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Title: The Felonry of New South Wales Author: James Mudie * A Project Gutenberg Australia eBook * eBook No.: 1300721h.html Language: English Date first posted: February 2013 Date most recently updated: February 2013 Produced by: Maurie Mulcahy Production Notes: See http://adb.anu.edu.au/biography/mudie-james-2487 for an appraisal of this book. Project Gutenberg Australia eBooks are created from printed editions which are in the public domain in Australia, unless a copyright notice is included. We do NOT keep any eBooks in compliance with a particular paper edition. Copyright laws are changing all over the world. Be sure to check the copyright laws for your country before downloading or redistributing this file. This eBook is made available at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg Australia Licence which may be viewed online at http://gutenberg.net.au/licence.html
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To all Members of both Houses of Parliament, of upright and honourable feelings and principles, and of whatsoever political party, this Work is most respectfully inscribed, by
London, 28th Feb., 1837.
THE object of the writer of the following pages is to lay before the British public, and more especially the legislature and the government, a faithful picture of the present state of New South Wales, as regards its social, moral, and political condition, particularly considering it as a penal settlement; with the tendency of the line of policy pursued by its present governor, Major-general Sir Richard Bourke, as to the treatment of the convict population and the entire felonry of the colony, and the mighty influence, either for good or evil, which the mode of treating the convicts must necessarily exercise over the interests and welfare of the free and reputable settlers,—over the morals of the entire community,—over the tranquillity of the colonial society,—and, emphatically, over the state of crime in Great Britain herself, whose criminals must be either emboldened or discouraged in proportion as they view transportation to a penal settlement as a punishment more or less severe.
The author has ventured to coin the word felonry, as the appellative of an order or class of persons in New South Wales,—an order which happily exists in no other country in the world. The major part of the inhabitants of the colony are felons now undergoing or felons who have already undergone their sentences. They occupy not only the station of the peasantry and labourers in other civilized communities, but many—very many—of them are also, as respects their wealth or their pursuits, in the condition of gentry, or of dealers, manufacturers, merchants, and lawyers or other members of the liberal professions. Hitherto there was no single term that could be employed to designate these various descriptions of persons, who now bear the denominations of "convicts" and "ticket-of-leave-men;" as also, "emancipists," (as they are absurdly enough called), who again are subdivided into "conditionally pardoned convicts," "fully pardoned convicts," and "expirees," or transported felons whose sentences have expired; together with "runaway convicts," subdivided into "absentees," (a name foolish for its mildness), and "bushrangers." The single term, the felonry (which comprehends all these descriptions of the criminal population), though new, is evidently a legitimate member of the tribe of appellatives distinguished by the same termination, as peasantry, tenantry, yeomanry, gentry, cavalry, chivalry, &c. The author has the honour of especially presenting it to the gentlemen emancipists, alias, the emancipated felons of the colony, by whom he has no doubt it will be received with most peculiar approbation and delight, inasmuch as it not only expresses—and elegantly expresses—their place in society, but as it raises their caste (with all the beauty and fashion of the felonry of New South Wales, whether sparkling in silks and jewels at the theatre and the ball, or dashing four-in-hand to the races at Parramatta, or over the glittering and crowded "drive" to Bellevue Point, on the South Head Road, not more romantic by the magnificence of its natural scenery than by the living splendours of its rich and animated felonry), to the dignity of an order in the commonwealth.
In gratulating himself, as well as the colony, on this felicitous invention, the author, before the fervor of critical accuracy and fastidiousness subsides, begs leave to record his protest against the abuse of language in the misapplication in the terms emancipists and absentees to two portions of the colonial felonry. An emancipist could not be understood to mean the emancipated, but the emancipator. Mr. Wilberforce may be honoured with the title of emancipist; but it is as absurd to give the same appellation to the emancipated felons of New South Wales as it would be to bestow it upon the emancipated negroes of the West Indies.
The ludicrous and affected philanthropy of the present governor of the colony, in advertising runaway convicts under the soft and gentle name of absentees, really unaccountable, unless we suppose it possible that his excellency, as a native of Ireland, and as having a strong and well-grounded Hibernian antipathy to his absentee countrymen, uses the term as one expressive both of the criminality of the absentee, and of his own abhorrence of the crime. To be serious, however, the calling runaway convicts, who must necessarily resort to the most desperate crimes,—always to robbery, and often to murder,—the calling these ruffians by the name which is used to designate the nonresident nobility and gentry of Ireland, is much worse than merely ridiculous. It can serve but one good end; and that is, to prepare the reader for the exposure of the convict-propensities of the present colonial government, which it is the principal design of this volume to accomplish.
IT is notorious, that, during the administration of several successive governors of New South Wales, transportation to that colony was so far from being regarded as a severe punishment by the major part of the criminals in England, that numerous avowals have been made by convicts of their having actually committed the crimes for which they were tried, for the express purpose of being sent out to a land of promise, in which the transported felon is assured of abundant subsistence for the exertion, and even without the exertion, of easy toil, and in which it is no uncommon thing for him rapidly to acquire even great wealth, or to find himself in easy and independent circumstances, long before the expiry of the time prescribed by sentence of the law for the duration of his punishment.
Nothing, certainly, can be more subversive of the original design of the British government in founding the penal settlement of New South Wales, than the prevalence of such an idea as that which has just been stated.
During the wise and vigorous, though temperate as well as just government of General Sir Ralph Darling, and also during a portion of the regenerating government of General Sir Thomas Brisbane, it is true that so mischievous a notion of the state of penal discipline in the colony, was in some degree eradicated from the minds of the criminals of Great Britain.
From the new measures and principles of government, however, which are acted upon by the present Governor, Major General Bourke, and which are advocated and maintained, and legally enforced, by the chief justice of the colony, by a portion of the Governor's council, and by a servile police magistracy, there is, more than ever, reason to dread that the penalty of transportation to New South Wales will altogether cease to operate as a preventive of crime in the mother country, as the same principles and measures have already loosened the bonds of subordination within the colony itself, and have inflamed the malignant feelings of the convicts against the laws and the peaceful settlers who are their immediate employers, and against all that is praiseworthy, independent, and virtuous, in the land which is doomed to be the scene of the difficult and dangerous experiment of their mingled punishment and reformation.
The writer of these pages emigrated with his family to New South Wales in 1822, and remained in the colony till March, 1836. It is after a residence of fourteen years, therefore, in a colony established within the last half century, that he presumes himself competent to throw some light upon its internal polity and management. It is after having established and successfully conducted one of the largest agricultural concerns in the country, under all the trying difficulties and incalculable disadvantages of the first settlers on the river Hunter, at a distance of one hundred and forty miles from, and with more than one hundred miles of the trackless bush or forest wild interposed between his allotted dwelling-place and the seat of the colonial government, that he thinks he is capable of advising the measures best calculated to insure the security and promote the prosperity of the free settlers, and consequently to facilitate the accomplishment of all the objects and purposes for which the colony was founded. It is after having been one of the most extensive employers of convict labourers in the colony, and after having been in the commission of the peace during several years as a magistrate for the territory, that he considers he is bound to state his knowledge of the nature and character of the convict population, and fearlessly to express his opinions as to the treatment to which they should be subjected, with the view of accomplishing the threefold object of their transportation, namely: a sufficient degree of strictness of discipline (if severity be too harsh a word) to render the sentence of transportation rather a punishment than a reward for the perpetration of the crimes of which they have been convicted; a sufficient degree of subjection to the will and power of their immediate masters, and of the laws, to enable them to be coerced to the performance of an amount of labour adquate to their own maintenance, and to a reasonable profit upon their employment, for the benefit of their employers and of the colony at large; and, a sufficient amount of moral restraint and religious impression to afford a prospect of reclaiming them from the depraved appetites and vicious courses, the indulgence and pursuit of which are the sole causes of their being subjected to the extraordinary circumstances in which they are placed. It is after having suffered most seriously in his own pecuniary interests, and after having been deeply wounded as an employer of convicts, as a magistrate for the colony, and as a gentleman, through the mistaken views and fatal acts and measures of the present colonial government as affecting the convict population, and its oppression of the independent magistrates who dared to differ from its ruinous and anarchical policy, that the author has returned to England not alone to complain at the bar of public opinion of his own wrongs and grievances, but to denounce to the British people, the parliament, and the king, with a warning and prophetic voice, the anti-penal, anti-social, and anti-political system now practised in New South Wales, and which, if persisted in, must inevitably reduce that valuable and important colony to the wretchedness of unbridled crime and lawless anarchy, and result, sooner or later, in its violent and sanguinary separation from the empire.
While the author is fully convinced of the certainty of the grounds on which these opinions are formed, and feels assured that he is able to establish them by the statement of facts and the production of documentary and other evidence in his possession, he nevertheless approaches his subject with a full sense of the delicacy and caution necessary to be observed in commencing its discussion.
The population of New South Wales, in its constituent parts, forms a community essentially differing, morally, legally, and politically, from any other community in the world. The principles, therefore, which are applicable to the government of any other civilized community, are not applicable to the government of this colony. Although the population is entirely British in its numerical and physical construction, yet is more than one moiety of it un-British in social and civilized spirit, and in moral feeling and character. A very large proportion of the population, indeed, consists of branches lopped for their rottenness from the tree of British freedom, venerable for its grandeur and its antiquity, whom the outraged soil of England, shuddering at their crimes, has expelled, and whom she has with just abhorrence cast forth from her shores, to expiate, upon the waste of waters, and in the toils of creating a new world for their posterity, those offences which placed the very lives of the majority of them at her mercy, and which they are only permitted to enjoy through her indulgence.
