A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 3

by Marion Phillips

CHAPTER III.

THE ADMINISTRATIVE PROBLEM.

Authorities.—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 dependencies, 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^[1] 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 a mere 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.^[2] Moved by the missionaries' accounts of the violence and lawlessness 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 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.^[3] 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.^[4] 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^[5] in the south, the other at Port Dalrymple in the north.^[6] 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 commandant 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,"^[7] 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 reputation which his conduct in the Colony fully justified, received very "pointed and strict" directions from Macquarie.^[8] His expenditure of public money was to be supervised, and he was altogether forbidden to grant land or cattle^[9] 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 Lieutenant-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 responsibility. 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 commandants. 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 administration 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 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.^[10]

Governor King had once issued an order that no applications 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".^[11] 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 distinctly understood that having laid down the foregoing Regulations for his own government, he will not in any instance deviate from them."^[12]

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 headquarters, the commanding officer of the garrison took his place, under the commission of Lieutenant-Governor, receiving reports and conducting the ordinary business routine of administration. He could not, however, under Macquarie's instructions, call the courts together, grant land or stock, pardons or emancipations, or undertake new expenditure.^[13] No difficulties arose under these instructions until 1821. In that year Macquarie made a tour of Van Diemen's Land, leaving Lieutenant-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 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.^[14] 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 Excellency'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."^[15]

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 his own name, and allows the Lieutenant-Governor of Van Diemen's Land to administer that Government in his own name, it amounts to an 'absence out of the Territory and its Dependencies' … 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 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 appoint 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'.^[16] He only asserts 'Ita lex scripta est': as long as I am 'geographically within the vast latitude and longitude of the Territory either on land or at sea, nobody else can make Laws or Regulations for the Colony'. This is a question which I think a new commission should set at rest."^[17]

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 importance.^[18] It was not only during the Governor's absence that business suffered interruption. Sometimes the whole administration 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.^[19] As the one direct channel of communication between Ministers in Downing Street and ten thousand British subjects in the Southern Seas, the Governor was bound to record every important 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 conveyance 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.^[20] 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.^[21] 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".^[22]

From this time Macquarie found himself making somewhat 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".^[23] The Secretary of State in his reply reminded him "how much the length and uncertainty of the voyage to New South Wales must at all times interfere with a very regular communication".^[24] In this case Macquarie's complaint had been made before the answers could have reached him, for his previous despatches had been very much delayed.^[25]

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 because of the Governor's extensive powers. While the greater share of colonial patronage remained in the hands of Ministers^[26] 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 alienate 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.^[27] 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.^[28]

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 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 to a 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 Commission 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.^[29]

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 advice. 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"^[30] 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 isolation in which he stood.^[31] "Confidential persons to assist me," he wrote, "I brought none."^[32] 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 Magistrates of his Council assembled to oppose the rebel party".^[33] The gathering, however, was not deserving of so fine a name, for it can have been nothing more than an informal meeting of Bligh's friends. Bligh himself was doubtful of the expediency of forming a Council, especially one with law-making powers. "It would," he said, "require a very just and wise man to go among them to form any code of laws."^[34] John Blaxland, a "gentleman-settler," made a somewhat similar proposal for "a humane and enlightened Governor assisted by a Council ".^[35] 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.^[36] 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."^[37]

This Report was sent to Macquarie in November, 1812. In the covering despatch Lord Bathurst wrote that to this recommendation "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 parties, the long time which must elapse before decisions of the Secretary of State could arrive, and the danger of weakening the higher authorities in a society composed of such discordant materials, all more or less influenced the determination of the Government^[38]

Macquarie agreed with this reasoning, and even indulged "a fond hope that this measure will never be resorted to in this Colony".^[39] 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,"^[40] 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^[41] and a Commission under the Privy Seal in 1787,^[42] 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".^[43] 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.

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 presidency of Ellis Bent the rule of law easily triumphed.

