent from hence for England in June last . . . which
I was aware of at the time, but not being so fully informed of
its object as I have become since, I did not feel it necessary to
make your Lordship any communication at that time in regard
to it.
“Since that time a copy of the memorial having been
1 Macquarie sent one other man out of the Colony, an Irish Roman Catholic
priest, whose coming had not been sanctioned by the head of his Church in Eng-
land. Such a power was exercised also by the Governor at the Cape of Good
Hope. It was assumed that a Governor could prevent any one who did not bring
special authority from the Secretary of State from settling in a Colony. See
Campbell’s Evidence, Appendix, Bigge’s Reports. R.O., MS. Macquarie fre-
quently interfered to prevent marriages. In onecase he refused to allow a marriage
on the ground that the woman was too old tor the man. The couple therefore
lived together unmarried. See Vale to C.O., 16th April, 1818. R.O., MS.
2 Bent to C.O. with enclosures, 12th June, 1816. R.O., MS.
*This man wrote a letter to Macquarie in 1821 giving this account of the
petition. Seeletter, 29th January, 1821. Appendix, Bigge’s Reports. R.O., MS.
There is no copy of the petition to be found, and its contents can only be discovered
by indirect means. Jones, in 1819, said the bulk of the contents were true, some
things perhaps incorrectly stated and some a little exaggerated. See his Evidence,
C.on G. Thesort of document may be easily ps: oe a basis of fact distorted
by the anxiety of two aggrieved men to impute motives and see each deed in
an evil light.
4 Vale to C.O., 16th April, 1818. R.O., MS.
no et th ee = 3>lC<i—C hl lr] OO eS cel Sle OUSUlUC(‘ KOSS.
=> es fF “=
—-
—s
_ THE EMBARRASSMENTS OF AN AUTOCRAT. 249
privately taken by a person who had frequent and unsuspected
access to it, it had come to light that the signatures of several
persons had been put to the memorial without their having any
knowledge whatever of the circumstances, and some of these
people . . . finding their names had been affixed to it and
justly dreading my displeasure, have come forward and dis-
claimed on oath their ever having authorised any one else to
sign for them the paper in question, and at the same time re-
probated the false and malevolent assertions contained in it.
As soon as it was discovered that I meant to withhold grants
of land and other indulgences from any persons then about to
receive such, whom I should find had been concerned in the
business of the memorial, some persons getting alarmed im-
mediately set about exculpating themselves. And it is an extra-
ordinary fact that Mr. Solicitor Moore had the audacity to
address a letter to me, in behalf of his brother (to whom | had
promised a grant of land, but had cancelled it, on finding his
name was affixed to the memorial), declaring that he had him-
self put his brother’s name to the memorial without his privity
or consent, at a time his brother was in the country and unac-
quainted with its contents,” }
In November, 1816, both the Moores had written to the
Colonial Office complaining of their wrongs, the younger one
because he had lost his land, the elder because he had lost land
and salary. To the former the Colonial Office replied that the
Governor had been directed to issue his grant and to the latter
that his salary would be paid, together with its arrears.
But his conduct had not met with approval, and he was warned
that if any more complaints were made of his behaviour he
would be dismissed.
To Macquarie, Lord Bathurst wrote that he had not been
justified in withdrawing Moore's salary, and then dealt
severely with his treatment of Vale. “It was not without
considerable surprise,” he wrote, “that I learnt your deter-
1D. 14, 3rd April, 1817. R.O., MS. The sworn statement of Samuel Terry
(an enclosure to this despatch) is rather curious. Moore was his solicitor and Terry
saw the petition in his office but refused to sign it. “Mr. Moore,” he said, ‘‘ this
is a very improper paper . . . and I am satisfied if his Excellency the Governor
‘was to know this paper lay at your house he would send his dragoon both for you
and it.”
250 A COLONIAL AUTOCRACY.
mination of bringing him to a Court-Martial upon the charges
which you ultimately preferred against him. Admitting that
it was matter of doubt whether Mr. Vale’s appointment might
not be considered so far a Military Commission of Chaplain
to His Majesty’s Forces as to bring him within the Provisions
of the Mutiny Act, yet had you proceeded with that considera-
tion which would have but befitted the occasion, and referred
as it behove you to the Act under which you claimed the
authority so to try him, you would have seen that Military
Chaplains can only be brought to trial for the offences specified
in the 4th and 5th Articles of the first Section of the Articles.
of War, and that those offences are either absence from duty,
drunkenness, or scandalous and vicious behaviour derogatory
from the sacred character with which a chaplain is invested.
That Mr. Vale was guilty of any such offence cannot be pre-
tended, it is not even imputed in the charges that there was.
any vice or turpitude reflecting on his moral character in the
act which he had committed, and the decision of the court
still further negatives any such supposition. The whole of
your proceedings against him were consequently illegal, and
it is therefore utterly out of my power to give them any sanc-
tion or approbation; and although I feel that Mr. Vale’s
conduct was in many points of view extremely reprehensible
and should willingly have interfered with a view to its cor-
rection, yet I have now only to lament that you should in a
moment of irritation have been betrayed into an act which at
the same time as it exposes you personally to considerable risk,
cannot fail to diminish your influence among the more respect-
able part of the community, who justly look upon the law as
the only true foundation of authority.” ?
Macquarie’s reply was a double-barrelled one. On the 24th
November, 1817, he warmly defended the Court-Martial and
refused to authorise the payment of Moore’s salary, and on the
1st December, 1817, he tendered his resignation. He wrote:
“ Finding with deep regret that certain measures of mine, al-
luded to in your Lordship’s Public Despatches bearing dates
1D. 86, 6th February, 1817. R.O., MS.
Ss =< Ee’ se a a KE fe.
Bb 2
223
ees
5
ET TS
SS eS
THE EMBARRASSMENTS OF AN AUTOCRAT. 251
24th January,! 6th February,? 22nd April® and 15th July ¢ last,
have been disapproved and incurred your Lordship’s displea-
sure; and that from the tone and manner of conveying sen-
timents of disapprobation and censure, I have had the mis-
fortune to lose that confidence which your Lordship has
hitherto been kindly pleased to repose in me; I could not
with any satisfaction to myself, nor consistently with my own
feelings of propriety and sense of public duty, any longer wish
to retain the high and important office I had so long had the
honour to hold as Governor-in-Chief of this Colony; the
arduous duties of which I had every reason to hope and
believe I had discharged with credit to myself and advantage
to the public service.
“TI therefore most respectfully request your Lordship will
do me the favour to tender my resignation. . . for the
gracious acceptance of his Royal Highness the Prince Regent ;
humbly and dutifully submitting to His Royal Highness that
he may be graciously pleased to nominate another Governor
to relieve me—and that I shall remain here until the arrival of
my successor, or at least until I am honoured with your Lord-
ship’s commands after the receipt of this.” ®
His defence in Vale’s case was not lacking in confidence.
“ _. . however much I esteem and respect your Lordship’s
superior judgment, good feelings and high station, and however
much I may consider myself bound to submit to your Lord-
ship’s authority and opinions, I trust that on a further review
and consideration of my conduct in this instance it will not be
deemed presumption, in a case where my public authority,
character and feelings as a man are so deeply involved, if I
take the liberty to dissent from the conclusions your Lordship
has been pleased to draw from my conduct in regard to Mr,
Vale ; for I cannot at all admit that it has been either illegal
or unjust, whilst on the contrary, I feel the consciousness of
1D. of 24th January, asked Macquarie to make full inquiries into some
complaints made in Bayly’s letter, especially into the treatment of iemale convicts.
See Chapter X.
2D., 6th February, 1817, dealt with the case of Vale.
3D., 22nd April, 1817, dealt with the case of Moore.
4D., 15th July, 1817, dealt with the case of T. Moore, whose land had been
taken from him because he had signed the petition. All are in C.O., MS.
5 D., rst December, 1817. R.O., MS.
252 A COLONIAL AUTOCRACY.
having treated him with much more lenity than his mutinous, —
seditious conduct deserved.
“If, however, it should appear hereafter that I have acted
illegally towards Mr. Vale, I am aware of the high responsibility
I have incurred thereby, as also of the personal risk such illegal
conduct exposes me to, as intimated by your Lordship, and
with all deference to your Lordship I must add that I cannot
possibly subscribe to the inference drawn from my conduct
towards Mr. Vale, that it has the effect of ‘diminishing my in-
fluence among the more respectable part of the community in
this Colony,’ for I believe there is not one . . . who did not
highly disapprove and execrate the mutinous, seditious and
insolent conduct pursued towards me by that depraved, hypocri-
tical, unprincipled man.”! He proceeded “ with great submis-
sion to your Lordship’s superior judgment,” to state that his
charges against Vale were fully warranted by the Articles of
War, for Vaie’s conduct in seizing the American vessel in the
capacity of the meanest excise officer was not only “insolent
. . . but also derogatory to the sacred character with which he
was invested as chaplain and consequently scandalous and
vicious . . . your Lordship has mistaken my motives in sup-
posing that in my conduct to Mr. Vale, I acted under the .
influence of sentiments of irritation or passion. ... I have
been bred in the school of subordination too long not to re-
spect it; and your Lordship must be fully aware how necessary
it is to support it, in a distant Colony like this, and composed
of such discordant materials; assured at the same time that
your Lordship would not wish to see me degraded by tamely
submitting to the subversion of my authority as Governor-in-
Chief of this Colony, either by Mr. Vale or any other seditious
unprincipled person.”
Turning then to Moore he continued: “ It is with sentiments
of real concern that I feel myself compelled, from a sense of
public justice and the respect due to my own high station in
this Colony, to decline being in any way instrumental to the
reinstating Mr. William Henry Moore in the appointment he
held in the Colony as solicitor, This man has acted in a most
ee Ss" o-
a. a oa |) fp «6 eee ee Le
1 4.e., Vale.
———
THE EMBARRASSMENTS OF AN AUTOCRAT. 253
daring and insulting manner, in direct opposition and open
violence to my authority, in being one of those who seized the
American schooner. . . . This Act is of too much importance
(connected as it certainly was with the seditious and violent
cabal headed by Mr. Justice Bent and some other disaffected
persons then here) to the respectability of the Government, and
stands in too prominent a point of view in regard to the future
tranquillity of this Colony, to be passed over unpunished,
“ At the distance at which your Lordship is placed, and the
number of subjects which press on your consideration, I cannot
but think that this matter has not met with that attention which
its importance merited, as it regarded me or this Government
in whatever hands it may be placed.
“ My mind and time are exclusively bestowed here. I have
no object but the upright fulfilment of my duty towards my
Sovereign, and I am not without hope that your Lordship will
approve of my acting according to what I consider my duty,
although in this instance I am thereby deprived of the plea-
sure of paying that implicit obedience to your Lordship’s
commands which has at all times been my wish, and which
but in this solitary case I have always had the satisfaction of
doing.
“In regard to the grant of land promised to Mr. Moore, I
have very good and strong reasons for declining to confirm it.
Subsequent to his first mutinous conduct . . . he has set on
foot a petition to the House of Commons. . . . I fully expected
your Lordship would have sent mea list of the names of the
persons who signed this false and slanderous petition, in order
to enable me to prosecute them here for a libel, which I could
easily have proved it to be. All those persons whom I knew
had signed it I struck off the list of names for whom lands had
been previously designed. Mr. Moore and his brother being
the most culpable of all .. . their names were struck off the
list as a matter of course.”
He went on to state with perfect lucidity the whole duty as
he understood it of a mz/zitary governor.
“Tt would,” he wrote, ‘‘be a very different line of conduct
from that I have pursued from the period I had the honour to
enter His Majesty’s service, were | not to restrain and put
254 A COLONIAL AUTOCRACY.
down mutiny and disaffection wherever detected, and I should :
think I had neglected to do so, were I to be in any way in- ;
strumental in bestowing favours on persons who have set them-
selves up, in open defiance of the legal authorities of this Colony,
and who have exerted themselves so earnestly to contaminate
the minds of others to the disturbance of the public peace and
violation of all decency of conduct.” !
Macquarie’s despatch of April, 1817,” which had prepared
Lord Bathurst for this refusal to pay Moore’s salary, had been
answered on the 12th May, 1818, before the despatch, from
which the quotations above have been made, had reached Eng-
land. Moore's conduct in affixing signatures to the petition
without the knowledge of the persons whose signatures they
were was severely reprobated, and Lord Bathurst would have
acquiesced in Macquarie’s attitude towards him “had it not been
for the information conveyed in the letters . . . enclosed in
your Despatch, which while they afford the strongest proof of
Mr. Moore’s misconduct, develop a proceeding on your part
which calls equally for my most serious animadversion.
“Tt appears that you have had no hesitation in considering
the signature of a Petition to the House of Commons asan Act
of Sedition, andas deserving such punishment as it was in your
power to apply; and that you have, in two cases stated, made
it the ground for withholding indulgences to individuals which
it was previously your intention to bestow. It is my duty to
apprise you that in thus attempting to interfere with the right
which all His Majesty’s subjects possess of addressing their
petitions upon every subject to the House of Commons, by
making the exercise of that right prejudicial to their interests,
you have been guilty of a most serious offence.
“In signifying to you, therefore, His Royal Highness the
Prince Regent’s entire disapprobation of your conduct in having
so acted with respect to some of the petitioners to whom your
despatches refer, I have only to caution you most strongly
against any proceeding in future which can havea tendency to
check the Right of Petitioning either House of Parliament, as
- @& FQ
at Mee tent O62 it: ot oot, CO. CL,
Ad&
1D. 31, 24th November, 1817. R.O., MS.
2 See above, D. 14, 3rd April, 1817. R.O., MS.
THE EMBARRASSMENTS OF AN AUTOCRAT. 255
ssuch conduct on your part cannot fail to call forth from His
Royal Highness the strongest marks of displeasure.” }
Angry though he felt on the receipt of this letter, Macquarie
gave orders for the payment of Moore’s salary, and in 1820 he
offered him a grant of 1,000 acres. He acted too precipitately
in reinstating him, for Bathurst, after reading Macquarie’s
despatch of November, 1817, decided that Moore should be
dismissed. What chiefly influenced him was Moore’s untruth-
fulness in trying to save his brother’s grant by telling Macquarie
that he had signed the brother’s name to the petition without
his knowledge—a statement utterly without foundation. As
affairs had been settled before this despatch * reached Sydney,
Moore retained his position. Macquarie was completely puzzled
by the censures he had drawn upon himself. “If, my Lord, I
had prevented, or even thrown any obstruction in the way of
any of His Majesty’s subjects under my Government addressing
the House of Commons on any subject whatever, I am aware I
should have merited the royal censure and displeasure which
your Lordship has conveyed to me; but when I feel that my
conduct has not only on this, but on every other occasion, ex-
hibited the reverse of such arbitrary and unconstitutional exercise
of power, I am at a loss for language sufficiently strong to give
adequate expression to the regret I feel in the consideration
that either my former communication should not have been
sufficiently explicit, or that it should have induced His Royal
Highness and your Lordship to conceive that I meant to pre-
vent or restrain the general right of British subjects to address
Parliament on any real or imagined grievance whatever.” *
This despatch was certainly written with perfectly serious in-
tentions, and Macquarie was honestly unaware that in allowing
Vale to take the petition home with him he was not doing all
that could be required of him.
He understood just as little the position of Lord Bathurst
in regard to Vale. The Secretary of State wrote: “Upon a
1D., 12th May, 1818. C.O., MS. In that year two assistant chaplains were
sent to New South Wales, but the words ‘‘ according to the Rules and Discipline
of War’’ were omitted from their commissions. See C.O., 1818.
2 Evidence, Appendix, Bigge’s Reports. R.O., MS.
3D. 14, 26th July, 1818. R.O., MS.
4D. 1, 1st March, 1819. R.O., MS.
256 A COLONIAL AUTOCRACY.
point of this nature I of course deferred to the opinion of those —
who are the law servants of Crown, but finding their opinion —
to be that the trial of Mr. Vale by Court-Martial upon the —
charges preferred against him was altogether contrary to law, —
it was impossible for me not to pronounce your conduct .. . |
illegal. I am sure you cannot but admit that the presumable —
guilt of any individual affords no justification for adopting —
towards him any course of proceeding other than what the law
prescribes ; and I feel confident that you will allow also that
violations of the laws, whatever be their object, can never add
strength toa Government or increase its influence.”! All Mac-
quarie could reply was that “it having been the unceasing study
of a long life, spent in the service of my country in every quarter
of the globe, to conform myself in every particular to its
establishments, founded as they are in wisdom and matured by
the experience of ages, I am unable to express the mortification
I suffer at this time, from finding myself liable to be shaken in
the good opinion of my Sovereign, by the imputation of a
conduct which I reprobate on every Steen of right and of
political expediency ”.”
Macquarie’s resignation was not immediately accepted, nor
was the letter in which he tendered the resignation answered
until another year had passed. The Secretary of State appar-
ently expected that it would be withdrawn, and thought it the
result of merely temporary irritation. That this was not the
case appeared later, and the resignation was finally accepted and
Macquarie’s successor appointed in 1820.’
It is thus clear that while Macquarie brought about Bent’s.
dismissal, Bent succeeded in revenging himself to a considerable
extent. Even after Vale had left the Colony, Bent continued
to harass the Governor in many small ways. Finally, at the
beginning of December, 1816, he attempted to reopen the
Supreme Court and ordered Riley and Broughton to attend at
the court-house for that purpose. Riley was the only one of
the two in Sydney, and he did not attend. To prevent Bent
from taking any steps to enforce his attendance, Macquarie
= © Ch. f= os 2 Pf fs Sees oS: oS US lS Sl CU UF
Ss = =s 2S = two
t&y
1D. 14, 26th July, 1818. R.O., MS.
2D. 1, rst March, 181g. R.O., MS.
§D., 15th July, 1820. R.O., Ms. ih
THE EMBARRASSMENTS OF AN AUTOCRAT. 257
inserted a notice in the Gazette on the roth of December re-
leasing the two magistrates from further duty in the Supreme
Court?
Bent at once wrote to Macquarie that on reference to the
letters-patent for the establishment of the court he found that
the Governor had “no power of discharging from that duty,
. . . the only mode by which they can be relieved . . . being
the appointment of new members in their stead. A discharge
of the members without the appointment of others would be
a virtual dissolution of the court; and were any Governor
entrusted with such authority it would be in his pleasure to
postpone or prevent the trial of any actions which might be
disagreeable to him and materially to injure persons obnoxious
to him, by the expenses consequent thereupon. . . . Should
your Excellency persist in the right of discharge, and refuse
to nominate other members, I shall leave to your Excellency
the responsibility attending such an extraordinary attempt at
an avoidance of His Majesty’s Charter; satisfied with the full
confirmation of my opinion, that while such extravagant notions
of authority and such measures of arbitrary tendency character-
ise the administration of this Colony, it would be impossible to
give effect to the present establishment of the Courts of Justice,
except by an utter dereliction of every sound principle of Eng-
lish Law, an adoption of maxims suited only to a military des-
potism, and-a servile submission to the views and wishes of your
Excellency.” ?
Bent’s successor had not yet arrived, but Judge-Advocate
Wylde was already in Sydney. Macquarie, at the end of all
patience, appealed to Wylde and asked him to draw up an order
suspending Bent and enforcing his recall. A copy of the Order
was at once sent to Bent, who returned the packet unopened.
It was then published in the Sydney Gazette of the 14th Decem-
ber, 1816.
The Order quoted the despatch from Lord Bathurst in which
Bent’s recall had been announced, and went on to describe his
recent actions in issuing “ certain process, directing the Provost-
1See S.G., roth December, 1816.
2 Bent to Macquarie, roth December, 1816. Enclosure to D. 12, 3rd April,
1817. R.O., MS.
17
258 A COLONIAL AUTOCRACY.
Marshal . . . to summon Alexander Riley, Esq., to attend at
his chambers, as a member of the said Supreme Court; and —
further, that the said Jeffery Hart Bent, Esq., since and after
a public notification that the members of the said Supreme
Court were discharged from all further duty in that respect,
has also presumed . . . to issue other process, directing the
Coroner of this territory to attach and have the body of William
Gore, Esq., the Provost-Marshal . . . before the Supreme
Court.
‘“ His Excellency the Governor, in consideration of the
circumstances of the authorities with which he is invested, and
of the positive directions of His Majesty’s Government, . . .
can no longer feel himself justified in forbearing to notify and
put in force the commands of His Royal Highness and His
Majesty’s Ministers with regard to the removal of the said
Jeffery Hart Bent, Esq., as Judge of the Supreme Court in and
Magistrate of this territory. And His Excellency the Governor
does hereby accordingly declare order and make known that the
said Jeffery Hart Bent, Esq., is positively and absolutely removed
from the said appointment, and has no authority or jurisdiction
whatever in this territory or its dependencies with regard to or
by virtue of the same.”
Bent protested against his removal and also against the pub-
lication of the Order without communication with him, which
under the circumstances was sheer insolence. He claimed that
his authority could not be legally “determined till the arrival
of a new judge,” or by his exercise “of that liberty which
has been given me of returning whenever it may suit my con-
venience ”’.?
There was, however, not the least doubt that the Governor
was acting within his rights, and his justification was quite
complete. Bent had of course to acquiesce in his dismissal, and
he left the Colony a few months later. His last argument with
the Government took place over some detainers lodged against
qS-> es., & £4
= _ > o& Ff. Ss. 23lllCceS;lCetllOe OlUC OCCU]
ces cee eo
?G.G.0., 14th December, 1816. There is a great deal more of the Order,
which is written in very involved and redundant language, as all Wylde’s Orders
were. It was not only inserted in the Gazette but also placarded about the town.
See Bent’s letter below.
2See his Evidence, C. on G., 1819. This liberty had been given in the
letter recalling him.
THE EMBARRASSMENTS OF AN AUTOCRAT. 259
him, and in regard to these Bent was victorious.! In the course
of the correspondence he took the opportunity in a letter to the
Governor's Secretary of thus contrasting his own and Macquarie’s
tempers.
“JT regret,’ he wrote, ‘‘ that I have now before me but too
many convincing proofs under Governor Macquarie’s hand,
that in respect to acrimony of language, I have been more
sinned against than sinning; I heartily agree that difference of
opinion need not excite a spirit of hostility, and if his Excel-
lency Governor Macquarie had felt the force of his own obser-
vation, he would never have authorised the latter paragraph
of your communication, a paragraph which might be returned
with double force upon himself, and which it would have been
more becoming to have omitted. Our local rank places but a
shade of distinction between us, and I have yet to learn what
decorum of language ought to be adopted by me in correspond-
ence with any Governor of New South Wales which I am not
_ (evervas a private individual) entitled to have observed towards
me in return, and I will further add that whatever may be my
irritability of temper it has never led me into acts either of
illegality or oppression.” *
1 Bent to Macquarie, 25th December, 1816. Enclosure to D. 12, 1817. R.O.,
MS.