The question, therefore, of the principles upon which the government of New South Wales should be conducted, is not one of ordinary polity. It cannot be investigated or determined by any admitted rules or established laws. The community of England, though composed of persons of different degrees of rank, constitutes, nevertheless, but one society,—one community,—in which all the members, with the exception of a few privileges conferred upon the highest order, enjoy equal rights and advantages, none of which can be wrested from them but as forfeitures for the commission of crime. The peculiar privileges of the aristocracy are accurately defined by the law. They are of such a nature, too, that, though they give authority and consideration in the state, they confer upon them no power or advantages over the persons or the property of their compatriotes, as individuals and as their fellow subjects. The law exerts itself equally for the protection, and for the punishment, of all. The meanest individual is as secure in his possessions as is the monarch of his crown. That which is a crime in the poorest and most humble subject, is also a crime in the proudest and most powerful peer of the realm. The law knows no distinctions, and is equally dealt out to all ranks. The enlargement of civil rights in such a community is, therefore, an enlargement of the civil rights of the entire people,—in which all the people are entitled to expect and to demand equal participation, because of their unity as a people, and of their equality in the eye of the law.
Another and very different state of society, it is true, arose in the West India colonies of England, in each of which there existed two castes, viz. a caste of English freemen, and a caste of negro slaves,—the latter being entirely dependent upon, and their very persons the property of the former. But this condition of things, so incongruous with the genius of British liberty, was avowedly founded in injustice, and maintained only by oppression and force. It was the authority of the strong over the weak. The rights assumed and exercised by the whites were the rights of conquest and of the sword,—or, still worse, the rights of secret and treacherous, or of open and undisguised robbery and rapine. The negroes had forfeited no allegiance to the crown of England,—had violated no British law to which they were amenable,—had given no provocation which could afford even the pretext of just vengeance in palliation of their enthralment.
In their violated persons the common rights of human nature and the plainest principles and most manifest dictates of justice, had been lawlessly trampled under foot. These facts formed the rock upon which the advocates for the abolition of negro slavery founded their arguments and claim,—the rock which assured them of and obtained for their their ultimate triumph. To the unfortunate negroes nothing was granted but strict justice,—nothing but the restoration of rights of which they had been unjustly deprived. Their condition had been an anomaly in the phenomena of the British empire. Their emancipation renders the society of the West India colonies, as far as it is now possible, or at least practicable, analogous to the society of England,—an analogous condition which ought always to have existed, and which could continue to be withheld only by the continuance of injustice.
In the colony of New South Wales, there are also two castes:—
First, a caste of free emigrant settlers, voluntarily seeking therein the advancement of their own views and interests,—by the exertion of their enterprise and capital promoting the interests of the colony at large,—and entitled, as free and untainted British subjects, to all the rights, privileges, and immunities which can be conferred upon them consistently with the accomplishment of the peculiar purposes for which this colony was founded and is maintained, and consistently with its well-being and its security as a dependency of Great Britain. As voluntary exiles to the country of their adoption, to which they have not been compulsorily sent, but to which they have freely gone, even they are bound to modify their expectations, and their rights are necessarily restrained and limited, by the considerations which have just been stated.
It is incumbent upon both the governors and the governed continually to remember and take into account the peculiarities of the social constitution of the colony. If there be any thing inherent in that constitution which necessarily involves a state of things repugnant to their preconceived notions of government, on the one hand, or of the rights of British subjects, on the other, they should remember that things which would be unconstitutional in England, are strictly, essentially, and inevitably constitutional in the colony. They ought not, therefore, either to undertake the government of such a colony, or to become subject to its regulations and laws, without first adapting their inclinations, principles, and maxims, to its constitutional and unalterable peculiarities. If those peculiarities give birth to political combinations that jar with their own preconceived opinions and habitual feelings, they must be told that it is a maxim of law, that he who seeks the nuisance is not entitled to require its abatement.
The second caste of the society of New South Wales consists of convicts who have been sent thither from England, by sentence of the law, for crimes committed,—sent thither, not as colonists,—not as retaining the attributes of British subjects,—not for the purpose of bettering their social condition,—but as felons,—as men whom the violated law has divested of their natural and legal rights,—sent thither, in short, as to a place of punishment,—where they are not only to remain divested of the protection of the ordinary laws of the realm, but where they are to be subjected to new laws, having for their object both their punishment and their reformation, but regarding their punishment as a means of deterring other persons in England from the commission of similar crimes, and therefore justifying the prolongation of the punishment, even in cases in which the reformation may already have been accomplished.
It is quite evident that there is nothing in the condition of this society which is analogous to that of society in England, or in any other civilized community, or even to that condition of society which existed or now exists in the West India colonies.
The inequalities in the society of New South Wales are so far from being founded in injustice, or from being maintained in violation of law, that the inequalities have been constituted by the administration of justice, and can only be altered by defeating the very object and spirit of that British law, by which they have been created.
Besides the original inequality,—the just and legal inequality, between the transported convicts and the free and untainted emigrants, another inequality, incidental to the existence of the former caste, has arisen, and that inequality consists of those convicts, who, having undergone their periods of punishment, have thereby become entitled,—not, certainly, to the rights of colonists—of voluntary emigrants to New South Wales, but simply to the privilege, if they think fit to exercise it, of quitting the country to a residence more or less protracted in which they were doomed by their sentences. They are so far from being placed, by the mere expiry of their sentences, on a footing with the voluntary emigrants, that the law, if it had seen fit, or the legislature even yet if it shall think fit, might direct their forcible removal from the colony after the expiry of the sentences, and either that they should be brought back to the mother country, or turned loose in any other part of the globe.
Conviction of felony renders a man for ever infamous in England,—infamous in law,—and attaches to him for life certain disabilities, which incapacitate him for exercising some of the rights and duties of citizenship.
It is not enough that the felon pay the immediate penalty which the law awards to his crime. Other consequences, both legal and moral, flow from the fact of the conviction. So accordant is all this with the spirit and feeling of the British people, as well as with the genius of British institutions, that there is not, perhaps, in all England, a public body of any description,—not even a single benefit society,—or even a convivial club,—in which the conviction of a member for felony is not instantly followed by the expulsion of the member so convicted from the society to which he belongs, and that by an express regulation, or law, of all such societies,—thereby declaring the universal feeling of the entire British people, that a convicted felon is unworthy both of future trust and of mingling with and participating in the provident arrangements or the social enjoyments of his former associates and fellow subjects.
No absurdity, then, can be greater,—nothing can be more anti-British, either as to the spirit of British law, or as to the tone of British feeling and morals, than to suppose that the emancipated convicts of New South Wales are entitled to claim the same consideration in society, or the same rights and immunities, as those claimed by or granted to the free and respectable settlers.
As even those settlers are bound to modify their expectations and to limit their demands, by the peculiar circumstances of the colony, how much more are the emancipated convicts, the entire felonry of the colony, both by the peculiar circumstances of the colony, and by the infamy attaching to themselves, bound to rest satisfied with being allowed to become settlers in the colony, and to waive all those high pretensions which at one time certainly became them as Englishmen, but for which, according to the universal judgment of the English nation, they have rendered themselves unfit.
Enough, perhaps, has been said, to shew that the internal polity of New South Wales is not a question of ordinary or party politics. That country, in short, is not merely a colony of British freemen, but a penal settlement or place of punishment,—a huge penitentiary, or house of correction,—in which the laws and regulations must be framed expressly for the nature and quality of the inhabitants, and also for the purpose of operating as a prevention of crime in the parent state.
How desirable soever it may be, therefore, that the present disposition to the enlargement of popular rights and privileges should be allowed to manifest itself under ordinary circumstances, no high-minded and honourable man, whatever may be his political party, will maintain that he should view a criminal prison population with the same feelings as those with which he regards the inhabitants at large of a free country.
PREVIOUS to the issue of the American war of independence, it had been the practice of England to transport her convicted felons to her settlements in North America. Afterwards the British government resolved on forming a new penal settlement in some remote and secure situation; and the part of New South Wales which had been described by Sir Joseph Banks, and named Botany Bay, was at length fixed upon.
The frigate Sirius, Captain John Hunter, the armed tender, Supply, Lieutenant Ball, together with three store ships, and six transports, having on board six hundred male and two hundred and fifty female convicts, with a guard of one major commandant and three captains of marines, twelve subalterns, twenty-four non-commissioned officers, and one hundred and sixty-eight privates, besides forty women, wives of the marines, and their children, accordingly set sail from Portsmouth for the new and far-distant home of the convict exiles, on the 13th of May, 1787.
This fleet, which also carried out Captain Arthur Phillip, R. N. as governor of the projected colony, arrived in Botany Bay in the end of January, 1788.
Botany Bay, however, was immediately discovered to be an insecure harbour; and, although the season was about midsummer in that part of the southern hemisphere, the lands on the border of the bay were ascertained to be little else than unproductive swamps and barren sands.
Captain Phillip accordingly went with three boats in search of a more eligible landing place, and discovered Port Jackson, a few leagues northward of Botany Bay, "one of the finest harbours, whether for extent or security, in the world." To Port Jackson the fleet was immediately removed; and the new settlement was formed on the twenty-sixth of January, 1788, at the head of Sydney Cove.
Such was the origin, only forty-nine years ago, of a colony which already contains a British population estimated at eighty thousand souls, and comprehending its handsome, enterprising, and flourishing capital, Sydney, with a population of twenty thousand, and several other towns,—a colony which has already become of great and increasing commercial importance to Great Britain, and which, if not retarded in its growth by misgovernment, must speedily become by far the most valuable possession of the British crown.
It is not necessary, for the purposes of the present work, to detail the early difficulties, disappointments, privations, and perils, including the danger of famine, encountered by the colony during the first few years of its existence.
