A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 10

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Authorities.—Despatches, etc., in Record and Colonial Offices. Hansard, 1809-1822. The Times, 1819-1823. Edinburgh Review. Memoirs of Romilly. Life and Letters of W. Wilberforce. H. G. Bennet's Letter to Lord Bathurst. Jeremy Bentham's Plea for the Constitution. Macquarie's Letter to Lord Sidmouth. P.P., 1812, II.; 1819, VII.; 1822, XX.; 1823, X.; 1823, XIV.

It was many years after its foundation that New South Wales began to attract any attention in England. Here and there, however, men of influence and importance followed with interest the development of the far off penal station. Sir Joseph Banks, the President of the Royal Society, who had been with Cook on his voyage of exploration, busied himself constantly in the Colony's affairs, and for many years was the chief adviser of the Government both in England and New South Wales in regard to its pastoral and agricultural needs.[1]

Equally zealous was William Wilberforce in watching over another branch of colonial activities—those of religion and education. It was he who selected the Rev. Mr. Johnston, the first chaplain, and the Reverend Samuel Marsden who replaced him in 1793, the latter one of the most famous of the early pioneers. Wilberforce was also active in urging the despatch of schoolmasters to the infant state,[2] though perhaps his chief interest lay in the possibilities presented by the settlement as a centre for missionary enterprise in the South Seas.[3] Later, when he came to act in closer connection with prison and criminal law reformers in the House of Commons, his interest in New South Wales was placed on a wider basis. But in earlier years when he and Pitt were close friends it was the religious interests of the Colony alone which he attempted to influence.

From 1803 to 1812, Lord Hobart, Mr. Wyndham, Lord Castlereagh and Lord Liverpool held successively the seals for War and the Colonies. But in June of the latter year Lord Bathurst came into office and he remained Secretary until 1827. In August, 1812, Henry Goulburn, as Under-Secretary for the Colonies, replaced Robert Peel, who had in that position made his entry into official life. Goulburn remained in this office until the end of 1821.

At that period the parliamentary chiefs of the department appear to have been in every sense the administrators, and the permanent officials of the Colonial Office held an altogether unimportant position. But even the Secretary of State, as has been seen in earlier chapters, often had insurmountable difficulty in enforcing his policy upon the colonial Governors. Nevertheless the personality and opinions of the Secretary and Under-Secretary were of importance in affecting the development of the Colony, and it is of interest to know what manner of men they were.

Lord Bathurst was a kindly Tory of the old school, well fixed in the old ways, and was one of those who retired altogether from politics with the passing of the Reform Bill. He was industrious and religious, with a strong inclination towards the Clapham sect, and he had plenty of plain common-sense. During a long Parliamentary career he made one speech only, and that a short one, which rose above the merest mediocrity.[4] He was a high-minded public-spirited aristocrat, who had probably gone into politics as a kind of family duty, was a tolerably competent official, had a close regard for routine and a total lack of imagination.

It is very difficult to describe Goulburn. He was even at this time a very close friend of Peel's, and his relations with all his colleagues, so far as they can be judged from the semi-official and private letters amongst the Colonial Office papers, appear to have been of the pleasantest kind. But he seems to have been then, as he was in after life when he had attained high office, one of the most colourless of men. He was of much the same type as Lord Bathurst, but having been born a commoner, found it necessary to be just a little better informed, a shade more efficient, than his titled chief. Though a Tory, he was inclined to more liberal views that Lord Bathurst, though in regard to New South Wales no opportunity was taken for putting them in practice. His colonial policy was vague and rather inconsistent.

"We were not to consider," he said on one occasion, "these Colonies merely as the appurtenances of grandeur, and the gratification of national vanity, but to weigh the right of the people and their individual happiness. … To those who thought that the Colonies were only an encumbrance on the country, it might be that these reasons would have little weight; but with those who like himself considered them one of the great sources of our glory, and one of the great supports of our power, affording resources in war, and increasing our commerce in peace, with those who thought them important under every consideration, it would not be doubted that they had a right to due attention. …"[5] Two years later in a debate on Army Estimates in new colonies, he said:—

"The effect of that principle (on which was founded our colonial policy) was, in compensation for a monopoly of commerce, to maintain the civil and military establishments of the Colonies. Whenever that branch of the subject should be brought forward he trusted he would be able to show that this system of retaining in our own hands the sources of commercial profit was justified by sound policy, and ought not to be rashly abandoned."[6]

These two utterances, the only statements of general colonial policy which he can be found to have made, are scarcely illuminating. The consideration of the "rights" of colonists and their support in war consort but ill with this statement of commercial monopoly. It would, however, be equally difficult to give any clear account of the colonial policy of the whole Tory party at this period, though the principles upon which New South Wales was founded and governed were sufficiently lucid.

At the time of its foundation it was necessarily a mere military station under autocratic rule. That such a form of Government continued so long may be considered as due to a deliberate policy and as a natural outcome of the Tory principles of the period of reaction. For this theory there is support in the fact that the only other Colony of which England at this time became possessed which was at all similar to New South Wales, the Cape of Good Hope, shared the unenviable distinction of being placed under an autocratic Governor unrestrained by a Council. Both Colonies were to be agricultural, and both were expected to prove self-supporting.[7] Neither could be considered as a mere military station, and the plea that one contained a hostile Dutch, and the other a hostile convict population was not a rational one. In the case of New South Wales at least such a position was ridiculous. In spite of the rising in 1805, no sign of a convict rebellion ever again occurred, either under the military government or after the establishment of a Council in 1825. Yet from 1805 to 1821 the opportunity of the convicts was unique. They far outnumbered the rest of the population, and from 1815 to 1821 the military protection of the Colony was admittedly insufficient.[8] Yet the garrison constituted the only efficient and reliable police. The Home Government did not until 1821 increase it, but they did year by year increase the number of convicts. If the reply to Ellis Bent was that it was still considered necessary to preserve military government, the reason must have been, not fear of risings which would have to be dealt with by rapid decrees (indeed by declaring martial law, that might have been done under any Government), but rather a belief in the efficiency of an autocracy.

Probably the Secretary of State feared more from the colonists' discontents than from convict rebellions. The Bligh affair cast an unpleasant shadow long after tranquillity had been restored. But the presence in the Colony of what Goulburn called "such inflammable material" as the convicts, and past troubles with Bligh, probably did no more than give a colour of reason to the Tory principle of the period. It was after all a time when government by the benevolent despot was a favoured system. The people were to be ruled by those selected for that purpose by the highest authority, and due subordination was to be preserved. A belief in inequality was not questioned as a prejudice, but firmly adhered to as a fundamental principle. For a small Colony it appeared obvious that such a system was a fitting one. The settlers belonged to a comparatively low stratum of society, the convicts of course lower still. It was but natural and proper that all should be governed by a superior (though not necessarily an exalted) intelligence selected for them by the Government at home. Lord Castlereagh, who was perhaps the harshest of this set of reactionaries, wrote of colonists in an undoubted tone of contempt.[9] Lord Liverpool, much more liberal in his opinions, yet considered the Constitutional Act for Canada of 1791, with its moderate constitutional freedom, as a fatal error.[10] But though from the scanty materials at hand this suggestion cannot be too much pressed, it is at least strange that the reasons for continuing the peculiar form of Government in New South Wales were never set forth more at large. From 1800 the policy was one of pure negation and only one definite advance, the reform of the courts in 1814, can be recorded until in 1817 the Government began to falter in their reiteration of the necessity for a military government and finally set out to modify the system.

Under these circumstances it fell naturally to the lot of the opposition to champion the cause of discontented colonists. It is one of the ironies of history that the retired army and naval officers, gentlemen farmers and graziers, all of them men with a natural bias towards Toryism, being discontented with the autocracy at Sydney, were driven into the arms of the Whigs and the Radicals in England.[11]

It was without their solicitation and apparently without their knowledge that Jeremy Bentham took up the subject of New South Wales in 1802. In this year he wrote his two letters to Lord Pelham. The first compared the system of dealing with criminals by transportation to New South Wales with his own scheme of the Panopticon, the second described the home penitentiaries of America. His attention was thus called to the condition of New South Wales by the neglect of his Panopticon, and in 1803 he pursued the subject in a pamphlet entitled "A Plea for the Constitution," in which he discussed not the "policy of the settlement," but its "legality".[12]

The only material before Bentham in writing of New South Wales was that provided by a few remarks by the Select Committee on Finance in 1798, and the History of New Holland by Lieutenant-Governor Collins, of which a second edition was published in 1802 and which gave in diary form a naïve account of colonial life.[13]

Little noticed as these writings of Bentham's were, it seems worth while to give some account of his treatment of the Colony's affairs for two reasons, first because each point to which he turned his attention came to be discussed afterwards, and because the two men who chiefly bestirred themselves in New South Wales affairs between 1810 and 1820, Sir Samuel Romilly and the Hon. H. Grey Bennet, both came within the influence of Bentham.[14]

In the first letter to Lord Pelham,[15] Bentham sought to discover what profit New South Wales brought the mother country. He held of course in the most extreme sense the theory that from the point of view of economics, colonial expansion was utterly mistaken.[16] After a short resumé of the economic argument he thus summarised the position.

"Thus then stands the real account of profit and loss in respect of Colonies in general. Colonies in general yield no advantage to the mother country, because their produce is never obtained without an equivalent sacrifice, for which equal value might have been obtained elsewhere. The particular Colony here in question yields no advantage to the mother country, and for a reason still more simple—because it yields no produce."

The only real acquisition, he concluded, was two hundred and fifty new-discovered plants, "but plants, my Lord, as well as gold, may be bought too dear. … In return for so many choice and physical plants, transplanted from the Colony, there is one plant, though it be but a metaphorical one, which has been planted in the Colony … and that is—the plant of military despotism."

It was this form of Government which he analysed in the Plea for the Constitution in the following year.[17]

He discussed very minutely the illegal assumption of legislative powers, powers however, which he admitted had necessarily been exercised in the beginning and on many occasions in a praiseworthy manner. No Colony, he said, had ever started so badly equipped with legal rights. To give a Royal Charter would indeed have been impossible, for to a charter there were needed two parties and a forced exile, a convicted criminal could not be one of them.