2 Bent to Campbell, enclosure, D. 12, 3rd April, 1817. R,O., MS.
CHAPTER IX.
THE STIRRING OF POLITICAL ASPIRATIONS.
AuTHORITIES.—Despatches, etc. (especially Appendix to Bigge’s Reports}
in Record and Colonial Offices. Sydney Gazette (especially 1819, 1820). P.P.,
1819, VII.; 1822, XX.; 1823, X.
AFTER Bent had left for England, and Field, who arrived early
in 1817, had opened his court, the Colony settled down toa
time of comparative tranquillity. A change had come over the
settlement since 1810, which grew more and more marked as
each year passed. The day of the adventurers had gone—men
no longer grew suddenly rich by trade monopolies and by
traffic in spirits. Between 1810 and 1820 the lot of the settlers
was no easy one, and those who came intending to amass a for-
tune and return to England found their project a mere dream,
and that they needed steady perseverance before they could
make their way in the Colony itself. Bigge noticed that New
South Wales was unlike any other British Colony, inasmuch as
the colonists looked upon it as their future home.'! This was
not only because sudden fortunes could no more be made. The
deeper and more fundamental cause lay in the fact that the
children of the convicts felt that New South Wales offered them
a chance of free and honourable careers such as, weighted with
the shame of their parentage, could not have been before them
in the older country. Nationalism, the strongest characteristic
of the Australian of to-day, is a legacy from these sons of exiles
for whom Australia was a land of hope and promise, and the
sense of a national character seems even at that early time to
have impressed itself upon the observer. The young Australian
was constantly referred to as though he could already be differ-
entiated from the Anglo-Saxon. The youths were described
1 Bigge, Report III.
(260)
THE STIRRING OF POLITICAL ASPIRATIONS. 261
as tall, loose-limbed and fair, with small features, and though
strong, not so athletic looking as Englishmen. They made
clever and daring sailors,! were already proud of their horse-
manship* and were willing and quick to learn any trade. It
was of course impossible that in one generation a new type
could have been evolved, and the fact was that the children of
the convicts, born into better conditions and growing up in
a healthier environment, reverted to the type of which their
parents were debased examples. It must also be remembered
that many men were at that time transported for very slight
offences, and that political prisoners from Ireland at the time
of the Rebellion and from England and Scotland in the years
of reaction after 1795, gave to Australia a fine and sturdy stock.®
The convict parents were in general anxious that their
children should grow up decent and honest, and desired them
to have the advantages of schooling and the ministrations of
the Church. In cases where the parents were dissolute and
disreputable, theirexample was said to act rather as a deterrent
than a temptation.? Under Macquarie there was an increase in
the number of schoolmasters, and two of the chaplains sent out
had some training in the National Schools in London. Though
there were neither schoolmasters nor schoolhouses in sufficient
numbers to cope with the population, there were Government
schools of some sort in each district, and in Sydney there were
also several private “ seminaries”.
1 When Bigge was going from Sydney to Van Diemen’s Land the ship was
manned exclusively by Australians in order to ensure a trustworthy crew. See
Report III.
2 There were many complaints in the Gazette of reckless riding and driving.
A favourite trick was to drive through the town without reins. Macquarie wished
to raise a volunteer corps of mounted dragoons from amongst the young men.
It is rather curious that the only prisoners against whose character
Macquarie was ever warned were five men who had been convicted of High
Treason and were transported in May 1820. He was cautioned against their
designing characters and the “ wicked principles which they may attempt, if not
narrowly watched, to instil into the minds of others”. See letter from Home
Office with assignment of convicts, 11th May, 1820. R.O., MS. Hunter (C. on
T., 1812) and Riley (C. on G., 1819) both gave very favourable accounts of the
Irish convicts.
4 The Rev. Mr. Cross said that he had heard ‘‘a man who was a Catholic say:
«I have been very bad myself and I don’t wish my child to be as bad; I would
rather he should be a Protestant than that’.” Appendix, Bigge’s Reports. R.O.,
MS.
5 See Bigge, III. and Evidence of Riley, C. on G., 1819; also Evidence of
several colonists in Appendix to Bigge’s Reports. R.O., MS.
262 A COLONIAL AUTOCRACY.
The gentlemen and the wealthy emancipists sent their sons
to learn Latin at Halloran’s School, by far the most popular in
the Colony, while the poorer folk usually sent their boys to the.
free Government schools, where they learned little more than the
three ‘“ R’s”. Education a little bridged the social chasm be-
tween the wealthy emancipists and the colonial gentlemen, for
in Halloran’s schoolroom the sons of both sat on the same
bench, learned the same lessons, and whimpered under the same
ferule.
As the colonists began to feel that New South Wales was
their home the sociability of the settlement increased. The
ceremonies of the Old World—dinners, evening parties, race-
meetings, became frequent, and were varied by the more dis-
tinctive entertainments of water-parties and kangaroo-hunting.
The officers of the garrison were the centre of all social gather-
ings, and for this reason their attitude towards the emancipists
was a matter of considerable importance to the settlement.
During Macquarie’s time three regiments were stationed in
New South Wales, the 73rd from 1810 to 1814, the 46th
from 1813 to 1817, and the 48th from 1817 until after his
departure.
The New South Wales Corps, which was relieved by the
73rd Regiment in 1810, after a service of thirty years, had kept
with some strictness to a policy of exclusion. General Grose,
who had originally raised the corps, and who for some years
commanded it, thought that no officer should stay in the
company of a man who had been a prisoner, and that any
officer who did do so ran the risk of losing his commission.*
The 73rd had not considered the subject when they came out,
and as Macquarie was their Colonel they were much under his
influence. The officers consequently associated with and enter-
tained the emancipists whom they met at the Governor's table,
though they distinguished these from the remaining freed-men.
Indeed one of their officers was tried by Court-Martial and
dismissed from his regiment because he played cards with a
man who had been a convict.
“T know,” said Riley, “that he pleaded the precedent of
1 See Riley, C. on G.
Sigg -- EQ fo /?—-™ _—
—"
—- or OF & wf SS oS” “=
-_-~
a
THE STIRRING OF POLITICAL ASPIRATIONS. 263
persons in that situation having dined at the Governor’s house;
but with respect to this particular individual, unquestionably
he never did so. He pleaded . . . that he had no intention of
sitting at table with a person who had been a convict, as he
had uniformly dissented from such a measure. The person
alluded to accidentally came in and took a seat at the card-
table, and the officer had not presence of mind enough to retire
immediately. . . 1”
_ He was afterwards reinstated in the Army, though not in
the same regiment.
The reports of the intercourse between the 73rd and the
emancipists had not a good effect upon their reputation. The
46th Regiment, having heard what was said of this intercourse
in the talk of the mess-rooms, and seen some scurrilous para-
graphs in the Press,? determined not to lay themselves open to
the same reproach.
_ On their arrival in Sydney, Macquarie welcomed them
warmly, for Lieutenant-Colonel Molle, their commanding officer
and the new Lieutenant-Governor, was an old companion-
in-arms, and on his account alone the Governor was eager to
show them hospitality. The officers were frequently invited to
Government House, and Macquarie noticed that though they
met several emancipists at his table, none were invited to theirs.
Believing that Molle held the same views as he did himself on
the treatment of this class of persons, Macquarie became curious
to know the reason for their exclusion from the mess. He
discovered “that the Officers of the 46th Regiment, on the
particular recommendation of their commanding officer, Colonel
Molle, had previous to their arrival in the Colony bound them-
selves never to admit into their society or hold any intercourse
with any of those persons who had arrived here under sentence
of transportation. They also entered into another resolution
at the same time never to engage in any Trading, Farming or
Grazing concerns in the Colony, the observance of which, al-
though by no means exceeding what should be expected from
their profession, would at least have reflected credit on them as
military men. Their adherence to this rule,” said Macquarie,
1 See Riley, C. on G.
2 Bigge’s Report, I.
264 A COLONIAL AUTOCRACY.
—
“has been by no means so rigid as that in regard to the
other.” +
Though Macquarie freely admitted their right to act as they
pleased in drawing up rules for their mess, he felt “that a
courtesy was due to me as their General and Governor of this
territory, in regard to making my table the rule or standard
for the admission of persons into society, and I could not but
feel chagrined that a courtesy so usual and so becoming should
have been withheld by a corps of officers to whom I had shown
a particular inclination to pay every personal respect and atten-
tion within my power. The officers of the 46th Regiment in
adopting a Rule of Exclusion, previous to their having acquired
any local knowledge of the country, could not impress me with a
very high opinion either of their good sense or their liberality :
but I was peculiarly hurt at the consideration that Colonel
Molle, in whose friendship and candour I had so fully reposed,
and who constantly expressed himself in terms of admiration
of the principles I was acting upon, should have privately lent
himself to a measure which he was either ashamed to avow, or
had not candour enough to make me acquainted with.” ?
Outwardly all remained on friendly terms until Captain
Sanderson of the 46th joined the regiment from England in
1815. This officer came before the magistrates for some petty
misdemeanour and treated their authority with contempt. For
this he was “reproved and admonished privately” by Mac-
quarie, whose admonitions had the result of turning Sanderson
into the leader of what Macquarie called a faction against him.
The truth was that amongst a certain set of officers it became
the correct thing to make fun of the Governor and his friends
and all that they did. Even Molle, who was on intimate terms
with those colonists who were least friendly towards Macquarie
with Bent, Harris, Jamison and others, sometimes had to lecture
his officers on the “ bold license they gave to their tongues”. *
Finally a young ensign, spending a dull day on duty at the
ee ee ee ee ” — — -—)
“jax dg) i Tae Bae sy ee ae e e C ~ eee e
1See D. 27, 25th July, 1817. Enclosure to Commander-in-Chief. R.O., MS.
2D. 27, 25th July, 1817. R.O., MS. Probably this means no more than that
Molle refrained from adverse comment. Macquarie would be quite ready to take
that for approval. See, e.g., his belief that Lord Bathurst approved of his emanci-
pist policy. Chapter VI. and later in this chapter.
% See Macquarie to Commander-in-Chief, above.
THE STIRRING OF POLITICAL ASPIRATIONS. 265
Guard House, chalked up a caricature of the Governor on one
side of the wall. Older officers came in to look at it, and
though they should have been wiser, encouraged the lad by
their laughter, and even wrote “scurrilous labels” around it.
The matter was reported to Molle, who was of course officially
severe, and held an inquiry at which the young officer confessed
that the drawing was his. Macquarie was furiously angry and
proposed to Court-Martial the boy, who only escaped by mak-
ing a contrite apology and begging that he might be allowed to
return home to his family and friends and not have to stay longer
in this remote country where he was so miserable and so lonely.
The boy’s pitiful letters were full of terror and dismay, and the
Governor allowed him to go back to England.
As Molle made no inquiry into the conduct of the officers
who had allowed the caricature to remain upon the Guard
House wall, and had added to its humour by their comments,
the relations between Macquarie and the regiment became
strained and the officers began to decline invitations to Govern-
ment House. Just at this moment two lampoons appeared
one after another and were distributed about Sydney. These
“ pipes,” as they were called in the Colony, contained a very
bitter and libellous attack on Molle, who being a very excitable
and enthusiastically sentimental man, was much perturbed. He
was exceedingly anxious to discover the author and ready to sus-
pect every one about him. Even his officers, for whom he had
a sincere affection, came in for some of his suspicion, which was
finally laid to rest by Wentworth, who told Molle that he had
‘accidentally discovered that the first “ pipe” had been written
by his son William who had just left Sydney to finish his educa-
tion in England.! Molle was for the time completely satisfied
with this knowledge, and a reconciliation took place between his
officers and himself. The officers presented him with an address,
to which he replied in writing, and Macquarie was asked to
publish the documents in the Gazette. This he refused to do,
and they were circulated in manuscript. The officers’ address,
1 This was the famous William Charles Wentworth, who was at this time
sowing his literary wild oats in a defence of the wealthy emancipists, in which
class his father, who had as a matter of fact never been a convict, was placed by
<ommon consent of the gentlemen-settlers and officers.
See ti
266 A COLONIAL AUTOCRACY.
a sincere and unconsciously comic document, after referring to the:
“ scurrilous anonymous productions” continued in these words :—
“These we see issuing from the pens of men so much our
inferiors in rank and situation that we know them not but ©
among that promising class which (with pride we seek it) have
been ever excluded from intercourse with ws.1 And here, Sir,
allow us still more to approve and applaud that system of ex--
clusion which even prior to our arrival in a colony of this de-
scription was wisely adopted—the benefits of which we have
reaped with advantage to ourselves as officers and gentlemen,
and which although it may have prompted the malignity of
those whom we have kept aloof, has established the name of
the 46th Regiment on a most respectable basis. And, Sir, we
presume that so salutary a rule will obtain the most perfect
approbation of His Royal Highness the Commander-in-Chief
and be as tenaciously adhered to by every regiment that may
in succession compose this garrison.
“ Henceforth we are confident no hostile inventions can dis-
turb that union which it will be our zealous purpose to cultivate
and support, and the prospect of shortly quitting this (a quarter
in no point of view congenial to military feelings) will we hope
afford us ample opportunities to evince that our hearts steadily
accompany you no less in the active duties of our profession than
they will keep pace with you in the social walks of life and in
every wish for your domestic felicity and prosperity.” *
One sentence had. been deleted before the address was cir-.
culated, though not before Macquarie had seen it. This was.
an assertion “that the mess-table of the 46th Regiment was.
regarded as the standard of society in the Colony”.
The Governor was very indignant with the whole tone of
the document, and sent to Molle the heads of charges which he
proposed to lay against the officers of the regiment collectively
at a general Court-Martial. He offered the officers the alterna--
tive of trial or the withdrawal of the address, and they accepted
the former. But as in New South Wales the members of the
court would have been themselves members of the regiment,
Macquarie gave up the scheme and contented himself with
a ee — es — a — 2 -
1 The italics are in the original document.
2 See enclosure to Macquarie’s despatch above.
THE STIRRING OF POLITICAL ASPIRATIONS. 267
laying the whole matter of their insubordinate behaviour towards
him “at the foot of the throne” by writing to the Commander-
in-Chief. Molle, meanwhile, attempted to bring Wentworth to
a Court-Martial on the ground that he had aided and abetted
the publication of the libellous “pipe,” but Wylde decided that
Wentworth’s military commission as surgeon did not make him
amenable to a Court-Martial for such an offence.
Luckily the regiment was then, in 1817, on the point of
departure, and they left at the end of the year amid the general
regrets of the inhabitants, except indeed of Macquarie and the
emancipists,!
The behaviour of the 48th was rather different. Lieutenant-
Colonel Erskine, the Lieutenant-Governor; Major Morriset,
afterwards Commandant at Newcastle ; and Major Druitt, the
Chief Engineer, were all on friendly terms with emancipists.
They even took Redfern to call on other officers, though not
one received them.2 When Redfern appeared at mess as
Erskine’s guest, the junior officers immediately rose from the
table, and Erskine in consequence of this occurrence promul-
gated a mess-rule “that no officer should quit the table until the
first thirds were drunk”’.®
In spite of the ill-feeling between Macquarie and the
majority of the officers, he and Erskine continued on such ex-
cellent terms that the situation with the 48th never became so
strained as that with the 46th.‘ But the discussions aroused by
1See Riley, C. on G., 1819, and Harris, Evidence in Appendix to Bigge’s
Reports. R.O., MS. Harris was a leading member of a Masonic Lodge founded
in Sydney some time before 1817, of which Molle and J. H. Bent were members.
When they left the Colony the Lodge presented them with addresses, of which
Harris was an active promoter. Macquarie regarded this as a proof of Harris's
hostility to his Government. Rusden, in vol. i., p. 546, writes, “‘ Many regiments
bear on their banners mottoes telling of their past services, but it may be ques-
tioned whether the scutcheon of the 46th could be more nobly adorned than by
the memory of their conduct in New South Wales, which smells sweet across
the lapse of half a century”. v1 : :
2In referring to this episode Rusden makes an insinuation against the char-
acter of Macquarie’s Brigade Major which appears to be wholly unfounded. See
History of Australia, i.
3 Bigge’s Report, I. :
y Rize reas that the intercourse between the commanding officer of the
48th and emancipists encouraged an objectionable intimacy between the private
soldiers and the convicts, which caused uneasiness in the Colony generally. See
Report I. Probably it had always been impossible to prevent this intercourse
between the rank and file and prisoners, and there is no evidence which distinctly
shows that it was greater with the 48th than the 46th.
268 A COLONIAL AUTOCRACY.
these attempts made at the desire and with the support of the —
Governor to force the emancipists upon the company of the —
officers, made their social exclusion more rigid than ever. The —
feeling of antagonism, though manifested only by exclusion from
social gatherings, was a factor to be reckoned with in all the
affairs of the Colony, and was especially to be regretted at this
moment when the colonists as a whole were looking forward to
the end of military Government and to some diffusion of politi-
cal power.
The desire to bear a part in the management of the affairs
of the Colony grew stronger year by year, and from 1816
Macquarie himself gave recognition to the feeling by frequently
calling together the magistrates or a selected number of settlers
to discuss measures that he had in contemplation.1 At these
meetings Wylde, who would have made an excellent borough
councillor, played an active part, and he tooka great interest in the
many associations formed for various purposes during these years.
A small society had been established in Sydney so early as
1813, for “‘ Promoting Christian Knowledge and Benevolence,”
and the first of these objects formed the purpose of “The
Auxiliary Bible Society of New South Wales,” a larger organisa-
tion founded in 1817 to co-operate with the British and Foreign
Bible Society. This and the Benevolent Society were the only
organisations of any size which had the distinction of combining
all classes of the population, emancipist and free, in their man-
agement.
The Benevolent Society was founded to succour the poor in
1818. The poor were for the most part the old and infirm,
many of them men who had been sent to the Colony as prisoners
when they were already aged, and were no longer able to work
for themselves. There were also many of the middle-class
prisoners who had been given tickets-of-leave because they
were unsuited to manual labour and were unable to find other
work. Riley spoke of the “hard position of certain classes of
prisoners—old or young people of the middle class—who from
the multiplication of persons of this type can find no means of
making a living”.
at atm “ie “ay btin
1@.g., to discuss currency proposals, the question of poor relief, etc.
2 Riley, C. on G., 1819.
THE STIRRING OF POLITICAL ASPIRATIONS. 269
In Sydney the Society for Promoting Christian Knowledge
and Benevolence had given relief from funds raised by private
subscriptions, and the Government did not allow any one to
perish by actual starvation. But in 1817 Macquarie thought
that some scheme should be organised for relieving the poor,
and called a meeting of magistrates! and other principal
inhabitants, at which Wylde, who had, however, not been con-
sulted as to the objects of the meeting, presided.?
He proposed that a duty on tea and tobacco and an in-
creased duty on spirits should be levied, and the proceeds de-
voted to the relief of the poor, thus leaving the fund to be raised
and administered by the Government, and treating it as a
national (if the word can be used for the Colony) service be-
longing not to each locality but to the Central Government.’
Macquarie had expected the meeting to make arrangements
for raising a private fund, and though he laid the extra duty on
spirits and the new duty on tobacco, he did not utilise the pro-
ceeds as the meeting had suggested. His idea was that the
people of each district should “support their own /vee, poor and
decayed settlers ”.*
The meeting on the other hand thought that “all expenses.
in regard to ticket-of-leave men and emancipated convicts
should be borne by the Crown, especially in those cases where
persons very far advanced in age were sent out under sentence
of transportation, and also in the cases of prisoners who had
been many years retained as mechanics by the Government ”.®
Something of a compromise was finally reached by the
establishment of the Benevolent Society first mooted in April,
and founded at a public meeting on the 6th June, 1818. The
chief rules were that persons applying for relief must be recom-
mended by a subscriber, and that relief was so far as possible to
be given in kind and notin money. The objects of relief were
1§.G., 5th July, 1817. Notice does not say for what purpose the meeting is
ed
: Meeting took place on 13th August, 1817.
3 The taxes suggested were 6d. a Ib. on tobacco, Is. or 2s. a Ib. on tea, and
another 3s. on spirits. See Wylde’s Evidence, Appendix, Bigge’s Reports. R.O.,
MS
“4 Macquarie, D. 20, 24th March, 1819. R.O., MS. In “ free” he certainly in-
cluded emancipists and possibly ticket-of-leave men.
5 Wylde, see above.
270 A COLONIAL AUTOCRACY.
the “ poor, distressed, old and infirm,” and no distinction of bond —
and free was drawn. The funds were purely voluntary, and ~
the management vested in a General Committee, an ‘‘ Acting”
Committee of seven, both of which met in Sydney, and five —
District Committees. The subscriptions in 1820 amounted to
4434, and many poor settlers were amongst the subscribers. To —
have laid any compulsory obligation on any district to support
its own poor would have been unjust as well as inexpedient, for
there was no Law of Settlement, and population moved very
freely from one place to another. The system of voluntary
subscriptions to a central fund, assisted by local subscriptions
which were also voluntary, worked fairly well, and between 1818
and 1820 the Society relieved 201 cases. The Government
built a house for the reception of aged people just outside the
town of Sydney, and handed it over to the management of the
General Committee, and also gave to the Society a piece of land
at Richmond, in the Hawkesbury District. Rations from the
Government stores were also issued to seventy-seven persons
recommended by the magistrates.’
An attempt at this time to form an Agricultural Society
came to an untimely end. Wylde hoped by means of balloting
for the election of members to prevent the necessity of exclud-
ing or including ex-convicts by any rule. With a ballot he
thought some would have been elected and others, who were
personally undesirable, would not. But the Governor refused to
be the patron of the Society unless the emancipists were freely
admitted ; and, lacking his support, the scheme was dropped.
Wylde was probably right in thinking that with the ballot
the exclusion would only have been partial, for even Bell, one
of the strongest opponents of convict magistrates and of Mac-
quarie’s emancipist policy generally, said he “would not con-
found a man sent out for a political crime with a common felon
or man guilty of an immoral offence.” ?
1 See Wylde’s Evidence, Appendix, Bigge’s Reports. R.O., MS. See Bigge’s
Report III., and Sydney Gazette for June, 1818. . The absence of any compulsory
Poor Law organisation making each district self-supporting for purposes of poor
relief probably accounts very largely for the slow growth of local Government
institutions in Australia. The administration was from the first very much
centralised.
2 See Evidence of Wylde and Bell. Appendix, Bigge’s Reports. R.O., MS.
oats Qe “enc. tem.) 6340 Vee eee oe Ue
ee ie. ee? ee ~ ou =.