The Court took cognisance of "all such outrages and misbehaviours as, if committed within this realm, would be treason or misprision thereof, felony or misdemeanour.^[44] 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,^[45] 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.^[46] They based this recommendation largely on the opinions in its favour expressed both by Bent and Macquarie.^[47] 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, against whose decision the appeal itself was made.^[48] 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.^[49]

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 convict ranks. 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,^[50] 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.^[51] 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 regulations of the Colony".^[52] 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 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."^[53]

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 within the territory. On the other, there was the power exercised as Governor of a penal colony to pardon convicts transported for crimes committed outside the territory.^[54] 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.^[55] Macquarie used these prerogatives freely and constantly both with regard to sentences of the Criminal Courts and the magistrates. His warrant 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 pardon or reprieve for the first time on meeting in the street a man who had lately stood before him in the dock under sentence of death.^[56] Bent's successor. Judge-Advocate Wylde, admitted that the Governor only consulted him in capital cases, and that then he sometimes acted contrary to his advice.^[57] When the Governor did uphold the sentence of the Court, Bent frequently found that punishments were "frittered away and rendered nugatory in the execution".^[58] This was one of the reasons why Bent resented the Governor's personal supervision of the gaols.^[59]

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 omniscience 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 of a ticket-of-leave, which exempted a convict from labour for the Government or as an assigned servant, and allowed him to work for himself. The Government 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 pleasure only, and might be recalled if its holder were guilty of misconduct, or if his labour were needed for the public works.^[60]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 absolute pardon which restored him to complete freedom within or without the Colony.^[61]

In the first years of his rule Macquarie granted few remissions and those with great circumspection.^[62] His predecessors had been less discriminating.^[63] The Committee on Transportation in 1812 decided that the power exercised by the Governor was 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.^[64] 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 to recommend. The delay of one year would, the Report stated, be the only inconvenience.^[65] 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,^[66] Macquarie, however, argued ably and successfully against them.^[67]

"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 withdrawal. "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,^[68] or to be 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. All this would tend to endless trouble and confusion of representations backwards and forwards, which can only be imagined by those accustomed to these extraordinary 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 regulation of all mitigations of sentence.^[69] 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, industrious, and honest". A convict asking for an absolute pardon must have resided in the Colony for fifteen years if undergoing 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 applicants 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 regulations put before him by the Governor, and pressed the matter no further. The regulations remained in force, and the Governor continued to exercise full powers of granting remissions of sentence 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.^[70] 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 suggestion of the House of Commons Committee in 1812?" A comparison 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 1820^[71] 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.^[72]

Macquarie undoubtedly considered that he had the right in "the exercise of his supreme authority,"^[73] to deviate in particular cases from the lines laid down by himself. He was supported in this belief by many colonists.^[74] 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.^[75] The other example is that of Lawrence Halloran who arrived in 1817. Macquarie was censured by the Colonial Office in 1820^[76] 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 ticket-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.^[77] Bigge, however, found out some curious facts about the matter.^[78] 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 Halloran should have a ticket-of-leave and follow his profession of teaching. As soon as he received it Halloran lodged a complaint 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 appealed to the Secretary for protection and kept his ticket-of-leave. The magistrates protested, and after some angry passages the ticket was finally withdrawn. But instead of being placed in a gang of Government workmen, Halloran was assigned as servant to Simeon Lord, his intimate friend, and after a few months was again in possession of a ticket-of-leave.^[79] He soon had the largest and most fashionable school in the Colony.^[80] 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 conditional 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 to assist. 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.^[81]

Amongst those who fulfilled the requirement of residence many received pardons who were of known bad character.^[82] On the other hand, several men who had been steady and industrious were retained in Government service because they had a knowledge of some trade useful in carrying out the Government works.^[83] This created a feeling of indignation which need never have arisen, had not Macquarie's own order given the appearance of a right to what was only an indulgence.

