A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 8

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Authorities.—Despatches, etc. (especially for years 1816-1817, and Appendix, Bigge's Reports) in Record and Colonial Offices, Sydney Gazette, 1816-1817-1818. P.P., 1819, VII.; 1822, XX.; 1823, X.

No sooner was the question of the emancipist attorneys at rest than Bent found a fresh outlet for his spirit of opposition. This time it was against the payment of tolls on the Parramatta Road that he took his stand, and the ground was well chosen, for it opened up the whole question of the legality of the system of Government in New South Wales.

The road ran from Sydney to Parramatta and thence to Windsor, a distance altogether of thirty-six miles. It had been built by Macquarie in the early years of his Governorship, and though executed by convict labour, had been a heavy charge upon the colonial revenue. In order to liquidate "the debt contracted to the Police Fund" by its original construction, as well as to provide from time to time for necessary repairs, Macquarie erected turnpikes and ordered tolls to be levied.[1]

In 1810 he appointed three Road Trustees, Simeon Lord, Andrew Thompson and the Reverend Samuel Marsden. Marsden refused to act with the others, and Wentworth was appointed in his stead. Shortly afterwards Thompson died, and Macquarie made no further appointment to fill his place.[2] In March, 1811, the Governor published a Proclamation naming the rate at which the tolls were to be levied and other details of management. The Proclamation received the approval of Lord Liverpool in a despatch of 1811.[3]

Macquarie's scheme for the administration of the road was certainly just and reasonable. It was probably very seldom that the Governor of a remote colony described with exact accuracy the working of any Government department. Approval was sought for the course which was to be pursued, and approval once obtained, the Governor felt under no obligation to report the many divergences into which practical administration might lead. Thus the three Road Trustees were reduced to two, and of these two D'Arcy Wentworth alone conducted the business. Bent stated in 1815 that Wentworth was the only trustee, and in the same year Macquarie claimed that there were three; but two, and two only, appeared in any record.[4] This uncertainty was not very important, for the only duty of the trustee or trustees was to farm the tolls to the highest bidder. This was done annually, and the sum realised paid straight into the Police Fund. All further control belonged to the Governor. It was constant matter for complaint in the Colony that the roads and bridges were neglected and repairs urgently needed; but the Road Trustees were in no way responsible, nor was any part of the Police Fund ear-marked for such purposes. The revenue benefited yearly by about £400 from the farming of the tolls, but this amount was not set aside to pay for repairs, nor was it used to repay the charge for construction, but simply went into the general fund. Thus in practice Macquarie disregarded the principles he had laid down for Lord Liverpool's approval.[5]

To one section of the Proclamation of 1811 the Governor strictly adhered. That was the section which relieved the Governor and Lieutenant-Governor, with their families and suites, from the payment of toll, since their duties required that they should from "time to time pass into the interior". He offered a similar favour to the Judge-Advocate, "rather, however, as a courtesy and acknowledgment for his having obligingly framed the Proclamation and antecedently rendered me other legal assistance and advice, than from his having any public duties to perform which could warrant such exemption." Ellis Bent refused the offer, thinking with Macquarie that his public duties as Judge-Advocate did not call for such an indulgence, and that his inclusion might be followed by demands from other magistrates for such exemption by right.[6]

Jeffery Hart Bent had no such delicacy. In August, 1815, he decided that the exaction of toll was altogether illegal, and determined not to pay it. His absurd sense of personal dignity was outraged by the distinction drawn between himself, one of His Majesty's Judges, and the Governor and Lieutenant-Governor, a distinction not to be found, he asserted, in "His Majesty's Most Gracious Charter," where equal civil rights were assigned to each.[7] He warned Macquarie of the course he intended to pursue, on the 18th August, and marched boldly to the attack, "But notwithstanding your Excellency has made so mortifying a distinction between the Lieutenant-Governor and His Majesty's Judge," he wrote, "and notwithstanding I am well aware of the illegality of the demand, and that your Excellency possesses no legal power or authority whatever to levy taxes upon the subject, I am so much alive to the advantages arising from good roads that I should have most willingly contributed my quota towards their maintenance had I not from the neglected state of the roads sustained considerable personal risque (sic) and had I not found that instead of the system general in England with respect to the turnpike roads being resorted to here, viz., the appointment of trustees for the purpose of collecting the tolls and seeing to the due appropriation of the money, on the roads, from which it was collected, and who are responsible for the good state and repair of the roads, a new and arbitrary mode has been adopted, and only one person appointed by your Excellency, whose duty seems only to be to let the tolls to farm, and who has not the slightest power to lay out anything upon the roads … and whose office … appears to me to be a mere blind for those who have not the means of personal information on this point; and had I not also found that the sums levied are carried to a general account, and no part appropriated to the repair of the road on which they were collected. …

"Under these circumstances I feel myself justified in declining to pay a demand absolutely illegal, or to submit to a burthen from which your Excellency has relieved yourself and the Lieutenant-Governor and your respective families and suites. As I must," he concluded, "always feel great reluctance to disturb any arrangements of your Excellency, or to impede in any manner the execution of any measures adopted previous to my arrival at this Colony, I thought it proper before my determination became public to apprise your Excellency, in order that an opportunity might be afforded of removing the necessity that leads to it."[8]

Macquarie made one of those answers in the third person which are the usual refuge of persecuted dignitaries. Without easing the situation, it inflated him with a sense of virtuous indignation and stifled any question of right and wrong. Insolent and turbulent though Bent was, he knew the ways of the law. In such matters Macquarie was at sea without chart or pilot, and he was more than a little uneasy under the judge's onslaught.

And so he took a bold line and wrote: "The Governor has received a most insolent and disrespectful letter of this day's date from Mr. Justice Bent, full of gross misrepresentations and calumnies, which merits no other answer than his expression of contempt for the weak and ineffectual efforts of the writer to disturb the peace of the Colony and to counteract the measures of his administration".[9]

Bent easily refuted the charges of "misrepresentation and calumny." Having once more gone over the ground covered by his previous letter, he proceeded:—

"I may again say that such a system is contrary to that established in England by numerous Acts of Parliament in cases of turnpike roads; and that it is (to me at least) both new and arbitrary. I feel justified in the inference I drew from these facts that there is no person in England, hearing that a trustee of the roads had been appointed, but would conclude that he had the same powers and was subject to the same responsibilities as similar trustees at home, and no one could conceive that such person was a mere non-efficient, or that your Excellency (as the fact undeniably is) had the sole and entire control of the repairs of the roads and as to the expenditure of the tolls levied from them."[10]

This was irrefutable, and Lord Bathurst would undoubtedly have taken his view.[11]

The correspondence came to an end with a very queer letter from Bent, which illustrated his attitude towards Macquarie from the moment when he had first set foot in the territory.

