A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 4

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Authorities.—Despatches, etc., in Record and Colonial Offices. Sydney Gazette. P.P., 1812, II.; 1819, VII.; 1822, XX.; 1822, X. Report of Trial of Lieut.-Colonel Johnston.

"The great objects of attention," wrote Castlereagh to Macquarie on the 14th May, 1809,[1] "are to improve the morals of the colonists, to encourage marriage, to provide for education, to prohibit the use of spirituous liquors, to increase the agriculture and stock so as to ensure the certainty of a full supply to the inhabitants under all circumstances."

Each of these was important in itself—but by far the most urgent was the question of the liquor trade, on which the whole progress of the Colony, agricultural and moral, in no small degree depended.[2] To prohibit the importation and "use" of spirits altogether was a counsel of perfection which it would have been utterly impossible to carry out.[3] Nor was it possible to prevent convicts being supplied with liquor, for there was no outward sign, no distinctive dress which marked them off as belonging to that class. Even if it had been made an offence for publicans to serve them, assigned servants might still have received liquor in lieu of wages from their masters.[4]

Putting aside therefore any form of direct prohibition, three suggestions were made for regulating the liquor traffic.[5] In the first place it was suggested that importation should be free—but subject to a high duty. In the second, that sale after importation should be by permit only. Thirdly, that all private barter of spirits for corn or necessaries should be strictly prohibited.

Against this evil system of barter, to begin with the third suggestion, there was needed something more powerful than prohibition, mightier even than the "strong personal laws"[6] of the Governors. Had these sufficed, it would have been brought to an end by Bligh. But this was very far from being the case. Lieutenant Minchin of the New South Wales Corps, who was a witness at Johnston's trial in 1811, asserted that it was a necessary custom owing to the lack of other currency, that it had been sanctioned by every Governor except Bligh, carried on by all descriptions of persons in the Colony, and still continued. "You don't mean," exclaimed a member of the court, "that it has continued without intermission?" "It ceased for a short time," replied Minchin, "but was begun again by Governor Macquarie; he saw the necessity of it, and suffered it to go on; he himself made a purchase of land off me with spirits."[7]

In April, 1811, the Governor made an agreement with Nicholas Bayly, a gentleman-settler, in which one of the conditions was, "That the Governor gives me 500 gallons of good Bengal rum".[8] Macquarie's first Order on the subject was as late as 1815, and strictly forbade the barter of spirits "for the produce of the Colony or for manual labour".[9] But the penalty attached to disobedience was the indefinite one of incurring "the displeasure of Government" and ceasing "to derive any indulgence from it in future". Wentworth said in 1819 "that he had heard of settlers up the country paying in rum, but he knew nothing of that practice among the civil and military officers".[10] But although the Government had by that time ceased to use the rum-currency, and perhaps the "higher orders" of settlers had followed their lead, the practice of barter was still general among small settlers, and many unlicensed dealers bought spirit to exchange with them for pigs and wheat.[11] In fact the inducement to this kind of traffic was far too great to be overcome by the mild methods of Macquarie's Order.

Lord Castlereagh's second proposal referred to the custom already in force of allowing certain persons only to purchase spirit in wholesale quantities. Their numbers were not so small as to make the trade a close monopoly, though small enough to allow the Governor to control its distribution. A few months after his arrival, however, Macquarie adopted a course which not only created a monopoly but closed the Colony to free importation for some years.

He found that there was great need for improved hospital accommodation in Sydney. The building in use was little better than a ruined shed, and yet the Government had to care for all the sick convicts and many amongst the poorer class of settlers. Macquarie was reluctant to place so heavy a charge as the building of a hospital on the revenue at this early period of his governorship and listened willingly to any alternative proposal. He accepted the one put before him by Simeon Lord, D'Arcy Wentworth and Garnham Blaxcell. The two first were high in his favour and had just been appointed on the Commission of the Peace. Blaxcell was a typical colonial adventurer. He had held many posts under the Government, knew the settlement from one end to the other, and had had a hand in every kind of colonial enterprise.

These three offered to build a hospital within three years on a plan approved by the Governor, receiving in return the sole right of importing liquor into the Colony for general consumption. The amount fixed upon was 15,000 gallons a year, and this of course was exclusive of the supplies imported for the garrison and for the private use of the civil and military staff. The terms were accepted. The contract was signed on the 6th November, 1810, and came into force at the beginning of 1811. Macquarie had not referred to the project in his despatch of the 27th November, 1810, and the Colonial Office heard of it for the first time in 1812 when his despatch of 18th October, 1811, reached England.

This long interval was productive of difficulty. Early in 1810 Macquarie had strongly recommended the opening of the ports, saying "it would be good and sound policy to sanction the free importation of good spirits under a high duty of not less than 3s. or 4s. a gallon."[12] But he had added that he would wait until he received further instructions from the Secretary of State before carrying out this proposal.