By an almost unaccountable oversight, on the part of the government at home, the infant colony was unfurnished with either agriculturists or mechanics sufficiently skilful or capable of instructing and training the promiscuous herd of felons transported from London and the towns of England, in those regular and productive efforts of labour, in the field and in the workshop, requisite even for the self-supply of the colony with the principal necessaries of life. So deplorable, indeed, was the deficiency in this respect, that there was but one individual in the colony who could either instruct the convicts in agriculture, or successfully manage them in other respects; and these qualities were the chance possession of a man whom Governor Phillip had hired in England as his body servant! Even of this valuable person the colony was deprived by death so early as in 1791.
By another strange mistake of the home government, not only were no free settlers sent out with the convicts, but it was for a long time its policy not to permit free emigrants to proceed to and settle in the colony.
When the transported felons of England used to be poured into Virginia in North America, they were immediately dispersed amongst and absorbed into the numerous, industrious, and moral population of that country. They were a valuable supply of labourers, much wanted by the American planters. Their numbers, compared to those of the settled and orderly population, were insignificant. They were therefore easily constrained, by the numerical superiority of the people amongst whom they were cast, and by the united force of the law and of example, both to habits of industry and to moral observances in their conduct; and thus two of the objects of their transportation were accomplished by the very nature of the circumstances in which they were placed.
Governor Phillip was soon sensible of the bad consequences of the very different circumstances which awaited and attended his infant charge. He accordingly urged the British Government to give every facility and encouragement to the emigration of numerous, industrious, and virtuous families to the new country committed to his guidance. It was not, however, until 1796, that several families of free emigrants were conveyed to the colony at the public expense, where they had grants of land assigned to them, and free rations allowed from the government stores for eighteen months.
The convict population, meantime, necessarily became exceedingly depraved; and their submission to any kind of law or government at all, can of course only be attributed to the presence of the military force at the governor's disposal. Every endeavour, however, in spite of the discouragements existing, was made, by giving to the better behaved of the convicts, either pardons and small grants of land, or grants of land after the expiration of their sentences, to create an orderly and industrious class, as an example and counterbalance to the general bad habits and character of the convict population.
During the administration of several successive governors, the colony, consisting wholly, or almost wholly, of convicts undergoing their sentences, or of convicts become free either by pardons or the expiry of their sentences, the colonial government had no other materials than the felonry, out of which to endeavour to form the elements of a future orderly and moral people! Hard and forbidding, if not impossible task! So very limited, indeed, was the number of free emigrants, that the first governors had no choice, but that of appointing convicts having some of the requisite qualifications, to be the clerks in the government offices, and to hold other situations and appointments of trust under the government.
Amongst the inevitable results of this employment of convicts and emancipated convicts in the offices of the government, the colonial government itself was in every way deceived, defrauded, and plundered.
In the office of the colonial secretary, in particular, in which the records were kept, even recorded sentences were surreptitiously altered; tickets of leave and conditional pardons were obtained in the most corrupt way; and grants of land were procured for some of the very worst characters in the settlement;—the motives for all this, on the part of the convict government employees, being either a pecuniary bribe, or a spirit of favouritism for some socius criminis, or criminal confederate, while in England.
The author of this work received an account of the manner in which a conditional pardon had been obtained, from the mouth of the emancipated convict himself. The fellow is still, after the lapse of so many years, far from being morally reformed; as he lives by the keeping of a very improper house in Parramatta, and the selling of ardent spirits to the lowest class of the population.
Having understood, he said, that a conditional pardon might be obtained for money, he applied to a convict government clerk, who undertook to procure the pardon for the consideration of twenty pounds. As soon as he was ready to comply with the pecuniary condition, he wrote to his friend the government clerk at Sydney, requesting him to procure the pardon. The letter was entrusted to a convict proceeding to Sydney, who, having characteristically opened the packet to ascertain its contents, thought fit to suppress it, and give information of the job to another convict clerk of government, a friend of his own. The latter being thus "put upon the scent," wrote to the applicant, and offered to procure him a conditional pardon for ten pounds. The convict of course allowed the first negociation to drop, and, for the smaller bribe, was shortly afterwards gratified with the object of his wish.
That there was ever a necessity for resorting to the employment of convicts as clerks, overseers, or other officers, for doing the business of the colony, cannot be sufficiently deplored. The peculiar circumstances of the colony, however, in its early infancy, sufficiently account for the introduction of the practice, and amply justify the first governors for having done that, through necessity, which some of their successors, and particularly the present governor, have continued from taste, and persevered in with infatuation.
In short, as may readily be supposed, every species of falsification of documents, and of treachery, fraud, and plunder, was of constant occurrence.
The lumber-yard, as it was called, was an establishment containing workshops for convict mechanics of various descriptions, in the employ of government, and was also a depot for materials and stores used in the carrying on of the government works. The mechanics (of course all convicts) employed by far the greater portion of their time in working, not for the government, but for the felon overseers and clerks of the establishment.
The robbery thus practised upon the government was not confined to the misappropriation of labour, but extended to every description of materials; and so great and audacious were the depredations, that every overseer or clerk, immediately on coming into office, even commenced building houses with the labour and the materials of government thus subject to his disposal. The secresy as well as co-operation of the convict mechanics was secured by means of rum and other gratifications; and so closely were the plunderers bound together, that detection seldom ensued. Large fortunes, now enjoyed by many of the felonry or their descendants, were thus originated.
The government was not more secure in its pastoral operations. Owing to the scarcity of cattle, large herds on government account were formed in different parts of the settlement. The overseers and stockmen (again of course) were felons. After a time, there were frequent allegations that the herds were plundered. To ascertain the truth, an order was issued, directing that on certain days specified, the cattle at the different stations should be successively mustered and counted. This was done; and, to the surprise of the informants, the different stocks of cattle were found to be numerically entire.
The suspicion that some deception had been practised, was unavoidable; and a second muster was ordered to take place; when some functionary, more sagacious than the rest, suggested that the muster should take place at all the stations on one day. An enormous deficiency was now discovered.
On the first occasion, the guilty overseers and stockmen had played to each others' hands, by secretly driving, from station to station, the requisite number of cattle to make a show of the stock being complete at each place successively.
Thus were laid the foundations of fortunes for another portion of the colonial felonry.
These,—the then convict and plundering clerks, overseers, and stockmen, in every branch of the government service, the enumeration of whose misdeeds would be at once unnecessary and tiresome,—these very men now form, under Mr. Wentworth, Sir John Jamison, and a few others of the colonial Patriotic Association men, the most influential portion of the patriots of New South Wales, already madly permitted to officiate as jurymen, and at present clamouring for a house of assembly, or colonial parliament, that they may receive the further and higher as well as more unwise and dangerous distinction of endowment with the elective and representative franchises!
Captain Phillip resigned the government and embarked for England in December, 1792.
Captain John Hunter, R. N., was the governor after Captain Phillip; but he did not arrive in the colony till August, 1795. The government, meanwhile, had been conducted, first by Major Grose, and afterwards by Captain Patterson, both of the New South Wales corps, a military force specially raised in and sent from England to be the colonial garrison.
The evils inherent in the constitution and population of the colony, greatly aggravated by the sordid and in other respects highly improper, as well as rebellious proceedings of the officers of the New South Wales corps, who had usurped a monopoly of the sale of rum, which they employed for the two-fold purpose of still further debauching the population and enriching themselves, became so great, that Governor Hunter at length embarked for England in September, 1800, to make a personal representation of the state of the colony to the government at home. He did not return to New South Wales.
The third governor of New South Wales was Captain Phillip Gidley King, R. N.
Captain King assumed the government in September, 1800. Under his administration, it has been said, "the colony consisted chiefly of those who sold rum, and those who drank it."
The turbulent, immoral, and avaricious officers of the New South Wales corps carried things with so high a hand, that Governor King was frequently apprehensive of being put under arrest by them; and so flagrant did the misconduct of the government officers, both military and civil, become, that on the governor sending a gentleman to England with a written complaint against an officer of the corps, it was found, when the box which had contained the complaint and his excellency's dispatches, was opened in Downing-street, that its lock had been picked in the colony, rifled of its contents, and a harmless parcel of old newspapers put in their place.
This incident alone should have given the home government a pretty striking specimen and proof of the habits of the convict officers of the government who were suffered to be about the person of the governor, and to pollute the public offices and employments of the colony.
As a counterbalance to the mutinous officers and soldiery, Governor King was driven to seek favour in the eyes of the convicts; and, by the liberality with which he granted to numbers of them licenses to sell rum, the vice and immorality with which the whole colony was more or less infected, became still more inveterate. The dissolution of morals was general. Marriage was not even thought of in the colony. Virtuous industry was neither encouraged nor protected. "Bands of bush-rangers, or runaway convicts, traversed the country in all directions; and, entering the houses of the defenceless settlers in open day, committed fearful atrocities." Several hundred convicts at a government agricultural establishment twenty miles westward of Sydney, even took the field in insurrection, and, armed with pikes and such other weapons as they could lay hold of, marched upon the capital. They were, however, encountered by the military under Major Johnston, a few miles from Parramatta, where several of them having been shot, and others immediately taken and executed, the rest returned to their work.
Captain Bligh, R. N., succeeded Governor King, in August, 1806.
Governor Bligh exerted himself, but in vain, to bridle the rapacious New South Wales corps, and especially to destroy their monopoly in the sale of ardent spirits. There being now a few free settlers in the colony, he also did every thing in his power to promote their interests. He received their agricultural produce into the public stores at a fixed and liberal price, furnishing them, beforehand, and while their crops were still growing, with whatsoever articles they required for the consumption of their families, at charges very greatly below those at which they could obtain them from the dealers in those commodities in the colony, whose prices, in consideration of the credit they gave the distressed settlers, were most exorbitantly high.