"The Judge of the Supreme Court," he began, "begs to remind Governor Macquarie that all his relations with this Colony, and his late as well as former correspondence with his Excellency, have resulted solely from his judicial station, and he had to express his sincere regret that his correspondence should have been hitherto principally confined to a resistance to Governor Macquarie's improper interference with him as judge; and a remonstrance against measures touching (in) his opinion on the Liberty of the Subject."[12]

Macquarie expressed to Lord Bathurst the uneasiness which he would not show to Bent. It was apparently the first time that he had really faced the question of his right to lay taxes, and he was surprised at the consequences which would logically follow from Bent's doctrines. But he considered that the absurdity of the conclusion was so obvious as to discredit the premises. He described Bent's letters, and then proceeded: "… he subsequently adds that the demand of toll is illegal, as I possess no legal power or authority whatever to levy taxes upon the subject—a position which not only goes to the rendering the toils so collected illegal, but by its indefinite nature equally affects all other duties or imposts, and consequently strikes at the existence of any colonial fund whatever—for all duties on imports or exports—the sums levied upon licenses for the keeping of public houses, and all others which constitute and go to the support of that fund have been laid on by the Governors from time to time, and of course are fit subjects for this doctrine of resistance by all those who are required to pay them.

"It is not for me to expatiate to your Lordship on the dangerous consequences of any man under a colonial Government presuming to oppose the ordinary measures of that Government, but more particularly on the extraordinary impropriety of a Law Officer of Mr. Bent's rank enlisting himself as the champion of a weak and wicked faction to impede the just measures of Government, to increase the taxes on the mother country by annihilating all those levied in the Colony itself, and to pronounce on the illegality of measures which he might possibly have to pass legal judgment upon in his own Court of Justice, were other persons to be found who would render such an appeal necessary."[13]

Macquarie thus confused the legal aspects of the question with the personal one of respect to his authority, and whatever his opinion as to the first, let no doubts disturb the decisiveness of his action. After his declaration in August, Bent had soon commenced hostilities. On the 6th September Redman and Cullen, the proprietors of the Toll Gate at Sydney, made a complaint to Wentworth, the Superintendent of Police. From the depositions sworn by them it appeared that Bent not only refused to pay toll, but when the gates were shut against him shook them open and drove through at a gallop, making use of language natural to an angry Englishman on such an occasion.[14]

Wentworth did not issue a summons immediately, but seeing Bent passing his office he went out to him and tried unsuccessfully to reach an amicable settlement. The summons was therefore issued and duly served.[15] Bent at once wrote pointing out that as Judge of the Supreme Court he was "by no means amenable to any criminal jurisdiction in this territory," and that he could not appear in answer to the summons.[16]

"It seems very extraordinary," he concluded, "that such a measure should have been adopted on your own authority towards one of His Majesty's Judges, without any avowed communication with His Excellency the Governor."[17]

The suggestion was an ugly one, but it was probably justified. The pretence on the part both of Macquarie and Wentworth that they had not consulted together, and that they had nothing to do with the action of the toll-keepers, was stultifying. It was quite unlikely that the latter would have taken up the matter without some encouragement from high quarters. Bent was not a frequent traveller, and as Macquarie pointed out with scorn, kept no carriage, but usually rode or walked.[18] Pedestrians paid no toll and equestrians only a mite of 3d. Such a loss would scarcely have been sufficient to make ignorant men like the turnpike-keepers enter of their own accord into conflict with an officer of high judicial standing.

The case came on before the police superintendent and was heard ex-parte on the 8th September, and a fine of 40s. was imposed. This was the lowest penalty which the Proclamation of 1811 allowed. Needless to say, Bent did not think of paying it, and Wentworth took no further steps, but simply referred the conduct of the affair to the Governor.[19]

Macquarie at once published an Order in the Gazette in which he referred to the recalcitrant judge, not by name, but as "an officer of very high rank in the Civil Service of this Colony".[20]

The most important part of the Order ran as follows:—

"Whilst the Governor laments that any person should be found in the Colony so wanting in public spirit, as to wish to evade contributing his mite towards the support of so useful and beneficial an establishment for the country and community at large, he cannot allow any person whatever, however high his rank may be, to break through or set at defiance the established regulations of the Colony, and he thus publicly declares that no person whatever can or shall be exempted from paying the tolls in question, excepting those few already specified in the Government Orders." The farmers of the tolls were authorised "to instruct and direct their respective toll-gate keepers to enforce the orders and regulations," and to use force and call the police to their assistance if necessary. The magistrates were enjoined to look to it that this assistance should be efficient.

Bent of course retorted and commented at some length on the conduct of Macquarie and Wentworth. He claimed again that judges were exempt from all criminal process save for treason or felony, a statement to which Macquarie gave no direct answer. It may be observed, however, that Barron Field, Bent's successor, held that this exemption did not extend to the colonial judges, and proposed that it should be conferred by statute.[21]

Macquarie's description of his position deeply injured Bent. "Your Excellency," he wrote, "has … considered me as an officer under your command and not as a judge holding a commission from His Majesty, and who is not bound by any instructions or by the tenor of his commission to take any orders from your Excellency, and whose commission was so given for the express purpose of rendering him independent of the Governor of this Colony."[22]

He avoided further conflict by abstaining from any use of the turnpike road, and thus carried his point of never paying toll. The apparent victory lay with the Governor, but Bent had thrown a doubt on his power to tax, and offered to the malcontents a tenable ground of attack against the Government.

He soon found a more efficacious and subtle manner of harassing the Governor, using as his tools the Rev. Benjamin Vale, a discontented young chaplain, and W. H. Moore, a mischievous young solicitor, one of the two who had been sent out by the Government.