The effects of the Governor's laxity was much increased by the carelessness of the magistrates who signed petitions without ascertaining that the prisoner had resided for the full number of years required.^[84] 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,^[85] and without 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 in a manner which roused hot indignation.^[86] 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 knowledge) not entitled to the consideration they solicited ".^[87]

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.^[88] 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 remarkable system for achieving this object. In December, 1813, he sent a circular letter to the magistrates saying: "The number of applications made yesterday for free pardons or emancipations 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 countersign any further or new applications of that nature, until those you have already certified shall have been finally disposed of".^[89] In 1814 he received five hundred memorials, and consequently directed that no more should be presented in 1815,^[90] and in 1816^[91] he ordered that none should be presented in 1817. Finally in 1820 he refused to receive petitions for conditional pardons or tickets-of-leave.^[92] Bigge was present when those for 1819 were presented to Macquarie, and gave an account of the proceedings.^[93] "The crowd … was very great; and observing 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."^[94] 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 rejected 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.^[95]

The magistrates were the pivot on which the administrative organisation of the settlement turned. They not only conducted the business "usually transacted by Justices of the Peace in England,"^[96] 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.^[97] Finally in 1820 a Proclamation issued by the Governor conferred on the magistrates the jurisdiction given them in England by 20 Car. II., cap. 19, over questions arising upon wages or contracts for labour in husbandry under the sum of ten pounds.^[98] They had in addition to all these duties the general supervision of their districts.^[99]

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 employers are to be made to the district magistrate, whose duty it will be to punish and redress mutually the ill-behaved and injured party."^[100] They also investigated all complaints brought before them by gaolers and superintendents, and exercised over the convicts what would in the case of free men have been a criminal jurisdiction.^[101]

No magistrate could order any punishment without examination on oath unless he actually saw an act of neglect, disorderliness or insubordination committed.^[102] In no case could a single magistrate order a heavier punishment than fifty lashes.^[103]

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.^[104] 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.^[105] Except in the last case, the duration of a punishment 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 alteration 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 approved by him.^[106] 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.^[107] 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.^[108] But neither 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.^[109]

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 complete 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.^[110] 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.^[111]

Macquarie was always inclined to clemency,^[112] and in his management of the gaol-gangs Bent considered that he was far too indulgent.^[113] 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,^[114] is under 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."^[115]

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 discontinued."^[116] 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.^[117] 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.

"It 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."^[118] The power which Macquarie thus indulged with respect to the convicts, in the end he exercised and defended in regard to free men.^[119] That was, however, a momentary lapse from discretion; 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 punishment for Government servants on the verbal report of the chief engineer, but only in cases where prompt action appeared necessary. All others were reserved for examination by the Superintendent of Police or by the Bench of Magistrates.^[120]

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.^[121] It provided that men free by servitude or emancipation must carry their certificates, 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.^[122] 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 working for themselves. These passes were as valuable as tickets-of-leave, and from the frequency with which they were given by a certain magistrate, came to be known as "Captain Cox's Liberty".^[123]

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.^[124] Macquarie revived it in Sydney at the beginning of 1810 and extended it by the advice of one of the chaplains^[125] to the rest of the territory in 1814.^[126] At headquarters the convicts and 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 stockmen 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 attend either unshaved or intoxicated, or absent themselves except 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."^[127]

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 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 convicts. 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 prejudiced 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.^[128]

The only remuneration received by the magistrates consisted 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.^[129] 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".^[130] Governor Hunter had felt this so strongly that he had urged the Government to obtain suitable men from England.^[131] 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 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.^[132] Though the Governor was no longer compelled to select 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".^[133]

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.^[134]

There were not more than eight magistrates in the Colony when Macquarie added to their number Andrew Thompson and Simeon Lord.^[135] 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".^[136] 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,"^[137] 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 refusal 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.^[138] He treated Marsden's action as a deliberate censure on his scheme of raising "emancipists" to the magistracy, which was throughout 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.^[139]

The police constables throughout the country were appointed by the Governor. He acted, however, on the recommendation of the resident magistrates of the various districts or the Superintendent of Police in Sydney.^[140] 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.^[141] 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.^[142] The pay of the district constables consisted of £10 a year, slop clothing (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 families and received another £10 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 payment was thoroughly bad and degrading, and one of the greatest difficulties in enforcing order and protecting property in the Colony was due to the fact that the constables themselves were not to be trusted.