These judicious and humane proceedings of the governor of course highly exasperated both the military and civil monopolists, the latter of whom were, with scarce an exception, the public plunderers who had been enriching themselves in the manner already noticed, and all of whom had hitherto absorbed the whole surplus produce of the colony, preying upon its very vitals, and by their confederacy preventing fair competition; and at length the New South Wales corps was marched by its colonel and the other officers to government house, where in open rebellion they deposed the governor from his authority, made him prisoner, and eventually forced him to quit the colony.
As this work is not a history of the colony, and as the circumstances attending the revolt of the New South Wales corps have been fully discussed by different Australian writers, suffice it to say that a whole year elapsed before Colonel Johnston was deposed from his usurped authority, during which period all the evils of the colony were frightfully augmented; and particularly by the granting of portions of land to inordinate numbers of the convicts, in order to strengthen the hands of the usurpation.
There was a change of ministers before the arrival of Governor Bligh in England; and the new ministry were so perfectly indifferent as to the colony of New South Wales, that it is thought Colonel Johnston would have escaped with a reprimand from his military superiors, had not he himself demanded a court-martial, by which he was accordingly tried and cashiered.
The author is chiefly indebted for these sketches of the governments of the predecessors of General Macquarie, to Dr. Lang's Historical and Statistical Account of New South Wales.
The author is chiefly indebted for these sketches of the governments of the predecessors of General Macquarie, to Dr. Lang's Historical and Statistical Account of New South Wales.
LIEUTENANT Colonel Lachlan Macquarie, afterwards Major General, arrived in New South Wales as governor, in December, 1809.
The home government annulled all the acts of Colonel Johnston's usurpation, but considerately empowered Governor Macquarie to re-enact such of them as he should approve,—a discretion which he in almost every instance exercised affirmatively.
Governor Macquarie conducted the affairs of the colony during the long period of twelve years.
His government has been much eulogized by the felonry, to whom he was supposed to be favourable and indulgent.
Like his predecessors in the very arduous and difficult post of conducting the government of such a settlement, the early errors and faults of which are in a great measure fairly attributable to the singular apathy of the government at home, Governor Macquarie had scarcely any other choice than that of making the best he could of the convict population under his sway.
He was, moreover, a man of mild and humane disposition and feelings, of exemplary morality in his own conduct, and imbued with religious principles.
Impressed with the idea, which had all along influenced the government at home, that the colony should be regarded only as a penal settlement,—the theatre of a great experiment upon the criminal outcasts of the mother country,—it was natural for Governor Macquarie, in conformity with his own humane feelings and religious principles, as well as with what he conceived to be the intention of the British cabinet, to endeavour to reclaim the emancipated and convict population by favour and indulgence. He was, consequently, a great favourite with that class of the inhabitants, who still speak of the good old times of Governor Macquarie. Unhappily the very features of his own character which were the most amiable,—his good nature and his piety,—rendered him liable to be imposed upon by the crafty and the hypocritical; and his favour, consequently, was sometimes conferred upon unworthy objects.
Certain it is, that though the colony progressed in wealth under his administration, it was far from being improved in its morale. The bane of the colony, the employment of convicts and emancipists in government offices, continued; and the felonry as a body, from the great wealth acquired by many of them, and the consequence attendant upon the mere possession of wealth in such a country, became more and more audacious in their pretensions and unreasonable in their demands.
It is not intended to attribute these vices in the constitution of the colony to the personal character of Governor Macquarie. They were the natural growth of the whole system of the policy that had been observed towards the settlement from its first formation. The effectual counterpoise to the felon population, or rather the only basis on which any governor could found an effective anti-convict policy,—that is, the influx of free emigrants of good character, and of enterprise and capital, had not yet sufficiently taken place. The colony, however, was indebted to Governor Macquarie for the formation of valuable and extensive lines of road, and for other public works of utility and spirit, which have been found of great value to its internal prosperity.
It is to be lamented that so worthy a man as Governor Macquarie, who had devoted his whole faculties to the improvement of the colony,—and that, too, not only with all the energy and zeal of a military man engaged in a great, difficult, and glorious enterprise, but with a solicitude equal to that of a father labouring for the advancement of his own children,—it is deeply to be deplored that this great and good man did not escape the shafts of private malice, nor the poison of political hostility.
Towards the close of his government, Mr Bigg [Bigge] was sent out as a commissioner to enquire into the general condition of the colony, and to report upon its state to the government at home. In so far as this proceeding was an indication that the growing importance of New South Wales had begun to attract some portion of the attention of the home government, it boded well for the colony.
Governor Macquarie, however, felt mortified at the appointment of the commission; and Mr. Commissioner Bigg, as is well known, busied himself infinitely more in pointing out and sanctioning trumped-up charges against the governor, than in ascertaining the actual condition of the colony, which was the proper object of his mission. Governor Macquarie being a mild and unassuming man, Mr. Bigg presumed so far upon this feature in his character, as to take every uncandid and unfair advantage; while the vipers and unprincipled men who had fattened under the governor's administration, in the wane of his excellency's power, and in proof of their readiness to court the rising sun, filled the ear of the commissioner with every thing that slander could invent or misrepresentation fashion into imputation upon the venerable representative of their sovereign.
The commission, therefore, instead of being an enquiry into the state of the colony, was engaged in getting hold of every thing that could in any way degrade or affect the good name of the governor.
To accomplish this unworthy purpose, every stratagem was resorted to. A Mr. Scott, who had been a wine merchant, but who went out as clerk to the commission, was employed and encouraged to collect the materials with which the governor was to be assailed. The clerk could condescend to practices from which the dignity of the commissioner must have shrunk; and with so much alacrity did he perform the work assigned to him, that there was no lack of either pretences from which to fabricate something like charges against the governor, or of ready volunteers to support them.
Shortly after the return of General Macquarie to England, his health rapidly declined; and his death soon afterwards was in great measure attributed, by those who best knew him, to the impression made upon his spirits by the calumnies of his enemies.
His eulogium was pronounced in the House of Commons by his friend Sir Charles Forbes, Bart., whose own eminent virtues and princely benevolence form a guarantee of the worth of every man honoured with his friendship, and whose intimate knowledge of Indian and colonial affairs gave the weight of authoritative decision to his opinion of Governor Macquarie's official conduct.
So many disgraceful things have occurred with regard to New South Wales, that it is absolutely painful to record them. Earl Bathurst, deceived by the report of the Bigg commission, and thinking Scott, the commissioner's clerk, entitled to reward for his drudgery, created an ecclesiastical dignity in the colony for the lucky ex-wine merchant, and transformed him into Archdeacon of New South Wales, with a living of two thousand pounds per annum! This was certainly one of the most scandalous of the scandalous jobs by which the colony has under all changes of the home government been oppressed and plundered.
Scott might with equal propriety have been made a lord chancellor or an astronomer-royal, as an ecclesiastic and the supreme dignitary of the colonial church. His conduct soon showed his total unfitness for the post improperly created for him, and to which he was most improperly raised.
By one of the manifestations of unchristian and uncharitable feelings,—one capricious exercise of ecclesiastical tyranny, he did so much injury to the character of the church in the opinion of a portion of the colonial public, and more especially as showing the sort of men to whose malice General Macquarie may be said to have fallen a victim, that it merits record.
From a personal dislike to a pew renter in the church of St. James's, in Sydney, a gentleman punctual in his attendance with his six motherless daughters upon the services of the church, and of strict religious principles, Mr. Archdeacon Scott unjustly resolved on depriving him of his well situated pew, and accordingly caused it to be intimated to him, on a frivolous pretext of projected alterations, that he must relinquish his pew, and on the ensuing Sunday take possession of another pew, situated as remotely as possible from the pulpit, and in a cold and comfortless part of the church.
The pew renter, who held his pew from year to year at a rent of four pounds, and who had been thirteen months in possession of it, refused to acquiesce in this arbitrary deprivation of his property. He signified this refusal, and his resolution to resume his sitting with his family in his own pew, on the next and all ensuing Sundays.
In reply he was peremptorily told that any attempt on his part to enter the pew would be resisted, and that police constables would be in attendance to keep the peace,—that is, to carry a peaceable parishioner off to the watchhouse, in the event of any noise occurring through his endeavours to exercise his civil right of entering his own pew.
Unfortunately for the archdeacon, the gentleman with whom he entered into this rash and unseemly squabble, is one of the most resolute men in the colony. He was infinitely better versed both in ecclesiastical and civil law, and even in divinity, than the arrogant archdeacon himself. He held, moreover, in his hands, the powerful engine of the press, being the proprietor and editor of one of the colonial newspapers,—an engine which he naturally employed, and with equal tact and power, in giving public interest to his defensive warfare against the tyranny of the archdeacon. He took his measures, too, with imperturbable coolness, but with resolute and inflexible determination. For many successive Sundays, the sanctity of the church was violated, and the congregation scandalized, by the spectacle of police constables with their staves opposing the progress of a respectable and religious father, with his numerous family of young females, to their accustomed place of worship. The door of his own pew was locked against him,—his name torn from it,—and the inscription "for civil officers" put in its place. A police constable stood by with the key, admitting into the pew young fellows, such as clerks and mates of ships, and locking them in one after the other, while the Pere de Famille stood in the aisle, and the delicate females his daughters sat on the cold stone steps of the altar-piece.
On more than one occasion, the man thus persecuted succeeded in eluding the vigilance of the archdeacon's watchmen, and, "leaping with the agility of a kangaroo," to use his own expression, into his pew, lifted in his daughters after him.