The Secretary of State sent extracts from the despatch to the Lords of the Committee of the Privy Council for Trade, and was informed on the 7th March, 1812, that they concurred with Macquarie's views. At once several licenses were given to export cargoes of merchandise and spirits to New South Wales.[13] These cargoes had already been despatched when the Colonial Office heard of the hospital contract.[14] "Many objections," wrote Lord Bathurst, "might be urged to an engagement of this nature, under any circumstances. But I am surprised that you did not foresee the embarrassment which would inevitably be occasioned in the execution of this contract by the adoption of the suggestions contained in your despatch of the 30th April, 1810. … It must be left to your own discretion to take such measures as may appear to you to be best calculated … to do justice to the several parties whose interests are affected by the arrangements which have been made in New South Wales and in this country."[15]

The Governor made the best he could of the difficulty he had created by permitting the spirits to be landed and indemnifying the monopolists for this breach of contract by extending its duration for another twelve months. He justified his conduct in originally making the agreement rather quaintly. "When I recommended that measure" (of free importation) he wrote, "I had no idea of the restriction being taken off by the Government at home. I expected instructions from Your Lordship, authorising me to open the Port here when I conceived it best so to do. … Your Lordship will be pleased to recollect that one half of that period" (of the monopoly) "must have nearly expired before I could expect to receive an answer from Your Lordship, besides concluding that it would be left to me, if permission was given, to make use of it as I saw best and most conducive to the welfare of the Colony."[16]

In the despatch of April, 1810, he had strongly recommended the establishment of a distillery. By this means a market would be provided for the surplus grain of the Colony. Otherwise there was not sufficient encouragement for the farmers. When seasons were good and the crops heavy there was no means of selling the surplus corn, the area of cultivation for the next year was reduced and the food-supply in lean years seriously threatened.[17]

The Committee on Transportation in 1812 adopted this proposal. But they regarded it as an alternative to free importation, and stated in their Report "that they are of the opinion that an unlimited supply of spirits may be furnished to the Colony in a manner much more conducive to its interests than by a free importation". They regretted "that the hospital contract prevented the immediate establishment of a distillery."

Lord Bathurst refused to adopt the suggestion and stated his views at large to Macquarie.[18] "By a reference to Mr. Campbell's evidence,"[19] he wrote, "it will appear, and indeed you must be aware from your own experience, that the Colony does not produce more than sufficient for its own consumption, and consequently that whatsoever proportion of the corn crop were now applied to distillation must be withdrawn from the subsistence of the inhabitants.[20] … Whether the quality of the spirit made in the Colony will be superior to that now imported from Bengal or America is a point on which I possess no very adequate means of deciding.[21] I confess myself in some degree at a loss to comprehend the effect which the proposed measure is intended to produce upon illicit distillation; unless it is understood that the distillation of spirits should henceforth be generally permitted without any restriction or limitation whatsoever; for if duties are to be imposed they will be met by the same desire for evading them; and if they are altogether withdrawn there is too much reason to apprehend the consequences which may result from the reduced price of an article, the injurious effect of which upon the morals and health of the inhabitants is only equalled by the avidity with which it is required." He concluded by asking the Governor to express an opinion on the subject, a somewhat farcical request, since it was upon the Governor's opinion that the Committee had founded their proposal which he was thus invited to criticise.

Macquarie reiterated his previous arguments, but it was not until 1819 that the Colonial Office gave way. Even then they had misgivings. Commissioner Bigge, who went to New South Wales in that year, was instructed to inquire whether "distillation in the Colony could be so checked and controlled as to prevent the indiscriminate and unrestrained dissemination of ardent spirits throughout a population too much inclined already to immoderate use of them, and too likely to be excited by the use of them to acts of lawless violence."[22]

There was no doubt in Bigge's mind as to the economic advantages to be expected from permission to distil, and in 1822 distilleries were established under very stringent regulations.[23]

The hospital contract expired on the 31st December, 1814, and the building was completed shortly afterwards. Macquarie always held that the contract had been very advantageous to the Government, who had gained much and lost nothing by its means. The contractors had paid duty on the spirits they imported, and laying stress on this, and on the fact that there was now a hospital of an imposing description to beautify the town of Sydney, Macquarie neglected all other sides to the matter. He overlooked, for example, the fact that the hospital was much larger than was necessary, so much larger indeed that for some years half of it was set aside and used as a court-house. Its architecture, too, was of so ornate a description and so far beyond the skill of the workmen that the building was already falling into decay in 1820.[24] However, the rum hospital, erected "by such a sacrifice of public morals and expediency,"[25] still forms part of the Parliament House of New South Wales at the present day.[26]

"Public morals" were affected in several ways. There was in the first place the impropriety of permitting an officer of the Government already filling so many important posts as D'Arcy Wentworth, to become a party to such a contract. There was sufficient evidence to show that he reaped to the full the advantage placed in his hands. As Superintendent of Police his influence was great both in regard to the licensing and conduct of public houses. The four years during which the contract lasted were generally regarded as those in which the licensed houses were most disorderly. Wentworth would not agree that their number was too great, replying to remonstrances that it was good for trade and good for the Police Fund.[27] Thirty-one annual licenses were issued in 1810, but in the following four years the numbers were sixty, one hundred and seventeen, ninety-three and one hundred and ten, numbers which were not reached again in Macquarie's time.[28]