THE STIRRING OF POLITICAL ASPIRATIONS, 271
Men like Lord would have been excluded, but men like
Fulton received.
During 1818 the hostility between Marsden and Macquarie
culminated in the dismissal of the former from the magistracy ;
and the events leading up to his dismissal bore not only a
personal but a political aspect of considerable interest. The
bad feeling of the Governor towards the chaplain (for Macquarie
seems from the beginning to have been the offender) had been
much increased by Macquarie’s mistake in attributing to Marsden
Bayly’s letter describing the treatment of the female convicts.!
It was further strengthened by the fact that Marsden, acting as
a magistrate, had taken the affidavits of the public flogger and
gaoler in regard to the flogging of Blake and Henshall in 1815.2
The Governor’s sense of propriety was so far overcome by his
bitterness that he allowed his secretary, who was a magistrate
of the territory, to examine the gaoler on oath and try, without
‘success, to obtain an admission that Marsden had solicited him
to come forward and make his declaration.* Marsden was also
summoned to Government House, and in an official interview,
in the presence of one of the chaplains and of Macquarie’s
personal staff, accused of seditious and turbulent conduct. At
the same time the Governor strongly opposed Marsden’s desire
to retire from the magistracy.
A trivial incident was sufficient in such a state of affairs to
bring about a crisis. In 1815, while Marsden had been in New
Zealand on missionary business, Macquarie had established a
Native Institution for teaching the children of the blacks. The
school was at Parramatta, but nevertheless Macquarie did not
include Marsden in the Committee of Management. To Mars-
den, the Principal Chaplain and Resident Magistrate at Parra-
matta, this presented itself as a deliberate slight, and he
studiously avoided taking the least interest in its progress. Thus
in 1816, when the Governor paid his annual official visit to the
school, Marsden did not wait upon him. J. T. Campbell, the
Governor's Secretary, who loyally detested his chief's opponents,
irritated by what he considered a discourtesy, inserted in the
1 See Chapter VI. * See Chapter VIII.
3 See Appendix to Bigge’s Reports. Copy of this examination. R.O., MS.
272 A COLONIAL AUTOCRACY.
Gazette, over the signature of Philo Free, a violent attack upon
the moral and commercial honesty of Marsden as agent of the —
Church Missionary Society.!
Marsden immediately wrote to Wylde calling upon him as —
Judge-Advocate to institute criminal proceedings for libel against —
the printer. Wylde attempted to bring about a peaceful solution —
of the difficulty and wrote to Macquarie pointing out the im- —
propriety of the publication and suggesting that a public apology
should be made. Macquarie, who was quite ignorant of Camp-
bell’s part in the letter and was sensible of the wrong done to
Marsden, published a Government General Order expressing
regret that in the hurry of getting the paper to press the ob-
jectionable nature of the contribution had been overlooked.2 As
Marsden had in the interval gathered evidence which showed
him quite clearly that Campbell had not only passed but written
the letter, it was not to be wondered at that the apology in no
wise appeased him. He desired the Judge-Advocate to proceed
this time not against the printer but against the Secretary. The
Judge-Advocate demurred, and a long correspondence ensued
in which Marsden claimed that Wylde must file depositions re-
lating to the prosecution er officio, and Wylde claimed that he
had a discretionary power. The best of the argument seemed
to lie with Marsden, for he had the support of the late Ellis
Bent’s authority, while Wylde could only reply in the confused
unintelligible language at his command.* In the end Wylde
gave way, and the case came on for trial in October. Follow-
ing the Judge-Advocate’s charge, as his summing up may fairly
be called, the officers who constituted the court gave a peculiar
1S.G., 4th January, 1817. Marsden’s name is not mentioned, but there was
no possible doubt of the application of the libel.
2G.G.0., 18th January, 1817.
3 For all the correspondence see enclosure to D., 20th March, 182r. R.O.,
MS.
4 See especially Marsden to Wylde, 24th April, 1817, in above D. “He al-
ways gave it as his opinion that it would be extremely dangerous to the administra-
tion of public justice if the same authority was vested in the Judge-Advocate for
the time being as that possessed by the Grand Jury in England, and I may
venture to say that he never acted upon this principle while he had the honour to
preside as Judge-Advocate in our Criminal Courts. He considered that it was a
matter of too great importance to every member of the community to be left to
the discretion of one man to determine whether a cause should or should not be
heard before a legal tribunal, and that it was the sole province of the Criminal
Court, and not of the Judge-Advocate alone, to decide upon the evidence in such
cases.”
ae ae a ow & wo ca. oo na ter we tear
SS a
—_ a me conte “ee” | ee
THE STIRRING OF POLITICAL ASPIRATIONS, 273
verdict simply declaring Campbell to be guilty of writing the
letter, and the letter to be a libel. But Marsden did not press
for judgment, declaring his intention, through his solicitor, of
proceeding no further in that court.
The worst feature of the affair was the report of the trial
inserted in the Gazette on 1st November, 1817, which so de-
scribed it as to be little short of a fresh libel upon Marsden, and
implied that Campbell had been not only guiltless in fact but
even in the opinion of the court.
It was so bad that even Wylde, who according to evidence
given to Bigge had displayed some clear bias towards Campbell
during the trial,’ went so far as to call upon Garling, Campbell's
solicitor, for an explanation of this improper report. “Upon
his suggestion that he had no knowledge of it I required him to
address a letter to the printer, which he afterwards showed me,
correcting the general account as well as the principles that were
stated to have regulated the decision of the court. It does not
appear that any such letter was inserted in the Gazette. Mr.
Garling informed me that the letter had been returned from the
printer, he stating that he had instructions not to insert it.” ®
Wylde could do nothing more. He thought it inadvisable to
proceed against the printer as the account was in a “leader” not
a report, and he found the Governor quite unapproachable.
The subject aroused in him, according to Wylde’s diplomatic
phrase, “such disagreeable sensations”.*
Marsden, dissatisfied with the criminal trial, took proceedings
against Campbell in the Supreme Court, and was there awarded
4200 damages. Altogether Campbell lost much of his reputa-
tion and £500 as the result of his fit of temper. Noreport was
made by Macquarie of these transactions, but hearing of the
matter indirectly, Lord Bathurst sent through the Governor
a severe reprimand to Campbell® and afterwards instructed
1See S.G., rst November, 1817. :
2 See Bigge’s Correspondence with C.O., 1823, R.O., MS. Wylde was him
self apparently aware that his conduct of the case was open to objection, See his
long confused account in enclosure to D. above.
8 Wylde’s Evidence, Appendix to Bigge’s Reports. R.O., MS.
4See Appendix, Bigge’s Report. R.O., MS.
5 See Campbell to Macquarie. Enclosure to D. 25, 31st March, 1819.
6 See D. 25, 1819.
18
274 A COLONIAL AUTOCRACY.
Macquarie to transmit a full report of the trial! He was, how-
ever, ready to let the matter rest, and did not express sympathy
with Marsden’s desire for Campbell’s dismissal.?
Marsden for a time very unwillingly continued to act as —
magistrate at Parramatta. In March, 1818, the Judge-Advocate
being in the town, visited the gaol, and on his return to Sydney
suggested that the Governor should release some of the prison-
ers 'in order to lessen the pressure on the gaol accommodation.
This was done without further communication with Marsden,
who had been the committing magistrate. Already bitterly
hurt by Wylde’s behaviour in the libel action, and always very
ready to accept any action as a criticism on his magisterial
sternness (for his severity was probably often brought into in-
vidious comparison with Macquarie’s clemency), Marsden at
once wrote to Macquarie resigning his office. This was on the
18th March, 1818, and the only answer Marsden received was a
copy of a General Order which stated curtly, “that his Excel-
lency the Governor had been pleased to dispense with the services
of the Rev. Samuel Marsden as justice of the peace and magis-
trate at Parramatta and the surrounding districts ”.*
Although from this time Marsden might with good reason
have displayed a greater hostility towards the Governor, there
appears no evidence to connect him with any hostile demonstra-
tion. Under the circumstances the clergyman, who was a hot-
tempered, full-blooded man, behaved with remarkableself-control,
and showed himself more sinned against than sinning. The
chief interest of the whole affair lay, however, in the fact that
this was the first trial for libel in the Colony, and that in the
criminal trial and in the civil trial which followed it the defend-
ant was not merely a Government official, but one in very close
and intimate connection with the representative of the Crown,
and one who styled himself the Censor of the Press. More im-
portant still was the fact that judgment was given against this
official, and that the Censor of the Press learnt how narrowly
the law limited his functions, In short, the action in the
1Given in D. 8. See above.
2 See Bigge, Report I.
* For facts of this quarrel see Bigge’s Report, I. Bigge gives a very full
account, and it appears, from all the evidence, to be a very just one. The G.G.O.
appeared in S.G., 21st March, 1818,
inne £2, kee G@tho
THE STIRRING OF POLITICAL ASPIRATIONS. 275
Supreme Court marked a very definite stage in the growth of
civil liberty, and proved not only how far the Colony had out-
grown the simple.governmental needs of earlier times—but also
what an anomalous confusion of military autocracy and civil
liberty had been created. By Macquarie the decision of Mr.
Justice Field in the Supreme Court was doubtless taken to ex-
press the latter's hostility to his government.
The beginning of 1819 was a very busy time in the Colony.
An influential body of settlers, with Sir John Jamison at their
head, had decided that the time was ripe to petition the Prince
Regent to grant a more liberal form of Government, an im-
proved judiciary, and a freer trade. Early in the year, with
Macquarie’s full permission, a public meeting was held with
Jamison in the chair, and a committee appointed with Eager as
secretary to draw up the petition, At a second meeting their
draft was adopted and copies sent to the magistrates and mem-
bers of the committee that they might collect signatures.
The petition “though perhaps,” wrote Macquarie, “in no
very courtly language,” * asked for trial by jury, the replacement
of military officers of Government by civil officers, the reduction
of duties on New South Wales products imported into England,
permission for ships of less than 250 tons to trade with the
Colony, and permission to distil from their own grain.
It was signed by 1,260 persons “including (with the excep-
tion of a very few persons, most of whom, holding official
situations, did not consider themselves warranted) all the men
of Wealth, Rank, or Intelligence throughout the Colony”.’
The promoters had difficulties of many kinds to contend with ;
in February and again in March the flood waters were up at
Parramatta and the Hawkesbury. Cox wrote to Jamison
from his house at Windsor on the 13th February at the early
hour of 6 a.m.
“My dear Sir John,
“T feel with many others much disappointment in being
deprived the pleasure of attending the Committee and meeting
1See S.G., January and February, 1819. Be :
2See D., 22nd March, 1819. R.O., MS. Petition was sent by Macquarie
with this despatch.
3D., 22nd March, 1819, above.
276 A COLONIAL AUTOCRACY.
to-morrow, but the waters are too much out to attempt it... .
The joint letter and return I enclose you signed by the magis-
trates of these districts, and I would much wish the question
as to who should act as jurymen should not be agitated at this
meeting. I have no doubt the Legislature will form their own
opinion on that subject and lay down the law for us—but
should they not, it will be time to canvas it here. If done now
it will create division which in my humble opinion is better
avoided if possible.”
Cox’s advice was taken, and nothing in the petition sug-
gested that there was any ill-feeling in the Colony between
emancipists and free men.
Marsden, who was collecting signatures at Parramatta,
also had trouble from the floods. He wrote to Eager: “I
am sorry that the weather was so bad some persons could not
be visited. I sent a man on horseback to Mr. Bayly’s, but
he came back not being able to cross the creeks. I had left
a place for his signature ... and I have sent it to him at
Sydney.” ?
Jenkins in Sydney had troubles of a different nature.
“T return you the skin of signatures,” he wrote to Eager
‘“‘with the addition of only one name (Mr. Secretary Camp-
bell’s). I have been and solicited the following persons :—
Mr. Wentworth.
Broughton.
Garling.
» . Harris (I believe Harris is out of town)
» Oxley.
» Johnston.’
but without effect. Some declare their signing would be im-
proper while holding the King’s Commission. Mr. Johnston ~
thinks his name might injure our petition. Mr. O. dislikes the —
Trial by Jury. Mr. Garling will consider about the propriety
of signing. Mr. Campbell signed very cheerfully and freely.” 4
Campbell’s readiness to sign was a good indication of the
Governor’s hearty approval of the petition. Indeed Macquarie
~
-
“
-
? Appendix to Bigge’s Reports. R.O., MS.
2Ibid. Dated 18th March, 1819. 8 The deposer of Bligh.
* Appendix, Bigge’s Reports. Dated 18th March, 1819. R.O., MS.
THE STIRRING OF POLITICAL ASPIRATIONS. 277
had himself recommended to the Colonial Office the greater
part of the measures which it argued. The most difficult and
important of these was trial by jury.
Field dealt thus with its legal aspects. “Except in certain
classes of misdemeanours, which do not induce legal incompe-
tencies, and except in case of pardon under the Great Seal,
which removes them, men convicted of felony or misdemean-
our, after the expiration of their terms of transportation or
(after being) pardoned by the Governor, are liable to challenge
as jurors. The pardon of the King under Sign-Manual is
sufficient in the case of transportation.” !
There was, of course, the property qualification, and in
accordance with the returns sent by the magistrates to Sir John
Jamison there were 614 persons free and emancipated owning
freehold property and so entitled to act asjurors. But amongst
these there were fifty-one officers of Government and many
others who, as Bigge pointed out, were “raised too high above
the condition of the ordinary description of offenders that come
before the Criminal Court to be selected as jurors”.? Those
born in the Colony and resident on their own property num-
bered no more than eighty-seven, and though equal, if not
superior in intelligence and moral conduct, to the class from
which petty jurors were taken in England, would find it burden-
some and expensive to leave their farms to attend the sittings
of the Criminal Court. Apart altogether from the legal aspect.
it was necessary to consider what would be the actual effect of
jury trial, and whether it would secure a more efficient admin-
istration of justice. It was in the Criminal Court that it was
felt to be most needed, and the petitioners gave little con-
sideration to its use in the Court of Civil Judicature.
Since the time when Ellis Bent and Macquarie had urged it
upon the Government, feeling on the subject had undergone
some changes. Jeffery Bent doubted whether petty juries would
be an advantage and Riley was quite against it. “It is certainly
most natural,” he said, “that Englishmen should wish for so
great a blessing, but according to my opinion the present state
1 Field to Bigge, 23rd October, 1820. Appendix to Reports. R.O., MS.
The last sentence refers to misdemeanours not entailing legal incompetencies.
2 Bigge’s Report, II. :
3 Tbid.
a
278 A COLONIAL AUTOCRACY.
of the territory does not warrant it in New South Wales; and
I think, if immediately extended to it, it would become an evil.
In saying this I believe I deliver the sentiments of a majority
of the inhabitants who are capable of duly appreciating the
result of so important a measure. When I left the Colony I
thought many years must elapse before it would be capable of
producing a sufficient number of proper jurymen.”!
Cox, Macarthur and Bell, who all signed the petition, were
opposed to the establishment of petty juries, and Marsden was
opposed to ex-convict jurors.? The fact that in spite of their
feeling on this point they did sign was a proof of the develop-
ment of a spirit of party government, all of them sinking their
feelings on this point in the hope of gaining the others. It is
noticeable that no one, with the exception perhaps of Marsden,
thought it would be possible to exclude ex-convicts altogether.
Field, for example, thought the danger of petty juries would lie
in the fact that emancipists would be legally entitled to sit upon
them, and that jury trial would therefore be the means of still
further embittering feeling between themselves and the free
population.’
It is probable that the military officers who acted as judges
and jury in the Criminal Court were as impartial and as intelli-
gent as an average English jury. The great objection to the
peculiar organisation of the court was that it was unnatural
and inimical to the ideas of the people. It often happened also
that the decision of questions of guilt lay with a young and
inexperienced officer who knew nothing of New South Wales,
and very little of the world.* Wylde complained that the officers,
aware that the court was unpopular merely because it was
military, too often erred on the side of leniency from a fear of
raising ill-feeling, while if a member of their regiment were tried
before them, from the same fear they were inclined to be too
severe. The officer in command of the garrison complained
that the demands of the Criminal Court interfered seriously
with the military duties of his officers, and to the regiment the
1 Riley, C. on G., 1819.
2 See Appendix, Bigge’s Reports. R.O., MS.
* Field to Bigge. See above.
* See Bigge’s Report, II. The verdict was a majority and not a unanimous
one.
THE STIRRING OF POLITICAL ASPIRATIONS. 279
court work was thoroughly distasteful. Thus dislike of the
military court and hesitation as to the wisdom of introducing
jury trial were balanced against one another, and the scale just
dipped in favour of the latter. The opinion of Bigge and Field
was that a little time should elapse to allow the exceedingly
bitter feelings, aroused against the emancipists by Macquarie’s
policy, to subside before trial by jury could be safely established.
Lord Bathurst received the petition in 1820 and already
much had been done on the lines suggested. Trade regulations
had been relaxed and permission had been given to establish
distilleries. Before making any further changes, the Secretary
of State proposed to wait until he received the report of Com-
missioner Bigge.?
A decision of the Court of King’s Bench in 1817 came as
an unexpected and heavy blow to the emancipists.* The old
custom of the Colonial Courts had been that a convict could
not sue or be sued, but that the convict free by servitude or
pardon stood in the courts as a free man. Field modified this
by allowing a convict to sue or be sued in his court, on the
ground that a record or office copy of his conviction was
necessary as proof of his status, though if such record were pro-
duced the convict had no standing. The case of Bullock
v. Dodds, heard by the Court of King’s Bench, decided that
the Governor's pardons had only the power of pardons under
the sign-manual and did not allow a convict attainted of felony
to give evidence, maintain personal actions, or acquire, retain
and transmit property. Upto that time the Act, 30 Geo. IIL.,
cap. 14, which conferred on the Governor the power to pardon
had been interpreted as giving to his pardons the same force as
pardons issued under the Great Seal, so that the news of the
decision in Bullock v. Dodds which reached New South Wales
in 1818 came as an unwelcome surprise.
1 Bigge proposed that the emancipist should fulfil the condition of cultivating
a certain proportion of his land before he should be eligible as a juror, and also he
should have “the free and unencumbered possession of not less than fifty acres
of land granted or of a house of the value of £100". See Report, I.
2 See D. 3, 24th March, 1820. C.O., MS. For new trade regulations see
Chapter V. and see also Chapter X.
3See Report of Bullock v. Dodds in Barnewell and Alderson, Reports of
Cases in the King’s Bench, vol. ii., pp. 258-278. Judgment of Bayley, J., and
Abbott, C, J.
280 A COLONIAL AUTOCRACY.
In ten years, from 1810 to the end of 1819, only eleven par-
dons had been granted or confirmed by His Majesty, and a
minority of these had been passed under the Great Seal. As
the Governor's pardon was effective in the case of crimes which
did not carry legal incompetencies, Field succeeded in somewhat
alleviating the hardship of the new doctrine. Thus when at-
torneys, being hard-pushed, took the “objection of attaint”
against witnesses, Field said that he “never allowed the wit-
nesses to answer the question, as | think it a dilemma too hard
to place any witness in, as if he tells the truth he disgraces
himself. I always tell the party who produces the witness to
exhibit the office copy of the record of the conviction. In
cases of this kind I have consulted the members of the court
as to the general character of witness produced.
“ Nor,” continued Field, “can a man be examined himself
in those things, for he may not say anything to injure or in-
criminate himself.
“The sting of the law is therefore, in this remote Colony,
where it would only sting itself to death, well and wisely taken
away by the law itself.” }
This rule he applied throughout, but it was clearly one which
“gave to the judicial authorities, the great power of determin-
ing how long and in what cases they may exercise that right ”.?
This power ‘‘may equally be applied,” wrote Bigge, “to the
convict whose term of service is expired, and who to all intents
and purposes is a free man, as to the convict whose term of
service has been remitted by the Governor of the Colony, and
who stands in the situation of a person holding a sign-manual —
pardon ”.®
Under these circumstances the emancipists were naturally
uneasy, and two decisions, one by Wylde in the Governor's
Court, and one by Field in the Supreme Court brought their
anxiety to a head.
In the Governor’s Court, Eager proceeded against Mr. Justice
Field on a charge of slander contained in a rebuke administered
by Field when acting as Chairman of the Bench of Magistrates
-at Parramatta. Field pleaded that Eager could not bring a
personal action, having been convicted of forgery and not having
1See Field to Bigge, above. 2 Bigge’s Report, II. 3 Thid.
THE STIRRING OF POLITICAL ASPIRATIONS. 281
since been included in any issue of pardons under the Great Seal.
Stay of proceedings was allowed for eighteen months in order
that Field might procure from England an office copy of the
record of conviction.!
In the Supreme Court it had been adjudged “ That persons
arriving in this Colony under sentences of transportation and
afterwards receiving instruments of absolute and conditional re-
missions . . . were not thereby restored to any civil rights of
free subjects unless and until their names should be inserted
in some general pardon under the Great Seal of England; but
on the contrary that they still remained convicts attaint, in-
capable of taking by grant or purchase, holding or conveying
any property real or personal, of suing in a Court of Justice or
of giving evidence therein—and upon the sole ground that the
name of the plaintiff did not appear in any general pardon
under the Great Seal of England, decreed that the plaintiff .. .
could not maintain his action. . . .”?
The emancipists obtained Macquarie’s permission to hold a
public meeting and to petition the Crown to remove these dis-
abilities. The meeting was duly advertised in the Gazette on
7th January, 1821. Field and Wylde, who were on the point of
sailing to Van Diemen’s Land on circuit, at once wrote to the
Governor, thinking it their duty “to apprise your Excellency
that if you had been pleased previously to such sanction, to
have consulted us upon the law, we could have demonstrated
... that none of the civil privileges of the above mentioned
persons (the emancipated convicts and expirees), have been
affected by any rules of law lately pronounced by us; and we
beg to add that we make this declaration with no view of inter-
fering with any measure of your Excellency’s Government, or
on the ground of any objection on our part to the meeting pro-
posed, but solely for the purpose of absolving ourselves from
any consequences which the convention of such a meeting may
occasion, during a probably three months’ closure of the Courts
of Civil and Criminal Judicature.” *
suce Petition of Emancipists, enclosure D., 22nd October, 1821. _ R.O., MS.
Fee totic: Appendix, Bigge’s Reports, 7th January, 1821. R.O. The
advertisement of the meeting stated that it was called for the purpose of petition-
ing the King and Parliament for relief from the consequences of certain rules of
282 A COLONIAL AUTOCRACY.
Macquarie replied expressing his regret that they disapproved
of the advertisement of the meeting, and adding, ‘“‘ Had I con-
ceived anything illegal or even irregular in the wording .. .
I should certainly have consulted you on the occasion, before
I gave my sanction to the publication of it. But, impressed as.