"Instructions and counter-instructions, insinuations and counter-insinuations," he wrote, in a characteristic passage, "instructions in form and instructions not in form; despotism acting there by instructions and without instructions and against instructions; all these things there may be and there will be in abundance. But of charters …; of constitutions …; of lawful warrants, unless from Parliament; from the present day to the day of judgment there will be none."[18]

No blame, however, was to be attached to the Governor. "Whatsoever were given to him for law, by his superiors at the Council Board, or the Secretary of State's office, would naturally enough, one may almost say unavoidably, be taken by this sea-captain for law."[19]

The Home Government were the real culprits, and either they had knowingly persevered in an illegal course or had ignorantly blundered. The latter theory seemed unlikely, for the power of Parliament had been invoked to give New South Wales a Criminal Court, and "wherefore apply to Parliament for powers for the organisation of a judicial establishment in that Colony". Judicial power is in its nature inferior, subordinate to legislative. If the Crown had an original right to create the superior power, how can it have been without the right of creating the subordinate?[20]

After closer discussion Bentham concluded, "But all collateral questions dismissed, thus, on the ground of law, stands the Government of New South Wales. Over Britons or Irishmen, in or out of Great Britain and Ireland, the King, not being himself possessed of legislative power, can confer none. To confer it on others, those others being his instruments, placeable and displaceable by himself at any time, is exactly the same thing as to possess and exercise it himself The displaceable instruments of the Crown—the successive Governors of New South Wales—have, for these fourteen years past, been exercising legislative power without any authority at all from anybody, or at most without any authority but from the King; and all along they have been, as was most fit they should be, placed and displaced at His Majesty's pleasure."[21]

In 1803 New South Wales enjoyed some amount of notice, for Collins' book was reviewed in April by Sydney Smith in the Edinburgh Review.[22] It was a very characteristic piece of writing, and altogether condemnatory of the settlement and all thereto belonging.

"With fanciful schemes of universal good," he wrote, "we have no business to meddle. Why we are to erect penitentiary houses and prisons at the distance of half the diameter of the globe, and to incur the enormous expense of feeding and transporting their inhabitants too, and at such a distance, it is extremely difficult to discover. It is certainly not from any deficiency of barren islands near our own coasts, nor of uncultivated wastes in the interior; and if we were sufficiently fortunate to be wanting in such species of accommodation, we might discover in Canada, or the West Indies, or on the Coast of Africa, a climate malignant enough, or a soil sufficiently sterile to revenge all the injuries which have been inflicted on society by pick-pockets, larcenists and petty felons. …"

"It is foolishly believed that the Colony of Botany Bay unites our moral and commercial interests, and that we shall receive hereafter an ample equivalent, in bales of goods, for all the vices we export."

The writer was, however, thoroughly hopeless. "It is a Colony besides begun under every possible disadvantage; it is too distant to be long governed, or well defended; it is undertaken, not by the voluntary association of individuals, but by Government, and by means of compulsory labour. … It may be a curious consideration to reflect what we are to do with this Colony when it comes to years of discretion. Are we to spend another hundred millions of money in discovering its strength, and to humble ourselves again before a fresh set of Washingtons and Franklins? … Endless blood and treasure will be exhausted to support a tax on kangaroo skins; faithful Commons will go on voting fresh supplies to support just and necessary war; and Newgate, then become a quarter of the world, will evince a heroism not unworthy of the great characters by whom she was originally peopled."

From this time until 1810 the Colony sunk again into complete obscurity, from which it gradually emerged through the agency of Sir Samuel Romilly. His work in the reform of Criminal Law naturally led him to inquire into the concerns of New South Wales, and the little he could learn left him extremely dissatisfied as to its condition and the probable effect of transportation upon the convicts.

On the 9th of May, 1810, he moved in the House of Commons that an address be presented to the King praying that the Penitentiary Acts of 19 Geo. III. and 34 Geo. III. should be put into force.[23]

The motion was withdrawn at the request of Ryder, the Under-Secretary for Home Affairs, who stated his sympathy but asked for delay. On the 5th of June Romilly renewed the motion, but found Ryder "as little prepared now as he had been before"[24] and he again asked for delay and suggested a committee. The matter, however, was pressed to a division, and Romilly made a long speech during the debate, basing his remarks chiefly on Collins.[25]

"In whatever light we consider it," he said … "we shall find it extremely inefficacious. As an example the effect of the punishment is removed to a distance from those on whom it is to operate. It is involved in the greatest uncertainty, and is considered very differently according to the sanguine or desponding disposition of those who reflect on it, or according to the more accurate or erroneous accounts of the Colony which may happen to have reached then."

He spoke of Collins as "the panegyrist of the Colony," and yet, he said, "his history is little more than a disgusting narrative of atrocious crimes and most severe and cruel punishments.[26] It is indeed a subject of very melancholy, and to this House of very reproachful reflection, that such an experiment in criminal jurisprudence and colonial policy as that of transportation to New South Wales should have been tried, and we should have suffered now twenty-four years to elapse without examining or even inquiring into its success or its failure."

"The punishment of transportation has indeed been sometimes considered as one of no great severity, and I have been very sorry to hear it so represented by those on whom the inflicting it depends …; it is sometimes inflicted on boys at a very early age merely as a means of separating them effectually from the bad companions they may have formed at home. It were much to be wished that those who consider transportation in this light would impose upon themselves the duty of reading Mr. Collins' history of the settlement that they might acquire a just notion of all the complicated hardships and sufferings to which transported convicts are exposed."

The motion was lost, but not by a great majority, the number being fifty-two to sixty-nine.[27]

During the vacation Romilly prepared a pamphlet on New South Wales which was, however, never published, perhaps never completed.[28] Early in 1811, a Committee of the House of Commons was appointed on Ryder's motion "to inquire into the expediency of erecting penitentiary houses".[29] Romilly moved an instruction for the Committee "to inquire into the effects which have been produced by the punishment of transportation to New South Wales and of imprisonment on board the hulks, and the motion was accepted".[30]

The Committee reported in June, but without having made any inquiry at all into the affairs of New South Wales. Their report was incomplete in other respects also, and Ryder moved for its reappointment, "to consider of the expediency of erecting penitentiary houses, and that it be an instruction to the said Committee to inquire into the effects produced by transportation to New South Wales."[31]

To this Romilly objected. He hoped "the latter subject, which had originated with himself, would not be thus thrown into the background". The Committee, with so much work to do, would not be able to report to the House that session, and New South Wales affairs called for immediate inquiry. He used one argument which was comically beyond the facts of the case. "It was," he said, "of the utmost importance, in a political point of view, and as it affected other countries. Those who escaped from New South Wales were well calculated to give a new character to the South Seas and to form dangerous nests of pirates."[32]

Ryder withdrew the latter part of his motion and Romilly gave notice "that he should on Friday move for leave to bring in a Bill for repealing 29 Geo. III., relative to the transporting of convicts".[33]

This drastic step was not taken, but on the 12th February Romilly moved for the appointment of a Committee on Transportation, and the motion was carried without opposition.[34] Mr. George Eden[35] was named as chairman, and amongst the members were Sir Samuel Romilly, Robert Peel, and Henry Goulburn.

The Committee took evidence on thirteen days, extending over a long period of four months, and finally presented their report on the 10th of July, 1812. The recommendations of the report have been already referred to, and the scant attention paid to them by Government commented upon. It is, however, interesting to see what were the materials at the command of the Committee. Fourteen witnesses were examined, two of whom were transportation officers in England who had never been in the Colony, and one, Captain Flinders the discoverer, who gave evidence as to the Australian coasts only. Of the remaining eleven, four were ex-convicts who had but little to say, two were former Governors, Hunter who had left the Colony in 1800, and Bligh who had anything but happy recollections of it. The Rev. Mr. Johnston, another witness who had been the first chaplain and had been back again in England some fifteen years, showed that in addition to his long absence from the Colony, his observations themselves had been to very little purpose. Two colonists who had come home as witnesses for Bligh spoke with some intelligence of the condition of affairs in 1810, and Johnston, the leader of the mutiny, who had left the Colony in 1808, also gave evidence. The most recent arrival and the most intelligent witness was Lieutenant Edward Lord of Van Diemen's Land, but he had no knowledge of the parent Colony. The evidence on the whole was very weak. Few witnesses appeared sure of their facts and fewer still to have observed with closeness or accuracy the colonial Government or the condition of the population. Far more valuable was the small collection of extracts from Macquarie's despatches and the letter of Ellis Bent to Lord Liverpool,[36] and it was on these that the Committee based the greater part of their report.[37] That report was on the whole sanguine. New South Wales was "in their opinion in a train entirely to answer the ends proposed by its establishment. It appears latterly to have attracted a greater share of the attention of Government than it did for many years after its foundation; and when the several beneficial orders lately sent out from this country[38] and the liberal views of the present Governor[39] shall have had time to operate, the best effects are to be expected. The permission of distillation and the reforms of the Courts of Justice are two measures which your Committee above all others recommend as most necessary to stimulate agricultural industry, and to give the inhabitants that confidence and legal security which can alone render them contented with the Government under which they are placed."[40]

The report was no doubt very unsatisfactory to those who had promoted the Committee, and for some time New South Wales was neglected by the Opposition. In 1815, however, when the Government brought in a Bill for renewing the Transportation Laws, they met with strong opposition, and the Bill was passed as a temporary measure for one year only.