The Police Regulations published on the 1st 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 one clause. His objection was that "it gave power to a single magistrate to inflict corporal punishment on free men as well as on convicts."^[143] 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."^[144] 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.^[145]

Some important clauses of the Regulations were very imperfectly 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 regulation 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.^[146] 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 communication of the fact.^[147]

The revenue of the Colony rested on a remarkably insecure basis. In his evidence before the Committee on Transportation, Bligh admitted that the Governor imposed "duties on trade and on merchants and exports at his own pleasure".^[148] 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 Parliament, for New South Wales was not a Colony obtained by conquest; and even had it been originally conquered, Parliament had already intervened in its affairs by the Act establishing the Criminal Court in 1787.^[149]

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."^[150] 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 of the Colony".^[151] In that position the matter rested until 1817.^[152]

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.^[153] The other sources of revenue were fees and fines and 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.^[154]

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".^[155] But there was in fact no charge which could be incurred which was not from time to time defrayed out of the Police Fund.^[156] 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^[157]:—

1.

Transportation of convicts .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .

£55,000

2.

Food sent from England for the convicts (salt pork, etc.) .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .

23,000

3.

Clothing, tools, stationery and other 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[158]

5.

Expense of Military Establishment .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .

20,000

6.

Expense of Civil Establishment .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .

13,000

7.

Bills drawn by the Governor, Commissioner, etc., for the purchase of provisions, etc., for the use of the Colony, and paid by the Treasury. .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .        .

83,900

Total, £227,600.

The Governors were expected to send to the Colonial Office quarterly, or if that were impossible, yearly accounts of the expenditure under the last head.^[159] 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 considered so regrettable.^[160] 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 information 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 transmitted 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 consideration of the hardship which individuals would sustain and the additional expense to which Government might be eventually liable had they been protested."^[161]

No Secretary of State was likely to go further than this. Rebuke and reproach, and as a 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 unnecessarily incurred, or in the execution of what services retrenchments 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".^[162] Nor were such works to be commenced "without 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."^[163]

With regard to the Governor's legislative powers, his right to regulate the lives of the convicts was, of course, beyond question. 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 servitude. The claim to this right was based on the words of the Governor's Instructions,^[164] 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 administer, yet by his Commission he was brought under the orders of the Governor.^[165] 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 protested 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.^[166] 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 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 magistrates extends no further than finding the culprit generally guilty of Governor Hunter's Order … leaving it to the Governor to inflict the prescribed penalties".^[167]

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 conflicting with the law, the necessities of the Colony formed a sufficient justification for the colonial judges and magistrates.^[168] This was the view generally held in the settlement. An address to Macquarie in 1812, for example, thanked him for "the considerable approaches already made under your Excellency's Government, to model the laws 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".^[169]

The Colonial Regulations took the form of Government and General Orders or Proclamations. "At all 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."^[170] But the Governor sometimes required the help of his only law adviser, the Judge-Advocate, to ensure legal accuracy in the phraseology of his regulations. Macquarie 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.^[171] Wylde held a similar opinion but gave way on the Governor's insistence.^[172] Orders and Proclamations were published by insertion in the Sydney Gazette. As no Governor had ever considered himself bound by the laws of his predecessors, 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 another. 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.^[173]

The Gazette was under official superintendence and had been published weekly from the time of its establishment in 1803.^[174] 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".^[175] 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^[176] 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 and their treatment were often quite unsuitable to a place of worship.^[177]

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 sentence" on Hayes of hard labour at the settlement then just about to be formed at Van Diemen's Land.^[178] Two years afterwards 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.^[179] 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 destructive purposes". Petitions requiring one signature only^[180] were exempted altogether from these provisions. The penalties were those "provided on that behalf by the laws of England".^[181]

These regulations appear to have remained in force up to the time of and after Macquarie's arrival. They embody indeed 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 together 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".^[182]

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 consented, the Provost-Marshal convened the meeting through the medium of the Sydney Gazette stating its time, place and purpose. This notice must be inserted at least five days before the meeting, and the Provost-Marshal had to attend and preside 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 infringing the regulations. Any publican permitting the unlawful assembly at his house would immediately forfeit his license, 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 restriction 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.