I am with the firm conviction of the serious grievance this
description of people labour under at present, from the late ex-
planation of the law, as it regards themselves and their property,
I consider it my indispensable duty to sanction their meeting
for the purpose of seeking relief from the injurious consequences.
of the present state of the law, not contemplating that such a
measure would have proved in the smallest degree annoying to-
you, as the judges who had expounded the law.”!
Bigge agreed with Macquarie, and no harm came of the
meeting. Dr. Redfern presided and Eager acted as secretary.
The petition was signed by 1,360 persons, and the secretary and
chairman both went to England to forward the cause.”
There can be no doubt that the emancipists and expirees *
had never been intended to occupy the precarious position which
resulted from the decision of Bullock v. Dodds, and that some
alleviation might fairly be asked for.
Bigge thought that the Governor’s pardon should be given
the power of a pardon under the Great Seal, within the
boundaries of New South Wales, and that some such statutory
provision was safer than a discretionary power which was open
to abuse so long as the reasons for its exercise remained as.
Field would have said “in the breast of the court”. #
Bigge’s commission in New South Wales gave him the
law, lately pronounced in the Courts of Civil Judicature in the Colony, affecting
the civil privileges of the above mentioned colonists.
1 Macquarie to Wylde and Field, 7th January, 1821. Appendix, Bigge’s.
Reports. R.O., MS.
* Redfern had private business of his own, but Eager’s visit had to do only
with the petition. He was a restless, troublesome man, and Field wished the
Secretary of State to forbid his return. See his letter to Bigge, Appendix, Re-
ports. R.O., MS.
*In the Colony “ emancipists”” was used to cover both.
* Bigge thought “ that all felonies committed by convicts during their term
of punishment or by remitted convicts after their remission, shall be held to
deprive them of all future personal right of action and of serving as jurors, and.
should also create a forfeiture of all lands granted to them by the Crown, or
held by other title”. Report III., 30th January, 1819. See Chapter X. See
Bathurst to Macquarie, C.O., MS.
sa SlCr OC |]FlC BR}
Wn. ee Oe ee ee ee ee ee ee ee ee = a |
THE STIRRING OF POLITICAL ASPIRATIONS. 283.
right to remonstrate with Macquarie, and even direct his ad-
ministration as well as to inquire into the whole conditions of
the Colony. He arrived in 1819 and left in 1821, and, as was
perhaps inevitable, he and Macquarie were more than once en-
gaged in arguments. Twice their disputes led to a complete
rupture in their relations, and on each occasion Macquarie was
certainly in the wrong. It is useless to raise the dust over all
these past contests again, for the time was not one when they
could lead to further result. It was a period of waiting ; the
time of Macquarie'’s departure was growing near ; the Governor's
administration had been assailed in the House of Commons and
in two pamphlets by the Hon. H. Grey Bennet, M.P., and it
was well known that, so soon as Bigge’s Report had been pre-
sented, great changes would be introduced.!_ It was what had
happened before Bigge’s arrival rather than what happened
while he was in the Colony that was of real importance. That
Macquarie should dislike the commission was natural, for what-
ever Bigge’s finding, his appointment in itself was a reflection
upon Macquarie’s administration by showing that inquiry was
felt to be necessary. His resignation also had been neglected,
and he wrote in 1820 in a tone of extreme depression to Lord
Bathurst, saying, “Two years and two months having now
elapsed since the sailing of the Harriett for England, I cannot
conceal from your Lordship the regret and mortification I feel
at your Lordship’s not condescending even to notice the receipt
of my letter of resignation, and thereby leaving me utterly at a
loss to know when I am to be relieved.
“ After the arduous and harassing duties I have had to per-
form in the administration of the Colony for now upwards of
ten years, the constant counteraction I have experienced here
even to my best measures, and the cruel and base calumnies
circulated to the prejudice of my character at home, I must con-
fess, my Lord, I am now heartily tired of my situation here,
and anxiously wish to retire from public life as soon as pos-
sible.
1 See Chapter X. ‘ ag
2 Macquarie did all that was fitting in the way of public ceremonial with a
very good grace, and wrote of Bigge—except when quarrelling with him—with
respect and admiration.
284 A COLONIAL AUTOCRACY.
*‘T therefore most earnestly entreat your Lordship will be so
good as to move His Royal Highness the Prince Regent to ac-
cept this second tender of my resignation, and to be graciously
pleased to appoint another Governor to relieve here as soon as
a competent person can be selected for that purpose.” *
Lord Bathurst replied, ‘‘ I regret to find that you had not at
the date of your former despatch received my communication
of October, 18187. . . as it would have fully explained the
reasons on which alone I had thought it my duty to decline
submitting your resignation to the King* until you had an op-
portunity of reconsidering the ground upon which it was then
tendered. Finding, however, that your anxiety to resign your
command has no longer any reference to the circumstances
stated in your despatch of December, 1817, I have thought it
encumbent upon me to submit your request to the King, and
have the honour to acquaint you that His Majesty has been
graciously pleased to accept your resignation.” *
On the 5th of August, 1820, Major-General Sir Thomas
Brisbane, having heard that Macquarie was returning, asked for
the command. He had already been suggested for the post by
the Duke of Wellington and the late Sir Joseph Banks. Of
_ his own qualifications he refused to say anything save to assure
Lord Bathurst of his “utmost assiduity in behalf of that infant
Colony ”.®
On the 3rd of November, the appointment was offered to
him and at once accepted. He was a soldier of distinction with
a knowledge of astronomy and kindred sciences, and it was on
account of these that he was anxious to go to New South
Wales. He sailed in May, 1821, and arrived in November after
a five months’ passage by Rio Janeiro. But before speaking
of Macquarie’s departure, some account must be given of his
last attempt to honour, in the person of Dr. Redfern, the class
to whom he had throughout his administration shown so much
favour.
Redfern had been an assistant surgeon in the Navy when at
1 Macquarie to Bathurst, 2oth February, 1820. R.O., MS.
? This was not a despatch but a private letter, and it does not seem to have
been sent. In any event Macquarie did not receive it.
§ George IV. 4D. 14, 15th July, 1820. C.O., MS.
° Brisbane to Bathurst, 5th August, 1820. R.O., MS,
‘
THE STIRRING OF POLITICAL ASPIRATIONS, 285
the age of eighteen he had been sentenced to death for com-
plicity in the mutiny at the Nore, His complicity had been
proved by his being overheard in urging the mutineers to greater
unity among themselves. On account of his youth his sentence
had been commuted to transportation for life, and after being
some years in the Colony he had received a free pardon and in
1812 a commission of assistant surgeon, a post which he occu-
pied until 1819.
Wentworth, the principal surgeon, retired in 1818, and
Macquarie assisted Redfern in bringing to bear as much influ-
ence as possible upon the Colonial Office in order to secure for
him the higher post. To Macquarie’s surprise, Lord Bathurst
passed over Redfern in silence and appointed Dr. Bowman,
a skilful naval surgeon who had been a remarkably successful
superintendent of transports.1_ Redfern, indignant at being thus
overlooked, resigned his position of assistant, and Macquarie
promised to appoint him to the magistracy, apparently in com-
pensation for his disappointment. Bigge urged the Governor
not to take such a step, pointing out that the Secretary of State
had already expressed disapproval of such a policy, and that by
doing so Macquarie would be giving to Redfern a higher rank
than that to which Lord Bathurst had tacitly declined to raise
him. Macquarie submitted reluctantly to Bigge’s authority
though not to his arguments, but two days later changed his
mind. Bigge wrote indignantly to ask the reason, and Mac-
quarie replied, ... “I was and am fully bent on according
with you in every measure you can suggest, however different
from my previous opinions and conduct .. . providing the
alterations you propose are calculated in my mind, after the
most mature consideration of the subject, to promise that
advantage which I am well aware it is your intention they
should... . I am willing to make every reasonable sacrifice
of my own feelings to the wishes and views of His Royal High-
ness the Prince Regent, and His Majesty’s Ministers—but I
feel that I should be no longer worthy of the situation I hold in
this Colony, were I to make so complete an abandonment of
my authority, honour and principle, as to cancel an appointment
1 Bathurst to M., April, 1819. Macquarie, C.O., MS.
286 A COLONIAL AUTOCRACY.
after the precept had been made out actually signed by me
in conformity to a promise made before your arrival in this
Colony... .
“With all due deference to your acquirements and the
superior faculties of your mind, I consider myself at least your
equal in the consideration of a subject zezw to you, but familiar
to me in my daily and hourly duties for now nearly ten years,
and I cannot let this opportunity pass without dwelling a little
longer on the subject which has given rise to this communication,
The most virtuous and best disposed of the free people of this
Colony agree with me in the adoption of this principle. The
malcontents who since Governor Phillip’s time to the present
moment have ever been the burden and turmoil of this Colony
have free access to you.” The blandishments of these people,
he continued, usually brought newcomers to their way of think-
ing, a matter of little importance when the strangers were birds
of passage. ‘“ But you and I, who have voluntarily undertaken
a duty which combines us equally with all, must, in the just ful-
filment of those duties, lay aside our own personal feelings—for
if we are so delicate in our moral sentiments as to be unapproach-
able by the general mass of the population of this Colony, or so
refined in our senses as to be unable to bear the approach of a
naked and generally filthy native, it will be difficult, if not im-
possible, to form a just estimate of the wants and claims which
all alike have upon us.
“The class of persons here who must ever be considered as
the first . . . have overturned the Government of this Colony—
they have occasioned the retirement of every Governor who
had held the Government, they are factious, discontented and
turbulent. . . . Let not the disposition with which nature seems
to have endowed you for doing good,” he concluded with a
sudden flight into rhetoric, “ be overwhelmed by an overstrained
delicacy, or too refined a sense of moral feelings, for such I
consider the preference given to a bad man who perhaps
narrowly escaped the stigma of having once been a convict—to
one who is ow good—but who has been proved not to have
been always so. Avert the blow you appear to be too much
inclined to inflict on these unhappy beings (if you make them
so!), and let the souls now in being, as well as millions yet
THE STIRRING OF POLITICAL ASPIRATIONS. 287
unborn, bless the day on which you landed on their shores—
and gave them—(when they deserve it) what you so much
admire—Freedom !”!
Bigge was not much affected by the rhetoric, and easily cut
the ground from beneath Macquarie’s arguments. The ques-
tion had nothing to do with vague generalities, but dealt simply
with the wisdom of making Dr. Redfern, an emancipist, whose
promotion had not been continued beyond the post of assistant
surgeon, a magistrate, against the known opposition of Lord
Bathurst.
“Your Excellency must be well aware,” he wrote in one
part of his letter, “that not only in this Colony but in England
likewise, the admission of convicts to the magistracy, the dis-
tinguishing feature of your administration, has been more than
questioned.” And again, “I never can admit that the faithful
discharge of the duties of assistant surgeon can ever form a
claim to the honours of the magistracy, even among the limited
number of aspirants to that office in this Colony ”.?
His arguments were of little use, for Redfern held Macquarie
to his promise. ‘“ Honour, Character and Principles” were so
deeply involved that the Governor felt bound to fulful his
pledge.®
Redfern was appointed and held his coveted rank for nearly
a year. But when the new King came to the throne and a
‘new commission of the peace was issued, Macquarie received
orders from Lord Bathurst to omit Redfern’s name. Thus
when Sir Thomas Brisbane took up the reins of Government no
convicts sat upon the Bench, for Lord, persuaded by both Mac-
quarie and Bigge that the trade of auctioneer was unsuited to one
of magisterial rank, had retired on the plea of ill-health on the
same occasion.‘ Early in 1821 Macquarie made a tour of Van
Diemen’s Land, and on his return to Sydney was received, as
he had been in 1812 with an address of welcome and a general
illumination of the town.6 Soon afterwards he started on his
last progress through New South Wales, and it was while he
16th November, 1819. Enclosure, D. 2, 22nd February, 1820. . R.O., MS.
2z0th November, 1819. See above, R.O., MS.
3 Macquarie to Bigge, 12th November, 1819. See above, R.O., MS.
4 Bigge’s Report, I. 5 See Gazette, 23rd November, 1821.
288 A COLONIAL AUTOCRACY.
was absent that Brisbane arrived at Port Jackson. On the ©
21st of November Macquarie returned to headquarters, and —
Sydney saw the spectacle of “Their Excellencies” riding
through the streets together. Brisbane was sworn in on the
tst of December, 1822, and a fortnight later addresses—one of
welcome, one of farewell—were presented, in the preparation
of which, the Gazette! recorded that “a deplorable lack of una-
nimity was shown”.
Macquarie with his wife and little son sailed for England
on 12th February, 1822. He lived just long enough to publish
a defence of his administration in response to the earlier attacks
of Bennet, and died in London in 1824. He had governed
New South Wales for eleven years, and if good intentions,
unremitting labour and honesty of purpose were the only
qualities called for in a Governor, Macquarie had indeed de-
served well of his country. But before estimating his services
there is still another side of his administration to be considered,
that side which presented itself to the Imperial Parliament
and became in a dim and hazy manner impressed upon the
British public.
1 Gazette, 14th January, 1822.
= jo bh
a bee —s ts ee & ef ee ee ee ee
2 2 fh =a
CHAPTER xX.
NEW SOUTH WALES AND THE IMPERIAL PARLIAMENT.
AuTHoRITIES.—Despatches, etc., in Record and Colonial Offices. Hansard,
1809-1822. The Times, 1819-1823. Edinburgh Review. Memoirs of Romilly.
Life and Letters of W. Wilberforce. H. G. Bennet’s Letter to Lord Bathurst.
Feremy Bentham’s Plea for the Constitution. Macquarie’s Letter to Lord Sid-
mouth. P.P., 1812, II.; 1819, VII.; 1822, XX.; 1823, X.; 1823, XIV.
IT was many years after its foundation that New South Wales
began to attract any attention in England. Here and there,
however, men of influence and importance followed with interest
the development of the far off penal station. Sir Joseph Banks,
the President of the Royal Society, who had been with Cook
on his voyage of exploration, busied himself constantly in the
Colony’s affairs, and for many years was the chief adviser of the
Government both in England and New South Wales in regard
to its pastoral and agricultural needs.’
Equally zealous was William Wilberforce in watching over
another branch of colonial activities—those of religion and edu-
cation. It was he who selected the Rev. Mr. Johnston, the
first chaplain, and the Reverend Samuel Marsden who replaced
him in 1793, the latter one of the most famous of the early
pioneers. Wilberforce was also active in urging the despatch
of schoolmasters to the infant state,? though perhaps his chief
interest lay in the possibilities presented by the settlement as a
centre for missionary enterprise in the South Seas.* Later, when
1 Practically, however, he ceased to. concern himself in its affairs after the
Bligh affair. .
2 Letter from Dundas (afterward Lord Melville) to Wilberforce. Correspond-
ence of W. Wilberforce, 1840, vol. i., p. 105, August, 1794.
3 See letter of Rev. J. Newton to Wilberforce in Correspondence of Mr.
Wilberforce. London, 1840, p. 11, vol. i., 15th November, 1786. ‘*To you, as
the instrument, we owe the pleasing prospect of an opening for the propagation
of the Gospel in the Southern Hemisphere. Who can tell what important
consequences may depend upon Mr. Johnson going to New Holland.
(289) I9
290 A COLONIAL AUTOCRACY.
he came to act in closer connection with prison and criminal
law reformers in the House of Commons, his interest in New
South Wales was placed on a wider basis. But in earlier years
when he and Pitt were close friends it was the religious interests
of the Colony alone which he attempted to influence.
From 1803 to 1812, Lord Hobart, Mr. Wyndham, Lord
Castlereagh and Lord Liverpool held successively the seals for
War and the Colonies. But in June of the latter year Lord
Bathurst came into office and he remained Secretary until 1827.
In August, 1812, Henry Goulburn, as Under-Secretary for the
Colonies, replaced Robert Peel, who had in that position made
his entry into official life. Goulburn remained in this office
until the end of 1821.
At that period the parliamentary chiefs of the department
appear to have been in every sense the administrators, and
the permanent officials of the Colonial Office held an altogether
unimportant position. But even the Secretary of State, as
has been seen in earlier chapters, often had insurmountable
difficulty in enforcing his policy upon the colonial Governors.
Nevertheless the personality and opinions of the Secretary
and Under-Secretary were of importance in affecting the de-
velopment of the Colony, and it is of interest to know what
manner of men they were.
Lord Bathurst was a kindly Tory of the old school, well
fixed in the old ways, and was one of those who retired alto-
gether from politics with the passing of the Reform Bill. He
was industrious and religious, with a strong inclination towards
the Clapham sect, and he had plenty of plain common-sense.
During a long Parliamentary career he made one speech only,
and that a short one, which rose above the merest mediocrity.!
He was a high-minded public-spirited aristocrat, who had prob- —
ably gone into politics as a kind of family duty, was a tolerably
competent official, had a close regard for routine and a total
lack of imagination.
It is very difficult to describe Goulburn. He was even at
this time a very close friend of Peel's, and his relations with all
his colleagues, so far as they can be judged from the semi-
1On the treatment of Bonaparte 1817. Hansard, vol. xxxv., pp. 1146-1160,
March, 1817.
a a i a ne eS er ee 7 Ea Se.
ae — ee, ee ee ee
a> ts see
NEW SOUTH WALES AND PARLIAMENT. 201
official and private letters amongst the Colonial Office papers,
appear to have been of the pleasantest kind. But he seems to
have been then, as he was in after life when he had attained
high office, one of the most colourless of men. He was of much
the same type as Lord Bathurst, but having been born a com-
moner, found it necessary to be just a little better informed,
a shade more efficient, than his titled chief. Though a Tory,
he was inclined to more liberal views that Lord Bathurst,
though in regard to New South Wales no opportunity was
taken for putting them in practice. His colonial policy was
vague and rather inconsistent.
“We were not to consider,” he said on one occasion, “these
Colonies merely as the appurtenances of grandeur, and the
gratification of national vanity, but to weigh the right of the
people and their individual happiness. ... To those who
thought that the Colonies were only an encumbrance on the
country, it might be that these reasons would have little weight ;
but with those who like himself considered them one of the
great sources of our glory, and one of the great supports of our
power, affording resources in war, and increasing our commerce
in peace, with those who thought them important under every
consideration, it would not be doubted that they had a right to
due attention... .”! Two years later in a debate on Army Esti-
mates in new colonies, he said :—
“The effect of that principle (on which was founded our
colonial policy) was, in compensation for a monopoly of com-
merce, to maintain the civil and military establishments of the
Colonies. Whenever that branch of the subject should be
brought forward he trusted he would be able to show that this
system of retaining in our own hands the sources of commercial
profit was justified by sound fo/icy, and ought not to be rashly
abandoned.” *
These two utterances, the only statements of general colon-
ial policy which he can be found to have made, are scarcely
illuminating. The consideration of the “rights” of colonists
and their support in war consort but ill with this statement of
1 Hansard, vol. xxxvi., p. 68, 29th April, 817. Debate on abolition of Third
Secretary of State (for War and Colonies).
2 Ibid., vol. xl., p. 267, 1oth May, 1819.
292 A COLONIAL AUTOCRACY.
commercial monopoly. It would, however, be equally difficult
to give any clear account of the colonial policy of the whole
Tory party at this period, though the principles upon which
New South Wales was founded and governed were sufficiently
lucid.
At the time of its foundation it was necessarily a mere
military station under autocratic rule. That such a form of
Government continued so long may be considered as due to a
deliberate policy and as a natural outcome of the Tory principles
of the period of reaction. For this theory there is support in
the fact that the only other Colony of which England at this
time became possessed which was at all similar to New South
Wales, the Cape of Good Hope, shared the unenviable distinc-
tion of being placed under an autocratic Governor unrestrained
by a Council. Both Colonies were to be agricultural, and both
were expected to prove self-supporting.’ Neither could be
considered as a mere military station, and the plea that one
contained a hostile Dutch, and the other a hostile convict
population was not a rational one. In the case of New South
Wales at least such a position was ridiculous. In spite of the
rising in 1805, no sign of a convict rebellion ever again occurred,
either under the military government or after the establishment
of a Council in 1825. Yet from 1805 to 1821 the opportunity
of the convicts was unique. They far outnumbered the rest of
the population, and from 1815 to 1821 the military protection
of the Colony was admittedly insufficient.2 Yet the garrison
constituted the only efficient and reliable police. The Home
Government did not until 1821 increase it, but they did year
by year increase the number of convicts. If the reply to Ellis
Bent was that it was still considered necessary to preserve
military government, the reason must have been, not fear of
risings which would have to be dealt with by rapid decrees
(indeed by declaring martial law, that might have been done
under any Government), but rather a belief in the efficiency of
an autocracy.
Probably the Secretary of State feared more from the
1 See Chapter I.
? See Correspondence of C.O. with Treasury, 1818 to 1821 (R.O. and C.O).
See also Riley, C. on G., 1819.
| — . _or—
NEW SOUTH WALES AND PARLIAMENT. 293
colonists’ discontents than from convict rebellions. The Bligh
affair cast an unpleasant shadow long after tranquillity had been
restored. But the presence in the Colony of what Goulburn
called “such inflammable material” as the convicts, and past
troubles with Bligh, probably did no more than give a colour of
reason to the Tory principle of the period. It was after all a
time when government by the benevolent despot was a favoured
system. The people were to be ruled by those selected for that
purpose by the highest authority, and due subordination was to
be preserved. A belief in inequality was not questioned as a
prejudice, but firmly adhered to as a fundamental principle.
For a small Colony it appeared obvious that such a system was
a fitting one. The settlers belonged to a comparatively low
stratum of society, the convicts of course lower still. It was
but natural and proper that all should be governed by a superior
(though not necessarily an exalted) intelligence selected for them
by the Government at home. Lord Castlereagh, who was per-
haps the harshest of this set of reactionaries, wrote of colon-
ists in an undoubted tone of contempt.!_ Lord Liverpool, much
more liberal in his opinions, yet considered the Constitutional
Act for Canada of 1791, with its moderate constitutional freedom,
as a fatal error? But though from the scanty materials at hand
this suggestion cannot be too much pressed, it is at least strange
that the reasons for continuing the peculiar form of Govern-
ment in New South Wales were never set forth more at large.
From 1800 the policy was one of pure negation and only
one definite advance, the reform of the courts in 1814, can be
recorded until in 1817 the Government began to falter in their
reiteration of the necessity for a military government and finally
set out to modify the system.
Under these circumstances it fell naturally to the lot of the
opposition to champion the cause of discontented colonists. It
is one of the ironies of history that the retired army and naval
officers, gentlemen farmers and graziers, all of them men with
a natural bias towards Toryism, being discontented with the
1 See, ¢.g., Lord Castlereagh’s Correspondence, 1851, vol. viii., p. 187. Letter
Duke of Manchester, Governor of Jamaica, 11th February, 1809. i
2 Life of Lord Liverpool, by C. D. Yonge, 1838, vol. i., p. 31. Letter to Sir
J. Craig, 1810.
204 A COLONIAL AUTOCRACY.
autocracy at Sydney, were driven into the arms of the Whigs
and the Radicals in England.