Vale had left England early in 1814 to take up the duties of assistant chaplain on the colonial staff. Like all the chaplains in New South Wales, with the exception of Marsden, he held a staff commission which placed him under "the Rules and Discipline of War". Marsden had originally held one of this kind, but when he visited England, in 1808, he persuaded Lord Castlereagh to replace it by a civil commission, fearing that the other might render him amenable to a Court-Martial. Castlereagh had denied that he could in any event be court-martialled, but yielded to Marsden's persistence, and had a new commission of a purely civil nature made out, for which Marsden had afterwards reason to be thankful.[23]

However, Vale gave no consideration at all to the terms of his commission and suffered no misgivings. When he reached Sydney he was bitterly disappointed with the position assigned to him. Instead of having the duties of a single parish with a dwelling and glebe attached, he found that he must provide his own lodgings and be constantly moving from place to place as his assistance was required now by one and now by another of the chaplains. He had to support his wife and family on his salary of 1Os. a day without further help from the Government. Under these conditions he obtained the Governor's permission to return to England in 1816. The Governor indeed was glad enough that he should go—for the disappointed clergyman was troublesome with his constant complaints.

Before the time came for his departure, Vale thought he saw an opportunity of recouping himself for his expenses in the Colony. On the 19th February, 1816, the Traveller, an American schooner carrying teas and other merchandise, arrived at Port Jackson bearing a clearance in proper order from Canton. She was the first American ship which had visited Sydney since the conclusion of peace, and Macquarie gave her permission to unload her cargo. He was absent from Sydney for a few days, and when he returned on the 29th February, he found that the unloading had been stopped and the schooner seized as a lawful prize under the Navigation Act by the Rev. Mr. Vale and W. H. Moore. The Governor immediately removed the "arrest or restraint which had been thus laid on the discharge of the cargo, and continued the permission of landing," which he had previously granted.[24] Moore, who acted as Vale's attorney, petitioned the Governor to appoint a Judge of the Vice-Admiralty Court, but received no answer—and so far as the Traveller was concerned the matter ended there.[25]

Macquarie was not sure whether he had been right in allowing the schooner to enter and unload. He had followed the colonial precedent of the time before the war[26] without at the moment having any doubts at all. He had not then, at the beginning of 1816, received a despatch from the Colonial Office of December, 1815, warning him "that the trade of foreign vessels with a British Colony is directly at variance with the Navigation Laws of this country, and although this infraction of them might have been tolerated at earlier periods upon the plea of necessity, it cannot now be defended upon any such grounds." …[27] After the seizure had been made he felt uneasy and pointed out to Lord Bathurst that even if he had felt any doubts before, he had no one in the Colony to whom he could turn for advice, for he naturally shrank from appealing to J. H. Bent, and he was "debarred from reference to the statutes themselves by Mr. Bent retaining both the sets which Government had at different times assigned for the use of the Law Court".[28] He felt, however, that the precedents would go far to justify him, but as it was probable that Vale and his "abettors" would prosecute the business elsewhere," he asked for an Act of Indemnity in case he should be proved to have contravened the Navigation Act.[29]

With regard to Vale and Moore, however, he had not a moment's hesitation. "Mr. Vale's conduct," he wrote, "and that of Mr. Moore (both officers receiving pay under the Government) being highly disrespectful, insolent and insubordinate, in making seizure of a vessel during my absence which they were fully aware had received my sanction for entry and discharge, I felt it my duty to remark so much to Mr. Vale, whom I sent for on the 27th ulto. and admonished him on the impropriety and great indelicacy of his conduct in this instance towards me as his Governor and Commander-in-Chief … instead of any expression of regret, he even attempted by argument to vindicate the measure … I ordered him into a military arrest, his commission as assistant chaplain specifically rendering him amenable to Martial Law … and ordered a Court-Martial." According to Vale, the Governor charged him with mutiny and had him marched through the town like a deserter.[30] Marsden attempted to dissuade Macquarie from bringing Vale before a Court-Martial, and told him of Castlereagh's opinion that even under staff commissioners the chaplains were not amenable to military law, but Macquarie was determined and himself drew up the charges.

There were four charges, of which the first three differed little from one another. Vale was accused of conduct "highly subversive of all good order and discipline," of insolence, disrespect and insubordination towards the Governor and Commander-in-Chief, of "disgraceful and ungentlemanly conduct highly derogatory to his sacred character as assistant chaplain" in seizing the Traveller after "his Excellency the Governor and Commander-in-Chief … had permitted and regularly sanctioned the said schooner to be entered at this port with leave to land certain parts of her cargo". Further, his action "tended to bring odium and disrepute on the public measures of the Governor," and Vale had acted "from seditious, unworthy and sordid motives ". The fourth charge dealt with his letters to Lieutenant-Governor Molle, which were characterised as seditious and insolent. The court found him not guilty of the last charge, but guilty of the first, and of parts of the second and third,[31] and ordered him to be "publicly and severely reprimanded and admonished". The Governor, however, directed that "in consideration of his sacred character as a clergyman," he would dispense with the public reprimand, and ordered Vale to attend at Government House to have his sentence and the order upon it read to him by the Major of Brigade, and be privately admonished by his Excellency in the presence of his personal military staff and the naval officer.[32]

As to Moore, "I have," wrote Macquarie, "deemed it necessary to mark my sense of it" (his conduct) "in such a manner as I considered his insolence merited, and for this purpose I have given directions for his salary of £300 to be discontinued to him from the Police Fund from the day of his assisting Mr. Vale … in making the seizure, and I have ordered him not to be continued on the Government stores;[33] at the same time withholding every other indulgence from him which I might, under other circumstances, have been disposed to extend to him".[34]

These appear remarkably severe measures and much beyond the occasion. What spurred Macquarie on to such a vindictive course was certainly the fact that he knew Vale and Moore were not acting on their own initiative.

"I have to state to your Lordship," he told Bathurst in his first despatch on the subject,[35] "that Mr. Vale and Mr. Moore on the occasion of the seizure proceeded direct from the house of Mr. Justice Bent (with the notifications of seizure ready drawn up) on board the Traveller, and I have besides much reason to apprehend that their proceedings herein were under the private advice and recommendation of that Law Officer."