The church, on every day of public worship, was successively filled with indignant crowds, to witness the disgraceful conflict waged by the archdeacon against an unoffending member of his church. The latter cautiously abstained from doing any thing that could be made a pretext for charging him with a breach of the peace; and the archdeacon, finding that the adversary he had created for himself would stand out the contest for an indefinite length of time in the aisle, at length caused the disputed pew to be covered in, or decked over, with boards, secured in their places by strong iron bars and screws!
The archdeacon himself, however, eventually had the worst of it. The appeals to the public, by the injured party, were made with equal force of argument, equanimity of temper, and spirit. As a specimen of the ridicule employed: the parishioner, speaking of the dreary pew, the nursery of rheumatism, to which the archdeacon wished to condemn him and his daughters, called it a "swampy corner," and in cutting irony he recommended the archdeacon to turn principal grave-digger, so that he might consign the remains of those of his parishioners towards whom he entertained personal dislike, to the "swampy corners" of the burying ground.
But the defender in the conflict was not content with kindling the public indignation against his persecutor. He appealed to the bishop of Calcutta, the archbishop of Canterbury, and the home government. He appealed also to the law, and eventually obtained damages for having been illegally dispossessed of his pew.
The archdeacon, on the contrary, became so obnoxious, through his intemperance on this occasion, and for other petty and vexatious acts of oppression, founded in personal spite or political motives, that he felt it necessary at last to renounce his rich appointment, quit the colony, and return to England.
MAJOR General Sir Thomas Brisbane, K. C. B., entered upon the government of New South Wales in December, 1821.
The first really great and remarkable impulse to the prosperity of the colony was given by the tide of free emigration which had now steadily set in, and which continued to increase throughout the whole period of his excellency's administration.
The emigrants, too, were of a much higher grade, as to their circumstances and former respectability in life, than those of their countrymen seeking new homes in the United States, or in any other of the British colonies. The superiority of the emigrants to New South Wales, in this respect, was partly owing to the great expense of the passage out, and still more to the peculiar colonial regulations as to grants of land. Under those regulations, lands were only granted in proportion to the means of the emigrant applicant to give employment and maintenance to specified numbers of convicts. If he could satisfy the government that he was able, and entered into a bond obliging himself, to give subsistence to five convicts for a certain number of years, he received a grant of five hundred acres of land, and also rations for his family and his convict servants for six months, together with a breeding cow for each convict—the cows to be repaid by an equal number of cows after a specified term of years. If he could maintain ten convict servants, he had a grant of one thousand acres of land, with rations, and the loan of ten cows. If he could provide for twenty convicts, his grant was two thousand acres, with twenty cows and rations for a certain portion of his convict servants, and so on. So respectable were the emigrants generally as to their circumstances, that the grants of land were for the most part of two thousand acres,—implying that the grantees possessed the means, severally, of employing and maintaining twenty convict servants; and, so numerous was the influx of settlers of this description, that the convicts eventually became scarce; and though great multitudes were annually transported from England, numbers of free emigrants were obliged to wait, with great inconvenience, for convict servants with whose labour to cultivate their lands.
The influx of emigrants enabled Governor Brisbane, with the active and indefatigable exertions of his colonial secretary, Major Goulburn, a gentleman the first to hold that appointment, who had acquired much useful experience during twelve months in which he was under General Macquarie, to introduce several reforms into the treatment and management of the felon population. In as far as was possible or practicable, convicts ceased to be employed in government offices, or as clerks and overseers in the carrying on of public works. Even in Governor Brisbane's time, however, the free and untainted population did not furnish a sufficient number of persons for all those purposes, because the great majority of the emigrants of course went out with the view of becoming agricultural landowners, or of settling in the towns, and carrying on business in them, on their own accounts.
The system introduced by Sir Thomas Brisbane and his talented colonial secretary, however, not only as regarded the treatment of the convicts, but in all the public departments, worked well for several years.
But, at the latter end of Sir Thomas's government, certain intriguing characters contrived to sow dissensions between the governor and Major Goulburn,—or, "the impenetrable Major," as he was called in some of the journals,—an epithet which, in such a colony as New South Wales, was perhaps the highest compliment that could have been paid to any public functionary, or to any individual directly or indirectly concerned in the administration of the government.
Major Goulburn, indeed, was a man of such high honour and integrity, that, when he had established his measures (as far as such measures were practicable,) for rendering the colony really a penal settlement,—that is, really a place of punishment and reclamation for all classes of criminals, which it ought always to have been, no species of favouritism, no exertions of private influence or interest, no applications or recommendations from any individuals, however respectable, could ever induce him to swerve in any degree or in any way whatever, from what was the real design, or what he conceived to be the real design, of the British government in originally giving birth to the colony. It may be mentioned, also, to the great honour of Major Goulburn, that though, at the time now referred to, there was no land board for the settlement of applications for grants of land or the assignment of convict servants,—no collector of internal revenue, at least not until very near the termination of the major's official duties, when he found it necessary that one should be appointed,—and no custom house,—yet the very onerous duties of all these departments were performed, under his unwearied superintendance, in the colonial office; and that with so much order, regularity, and dispatch, that instead of settlers, merchants, or other applicants waiting, as they have since been obliged to do, for days, nay even weeks and months, for replies to their applications, every thing was prompt, and all applications were immediately attended to, under the vigilant and indefatigible, as well as the "impenetrable" Major, who literally made business vanish under his hands, to the full satisfaction of all parties with whom he had business to transact.
On the unhappy dissension, however, arising between the governor and Major Goulburn, Sir Thomas, unfortunately for the colony and for his own government, issued an order directing certain official communications to be addressed to Major Ovens. Major Ovens was a highly honourable man as a military officer, but was perfectly unacquainted with the routine of a public office; and Major Goulburn, as the natural consequence of the slight which the governor had thus put upon him, ceased to act at all, unless under special official orders from his excellency, to the very great detriment of the best interests of the colony. Delay and confusion of course pervaded every department of the government,—a state of things which was only terminated by the recall of both Sir Thomas Brisbane and Major Goulburn from New South Wales. Justice requires it to be added, that Sir Thomas Brisbane was a man of mild and gentlemanly feelings and conduct; and that no one who ever held the reins of government in the colony was more esteemed and beloved for his personal qualities, and particularly for the equal courtesy of his demeanour to all parties who had access to his presence.
LIEUTENANT General Sir Ralph Darling succeeded Sir Thomas Brisbane in the government of the colony, in December, 1825; and Mr. McLeay was appointed colonial secretary, in the room of Major Goulburn.
Perhaps no governor ever arrived in any colony, more anxious and determined to exercise his authority with strict impariality, or with greater regard for the well-being of the interests committed to his charge, than General Darling.
Unfortunately for his excellency, however, confusion prevailed in every department, through the unhappy dissensions which, as has been stated, arose between his predecessor and the late colonial secretary.
The new governor's first task, therefore, in which he was ably seconded by his colonial secretary, Mr McLeay, (a gentleman of long and great experience in official business,) was to reform and reorganize all the departments and public offices, which he also still further purged of convict employes than his predecessor had done, or had been able to do.
The colony, however, was then so circumstanced, that the reorganizing of the departments gave great offence to many individuals; and this laid the foundation for a rancorous opposition to the measures of Sir Ralph Darling's government.
He was assailed with severe animadversions and scurrilous slanders in the opposition newspapers,—so virulent and so vile, indeed, that his excellency, a highly honourable man, and keenly sensitive to unjust aspersions, was provoked by them into a warfare with the press. A series of libel cases were accordingly got up and prosecuted; which only aggravated and embittered the hostility they were intended to crush.
Together with the reformation of the public offices, Governor Darling also introduced a strict administration of public affairs. He altered and strengthened the laws for the management of the felon population, discountenancing all men, however rich, who had rendered themselves infamous by their past crimes, or by the nefarious means employed by them in the acquisition of their wealth.
What was called the anti-convict system was introduced, and a commencement of real penal discipline made, amidst great outcry. The labour of the convicts was applied to the formation of roads and other public works; and, to complete this branch of the administration, the bushrangers were vigilantly sought out, and were soon put down by the vigour of the governor.
But while the colony, under his excellency's administration, was reaping the benefit of his improved measures, and was rapidly progressing in prosperity, it was afflicted for three years with the calamitous visitation of "the dry seasons," and during the distress which accompanied that visitation, and the scarcity of food, it became indispensably necessary to reduce the rations of the convicts,—a circumstance of which an opposition newspaper took advantage to excite very violent discontents.
The colonial government, however, relaxed not in the performance of its duty. Discipline was maintained with a firm hand; and, when the distress had passed away, and plenty was restored to the colony, the governor issued a regulation with regard to the food and clothing of the convicts, which gave general satisfaction, and obtained the praises even of the opposition.
That his excellency, so conducting himself and the public affairs, should have ever had a single enemy out of the class of persons whom it was his special duty to coerce, and who were naturally exasperated at being ruled by a hand capable of making them feel its power, is matter of equal surprise and regret. There were, however, some persons in hostility with this public benefactor; because, the very fact of his faithfully and energetically discharging his duty created him enemies.
Through the exertions of the convict faction, headed by Mr. Wentworth and Sir John Jamison, and through the disaffection of some of his own functionaries, whose convict propensities are fully established in the succeeding pages of this work, he was loudly accused (though most unjustly) of exercising tyranny and oppression in his government.
Of his excellency's enemies the most dangerous, both from his position and from his secresy and insidiousness, was the chief justice, to whom his excellency gave mortal offence, by restricting him to his proper sphere, and not allowing him to have any share in the government.