It was without their solicitation and apparently without their
knowledge that Jeremy Bentham took up the subject of New
South Wales in 1802. In this year he wrote his two letters to
Lord Pelham. The first compared the system of dealing with
criminals by transportation to New South Wales with his own
scheme of the Panopticon, the second described the home peni-
tentiaries of America. His attention was thus called to the con-
dition of New South Wales by the neglect of his Panopticon,
and in 1803 he pursued the subject in a pamphlet entitled “A
Plea for the Constitution,” in which he discussed not the “ policy
of the settlement,” but its “legality ”.*
The only material before Bentham in writing of New South
Wales was that provided by a few remarks by the Select Com-
mittee on Finance in 1798, and the Hzstory of New Holland by
Lieutenant-Governor Collins, of which a second edition was
published in 1802 and which gave in diary form a naive account
of colonial life.*
Little noticed as these writings of Bentham’s were, it seems
worth while to give some account of his treatment of the
Colony’s affairs for two reasons, first because each point to
which he turned his attention came to be discussed afterwards,
and because the two men who chiefly bestirred themselves in
New South Wales affairs between 1810 and 1820, Sir Samuel
Romilly and the Hon. H. Grey Bennet, both came within the
influence of Bentham.
In the first letter to Lord Pelham,® Bentham sought to dis-
1The Canadians took much the same course. See letter above, Lord
Liverpool to Sir J. Craig. ‘‘ You may rely upon it, that if the subject of the con-
stitution of Canada was brought under the discussion of Parliament, the cause of
the Canadians would be warmly supported by all the democrats and friends of re-
form in the country.”
* The letters to Lord Pelham were published in 1802. The Plea for the
Constitution in 1803. See Romilly’s Memoirs, 1791, vol. i., p. 417, published in
1840. The copy of the Plea in the British Museum belonged to Sir S. Romilly
(a gift from the author).
* This volume, with a very inferior production by Mason in 1811, remained
the only sources of information in regard to New South Wales available in
England up till 1812. See Romilly’s Speech in House of Commons, 12th
February, 1812. Hansard, vol. xxii., p. 762.
* Romilly of course directly, and Bennet through Francis Place. See later,
p. 302.
5 P. 68. Letter to Lord Pelham.
NEW SOUTH WALES AND PARLIAMENT, 295
cover what profit New South Wales brought the mother country,
He held of course in the most extreme sense the theory that
from the point of view of economics, colonial expansion was
utterly mistaken.! After a short resumé of the economic argu-
ment he thus summarised the position.
“Thus then stands the real account of profit and loss in re-
spect of Colonies in general. Colonies in general yield no ad-
vantage to the mother country, because their produce is never
obtained without an equivalent sacrifice, for which equal value
might have been obtained elsewhere. The particular Colony
here in question yields no advantage to the mother country, and
for a reason still more simple—because it yields no produce.”
The only real acquisition, he concluded, was two hundred
and fifty new-discovered plants, “ but plants, my Lord, as well as
gold, may be bought too dear... . In return for so many
choice and physical plants, transplanted from the Colony, there
is one plant, though it be but a metaphorical one, which has
been planted zz the Colony ... and that is—the plant of
military despotism.”
It was this form of Government which he analysed in the
Plea for the Constitution in the following year.?
He discussed very minutely the illegal assumption of legis-
lative powers, powers however, which he admitted had neces-
sarily been exercised in the beginning and on many occasions
in a praiseworthy manner. No Colony, he said, had ever started
so badly equipped with legal rights. To give a Royal Charter
would indeed have been impossible, for to a charter there were
needed two parties and a forced exile, a convicted criminal could
not be one of them.
“Instructions and counter-instructions, insinuations and
counter-insinuations,’ he wrote, in a characteristic passage,
“instructions in form and instructions not in form; despotism
1See the brilliant little pamphlet, ‘‘ Emancipate your Colonies,” written,
1793, first published for sale, 1830. : Lt
2 The full title was A plea for the Constitution, shewing the Enormities com-
mitted to the oppression of British Subjects Innocent as well as Guilty in Breach
of Magna Charta, The Petition of Right, The Habeas Corpus Act, and the Bill
of Right ; so likewise of the Several Transportation Acts ; in and by the Design,
Foundation and Government of Penal Colony of New South Wales : including an
Inquiry into the Right of the Crown to legislate without Parliament in Trintdad
and other British Colonies.
296 A COLONIAL AUTOCRACY.
acting there by instructions and zw2¢hout instructions and against
instructions; all these things there may be and there will be
in abundance. But of charters ...; of constitutions ...; of
lawful warrants, unless from Parliament ; from the present day
to the day of judgment there will be none.” !
No blame, however, was to be attached to the Governor.
“ Whatsoever were given to him for law, by his superiors at the
Council Board, or the Secretary of State’s office, would naturally
enough, one may almost say unavoidably, be taken by this sea-
captain for law.” ?
The Home Government were the real culprits, and either
they had knowingly persevered in an illegal course or had
ignorantly blundered. The latter theory seemed unlikely, for the
power of Parliament had been invoked to give New South
Wales a Criminal Court, and “wherefore apply to Parliament
for powers for the organisation of a judicial establishment in
that Colony”. Judicial power is in its nature inferior, sub-
ordinate to legislative. If the Crown had an original right to
create the superior power, how can it have been without the
right of creating the subordinate ?*
After closer discussion Bentham concluded, “ But all collat-
eral questions dismissed, thus, on the ground of law, stands the
Government of New South Wales. Over Britons or Irishmen,
in or out of Great Britain and Ireland, the King, not being him-
self possessed of legislative power, can confer none. To confer
it on others, those others being his instruments, placeable and
displaceable by himself at any time, is exactly the same thing
as to possess and exercise it himself. The displaceable instru-
ments of the Crown—the successive Governors of New South
Wales—have, for these fourteen years past, been exercising
legislative power without any authority at all from anybody, or
at most without any authority but from the King; and all along
they have been, as was most fit they should be, placed and dis-
placed at His Majesty’s pleasure.” *
In 1803 New South Wales enjoyed some amount of notice,
- for Collins’ book was reviewed in April by Sydney Smith in the
1P, 24. 2P, 8. This is a reference to the naval governors.
SP. 24. *P. 35,
NEW SOUTH WALES AND PARLIAMENT. 297
Edinburgh Review.» It wasa very characteristic piece of writing,
and altogether condemnatory of the settlement and all thereto
belonging.
“With fanciful schemes of universal good,” he wrote, “‘ we
have no business to meddle. Why we are to erect penitentiary
houses and prisons at the distance of half the diameter of the
globe, and to incur the enormous expense of feeding and trans-
porting their inhabitants too, and at such a distance, it is ex-
tremely difficult to discover. It is certainly not from any
deficiency of barren islands near our own coasts, nor of uncul-
tivated wastes in the interior; and if we were sufficiently
fortunate to be wanting in such species of accommodation, we
aight discover in Canada, or the West Indies, or on the Coast
of Africa, a climate malignant enough, or a soil sufficiently
sterile to revenge all the injuries which have been inflicted on
society by pick-pockets, larcenists and petty felons. . . .”
“ It is foolishly believed that the Colony of Botany Bay unites
our moral and commercial interests, and that we shall receive
hereafter an ample equivalent, in bales of goods, for all the vices
‘we export.”
The writer was, however, thoroughly hopeless. “It is a
Colony besides begun under every possible disadvantage ; it is
too distant to be long governed, or well defended ; it is under-
taken, not by the voluntary association of individuals, but by
Government, and by means of compulsory labour. . . . It may
be a curious consideration to reflect what we are to do with this
Colony when it comes to years of discretion. Are we to spend
another hundred millions of money in discovering its strength,
and to humble ourselves again before a fresh set of Washingtons
and Franklins? . .. Endless blood and treasure will be ex-
hausted to support a tax on kangaroo skins; faithful Commons
will go on voting fresh supplies to support a just and necessary
war; and Newgate, then become a quarter of the world, will
evince a heroism not unworthy of the great characters by whom
she was originally peopled.”
From this time until 1810 the Colony sunk again into
1 See vol. ii., 2nd April, 1803, pp- 30, 42. The Edinburgh Review took more
notice of colonial subjects than any other periodical of the time, probably because
the Whigs had a very definite (though negative) colonial policy.
298 A COLONIAL AUTOCRACY.
complete obscurity, from which it gradually emerged through the
agency of Sir Samuel Romilly. His work in the reform of
Criminal Law naturally led him to inquire into the concerns
of New South Wales, and the little he could learn left him
extremely dissatisfied as to its condition and the probable effect.
of transportation upon the convicts.
On the oth of May, 1810, he moved in the House of Com-
mons that an address be presented to the King praying that.
the Penitentiary Acts of 1g Geo. III. and 34 Geo. III. should
be put into force.’
The motion was withdrawn at the request of Ryder, the
Under-Secretary for Home Affairs, who stated his sympathy
but asked for delay. On the 5th of June Romilly renewed the
motion, but found Ryder “as little prepared now as he had been
before” ? and he again asked for delay and suggested a com-
mittee. The matter, however, was pressed to a division, and
Romilly made a long speech during the debate, basing his re-
marks chiefly on Collins.
“In whatever light we consider it,” he said . . . “we shall
find it extremely inefficacious. As an example the effect of
the punishment is removed toa distance from those on whom
it is to operate. It is involved in the greatest uncertainty, and
is considered very differently according to the sanguine or de-
sponding disposition of those who reflect on it, or according to
the more accurate or erroneous accounts of the Colony which:
may happen to have reached then.”
He spoke of Collins as “the panegyrist of the Colony,” and
yet, he said, “ his history is little more than a disgusting narrative
of atrocious crimes and most severe and cruel punishments.* It.
is indeed a subject of very melancholy, and to this House of very
reproachful reflection, that such an experiment in criminal juris-
prudence and colonial policy as that of transportation to New
South Wales should have been tried, and we should have suffered.
now twenty-four years to elapse without examining or even in-.
quiring into its success or its failure.”
1 See Romilly’s Memoirs, vol. ii., p. 319.
2 Romilly’s Memoirs, vol. ii.
%See Hansard, vol. xvii., pp. 322-329, 5th June, 1810,
* This statement is a great exaggeration. There is much information of a
hopeful and cheerful nature in Collins’ book.
NEW SOUTH WALES AND PARLIAMENT, 299
“The punishment of transportation has indeed been some-
times considered as one of no great severity, and I have been
very sorry to hear it so represented by those on whom the in-
flicting it depends . . ; it is sometimes inflicted on boys at a
very early age merely as a means of separating them effectually
from the bad companions they may have formed at home. It
were much to be wished that those who consider transportation
in this light would impose upon themselves the duty of reading
Mr. Collins’ history of the settlement that they might acquire
a just notion of all the complicated hardships and sufferings to
which transported convicts are exposed.”
The motion was lost, but not by a great majority, the num-
ber being fifty-two to sixty-nine.1
During the vacation Romilly prepared a pamphlet on New
South Wales which was, however, never published, perhaps never
completed.2 Early in 1811, a Committee of the House of
Commons was appointed on Ryder’s motion “to inquire into
the expediency of erecting penitentiary houses”.* Romilly
moved an instruction for the Committee “to inquire into the
effects which have been produced by the punishment of trans-
portation to New South Wales and of imprisonment on board
the hulks, and the motion was accepted ”.4
The Committee reported in June, but without having made
any inquiry at all into the affairs of New South Wales, Their
report was incomplete in other respects also, and Ryder moved
for its reappointment, “to consider of the expediency of erecting
penitentiary houses, and that it be an instruction to the said
Committee to inquire into the effects produced by transportation
to New South Wales.” ®
To this Romilly objected. He hoped “the latter subject,
which had originated with himself, would not be thus thrown
into the background”. The Committee, with so much work
to do, would not be able to report to the House that session,
and New South Wales affairs called for immediate inquiry.
He used one argument which was comically beyond the facts.
1 Romilly’s Memoirs, vol. ii., p. 332+
2 Tbid., p. 342. : 5 eo
3 4th March, 1811. See Romilly’s Memoirs, ii., p. 367.
4Jbid. Hansard, vol. xix., 4th March, r8r1, p. 186.
5 Hansard, vol. xxi., p. 603, 4th February, 1812.
300 A COLONIAL AUTOCRACY.
of the case. “It was,” he said, ‘‘ of the utmost importance, in a
political point of view, and as it affected other countries. Those
who escaped from New South Wales were well calculated to
give a new character to the South Seas and to form dangerous
nests of pirates.” !
Ryder withdrew the latter part of his motion and Romilly
gave notice “that he should on Friday move for leave to bring
in a Bill for repealing 29 Geo, III., relative to the transporting
of convicts ”.?
This drastic step was not taken, but on the 12th February
Romilly moved for the appointment of a Committee on Trans-
portation, and the motion was carried without opposition.*
Mr. George Eden* was named as chairman, and amongst the
members were Sir Samuel Romilly, Robert Peel, and Henry
Goulburn.
The Committee took evidence on thirteen days, extending
over a long period of four months, and finally presented their
report on the roth of July, 1812. The recommendations of the
report have been already referred to, and the scant attention
paid to them by Government commented upon, It is, however,
interesting to see what were the materials at the command of
the Committee. Fourteen witnesses were examined, two of
whom were transportation officers in England who had never
been in the Colony, and one, Captain Flinders the discoverer,
who gave evidence as to the Australian coasts only. Of the
remaining eleven, four were ex-convicts who had but little to
say, two were former Governors, Hunter who had left the Colony
in 1800, and Bligh who had anything but happy recollections
of it. The Rev. Mr. Johnston, another witness who had been
the first chaplain and had been back again in England some
fifteen years, showed that in addition to his long absence from
the Colony, his observations themselves had been to very little
purpose. Two colonists who had come home as witnesses for
Bligh spoke with some intelligence of the condition of affairs in
1810, and Johnston, the leader of the mutiny, who had left the
1 Hansard, vol. xxi., p. 604. 2 Ibid.
’ Hansard, 1812, 12th February, vol. xxi., pp. 761, 762.
4 Son of first Lord Auckland; afterwards succeeded to the title and became
Viceroy of India.
SR Et RT a IT
NEW SOUTH WALES AND PARLIAMENT. 301
Colony in 1808, also gave evidence. The most recent arrival
and the most intelligent witness was Lieutenant Edward Lord
of Van Diemen’s Land, but he had no knowledge of the parent
Colony. The evidence on the whole was very weak. Few
witnesses appeared sure of their facts and fewer still to have
observed with closeness or accuracy the colonial Government
or the condition of the population. Far more valuable was
the small collection of extracts from Macquarie’s despatches
and the letter of Ellis Bent to Lord Liverpool,! and it was on
these that the Committee based the greater part of their report.”
That report was on the whole sanguine. New South Wales
was “in their opinion in a train entirely to answer the ends
proposed by its establishment. It appears latterly to have
attracted a greater share of the attention of Government than
it did for many years after its foundation ; and when the several
beneficial orders lately sent out from this country*® and the
liberal views of the present Governor‘ shall have had time to
operate, the best effects are to be expected. The permission
of distillation and the reforms of the Courts of Justice are two
measures which your Committee above all others recommend
as most necessary to stimulate agricultural industry, and to give
the inhabitants that confidence and legal security which can .
alone render them contented with the Government under which
they are placed.” °
The report was no doubt very unsatisfactory to those who
had promoted the Committee, and for some time New South
Wales was neglected by the Opposition. In 1815, however,
when the Government brought in a Bill for renewing the Trans-
portation Laws, they met with strong opposition, and the Bill
was passed as a temporary measure for one year only.
On this occasion Romilly and the Hon. Henry Grey Bennet
were the most prominent speakers against the Bill. Bennet
had entered Parliament in 1814 as member for Shrewsbury,
1 Quoted in Chapter III. above.
2See P.P., 1812, vol. ii., Appendix. ;
3 The most important was the order for opening the ports. an
4The hearty endorsement by the Committee of Macquarie’s Emancipist
Policy exerted far greater influence on the development of the Colony than any
other part of the report.
5 See conclusion of C. on T.
302 A COLONIAL AUTOCRACY.
and was not returned in the new Parliament in 1821. Strictly he
belonged rather to the Radical left than to the regular Whig
opposition, and he took a prominent position on questions of
prison reform and criminal law. Miss Martineau refers to him
in conjunction with Sir Francis Burdett as a popularity hunter,
and one of those who made ‘‘ frenzied declamations against in-
dividual members of the Government”. This, indeed, appears
to have been his favourite form of debate, and not particularly
liked by some who supported him. ‘‘ Bennet very coarse but
very strong,” Wilberforce records in his diary on one occasion.?
He used to be coached in his Parliamentary business by Francis
Place. “I told Bennet,” he wrote in 1819, “from the first that
I should wear him out, that he would be obliged either to shun
me or lead a dog’s life with his party. He said, ‘ No,’ I said
*“Yes’. Hehasdone so. But next session he will come again,
and as he certainly means well, I shall be pleased to see him.” ®
In these slight criticisms, and in the light of his writing
and speeches, Bennet appears as a rather blusterous Radical
of no remarkable ability, but active, clever, and ready to take
up the cause of those he thought oppressed. The official Whigs,
as Place observed, disliked him; and he rather shocked the
gentle Wilberforce. He was, however, very active in the
cause of New South Wales, and in these years not without in-
fluence in its affairs. When in 1816 the Transportation Act
was about once more to expire, Bennet urged that the Bill to
renew it brought in by the Government should not be rushed
through the House, as had been done in the previous year. He
expressed himself as opposed altogether to the principle of
transportation, and proceeded to the inaccurate and startling
statement, made probably on hearsay evidence only, that the
whole system of management at Botany Bay tended so little to
reform the convicts that “the numbers of executions in that
settlement far exceeded the average of natural deaths’.* In
the second reading Bennet spoke again to much the same effect,
1 Martineau’s History of the Peace, vol. i., p. 149, referring to debate on Habeas
Corpus Suspension, 23rd June, 1818.
* Life of Wilberforce, February, 1818, vol. iv., p. 369.
8 Life of Francis Place, Graham Wallas, p. 178. Place to Hobhouse, 16th
August, 1819.
4 Hansard, vol. xxxiii., p. 595, 16th March, 1816.
NEW SOUTH WALES AND PARLIAMENT. 303
and was answered by Goulburn,' who pointed out the fallacy
of his arguing from the information before the Committee of
1812 (really describing the Colony before 1810) as to the
present conditions. There had, he said, been only six executions
within the last two years.?- Reference was made in the course
of the debate to the fact that the House knew nothing of the
result of the 1812 Committee, and shortly afterwards the de-
patches of Lord Bathurst and Governor Macquarie were laid on
the table in accordance with a request of the House.? No dis-
cussion, however, took place upon them.
In April the Opposition proposed that the Third Secretary
of State for War and the Colonies should be abolished. A
lively debate and a fairly large division in favour of the Govern-
ment resulted, 182 voting for and 100 against them,‘ and
just a year later another similar attempt resulted in another
defeat, the division showing Ig0 votes to 87.5. In the course of
both debates New South Wales was proclaimed by the Opposi-
tion as belonging by logic and convenience alike to the Home
Office as part of the prison-system of the country. It was true
that the Home Office had much to do with its administration in
regard to the number and class of convicts sent thither, but the
penal character of the Colony was yearly becoming less prominent,
and this change was marked by an event in 1817. Bennet
presented a petition, on the roth of March, from free British sub-
jects in New South Wales.® It was the document brought to
England by Vale, and exaggerated and possibly false though it
‘was, it was the cry not of convicts but of free settlers oppressed
by the weight of an autocratic Government. Lord Castlereagh
“took occasion to observe that he rose only at present to say a
few words for the purpose of guarding the reputation of the
gallant officer (General Macquarie) from being prejudiced in
any way. . . . He had filled the office of Governor many years ;
he had been brought under his (Lord Castlereagh’s) notice, when
1 Hansard, vol. xxxiii., p. 990, 5th April, 1816.
2See Hansard, above. The number of executions between 1816 and 1820
was sixty-nine. See Appendix to Bigge’s Reports, R.O., MS.
3 House of Commons F¥ournal, 11th April, 1816.
4 Hansard, vol. xxxiii., p. 922, 3rd April, 1816.
5 Tbid., vol. xxxvi., p. 82, 29th April, 1817.
6 Tbid., vol. xxxv., pp. 920-921, roth March, 1817.
304 A COLONIAL AUTOCRACY.
at the head of the colonial department, solely by his personal
merit, and he believed had fulfilled the sanguine expectations.
which were formed of his competency for the discharge of all
the duties belonging to that arduous and distant station. Mr.
Bennet entirely agreed in the high character of General Mac-
quarie.”* Amid this general atmosphere of compliment to
Macquarie the petition was read and no further proceedings
taken upon it.
But the Government, while loyally supporting their officer
in Parliament, were somewhat disturbed by reports from the
Colony. The affairs of Vale and Moore, the condition of the
female convicts as they learned of it in Bayly’s letter to Sir
Henry Bunbury, the strained relations between Governor and
free settlers created a sense of strong misgiving. Meanwhile in
England the number of crimes to which the punishment of
transportation was affixed was rapidly increasing. On 23rd
April, 1817, Lord Bathurst proposed to Lord Sidmouth that
they should send a Commission of Inquiry to New South
Wales. The important question was whether New South
Wales was still a suitable place for a penal settlement. ‘‘So
long,” he wrote, “as the Colony was principally inhabited by
convicts and but little advanced in cultivation, the strictness of
police regulations and the constant labour, under due restric-
tions, to which it was then possible to subject the convicts,
rendered transportation, as a punishment, an object of the
greatest apprehension to those who looked upon strict discipline
and regular labour as the most severe and least tolerable of
evils”.?
The conditions were changed, and he proposed “to recom-
mend to His Royal Highness the Prince Regent the appoint-
ment of Commissioners to proceed to those settlements, with
power to investigate all the complaints, which have latterly been
made, both in respect to the treatment of the convicts and the
general administration of the Government ”.*
Lord Sidmouth at once consented,* and in the course of the
_ next two years sought for a suitable person or persons with
?'S.G., gth August, 1817, quoting from Courier, 11th March, 1817.