It is impossible to say to what extent Bent was responsible for their action. He admitted himself that he warned Captain Piper, the Naval Officer, "that he would do well to do nothing with regard to her" (the Traveller's) "entry without authority from the Governor,"[36] but said he had no more to do with it. In any event, after the seizure he was active in his support of both Vale and Moore. Moore, he said, who had acted only as an agent, had been more severely punished than Vale, and without any examination into his conduct having been held. As to Vale, Macquarie had acted illegally in bringing him to a Court-Martial, and Bent condemned Macquarie's behaviour to both in a letter to the Colonial Office.[37] Vale also wrote to Lord Bathurst, taking somewhat the same line as Ellis Bent had taken a few years before … "I trust if it should be decided that the colonial clergy are subject to Courts-Martial, your Lordship will, in justice to my sufferings under the unknown circumstances, order me all the allowances to which military chaplains are entitled from the earliest date of my commission, and that if it should be decided, as I trust it will, that the colonial clergy are not subject to Courts-Martial, your Lordship will order me those allowances from the time I was put under a military arrest."[38]

While Moore and Vale both sought the sympathy of the Colonial Office, they were by no means inactive in the Colony. In June, 1816, Vale drew up a petition to the House of Commons describing the conduct of Governor Macquarie, who unfortunately chose this very moment for making the most indefensible mistake of his whole administration.

In 1815 he had laid out the Government House Domain as pleasure gardens for the use of the public, and enclosed them with a stone wall. There were three entrances to the park, but the townsfolk, to save themselves the trouble of walking round to any one of the three, and also that they might enter unobserved, were continually breaking down the wall and climbing over. The favourite spot for this mode of entrance was a corner by a small plantation, which was the haunt of a very bad class of persons. Here they would drink and gamble or exchange stolen goods with one another, and Macquarie determined to prevent them making bad use of the Domain by continuing to enter it surreptitiously for these purposes. He issued no order on the subject, but on the 18th April he directed the chief constable to place one of his men inside the wall, who was to arrest and lodge in gaol any one attempting to climb over. The constable during the first day of his watch, the 19th April, arrested three men and two nursemaids. The latter, greatly to the indignation of their mistresses, were kept in gaol all night, but were sent home next day. But the three men were flogged in the gaol yard by warrant from the Governor before they were released. One of the three was a convict, one an emancipist, and one a free man. Not one of them had—as colonial reputations went—a bad name, and Riley, who had been many years on the Sydney Bench, could not remember any of them having been brought before him for any offence. Two days, afterwards, the emancipist Henshall, and the free man Blake, made affidavits describing their treatment, which were taken by J. H. Bent, because, by his account, no other magistrate in the Colony would dare to take them.[39]

Macquarie's conduct was unjustifiable from the beginning. The constable had been placed by his orders not to warn but to trap offenders. Once arrested the only charge to be laid against the men was that of trespassing, and the fact of trespass should have been inquired into by a magistrate. Macquarie might, had he so desired, have conducted the inquiry himself, but he had no more power than any other magistrate to order punishment without examination on oath. The punishment of the convict was not perhaps illegal, for such summary discipline was occasionally exercised over the prisoners. But there was no such jurisdiction over Henshall and Blake, and the Governor's action had not even a suspicion of legality. The free and freed inhabitants of the Colony did not consider themselves amenable to the "same coercive measures of Government which are judged necessary for keeping the prisoners in order."[40] Those who saw the warrant before its execution were much alarmed, and Wentworth had serious thoughts of suppressing it. The gaoler was in a quandary, afraid to obey and afraid to disobey the order.[41] The latter fear was the most pressing and he obeyed.

The news of what had happened spread quickly over the town, and whenever a group of people gathered together it was the subject of discussion. "The inhabitants of all ranks," said Riley, "were surprised and alarmed; until that moment the humblest freemen in the Colony had considered their persons safe under the Government of General Macquarie; it was an unguarded measure, condemned and lamented by his best friends; and from the knowledge I conceive I have of Governor Macquarie I think he must himself have regretted that he gave the order.[42]

Bent did his best to foment the excitement, and it is a remarkable testimony to Macquarie's essential uprightness of character and to the respect with which, in spite of all his faults, the colonists regarded him, that no rioting or disorder resulted. But the incident created a great deal of uneasiness, which did not die out so long as the Government remained in the hands of one man. No reference to the matter was ever made in official despatches, and when Macquarie did later defend his action, his arguments were wholly irrelevant to the point at issue. He had given way to irritation, acted precipitately, and the only way to retrieve himself was by not repeating the mistake and hoping that it might be forgotten.[43]

A little later another rather unfortunate incident occurred. Some years earlier, in 1813, two lieutenants of the 73rd Regiment had been tried for the murder of a man "in the lower ranks of life" in the streets of Sydney. The Criminal Court, in the face of much conflicting evidence, found them guilty of manslaughter only, fined them 1s. each, and ordered them to be confined for six months in the Parramatta gaol. Macquarie thought the verdict too lenient and the sentence too light. He published a lengthy Order of Reprimand and reported the matter fully to the Commander-in-Chief.[44] In due time the 73rd was relieved by the 48th and sent to Ceylon, and while there the two officers were dismissed the service in accordance with orders from the Commander-in-Chief. In May, 1816, one of them returned to Sydney in order to marry. Macquarie ordered him to return by the ship on which he had come. This did not leave time to put up the banns and the Governor refused the young man a license. Bent took up the cause of the bridegroom and wrote two letters to Macquarie, calling in question his right to keep any British subject from coming into the Colony and also his right to refuse a marriage license.[45] The Governor in reply "wished Mr. Bent had spared himself the trouble of writing them; as his unsolicited opinions can in no way alter the resolution of Governor Macquarie in the case alluded to in those letters".[46] The young man had to return unmarried, and whether or no the lady followed him is not recorded.

Both these incidents were included in the petition. The document was first drawn up by Vale and submitted to Bent. Bent characterised it as a "miminy-piminy thing, not half severe enough," and wrote one out himself. To this draft Vale made a few additions and brought it to be engrossed on parchment by a certain emancipated clerk.[47] It was then deposited in Moore's office and all who came by were invited in to sign it.

Vale left, taking the petition with him, in June, 1816, and just before his departure Macquarie, thinking perhaps to conciliate him, gave him a grant of land. But when he learnt more exactly what were the contents of the petition, he withdrew the grant.[48]

"This memorial," wrote Macquarie to Lord Bathurst in April, 1817, "was sent from hence for England in June last … which I was aware of at the time, but not being so fully informed of its object as I have become since, I did not feel it necessary to make your Lordship any communication at that time in regard to it.