1. See Chapter II., p. 35.
2. Chiefly by Church Missionary Society. Some were Methodist missionaries.
3. R.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 ordinary way. Masters of ships of the Plantation Registry were to enter into bonds with the naval officers in the sum of £1000 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.
4. See Chapter VI. On the High Seas, p. 167.
5. Headquarters were at Hobart Town on the Derwent.
6. Now Launceston.
7. D. 1, 28th June, 1813. R.O., MS.
8. Ibid.
9. i.e., from the Government herds.
10. S.G., G.G.O., 8th January, 1810.
11. G.G.0., 24th January, 1801. H.R., IV.
12. G.G.O., 9th January, 1813. P.P., H.C., 1816, XVIII.
13. Macquarie's Instructions to Lieutenant-Colonel O'Connell. H.R., VII., p. 634, 30th October, 1811.
14. S.G., 14th July, 1821.
15. Field to Lord Bathurst, 1st August, 1821. R.O., MS.
16. Quotation from Government Notice, 14th July, 1821.
17. Enclosure to Field's letter to Bathurst, 1st 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.
18. C.O., MS. Papers for 1824 to 1825.
19. See, e.g., S.G., G.G.O., 22nd March, 1817.
20. D. 5, May, 1811, C.O., MS.
21. D. 6, 17th November, 1812, R.O., MS.
22. i.e., East India Company's ship. D. 21, 19th May, 1813., C.O., MS.
23. D., 22nd March, 1816. R.O., MS.
24. D., 30th January, 1817. C.O., MS.
25. Ibid.
26. i.e., the appointment of the officers on the colonial staff, judicial, administrative and medical.
27. 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.
28. Ibid.
29. 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, 1st August, 1806, printed in Cape Records. See also Theal, History of South Africa, iii., pp. 133, 134. See also Chapter X.
30. Evidence before C. on T., 1812.
31. Memorandum of King, quoted in Rusden, History of Australia, vol. i., pp. 227, 228.
32. Same. King did a great deal of good work in suppressing the drink traffic, but he had a very difficult and unpleasant term of office.
33. Crosley's Petition to Lord Bathurst, 1817. R.O., MS.
34. Evidence to C. on T., 1812. Bligh perhaps thought it better to leave things as they were than to attempt to find such a Governor.
35. Blaxland to Liverpool. H.R., VII., p. 230, 27th November, 1809.
36. There is also an interesting paper of suggestions in the Colonial Office Records for 1809, and printed in H.R., VII., 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.
37. C. on T., 1812.
38. D. 13, 23rd November, 1812. R.O., MS.
39. D. 2, 28th June, 1813. R.O., MS.
40. Instructions, H.R., VII., p. 133, etc.
41. 27 Geo. III., cap. 2. See Bigge, Report, II., 1823, and Field to Bigge, 23rd October, 1820. R.O., MS.
42. Usually called the Charter of Justice. The judicial constitution here described was altered in some respects in 1814. For these alterations see Chapter VI.
43. Collins, History of New South Wales, 2nd ed. 1802, p. 11.
44. 27 Geo. III., cap. 2.
45. 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.
46. C. on T., 1812.
47. Bent to Liverpool, 19th 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.
48. 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.
49. D., 13, 23rd November, 1812, Bathurst to Macquarie. R.O., MS.
50. See his letters of 1814 and 1815 to Lord Bathurst, especially that dated 1st July, 1815. R.O., MS.
51. Rule 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.
52. 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.
53. Johnston's Trial, p. 327.
54. This 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 IX. See also Bigge Report, I., 1822, P.P., XX.
55. 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 Secretary 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, 1811.
56. Bent to Bathurst, 1st July, 1815. R.O., MS.
57. Wylde's Evidence, Appendix to Bigge's Reports. R.O., MS.
58. Bent to Bathurst, 1st July, 1815. R.O., MS. Of course the Governor could not increase a punishment.
59. Bent to Bathurst. Above.
60. D. 2, 28th June, 1813. R.O., MS.
61. Same. These remissions of sentence, etc., apply to male and female convicts alike.
62. Bathurst to Macquarie, D. 13, 23rd November, 1812. R.O., MS.
63. e.g., King and Crosley. See above.