2 Letter, printed in P.P., XIV., 1823. 3 Tbid.
4Sidmouth to B., 25th April, 1817. R.O., MS.
n=’ st anFnesc & FS kf ft. <=
|, ja — rn — ol hed
NEW SOUTH WALES AND PARLIAMENT. 305
whom to entrust these difficult and important investigations,
Finally it was decided to send one Commissioner only, and
Mr. J. T. Bigge accepted the post with a salary of £3,000 a
year. He had held judicial offices in Trinidad, and was a high-
minded, conscientious, intelligent man, well fitted for his post.
With him as Secretary with a reversion to the Commissioner-
ship went Mr. Thomas Hobbes Scott, but whether or no he
played any important part in preparing the reports it is quite
impossible to say.
Bigge’s commission was dated 6th January, 1819, but he
did not sail until April, and his appointment was spoken of in
the House of Commons as about to be made as late as March,
1819.
The year was an important one for the Colony. Bennet
published his letter to Lord Sidmouth, in which he described
the settlement as he knew it from the reports of Marsden, Vale
and J. H. Bent, and W. C. Wentworth, the eldest son of
D’Arcy Wentworth, published the first edition of his descrip-
tion of New South Wales, which contained some information
of the agricultural condition of the Colony and an enthusiastic
account of its capabilities, and put very strongly in Wentworth’s
rather perfervid style the need for jury trial and a legislative
council! It took the place of a history of New South Wales
up to 1812 written by a Mr. O’Hara, who had, however, no first-
hand knowledge of the Colony.’ Still the interest in New
South Wales was keen, for the book published in 1812 went
into a second edition in 1818. The three books were criticised
in the Edinburgh Review of July, 1819, by Sydney Smith with
his usual colonial pessimism, and he accepted much more
readily the denunciations of Bennet than the hopeful patriot-
ism of W. C. Wentworth.
“Thus much,” he concluded, “for Botany Bay. Asa mere
Colony it is too distant and too expensive; and, in future, will
involve us of course in many of those just and necessary wars
which deprive Englishmen so rapidly of their comforts, and
1 This book went through a second edition, and in a much enlarged form into
a third edition in 1824. This last contained a long account of Macquarie’s
government and a violent attack on Marsden.
2 History of New South Wales.
20
306 A COLONIAL AUTOCRACY.
make England scarcely worth living in. . .. One of the
principal reasons for peopling Botany Bay at all, was, that it
would be an admirable receptacle and a school of reform for
our convicts. It turns out that for the first half century it will
make them worse than they were before. . . .”!
Bennet was active in Parliament as well as without. On
the 18th February, 1819, he moved the appointment of another
Committee to inquire into the effects of Transportation to New
South Wales. His speech was the most comprehensive and im-
portant which had as yet been delivered in England upon the
affairs of the Colony, and showed both in its weakness and its
strength the difficulties under which any unofficial inquirer
then laboured in gaining a knowledge of so remote a country.”
Having dealt first with the condition of the hulks and the
effects of imprisonment upon them (matters which he under-
stood from personal observation) and the mode of transporting
the convicts to New South Wales, he turned to a description of
the colonial Government.
“ The Governor of this Colony,” he said, “ assumed to settle
the price of all labour and also of all provisions ; and the orders
upon this subject were issued by the Governor himself without
referring to the opinion of any council ; an extraordinary stretch
of power. ...” t
He proceeded : ‘“‘ the Governor had the power of opening and
shutting the public stores and the ports of the island® at his
own pleasure”. The consequences of this and,of the sudden re-
duction in the price of meat he described much as Riley de-
scribed them later in his Evidence before the Committee on
Gaols.
Turning to the Colonial Judiciary he said, ‘‘ The Committee.
of 1812 had recommended the introduction of trial by jury into
this Colony. . . . He would not say at present that juries ought
to be introduced into New South Wales; but he thought it
most inexpedient that the question should be determined in
consequence of any sort of communication made at the office
of the Secretary of State. He wished to hear the opinion of
1 Edinburgh Review, July, 1819, vol. xxxii., pp. 23-47-
2 See Hansard, vol. xxxix., pp. 464-478, 18th February, 1819.
3«* Island ”’ is a very remarkable description of New South Wales.
NEW SOUTH WALES AND PARLIAMENT. 307
those who advocated and those who objected to such a measure
stated openly, and to let Parliament judge with respect to the
wisdom of adopting the recommendation he now alluded to.”
In reference to the appointment of magistrates he was rather
confused. He referred to the appointment of Lord and Johnson
{probably a reporter’s error for Thompson) as the appointment
of the convict attorneys, adding that the appointments “ were im-
proper, and that it was the duty of the noble lord at the head
of the colonial department to reprimand the Governor for so
gross an outrage on property and justice ”.
Coming to the power of the Governor to inflict punishments
he trod on firmer ground, “Governor Macquarie had thought
fit, of his own free will, to cause three free settlers} to be flogged
for what was called a contravention of the orders of the
Governor in going through a hole in a wall into what the
Governor called his park. . . . He understood indeed that the
person in question? intended to institute a prosecution against
the Governor on his return home, but that was no reason why
the House should shut its eyes to the transaction. .. . Had
the Governor had the good fortune to have a council, this and
many other transactions of a like nature would never have oc-
curred. Governor Macquarie might be unwilling to receive
such a council, but why Lord Bathurst should put 20,000 persons
and their properties under the unlimited control of one individual
without any council to advise him, he was altogether at a loss
to conceive.”
The state of morals, the neglect of the female convicts, the
number and unsuitable character of the licensed publicans, the
giving of tickets-of-leave to persons “‘ who had come out with
their pockets filled by the crimes which they had committed in
England,” were all touched upon.
“The subject of the taxes levied in this Colony,” he went
on, “was also well worthy of attention.” The Governor had
levied taxes on commodities and there appeared to be nothing
to prevent them from going further and levying a property tax;
yet as New South Wales was not a conquered Colony, there
1 Only one was a free settler. See before, Chapter IX.
24.¢., Blake.
308 A COLONIAL AUTOCRACY,
was no power but Parliament which could legally raise money
within it.
“Were we to plant a Colony on the other side of the globe
and to take no care as to the manner in which it was . . . ad-
ministered? He had no hesitation in saying, that if the settle-
ment were well governed and its resources wisely drawn forth,
it might be made, instead of a seat of immorality and a nursery
of vice, a source of great profit to the country.”
Wilberforce, who supported the motion, dealt rather hardly
with the faults of Macquarie’s government and the failure to
reform the convicts.
Goulburn opposed the motion on reasonable grounds. “If,
. . . the report of 1812 was meagre,” he asked, “ why was it so?
It was because the committee had to investigate at a distance
of thousands of miles from the subject of their investigation.
. . . In 1812 they could only procure information to 1810, and
in 1819 the proposed committee could only gain a knowledge
of the transactions of 1817. . . .”!
Lord Castlereagh pointed out that there was no need of a
Committee, for “before the honourable gentleman gave notice
of the present motion, his noble friend at the head of the colonial
department had instituted a Commission and had obtained the
consent of an individual . . . to go out to the Colony and
make a detailed inquiry on the spot, for the purpose of ascer-
taining whether the Colony could be made more auxiliary (szc)
to the administration of justice in this country, and how far its
moral and religious improvements might be promoted.” The
motion was lost.?
Then suddenly the Government made a volte face ap-
parently without further solicitation. On the 1st March, twelve
days after Bennet’s motion, Lord Castlereagh proposed the
appointment of a Committee to inquire into Gaols, Prisons and
Transportation. He made clear what were the Government's
feelings towards New South Wales.*
“It would,” he said, “be necessary to inquire if Botany Bay,
as it had lately and as it still existed, had not a character more
? Communications had so much improved that information of as late a date.
as half-way through 1818 might have been received.
2 See Hansard, vol. xxxix., 18th February, 1819.
®rst March, 1819, p. 742.
NEW SOUTH WALES AND PARLIAMENT. 309
colonial than belonged to a place appropriated to the punish-
ment of offenders.” He passed on to a queer piece of philo-
sophy. “It would be necessary to inquire whether the period
had not arrived when it might be relieved from being the resort
of such characters as had hitherto been sent to it, and might be
permitted without interruption to follow the general law of
nature by a more rapid approximation to that state of prosperity
to which, it was to be hoped, every part of the world was
destined to arrive.” He finally stated that the Government
“had it in contemplation to propose some place nearer home
to which convicts might be transported ” at a more moderate
cost.
The Committee was an important one, including Castlereagh
and Canning, and Sir James Mackintosh, Fowell Buxton,
Bennet, Brougham and Wilberforce, amongst its members.
But the affairs of the Colony remained still before the House.
On the 12th March, Wilberforce notes in his diary that Brougham
had consented to present the New South Wales petition,’ and
on the 23rd he did so. The petition was signed by Blake and
Williams, the former one of the men who had been flogged by
the Governor’s orders, the latter a man who had been dismissed
from the Government printing-office by Macquarie’s direction
because he had signed the petition of Vale. The document had
been prepared by J. H. Bent and contained much extraneous
matter which it was doubtful whether Blake had known about
or wished to have included. It was even doubtful whether it
had been read over to him before he had placed his mark upon
it.2 These facts were not, however, known when Brougham,
in a temperate speech, presented the petition.
“With respect to the conduct of Governor Macquarie, he
should say, that if culpable, he was disposed to consider such
conduct rather as a fault of the system than of the man... .*
The Colony in question was extremely important, and might
very soon be the most so of all our foreign Colonies. This was
the very time for inquiry, when its Governor seemed to be
entering upon a wrong course and might therefore be the more
1 See Life of Wilberforce, 1848, vol. v., p. 15.
2 See Evidence of J. H. Bent, C. on G., 1819.
3 See Hansard, vol. xxxix., p. 1124, 23rd March, 1819.
310 A COLONIAL AUTOCRACY.
easily set right. He thought that any charges which could
justify a parliamentary inquiry into his conduct would also
justify his recall. His Majesty’s subjects in that distant Colony
had an indefeasible and, till now, an unquestioned right to ask
Parliament to redress their wrongs. It might be urged that
the individual of whom they complained was absent; that was
his misfortune ; unless, against that misfortune, he chose to set
off his being Governor of the settlement. While he continued
to exercise his functions as Governor the petitioners could not
enter actions against him; if he quitted the Government, but
did not come home, they were still incapacitated from bringing
their actions against him, because no process could be served
upon him.” }
In the discussion that followed, Forbes, a friend of Mac-
quarie’s, defended him with an inaccuracy which is worthy of note.”
“Governor Macquarie,” he said, “resolved to allow indi-
viduals who had been hitherto excluded to practise, and in the
exercise of his authority ordered the judge to receive them as
barristers and solicitors accordingly. This measure was after-
wards communicated to His Majesty’s Government and re-
ceived zts approbation.”
Wilberforce urged inquiry, saying “. . . with all his respect
for Governor Macquarie, he would confess that he should
think him something more than human if, vested with almost
uncontrolled authority, his conduct had not been in some degree
affected by that circumstance. It commonly had the dangerous
effect of shutting up, or of corrupting, the channels of informa-
tion to him who was so unhappy as to possess it... . He was
anxious for inquiry also on this additional ground, that Gover-
nor Macquarie might be made acquainted with all that was
known in this country.”* Goulburn, who spoke for the Govern-
ment, promised inquiry into Williams’ case (which was indeed
made by Bigge with the result that his right to a grievance was
proved) and touched lightly on Blake’s affair, but his defence of
this was very weak.* One other matter of importance had been
raised by the petitioners and commented upon by Brougham
—the action of the Governor in raising £24,000 a year by
1See Hansard, vol. xxxix., p. 1127, 23rd March, 1819.
2 Tbid., p. 1129. 3 Tbid., p. 1133- 4 Ibid., p. 1134-1137.
NEW SOUTH WALES AND PARLIAMENT. 311
taxes without being warranted by his commission to do so—
€ven supposing such a power could have been legally granted
to him by the King. The position was at the moment rather
peculiar. Shortly before, the Colonial Office had received a
despatch from Macquarie conveying important news.
“ , .. I have to observe,” he wrote, “that a serious and
weighty difficulty has been started by our present Judge of the
Supreme Court in regard to the legality (of the colonial duties)
. which until obviated by some measure from Home will
necessarily tend to render the raising of a revenue in this
country, by the present mode, at once precarious and dangerous,
A letter from Mr. Justice Field . . . on this subject being in
my mind very full and clear, although I cannot altogether
accede to the expediency or even propriety of our Law Courts
acting thereon at this time, I do myself the honour to transmit
your Lordship a copy of it... .”
The Judge’s letter (dated 23rd February, 1818) had been
called forth by the Governor’s intention “to institute several
suits in the Supreme Court for the recovery of customs duties”,
On considering the question, Field decided that as he could not
“cherish the least doubt that we must (and as I understand
that we soon shall) have an Act of Parliament for the purpose
of legalising those duties which your Excellency had thought it
expedient to impose, may I be forgiven if an anxiety to prevent
the public discussion of a question, in which I might perhaps be
forced to give an official opinion against the present legality of
such duties, induces me to request your Excellency to instruct
the solicitor for the Crown to forbear to proceed in the suits in
question for the present.
“T am informed that the payment of these duties has never
yet been attempted to be legally enforced in the Colony, and
that your Excellency is so satisfied that there ought to be an Act
of Parliament for them, that you have hitherto only reported
defaulters home, and not felt yourself justified in arresting their
flight from the Colony. I have not the least doubt that the
1D, 3, 15th May, 1818. R.O., MS. < ‘ :
2 The only case on which there is any evidence is that of Blaxcell, and in
that instance Macquarie did his best to prevent his escape. There is nothing in
Macquarie’s despatches which suggests that he took the views here attributed to
him by Field.
312 A COLONIAL AUTOCRACY.
only reason why your Excellency has not yet been armed with
such an Act of Parliament is that his Majesty’s Government are
not sufficiently aware of the great amount of the duties, or of the
rising importance of the Colony”.
Macquarie somewhat reluctantly did as Field advised. Field
wrote himself to Goulburn on the same subject in November,
saying, “If the Act of Parliament alluded to be not already
passed, I am sure that the Earl Bathurst will see the necessity
of anearly consideration of the subject, since our duties are now
so high that the practice of smuggling is already begun, and it
is not to be wished that such a community as this should know
that the law is impotent to enforce the payment of those duties.” ?
Apparently it had come before them in another way also,
for Goulburn now explained, 23rd March, 1819, that “of late
several persons had refused to pay, and their representations
brought the matter for the first time under the notice of Govern-
ment”. It had not previously been thought of because when he
came into office the duties were already in existence. The case
was referred to the Crown Law Officers and their opinion was
that it was illegal. The opinion was given on the 9th March,
and the Government intended to bring in a Bill on the subject.”
However, the Government were willing to wait until the
Commissioner had been to New South Wales before making
any further changes. After a speech from Bennet * in which
he made the totally inaccurate statement that the “single differ-
ence” between the power of punishing criminal offences in New
South Wales and in England was that in the former “trial by
jury was not necessary if the alleged crime were committed by
a convict,” the discussion on the petition came to an end. It had,
however, the result of hastening the investigations by the Com-
mittee on Gaols, and a few days later Bennet informed the
House that the Committee had decided to enter immediately
upon the subject.*
They began forthwith to take evidence, and on 7th April
1 Field to Goulburn, 13th November, 1818. He drew attention to another
matter which was also taken up by Bigge later, namely, the fact that the Act
27 Geo. III., c. 2, related only to the Criminal Court, that the Civil Charter of
Justice was not based on any Act of Parliament.
? Hansard, vol. xxxix., 23rd March, 1819, p. 1136. 3 Tbid., p. 1137.
4 Ibid., p. 1168, 26th March, 1819.
NEW SOUTH WALES AND PARLIAMENT. 313
Bennet, on the strength of the important evidence before them,
and the proofs they had of the terrible conditions under which
the female convicts lived in the Colony, proposed to the House,
by means of an address to the Regent, to delay the sailing of a
vessel] with female convicts until the Report of the Committee
had been made. “Never wasa clearer case,” wrote Wilberforce.
“T seconded it in order to soften, and to induce them to stop the
ship by stating that its being thought that some remedy might
be devised for the evils of the middle passage and of New South
‘Wales was a reason sufficient. Greatly beat, alas!” !
The Committee went on gathering evidence, and meanwhile
the Government brought in their Bill for legalising duties in New
South Wales and also indemnifying the Governor for having
previously levied them. But in this form it was strenuously
opposed, especially by Bennet, and the indemnity clauses had
to be dropped. Bennet “thought it strange that in the last
week of the session the Hon. Gentleman should call on the
house, not only to legalise the duties but to indemnify the
person who had unwarrantably imposed them. Governor
Macquarie was not here, nor likely to be here for some time,
_ and therefore such an Act could not be necessary at present.
There could be no need for the Bill before the next session of
Parliament, when the Governor might be in this country, when
he might be examined on the subject, and when circumstances
might be brought to light either to criminate or exculpate him.
He complained of the taxes imposed by Governor Macquarie
as most injudicious and ruinous, being twice as high on exports
as on imports, and that the moment these things were made
known to the public the Hon. Gentleman came down to the
house to propose the continuance of the taxes and the indemni-
fication of the Governor. Among other duties he stated that a
poll-tax was levied on every person who left the Colony, and
that it was not applied to the payment of the naval officer or to
any other public service but went into the pocket of Governor
Macquarie’s secretary. Upon the whole, when he looked to
the circumstances of the Governor’s case, and considered that
Parliament would meet in time to adopt any measure that
1 Hansard, vol. xxxix., p. 1434-1441, 7th April, 1819, and Life of Wilberforce,
“vol. v., p. 16.
314 A COLONIAL AUTOCRACY.
might be necessary, he for one could not give his consent to
this Bill at present, and he should therefore propose the entire
omission of the first clause.”!
This opposition was unreasonable, for the Government had
not stated their intention of bringing in a Bill before any evidence
had been heard at all. But a misconception had roused Bennet’s
suspicions. Jones,a Sydney merchant, in giving evidence before
the Committee had referred to the meeting of magistrates at.
which it was proposed that an increase in the customs duties.
should be made in order to provide for the poor. It has already
been seen that Macquarie adopted the proposed increase but
did not appropriate the taxes to these purposes. Jones * ap-
peared in his evidence to treat this as an unjustifiable breach of
faith if not an illegal act—and this wholly erroneous impression
had been adopted by Bennet. The Bill as finally passed.
legalised for one year the duties then in force in New South
Wales, empowered the Governor to levy a duty on spirits.
manufactured in the Colony whenever a distillery should be
established, and declared that no action might be brought
against the Governor for recovering duties exacted in the past
within one year from the passing of the Act.* A similar statute
was placed on the roll in the following year, and thus the
Governor was for the time being effectually enough protected.
But the form which the Bill took prevented the Government
from recovering unpaid duties and realising the securities which.
they held:'
The Committee took evidence on twelve days between March
and July. The most important witness was Alexander Riley,
who was examined on nine days, and whose evidence has been
so frequently quoted already. It was and is indeed more valu-
able than the evidence of any one man in the voluminous notes.
collected by Bigge, and it ranged over the whole field—social,
economic and political—of colonial activities. J. H. Bent gave
rather confused evidence on the subject of Blake and his own
quarrels with Macquarie; and Jones, Riley’s partner, gave in-
formation on matters of general concern. John Macarthur,
1See Times, 3rd July, 1819. 2See Chapter IX.
® See Evidence, C. on G. 459 Geo. III., cap. 114. 5 See Chapter V..
NEW SOUTH WALES AND PARLIAMENT. 315
junior (a son of the more famous colonist), a young barrister,
described the wool trade, and several officers of the Transport,
or, as it was then called, the Navy Board, explained the arrange-
ments of the voyage.
Anxious to present this important body of information be-
fore the end of the session, the Committee made practically no
report, simply laying the minutes of evidence before the House
on the 11th July, 1819.
Partly no doubt from this fact, and partly because the more
important work of Bigge would soon be completed, the work of
the Committee was neglected; and in 1820 Bennet published
in the form of a letter to Lord Bathurst, a short resumé of the
evidence.!
“T have,” he wrote, “no cause to complain of the Prison
Committee ; on the contrary, I found in it a great willingness
to hear all the evidence I had to offer, written as well as oral ;
and though, in some few instances, I think, evidence was ex-
cluded which before a House of Commons’ Committee might
have been reasonably admitted, yet the general object of
all concerned seemed to be a fair, candid and impartial in-
, qairy....”?
Bennet admitted that to wait the return of Bigge was natural,
but he thought some steps should be taken by the Government
at once. These were the restriction of the number of convicts
transported, the provision of civil and criminal courts, the pledge
of granting jury trial in the near future, and the establishment
at once of a council for the Governor.
“What is to become of the settlement? Is it to bea gaol or
a Colony ?—if a gaol you must bring back again to Europe all
the free settlers—if a Colony, in order to maintain those who
are already there in a flourishing condition, as well as to induce
persons of character and property to settle within its territories,
a rational, limited, legal Government must be established.
Martial law * may be a fit mode of Government for felon con-
1 See Report, etc., of C. on G., 1819. ;
2 The written evidence was in some cases very wrongly admitted. See, ¢.g.,
some letters by J. H. Bent. Those, however, came from the Colonial Office. —
It is perhaps worth while to point out that the term “ martial ” is quite in-
accurate. It was military not “ martial”.
316 A COLONIAL AUTOCRACY.
victs; but free settlers will be ruled by nothing short of a system
of civil liberty. It would be idle to construct a constitution
beyond the wants of the people who are to be benefited by it,
or beyond their capability of enjoying it. Thus a representative
Government in New South Wales would at present be a wild
and futile scheme. But the protection of an authority, limited
and regulated by law, they have a right to demand; and if
English statesmen do not bestow it, other means will assuredly
be taken by which it will be obtained.’ This theme he re-
turned to later in the pamphlet, saying :—
“T cannot refrain again here (from) entreating your Lord-
ship to reconsider the opinion you have given on the propriety
of continuing the Governor of New South Wales in his present
authority unchecked and uncontrouled except by the Colonial
Office at home; which . . . is fourteen thousand miles distant.
The recommendation of the Committee in 1812 ought to have
carried some weight in influencing your opinion; but the events
of the Colony since that period demonstrate the necessity of
that measure. A consistent and intelligent administration of
the affairs of the Colony is of primary importance . . . which
cannot be obtained under the present vicious establishment, and
which is essential to the wellbeing of the settlement.”
The actual reforms suggested by Bennet were moderate
enough, and indeed were very similar to the final recommenda-
tions of Bigge himself.
The commission with which Bigge was invested gave him
power “to examine into all the Laws, Regulations and Usages
of the settlements! . . . and into every other matter or thing
in any way connected with administration of the Civil Govern-
ment, the Superintendence and Reform of the Convicts, the state
of the Judicial, Civil and Ecclesiastical Establishments, Revenues,
Trade and internal resources thereof, and to report to us the in-
formation which you shall collect, together with your opinion
thereupon ”.?