The amount of spirit which the contractors were allowed to import was placed at 45,000 gallons or 15,000 gallons a year. When the time of the contract was extended to four years the amount was increased proportionately. It was only in 1812 that any spirit but that assigned to the contractors was landed, and the amount of this extra importation was 10,000 gallons. Leaving this out, the total number of gallons imported during the four years was 144,000 gallons.[29] One-third of this was probably on Government account,[30] but even allowing for that the contractors imported at least 40,000 gallons more than was allowed to them in the original covenant. Macquarie seems to have thought that because the Government received a greater sum in duties by this means, the violation of the terms of the contract was of no account. The profits of the monopoly were immense, for spirit sold during its currency at 30s. the gallon was in 1815 selling at 17s.[31]

So soon as the hospital contract expired Macquarie issued an Order declaring the ports of New South Wales and Van Diemen's Land open for the importation of spirituous liquors as well as all other merchandise, "subject, nevertheless, to such duties as are now, or shall hereafter be laid upon them by the authority of this Government".[32] The duty on spirits was fixed at 7s. a gallon. It was levied on the quantity and not the strength, and consequently merchants imported spirit from 20 to 30 per cent, above London proof.[33] In 1818 the duty was raised to 10s. a gallon. There are no means of calculating the amount of liquor smuggled into the Colony, nor of deciding whether it increased when the duty was raised. Wentworth said it was very great, and with untrustworthy constables and so high a tax it is sure to have been considerable.[34]

From the year 1800 the retail trade in liquor had been regulated by a licensing system similar to that of England. Governor King was the first to deal with the subject, and his Orders were dated 27th October, 1800. Unlicensed vending was to be punished by a fine of £10 or two months' hard labour "on the hulk" for the first offence, and three months for the second.[35] In such cases a magistrate might issue warrants to the constables to search unlicensed houses and seize any spirits which they found. Half of it was to go to the informer and half to be sold for the benefit of the colonial revenue.

Under this Order licenses were granted annually by the Governor on the recommendation of the magistrates. The licensee paid £3 and gave security himself in £20 and two others in £10 each. No publican was allowed to sell liquor in the forenoon or during the time of Divine service on Sunday, and all public houses were cleared at the beating of "tap-too".[36] The penalty for infringement of these regulations was deprivation of the license and a fine of £5. Seamen, soldiers and convicts could not be given credit above 20s. A publican who sued such a customer for any sum above this was non-suited and had to pay treble charges.

In 1804 licenses for beer only were issued at a lower rate than spirit licenses, but appeared to have been discontinued before 1810.

Macquarie found that in spite of these regulations there were numbers of unlicensed houses in Sydney, and a great many more licensed ones than were at all necessary.[37] Taverns were found thickly clustered, especially in the wildest and wickedest part of the town, known as "The Rocks". The spirits sold, the Bengal and Jamaica rum, were of a particularly fiery kind, though probably not as deleterious as the gin which had wrought such havoc in England. Macquarie sought at once to bring the trade within reasonable limits. The cost of the license was raised to £20 and the number of houses reduced to thirty-one for the whole settlement. Twenty only remained in Sydney. The penalty for unlicensed vending was raised to £20, half of which together with half the stock was to go to the informer.[38]

The illicit trade continued, and probably the drastic reduction in the number of licenses tended to encourage it. In June the Governor gave notice that he was "resolved to prosecute such persons" (the unlicensed publicans) "with the utmost rigour of the law, and to have them most severely punished for so daring a breach of the Orders and Regulations of Government."[39] The gains of illicit dealing, however, far out-balanced the fines imposed.

In the same year the question of beer licenses was again brought forward. When the grant of separate licenses had been discontinued those houses and those houses only which were licensed for wine and spirit could retail beer. The reduction in their number curtailed the brewers' market, and a revival of beer licenses was suggested as profitable for them and also for those publicans whose houses had been closed by the reduction in the numbers of licenses. Some of the latter petitioned the magistrates on the 22nd June, praying for licenses to retail beer and ale. As they were "reputable housekeepers" the Bench recommended nearly fifty of them to the Governor.[40] A month later the Governor adopted their recommendation and issued a General Order in which he explained what he meant to do and why he meant to do it.[41] It had, he said, been represented to him "that it would be a great accommodation to the labouring people, and to the lower classes of the inhabitants in general, to have plenty of good wholesome beer brewed for their drinking and permitted to be retailed to them at a moderate price; his Excellency the Governor in view to their convenience as well as to encourage the settlers … to grow barley for this and other purposes, has been pleased to direct licenses to be granted to fifty persons at Sydney to vend and retail beer. …" The licensee was to pay £5 and give security in £25 for himself and produce one surety in like sum, promise to keep an orderly house and not to sell wine or spirits.

But there was an illicit trade in beer as well as spirits of which the suppression had to be attempted. In December an Order was issued imposing a fine of £20 on unlicensed vendors, half to go to the informer.[42] Applications were at the same time invited for four licenses in the country districts in order that the advantages of "good wholesome beer" might be enjoyed in all parts of the settlement.

