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PRODUCTION NOTES:

This report has been prepared using OCR. There are no marginal notes in this book. The headings of Bigge's Chapters I and III have been omitted in the hard copy; the Contents place them on pages 1 and 78; their postions have been estimated here.

Bigge's idiosyncratic spellings, notably "Macquarrie" and "Paramatta", are retained throughout. The only changes to the text have been some modernisation of the punctuation and corrections of a few typos (e.g. Sorel).

To give the Report context, Bigge's Instructions from Earl Bathurst (via a despatch to Governor Macquarie) have been included as an Addendum. In this work, Enclosure 4. is most pertinent. The documents are taken from "Historical Records of Australia", Series 1, Volume X, published by the Library Committee Of The Commonwealth Parliament, 1917.

Bigge often refers to an Appendix; this is a large series of documents which has never been printed in full. Parts only of this Appendix may be found in "Historical Records of Australia", Series 3, Volume III, pp. 215-922 (concerning Van Diemen's Land) and in Series 4, Volume I, pp. 755-882.

At the end of the Addendum may be found linked notes.

Please note that the companion volumes in this series, "Report into the State of the Colony of New South Wales" and "Report on the State of Agriculture and Trade", [by J. T. Bigge; with Addenda], are both available now at

Project Gutenberg Australia.

REPORT

OF THE

COMMISSIONER OF INQUIRY,

ON THE

JUDICIAL ESTABLISHMENTS

OF

New South Wales, and Van Diemen's Land.

Ordered, by The House of Commons, to be Printed,

21 February 1823.

CONTENTS

REPORT

OF THE

Commissioner of Inquiry on the Judicial Establishments

of New South Wales, and Van Diemen's Land.

——————

   MY LORD,

IN submitting to your Lordship the result of my Inquiries into the state of the Criminal and Civil Judicature of New South Wales and Van Diemen's Land, I will first briefly advert to the authority, by virtue of which those Establishments have been created.

[On the state of the Criminal and Civil Judicature of New South Wales, and Van Diemen's Land]

The statute of the 27 Geo. III. c. 2. which was passed for the purpose of enabling his Majesty to establish a court of Criminal Judicature on the eastern coast of New South Wales and parts adjacent, after reciting that his Majesty had by two several orders in council, dated 6th December 1786, judged fit to declare and appoint the place to which certain offenders therein named should be transported, to be the eastern coast of New South Wales, or some one or other of the islands adjacent, enacted that it should be lawful for his Majesty, by his commission under the great seal, to authorize the person to be appointed governor, or lieutenant-governor, in the absence of the governor of such place as aforesaid, to convene from time to time, as occasion might require, a court of judicature for the trial and punishment of all such outrages and misbehaviours as if committed within this realm would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanor. The court to consist of the judge advocate, to be appointed in and for such place, together with six officers of his Majesty's forces by sea or land.

By the letters patent, dated the 2d April 1787, it was provided that a court of criminal jurisdiction should be established within the colony or settlement aforesaid, meaning thereby the places to which his Majesty had already appointed by his order in council that felons should be transported. The constitution of the court was conformable to the directions of the statute, and it was declared to have the power that is given under that statute to proceed in a more summary way than was used within the realm according to its known and established laws.

In consequence of the establishment of Norfolk Island as a receptacle for convicts, and the difficulty of finding a sufficient number of officers there to constitute a criminal court according to the directions of the statute, a special authority was given to his Majesty by the statute of 35 Geo. III. c. 18, to empower the lieutenant-governor of Norfolk Island to hold criminal courts in that dependency, consisting of the judge advocate of that place, and only four military or naval officers.

The jurisdiction and constitution of the criminal court in New South Wales has received no alteration whatever since the date of the letters patent of the 2d April 1787, for those of the 4th of February of the year 1814, only recite that part of the former patent that related to the construction and appointment of the criminal court, but made no change either in its construction mode of procedure, or in the extent of its jurisdiction. This extent remains limited at present by the orders in council of the 6th December 1786, and comprises the whole eastern coast of New South Wales and the islands adjacent; for your Lordship will observe, that his Majesty was authorized by the statute of the 27 Geo. III. c. 2, to establish courts of criminal jurisdiction in any part of the eastern coast of New South Wales, or some one or other of the islands adjacent, to which he had been pleased to direct, by an order in council, that convicts should be transported.

Doubts appear to have arisen as to the application of the term "islands adjacent", and whether they comprehended any other than those that were adjacent to the eastern coast. The insular position of Van Diemen's Land, the only island to which convicts have been sent since the establishment of Norfolk Island, had not been ascertained till several years after the statute was passed, and it was found to be adjacent to the southern and not to the eastern coast of New South Wales.

After consulting Mr. Judge Advocate Wylde and Mr. Justice Field upon this point, and having found that although a criminal court had never been held in Van Diemen's Land, yet that capital offences committed there had at all times since its establishment been tried by the criminal court at Sydney, I did not consider that the terms to which I have alluded were sufficient to prevent the continued exercise of criminal jurisdiction over Van Diemen's Land, and Mr. Judge Advocate Wylde on my suggestion proceeded thither accordingly, and held criminal courts in the year 1821.

Such were the powers under which the criminal courts have exercised jurisdiction in New South Wales and its dependencies. No power however was given by the 27 Geo. III c. 2, or any subsequent statute, to authorize his Majesty to establish any form of civil judicature in New South Wales, although a declaration was made both in that Act of Parliament, and in the first commission that was granted under the privy seal on the 2d April 1787, of the necessity of establishing in it a colony and civil government, and although the form of civil judicature that was traced and established in that commission was as great a departure from the laws and usages of the realm of England as that of the criminal judicature.

The authority therefore under which the civil judicature of New South Wales and its dependencies have hitherto, and still continue, to exercise their functions, is derived solely from the commissions that have been issued under his Majesty's letters patent.

The alteration that was effected by the last commission and letters patent, dated the 4th February 1814, considered of a separation of the civil and criminal judicatures, that had previously been united under the presidency of one person holding the office of judge advocate, and of the appointment of three new civil courts, two of which, viz. the Governor's Court in New South Wales, and the Lieutenant-Governor's Court in Van Diemen's Land, were instituted for the trial of all causes where the sum in dispute should not exceed 50l. sterling.

The first of these is composed of the judge advocate of the territory of New South Wales, and two inhabitants appointed by the governor.

The second is composed of the deputy judge advocate of Van Diemen's Land and two inhabitants, who are appointed by the lieutenant-governor of that dependency.

Another alteration consisted of the establishment of the Supreme Court, composed of one judge, appointed by commission under his Majesty's royal sign manual, and two of the magistrates of the colony, appointed by precept under the hand of the governor, or in his absence of the lieutenant-governor.

The Supreme Court takes cognizance of all causes wherein the cause of action exceeds the sum of 50l. sterling, exercises the powers of a court of equity, and also that of granting probates of wills and letters of administration. The powers and constitution of the Criminal Court of New South Wales underwent no alteration at the time of issuing the new letters patent in the year 1814, and they remain altogether in the same state in which they were first constituted by the letters patent of the year 1787.

The Governor's Court, as established under the new patent of 1814, was not opened until January 1816, in consequence of the long illness of Mr. Judge Advocate Bent. At his death, which vas an event that appears to have excited universal regret in the colony, Mr. F. Garling, one of the solicitors that had been authorized to proceed thither to practise in the courts, was appointed by Governor Macquarrie to the office of judge advocate. The Governor's Court was then opened for the first time in the month of January 1816, and Mr. Garling, adopted the rules of practice and the scale of fees that had been drawn up and fixed by Mr. Judge Advocate Bent, and that are to be found in the Appendix.

The mode of procedure introduced by these regulations was more complex than befitted the limited jurisdiction or the nature of the functions of the Governor's Court and soon after his arrival in the month of October 1816, Mr. Judge Advocate Wylde made certain alterations, both in the proceedings as well as in the fees, that have had the effect of simplifying the practice and of adapting it more nearly to the purpose for which the court was originally intended, the easy recovery of small debts.

Amongst these regulations is a government and general order, issued by Governor Macquarrie at the instance of the judge advocate and the judge of the Supreme Court, and dated the 17th of June 1817, whereby the days for assembling the several courts in New South Wales were declared to be fixed; and those of the Governor's Court were to take place on the first days of the month of January, April, July and October in each year.

These periods or sittings have been denominated "terms" in the regulations of the Governor's Court, and are declared to extend to twenty-four days after each day of assembling. The days of the sitting of the court in each week being Mondays, Wednesdays and Fridays.

For the purpose of giving the utmost summary effect, as was declared, to the jurisdiction of this court, subsequent orders have been issued, by which it was to be held, according to its own directions and notice, at the towns of Paramatta, Windsor and Liverpool; and courts have occasionally been held at two of these places, whenever a sufficient number of causes was entered to justify that proceeding. With a view to give further facility to the recovery of small debts, the Governor's Court has been assembled on one day in every month for the trial of causes under 5l.

Pursuant to the several rules that have been adopted by Mr. Judge Advocate Wylde, and sanctioned by the members of his court, it is competent to any person, delivering to the clerk and registrar of the judge advocate's office, a note in writing, containing the nature of his demand, accompanied with an affidavit of debt if it exceeds 10l. to cause a warrant to be issued to the defendant, requiring his appearance on the day upon which the writ is returnable. Upon presenting these demands to the clerk and registrar of the Governor's Court, such instructions are given as enable him to give a short and technical description to the demand, and a note and entry of it is made by him in a book kept in his office. If the defendant appears and denies the debt on entry of the plaint for trial, it comes on before the court to be heard, or in failure of the defendant's appearance it is heard ex parte.

It was ordered in the month of March 1817, that in all causes where the sum in dispute should exceed 10l. both parties should be assisted by solicitors, who were entitled to receive for that assistance the sum of one guinea, which was to be increased in case they had been retained for the suit, but not to exceed the sum of two guineas for assistance in court. This order was subsequently altered by one bearing date the 6th November 1818, wherein it was ordered that any person should have liberty personally to plead or defend a suit, but should be only assisted in the examinations of their witnesses by the solicitors of the court. This order is now known to be the subsisting one, otherwise the ambiguity, with which a subsequent order, dated on the 11th March 1819, and again repeated on the 15th November of the same year was expressed, leaves it doubtful to what part of the cause the assistance of the solicitors was intended to be limited.

By the return of causes that have been tried in this court from the month of October 1816 to the end of October 1819, it appears that six hundred and ninety-seven causes exceeding 5l. in amount have been tried there, in which sums amounting to 13,827l. 15s. 3d. have been recovered; and that the greatest number of causes tried in any one year amounted to three hundred and eighty-four. The number of causes not exceeding 5l. in value, tried within the same period, amounted to five hundred and twenty-four; and the greatest number in any one year amounted to two hundred and twenty.

It further appears, that upon complaints of the higher amount that have been issued from the month of October 1816 to the end of the Easter sittings of the year 1820, one thousand one hundred and thirty-seven summonses have been issued, and seven hundred and twenty-five causes have been tried; and in those of the smaller amount, five hundred and ninety-one summonses have been issued, and three hundred and eighty-two causes have been tried.

The business in the Governor's Court has been in some degree diminished by the fleet of a proclamation that was issued by Governor Macquarrie at the suggestion of Mr. Justice Field on the 21st November 1815, whereby the same power that is given to magistrates in England by the statute of the 20 Car. II. c. 19, to decide questions arising upon wages and contracts for labour in husbandry, and under the sum of 10l. is extended to the magistrates of New South Wales.

The persons who have been selected and appointed by Governor Macquarrie to act as members of the Governor's Court have consisted of the principal merchants of the town of Sydney; and when the court has been held at Paramatta and Windsor, the magistrates at those places or of the neighbourhood have performed the duty, with the exception of the instance to which I have already had occasion to allude, of the appointment of Mr. Richard Fitzgerald.

In cases where either of the assistant members have been found to have an interest in a cause, they have declined taking a part in the proceedings; and the course pursued by the judge advocate, in ordinary cases, has been, to state to them the application of the law to the points that occur in each ease, but to refrain from giving his opinion upon the facts until those of the two members had been declared. Differences of opinion between the judge advocate and the assistant members have not been frequent, and the questions that are generally presented to the decision of the court are of a very simple kind.

It is the opinion of Mr. Judge Advocate Wylde, as well as that of Mr. Justice Field, that there exists a very strong inclination amongst the emancipated convicts in New South Wales, to prefer the employment of solicitors who belong to that class; and Mr. Wylde has been given to understand by information proceeding indirectly from some of them, that the business in the Governor's Court would have been greatly increased if they had once more been permitted to conduct it.

The causes to which he as well as Mr. Justice Field have attributed this disposition have unquestionably had their effect in producing it; but I think that the want of activity in the solicitors that are now practising, and their general incompetence to discharge the duties of advocates, together with the expense that their employment occasions, have materially contributed to diminish the quantity of business in the Governor's Court.

The fees of this court that are payable to the judge advocate and registrar have been considerably reduced from the scale at which they were fixed by the regulations of Mr. Judge Advocate Bent in 1815, and that were acted upon by Mr. Garling during the period in which he held that office, but they still bear a very high proportion to the amount of the sums recovered.

By the first schedule of fees that was proposed by Mr. Judge Advocate Wylde, and approved by the members of his court, the charge made in his office for the summons and examination only of a complaint for the recovery of a sum not exceeding 1l., was 7s. 6d.; and at Windsor and Paramatta it was 8s. 9d. The first charge was reduced, upon the suggestion of Governor Macquarrie to the judge advocate in the year 1819, to the sum of 5s.; it continues at that rate at present; and for causes above 1l. and not exceeding 3l. it amounts to 10s.; and for causes above 3l. and not exceeding 5l. it amounts to 12s. 6d.

The average amount of fees taken in the judge advocate's office in causes above 5l. is stated by the clerk and registrar to amount to 2l. 5s. 6d.; and in the Appendix is an account furnished by his order, to the magistrate's clerk at Windsor, for fees due upon a cause tried there, not exceeding 15l. the amount of which is 4l. 4s. 6d. including a charge for an extra fee in coming to Windsor, that is not authorized by any known rule of the court, and amounting to 1l. 1s.

The fees taken by Mr. Judge Advocate Wylde upon the proceedings of his court, together with those that arise in his office upon detainers and giving certificates of no detainers, those that arise upon the registry of deeds and upon notarial business, are received by his clerk, Mr. J. J. Moore, to whom he allows a sum sufficient to augment the annual salary of 80l. that he derives from the parliamentary estimate, to that of 300l. Per annum. The respective amounts of these fees are stated in the returns made by Mr. J. J. Moore; and the aggregate amount that has been received from the month of October 1816 to the 24th June 1820, is stated by him to have been 3,896l. 17s. 10d.

The circumstances that prevented the opening of the supreme court of civil jurisdiction having been detailed in the evidence that has been submitted to the Parliamentary Committee on Gaols, I do not think it necessary to repeat them. The injury that was sustained by individuals from the want of any tribunal in which causes o a larger amount than 50l. could be tried, was very great; and it did not cease to operate from the suspension of the functions of the Governor's Court at the end of the year 1814, till the arrival of Mr. Justice Field in February 1817.

The causes that have been tried in the Supreme Court from that period, until the end of the month of December 1820, have not been numerous; for including those tried at Van Diemen's Land on the first circuit made to that dependency by Mr. Justice Field in 1819, and amounting to twelve, they do not exceed one hundred and sixty-five. Two-thirds of these causes appear to have arisen upon simple contact debts, and upon notes or bills, and very few have occurred in which any difficult questions have arisen.

The causes entered in the equity jurisdiction of the Supreme Court, in the same period, amounted to forty-three, out of which thirteen have been heard and decided, and thirty were still pending in the year 1821. The number of judgments entered up on warrants of attorney and confessions have amounted to one hundred and sixty. The mode of proceeding in the Supreme Court in New South Wales, is similar in every respect to the forms of the courts of common law and equity in England. The pleadings in each cause are engrossed on parchment, and are delivered to the judge before the trial. The court is composed of the judge, and two magistrates appointed by the governor, one of whom and the judge are sufficient to constitute the court.

The changes in the members of the Supreme Court have not been numerous: no change would have been practicable without occasioning considerable inconvenience to magistrates in the country, until the appointment of two new magistrates, Captain Piper and Doctor Harris, in the month of March 1819.

The clerk of Mr. Justice Field, Mr. J. Gurner, acts as registrar of the court, and as judge's marshal. In the year 1819 five solicitors practised before the Supreme Court; two of them, viz. Mr. Garling and Mr. Moore, were appointed by your Lordship to proceed to New South Wales in the year 1814, and the former received a salary of 300l. per annum from the period in which he ceased to act as judge advocate; and Mr. Moore received in the month of November 1819, the arrears of his salary, that had been suspended from the 23d February 1816.

Mr. Wylde, who received an appointment from His Majesty to the office of clerk of the peace and solicitor to the crown, practises as a solicitor in the Supreme Court, but has abstained from practising in the Governor's Court. Mr. Amos, who was regularly bred and admitted an attorney of the Court of King's Bench in England, arrived in the colony in the year 1817, and was admitted and continued to practise in the courts of New South Wales until the month of August 1819, when he was ordered to be struck off the roll of attornies of the Supreme Court.

Mr. Norton, who received a professional education in England, arrived in the year 1818, with his family, and has been admitted to practise. Upon the suspension of Mr. Amos, in the month of August 1819, an order of court was made, by which George Crossley, who had formerly been a convict, was permitted to proceed as the attorney of all such clients of Mr. Amos, as had suits depending before the Supreme Court; and all the papers and securities of such clients as signified their desire to continue their suits under the management and direction of G. Crossley, were to be delivered to him. At a later period, and on the republication of the rules of the Supreme Court on the 31st May 1820, it was ordered, that parties should be at liberty to prosecute or defend suits in person, without the intervention of an attorney or solicitor; but that the pleadings in every suit should be signed by one of the attornies or solicitors of the court, who should be entitled to make a charge for their signatures as well as for instructions. Under these regulations, which were made at the instance of Mr. Smith Hall, Mr. Eagar has been allowed to appear in the Supreme Court on his own behalf, and to conduct his own suits; and Crossley has continued to conduct most of those that had been originally intrusted to Mr. Amos.

The re-admission of this individual to practise in the Supreme Court, so shortly after he had been excluded from it by the operation of your Lordship's order, was not grounded upon any absolute necessity; nor did Mr. Justice Field, or the members of his court, accede to his readmission upon any opinion that they entertained of his reformation and improvement. "It was the opinion of Mr. Justice Field, that Crossley transacted more business and with more activity than any one of the regular solicitors"; and it was with reference to that activity: as well as to the convenience of the suitors, that his qualified admission was sanctioned. Under this sanction Crossley has been employed by several respectable individuals in law-suits of considerable importance.

Although the proceedings of the Supreme Court are conducted according to the forms of the English courts, yet Mr. Justice Field has endeavoured as much as possible to prevent them from being used as pretexts for delay or vexatious litigation; and has found himself equally justified in resisting the general application of strict technical rules, on account of the unskilfulness with which they were managed. One attempt only has been made in an action that had been tried before him, to raise a conflicting jurisdiction between the Supreme Court and the Governor's Court, in consequence of what was conceived to be a doubtful expression in the terms of the charter of justice in which the jurisdictions of the Governor's and the Supreme Court were defined. A verdict having been given in the latter for a sum under 50l. in an action that was tried in the month of February 1818, and a motion having been made to set it aside, as not being within the jurisdiction of the court, a long and perspicuous judgment was delivered by Mr. Justice Field, in which he successfully proved, both from analogy and authority, as well as from expediency, that although the jurisdiction of his court had been limited to cases where the cause of action exceeded the sum of 50l. sterling, yet that this expression never could mean to preclude the court from giving a verdict under that sum, in a case where the plaintiff had sought to recover, and had contended for a much larger one. The opinion of Mr. Judge Advocate Wylde upon this point did not unfortunately coincide with that of Mr. Justice Field; but nothing has occurred since the opinion of the latter was promulgated, to shake the public confidence in its correctness; and no fewer than nineteen actions have been tried in the Supreme Court, in which verdicts have been given for sums under 50l. and no attempt has ever been made in the Governor's Court to recover them.

The mode of trying a cause in the Supreme Court differs very little from the course that is pursued in the courts of England. Short notes of the evidence are made by the judge, and he submits the result to the assistant members is the shape of a charge, accompanied by strong intimations of his own opinion, and a full declaration of the grounds upon which it is formed.

There has prevailed in the proceedings of the Supreme Court much less of deliberation than was observed in the Court of Civil Jurisdiction when Mr. Judge Advocate Bent presided in it. Differences of opinion between Mr. Justice Field and the members of his court have not been frequent. Upon questions of law he expects, as he is entitled to do, their unqualified assent, but points of fact, character of witnesses, and questions of account, he submits to their consideration, and sometimes to their decision.

Most of the eases in which Mr. Justice Field has taken time to consider of his judgment, have been subsequently reported and published by himself in the Sydney Gazette, not only with a view to place before the public the grounds of his decisions and those of the members of the court, but to prevent the misrepresentations to which they might have been liable if left to the discretion of the editor of the Sydney Gazette.

The judge has endeavoured to give effect to the local regulations published at different periods by the authority of the governors of the colony, where he found them to be conformable to the spirit or to the provisions of the law of England, and to be beneficial in their operation; or even where he saw that they were essentially necessary for the support of the system by which the colony was governed.

In attempting to enforce one of the regulations of so early a date as the 26th February 1802, respecting the registration of deeds in the office of the judge advocate, and by which it was declared that no assignment of property in New South Wales was legal, unless it was regularly drawn up at the judge advocate's office and there registered, Mr. Justice Field, following a decision of Mr. Judge Advocate Bent, decided, in a case of ejectment tried before him on the 30th June 1817, that a mortgage that had not been registered according to the terms of the proclamation of 1802, and of which mortgage the second mortgagee had received no notice, was void, as against one that was subsequent in date, but that had been registered.

As this decision appeared to Mr. Judge Advocate Wylde to affect a large proportion of securities that had been given for bonâ fide considerations, but under an ignorance of such a regulation, he advised Governor Macquarrie to issue a proclamation, that appeared on the 19th July 1817, and by which it was declared, that no deed or assignment should be taken to be illegal or void for want of conformity alone to the proclamation of the year 1802, but "that such a defect should be considered as a circumstance or incident in the case, to be submitted to and to be determined by the courts according to justice and right, and upon the whole matter put on issue by the parties."

Mr. Justice Field overruled an improper attempt that was made to give to this proclamation a retrospective effect upon a judgment in the case just mentioned, and pronounced in his court only three weeks before; but in an action of ejectment that was brought by the same party upon a subsequent demise, he permitted it to be read, and after admitting evidence of the nature of the transactions affecting both the mortgages, a verdict was given in favor of the antecedent one.

It was in conformity to the same principles that Mr. Justice Field has permitted all convicted felons, whose sentences had been absolutely or conditionally remitted, and persons holding tickets of leave, to bring and maintain actions in the Supreme Court; for although he was not exactly aware of the extent of the disability of all such Persons to sue in a court of justice, yet he always held, that nothing but the production of an office-copy of their conviction of felony, could sustain the plea of convict attaint, or would enable the court to ascertain, whether the crime of which the party bad been convicted, was followed by the disabilities that are created by conviction and attainder, or whether they had been removed either by service of the term of transportation, or by the governor's pardon.

It is upon the same ground, that convicts of every description have been admitted to give evidence in the courts; and that the objection to their competence, which in England might be speedily determined by having recourse to the record of their conviction, has been overuled by Mr. Justice Field in the Supreme Court, on account of the difficulty and delay attending the procurement of such proof, or upon the principle of law that prohibits a witness from answering questions that discredit himself, and from the necessity that exists in a colony, constituted like that of New South Wales, of dispensing with those strict rules by which the testimony of so large a proportion of witnesses would be disqualified and excluded.

Having already stated to your Lordship in the first part of my Report, the circumstances upon which the Supreme Court and the Governor's Court determined to make the only exceptions that have yet occurred in the practice, of admitting emancipated convicts to maintain actions in the courts of New South Wales, I will not now repeat them but I think it necessary to advert to the reasons stated by Mr. Justice Field in favour of a continuance of that power, which your Lordship will have observed to be virtually exercised by the judicial authorities over the fortunes and feelings of a large portion of the inhabitants of New South Wales, by giving or withholding permission to produce the record of their conviction.

Mr. Justice Field has stated indeed in his observations upon the defects of the present charter of justice, and upon the admissibility of convicts to discharge the office of jurors, that this, amongst other disabilities of conviction, is taken away in New South Wales by the operation of the rule of evidence that he has applied. "The sting of the law", he says, "in this remote colony, where it would sting itself to death, is well and wisely taken away by the law itself; the letter killeth, but the spirit giveth life." "There is no necessity, therefore," he adds, "for the legislative provision that Governor Macquarrie requests your Lordship to sanction in his dispatch of the 28th June 1813, for the purpose of restoring the remitted convict to a complete enjoyment of the rights of free persons." This argument proceeds upon an assumption, that it is not safe to trust the remitted convicts with the indefeasible right that is possessed by unconvicted persons, of maintaining actions in the colonial courts; but that it is safe to intrust to the judicial authorities the great power of determining how long and in what cases they may exercise that right.

Your Lordship will have observed that this power, from the manner in which it is exercised, may equally be applied to the convict whose term of service is expired, and who, to all intents and purposes, is a freeman, as to the convict whose term of service has been remitted by the governor of the colony, and who stands in the situation of a person holding a sign manual pardon. It is only necessary for a defendant, when sued by those persons, to obtain leave of the courts in New South Wales, for time to produce an of of the plaintiff's conviction, by swearing that he verily believes the crime of which he was convicted to have been one that is not purged by the service of the term of transportation, or that the term is not expired; and if the court should be of opinion, that the action is brought from invidious motives, the plaintiff is either entirely debarred of his right of recovery, or indefinitely delayed in it. The disabilities of conviction for felony may thus be protracted by the want of technical and strict proof of their removal; while the effect of pardon, and much of the excitement to obtain or to deserve it, is lost by thus depreciating its value when obtained. The forfeiture of property, and the incapacity to retain it, form its of the punishment that the law has ordained for those who have violated it. For certain violations of the law, this incapacity is only temporary for others, it is perpetual. In some cases it is removed by the expiration of the term of punishment, which, as far as transportation is concerned, implies the endurance of a specific term of service; and in others, it is made dependent upon the good conduct of the party under punishment, when attested by the governor's pardon; but it is not effectually removed till that pardon be confirmed by the King. In both cases, as it has appeared to me, the legislature has intended that there should be some term to the legal disabilities of punishment, but more especially in the colony of New South Wales, where, when the object of punishment is satisfied and the crime expiated, it has contemplated the formation of new habits, new feelings, and new hopes. It has been generally observed, that this regeneration of the mind is powerfully excited in the colony of New South Wales, and sometimes in men of the worst characters, by the possession of property, and the means that it affords of improving their condition. The change that it produces is not infrequently observed to bring with it a contentious and litigious spirit, for the correction of which it might be expedient to retain the discretionary power that is exercised by the courts of New South Wales, if were possible to apply it in the case of an individual, or so to punish him without reflecting some degree of disgrace upon his class. The remitted convicts of New South Wales have seen that motives declared to be invidious in one of their class, and his impatience of a magisterial rebuke, have been restrained by the application of a rule of law, to which the unconvicted class of inhabitants is not subject.

I am far from imputing to either of the courts of New South Wales, or to the learned persons who preside in them, any intention of producing such an effect by the judgments that they have given; but the arbitrary application of these rules has had the unfortunate effect of manifesting the inequality of condition that exists between the convicted and unconvicted classes of the inhabitants of New South Wales, in their appeals to those laws whose greatest boast is, to afford equal protection to all. They have now found, that what was matter of right to the free inhabitants, was to themselves matter of favour and judicial grace; and this distinction, not unimportant in itself, mortified the pride of many, while it irritated the feelings and excited the fears of all. It was under this impression, and from thinking that the feelings of these classes of the population had been unnecessarily irritated in the course of the discussions to which I have before alluded, that I agreed with Governor Macquarrie in the propriety of affording to the remitted convicts, an opportunity of making a representation of the state and effects of their legal incapacities. The opinion that I had entertained, when the subject was firelight first under discussion, had led me to make a private communication of it to Mr. Justice Field; and in several conversations that I had with Mr. Judge Advocate Wylde, I expressed sentiments to the same effect. In these opinions I am still confirmed, as far as they regard the removal of the incapacities of being witnesses, of maintaining personal actions, of acquiring, retaining and transmitting property, from those convicts whose terms of service had expired, or who had received the pardon of the governors of New South Wales.

With regard to the future, I do not consider it either necessary or expedient in a colony, destined as that of New south Wales is for the reception, the punishment, and the reform of convicts, to maintain by legislative influence or enactment, any other distinctions in the exercise of these rights than those that I have proposed in my former Report, beyond the period assigned by the law for their punishment, or that which is assigned by the governors for its remission; still less do I think it necessary to continue in New South Wales beyond those periods, the anomalous effects of punishment that are found to attach to convicts for some offences, and not to others.

Whatever the determination may be with regard to these effects upon convicts on their return to England, or on quitting the territory of New South Wales, I cannot see upon what grounds of expediency they are to be maintained in that colony.

Upon a reference to the list of causes that had been tried in the course of three years subsequent to the opening of the Supreme Court, I do not find that there had been any denial of justice to the remitted convicts; and no case had occurred that furnished any grounds for narrowing their claims to it in future. By a return that was furnished me by the registrar of the Supreme Court, of the names and number of persons that have brought actions in that court from the 1st April 1817 to the 14th December 1820, I find that as many as one hundred and ninety-six were Drought by persons who had been convicts, and six by persons who were still in that condition.

With the exception of three individuals of the free classes of inhabitants, and those of the emancipated convicts, who either were, or believed that they might be affected by the future exercise of this discretionary power, I found no person that expressed dissatisfaction with the decisions of the Supreme Court, since the period in which Mr. Justice Field had presided in it.

The principal person of the class of emancipated convicts that huts either entertained or expressed that feeling towards the judicial conduct of Mr. Justice Field, is Mr. Edward Eagar. The grounds of his dissatisfaction are stated very briefly in a memorial that he delivered to me soon after my arrival in the colony, wherein he took occasion to submit to me, amongst a variety of topics for the future improvement of the colony, the existing defects of the judicial establishments. Mr. Eagar bad been appointed to act as secretary to the meeting of the inhabitants of the colony that took place on the 27th January 1819, and in that character had drawn up the petition that it was then resolved to address to His Royal Highness the Prince Regent, and that was trans pitted to your lordship.

In several communications that I had with Sir John Jamieson, who acted as chairman of the meeting, as well as with Mr. Eagar, I was enabled to collect from them the principal grounds of objection that were stated in the petition, to the present system of judicature, and to make reference to the cases upon which their allegations were founded. Part of the objections stated in the memorial of Mr. Eagar have already been noticed; and those which relate to the judgments delivered by Mr. Justice Field, being entirely of a personal nature, and having received a very sufficient contradiction by the authenticated reports that Mr. Justice Field has published of those judgments, I do not think it necessary in this place to make any further observation upon those parts of Mr. Eagar's objections. It is fit, however, that I should state, that out of one hundred and sixty-five actions that have been brought and tried in the Supreme Court, between the month of April 1817 and the 6th January 1821, as well as eleven causes that have been heard and determined in the equity jurisdiction of that Court, only nine appeals have been entered, and of those two were withdrawn; and in one only was the judgment of the Supreme Court reversed. Cases have also occurred, during the same period, in which Mr. Justice Field has displayed a very independent judgment; and has proved to the colony, that although he was ready to give effect to the public orders and proclamations of the governor, whenever he found them to be consistent with the principles of the law of England, or to be justified by palpable necessity, yet he has never allowed his decisions to be swayed by any consideration of the personal wishes of the governor, or the supposed influence of the government, in cases where, although they were not expressed or signified, the existence of both might be presumed.

Your Lordship has been already apprised of Mr. Justice Field's objections and refusal to admit actions in the Supreme Court of New South Wales, for the recovery of duties on spirits or imported goods, until those duties had received the sanction of the British legislature; and of the recovery of damages by the Reverend Mr. Marsden in the Supreme Court against Mr. J. T. Campbell, the governor's secretary, for a libel published by him in the Sydney Gazette. To this instance one more may be adduced, of a judgment given by Mr. Justice Field in an action brought by the governor, for recovering a sum of money expended in the support of certain Asiatic servants that bad been brought to the colony from Calcutta, and had complained to the governor of ill-treatment by their master. Mr. Justice Field was of opinion in this case, that as the relation of master and servant had been dissolved by an order of a bench of magistrates, subsequent to the promise made by the master to give them a proper compensation, and to pay the expenses of their passage to India, the governor had lost his remedy, and could not compel the master to pay either, although he might have compelled him to provide a passage, at the peril of being sent out of the colony.

The principal objections that I perceived to exist against the exercise of the functions of the Supreme Court, were founded upon the influence that the judge seemed to exercise over the opinions of the members; the eagerness with which his own were delivered from the bench, and the great expense of the proceedings. Upon the first two points I have already observed; and although I am not aware of any occasion upon which the influence of Mr. Justice Field was improperly exercised, or where it did not tend to promote the purposes of justice, yet it appeared to me that it would have been very desirable in a system of judicature, wherein the deliberative powers of the persons composing it were necessarily limited, that the greatest latitude of judgment Should always have been afforded to the members of the court, together with the fullest opportunity of considering it.

It has seldom occurred that the judge has positively differed with the members of his court, but they have hardly ever retired to consider of their judgment. In complex or difficult cases he has reduced his opinion to writing, and afterwards submitted it to the members of his court; and upon their concurrence, privately signified, in the substance and effect of his judgment, he has delivered it.

The expenses of the proceedings in the Supreme Court, consist of the fees that are payable to the clerk and registrar of the court, to the judge when acting as master and examiner, to the judge's marshal, crier, tipstaff and courtkeeper; and lastly, the fees of the solicitor's and provost marshal's office.

The letters patent of his late Majesty, constituting the Supreme Court, required that a table of the fees allowed to the officers should be settled by the court, and be subject to the approval of the governor. Upon the opening of the court in the year 1817, Mr. Justice Field, having obtained the approval of Governor Macquarrie to certain rules anti a schedule of fees, submitted them to the members of his court, one of whom, Mr. D. Wentworth, declined giving any opinion upon them; they were acted upon, notwithstanding, until the early part of the year 1820, when a motion having been addressed to the Supreme Court by Mr. Eagar relative to the amount of the fees, and a suggestion having been made by the judge that the members of the court would confer with the governor upon the subject, Mr. Eagar addressed a memorial to him upon the general illegality of fees taken by judges, and the oppressive amount of those of the Supreme Court, endeavouring at the same time to prove to the governor, that although the fees were stated in the schedule that he had approved, to be payable to the clerk and registrar, they were in fact payable and paid to the judge alone. He also insisted upon the impropriety of the judge's having acted as master and examiner in the equity-jurisdiction of the Supreme Court, of his exercising an office to which he had never been appointed, and that had never been approved or confirmed by the governor. After some consideration of the subject by the governor and the members of the Supreme Court, Mr. Wentworth and Captain Piper, a new scale of fees and some emendations of the former rules were agreed upon by them, and were returned to Governor Macquarrie for approval. The governor at first expressed a wish to await my return From Van the men's Land before he gave his sanction to them, but being disappointed in his expectations of that event, he finally approved the rules and schedule of fees that had been submitted to him. Several alterations were made that tended to simplify and facilitate the proceedings of the court, and one rule was added by which the judge was ordered to act as master, both at law and equity, and as examiner in equity and ecclesiastical proceedings.

Mr. Justice Field has explained in his evidence the nature of the difficulties that had induced him, on opening his court, to take upon himself the execution of the duties of master and examiner in equity. They were the same that had dictated an explanation made upon this subject by Mr. J. H. Bent to your Lordship; and were certainly justified by the refusal of all the practising solicitors, with the exception of Mr. Wylde, to give up their practice for the purpose of undertaking an office that promised so little emolument as that of master and examiner in equity. Soon after his arrival in the colony, Mr. Justice Field stated the difficulty in which he was placed to Mr. Judge Advocate Wylde, who it appears consented to perform the duties until some special appointment should have been received from your Lordship; but Mr. Justice Field, upon re-consideration of the subject, and finding that he had sufficient time to devote to the duties of master and examiner, and not considering them to be incompatible with those of judge, continued to execute them from the period of opening his court to the early part of the year 1820.

Moved by the petition of Mr. Eagar, that I have already adverted to, the members of the Supreme Court, Mr. Wentworth and Captain Piper, not concurring in the views entertained by Mr. Justice Field, of the compatibility of the offices of judge and master in equity, felt desirous of making some change, and having agreed with him in the inexpediency of offering the latter to Mr. Solicitor Wylde, applied to Mr. Judge Advocate Wylde, his son, whom they found unwilling to undertake it unless the whole court concurred in the application. As Mr. Justice Field declined to do so, the members consented to appoint him to perform the duty, requiring only as an authority the sanction of his opinion and that of the judge advocate.

This opinion was given on the 8th March 1820, and the members of the Supreme Court were advised that the judge must necessarily act as master and examiner, unless the full court should think fit to act in those capacities.

The judges in giving this opinion had thought that the inconvenience of the alternative they proposed would have prevented its adoption by the members; they adopted it nevertheless, and Mr. Justice Field against it, although he consented to a reduction of the fees to one-half of their amount.

Governor Macquarrie did not approve of the alteration of the practice proposed by the members; but after they had retracted their difference as to the mastership, and had left the reduction of the fees to the judge, he continued to act as master and examiner of the court; and the rules that appear in the Appendix, and the fees in the schedule annexed to them, were finally agreed to and approved by Governor Macquarrie. The reduction that was then made in them amounted to nearly one-fourth in the fees taken on the commencement of actions in the Supreme Court, and on fixing its seal to probates of wills and letters of administration; but no alteration was made in the other fees, and the court expenses of law-suits thus experienced a very inconsiderable reduction.

Mr. Eagar again renewed the subject of the fees of the Supreme Court, by refusing to pay to the clerk and registrar the fee for entering an appearance to an action brought against him by the president and company of the bank of New South Wales. In consequence of this refusal, and of his declining to make any defence upon the merits at the hearing of the cause, a judgment was entered for the whole demand, amounting to 554l.

Against this judgment Mr. Eagar appealed to the governor, and after the appeal was heard, the judgment of the Supreme Court was confirmed. The argument that was read by Mr. Eagar upon that occasion is in the Appendix; it recapitulates the authorities that he formerly brought before the governor's notice in the shape of a memorial, and asserts that the terms of the charter of justice sanctioned the payment of fees to the clerks and officers of the Supreme Court, and not to the judge.

The amount of the fees received by the clerk and registrar of the Supreme Court, from the date of its opening in April 1817 to the 26th June 1820, upon suits tried and entered during that period, is 3,576l. 13s. 9d. exclusive of fees received on probates of wills and letters of administration, amounting to 532l. 7s. 10d. making together a total sum of 4,109l. 1s. 7d.

Mr. J. Gurner, the person who fills the office of clerk and registrar of the court, as well as that of judge's marshal, accompanied Mr. Justice Field to the colony. He receives a salary of 80l. per annum from the colonial funds, a single ration from the king's store, and one-sixth of the amount of the fees that have just been stated. In addition to these allowances, he has received a grant of four hundred acres of land, cattle, and the subsistence of three men upon the store for eighteen months.

The crier of the court is a convict, and acts also as a copying clerk in the judge's office.

The amount of the fees received by the registrar of the Supreme Court in some cases exceeds, and in others falls below, the amount of similar charges in the courts of justice in England; it cannot, however, be denied that it has afforded a very considerable addition to the judicial expenses of suitors, as well as a ground of complaint to all classes of the inhabitants.

The fees and charges made by the solicitors of the court are regulated by a schedule that was approved by Mr. Justice Field. Some of them are higher in amount than the fees charged by solicitors in England, including also the charges for stamps. The reasons for these heavy charges do not appear to me to arise from any other local peculiarity than that of the expense of paper and stationery: this expense has been always much felt in the colony, and especially in the earlier periods. By more frequent intercourse with England and with India, it is gradually diminishing. The solicitors represented to me one of a more serious kind, arising from the poverty of their suitors, and the long credit they were obliged to give to them, exceeding that which was given to them by the registrar of the Supreme Court. The complaint, however, of the heavy charges made for professional attendance in the courts were generally against all the solicitors, and as much directed against the two gentlemen who received salaries from the colonial funds, as against those who did not receive such assistance. The difference between the mode of charging that was adopted when the business was intrusted to the convict attornies, who, instead of fees, took a percentage upon the gross amount of the sums recovered, the difference in the forms of proceeding, and the greater degree of activity that was manifested by those persons than by the present solicitors, has lessened the satisfaction with which the arrival of the latter in the colony, or their professional services in it, were at first or have been since regarded.

The solicitors have generally availed themselves of the services of convict clerks; and by an agreement that was made between Mr. Amos and Crossley, a convict attorney, the former stipulated for the receipt of an annuity of 400l. and half the fees that should be received, in return for the practice to which the latter agreed to introduce him.

The jurisdiction of the Court of Appeal was limited by the last letters patent of the year 1814, to causes wherein the debt or thing in demand exceeded the value of 300l. sterling; and the right of parties to appeal to his Majesty in council, was limited to causes that exceeded the value of 3,000l.: both of these limitations have been created by royal authority.