In spite, however, of the habitual sobriety as well as caution of the chief justice, he sometimes allowed the mask to drop. At a dinner at Dr. Wardell's, under the excitement of wine, he fully betrayed both his republican principles and his hostility to the government, and went so far as to stigmatize Sir George Murray, then his Majesty's principal secretary of state for the colonies, as "the rascally secretary of state." His honour next day apologised, it is true, and attributed his intemperance to the doctor's champagne: in vino Veritas.
On another occasion, at an official dinner at government house, news of the passing of the reform bill having arrived, Mr. Chief Justice Forbes accompanied the expression of his satisfaction with the exulting exclamation, "This is another great blow to the monarchical system!"—"a pretty speech (as was said by Colonel Mackenzie, who heard it), to be uttered by a chief justice of one of his Majesty's colonies, while seated between the governor of the colony, representing the King's person, and the colonel of the King's Own!"
A Bermudian by birth, and educated in an American college, Mr. Chief Justice Forbes is a known republican, of which, indeed, he makes no secret, but rather expresses himself proud.
The chief justice, therefore, from the first, assumed and performed the part of patron or protector of the felonry. During the government of General Brisbane, his excellency's measures, and the reforms introduced by Major Goulburn, were constantly thwarted in the supreme court, in which the chief justice presides: and General Darling was peculiarly counteracted in the same way, on account of his still more determined anti-convict system, and because he had given personal umbrage to the chief justice; while the then attorney-general for the colony, like all his predecessors, was incompetent to counterbalance a man of the craftiness, subtlety, and tact, for which the chief justice is remarkable; and who in fact exercised the power claimed by the Stuarts, of dispensing with acts of parliament,—a power which, even if wielded by English judges, would be bad enough, and which, wielded by fiery politicians like the colonial judges, is altogether intolerable.
As a member of the legislative council, the chief justice was, or it was in his power to be, the very tyrant of the colony, inasmuch as he exercised the power of deciding, that, unless he certified that a proposition for a law was not contrary to the law of England, the proposition could not be entertained by the legislative council, and as the supreme court also assumed the power of declaring what laws of England are in force within the colony, and what are not. The fatal effects of such power, wielded by such hands, were soon perceptible. It has generated evils frightful in their extent, and utterly destructive in their tendency.
A single instance will suffice at once to show the arrogance of Chief Justice Forbes, his leaning to the felonry, the unsoundness of his law, and his hostility to Governor Darling, and to the unpaid magistrates who endeavoured to support the governor in his judicious measures.
General Darling had reclaimed a convict servant who had been lent, not assigned, to a free emigrant in Sydney. The emigrant refused to give up the convict, on the ground that his having been lent was equivalent to his having been assigned, and that the governor had no power to withdraw or recal from any emigrant or settler a convict servant who had once been assigned to him. The magistrates, being of a different opinion, gave the necessary authority to the constables; and the convict was apprehended in the contumacious emigrant's premises, and delivered over to the government. The emigrant was also brought before the bench; and, the fact of his having retained in his service a convict who had been reclaimed by the government, being a harbouring of a convict unlawfully at large, he was consequently fined. The emigrant, persisting in his own view of the case, carried it, in order to try the question, before the supreme court, when the chief justice not only gave it as his law, that the governor had no legal power to recal the convict in question, but, with the plausibility peculiar to his honour, and for which, when an if or a but is required, he is so celebrated, rebuked the magistrates under whose authority the recapture of the convict had been made. The matter was now referred by the colonial government to the government at home, and being by it submitted to the law officers of the crown in England, they decided that the colonial governors have the power of reclaiming even assigned convicts, and consequently that the law of the chief justice was wrong.
The supreme court, in short, under the presidency of Mr. Forbes, has always leaned to the convicts, while its tendency has been invariably and strongly against any magistrate who has been so unlucky as to get into it. That the Chief Justice Forbes, in addition to the traits of his character which have been touched upon, is also tainted with that spirit of duplicity and treachery so characteristic of his political co-partisans in New South Wales, appears from his final conduct to General Darling; for, although he had not only thwarted his measures, but had secretly joined in making misrepresentations and charges, calling his excellency's government "the reign of terror," and in other respects betraying hostility, in an underhand way, against his government; yet on the occasion of General Darling quitting the colony, when it became evident that he would not only depart with eclat from all the respectable inhabitants, but would most likely stand well at home, then the honourable and consistent Mr. Chief Justice Forbes, thinking it possible that his own past misdoings might be forgotten, was the very first, as a member of the legislative council, to sign the following address to his Excellency, eulogizing his government to the skies. But the address speaks for itself. It will be found, with other documents, at the end of this chapter.
It is really matter both of surprise and regret, that the British government should send out to any of the colonies, and particularly to New South Wales, men holding republican principles. With respect to this colony in particular, it is not the question whether republicanism be good or bad. England is a monarchy; and the duty of her statesmen is to mould the colonies as nearly as possible upon the model of the mother country. A republican, consequently, granting him to be an honest and conscientious man, is a most unfit person to be chief justice of a British colony, which, besides being a penal settlement, is progressing in wealth, population, and importance, and is apparently destined to become a mighty nation, which, for the interests as well as the glory of Britain, it is most desirable should be distinguished by a British spirit and character; as well as by the British language.
That the author of this work is not singular in the view he has taken of the danger of mixing the judicial and legislative functions, appears by the following extract from the Sydney Herald of 10th December, 1835:—
"We do not like to see a judge placed in a situation where he must of necessity become a politician. We object to a political chief justice. We would have the judicial and legislative functions perfectly distinct."
"The foregoing passage is taken from an article in a recent number of the Morning Herald, and refers to the appointment of the Lord Chief Justice of England (Lord Denman) to the Speakership of the House of Lords. In reference to this alone, however, it would be of little interest to the colonists; but our readers must all remember that the principle which has been thus advanced by the English Journalist, is one which we have frequently endeavoured to enforce when we have had occasion to advert to the constitution of our local legislature.
"Every man of common sense must admit that the union of legislative and judicial functions in one individual is an unnatural union—even if it were not, as it is, repugnant to the spirit of the British constitution—but if such an union be thought worthy of denunciation in the mother country, by what terms of reprehension ought it to be designated here? There is no cause from which so much evil to society may accrue as from the ambitious prejudices of a political judge; and we fearlessly assert, that in no part of the British dominions have the consequences of such prejudices been more severely felt than in New South Wales."
And again, the same paper, which continues, with unabated zeal, and with great talent, to advocate the best interests of the colony, says:—
"From general principles and particular instances, let us look at the present divided state of the colony, and ask whether it is not mainly, if not altogether, attributable to the acts of a political judge? Who originated—who forced the ever infamous Summary Punishment Bill on the colonists? A political judge! Who instituted and caused to be passed into a law, the abominable Jury Act, which is reprobated by all save the rabble of the colony? A political judge!! Who has been the main instrument whereby Sir Richard Bourke has lost the confidence of every really respectable and independent man in the colony? A political judge!!! Are we not fully justified, therefore, in expressing our cordial concurrence in the opinion of our English contemporary, that a judge ought not to be "placed in a situation where he must of necessity become a politician?" The effects of the Summary Punishment Bill become so alarming, that the government has been at length compelled to institute an enquiry into the state of the police of the colony, and other matters arising out of that obnoxious measure; and it is now said, that the parent of the still more obnoxious Jury Act begins to feel alarmed at the frightful enormities which his bantling has engendered and fostered. He, we understand, begins to be aware, that the measure he has adopted is not legal, because it is not necessary; and that of the power which only necessity justifies, no more ought to be admitted than necessity obtrudes. We are glad to hear that our "learned friend" is at length coming to his senses; but we "freely confess" that some considerable time must elapse before we can altogether forget that, at one period, he appeared doubtful of the fate of posterity, if New South Wales did not take its jurymen from a jail!
Still, though we are credibly informed that a locus penitentice exists "in the proper quarter," we are not quite certain of escaping unscathed for thus publicly proclaiming the fact. We, however, are prepared, "come what come may." We do not favour the government party, for we think it vile; neither do we fear it, for we think it weak."
The governor's laudable strictness with his own subordinate officers made him no favourite with them; and his convict discipline, besides inspiring awe into the convicts, and exciting the dislike of nearly the whole of the felonry, furnished the demagogues who courted the felon population for the sake of a really guilty as well as most despicable popularity, with constant opportunities and pretexts for fabricating charges of tyranny and oppression. The opposition press was incessant and most rancorous in its attacks; and, while the malignity was at its height, an unfortunate event occurred, which furnished the enemies of the governor with subject for vituperation and annoyance during all the rest of his administration.
As the facts of the case are related by the Rev. Dr. Lang with great candour and impartiality, although, to quote his own words (vol. i., p. 181, of his work on New South Wales), he "can scarcely be suspected of partiality" for a governor, from whom, he says, "I cannot charge my recollection with having received any personal favours;" but who, on the contrary, by "his ungracious refusal to attend to certain suggestions which I had done myself the honour to submit to him, with a view to promote the interest of education and religion in the colony, occasioned me the inconvenience and the hardship of a voyage to England, besides exposing me incidentally to much personal suffering,"—as the unfortunate event referred to is narrated by Dr. Lang with much candour, notwithstanding the reasons for presuming him to be rather unfriendly to Sir Ralph Darling than otherwise, which he himself has stated, it has been deemed advisable here to insert the reverend gentleman's narrative at large. It is as follows:—
"About a year after his excellency (General Darling) arrived in the colony, a worthless soldier of the 57th regiment, of the name of Thompson, wishing, it seems, to get quit of the service, and conceiving that the situation of a convict in New South Wales was in some respects superior to his own, persuaded another soldier of the same regiment, of the name of Sudds,—a peaceable well-behaved man, but unfortunately not of sufficient firmness to resist the insidious influence of his comrade's bad advice, to join with him in the commission of a felony, for the express purpose of being put out of the regiment. They accordingly went in company to the shop of a dealer in Sydney, on pretence of intending to purchase some article, and contrived to steal a piece of cloth, which they immediately cut in two, each secreting a part of it about his person. But the theft was designedly so very awkwardly managed, that its perpetrators were instantly detected and delivered over to the civil power. They were accordingly tried, convicted, and sentenced to transportation to a penal settlement,—Moreton Bay or Norfolk Island,—for seven years.