In the following year a Proclamation dealt at large with the retail liquor trade.[43] The process for levying fines for unlicensed vending was strengthened, but the magistrate was given power to mitigate the penalty in any sum not less than £5.[44] The sworn testimony of one trustworthy witness was declared sufficient evidence for a conviction, and the proceedings might take place before a single magistrate. The prosecution must be initiated within three months of the offence, and a conviction disqualified a publican from receiving a license at any future time. To sell in quantities of less than two gallons was to retail, and any one therefore selling in such quantities must have a license.[45] Payments by pawn or pledge were forbidden, and no sum of less than 20s. contracted at one time would be recovered in the Courts.

The number of licenses was increased in 1811 and again in 1812, and all publicans were enjoined to keep "decent and comfortable houses."[46] In 1813 there were ninety-three and in 1814 one hundred and ten, but in 1815 they were reduced to eighty-five and remained at about that figure until 1820.[47]

A change was made in 1816 with reference to the beer trade. All those who received wine and spirit licenses were compelled to take out beer licenses also, and were bound under a penalty of £10 to furnish it when called for. There were no longer to be separate houses for the sale of beer and ale.[48] As the number of houses was slightly decreased the brewers made a great outcry, and in accordance with truly British sentiment they carried their point. The regulations were recalled and the Governor granted twenty beer licenses for Sydney and twelve for the other districts.[49]

Macquarie's final attempt to close the unlicensed houses was made in 1817. The amount of the fine was raised to £30 and the whole was to go to the informer. Conviction had to be sought before a Bench of Magistrates however, and not as formerly before a single Justice of the Peace.[50] Yet the offence continued and convictions were remarkably few. Two reasons for this were suggested to Bigge, one, that certain of the magistrates, notably the Superintendent of Police at Sydney and the Resident Magistrate at Parramatta, sold spirits wholesale and did not favour the prosecution of any of their customers. Bigge, however, came to the decision that although it was a mistake for any magistrates to be interested in this trade, no such charges could be supported.[51] The other reason given for the failure of prosecutions was that the witnesses were very seldom such as could be relied upon. This certainly had something to do with it, but the real cause lay in the fact that the punishment was not sufficiently severe and that the Governor treated delinquents too leniently. A conviction for unlicensed vending should have been a disqualification for a future license. Macquarie, however, did not invariably follow that course. In one instance a man who had been successfully prosecuted for unlicensed vending four times in two years was permitted to take a license in the third year.[52] It was obviously important that drinking should not be encouraged by a multiplication of facilities, and that the public houses should be decent and orderly. The issue of licenses gave the Government considerable power in regulating the number and conduct of these houses and it also brought in a considerable revenue.[53] It is difficult to say what was understood by an "orderly house". Governor King forbade gambling and drunkenness, probably with very little effect. Macquarie laid stress on the house being "commodious" and fit for the reception of travellers, and warned the publican not to allow "low and profligate characters" to make it a resort or the centre of disturbance. Nine o'clock was the closing hour for them all, but on "The Rocks," at least, the police made few efforts to enforce this rule. To distinguish licensed from unlicensed houses the former were ordered to hang signboards before their doors and a list of these was published in the Gazette.[54] The tavern company was often riotous and the inn parlour the place of brawls.[55] The duty of the Government was to lessen these evils by selecting suitable "housekeepers," and by keeping them strictly to the conditions under which the licenses were granted. By no means could it have been easy to find amongst the population of Sydney, licensees of undoubted propriety. But Macquarie's system had obvious faults. He reversed the former custom by which the Governor granted licenses on the advice of the magistrates, thus leaving the real power to them; putting in its place one by which the magistrates granted the licenses by direction of the Governor.[56] "… I have always understood," wrote Bent in 1815, "that licenses to vend spirituous liquors has always been not only nominally but actually granted by the magistrates at each district; and I think your Lordship will agree with me … that such a system is most accordant to the law of England and the dictates of reason. … The influence and patronage arising from this source is now wholly engrossed by the Governor to the injury of the public … and greatly to the diminution of the influence of the magistrates."[57]

The procedure was settled by Macquarie in the Order of 1813.[58] Applications for licenses or renewals were sent in the form of memorials to the office of the Governor's Secretary. Those which were approved by the Governor were handed over to the Bench of Magistrates, or rather a list of their names was transmitted to them. The applicants attended the meeting of the Bench with their sureties, paid over their fees and securities and received their licenses. "I am sure," wrote Bent, "your Lordship will be surprised on hearing that this list was never in any instance previously committed to me or to any of the magistrates, nor was I ever consulted with regard to a single person named in the list."[59]

Every memorial had, according to the regulations, to be accompanied by certificates from the resident chaplain and magistrate of the district in which the applicant resided. After 1815 the Superintendent of Police was for this purpose the Resident Magistrate of Sydney. But the Bench, who technically granted the licenses, really acted as "the clerks of the Governor". "And I cannot but think," said Bent, "that it would have been much more delicate and less injurious to the credit of the magistrates, as well as equally legal, if his Excellency had directed them to have been made out and granted exclusively by his Secretary".[60]