"Since that time a copy of the memorial having been privately taken by a person who had frequent and unsuspected access to it, it had come to light that the signatures of several persons had been put to the memorial without their having any knowledge whatever of the circumstances, and some of these people … finding their names had been affixed to it and justly dreading my displeasure, have come forward and disclaimed on oath their ever having authorised any one else to sign for them the paper in question, and at the same time reprobated the false and malevolent assertions contained in it. As soon as it was discovered that I meant to withhold grants of land and other indulgences from any persons then about to receive such, whom I should find had been concerned in the business of the memorial, some persons getting alarmed immediately set about exculpating themselves. And it is an extraordinary fact that Mr. Solicitor Moore had the audacity to address a letter to me, in behalf of his brother (to whom I had promised a grant of land, but had cancelled it, on finding his name was affixed to the memorial), declaring that he had himself put his brother's name to the memorial without his privity or consent, at a time his brother was in the country and unacquainted with its contents."[49]

In November, 1816, both the Moores had written to the Colonial Office complaining of their wrongs, the younger one because he had lost his land, the elder because he had lost land and salary. To the former the Colonial Office replied that the Governor had been directed to issue his grant and to the latter that his salary would be paid, together with its arrears. But his conduct had not met with approval, and he was warned that if any more complaints were made of his behaviour he would be dismissed.

To Macquarie, Lord Bathurst wrote that he had not been justified in withdrawing Moore's salary, and then dealt severely with his treatment of Vale. "It was not without considerable surprise," he wrote, "that I learnt your determination of bringing him to a Court-Martial upon the charges which you ultimately preferred against him. Admitting that it was matter of doubt whether Mr. Vale's appointment might not be considered so far a Military Commission of Chaplain to His Majesty's Forces as to bring him within the Provisions of the Mutiny Act, yet had you proceeded with that consideration which would have but befitted the occasion, and referred as it behove you to the Act under which you claimed the authority so to try him, you would have seen that Military Chaplains can only be brought to trial for the offences specified in the 4th and 5th Articles of the first Section of the Articles of War, and that those offences are either absence from duty, drunkenness, or scandalous and vicious behaviour derogatory from the sacred character with which a chaplain is invested. That Mr. Vale was guilty of any such offence cannot be pretended, it is not even imputed in the charges that there was any vice or turpitude reflecting on his moral character in the act which he had committed, and the decision of the court still further negatives any such supposition. The whole of your proceedings against him were consequently illegal, and it is therefore utterly out of my power to give them any sanction or approbation; and although I feel that Mr. Vale's conduct was in many points of view extremely reprehensible and should willingly have interfered with a view to its correction, yet I have now only to lament that you should in a moment of irritation have been betrayed into an act which at the same time as it exposes you personally to considerable risk, cannot fail to diminish your influence among the more respectable part of the community, who justly look upon the law as the only true foundation of authority."[50]

Macquarie's reply was a double-barrelled one. On the 24th November, 1817, he warmly defended the Court-Martial and refused to authorise the payment of Moore's salary, and on the 1st December, 1817, he tendered his resignation. He wrote: "Finding with deep regret that certain measures of mine, alluded to in your Lordship's Public Despatches bearing dates 24th January,[51] 6th February,[52] 22nd April[53] and 15th July[54] last, have been disapproved and incurred your Lordship's displeasure; and that from the tone and manner of conveying sentiments of disapprobation and censure, I have had the misfortune to lose that confidence which your Lordship has hitherto been kindly pleased to repose in me; I could not with any satisfaction to myself, nor consistently with my own feelings of propriety and sense of public duty, any longer wish to retain the high and important office I had so long had the honour to hold as Governor-in-Chief of this Colony; the arduous duties of which I had every reason to hope and believe I had discharged with credit to myself and advantage to the public service.

"I therefore most respectfully request your Lordship will do me the favour to tender my resignation … for the gracious acceptance of his Royal Highness the Prince Regent; humbly and dutifully submitting to His Royal Highness that he may be graciously pleased to nominate another Governor to relieve me—and that I shall remain here until the arrival of my successor, or at least until I am honoured with your Lordship's commands after the receipt of this."[55]

His defence in Vale's case was not lacking in confidence. "… however much I esteem and respect your Lordship's superior judgment, good feelings and high station, and however much I may consider myself bound to submit to your Lordship's authority and opinions, I trust that on a further review and consideration of my conduct in this instance it will not be deemed presumption, in a case where my public authority, character and feelings as a man are so deeply involved, if I take the liberty to dissent from the conclusions your Lordship has been pleased to draw from my conduct in regard to Mr. Vale; for I cannot at all admit that it has been either illegal or unjust, whilst on the contrary, I feel the consciousness of having treated him with much more lenity than his mutinous, seditious conduct deserved.

"If, however, it should appear hereafter that I have acted illegally towards Mr. Vale, I am aware of the high responsibility I have incurred thereby, as also of the personal risk such illegal conduct exposes me to, as intimated by your Lordship, and with all deference to your Lordship I must add that I cannot possibly subscribe to the inference drawn from my conduct towards Mr. Vale, that it has the effect of 'diminishing my influence among the more respectable part of the community in this Colony,' for I believe there is not one … who did not highly disapprove and execrate the mutinous, seditious and insolent conduct pursued towards me by that depraved, hypocritical, unprincipled man."[56] He proceeded "with great submission to your Lordship's superior judgment," to state that his charges against Vale were fully warranted by the Articles of War, for Vale's conduct in seizing the American vessel in the capacity of the meanest excise officer was not only "insolent … but also derogatory to the sacred character with which he was invested as chaplain and consequently scandalous and vicious … your Lordship has mistaken my motives in supposing that in my conduct to Mr. Vale, I acted under the influence of sentiments of irritation or passion. … I have been bred in the school of subordination too long not to respect it; and your Lordship must be fully aware how necessary it is to support it, in a distant Colony like this, and composed of such discordant materials; assured at the same time that your Lordship would not wish to see me degraded by tamely submitting to the subversion of my authority as Governor-in-Chief of this Colony, either by Mr. Vale or any other seditious unprincipled person."