On this occasion Romilly and the Hon. Henry Grey Bennet were the most prominent speakers against the Bill. Bennet had entered Parliament in 1814 as member for Shrewsbury, and was not returned in the new Parliament in 1821. Strictly he belonged rather to the Radical left than to the regular Whig opposition, and he took a prominent position on questions of prison reform and criminal law. Miss Martineau refers to him in conjunction with Sir Francis Burdett as a popularity hunter, and one of those who made "frenzied declamations against individual members of the Government".[41] This, indeed, appears to have been his favourite form of debate, and not particularly liked by some who supported him. "Bennet very coarse but very strong," Wilberforce records in his diary on one occasion.[42] He used to be coached in his Parliamentary business by Francis Place. "I told Bennet," he wrote in 1819, "from the first that I should wear him out, that he would be obliged either to shun me or lead a dog's life with his party. He said, 'No,' I said 'Yes'. He has done so. But next session he will come again, and as he certainly means well, I shall be pleased to see him."[43]

In these slight criticisms, and in the light of his writing and speeches, Bennet appears as a rather blusterous Radical of no remarkable ability, but active, clever, and ready to take up the cause of those he thought oppressed. The official Whigs, as Place observed, disliked him; and he rather shocked the gentle Wilberforce. He was, however, very active in the cause of New South Wales, and in these years not without influence in its affairs. When in 1816 the Transportation Act was about once more to expire, Bennet urged that the Bill to renew it brought in by the Government should not be rushed through the House, as had been done in the previous year. He expressed himself as opposed altogether to the principle of transportation, and proceeded to the inaccurate and startling statement, made probably on hearsay evidence only, that the whole system of management at Botany Bay tended so little to reform the convicts that "the numbers of executions in that settlement far exceeded the average of natural deaths'.[44] In the second reading Bennet spoke again to much the same effect, and was answered by Goulburn,[45] who pointed out the fallacy of his arguing from the information before the Committee of 1812 (really describing the Colony before 1810) as to the present conditions. There had, he said, been only six executions within the last two years.[46] Reference was made in the course of the debate to the fact that the House knew nothing of the result of the 1812 Committee, and shortly afterwards the despatches of Lord Bathurst and Governor Macquarie were laid on the table in accordance with a request of the House.[47] No discussion, however, took place upon them.

In April the Opposition proposed that the Third Secretary of State for War and the Colonies should be abolished. A lively debate and a fairly large division in favour of the Government resulted, 182 voting for and 100 against them,[48] and just a year later another similar attempt resulted in another defeat, the division showing 190 votes to 87.[49] In the course of both debates New South Wales was proclaimed by the Opposition as belonging by logic and convenience alike to the Home Office as part of the prison system of the country. It was true that the Home Office had much to do with its administration in regard to the number and class of convicts sent thither, but the penal character of the Colony was yearly becoming less prominent, and this change was marked by an event in 1817. Bennet presented a petition, on the 10th of March, from free British subjects in New South Wales.[50] It was the document brought to England by Vale, and exaggerated and possibly false though it was, it was the cry not of convicts but of free settlers oppressed by the weight of an autocratic Government. Lord Castlereagh "took occasion to observe that he rose only at present to say a few words for the purpose of guarding the reputation of the gallant officer (General Macquarie) from being prejudiced in any way. … He had filled the office of Governor many years; he had been brought under his (Lord Castlereagh's) notice, when at the head of the colonial department, solely by his personal merit, and he believed had fulfilled the sanguine expectations which were formed of his competency for the discharge of all the duties belonging to that arduous and distant station. Mr. Bennet entirely agreed in the high character of General Macquarie."[51] Amid this general atmosphere of compliment to Macquarie the petition was read and no further proceedings taken upon it.

But the Government, while loyally supporting their officer in Parliament, were somewhat disturbed by reports from the Colony. The affairs of Vale and Moore, the condition of the female convicts as they learned of it in Bayly's letter to Sir Henry Bunbury, the strained relations between Governor and free settlers created a sense of strong misgiving. Meanwhile in England the number of crimes to which the punishment of transportation was affixed was rapidly increasing. On 23rd April, 1817, Lord Bathurst proposed to Lord Sidmouth that they should send a Commission of Inquiry to New South Wales. The important question was whether New South Wales was still a suitable place for a penal settlement. "So long," he wrote, "as the Colony was principally inhabited by convicts and but little advanced in cultivation, the strictness of police regulations and the constant labour, under due restrictions, to which it was then possible to subject the convicts, rendered transportation, as a punishment, an object of the greatest apprehension to those who looked upon strict discipline and regular labour as the most severe and least tolerable of evils".[52]

The conditions were changed, and he proposed "to recommend to His Royal Highness the Prince Regent the appointment of Commissioners to proceed to those settlements, with power to investigate all the complaints, which have latterly been made, both in respect to the treatment of the convicts and the general administration of the Government".[53]

Lord Sidmouth at once consented,[54] and in the course of the next two years sought for a suitable person or persons with whom to entrust these difficult and important investigations. Finally it was decided to send one Commissioner only, and Mr. J. T. Bigge accepted the post with a salary of £3,000 a year. He had held judicial offices in Trinidad, and was a high-minded, conscientious, intelligent man, well fitted for his post. With him as Secretary with a reversion to the Commissioner-ship went Mr. Thomas Hobbes Scott, but whether or no he played any important part in preparing the reports it is quite impossible to say.

Bigge's commission was dated 6th January, 1819, but he did not sail until April, and his appointment was spoken of in the House of Commons as about to be made as late as March, 1819.

The year was an important one for the Colony. Bennet published his letter to Lord Sidmouth, in which he described the settlement as he knew it from the reports of Marsden, Vale and J. H. Bent, and W. C. Wentworth, the eldest son of D'Arcy Wentworth, published the first edition of his description of New South Wales, which contained some information of the agricultural condition of the Colony and an enthusiastic account of its capabilities, and put very strongly in Wentworth's rather perfervid style the need for jury trial and a legislative council.[55] It took the place of a history of New South Wales up to 1812 written by a Mr. O'Hara, who had, however, no first-hand knowledge of the Colony.[56] Still the interest in New South Wales was keen, for the book published in 1812 went into a second edition in 1818. The three books were criticised in the Edinburgh Review of July, 1819, by Sydney Smith with his usual colonial pessimism, and he accepted much more readily the denunciations of Bennet than the hopeful patriotism of W. C. Wentworth.

"Thus much," he concluded, "for Botany Bay. As a mere Colony it is too distant and too expensive; and, in future, will involve us of course in many of those just and necessary wars, which deprive Englishmen so rapidly of their comforts, and make England scarcely worth living in. … One of the principal reasons for peopling Botany Bay at all, was, that it would be an admirable receptacle and a school of reform for our convicts. It turns out that for the first half century it will make them worse than they were before. …"[57]

Bennet was active in Parliament as well as without. On the 18th February, 1819, he moved the appointment of another Committee to inquire into the effects of Transportation to New South Wales. His speech was the most comprehensive and important which had as yet been delivered in England upon the affairs of the Colony, and showed both in its weakness and its strength the difficulties under which any unofficial inquirer then laboured in gaining a knowledge of so remote a country.[58]

Having dealt first with the condition of the hulks and the effects of imprisonment upon them (matters which he understood from personal observation) and the mode of transporting the convicts to New South Wales, he turned to a description of the colonial Government.

"The Governor of this Colony," he said, "assumed to settle the price of all labour and also of all provisions; and the orders upon this subject were issued by the Governor himself without referring to the opinion of any council; an extraordinary stretch of power. …"

He proceeded: "the Governor had the power of opening and shutting the public stores and the ports of the island[59] at his own pleasure". The consequences of this and of the sudden reduction in the price of meat he described much as Riley described them later in his Evidence before the Committee on Gaols.

Turning to the Colonial Judiciary he said, "The Committee of 1812 had recommended the introduction of trial by jury into this Colony. … He would not say at present that juries ought to be introduced into New South Wales; but he thought it most inexpedient that the question should be determined in consequence of any sort of communication made at the office of the Secretary of State. He wished to hear the opinion of those who advocated and those who objected to such a measure stated openly, and to let Parliament judge with respect to the wisdom of adopting the recommendation he now alluded to."

In reference to the appointment of magistrates he was rather confused. He referred to the appointment of Lord and Johnson (probably a reporter's error for Thompson) as the appointment of the convict attorneys, adding that the appointments "were improper, and that it was the duty of the noble lord at the head of the colonial department to reprimand the Governor for so gross an outrage on property and justice".

Coming to the power of the Governor to inflict punishments he trod on firmer ground. "Governor Macquarie had thought fit, of his own free will, to cause three free settlers[60] to be flogged for what was called a contravention of the orders of the Governor in going through a hole in a wall into what the Governor called his park. … He understood indeed that the person in question[61] intended to institute a prosecution against the Governor on his return home, but that was no reason why the House should shut its eyes to the transaction. … Had the Governor had the good fortune to have a council, this and many other transactions of a like nature would never have occurred. Governor Macquarie might be unwilling to receive such a council, but why Lord Bathurst should put 20,000 persons and their properties under the unlimited control of one individual without any council to advise him, he was altogether at a loss to conceive."

The state of morals, the neglect of the female convicts, the number and unsuitable character of the licensed publicans, the giving of tickets-of-leave to persons "who had come out with their pockets filled by the crimes which they had committed in England," were all touched upon.

"The subject of the taxes levied in this Colony," he went on, "was also well worthy of attention." The Governor had levied taxes on commodities and there appeared to be nothing to prevent them from going further and levying a property tax; yet as New South Wales was not a conquered Colony, there was no power but Parliament which could legally raise money within it.

"Were we to plant a Colony on the other side of the globe and to take no care as to the manner in which it was … administered? He had no hesitation in saying, that if the settlement were well governed and its resources wisely drawn forth, it might be made, instead of a seat of immorality and a nursery of vice, a source of great profit to the country."

Wilberforce, who supported the motion, dealt rather hardly with the faults of Macquarie's government and the failure to reform the convicts.