The certificates of the magistrates and chaplains attached to the memorial were to certify the applicants' "correct, orderly and strictly moral conduct," and each applicant was to possess a good and commodious house.[61] But the Governor frequently dispensed with these requirements, and even applicants to whom the Superintendent had refused certificates obtained licenses by the Governor's order.[62] Nor had the chaplain's signature always been attached to the successful memorials. In the case of Sydney this laxity might well have been justified by the dictates of common-sense, for the Rev. Mr. Cowper was inclined, like many other clergymen, to regard attendance at church as the final test of morality.[63] At the same time the neglect of their recommendations or refusals to recommend made the magistrates perfunctory in their duties, and to a large extent accounts for the number of worthless persons to whom they gave certificates. The combined opinion of the Bench would have given far greater security than a testimonial signed by an irresponsible magistrate and confirmed or set aside by the Governor. It was impossible for the latter to "have individually so many opportunities of becoming acquainted with the characters of the inhabitants as the magistrates, who have them more immediately under their control".[64] In the few instances in which the Bench did offer their opinion, Macquarie acted in opposition to it. A license given in spite of their contrary advice had later to be withdrawn,"[65] while in another case his independent mode of action led to a shameful abuse. "A man … convicted of felony before His Majesty's Court of Criminal Jurisdiction, and sentenced to hard labour at the Coal River,[66] not only succeeded in obtaining his remission from that sentence, but actually received and still has a license to keep a public house, and this only a short time after he had received the sentence of the Court."[67]

One regulation was rigorously adhered to. "No person," declared the General Order of 30th January, 1813, "who is still under sentence of the law as a convict, will receive a license, neither are any constables, clerks or other persons in the service of Government to be licensed as publicans". However, the disqualification did not extend to the free wives of male convicts or the free husbands of female convicts.[68] Probably the wives of "constables, clerks and other persons" were similarly admitted to a share in this profitable trade.

The method of withdrawing licenses was open to objection on grounds both of law and policy. Bent pointed out that the magistrates had no power to act in the matter, but that the license was withdrawn by the Governor "simply on the report of the magistrates not stated to be made after an examination on oath or any judicial examination whatever—and that the punishment is not to take place immediately but prospectively. … As all persons taking out licenses pay to the Colonial Fund … the sum of £20 … I cannot but think that the Governor in such measures has exercised a species of Criminal Jurisdiction not only not granted to him by his Commission but expressly given to the Court of Criminal Jurisdiction."[69] The fact of prospective deprivation was generally made known by orders published in the Gazette, and these show not so much a salutary severity as deplorable capriciousness. A few examples suffice to illustrate this.

In September, 1812, Joseph Chitham, a publican of Pitt Street, lost his license because it "clearly appeared" that he had been "in the habit of purchasing and vending a base kind of spirits, clandestinely distilled, and that his conduct in other respects had been highly reprehensible".[70] There is no reference at all to any judicial proceedings upon which these opinions are based.

The case of Elizabeth Watson of York Street was more curious. The following account appears in a Government and General Order:—

"From the evidence lately brought forward on the trial of Ormsby and Eleanor Irvine, on an indictment for the wilful murder of Serjeant Robert Morrow, of His Majesty's 73rd Regiment, in a public house in York Street, Sydney, it appeared that Michael Casey, the occupier of that house, did not by any means exercise the authority which it was his duty to have done in his own house to restrain those altercations which unhappily took place and terminated in the death of a well-behaved and loyal subject: And a license having been granted to that house, in the name of Elizabeth Watson (resident therein), for the retail of spirituous liquors and wines; and the conduct of the said Michael Casey in the foregoing instance being highly culpable, his Excellency the Governor is pleased to direct and order that from the 1st day of August next ensuing, the license granted to that house in the name of the said Elizabeth Watson, for the retail of wine and spirits as aforesaid, shall cease and determine and be held forfeited and cancelled; and that no spirits or wine shall be sold by retail or otherwise in that house, from and after the said 1st day of August next, on pain of prosecution of the offending party in the same degree as if no license as aforesaid had ever been granted to the said house."[71]

Now in this trial nothing in the evidence proved particular negligence on the part of Casey, and the license was not in his name. It had not been proved, nor had any attempt been made to prove, that the house was badly conducted or frequently the scene of disorder. The deceased had certainly met his death in the place, and it had been the outcome of a drunken brawl in which the dead man had borne a part. But the evidence had shown that his death was accidental and the prisoners had not received capital sentences. . The licensee herself had not been called nor was she even referred to in the evidence, yet she suffered quite as severely as the principals. Macquarie appears to have acted in her case without any recommendation from magistrates or judge.[72]

He refused, on the other hand, to renew a license for a man who kept a good house and was recommended by the Bench, on the ground that he had signed a petition to Parliament which Macquarie considered of a seditious nature.[73]