Turning then to Moore he continued: "It is with sentiments of real concern that I feel myself compelled, from a sense of public justice and the respect due to my own high station in this Colony, to decline being in any way instrumental to the reinstating Mr. William Henry Moore in the appointment he held in the Colony as solicitor. This man has acted in a most daring and insulting manner, in direct opposition and open violence to my authority, in being one of those who seized the American schooner. … This Act is of too much importance (connected as it certainly was with the seditious and violent cabal headed by Mr. Justice Bent and some other disaffected persons then here) to the respectability of the Government, and stands in too prominent a point of view in regard to the future tranquillity of this Colony, to be passed over unpunished.

"At the distance at which your Lordship is placed, and the number of subjects which press on your consideration, I cannot but think that this matter has not met with that attention which its importance merited, as it regarded me or this Government in whatever hands it may be placed.

"My mind and time are exclusively bestowed here. I have no object but the upright fulfilment of my duty towards my Sovereign, and I am not without hope that your Lordship will approve of my acting according to what I consider my duty, although in this instance I am thereby deprived of the pleasure of paying that implicit obedience to your Lordship's commands which has at all times been my wish, and which but in this solitary case I have always had the satisfaction of doing.

"In regard to the grant of land promised to Mr. Moore, I have very good and strong reasons for declining to confirm it. Subsequent to his first mutinous conduct … he has set on foot a petition to the House of Commons. … I fully expected your Lordship would have sent me a list of the names of the persons who signed this false and slanderous petition, in order to enable me to prosecute them here for a libel, which I could easily have proved it to be. All those persons whom I knew had signed it I struck off the list of names for whom lands had been previously designed. Mr. Moore and his brother being the most culpable of all … their names were struck off the list as a matter of course."

He went on to state with perfect lucidity the whole duty as he understood it of a military governor.

"It would," he wrote, "be a very different line of conduct from that I have pursued from the period I had the honour to enter His Majesty's service, were I not to restrain and put down mutiny and disaffection wherever detected, and I should think I had neglected to do so, were I to be in any way instrumental in bestowing favours on persons who have set themselves up, in open defiance of the legal authorities of this Colony, and who have exerted themselves so earnestly to contaminate the minds of others to the disturbance of the public peace and violation of all decency of conduct."[57]

Macquarie's despatch of April, 1817,[58] which had prepared Lord Bathurst for this refusal to pay Moore's salary, had been answered on the 12th May, 1818, before the despatch, from which the quotations above have been made, had reached England. Moore's conduct in affixing signatures to the petition without the knowledge of the persons whose signatures they were was severely reprobated, and Lord Bathurst would have acquiesced in Macquarie's attitude towards him "had it not been for the information conveyed in the letters … enclosed in your Despatch, which while they afford the strongest proof of Mr. Moore's misconduct, develop a proceeding on your part which calls equally for my most serious animadversion.

"It appears that you have had no hesitation in considering the signature of a Petition to the House of Commons as an Act of Sedition, and as deserving such punishment as it was in your power to apply; and that you have, in two cases stated, made it the ground for withholding indulgences to individuals which it was previously your intention to bestow. It is my duty to apprise you that in thus attempting to interfere with the right which all His Majesty's subjects possess of addressing their petitions upon every subject to the House of Commons, by making the exercise of that right prejudicial to their interests, you have been guilty of a most serious offence.

"In signifying to you, therefore, His Royal Highness the Prince Regent's entire disapprobation of your conduct in having so acted with respect to some of the petitioners to whom your despatches refer, I have only to caution you most strongly against any proceeding in future which can have a tendency to check the Right of Petitioning either House of Parliament, as such conduct on your part cannot fail to call forth from His Royal Highness the strongest marks of displeasure."[59]

Angry though he felt on the receipt of this letter, Macquarie gave orders for the payment of Moore's salary, and in 1820 he offered him a grant of 1,000 acres.[60] He acted too precipitately in reinstating him, for Bathurst, after reading Macquarie's despatch of November, 1817, decided that Moore should be dismissed. What chiefly influenced him was Moore's untruthfulness in trying to save his brother's grant by telling Macquarie that he had signed the brother's name to the petition without his knowledge—a statement utterly without foundation. As affairs had been settled before this despatch[61] reached Sydney, Moore retained his position. Macquarie was completely puzzled by the censures he had drawn upon himself. "If, my Lord, I had prevented, or even thrown any obstruction in the way of any of His Majesty's subjects under my Government addressing the House of Commons on any subject whatever, I am aware I should have merited the royal censure and displeasure which your Lordship has conveyed to me; but when I feel that my conduct has not only on this, but on every other occasion, exhibited the reverse of such arbitrary and unconstitutional exercise of power, I am at a loss for language sufficiently strong to give adequate expression to the regret I feel in the consideration that either my former communication should not have been sufficiently explicit, or that it should have induced His Royal Highness and your Lordship to conceive that I meant to prevent or restrain the general right of British subjects to address Parliament on any real or imagined grievance whatever."[62] This despatch was certainly written with perfectly serious intentions, and Macquarie was honestly unaware that in allowing Vale to take the petition home with him he was not doing all that could be required of him.

He understood just as little the position of Lord Bathurst in regard to Vale. The Secretary of State wrote: "Upon a point of this nature I of course deferred to the opinion of those who are the law servants of Crown, but finding their opinion to be that the trial of Mr. Vale by Court-Martial upon the charges preferred against him was altogether contrary to law, it was impossible for me not to pronounce your conduct … illegal. I am sure you cannot but admit that the presumable guilt of any individual affords no justification for adopting towards him any course of proceeding other than what the law prescribes; and I feel confident that you will allow also that violations of the laws, whatever be their object, can never add strength to a Government or increase its influence."[63] All Macquarie could reply was that "it having been the unceasing study of a long life, spent in the service of my country in every quarter of the globe, to conform myself in every particular to its establishments, founded as they are in wisdom and matured by the experience of ages, I am unable to express the mortification I suffer at this time, from finding myself liable to be shaken in the good opinion of my Sovereign, by the imputation of a conduct which I reprobate on every ground of right and of political expediency".[64]