"In the course of the trial the object and design of the theft were ascertained beyond the possibility of doubt, and the case accordingly assumed in the eye of the governor a very different character from that of a common case of theft. The thieves were soldiers in his Majesty's service, and they had taken up the intolerable and highly dangerous idea that the situation of a soldier is worse than that of a convict or transported felon. Nay, acting on this idea, they had not only deserted his Majesty's service, which they were paid, and maintained, and sworn to uphold; but had actually made common cause and even identified themselves with those very disturbers of the public peace from whose vicious propensities or actual violence they were bound to protect his Majesty's subjects. In short, their example, in so far as it was likely to be contagious, was evidently highly dangerous to the peace and good government of the colony; and the governor, therefore, who, in common with all other governors of British colonies, is authorized to provide for all such extreme cases as involve the very existence of the government to the best of his judgment, conceived this was just such a case. Whether his excellency may not have attached too much importance to the case, or whether he may not have magnified the danger that was likely to accrue from it, if treated in the ordinary way, it is unnecessary to inquire.
"With a view, therefore, to obviate the evils apprehended, his excellency, in his capacity of lieutenant-general and commander of the forces, issued a general order, in virtue of which the two soldiers were taken out of the hands of the civil power, and brought on a day appointed to the barrack-square in Sydney, where their crime was publicly announced to all the other soldiers in garrison; their sentence of transportation to a penal settlement for seven years was declared to be commuted into that of hard labour in irons on the roads of the colony for the same period,—doubtless that they might be occasionally seen by other soldiers in going to and from their places of detachment in the interior,—and it was formally announced to the culprits, that at the expiration of their period of sentence they should return to the regiment and serve in the ranks as before. Immediately, therefore, they were publicly stripped of their uniform and arrayed in the dress of convicts; iron collars of considerable weight, prepared expressly for the purpose, with projecting iron spikes, and chains of the same metal attached to the legs,—such, it seems, as are used in the Isle of France or the West Indies for the punishment or confinement of runaway negroes,—were affixed to their necks; and they were drummed out of the regiment with the 'rogues' march' to the common gaol.
"All this procedure, in so far as it was evidently an interference with the due course of law, was, according to all the approved maxims of British jurisprudence, undoubtedly illegal and indefensible. Whether there was a case of urgent necessity to justify it on any ground,—whether the peace and good government of the colony would have been endangered by adopting the ordinary course of procedure,—that is the question; and it is one on which there was room for a difference of opinion. For my own part, even although there had actually been such a case as I have shown the governor supposed there was, I should have been disposed to say, "Let the law have its due course." At the same time, as punishment is intended not merely for the correction of the offender, but as a means of deterring others from imitating his pernicious example, it was the part of a good governor to consider how he could render the punishment of the two culprits in the case in question effectual, in the most extensive manner, in preventing the recurrence of their crime. And if, in doing so, he made the punishment extremely degrading on the one hand, and cruelly severe on the other, such a result could only have arisen from an error of judgment; for it was absolutely incredible that in such a case a personal feeling could exist, or that the governor could have had any other object in view than the public good. This was indeed so generally acknowledged throughout the colony when the circumstance occurred, that if no extraordinary and unexpected result had ensued, the anomalous character of the punishment would neither have been discovered nor complained of; for even the able opposition paper of the day admitted that the offence of the soldiers was a serious and dangerous offence, and 'one that required extraordinary treatment.'
"The man Sudds, however, was labouring at the time under chronic affection of the liver, which had been unfortunately overlooked, through inattention, I believe, on the part of the medical officer of the gaol, and which, if reported to the governor beforehand, would in all probability have prevented the man's exposure to the scenes of the barrack-square. But the public disgrace to which he had been subjected in the presence of all his former comrades, and his exposure in a state of bodily illness to the heat of a burning sun,—the utter disappointment of the hopes which his wicked associate had led him to entertain,—and the miserable prospect which lay before him,—all these circumstances, operating in conjunction with his hepatic affection, and doubtless considerably aggravated by the action of his iron collar,—immediately plunged the wretched man into a state of hopeless despondency, in which he was at length removed from the gaol to the general hospital, where he died in a few days.
"This was a most unfortunate and a most unlooked-for termination of the case of the two soldiers. Still, however, as it was evident to all parties that there was no ground whatever for the imputation of improper motives, if a fair statement of the case, such as I have attempted to give, had been indirectly given on the part of the government,—admitting the error of judgment, which evil-disposed persons were now beginning to discover, and lamenting the unfortunate and unforeseen issue of the affair,—the matter would very soon have been forgotten, and disaffection itself would have been entirely disarmed.
"General Darling, however, was peculiarly unfortunate in having a supporter, forsooth, in the person of the late Mr. Robert Howe, editor of the Sydney Gazette. This redoubtable champion of the colonial government, in a spirit of infatuation which I have never seen equalled in the whole course of my life, listened with the utmost eagerness to the first murmurs of disapprobation, and not only commenced a regular defence of the measures adopted by the colonial government in the case of the two soldiers, and held them forth to the colony as highly proper and praiseworthy, but ever and anon launched forth whole paragraphs of the most provoking and unprovoked personal vituperation at the heads of all and sundry who presumed to think or write or speak otherwise."
So far Dr. Lang. With every feeling of respect for the reverend gentleman's talents and character, it is deferentially submitted that Governor Darling acted perfectly right in disdaining to make any explanation of his conduct upon the occasion in question, or to apologize for "an error of judgment," which he had not committed. Mr. Robert Howe was fully justifiable, and did no more than his duty as a public writer, in "listening to the first murmurs of disapprobation," and repelling with the utmost scorn the imputations attempted to be cast upon the governor for having faithfully and judiciously performed his duty to the sovereign whose representative he was, and to the people of England, as well as to the inhabitants and the best interests of the colony committed to his charge. Dr. Lang, in the latter part of his narrative of the affair, seems to have forgotten his own statements and admissions in its preceding part; for he himself has frankly admitted that "it was evident to all parties that there was no ground whatever for the imputation of improper motives,"—that the "issue of the affair" was altogether "unfortunate and unforeseen,"—that the two soldiers "had taken up the intolerable and highly dangerous idea that the situation of a soldier was worse than that of a convict or transported felon"—that for these and other reasons, "the governor, who, in common with all other governors of British colonies, is authorized to provide for all such extreme cases as involve the very existence of the government, to the best of his own judgment, conceived this was just such a case;" that "as a punishment is intended not merely for the correction of the offender, but as a means of deterring others from imitating his pernicious example, it was the part of a good governor to consider how he could render the punishment of the two culprits in the case in question, effectual, in the most extensive manner, for preventing the recurrence of their crime;"—that "it was generally acknowledged, throughout the colony," that "it was absolutely incredible that in such a case a personal feeling could exist, or that the governor could have had any other object in view than the public good;"—and that even "the able opposition paper of the day admitted that the offence of the soldiers was a serious and dangerous one, and one that required extraordinary treatment!"
Where, then, was there any "error in judgment?"
If there was any error at all, it was the error of the surgeon of the gaol, who, according to Dr. Lang, either knew not that Sudds was labouring under a chronic hepatic affection, or neglected to inform Governor Darling of that fact, which, according to Dr. Lang, would have preserved Sudds from the scenes at the barrack-square!
Where was the cruelty?
The governor merely commuted the sentence of transportation for seven years to a penal settlement, to a sentence of working on the roads for seven years, with no other additional severity to the ordinary sentence to an iron-gang, than that of bearing irons alleged to be somewhat heavier than usual, and which never could have injured the man (if the irons really did injure him, which is by no means proved) had he been in a good state of health, as was supposed at the time by the governor and all other persons concerned in his punishment.
Had the governor, indeed, ordered the men guilty of so very serious a crime to be first flogged, and then put in irons and marched to gaol, there might have been some shadow of pretence for a charge of cruelty,—although even then the punishment might have been justified as being only proportionate in severity to the enormity of the crime and the urgency of the reasons requiring that its punishment should be exemplary.
But, instead of cruelty, the punishment inflicted by his excellency was in reality not more severe than that of the sentence which had been passed upon the culprits by the civil power, and was not so severe, as, under the authority of the original sentence, the commandant of a subsidiary penal settlement, to which the offenders were to have been transported, might, if he thought proper, and if he properly discharged his duty in such a case, have rendered it.
The commutation of the original sentence was made, not for the sake of adding to its severity, but only for the sake of changing its form into one more impressive in a military sense,—and more likely to influence the soldiery upon whom it was intended to operate as an example.
It was therefore done with great military parade, and with as much of imposing ceremonial and form as circumstances would admit; and the better to impress upon the military spectators the hopelessness of their ever escaping from their military obligation by the perpetration of crime, it was judiciously announced that the prisoners, after the expiry of their seven years' sentence, should be compelled again to serve in the ranks, which it was their object to desert.
Nothing, in short, could have been more judicious or better calculated to effect its purposes, than the change of sentence made by the governor,—a change ordered by "judgment with mercy" towards culprits, who, by the articles of war, had forfeited their very lives, if the case had been thought to require that sacrifice.