The whole effect of the Governor's system was to lessen the severity of the magistrates and cause them to leave to him the responsibility and unpopularity of regulating the trade. It is characteristic of the administration that from 1810 to 1820 there is not one instance of the securities of the licensee being called for. The requirement was treated as a mere formality, and it was the general custom for one publican to offer himself as security for another.[74]

In 1820 there was a complete revolution. For some time Hannibal Macarthur and Judge-Advocate Wylde had been urging Macquarie to revert to the English system, and relegate the granting of licenses to the magistrates altogether. One abuse on which they laid great stress was the frequency with which retail shop-keepers and bakers were licensed to sell spirits, thus giving the greatest encouragement to their customers to stay in the shop drinking.[75] Macquarie was ready to meet their wishes, and when the time drew near at which the licenses would be renewed, Wylde wrote a letter of reminder. So far, the concession proposed was "to leave to the magistrates convened for that purpose the discretion at least of recommending to your Excellency in the first instance such persons as would seem to them in full Bench most fit in respect of general character or otherwise to obtain such indulgence—even if the grant itself of the license, as in England, should not yet be wholly left with the Bench".[76] The Governor replied that he intended to follow the old custom for one year more. His reason was that he intended greatly to reduce the number of licenses. Then having, as it were, put everything in order, he would "gladly leave the matter in the hands of the magistrates".[77]

Shortly afterwards a difficulty arose through the decision of the chaplain at Sydney not to sign any of the memorials "on grounds not exactly relevant to the general competency of those persons to keep respectable houses of entertainment".[78] The Governor made up his mind to cut the knot by referring "the several petitions to the knowledge and discretion of the Bench of Magistrates, only desiring that the whole numbers to be granted … shall not on any account exceed the number licensed for the last year; and desirous that you will reject in toto all those persons whose names are now transmitted in a list from the Governor, and who are ascertained to be unfit for or unworthy of such indulgence".[79] On receipt of this letter Wentworth, who was at the time chairman of the Bench, wrote to Judge-Advocate Wylde proposing that on this occasion the latter should preside.[80]

Wylde acted upon the suggestion and laid down for the assembled magistrates the principles of the English licensing laws. In spite of Wentworth's opposition they decided on putting these principles into practice, with the result "that the number of licenses was greatly reduced, some of the most respectable people did not obtain licenses, and those who had purchased liquor and built houses in expectation of having their licenses continued have suffered very great injury".[81]

They inquired very thoroughly[82] into the situations and trade of the parties, the accommodations and the local wants of the town of Sydney, and adopted the two licensing statutes 2 Geo. II., cap. 28, and 21 Geo. II., cap. 37 as their guiding lights. They declared very firmly that they would "exercise no further power as to granting licenses for the ensuing year after that day".[83]

Some of the former licensees and some new applicants were apparently not fully aware of the new departure, and had not sent in their applications in time. The Governor had frequently given orders for the issue of licenses during the year, and they relied on this. Several of them, to the number of fifteen, presented their memorials to the Judge-Advocate, who simply quoted the law and refused to consider them. But with Macquarie they were more successful. On the 4th March he sent to the Bench orders directing that licenses be granted to four of the applicants. Unfortunately the Judge-Advocate was out of town. But there were license forms in blank signed by the Judge-Advocate at the office of the Clerk of the Peace, and these were sent down to the Court House. The magistrates thought Wylde had left them already signed for this purpose, and allowed them to be granted to the four publicans. When Wylde heard of what had happened he wrote to Wentworth explaining the mistake, and pointing out that such a course would not be admissible in the future.[84] He also sent a copy of this letter to Macquarie, who replied in his very worst style. "I return you my best thanks for informing me in this manner of the law respecting licenses, which had you condescended to have made me acquainted with sooner I should have been fully disposed to have regulated my conduct by. But not knowing the law on this particular subject, and the persons who had subsequently to the 19th February applied for spirit licenses being equally ignorant of it, I exercised my own judgment and what I considered my prerogative—agreeably to the customs and usages observed and acted upon in this Colony for the last thirty-two years—in promising a few additional licenses for the current year to persons under peculiar circumstances. … These persons, therefore, to whom such promises have been made by me, of receiving spirit licenses for the present year, must receive them accordingly."[85] The Judge-Advocate answered shortly. In effect he said that the Governor had handed over the matter to the magistrates, who had at their meeting publicly stated their policy, and now the Governor was taking the matter out of their hands again. "On the present occasion," he concluded, "it is for your Excellency to determine as to the obligation of promises made (as your Excellency suggests) under an ignorance of the law—a plea, however, which cannot at all stand the applicants in stead".[86]

In accordance with this opinion, when the memorials came before the Bench on the 11th March, 1820, an entry was made in the Book of Proceedings that they did not consider it competent for them to make for the ensuing year any additional grants for spirits or other licenses, and the statement was signed by those present, Wylde, Wentworth, Lord and Brooks.[87]

Nevertheless two of the applicants did receive licenses, though how they got them neither Bigge nor any one else seemed able to discover.[88]

The magistrates in this first year reduced the number of licensed houses from sixty to forty-one, and a new era of order and strict regulation set in. As they had for many years complained of Macquarie's lax administration they naturally started with vigorous severity, but probably settled down before long into an easier pace.