Macquarie's resignation was not immediately accepted, nor was the letter in which he tendered the resignation answered until another year had passed. The Secretary of State apparently expected that it would be withdrawn, and thought it the result of merely temporary irritation. That this was not the case appeared later, and the resignation was finally accepted and Macquarie's successor appointed in 1820.[65]

It is thus clear that while Macquarie brought about Bent's dismissal. Bent succeeded in revenging himself to a considerable extent. Even after Vale had left the Colony, Bent continued to harass the Governor in many small ways. Finally, at the beginning of December, 1816, he attempted to reopen the Supreme Court and ordered Riley and Broughton to attend at the court-house for that purpose. Riley was the only one of the two in Sydney, and he did not attend. To prevent Bent from taking any steps to enforce his attendance, Macquarie inserted a notice in the Gazette on the 10th of December releasing the two magistrates from further duty in the Supreme Court.[66]

Bent at once wrote to Macquarie that on reference to the letters-patent for the establishment of the court he found that the Governor had "no power of discharging from that duty, … the only mode by which they can be relieved … being the appointment of new members in their stead. A discharge of the members without the appointment of others would be a virtual dissolution of the court; and were any Governor entrusted with such authority it would be in his pleasure to postpone or prevent the trial of any actions which might be disagreeable to him and materially to injure persons obnoxious to him, by the expenses consequent thereupon. … Should your Excellency persist in the right of discharge, and refuse to nominate other members, I shall leave to your Excellency the responsibility attending such an extraordinary attempt at an avoidance of His Majesty's Charter; satisfied with the full confirmation of my opinion, that while such extravagant notions of authority and such measures of arbitrary tendency characterise the administration of this Colony, it would be impossible to give effect to the present establishment of the Courts of Justice, except by an utter dereliction of every sound principle of English Law, an adoption of maxims suited only to a military despotism, and a servile submission to the views and wishes of your Excellency."[67]

Bent's successor had not yet arrived, but Judge-Advocate Wylde was already in Sydney. Macquarie, at the end of all patience, appealed to Wylde and asked him to draw up an order suspending Bent and enforcing his recall. A copy of the Order was at once sent to Bent, who returned the packet unopened. It was then published in the Sydney Gazette of the 14th December, 1816.

The Order quoted the despatch from Lord Bathurst in which Bent's recall had been announced, and went on to describe his recent actions in issuing "certain process, directing the Provost-Marshal … to summon Alexander Riley, Esq., to attend at his chambers, as a member of the said Supreme Court; and further, that the said Jeffery Hart Bent, Esq., since and after a public notification that the members of the said Supreme Court were discharged from all further duty in that respect, has also presumed … to issue other process, directing the Coroner of this territory to attach and have the body of William Gore, Esq., the Provost-Marshal … before the Supreme Court.

"His Excellency the Governor, in consideration of the circumstances of the authorities with which he is invested, and of the positive directions of His Majesty's Government, … can no longer feel himself justified in forbearing to notify and put in force the commands of His Royal Highness and His Majesty's Ministers with regard to the removal of the said Jeffery Hart Bent, Esq., as Judge of the Supreme Court in and Magistrate of this territory. And His Excellency the Governor does hereby accordingly declare order and make known that the said Jeffery Hart Bent, Esq., is positively and absolutely removed from the said appointment, and has no authority or jurisdiction whatever in this territory or its dependencies with regard to or by virtue of the same."[68]

Bent protested against his removal and also against the publication of the Order without communication with him, which under the circumstances was sheer insolence. He claimed that his authority could not be legally "determined till the arrival of a new judge," or by his exercise "of that liberty which has been given me of returning whenever it may suit my convenience".[69]

There was, however, not the least doubt that the Governor was acting within his rights, and his justification was quite complete. Bent had of course to acquiesce in his dismissal, and he left the Colony a few months later. His last argument with the Government took place over some detainers lodged against him, and in regard to these Bent was victorious.[70] In the course of the correspondence he took the opportunity in a letter to the Governor's Secretary of thus contrasting his own and Macquarie's tempers.

"I regret," he wrote, "that I have now before me but too many convincing proofs under Governor Macquarie's hand, that in respect to acrimony of language, I have been more sinned against than sinning; I heartily agree that difference of opinion need not excite a spirit of hostility, and if his Excellency Governor Macquarie had felt the force of his own observation, he would never have authorised the latter paragraph of your communication, a paragraph which might be returned with double force upon himself, and which it would have been more becoming to have omitted. Our local rank places but a shade of distinction between us, and I have yet to learn what decorum of language ought to be adopted by me in correspondence with any Governor of New South Wales which I am not (even as a private individual) entitled to have observed towards me in return, and I will further add that whatever may be my irritability of temper it has never led me into acts either of illegality or oppression."[71]