64. The evidence does not appear sufficient to warrant this statement.
65. 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.
66. D. 13, 23rd November, 1812. R.O., MS.
67. D. 2, 28th June, 1813. R.O., MS.
68. At this time Macquarie was looking forward to the immediate establishment of trial by jury. More than a conditional pardon, however, would have been necessary before a convict could act as juryman. See Chapter IX.
69. G.G.O., 9th January, 1813.
70. "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 Committee 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.
71. i.e., from the time when the Order came into force.
72. Appendix to Bigge's Report. R.O., MS.
73. See 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.
74. e.g., Riley. See Evidence before C. on G., 1819.
75. The licence was in his wife's name. He could not hold one, being {{SIC|stilf|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!
76. D., 14th July, 1820. C.O., MS.
77. D. 10, 2oth March, 1821. R.O., MS.
78. Bigge Report., I., III., and Evidence in Appendix to Reports. R.O., MS.
79. Bigge's Report, I.
80. Ibid., III. Halloran apparently laid the foundation of secular education in Australia. Bigge was scandalised to find no Bibles or other books of religion in his school.
81. Ibid., I. Also Evidence in Appendix to Reports in R.O., MS.
82. See Bigge's Report, I. Also MS. Evidence in Appendix, passim.
83. Bigge's Report, I.
84. Ibid.
85. Ibid. 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.
86. Bent to Bathurst, 1st July, 1815. R.O., MS.
87. G.G.O., 10th December, 1815.
88. In 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.
89. Quoted in G.G.O., 10th December, 1814.
90. G.G.O., 10th December, 1814.
91. Ibid., 1816.
92. Ibid., 11th November, 1820.
93. Bigge's Report, I. The Governor was ill in December, 1819, and therefore received the petitions, etc., early in January, 1820.
94. i.e., G.G.O. of 1813.
95. In 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.
96. Ellis Bent to Bathurst, 1st July, 1815. R.O., MS.
97. 57 Geo. III., cap. 15. An Act for the more easy recovery of debts in His Majesty's Colony of New South Wales.
98. S.G., 5th February, 1820. See Wylde's Evidence, Appendix to Bigge's Reports, R.O., MS., and Bigge's Report, II. Both considered that the magistrates strained the meaning of the Act and were too ready to go outside the proper sphere of their jurisdiction.
99. e.g., Marsden was expected to supervise the asylum at Castle Hill in the Parramatta district.
100. G.G.O., 10th September, 1814.
101. See, e.g., Bigge's Report, I. He thought this a wise arrangement.
102. See Hunter's Evidence, C. on T., 1812.
103. It must be remembered that a hundred years ago this was a comparatively light punishment.
104. Hunter's Evidence. See above.
105. G.G.O., 10th September, 1814. There is a reference in this Order to imprisonment in the stocks as an alternative to corporal punishment, but no stocks seem to have been provided in any part of the settlement.
106. Bent to Bathurst, 1st July, 1815. R.O., MS.
107. G.G.O., 10th 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.
108. Riley, Evidence, C. on G., 1819.
109. Bigge's Report, I. See also Evidence in Appendix, R.O., MS. Of course the Criminal Court could impose sentences of transportation according to English law.
110. G.G.O., 10th September, 1814.
111. Ibid. See Bigge's Report, II. and Evidence, especially of Parramatta magistrates, in Appendix to his Reports. R.O., MS.
112. See opinions of both Wylde and Bent. These judicial officers found Macquarie too ready to pardon.
113. See Bent to Bathurst, 1st July, 1815. R.O., MS.
114. i.e., connected with the gaols and convicts.
115. Bent, 1st July, 1815. MS. R.O. Bigge thought the gaol-gang an ineffective form of punishment, but did not say whether it was inherently ineffective or merely badly organised. See Report I.
116. Bent. See above.
117. Evidence in C. on T., 1812.
118. Bent. See above.
119. See Chapter VIII., case of Blake and two others.
120. 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.
121. G.G.O., 18th August, 1810.
122. Ibid., 10th October, 1814.