It is impossible to calculate with absolute accuracy the amount of liquor consumed in the Colony, or to compare the conditions before and after 1810. The only evidence is that of Lara, a decent publican of Parramatta, who declared that three times as much liquor was drunk in his house after 1810 as had been before.[89] It is probable that all the liquor imported at any time would have easily sold, and that a steady supply, such as was procured by the hospital contract and by opening the ports in 1815, did not appreciably affect the amount of drunkenness, but did lessen the amount smuggled into the Colony, and brought to an end the worst features of the rum traffic.

It is not even possible to find the exact quantity imported after 1810; for only that which paid duty, and therefore no supplies on Government account, were entered in the Naval Officers' books[90] before 1819. But the supplies for Government may be reckoned on the basis of 1819 and 1820. The consumption, so far as it can be ascertained from the amount imported, can only fairly be reckoned over a number of years, for the importations varied a great deal. Taking the four years of the hospital contract, the consumption of imported spirit appears to have been about 3·5 gallons per head of the whole population, or 4·6 gallons per head of the adult population. From 1815 to 1820 it averaged 4·3 gallons for the whole and 5·6 gallons for the adult population. Over the whole period the consumption must have been nearly 5 gallons per head, and the women probably drank as much as the men. This calculation, of course, leaves out altogether the smuggled spirit and the beer and ale brewed in the settlement.

In England the consumption of spirit doubled between 1807 and 1827, and the spirit licenses increased by 11,000.[91] Nevertheless, the average amount consumed in 1830 was only 67 gallon per head.[92]

As the young Australians drank little,[93] the remarkably large consumption of liquor in New South Wales must be attributed to the convicts. But in spite of this the death-rate was low,[94] and crimes of violence were not so frequent in proportion to the population as in England.[95] The clear sunlight, the fine spaciousness of the new country had given strength, vigour and hope to the thieves and pickpockets, the drunkards and profligates, the sinned against and the sinning, whose presence made the very name of Botany Bay a by-word.