Since the opening of the Supreme Court by Mr. Justice Field in the year 1817, seven appeals have been entered; and of these, five have been heard, and two have been withdrawn. It is directed by the charter, that the governor should be assisted in the Court of Appeal by the judge advocate; and, under this direction, Mr. Judge Advocate Wylde has attended the hearing of appeals, and on some occasions has delivered his opinion; but it does not appear that Governor Macquarrie has always considered the judge advocate's opinion as binding upon his own judgment.

Considerable improvement has taken place in the office and mode of conducting the business of the provost marshal, since the appointment of Mr. J. T. Campbell on the 6th March 1819. For his protection a proclamation was issued by Governor Macquarrie, upon the suggestion of Mr. Justice Field, authorizing the provost marshal to summon juries to inquire as to the property in goods and chattels and land that might in future be levied on.

The fees of the office of provost marshal were considerably reduced on the appointment of Mr. J. T. Campbell; and he has submitted to me a statement of the fees received between the 7th March 1819 and the 30th October 1820, in which the gross amount is stated to have been 1,405l. 18s. 9d. and that it has been reduced by the expenses and outgoings of the office (including the payment of salaries to bailiffs, amounting to 210l., the sum of 123l. 14s. 6d. that Mr. Campbell was compelled to pay, by a verdict of the Supreme Court; and one-fourth of the net proceeds to time deputy provost marshal) to the sum of 655l. 16s. 7½d.

Considering the responsibility of the office of provost marshal, and the difficulty of finding competent persons in New South Wales to perform the subordinate duties with integrity, I submit to your Lordship the propriety of referring the schedule of fees of the provost marshal, that was fixed by the judges on the 13th March 1819, to the same authority for revisal; and for some proportionate augmentation in those items, that limit the allowance to the provost marshal for executing summonses for sums exceeding 50l. and at places distant ten miles from Sydney and other towns, to 1l.

The authority by which the Criminal Court of New South Wales was created, has already been submitted to your Lordship. The power of convening it is authorized to be given by His Majesty to the governors or lieutenant-governors of New South Wales, and the court is to consist of the judge advocate and six officers of His Majesty's forces by sea or land. The mode of proceeding in the Criminal Court is pointed out in the charter of justice, and it has jurisdiction to try and punish "all such outrages and misbehaviours as, if committed within the realm (of England,) would be deemed and taken, according to the laws of that realm, to be treason or misprision thereof, felony or misdemeanor."

Under these authorities, Mr. Judge Advocate Wylde has continued to preside in the Criminal Court since the month of October 1816, Mr. F. Garling having officiated as judge advocate under an appointment of Governor Macquarrie, from the month of January 1816 to the month of September of that year.

The Criminal Courts are convened by Governor Macquarrie, by a precept addressed to the provost marshal of the territory, who summons the members. The appointment of them wholly rests with the governor, and it has been made conformable to the practice that prevails in the appointment of the members of military courts martial. A few instances have occurred where the members have been excused on account of indisposition, and, at the suggestion of the judge advocate, on account of their youth.

The sessions of the Criminal Court were fixed by an order of Governor Macquarrie, dated on the 7th June 1817, and made at the suggestion of the judge to take place on the 15th March, the 1st June, the 15th September, and the 1st December in each year. In the year 1817 two sessions only were held, but since that period they have been regular.

The informations taken by the superintendent of police of Sydney, and the magistrates of the county districts, are transmitted by them to the judge advocate, who after consideration exercises the power of determining whether the parties convicted are to be put upon their trial. The words of the charter under which this power is exercised direct, "that the Criminal Court shall proceed to try all offenders, by calling them before it; that the charges should always be reduced to writing, and should be exhibited by the judge advocate." In the period that has elapsed from the month of October 1816 to the month of December 1820, three hundred and seventy-nine criminal charges have been exhibited to the court by the judge advocate, and thirty-nine cases have occurred in which he has declined to exhibit any. The nature of the charges is set forth in the returns made by the judge advocate, as well as the punishment annexed to them. The returns of offences and punishments previous to the period of Mr. Judge Advocate Wylde's arrival, and for one sessions subsequent to it, having been annexed to the evidence given before the Parliamentary Committee on Gaols, I did not think it necessary to add them.

The form and language in which the informations are drawn, are precisely similar to those of indictments in the criminal courts of England. They are drawn by Mr. Wylde the clerk of the peace; and on special occasions, by the judge advocate himself.

The informations are read over in court to the prisoners, who are arraigned upon them, by the clerk of the peace; and the judge advocate then proceeds in the examination of the witnesses. Until the commencement of the year 1820, it had been the practice of Mr. Judge Advocate Wylde to retire with the members of the court, after the evidence in each case was concluded, and to deliberate upon it in an adjoining room. The members had here an opportunity of discussing the questions that had arisen, of hearing the opinion of the judge advocate, and of deciding upon their verdict and sentence. Upon their return to the court, the judge advocate resumed the open consideration of the case, made reference to the questions of law and fact that had already been decided by the court, and in doing this, sometimes read the evidence from his notes.

Having observed during my attendance at the Criminal Court, that this mode of proceeding consumed a great deal of their time, without any advantage to the members of the court, or to the public, I suggested to the judge advocate the expediency of summing the evidence given on each trial from his notes in the form of a charge, and of stating all questions of law and fact as well as his own view of them, to the members of the court before they retired, in the presence of the prisoner and of the public.

The judge advocate adopted this suggestion, and it has had the effect of more nearly approximating the practice of the court to that of criminal courts in England, and of affording opportunities of correcting mistakes in the evidence, or clearing up doubts that were material to the prisoners defence, before the court retired to consider of them; and the still more important advantage of manifesting to the public the grounds of law and fact, by which the consideration of the verdict would be guided.

In considering the verdict, and in all questions of law the opinion of the judge advocate, has always had much influence; and in apportioning punishment, he has always found a much greater disposition in the members to listen to reasons for merciful than severe judgments.

Several occasions have occurred in which a verdict has been given by a majority of four members of the court; but five cases only have occurred of a capital nature, in which a difference of opinion amongst the members rendered a reference necessary to the consideration of His Majesty's government. Two of these were cases of forgery and one was a case under Lord Ellenborough's act, which was referred for the same reasons. Two were for murder.

A pardon, oil condition of transportation for life to the Coal River, was offered to two of these offenders upon the accession of His present Majesty to the throne, but they declined it; and one was waiting the determination of His Majesty's pleasure upon my departure from the colony in 1821. Another case of a capital nature, wherein the judgment of the court was referred, took place in the year 1821: It was upon the conviction of a soldier of the 84th regiment of foot, for the murder of a sailor on board His Majesty's ship Dromedary, when stationed at New Zealand.

The sentences of the court, signed by the judge advocate and the members, are submitted to the governor for approval; and the notes taken by the judge advocate transmitted to him, before he makes his final decision upon the cases of capital punishment.

On reference to the return of offences and punishments from October 1816 to the end of the year 1820, it appears that capital punishments have been inflicted in cases of murder, highway robbery, and stealing in dwelling-houses, burglaries, stealing and killing cattle, and in one case of forgery, and that out of one hundred and eleven sentences of death that have been passed for these crimes, fifty-nine have been executed. The general increase of capital offences is attributable to the successive increase in the number of convicts that have arrived in New South Wales from the year 1817 to the end of 1820; and the diminution that took place in the year 1819, is attributable to the effectual confinement of the convicts in the early part of that year to the barrack in Hyde Park. Iii the year 1818 the number of cases that came before the Criminal Court was ninety-eight, and in 1819 it was reduced to sixty-seven. In 1820 the number of convicts exceeded the means of accommodation in the barrack, and the offences increased to one hundred and eleven.

In the month of August 1817 an official notice and caution was deemed necessary by Governor Macquarrie to the inhabitants of the colony, to prevent them from travelling between the towns of Sydney and Paramatta by night, and constables were ordered to patrols on different parts of that road from sun-set to sun-rise. These outrages appeared to increase at the end of the year 1819, and were attributable to the facilities of plunder afforded by the convicts employed in the road parties. They were not in general attended with violence to the parties robbed, but were much invited by the state of inebriety in which the settlers always returned from the towns, and by the expectation of plunder that their carts afforded. The higher classes of the inhabitants did not incur the same risk in travelling by night, and very few instances have occurred where they have been attacked. The necessity of affording protection to cattle and sheep, which from the general want of inclosures in the colony have been much exposed to depredation, has latterly increased the number of executions for that crime; and from disclosures that took place in the Criminal Court of June 1820, upon the trial of certain emancipated convicts and one native youth, it appeared that the crime of cattle stealing was very extensively practised.

As early as the year 1812 an order was issued by Governor Macquarrie, declaring that all the lands situated to the westward of the river Nepean, as well as the tract known by the name of Emu Plains, with the exception of the grants made to Messrs. M‘Arthur and Davidson in the Cow Pastures, were unappropriated crown lands, and prohibited any person from going thither without a pass. It was also declared, that the whole of the wild cattle grazing to the westward of the Nepean, were clearly to be understood as the property of the crown; and that any person detected in stealing or killing them would be prosecuted for felony, and punished in the most exemplary manner.

The depredations upon these herds continued to be made by the convict servants, as well as by the settlers on the northern banks of the river Nepean, whenever the price of butcher's meat was so high as to afford them temptation.

It is stated by an intelligent witness, who had long resided in that neighbourhood, that the refusal of the convict servants whom the superintended to mess together, and to sleep in a barrack rather than in separate huts on their master's farm, proceeded from the fear of interruption that it might occasion to their habits of nightly plunder in the lands occupied by the wild cattle. This system of depredation continued in spite of every endeavour on the part of the government to suppress it; and in the month of January of the year 1817, Governor Macquarrie, with the advice of Mr. Judge Advocate Wylde, issued a proclamation, in which after declaring that sentence of death had been lately passed on certain offenders convicted of killing and driving away cattle, the property of the crown, alleged in the recital of the proclamation to have been collected, placed, and suffered to graze and be at large in the crown lands called the Cow Pastures, the sentence was commuted to transportation for life, and indemnity was promised to all persons who had through ignorance or want of caution been implicated in the consequences of having committed such an offence. It was further ordered, that no persons except the civil or military officers of the government, and the families of Mr. M‘Arthur and Mr. Davidson, should on any pretence cross the river Nepean or travel into or within the lands and country westward or southward of the river Nepean, without first obtaining a pass from the governor or his secretary.

The constables were ordered to apprehend and lodge in gaol all persons found in those lands without a pass; all cattle found there were declared liable to seizure and forfeiture; and a denunciation was added, that after the due promulgation of the order in the territory, any person who should be guilty of stealing any cattle belonging to the crown, or should kill any of them with intent to steal the carcase, and being convicted thereof, should receive judgment according to the statute; and should in no case or upon any account receive pardon or mitigation of sentence in respect thereof, but should suffer death according to law.

In the month of May following three men were charged before the Criminal Court with killing some of the government cattle and stealing their carcases: they were convicted of these offences and sentenced to death. Mr. Moore, their solicitor, moved in arrest of the judgment of the court, that the cattle in question having always been in a wild state, and having been permitted to range in uninclosed lands, could not be the subject of larceny; and that the property in them, which had been averred in the information to be in His Majesty, was not proved by the evidence; and that so far from the cattle having become the exclusive property of the crown, it was well known that several cattle, that could be proved to be the property of Mr. John M‘Arthur and of other persons, had strayed into the Cow pastures and had mixed with them.

Mr. Judge Advocate Wylde delivered the opinion of the court upon these points, first having noticed that the verdict of the court had already declared the property of the King in these cattle to have been sufficiently proved. The opinion delivered upon this occasion was published by the permission and tinder the correction of Mr. Judge Advocate Wylde in the Sydney Gazette, 10th July 1817. It was declared that the property of the crown in the cattle might be either qualified, as arising from the continued pasturage of the cattle on the crown lands, or special, as of bonâ vacantiâ, vesting in the King as general owner and lord paramount of the soil; and that although positive proof might not be given of the cattle having been placed in the Cow Pastures originally by the crown, still the reservation and possession of the land carried with it all right to the profits; and that such right and reserved dominion had been frequently and publicly proclaimed in several orders of the governors of the colony, and in the appointment from time to time of constables and soldiers for the special protection of the government herds.

The judge advocate further remarked, that the law recognized certain distinctions between tame and wild animals, limiting them to such as are generally seen tame and domesticated, and such as are generally found at liberty; to such as are fit for food and kept for pleasure or curiosity, such as are valuable, and such as are of a base nature.

He did not consider that there was any thing in the character or history of the government herds, from which the prisoners were found guilty of stealing, that denoted such an original wild state as the law contemplated in the term of "feræ naturæ" They had been preserved for the purpose of ensuring the continuance of the colonial stock, and in every point of view were valuable as food.

In adverting to the want of proof of property, the judge advocate declared that neither in the present, nor in any similar case in future, should he consider it necessary to require evidence of ownership of cattle; and that if there was a destruction of any animal, with an intent to steal or take it away, he should consider the proof of property in it to be an immaterial part of the offence.

After enlarging upon these topics, the judge advocate delivered the sentence of the court, "that as there was some reason to presume that the penalties of the law that had been denounced in the proclamation of the 1st January 1817, had not yet reached the parts of the colony in which the prisoners lived, their lives should be spared on condition of transportation for life to such part of the territory as the governor should think fit."

The principal difficulty in this case arose from the want of proof of one of the averments of the information, by which the cattle in question were alleged to be the property of His Majesty. They consisted of the progeny of those that had strayed from Sydney Cove soon after the landing of Governor Philip, and of a few that had subsequently joined them belonging to neighbouring settlers. Their numbers had thus increased, but they still retained the marks and forth of the original breed; and although they had ceased to be tame, in consequence of uncontrolled range in an extensive pasturage, yet they were then capable of being reclaimed, and many have since been taken, and have been used as draught cattle in the government works.

At a subsequent sessions of the Criminal Court, in the month of September 1818, two men were tried and convicted of killing cattle, the property of persons unknown, and of crossing the river Nepean contrary to the governor's proclamation. For this offence they were sentenced to transportation to Newcastle for their natural lives. In the following year, a similar conviction of three men for the same offence was followed by sentence of death, that was afterwards commuted by Governor Macquarrie to transportation for life.

In consequence of the difficulty that has been both felt and expressed by Mr. Judge Advocate Wylde, in applying the statutable punishments to the crime of forgery, as well as to that of cutting and maiming with a felonious intent, the courts before whom the first of these offences was tried, so far deferred to the judge advocate's opinion, as to withhold the execution of the sentences until the advice of His Majesty's law-officers could be obtained.

The doubts entertained by the judge advocate arose from the terms of the Act of Parliament of the 27 Geo. III. c. 2, by which the jurisdiction of the criminal courts that it authorized his Majesty to establish in the colony of New South Wales, was declared to extend "to the trial and punishment of all such outrages and misbehaviours as, if committed within this realm, would be deemed, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanor."

In some of the Acts of Parliament that were passed both before and after the establishment of a criminal jurisdiction in New South Wales, their operation has been sometimes limited to England only, and at other times has been extended to Ireland, mid at others to Scotland.

It appeared to the judge advocate that the older statutes, by which the offence of forgery had been made punishable, were clearly of this limited extent, as the act of the 45 Geo. III c. 89, was passed to give them a new and more general operation, and expressly comprehended Scotland.

This interpretation of the statute was not adopted by His Majesty's attorney and solicitor-general; and after their opinion had been communicated to Mr. Judge. Advocate Wylde, the statutes, as well as the punishments for the offence of forgery, were put in force.

The judge advocate also held, that another statute, and one of very important enactment, the 43 Geo. III. c. 58, (commonly called Lord Ellenborough's Act,) for preventing malicious shooting, stabbing, and cutting, being expressly limited to England and Ireland, could not be considered as a law of the realm, and he declined to file an information against a convict committed by the magistrates of Paramatta for this offence; and the punishment of another was deferred, and awaits the reference that was ordered by the Criminal Court to the consideration of His Majesty, before the sentence of death that had been passed should be carried into execution.

Although the doubts that were entertained upon the operation in New South Wales of the statutes, creating the offence of forgery, have been removed by the opinion of the attorney and solicitor general, and one sentence of death for that offence has been carried into execution, it would be advisable in any future Act of Parliament that may be passed relative to the punishment of offences committed in New South Wales, to remove any doubts respecting the import and meaning of the word "realm", as well as the application of all criminal laws that have been passed since the 27 Geo. III. c. 24, by adopting the suggestion of Mr. Justice Field in his observations on the charter of Justice, and by inserting in any legislative enactment the words "laws now in force in that part of this realm called England".

In referring to the return of punishments that have been inflicted under the sentences of the Criminal Courts since the year 1810, and to the recommendations that accompanied them, it will be found that, with the exception of some of those that were ordered by the two Criminal Courts of the year 1816, in which Mr. Garling presided as judge advocate, there has been manifested a great degree of humanity and tenderness. The grounds of those exceptions have been submitted to your Lordship by Mr. Garling, and they appear to have arisen from a desire in the members who then composed the Criminal Court, to substitute the punishment of solitary confinement for that of whipping or transportation to the Coal River. In the cases of Patrick Hart and Owen Doran, of Michael Hoare and James Gilchrist, of Edward Doyle and John White, solitary confinement in the gaol at Paramatta was ordered for the space of twelve months; in the case of Peter Wilson for two years, and in the case of three other prisoners for three years.

During that period, it appears by the evidence of Mr. Francis Oakes, that the prisoners were allowed to leave their cells and to come into the yard of the prison for one hour every day; and that the prison allowance amounting to one pound of bread per day, was allowed to be augmented by any contributions from their friends; but when the prisoners, as in the case of John Hall and Peter Allen, derived no such assistance, the effect of such long confinement and insufficient food had visibly affected their healths.

It was during the continuance of these punishments, that the notice of Mr. Bailey, who happened to be in the Paramatta gaol on the arrival and distribution of some convicts, was drawn to the situation of Michael Hoare. This man had already committed acts of violence in his cell, and had caused such alarm in the gaol and neighbourhood, that several persons who observed him imputed his appearance and condition to insanity, caused by long confinement. Mr. West the surgeon of Paramatta has stated, that he visited this man at the desire of the Rev. Mr. Marsden, and gave it as his opinion that he was not insane, but that he was counterfeiting madness, with a view to effect his release from strict confinement. Mr. Marsden, who was at that time the principal magistrate at Paramatta, entertained a different opinion respecting the state of Michael Hoare's intellect, and as his violence continued, caused him to be removed to the lunatic asylum at Castle Hill, and placed under the care and management of a convict named Ravenscroft, whom he ordered to receive him. Having continued here for some time, Michael Hoare made his escape, and committed a robbery. He was then returned into Paramatta gaol for the remainder of his sentence.

Mr. Marsden has stated in his evidence, that he had taken an opportunity of representing to Governor Macquarrie the probable consequences of the infliction of these punishments soon after they were made known, but that the Governor declined any interference with the sentences of the Criminal Court.

Upon the objectionable nature and duration of the punishment complained of, it is hardly necessary for me now to observe. It is to be regretted that Governor Macquarrie had not listened to the first suggestions that were made to him on this occasion by Mr. Marsden, and interposed the authority which he derived from his commission, for the purpose of mitigating punishments that it was plainly impossible or highly improper to execute.

Mr. Marsden as well as Mr. Bailey appear to have been mistaken in the effect that they attributed to the long and solitary confinement of Michael Hoare. His violent demeanor in the gaol had impressed them with a belief that he was insane; and as the means of personal restraint could not be so easily applied there, as under the direction of the medical attendant at the receptacle of lunatics at Castle Hill, Mr. Marsden directed Michael Hoare to be conveyed thither and confined, without previous reference to Mr. West, the surgeon at Paramatta. After his escape from Castle Hill, and apprehension for committing a robbery, Mr. West gave it as his opinion that the man was not insane, and he was returned to his original punishment. It seems somewhat extraordinary that Mr. Marsden should have taken upon himself to decide upon his insanity without a previous reference to Mr. West; but it appears that this power has been exercised both by himself and Mr. M‘Arthur upon their own view of the prisoners whom they considered to be lunatics, and whenever their custody in the gaol became (as in the case of Michael Hoare) a cause of annoyance and disturbance to the other prisoners, or to the neighbourhood.

From the reluctance manifested by Mr. West to give any account of the date in which he found the two other prisoners, Hall and Allen, who had been sentenced to twelve months solitary confinement, and from the destruction of the books of the hospital, it was impossible to obtain materials for forming a correct judgment, of the effect of the punishment upon them. One of them had suffered from the effects of hard labour during the early periods of his transportation; and from not receiving more than the gaol allowance during ten months of his confinement, was reduced to such a state of debility as to be unable to leave the hospital for two years.

It does not appear that Mr. Marsden had any communication with Governor Macquarrie respecting the effect that he found and believed these punishments to have had upon the prisoners, but having once pointed them out to his notice when the sentences were passed, and the governor having then refused to interfere, he felt that he could not make a second application with any hope of success.

In this conclusion I do not conceive that Mr. Marsden was justified; and it certainly was his duty, as visiting magistrate of the gaol of Paramatta, to have obtained the opinion of the surgeon; to have made an early representation of the effects that, the severity of the punishments of the Criminal Court had produced there, and through the governor to have submitted such a statement and opinion to the notice of the judge advocate and members of the Criminal Court.

As Mr. Marsden has further stated that he visited the Paramatta gaol three times a week, the condition of the prisoners in consequence of their reduced allowance must have been known to him; and he must have felt assured, that any statement of that condition to the governor, or even to the surgeon, would have produced a temporary relief, at least, to the prisoners from the severity of confinement and privation of food, whenever their state of health required a relaxation of it.

Governor Macquarrie, in his observations upon Mr. Marsden's evidence, has acquitted him of all blame in these transactions, except of being a party to the statements made to your Lordship by Mr. Bailey, and of being the dupe of the pretended insanity of a convict. It is true that both Mr. Marsden and Mr. Bailey were mistaken in imputing the violence of this man to insanity; and Mr. Bailey addressed himself to Sir Henry Bunbury, under a strong but mistaken impression of its cause, and with a belief that its effect was likely to recur, under the administration of Governor Macquarrie, as long and as often as the punishment of twelve months and two years solitary confinement on bread and water was inflicted by the Criminal Court. It is satisfactory, however, to observe, that no similar instance has occurred of the infliction of punishments in the colony in which resort has been had to such lengthened periods of solitary confinement; and that with the exception of those that have been noticed, the sentences of the Criminal Courts have been considered to incline rather too much to the side of mercy, and have always manifested that feeling where any circumstance could furnish reasonable grounds of doubt.

Considering the peculiar construction of the Criminal Court, and the objections that have been made to it, as well as to the exercise of its jurisdiction, in the petition that was addressed to His Majesty in council, by several of the inhabitants of the colony, on the 12th February 1819, I felt myself justified in entering upon an examination of the particular cases to which the defects and the objections alleged by the petitioners had any reference, for the purpose of discovering, in the first place, whether they proceeded from any defects in the constitution of the charter itself, and were capable of remedy by an alteration in it, or whether they had proceeded from the manner in which the powers conferred by the charter hail been exercised.

Assuming, for the present, that the objections to the Criminal Court made in the petition of the inhabitants, contain all exposition of the sentiments of all the petitioners, or even of the leading members, upon one most important subject, the introduction of trial by jury, (a point to which I found upon examination several of these individuals were still unfavourable, although their names were signed to the petition,) I will proceed to the examination of the objections that I am able to collect from the language of the petition, as well as from other sources to which I applied during my residence in the colony.

Taking them in the terms in which the petitioners have thought proper to express themselves, the first ground of objection is, the combination in the person of the judge advocate of the duties of a magistrate, who commits the prisoner upon investigations conducted by himself; of prosecutor, of jurymen, and of judge. The second is, the military character of the court, to the members of which there is no right of challenge, and from whose decisions there is no right of appeal; the military title of the presiding member, and the possible and indeed the actual occurrence of cases wherein the accuser of a prisoner and the party complaining of the offence, and against the offender, was a member Of the court.

The next ground of objection is, the general unfitness and incapacity of the Criminal Court, so constituted, to administer impartial justice to the free and respectable population of the colony, or to command veneration, awe and respect; the repugnance of its form and proceedings to the feelings of the petitioners as Englishmen, or to the proceedings and institutions of their native country; and lastly, the petitioners stated that the lives and liberties of the inhabitants of New South Wales, while under the protection of such a court, could not be so well secured as they ought to be, nor (they stated) could the laws of England be administered with sufficient purity and impartiality.

From the communications that I held with Sir John Jamieson and with Mr. Eagar upon the allegations of the petition, I felt it my duty to cuter into an examination of the cases to which either the one or the other had referred me for proof; and I now proceed to submit to your Lordship such a statement of the circumstances as I was enabled to collect, either from judicial documents, or from the recollection of persons in whose opinions I thought most confidence might be placed.

Taking the objections in the order in which the petitioners have placed them, I find that with respect to the first, namely, the combination of the characters of magistrate, juryman, prosecutor and judge, in the same person, that both in the time of Mr. Judge Advocate Bent, and Mr. Judge Advocate Wylde, the duties of examining and committing magistrate were unnecessarily undertaken by both; and that latterly Mr. Judge Advocate Wylde has ceased to perform them, except in one instance, in which out of deference to the feelings of Governor Macquarrie, and in consequence of his request, he proceeded in his character of magistrate and public prosecutor, to investigate the publication and composition of a libel upon the governor, of which an individual was afterwards accused before the Criminal Court and convicted. Neither Governor Macquarrie in making the request, nor Mr. Judge Advocate Wylde in acceding to it, appear to have been sufficiently aware of the effect of such a proceeding, or of the impressions that it might create in the tribunal before whom the cause was to be tried.

Governor Macquarrie had at first disregarded the publication, and treated it with the contempt it deserved. When, however, he resolved to make it the subject of prosecution, it is to be regretted that he had not intrusted the investigation of the authorship of the libel, the only question of difficulty that could have arisen, to the management of Mr. Wylde, sen. officially designated the solicitor of the crown, (and who actually did give his assistance to his son the judge advocate on this occasion), and to that of Mr. D. Wentworth the superintendent of the police.

Another instance occurred in which the effect of combining so many incompatible duties in the office of the judge advocate, does appear to have been manifested in the proceedings instituted by the Rev. Mr. Marsden against Mr. J. T. Campbell, the governor's secretary, for a libel. I am aware that some of the circumstances of this case have already been submitted to your Lordship, but I think I should not do justice to the views that your Lordship proposed in the institution of my Commission of Inquiry, or to the characters of the individuals involved in the circumstances of the transaction itself, if I did not in this place take an opportunity of stating them, both as they affect the character and conduct of these individuals, as well as the character of the criminal judicature of the colony.

The libel of which the Rev. Mr. Marsden complained, had appeared in the Sydney Gazette on the 4th January of the year 1817. Previous to this occurrence, and as early as the year 1814, certain letters addressed by a person styling himself as "a settler" had been inserted in the Sydney Gazette, affecting to regret the want of a collection of books of useful information, and expressing some surprise in the studied concealment, and also in the restraint that had been observed in the use of those, that the writer understood to have been intrusted to the Rev. Mr. Marsden by certain pious and benevolent individuals in England, for the benefit and instruction of the colony. This letter produced a reply from Mr. Marsden, who contended that the books were confided to his sole discretion; that the existence of such a collection was well known, though not by public advertizement, at least by the frequent loan of the books to individuals of respectability, who had applied for them. Mr. Marsden conceiving that the Sydney Gazette had been allowed to be made the vehicle of insinuations prejudicial to his character upon this occasion; and considering that it was altogether under the control of the colonial government, applied to Governor Macquarrie for redress. The governor declined to interfere, and referred Mr. Marsden to the civil and criminal courts for the protection that he sought. Mr. Marsden felt disappointment in the result of this application, and was continued in his belief that Mr. Secretary Campbell was the author of the letters signed "A Settler", or at all events that he favoured their admission into the Sydney Gazette. He did not however venture to make any appeal to the civil and criminal courts. The suspicions that he entertained of Mr. Campbell as the author of these letters, are now known to be unfounded; and although in combination with other circumstances, they left a strong impression upon the mind of Mr. Marsden, yet he took no further step in his own vindication until his attention vas called to the letter signed "Philo Free". On the day after the appearance of this letter, Mr. Marsden waited upon Governor Macquarrie, and again complained that the Sydney Gazette should be made the vehicle of calumny and abuse against himself. The governor expressed his deep regret that any thing should have appeared in it to his prejudice; and although Mr. Marsden did not request him to give up the printer, yet he informed him that he would never rest satisfied till he had brought the author to light.

Mr. Marsden then addressed himself to Mr. Judge Advocate Wylde, in a letter that appears to be dated on the 7th January 1817, in which, after very shortly pointing out to the notice of the judge advocate the appearance of the letter signed "Philo Free" in the Sydney Gazette, which he considered to be a libel upon his private and public character, he requested the judge advocate to file, or to allow him to file, a criminal information against the printer. Mr. Judge Advocate Wylde has declared that it was by this letter of Mr. Marsden that his attention was first drawn to the publication in question, and deeming it expedient in the first instance to ascertain whether the insertion of it had been sanctioned by the authority of government, he addressed an inquiry to that effect on the 11th January to Mr. Secretary Campbell. To this inquiry he received an answer from Mr. Campbell on the 14th, that is to be found in the Appendix. Mr. Campbell here alleges the pressure of official business upon his attention on the day in which the letter of "Philo Free" was submitted for insertion in the Sydney Gazette, by which means the objectionable passages in the letter had escaped his observation; that although he felt a degree of satisfaction in the revival of the question of the philanthropic society, with the discussion of which the letter both began and concluded, he regretted that the construction that Mr. Marsden had put upon the objectionable passages had induced him to resort to judicial measures; but as he had not thought proper to make him any official communication on the subject, although he was aware that as secretary of the government he was the censor of its press, he did not think it incumbent upon him to make any attempt to procure him any friendly explanation, to do away what he conceived to be ill-grounded apprehensions; and that as under the exercise of his judgment as censor, the letter of "Philo Free" was printed, he felt it his duty to relieve the printer from any possible responsibility, he having merely performed his duty, and he (Mr. Campbell) having given the letter his official imprimatur.

A copy of this letter was enclosed to Mr. Marsden by Mr. Judge Advocate Wylde, together with a declaration of his opinion, that although he felt great regret in observing the publication of any remarks reflecting upon the conduct and labours of the Missionary Societies in their attempts to civilize the inhabitants of the South Sea islands, yet he was not able from his own knowledge to discover in the letter such pointed application to any individual member of those societies as would justify him in filing an information against the printer of the Gazette. He however stated, that although he did not conceive that he should be warranted in preferring a public indictment in his own name and character against the printer, he should be ready to comply with Mr. Marsden's request of exhibiting any indictment that he might think fit to present, upon being furnished with affidavits of persons who might be willing to swear to their belief of the application of the libel to Mr. Marsden but upon taking which oath the judge advocate expressed a hope, "that such persons would duly pause". This expression was interpreted by Mr. Marsden into an attempt on the part of the judge advocate to throw difficulties in his way of obtaining that evidence of the application of the libel upon which alone an information could be exhibited. Under this impression Mr. Marsden addressed two letters to the judge advocate, in one of which, dated on the 17th January, he complained of his reluctance to file an information against the printer, as an exercise of discretion altogether new in the administration of criminal justice in the colony, and adverted to the practice observed of filing criminal information in England by the attorney general, as well as that of granting them on the application of the party to the Court of King's Bench.

Mr. Marsden, both in this and a subsequent letter, dated 23d April, appears to have been misinformed of the nature of this practice, and to have construed the difficulty that the judge advocate felt in giving an individual application to the libel into a reluctance on his part to commence any criminal proceeding. It is much to be regretted that, in his first letter to Mr. Marsden, the judge advocate should have exposed himself to such suspicion, by the use of terms which, if understood as he contended they were meant, in the shape of caution, were altogether uncalled for from him; and which, if understood in the shape of intimidation, were still more objectionable. In the same letter, however, the judge advocate distinctly stated to Mr. Marsden his willingness to prefer a public indictment, in his own name and character, against the printer of the Sydney Gazette; and there was certainly nothing in this letter that could justify the language made use of by Mr. Marsden in his answer of the 17th January, or in a subsequent letter of the 24th April. Upon reference to these letters, I am much disposed to adopt the conclusion to which Mr. Judge Advocate Wylde has come, that they were not of Mr. Marsden's composition. As soon as Mr. Marsden became sensible of the impropriety of the language he had used in his letters to Mr. Judge Advocate Wylde, he made a proper apology; and as he and his advisers had at this period the sagacity to discover the full value of the advantage that had been placed in their hands by the communication that had been made by Mr. Judge Advocate Wylde of the letter of Mr. Secretary Campbell, they construed all the efforts and persuasion that were made use of by the judge advocate in his private interviews with Mr. Marsden to come to some amicable adjustment of the business, and his doubt of the personal application of the libel to him, (a point of which hardly any persons in the community, that had had opportunities of being acquainted with Mr. J. T. Campbell's sentiments and conduct towards Mr. Marsden, or Mr. Marsden's occupations on behalf of the Missionary Societies, entertained any doubt), into a denial of that justice to which he was entitled, and into an attempt to protect Mr. Campbell from the consequences of a criminal prosecution.

Mr. Marsden had not at that time obtained the evidence of Williams respecting the delivery of the libellous writing by Mr. Campbell to the editor of the Sydney Gazette; but he and his advisers were so strongly impressed with the belief that Mr. Campbell was the author, that he frequently declared that he would not rest satisfied with the public disavowal that was made by Governor Macquarrie at the suggestion of Mr. Judge Advocate Wylde, in the Sydney Gazette, nor with any thing short of a criminal proceeding against the person whose avowal of participation was in his hands, and whose more immediate connection with the libel he felt assured he should be able to prove.

In resisting all the efforts that were made by Mr. Judge Advocate Wylde to effect an amicable and private adjustment of the affair, the mind of Mr. Marsden certainly appears to have been more directed to means of punishment than to those of vindication of character. Mr. Judge Advocate Wylde had in vain pointed out to him, that, if vindication of his own character or that of the Missionary Societies was his object, the Supreme Court and not the Criminal Court was the tribunal to which he must appeal. The mind of Mr. Marsden was suffering under the sense of former as well as of later indignities, and his natural disposition led him rather to persist in his right of prosecution than in his claim to vindication. He accurately described his own feelings, when he stated in his conversation with Mr. Judge Advocate Wylde, "that as he had been driven by the government into a corner, and had thrown away the scabbard, he would never give in till he had gained redress."

Your Lordship is already apprised of the disavowal made by Governor Macquarrie of any sanction on his part to the appearance of the libel in the Gazette, and of the declaration of his regret that it should have found admission there; and although Mr. Marsden is not disposed to give the governor that credit for his early disavowal of all connection with the libel, which has obtained your Lordship's approbation, yet I am now perfectly satisfied, by a reference to dates, that the public disavowal that was made by the governor could not have been made at an earlier period; and that it does appear that the proposal for making it came from Mr. Judge Advocate Wylde and not from the governor, yet every disposition was manifested by him to adopt that proposal, and to give it the earliest and most general effect. The libel was published on the 4th January; the judge advocate did not communicate with the governor respecting it till the 7th; and as the former had deemed it necessary to address himself to Mr. Campbell, to know whether, as censor of the press, he disavowed all connection with the libel, he could not have framed the governor's disavowal until he had received Mr. Campbell's answer.

This answer was dated on the 14th January, and on the 15th the governor's disavowal, that had been drawn up by the judge advocate, was transmitted for insertion in the first Sydney Gazette that was published afterwards, on the 18th January.

Whatever credit Mr. Marsden might be disposed to give to certain pins of this declaration, in which the governor testified his respect for the individuals and societies engaged in missionary labours; yet with the conviction that Mr. Marsden felt that Mr. Campbell was the real author of the libel, he considered the declaration of "its having got admission into the Gazette from inadvertence, and from the great pressure of other business", to be unfounded, and he fully expected that he should be able to prove it. A general belief indeed existed in the colony, that Mr. Mr. Campbell was the author of the letter signed "Philo Free"; and hardly any person who had been acquainted with Mr. Marsden, doubted of the application of the most offensive parts of the libel to him.

In obtaining the affidavits of these facts that were necessary to support the indictment, it appears that Mr. Marsden met with some difficulty. Mr. Jenkins, a retail merchant in Sydney, after observing the language of the letter of Mr. Judge Advocate Wylde, already alluded to, yielded to the caution that it enjoined, and declined making any affidavit.

Mr. Marsden has stated in his evidence, that one of the magistrates declined taking, at a later period, the affidavit of G. Williams, from apprehensions of the consequences, unless the affidavit was read in open court when the magistrates were assembled; and Mr. Hannibal M‘Arthur also declined it, alleging that the subject of the indictment did not arise within the limits of his jurisdiction at Paramatta.

The affidavits, however, were at last made before Mr. Judge Advocate Wylde and Mr. Wentworth. These affidavits, containing the declarations of George Williams the compositor in the office in which the Sydney Gazette was printed, were not sworn until the 24th April 1817, which was three days after the filing and receipt of the information against Mr. Campbell in the office of the clerk of the peace.

Mr. Marsden and his advisers not thinking it safe to submit the evidence of this man to the observation of any individual whatever until the trial should take place, the information against Mr. Campbell had been kept back until the session of the Criminal Court was about to commence; and Mr. Marsden did not transmit the depositions that he had received in support of the information until the 25th April, two days before the session opened.

The information against Mr. Campbell was drawn by Mr. Marsden's solicitor, Mr. Moore; and in the evidence of these gentlemen there is a pointed contradiction to the declaration of Mr. Judge Advocate Wylde and his father, the clerk of the peace, as to the fact of any solicitation or intimation having been given by them or either of them, that the information should be drawn in one of their offices. Whatever doubts may exist as to the suggestion of Mr. Wylde, sen. to Mr. Moore I think it very improbable that his son, the judge advocate, would have consented to undertake the responsibility of drawing the information after the discussion that had taken place between himself and Mr. Marsden.

Mr. Moore was very anxious that the trial should take place during the session of the Criminal Court that commenced on the 27th April 1817; and he has stated, that he was first informed by Mr. Judge Advocate Wylde, on presenting the information to him, that Mr. Campbell had a right to traverse until the next session of the Criminal Court after that in which the information was filed.

Be that as it may, Mr. Campbell availed himself of this right by the advice of his solicitor Mr. Garling; and after he had given bail for his appearance, the trial of the information was deferred until the next sessions of the Criminal Court, that took place in the month of October. By this delay a change unexpected, but not unimportant to the interests of the parties, took place in the members of the Criminal Court, by the removal and departure from the colony of the 46th regiment, and the arrival of the 43th.

The officers of the former regiment had been some tune in the colony, and had become acquainted with the characters both of Mr. Marsden and Mr. Campbell, whereas the officers of the 48th regiment came to the trial of the indictment under an entire ignorance of it, or of the application of the libellous matter to the character and conduct of Mr. Marsden.

Previous to the trial Mr. Marsden, having thought it advisable to obtain the assistance of another solicitor, retained Mr. Amos, who, after attending one consultation, gave up his brief on the day before the trial took place. As this abrupt retirement of Mr. Amos from the cause had been imputed to an apprehension of the consequences of giving his assistance in the crimination of an officer so nearly connected with the government as Mr. Campbell, I made some inquiry into that circumstance; and, although the death of Mr. Amos soon after my arrival in the colony, deprived me of the benefit of his evidence, it appears that Mr. Moore was senior in rank to Mr. Amos, and as the latter had not approved of the course of proceeding that had been adopted, or that was intended to be pursued, and had only been consulted when it was too late to make any change in it, he declined any further assistance.

The trial of the information took place at Sydney on the 21st of October 1817, and the members of the court consisted of Lieutenant-colonel Cimitiere, Major Druitt, Captain Morisset, Captain Parry, Lieutenant Cuthbertson, and Lieutenant Leroux.

Previous to the day of trial, the judge advocate had intimated to Mr. Moore, Mr. Marsden's solicitor, the doubts that he felt in admitting the opinions of witnesses upon the application of the libellous matter complained of and his wish that Mr. Moore should be prepared to show authorities for admitting such evidence.

The trial of the information lasted three days, and contrary to the suggestions of the judge advocate, as to the necessity of his appearance, Mr. J. T. Campbell persisted in his determination to remain in court.

The judge advocate's report of the trial is contained in the Appendix. It is stated by him to be copied from his own notes; and, as in the progress of the cause, certain points of evidence arose which the judge advocate has also stated could not be noted down at the time of trial, he has added to the report some remarks of his own noon the nature of those points, and the evidence that the court permitted to be given respecting the connection and duties of Mr. Marsden as agent of the Missionary Societies, as well as upon the determination of the court not to admit as evidence the opinions of individuals of the application of the libel to Mr. Marsden.

Respecting the first point, Mr. Judge Advocate Wylde has reported that he first intimated to the members of the court the objection that there was to receive in a criminal proceeding for libel against Mr. Marsden, as agent of the Missionary Societies in England, any evidence of the nature of Mr. Marsden's transactions as their agent; but that he yielded, as he was bound to do, to the wish expressed by the members of the court to enter upon that inquiry, more especially as the result was likely to afford to them the means of forming a judgment of the malice that had prompted the writing and publication of the libel. This course of inquiry was at first opposed by Mr. Marsden's solicitor as contrary to the rules of proceeding in indictments for libel, and as affording to the party indicted all the benefit or a plea of justification; but as Mr. Marsden had defied every inquiry into the nature of his own conduct as agent to the Missionary Societies, and openly professed and manifested a wish for the fullest investigation that the court could make, the course of inquiry into that point obtained all latitude, and from the active part that be took in it appears to have derived every assistance from the judge advocate himself.