Goulburn opposed the motion on reasonable grounds. "If, … the report of 1812 was meagre," he asked, "why was it so? It was because the committee had to investigate at a distance of thousands of miles from the subject of their investigation. … In 1812 they could only procure information to 1810, and in 1819 the proposed committee could only gain a knowledge of the transactions of 1817. …"[62]

Lord Castlereagh pointed out that there was no need of a Committee, for "before the honourable gentleman gave notice of the present motion, his noble friend at the head of the colonial department had instituted a Commission and had obtained the consent of an individual … to go out to the Colony and make a detailed inquiry on the spot, for the purpose of ascertaining whether the Colony could be made more auxiliary (sic) to the administration of justice in this country, and how far its moral and religious improvements might be promoted." The motion was lost.[63]

Then suddenly the Government made a volte face apparently without further solicitation. On the 1st March, twelve days after Bennet's motion. Lord Castlereagh proposed the appointment of a Committee to inquire into Gaols, Prisons and Transportation. He made clear what were the Government's feelings towards New South Wales.[64]

"It would," he said, "be necessary to inquire if Botany Bay, as it had lately and as it still existed, had not a character more colonial than belonged to a place appropriated to the punishment of offenders." He passed on to a queer piece of philosophy. "It would be necessary to inquire whether the period had not arrived when it might be relieved from being the resort of such characters as had hitherto been sent to it, and might be permitted without interruption to follow the general law of nature by a more rapid approximation to that state of prosperity to which, it was to be hoped, every part of the world was destined to arrive." He finally stated that the Government "had it in contemplation to propose some place nearer home to which convicts might be transported "at a more moderate cost.

The Committee was an important one, including Castlereagh and Canning, and Sir James Mackintosh, Fowell Buxton, Bennet, Brougham and Wilberforce, amongst its members. But the affairs of the Colony remained still before the House. On the 12th March, Wilberforce notes in his diary that Brougham had consented to present the New South Wales petition,[65] and on the 23rd he did so. The petition was signed by Blake and Williams, the former one of the men who had been flogged by the Governor's orders, the latter a man who had been dismissed from the Government printing-office by Macquarie's direction because he had signed the petition of Vale. The document had been prepared by J. H. Bent and contained much extraneous matter which it was doubtful whether Blake had known about or wished to have included. It was even doubtful whether it had been read over to him before he had placed his mark upon it.[66] These facts were not, however, known when Brougham, in a temperate speech, presented the petition.

"With respect to the conduct of Governor Macquarie, he should say, that if culpable, he was disposed to consider such conduct rather as a fault of the system than of the man. …[67] The Colony in question was extremely important, and might very soon be the most so of all our foreign Colonies. This was the very time for inquiry, when its Governor seemed to be entering upon a wrong course and might therefore be the more easily set right. He thought that any charges which could justify a parliamentary inquiry into his conduct would also justify his recall. His Majesty's subjects in that distant Colony had an indefeasible and, till now, an unquestioned right to ask Parliament to redress their wrongs. It might be urged that the individual of whom they complained was absent; that was his misfortune; unless, against that misfortune, he chose to set off his being Governor of the settlement. While he continued to exercise his functions as Governor the petitioners could not enter actions against him; if he quitted the Government, but did not come home, they were still incapacitated from bringing their actions against him, because no process could be served upon him."[68]

In the discussion that followed, Forbes, a friend of Macquarie's, defended him with an inaccuracy which is worthy of note.[69]

"Governor Macquarie," he said, "resolved to allow individuals who had been hitherto excluded to practise, and in the exercise of his authority ordered the judge to receive them as barristers and solicitors accordingly. This measure was afterwards communicated to His Majesty's Government and received its approbation."

Wilberforce urged inquiry, saying "… with all his respect for Governor Macquarie, he would confess that he should think him something more than human if, vested with almost uncontrolled authority, his conduct had not been in some degree affected by that circumstance. It commonly had the dangerous effect of shutting up, or of corrupting, the channels of information to him who was so unhappy as to possess it. … He was anxious for inquiry also on this additional ground, that Governor Macquarie might be made acquainted with all that was known in this country."[70] Goulburn, who spoke for the Government, promised inquiry into Williams' case (which was indeed made by Bigge with the result that his right to a grievance was proved) and touched lightly on Blake's affair, but his defence of this was very weak.[71] One other matter of importance had been raised by the petitioners and commented upon by Brougham—the action of the Governor in raising £24,000 a year by taxes without being warranted by his commission to do so—even supposing such a power could have been legally granted to him by the King. The position was at the moment rather peculiar. Shortly before, the Colonial Office had received a despatch from Macquarie conveying important news.[72]

"… I have to observe," he wrote, "that a serious and weighty difficulty has been started by our present Judge of the Supreme Court in regard to the legality (of the colonial duties) … which until obviated by some measure from Home will necessarily tend to render the raising of a revenue in this country, by the present mode, at once precarious and dangerous. A letter from Mr. Justice Field … on this subject being in my mind very full and clear, although I cannot altogether accede to the expediency or even propriety of our Law Courts acting thereon at this time, I do myself the honour to transmit your Lordship a copy of it. …"

The Judge's letter (dated 23rd February, 1818) had been called forth by the Governor's intention "to institute several suits in the Supreme Court for the recovery of customs duties". On considering the question, Field decided that as he could not "cherish the least doubt that we must (and as I understand that we soon shall) have an Act of Parliament for the purpose of legalising those duties which your Excellency had thought it expedient to impose, may I be forgiven if an anxiety to prevent the public discussion of a question, in which I might perhaps be forced to give an official opinion against the present legality of such duties, induces me to request your Excellency to instruct the solicitor for the Crown to forbear to proceed in the suits in question for the present.

"I am informed that the payment of these duties has never yet been attempted to be legally enforced in the Colony, and that your Excellency is so satisfied that there ought to be an Act of Parliament for them, that you have hitherto only reported defaulters home, and not felt yourself justified in arresting their flight from the Colony.[73] I have not the least doubt that the only reason why your Excellency has not yet been armed with such an Act of Parliament is that his Majesty's Government are not sufficiently aware of the great amount of the duties, or of the rising importance of the Colony".

Macquarie somewhat reluctantly did as Field advised. Field wrote himself to Goulburn on the same subject in November, saying, "If the Act of Parliament alluded to be not already passed, I am sure that the Earl Bathurst will see the necessity of an early consideration of the subject, since our duties are now so high that the practice of smuggling is already begun, and it is not to be wished that such a community as this should know that the law is impotent to enforce the payment of those duties."[74]

Apparently it had come before them in another way also, for Goulburn now explained, 23rd March, 1819, that "of late several persons had refused to pay, and their representations brought the matter for the first time under the notice of Government". It had not previously been thought of because when he came into office the duties were already in existence. The case was referred to the Crown Law Officers and their opinion was that it was illegal. The opinion was given on the 9th March, and the Government intended to bring in a Bill on the subject.[75]

However, the Government were willing to wait until the Commissioner had been to New South Wales before making any further changes. After a speech from Bennet[76] in which he made the totally inaccurate statement that the "single difference" between the power of punishing criminal offences in New South Wales and in England was that in the former "trial by jury was not necessary if the alleged crime were committed by a convict," the discussion on the petition came to an end. It had, however, the result of hastening the investigations by the Committee on Gaols, and a few days later Bennet informed the House that the Committee had decided to enter immediately upon the subject.[77]

They began forthwith to take evidence, and on 7th April Bennet, on the strength of the important evidence before them, and the proofs they had of the terrible conditions under which the female convicts lived in the Colony, proposed to the House, by means of an address to the Regent, to delay the sailing of a vessel with female convicts until the Report of the Committee had been made. "Never was a clearer case," wrote Wilberforce. "I seconded it in order to soften, and to induce them to stop the ship by stating that its being thought that some remedy might be devised for the evils of the middle passage and of New South Wales was a reason sufficient. Greatly beat, alas!"[78]

The Committee went on gathering evidence, and meanwhile the Government brought in their Bill for legalising duties in New South Wales and also indemnifying the Governor for having previously levied them. But in this form it was strenuously opposed, especially by Bennet, and the indemnity clauses had to be dropped. Bennet "thought it strange that in the last week of the session the Hon. Gentleman should call on the house, not only to legalise the duties but to indemnify the person who had unwarrantably imposed them. Governor Macquarie was not here, nor likely to be here for some time, and therefore such an Act could not be necessary at present. There could be no need for the Bill before the next session of Parliament, when the Governor might be in this country, when he might be examined on the subject, and when circumstances might be brought to light either to criminate or exculpate him. He complained of the taxes imposed by Governor Macquarie as most injudicious and ruinous, being twice as high on exports as on imports, and that the moment these things were made known to the public the Hon. Gentleman came down to the house to propose the continuance of the taxes and the indemnification of the Governor. Among other duties he stated that a poll-tax was levied on every person who left the Colony, and that it was not applied to the payment of the naval officer or to any other public service but went into the pocket of Governor Macquarie's secretary. Upon the whole, when he looked to the circumstances of the Governor's case, and considered that Parliament would meet in time to adopt any measure that might be necessary, he for one could not give his consent to this Bill at present, and he should therefore propose the entire omission of the first clause."[79]

This opposition was unreasonable, for the Government had not stated their intention of bringing in a Bill before any evidence had been heard at all. But a misconception had roused Bennet's suspicions. Jones, a Sydney merchant, in giving evidence before the Committee had referred to the meeting of magistrates at which it was proposed that an increase in the customs duties should be made in order to provide for the poor. It has already been seen that Macquarie adopted the proposed increase but did not appropriate the taxes to these purposes.[80] Jones[81] appeared in his evidence to treat this as an unjustifiable breach of faith if not an illegal act—and this wholly erroneous impression had been adopted by Bennet. The Bill as finally passed legalised for one year the duties then in force in New South Wales, empowered the Governor to levy a duty on spirits manufactured in the Colony whenever a distillery should be established, and declared that no action might be brought against the Governor for recovering duties exacted in the past within one year from the passing of the Act.[82] A similar statute was placed on the roll in the following year, and thus the Governor was for the time being effectually enough protected. But the form which the Bill took prevented the Government from recovering unpaid duties and realising the securities which they held.[83]

The Committee took evidence on twelve days between March and July. The most important witness was Alexander Riley, who was examined on nine days, and whose evidence has been so frequently quoted already. It was and is indeed more valuable than the evidence of any one man in the voluminous notes collected by Bigge, and it ranged over the whole field—social, economic and political—of colonial activities. J. H. Bent gave rather confused evidence on the subject of Blake and his own quarrels with Macquarie; and Jones, Riley's partner, gave information on matters of general concern. John Macarthur, junior (a son of the more famous colonist), a young barrister, described the wool trade, and several officers of the Transport, or, as it was then called, the Navy Board, explained the arrangements of the voyage.