  1. See D. 1., 20th February, 1816, R.O., MS. for history of the road.
  2. See before, Chapter III.
  3. D., 22nd November, 1811. H.R., VII.
  4. See D. 1, 20th February, 1816, and Enclosure, Bent to M., 25th August, 1851. R.O., MS. Bent said that in the "General Almanac, published by authority and submitted to your Excellency's inspection "there was only one Trustee named.
  5. See Wentworth's Evidence, Appendix, Bigge's Reports, R.O., MS. for duties of a Road Trustee.
  6. D. 1, 20th February, 1816. R.O., MS.
  7. Bent to M., 18th August, 1815. Enclosure to D. 1, 1816. R.O., MS.
  8. Bent to M., 18th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
  9. M. to Bent, 18th August, 1816. Enclosure. D. 1. 1816. R.O., MS.
  10. Bent to M., 25th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
  11. See D., 23rd November, 1812, from Lord Bathurst. R.O., MS.
  12. Bent to M., 28th August, 1815. Enclosure, D. 1, 1816. R.O., MS.
  13. Macquarie, D. 1, 20th February, 1816. R.O., MS.
  14. Enclosure, D. 1, 1816. R.O., MS.
  15. Wentworth to M., 9th September, 1815. Enclosure, D. 1, 1816. R.O., MS.
  16. Bent to Wentworth, 8th September, 1815. Enclosure, D. 1, 1816. R.O., MS.
  17. Ibid.
  18. D. 1, 1816. R.O., MS.
  19. Wentworth to Governor above.
  20. G.G.O., 9th September, 1815.
  21. Field to Bigge, Appendix to Bigge's Reports. R.O., MS.
  22. Bent to M., 20th October, 1816. Enclosure, D. 1, 1816. R.O., MS.
  23. Marsden to Wilberforce, 20th May, 1818. Private Papers of William Wilberforce. Macquarie once told Marsden that under the old commission he would have brought him before a Court-Martial and tried him for sedition. See also Evidence of Marsden, Appendix, Bigge's Report. R.O., MS.
  24. D. 4, 8th March, 1816. R.O., MS.
  25. Moore's Evidence, Appendix, Bigge's Reports. R.O., MS. There was no Vice-Admiralty Judge in the period between Bent's death and Wylde's arrival.
  26. Before this time forty-two ships under American colours had entered and been cleared out. Enclosure to D. 4, 8th March, 1816. R.O., MS.
  27. D. 60, 11th December, 1815. R.O., MS.
  28. Bent did not give them up until October, 1816. See correspondence on subject. R.O., MS.
  29. The Colonial Office took no steps in the matter, evidently considering the entry of one American ship of very little importance.
  30. Vale to Bathurst, 22nd March, 1816. R.O., MS.
  31. Enclosure to D. 9, 23rd March, 1816. R.O., MS. Vale was declared not guilty of insolence and not guilty of disgraceful and ungentlemanly conduct.
  32. D. 9, 23rd March, 1816. R.O., MS.
  33. He had received rations for himself as a member of the civil staff.
  34. D. 4, 8th March, 1816. R.O., MS.
  35. D. 4, 8th March. R.O., MS.
  36. Evidence before C. on G., 1819, and letter to Lord Bathurst, 11th March, 1816. R.O., MS. His evidence on this subject is very confused.
  37. Letter, 11th March, 1816. R.O., MS.
  38. Vale to Bathurst, 22nd March, 1816. R.O., MS. See Chapter III., Bent to C.O., 1814.
  39. Evidence, C. on G., 1819. Bent did not know if the men had asked any other magistrate to take their affidavits. Probably he asked them to make them.
  40. Riley, C. on G., 1819.
  41. Wentworth's Evidence, Appendix, Bigge's Reports. R.O., MS.
  42. Riley, C. on G., 1819.
  43. See his defence in letter to Lord Bathurst published in 1822. Bent persuaded Blake to go to England, and in 1819 prepared a petition which was presented to Parliament on Blake's behalf. See Chapter IX. It is rather strange that the measures taken by Macquarie which reflected such great discredit on him were at the same time quite ineffective. On 6th July, 1816, he published an Order threatening the "most summary and exemplary" punishment for those who injured the wall, etc., of the Government Domain.
  44. In the course of this Order he forbade any officer to go about the town out of uniform.
  45. Macquarie sent one other man out of the Colony, an Irish Roman Catholic priest, whose coming had not been sanctioned by the head of his Church in England. Such a power was exercised also by the Governor at the Cape of Good Hope. It was assumed that a Governor could prevent any one who did not bring special authority from the Secretary of State from settling in a Colony. See Campbell's Evidence, Appendix, Bigge's Reports. R.O., MS. Macquarie frequently interfered to prevent marriages. In one case he refused to allow a marriage on the ground that the woman was too old for the man. The couple therefore lived together unmarried. See Vale to C.O., 16th April, 1818. R.O., MS.
  46. Bent to C.O. with enclosures, 12th June, 1816. R.O., MS.
  47. This man wrote a letter to Macquarie in 1821 giving this account of the petition. See letter, 29th January, 1821. Appendix, Bigge's Reports. R.O., MS. There is no copy of the petition to be found, and its contents can only be discovered by indirect means. Jones, in 1819, said the bulk of the contents were true, some things perhaps incorrectly stated and some a little exaggerated. See his Evidence, C. on G. The sort of document may be easily imagined—a basis of fact distorted by the anxiety of two aggrieved men to impute bad motives and see each deed in an evil light.
  48. Vale to C.O., 16th April, 1818. R.O., MS.
  49. D. 14, 3rd April, 1817. R.O., MS. The sworn statement of Samuel Terry (an enclosure to this despatch) is rather curious. Moore was his solicitor and Terry saw the petition in his office but refused to sign it. "Mr. Moore," he said, "this is a very improper paper … and I am satisfied if his Excellency the Governor was to know this paper lay at your house he would send his dragoon both for you and it."
  50. D. 86, 6th February, 1817. R.O., MS.
  51. D. of 24th January, asked Macquarie to make full inquiries into some complaints made in Bayly's letter, especially into the treatment of female convicts. See Chapter X.
  52. D., 6th February, 1817, dealt with the case of Vale.
  53. D., 22nd April, 1817, dealt with the case of Moore.
  54. D., 15th July, 1817, dealt with the case of T. Moore, whose land had been taken from him because he had signed the petition. All are in C.O., MS.
  55. D., 1st December, 1817. R.O., MS.
  56. i.e., Vale.
  57. D. 31, 24th November, 1817. R.O., MS.
  58. See above, D. 14, 3rd April, 1817. R.O., MS.
  59. D., 12th May, 1818. C.O., MS. In that year two assistant chaplains were sent to New South Wales, but the words "according to the Rules and Discipline of War" were omitted from their commissions. See C.O., 1818.
  60. Evidence, Appendix, Bigge's Reports. R.O., MS.
  61. D. 14, 26th July, 1818. R.O., MS.
  62. D. 1, 1st March, 1819. R.O., MS.
  63. D. 14, 26th July, 1818. R.O., MS.
  64. D. 1, 1st March, 1819. R.O., MS.
  65. D., 15th July, 1820. R.O., MS.
  66. See S.G., 10th December, 1816.
  67. Bent to Macquarie, 10th December, 1816. Enclosure to D. 12, 3rd April, 1817. R.O., MS.
  68. G.G.O., 14th December, 1816. There is a great deal more of the Order, which is written in very involved and redundant language, as all Wylde's Orders were. It was not only inserted in the Gazette but also placarded about the town. See Bent's letter below.
  69. See his Evidence, C. on G., 1819. This liberty had been given in the letter recalling him.
  70. Bent to Macquarie, 25th December, 1816. Enclosure to D. 12, 1817. R.O., MS.
  71. Bent to Campbell, enclosure, D. 12, 3rd April, 1817. R.0., MS.