Respecting the second point, I must observe that the judge advocate had required from Mr. Marsden the sworn declarations of individuals of the application of the libellous matter to Mr. Marsden, as an indispensible preliminary to receiving the information; but as he was so much impressed with the general objection to the nature of such evidence, he felt it his duty at the trial to oppose the admission of it. He stated it as his opinion, that witnesses should not be allowed to depose that, in their opinion, particular passages of a libellous publication applied particularly to the party that complained of it; and that the utmost that they could be allowed to state was, the facts and circumstances upon which their belief of the application was founded; and that it was for the court to determine from those filets, or from the context of the libel, whether the application of it, as stated in the innuendoes of the information, was justly made out.

Upon a perusal of this report, and upon reference to the practice observed in cases of libel where the allusions are obscure, of receiving the declarations of individuals as to their belief of the application and meaning of such allusions, justified as it is by the frequent impossibility of obtaining satisfactory evidence on those points from any other sources, I have not been able to coincide in the reasons upon which Mr. Judge Advocate Wylde objected to receive it in the case of Mr. Marsden. The doubts that he himself first entertained of the application of the libel to Mr. Marsden showed the necessity of having recourse to the opinions of others who had more perfect knowledge of the circumstance; and who with that knowledge could declare their opinion that the allusions in the libel applied to Mr. Marsden, and could apply to nobody else.

It appears by the judge advocate's notes, that the declarations of Mr. Marsden upon this subject were received; bat other witnesses were prevented from stating their opinion of the application of certain passages of the libel to him, although they were permitted to state the circumstances upon which the court might come to that conclusion.

The principal witness, that deposed to the Act of publication as well as to the hand-writing of the libel, was a person named George Williams, who was a compositor in the office of the editor of the Sydney Gazette, and who swore that he saw Mr. Campbell deliver the manuscript, from which he afterwards composed, into the hands of the editor, George Howe, who delivered it to him.

Williams also swore, that he believed the manuscript to be in the same handwriting as other papers that had come from Mr. Campbell's office, but that he had never seen Mr. Campbell write. This evidence of Williams was met by the positive contradiction of George Howe, the editor of the Gazette, who was said to be present when Mr. Campbell came into his office; and much discredit was thrown upon the evidence of Williams, by imputing enmity and animosity to him for having been dismissed from his situation of compositor, in consequence of refusing to insert an advertizement of Samuel Terry in the Gazette, disclaiming any support to a petition to the House of Commons against Governor Macquarrie, and offering a reward of 100l. to any person who would give information of the author of such a report. For his refusal on this occasion, as well as from having signed the petition himself, Williams had been dismissed from his situation in the printing office by an order of Governor Macquarrie; and as he had attributed his dismissal to the interposition and influence of Mr. Campbell, it was alleged by Howe that he had ever since entertained and expressed the greatest animosity against him. He underwent a long and severe cross-examination on these points, which was principally conducted by Mr. Judge Advocate Wylde, who considered that there was such slight evidence of the hand-writing of Mr. Campbell, and that evidence so little deserving of credit, that he acceded to the objection that was made by Mr. Campbell's solicitor to have the libel read.

The other members of the court, however, were of a different opinion. The letter of Mr. Campbell to the judge advocate was put in as evidence against the former, and read without objection.

The libel was then read; and after one count of the information had been struck out on account of a variation between the words "let" and "led", that was held to be fatal as varying the sense, and another had been given up by the solicitor for the prosecution for the same reason, evidence was tendered by him for the purpose of discrediting one of his own witnesses whose testimony had been unfavorable. To this evidence Mr. Judge Advocate Wylde objected, and quoted the authorities to show that it was not admissible. The court, however, resolved to receive it.

After the evidence for the prosecution was closed, Mr. Garling, the solicitor for Mr. Campbell, delivered a long address to the court, in the course of which he indulged in some allusions of a personal and rather indelicate nature to the consequences that attended the intercourse of the missionaries and their agent, Mr. Marsden, with the natives of the South Sea Islands; a course of observation that was quite at variance with the sentiments of respect that had been publicly professed for the labours of the missionaries, and not very consistent with that which was clue to the office of principal chaplain of the colony.

The defendant having offered no evidence, the court on the third day of trial retired to consider of their verdict, and after deliberation found that the defendant, Mr. Campbell, was "Guilty of having permitted a public letter to be printed in the Sydney Gazette, which tended to vilify the public conduct of Mr. Marsden, the prosecutor, as the agent of the Missionary Societies for propagating the gospel to the South Seas, which it was in the power of the defendant, in his official capacity as secretary to his excellency the governor of the territory, to have prevented the publication of."

As the judge advocate felt and was sensible that objections might be made to the terms and import of this verdict, he considered that it was better to reserve all observations upon the case in open court until sentence was pronounced, or until the objections were disposed of.

On the 27th October Mr. Moore stated to the court, as well as in a letter to the judge advocate, that, as Mr. Marsden professed to be actuated by no vindictive feeling towards Mr. Secretary Campbell, it would be proper to solicit of the court that no judgment should pass, and requested a respite of the judgment until he should have an opportunity of consulting him; but when, on the 29th October, Mr. Campbell's solicitor pressed for it, that the public might not misunderstand the grounds upon which the judgment was waived, Mr. Moore stated that it was Mr. Marsden's intention to bring an action for damages in the Supreme Court, where the defendant might have an opportunity of pleading and proving a justification.

The court having considered that the prosecutor waived the judgment, the judge advocate had not feel himself called upon to make any observations; and the court having further determined that the defendant should have leave to depart, his recognizances were discharged. Here all proceedings against Mr. Campbell in the Criminal Court terminated. Mr. Marsden, however, having felt that some imputations and reflections had been cast upon his character as agent of the Missionary Societies, in the address of Mr. Campbell's solicitor to the Criminal Court, and as it had been alleged that he had indicted Mr. Campbell in that court from an apprehension of justification in the Supreme Court, determined with the advice of his solicitor and friends to bring an action against Mr. Campbell for damages. He brought his action accordingly. The defendant pleaded the general issue; but his solicitor having stated that he should apply to the court to put off the trial, on account of the absence of some witnesses that he expected from New Zealand, the solicitor of Mr. Marsden, who was very anxious to bring on the trial for the purpose of being able to transmit the result to England by a ship then preparing to sail, subscribed a paper, by which he agreed to admit at the trial "that the Missionary Societies fur promoting Christian Knowledge and Religion had been the means (of course unintentionally) of introducing in the islands of the South Seas, the art of distillation, and the use of musquets and cutlasses; and that pigs, pine trees, and New Zealand flax, had been articles of barter between the natives of the said islands and the missionaries at those places." The defendant's solicitor thus endeavoured to obtain the advantage of a plea of justification, without the acknowledgment of the authorship of the libel, which that plea must necessarily have carried with it.

The trial for the libel took place in the Supreme Court on the 1st of December 1817, and a verdict in favour of Mr. Marsden was given for the sum of 200l.

At my request to the judge of the Supreme Court, I was furnished with his report of the trial, in which, whatever doubt might have existed amongst the members of the Criminal Court respecting the authorship of Mr. Campbell, was now set at rest by the declaration of Michael Robinson, the principal clerk in his office, who swore that he saw the manuscript of the libel before it was printed; that it was in Mr. Campbell's hand-writing, and that he had told him (Robinson) that he had copied it from a manuscript that he received on the same morning, but which was so illegible that he was obliged to transcribe it for publication.

In the course of this trial, the judge of the Supreme Court differed entirely with the judge advocate in the view that he had taken of certain points of evidence that arose in both cases.

Mr. Justice Field felt no difficulty in admitting the opinions and belief of witnesses as to the application of the libel to Mr. Marsden, and justified it by every day's practice in England, and by a reference to the authority of Fitzgibbon. He also refused to admit the letter of Mr. Campbell to the judge advocate, that had been read in the Criminal Court; and thought that it would be better for the purposes of criminal justice in the colony, that the judge advocate should be allowed to treat whatever information came to his knowledge as the officer of the crown, intrusted with some degree of discretion as to the exhibition of criminal charges, as protected from disclosure. Mr. Justice Field further differed from the course of proceeding in the Criminal Court, by refusing to admit a cross-examination of the plaintiff's witnesses, or to receive the admission that had been made by his attorney, as to the truth of the libel, where no justification had been pleaded. This difference of opinion between the judges of the colony, together with the different issue of the two trials had not fail to make a strong impression on the public mind; and although the doubts that seemed to have been entertained upon the question of Mr. Campbell's authorship and hand-writing by the members of the Criminal Court, were removed by the new evidence of that fact, that had been so unexpectedly procured in the Supreme Court, yet the terms in which the verdict of the Criminal Court was expressed occasioned a considerable degree of surprise.

My attention having been drawn to this circumstance, I felt it my duty to request of the judge advocate an explanation of the view that had been taken of the ease by himself; as well as by the members of the Criminal Court, when they came to deliberate on the verdict.

To this request the judge advocate assented; and in his examination has stated, that although the members did not think there was sufficient evidence to find Mr. Campbell guilty of writing or publishing the libel, yet that they considered the act of allowing the insertion of the libel in the Gazette, when Mr. Campbell was censor of the press from which it issued, to be one for which Mr. Campbell was criminally responsible.

Before I make any comments either upon the nature of this proceeding, or of the authority exercised by the judge advocate in exhibiting criminal charges, it may be necessary to advert to the relative situations and motives that appeared to actuate both Mr. Marsden and Mr. Campbell in the unfortunate transaction that I have just now detailed, as I was enabled to collect them either from the parties themselves, or from other sources of information.

Disputes, partly of a personal, and partly of a more public nature, bad frequently taken place between Mr. Secretary Campbell and Mr. Marsden, from the year 1814 to the year 1817; in the course of which Mr. Campbell having observed the pertinacity with which Mr. Marsden adhered to his opinions, and having thought that he showed great indifference for all projects that did not immediately originate with himself, or that he was not permitted to guide and direct, was not disposed to give Mr. Marsden that credit for disinterested motives, or for that genuine philanthropy and benevolence that had obtained for him a very unqualified share of praise in certain publications in England, in which the proceedings and the success of the Missionary Societies were noticed.

Mr. Marsden was likewise observed to be engaged in a variety of occupations which, though useful in themselves, were rather of a secular than of a religious kind, and did not altogether consist with the dignity of the ecclesiastical character.

The circumstances that more immediately led to the publication of the libel, originated in the formation of a society at the end of the year 1813, that took place on the suggestion of Mr. Marsden for the protection of the natives of the South Sea Islands against the outrages of the crews of European or colonial vessels; for the support of the claims of the natives on the masters and owners of the vessels who brought them to New South Wales; for taking care that justice was done to their persons and property; and for promoting the civilization of the South Sea islanders, by disseminating amongst them the principles of Christianity, and instructing them in simple and useful arts as long as they remained in the colony.

Governor Macquarrie was patron of this society; Mr. Deputy Commissary General Allan was appointed treasurer; the Rev. Mr. Marsden, secretary; and Mr. Jenkins, collector of the contributions.

The proceedings of this society consisted of certain inquiries that took place at the instance of some of the members, before the magistrates, into acts of violence committed on the persons of the South Sea islanders, by sailors and others; but as the magistrates found that they had no authority to punish these offences, the efficacy of the society in promoting one of the principal objects, was much diminished.

A few New Zealanders were taken care of by Mr Marsden at his house at Paramatta, and upon a refusal of the treasurer, Mr Allan, to pay some of the expenses that had been incurred in their maintenance, because they had not received the previous sanction of a committee, Mr. Marsden ceased to pay any further attention to the proceedings of the society. None in fact took place, except at a subsequent meeting, that was called for the purpose of ascertaining, and distributing to the member, the amount of the funds that they had subscribed and paid into the hands of the collector, and which it was asserted that Mr. Marsden had once proposed and attempted to apply to the purposes of the different missions that he superintended in the South Seas. After some inquiry I did not find that this assertion was confirmed.

Previous to the formation of this society, Governor Macquarrie had proposed to Mr. Marsden to form another, for the civilization of the native black inhabitants of New South Wales. Mr. Marsden, though not averse to this proposition, stated to Governor Macquarrie, that from his observation of the character of the black natives, he had great doubts of the success of any scheme of civilization in weaning them from their natural habits, or subduing their aversion to restraint. He, however, suggested, that if any attempt was to be made, the best prospects of success would be afforded by instructing the younger natives in common agricultural operations, and making them sensible of the benefits immediately derivable from the cultivation of the earth.

Governor Macquarrie was led to infer an indifference, at least, on the part of Mr. Marsden to his schemes; and as he happened to be absent at New Zealand when the establishment was formed at Paramatta, no interest either in its direction or management was assigned to him. As he was resident chaplain at that place, Mr. Marsden regarded the omission of his name and services as a studied neglect on the part of the governor, and he therefore never paid any attention to its concerns, and never visited the school.

It had been customary for Governor Macquarrie to assemble as ninny of the black natives as could be collected together at Paramatta on one day in the year, with a view to conciliate them, and to testify the interest that the British government took in their improvement.

Although the members of the committee only were specially invited to attend on these occasions, several of the inhabitants were in the habit of coming to witness the ceremony, which was certainly an interesting one. At that which took place art Paramatta in December 1816, Mr. Campbell, when accompanying Governor Macquarrie, had observed that Mr. Marsden was engaged in a visit to a house in the town, that they passed on their way to the assembly of the black natives. Considering this to wear the appearance of a studied insult to the governor, as well as to the institution that he patronized, he gave vent to the warmth of his indignation in the letter of Philo Free, the libel for the composition and publication of which he was afterwards tried.

The investigation and punishment of such an offence, in a civil officer holding a high situation in the colony, could not Phil to attract attention to the conduct of every person engaged in that duty, and it was an event that might be said to put to a severe test the exercise of the judicial functions of the Criminal Court. It was partly with this view, and also in consequence of a belief that I felt justified in entertaining that your Lordship had not received information of the result of the trial in the Supreme Court, or of Mr. Campbell being the author of the libellous letter of Philo Free, that I have been induced to enter into such a lengthened detail of the proceedings and circumstances that had led to it.

In submitting my opinion to your Lordship upon the conduct of Mr. Judge Advocate Wylde, I have to consider it in three points of view: In that of law-adviser to the governor of New South Wales; in that of public prosecutor, and in that of member of the Criminal Court, invested with no greater share of authority than the other members, but virtually exercising an influence over their decisions by the manifestation of own opinion, or by a reference to the authority of others.

The character in which the judge advocate's name appeared to be connected with this transaction, I have stated to be that of law-adviser; for although the terms of his commission do not appear to warrant that construction, yet it was as natural for the governor to expect, as for the judge advocate to presume, that in such a remote colony as that of New South Wales, and in the absence of any regular appointment, representations should be made by him to the governor upon all subjects in which legal advice was necessary.

The judge advocate had every reason to believe that the came course had been pursued by his predecessor, and he felt desirous to afford the same assistance to Governor Macquarrie whenever he deemed such assistance necessary. It was in the first of these characters, therefore, that Mr. Judge Advocate Wylde submitted to Governor Macquarrie the propriety of testifying, in the most public manner, his disapprobation of the letter of Philo Free, and drew up the order that was published in the Gazette.

By the same channel the public were informed that the governor's attention to this publication had been drawn by the judge advocate, and that communications had passed respecting it between the governor, the judge advocate, and Mr. Campbell, which led the governor to express his regret that, by inadvertence and pressure of business, the objectionable parts of the publication had escaped the observation of his secretary.

I have already stated to your Lordship my reasons for thinking that the latter part of this declaration was premature; and I have now further to observe, that it would have been expedient that all mention of the judge advocate's name, either in any preliminary discussion respecting the question of Mr. Campbell's responsibility, or in having called the governor's attention to the letter, should have been avoided.

The connection of the judge advocate's judicial character with that of law-adviser or public prosecutor would not have appeared: and Governor Macquarrie would have received the credit which was justly due to him, for an early and spontaneous disavowal of all participation in any attempt to injure the cause or character of the Missionary Establishments in the South Seas.

I have no doubt that Mr. Judge Advocate Wylde entertained a hope that the disavowal of the governor, thus publicly made, would satisfy Mr. Marsden; and that all further proceedings would be dropped, when it was declared that the insertion of the libel in the Gazette was owing to inadvertence on the part of Mr. Campbell. Before, however, the judge advocate proceeded to act upon such an expectation, and before the faith of the governor was pledged to it, it would have been right as well as prudent to have consulted Mr. Marsden, and to have ascertained whether the excuses of inadvertence and pressure of business had brought the same conviction to his mind that they had done to that of the governor. By allowing his name to be annexed to a public disavowal that had been made after a consideration of those excuses, and upon the faith of them, the judge advocate found himself placed in the awkward predicament of having afterwards to try their validity.

The next character in which the conduct of the judge advocate is to be considered is that of public prosecutor.

In the earlier stages of the proceeding the judge advocate appears to have been impressed with a strong desire of effecting a reconciliation between Mr. Marsden and Mr. Campbell, and has explained in his evidence the efforts that he made to produce that result. In making these efforts the judge advocate had one interview with Mr. Campbell, and not being able to anticipate any successful result to his efforts of mediation, he from that time ceased to have any communication with him, and equally withdrew, as much as he found it possible, from further interview with Mr. Marsden. It is, however, to be regretted that the judge advocate should have thought it necessary to transmit Mr. Campbell's first answer to his inquiry, respecting the authority under which the letter of Philo Free had appeared in the Gazette, to Mr. Marsden. The remarks contained in that letter were not of a conciliatory kind, or calculated to appease the irritation that the appearance of the libel had excited; and this circumstance may he stated as some justification of the warmth of observation in which the Reverend Mr. Marsden indulged in the second letter that he wrote to the judge advocate.

The judge advocate very justly deprecated the further discussion of a subject calculated to inflame animosities between two individuals filling such high and respectable offices in the colony; but in his anxiety to avert it, he does not appear to have been fully aware of the difficulties in which his acts of mediation, however well intended, might place him, when he came to fulfil the more disagreeable duties of public prosecutor and judge.

In fulfilling the former duty, Mr. Marsden has complained that the judge advocate appeared to decline the prosecution of Mr. Campbell, because he seemed to consider that more substantial affidavits were necessary than Mr. Marsden at first was willing to afford. The witness by whose evidence Mr. Marsden intended to prove the publication and delivery, as well as the composition of the libel by Mr. Campbell, was in a very dependent situation; and had been dismissed from a lucrative one, in the office of the editor of the Sydney Gazette, in the month of February 1817, by an order of Governor Macquarrie.

Mr. Marsden has stated in his evidence the reasons that induced him to postpone the filing of the affidavit of this witness, until the information against Mr. Campbell was filed. Of the validity of those reasons he was the best Judge; but he cannot allege that there was reluctance on the part of the judge advocate to receive or admit the information against Mr. Campbell, when he acknowledges that he detained in his own hands the evidence by which it was to be mainly supported. The difficulty that the judge advocate experienced at first, in perceiving the application of the libel to Mr. Marsden, might well arise from his having lately arrived in the colony, and from being a stranger to the discussions and disputes between Mr. Marsden and Mr. Campbell; but I confess that I have not been able to acquiesce in the reason for augmenting that difficulty, in giving cautions and admonitions at such an early period of the prosecution to those by whose opinions alone this difficulty could have been removed.

It does not appear that, in the exercise of his duty as public prosecutor, the judge advocate had recourse to the measure that is usual in prosecutions for libel, of offering indemnity to the editor of a newspaper on condition of giving up the real author, and Mr. Marsden has complained of this as a farther want of co-operation or assistance.

However consistent it might have been with his duties as public prosecutor to have adopted this measure, I cannot agree with Mr. Marsden, that in the situation in which he was likely to be placed, of sitting in judgment upon the editor of the Sydney Gazette, the judge advocate would have consulted the dignity of that office, by entering into terms of compromise with the editor before the trial. Mr. Marsden having undertaken to prosecute him for the libel against himself, it was competent for him to have made such an offer, and to have acted upon it there was no necessity for the judge advocate to undertake the duty, and the non-performance of it affords no presumption of reluctance to give due assistance to Mr. Marsden.

Mr. Marsden has further complained of the refusal of the judge advocate to issue subpœnas to his witnesses, except at his expense. This circumstance appears to have arisen from the recent establishment of the office of clerk of the peace, in the person of Mr. Wylde, sen. who considered himself entitled to the same fees that are charged in England for subpœnas in prosecutions that are conducted by individuals.

It does not appear, however, that the fees that were so demanded were ever paid by Mr. Marsden.

The conduct of Mr. Judge Advocate Wylde during the trial of the information is much complained of by Mr. Marsden, and it does appear that the length and severity of his inquiries into his conduct as agent of the Missionary Societies, and of the nature of the terms of purchase of the brig Active by his own funds, were certainly protracted beyond the bounds that the ordinary practice in cases of libel has justified. The course of inquiry was to all appearance reversed, and Mr. Marsden's, and not Mr. Campbell's conduct seemed to be the object of crimination. The advice, or rather the opinions, delivered by the judge advocate in the course of the trial, and the points in which they were adverse to the prosecution, have been stated; and I have also had occasion to explain my reasons for not concurring in the opinion that was held by the learned judge upon one very important point. In the opinions upon others that he is stated to have delivered in court, he was justified by the strict practice of the English courts, and he was clearly justified in stopping the attempt made by the prosecutor to discredit his own witness when he found that his evidence was unfavourable to him. As to the verdict that Mr. Judge Advocate Wylde delivered as a member of the Criminal Court, I certainly do not conceive that either himself, or any other member of that tribunal, can now be made responsible for it; nor in my investigations upon that subject did I conceive it my duty to throw that responsibility upon them. Upon the evidence as it stood in the Criminal Court, and upon the unsupported declaration of the witness Williams, no satisfactory proof of the guilt of Mr. Campbell was established; and although the judge advocate did not succeed in convincing the minds of the officers who composed the Criminal Court, that moral evidence could not be allowed to operate in a case where legal evidence had failed, yet I do not conceive that he should be considered responsible for the terms of a verdict, upon which, although it would have been impossible to have sustained a judgment, or to have inflicted punishment consistently with the principles of English law, yet there was in other respects a conformity to the evidence and the facts as proved. Mr. Judge Advocate Wylde expressed to me a belief, that in conformity to the terms of the verdict the members would have been strongly disposed to have awarded punishment; but I do not find that he ever stated to them his opinion of the difficulties there would have been in supporting such a decision.

Respecting the influence exercised by the judge advocate over the opinions and deliberations of the members of the court, it is much to be regretted that the evidence, as well as the law applying to it, had not been recapitulated from the judge advocate's notes before the members retired. The practice of the court had certainly been otherwise; but in a prosecution of this nature, in the event of which the community naturally took a warm interest, and where it was important that the principles of the decision should have been known, it would have been very desirable that Mr. Judge Advocate Wylde should have followed the course that was adopted by Isis predecessor, Mr. Ellis on a memorable trial, in which very strong reasons existed for submitting to public observation both the opinions and the discretion of the presiding member of the Criminal Court, as well as for vindicating in the eyes of the community the course that he himself had taken.

As I found that much had been said, both at the period of the trial and subsequently, of the vindictive spirit that Mr. Marsden had manifested. and of his reluctance to come to any terms of reconciliation with Mr. Campbell, I think it necessary to observe that Mr. Judge Advocate Wylde had himself acknowledged, in one of his later conversations with Mr. Marsden, that considering all the circumstances that had occurred he could not blame him for proceeding.

The occurrences that I have stated to have taken place at the trial in the Criminal Court were such as, in my opinion, completely to justify Mr. Marsden in the appeal that he made to the Supreme Court; and although an admission was made by his attorney, as to the transactions in which he had engaged on behalf of the Missionary Societies with the South Sea Islands, yet I do not think that any thing was established by that admission, which, if it had been made use of, would have impeached the character of Mr. Marsden or of the societies for whom he was engaged; and the authority both of Mr. Judge Advocate Wylde and of Mr. Garling, the solicitor of Mr. Campbell, may be appealed to in confirmation of that opinion. In the Criminal Court it was proved, that the Missionary Societies had sustained losses by the trade that they carried on with the South Sea Islands, and that although the active participation and zeal of Mr. Marsden in that, as well as his other undertakings, might have made him less sensible than he ought to have been to the impropriety of combining operations of a mercantile nature with the duties of his profession, yet I do not find that in this instance it extended further than the purchase of a vessel with his own funds for the benefit and for the purposes of the Missionary Societies. The general business and concerns of those societies were conducted by a mercantile house of the first respectability in Sydney, and I was not able to discover other instances in which Mr. Marsden was implicated to any greater extent on their account.

As these were the only points affecting Mr. Marsden's character that were attempted to be touched upon at the trial, I do not think it necessary at present to dwell upon any others, to which they might afford ground of observation; and I will only add that every opportunity was offered by Mr. Marsden at the trials to promote an inquiry into the merits of his conduct, and a bold defiance given to prove the truth of the assertions upon which it was attacked.

Upon the circumstances that affect the conduct of Mr. Campbell in this transaction, though more painful it is less necessary to dwell, as they must be easily collected from the detail that has now been given. It is equally to be lamented that he should have silently consented to the insertion of a public order in the Sydney Gazette by Governor Macquarrie, wherein he allowed him to assign reasons of inadvertence for an act that was afterwards proved to have been wilful; and that he should have allowed the feelings of indignation that had been to warmly excited in his own breast against Mr. Marsden to be displayed in the pages of a gazette, wherein he had hitherto to, well succeeded in controlling the indignant or violent feelings of others.

This sudden abuse of the power, that Mr. Campbell possessed over the press of New South Wales, was hardly more censurable than the attempt that was afterwards made in the same paper, and according to the declaration of Howe, the editor, with the concurrence of Mr. Campbell, apparently for the purpose of supporting the truth of the excuses of his inadvertence, and of showing the impossibility of his being the author of the letter of Philo Free. This extraordinary publication appeared in the Sydney Gazette of 1st November 1817, in the shape of "Comments on the Trial of Mr. Campbell". They are stated at considerable length, in consequence of a pledge that is said to have been given by the editor to afford to the public at a subsequent opportunity an account of the trial.

In giving this account the editor asserts, that in the Criminal Court the testimony of the witnesses had failed in establishing any of the points at issue, or in meeting the allegations set forth in the information. He asserts that the prosecution was left to rest on the letter that had been written by the defendant to the judge advocate in his official department; and "boldly appeals to the opinions of several persons who were present in court when the letter was read, who, without hesitation, acquitted him of the guilt or the culpability imputed to him, and who were quite unable to deduce from the letter one solitary circumstance that went to give a colour to the prosecution against him."

The editor denominates this letter, "Presumed Testimony". He then comments upon the verdict, which he terms a special verdict, and such as he did not consider that the law of England authorized a court now to give in eases of libel. He particularly alludes to the qualification that had been given to the character of the libel, and the presumption that it afforded, that, in the opinion of the court, the letter of Philo Free was not libellous; and concludes with the following passage: "Thus ended the first trial for a libel in this country; and if we may judge of the anxious manner in which the defendant sued for judgment, in order, as his solicitor stated, that the opinion of the court might go forth into the world, as to their sense of, and the share the defendant had in committing that offence, we think we may be at liberty to yield to the impression, that the defendant's feelings would have been more highly gratified had the sentence of the court been formally pronounced and record."

The judge advocate has stated, that he deemed the comments contained in this letter to be so improper, as to call upon Mr. Campbell's solicitor for an explanation of it. Finding that Mr. Campbell's solicitor entertained the same opinion of this letter that he did, and that it had been inserted without his knowledge or advice, the judge advocate directed him to prepare a statement for the purpose of correcting the account that had already appeared. Mr. Garling has declared that he sent this account to the Sydney Gazette office for insertion, and that it was refused.

By the evidence of Howe, the editor of the Sydney Gazette, it appears that this comment on the trial was in the handwriting of Michael Robinson, the chief clerk in Mr. Campbell's office, but it had been seen by Mr. Campbell previous to insertion.

The insertion of this document, and the representations it conveys of the proceedings in the Criminal Court, together with the attempt to lead the opinion of the community, by imputing sentiments to the members which they had never expressed either in the court or out of it, must be considered as an aggravated abuse of the power exercised by Mr. Campbell over the colonial press. For the abuse of that power Mr. Campbell has suffered. The pecuniary satisfaction that he was condemned to make, and the costs for which he became responsible in the civil action, as well as in the criminal information, appears by the account of Mr. Garling to amount to the sum of 4,176l.

It is deeply to be regretted, that a person who had for so long a period maintained a high character for integrity and honour, and had justified the confidence with which Governor Macquarrie had always treated him, should so unfortunately have given way to his feelings towards Mr. Marsden, as to have exposed him, as well as the respectable societies with which he was connected, to the degrading suspicions that were attempted to be fixed upon them in the letter of Philo Free.

Great as this abuse was, of the power exercised by Mr. Campbell over the colonial press, it was deeply aggravated by his having misled Governor Macquarrie respecting the nature of the circumstances under which the letter had appeared, and by inducing him to proclaim to the public his belief that the insertion of the letter was an act of inadvertence, when Mr. Campbell must have felt conscious that it was one of direct and deliberate hostility.

I do not believe that Mr. Campbell was consulted respecting the terms of Governor Macquarrie's disavowal of the libel, but he must have seen it before it was published in the Gazette; and although it was not incumbent upon him to afford a more full explanation than that which he gave in his letter to Mr. Judge Advocate Wylde, yet he was bound in candour to Governor Macquarrie to have warned him of the possible consequences of such a declaration, when he was on the point of giving a public testimony of his belief in the truth of it.

Mr. Marsden has considered that it was the duty of Governor Macquarrie to have accompanied the termination of this affair with the immediate dismissal of Mr. Campbell from office.

Having stated the circumstances that have been proved against Mr. Campbell; I do not think it incumbent upon me to enter into the reasons that might have restrained Governor Macquarrie from manifesting such a mark of his disapprobation; but I think it only due to both to state, that with the exception of the circumstances just detailed, I never heard of any act of Mr. Campbell that did not justify the favourable opinion with which Governor Macquarrie had always regarded him; and that it would have been difficult to have found a public officer in the colony of New South Wales Upon whose zeal and ability, and upon the strength of whose personal attachment, he could have so uniformly relied as upon that of Mr. Campbell.

Of other trials that have taken place in the Criminal Court, there are three from which the popular objections to its present structure may be inferred. That which occurred in the month of July 1813, for the murder of William Holmes in the town of Sydney, by two officers of the regiment then quartered there, is certainly open to that inference. The court before whom the officers were tried was composed of the officers of the same regiment, and Mr. Ellis Bent presided as judge advocate.

The evidence taken on the trial is very fully stated in a report that was furnished to the Gazette by Mr. Ellis Bent, followed by a recapitulation; and a perspicuous statement of the principles of law that applied to the case, and which Mr. Ellis Bent (departing from his ordinary practice) delivered to the members in the presence of a crowded court, before they retired to deliberate on their verdict. The act of violence to the person of the demised was clearly proved to have been committed by the parties accused; but the medical gentlemen who were examined, declared, that after a minute examination of the body shortly after death, no external marks of violence to which they could attribute that event were visible; and it was stated by one of them, that the appearances they observed might have been caused by an Anion of blood in the lungs, in consequence of sudden and violent passion.

These opinions must have had a strong influence on the minds of the court, and must have appeared to them to justify an acquittal of the charge of murder; for all the other circumstances were clearly proved, and pressed very strongly against the parties accused. They were found guilty of manslaughter, and punished with six months imprisonment.

A similar feeling may be said to have prevailed in a trial in the Criminal Court, that was furnished by Mr. Judge Advocate Wylde, in which it appears that a prosecution was maintained by a convict holding a ticket of leave, against an officer of the garrison, for a violent assault, in consequence of the convict having written an insulting letter to the officer, and containing some reflections upon the whole corps. The circumstances of this trial are given at length in the report of the judge advocate, and are again mentioned in his evidence. He represents the case to have been a trying one for the feelings of the court, and that they felt a reluctance in coming to a decision upon the guilt of the accused party; it certainly appears that the sum in which he was fined was not commensurate with the aggravated nature of the assault.

Another case was mentioned to me as an instance in which the operation of the particular feelings of the members of the Criminal Court, was manifested in the amount of a fine imposed by them for an assault.

The prosecutor was the son alone of the magistrates of Sydney, and the defendant a very young man, and the son of a person who had formerly been a convict. It appears that in consequence of a reference to that circumstance by the prosecutor, expressed in very coarse and unmeasured terms, and in the public street, to the defendant and his companion, whose origin was similar to his own, the defendant took an opportunity of revenging that affront on a subsequent day, by assaulting the prosecutor with a horse-whip. The assault was proved, and the defendant was fined in the sum of 100l. and ordered to enter into recognizances to keep the peace, himself in 200l. and two sureties in 100l. each. The fine of 100l. was at the suggestion of the judge advocate reduced by Governor Macquarrie to 50l. but even at that amount it appears to have been excessive, and has been generally attributed to the operation of a certain degree of prejudice that the members of the court had imbibed against the convict classes as well as against their descendants.

Another inconvenience arising from the present structure of the Criminal Court, and the existence or suspicion of a certain degree of interest in the event of the prosecution, is stated in the petition of the inhabitants already alluded to. It is alleged that there is no right of challenge to any of the members appointed by the governor to act in the Criminal Court; and on one occasion it appears that an officer who was chief engineer, and who had detected and given information against a master sailmaker of the dock-yard in the embezzlement of stores and canvas, was a member of the Criminal Court, before whom the man was tried. The officer, with a due impression of the incompatibility of the situations in which he was likely to be placed, of prosecutor, witness and judge, had applied to the judge advocate to be excused from attendance as member of the court; but upon being informed by the judge advocate that there would be no objection to receive his evidence in that capacity, the officer consented to remain a member, and gave his evidence at the trial. It is hardly necessary to observe, that this inconvenience might very easily have been avoided by an application to Governor Macquarrie to issue a new precept, and to insert the name of another officer.

Although I am not aware of any other instances that have occurred in the criminal proceedings of the colony within the last ten years than those that I have just mentioned that might justify the objections of the inhabitants to the present structure and character of the Criminal Court, and that there existed a general disposition amongst them to do justice to the honourable and impartial feelings that had generally appeared to regulate their proceedings, yet I certainly found amongst all ranks a desire to see the trial by jury introduced both in civil and criminal proceedings, whenever the increase of population should be found to have justified the measure, and whenever the feelings of animosity that now separate certain classes of the inhabitants from each other should be found to have subsided.

The principal and most popular objection to the present system of criminal judicature, is the combination of so many different functions in the office and person of the judge advocate, and the influence which the performance of those duties must necessarily have upon a mind, however well prepared or well disposed to resist it.

This objection, I conceive, it will be an easy matter to remove by the appointment of an English barrister to the office of attorney general, whose duty it should be to receive all depositions from the magistrates, to prepare indictments, and to conduct prosecutions; and I need hardly add, that the judge who may have to preside in the Criminal Court will think it right to abstain, as Mr. Judge Advocate Wylde has latterly done, from all preliminary cognizance or investigation of criminal cases, and to leave that ditty, as in England it is left, to the discretion and activity of the magistrates.

The military character and composition of the Criminal Court of New South Wales are objected to by the inhabitants in their petition; and I find that upon this subject they have adopted the language and sentiments of the late Mr. Ellis Bent, who, in addressing the Earl of Liverpool upon the civil and criminal judicature of the colony, as they existed in the year 1813, rested his objections upon the analogy that was observed in the constitution of the Criminal Court to that of a court martial, and upon the military aspect and character in which its proceedings were viewed by most of the inhabitants. Mr. Bent further states, that the Criminal Court did not command that veneration, awe and respect that ought to attend upon a court of justice; and that the numerous, free, respectable and affluent inhabitants were rendered amenable to a jurisdiction originally intended for the summary investigation of the crimes of convicts alone. While I admit that several of the members of the Criminal Court, who in their turn of service are called to sit in judgment upon very important cases, are frequently too young for that duty, and that to the feelings of all it is one that is now become very repugnant and always unpleasant, yet, I certainly consider that the character, qualifications and sentiments of the higher ranks of officers who have served upon these courts, are both superior to those of the best selected juries in England, and greatly so to those who might be selected for such a duty in New South Wales.

The officers composing the late and present garrisons of Sydney, are brought much lea into contact with the inhabitants than formerly; they associate with them less, and are further removed from those local disputes and jealousies to which all small societies are liable, and from the influence of which the colony of New South Wales is less exempt than almost any other of the remote dependencies of the empire. I do not conceive therefore that the deliberations of military men, appointed by rotation of service, and without favour or interest towards the parties, guided by professional knowledge and experience, and in most cases considering themselves bound by its direction, can be entitled to less respect than if they were committed to the judgments of those from whom juries in New South Wales, if suffered to exist upon the principle that regulated their service in England, must necessarily be selected.

Your Lordship will have perceived by the reference to the cases that I have thought it necessary to make, that the process of the Criminal Court of New South Wales is by no means a summary one. The form of indictment, the advantage to the prisoner of technical errors in it, even the right of traversing upon misdemeanors, and motions in arrest of judgment, are all par meal, and perhaps with more strictness than the circumstances of the several cases may have justified. The influence of the judge advocate in the decision of points of law in criminal cases, forms a portion only of the power that is exercised by every British judge in other colonies and the degree in which it is possessed and exercised by the judge advocate in New South Wales, has depended upon the estimation in which his opinions have been held by the members of the court. It would be desirable that the authority of determining upon points of law should be altogether confined to him, and that discussions or deliberations upon it by the members should be avoided. The duty that would thus remain with them, would be that of deliberating and determining upon points of fact, after a recapitulation of them shall have been made by the judge advocate, in the presence of the prisoner, for the purpose of giving him an opportunity of correction; and after a distinct exposition of the law, as applying to the facts, shall have been made in the presence of the public.

Having thus far considered the objections that have been made, both under the authority of Mr. Ellis Bent as well as the petitioners of New South Wales, to the present structure of and form of proceedings in the Criminal Court, I will beg leave to call your Lordship's attention to other defects that are considered by Mr. Judge Advocate Wylde to be inherent in it, and which are stated at very great length in answer to an inquiry that I addressed to him in the month of November 1820, both upon the present defects of the charter of justice, and the several provisions by which he was of opinion that those defects were susceptible of remedy. The judge advocate first mentions the power that is possessed by the governor of New South Wales of determining the periods at which the Criminal Court shall sit, and that of naming the members in that court and the Civil Court—the inconvenience occasioned to the officers of the garrison, and sometimes the interruption of the military duties, by their attendance on the Criminal Courts—the small number of concurrent voices required to give a capital sentence—the absence of any right of challenge—and the subjection of the exercise of that right to the will of the governor.

I should not do justice to the sentiments with which the judge advocate has always viewed the combination in his own person, of the great power of initiating or declining prosecutions, if I had not request your Lordship's attention to that part of his observations in which he describes their inconvenience, and suggests their repeal.

The judge advocate is of opinion that the absence of local feelings and information in the officers who compose the Criminal Court may not be without its inconvenience, as they are less sensible than they might justly be to the peculiar dangers to which the property of the inhabitants of New South Wales is exposed, and less acquainted with the character of the witnesses and the impressions under which they are in the habit of giving their evidence. He, however, does justice to the compassionate feelings as well as the honourable and conscientious motives that have appeared to influence the members of the Criminal Court in the discharge of their duties.

In addressing himself to that part of my inquiry that pointed to the possible improvement of the Criminal Court in its present form, the judge advocate is of opinion that the judicial establishment of New South Wales should consist of three judges, one of whom should always preside in the Criminal Court; that all questions of law should be decided by the court; and that questions of fact should be decided by certain respectable inhabitants of the colony, not less than eight in number, to be appointed from time to time by the governor.

He suggests a further provision for the transfer of his present duties of prosecutor to the office of attorney general, and with a reference to one of the judges in case that officer should decline the prosecution of any criminal matter submitted to him.

In answer to the inquiry made by me, whether in his opinion the distinctions between the convicted and unconvicted portions of the community in the colony are sufficiently done away to admit of the impartial consideration of a jury composed of both classes, of the case of an individual belonging to the one or the other, the judge advocate states it as his opinion, that in the effective administration of criminal justice convict jurors cannot, as a body, make a separate cause from the free. He thinks that no measure would tend so gradually to reduce that spirit of division that at present so much exists between the classes, and to a greater degree amongst the convicted, while the certain and growing excess of free jurors would, in the judge advocate's opinion, and to use his own terms, "keep the convict class almost from sight, and prevent the influence of their particular feelings upon the verdicts of the courts." He is further of opinion, that as the convicts have always been admitted as witnesses in the colonial courts without objection, and as they appear to him to be employed in the most serious, intimate, and confidential concerns of the free inhabitants, he sees no reason why they should not be admitted to act as jurors.

Your Lordship will find, on making reference to the Appendix to the Report of the Parliamentary Committee of 1812, on the subject of transportation, that many authorities, amongst whom was the very respectable one of Mr. Ellis Bent, concurred in stating that there existed at that time in the colony of New South Wales, and as far back as the year 1811, a sufficient number of respectable persons amongst the free and the convicted chimes from whom a competent number of jurors might be taken; and it was upon these authorities that the introduction of the system of jury trial was submitted by the Committee to the consideration of his Majesty's government.