Anxious to present this important body of information before the end of the session, the Committee made practically no report, simply laying the minutes of evidence before the House on the 11th July, 1819.

Partly no doubt from this fact, and partly because the more important work of Bigge would soon be completed, the work of the Committee was neglected; and in 1820 Bennet published in the form of a letter to Lord Bathurst, a short resumé of the evidence.[84]

"I have," he wrote, "no cause to complain of the Prison Committee; on the contrary, I found in it a great willingness to hear all the evidence I had to offer, written as well as oral; and though, in some few instances, I think, evidence was excluded which before a House of Commons' Committee might have been reasonably admitted, yet the general object of all concerned seemed to be a fair, candid and impartial inquiry. …"[85]

Bennet admitted that to wait the return of Bigge was natural, but he thought some steps should be taken by the Government at once. These were the restriction of the number of convicts transported, the provision of civil and criminal courts, the pledge of granting jury trial in the near future, and the establishment at once of a council for the Governor.

"What is to become of the settlement? Is it to be a gaol or a Colony?—if a gaol you must bring back again to Europe all the free settlers—if a Colony, in order to maintain those who are already there in a flourishing condition, as well as to induce persons of character and property to settle within its territories, a rational, limited, legal Government must be established. Martial law[86] may be a fit mode of Government for felon convicts; but free settlers will be ruled by nothing short of a system of civil liberty. It would be idle to construct a constitution beyond the wants of the people who are to be benefited by it, or beyond their capability of enjoying it. Thus a representative Government in New South Wales would at present be a wild and futile scheme. But the protection of an authority, limited and regulated by law, they have a right to demand; and if English statesmen do not bestow it, other means will assuredly be taken by which it will be obtained." This theme he returned to later in the pamphlet, saying:—

"I cannot refrain again here (from) entreating your Lordship to reconsider the opinion you have given on the propriety of continuing the Governor of New South Wales in his present authority unchecked and uncontrouled except by the Colonial Office at home; which … is fourteen thousand miles distant. The recommendation of the Committee in 1812 ought to have carried some weight in influencing your opinion; but the events of the Colony since that period demonstrate the necessity of that measure. A consistent and intelligent administration of the affairs of the Colony is of primary importance … which cannot be obtained under the present vicious establishment, and which is essential to the wellbeing of the settlement."

The actual reforms suggested by Bennet were moderate enough, and indeed were very similar to the final recommendations of Bigge himself.

The commission with which Bigge was invested gave him power "to examine into all the Laws, Regulations and Usages of the settlements[87] … and into every other matter or thing in any way connected with administration of the Civil Government, the Superintendence and Reform of the Convicts, the state of the Judicial, Civil and Ecclesiastical Establishments, Revenues, Trade and internal resources thereof, and to report to us the information which you shall collect, together with your opinion thereupon".[88]

In order that he might take evidence on oath, Macquarie was to make him a magistrate of the territory.[89]

But more important than his commission were the instructions[90] which gave in full detail the objects of his inquiry. He was first to direct his attention to ascertaining "what alteration in the existing system of the Colony can render it available to the purpose of its original institution, and adequate for its more extended application. With a view to this you will examine how far it may be possible to enforce, in the Colonies already established, a system of general discipline, constant work, and vigilant superintendence; the latter must necessarily be understood to comprise complete separation from the mass of the population, and more or less of personal confinement, according to the magnitude of the offence. … Should it appear to you, as I have too much reason to apprehend will be the result, that the present settlements are not capable of undergoing any efficient change, the next object will be the expediency of gradually abandoning them altogether as receptacles for convicts; and forming on other parts of the coasts, or in the interior of the country, distinct establishments for the reception and proper employment of the convicts, who may hereafter be sent out."

In such a case the annual charge must be carefully inquired into, "in order to enable His Majesty's Government to decide whether it is advisable to continue or to alter or to abandon the system which for near forty years has been pursued. …"

Lord Bathurst concluded with a vigorous description of transportation as it should be and as it had become "… you will in the whole course of your inquiries constantly bear in mind that transportation to New South Wales is intended as a severe punishment, applied to various crimes, and as such must be rendered an object of real terror to all classes of the community." This it had ceased to be. "For mere expatriation is not in these days an object of considerable terror. The intercourse which it breaks is readily re-established; and the mystery which used to hang over the tale of those condemned to it can never long exist. … If, therefore, by ill-considered compassion for the convicts, or from what might, under other circumstances, be considered a laudable desire to lessen their sufferings, their situation in New South Wales be divested of all salutary terror, transportation cannot operate as an effectual example on the community at large, and as a proper punishment for those crimes against the commission of which His Majesty's subjects have a right to claim protection, nor as an adequate commutation for the utmost rigour of the law."

There had been a change, Lord Bathurst pointed out, from the time when convicts sought to have the sentence of transportation commuted "even for the utmost rigour of the law," to the present when men convicted of slight offences sought the punishment of transportation which was the penalty of greater crimes. Altogether the conditions of the Colony had altered. The free settlers had increased, many convicts had become settled on the land, population and wealth had become great. The growing number of convicts transported made it more difficult than in earlier years to enforce discipline; the problem of housing them had become formidable. Judging by the information before him in Macquarie's despatches, it appeared to Lord Bathurst that this increase of numbers had made it necessary to distribute greater numbers amongst the settlers, and that under this system it had also been necessary to give the convicts "greater freedom than is consistent with the ends in view in transporting them," an impression curiously at variance with the facts of the case as Bigge afterwards saw them.[91]

While the primary object of his inquiry was to study the convict establishment, Bigge was also required to report "upon a variety of topics, which have more or less reference to the advancement of those settlements as Colonies of the British Empire".[92]

The special subjects were the judicial establishment, the social conditions, educational and religious, the economic conditions, commercial and agricultural.

As to the first, he had to consider whether Van Diemen's Land should have a separate judicature and whether the changes made by the charter of 1814 were still adequate for the judicial needs of the Colony. Finally was there any necessity to continue the specially severe police regulations which had been required to control the convict population?

As to the Colony's trade, "it will … be for you to report to me whether the market may not be freed either gradually or all at once from such restrictions, whether the competition of traders will not here as elsewhere produce the most beneficial effects, and whether the Government stores may not be supplied (as in other Colonies) by public tender, with equal advantage both to the public and to the individual cultivator". "There is one other point also," Lord Bathurst added, "which I cannot avoid recommending to your consideration, though I fear there is not much prospect of your being able to reconcile that difference of opinion which has prevailed in the Colony. I allude to the propriety of admitting into society persons who originally came to the settlement as convicts. The opinion entertained by the Governor, and sanctioned by the Prince Regent, has certainly been, with some few exceptions, in favour of their reception at the expiration of their several sentences, upon terms of perfect equality with the free settlers." Lord Bathurst felt, however, that as the measures taken in this direction had certainly roused hostility in the Colony, it was important to inquire fully into the merits of the system.

The task entrusted to Bigge was indeed a heavy one, and his inquiries[93] kept him in the Colony for over a year. Four months of the time he devoted to Van Diemen's Land, and the remainder he spent in exploring New South Wales and collecting an invaluable mass of documents and evidence. He returned to England on 3rd July, 1821, and within a year the Colonial Office was put in possession of his first report, though it was not until 1823 that this was followed by the second and third.

The reports were exceedingly voluminous, containing many detailed accounts of what now seem trivial events. The cause, however, of their extreme length and minuteness was due to two facts, one that the Colonial Office were anxious for full reports on many disputes which had been communicated to them by interested parties only, and the other that it was deemed inadvisable to print the minutes of evidence on which Bigge's conclusions were based. The reasons for this were not far to seek. Many individuals in the Colony had given information to the Commissioner which they did not wish their neighbours to peruse. All the quarrels and petty disagreements which were probably unavoidable in such a remote and curious settlement as that of New South Wales might have been roused afresh by the publication of all the correspondence and evidence, and to publish a selection only was thought unwise.[94] The most important witnesses also were as a rule those who most desired their evidence to be treated as confidential. Even as it was Bigge was forced to insert in his third report a virtual apology for the references to W. C. Wentworth's "Pipe" on Molle which he had made in the first report.[95] On the whole, however, his work is a monument of official discretion; though a glance at the unpublished evidence shows that to make it so must have been a matter of no small difficulty.