  1. H.R., VII., p. 143.
  2. See Introduction, Chapter I.
  3. If the settlement had been made a "prohibition area" the garrison would have become mutinous and discontented.
  4. See Wentworth's Evidence, Appendix to Bigge's Reports. R.O., MS.
  5. H.R., VII. See above.
  6. This phrase is used by Jones in his Evidence before C. on G., 1819.
  7. See Report of Johnston's Trial, Evidence of Lieutenant Minchin, p. 246.
  8. Bayly to Sir H. Bunbury, 8th December, 1817. Enclosure dated 1st April, 811. R.O., MS.
  9. G.G.O., 19th August, 1815.
  10. See Evidence in Appendix to Bigge's Reports. R.O., MS.
  11. See Evidence of various convicts in Appendix to Bigge's Reports in R.O., MS.
  12. D. 30, 1810, Printed in H.R., VII., p. 335.
  13. D. 34, 19th May, 1812. Liverpool to Macquarie. R.O., MS.
  14. Ibid.
  15. Ibid.
  16. For further effects of the hospital contract see later in this chapter.
  17. See also Chapter V.
  18. D. 13, 23rd November, 1812. R.O., MS.
  19. Before C. on T. Mr. Robert Campbell, not the Governor's Secretary, J. T. Campbell.
  20. This is only partly true. The small encouragement to farmers kept the area under cultivation at a low figure.
  21. This was one of Macquarie's arguments. H.R., VII., p. 335. D., 30th April, 1810.
  22. Instructions to Bigge, P.P., XIV., 1823.
  23. See Chapter V..
  24. See Bigge's Report, III. Also despatch to Bathurst, D. 9, 24th August, 1820. R.O., MS.
  25. Ibid.
  26. i.e., the columns and portico.
  27. Evidence of Dr. Harris. See Appendix to Bigge's Reports. R.O., MS. See also evidence of H. Macarthur and others.
  28. Return in Appendix, Bigge's Reports. R.O., MS.
  29. This is calculated on the returns of 1819 and 1820. In previous years there is no separation made.
  30. See Return, Appendix to Bigge's Reports, R.O., MS.
  31. Evidence of Lara. Appendix to Bigge's Reports. R.O., MS.
  32. Government Public Notice, 31st December, 1814.
  33. Appendix to Bigge's Report. R.O., MS.
  34. Evidence, Appendix to Bigge's Reports. R.O., MS.
  35. In 1810 there was no "hulk" nor was there any trace of such a thing.
  36. i.e., at 9 o'clock.
  37. In 1809 there were 101 unlicensed houses.
  38. G.G.O., 17th February, 1810.
  39. G.G.O., 9th June, 1810.
  40. S.G., 23rd June, 1810.
  41. G.G.O., 23rd June, 1810.
  42. Ibid., 22nd December, 1810.
  43. Proclamation, 30th March, 1811.
  44. In 1816 the penalty was reduced from £20 to £10 with an additional £5 for every fresh offence. G.G.O., 27th January, 1816.
  45. In 1817 the limit was raised to five gallons.
  46. Public Notice, 25th January, 1812.
  47. See above.
  48. G.G.O., 27th January, 1816. It was hoped that this would encourage the drinking of beer instead of spirits.
  49. G.G.O., 25th May, 1816.
  50. Proclamation, 22nd February, 1817.
  51. Bigge's Report, II.
  52. Evidence in Appendix to Bigge's Reports. R.O., MS.
  53. The revenue was from £1,400 to £2,000 annually. Macquarie laid great stress on its importance. Thus in G.G.O., 7th August, 1813, in speaking of unlicensed retailing, he said, "Magistrates and other peace officers are called on to exert themselves in detecting and punishing all such frauds on the revenue".
  54. The police often allowed dances to take place in the licensed houses, during which there were scenes of great disorder.
  55. See G.G.O.'s 1810 to 1817, passim. The public houses were probably not so bad as those in England, and especially those in London.
  56. Bigge says Macquarie continued the old custom. See Report, II. This, however, is a mistake. See G.G.O. of King in 1800 and the notices in Sydney Gazette, which show that the system of 1800 continued until 1810. See also, Bent's letter quoted below.
  57. Bent to Bathurst, 1st July, 1815. R.O., MS.
  58. G.G.O., 30th January, 1813.
  59. Bent, see above. From 1816 to 1820 the only magistrate who attended the meeting of the Bench at which licenses were granted was Wentworth, and he came in order—as Treasurer of the Police Fund—to receive the fees. See Wylde's Evidence, Appendix, Bigge's Report. R.O., MS.
  60. See above.
  61. G.G.O., 19th August, 1815.
  62. Evidence of Assistant Superintendent of Police, Appendix to Bigge's Reports. R.O., MS.
  63. Riley, C. on G., 1819.
  64. Ibid.
  65. Ibid. Case of Mrs. Packer.
  66. i.e. Newcastle.
  67. Bent, 1st July, 1815. R.O., MS.
  68. Riley, C. on G., 1819.
  69. Bent, 1st July, 1815. R.O., MS.
  70. G.G.O., 12th September, 1812.
  71. G.G.O., 9th July, 1814.
  72. Elizabeth Watson may, of course, have lived with Casey, but there is no evidence as to their connection.
  73. Riley, C. on G. 1819.
  74. Evidence of Assistant Superintendent of Police, Appendix, Bigge's Reports. R.O., MS.
  75. They seemed to think that the magistrates could put an end to this and that the Governor could not.
  76. Wylde to Macquarie, 1st January, 1820, in Appendix, Bigge's Report. R.O., MS.
  77. Macquarie's reply, 22nd January, 1820. See above.
  78. Campbell (Governor's Secretary) to Wentworth, 11th February, 1820, Appendix to Bigge's Reports. R.O., MS.
  79. Campbell (Governor's Secretary) to Wentworth, 11th February, 1820, Appendix to Bigge's Reports. R.O., MS.
  80. He had only lately given up the chairmanship.
  81. Wentworth's Evidence to Bigge. See Appendix to Reports. R.O., MS.
  82. See J. A. Wylde to Wentworth, 7th March, 1810, Appendix. R.O., MS.
  83. They met on the 19th February to grant the licenses. See J. A. Wylde to Wentworth, 7th March, 1820, Appendix. R.O., MS.
  84. Wylde to Wentworth, 7th March, and to Macquarie, 1820, Appendix, Bigge's Reports. R.O. See also Wentworth's and Wylde's Evidence, Appendix, Bigge's Reports. MS.
  85. Macquarie to Wylde, 10th March, 1820, Appendix as above.
  86. Wylde to Macquarie, 10th March, 1820, as above.
  87. Appendix to Bigge's Reports. R.O., MS.
  88. Bigge's Report, II.
  89. Appendix to Bigge's Reports. Evidence of Lara. R.O., MS.
  90. The spirit imported by the contractors paid duty, and was therefore entered by them.
  91. Goulburn, Chancellor of Exchequer in 1830. Quoted in Webb's History of Licensing Laws, 1902, p. 113.
  92. Twenty-eighth Report of Commissioners of Inland Revenue, 1885. Quoted in Webb, see above, p. 109.
  93. See Evidence, C. on T., 1812. Riley, C. on G., 1819. Bigge's Reports, passim. Macquarie's Despatches, passim, etc.
  94. The death-rate from 1810 to 1820 was about 20 per 1,000. This is low for the period and considering the number of old men sent out. The figures are, however, very rough. The birth-rate—calculating on somewhat incomplete returns which include only the children baptised—for the same period was nearly 30 per 1,000. Appendix, Bigge's Reports. R.O., MS.
  95. Wylde's Evidence, Appendix, Bigge's Reports. R.O., MS. From 1816 to 1820 (the only years for which returns are available) there were 100 cases of crimes of violence before the Criminal Court. See Appendix, Bigge's Reports. R.O., MS.