The inhabitants of New South Wales, who joined in the petition that was transmitted to your Lordship in the year 1819, have repeated the expressions of anxiety with which they have always been said to record this great alteration in the judicial system. In the Appendix is to be found the names of the persons who supported the petition. They are numerous, and may be said to comprise the most respectable and the most opulent of the inhabitants of the colony, including as well the free as the higher ranks of the convict classes. Upon inquiry amongst the former I found that there were many who, although favourable to several measures stated in it as advantageous to the interests of the colony, declared that they did not join in the wish that had been expressed for the trial by jury. Several of them, amongst whom I may state one that was most active in promoting a meeting in one of the populous districts of the colony, declared to me that although he was desirous of seeing the trial by jury established, "he did not think that the colony was yet ripe for such a system".

At the meeting that took place at Sydney for the consideration of the objects of the petition, I was informed by Sir John Jamieson, who acted as chairman, that he had distinctly declared, that in petitioning for trial by jury he never meant or wished that it should be granted upon any other principles than those upon which it exists in England; and Mr. Judge Advocate Wylde has adopted the same Principle in his answer to my inquiries upon the defects of the charter of justice.

Without any precise information as to the nature and operation of that principle, it was generally understood at the meeting, when the subject was discussed, that in addition to the qualifications required in England as to property, no convicted persons were deemed admissible to the dice of juror in New South Wales, whose term of service had not expired, or that had not been absolutely or conditionally remitted by the governor. Supposing therefore that this principle was adopted, there would arise precisely the same necessity of reference to the dates as well us to the nature of their original convictions, as existed on the question of their right of personal action, for the purpose of determining by the best evidence that the several cases admitted, the precise periods at which the disabilities of conviction for felony or misdemeanor had ceased, or the precise nature of the crimes by which those disabilities had been first created; and unless some secondary means of proof in the one case should be admitted, or the removal of the disabilities of conviction should be made complete, on receiving the governor's remission of sentence in the other, the introduction and operation of the principle of the English law, in the formation of juries in New South Wales, and by the admission of persons who had been convicts to discharge that function, would lead to anomalies and exceptions which, however allowable in Great Britain, could not, I think, be justly admitted there.

It is hardly necessary to refer to the numerous authorities by which it is established, that a conviction for felony, or a conviction for such misdemeanors as render a man infamous, make him incompetent to discharge the office of juror. It has, however, been doubted by a very learned person in treating upon the effect of pardon, whether it has the power of restoring the capacity of juror that had been lost by conviction. The older authorities upon this subject are contradictory; some of them maintaining, that although the King's pardon may remove from a convicted person the crime as well as punishment, yet that it does not imply any moral restoration; while others maintain that a pardon under the great seal makes a man a new creature, and removes his incapacity for all purposes whatsoever. Such, probably, would be the determination now upon the effect of the pardon, produced by a service of the term of transportation, upon offences that come within the Act of 4 Geo. I. c. 11, and by a pardon under the great seal.

If, however, the observations that I have before addressed to your Lordship upon the incapacities of convicted persons to sue are correct, those in New South Wales who have been convicted of petty larceny, and have served their terms, and all those whose terms have been remitted either by His Majesty under pardons of lower degree than that of the great seal, or by the several governors of the colony under any pardons whatever, as well as alt those persons transported for offences not within the terms of the 4 Geo. I. c. 11, are by law incapacitated from serving on juries.

Taking, therefore, the terms upon which the inhabitants of New South Wales were understood to consent to the admission of convicted persons to the office of jurors in that colony, your Lordship will see that they would exclude some of those classes that, perhaps, of all others, are the most worthy to be admitted; and that they would include many, whose pretensions and qualifications, as arising from conduct in the colony, are the most suspicious and least to be favoured.

Such I conceive to be the state of the law, and its diversified operation in the removal of the incapacity to serve the office of juror. It has led to incongruities that, perhaps, were not contemplated, as they were not likely to occur or to be felt in England, where the incapacities of conviction rarely affect those classes of the population from which jurors are selected, and where, from the multitude of unconvicted persons, they are lost or unobserved and it is only since the class of convicted and remitted persons in New South Wales became so numerous and their pretensions to the rights and privileges of free persons have been so much encouraged, that the question has been brought into discussion at all.

The language of the certificates, however, that are given by the governor's secretary to convicts, whose terms of service are found (on reference to the indentures of assignment) to have expired, must have greatly contributed to induce a belief, that the parties holding them "were restored (according to the terms of the certificate) to all the rights and privileges of free subjects", and have confirmed them in a belief, that in those rights algid capacities that of serving the office of juror was included.

After this statement of the inconvenience as well as injustice that would arise from a strict application of the law of England to the colony of New South Wales, in the removal of this or other disabilities of conviction, it is important to consider upon more general grounds the expediency of admitting persons who have been convicted, and whose terms of service have expired, or have been remitted by the governor of the colony, to the important office of deliberating and determining upon the lives and properties of their fellow subjects; and still further to consider the expediency of attempting to unite them in this duty with persons whose legal competence to discharge it has never been questioned, and who for that reason as well as for others that have been explained in my former Report, feel a greater or less degree of repugnance to any association with them.

The consideration of this question will much depend upon the relative numbers of the two classes; the gradual extinction of the sense of moral superiority that naturally exists in the minds and feelings of persons who have respected the law, over those who have violated it; and lastly, upon the dangerous sympathy and compassion that must long remain in the breasts of convicted persons for the same crimes for which themselves have suffered, and the equally dangerous aversion and prejudice that may exist in the minds of the unconvicted, when sitting in judgment upon the crimes of a class of persons so greatly below them. With a view to ascertain the numerical competence of the free and unconvicted inhabitants of New South Wales to undertake the duties of jurors, in case the adoption of that mode of trial should be deemed expedient, I requested the magistrates of the several districts to make returns of the several inhabitants, distinguishing those that had come free to the colony, those that had been born in it, and who were above the age of twenty-one, and resided upon property of their own; and for the sake of convenience, I requested them to add a return of the persons in their respective districts, who had formerly been convicts, stating whether they were married or single, and resident upon property of their own, and adding general remarks upon the respectability of their characters and conduct. The returns were not sent to me exactly at the same period; but I find that between the 21st January and the 10th June of the year 1820, there were in the several districts of New South Wales, two hundred and forty-two persons who had come free to the colony, exclusive of females, and eighty-seven who had been born in it above the age of twenty-one, resident upon property of their own, and who in other respects might be fairly considered as competent to discharge the office of jurors.

I observe a considerable difference in the return that was made of the number of those born in the colony and in the districts of the Hawkesbury, that was transmitted by the same magistrates in the year 1819 to Sir John Jamieson, who was chairman of the meeting of the inhabitants, already adverted to. In that return, I find that class of persons in those districts amounted to seventy-five, nearly the whole of them are stated to be freeholders; and in the return dated on the 15th May 1820, I find the number reduced to forty-five. I have reason to believe that this last return was made with greater particularity than the former, as every opportunity was given, and every desire expressed on my part to the magistrates, to make it as correct as possible.

Respecting the number of persons that come free to the colony, it must be observed that many of them live at a great distance from the town of Sydney, and that their removal thither, and separation from their estates and dwellings, would always be a subject of apprehension as well as of objection. Many likewise are too much elevated above the condition of the ordinary description of offenders, that come before the Criminal Court, to be selected as petty jurors; and a considerable portion of those who are resident in the town of Sydney, and amounting to fifty-one, consist of the officers of government.

The collective number of those born in the colony, and resident upon their property, amounts to eighty-seven; and this class, although quite equal and perhaps superior in natural endowments to the youthful population of the same classes in other countries, has had but few opportunities of education in the earlier periods of the colony, and cannot be said to have had the benefit of good example to counterbalance that deficiency. In moral feelings, as well as in moral conduct, however, they are not to be ranked as inferior to the el of persons in England, from whom petty juries are generally selected, and I am far from thinking that any dangerous sympathy for crime is to be apprehended in them. The absence of this class of persons from their estates during the several sittings of the Criminal Court, which according to the present rate of proceeding last from ten days to twenty, would be a source of incalculable injury and expense to them.

There is yet a third class of persons described in the returns of the magistrates as resident upon their properties in the several districts, from whom, it is maintained by some, that jurors may be selected as morally competent, without any reference to their legal incapacity.

By the returns that have been furnished me, I find that the number of male convicts in New South Wales, whose terms of service have either expired or been remitted, and who are resident on their own property, amounts to the hundred and eighty-seven; and from the description that I have given of them in my former Report, founded as it was upon the opinions of others to whom I felt I could trust, assisted by my own observation, your Lordship will not be led to conclude that they form a class of persons from whom jurors, either for civil or criminal purposes, could generally, or with propriety, be selected. To the number returned in this as well as the other classes, there no doubt may be made exceptions, in the propriety of which many, perhaps most, of the free inhabitants would concur; and, supposing that the number of these exceptions may be fairly stated to amount to one hundred, there would thus remain a body of four hundred and nine persons in New South Wales, more or less, competent to discharge the office of jurors.

After making this statement, I need not observe how entirely I dissent from the opinion that was expressed by the late Mr. Ellis Bent, at the early period of 1812, respecting the practicability of impannelling grand and petty juries in New South Wales for the trial of offences. The only exception that he appears to have recommended was that which very nearly exists at present, of crimes of inferior description committed by convicts; these, as your Lordship will have observed, being referred to the cognizance of the magistrates.

Governor Macquarrie, in answer to your Lordship's inquiry, made at a rather later period, gives it as his decided opinion that convicts whose terms of service have expired or been remitted, should take their turn of being jurymen in common with persons who have never been convicts; and "that when once a convict becomes a free man, he should, in all respects, be considered on a footing with every other man according to his rank in life and character; in short, that no retrospect should in any case be had to his having been a convict."

Mr. Justice Field is of opinion, that at a more advanced period, and after the introduction of a larger body of free settlers, and of the maturity of those born in the colony, persons who have been convicted, but whose terms have either been remitted or have expired, should indiscriminately be admitted to perform the functions of jurors, without reference to the nature of their crimes.

Your Lordship has already seen that the incapacity of many to serve as jurors is one of the various effects of the criminal law as it now stands, and still further varied by the operation of the law of pardon upon those convicts whose sentences have been remitted by the governors of New South Wales.

By the alteration that I have taken the liberty to recommend in my former Report, this as well as other disabilities would be removed in the colony from remitted convicts, as long as they remained in it, immediately on receiving the governor's pardon; for I have proposed that such an instrument should have the local effect of a pardon under the great seal; but as your Lordship has seen, that, in the present state of the law, the capacity of being a juror is not restored in many cases of inferior crimes, by the service of the term of transportation, it will be necessary to resort to some legislative declaration, by which this as well as the other disabilities may be removed.

The only exception that I would propose to this enactment, is that of the commission and conviction of felony by a convict during his term of service in the colony, or after the remission of that term by the governor. In such cases, as proof is given of augmented and continued criminality, I should propose that the effect of the colonial sentence upon it should create an augmentation of punishment; and that all felonies committed by convicts during their term of punishment, or by remitted convicts after their remission, shall be held to deprive them of all future personal right of action, and of serving as jurors, and should also create a forfeiture of all lands granted to them by the crown, or field by other title.

I am well aware that although the justice of this exception may be acknowledged, it may be asserted that the mere service of a term of transportation for seven years is an imperfect test of moral competence for discharging the office of juror. It may possibly constitute one amongst other reasons for abridging the number of persons that may hereafter be transported for that term to the colony of New South Wales; but considering that the length of the term of service, in the absence of all other evidence, is a presumptive proof of the degrees of guilt, it does not, upon this principle, seem fair to exclude a class, in whose favour the presumption arising from a transportation for the short twin of seven years is always so strong.

As permanent residence upon land in the colony, and industry in the cultivation of it, may be generally considered to be as fair tests of civil and moral competence as any that can be obtained in New South Wales, and as it forms a part of the qualifications of jurors in England, it would be expedient that, with the exceptions that have been already made, their eligibility to the office in New South Wales should be founded upon the quantity of land that they hold, or that has been granted to them, and in the last case upon the proportion of land that is cleared and cultivated. By the present regulations a certain proportion is required to be cleared as a condition of tenure, and the adherence to that rule should constitute one ground of eligibility to the office of juror. I should propose, as a further qualification to the same class of persons, the free and unencumbered possession of not less than fifty acres of land granted, or of a house of the value of 100l. Viewing it as a prospective measure, it will give time to persons who have undergone transportation for short terms to acquire those feelings that are invariably generated by the possession of property, and that serve to form the strong and perhaps the only link that connects the interests of the convicted classes with those of the unconvicted.

It has been observed, that amongst the remitted convicts that are of longer standing in the colony, that there is no want of disposition to join in measures for the common defence and security of property; and it has frequently been urged, and is stated in the report of Mr. Judge Advocate Wylde, that the same feeling that would unite these persons and the free classes in common measures of defence, against the violence of the convicts, would make them equally ready to join in verdicts for their condemnation. In the trial of convicts for capital offences, I think that the description of persons now mentioned would not manifest any improper degree of reluctance to condemn; on the other hand, it is by no means clear that those cases would receive such impartial and unimpassioned consideration from a jury composed of the free classes and of the older remitted convicts, as they do now under the present constitution of the Criminal Court. It is not, however, for these cases alone that the composition of the juries in New South Wales is to be calculated. With the increase of the population there will be an increase in the crimes of all the classes that compose it, and then will arise the most severe trials for the impartiality of the juries; and full scope will be given for the operations of those feelings that have lately exasperated the two classes, from which, as being the most numerous and opulent, juries would most naturally be selected.

Until these feelings shall have subsided, I should think it equally inexpedient and dangerous to submit the property or the life of a free person in New South Wales to the verdict and judgment of a jury of remitted convicts, as I should that of a remitted convict to a jury of free persons.

Attributing the existence of these feelings to other causes than those assigned by Mr. Justice Field, I cannot help agreeing, with him in the conclusion that he has made in his very able statement on this subject, in answer to my inquiry on the defects as well as the improvements of the charter of justice: "That so long as these feelings are nourished and inflamed, a convict jury will lean against a yet unattainted prisoner; and a free jury will revenge the purity of their order upon an already attainted one."

Upon the whole, I am of opinion that the period is not yet arrived at which the system of trial by jury can be safely or advantageously introduced into the civil and criminal proceedings of the colony. The best in of advancing that period will be found in the encouragement and improvement of the institutions for the education of the rising generation, in affording the means of their early separation from the vicious habits mid bad example of their parents, and from giving the most liberal and marked encouragement to their enterprizes and industry.

The union of this class with the free settlers that from time to time may emigrate from England, will be, more easily accomplished than that of free settlers with remitted convicts, or with those whose sentences have expired.

A certain degree of jealousy is found to exist amongst the immediate descendants of convicts and the free settlers; but I never observed, in more than one instance, a repugnance on the part of free persons to associate with them on terms of perfect equality; nor did I observe the existence of those rooted principles of disunion that have been so strongly exhibited, when attempts have been made to combine the other materials of the social edifice in New South Wales, in any public or in any useful institution.

The encouragement that may hereafter be given to free persons of respectable character to emigrate from Great Britain to New South Wales, will probably have a greater influence than any measure that can be adopted within the colony, in softening the asperity of feeling that now prevails there between the free and convict classes. Whatever repugnance the newly-arrived colonists may feel to an assimilation with the latter, they will not partake of the local prejudice and aversion that exists amongst the older inhabitants. With an increase in the numbers and respectability of the free and unconvicted inhabitants, the benefits of influence and example will be more strongly impressed upon the minds of the convicted classes, and feelings of aversion will give way to those of conciliation and mutual respect.

Having stated the several objections that have been alleged by the inhabitants of the colony to the present structure of their judicial establishments, and made reference to the cases or occurrences upon which it appeared to me that those objections were grounded, and having now submitted to your Lordship the reasons for withholding for the present that change in the system that the inhabitants of the colony have so earnestly prayed for, aim which, if it were safe or expedient, it is agreed on all hands it would be most desirable to concede to them, I shall proceed to submit to your Lordship a statement of the judicial establishment in Van Diemen's Land, and the circumstances that appear to require an early alteration and improvement in it. Previous to the date of the charter of justice granted by his late Majesty in the month of February 1814, and until the arrival of Mr. Deputy Judge Advocate Abbott in Van Diemen's Land in the month of February 1815, there had existed no authority for the trial or determination of civil causes in that settlement. Criminal Courts, composed of the judge advocate of New South Wales and six officers of His Majesty's forces by sea or land, might have been held in Van Diemen's Land under the commission dated the 2d April 1787, and under the same authority that had enabled Mr. Judge Advocate Bent to try at Sydney offences that were committed in Van Diemen's Land, and that enabled Mr. Judge Advocate Wylde to proceed to hold a Criminal Court there in the month of January 1821. It does not appear, however, that it was ever deemed necessary or practicable to resort to such a measure.

Mr. S. Bate, who had been appointed deputy judge advocate at Port Philip, a settlement that was intended to have been made on the southern coast of New South Wales, arrived in Van Diemen's Land in 1806, and accompanied the expedition that had been destined to Port Philip. Mr. Bates's commission of deputy judge advocate was strictly local; and Colonel Collins, who commanded the expedition and afterwards formed the settlement of Hobart Town, considered that there existed no power under which Mr. Bate could have held a Civil or Criminal Court in that place, and that some parliamentary authority was necessary to give these jurisdictions to Van Diemen's Land.

The Lieutenant-Governor's Court, for the trial of civil causes not exceeding in amount the sum of 50l., was not opened by Mr. Deputy Judge Advocate Abbott in Van Diemen's Land until the month of January 1816. The delay that took place in the long interval that elapsed between his arrival at Hobart Town in February 1815, is not very satisfactorily accounted for by the reasons assigned by Mr. Abbott; and the advantages to be derived from the presence of some person capable of giving advice to the lieutenant-governor of Van Diemen's Land, and of affording an opportunity to the inhabitants of recovering their debts by judicial process, were suspended without any apparent necessity. The want of a local court prior to 1814, and the suspension of action in the Supreme Court previous to the arrival of Mr. Justice Field, has led to an accumulation of debt and embarrassment in Van Diemen's Land that will be long and sensibly felt, and must eventually lead to a change of property whenever a court of larger jurisdiction shall be established.

In every year that has elapsed since the opening of the court in 1816, and until the end of the year 1819, four terms or sittings of the Lieutenant-Governor's Court have been held; and during this period it appears that one thousand five hundred and sixty causes have been entered, and out or these four hundred and seventy-seven have been withdrawn, and one thousand and eighty-three have been tried, in which verdicts have been obtained, amounting altogether to the sum of 18,848l. The number of causes that were entered in 1816 amounted to three hundred and nine, and in 1819 to four hundred and ninety-seven. The verdicts amounting in the first of these years to 2,580l., and in the last to 7,089l.

Out of the number of causes that have been tried at Hobart Town, there appear to have been forty-four in which both the plaintiffs and defendants were resident at Launceston or in the districts immediately contiguous to it; and there were also one hundred in which the defendants were resident there.

The inconvenience occasioned to suitors by the necessity of repairing from Launceston to Hobart Town with their witnesses began to be much felt in the year 1820; and it does not appear from the reasons stated by Mr. Deputy Judge Advocate Abbott, that there were any other than those of a personal nature that prevented the removal of that inconvenience by an occasional transfer of the sitting of the court to Launceston.

The journey from Hobart Town to that place may be accomplished in three days, but it is attended with expense, as well as some personal inconvenience, to those who are unable to bear the fatigue of travelling on horseback.

The Lieutenant-Governor's Court is composed of the deputy judge advocate, and two inhabitants appointed by the lieutenant-governor.

A return of the persons that have been so appointed is contained in the Appendix, and they appear to have been selected from the principal merchants and dealers of Hobart Town, with the exception of the first year, when Mr. Gordon and Mr. Humphrey, the magistrates, appear to have served during every term. Upon the propriety of these appointments, it has been the custom of Lieutenant-Governor Sorell to consult the deputy judge advocate; but upon one occasion, during a temporary suspension of their intercourse, it appears an appointment was made by Lieutenant Governor Sorell, which although the deputy judge advocate does not think he should have objected to, if it had been made known to him, yet I certainly think it would have been very desirable to have avoided. The person named to act as member of the court was a considerable merchant in Hobart Town, and had never till this occasion been appointed a member. It was, however, well known that he was at open variance with an individual who was defendant in an action that was to be tried before him, and who had made himself very obnoxious on many occasions to the lieutenant-governor.

In a place wherein the opportunities of selection were very limited, it cannot be expected that the inconvenience arising from the personal interest of one or other of the members can always be avoided. When they have occurred, the member of the court who was interested in the cause has retired; but the deputy judge advocate has stated that the influence of local feelings upon the proceedings of the court has been frequently perceptible; and that as soon as the appointment of the members has been made known in the Gazette, preliminary discussions have taken place between them, accompanied by anticipations of the merits of causes, that be has found to interfere with the impartiality of the decisions.

The proceedings of the Lieutenant-Governor's Court are regulated by rules and miens that were drawn up by the deputy judge advocate, and that are to be found in the Appendix.

The office of the court is open at all times for filing complaints and inning process. On application to the clerk of the judge advocate, a very slight and technical description is given to the nature of the complaint. If an appearance has been entered by the defendant, and upon return of the summons and writ, the cause is heard in its turn at the next sittings; and in case of the defendant's default, it is heard ex parte. Every person is allowed to appear and conduct his own cause, either as plaintiff or defendant; but it has been usual for parties who were unwilling or unable to undertake this duty for themselves to employ agents.

These persons have in all cases consisted of the higher clams of remittal convicts, who had acquired any knowledge of business; and Mr. Deputy Judge Advocate Abbott has allowed them to appear merely in virtue of the authority given to them by their employers, and of the partial advantages arising both to the court and to the suitors from their experience.

The deputy judge advocate bears testimony to the conduct of one of these persons, and it was also confirmed from other quarters; but the character that was thus given was much impaired, by an attempt that was made by the same individual, in conjunction with a convict attorney, during my residence at Hobart Town to possess themselves under very suspicious circumstances of the property Of a remitted convict who died suddenly, and upon whom they pretended to have large claims.

As late as the month of November 1821, no free professional person bad arrived at Hobart Town to practise; and I have been informed, that at a much later period the business has been chiefly conducted by remitted convicts.

The practice and procedure of the Lieutenant-Governor's Court has been conducted in a more summary and less complicated manner than in the other tribunals of New South Wales. Technical forms have been discouraged by the deputy judge advocate, and as the subjects of dispute have been hitherto of a very simple nature, they have not received or required the application of much professional learning.

As the trade and commercial dealings of Van Diemen's Land have made and were making a very rapid progress, the limited jurisdiction of the Civil Court began to be seriously felt. It was partially obviated by the inhabitants, by a system that they had adopted of breaking the amount of their debts, and taking several securities and obligations to the amount of 50l.; for the recovery of which they were under the necessity of bringing separate actions, though arising from one and the same came. For actions of a larger amount they had recourse to the jurisdiction of the Supreme Court, whose first sittings at Hobart Town were opened by Mr. Justice Field in January 1819, and renewed on the circuit that he commenced in the year 1821, about the period of my departure from the colony.

The scale of fees in the Lieutenant-Governor's Court in Van Diemen's Land, seems to be more justly proportioned to the amount of the subject in dispute than in the other courts of New South Wales. No fees are taken by the deputy judge advocate in causes under 5l. I observe, however, that in addition to the fee of 5s. charged for entering each cause above 5l. and under 10l., as well as in other causes, a fee of 5s. is paid to the deputy judge advocate's clerk for drawing up a form of the plaint, and taking instructions respecting the nature of it. The amount of fees charged in causes above 5l. and under 10l. is high. In an action brought by Messrs. Kemp and Gatehouse for the sum of 12l. and in which they recovered 7l. 15s. the costs of the court only, and exclusive of those paid to the provost marshal, amounted to 2l. 7s. 8d.

In the table of fees of the provost marshal of Van Diemen's Land, I observe that there is a charge for executing every writ above 51. and not exceeding 10l. amounting to 10s., and a charge of 14s. for all writs above that amount. This charge is high for writs executed in Hobart Town, but no proportionate allowance seems to be made for those that are executed at a greater distance.

By the return made from the office of the deputy judge advocate, it appears that the aggregate amount of fees received by him in four years, commencing the 1st January 1816 and ending the 31st December 1819, has been 1,791l. 7s. 4d.; and from the increase in the number and amount of causes that might be expected to take place in 1820, his fees in all probability amount to 600l., a sum equal to that of his salary. In this amount the fees received by the deputy judge advocate on detainer and upon the registration of deeds in his office are not included; they are very inconsiderable, and will be noticed when I come to consider the custom under which they have been taken.

The office of provost marshal in Van Diemen's Land was held provisionally by Mr. John Beamont, on the suspension of Mr. Martin Timms, who held it under a commission from his late Majesty. In 1820, the provisional appointment of Mr. Beamont was confirmed; and the duties of the office are now executed by hint in person, having previously been confided to Mr. Broadribb, an attorney under sentence of transportation, who acted as Mr. Beamont's deputy, and who, frequently employed convicts to execute the more laborious parts of the duty. These convicts were assigned to him and victualled by the crown, and afterwards received tickets of leave.

On account of the expense of sending these persons to Launceston, and the inconvenience that it would have occasioned to Mr. Beamont, (who then filled the office of naval officer), a bailiff was allowed to assist hint at Launceston. This person was also victualled from the King's store; the subsistence of these persons operating, pro tanto, as a diminution of the expenses of the provost marshal.

These expenses are stated both by Mr. Beamont and Mr. Broadribb to be very considerable, as the distance of the estates of the settlers front each other and from Hobart Town, made it always necessary to incur the expense of horse-hire. Mr. Beamont states that he has found much difficulty in obtaining the services of free people to do the duty of provost marshal, which as long as he held the naval office he was under the necessity of confiding to another. It appears that Mr. Broadribb receives half the fees of the provost marshal's office; but as Mr. Beamont upon being relieved from the naval office would be able and began to perform the duty himself, his profits may in future be expected to improve.

Sales of property taken in execution do not frequently occur, on account of the great sacrifices that they occasion to the parties, and the difficulty of making payments in cash. The loss, however, that is avoided by a public sale of the elects of the debtors, is experienced in another shape, by the disadvantageous terms at which their creditors receive their produce in payment. These creditors generally consist of the dealers at Hobart Town, who are all provided with stores and granaries for the reception of wheat from the settlers, and can thus afford to wait until an opportunity occurs of turning it into the government stores.

An instance of great oppression came under my personal observation near Hobart Town, where by means of a collusive sale of some grain, in which the deputy provost marshal had assisted, a powerful creditor had obtained an exorbitant profit, and nearly the whole of one year's crop of a poor settler was sacrificed.

The first opportunity that occurred to the inhabitants of Van Diemen's Land of having recourse to the jurisdiction of the Supreme Court, was afforded them by Mr. Justice Field, who, at the end of the year 1818, repaired to Hobart Town. As the solicitors of the court did not proceed at the same time, and some delay took place on their arrival, many causes were not sufficiently advanced to admit of their being tried, and others were hastily prepared, and brought to trial with insufficient instruction. Twelve causes, amongst which there were four of some importance, were tried; five were withdrawn; and thirty-three were commenced and afterwards postponed.

Nearly fifty causes were in preparation for trial at the end of the year 1820; and during my visit to Van Diemen's Land, I had frequent opportunities of observing the embarrassment in which merchants and consignees of cargoes were placed, from want of immediate recourse to a court of larger jurisdiction than that which exists under the present charter.

The difficulties and delays that occur in issuing process front the office of the supreme judge at Sydney, well as the vexation that has been practised by influence of parties in the execution of process when committed to the hands of the former provost marshal of Van Diemen's Land, have considerably lessened the advantage that the inhabitants would have otherwise derived from their applications to the Supreme Court.

Mr. Justice Field has stated in his report the difficulty that he has felt in putting the law in force at such a distance; and it is obvious that the long intervals that have taken place between the circuits of his court, have added to that difficulty; although I am not aware that it could have admitted of a remedy.

The want of a separate criminal jurisdiction in Van Diemen's Land has, however, been and is still more seriously felt than that of a civil court. All offences, that were committed by convicts, except that of murder, have been punished by a bench of magistrates at monthly meetings held at Hobart Town; and the punishments that they inflicted for heavy offences, consisted of transportation to the Coal River for three and five years, with condemnation to work there in chains; and flogging, to the amount three hundred lashes.

The punishment of free people and the investigation of their offences was referred to the Criminal Court at Sydney; and such has been the reluctance of the settlers in Van Diemen's Land to quit their property for the purpose of attending to prosecutions, and the expense, trouble and delay, that have occurred in bringing them to conclusion at Sydney, that compromises of the worst crimes have taken place for the purpose of avoiding that expense, as well as the certain ruin that would have followed from the absence of the owner from his property. From the year 1815 to the end of the year 1819, twenty-five persons only have been sent from Van Diemen's Land to Sydney for trial; of these, seven were charged with murder, and the others were persons who had been engaged in such extensive robberies, and of characters so notorious, that a sense of the advantages of their conviction counterbalanced the evils of the prolonged absence of the prosecutors, and the ordinary reluctance to repair to Sydney. An allowance is made there for the expenses both of prosecutors and witnesses who are sent to attend the prosecutions; and passages are found for the witnesses, both of the prosecutor and the prisoner; but as conveyances are not often at command from Sydney to Van Diemen's Land, the time consumed in waiting for them has sometimes exceeded two months. The number of witnesses that have been sent to Sydney to attend the Criminal Court, in the space of five years, has amounted to seventy-seven; and the accounts of their expenses and the allowances for them are checked by the judge advocate, and when approved by him are ordered to be paid from the police fund.

Under a very strong impression of the necessity of repressing the extensive robberies of sheep that were frequent during my residence in Van Diemen's Land, and having found that they were generally perpetrated by the remitted convicts, under the hope of impunity that was created by the difficulties and uncertainties of prosecution, I ventured to recommend to Governor Macquarrie, on my return from Van Diemen's Land, that Mr. Judge Advocate Wylde should be requested to repair thither to hold a criminal court, at the same time that Mr. Justice Field renewed the circuit of the Supreme Court. Governor Macquarrie willingly acceded to my recommendation; and after some delay, the judges left Sydney on the 3d of January 1821, in a vessel purposely hired for their accommodation.

Having received no further official information from Mr. Judge Advocate Wylde of the result of this measure than a return of the number of prisoners that he found committed for trial on his arrival at Hobart Town, I am not able to state to your Lordship whether the good effects that I had anticipated have been realized. On reference to the return of prisoners committed for trial in February 1821, I find that out of one hundred and sixteen persons, seventy-nine were convicts, and thirty-seven were free either by servitude or remission of sentence.

On the 3d February sentence of death was passed on twenty-five prisoners; and on the 28th April, ten out of this number were executed, soon after the arrival of Governor Macquarrie at Hobart Town.

Amongst the offences that stood for trial, there were certainly several committed by convicts that might have been referred to the cognizance of the magistrates; and there were some grounds for believing that the number of offenders had been designedly swelled, for the purpose of manifesting more clearly the necessity of a local criminal jurisdiction.

The gaol at Hobart Town had been very much crowded with prisoners previous to the arrival of the judges in Van Diemen's Land; and on the day of their arrival four of the most desperate offenders had effected their escape from it. The evils, however, arising to the settlement from the unchecked commission of crime, and from the extensive schemes of plunder in which the remitted convicts and those whose terms of service had expired were thus tempted to engage, together with the temptation to personal redress of civil injuries that is held out to the free inhabitants, as well as strangers, from the distance and long absence of any controlling judicial authority, I consider to be very clearly established; and as these evils admit of very partial and insufficient correction from the occasional and annual circuit of the judges (if even it should have been renewed in the course of this year), I have no difficulty in recommending to your Lordship the early establishment of a separate civil and criminal judicature in Van Diemen's Land, as a measure essential to its tranquillity and to the prosperity of its inhabitants.

Before I proceed to submit to your Lordship the several points in which I conceive that the provisions of the present charter of justice are defective or insufficient, I will briefly notice the exercise of legislative authority, to which resort has been made by the several governors of the colony at different periods, either in the enactment of new regulations, or in the modified application of the laws of England.

Mr. Judge Advocate Wylde has informed me, that by the desire of Governor Macquarrie he undertook the compilation of the several orders and regulations that had been issued by the governors of the colony, and had made some progress in that work, when he found himself interrupted by the increase of business in the Criminal Court. These orders embrace a great variety of subjects, chiefly relating to the police of the town and country—the imposition of tolls—the regulation of the prices of provisions purchased by government, as well as the modes of payment for such supplies—the regulation of convict labour—of the value of the colonial currency, and the rate of interest on money. Prohibitory and penal enactments have been likewise extended by the same authority to the private distillation of spirits—to meetings of tine inhabitants—to the introduction of spirits without the payment of duty—the cutting of timber without leave, and to certain acts of trespass committed on the property of government.

These enactments have been issued either in the form of orders or proclamations; and in later periods when they have been issued by the advice of the law officers, they have generally assumed the latter form.

I have already had occasion to advert to the notice that has been taken in judicial proceedings of some of these orders, and their obligatory effect upon the inhabitants of the colony. They have gradually increased in number and importance; and as they have never been collected or published in any more authentic form than in that of the Sydney Gazette, and some of the orders were only communicated to the public separately before the Sydney Gazette was established in the year 1803, great difficulty was experienced by Mr. Judge Advocate Wylde in obtaining any regular or authentic series of them. An alphabetical abstract of such orders as he had been able to collect previous to the period of my departure from the colony is to be found in the Appendix, together with a reference to the dates of their publication in the Sydney Gazette.

During the administration of Governor Macquarrie most of the proclamations and orders that contained any important enactments have been prepared and issued by the advice of the judge advocates, and sometimes by that of the judge of the Supreme Court; but it appears that these officers have not always concurred in the views of expediency or policy upon which the proclamations were issued. And upon one occasion Governor Macquarrie appears to have issued an order respecting the inclosure of lands and fences, without consulting either of the judges; but that after learning front them the circumstances that rendered a compliance with it impracticable, the governor immediately adopted the suggestion made by Mr. Justice Field, of the necessity of issuing a proclamation on the following week for the purpose of correcting it.

The object that the governor had in view was to afford encouragement to the inclosure of lands, and protection to the owners from vexatious demands for real or pretended damage. The means of effecting this object had been submitted to a meeting of the magistrates of the colony in the year 1816. It had been recommended by that meeting that the rates of poundage for cattle that were distrained and impounded for damage on cultivated lands should be reduced, and it had also been recommended by the magistrates that no person should be held to be entitled to any compensation for such damage, unless the land that had sustained it should have been inclosed with a good and sufficient fence. Mr. Judge Advocate Wylde had attended this meeting, and had informed Governor Macquarrie that however desirable this measure might be as an encouragement to the inclosure of lands, yet that the courts of justice would not be able to conform to it as a principle of decision, in considering any question of trespass that might come before them; and that the law of England did not require the previous inclosure of lands as a necessary or indispensible condition for the recovery of damage done to them by cattle.

A sense, however, of the advantages to be derived from the general adoption of fences and the inclosure of lands, as well as the prevention of vexatious and oppressive charges for damage, induced Governor Macquarrie to issue a government and general order, wherein, after fixing the pound rates at a reduced scale, and declaring "that as ground sown with grain should be sufficiently fenced to secure it against the trespass of cattle, it was ordered and directed that, in conformity with the principles of decision prevalent in England, no damages should be demanded or receivable for trespass committed on cropped or cultivated lands, unless such lands be inclosed with a good and sufficient fence, at least equal to a three-railed mortise fence, or one composed of two rails and a ditch."

As the terms of this order appeared to Mr. Justice Field to be contrary to the principles of English law, and to exclude all consideration of the wilfulness or inadvertence of trespass, he transmitted to Governor Macquarrie the draft of a proclamation, with the masons for issuing it, which the governor immediately published on the week following. This proclamation recites the injury and vexation to which certain of the inhabitants of the colony were exposed, by having their cattle distrained for damage alleged to be done to their crops by settlers who would not inclose their plantations, but who too often kept them open for the purpose of extorting such damage, and that it would tend very much to the advantage of the public if such trespasses and damages were more frequently tried and determined in the respective courts of judicature. The proclamation then directs that the provost marshals of the territory and its dependencies should appoint deputies for the purpose of making replevin of cattle and goods distrained, and should have power to take bonds from the owners of the cattle in a sum equal to their value, and conditioned to prosecute the action of replevin with effect and without delay; and that if the bond should be forfeited, the avowant (or the person distraining the cattle) might bring an action in his own name; and that in such action it might be lawful for the courts by rules or orders to give such relief to the parties on such bond, as might be agreeable to justice—the rule or order operating as a defeazance of the bond. The terms of this proclamation are in conformity to the English statutes that have been passed upon the subject of actions of distress and replevin, and they restored to the colonial courts the right of considering, the question of damage, which by the governor's order had been excluded in all cases of trespass committed upon lands that were not fenced. Although this was certainly the effect of the proclamation, and that in this respect it repealed the governor's order, I did not perceive that any alteration was made in the latter document, in the subsequent publications that appeared in the Sydney Gazette.

A list of the orders and proclamations that have been either advised or drawn up by Mr. Judge Advocate Wylde, is contained in the Appendix. They relate to the alteration of the currency that took place in the year 1816; the suspension of the authority of Mr. Jeffery Hart Bent, as judge of the Supreme Court. The proclamation, in which it was announced that no mitigation of capital punishment would take place in cases of killing the government cattle in the Cow Pastures; the proclamation respecting the registration of deeds, and the regulations respecting hawkers and pedlars.

The proclamations that originated with Mr. Justice Field consisted of one that was issued for compelling probate and administration within six months from the death of the party, for making provision for barring dower, and the confession of release before the judge advocate; the proclamation already mentioned as to replevin, and a proclamation for the better execution of the duties of provost marshal and coroner. Mr. Justice Field also prepared two proclamations at the instance of Governor Macquarrie, for the enforcement of the English statute respecting the jurisdiction of, magistrates in wages and contracts for labour in husbandry under 10l.; and a general proclamation relating to the penalties that had been annexed to the colonial regulations, and giving power to the magistrates to enforce the recovery of them.

The tenor and provisions of these last proclamations were strictly conformable to those of the English statutes; and the object of the last proclamation, dated 21st November 1818, was to indicate to the magistrates the method of enforcing and recovering the fines and penalties that had been or should hereafter be enforced by any of the orders or proclamations issued by the governors of the colony, many of which, although containing penalties, had failed to state the mode in which they were to be recovered or applied. One moiety of the penalties was declared by the new proclamation to be payable to the governor, to be applied as he should think proper; the other moiety to the informer. A power was also given to the magistrates to commit the offender to gaol until satisfaction should be made; and in default of sureties, to commit a person accused of any breach of the regulations until the charge should be heard. This proclamation was considered by Mr. Justice Field to be necessary to give efficiency to the authority of the magistrates in the enforcement of the colonial regulations; but it does not appear that either in this, or in the proclamation that gave jurisdiction of magistrates over wages and contracts for labour in husbandry, Mr. Judge Advocate Wylde concurred. In the first case he considered that the authority was too extensively given, and in the latter his objection seems to have arisen from not having received a correct impression of the object and tendency of the proclamation.

Mr. Judge Advocate Wylde has, however, equally with Mr. Justice Field, been impressed with the necessity of supporting the legislative authority of the governor of the colony, in as far as it extended to local regulations, and in as far as the spirit of those regulations was not repugnant to that of the law of England. They further seemed to consider, that the degree of severity in which the local regulations of the colony were found to exceed those of similar provisions in Great Britain, was a point of discretion which must of necessity be left to the supreme controlling authority of the governor; and in this sense it is, that Mr. Judge Advocate Wylde has declared that the orders of the governors of the colony were equally obligatory as acts of the British Parliament.

A case of resistance to a prohibitory order that had been issued to the military sentries, enjoining them to prevent any persons from taking females on board the vessels in the harbour without a pass from the naval officer, was punished by a heavy fine of 50l. sterling on a free person. It appeared that this person, when in the act of accompanying a free woman and a native of the colony on board a ship that was lying at the end of the King's Wharf and was shortly to proceed to England, was stopped by the military sentry, who in obedience to his orders demanded the pass for the woman. The person who accompanied her being ignorant of the authority under which the sentry demanded the pass, and being incensed by his unexpected resistance, presented a pistol at the breast of the sentry, making use at the same time of language of defiance. A pass from the naval officer was afterwards obtained, but the individual was prosecuted for an assault upon the sentry before the Criminal Court, and was fined in the sum of 50l.

Although the violence with which the attempt was made by this individual to force his way to the vessel was wholly unjustifiable and merited punishment, yet it does not appear that the prohibition was contained in any public order, but in one that had been issued in a military brigade order, and the inconvenience of this mode of issuing the prohibition, together with the difficulty experienced by the sentries in distinguishing between tree and convict females, has upon more than one occasion given rise to some complaint. The necessity of the regulation, however, appeared to me to furnish a sufficient reason for its continuance; and it is one of those prohibitions that are rendered necessary in the town and harbour of Sydney, as well as in other harbours of New South Wales, as long as male and female convicts shall continue to inhabit them.

With regard to the other proclamations and orders that I have adverted to, and that have been advised by either of the judges, your Lordship will observe that they contain very few provisions that are not analogous to those of British statutes; although I think that in one instance it would have been more prudent to have abstained from giving a general authority to the magistrates to enforce the fines and penalties contained in all the orders and proclamations that had antecedently been issued by the governors, more especially as those orders had not been collected, as some of them were obsolete or had been repealed, and when it had become almost impracticable to make a reference to them.