As the main object of his mission had been to consider the fitness of New South Wales for a penal station, Bigge's first Report dealt almost entirely with the subject of the convicts and "their treatment, character and habits". Already his description of their actual conditions has been many times quoted, and in this place it is more important to consider his recommendations for their future treatment. In this respect the most striking note of his report is its absolutely conservative character. Whether or no the Government had been sincere in their suggestion of bringing transportation to New South Wales to an end, such a project never seems in Bigge's mind to have come within the sphere of practical politics. This was not because he approved of the system enforced by Macquarie, but rather because he did approve the system advocated by the land-owning agriculturalists, and because he saw quite clearly that New South Wales might, with profit to the mother country and to at least a portion of her inhabitants, be turned into a great wool-producing country under one of the simplest systems of capitalist production ever established. This project was foreshadowed in his first and clearly outlined in his third report. The faults of the Government service were in his opinion that it kept the convicts gathered in large numbers in the towns where discipline was difficult to enforce and where the object of their reform was lost sight of, and also where they were put to work on ornamental and often unnecessary public buildings, at great expense to the Crown and with little advantage to the Colony. Nor could he see by what means an efficient scheme of overseeing could be established and the convict overseers done away with. He considered the employment of the prisoners in agricultural and pastoral pursuits as more conducive to their reform than their employment on town buildings, but he was not satisfied that the Government could carry on farming or grazing with advantage. The exact reason why he was averse to such a scheme is not clear, but probably lay in the fact that he wished primarily to forward the cause of the sheep farmer and to make the convict labour subservient to that purpose. Thus he came to the conclusion that all convicts should be distributed to the fullest possible extent amongst the settlers, and that those who remained over from the distribution should be dealt with in the following ways. Some would be placed in gangs for the purpose of clearing away the virgin forest; others for making roads; and the old men and boys only be left in Sydney. Further he proposed that three new settlements (Moreton Bay, Port Bowen and Port Curtis) should be founded and used rather as punishment stations for the prisoners, Newcastle being abandoned, so far as that purpose was concerned, as being too easily accessible to the rest of the settlement. One notable recommendation was to the effect that the whole number of mechanics should be assigned to settlers, though each settler taking a useful tradesman was to take also one or two inferior workmen. The degrading communication of settlers and ex-convict superintendent should, he thought, be brought to an end, and the assignment of servants become one of the duties of the Colonial Secretary.[96]

Bigge's criticism of convict discipline has been set forth already in Chapter V. It is unsatisfactory to find that beyond proposing that the magistrates should have the power of transporting offenders to other parts of the Colony for periods which might exceed their original sentences, he could offer no important change in what he felt to be an inefficient system. He hoped for great improvements, however, from the dispersion of the prisoners, the cessation of their wages, and a stricter regulation of remissions of sentence, including a complete prohibition of giving tickets-of-leave to new arrivals.

The great difficulty of the settlement's future, he thought, lay in the lack of demand for the produce of the convicts' labour. It was with the view of increasing this that he advocated encouragement for the export of wood, mimosa bark (for tanning), and wool, by a decrease in the duties levied in England on these productions. It was also with this view that he supported the establishment of distilleries.[97]

Putting aside for the moment the second report dealing with the judicial establishment, it is well to pass on to the third, which dealt with the trade and agriculture of the Colony and with all subsidiary features. The whole tendency of that report was to favour the aggregation of large areas under private ownership; to make it easy for the capitalist to procure land, and thus, with the convict labour, develop the wool export of the country. It was practically a repudiation of the policy so long attempted by the Home Government of establishing a regime of small proprietors. Bigge looked for the prosperity of the Colony to capitalist farmers with large estates, cultivated by forced labour, or to proprietary companies holding sway over immense tracts where great herds of sheep would be guarded by lonely convict shepherds. He looked with a cold and unfeeling eye upon the Colony's attempt to start manufactures, regarding them as of doubtful value to New South Wales, and as directly injurious to the mother country. At the same time he desired greatly to foster the South Sea trade, not only for the profit it might bring, but also to give an outlet for the adventurous sons of the new country. In fine, minor trading ventures were to be allowed a chance of existence, and men with small capital to be given land though with a sparing hand. But to the wealthy land and labour were to be dispensed liberally, with two chief objects in view—one to encourage emigrants who might relieve the Government of the charge of the convicts, and the other to provide England with an important raw material.

The main recommendations of the second report have been already discussed. The chief subject of judicial interest was that of juries, and the decision of Bigge was for delay. The Criminal Court, with some modifications, he thought might still be sufficient, and he followed the counsel of Mr. Justice Field in proposing a judicial establishment with one judge only for both Civil and Criminal Courts. The office of Judge-Advocate, however, was to be done away with and an Attorney-General to take his place as Crown Prosecutor. One abuse, the part payment of the salary of the chief judge by fees of his court, was also to be abolished. It was an abuse to which the high fees of the court had given an unpleasant prominence, and it had at no time been a necessary system.[98] As to the police establishment, the recommendations were of minor importance, and related chiefly to the appointment from England of a superintendent, and a better system of payment in the service.

The reports also urged the separation of Van Diemen's Land from New South Wales, and the establishment of a complete and independent judiciary for the former.

One further matter must not be neglected. Bigge realised very fully the trouble that had been caused by Macquarie's autocratic rule, and though he was perhaps severe upon the Governor's many mistakes, he recognised also that they were faults of the system as well as the man. He saw, as probably ministers at home had already seen, that the end of military government had arrived, and no part of his reports was of greater value to the Colony than that which recommended the formation of a Legislative Council to assist the Governor. Valuable too was his proposal that all laws should first be submitted to the Chief Justice and receive his certificate that they did not contravene the laws of England.[99] Needless to add, the council was to be a nominated and not an elected body, but to it was to be entrusted the power of law-making and revenue raising, which had previously been exercised (though not legally) by the Governor alone.

Macquarie was already in England when Bigge's Reports were laid before Parliament by the Colonial Secretary, and had in the previous year[100] published his own Apologia in the form of a reply to Bennet's Letter to Lord Sidmouth. He also sent to Lord Bathurst in July, 1822, a report on his Governorship and a justification of his measures.[101] Both these documents were in their manner able statements of his case, but both dealt rather with persons than principles. Thus the published letter contained a violent attack on Marsden and an allegation quite unfounded that he dealt in spirits, and several gibes at Bennet more abusive than relevant.[102]

The chief result of the pamphlet was that it called forth a rejoinder from Marsden, published a few years later, in which he not only disproved Macquarie's allegations, but stated with admirable force and clearness the circumstances of New South Wales from the time of his arrival as chaplain in 1793 up to 1820.[103]

Meanwhile the Colonial Office prepared to act upon their Commissioner's reports, and at the beginning of July, 1823, a Bill was introduced into Parliament and quickly passed through both houses, based upon his recommendations. This Bill, known afterwards as the New South Wales Jurisdiction Act, as finally passed, provided for the government of the Colony until July, 1827, and was thus only a temporary measure.[104] The main lines of the Bill followed Bigge's Reports very closely and need not be recapitulated.

The delay in granting trial by jury in criminal cases roused considerable opposition, and Sir James Mackintosh moved in committee for its immediate introduction, but without success.[105] The Criminal Court remained little altered, an additional officer being added, or failing an officer a magistrate against whom the right of challenge might be exercised.[106] But in the Civil Court, where the Chief Justice was in general to be assisted by two magistrates (the right of challenge being again allowed), it was also possible at the desire of the parties that a jury of twelve might be called.[107] Nor was any qualification required in a juror other than the possession of fifty acres of freehold land, or a freehold dwelling valued at £300.[108]

At any time jury trial might be adopted in the Criminal Court by the issue of an Order in Council, which suggests that the Government thought that this further change might be made before the expiration of the Act in 1827.

The Bill contained very little relating to the convicts, but two provisions closely affected emancipists.[109] By these the remissions already given by the Governor were declared to have the power of pardons under the Great Seal, but future remissions were to have that power within New South Wales only.[110]

The emancipists, or Edward Eager representing them in England, decided that the Bill did not offer them sufficient redress; and at his request Sir James Mackintosh presented to Parliament the petition which had been drawn up in 1819.[111] Mackintosh also opposed the provisions in Committee,[112] though in this instance also he was unsuccessful. It is notable that the Government were throughout the passage of the Bill supported by H. G. Bennet,[113] and that the whole work of the opposition was left to Sir James Mackintosh.[114]

Bigge's work was finally completed by a Bill passed in the following year dealing with the government of the convicts.[115] By its provisions the Governor of New South Wales was empowered to establish out-settlements and to send thither those convicts who appeared in need of severer discipline, and whose bad example was likely to influence other prisoners.

This statute, which embodied the remainder of Bigge's recommendations (except for a few minor changes in administration which were carried out by the instructions of the Secretary of State), brought to an end the period of Macquarie's rule, which formed the final phase of military government in New South Wales. Macquarie himself had returned to England in 1822, burdened with the consciousness that not only colonial opinion but that of Ministers also was opposed to the main object of his Governorship, namely, the social re-establishment of the emancipists. Indeed the prominence given to this one aspect caused much of the disinterested energy which he had thrown into his work to be overlooked, and for the time being he was judged only as the patron of the emancipated convicts. It is, indeed, almost solely in this light that his work is still regarded by Australian writers.

The preceding pages, however, have shown him dealing with problems of many kinds, problems intensely difficult, and requiring for their successful solution ability and training of a rare kind. For example, the granting of licenses and of remissions of sentences, the distribution of land, and the enforcement of convict discipline were all matters in which skilful administration was requisite, and it was scarcely surprising that a man who had spent his whole life in the military service should prove himself unable to originate or control administrative expedients under conditions of such a peculiar nature as those obtaining in New South Wales. Nor were the instruments at his command, the members of the civil staff, such as would give him adequate aid. Chosen for the most part by the Home Government, without special reference to their suitability for the work before them, they constituted a corps of officials of exceedingly meagre possibilities.

The Governor had the disadvantage also of being in no way compelled to consult with any one of them or of the judicial staff, and thus fell inevitably into the habit of seeking advice (if he sought it at all) from those to whom he knew his views to be acceptable or from whom he could easily compel acquiescence. Macquarie naturally exercised the autocratic vice of favouritism, and unfortunately selected his favourites rather because they were personally agreeable and publicly submissive towards himself than because they displayed particular ability. Indeed the man who gave him the readiest support at once presented himself as the most suitable councillor.

There was, however, more than laxity of administration at fault in Macquarie's system, for in matters of principle also he was apt to be uncertain. Thus his liquor policy varied between two extremes, that of strictly restricting the number of houses and ensuring their respectability, and, on the other hand, of attempting to cure drunkenness by multiplying opportunity and increasing the number of licenses. So also he wavered from the principles laid down by himself for the remission of convicts' sentences, and again in permitting settlers to disregard the conditions of their land grants.