123. Evidence of Howe, Chief Constable at Windsor in Appendix to Bigge's Reports. R.O., MS. Cox was Resident Magistrate of the district.
124. See C. on T., 1812.
125. Rev. Mr. Cartwright. See his Evidence, Appendix to Bigge's Reports. R.O., MS.
126. G.G.O., 10th September, 1814. The convicts called the Sunday Muster a "Full Bench". See Howe's Evidence above.
127. G.G.O. See note on stocks above.
128. 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.
129. In 1820 the appointment of Dr. Redfern was objected to by the Secretary of State. See Chapter IX.
130. Marsden to Wilberforce. Correspondence of Wilberforce, published 1840, vol. ii., p. 183, 27th July, 1810.
131. C. on T., 1812.
132. Bent, 1st July, 1815. R.O., MS.
133. Ibid.
134. See above and also Chapter IV., the Governor's interference with regard to the grant of licences.
135. Thompson in January, 1810, and Lord in August, 1810.
136. Marsden to Wilberforce. See above. Neither of them had been transported for very serious crimes.
137. Riley, C. on G., 1819.
138. See Marsden's Evidence, Appendix to Bigge's Reports. R.O., MS.
139. For fuller treatment of this subject of the position of "emancipists" see Chapter VII.
140. Wentworth, in evidence before Bigge, said that he himself had the whole power 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.
141. G.G.O., October, 1810, and G.G.O., December, 1810. Number of petty constables was increased to fifty in 1819, and to sixty-four in 1820. Bigge Report, II.
142. 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.
143. Pars. 5, 6. This seems the natural interpretation of the clause. See D. 12, 23rd November, 1812. R.O., MS.
144. D. I., 28th June, 1813. R.O., MS.
145. See Wentworth's Evidence, Appendix to Bigg's Reports. R.O., MS.
146. Bigge's Report, II.
147. Ibid.
148. Evidence to C. on T., 1812.
149. 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 re Trinidad, 26th June, 1806, printed in Memoirs, published 1814, vol. ii., p. 149.
150. Bent to Bathurst, 14th October, 1814. R.O., MS.
151. Bathurst to Bent, 11th December, 1815, CO., 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.
152. See Chapters VIII. and X.
153. After 1816 seven-eighths went to the Police Fund and one-eighth to the Orphan School. The latter had been founded by Governor King.
154. See Appendix to Bigge's Reports. R.O., MS.
155. Wylde's Evidence, Appendix to Bigge's Reports. R.O., MS. Wylde quotes Macquarie's Order, 1810.
156. Ibid.
157. P.P., 1816.
158. These are the figures belonging to 1813, as in 1814 there were some exceptional expenses under this head.
159. D. 20, 4th May, 1812, Liverpool to Macquarie. R.O., MS.
160. Ibid.
161. 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.
162. D. 21, 5th May, 1812. R.O., MS.
163. D 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.
164. 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., VII., p. 133, par. 2.
165. See Commission, H.R., VII., dated May, 1809.
166. See correspondence of Bent with Colonial Office, 1814 to 1815, R.O., MS.. See also Chapter VII..
167. Rusden, History of Australia, vol. i., p. 252. See also H.R., VI., p. 104, 1st July, 1806.
168. This was the view held by Judge-Advocate Wylde and Judge Field. See Evidence of both in Appendix to Bigge's Report. R.O., MS.
169. S.G., 18th January, 1812.
170. Bent to Bathurst, 14th October, 1814. R.O., MS.
171. Bent to Colonial Office, 1811 to 1815, passim. R.O., MS.
172. Wylde's Evidence, Appendix to Bigge's Reports. R.O., MS.
173. Bent, see above. Bigge's Report, II.
174. 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.
175. He had, of course, no legal right to such a title.
176. 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.
177. See 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.
178. See 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 Diemen's Land. A Masonic Lodge was afterwards formed in New South Wales, but not by the convicts.
179. See for this episode Rusden, History of Australia, vol. i., p. 250.
180. e.g. petitions for remissions of sentence.
181. G.G.O., 8th June, 1805.
182. Proclamation, 27th November, 1813, S.G. drawn by Ellis Bent. See Wylde's Evidence in Appendix to Bigge's Reports. R.O., MS.