As the practice of issuing detainers from the judge advocate's office to persons leaving the colony constitutes a portion of the judicial control that is exercised in it, I will take an opportunity of submitting it to your Lordship's attention in this place.

The regulation itself was of very early date in the colony; and in the year 1805 an order was issued by Governor King, requiring the masters of vessels before they were allowed any communication with the settlement, to give bond in the sum of 500l. with two sureties in the sum of 50l. each, not to take away any person whatever, without the governor's certificate, if a convict, of having served his or her term of transportation; and if a free man or woman, of there being no detainer lodged.

The secretary of the governor was ordered not to deliver a certificate under the governor's hand to leave the colony, unless the name of the party had been set up at the door of the Court House at Sydney and Paramatta, and at the store door at the Green Hills, Hawkesbury, for a week previous to the ship's leaving the Cove.

By a subsequent order, issued in the month of April of the same year, the applications for these detainers against persons leaving the colony were to be nude in writing to the governor's secretary; and by a further order, dated in November following, it was directed that no claims or detainers would be allowed against persons who were advertized to depart, after the expiration of tea days from the date of the advertizement, unless they should have remained longer than twenty days from the expiration of the first ten. For every certificate of no detainer, the secretary's clerk was allowed to charge a fee of 2 s. 6d. On the 10th February 1810, these precautions were renewed in an order issued by Governor Macquarrie; and it was required that the certificates from the judge advocate of no detainer being lodged should be dated at least eight days subsequent to the first public notice, and that permissions to depart would not be granted until within two days of the time specified for embarkation. The object of these several orders was to prevent the departure from the colony of persons who had been convicts, without a previous examination of their right to quit it, either as arising from expiration of service or absolute pardon; and to provide a security to creditors against the clandestine or sudden departure of free persons, similar to those that exist in most other colonies of Great Britain.

During the suspension of the sittings of the Supreme Court in the year 1815, and until the arrival of Mr. Justice Field in 1817, the practice that had thus obtained of lodging detainers, afforded the only means of recovering debts from transient persons; and it appeared from the detainer books that were exhibited, both in the time of Mr. Judge Advocate Bent and Mr. Judge Advocate Wylde, that detainers had been lodged against individuals for sums amounting to not less than 3,000l.

The detainers that are lodged at Sydney, before Mr. Judge Advocate Wylde, are merely entered by his clerk at the suggestion of the party; and according to the evidence of Mr. Moore, they are generally found to exceed in amount the real demand.

To prevent the continuance of vexatious and frivolous demands made by publicans of Sydney against sailors, (and which the agents of vessels were frequently under the necessity of paying to enable the vessels to leave the harbour,) an order was introduced into the eleventh article of the port regulations, by which masters of ships are required to furnish a correct list of the respective crews, that all credit to them may be cried down upon their arrival; and it was further declared by virtue of that order, that in such case no debt, contracted by any of the crew during the period that the ship remained in port, should be cause of detention to a sailor at the judge advocate's office, or should prevent him from proceeding to sea. This order was subsequently declared to be confined to the crews of vessels, so that the masters and mates and all persons leaving the colony are obliged to obtain certificates of no detainers being lodged at the judge advocate's office, and to advertize their names in the Sydney Gazette two days at least before the departure of the vessel. The charge made by the printer is 2s. 6d. for each advertizement.

The effect of these detainers at the judge advocate's office at Sydney is described in his evidence.

No notice of detainer is given to the party affected by it; but if on making inquiry at the judge advocate's office before his departure, he finds that a detainer is lodged, he is allowed to take out a summons to the party that lodged it, requiring him to show cause why it should not be discharged. A summary inquiry, but not upon oath, takes place before the judge advocate, who when thus informed of the nature of the demand, either makes an order to the defendant to give security to answer any action that may be brought against him in the Civil Courts in respect of the debt, or if he considers that there is no just ground for demanding security, he dismisses the detainer with costs.

In Van Diemen's Land, the practice of lodging detainers at the deputy judge advocate's office, differs from that which has been just now described. If the demand happens to exceed the sum of 10l. the party is required to swear to it, and if under that amount it is merely lodged at his suggestion.

No fixed period of residence is required either in New South Wales or in Van Diemen's Land to render persons liable to detainers, therefore strangers touching at either place and becoming temporary residents, are as much bound to observe them as permanent inhabitants.

The inconvenience that may arise from this liability is attempted to be removed, by requiring security from such persons to answer any judicial demand. Persons embarking at Launceston are further exposed to the inconvenience of obtaining certificates of no detainer from the deputy judge advocate's office at Hobart Town. The regulation by which certificates are required to enable persons to take their departure from either place, has in some cases been abused; and has been converted, as must frequently happen, into pretexts for vexatiously delaying the departure of individuals, for the gratification of malicious and unworthy motives.

By the regulation introduced by Mr. Judge Advocate Wylde, of crying down the credit of ships crews upon their arrival in the port, the consequences that had been found so injurious to them as well as to the owners of vessels, have been diminished; and considering the risk to which the colonial creditors would be exposed, until some more effectual control and protection was afforded them by a summary appeal to the courts of justice, in cases of vehement suspicion of the departure of their debtors, I think that the practice of lodging detainers, although susceptible of improvement, has been found beneficial.

The control exercised by the judge advocate over the registration of deeds in his office, forms another portion of the present subject, and has been created nearly by the same authority as that by which detainers are issued.

An early regulation of the colony has already been adverted to, by which it was declared that no assignment of property should be considered legal unless regularly drawn up at the judge advocate's office, and there duly registered; and a subsequent declaration has been mentioned, by which the prejudicial consequences of inattention to the provisions of that order were partially removed.

On the 18th January 1817, a proclamation that had been drawn by Mr. Judge. Advocate Wylde was issued by Governor Macquarrie, requiring that all deeds, conveyances and judgments, affecting land in New South Wales, should be registered at the judge advocate's office, by an entry to be made by him of the memorial of every deed in a book to be kept for that purpose, under a penalty that rendered the non-registered deed void and fraudulent against any subsequent purchaser claiming under a registered deed.

By a proclamation that was also drawn by Mr. Judge Advocate Wylde, and issued on the 18th July 1817, certain regulations were made for the registration of deeds at his office; and it was required that one of the witnesses to every deed should be one of the solicitors of the courts of the colony; that every deed should be produced to the judge advocate, or to his sufficient deputy; and that the memorials should be registered in the order of time in which they should be presented at the office for registration.

At Van Diemen's Land the same rules prevail as to the registration of deeds in the deputy judge advocate's office, although the effect of the proclamations just mentioned is stated to apply to the territory of New South Wales, and does not specifically include the dependencies.

Having submitted to your Lordship a statement of the existing judicial establishments, and the grounds of objection that appeared in my judgment to render them unsatisfactory to the feelings of the different classes of the community in New South Wales and Van Diemen's Land, I will proceed to enumerate the several defects of the present charter of justice, that have been suggested either by my own observations or that of others.

In this duty your Lordship will observe, that I have been very much guided by the recommendations and experience of Mr. Justice Field, as manifested in his answer to the inquiries that I addressed to him upon the defects of the charter of justice.

The principal difficulty that exists in providing for them arises from the peculiar constitution of the society of New South Wales, and the risk to which its interests might be exposed by the unqualified admission of the inhabitants to the right of trial by jury.

I have already submitted to your Lordship my reasons for concluding, that as a principle of judicial procedure it cannot yet be safely introduced; but as it may be fairly expected that the circumstances that constitute the present objections will gradually diminish, both in New South Wales and Van Diemen's Land, but more especially in the latter, by the introduction of a numerous body of free settlers from England, it would be desirable that His Majesty should have the power of determining, by order in council, the period at which the trial by jury should be established; and that His Majesty should also have the power of limiting its operation in the first instance to civil cases, and especially to those wherein the principal question for the consideration of the jury is the amount of damage; that the intervention of juries in such cases should be permitted only upon the united application of both the parties in the suit.

Whatever may be your Lordship's determination upon this subject, I should submit that it will be found necessary to resort to the authority of Parliament, either for the sanction of a new mode of procedure in the civil courts of New South Wales, for the purpose of authorizing any departure from the practice of the courts of the mother country, that it may be thought necessary to introduce, or of sanctioning that which already exists.

The defects in the present charter, enumerated by Mr. Justice Field, amount to nine; first, that of a power for the registrar of the Ecclesiastical Court to apply for letters ad colligendo in default of an executor or administrator.

It has occurred, that upon the deaths of convicts upon the passage to New South Wales, or where the inhabitants of the remoter districts have died suddenly, possession has been taken of the effects without security or inventory, and that very insufficient means have been adopted to give information or to transmit the proceeds to the absent relatives. To prevent these abuses, I think it will be expedient to give the Supreme Court in New South Wales, as well as the court in Van Diemen's Land, in cases where the next of kin or an executor when cited shall refuse to take out administration or probate, the power of granting letters ad colligendo or of administration to the registrars of the respective courts, for the purpose of enabling them to collect the assets of deceased persons, arid to sell and convert them into money under the direction of the court, the registrar being first required to give security for the payment and due account of all such monies as shall come to his hands by virtue of such administration.

Secondly, The want of power in the courts of New South Wales to proceed against parties who, at the commencement of the action and on the return of the writ, should be out of the colony. This defect was noticed by Mr. Bent in his letter to your Lordship dated 4th November 1815; aim it is proposed by Mr. Justice Field to give the same power to the courts of New South Wales to proceed against absent defendants, and by the same process of sequestration of their property, that is given by the Bengal and Ceylon charters. The object of this proceeding is to compel the appearance of an absent defendant; and the provision that is suggested by Mr. Justice Field, being in every respect preferable to that which is adopted in the courts of the West India colonies, by affixing the proclamations to the doors of the parish churches, I should recommend its adoption in New South Wales, and to the same effect and extent as that which is expressed in the Ceylon charter.

Mr. Justice Field has likewise suggested a difficulty that will arise in proceeding against absent partners, or joint contractors, for want of the same process of outlawry that is deemed necessary to be pursued in England, before a plaintiff can proceed against the partners that are present. Of the two remedies that he has proposed for this want of power in the colonial courts, that which is in some degree analogous to the process of outlawry, is preferable to that of a declaratory enactment, by which, on a return made by the provost marshal of a defendant co-partner being out of the jurisdiction of the court, and having no property in it, a plaintiff might have liberty to proceed against the other resident partners.

The proclamations that are made by the sheriffs in England, in the execution of the process of outlawry, may be ordered to be made at the market-places at Sydney and Hobart Town, by the provost marshal; and a power may be given to the plaintiff to proceed in his action against partners, who are within the jurisdiction after the expiration of one year front the last proclamation.

The third defect of the present charter mentioned by Mr. Justice Meld, is that of a revenue jurisdiction, and power to sue for the King's debts.

Your Lordship will have observed that Mr. Justice Field has entertained great doubts, whether under the present charter, which recites only the necessity of making sufficient provision for the recovery of debts, and determining of private causes between party and party in New South Wales, any popular action could be tried in the Supreme Court, or one wherein it might be considered that His Majesty was a party.

By the statute of the 54 Geo. III. c. 15, houses and lands in New South Wales and its dependencies, were declared to be liable and chargeable with all just debts, duties and demands owing to his Majesty, or to any of his subjects; and were further made subject to the like remedies, proceedings and process in the courts of law and equity in the colony and its dependencies, as such estates would be in England.

There has, however, been no express declaration of the competence of the colonial courts to try actions in which the King's revenue and rights were concerned; and Mr. Justice Field has always doubted of the power of the Supreme Court to entertain such actions.

Two actions were tried upon the bonds that are required by the port regulations to be given by captains of vessels before they are allowed to make entry, or to leave the port, in which they bind themselves to the governor of New South Wales, in penalties of 500l. for every convict they shall permit or suffer to embark from the colony; and in penalties of the same amount for permitting or suffering any person who has ever been a convict, or any free person, to embark in order to leave the settlement, unless with the approbation and consent of the governor.

These actions were brought in the name of Governor Macquarrie, who recovered in both of them; and an appeal having been entered in one against the decision of the Supreme Court, it was confirmed after hearing by the governor.

There were also actions brought in His Majesty's name on the same bonds, and for the same causes of action, but they were not tried.

Governor Macquarrie had no personal interest in the actions that were tried, as the sums recovered were in the nature of penalties for breaches of two colonial regulations, not only important, but essential to the security of the convicts; and although the bonds did not declare to whose use or in what proportion the penalties should be applied.

From these circumstances, and from a wish to give as much effect as possible to a very important colonial regulation, Mr. Justice Field allowed the actions to proceed in the governor's name, and considered him to be a party to the suit.

In consequence of the increase of the colonial revenue, and the necessity of giving full effect to the penalties for securing that portion of it which may be derived from the distillation of spirit from grain within the colony, it is certainly expedient that all doubts upon this subject should be removed in a new charter; and that jurisdiction should be given to the Supreme Court of New South Wales, and to the Civil Court in Van Diemen's Land, to try all causes relative to the revenue arising within either colony, and to proceed upon informations according to the rules and practice of the Court of Exchequer in Great Britain, with the exception of the trial by jury.

Mr. Justice Field has proposed an augmentation of authority to the equity jurisdiction of the Supreme Court, in the whole of which I concur. It consists of an express authority to appoint guardians to infants and to their estates; the transfer to the Supreme Court of the custody of idiots and lunatics, now vested in the governor of the colony by his commission; the power of appointing commissioners to take bail, oaths and affidavits; and a matrimonial jurisdiction to the ecclesiastical side of the court, not for the purpose as Mr. Justice Field observes of pronouncing divorces, but for enabling the judge to decree alimony to ill-treated and discarded wives. The necessity of this power has been felt by some of the magistrates upon applications made to them for relief, but they have only been able to interfere in cases where, from the condition of the husband, their authority over him as a convict could be exercised by returning him to the labour of government, or by an application of the wages earned in his master's service. The extension of this authority of the Supreme Court to the free inhabitants of the colony, I consider to be both necessary and useful.

Complaint has been made of the inconvenience and expense arising from the necessity that exists under the present charter of issuing a summons in all cases before a writ of capias can issue; and this complaint of the defect of power in the Supreme Court, to proceed in certain cases in a more summary manner than is directed by the charter, is not without foundation.

To remedy this inconvenience Mr. Justice Field has proposed, that the power that is given to the Supreme Court in the Bengal charter, should be given to that of New South Wales; and that in all cases where the plaintiff shall make affidavit of a debt amounting to the sum of 15l. sterling and upwards, and shall prove to the satisfaction of the court a case of personal wrong, or vehement suspicion of the defendant's intention to fly from the jurisdiction, the capias might issue in the first instance. In the expediency of this improvement I entirely concur.

The last provision recommended by Mr. Justice Field, is a direction similar to that which is contained in the Bengal and Ceylon charters, for reducing the evidence to writing, to be signed by the witnesses in all cases where an appeal may be made from the decision of the Supreme Court to the governor; with a further direction to the court, to transmit a copy of such evidence, together with the other proceedings, judgments, decrees and orders, in the respective causes, to the Appeal Court.

I did not observe that this practice prevailed in the Court of Appeal, where statements of the case only, and of the evidence as taken in the court below, were made by the solicitors of the parties, and after being delivered to the judge advocate were read to the governor in court.

As it is very desirable that the grounds of judgment and decision should be authentically and fully reported to the Court of Appeal, to enable it to form its own decision, I entirely concur in the recommendation of Mr. Justice Field.

Respecting the constitution of the Supreme Court: As I have already declared my opinion that the intervention of a jury cannot in the actual state of the colony be advantageously resorted to, I consider that the present mode of supplying its powers by the appointment of two magistrates is that which is most free from objection, and the least likely to introduce into the deliberations of the tribunal the operation of local prejudices and hostility.

An augmentation in the number of magistrates of New South Wales will tend to relieve that body from the inconvenience of a long and continued attendance upon the sittings of the Supreme Court; and the appointment of a barrister to the office of attorney-general will afford the means of transferring to him the duty that the judge now performs of master in chancery and examiner in equity.

The two members of the Supreme Court, appointed by the governor, should be henceforth considered to be judges of questions of fact; but the decision of the judge upon all questions of law, and upon points of practice, should be declared to be conclusive and independent.

The alterations that I have now to submit to your Lordship's consideration in the criminal judicature, are such as appear to me to be suggested by a statement of the inconveniences that have been found to result from its present structure and limited extent.

I should in the first place recommend an immediate and entire separation of the criminal jurisdictions of New South Wales and Van Diemen's Land, by giving to each a distinct and independent, but similar judicature, consisting of the judge of the Civil Court in each place, and seven officers of the sea and land forces, being above the age of twenty-one.

The jurisdiction of the Criminal Court of New South Wales should be declared to include all and every settlement already made or that hereafter may be made on the eastern, northern and southern coasts of New South Wales, or within the limits of the governor's commission, a power being reserved to his Majesty to establish in the different settlements, by commission under his sign manual, separate courts, composed of a judge and four and six officers of the sea and land forces, whenever the progress of the settlements may seem to His Majesty to require such establishment.

The jurisdiction of the Criminal Court of Van Diemen's Land should be declared to include that island as well as the islands contiguous, and specially all those situated in Bass's Straits. The latter are frequently occupied or visited by parties engaged in the seal fishery; and it will be more convenient to give a jurisdiction to try offences committed in these islands to the court in Van Diemen's Land, than to the court in New South Wales.

There should be a power given to the governor and lieutenant-governor to appoint the places at which the Criminal Courts shall assemble, as it will be found more convenient, as well as more conducive to the ends of justice, that the Criminal Courts shall sometimes hold their sittings at Windsor or Paramatta rather than at Sydney; and that in Van Diemen's Land sittings should sometimes be held at Launceston rather than at Hobart Town.

It is observed by Mr. Judge Advocate Wylde, that the power of convening both the Civil and Criminal Courts in New South Wales and Van Diemen's Land is vested in the governor and lieutenant-governor, together with the power of appointing and removing the members who are to compose it. The judge advocate, in doing justice to the motives of impartiality by which these powers have been hitherto exercised by Governor Macquarrie, has justly remarked upon their possible abuse, either in a capricious or arbitrary refusal of the governor to appoint members, or to issue a summons to convene a court. He has further remarked upon the influence that the governor, as commander of the forces, may be supposed to possess over the opinions of the officers composing the Criminal Court, and who generally consist of those who are under the governor's immediate command.

The two first of these objections may be removed by a declaration in the charter, that the sittings of the Criminal Court shall be held regularly four times in every year at least, and as much oftener as occasion may seem to the governor or lieutenant-governor to require; that they are respectively required to appoint seven officers of His Majesty's sea or land forces for the Criminal Court; a right of challenge to the members so appointed being given to the prosecutor and prisoner in criminal cases, on account of interest alone; and that when such challenge shall be admitted, that in such cases the governor or lieutenant-governor shall be required to appoint other officers to complete the number of the members of the Criminal Court.

As long as this mode of trial shall be deemed expedient, and more conducive to the ends of justice than that which substitutes a jury for the determination of questions of fact, (a point upon which I have already submitted my opinion to your Lordship), the influence that the power of nomination may give to the governor will, perhaps, furnish a ground of objection to those who are accustomed to regard the institution of trial by jury, as the only and the infallible remedy against the operation of influence, or the effect of power.

It is not, however, to the military members of the Criminal Court alone that the influence of a governor of New South Wales is both known and felt to extend. The disposal of the colonial indulgences in the shape of grants of land to all ranks of the inhabitants; the assignment to them of useful or useless convict servants, constitute in the hands of the governor of New South Wales, and lieutenant-governor of Van Diemen's Land, ample sources of influence and of power; and I conceive that in the only cases that could occur in the Criminal Court, wherein the interests of the local government were directly or remotely concerned, the exercise of an independent judgment might be more reasonably expected from the members of the criminal Court, acting under the sound directions of an impartial judge, than from any selection of jurors that could be made from the individuals now residing in the colony.

In the Criminal as well as the Civil Court of New South Wales, I should propose, that one and the same judge shall preside; for I agree with Mr. Justice Field in his conclusion, that when the extraneous duties now executed by both himself and Mr. Judge Advocate Wylde are withdrawn, there will not then remain a greater quantity of business than one judge will be enabled to perform.

As the population and the trade of the colony appears to be susceptible of a rapid increase, and such a corresponding increase may take place in its judicial business, as to render it oppressive to one person, a power should be reserved to the crown to appoint a judge for the Civil as well as for the Criminal Court in New South Wales.

With a view to avoid the difficulties that have been felt by Mr. Judge Advocate Wylde, in the application of such enactments of the criminal law of England as have received the sanction of the legislature since the passing of the statute 27 Geo. III. c. 2, and were declared to be applicable only in Great Britain, or in Great Britain and Ireland, and not in Scotland, the powers of the Criminal Courts both in New South Wales and Van Diemen's Land should extend to the trial of all offences and misdemeanors, which, if committed within that part of the realm called England, would be deemed, according to the existing laws thereof, to be treason or misprision thereof, felony or misdemeanor.

The cognizance of all offences not capital, and committed by persons who are still convicts, or holding tickets of leave, should be referred to the decision of three or more magistrates of the colony, who should be empowered to inflict corporal punishment for such offences, amounting to one hundred lashes, or transportation for terms not exceeding five years.

The crimes that would thus remain within the special cognizance of the Criminal Court, would be those committed by free inhabitants, and the crimes of treason, murder, wounding, rape, unnatural crimes, forgery, arson, highway robbery, burglary, and cattle or sheep stealing, committed by convicts.

The judge of the Criminal Court should have the power of issuing writs of habeas corpus, and admitting to bail; and the sentence and punishment of offenders convicted before it, should solely remain in the discretion of the judge, and not as at present with the military members of the court.

The concurrence of five votes out of seven is at present necessary to authorize the infliction of capital punishment. Mr. Judge Advocate Wylde is of opinion that this number is not sufficient in capital cases; and as I consider it important that the combination of the duties of judge and juror should if possible be avoided, and that some approximation should he made in this respect to the distribution of judicial duty that prevails in England, I propose that an addition of one military member should be made to the Criminal Court, and that the judge should have no vote in the previous decision of the guilt or innocence of prisoners; but that no sentence of death shall be executed, unless six out of the seven members shall have concurred in the verdict. The sentence and punishment of the persons convicted by the Criminal Court should remain exclusively in the judge, subject in cases of sentence of death, as it is at present, to the approval of the governor or lieutenant-governor.

With the augmentation I have now proposed to the number of votes necessary to authorize the execution of a sentence of death, I do not think it requisite to continue the reservation of those cases to the consideration of His Majesty, in which the verdict of guilty has been given by fewer than five persons.

The duty of the judges of the Criminal Courts in New South Wales and Van Diemen's Land, will thus be very nearly assimilated to that of judges in criminal proceedings in Great Britain; and the combination of those incompatible duties that was created by the last charter in the person and office of the judge advocate, will altogether cease.

The consent of the governor or lieutenant-governor to the execution of all capital sentences is reserved in the constitution of the present criminal judicature and the power of pardoning all offences, except those of treason and murder, and of granting reprieves upon extraordinary occasions until His Majesty's pleasure shall be known, is given to the governor by his commission.

Under the present and future constitution of the Criminal Courts, I think it will be advisable to continue these powers in the hands of the governors and lieutenant-governors, who no doubt will see the propriety of being guided in the application of them, by the reports of the judges presiding in the Criminal Courts.

The principal objection to the present constitution of the Criminal Court yet remains to be considered, in the combination of the duties of accuser, judge and juror, in the person of the judge advocate.

With a view to separate those duties, I have already proposed that a barrister should be appointed to the situation of attorney-general of the colony, whose duty it should be to receive all depositions and informations taken by the magistrates for offences and misdemeanors, to prepare the indictments, and to present them for trial before the Criminal Court.

Mr. Justice Field is of opinion, that there should be no such option or discretion left to the attorney-general as has been exercised by Mr. Judge Advocate Wylde, in exhibiting or declining to exhibit criminal charges, since he filled that office; and that the civil action for malicious prosecution would afford a sufficient protection against an abuse of the power of prosecution, either by the attorney-general or by individuals.

The evils, as well as the suspicions, arising from the exercise of the obnoxious power of putting a negative upon prosecutions, appear to me so much to outweigh the possible evil of opening too wide a door to those that are unjust or malicious, that I think it should be part of the duty of the attorney-general to prefer indictments on all informations transmitted to him from the magistrates of the colony, as well for offences of a higher nature as for misdemeanors.

The appointment of grand juries in New South Wales has been considered to afford an easy solution for the difficulty that must always arise in an English colony, from placing that extensive discretion and responsibility in the hands of one person that in England is exercised by twelve, and generally by more persons.

A list has been furnished me by Mr. Judge Advocate Wylde of those whom he considers competent to serve the office of grand jurors, amounting in number to sixty-three; and although I agree with him in their competence to discharge this duty, yet the frequency and length of their attendance in Sydney, and the delay and difficulty that would arise in procuring the punctual attendance of witnesses for examination there, would lead to a separation of the most respectable part of the population from their estates and property, and occasion some suspension of the important duties of the rural police.

The indictments and informations, with the exceptions I have adverted to, should be prepared by the attorney-general, and if in any case they should be quashed for informality, he should be directed by the court to prepare another; that no part of the indictment but the crime should be matter of substance, and that defect of mere form should never be considered as a sufficient ground for quashing it.

It should also be a part of the duty of the attorney-general to read the indictments, and to state the several cases to the court; to examine the witnesses, and conduct the prosecutions.

These duties are at present very burthensome to the judge advocate, and have not in any degree been relieved by the appointment of a clerk of the peace, or solicitor of the crown.

The jurisdiction and mode of proceeding in the Criminal Court of Van Diemen's Land, I should propose to be exactly similar to that of the colony of New South Wales, with the single exception of the appointment of one of the stipendiary solicitors, now practising at Sydney, to the situation of attorney-general in Van Diemen's Land. His duties there being assimilated to those of the attorney-general in New South Wales.

The great increase that has already taken place in the free population of that colony, and the superiority of that class in number and opulence to that of the Convicted, will render the introduction of the trial by jury more easy and more immediately beneficial than in New South Wales; but until the period shall arrive when this distinction between them, whether fancied or real, has subsided, I think that a civil judicature, composed of a judge who possesses the advantage of a strictly professional education, with two magistrates of the colony, and a Criminal Court; composed of the same judge with seven officers of His Majesty's sea and land forces, will afford the means of providing in both colonies an efficient and satisfactory administration of civil and criminal justice.

By the reduction of the number of judges in New South Wales, the governor, when sitting in the Court of Appeal, will be deprived of the assistance of the judge advocate; an advantage which, however valuable to the governor on some occasions, has had the effect in others of occasionally placing the opinions of the judge advocate, and the judge of the Supreme Court, in manifest opposition to each other.

With the more complete knowledge of the circumstances of each appeal that the governor will be enabled to acquire, by the course of proceeding that I have already recommended in the future practice of the Appeal Court, no greater difficulty will occur to him than that which is experienced by many other officers in the colonial dependencies of Great Britain, in whose hands are placed the powers exercised by the Court of Chancery; and I confess that I have not been able to discover from what quarter the governor of New South Wales would be able to draw any portion of that judicial assistance or co-operation that is attempted to be afforded in some other colonies by a council.

The assistance of such a body might diminish his own responsibility and embarrassment, but I do not think that it would be likely to augment the wisdom or the impartiality of his decisions. In the absence of such assistance, or until it can be afforded, I concur in the recommendation of Mr. Justice Field, already submitted to your Lordship, of giving to the suitor a right of appeal to the King in council in cases under the present appealable amount of 3,000l., where the decision of the governor shall set aside that of the judge of the Civil Court.

A right of appealing to the governor of New South Wales against the decisions of the Civil Court in Van Diemen's Land, should be given to the inhabitants of that colony in cases where the amount of the sum in dispute exceeds rot sterling; with a similar right of appeal to the King in council in cases of less amount than 3,000l. where the judgment of the Civil Court of Van Diemen's Land shall be set aside by the governor in appeal.

The Court of Appeal should also have the power of awarding costs to the parties, and making rules and regulations for its own practice.

The jurisdiction of the Instance Court of Vice-Admiralty at Sydney is exercised by Mr. Judge Advocate Wylde, who holds a commission that enables him to try all breaches of the laws of trade, navigation and revenue, as well as suits for the recovery of seamen's wages. Causes of the former description have very rarely occurred at Sydney; and from a want of knowledge of the jurisdiction of the Vice-Admiralty Court, in questions of seamen's wages, I observed that they were generally submitted to the decision of the magistrates.

A commission for trying all offences and misdemeanors committed on the high teas is yet wanting in New South Wales, and would form a most desirable addition to the powers of the colonial judicature. Piracies and outrages have frequently been committed on board vessels on the coast of New South Wales, of New Zealand, and of the neighbouring islands, and have equally gone unpunished front want of authority in any of the colonial tribunals to take cognizance of them.

By the 57 Geo. III. c. 53. s. 1. all offences and outrages committed by the masters or crews of any British vessels, or by any persons that have sailed in or quitted any British ship to live in New Zealand, or within any other islands or countries not within his Majesty's dominions, nor subject to any European power or state, may be sued and punished in any of his Majesty's islands, under his Majesty's commission issued or to be issued under the 46 Geo. III. c. 54. in the same manner as if the offence had been committed on the high seas.

One of the objects of this Act of Parliament was to afford protection to the inhabitants of New Zealand, and the other South Sea islands, against the outrages so frequently committed upon them by the masters and crews of the vessels employed in the South Sea fisheries.

For want of a commission to try such offences in New South Wales, the Act of Parliament has been completely inoperative, for no commission exists in any colony nearer than the island of Ceylon.

The jurisdiction that I should recommend to be conferred should equally embrace the trial and punishment of offences and outrages, committed by British subjects on the high seas, as those described in the 57 Geo. III. c. 53.

To remedy the inconvenience that may arise from the suspensions of the functions of the several courts, by the death or departure of the judge from the colony, a power should be given to the governor to make a provisional appointment of the attorney-general to the office of judge, and some other person learned in the law, to the office of attorney-general, until his Majesty's pleasure be known.

In offering these alterations in the colonial judicature to your Lordship's consideration, the expediency of providing Courts of Conscience for the easy recovery of small debts in the colony has not escaped me. Their importance in a new and agricultural settlement is always great; and their utility is in proportion to the facility of access that they afford, and the cheapness and simplicity with which their proceedings are conducted.

I recommend that these courts should be composed in New South Wales of the person filling the office of attorney-general, acting as commissioner; and in Van Diemen's Land, of the person appointed to fill the situation of attorney-general in that island; and that in both colonies they should have the same powers that are given to courts of conscience in England, for the summary decision of matters under 10l.

I should propose that a salary should be attached to the office of the commissioner appointed to hold these courts; that the fees taken upon every cause should be payable only to the clerk and crier of the court, and that the form of procedure should be of the most simple kind. I should further propose that the jurisdiction, that has been exercised by the magistrates under the authority of Governor Macquarrie's proclamation of the 21st November 1818, by virtue of which they take cognizance of disputes between masters and employers of labourers, mechanics and artificers, should be continued to the magistrates; dug the power of examining, hearing and deciding these disputes should be given to not less than two magistrates, and that an appeal from their decision should be given to the commissioner of the Court of Conscience. The exercise of the jurisdiction has been found beneficial in the colony; but from the disposition that has been manifested in some of the districts to exceed it; and to entertain causes of a higher amount and more complicated nature, I conceive that it will be expedient to create a check upon such abuse, by giving to either party that may be dissatisfied with the decision of the magistrates, a right of appealing to some higher authority.

The registration, acknowledgment, and custody of deeds and memorials, that is now limited to the office of the judge advocate, should, according to the practice that obtains in other colonies, be transferred to the office of the colonial secretary; and the fees upon the registration of deeds should be augmented, as at present they hardly afford remuneration for the entry and abstract of the memorials.

In consequence of the duties that will devolve upon the person who may be appointed to the office of attorney-general in New South Wales, and the want (to which I have already adverted) of better professional assistance than is now to be found there, it will be of much importance to afford inducements to an English barrister to proceed to the colony, where, however independently of his official duties, he may fairly expect to command a considerable share of professional practice and emolument.

The want of such assistance has been equally felt by the governor, and by the judges in their respective courts. That want is not likely to be diminished; and the circumstances from which it proceeds would of themselves operate as a sufficient encouragement to two English barristers to repair to New South Wales for the practice of their profession.

During my stay in Van Diemen's Land in the year 1820, the want of professional advice was much felt by the inhabitants, who were under the necessity of having recourse to the assistance of the remitted convicts.

The prospect of professional emolument must of itself afford encouragement to practitioners to repair to Van Diemen's Land from England, whenever the establishment of a separate judicature shall be announced.

I cannot quit this part of the subject without recommending a reduction in the schedule of fees, by which the charges of the solicitors in New South Wales are now regulated. They have attempted to justify these charges by the want of punctuality in their clients; and a practice amongst the solicitors as thence followed, of detaining in their hands the fruits of one suit to reimburse the unpaid expenses of a former one. These circumstances constituted serious grounds of complaint amongst all ranks of the community; and when combined with the heavy fees payable to the clerk and registrar of the Supreme Court, have had the effect of lessening the usefulness of that tribunal, as well as the feelings of respect with which it ought to have been viewed and approached. I entirely concur, therefore, in the suggestion of Mr. Justice Field, that the salary of the judges, both in Van Diemen's Land and New South Wales, should be such as to exclude their receiving any part of the fees of office, or any other emolument or advantage except that of an official residence.

The fees now payable to the registrar should be reduced both in items and amount, and paid and accounted for upon oath into the hands of the treasurer of the police fund, from whence a competent and fixed annual salary, not exceeding 400l. should be assigned to the registrar.

Connected with the subject of the judicial establishments, as well as the other branches of the colonial administration, is the appointment of an agent to the colonies of New South Wales and Van Diemen's Land, to which I beg leave in this place to call your Lordship's attention.

During my residence in the colony, the expediency of such an appointment had been suggested by several very respectable individuals, for the purpose of conveying to the gentlemen whom they had agreed in naming, their instructions and opinions upon questions that were then in agitation, and which for the moment I took the liberty of suggesting to them it would be more prudent for several reasons to avoid. The great advantages, however, that will arise to individuals, both in the colony and in this country, from obtaining as well as affording information upon the state of its affairs and of its commercial and agricultural interests, separated as they are by so great a distance from this country, and liable always to much misrepresentation and conjecture, have appeared fully to justify me in recommending the appointment of a colonial agent for New South Wales and Van Diemen's Land, and most fully to recommend the nomination of the gentleman who was selected by several of the inhabitants to fill that situation.

The registrar of the ecclesiastical courts should be required to transmit to the colonial agent, a list of all persons dying intestate in the two colonies, together with an inventory of their effects; and to him may also with propriety be addressed the frequent inquiries of relatives, respecting the properties and estates of deceased persons, that are so frequently made to the governors of the colony, without the means of ascertaining the person or the authority of the inquirer. I shall have occasion in other parts of my Report, to enumerate other duties which may be beneficially assigned to the colonial agent; and with the mention of those that are more particularly connected with the judicial administration, I beg leave to close my observations upon this branch of my inquiry.

State of the Police of New South Wales, and Van Diemen's Land.

FROM the mention that I have already made in my first Report of the state of the police of New South Wales and Van Diemen's Land, your Lordship will have been able to form an opinion of the principal causes of its inefficiency.

The want of a sufficient number of magistrates in the country districts in New, South Wales; the want of regular communication between the magistrates of the districts and the superintendent of police at Sydney; the insufficient accommodations in the gaols, and a general relaxation of the regulations that had been promulgated at an early period after the arrival of Governor Macquarrie, together with the great increase of the convict population, have all had their effect in diminishing the means, both of the control of the convicts, as well as the due prevention and punishment of their crimes.

The first regulations of police were issued by Governor Macquarrie on the 10th December 1810; and the greater part of them were devoted to the superintendence of the police of Sydney, and the distribution of it into five districts, each having a watch-house, one district constable, and six petty constables, called "constables in ordinary", attached to it. The duties of these persons in preserving the peace, and in the apprehension of convicts found in the streets after nine o'clock; in securing their prisoners, and reporting them to the chief constable, are traced with perspicuity and exactness.

The chief constable was charged with the superintendence of the conduct of the constables under him, the violations of the sabbath, and with the duty of making a written report to the superintendent or assistant superintendent of police, of all occurrences that had been reported, or of all prisoners apprehended during the preceding night.

The first establishment of this department in the year 1810, consisted of one superintendent, an assistant superintendent, five district constables, and forty-five petty constables. Notwithstanding the increase of the population, I found that in the year 1819 the number of these constables had increased only to fifty; and in 1820, soon after the appointment of Mr. Minchin, the number was increased to sixty-four, including eight specially attached to the gaol, and six to other purposes hi and near the town. More attention has, however, been lately paid to their selection and remuneration. For a long period after the issue of the first regulations, the district constables were entitled only to 10l. per annum, slop clothing from the Kings store, and a ration and a half, with rations for their families, per day; and an occasional issue of spirits. The petty constables receiving the same allowance of slops and rations, but no pay. Upon a reduction that took place in the rations of officers on the civil establishment in the year 1817, the allowance to the wives and families of the constables was taken away; but upon a representation that was made by the constables themselves of the insufficiency of their allowances, and a recommendation of an increase made by Mr. Judge Advocate Wylde and Mr. Wentworth, the rations were again increased to the full allowance of a ration and a half, and a sum of 20l. per annum was allowed to the district constables from the police fund. At all periods the allowance of slop clothing to the district and petty constables appears to have been in smear, ever since the establishment of the police in 1810; and it was the subject of a frequent complaint to me during my residence in the colony.

For this neglect I am unable to assign any cause, as during the later years of the establishment there existed no deficiency of funds; and although the issue of clothing to the convicts was delayed, in consequence of the great demand that existed for it yet the importance of stimulating and ensuring a vigilant performance of the duties of the constables, by a regular issue of their allowance of clothing, especially to those who had no pecuniary allowance, was so obvious, that the expense of purchasing materials and making them up in the colony ought, undoubtedly, to have been defrayed from the police funds in preference to all or any other charges whatever. Having observed the effect of this inattention upon the constables themselves, as well as the importance of affording some more effectual means of punishing the petty constables for neglect of duty than their mere dismissal from office, I recommended to Governor Macquarrie to make a reduction in their ration to that of seven pounds of meat and seven pounds of flour per week; and either to make up the excess of one-half, or double that quantity (which I found was issued to some of the constables) in an allowance of tea and sugar, or in money payments calculated at the existing price of those articles. I also recommended that the arrears of slop clothing should be immediately issued.

As a principle of remuneration, the issue of larger rations to constables than what was immediately required for their own consumption was very objectionable, as in case of misconduct (which frequently occurred) there could be no greater punishment inflicted than forfeiture of the ration; whereas in reducing the value of an extra ration to a monthly payment in cash, and liable to be forfeited for misconduct, some security was provided for good behaviour during the antecedent period. It had also the effect of inducing the constables to barter their rations; and in common with all remuneration of the same kind to other civil officers, to swell the charge upon the King's store, and ultimately the amount of the expenditure of government, instead of remaining a charge upon the colonial funds. In every point of view, therefore, and under any circumstances of the colony, I should recommend that the remuneration of the district and petty constables in the settled part of New South Wales, and in Van Diemen's L and, should be reduced to a single weekly ration of seven pounds of meat and seven pounds of flour; that no ration should be allowed to their families, and that an annual allowance of the sum of 20l. should be continued to be made in quarterly payments to the district constables; and of a single ration and lot per annum, with a regular issue of slop clothing, including a great coat and four pair of shoes per annum, to each of the petty constables.

The regulations of police provide, that a remuneration of 5l. should be given to any person or persons prosecuting to conviction felons that commit burglary or highway robbery, upon a production of a certificate to that effect from the judge advocate. This regulation has been found beneficial, and it has been extended to cases of extraordinary exertion made by the constables, as well as by the military, in pursuit of bush-rangers.

In Van Diemen's Land a practice has existed, to which I have before had occasion to advert, of remunerating constables by allowances of spirits, which at one period amounted to as much as one quart per week. The issue of this allowance of spirits was made to then every quarter, and was either the cause of much intoxication, or of an interference with the profitable sale of spirits by the licensed dealers. The allowance had been reduced from that of one quart to a pint per week previous to my arrival in Van Diemen's Land; but I found that the practice of remunerating them by extra issues of tea and sugar, and of blankets and bedding from the King's store, had been nearly as frequent at Hobart Town as it had been at George Town.

In the return of persons victualled from the King's store at Hobart Town in the month of February 1820, I find that no less than ninety-six persons are designated as constables; fifty-four of whom received double rations, and forty had their wives and families victualled, making a total of two hundred and one and a half daily rations. And on the 20th November 1820, I was informed that an addition was made to their number, by the appointment of three convicts composing the boat's crew of Dr. Bromley, the naval officer, who received double rations and spirits. Fifty-two constables are employed in the police at Hobart Town, including four that are specially destined for the pursuit of bush-rangers; sixteen are employed as watchmen in the town, and that number is increased when ships are in the harbour, and when greater vigilance is required for their protection; five are placed at the gaol at night, and four during the day. The remaining forty-four constables are attached to the Lieutenant-Governor's Court, or are appointed to the special protection of the lumber yard, or consist of the district constables around Hobart Town, and in that part of Van Diemen's Land that is called the county of Buckinghamshire.