This looseness of principle was itself a natural outcome of the autocratic system. It has been pointed out that Macquarie, regarding himself as the supreme power in the Colony, considered that he might make laws for others to obey with which he himself might if need be dispense. He attempted always to enforce a policy of personal government, constantly dispensing in individual cases with his general regulations. This was almost a possible system with 10,000 inhabitants, but became both unjust and ineffectual when the population was doubled. In this respect, as in many others, Macquarie was merely following in the footsteps of his predecessors. Much of the criticism of his government both within and without the Colony should have been directed not to Macquarie, but at the original founders of New South Wales. Its affairs had never run smoothly, and Governors had always been on bad terms with one or other of the colonists, a fact due probably to the confusion and lack of definition of the Governor's powers. But so long as the number of the inhabitants was small, and so long as there was no man learned in the law amongst them, disputes, oppressions and severities might continue without check. When quarrels were referred to the Colonial Office they were treated wholly in their personal aspect and disclosed no difficulties nor doubts as to the Governor's legal powers. The growth of population, the improved judicial constitution, and, more still, the advent of Ellis Bent had brought about a new phase.

The struggle between Ellis Bent and Macquarie no doubt originated in a divergence of opinion on other matters, but it has been shown how their opposition gathered round the totally different conceptions held by each of the rights of the executive. Macquarie, in exercising the powers of legislation, taxation, and judicial control, had simply accepted the traditional rights of his position, and up to that time these powers had not only been adopted by each Governor with the tacit support of the Colonial Office but had been accepted in the Colony without declared opposition. No sooner, however, had Ellis Bent become Judge-Advocate than he found himself forced to contest the huge assumption of previous Governors, and to fight for judicial independence and the supremacy of the law. While he fought alone against Macquarie for this doctrine of judicial integrity, his brother banded himself with each opposing faction and gave voice to every complaint which arose or could be invented against the Governor. It was in great measure owing to the dignified protests of Ellis Bent and the turbulent fury of Jeffery Bent that Macquarie was the last Governor of New South Wales who exercised control over the courts, made laws and levied taxes at his own will, and ordered a punishment without trial. Still, in justice, it must be remembered that Macquarie did not originate the system of military government, but that he had the misfortune of carrying it on in a Colony which was clearly outgrowing its possibilities.

In any final estimate of Macquarie's rule, the quality which stands forward most prominently is its humanity. The period was a harsh one, and the circumstances of New South Wales encouraged that harshness. Macquarie steadily sought to introduce more humane methods, and to encourage gentler views. His "emancipist" policy was part of this larger ideal; and one of the reasons of its failure, in addition to the unwise selection of the individuals and of the times for bringing them forward, was the lack of humanity shown by many of the free settlers. Macquarie's clemency was even made a ground of complaints, and possibly with reason, for though punishments during his government were lighter they were more frequent than in earlier days, and laxity of discipline brought corresponding evils. To the last moment Macquarie remained averse to signing death warrants, and during Wylde's last circuit in Van Diemen's Land it was only after the greatest persuasion that Macquarie would consent to the execution of eight brushrangers, which Wylde considered absolutely necessary to bring to an end the state of insecurity in that island.[116]

It is to this humanity, often short-sighted and mistaken in its actions, that Macquarie's measures in regard to the convicts' wages, rations, and treatment generally may be traced. It was probably from this desire to give a gentler aspect to colonial life that he was so eager to ornament the town of Sydney with architectural beauty and to spread amongst the people opportunities for education and a knowledge of religion. He even attempted to bring within reach of the black natives the virtues of the civilisation he so greatly respected. He founded a school for the native children, and sought, though unsuccessfully, to establish the adults as tillers of the soil. He also instituted a yearly gathering of the tribes at Parramatta which took place in the summer heat of December, and at which he promoted good feeling by a liberal dinner of roast beef and ale. His relations with these people were indeed of the best description and his feeling towards them consistently humane. In the face of these facts his neglect of the female convicts is nothing less than startling. Two reasons only seem forthcoming, the one that he regarded the women as incapable of reform and that he felt himself incapable of dealing with the problem they presented. The other, a less creditable but not less human cause, that he was the more unwilling to give time and energy to improve their dwelling and discipline, and to put aside other projects originated by himself, because it was Marsden, whom he so bitterly detested, who first called his attention to the frightful abuses which were occurring.[117] His neglect remains, however, a blot upon his reputation for an almost sentimental humanity.

There can remain no doubt that the post filled by Macquarie was one of exceeding difficulty, nor can it be said that he filled it without credit. He was probably mistaken in overlooking altogether the previous convict status of many of his favourites. It was a policy which he was unable to carry through, and one which at that time must inevitably have created ill feeling between freed and free. It would have been better had he bent his energies not to forcing forward the men and women who had been branded with crime in their mother country, but rather that stalwart generation which sprang from them and which in these years he saw growing up around him.

Yet even when Macquarie failed in his essays to introduce a new system—even when he must be blamed for his administration of the old, there remains much in the long period of his rule for which respect is due. He had definite aims and high ideals, and he spared himself neither in his efforts to enforce these, nor in his attempts to administer what he rightly called "the least grateful and most arduous Government in the King's dominions".[118]

The chief difficulty of the task consisted in the fact that no one at that time was able to lay down a complete and consistent policy for governing the Colony. Nor would it be possible at the present time to speak without hesitation upon the subject. The problem of colonisation is still unsolved, and the problem presented by the criminal seems to grow each year more difficult. New South Wales presented them both, inextricably enwound one with the other.

It has been comparatively easy to show how autocracy brought about its own peculiar difficulties, to see in particular instances the difficulties of administration, of legislation and of jurisdiction. The faults and follies of "personal" Government, the gradual growth of political interest, the powerful sentiment of budding nationality, all these are plainly written in the history of the period. Criticism too of many sides of governmental activity has been called for, and the lines of that criticism, and the suggestion of alternative policy, have for the most part been obvious enough. But, looking at the subject as a whole, the task of criticism becomes infinitely greater.

By the foundation of New South Wales the Government offered a solution of the two problems of how to people a new country and how to get rid of convicted criminals. The experiment proved in the end a remarkably successful one, and it had from the beginning one great advantage. The method placed upon the Government the responsibility for the welfare of the prisoners and thus indirectly of the whole country, and for this reason New South Wales received in its early years a greater share of attention and revenue than any previous British Colony at the time of its establishment.

The introduction of free settlers was probably inevitable, but their introduction gave a distinct character to the Colony's development. The double enticement was held out to them of free labour and free land. But in agriculture pure and simple the convict labour was found to be inefficient, and it was thus impossible to carry out the policy of granting land in small holdings. The use of convict labour led directly to an increase in pastoral farming, to the aggregation of small freeholds into large sheep runs, and to an ever greater area of Crown grants. Especially after 1821 the pastoralist with his thousands of acres began to take the place of the farmer with his few hundreds as the real instrument of colonial progress. Macquarie fought against this tendency, trying to hold the small agriculturist, emancipist or free, above the sheep-farmer, but he could not (though he did his best) bring servile labour to an end, and so long as this lasted his attempts were bound to fail.

The presence of a convict population, the growth of capitalist farming, and the increasing area of land granted away by the Crown, had important political effects. The convicts showed from the first a tendency to gather about Sydney, and a preference for town life. The free settlers, finding that the land available was each year more remote, began to seek means of livelihood in the city. The free labourer whose labour was not needed by the pastoralist, fully supplied from the ranks of prisoners, and who had not the capital to start farming on his own account, also turned towards Sydney. Thus the preponderance of the town population, so marked a feature of Australian life to-day, and so potent a cause of the democratic sentiment of the country, had already, by 1820, begun to show itself and grew yearly more marked.

Sociologically the history of New South Wales must remain for the present a complete puzzle. No one would at that time have prophesied, and no one would prophesy to-day, that the children born of convict parents would show no sign of their origin. Yet this was what happened, and the fact is not to be belittled by laying stress on the number of political prisoners or the harshness of the criminal laws. The political prisoners formed a very small minority, and though many convicts were transported for small offences, they were usually offences of a low type such as pocket-picking or receiving stolen goods. There is also no reason to suppose or at least no proof that the thieves, forgers, coiners and highway-robbers died childless; and as there were but few free women in the Colony, the female convicts must necessarily have been the mothers of the greater part of the first generation of Australian born. New South Wales thus carries before the world a banner of hope and a promise that future generations may yet escape from the bondage of past evils. Perhaps also the final justification for every mistake of Secretary of State or Governors, for the careless selection of administrators and subordinates, the continuance of an anomalous, unworkable and unpopular form of Government, may be found in the fact that the establishment of New South Wales led to the rehabilitation in a new environment of those who had fallen out of the social struggle, and gave to their descendants a part in the task of the present, the task of forming a nation high in ideals and in achievements, worthy of their heritage in the wide acres glowing in the golden sunlight of the Australian continent.