In order that he might take evidence on oath, Macquarie was
to make him a magistrate of the territory.*
But more important than his commission were the instruc-
1 Van Diemen's Land as well as New South Wales.
2See C.O., 5th January, 1819. MS. 3 Tbid.
NEW SOUTH WALES AND PARLIAMENT. 317
tions? which gave in full detail the objects of his inquiry. He
was first to direct his attention to ascertaining “what altera-
tion in the existing system of the Colony can render it available
to the purpose of its original institution, and adequate for its
more extended application. With a view to this you will ex-
amine how far it may be possible to enforce, in the Colonies
already established, a system of general discipline, constant work,
and vigilant superintendence; the latter must necessarily be
understood to comprise complete separation from the mass of
the population, and more or less of personal confinement, ac-
cording to the magnitude of the offence. . . . Should it appear
to you, as I have too much reason to apprehend will be the
result, that the present settlements are not capable of undergo-
ing any efficient change, the next object will be the expediency
of gradually abandoning them altogether as receptacles for
convicts; and forming on other parts of the coasts, or in the
interior of the country, distinct establishments for the reception
and proper employment of the convicts, who may hereafter be
sent out.”
In such a case the annual charge must be carefully inquired
into, “in order to enable His Majesty’s Government to decide
whether it is advisable to continue or to alter or to abandon the
system which for near forty years has been pursued. . . .”
Lord Bathurst concluded with a vigorous description of
transportation as it should be and as it had become “.. . you
will in the whole course of your inquiries constantly bear in
mind that transportation to New South Wales is intended as a
severe punishment, applied to various crimes, and as such must
be rendered an object of real terror to all classes of the com-
munity.” This it had ceased to be. “For mere expatriation
is not in these days an object of considerable terror. The in-
tercourse which it breaks is readily re-established ; and the
mystery which used to hang over the tale of those condemned
to it can never long exist. . . . If, therefore, by ill-considered
compassion for the convicts, or from what might, under other
circumstances, be considered a laudable desire to lessen their
sufferings, their situation in New South Wales be divested of all
1P,P., XIV., 1823. Instructions to Bigge, 6th January, 1819.
318 A COLONIAL AUTOCRACY.
salutary terror, transportation cannot operate as an effectual ex-
ample on the community at large, and as a proper punishment
for those crimes against the commission of which His Majesty’s
subjects have a right to claim protection, nor as an adequate
commutation for the utmost rigour of the law.”
There had been a change, Lord Bathurst pointed out, from
the time when convicts sought to have the sentence of transporta-
tion commuted “even for the utmost rigour of the law,” to the
present when men convicted of slight offences sought the punish-
ment of transportation which was the penalty of greater crimes.
Altogether the conditions of the Colony had altered. The free
settlers had increased, many convicts had become settled on
the land, population and wealth had become great. The grow-
ing number of convicts transported made it more difficult than
in earlier years to enforce discipline; the problem of housing
them had become formidable. Judging by the information
before him in Macquarie’s despatches, it appeared to Lord
Bathurst that this increase of numbers had made it necessary
to distribute greater numbers amongst the settlers, and that
under this system it had also been necessary to give the con-
victs “greater freedom than is consistent with the ends in view
in transporting them,” an impression curiously at variance with
the facts of the case as Bigge afterwards saw them.}
While the primary object of his inquiry was to study the
convict establishment, Bigge was also required to report ‘‘ upon
a variety of topics, which have more or less reference to the
advancement of those settlements as Colonies of the British
Empire”.
The special subjects were the judicial establishment, the
social conditions, educational and religious, the economic con-
ditions, commercial and agricultural.
As to the first, he had to consider whether Van Diemen’s
Land should have a separate judicature and whether the changes
made by the charter of 1814 were still adequate for the judicial
needs of the Colony. Finally was there any necessity to
1See Chapter V. The Government discipline was much slacker than that of
the settlers.
2P.P., XIV., 1823. Instructions to Bigge, second letter, 6th January, 1819.
NEW SOUTH WALES AND PARLIAMENT. 319
continue the specially severe police regulations which had been
required to control the convict population ?
As to the Colony’s trade, “it will . . . be for you to report
to me whether the market may not be freed either gradually or
all at once from such restrictions, whether the competition of
traders will not here as elsewhere produce the most beneficial
effects, and whether the Government stores may not be supplied
{as in other Colonies) by public tender, with equal advantage
both to the public and to the individual cultivator”. “There is
one other point also,” Lord Bathurst added, “which I cannot
avoid recommending to your consideration, though I fear there
is not much prospect of your being able to reconcile that differ-
ence of opinion which has prevailed in the Colony. I allude to
the propriety of admitting into society persons who originally
came to the settlement as convicts. The opinion entertained
by the Governor, and sanctioned by the Prince Regent, has
certainly been, with some few exceptions, in favour of their re-
ception at the expiration of their several sentences, upon terms
of perfect equality with the free settlers.” Lord Bathurst felt,
however, that as the measures taken in this direction had cer-
- tainly roused hostility in the Colony, it was important to inquire
fully into the merits of the system.
The task entrusted to Bigge was indeed a heavy one, and
his inquiries! kept him in the Colony for over a year. Four
months of the time he devoted to Van Diemen’s Land, and the
remainder he spent in exploring New South Wales and collecting
an invaluable mass of documents and evidence. He returned
to England on 3rd July, 1821, and within a year the Colonial
Office was put in possession of his first report, though it was
not until 1823 that this was followed by the second and third.
The reports were exceedingly voluminous, containing many
detailed accounts of what now seem trivial events. The cause,
however, of their extreme length and minuteness was due to
two facts, one that the Colonial Office were anxious for full reports
on many disputes which had been communicated to them by in-
terested parties only, and the other that it was deemed inadvis-
able to print the minutes of evidence on which Bigge’s conclusions
1 For exact titles of the reports, see Appendix,
320 A COLONIAL AUTOCRACY.
were based. The reasons for this were not far to seek. Many
individuals in the Colony had given information to the Com-
missioner which they did not wish their neighbours to peruse.
All the quarrels and petty disagreements which were probably
unavoidable in such a remote and curious settlement as that
of New South Wales might have been roused afresh by the
publication of all the correspondence and evidence, and to pub-
lish a selection only was thought unwise.! The most important
witnesses also were as a rule those who most desired their evid-
ence to be treated as confidential. Even as it was Bigge was
forced to insert in his third report a virtual apology for the
references to W. C. Wentworth’s “ Pipe” on Molle which he
had made in the first report.2, On the whole, however, his work is
a monument of official discretion; though a glance at the un-
published evidence shows that to make it so must have been a
matter of no small difficulty.
As the main object of his mission had been to consider the
fitness of New South Wales for a penal station, Bigge’s first
Report dealt almost entirely with the subject of the convicts and
“their treatment, character and habits”. Already his description
of their actual conditions has been many times quoted, and in
this place it is more important to consider his recommendations
for their future treatment. In this respect the most striking
note of his report is its absolutely conservative character.
Whether or no the Government had been sincere in their sug-
gestion of bringing transportation to New South Wales to an
end, such a project never seems in Bigge’s mind to have come
within the sphere of practical politics. This was not because
he approved of the system enforced by Macquarie, but rather
because he did approve the system advocated by the land-owning
agriculturalists, and because he saw quite clearly that New South
Wales might, with profit to the mother country and to at least
a portion of her inhabitants, be turned into a great wool-producing
country under one of the simplest systems of capitalist pro-
duction ever established. This project was foreshadowed in
1See letter from Bigge to Lord Bathurst, 5th May, 1822. R.O., MS.
2See end of Report III. See Correspondence of Bigge with C.O., 1823.
R.O., MS. Wentworth appears to have threatened him with legal proceedings
though without denying in so many words that Bigge’s statement was true.
. ae — ee” a” ee ee ee — od
— 7
ee ee el ee eee ee ey ee © eee ee
NEW SOUTH WALES AND PARLIAMENT. 321
his first and clearly outlined in his third report. The faults of
the Government service were in his opinion that it kept the
convicts gathered in large numbers in the towns where discipline
was difficult to enforce and where the object of their reform
was lost sight of, and also where they were put to work on
ornamental and often unnecessary public buildings, at great
expense to the Crown and with little advantage to the Colony.
Nor could he see by what means an efficient scheme of over-
‘seeing could be established and the convict overseers done away
with. He considered the employment of the prisoners im
agricultural and pastora] pursuits as more conducive to their
reform than their employment on town buildings, but he was
not satisfied that the Government could carry on farming or
grazing with advantage. The exact reason why he was averse
to such a scheme is not clear, but probably lay in the fact that he
wished primarily to forward the cause of the sheep farmer and
to make the convict labour subservient to that purpose. Thus
he came to the conclusion that all convicts should be distributed
to the fullest possible extent amongst the settlers, and that those
who remained over from the distribution should be dealt with
in the following ways. Some would be placed in gangs for the
purpose of clearing away the virgin forest; others for making
roads; and the old men and boys only be left in Sydney.
Further he proposed that three new settlements (Moreton Bay,
Port Bowen and Port Curtis) should be founded and used rather
as punishment stations for the prisoners, Newcastle being aban-
doned, so far as that purpose was concerned, as being too easily
accessible to the rest of the settlement. One notable recom-
mendation was to the effect that the whole number of mechanics
should be assigned to settlers, though each settler taking a
useful tradesman was to take also one or two inferior workmen,
The degrading communication of settlers and ex-convict super-
intendent should, he thought, be brought to an end, and the
assignment of servants become one of the duties of the Colonial
Secretary.!
1 Major F. Goulburn arrived in the Colony as Colonial Secretary in 1821,
taking the place, under a higher title, of Campbell, who had become Provost-
Marshal in 1819, though he continued until Goulburn’s arrival to act as Secretary
to the Governor.
2I
322 A COLONIAL AUTOCRACY.
Bigge’s criticism of convict discipline has been set forth
already in Chapter V. It is unsatisfactory to find that beyond
proposing that the magistrates should have the power of trans-
porting offenders to other parts of the Colony for periods which
might exceed their original sentences, he could offer no import-
ant change in what he felt to be an inefficient system. He
hoped for great improvements, however, from the dispersion
of the prisoners, the cessation of their wages, and a stricter
regulation of remissions of sentence, including a complete
prohibition of giving tickets-of-leave to new arrivals.
The great difficulty of the settlement’s future, he thought,
lay in the lack of demand for the produce of the convicts’ labour.
It was with the view of increasing this that he advocated
encouragement for the export of wood, mimosa bark (for tan-
ning), and wool, by a decrease in the duties levied in England
on these productions. It was also with this view that he sup-
ported the establishment of distilleries.1
Putting aside for the moment the second report dealing
with the judicial establishment, it is well to pass on to the third,
which dealt with the trade and agriculture of the Colony and
with all subsidiary features. The whole tendency of that report
was to favour the aggregation of large areas under private
ownership; to make it easy for the capitalist to procure land,
and thus, with the convict labour, develop the wool export of
the country. It was practically a repudiation of the policy so
long attempted by the Home Government of establishing a
régime of small proprietors. Bigge looked for the prosperity
of the Colony to capitalist farmers with large estates, cultivated
by forced labour, or to proprietary companies holding sway
over immense tracts where great herds of sheep would be
guarded by lonely convict shepherds. He looked with a cold
and unfeeling eye upon the Colony’s attempt to start manufac-
tures, regarding them as of doubtful value to New South Wales,
and as directly injurious to the mother country. At the same
time he desired greatly to foster the South Sea trade, not only
for the profit it might bring, but also to give an outlet for the
1 These proposals were carried out by 3 Geo. IV., c. 96. Duty on New
South Wales wool for ten years was to be rd. per lb., extract of bark for tanning
to be allowed in duty free, and timber also duty free.
NEW SOUTH WALES AND PARLIAMENT. 323
adventurous sons of the new.country. In fine, minor trading
ventures were to be allowed a chance of existence, and men
with small capital to be given land though with a sparing hand.
But to the wealthy land and labour were to be dispensed
liberally, with two chief objects in view—one to encourage
emigrants who might relieve the Government of the charge
of the convicts, and the other to provide England with an
important raw material.
The main recommendations of the second report have been
already discussed. The chief subject of judicial interest was
that of juries, and the decision of Bigge was for delay. The
Criminal Court, with some modifications, he thought might still
be sufficient, and he followed the counsel of Mr. Justice Field
in proposing a judicial establishment with one judge only for
both Civil and Criminal Courts. The office of Judge-Advocate,
however, was to be done away with and an Attorney-General
to take his place as Crown Prosecutor. One abuse, the part
payment of the salary of the chief judge by fees of his court,
was also to be abolished. It was an abuse to which the high
fees of the court had given an unpleasant prominence, and it
had at no time been a necessary system.1 As to the police
establishment, the recommendations were of minor importance,
and related chiefly to the appointment from England of a
superintendent, and a better system of payment in the service,
The reports also urged the separation of Van Diemen’s Land
from New South Wales, and the establishment of a complete
and independent judiciary for the former.
One further matter must not be neglected. Bigge realised
very fully the trouble that had been caused by Macquarie’s
autocratic rule, and though he was perhaps severe upon the
Governor’s many mistakes, he recognised also that they were
faults of the system aswell as the man. He saw, as probably
ministers at home had already seen, that the end of military
1 He also called attention to a subject suggested to him and also to Goulburn
by Judge Field—the fact, namely, that 27 Geo, III., cap. 2, related only to the
criminal part of the Charter of Justice, so that the Civil Court of the Colony was
founded only by Royal Charter and not authorised by Parliament, “and as our
present Civil Charter takes away from His Majesty’s subjects their constitutional
right of appealing to the King in Council unless the matter in dispute is above
£3,000, . . . such Charter had better have been authorised by an Act of the
Legislature”. Field to Goulburn, 13th November, 1818. R.O., MS.
324 A COLONIAL AUTOCRACY.
government had arrived, and no part of his reports was of
greater value to the Colony than that which recommended the
formation of a Legislative Council to assist the Governor,
Valuable too was his proposal that all laws should first be sub-
mitted to the Chief Justice and receive his certificate that they
did not contravene the laws of England,’ Needless to add, the
council was to be a nominated and not an elected body, but to
it was to be entrusted the power of law-making and revenue
raising, which had previously been exercised (though not legally)
by the Governor alone.
Macquarie was already in England when Bigge’s Reports
were laid before Parliament by the Colonial Secretary, and had
in the previous year? published his own Apologia in the form
of a reply to Bennet’s Letter to Lord Sidmouth. He also sent to
Lord Bathurst in July, 1822, a report on his Governorship and
a justification of his measures.? Both these documents were in
their manner able statements of his case, but both dealt rather
with persons than principles. Thus the published letter con-
tained a violent attack on Marsden and an allegation quite un-
founded that he dealt in spirits, and several gibes at Bennet
more abusive than relevant.*
The chief result of the pamphlet was that it called forth a
rejoinder from Marsden, published a few years later, in which
he not only disproved Macquarie’s allegations, but stated
with admirable force and clearness the circumstances of New
South Wales from the time of his arrival as chaplain in 1793 up
to 1820.°
Meanwhile the Colonial Office prepared to act upon their
Commissioner's reports, and at the beginning of July, 1823, a
Bill was introduced into Parliament and quickly passed through
both houses, based upon his recommendations. This Bill, known
afterwards as the New South Wales Jurisdiction Act, as finally
1 Put into force by 4 George IV., cap. 96, s. 18.
2A letter to the Right Honourable Viscount Sidmouth in refutation of
statements made by the Honourable Henry Grey Bennet, M.P., in a pamphlet
‘On the Transportation Laws, the State of the Hulks, and of the Colonies in
New South Wales’”. By Lachlan Macquarie, Major-General and Governor-in-
Chief of New South Wales. London, 1821.
3 P.P., H.C., 1828, XXI. 4 See pp. 14 and 53.
5“ An answer to certain Calumnies in the late Governor Macquarie’s
pamphlet and the third edition of Mr. Wentworth’s Account of Australasia”. By
the Rev, Samuel Marsden, London, 1826. See especially pp. 8-10, 15, 1829.
NEW SOUTH WALES AND PARLIAMENT. 325
passed, provided for the government of the Colony until July,
1827, and was thus only a temporary measure.!' The main lines
of the Bill followed Bigge’s Reports very closely and need not
be recapitulated.
The delay in granting trial by jury in criminal cases roused
considerable opposition, and Sir James Mackintosh moved in
committee for its immediate introduction, but without success.*
The Criminal Court remained little altered, an additional officer
being added, or failing an officer a magistrate against whom
the right of challenge might be exercised.? But in the Civil
Court, where the Chief Justice was in general to be assisted by
two magistrates (the right of challenge being again allowed), it
was also possible at the desire of the parties that a jury of
twelve might be called. Nor was any qualification required
in a juror other than the possession of fifty acres of freehold
land, or a freehold dwelling valued at £300.°
At any time jury trial might be adopted in the Criminal
Court by the issue of an Order in Council, which suggests
that the Government thought that this further change might
be made before the expiration of the Act in 1827.
The Bill contained very little relating to the convicts, but
two provisions closely affected emancipists.° By these the
remissions already given by the Governor were declared to
have the power of pardons under the Great Seal, but future re-
missions were to have that power within New South Wales only.’
The emancipists, or Edward Eager representing them in
England, decided that the Bill did not offer them sufficient
redress; and at his request Sir James Mackintosh presented to
Parliament the petition which had been drawn up in 1819.°
Mackintosh also opposed the provisions in Committee,’ though
in this instance also he was unsuccessful. It is notable that
1 This limitation of the Act was made in committee on the motion of Can-
ning. See Times, 8th July, 1823. ;
2See Times, 8th July, 1823. A division was taken, but the motion was
lost by thirty votes to forty-one.
34 George IV., cap. 96, S. 4- 4 Tbid., 8. 5.
5 Thid., . 6. ata i 6 See s, 21 ands. 22.
7 All remissions were also to be transmitted to His Majesty for approbation
or allowance, s. 22.
8 See Chapter IX. ; p. 275- Petition was presented and read on 8th July, 1823.
See Times, gth July, 1823.
9 See Times, roth July, 1823.
326 A COLONIAL AUTOCRACY.
the Government were throughout the passage of the Bill sup-
ported by H. G. Bennet,’ and that the whole work of the
opposition was left to Sir James Mackintosh?
Bigge’s work was finally completed bya Bill passed in the
following year dealing with the government of the convicts.*
By its provisions the Governor of New South Wales was em-
powered to establish out-settlements and to send thither those
convicts who appeared in need of severer discipline, and whose
bad example was likely to influence other prisoners.
This statute, which embodied the remainder of Bigge’s re-
commendations (except for a few minor changes in administra-
tion which were carried out by the instructions of the Secretary
of State), brought to an end the period of Macquarie’s rule,
which formed the final phase of military government in New
South Wales. Macquarie himself had returned to England in
1822, burdened with the consciousness that not only colonial
opinion but that of Ministers also was opposed to the main
object of his Governorship, namely, the social re-establishment
of the emancipists. Indeed the prominence given to this one
aspect caused much of the disinterested energy which he had
thrown into his work to be overlooked, and for the time being
he was judged only as the patron of the emancipated convicts.
It is, indeed, almost solely in this light that his work is still
regarded by Australian writers.
The preceding pages, however, have shown him dealing with
problems of many kinds, problems intensely difficult, and requir-
ing for their successful solution ability and training of a rare
kind. For example, the granting of licenses and of remissions
of sentences, the distribution of land, and the enforcement of
convict discipline were all matters in which skilful administra-
tion was requisite, and it was scarcely surprising that a man who
had spent his whole life in the military service should prove
himself unable to originate or control administrative expedients
1See his speech, Times, 8th July, 1823.
* A further clause giving power to the Governor, ‘‘ on the affidavit of an un-
known informant,” to send any convict who had just completed his sentence to
England without trial appears to have been dropped, probably as the result of a
petition presented through Sir James Mackintosh by Eager. See Hansard,
House of Commons’ Fournal, 2nd July, 1823, pp. 1400-1403.
® Geo. IV., cap. 84.
= &
a ee
—_—_—_, ee <>
ee a a ae SS
NEW SOUTH WALES AND PARLIAMENT. 327
under conditions of such a peculiar nature as those obtaining in
New South Wales. Nor were the instruments at his command,
the members of the civil staff, such as would give him adequate
aid. Chosen for the most part by the Home Government,
without special reference to their suitability for the work before
them, they constituted a corps of officials of exceedingly meagre
possibilities,
The Governor had the disadvantage also of being in no way
compelled to consult with any one of them or of the judicial
staff, and thus fell inevitably into the habit of seeking advice
(if he sought it at all) from those to whom he knew his views to
be acceptable or from whom he could easily compel acquiescence.
Macquarie naturally exercised the autocratic vice of favouritism,
and unfortunately selected his favourites rather because they
were personally agreeable and publicly submissive towards him-
self than because they displayed particular ability. Indeed the
man who gave him the readiest support at once presented
himself as the most suitable councillor.
There was, however, more than laxity of administration at
fault in Macquarie’s system, for in matters of principle also he
was apt to be uncertain. Thus his liquor policy varied between
two extremes, that of strictly restricting the number of houses
and ensuring their respectability, and, on the other hand, of
attempting to cure drunkenness by multiplying opportunity and
increasing the number of licenses. So also he wavered from
the principles laid down by himself for the remission of con-
victs’ sentences, and again in permitting settlers to disregard the
conditions of their land grants.
This looseness of principle was itself a natural outcome of
the autocratic system. It has been pointed out that Macquarie,
regarding himself as the supreme power in the Colony, considered
that he might make laws for others to obey with which he
himself might if need be dispense. He attempted always to
enforce a policy of personal government, constantly dispensing
in individual cases with his general regulations. This was
almost a possible system with 10,000 inhabitants, but became
both unjust and ineffectual when the population was doubled.
In this respect, as in many others, Macquarie was merely follow-
ing in the footsteps of his predecessors. Much of the criticism
328 A COLONIAL AUTOCRACY.
of his government both within and without the Colony should
have been directed not to Macquarie, but at the original founders
of New South Wales. Its affairs had never run smoothly, and
Governors had always been on bad terms with one or other of
the colonists, a fact due probably to the confusion and lack of
definition of the Governor’s powers. But so long as the number
of the inhabitants was small, and so long as there was no man
learned in the law amongst them, disputes, oppressions and
severities might continue without check. When quarrels were
referred to the Colonial Office they were treated wholly in
their personal aspect and disclosed no difficulties nor doubts as
to the Governor's legal powers. The growth of population, the
improved judicial constitution, and, more still, the advent of
Ellis Bent had brought about a new phase.
The struggle between Ellis Bent and Macquarie no doubt
originated in a divergence of opinion on other matters, but it
has been shown how their opposition gathered round the totally
different conceptions held by each of the rights of the executive.