Being desirous of ascertaining the reasons that had led to such large remunerations to this description of officers, I addressed a letter to Lieutenant-Governor Sorell upon the subject; and was informed by him, that the impoverished state of the funds of the settlement upon his arrival, and the necessity of providing some mode of remuneration to persons serving in situations of trust and responsibility, as well as to those employed in the active pursuit of the bush-rangers, had led to the adoption of the system; and that until the period in which I addressed him, the police fund of the settlement had not attained such a degree of stability, as appeared to him to justify so large an annual charge as the pecuniary remuneration to the constables would have required. The causes that are mentioned by Lieutenant-Governor Sorell, for the continued depression of the local funds, are satisfactorily accounted for by him, and will be noticed when I come to make mention of the revenue of New South Wales and Van Diem en's Land; but since the condition of both have been lately so much improved, the same reasons equally exist for making an immediate transfer of such a legitimate charge, as the payment of all expenses of police, from the British treasury to the colonial funds, and limiting all allowance of rations to constables to that of a single ration, consisting of seven pounds of meat and the same quantity of flour per week, with the same pecuniary allowance that I have already recommended for the constables in New South Wales.

As a great many of the convicts retained in the service of government, as well as those in the service of individuals both at Hobart Town and Sydney, were allowed to lodge there until the establishment of the convict barrack in 1819, a power was given to the constables of entering the houses where they lodged, and of searching for them at any hour of the night, on any suspicion arising of their being engaged in robberies.

The chief constables were charged, by one of Governor Macquarrie's regulations, with the duty of registering the places of abode of all the convicts in the different towns, and noting their removal. At Sydney, and indeed at all the places in which the chief constables resided, this duty was much neglected. Mr. Wentworth had caused a census of the inhabitants of Sydney to be taken by his clerk, in consequence of the inability of the chief constable to perform that duty, and he had acquired pretty accurate information respecting the houses in which the convicts lodged. Humphrey, the magistrate of police at Hobart Town, had paid very particular attention to this duty; and although information was not wanting in either place respecting the residence of the convicts, and that the establishments were in themselves sufficiently large for the duties of police, yet I observed that amongst the inferior officers there was a want of vigour in enforcing those restraints against the convicts, by which alone the commission of offences could have been prevented.

In no regulation was it more conspicuous than in that which required all convict servants to be in their masters houses after nine o'clock every night. With the exception of that part of the town of Sydney called the Rocks, the tranquillity of the streets was well maintained, and instances of open or public outrage were not frequent. Difficulty has always been experienced in reconciling the free inhabitants to those restraints that the nature of the population has rendered indispensible. That important regulation by which every individual was required to enter at the office of the superintendent of police, their names, places of abode, and the names of their children and servants, and the names of such strangers as were resident with them, was resisted at Sydney, and has not been enforced there; and Mr. Wentworth has preferred substituting the census that was taken by his clerk, to the compulsory observance of the regulation.

At Hobart Town, in consequence of the state of the settlement, and the sudden arrival on one occasion of a great number of convicts in one ship, Lieutenant-Governor Sorell recommended that the regulation should be enforced; and he published an extract from the police regulations of Governor Macquarrie, that empowered the magistrates to inflict a penalty of line and imprisonment for neglect or refusal to comply with the regulation; adding, at the same time, a limitation to the power of imprisonment, which Governor Macquarrie's regulation did not contain.

Mr. Anthony Fenn Kemp, who has already been mentioned in my former Report, refused to comply with this regulation; and has in his evidence alleged pressure of business as a reason for his own refusal, and considered that the enforcement of the regulation against him was unnecessary and oppressive, as he was well known to be resident within a little distance from the court where the penalty was inflicted, and that the number of his family was always known. The magistrates, however, with the exception of Mr. Deputy Judge Advocate Abbott, concurred in the expediency of enforcing the order against Mr. Kemp, as a measure of police, and committed him to the gaol for the space of hour, and fined him in the sum of 20s. Other individuals were also fined at the same time.

I have already observed, that the enforcement of all regulations respecting the removal of convicts from the service of one master to another, or from one district to another, was more exactly and carefully carried into effect in Van Diemen's Land than in New South Wales: Certain local advantages of the former settlement, derived from the necessity of passing two ferries over the river Derwent, by which a communication with the most populous districts was kept up, afforded many opportunities of checking the movements of the convict population that do not exist in New South Wales. The resort of the settlers and their convict servants to the weekly markets of Sydney, and the uninterrupted communication that exists between the different settlements of New South Wales, render the control of their movements more difficult; but I found that the magistrates had in no instance paid that attention to this important part of the police, or had required that attention to it from the chief constables, that had been manifested by the magistrate of police at Hobart Town. It further appeared, that much of the business that properly belonged to the superintendent of police at Sydney, was executed by Mr. William Hutchinson, the superintendent of convicts, who was in the habit of notifying to the public in the Sydney Gazette, the weekly numbers of convicts that had absconded from their masters, or from government employ, and that they were wandering with false certificates.

The complaints, or the early knowledge of their absence, was communicated therefore to him and not to the police, and no other or more regular communication of it was made to the magistrates, or to the chief constables of the districts. The authority of the magistrates in New South Wales in matters of police, extended to the recommendation of individuals for licenses to sell beer and spirits, and to the deprivation of them; granting licenses to keep carts and boats; to bake bread; and to enforce the observance of the Sabbath. The power of granting licenses for the sale of beer and spirits, had, from earlier periods than the administration of Governor Macquarrie, been exercised by his predecessors; and having perceived soon after his arrival at Sydney, that the number granted in the preceding year, amounting to not less than one hundred and one, was unnecessarily large, and that it had been productive of mischievous effects on the morals and industry of the inhabitants, Governor Macquarrie published an order, in which it was declared, "that on no account whatever, a greater number of licensed houses would be permitted than twenty in Sydney; one on the road between that town and Paramatta; three in Paramatta; one on the road between it and the river Hawkesbury, and six at Windsor and the adjoining districts." A tax of 20l. sterling was imposed upon each license. The penalties for selling wines or spirituous liquors without license, consisted of a fine of 20l. and forfeiture of the whole stock found in the possession of the offending party.

By a subsequent order, issued on 22d December 1810, the magistrates and constables were authorized to apprehend and imprison any person who might be found retailing beer or liquors without a license; and as it had been suspected that the private and clandestine distillation of spirits was very commonly practised in the colony, it was declared that any person who should be convicted of using or keeping in his possession a private still or alembic, was to be lined in a penalty of 20l. and should be sentenced to five years hard labour in the gaol gang, or transported for the same period to the coal mines or elsewhere, according to the governor's will and pleasure. With a view to encourage information against offenders, convicts who came forward to afford any, were, on proof of the offence, to be rewarded with emancipations.

A regulation, drawn up in a more technical form than the preceding, was issued on the 30th March 1811, by which it was provided that no person should be allowed to sell wine or spirituous liquors without a license, under a penalty of 20l.; and that no wines or spirits should be allowed to be removed from any house in the town of Sydney, or within ten miles thereof, to any other place in the territory without a permit, that was to be obtained on giving satisfactory proof to the assistant superintendent of police that the spirits had not been distilled within any part of the territory; the assistant superintendent being authorized at the same time to administer an oath, whereby the party was to swear to the best of his knowledge and belief, that the spirits had not been so distilled; that the duties upon them had been paid, and that the spirits were not intended to be removed to the house of any unlicensed dealer. Similar regulations were declared to extend to the districts in New South Wales, and the magistrates were authorized to enforce them in the same manner as the superintendent of police at Sydney.

The limitation of the number of spirit licenses that had been so emphatically declared by Governor Macquarrie in the year 1810, was not continued beyond that year; for although it had been reduced from one hundred and one to thirty-one, it was increased in 1811 to one hundred and four; and forty-four licenses to sell beer as well as spirits were also included in that number. In each of the years following, the number of spirit licenses amounted to one hundred and seventeen, ninety-three, and one hundred and ten; these being the years in which the exclusive supply of spirits for the use of the colony had been granted by Governor Macquarrie to Messrs. Riley, Blaxell, and Wentworth, to indemnify theta for the expense of building the present hospital at Sydney. The original period agreed upon for the termination of this exclusive privilege was the 31st December 1813; but in consideration of certain statements that were made by the contractors, Governor Macquarrie consented to extend it, first to the month of May 1814, and subsequently to the month of October of that year. It was not therefore till the expiration of the year 1814, that the order for opening the ports of New South Wales and Van Diemen's Land to the free importation of spirits, that had been transmitted by your Lordship to Governor Macquarrie on the recommendation of the Committee of Parliament that sat in 1812, was carried into effect. It was not, however, until the 18th August 1816, that the practice of issuing spirits at a certain fixed price to civil and military officers the overseers clerks and constables, by way of remuneration, as well as of paying for work performed for government in spirits, was discontinued, in consequence of orders received upon that subject from your Lordship; and as it appears by the governor's order, dated 19th August 1816, that he had ascertained that the number of licenses for the retail of spirits and beer in the towns of Sydney, Paramatta and Windsor, greatly exceeded the beneficial accommodation of the public, and led to consequences very prejudicial to the morals of the lower classes as well as to the police of the towns, he announced his intention of making a very considerable reduction in the number of the licensed houses at the approaching period of granting them. Individuals applying for such licenses were apprised that no persons would obtain them who should not be able to produce a certificate, signed by the magistrates and chaplain in the towns of Paramatta and Windsor, and by the superintendent of police and resident chaplain at Sydney, testifying "their correct, orderly, and strictly moral conduct". The price of the annual licenses was also raised front 20l. to 30l. The number of licenses that were granted in the year 1815, appears to have amounted to sixty-seven in the town of Sydney, thirteen in Paramatta, and five in Windsor, making a difference of twenty-five from the number granted in the preceding year. In the two following years of 1816 and 1817, they experienced a further reduction to seventy and seventy-five. In the year 1818 they were augmented to ninety-four; in 1819 they were reduced to sixty-two and in the year 1820 to forty-six. The mode of granting these licenses formerly consisted of an application or memorial to the governor, certified by the superintendent of police at Sydney, or by the magistrates in the country; and from the year 1816 until the year 1820, the good character of the applicants was required to be supported by the attestation of a magistrate and one of the chaplains. Securities were taken by the superintendent of police, and latterly by the clerk of the peace, in the amount of 50l., from the publicans themselves, and two other persons in the same amount, but they were for the most part nominal; and it is stated by Mr. R. L. Murray, who acted as assistant superintendent to Mr. Wentworth, that the publicans were allowed to become securities for each other. In one instance I found that the convict clerk of the clerk of the peace, had been allowed to become security in the year 1820 for a publican at Windsor, to whom a license had been ordered by Governor Macquarrie, after being refused by the magistrates on account of the lateness of the application.

The mode pursued in conducting the system of licenses at Sydney is described in the evidence of Mr. R. L. Murray. The applications for them, after receiving the signature of Mr. Wentworth, the superintendent of police, and if possible those of the resident chaplain at Sydney, or resident magistrates and chaplains of the districts, were left at Government House, where, aver being submitted to the governor's consideration, they were returned, with a written direction from him to the superintendent, to issue licenses to such of the applicants as the governor approved. On a day appointed, which was generally in the month of February in each year, the parties attended; and the licenses having been previously made out by the clerk of the peace, and signed by the judge advocate and the superintendent of police, they were delivered to the parties upon payment of a fee of 6s. 3d. to the clerk of the peace, and the sum of 30l. for the license to the superintendent of police, who was also treasurer of the police fund. Deviations, however, from this practice appear to have taken place; and it is stated by Mr. R. L. Murray, that memorials and applications for licenses that had been refused by Mr. Wentworth, as well as by the Reverend Mr. Cowper, but that had received the signatures of other magistrates, have been returned as approved by Governor Macquarrie, and licenses have been issued upon that approval. Of this description were licenses granted to two women in Sydney, whose houses had been notorious for every kind of debauchery, and whose applications for signature had been constantly resisted by the Reverend Mr. Cowper, although it appears that one of them succeeded in obtaining testimonials from other quarters where they ought to have been denied.

However commendable the motives of Mr. Cowper were, in withholding his sanction to the continuance of the profligacy that was well known to be carried on at these houses, under the protection and advantage of licenses for the sale of spirits, it appears that the refusal of his signature to testimonials in favour of applicants for licenses had been much guided by a reference to the regular attendance of the parties at church, as well as a more strict conformity to the regulations of police than Governor Macquarrie or Mr. Wentworth considered to be practicable in the town of Sydney. Under a strong impression also of the evil consequences to the morals of the inhabitants, that had arisen from an increase in the number of licensed houses, Mr. Cowper addressed a letter to Mr. Judge Advocate Wylde on the 16th February 1820, in which be pointed out to him the principles upon which he conceived it to be expedient that licenses in future should be granted, with reference both to the character and conduct of the publicans themselves, and to the accommodation and situation of their houses, further took occasion to animadvert on the inattention that was shown to the state of the licensed public houses on Sundays in the town of Sydney, and the want of sufficient investigation into the moral character of the persons to whom licenses had been given.

Mr. Judge Advocate Wylde had, in the course of previous conversations with Governor Macquarrie, and upon the suggestion of Mr. Hannibal M‘Arthur, represented to him the bad consequences of allowing the licensed retailers of spirits to keep shops for the baking and sale of bread and other articles of general consumption, and the expediency of giving to the magistrates in New South Wales the same discretion that is exercised by magistrates in England in the granting of licenses. The governor acceded to this suggestion, and requested the judge advocate to remind him of it at the recurrence of the next annual licensing day. It appears, however, from the answer that he returned to the judge advocate's suggestion, made on the 21st January 1820, that the governor, with a view, as he stated, of reducing the number of licensed houses everywhere in the colony, and especially at Sydney, ("where", he said, "he was aware that there were many bad ones",) had determined to continue the existing system of licensing for that year, and when the reduction had been effected to leave it thenceforward to the magistrates. It is to be inferred from this letter to the judge advocate, that Governor Macquarrie had had reason to apprehend, the magistrates a disposition to extend rather than to reduce the number of licensed houses; but between the date of that letter and the 11th February 1820, the governor altered his determination, and by a letter of the latter date from Mr. Secretary Campbell, the applications for licenses that had been transmitted to him were referred to the knowledge and discretion of the bench of magistrates; and they were informed that the signatures of the chaplains to the memorials were not to be considered as indispensible requisites for obtaining licenses, certain positive exceptions were made to some of the applicants enumerated in the list, and a particular request was added, that in no instance the number of licenses should be allowed to exceed those of the year 1819, and that none should be granted to persons who were known to keep loose and disorderly houses.

At the meeting of the magistrates, which took place at Sydney on the 19th February 1820, the judge advocate took an opportunity of stating to them the enactments of the British legislature that were applicable to this subject, especially that by which persons licensed to sell spirits are prohibited from exercising the trade of grocers or chandlers.

The principal and most successful retailers of spirits in Sydney and the other towns had combined these trades together, and thus multiplied the temptations to the lower classes of people to indulge in the use of spirituous liquors.

The judge advocate and the magistrates, previous to the licensing day, had visited the different houses already licensed, as well as those for which new applications had been made, and endeavoured to inform themselves of the local demands that existed in the different parts of the town, and the degree of accommodation that the houses of the several applicants afforded.

The usual notice of the expiration of the licensing year, and direction of all new applications, properly certified by a magistrate and chaplain to the governor's secretary, was inserted in the Sydney Gazette on the 29th January 1820; and on the 5th February, a notice was inserted in the Gazette by the clerk of the peace, requiring all persons who had made application to the governor, and who had obtained permission for such licenses, to attend on Saturday the 19th of February at the New General Hospital, with their securities, to enter into their usual recognizances. The applicants, therefore, had no notice whatever of the new principles of limitation or of lawn that the magistrates had determined to apply to the granting of new licenses, still less did they conceive that the certificate and attestation of the chaplains of their character and conduct, that had been required by the first notice, was intended to be dispensed with by the governor, according to the directions contained in Mr. Secretary Campbell's letters to Mr. Wentworth. The magistrates, however, at the day of licensing, took the case of each applicant into consideration, excepting those upon which a negative had been previously signified to them by Governor Macquarrie. Amongst these were the houses of Thomas Storer, Mary Plowright, and Thomas Waples, all distinguished for the encouragement of debauchery and profligacy of the worst kind; and the house of Thomas Stillwell, which, as being immediately opposite and contiguous to the lumber yard, where the great body of the convicts worked, I had Previously pointed out to Governor Macquarrie as highly objectionable and prejudicial. In the propriety of the first exceptions, it is stated by the judge advocate that all the magistrates agreed; but from the evidence of Mr. Wentworth, I perceive that he did not concur in the whole of the objections that were finally made to the applications, and by which the number of licenses for the sale of beer and spirits in the town of Sydney, was reduced to twenty-four; the brewing licenses to three; the beer licenses to two; the number of spirit licenses in Paramatta to six; in Windsor to four; in Richmond to one; in Liverpool to two; and to four on the different roads from Sydney.

It was further declared by the judge advocate upon this occasion, and the magistrates had upon his authority been confirmed in the belief, that no further jurisdiction could be exercised by them upon the subject, and that they had no power to add to the number of licenses then agreed upon, and contained in a list which they all signed.

The principles upon which the new limitation and the considerable reduction was thus made in the number of licenses, were certainly conformable to the English statutes, and equally so to the circumstances of New South Wales; but it appeared to me, that however advisable it might have been to have adopted them at an earlier period, or even to promulgate them in the year 1820, much individual inconvenience might possibly arise from the abrupt application of them without any previous notice. This inconvenience appears to have taken place; for after the rejection of very many applicants upon some one or other of the grounds already stated, those who considered themselves aggrieved applied to Governor Macquarrie, some of them stating that they had not been duly apprised of the peremptory nature of the magistrates decision; others, that from not having been aware of any contemplated reduction in the number of licenses, they had made considerable purchases of spirits, which would be thrown upon their hands if the resolutions of the magistrates were persisted in; and a certain number also stated, that under the governor's promises to give them licenses, they had incurred expense in improving, and some in building good houses. Governor Macquarrie being impressed with these circumstances, and not being sufficiently apprised of the exclusive authority and discretion that the English statutes conferred upon the magistrates, and that when once concluded it could not he resumed, addressed several letters to them, in some of which they were requested, in some recommended, and in others positively directed to issue licenses to certain individuals. In an answer also of Governor Macquarrie to Mr. Judge Advocate Wylde, who had deemed it necessary, in consequence of information that had reached him, to submit to the governor the reasons that prevented the magistrates from re-considering the cases thus again brought before them, the governor signified that in consequence of promises of licenses made by him to a few persons in peculiar circumstances, they must receive them. The magistrates, having met for the purpose of taking into consideration the subject of granting these additional licenses, came to a resolution that it was not competent to them to entertain such a question. I found, however, that licenses were granted to Solomon Joseph, who kept the house of Mr. Richard Fitzgerald at Windsor; to Thomas Carpenter; to Bernard Williams; and to Mr. John Stillwell.

In consequence of the delay of Mr. Fitzgerald in making the usual application, the memorial of Solomon Joseph had not been transmitted to the magistrates at Windsor, or to those at Sydney, previous to the 19th February, and they had granted a license to another person who had been recommended by the magistrates and chaplain, thereby completing the number of licenses to that of the former year, according to the directions that the governor had himself given; and although there existed no other objection to their granting the memorial of Solomon Joseph, yet the magistrates felt that it occasioned a departure from the governor's rule, upon which they had already acted in other places.

The license of Bernard Williams had been promised to him by Governor Macquarrie, upon the condition of providing a commodious house, and as he had complied with that condition, the governor recommended him for a license, although his name had not been transmitted in the first list that was forwarded by Mr. Secretary Campbell to the magistrates.

A great objection also, in my opinion, existed to granting a license to Bernard Williams he was coxswain of the government boats, and superintendent of the convicts employed in them. The public-house that he intended to open was at a little distance from the wharf at which the government boats were assembled, and Williams himself was considered to have profited largely by the great opportunities that his situation afforded of smuggling spirits from the convict and other ships, as well as of obtaining early information of their cargoes, from having been always permitted to accompany the naval officer in his first visit to these vessels on their arrival, as well as from the contiguity of his dwelling-house to the shore of Sydney Cove, and to the anchorage of the shipping.

The license of Thomas Carpenter appears to have been urged upon grounds still more objectionable: The magistrates, upon their visit to the house as well as to those in the neighbourhood of it, had considered that there was no necessity for increasing the number of public-houses in that part of the town; that Carpenter, who was the applicant for the license owner, was not the real owner of the house, but that he was placed there by a retail dealer, who had had a license in the preceding year, but from whom it was proposed to take it away in the present, as he kept a large retail shop for varieties of goods and merchandize; and it was further known to the magistrates that Carpenter was a man of bad character.

It is necessary also to observe, that he was one of the persons mentioned in my former Report who had obtained emancipation for the employment of their horses and carts in accompanying Governor Macquarrie in his expedition to Bathurst; and that after having remained for a few weeks in the management of the public-house at Sydney, on the recommendation of the governor, he was convicted of receiving some of the clothes of his aide-de-camp, and was sentenced by the Criminal Court to be transported to the Coal River.

The objections to the license of Stillwell's house have already been stated; and Governor Macquarrie, in acceding to the urgent application of the owner, Sir John Jamieson, and in depending upon his promise to convert the house into an hotel and tavern, had hoped that the objections that I had made on account of its contiguity to the lumber yard would be removed. The objection was partially removed by some slight alteration in the premises; I found that in the course of the year the house again became the resort of the labouring convicts, though not in so great a degree as before.

I must here take an opportunity of remarking that Mr. Judge Advocate Wylde, in his anxiety to introduce the salutary changes that he had suggested, had overlooked the various embarrassments by which these changes were necessarily followed. Of this nature, was the accumulation of large quantities of spirits in the bands of individuals who were disappointed in obtaining licenses, and who afterwards resorted to every method in their power to evade the observation of the police in their attempts to relieve themselves. The consideration of the public advantage to be derived from the reduction in the number of licenses, was certainly greater than that of the tones or prejudice to which these individuals were exposed; but it ought not to have been forgotten that no notice whatever of any change of the system had been previously given to the inhabitant; and that the promise that had been made to different individuals by Governor Macquarrie had led them as well as others to suppose that the system that had been previously acted upon would be continued.

Whatever doubt, therefore, may have existed as to the propriety of the terms that were made use of by Governor Macquarrie, in transmitting to the magistrates the applications that they had already rejected, yet, with the exception of Carpenter's license and that of Bernard Williams, it does not appear that this exercise of authority, or what indeed the governor had long regarded as prerogative in himself and his predecessors, was attended with any prejudicial consequences. With more caution, the reduction of the number of licenses might have been made beneficial to the public, and productive of little inconvenience to individuals; from the circumstances now stated, the effect was just the reverse.

With a stronger impression than they perhaps deserved, the superintendent of police, Mr. Minchin, forbore to prosecute several individuals for selling spirits whose licenses had been taken away; and I certainly observed myself, that the sale of spirituous liquors in the town of Sydney, during the year 1820, was continued in many houses that were not licensed. Three of those that showed the most determined spirit of resistance, continued to exhibit their signs until an order of police was issued, declaring that they would be prosecuted and treated as unlicensed retailers; and the disposition to resist and defy the efforts of the police, became at last so general, that informations were laid, and six persons were fined in the penalty of 30l. each, between the 2d of April and the 9th of June in the year 1820.

The difficulty of preventing unlicensed persons from retailing spirits, and the benefit that was derived to the revenue, both from the duty upon the importation and the licenses, had formed an inducement to Governor Macquarrie at former periods to give his consent to a greater number of licensed houses than the convenience of the public required, and he was led to disregard the evil consequences to which he had formerly felt and declared that it must lead.

With a view to encourage information of any sale of spirits by persons unlicensed, the penalty was raised from 10l. to 30l.; and by an order dated the 17th February 1817, when recovered, was declared to be payable to the informer alone. Informations for this offence previous to this period had been very rare at Sydney, although in the other district, especially in that of Windsor, they had been very numerous. I find that in the period that elapsed between the 12th July 1813 and the 12th October 1816, no more than two convictions are recorded in the Sydney bench book for selling spirits without a license; but in the year 1817, and during the periods when Mr. Judge Advocate Wylde presided at that bench, seven convictions took place in the space of six months, and three only between the month of January 1818 and the same period in 1820, during the latter half of which it appears that Mr. Judge Advocate Wylde had retired from the bench.

From the mode of proceeding on these informations, as described by Mr. R. L. Murray, who acted as assistant superintendent of police and prince clerk to the magistrates, it does not appear that the technical objections to the informations, that so frequently defeat prosecutions of this kind in England, could by possibility have prevailed at Sydney. The course pursued by the assistant superintendent of police there, was to receive the depositions of the informer and his witnesses unsworn, and to summon the parties to appear before the magistrates on a subsequent day. The unsworn depositions being then submitted to them, the informer and his witnesses were subjected to a severe cross-examination by a solicitor, who was generally employed for the party accused, and the decision of the bench of magistrates was then taken.

It is also stated, that several informations of this kind have failed at Sydney in consequence of slight variations between the oral and written testimony of the wit noises, as well as of the difficulty felt by the magistrates in giving credit to the testimony upon which prosecutions of this kind were frequently supported. As no entries had been made in the record book of the magistrates at Sydney, of the evidence taken upon these occasions, I had no means of forming a judgment of the grounds upon which the several decisions had proceeded.

At Paramatta convictions of this nature were more numerous, twenty having taken place between the 1st January 1815 and the end of December 1817 one in the year 1818; ten in the year 1819; and four up to the month of October 1820.

The constables at Paramatta were in the habit of employing individuals, under a promise of dividing the penalty with them on conviction, to go to unlicensed houses where they suspected that liquor was sold, and to purchase small quantities, and on the testimony of the witnesses the convictions most frequently took place. This practice gave rise to a great deal of perjury, and occasioned much embarrassment to the magistrates in their decisions.

It was represented to me from several quarters, that the interest possessed by certain magistrates at Sydney and one at Paramatta, in the sale of spirits, had bad some influence both in repressing informations, and in defeating prosecutions for selling them without a license.

From the reasons that I have stated, I was not able to obtain satisfactory or conclusive evidence of the manner in which the prosecutions for this offence at Sydney had been conducted; but from the particular manner in which my attention was called to two cases that occurred at Paramatta, and the perusal of the records there, I felt convinced that no want of energy had been displayed by the magistrate against whom the information that I received was particularly directed; and that although he was not disposed to relinquish the mercantile profit that the sale of spirits afforded him, yet he had never suffered that interest to bias his decisions; and it was satisfactorily proved that unlicensed persons, who had purchased spirits from him, had been as often prosecuted, and as publicly admonished by him, as those who made purchases from other persons. The effect, however, on the minds of the lower orders, produced by the opportunities which, at Sydney, they possessed of observing the personal and active interest that one of the magistrates there was known arid observed to take in the sale of spirits, must have diminished their fears of prosecution for the breach of any regulation that tended to restrict the consumption of them.

In a community, wherein it was of the utmost importance that the exercise of magisterial authority should be placed above the suspicion of being actuated by personal motives, it was certainly unfortunate, and it is still to be regretted, that any foundation for such suspicions should ever have existed; and that any of the magistrates should have had, or should now possess an interest in the extended use of a commodity, which they knew to be the cause of mischief to the colony, in proportion as it was the cause of profit to themselves.

It is stated by Mr. Wentworth that he did not consider the number of licensed houses in Sydney to be an evil, as it afforded a check upon the conduct of the publicans in the management of them, which the owners of unlicensed houses could never be made to feel; at the same time, that the tax upon the licenses formed a considerable addition to the colonial revenue. It certainly appears that in Paramatta and the neighbourhood, the greatest excesses have been committed in houses that were not subject to such control; and the profit arising from the sale of spirituous liquors seems to have indemnified the owners of such houses for the costs of prosecution and conviction for selling it without license, as instances have occurred where the same parties have been prosecuted and convicted more than once in the same year. The magistrates had no power to take away a license during the year for which it was granted; they only investigated any circumstances of complaint brought before them and made their report to the governor, who in three instances exercised the power of depriving the parties of their license.

The magistrates, however, had opportunities of punishing any improper conduct, by refusing their certificates on application of parties for renewal; and it appears that such authority was exercised in the ease of Margaret Waples of Sydney, whose license had been refused for two years, and was only regranted to her on a promise of better conduct in future. A few instances have occurred of prosecutions against individuals for keeping disorderly houses; but many of that description were allowed to continue in Sydney, and some in very conspicuous situations, protected by licenses, which under the well known circumstances of the owners ought, unquestionably, to have been withdrawn.

In that part of the town called the Rocks, chiefly inhabited by the most profligate and depraved part of the population, the existence or the continuance of these evils could not be prevented; they appeared, however, to have been augmented by a practice that I observed to be frequent, of giving permission for dances to be held at houses that were not licensed for the sale of spirits, as well as for those that were. Much unnecessary indulgence was given in this respect; and I further observed, that the regulation for clearing the public-houses after nine o'clock at night, and dosing them on Sundays during the hours of divine service, were not strictly enforced.

With greater activity in the chief constable, or the assistant superintendent of police, the inferior officers of the establishment at Sydney might have been compelled to do their duty; and from the observations that I was enabled to make of their character, I think that nothing but compulsion, or the fear of a vigilant and superintending authority, would have produced that effect.

The deposit of imported spirits in the commissariat stores at Sydney and Hobart Town, immediately upon their landing, except in cases where the importers paid the duty, under the immediate inspection of the naval officer and wharfinger, and the obligation of obtaining a permit from the assistant superintendent of police at Sydney, from the magistrates in the different towns, and from the magistrate of police at Hobart Town, for the removal of spirits exceeding one gallon in quantity, afforded some restriction upon the illicit importation or removal of them. A small percentage was allowed to be received by the commissariat officer in charge of the stores, for gauging and delivering and a fee of 6d. for each permit was allowed to the assistant superintendent, and the clerks to the magistrates.

For the purposes of further restraint in the sale of spirituous liquors, any person that offered a less quantity for sale than two gallons, was declared and deemed by the regulations published in the month of March 1811, to be a retailer, and subject to the penalties of selling spirits without a license; and it was also provided, that no person should be entitled to maintain an action for the recovery of any sum on account of spirituous liquors, unless the debt should have been really and bonâ fide contracted at one time to the amount of 20s. By a subsequent regulation, the restraint on the sale of spirits by retail was extended to five instead of to two gallons.

The illicit importation of spirits was considered by Mr. Wentworth to have been very common at Sydney. Permission to land them, or indeed any other goods, had been restricted to one quay in Sydney Cove, called the King's Wharf: but great facilities have always existed for the clandestine importation from ships in the harbour, from the great extent of its shores and the numerous bays and inlets that are contiguous. A constable upon whom it was thought some dependance could be placed was specially appointed to watch Sydney Cove, and a residence was assigned to him in a house that immediately overlooked it, and that was within the limits of the pleasure ground attached to the government house. In the month of October 1818 this individual was brought before the magistrates at Sydney for smuggling spirits, which were detected both at his own residence as well as in the premises of a licensed publican in the town. The military sentries posted at the King's Wharf, and the wharfinger, are the only persons that have received special orders to interfere in the landing of goods; and no person has any direct interest in preventing the illicit introduction of spirits except the naval officer, who receives five per cent upon the amount of all duties collected upon spirits and goods legally imported and landed, and the wharfinger, who is allowed a certain rate of charge on each package for wharfage. By the nineteenth article of the port regulations, republished by Governor Macquarrie on the 6th February 1819, it was declared that wine, beer, or spirits, discharged or landed from any ship or vessel in the harbour without a special and proper permission or license from the governor, countersigned by the naval officer, was liable to seizure by any constable or other peace officer, and to be condemned by order of the magistrates as forfeited to the crown. The master of the ship from which the spirits were discharged or landed was made liable, on due conviction, to a penalty of 50l. In neither case, however, was it declared that any part of the penalty was to be adjudged to the seizing officer; it is equally observable, that no penalty was declared against the act of discharging or landing spirits in any other part of the territory than in Sydney Cove.

I have already had occasion to advert to the opinions of those persons in New South Wales, who consider that the desire of obtaining and indulging in the use of spirituous liquors is the cause of the numerous offences that are committed there, and of the indigent and impoverished state of the lower orders of cultivators.

The great profits that have been derived from the sale of spirits, have tempted those who were more immediately interested in them to evade, and in some cases to defy the regulations by which any restraint could be effectually exercised. The magistrates at Paramatta have given every encouragement to their police officers to apprehend and detain both convicts and free men who were in a state of intoxication, and who were disturbing the public peace; and at Windsor a place of confinement has lately been added to the gaol, for the express purpose of the temporary confinement of persons apprehended during the night.

In my former Report I had occasion to advert to the circumstances by which the apprehension of three freemen by the keeper of the Paramatta gaol, for rioting and drunkenness, became the subject of public discussion. Although this exercise of authority by the gaoler, who at the time was not a constable, was liable to much abuse, on account of the inducement that it afforded him to go out of the line of his duty, to apprehend individuals for the sake of the fee to which he was entitled on their enlargement, yet in such a population as that of Sydney or Paramatta, it was necessary for the magistrates to hold out every encouragement to their subordinate officers, when clothed with due authority, to prevent the numerous and shameless excesses to which the lower classes of the inhabitants were addicted.

The returns of the coroner's inquests, both in New South Wales and Van Diemen's Land, exhibit the fatal consequences of these excesses; and the state in which the settlers or their servants are observed to return from the markets, and the injuries and accidents consequent thereto, amply attest the necessity of every restraint on the immoderate use of spirits, that can be effected either through the means of positive regulation or exemplary punishment.

In the same point of view are to be considered the regulations of an auxiliary nature, that Meditate the detection of crime or the punishment of excess, such as the regular exhibition of the names of the owners of carts and of boats, and of the numbers of each house in the towns; and more especially those regulations that tend to enforce a due observance of the Sabbath.

By the returns of fines and of the penalties levied in the Sydney district, it appears that some attention has been paid to the regulations of the first description, especially to the detection of frauds in the sale of bread and meat; but it was in the Windsor district that, under the superintendence of Mr. Cox and the Reverend Mr. Cartwright, the greatest and most effectual attention seems to have been paid to the regulations for the observance of the Sabbath, as well as those that tended to preserve or correct the morals of the lower orders. The strictness with which these orders were enforced has varied in the different districts; and in those where they had been relaxed, and were abruptly revived, cases of undue severity have occurred, in which the operation of motives more suspicious might be traced. The violation, however, of the first orders issued by Governor Macquarrie, for the strict observation of the Lord's Day, had in later years become frequent, and was in some degree encouraged by the example of certain individuals of the higher claws, whose carts and horses were frequently observed to be travelling on the high roads on Sundays. In the earlier periods of Governor Macquarrie's administration, he had found it necessary to issue both orders and admonitions for the prevention of labour on those days; and the regulation of the Sunday musters, introduced in the year 1814, had the erect of preventing the frequent employment of the convicts in field labour.

In the year 1820 several convictions for neglect of all these regulations took place; and notwithstanding the partial inconvenience which a sudden recurrence to them occasioned, the well-disposed part of the community readily acknowledged their beneficial effects. The custom, however, that had prevailed of holding the Sydney market on Fridays, had in some instances, and especially to the settlers at the Hawkesbury, rendered it difficult to avoid an occasional encroachment on Sundays; and the custom that was still more general of observing Christmas-day, and granting to the convicts exemption from labour at that season of the year, and at a period that was generally a very critical one for the wheat harvest, became the cause of interruption to its labours that was seriously felt.

The fines and penalties that have been enforced by the magistrates in the country districts, for the breach of regulations of police, are paid to the clerks, and constitute either a part of their remuneration, or a fund from which the expenses of the offices and of the police are partly defrayed. The fees on licenses to bakers, butchers and watermen, and those on carts, are likewise applied to the former purpose, and at Sydney, constitute a remuneration to the assistant superintendent of police and the clerks. The fines and penalties inflicted there are received by the clerk of the peace, who accounts for them in his receipt of the annual salary that was fixed by your Lordship.

In the Appendix are to be found returns from the different districts of the fines and penalties levied from time to time, and their application, together with the amount of fees received by the clerks in the different offices.

The return from the Windsor district is the most full, and embraces the longest period; but no distinction between the amount of sums paid to informers and the crown is made until the month of October 1816. The lines and penalties received at Windsor, from the 1st January 1810 to the 30th September 1816, amount to the sum of 502l. 12s. From the 1st October 1816 to the 31st May 1820, the portion of the fines payable and adjudged to the crown amounted to the sum of 240l. 16s. 8d. the portion to informers to the sum of 340l. 3s. 4d.

The magistrates have stated, that previous to the appointment of their present clerk Mr. Fitz, in October 1816, the accounts of the fines were kept by the chief constable and the clerk to the bench; and upon an examination of the accounts on the 30th September 1816, a balance amounting to 49l. 12s. 6d. was found due to the former, which was paid by an order of Governor Macquarrie from the police fund. The magistrates have further stated, that prior to that period they had no documents to show in what proportion the fines were distributed; the person who acted as clerk at that period having gone to England, and the former chief constable having kept no accounts.

By the return of fines levied in the Paramatta districts from the 17th January 1817 to the 25th July 1820, the gross amount appears to have been 732l. 7s. 4d. of which 423l. 18s. 3d. was raid to informers, 90l. to the colonial funds, 162l. 2s. 7d. to the local fund of the district, and 24l. was distributed to the poor.

In the Sydney return the fines and penalties levied by order of the magistrates, from the 12th July 1813 to the 10th July 1820, amount to 635l. 2s. 2d. and they have been paid to the informers, to the constables, or to the clerk of the market. Those in the district of Minto, since a bench of magistrates was established there, amounted for the year 1820 to 31l. Those in the district of Evan to the sum of 33l.; while those in Liverpool and the adjoining districts, for the years 1818-19 and up to the month of June 1820, amounted only to the sum of 105l.

The returns from these places (except Sydney, where no portion of the fines and penalties appear to have been adjudged to the crown; and from Liverpool, where certain portions have been credited in the account of Mr. Moore, for government work performed there) exhibit the manner in which the several sums were applied.

At Windsor, an allowance of 5 per cent was made to Mr. Fitz, the clerk to the magistrates, for the trouble of collecting the fines; and the remaining items of expenditure, both in that district and Paramatta, appear to have consisted of disbursements in aid of the police, the dispatch of constables and coroners, and sometimes of prisoners, stationery, and the repairs and supplies of fuel to the office in which the magistrates met and transacted their business.

The principal clerks to the magistrates were, Mr. Fitz at Windsor, Mr. R. L. Murray (who acted for Mr. J. J. Moore, the clerk to the judge advocate, and was since succeeded by Mr. Croaker) at Sydney, and Joseph Bradley at Paramatta; of these, none had come free to the colony except Mr. The son of Mr. Fulton acted as clerk to the magistrates at Evan, and two convicts acted in the same capacity at Liverpool and Minto. The principal and assistant clerk at Sydney received salaries from the police fund, and derived emolument from the fees that they took upon the issue of summonses in small causes under 40s. that the magistrates of Sydney were empowered to try and determine, by a proclamation issued by Governor Macquarrie in the month of July 1810. It was then provided that the judge advocate should always form one of the court for the decision of these causes; since that period similar jurisdiction has been mimed and exercised by the magistrates both at Windsor Paramatta and Liverpool; and from the convenience that the lower orders of the community derived from it, a general acquiescence had been established in the authority that the magistrates had so exercised. I am not aware, however, of any other foundation upon which it rested, until the proclamation of the 21st November 1818, which extended to the colony of New South Wales the provisions of the 20 Geo. II. c. 19, and gave to the magistrates the authority of hearing and settling disputes between masters, servants, artificers and mechanics, for work and wages not exceeding 10l. in amount.

Upon inspection of the book in which the proceedings of the magistrates at Windsor were recorded, I found that several cases had been heard and determined by them, both before and after the proclamation, that exceeded the amount of 10l.; and that they embraced small debts of every kind, more especially those for medical attendance, and in the recovery of which one of the magistrates, Mr. Milcham, an assistant surgeon on the colonial establishment, was sometimes interested.

It is stated by the chief constable of Windsor, that in the space of five years not less than two thousand causes of a general nature, and not exceeding 2l. in value, came before the magistrates at Windsor, and that the expenses in each rarely exceeded 10s. By the return of the clerk to the Windsor magistrates, it appears that between the 1st December 1819 and the 11th November 1820, two hundred and twenty-six causes, including misdemeanors, had been tried before the magistrates; and that the amount of fees due to the clerk was 32l. 4s. 11d. and that the chief constable's fees for summonses was 38l. 3s. 6d. of both of which a certain portion was considered to be irrecoverable on account of the poverty of the parties. The clerk was also allowed by the magistrates to charge 5s. for petitions for mitigations of sentence, which in the year 1819 amounted to 123l. and the same sum for memorials for land, that were estimated at 100l. which, with a trifling addition for slaughtering and cart licenses, afforded him a net profit of 100l. An additional clerk, who was a convict, had latterly been allowed; and he received rations from the store, was provided with lodging, and was allowed the services or profits of the services of a convict, who was also victualled from the King's store.

The return of causes tried before the magistrates at Paramatta, from the 4th September 1819 to the 26th August 1820, exhibits the several items of costs paid to the clerk in one hundred and fifty-seven causes of dispute between masters and their servants, and misdemeanors and breaches of the peace, that were heard and determined in that period, and which with two small sums received for cart and slaughtering licenses, amounted to 50l. 10s. 6d.