  1. Practically, however, he ceased to concern himself in its affairs after the Bligh affair.
  2. Letter from Dundas (afterward Lord Melville) to Wilberforce. Correspondence of W. Wilberforce, 1840, vol. i., p. 105, August, 1794.
  3. See letter of Rev. J. Newton to Wilberforce in Correspondence of Mr. Wilberforce. London, 1840, p, 11, vol. i., 15th November, 1786. "To you, as the instrument, we owe the pleasing prospect of an opening for the propagation of the Gospel in the Southern Hemisphere. Who can tell what important consequences may depend upon Mr. Johnson going to New Holland."
  4. On the treatment of Bonaparte 1817. Hansard, vol. xxxv., pp. 1146-1160, March, 1817.
  5. Hansard, vol. xxxvi., p. 68, 29th April, 1817. Debate on abolition of Third Secretary of State (for War and Colonies).
  6. Ibid., vol. xl., p. 267, 10th May, 1819.
  7. See Chapter I.
  8. See Correspondence of C.O. with Treasury, 1818 to 1821 (R.O. and C.O). See also Riley, C. on G., 1819.
  9. See, e.g., Lord Castlereagh's Correspondence, 1851, vol. viii., p. 187. Letter Duke of Manchester, Governor of Jamaica, 11th February, 1809.
  10. Life of Lord Liverpool, by C. D. Yonge, 1838, vol. i., p. 31. Letter to Sir J. Craig, 1810.
  11. The Canadians took much the same course. See letter above, Lord Liverpool to Sir J. Craig. "You may rely upon it, that if the subject of the constitution of Canada was brought under the discussion of Parliament, the cause of the Canadians would be warmly supported by all the democrats and friends of reform in the country."
  12. The letters to Lord Pelham were published in 1802. The Plea for the Constitution in 1803. See Romilly's Memoirs, 1791, vol. i., p. 417, published in 1840. The copy of the Plea in the British Museum belonged to Sir S. Romilly (a gift from the author).
  13. This volume, with a very inferior production by Mason in 1811, remained the only sources of information in regard to New South Wales available in England up till 1812. See Romilly's Speech in House of Commons, 12th February, 1812. Hansard, vol. xxii., p. 762.
  14. Romilly of course directly, and Bennet through Francis Place. See later, p. 302.
  15. P. 68. Letter to Lord Pelham.
  16. See the brilliant little pamphlet, "Emancipate your Colonies," written, 1793, first published for sale, 1830.
  17. The full title was A plea for the Constitution, shewing the Enormities committed to the oppression of British Subjects Innocent as well as Guilty in Breach of Magna Charta, The Petition of Right, The Habeas Corpus Act, and the Bill of Right; so likewise of the Several Transportation Acts; in and by the Design, Foundation and Government of Penal Colony of New South Wales: including an Inquiry into the Right of the Crown to legislate without Parliament in Trinidad and other British Colonies.
  18. P. 24.
  19. P. 8. This is a reference to the naval governors.
  20. P. 24.
  21. P. 35.
  22. See vol. ii., 2nd April, 1803, pp. 30, 42. The Edinburgh Review took more notice of colonial subjects than any other periodical of the time, probably because the Whigs had a very definite (though negative) colonial policy.
  23. See Romilly's Memoirs, vol. ii., p. 319.
  24. Romilly's Memoirs, vol. ii.
  25. See Hansard, vol. xvii., pp. 322-329, 5th June, 1810.
  26. This statement is a great exaggeration. There is much information of a hopeful and cheerful nature in Collins' book.
  27. Romilly's Memoirs, vol. ii., p. 332.
  28. Ibid., p. 342.
  29. 4th March, 1811. See Romilly's Memoirs, ii., p. 367.
  30. Ibid. Hansard, vol. xix., 4th March, 1811, p. 186.
  31. Hansard, vol. xxi., p. 603, 4th February, 1812.
  32. Hansard, vol. xxi., p. 604.
  33. Ibid.
  34. Hansard, 1812, 12th February, vol. xxi., pp. 761, 762.
  35. Son of first Lord Auckland; afterwards succeeded to the title and became Viceroy of India.
  36. Quoted in Chapter III. above.
  37. See P.P., 1812, vol. ii., Appendix.
  38. The most important was the order for opening the ports.
  39. The hearty endorsement by the Committee of Macquarie's Emancipist Policy exerted far greater influence on the development of the Colony than any other part of the report.
  40. See conclusion of C. on T.
  41. Martineau's History of the Peace, vol. i., p. 149, referring to debate on Habeas Corpus Suspension, 23rd June, 1818.
  42. Life of Wilberforce, February, 1818, vol. iv., p. 369.
  43. Life of Francis Place, Graham Wallas, p. 178. Place to Hobhouse, 16th August, 1819.
  44. Hansard, vol. xxxiii., p. 595, 16th March, 1816.
  45. Hansard, vol. xxxiii., p. 990, 5th April, 1816.
  46. See Hansard, above. The number of executions between 1816 and 1820 was sixty-nine. See Appendix to Bigge's Reports, R.O., MS.
  47. House of Commons Journal, 11th April, 1816.
  48. Hansard, vol. xxxiii., p. 922, 3rd April, 1816.
  49. Ibid., vol. xxxvi., p. 82, 29th April, 1817.
  50. Ibid., vol. xxxv., pp. 920-921, 10th March, 1817.
  51. S.G., 9th August, 1817, quoting from Courier, 11th March, 1817.
  52. Letter, printed in P.P., XIV., 1823.
  53. Ibid.
  54. Sidmouth to B., 25th April, 1817. R.O., MS.
  55. This book went through a second edition, and in a much enlarged form into a third edition in 1824. This last contained a long account of Macquarie's government and a violent attack on Marsden.
  56. History of New South Wales.
  57. Edinburgh Review, July, 1819, vol. xxxii., pp. 23-47.
  58. See Hansard, vol. xxxix., pp. 464-478, 18th February, 1819.
  59. "Island" is a very remarkable description of New South Wales.
  60. Only one was a free settler. See before, Chapter IX.
  61. i.e., Blake.
  62. Communications had so much improved that information of as late a date as half-way through 1818 might have been received.
  63. See Hansard, vol. xxxix., 18th February, 1819.
  64. 1st March, 1819, p. 742.
  65. See Life of Wilberforce, 1848, vol. v., p. 15.
  66. See Evidence of J. H. Bent, C. on G., 1819.
  67. See Hansard, vol. xxxix., p. 1124, 23rd March, 1819.
  68. See Hansard, vol. xxxix., p. 1127, 23rd March, 1819.
  69. Ibid., p. 1129.
  70. Ibid., p. 1133.
  71. Ibid., p. 1134-1137.
  72. D. 3, 15th May, 1818. R.O., MS.
  73. The only case on which there is any evidence is that of Blaxcell, and in that instance Macquarie did his best to prevent his escape. There is nothing in Macquarie's despatches which suggests that he took the views here attributed to him by Field.
  74. Field to Goulburn, 13th November, 1818. He drew attention to another matter which was also taken up by Bigge later, namely, the fact that the Act 27 Geo. III., c. 2, related only to the Criminal Court, that the Civil Charter of Justice was not based on any Act of Parliament.
  75. Hansard, vol. xxxix., 23rd March, 1819, p. 1136.
  76. Ibid., p. 1137.
  77. Ibid., p. 1168, 26th March, 1819.
  78. Hansard, vol. xxxix., p. 1434-1441, 7th April, 1819, and Life of Wilberforce, vol. v., p. 16.
  79. See Times, 3rd July, 1819.
  80. See Chapter IX.
  81. See Evidence, C. on G.
  82. 59 Geo. III., cap. 114.
  83. See Chapter V.
  84. See Report, etc., of C. on G., 1819.
  85. The written evidence was in some cases very wrongly admitted. See, e.g., some letters by J. H. Bent. Those, however, came from the Colonial Office.
  86. It is perhaps worth while to point out that the term "martial" is quite inaccurate. It was military not "martial".
  87. Van Diemen's Land as well as New South Wales.
  88. See C.O., 5th January, 1819. MS.
  89. Ibid.
  90. P.P., XIV., 1823. Instructions to Bigge, 6th January, 1819.
  91. See Chapter V. The Government discipline was much slacker than that of the settlers.
  92. P.P., XIV., 1823. Instructions to Bigge, second letter, 6th January, 1819.
  93. For exact titles of the reports, see Appendix.
  94. See letter from Bigge to Lord Bathurst, 5th May, 1822. R.O., MS.
  95. See end of Report III. See Correspondence of Bigge with C.O., 1823. R.O., MS. Wentworth appears to have threatened him with legal proceedings though without denying in so many words that Bigge's statement was true.
  96. Major F. Goulburn arrived in the Colony as Colonial Secretary in 1821, taking the place, under a higher title, of Campbell, who had become Provost-Marshal in 1819, though he continued until Goulburn's arrival to act as Secretary to the Governor.
  97. These proposals were carried out by 3 Geo. IV., c. 96. Duty on New South Wales wool for ten years was to be 1d. per lb., extract of bark for tanning to be allowed in duty free, and timber also duty free.
  98. He also called attention to a subject suggested to him and also to Goulburn by Judge Field—the fact, namely, that 27 Geo. III., cap. 2, related only to the criminal part of the Charter of Justice, so that the Civil Court of the Colony was founded only by Royal Charter and not authorised by Parliament, "and as our present Civil Charter takes away from His Majesty's subjects their constitutional right of appealing to the King in Council unless the matter in dispute is above £3,000, … such Charter had better have been authorised by an Act of the Legislature". Field to Goulburn, 13th November, 1818. R.O., MS.
  99. Put into force by 4 George IV., cap. 96, s. 18.
  100. "A letter to the Right Honourable Viscount Sidmouth in refutation of statements made by the Honourable Henry Grey Bennet, M.P., in a pamphlet 'On the Transportation Laws, the State of the Hulks, and of the Colonies in New South Wales'". By Lachlan Macquarie, Major-General and Governor-in-Chief of New South Wales. London, 1821.
  101. P.P., H.C., 1828, XXI.
  102. See pp. 14 and 53.
  103. "An answer to certain Calumnies in the late Governor Macquarie's pamphlet and the third edition of Mr. Wentworth's Account of Australasia". By the Rev. Samuel Marsden, London, 1826. See especially pp. 8-10, 15, 1829.
  104. This limitation of the Act was made in committee on the motion of Canning. See Times, 8th July, 1823.
  105. See Times, 8th July, 1823. A division was taken, but the motion was lost by thirty votes to forty-one.
  106. 4 George IV., cap. 96, s. 4.
  107. Ibid., s. 5.
  108. Ibid., s. 6.
  109. See s. 21 and s. 22.
  110. All remissions were also to be transmitted to His Majesty for approbation or allowance, s, 22.
  111. See Chapter IX.; p. 275. Petition was presented and read on 8th July, 1823. See Times, 9th July, 1823.
  112. See Times, 10th July, 1823.
  113. See his speech, Times, 8th July, 1823.
  114. A further clause giving power to the Governor, "on the affidavit of an unknown informant," to send any convict who had just completed his sentence to England without trial appears to have been dropped, probably as the result of a petition presented through Sir James Mackintosh by Eager. See Hansard, House of Commons' Journal, 2nd July, 1823, pp. 1400-1403.
  115. Geo. IV., cap. 84.
  116. See Correspondence, 1821, in Appendix to Bigge's Reports. R.O., MS. Rusden (History of Australia, vol. i.), has, quite wrongly, taken these executions as a proof of Macquarie's embittered sentiments.
  117. Marsden's letter, 1st July, 1815.
  118. Letter to Lord Sidmouth, 1821, p. 3.