Macquarie, in exercising the powers of legislation, taxation, and
judicial] control, had simply accepted the traditional rights of
his position, and up to that time these powers had not only been
adopted by each Governor with the tacit support of the Colonial
Office but had been accepted in the Colony without declared
opposition. No sooner, however, had Ellis Bent become Judge-
Advocate than he found himself forced to contest the huge as-
sumption of previous Governors, and to fight for judicial in-
dependence and the supremacy of the law. While he fought
alone against Macquarie for this doctrine of judicial integrity,
his brother banded himself with each opposing faction and gave
voice to every complaint which arose or could be invented
against the Governor. It was in great measure owing to the
dignified protests of Ellis Bent and the turbulent fury of Jeffery
Bent that Macquarie was the last Governor of New South Wales
who exercised control: over the courts, made laws and levied
taxes at his own will, and ordered a punishment without trial.
Still, in justice, it must be remembered that Macquarie did not
originate the system of military government, but that he had
the misfortune of carrying it on in a Colony which was clearly
outgrowing its possibilities.
NEW SOUTH WALES AND PARLIAMENT. 329
In any final estimate of Macquarie’s rule, the quality which
stands forward most prominently is its humanity. The period
was a harsh one, and the circumstances of New South Wales en-
couraged that harshness. Macquarie steadily sought to introduce
more humane methods, and to encourage gentler views. His
“emancipist” policy was part of this larger ideal; and one of
the reasons of its failure, in addition to the unwise selection
of the individuals and of the times for bringing them forward,
was the lack of humanity shown by many of the free settlers.
Macquarie’s clemency was even made a ground of complaints,
and possibly with reason, for though punishments during his
government were lighter they were more frequent than in earlier
days, and laxity of discipline brought corresponding evils. To
the last moment Macquarie remained averse to signing death
warrants, and during Wylde’s last circuit in Van Diemen’s
Land it was only after the greatest persuasion that Macquarie
would consent to the execution of eight brushrangers, which
Wylde considered absolutely necessary to bring to an end the
state of insecurity in that island.t
It is to this humanity, often short-sighted and mistaken in
its actions, that Macquarie’s measures in regard to the convicts’
wages, rations, and treatment generally may be traced. It was
probably from this desire to give a gentler aspect to colonial
life that he was so eager to ornament the town of Sydney with
architectural beauty and to spread amongst the people oppor-
tunities for education and a knowledge of religion. He even
attempted to bring within reach of the black natives the virtues
of the civilisation he so greatly respected. He founded a school
for the native children, and sought, though unsuccessfully, to
establish the adults as tillers of the soil. He also instituted a
yearly gathering of the tribes at Parramatta which took place in
the summer heat of December, and at which he promoted good
feeling by a liberal dinner of roast beef and ale. His relations
with these people were indeed of the best description and his
feeling towards them consistently humane.
In the face of these facts his neglect of the female convicts
1See Correspondence, 1821, in Appendix to Bigge’s Reports. R.O., MS.
Rusden (History, of Australia, vol. i.), has, quite wrongly, taken these execu-
tions as a proof of Macquarie’s embittered sentiments.
330 A COLONIAL AUTOCRACY.
is nothing less than startling. Two reasons only seem forth-
coming, the one that he regarded the women as incapable of re-
form and that he felt himself incapable of dealing with the
problem they presented. The other, a less creditable but not
less human cause, that he was the more unwilling to give time and
energy to improve their dwelling and discipline, and to put aside
other projects originated by himself, because it was Marsden,
whom he so bitterly detested, who first called his attention to
the frightful abuses which were occurring.!. His neglect remains,
however, a blot upon his reputation for an almost sentimental
humanity.
There can remain no doubt that the post filled by Macquarie
was one of exceeding difficulty, nor can it be said that he filled
it without credit. He was probably mistaken in overlooking
altogether the previous convict status of many of his favourites.
It was a policy which he was unable to carry through, and one
which at that time must inevitably have created ill feeling be-
tween freed and free. It would have been better had he bent his
energies not to forcing forward the men and women who had
been branded with crime in their mother country, but rather
that stalwart generation which sprang from them and which in
these years he saw growing up around him.
Yet even when Macquarie failed in his essays to introduce a
new system—even when he must be blamed for his administra-
tion of the old, there remains much in the long period of his rule
for which respect is due. He had definite aims and high ideals,
and he spared himself neither in his efforts to enforce these, nor
in his attempts to administer what he rightly called “the least
grateful and most arduous Government in the King’s dominions”.?
The chief difficulty of the task consisted in the fact that no
one at that time was able to lay down a complete and consist-
ent policy for governing the Colony. Nor would it be possible
at the present time to speak without hesitation upon the subject.
The problem of colonisation is still unsolved, and the problem
presented by the criminal seems to grow each year more difficult.
New South Wales presented them both, inextricably enwound
one with the other.
1 Marsden’s letter, rst July, 1815.
2 Letter to Lord Sidmouth, 1821, p. 3.
NEW SOUTH WALES AND PARLIAMENT. 331
It has been comparatively easy to show how autocracy
brought about its own peculiar difficulties, to see in particular
instances the difficulties of administration, of legislation and of
jurisdiction. The faults and follies of “ personal” Government,
the gradual growth of political interest, the powerful sentiment
of budding nationality, all these are plainly written in the history
of the period. Criticism too of many sides of governmental
activity has been called for, and the lines of that criticism, and
the suggestion of alternative policy, have for the most part been
obvious enough. But, looking at the subject as a whole, the
task of criticism becomes infinitely greater.
By the foundation of New South Wales the Government
offered a solution of the two problems of how to people a new
country and how to get rid of convicted criminals, The experi-
ment proved in the end a remarkably successful one, and it had
from the beginning one great advantage. The method placed
upon the Government the responsibility for the welfare of the
prisoners and thus indirectly of the whole country, and for this
reason New South Wales received in its early years a greater
share of attention and revenue than any previous British Colony
at the time of its establishment.
The introduction of free settlers was probably inevitable, but
their introduction gave a distinct character to the Colony’s
development. The double enticement was held out to them of
free labour and free land. But in agriculture pure and simple
the convict labour was found to be inefficient, and it was thus
impossible to carry out the policy of granting land in small
holdings. The use of convict labour led directly to an increase
in pastoral farming, to the aggregation of small freeholds into
large sheep runs, and to an ever greater area of Crown grants.
Especially after 1821 the pastoralist with his thousands of acres
began to take the place of the farmer with his few hundreds
as the real instrument of colonial progress. Macquarie fought
against this tendency, trying to hold the small agriculturist,
emancipist or free, above the sheep-farmer, but he could not
(though he did his best) bring servile labour to an end, and so
long as this lasted his attempts were bound to fail.
The presence of a convict population, the growth of capit-
alist farming, and the increasing area of land granted away by
332 A COLONIAL AUTOCRACY.
the Crown, had important political effects. The convicts showed
from the first a tendency to gather about Sydney, and a pre-
ference for town life. The free settlers, finding that the land
available was each year more remote, began to seek means of
livelihood in the city. The free labourer whose labour was not
needed by the pastoralist, fully supplied from the ranks of
prisoners, and who had not the capital to start farming on his
own account, also turned towards Sydney. Thus the pre-
ponderance of the town population, so marked a feature of
Australian life to-day, and so potent a cause of the democratic
sentiment of the country, had already, by 1820, begun to show
itself and grew yearly more marked.
Sociologically the history of New South Wales must remain
for the present a complete puzzle. No one would at that time
have prophesied, and no one would prophesy to-day, that the
children born of convict parents would show no sign of their
origin. Yet this was what happened, and the fact is not to be
belittled by laying stress on the number of political prisoners or
the harshness of the criminal laws. The political prisoners
formed a very small minority, and though many convicts were
transported for small offences, they were usually offences of a
low type such as pocket-picking or receiving stolen goods.
There is also no reason to suppose or at least no proof that the
thieves, forgers, coiners and highway-robbers died childless ; and
as there were but few free women in the Colony, the female
convicts must necessarily have been the mothers of the greater
part of the first generation of Australian born. New South
Wales thus carries before the world a banner of hope and a
promise that future generations may yet escape from the bond-
age of past, evils. Perhaps also the final justification for every
mistake of Secretary of State or Governors, for the careless
selection of administrators and subordinates, the continuance of
an anomalous, unworkable and unpopular form of Government,
may be found in the fact that the establishment of New South
Wales led to the rehabilitation in a new environment of those who
had fallen out of the social struggle, and gave to their descendants
a part in the task of the present, the task of forming a nation high
in ideals and in achievements, worthy of their heritage in the wide
acres glowing in the golden sunlight of the Australian continent.
INDEX
References in notes ave not indexed.
A
Abbott, Major, 39.
Agriculture, 118, 119, 121, 321-23.
Allan, Commissary, 161.
Area of settlement, 116, 117.
Area under agriculture, 118, 119, 121.
Atkins, Judge-Advocate, 28, 31.
Australia, Native-born of, 260, 261.
B
Bank, New South Wales, 161-64.
Bank, Savings, 164, 165.
Banks, Sir J., 26, 37, 284, 289.
Bathurst, Lord, 45, 56, 62, 63, 76, gt,
92, II3, 120, 125, 128, 134, 145, 150,
157; 163, 169, 175; 176, IQI, 193, 200,
206, 213, 231, 237, 242, 249, 254, 255;
257, 273, 279, 283, 284, 285, 290, 303,
304, 307, 317, 318, 324.
Bayley, Nicholas, 74, 89, 175, 271, 276.
Bell, Lieutenant, 270, 278.
Bennet, Hon. H. Grey, 64, 288, 294,
30-3, 305, 309, 312-16, 322, 324, 326.
Bent, Ellis, 28, 29, 58, 60, 61, 71, 725
75, 76, 83, 99, 102, 143, chap. vii.
passim, 264, 277, 292, 301, 328.
Bent, J. H., 194, 200, 202-5, 212-35
passim, chap. viii. passim, 257, 260,
277, 305, 309, 314, 328.
Bentham, Jeremy, 294-96.
Bigge, J. T., 68, 72, 75, 93, 98, 107,
IIO, 123-26, 137, 140, 142, 144, 146,
164, 172, 173, 177, 196, 197, 260, 277,
279, 282, 283, 285, 287, 305, 310, 314,
315, 316, 318, 319, 320, 322-24, 326.
Blake, W., 246, 271, 309, 310, 314.
Blaxcell, Garnham, go.
Blaxland, G. and J., 22, 41, 56, 59, I10.
Bligh, Governor, 5, 10, 16, 19, 21-24,
29, 31-44, 55, 50, 59, 73, 79; 89, 157,
300,
Brisbane, Sir T., 284, 287.
Brooks, R., 107, 221,
Brougham, Lord, 309, 310.
col au W., 213, 217-19, 231, 256,
276.
Bullock v. Dodds, 279, 282.
Burdett, Sir F., 302.
Buxton, Fowell, 300.
Cc
Campbell, j. T., 159, 178, 179, 180-83,
271-74, 276.
Campbell, R., 92.
Canning, George, 309.
Caricature of Macquarie, 264, 265.
Castlereagh, Lord, 23, 25, 27, 30, 33,
36, 38, 40, 88, 90, 240, 290, 293, 303,
308, 309.
Censor of the Press, 274.
Chaplain, Court-martial on, 242, 243,
251-53; Commissions of, 240, 241,
250-52.
Chapman, Case of the, 170, 177-89.
Charter of Justice, New, 194; sug-
gested reforms in, 190, 191. See
also under Judicature, Judiciary,
Justice.
Chartres, G., 213, 216, 219, 223.
Chase, Captain, 166, 167.
Collins, Lieut.-Governor, late Judge-
Advocate, 28, 36, 48, 294, 298, 299.
Colonial Office, Organisation of, 2go.
Colonial policy, 291, 303.
Colonisation, Theory of, 295-97, 330-
Commission of Inquiry, Appointment
of, 304, 305, 316-18.
Committee on Gaols, Appointment of
309.
Communications, 53, 54.
Convict labour, 127-39.
Convicts and garrison, 262, 263-68.
Convicts, Female, 19, 20, 127, 307,
313, 339.
(333)
334
Convicts, Problem of the, 330-32.
Convicts, Report on, 320, 321.
Cook, Captain, 289.
Cooke, Edward, 23, 36, 37.
Corps, New South Wales, 262.
Council, Governor’s, 55-57.
Court of Justice, Building for, 205.
Court of Vice-Admiralty,. Powers of,
166.
Courts, Attempt to reopen, 256, 257.
Cow Pastures, 116, 117.
Cowper, Rev. Mr., ror.
Cox, W., 128, 142, 275, 276, 278.
Crosley, George, 55, 60, 212-16, 219,
220, 223, 224.
Cullen, 238.
Currency, 160, 161.
D
Davey, Major, 48, 49.
Davidson, W., 116, 117.
Detainers, 158-60, 258, 259.
Distillation, 122, 123, 322.
Drake, Captain, 177-89 passim. |;
Druitt, Major, 135.
Duties, Customs, 16, 17, 155-57, 307;
308, 310-14.
Duties, Liquor, 94, 95.
E
Eager, E., 212-19 passim, 223, 275, 276,
280, 281, 282, 325.
East India Company, 16.
Eden, G., 300.
Eden, W. (afterwards Lord Auckland),
2, 3, 4-
Elliot, Hon. A., 36.
Emancipist Attorneys, 59, 60, 212-25,
229-31, 307.
Emancipists, 164, 165, 196-202, 270,
271.
Emancipists, Legal position of, 279-82,
325-326.
Emancipists, Petition from, 281, 282.
Emigration, 5, 6, 110-17.
Erskine, Lieut.-Governor, 50, 51, 267.
Evans, 198.
Expenditure, 8r.
F
Field, Mr, Justice, 50, 51, 52, 164, 165,
183, 184, 186, 229, 231, 260, 275, 277,
278, 280, 281, 311, 312, 323.
INDEX.
Flinders, Captain, 300.
Flogging of free men, 245-47, 307, 309,
310.
Foveaux, Lieut.-Governor, 29, 32, 33,
35, 38, 158, 197.
ree urers, 139, 140.
Friendship, Case of the, 170, 175-78.
Fulton, Rev. H., 198.
G
Garling, F., 212, 218, 219, 227, 228,
273, 276.
Garrison, Regiments forming the, 262.
General Hewitt, Outbreak of fever on,
171.
General Muster, 15, 118, 119.
Gore, Wm., 24, 41, 42, 258.
Goulburn, H., 111, 153, 171, 188, 200,
231, 290, 291, 303, 308, 310, 312.
Government, Kind of, for New South
Wales, 315, 316.
Government market for produce, 119-25.
Government stores, 8, 9, I19-25.
Governor, Area under, 47.
Governor, Legislative powers of, 82-84.
Governor, Powers of, 49-55.
Grants, Withdrawals of, 247, 253, 255.
Grose, General, 262.
H
Halloran, Lewis, 65, 66, 262.
Harris, Dr. J., 59, 60, 264, 276.
Hayes, Sir H. B., 85.
Henshall, 246, 271.
Hobart, Lord, 5, 6, 290.
Hook, C., 221.
Hospital Contract, 90-94.
Housing, 148, 149.
Hunter, Governor, 5, 18, 26, 55, 75;
82, 83, 300.
I
Ireland, Convicts from, 26r.
J
Jamison, Sir J., 75, 111, 264, 275.
Jenkins, 276.
Jenkinson, C. C., 36.
Johnston, Major, 22, 23, 24, 29, 32-37,
39, 40, 41, 43, 44, 45, 89, 158, 276,
300.
INDEX.
Johnston, Rev. Mr., 289, 300.
ones, R., 314.
udge-Advocate, Acting, 225-27.
Judicature, Civil, 58, 59, 60.
Judicature, Criminal, 57, 58.
Judiciary, Report on, 323. See also,
Charter of Justice, Justice, etc.
Jurors, Military officers as, 278, 279.
Jury, Trial by, 58, 191-95, 275, 277, 278.
Justice, Administration of, in Van Die-
men’s Land, 195.
Justice, Reform in administration of,
IQI-95.
K
King, Governor, 5, 14, 15, 18, 19, 23,
28, 50, 55, 60, 78, 82, 85, 99, 157.
L
Labour, Suggestions for improved con-
ditions of, 140-43.
Land, Conditions of settlement on,
143-48.
a system, 8, II-15, 109-27, 143-
48.
Leases, 148.
Libel, Action for, 271-74.
Licenses, Liquor, 95-107.
Liquor, Consumption of, 107, 108.
Liquor traffic, 17-19, chap. iv.
Liverpool, Lord, 36, 111, 190, 233, 234,
290, 293, 301.
Lord, Edward, 301.
Lord, Simeon, 42, 66, 76, 90, 107, 151,
152, 196, 197, 198, 201, 202, 222, 233,
307.
Macarthur, Hannibal, 74, 104.
Macarthur, John, 23, 24, 31-37) 39) 43>
45, I10, 116, 117, 125, 128, 140, 148,
152, 196, 278.
Macarthur, John, Junior, 314.
Mackintosh, Sir J., 309, 325, 326.
Macquarie, Governor, passim.
Magistracy, Appointments to the, 75,
76, 196-98, 284-87 ; Dismissal from,
271-74. See also Emancipists.
Magistrates, Duties of, 69-72 ; Relations,
of, to Judge - Advocate, 206, 207 ;
Servants for, 75.
Manufactures, I51, 322.
335
Marsden, Rev. S., 74, 75, 76, 13%, 143,
Ph 233, pry 280 243, 271, 272, 273,
74 275, 275, 259, 305, 324.
Martlocan: Mies Ganeat oa
Mathew, 154, 155.
Meehan, 198.
Military Discipline, 202, 203.
Military Government, 25, 292, 293,
307, 310, 315, 316, 323, 324.
Minchin, Lieutenant, 89
Missionaries, 47, 289.
Molle, Lieut.-Governor, 180, 181, 263,
264, 265, 266, 267, 320.
Moore, W., 249.
Moore, W. H., 212, 218, 240-245, 248,
249, 252, 253, 304.
Moore, T., 141.
Morriset, Major, 267.
Muster, Sunday, 73-75.
N
Natives, 20, 21, 329.
Navy, Control over, 166, 167.
New South Wales, Action in Parlia-
ment as to, 298-315, 325, 326.
New South Wales, Criticism of auto-
cracy in, 327-32.
New South Wales, Description of
Government of, 305-7.
New South Wales, Foundation of, t. 2,
292.
New South Wales Jurisdiction Act,
324, 325-
New Zealand missionaries, 47. See
also Missionaries.
Nightingall, Sir Miles, 25, 26, 27, 29.
Northumberland, Duke of, 36.
Oo
O’Connell, Lieut.-Colonel, 149.
Officers in trade, 149, 150.
O’Hara, History of N.S.W. by, 305.
Oxley, Surveyor-General, 110, 144, 145,
146, 276.
P
Palmer, Commissary, 24.
Pardons, 50, 60-68, 279-83.
Paterson, Colonel W., 29, 39, 33» 35-
Peel, R. (afterwards Sir R.), 111, 299.
Pelham, Lord, 294, 295-
Petition of Blake, 309.
336 INDEX.
Petition of colonists, 275.
Petition to Parliament, 245, 248, 249,
253-55; 303.
Phillip, Governor, 3, 5, 12, 14, 21, 26,
286.
Pigot, Case of Lord, 30, 31.
Piper, Captain, 179, 244.
Pitt, William, 290.
Place, Francis, 302,
Police, 77, 78, chap. vii. passim.
Poor, Provision for the, 268-70.
Population, 1, 6, 7, 9, 10, 11, 109, TIO,
149, 150, 260, 261, 292.
Port Regulations, 206-10, 228.
Pressing for the Navy, 167.
Public meeting, Right of, 85-87.
Publicans, Cases of two, 102, 103.
Punishments, Colonial, 70-73.
Q
Quit-rents, 145, 146.
R
Recall of the Bents, 229, 230.
Redfern, Dr., 196, 198, 267, 282, 284,
286, 287. c
Redman, 238.
Restrictions on Emigrants, 247, 248.
Revenue, 78-80, 155, 156.
Riley, 9, 115, 121, 122, 124, 142, 148,
149, 156, 213, 217, 218, 219, 220, 227,
231, 246, 256, 258, 262, 268, 277, 314.
Riley and Jones, 152, 153.
Road Trustees, 233-37.
Robinson, M., 198.
Romilly, Sir S., 280, 294-298, 299,
301.
Ryder, Mr.,;298, 299, 300.
Ss
Salary, Withdrawal of, 249, 250, 252,
255.
Sanderson, Captain, 264.
Schoolmasters, 289.
Schools, 261, 262.
Scott, T. H., 305.
Settlement, 5, 9.
Short, Captain, 22.
Sidmouth, Lord, 188, 304.
Slander, Action for, 280, 281.
Smith, Sydney, 296, 297, 305.
Societies, Formation of, 268-70.
Solicitors, Appointment of, 194.
Sorell, Lieut.-Governor, 49.
South Sea Traders, Powers over, 169,
170.
Standard of Living, 137, 138.
Stock-raising, 123-25.
Sydney, Lord, 2.
ks
Taxation, 237-238, 307-308, 310-14. See
also Duties, Trade.
Thompson, Andrew, 76, 196, 197, 198,
202, 233.
Toll, Refusal to pay, 235-40.
Townson, Dr., 22, 24, II0, 152.
Trade, 15-19, 47, 48, 151-58, 242.
Transportation, I-3, 331, 332.
Transportation, Methods of, chap. vi.,
170-89.
Traveller, Seizure of the, 241, 242.
Turnpike-Road, The, 233, 234.
Vv
Vale, Rev. B., 240, 249, 303, 304, 305-
Van Diemen’s Land, Foundation of, 6 >
Power of Governor in, 48, 49.
Ww
Walker, Theodore, Case of, 168, 169.
Wellington, Duke of, 284.
Wentworth, D’Arcy, 22, 41, 77, 78, 89,
90, 94, 105, 106, 107, 134, 179, 180,
182, 183, 184, 233, 234, 238, 239, 246,
267, 276, 285, 305.
Wentworth, W. C., 265, 305, 320.
Wilberforce, W., 289, 308, 309, 310.
Williams, 309, 310.
Witnesses before Committee on Gaols,
314, 315; before Committee on Trans-
portation, 300.
Wool, 125, 126.
Wylde, Judge-Advocate, 60, 84, 104,
105, 106, 107, 154, 158, 162, 163,
164, 172, 179, 182, 183, 184, 185,
186, 187, 229, 231, 257, 267, 268, 260,
270, 272, 273, 274, 278, 280, 281,
329.
Wyndham, Mr., 6, 290.
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