In the return that was made by Mr. R. L Murray, the principal clerk to the Sydney magistrates, there is distinction made of the several sources from which the sum of 133l. 16s. 6d. (the amount of fees for two years, commencing the 30th June 1817 and ending the 30th September 1819) was derived. It is stated that two-thirds of these fees are received by the principal clerk, and one-third by the assistant clerks; and that in four cases out of live, the fees are remitted on account of the indigence of the parties. The return further states that the fees on slaughtering licenses and permits do not amount to more than 1l. per week.

It has already been stated that the fines and penalties received at Sydney, have been paid to the clerk of the peace since his appointment to that office in the month of January 1817; and that he has given credit in his account for business done as solicitor for the crown, for penalties as well as duties recovered in the Supreme Court and received by him, against which he would be entitled to set-off his annual salary from the date of your Lordship's approval of his nomination to the office.

The amount of fees received by the clerk of the peace from the 22d February 1817 to the 30th December 1820, and consisting of the fees upon spirit and beer licenses, upon withdrawing recognizances, upon subpœnas to witnesses in prosecutions carried on by individuals, and upon subpoenas of witnesses by prisoners, amounted to 112l. 19s. 4d.

In the year 1819 a notice was issued from the office of the clerk of the peace, intimating that prosecutors and persons under prosecution were to apply there; and that they would there receive advice as to the several matters in which they were concerned, and as to the exhibition of informations against them, and the time of appearance and trial. The precise purpose of this intimation did not seem to be understood or much observed, as applications were more frequently made to the judge advocate than to the clerk of the peace. One instance, however, was brought to my notice, in which the convict clerk of Mr. Wylde, sen. had received, on behalf of that gentleman, the fee of 10s. for discharging the recognizances entered into by a woman, who had been charged before the magistrates at Sydney and admitted to bail, for an offence that subjected her to be tried by the Criminal Court, under Lord Ellenborough's Act, for cutting and maiming. Mr. Judge Advocate Wylde had not signified that a criminal information should not be exhibited; but a few days before the session commenced in January 1820, it appears that the prosecutor and the prisoner agreed to compromise the matter, and that it was treated as a common assault, and the recognizances were withdrawn through the intervention of the convict clerk of the clerk of the peace. The fees taken by that officer have never been approved by Governor Macquarrie, but the charges exhibited in his account appear to be conformable to similar charges in England.

A highly improper practice has occurred in the offices of all the clerks to the magistrates, of allowing parties under prosecution to obtain copies of the informations taken by the magistrates, on payment of a regulated fee; and I further observed, that at Paramatta and Windsor the entry of the evidence in the record books was allowed to be greatly in arrear.

The regulations of police that have appeared to individuals unacquainted with the colony to be most severe, are those that denounce the punishment of forfeiture of property in cases that involved no other consequence than that of a common trespass. Of this nature was an order issued by Governor Macquarrie on the 16th August 1817, by which all boats in which any person should be found to have landed or embarked, from a landing-place on Bennelong's Point in Sydney Cove, were declared liable to seizure and confiscation, for the benefit of the parties seizing them. The declared object of this order, was to preserve a particular landing-place for the personal accommodation of the governor and his family. Another purpose of the order, which this precaution would equally have met, was the prevention of access from Sydney Cove to the walks in the government grounds, either for bathing or for concealment. It does not appear that any conviction under this order ever took place; and Mr. Judge Advocate Wylde stated that he should not have put it in force if any violation of it had come before him.

Of a similar import and effect was another order of Governor Macquarrie, that he put in force against three free persons, (two of whom had formerly been convicts, and one had accompanied his wife to the colony); two native-born young women, and three convicts, for pausing over the wall that separates the government pleasure ground front the open space near the town of Sydney, that is called Hyde Park. After the improvements in the government pleasure grounds had been completed, an entrance for the public was permitted through a gate, near to which a lodge was built for a constable, and an order was issued by which persons were prohibited from going over the wall, or destroying the fences in the grounds within it.

It is stated by Mr. Wentworth that this prohibitory order had been published; but it is not to be found in the Sydney Gazettes for more than one year preceding the commission of the offence; nor do I find that it ever denounced the penalty of flogging against those who should contravene it. The person who was the chief constable at the time, has referred in his evidence to an order published by Governor Macquarrie subsequent to the occurrence in question, dated the 6th July 1816, hut he was not able to vindicate or to find any other order relating to the same subject.

Mr. Wentworth states that the prohibitory order had been published at a period long antecedent, and thinks that it had been repeated; but both he and the chief constable agree in stating, that the grounds that had been inclosed had become the place of frequent deposit of stolen goods, on account of the facility of concealment that was afforded by the shrubberies, and that it was also a place of resort and assignation to disorderly persons. The wall that separates the inclosed grounds from Hyde Park had been frequently broken down; and parties, either from mischief or from unwillingness to resort to the grounds by the regular entrance, persisted in making use of these numerous breaches.

A party of native blacks, that Governor Macquarrie had settled on the northern shore of the lower harbour, were in the habit of traversing the grounds in their way to the settlement, preferring a direct and concealed path to one more public and circuitous. It does not appear that any measures had been taken by the police to prevent or remove the nuisance that these clandestine entrances to the grounds created, and at last they were so often repeated, that Governor Macquarrie ordered the chief constable to place and conceal two confidential men on the inside of the wall, and to order them to apprehend and carry to gaol whomsoever they should find trespassing or coming over into the government grounds. They were ordered not to apprehend any one until they should have passed the wall and had got into the grounds. Verbal directions were also given to them to take the offenders to gaol, and not before any magistrate. One man, named Reed, was apprehended on the first day, and Henshall and Blake on the day following. They were seized as soon as they entered the grounds; and Henshall stated, that he had come there for the purpose of collecting some sand for casting metal, which it appears was the trade that he followed in Sydney. Two young women and two convicts were also apprehended; and one of the former was accompanied by a child, and appeared by the declaration of the constable, to have resorted to the domain for the purpose of taking a walk. They were conveyed to the gaol; and the women, being much alarmed, were suffered by the constable to go to the house of a very respectable merchant in the town, in whose service one of them was, for the purpose of leaving her child before she went to prison. Her mistress having refused to give her up, was threatened by the chief constable with a warrant if she continued to detain her. The women were then given up and conveyed to gaol. On the morning after their apprehension, the gaoler reported to Governor Macquarrie the number and names of the persons detained, and then in gaol, for breach of his orders; and after he had answered the governor's inquiries respecting the characters of the men and the women, Governor Macquarrie gave him an order for punishing the three free men, Reed, Blake, and Henshall, and one of the convicts, with twenty-five lashes, and the two other convicts with thirty lashes each. The women were ordered to be confined for the space of forty-eight hours in a cell.

The gaoler it appears had explained to Governor Macquarrie by his desire who the men were, stating that Reed was a stone-mason, and had received his emancipation; that Blake was a free man, who he believed had come to the colony with a permission from the secretary of state to accompany his wife; and that Henshall was also free by emancipation, and had been employed (as the governor seemed to be aware) in cutting dollars. The gaoler states that the governor made no further observations, but gave him the order for inflicting the punishment above stated, and that they were inflicted accordingly in the gaol, and the men were then discharged.

Mr. Wentworth states that the order or warrant of Governor Macquarrie was shown to him by the gaoler before he proceeded to execute it, and that he felt the strongest desire to suppress it, thinking that the governor had issued it in a moment of irritation, and that he would upon cooler reflection withdraw it. It was executed notwithstanding; and when the circumstances became known, created a great degree of alarm amongst all classes of the inhabitants. Amongst the most sensitive were many of the convicts whose sentences had been remitted by Governor Macquarrie, and who afterwards joined in a petition to the House of Commons, complaining of this as well as other acts of his administration.

It does not appear, however, that the apprehension of a repetition of this species of punishment was attended at first with the desired effect, for on the 6th July 1816, three months after the punishments had been inflicted, the governor issued an order, stating that as trespasses of the same kind still continued to be committed, all persons who should thereafter be apprehended in pulling down or passing the wall would be punished in an exemplary and summary manner. The wall was afterwards repaired, strengthened and raised, and since that period similar trespasses have not occurred, nor has resort been made to similar punishments. The necessity for adopting it in the instance now under consideration does not appear to me to be evident. No resort had been made to the officers of police or the assistance of the superintendent, whose authority, or whose vigilance at least, was impeached by such an exertion of the magisterial power by the governor; neither was there any necessity for dispensing with the sworn testimony of the constables who apprehended the trespassers, or of producing a belief in the community, that in the commission of offences in which, as in the present, the personal feelings of the governor might be supposed to be engaged, an entire dispensation would take place with those forms, by which the lives and persons even of the convict classes of the population were secured. I was informed that in only one instance a punishment of a free person without trial had taken place, by order of any preceding governor, since the foundation of the colony. Even with the allowance that man people were disposed to make for the effect of temporary irritation in Governor Macquarrie, that had been produced by the obstinate perseverance of the people of Sydney, in perverting to criminal and immoral purposes a place that he had been at some pains to secure and to devote to their rational amusement and benefit; and allowing also for the advantage of summary punishment in cases of wilful or repeated trespass, the act itself, and the manner in which it was executed, made a deep and lasting impression upon the minds of all, and has become a sort of standing reproach against the system by which the government of the colony has been administered. Of the illegality both of the punishment itself, slid of the manner in which it was executed, no doubt can be entertained; and the only justification of such an act could be found in the acknowledged inefficacy of others, or the insensibility of the population of New South Wales to the same methods of restraint or control that are found effectual elsewhere. Until legal methods had been tried and exhausted, I do not think that Governor Macquarrie could find any excuse for the summary mode of proceeding and punishment to which he resorted. There was no imminent danger that required the sudden interposition of extraordinary power, and there was no practice of such pernicious consequence or clandestine nature, that defied the ordinary measures of preventive police, or the ordinary means of proof either before the magistrates or before the Criminal Court. The constables were ordered to conceal themselves within the pleasure grounds until the individuals had passed the breaches in the wall, and then without satisfying themselves, or even without inquiring or waiting to see whether their purpose was innocent or guilty, they were ordered instantly to apprehend them, without a warrant, and to commit them to gaol. The object of departing thus violently from all the forms of legal proceeding, was to deter, by the effect of power, those whom the fear of the law could not restrain. To me it appears that if the object even had been gained by these means, and not by the simple and obvious expedient of raising the wall, and making the passage over it more difficult, the advantage that was obtained by an intimidation of the careless and profligate, was hardly counterbalanced by the feelings of alarm and of just apprehension, with which this act was viewed by the moral and reflecting part of the community.

These feelings were taken advantage of by persons who were hostile upon other grounds to the administration of Governor Macquarrie, and led to a statement of grievances that was intended to be submitted to Parliament and was forwarded to England for that purpose.

The means that were adopted for procuring support to the petition, in which the Founds of grievance were set forth, were not of the most respectable kind; and in the petition some are alleged that could not in truth or justice be imputed to Governor Macquarrie. It is unfortunate, however, that there should have existed any ground upon which even the enemies of Governor Macquarrie could fasten an imputation so foreign to his real character as that of tyranny or severity, or upon which he could be charged with a deliberate violation of the law.

Independent of the occasional orders that have been issued by him for the summary punishment of slight offences, there exists a restraint upon the right of individuals to meet together and express their opinions upon matters of public concern, and a restraint upon them in the exercise of a domestic right, that of slaughtering their own cattle, that appears at the first view of it to be the cause of much inconvenience.

The first of these restraints was declared in a proclamation that was drawn by Mr. Judge Advocate Bent, and was published in the Sydney Gazette on the 27th November 1813. The reasons for issuing this proclamation are stated to have arisen from a combination of certain individuals, which was promoted and accomplished by meeting and assembling together, for the purpose of altering the then subsisting rate of exchange between the bills drawn for the public service, and the promissory notes issued by different individuals. At this meeting they came to a resolution of not taking in payment any private promissory notes of any person other than such as were issued by themselves. It was therefore ordered that no meetings of any description of persons exceeding six, excepting the general and special meetings of the magistrates, should be held in New South Wales, for the purpose of deliberation upon any matters relative to the trade, commerce, agriculture, manufactures, policy or interests of the colony, without previous notice in writing to the provost marshal, containing the purpose for which the meeting was to be held, and signed by seven persons at least, and unless the meeting should be convened by the provost marshal after a notification of five days at least in the Sydney Gazette. All other assemblies not convened in this manner were declared to be unlawful, and the provost marshal and magistrates were authorized to require the persons assembled to disperse, and if any number exceeding six continued together after the space of one hour, they were liable to be declared guilty of an unlawful combination and conspiracy; to be sent to any part of the territory, and there to be left to hard labour for three years. Although the avowed cause of this proclamation has nearly ceased to exist, in consequence of the substitution of the notes of the bank of New South Wales and the store receipts, for the promissory notes of individuals, yet as far as regards the right of the inhabitants to assemble for any other purposes noticed in the proclamation, it is still in operation. The only meeting that has taken place for several years, in which questions of public or general interest have been discussed, was that in which it was resolved, in the year 1819, to present a petition to His Majesty, praying for the institution of trial by jury; the permission to distil spirits from grain, and the removal of certain other commercial restrictions. I am not aware that any abuse has been made of the unction under which this or other meetings have been held in New South Wales; but I conceive that the proclamation in question affords a very salutary restraint, not less necessary now for the tranquillity of the colony, than it was at the period of its first enactment.

The proclamation for regulating and restraining the slaughter of cattle, was issued on the 6th June 1812. It provided, that after the 1st July of that year, no person should keep or use any house or place for the slaughtering of cattle, without previously taking out a license from the magistrates of the district within which the house was situate, and that no cattle should be killed or slaughtered for any purpose, unless by some person duly licensed. Six hours notice was required to be given to the inspector, for the purpose of enabling him to take an account of the age and marks of the cattle intended for slaughter; and in case persons should bring them to a licensed house for that purpose, an entry was required to be made in a book of the name and place of abode of the owner, and the purpose for which the cattle were intended to be slaughtered, and access to this book was further required to he given to the inspector. Upon receiving notice of the intention of any person to slaughter cattle, the inspector or his servant was required to attend and to take an account of the cattle, and make an entry of them as well as of other particulars in his book, for which he is entitled to receive a fee of 2s. from the owner of the licensed slaughterhouse; and any person was allowed to examine this book on payment of 1s.

It was then declared, that if any person should offer to sell or should bring any cattle to the owner of a slaughter-house, and should not be able, or should refuse, to give a satisfactory account of himself, or the means by which the cattle came into his possession, and if there should be reason to suspect that the cattle were stolen or unlawfully obtained, a power was given to the owner of the licensed slaughterhouse, or to the inspector and his servants, to seize and detain such person and the cattle that they brought with them, and to deliver them both to the custody of a constable, who was required to take them before a magistrate; and if the magistrate found cause to suspect that the cattle were unlawfully obtained, he might commit the persons who brought them to safe custody for eight days, for the purpose of further examination, and afterwards for trial. The penalties upon persons slaughtering without license or giving notice, or making false entries, or neglecting to keep a book for that purpose, do not exceed 20l. and are not less than 10l.; and in default of payment, the magistrate is authorized to commit the offending party to gaol, and to hard labour, for a term not exceeding three months, nor less than one month. An exception was made in favour of the persons employed to slaughter cattle for government at any of the public slaughter-houses, and also in case of severe accidents, when it might be necessary to kill them speedily; notice, however, was required in such cases to be given to the inspector twenty-four hours after the cattle were slaughtered, and the hides were required to be shown to him. The fee for the slaughtering licenses was fixed at 5s. and made payable to the magistrate's clerk. In the year 1815, Governor Macquarrie, with a view to reduce the charges for slaughtering cattle made by the private butchers in Sydney, caused a slaughterhouse to be erected on the shore of Cockle Bay, near Sydney Cove, and appointed a superintendent and inspector with a salary of 50l. per annum, and a certain number of convicts under him, that are maintained by government, for the purpose of receiving and slaughtering the cattle that are brought from the government herds, or those of individuals, that were intended for the supply of the government stores with meat. For this duty the superintendent was and is allowed to charge 6s. sterling for each head of horned cattle, which includes the charge for inspection; and he is not entitled to receive any other perquisite or emolument whatever. The fees thus received are paid to the treasurer of the police fund, and constitute a portion of the colonial revenue.

[Observations on the Port Regulations]

The object of these regulations was the prevention and detection of cattle stealing at a period in which the herds were much dispersed, and little seen or visited by their owners; and to ensure proper attention to the state and condition of the cattle that were supplied to government. In Van Diemen's Land, where the system of sheep stealing appears to be organized, and to be practised as well by those that possess sheep as those that have none, it has been found necessary to enforce these regulations, as well as that of branding and marking the cattle and sheep of each proprietor, with greater strictness than in New South Wales; and as the principal meat market in both settlements is that which is afforded by the demand of government, the inconvenience of the regulations have not been much felt, and I found that the necessity of continuing them was generally acknowledged.

The port regulations contain several provisions that are not known in the other colonial possessions of His Majesty, and are not without inconvenience to strangers as well as to the inhabitants, on their arrival and departure from the colony.

A great portion of these regulations had been introduced by the predecessors of Governor Macquarrie: they were at length reduced to a more technical form, and published by him on the 1st of October 1810.

The regulations apply to the precautions that have been deemed necessary to secure the revenue from the introduction of spirits or goods that have not paid duty; to the introduction into the colony of individuals that have not received the permission of the secretary of state to land or settle in it; to the detection of those who are about to leave it, without making proper provision for the payment of their debts; and for the detection and arrest of convicts whose sentences are not expired, or who, if pardoned upon condition of remaining in the territory, may make attempts to quit it; and finally, for the identification of the persons of those whose sentences have expired.

To these are also added regulations for the prevention of the sudden and violent seizure of vessels by the convicts in the harbour, with directions for mooring and securing them during their stay in it.

Governor Macquarrie, having found that several of these provisions were inapplicable to the extended trade and commerce of the colony in the year 1813, requested Mr. Judge Advocate Bent to undertake the trouble of revising them.

Your Lordship has already been informed of the circumstances that influenced Mr. Bent in declining that duty, and the port regulations remained nearly in the state in which they were first published by Governor Macquarrie in the year 1810, until the year 1819, when Mr. Judge Advocate Wylde, at the solicitation of Governor Macquarrie, undertook to give them a more connected and technical form, apprising the governor at the same time that he declined all responsibility for the variations from the law of England that the regulations contained.

Independent of the restrictions that have been before alluded to, certain duties are imposed upon all foreign and English vessels frequenting the port for wood and water, for the support of the lighthouse, and for mooring and heaving down vessels by means of chains provided by government.

The necessity of the regulations that more particularly apply to the prevention of the escape of the convicts in ships, appears to me to be greater at this moment than at former periods, and will continue to increase with the trade of the colony, and until the convicts shall be entirely withdrawn from those parts of it that are frequented by merchant vessels. I have already had occasion to state that no account or memoranda have been kept of the escapes of convicts from the colony, and the superintendent stated his belief that many more were successful than became known to him. Mention of such as were notorious has been made from time to time in the Sydney Gazette, and a document in the Appendix contains extracts from it, and exhibits the number and circumstances of the convicts that have escaped from the colony from the year 1803 to 1820.

It appears that, in this period, two hundred and fifty-five convicts have attempted to escape, either by concealing themselves on board vessels, or by attempting to seize them by violence. One hundred and ninety-four have been retaken, and nine have died. Their usual object in making escape is to land in India; or, in taking possession of vessels, to make their passage to Timor or Batavia.

The precautions that are required on the departure of every vessel oblige all persons who are to take their passage in them, with the exception of the crew, to obtain certificates from the judge advocate's office, that no detainers are lodged there against them for debt; they are likewise to repair to the secretary's office, where, on production of those certificates, their names, age, and place of abode are taken down; and if it appears that the person presenting himself has been a convict, a reference is made to the original indentures, and subsequent pardon that he may have received. This examination, when the passengers are numerous, occupies a considerable time, and affords opportunities to the sailors to make their escape from their vessels, or to prolong their absence from them, at a period when their services are of some importance, and when the vessel, as has sometimes happened, has been left under the management only of the captain. The most inconvenient part of this regulation might be avoided if the muster of the ship's crew were taken by the colonial secretary on board the vessel, as near as may be convenient before the period of its actual departure. The passengers, however, should still be required to repair to the secretary's office, to have their names inserted in the clearance, before the vessel weighs anchor. Ships leaving the harbour are searched by the chief constable, and if any suspicion exists of convicts being concealed on board, the naval officer is empowered to cause the vessel to be smoked.

To prevent the convicts from joining vessels under weigh, and until they have cleared the heads, they are required, except in cases of necessity or of stress of weather, to proceed to sea direct. In many cases this is not practicable; and one of the government vessels with constables on board is generally ordered to accompany outward-bound ships, and to remain near them until they have cleared the harbour. Several occurrences of late date, both in the river Derwent and at Port Jackson, have proved the necessity of these regulations, more especially as there exists no legislative authority by which the act of carrying away or enticing convicts to leave the colony, or aiding in their escape, can be punished.

Upon a discovery that was made of several convicts on board the American brig General Gates, at New Zealand, by Captain Skinner of His Majesty's store ship Dromedary, it was found that they had been concealed for some days on the northern shore of Port Jackson, before they were received on board the brig; and that in the night before its departure, they contrived to conceal themselves during the time that the constables were on board, and until the vessel had got out to sea. Captain Skinner on discovering at New Zealand that these men were convicts, and had been enticed to leave New South Wales by the captain, immediately seized the General Gates, and put her in charge of one of his own officers, by whom she was conducted to Port Jackson.

Upon a consideration of the case by the judges, it was not deemed prudent to try the captain criminally, but the obligation into which he had entered, and by which he had bound himself not to take away any convicts from the colony, was put in suit against him; his vessel was detained for a considerable time, and he was arrested and continued in gaol until a compromise was effected. The circumstances of the case were such as required very exemplary punishment; and the deliberation with which the scheme had been effected by the American captain, and the facility with which it was accomplished, prove the necessity of some legislative enactment, by which the act of taking away or enticing convicts (knowing them to be such), from any part of New South Wales or Van Diemen's Land, may be declared to be a misdemeanor, and punishable with fine and imprisonment.

It has been found necessary at all times at Sydney to adopt severe measures against seamen apprehended as deserters from their vessels, and to prevent them from being at large in the colony, and to stimulate the apprehension of them by high rewards. The sum of 40s. is divided between the chief constable of the district and the person who apprehends a sailor that has left his ship, and lodges him in gaol. The further sum of 2s. 6d. per night, independent of incidental expenses, is allowed by the thirty-third article of the port regulations, and is ordered to be paid by the master of the vessel to which the sailor belongs, to the chief constable and the gaoler.

In case of the wilful absence of sailors from their vessels, or their being found on shore at improper hours, they are liable to be apprehended and lodged in gaol, until they are brought before a magistrate, who in cases of disobedience or disorderly conduct, is empowered to detain the sailor in custody, and to order him to work at government labour until the departure of the vessel from the port. Publicans and other persons harbouring or enticing away sailors from their duty, are liable on conviction to fine, imprisonment and corporal punishment.

From the temptations to excess, and opportunities of indulging in it that are supplied by the town of Sydney, especially in that part of it to which the sailors have the most direct and immediate access on landing from the ships, many complaints are made; and much inconvenience is felt by the masters of vessels in the harbour. These complaints are brought before the magistrates at Sydney, who, although conscious of their want of authority to proceed in such cases, have frequently ordered both detention of sailors in gaol, and punishment of them in the chain gang.

By the thirty-second article of the port regulations, masters of vessels are liable to a penalty of 15l. for engaging or hiring any sailor belonging to a vessel in the harbour that is not duly discharged; but as sailors are frequently found to have remained in the colony after the departure of their vessels, and are afterwards apprehended and lodged in gaol, masters of vessels who are in want of men have resorted to the gaol, where, on payment of the fees of apprehension and subsequent detention, as well as those or certificates of no detainer from the judge advocate's office, by the master, the sailors have been allowed to embark either in European or colonial vessels.

The frequency of piratical seizures of vessels by the convicts in Sydney Cove, as well as the practice of smuggling spirits and goods from vessels anchored there, induced Governor Macquarrie, on the representation of Major Druitt the chief engineer, to establish a row-guard for the protection of the harbour police. The establishment consisted of two masters and two boats, with such a number of sailors attached to them as the duty required.

It was ordered, that one of the two guard boats appointed to this service should prevent all intercourse between convict ships in the harbour, as long as the convicts were on board, and the shore; and should allow no boats to approach them except those that were going with supplies from the commissariat stores, or except they had special permission from the governor. In the night-time the row guard was to keep watch and to prevent smuggling, and to apprehend and detain in one of the watch-houses, any persons who might be found violating the port regulations. They were further to accompany all vessels departing from Port Jackson to the outside of the heads, and not to permit any boats to go alongside, or to suffer any persons to board them, unless they belonged to the vessel.

Certain other regulations, as to the number and names of boats plying in the harbour, were added; and it was ordered that all such boats should be made fast with an iron chain from sun-set to sun-rise, on pain of seizure and the owners being fined.

The seizures that might be made by the officers and crew of the guard boat are ordered to be divided in the following manner: one-third in equal proportions between the master and the crew, and two-thirds to the police fund.

Such are the principal regulations by which the police of the country and harbours in New South Wales, as well as the revenue, is maintained. They are considered and are held to be applicable to Van Diemen's Land, and are in force in that settlement. The manner of granting spirit licenses there differs in some respects from that which has prevailed at Sydney: the memorials of persons wishing to have licenses are required to be certified by one or more magistrates, but in case of a renewal such a recommendation is not required.

On the 29th of September in each year the memorials are presented to the lieutenant-governor, who transmits them to the magistrates, stating that he sees no objection himself to them, but requesting that if the magistrates are aware of any, arising from improper conduct of the applicants in the interval, the circumstances may be stated and the memorials returned to him. If no objection be made the licenses are signed by the magistrates. They are thus granted by them upon a previous sanction given by the lieutenant-governor.

In Van Diemen's Land, it further appears that the practice does not prevail of allowing the wives of convicts, or of those who hold tickets of leave, to keep licensed houses for the sale of spirits; and that in one instance only has it occurred that a magistrate had any interest in the sale of spirits.

The number of licenses in Hobart Town granted in the year 1818 was twelve, and three were granted for the country.

In the succeeding years this number was augmented only by one in Hobart Town, and it was reduced to two in the country. Mr. Humphrey, the police magistrate, was of opinion that this number was too large, and that if it was reduced the houses would be more easily watched; and from the augmentation of profit that persons of greater respectability would be found to undertake their management, and from the fear of forfeiture would be more circumspect in their conduct.

From the year 1816 to 1820 eight convictions only have taken place for selling spirits without a license, and no instance has occurred of any proceeding against a keeper of a public-house or his sureties for breach of the regulations, or of good order in his house.

The execution of the port regulations at Hobart Town is attended with greater difficulties than at Sydney, on account of the greater distance from the town to the sea, and the opportunities that the shores afford of concealment and escape. The precaution that has been found the most effectual is the strict search of vessels previous to their departure, and as strict a muster of the convicts in the employment of the government.

The principal difficulties that have occurred to the magistrates in the execution of the several orders, issued from time to time by the successive governors of New South Wales, have arisen from the dispersed and undigested state of the documents in which they were published.

An attempt was made by Mr. Judge Advocate Wylde to form a collection of them, but he was of opinion that some of the colonial regulations of older date had escaped his research; and I am not aware that it was his intention to continue the labour in which, at the governor's request, he had so meritoriously engaged.

One of the first steps that I should therefore recommend, would be that of employing some person in New South Wales to copy and reduce into a digested form the different orders and proclamations that have been issued, or to extract front others such regulations as are strictly connected with matters of police, the superintendence of the convicts, the regulations of the police of the town of Sydney, and the rules for granting passes to the convicts to enable them to proceed from one district to another, as well as to Sydney. These, when copied, I should recommend to be submitted to the magistrates individually, and that they should be requested to deliver their written opinions upon the necessity and expediency of continuing to enforce the orders or of enacting others.

Upon being returned to the governor, they should be referred to the attorney-general of the colony, or other law-officer, to consider and to state in what respect the several provisions recommended are found to differ from the principles of the laws of England.

The want of some legislative authority in the governor to enact and give effect to regulations that differ from the laws of England, or exceed them, is one for which it is necessary to provide. I should recommend that after the governor has taken the written opinions of the magistrates of the colony, upon the subject of any old or new regulation of police, a power should be given to him, by the legislative authority of Parliament, to issue such of them as shall have been approved by the opinions of a majority of the magistrates. These enactments should further be subject to the approval of His Majesty, and in case no dissent should be signified by His Majesty's secretary of state within two years from the date of their actual transmission, the enactment should be considered to be approved: Your Lordship will have observed that Governor Macquarrie has, upon several occasions, adopted the course here recommended; and when the principles of the regulations, past or present, shall have been agreed upon, they should again be referred to the attorney-general, for the purpose of being reduced into technical but perspicuous language, and into a consistent form; they should then be published, and care should be taken in every succeeding proclamation that may be issued by the same authority, to refer to any former one that is either confirmed or repealed.

As long as it shall be deemed expedient to retain any portion of transported convicts in the settled districts of New South Wales, it will be found necessary to augment rather than diminish the present number of the magistrates.

I believe that it was the intention of Governor Macquarrie to add to the number of those whose names were inserted in the commission, that was issued previous to my departure from the colony, and if that augmentation shall not have already taken place, I will beg leave to name five gentlemen whom I consider as particularly qualified for the office of magistrates and two of them resident in districts in which their services are much required: Oxley, the surveyor-general of the colony; Mr. James M‘Arthur; Major Antill; Mr. Alexander Berry; and Mr. Bouman, the principal surgeon.

At Sydney it must be expected that for some time to come the duties of the magistrate of the police will be too heavy for the casual attendance of those who are occupied with other business, and without meaning any disrespect to the magistrates that are now resident in Sydney, or to the individual who for some time filled the office, I conceive that its duties require a more undivided attention than any of them were capable or willing to afford, and a more competent knowledge of the law and more personal activity than any of them had acquired or possessed.

The salary at present attached to the situation of superintendent of the police, and amounting to 200l. per annum, would not form a sufficient inducement to a competent person from England to undertake the duty, even with the advantage that was to be annexed to it of a good residence in Sydney, and office attached; both of which Governor Macquarrie had undertaken before my departure.

The death of Mr. Minchin, who was appointed upon the resignation of Mr. D'Arcy Wentworth, has deprived the colony of services that promised to be very beneficial when assisted by more experience. Without any knowledge of the terms upon which Mr. Wentworth has again been appointed to the situation, I should recommend that, in the event of his resignation or wish to retire some person that has been connected with the duties of the police in London, should be appointed to the situation of superintendent of police of Sydney, with a salary amounting to 500l. per annum, and the usual allowance of convicts, maintained and clothed at the expense of the crown.

As there is no necessary connection between the office of the superintendent of the police and the treasurer of the police fund, and as it is important that the attention of the superintendent should not be abstracted from the business of that, department, I recommend that the office of treasurer should either be annexed to that of the naval officer, or that a colonial treasurer should be appointed for the receipt of all duties, fines and penalties whatsoever, that are not payable to the informers.

The regulations and forms that have been introduced into the office of Mr. Humphrey, the police magistrate of Hobart Town, may be adopted with great benefit at Sydney; and the magistrates in the country districts should be enjoined to adopt similar forms in the official documents that they issue, and especially in the passes that are given to the convicts when permitted to remove from one district to another. As it has been recommended in my former Report, that a power should be given to the magistrates of the colony to extend the punishment of convicts for offences committed in it, beyond the term of their original sentences, the concurrence of three magistrates should be required to make such sentences valid. I further recommend that not less than three magistrates should be required to give validity to any sentence, by which a convict is ordered to receive more than fifty lashes, or to be transported from the settled districts to the new settlements for a longer term than one year. The evidence upon which the sentences are founded should be entered carefully in the record book of the proceedings of each bench of magistrates, and should be signed by them at the end of every month.

A return of all punishments inflicted, and penalties or fines levied by order of one or more magistrates, should be matte with regularity every quarter to the governor, distinguishing the name of each person, the date of the sentence, the names of the magistrates by whom it was ordered; and more especially the description of the convict, whether transported for seven, for fourteen years, or for life. I have already stated, that these particulars ought always to accompany the returns of the offences tried and Punished by the Criminal Court, that are made to the governor and transmitted to your Lordship; and by requiring a yearly abstract to be made from the quarterly returns of the magistrates, of the number and nature of offences committed in the different districts of the colony, with the particulars above enumerated, and classing them under the different districts from which each return is made, an opportunity will thus be afforded of ascertaining the moral condition of the inhabitants.

By gradually withdrawing from the settled districts those convicts that are incapable of rendering any useful service to the settlers, and by not reserving a greater number for the use of government than can be conveniently lodged in the different barracks at Sydney, Paramatta, or Windsor, there is reason to conclude that the magisterial business in the settled districts will be considerably diminished. In the town of Sydney this change will not so soon be experienced; but upon the appointment of a new superintendent of police, it appears to me that the office of assistant superintendent will be no longer required.

The assistance of two efficient clerks will be required at Sydney, for the daily business of the office of superintendent of police, as well as for the proceedings before the magistrates.

One clerk will also be required at Paramatta, Windsor, and Liverpool. Clerks have been allowed to the magistrates that have lately met to transact business in the districts of Evan and Minto; and in situations retired as these are, there is less objection to the employment of convicts who have been accustomed to clerical occupations.

The fees that have been received by the clerks for summonses, bail bonds, warrants, depositions, and executions, together with an allowance of rations from the King's store, have constituted the remuneration for their clerical assistance and attendance. One item in the schedule of these fees will admit of reduction from 10s. to 5s. in bail bonds, the whole of which should be paid to the magistrate's clerk instead of being divided with the gaoler.

To produce greater uniformity in the proceedings, I recommend that as many documents as are capable of being reduced to form should be printed, and not copied by the clerks; and that all orders for the punishment of the convicts, and all commitments, should be signed by the magistrates themselves and not by their clerks.

These persons should likewise be strictly prohibited from giving copies of any proceedings before the magistrates without their order. Sufficient publicity is afforded to every thing that passes before them; and much harm has been done by the practice that has long prevailed, of allowing copies of proceedings and informations to be given by the clerks to individuals who apply for them, on payment of the fee of 1s. 4d. per folio, that is allowed in the schedule.

It has been the practice to remunerate this class of functionaries, by assigning them rations on the store for their families and children, and a considerable portion of the expense of the police establishment has been thrown on the British treasury, that ought unquestionably to have been defrayed by the colonial funds. To all the clerks of this description, therefore, that are free, an addition of 20l. per annum may be made in lieu of rations; but to the convicts who are allowed by way of indulgence to act as clerks, rations must still be continued, together with an allowance of soap; and I should recommend that the fees that they are permitted to receive should be placed under the control of the magistrates, that a certain sum should be appropriated under their direction to the purchase of decent clothing, in which these convicts should be required to appear when acting in their clerical capacity.

Having submitted to your Lordship the result of the several accounts of the fines and penalties that have been levied by the magistrates in the districts, and having observed that some benefit was derived from the discretionary application that had been made of the local funds so collected in their hands, I have seen no reason to disapprove of the appropriation that has hitherto been made by the magistrates; and in more than one instance at Windsor, I observed that a portion of the local funds had been applied to the purchase of articles that ought to have been defrayed by those of the colony.

The magistrates might be further authorized to apply those funds in the remuneration of constables, for activity in the apprehension and pursuit of offenders, and in reimbursing poor persons for the expense of attendance in courts upon criminal prosecutions.

For these reasons, I am disposed to recommend that the same system should be continued; and that at the end of every year copies of the accounts, signed by the magistrates acting in each district, and setting forth the nature of the fines levied and their appropriation, should be submitted to the judge of the Supreme and Criminal Court, and when examined and approved by him should be transmitted to the governor.

The annual salaries of the officers employed in the police establishments in New South Wales, including the salary of the superintendent, appears by the statement abstracted from the accounts of the police fund, to amount to the sum of 2,382l. 7s.; included in this amount, is the payment to the petty constables that I recommended to be made, in lieu of the extra half ration of meat and flour, in the year 1820. The rations allowed to the magistrates and their government men, as well as to the constables, clerks and gaolers in New South Wales, consisting of seven pounds of flour and seven pounds of meat per week, calculated at the rate of 1s. 9d. for the former, and 2s. 11d. for the latter, create an annual charge of 12l. 2s. 8d. for each ration, and a total charge or 3,154l. 23s. 4d.

The confusion that is produced in the commissariat accounts, by the variations in the allowances to constables and others, make it very desirable that as far as possible the same ration, amounting to seven pounds of meat and seven pounds of dour, should be issued to all functionaries of every description that are victualled from the King's store; and that any increase of remuneration, to which from the nature of their services these individuals may be considered entitled in addition to the ration, should be made in salaries or allowances from the police fund. I conceive that this alteration will be attended with the advantages of simplifying the commissariat accounts; of reducing the expenditure of meat; of transferring a portion of the charge of police establishment from the British treasury to the colonial fund, and producing a greater degree of circumspection in the constables, from the fear of forfeiting by their misconduct that portion of their remuneration which consists of a regular salary.

The allowance of rations to the families of constables has been made in cases where married men of good character were appointed, and when it was of importance to secure their services.

I think that in conformity to the principles already laid down, a money payment from the police fund, calculated according to the value that is allowed to women and children victualled from the store, would be preferable to the present issue of rations.

The office of chief constable is one that is of the greatest importance to the police of the colony, and I should recommend that the utmost attention should be paid to the selection of these individuals; and that in the two districts of Paramatta and Windsor, a horse should be allowed for the use of the chief constable; and that on the evenings preceding and following every market day at Sydney, one or more of the constables should be ordered to parole the road from Paramatta to Sydney, and from Paramatta to Windsor, and deviating occasionally from thence to the Liverpool road. The constables should be selected for this duty by the chief constables, and there should be no rotation of duty or appointment. These patroles should be armed with pistols and sabres.

A very important part of the duty of the chief constable, is that of keeping a correct list of the convicts assigned to settlers, and the changes that take place in them; and the superintendent of convicts at each station should be enjoined to communicate to the chief constables the removals and changes that take place in the convicts under their charge.

The chief constables might be advantageously employed in giving occasional attendance at the Sunday musters of the convicts in the different places in winch they are held by the district constables, and affording assistance and information to the magistrates in discovering defaulters. The returns of these musters would be much facilitated by requiring them to be made in printed forms, in which the name of every convict, and the ship in which he came into the country, should be distinguished; a column being also left for remarks upon their conduct and appearance.

The state of the gaols in the colony of New South Wales and Van Diemen's Land has been airway stated as one of the various causes by which the efficiency of the police of the colony has been impaired.

The Sydney gaol is situated in one of the principal streets, called George-street, and upon the declivity of a rugged and rocky hill that overlooks the harbour of Sydney Cove. The entrance from the street is through a court yard ninety-seven feet by thirty-four, in which there are two small lodges, one for the gaoler's office and the other for the confinement of misdemeanants. On one side of the court yard is a place of deposit for wood and coals, and a house for the under gaoler; and at the other is a separate court yard seventy-one feet by twenty, with a wooden building at the upper end, containing two small rooms for the separate confinement of female prisoners; the principal building stands upon a raised terrace, to which there is a steep and inconvenient stone stair-case, and it is divided by a passage of ten feet into two apartments, that measure thirty-two feet by twenty-two.

In these rooms there are fireplace c, and raised wooden platforms upon which the prisoners sleep. There are sometimes not less than sixty prisoners confined in these two rooms, consisting of all descriptions; convicts for trial, witnesses convicts under sentence of transportation to the Coal River, free people, and frequently sailors sentenced by the magistrates to work in the chain gang, or to confinement in the gaol.

The walls in these rooms, as well as the wooden platforms and the floors, have been much damaged, although they have been frequently repaired; and during several visits that I made to the gaol, I found the convicts confined there generally gambling or quarrelling with each other. The yard behind the gaol is one hundred and sixty-five feet in length by seventy nine in breadth, is well flagged, and contains a pump that affords a supply of water; at the upper end is the building that is appropriated to the debtors, containing two rooms, one of which is twenty-eight feet by twelve, and divided into two bed rooms, and the other is twenty-eight by seventeen; on the same side, and in front of the yard, two rooms have been lately appropriated for the women, each twenty-seven feet by eighteen, and in which two fireplaces have been constructed. In front of these rooms is a yard of seventy-one feet in length by twenty feet, separated by a stone wall from the principal yard, and communicating with it by one door. At the end of the same yard is the gaol gang room, measuring twenty-five feet by twenty-two, and a yard adjoining that measures one hundred and five feet by seventy-nine. They communicate with a back street by a separate door, to prevent a frequent disturbance of the other parts of the gaol by the chain gang on their return from work. There are three cells at each end of the principal building, for the confinement of prisoners under sentence of death, or condemned to solitary confinement.

The Sydney gaol has been repaired and enlarged at several periods, and the expense incurred from the year 1812 to 1819, as collected from the accounts of the police fund, amounts to 5,239l. 6s. 7½d. The last addition that was made of the buildings for the debtors and female prisoners, has afforded them a partial separation from the prisoners confined in the principal buildings; but as their number has much increased, they were allowed to have the use of the debtors yard during the clay, to which the only access is through the gaol. The friends of the debtors and their supplies of food were introduced in the same way, and afforded the means of conveying spirits and other indulgences to the prisoners. The under gaoler was in the habit of selling tea and sugar and tobacco to the debtors and the prisoners, and I observed that one of the debtors was engaged in the same occupation. The gaol allowance to the prisoners consists of one pound of bread per day, supplied by contract with one of the bakers in Sydney, who receives the ration of flour from the King's store, and returns one pound of bread for the use of each prisoner.

The defects of the gaol consist of want of space and accommodation for the prisoners, and a separation of those who are detained as witnesses from those who have been already convicted. It rarely occurs that any conviction takes place in the Criminal Court without the evidence of an accomplice, and in such cases it is of the greatest importance, both to prevent communication between the witnesses and the prisoners before trial, as well as to secure them from the effects of intimidation and violence.

The superintendence of the Sydney gaol is at present in the hands of a person who for several years was chief constable. He was considered to be respectable in character, but from his age and want of personal activity, he is not competent to the increasing duties of the establishment. One of these duties consists in preparing and transmitting to the colonial secretary, a return of the sentences passed by the magistrates in Sydney, or in the different districts. These sentences are signed and transmitted by the magistrates, and the particulars of the original sentences of the convicts are obtained by inquiry from themselves.

The detention of these convicts in the Sydney gaol does not generally exceed four or five days, as the communications by government vessels between Sydney and the Coal River are frequent. When the number does not exceed five or six, they are sent without a guard; but prisoners sentenced by the Criminal Court are sometimes detained for ten days in gaol, and are. generally attended by a military guard.

The present gaoler has long had a contract for supplying the gaol with firing: For the sum of 150l. per annum, he engaged to supply sixty tons of coals from Newcastle, which from being owner of a small trading vessel he was enabled to do.

After the loss of his vessel he supplied the gaol with wood, which has of late become scarce and dear.

The gaoler at Hobart Town had a contract of a similar kind; but there appeared to be no reason whatever that this expense should be incurred at Sydney, as the supply of coals from the clock yard there was always adequate for this purpose, and was at a very little distance from the gaol. At Hobart Town, perhaps, the necessity of the contract was greater, on account of the scarcity of wood, and the expense of conveying coals from Sydney; but I should recommend that at Hobart Town the contract should be opened to the public, and that no further allowance should be made to the gaoler of men victualled from the store.

I observed that the consumption of wood both in the gaol at Sydney and Hobart Town was very considerable, and that at the former place the walls were much affected by the smoke.

There is no kind of employment for the prisoners in any of the gaols in New South Wales, nor indeed would their present dimensions admit of any.

The most severe and perhaps the only punishment that can be inflicted upon the prisoners is solitary confinement, and the dimensions and situation of the Sydney gaol preclude any extensive arrangement of that nature. It was under this impression that I recommended to Governor Macquarrie to build a new of at Sydney; and it iv only from an apprehension that the colonial architect would pursue in this instance the same system of imperfect planning, and expensive and difficult execution, that I have already had occasion to notice, that I forbore to press the subject of the new gaol on the attention of the governor, before my departure from the colony.

The gaol at Paramatta is old and very ill-built; part of the wall of the outer court gave way during my residence in the colony, and four prisoners escaped through the grating of one of the privies.

The building is of stone, and is situated on an open space of ground near the public road, that leads from Paramatta to Windsor, just at the entrance of the former.

The principal building consists of two rooms for the men, one measuring seventeen feet by thirteen, and a dark cell that is used as a store-room for tools and fetters; and the other called the charge-room, that measures twenty-one feet by twenty-six. In this room there is a fire-place, and a small platform for the prisoners much broken. The floor likewise was in a very decayed state, and appeared to have suffered, as well as the window-shutters and gratings, from the wanton mischief of the prisoners.

At one end of the prison two small rooms have been added for debtors, or for women confined by order of the Criminal Court; but there is no separation of these rooms from the principal court yard.

At the other end three solitary cells have been constructed, that are entirely separated from the other parts of the gaol, and have a spacious yard adjoining.

On the side that is opposite to the entrance and to the gaoler's lodge is the gaol gang room, measuring thirty feet by fifteen, where there is a fireplace at which, the prisoners cook their daily rations.

The situation and contiguity of the female factory has already been noticed, and when it is removed considerable accommodation will be afforded to the prisoners in the Paramatta gaol. It was in the contemplation of Governor Macquarrie to convert the whole building into a lunatic asylum, which was much wanted, and to build a new gaol with better accommodation and stronger walls.

At Windsor a gaol was erected by contract by Mr. Cox, the magistrate of the district, in; and the cost, amounting to 1,439l. was paid from the police fund. The principal building is of brick, and has lately been inclosed by a wall that appeared to be very slight, and not sufficiently high.

The gaol contains two rooms in front for the accommodation of the male prisoners, and one at the end for debtors and female prisoners. There are also four cells for solitary confinement, with separate yards; and in a small building behind the gaol, there is a room for the temporary custody of persons apprehended in the town at night. The gaoler's house and kitchen are within the wall that incloses the gaol, and a kitchen and mess-room have been erected for the separate use of the gaol gang.

The yard in which these buildings stand is too small either for the present size of the gaol, or its future enlargement, a circumstance that should always be kept in view in constructing a gaol, or indeed any other building, in the colony of New South Wales.

The gaol at Liverpool was built by contract by Mr. Moore, the resident magistrate of that district. It is placed at the corner of two streets, and consists of two rooms twenty-nine feet in length, separated by a narrow passage. It is intended to add three solitary cells to each end of the building; but a great error has been committed in placing the gaol so near the principal street or road that runs through the town of Liverpool, that the wall with which it is intended to surround the gaol must necessarily obstruct the ventilation.

The gaol at Hobart Town was finished in the year 1815. It is placed in an elevated and airy part of the town, and has more the appearance and the accommodation of an hospital, than a place of coercion and confinement. The gaol contains an entrance that is fifteen feet in length by twelve in breadth; two rooms for the gaoler, measuring fifteen feet by eight; two rooms for debtors, sixteen feet by fifteen; a lock-up room, twelve feet by ten; and two turnkeys rooms. These are separated from the rooms for felons, of which there are two and each measuring twenty-six feet by fourteen. A separate apartment is provided for the women on the first floor, thirteen feet by ten; there are two light and two dark cells in the yard, measuring six feet by five.

A more effectual separation is thus made of the different prisoners in this gaol, than in the other gaols of New South Wales; but the rooms are neither sufficiently large or numerous for the prisoners that are confined in them. The workmanship and materials of which the gaol is built are very slight, and the wall that surrounds the gaol is twelve feet in height above the foundations. It was built by contract by Mr. Birch, a merchant of Hobart Town, for the sum of 820l.

Some very excellent regulations for the gaol at Hobart Town, were drawn up by Lieutenant-Governor Sorell, and the superintendent of police, Mr. Humphrey, and are signed by the magistrates at Hobart Town.

A book is directed to be kept by the gaoler, containing the particulars of all commitments, discharges and removals; and a book in which the visiting magistrate is to enter his remarks on the state of the gaol, and period of visiting.

Particular directions are given for the separate confinement of the different classes of prisoners in different rooms, and the female prisoners are employed in washing for the debtors and other prisoners, and in preserving cleanliness in the different apartments. No spirits are allowed to be brought into the gaol; but from a circumstance that came within my own observation, I do not think this regulation is strictly observed.

Upon the whole, the state of the Fa, at Hobart Town vas creditable to the magistrates; but the increasing population of the settlement already requires a building of greater extent and strength.

The gaoler, William Peitchey, was formerly a convict. He has lately purchased an estate between Hobart Town and Pitt Water, and has built several Reuses near the gaol. I observed that these occupations consumed a considerable portion of his time, and that the custody of the gaol was transferred to the constables.

In the month of February 1820, the police establishment of Hobart Town consisted of Mr. Humphrey the magistrate, one chief constable, and two constables of the northern and southern districts of the county of Buckinghamshire. Four constables were specially appointed to execute processes and apprehend runaway convicts in the interior; and forty-four were appointed for town duty. Of these, four are employed as constables of the night; three as constables in ordinary at each watchhouse, to be in readiness in case of emergency; and three at the store for bonding spirits; one on duty at the police office; two at the gaol. Four constables are frequently employed every night to prevent smuggling from the vessels in the harbour. It appears also, that twenty-one constables are on duty every night in Hobart Town. Their remuneration consists of fourteen pounds of meat and fourteen pounds of wheat, and one pint of rum per week, which, with the value of their clothing, shoes and bedding, creates an annual charge of 43l. 11s. 8d.

The issue of clothing at Hobart Town had fallen into arrear, nearly as much as in New South Wales; but as the police fund of Van Diemen's Land is now much augmented, the same reasons exist for adopting the principle of remuneration that I have proposed to apply to the police establishment of New South Wales, in substituting money payments for all remuneration that exceeds the single weekly ration of seven pounds of wheat and seven pounds of flour to each person, and continuing the allowance of clothing.

Reverting to the state of the gaols in New South Wales, I conceive that it will be very desirable that the regulations to which I have alluded at Hobart Town, should be introduced into the former for the guidance of the gaolers; and that the magistrates should be enjoined to visit in rotation the gaols at Sydney, Paramatta, Windsor and Liverpool; to make a report once in every month to the judge of the Supreme and Criminal Court, and to enter in a book to be kept in the gaols minutes of their observations.

The alterations and amendments that have appeared to me advisable in the port regulations, I intend to submit to your Lordship in a separate form but I think it necessary to state in this place, that great inconvenience has been felt in New South Wales, from want of jurisdiction to try offences committed on the high seas. By the 57 Geo. III. c. 53, amended by the 59 Geo. III. c. 44, as far as relates to Honduras, a power was given to try all murders, manslaughters, rapes, robberies and burglaries, committed in the islands of New Zealand and Otaheite, or within any islands or countries not within His Majesty's dominions, nor subject to any European power, nor within the territories of the United States, by the master or crews of any British ship or vessel, or by any person sailing or belonging thereto; and the Act further directs, that such offences shall be sued and punished in any of His Majesty's islands colonies, forts or factories, under His Majesty's commission issued or to be issue wider the Act of the 46 Geo. III. c. 64. The magistrates at Sydney to whom the investigation of these offences has been frequently referred by the governor, either upon charges of cruelty of the masters and crews of the vessels towards the inhabitants of the South Sea Islands, or of robbery and ill-treatment committed by the mates and sailors of convict ships upon the persons and property of convicts during the passage, have found themselves disabled from any further proceeding than that of referring the result of their examinations to the governor. It is highly expedient, therefore, that for the purpose of checking the outrages committed at sea, either by convicts or others, a commission should issue conformably to the terms of the 46 Geo. III. c. 64.

I have thus endeavoured to submit to your Lordship's consideration the various regulations of police that are considered to be in force in New South Wales, and which, in their operation, have appeared to carry with them the most direct interference with the rights of property or personal liberty.

Considering the present state of the population, both of New South Wales and Van Diemen's Land, I do not conceive it to be expedient that any of those that I have pointed out should be relaxed. The operation of some of them, more especially the port regulations, may be modified; but as long as New South Wales and Van Diemen's Land contain so great a number of convicts, either suffering under their sentences, or subject to the terms of a conditional remission, most of the regulations to which I have alluded, and especially those that provide for the security and detention of convicts, and the identification of their persons, must continue to be strictly and unremittingly observed.

It is further to be desired that the vigilance of the police officers, in the suppression and punishment of drunkenness, in the control of the public-houses, should continue to be stimulated by high rewards; that the licensed public-houses should be gradually reduced to the number granted in the year 1820; that the securities taken for the good behaviour of the persons licensed should be real and not fictitious; and that no magistrate who possesses a direct interest in the sale of spirits, or who is the owner of any house licensed for the sale of them, should be continued in the commission of the peace.

In the observations that I have addressed to your Lordship on this as well as other subjects in my former and present Report, I am aware that I have been compelled to touch upon points affecting the personal character of individuals in the colony, as well as others who, though no longer resident in it, have been officially connected with it. Upon reference to my instructions, and upon complying with that part of them which required information respecting the conduct of individuals, I felt it impossible to avoid the incidental mention of their names, or the share they took in transactions that have had and still hold considerable influence on the state of society in the colony, or the feelings of its inhabitants. In the performance of this duty, I can conscientiously declare that I have never deviated from the course that my instructions prescribed, and that I never voluntarily sought for topics of inculpation or censure. Some of those upon which I have remarked had occurred in periods antecedent to my commission of inquiry, but I found that upon some points the information that had reached your Lordship had not always been correct; and it was with a view to place them in that which appeared to me to be their true light, and to guard against the possible evils of wrong impressions, that I have on more than one occasion referred to transactions that had long since passed, and that even in the colony were falling into oblivion. I am well aware, and it is a subject of regret to me that by the discharge of this part of my duty the remembrance of them may have been revived, and that they may have been accompanied by observations that must have given rain to the feelings of many individuals. I likewise take this opportunity of expressing my concern, that, in the course of my first Report, I should have attributed to Mr. W. Wentworth the composition of an anonymous and scurrilous poem, since, whether he was the author of that poem or not, (and it is distinctly understood that on this point he makes neither avowal nor denial,) I feel that I was not justified in introducing his name into my Report; first, because in my capacity of commissioner of inquiry into the state of New South Wales, it was not competent to me to investigate any cart of his conduct; and secondly, because his name was coupled with an admission to his prejudice that was made by another person in his absence, and without his authority, and by which therefore he cannot be concluded.

JOHN THOMAS BIGGE.   

To the Right Honourable
    The Earl Bathurst,
        K.G. &c. &c. &c.

[END OF BIGGE JUDICIAL REPORT VOLUME.]

ADDENDUM.

[Source: Historical Records of Australia, Volume 10, pp. 2-11]

EARL BATHURST TO GOVERNOR MACQUARIE.

(Despatch No. 1, per ship John Barry; acknowledged by Governor Macquarie, 22nd February, 1820.)

Downing Street, 30th January, 1819.   

Sir,

The Prince Regent, having had under his consideration the actual Circumstances of the Colony under your Government, more particularly with a view of ascertaining how far in its present improved and increasing State, it is susceptible of being made adequate to the Objects of its original Institution, has been pleased to direct that a special Commissioner {1} should proceed to New South Wales, and should there conduct the enquiries necessary to this important Object.

The Gentleman selected for this Duty is Mr. John Thomas Bigge, {2} who has for many years filled a high Judicial Situation in one of His Majesty's Colonies with the Entire Approbation of His Royal Highness The Prince Regent.

In order to explain to you more distinctly the Objects of his Appointment, I have the Honor to enclose a Copy of the Commission, and of the Instructions with which he has been furnished.

As it may be necessary for him in the course of his Enquiry to have the Power of Administering an Oath to the Persons, whose Testimony he may require, it is the Pleasure of His Royal Highness that you should immediately on his arrival in the Colony appoint him a Justice of the Peace and Magistrate for the Territory; you will further give him every Facility of Access to Official Documents, and every other Assistance in your power in the prosecution of the Objects of his Commission.

During the interval, which has elapsed between Mr. Bigge's Appointment and his Departure for the Colony, he had free access to all the Correspondence connected with the Colony, and has been put perfectly in possession of the views of His Majesty's Government; His Royal Highness has therefore been pleased to instruct Mr. Bigge to recommend to your immediate Adoption any Alteration or Improvement of the System at present in force in the Colony, which he may consider necessary either for the Remedy of existing Evils, or for the prevention of Causes of Complaint in future, and I have only to desire that you would give to his recommendations in this particular the weight due to them by an early, if not an immediate, adoption of them. Should however any case occur, in which you may deem it adviseable to take upon yourself the heavy responsibility of declining to adopt his suggestions, you will communicate to me without delay the reasons of your Refusal for the special consideration and Decision of His Royal Highness.

I have, &c.,            
BATHURST.   

[Enclosure No. 1]

COMMISSION OF JOHN THOMAS BIGGE.

In the Name and on behalf of His Majesty.
   George, P.R.

GEORGE the Third, by the Grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, To Our Trusty and Well-beloved John Thomas Bigge, Esqre., Greeting. Whereas We have judged it expedient to cause an Enquiry to be made into the present State of the Settlements in Our Territory of New South Wales and its Dependencies, and of the Laws, Regulations and Usages, Civil Military and Ecclesiastical prevailing therein, Now Know You that We, having especial Trust and Confidence in your approved Wisdom and Fidelity, have assigned, nominated and appointed and by these presents assign, nominate and appoint you, the said John Thomas Bigge, to be Our Commissioner to repair to Our said Settlements in Our said Territory in New South Wales, and by these Presents do give you full power and Authority to examine into all the Laws Regulations and Usages of the Settlements in the said Territory and its Dependencies, and into every other Matter or Thing in any way connected with the Administration of the Civil Government, the Superintendence and Reform of the Convicts, the State of the Judicial, Civil and Ecclesiastical Establishments, Revenues, Trade and internal Resources thereof, and to report to Us the Information, which You shall collect together, with your opinion thereupon, reducing your Proceedings, by Virtue of these Presents and your Observations touching and concerning the premises, into writing, to be certified under Your hand and Seal, and We do hereby require Our Governor of Our said Territory for the time being and all and every One, Officers and Ministers within the said Territory and its Dependencies to be aiding and assisting to you in the due execution of this Our Commission. In Witness, &ca. And for so doing this shall be Your Warrant.

Given at Our Court at Carlton House this fifth day of January, 1819, in the Fifty ninth Year of Our Reign.

By the Command of His Royal Highness The Prince Regent in the name and on the Behalf of His Majesty.

BATHURST.   

[Enclosure No. 2.]

EARL BATHURST TO MR. COMMISSIONER BIGGE. [1]

Downing Street, 6th January, 1819.   

Sir,

As the time is now approaching for your Departure for New South Wales in the execution of the Duty to which His Royal Highness The Prince Regent has been pleased to appoint you, it becomes my Duty to direct your attention to those points which will, on your arrival in the Colony, form the leading Object of your Enquiry.

You are aware of the causes which first led to the Formation of the Settlements in New Holland. As they were peculiar in themselves, these Settlements cannot be administered with the usual Reference to those general Principles of Colonial Policy, which are applicable to other Foreign Possessions of His Majesty, Not having been established with any view to Territorial or Commercial Advantages, they must chiefly be considered as Receptacles for Offenders, in which Crimes may be executed at a distance from home by punishments sufficiently severe to deter others from the Commission of Crimes, and so regulate, as to operate the Reform of the Persons by whom they had been committed. So long as they continue destined by the Legislature of the Country to these purposes, their Growth as Colonies must be a Secondary Consideration, and the leading Duty of those, to whom their Administration is entrusted, will be to keep up in them such a system of just discipline, as may render Transportation an Object of serious Apprehension. While the Settlements were in their Infancy, the Regulations, to which Convicts were subjected on their arrival, were sufficiently severe, and were moreover capable of being strictly and uniformly enforced. Hard Labour, moderate Food, and constant Superintendance were, and (what was at least of as much Importance) were believed in this Country to be the inevitable consequences of a Sentence of Transportation, varying only as to the period during which they were enforced, either according to the original Sentences of the Convicts or to the Evidence, which their Conduct in the Settlement afforded of their Progress towards Amendment and Reform. At this time it appears that Transportation to New South Wales answered every end of Punishment; For while it operated, not very severely though always beneficially, on the Convicts themselves, the opinion of its severity in this Country was so enhanced by the distance of the Settlement and the little which was known of it, that it was an object here of peculiar Apprehension. {3} There are instances on record, in which Convicts have expressed their desire that the Sentence of Transportation might be commuted even for the utmost Rigour of the Law, and it is not too much to assert that the Punishment did then materially contribute to prevent the Commission of those Crimes to which it was at that time more particularly confined.

Many Circumstances however have since concurred to render the Punishment lighter in itself, to diminish the Apprehension entertained in this Country of its Severity, and to break down all proportion between the punishment and the Crimes for which it is now inflicted.

You will find these circumstances detailed in my Letter {4} to Lord Sidmouth, in which I first suggested the expediency of this Commission. Every Information which I have since received, and every consideration which I have since given to the subject, confirms me in the conviction that an Investigation is become necessary. Since the writing of that Letter, Intelligence has been received of the arrival of that large body of Convicts, which I then noticed to be under Sentence of Transportation, and the number, on whom this Sentence has since been passed, has considerably increased. In addition to which, a Great proportion is for Offences of that Magnitude in Moral Depravity, or of such serious Mischief to Society, as have been generally expiated by the utmost Rigour of the Law. While Transportation to New South Wales is thus applied as an adequate Punishment for the most Heinous Crimes, it unfortunately at the same time carries with it in Public Estimation so little of Apprehension in any proportion to the Guilt of the Convicts, that numerous applications are made from those who are sentenced to Imprisonment for Minor Transgressions that they may be allowed to participate in the Punishment to which the greatest Offenders are condemned.

Such being the actual State of Things, it appears to The Prince Regent most important that the first Object of your Enquiry should be to ascertain whether any and what Alteration in the existing system of the Colony can render it available to the purpose of its original Institution, and adequate for its more extended application. With a view to this you will examine how far it may be possible to enforce in the Colonies already established, a System of General Discipline, Constant Work, and Vigilant Superintendance. The Latter must necessarily be understood to comprise complete separation from the Mass of the Population, and more or less of personal Confinement, according to the Magnitude of the Offence. You will therefore pay particular Attention to the possibility of providing Buildings proper to the Reception of all the Convicts, the want of such Buildings having been frequently and justly represented by the Governor as one main Obstacle to the Enforcement of Discipline. Should it appear to you, as I have too much reason to apprehend will be the Result, that the present Settlements are not capable of undergoing any efficient Change, the next Object for your Consideration will be the expediency of abandoning them altogether as Receptacles for Convicts, and forming on other parts of the Coasts, or in the Interior of the Country, distinct Establishments exclusively for the Reception and proper Employment of the Convicts who may hereafter be sent out. From such a Measure, it is obvious that many Advantages must result. It would effectually separate the Convict from the Free Population; the Labour of forming a New Settlement would afford constant means of Employment and that of a severer Description. By forming more than one of such separate Establishments, the means of classifying the Offenders, according to the Degrees of Crime, would be facilitated, and that salutary Apprehension of the punishment revived, which can alone make it available to the grave Offences to which it is at present applied. But on the other hand you will have to consider, what would in the first instance be the expence of the measures, which you might think yourself justified in recommending, and what may be the probable Amount of Annual Charge, which may result from their Adoption. I need not impress upon you the necessity of making your Estimates as accurate as circumstances will admit, for it will be obvious to you that in order to enable His Majesty's Government to decide whether it is adviseable to continue, or to alter, or to abandon the System, which for near Forty Years has been pursued, it will be most material for them to know, not only the means by which Transportation can be rendered an effectual Punishment for the Prevention of Crime, but also the Expence at which, as compared with other Systems of Punishment, it can be enforced.

I have only in conclusion to desire that you will in the whole course of your enquiries constantly bear in mind that Transportation to New South Wales is intended as a severe Punishment applied to various Crimes, and as such must be rendered an Object of real Terror to all Classes of the Community. You must be aware that it is taking but an imperfect view of the end of Punishment, if you look only to the state of those on whom it is inflicted. The Great End of Punishment is the Prevention of Crime, and as there are gradations in Crimes, against the Commission of which the Legislature is bound to guard in proportion to their moral Turpitude or to the injurious Effects which, either necessarily in themselves or from the Circumstances under which they were practised, they may have on the Community, the sufferings of those, to whom punishment is awarded, do not answer the purpose for which they were inflicted, unless they are in some degree proportioned to the Offences committed, and of a Character to deter others from Similar Misdeeds. Transportation must not be considered like imprisonment in Gaol applicable to the suspected and unfortunate in common with the criminal, but it operates exclusively on convicted Guilt, and that too as a part (not the most effectual part) of the punishment assigned to it. For mere Expatriation is not in these days an Object of considerable Terror. The Intercourse, which it breaks, is readily reestablished, and the Mystery, which used to hang over the Fate of those condemned to it, can never long exist. It is the Situation of the Convicts in the place to which they shall have been consigned, the strict Discipline, the unremitting Labour, the severe but wholesome privations to which they are condemned; It is their sad Estrangement from the sweets and comforts of a Life, which their Guilt has forfeited, and the Mercy of His Majesty has spared, and above all the strong feeling impressed upon this Country that such is the unavoidable Fate of the unhappy Men, on whom the Sentence has passed, that can alone make Transportation permanently formidable. If therefore, by ill considered Compassion for Convicts, or from what might under other circumstances be considered a laudable desire to lessen their sufferings, their Situation in New South Wales be divested of all Salutary Terror, Transportation cannot operate as an effectual example on the Community at large, and as a proper punishment for those Crimes against the Commission of which His Majesty's Subjects have a right to claim protection, nor as an adequate Commutation for the utmost Rigour of the Law.

I have, &c.,            
BATHURST.   

[Enclosure No. 3.]

EARL BATHURST TO MR. COMMISSIONER BIGGE. [2]

Downing Street, 6th January, 1819.   

Sir,

In the course of the enquiries, which you are authorized under your Commission to institute in New South Wales, the conduct of the several persons in authority in that Colony will necessarily come under your particular Review, and as you are aware, from the free access which you have had to the correspondence of this Department, of the Grounds on which the Conduct of many of the Servants in that Colony has been subjected to accusation, you will not fail to enquire how far the reports, which have from different quarters reached His Majesty's Government, are deserving of Consideration. But although I am to desire that you do not permit your respect for any Individual, however exalted in rank or sacred in Character, to check an Investigation of his Conduct, in cases in which you deem it to be necessary, yet I am equally to impress upon you the necessity of not divulging in the Colony the opinion, which you may ultimately form as to the justice of the original suspicion. The Result of your Investigation, and the Evidence by which it is to be supported, is to be communicated to His Majesty's Government alone, and, although it will be your Duty to furnish them with the most ample details, it will be no less incumbent upon you to prevent any disclosure in the Colony, which could only have the Effect of inflaming existing Resentments and disturbing the Tranquillity of the Colony, during the Interval which must elapse between your departure from the Settlements and the final Decision of His Majesty's Government.

Should however the result of your enquiries, either on this or any other subject, lead you to entertain an opinion that the system, which has been pursued in any Department, is either so bad in itself or so liable to Abuse as to render an immediate Alteration desireable, you will consider yourself authorized to express to the Governor in writing the several Improvements and Alterations, which you deem it your Duty to recommend to his immediate Adoption, and you will consider the Instruction as applying to every branch of Administration with the exception of the Distribution of the Military Force.

I have, &c.,            
BATHURST.   

[Enclosure No. 4.]

EARL BATHURST TO MR. COMMISSIONER BIGGE. [3]

Downing Street, 6th January, 1819.   

Sir,

I have already had the occasion to point out to you those Objects of Enquiry on your arrival in New South Wales, which are connected with the Administration of the Settlements there as fit Receptacles for Convicts; but although the Prince Regent considers these to be the most important and therefore the main Objects of your Investigation, yet His Royal Highness is also desirous of availing himself of your presence in that Quarter in order to obtain a Report upon the variety of Topics, which have more or less Reference to the Advancement of those Settlements as Colonies of the British Empire. It becomes therefore my Duty to detail to you the Subjects, upon which it appears requisite that you should furnish every Information in your power, and in doing so I deem it necessary to premise that, in any opinion you may be led to form with respect to any change in the existing Regulation of the Colony, you must always bear in mind the possibility of an Abandonment of the present System of Transportation so far as regards the existing Settlements, and must therefore in recommending any Measures for adoption carefully distinguish how far you consider them applicable to the Settlements in their actual State, or only to that in which they would be placed in the event of the Convict part of the Population being henceforth diverted to other Stations.

The Establishment of the Courts of Justice will form the first subject of such an enquiry. It will be for you to consider whether the Alterations introduced into the Constitution of the Courts in 1812 have rendered them adequate to the wants of the Inhabitants, and to the due Administration of Criminal and Civil Justice, and, if they still appear to you to be defective, to suggest the Improvement of which you conceive they are susceptible. You will also particularly report whether the Settlements in Van Diemen's Land have advanced so far in Population and Wealth, as to require a Judicature altogether separate and distinct from that of the Principal Settlements in New South Wales. In connection with the Judicial Establishments, you will not fail to review the Police Regulations of the Colony, and the manner of their Application to the several Classes of Inhabitants whether Free Settlers or Convicts; It will form also a Branch of your Investigation to point out whether, in a Population so compounded as that of New South Wales, it be consistent with safety to dispense with any of those more severe provisions, which have frequently given rise to complaints, and which cannot but be irksome to the Free Inhabitants of the Colony.

You will also turn your Attention to the possibility of diffusing throughout the Colony adequate means of Education and Religious Instruction, bearing always in mind in your suggestions that these two Branches ought in all Cases to be inseparably connected. The Agricultural and Commercial Interests of the Colony will further require your Attentive Consideration. With respect to them, you will both report to me their actual State and the means by which you consider they can be most readily promoted. It cannot fail to have struck you that many of the Colonial Regulations are at variance with the general Principles, by an Adherence to which such Interests are usually advanced. Among those which in this point of view must have appeared of very questionable Expediency, I would more particularly refer to the Authority which the Governor has hitherto exercised of fixing the Prices of Staple Commodities in the Market, and of selecting the Individuals who shall be permitted to supply Meat to the Government Stores. With respect to these Regulations, you will investigate how far their Repeal is likely to lead to any General Inconvenience or to any Public Loss. I am aware that when the Colony was first established the necessity of husbanding the scanty means of Supply, and regulating its Issue, might justify an Interference on the part of the Government, but now that the Quantity of Land in cultivation is so much increased, and the number of cultivators proportionately enlarged, so as to preclude on the one hand all fear of want, and on the other a General Combination of all the Cultivators against the Government, I confess that I have great reason to doubt the expediency of these Regulations. At the same time, I feel unwilling to recommend so material an Alteration without some examination on the spot as to its probable Effects. It will therefore be for you to report to me whether the Markets may not be freed either gradually or all at once from such restriction, whether the Competition of Traders will not here as elsewhere produce the most beneficial Effects, and whether the Government Stores may not be supplied (as in other Colonies) by Public Tender, with equal Advantage both to the Public and to the Individual Cultivator.

Another Subject of enquiry will be the propriety of permitting in future a Distillation of Spirits within the Colony. From the access, which you have had to the Correspondence, you are aware of the Grounds upon which this measure has been so frequently recommended by the Local Government, and of those reasons which have induced His Majesty's Government hitherto to withhold their Sanction; I need not therefore enter into the details of this Discussion. The main question, now at issue, is whether a Distillation of Spirits 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 an immoderate use of them, and too likely to be excited by the use of them to Acts of Lawless Violence; and to this your enquiry in this particular will be principally directed.

It will not be unimportant for you to enquire into and report upon the actual and Probable Revenues of the Colony, whether they may be looked to hereafter as affording the means of defraying some part of the heavy expenditure annually incurred on account of New South Wales, and whether they are in any and in what cases susceptible of Increase without prejudice to the Prosperity and Welfare of the Settlements.

There is one other point also, which I cannot avoid recommending to your consideration, though I fear there is not much prospect of your being able to reconcile that difference of opinion which has prevailed in the Colony. I allude to the Propriety of admitting into Society Persons, who originally came to the Settlement as Convicts. The Opinion, entertained by the Governor and sanctioned by The Prince Regent, has certainly been with some few exceptions, in favor of their reception at the expiration of their several Sentences upon terms of perfect Equality with the Free Settlers. But I am aware that the Conduct of the Governor in this respect, however approved by the Government at home, has drawn down upon him the Hostility of many persons, who hold association with Convicts under any circumstances to be a degradation. Feelings of this kind are not easily overcome, but I should be unwilling to forego the possibility of reconciling the conflicting opinions on this subject by not adverting to it as a proper question for your consideration.

I forbear to enter into a variety of other minor points of detail, which will necessarily fall under the several Heads of enquiry which I have pointed out to you, because I am confident that no important point will be left unnoticed in the report which you may ultimately furnish, and that you will be as anxious to afford, as His Majesty's Government are to receive, every Information necessary to form an opinion with respect to the Police, the Agriculture, the Commerce, the Revenue, or the State of Society in the Settlements, to which you are about to proceed.

I have, &c.,            
BATHURST.   

NOTES TO ADDENDUM A.

[From: Historical Records of Australia, Volume 10, pp. 805-8.]

{1} {return}

A special Commissioner.

The conclusion of the Napoleonic wars enabled the British government to pay more attention to the development of the colonies. The colony had been established under Governor Phillip purely as a penal settlement. Major Grose and captain Paterson had carried on the administration from the time of Phillip's departure to the arrival of Governor Hunter. During this period certain individuals, chiefly of the military party, commenced to acquire wealth. Hunter in his government was confronted with a new problem in the birth of vested interests. The clash of these interests with the idea of a penal settlement and the misrepresentations that were made to England caused Hunter's recall. He was succeeded by Governor King, who met with a similar fate, to be in turn succeeded by Governor Bligh. By this time, the party which had caused the unrest had become stronger, and Bligh's government, therefore, terminated in his deposition. Governor Macquarie was sent to reorganise the colony. He attempted to elaborate the idea of a penal settlement. He discouraged the immigration of free settlers. He adopted his policy for the encouragement of emancipists; but this policy assisted in the removal of some of the terrors of transportation. At the same time, the settlers, who had adopted the colony as their home, agitated for various reforms, and adverse representations were made against Macquarie's administration. It is probable that the colonial office was in a quandary as to the merits and demerits of the colony as a penal settlement, of the agitations for reform, and of the principles of Macquarie's administration, and that for this reason the appointment of a commissioner of enquiry was made.

{2} {return}

Mr. John Thomas Bigge.

John Thomas Bigge was the second son of Thomas Charles Bigge, of Long Benton, Northumberland, and was born in the year 1780. He was educated at Newcastle Grammar school, Westminster school, and Christ Church, Oxford. He graduated B.A. in 1801 and M.A. in 1804, and two years later was admitted a barrister of the Inner Temple. After some practice at the bar, he was appointed, in 1815, chief justice and judge of the vice-admiralty court at Trinidad. He had thus acquired some colonial experience before his appointment to the commission of inquiry into the state of New South Wales. His report caused much bitterness in the colony, and he was publicly accused even of causing Macquarie's early death. Shortly after his return to England from this inquiry, he was given a similar commission to inquire into the state of Cape Colony, where he did excellent work in exposing the corruption amongst the officials employed there. This mission lasted for several years; during that time his leg was injured by a fall from a horse, and for two years he was under the treatment of a quack, who turned out to be a female. He died in the year 1843.

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It was an object here of peculiar Apprehension.

In the year 1718 a statute, 4 Geo. I, c. II, was passed, which authorised transportation, and established the machinery for carrying it into effect. It provided that this punishment should be substituted for branding and whipping, and that, in cases of death sentences, the King might commute the punishment to transportation for life or a fixed period to some part of the American colonies. It was further provided that prisoners so sentenced should be conveyed, transferred and made over "to the use of any persons contracting for their transportation, to them and their assigns", for the term of their sentence. The convicts thus became the property of the contractors, upon whom no restrictions were placed as to the manner of dealing with such property. The contractors, who were usually shipowners, sold the convicts as virtual slaves to the highest bidder, as soon as they were landed in the American colonies. The colonial masters of convicts made them work in the fields together with the black slaves, and they were equally punished with the lash for idleness and disobedience. The horrors of such a system naturally created a dread of transportation.

By an order in council, dated 6th December, 1786, this system was made applicable to the territory of New South Wales. But the practice of selling the convicts on arrival at the place of transportation was never adopted. In its stead, a ship was chartered, the convicts were assigned to the owners or master, who at the time of assignation agreed for a nominal sum to re-transfer the services of the convicts to the governor or lieutenant-governor at the port of debarkation. Whilst the colony was in its infancy, and reports were received in England of hardships endured, of subsisting on reduced rations, and being clothed in rags, the thought of transportation to Botany bay, as the settlements were commonly known, was dreaded, and acted as a deterrent to crime. But when stories of prosperity, and of wealth rapidly acquired by convicts and ex-convicts, reached England, the dread rapidly disappeared. The attempt to revive this fear was the cause of the rigorous systems adopted at Norfolk island, at Port Arthur and Macquarie harbour, Tasmania, and Port Macquarie, N.S.W.

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My Letter to Lord Sidmouth.

The letter to Lord Sidmouth was dated "Downing Street, 23rd April, 1817", and was as follows:—

"My Lord,

"I have for some time past had under consideration the present State of the Settlements in New South Wales, principally with a view of satisfying myself whether they are now calculated to answer the object, for which they were originally established, or whether it might not be expedient to introduce some alteration in the existing system.

"Until a recent period the Transportation of Offenders to New South Wales appears to have answered in a very great degree the ends, for the Attainment of which it was adopted. The many instances of persons returning from Transportation and becoming afterwards useful Members of Society here, and the far more numerous Cases in which Convicts, after the expiration of their Sentences, became industrious Settlers in the Colony, are sufficient to prove the Efficacy of the System in its Infancy, as far at least as regarded the Improvement and Reform of the Offenders. So long as the Colony was principally inhabited by Convicts and but little advanced in Cultivation, the strictness of the Police Regulations, and the Constant Labour under due restriction, to which it was then possible to subject the Convicts, rendered Transportation as a punishment an object of the greatest Apprehension to those who looked upon strict Discipline and Regular Labour as the most severe and the least tolerable of Evils.

"It was not long however before the Settlements were found to hold out to many Individuals inducements to become cultivators, and thirty Years' experience of the Climate and Fertility of the Soil has for some time past rendered a permission to settle in New South Wales an object of anxious solicitude to all, who were desirous of leaving their Native Country and had capital to apply to the Improvement of Land. This System together with the Number of Convicts, who after the Expiration of their Sentences remain with their respective Families growing up under them, has so increased the population of Free Settlers that the prosperity of the Settlement as a Colony has proportionably advanced, and hopes may reasonably be entertained of its becoming perhaps at no distant period a valuable possession of the Crown. It is this very circumstance which appears to me to render it less fit for the object of its original Institution. The Settlers feel a Repugnance to submit to the Enforcement of regulations which, necessarily partaking much of the Nature of the Rules applicable to a Penitentiary, interfere materially with the exercise of those rights which they enjoyed in this Country, and to which as British Subjects they conceive themselves entitled in every part of His Majesty's Dominions. The greatest Objection however to the present system arises from a cause over which Regulations in the Settlement will not have any immediate Control. During latter Years, the Number of Convicts annually transported has increased beyond all Calculation, as will appear by a Reference to the enclosed Return; and I am apprehensive that Your Lordship will not be able to hold out any expectation that the Crimes to be punished by Transportation will diminish in Magnitude or Frequency, or that the Numbers to be transported will in this or indeed in succeeding Years be less considerable. This continued Influx must annually increase the Difficulty, which has long began to be experienced of enforcing on the Convicts such a strict Discipline, both as to Labour and Deportment, as is essentially necessary to make Transportation answer the purpose either of Punishment or Reform. The Difficulty of finding Regular Employment for them has been such that it has been the practice of Late Years to grant Tickets of Leave, almost without exception, to those who had any prospect of obtaining a Livelihood by their own exertions, and also to place a greater proportion as Servants in the Families of Free Settlers. In the former Case, the Convicts could be subjected to little more than a nominal Restraint; and, in the latter, it is obvious that with less regular Labour they must enjoy a freedom inconsistent with the Object proposed in transporting them. Another Evil resulting from the increased Number is the great Difficulty of subjecting any of the Convicts to constant Superintendance either during the Hours of work or Relaxation; and the necessity of leaving to a large proportion of them the care of providing themselves with their own Lodging during the night from the inadequacy of Public Buildings, allotted to their Reception, forms one of the most formidable objections to the present system. These Evils, and more especially the Last, have been recently brought under my Consideration by various persons, and also by the Governor, who has coupled his Representations with a Recommendation that Buildings should be erected for the reception of all the Convicts; but the heavy expence of such a Work, if it be intended that the New Buildings should encrease with the encreasing Number of persons to be lodged in them, has induced me to decline my sanction to this Recommendation except to a very limited Extent. I am not however the less sensible of the Evil, nor can I conceal from myself that Transportation to New South Wales is becoming neither an object of Apprehension here nor the means of Reformation in the Settlement itself, and that the Settlement must be either placed upon a footing that shall render it possible to enforce, with respect to all the Convicts, strict Discipline, Regular Labour, and constant Superintendance, or the System of unlimited Transportation to New South Wales must be abandoned. I do not feel at present prepared to decide upon the Alternative, which it may be expedient to recommend; but, thinking it necessary as a preliminary to such a Decision that the actual State of the Settlements in New South Wales should be distinctly ascertained and that Information should without Delay be procured both as to the Means, by which it is practicable to remedy the existing Evils, and as to the Charge, which such an undertaking might bring upon the public, I propose (should it meet with Your Lordship's Concurrence) to recommend to His Royal Highness The Prince Regent the appointment of Commissioners, who shall forthwith proceed to the Settlements, with full power to investigate all the Complaints which have been made both with respect to the Treatment of the Convicts and the General Administration of the Government, and to report to His Royal Highness The Improvements and Alterations of which the present System appears to them to be susceptible, and the Charge which their Adoption may bring upon the Public.

"I have, &c.,            
"BATHURST."   

[Enclosure.]

"NUMBER of Convicts sent to New South Wales from England between January, 1810, and January, 1817, distinguishing the Number in each.

"N.B.—The above is exclusive of Convicts sent from Ireland, which within the Seven Years have amounted to about 1,400 Male and Female."

[END OF ADDENDUM.]

THE END

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