It must be borne in mind, too, that the military part of the offence, that is, the commission of a crime for the purpose of escaping from their military obligation, was only discovered "during the trial" of the criminals before the civil power. Had that intention been known sooner, it is probable that the offenders would have been tried in the first instance by court-martial,—when, considering the peculiar nature of their offence, in a country so peculiarly circumstanced as New South Wales is, and in which their crime was so peculiarly flagrant and dangerous, no infliction of military punishment would have been deemed too severe, or too great for the enormity of the offence, and for the necessity of making an example calculated to prevent its repetition.
As for the twaddle about Governor Darling having improperly interfered with the due course of law, it is very properly stated by Dr. Lang that his excellency was empowered to treat any extraordinary case according to his own judgment and discretion; and that, as he did consider the case both extraordinary and dangerous, and even the "able opposition paper of the day admitted that the offence of the soldiers was a serious and dangerous offence, and one that required extraordinary treatment," it follows that there was no interference with the due course of law; for his duty required, and the law authorized, his excellency to act as he did; and it was therefore "the part of a good governor to consider how he could render the punishment effectual!"
In short, the case altogether admits not of one moment of doubt in any impartial and unprejudiced mind. The fatal result as to the prisoner Sudds was "unfortunate and unforeseen," and was caused, not by his punishment, but by the long-standing disease of his liver, chronic affections of which, though they are aggravated by mental depression, are often unknown to the patients themselves, and appear, in Sudds's case, to have escaped the notice even of the surgeon of the gaol.
But, although General Darling's conduct in this affair was not only blameless, but highly praiseworthy,—although it was sanctioned by the law officers of the crown,—although he was honourably acquitted by the home government and by a rigorous parliamentary inquest, and was honoured with the dignity of knighthood by the King,—yet was the death of Sudds basely employed by the unprincipled demagogues of the colony as a means of inflicting incessant annoyance and mental torture upon his excellency throughout the ensuing years of his administration.
Independently of the virulence of the editors of the opposition papers, and of the systematic hostility of Mr. Wentworth and his confederate leaders of the convict and emancipist faction, two individuals made themselves particularly obnoxious by the injustice and the virulence of their attacks upon his excellency.
These were Mr. John Stephens (of whom further mention is made in a subsequent portion of this work), and Captain Robertson, of the veteran corps, the husband of Stephens's sister. Robertson wholly devoted himself to Stephens's views, and appeared to make it his entire study to find means of annoying the governor.
As to Sudds's case, though the irons,—which he wore only for a very few days, and that, too, not at labour, but in the gaol, and from which he was freed as soon as it was reported he was ill,—though the irons were in reality very little heavier than those usually put upon convicts sentenced to iron-gangs, and only so much heavier as their peculiar construction required,—Robertson, for the sake of giving stage effect to his workings upon the popular feeling, actually had the irons put upon himself; and then made the most exaggerated declarations as to their weight, and their effect upon the constitution and health of any man who should be doomed to wear them.
Robertson continued his very reprehensible misconduct so violently and so long, that at last he actually drove the governor to bring him before a court-martial, by which he was cashiered.
Sir Ralph Darling, in short, was assailed in every possible way; and, to crown the whole, the chief leader of the colonial liberals, Mr. Wentworth, being a lawyer, drew up what he called a formal "impeachment" of his excellency! This he caused to be delivered by an attorney, with mock legal formality and ludicrous solemnity, at government-house—boasting that he would never lose sight of the governor,—that he would follow him to England,—would there drag him to the bar of the House of Commons,—and would finally bring upon him an ignominious death! It is not enough to say that these ungentlemanly expressions and threats, uttered against a man of General Darling's high character and upright public conduct, were disgusting:—they were absolutely atrocious, and were more befitting an assassin than a political adversary.
The result of the investigation into the governor's conduct, which ensued, was, however, so completely exculpatory, that Lord Howick, the then under secretary of state for the colonies, and himself, as the reader is aware, a whig and an advocate of reform, declared in the House of Commons, that the accusations against General Darling had not been supported by the slightest shadow of evidence. A committee of the House, after a long and searching investigation and examination of witnesses, pronounced a similar judgment of acquittal. And, His Majesty, to confirm the whole, and as a mark of the royal approbation of his services, was pleased to confer upon his excellency the honour of knighthood.
General Darling was thus most honourably exculpated by the home government and the legislature, and was rewarded with distinction by the King, although Mr. Wentworth and others had strained every nerve to attempt making out a case against him.
The utter failure of the endeavours of his enemies, either to sully his reputation, or to substantiate a single charge against his excellency, after all the virulence of invective and the atrociousness of the calumnies with which they had assailed and sought to overwhelm him, forms one amongst many other convincing proofs of the systematic course of misrepresentation and falsehood constantly resorted to by the worthless faction in New South Wales, for the furtherance of their detestable and dangerous views.
In England it would be difficult to conceive the brutal ferocity of some of the soi-disant liberal faction of New South Wales.
On the embarkation of the lady of General Darling and her family, at Sydney, for England, the day before his excellency himself made his public departure, a portion of Mr. Wentworth's gang attended her with savage yells and other violent manifestations of malignity, and, with a bullock's head mounted on a pole, a boat filled with these miscreants even followed her to the ship, and hoisting the revolting spectacle of the bullock's head at the cabin windows of the vessel, there renewed their hideous and unmanly vociferations.
The lady, who was the object of the shocking ferocity of these wretches, was only known for her amiable and mild virtues, her private benevolence, and her zealous patronage and active promotion of all works of public charity and melioration.
The ruffians who bore or accompanied the bullock's head had come direct from the house of Mr. Wentworth, distant two or three miles from Sydney, where, in celebration of General Darling being superseded as governor, Mr. Wentworth had caused a bullock to be roasted entire, with which, and an approprite deluge of rum, he regaled a multitude of his gang. They became so uproarious and turbulent, that even Mr. Wentworth was under the necessity of barricading himself within a portion of his own house, which some of his patriotic friends and supporters took the opportunity of robbing of a quantity of plate and other property, while another division of his adherents, seizing upon the ghastly head of the roasted ox, reeled to Sydney, and perpetrated the disgraceful outrage upon manly feeling and public decorum which has been narrated.
And how did Mr. Wentworth, the great colonial patriot and patron of the felonry, follow up his empty boastings and his insolent threats? His abortive "impeachment" was submitted to the law officers of the crown, and fell, still-born, to the ground. General Darling was applauded, and rewarded with honours from the hand of his sovereign, instead of being condemned; while Mr. Wentworth, after all his noise and vaunting, contented himself with remaining snug in Sydney, where he is now a justice of the peace, and the bosom friend of the real darling of his convict faction and of the felonry, his present excellency the governor, Major-General Sir Richard Bourke!
The author resided in the colony not only during the whole of Sir Ralph Darling's government, but also during the whole of that of his predecessor, Sir Thomas Brisbane, and also during that of his successor, Sir Richard Bourke, down to the month of April in 1836. It is therefore as an eye-witness, and, as he conscientiously believes, as impartial and unprejudiced a witness as he is now a non-interested one, that he feels no hesitation in stating his belief, that no individual ever held the reins of government in the colony, who was so well qualified in every respect for his important office, as General Sir Ralph Darling. It is only to be regretted that he himself sensitively felt the calumnies of his degraded enemies, and that he did not treat them with the utter contempt they deserved.
Of his having well performed his duty, as governor of New South Wales, there cannot be a stronger or more gratifying proof than the feeling he has left behind him in the breasts of all the reputable inhabitants of the colony. After his honourable acquittal from the charges preferred against him, all the free emigrants of respectability, with scarcely an exception, and including the legislative and executive councils, the clergy, and the magistracy, sent him an address of congratulation. A subscription was also entered into for his portrait, for which he was requested to sit, in order that it may be placed in a public building in Sydney, as a memorial of his meritorious government, and of the place he holds in the affection and esteem of the grateful colonists who had the happiness to live under his vigorous and enlightened sway.
Indeed the results of his excellency's measures at length extorted admiration and applause even from many of his former enemies,—as a striking instance of which it may be mentioned that the very newspaper which had been the most virulent in its opposition, was at length, and some time previously to his excellency's departure from the colony, constrained to award him the meed of great honour and praise for the measures of his government, and particularly as regarded their application to the felonry, the whole of which he reduced, in military phrase, to a complete state of discipline; and now General Darling's government is the watch-word used in censuring the measures of Governor Bourke.
What has been stated in the present chapter being the opinion and feeling of every person of high standing and honourable principles in the colony, the few credulous members of parliament who have from time to time taken up the gross misrepresentations,—the deceitful and fraudulent pretences and pretensions of the demagogues and their felon partizans,—must at length become sensible of the little attention that should ever have been given to the statements of the enemies of convict subordination and good government, and of the true interests of New South Wales, whether regarded as a British colony, or as a penal settlement for the reception, punishment, employment, and reclamation of transported felons.
The author ventures respectfully to add, that were the home government to re-appoint Sir Ralph Darling to the government of the colony, and were that distinguished and gallant person to resume a post the duties of which he so ably discharged, it would be one of the greatest boons that could be conferred upon New South Wales, and would be therein hailed as a happy omen and secure pledge of its future peace, prosperity, and happiness.
We, the members of the legislative council in New South Wales, are anxious, on the conclusion of your excellency's administration, to offer a sincere and unanimous expression of the sentiments which we entertain towards you, as the representative of our most gracious sovereign.
The cordiality and good-feeling which have subsisted between your excellency and the legislative body, we attribute, in a great degree, to the freedom from interference with which we have been permitted to deliberate upon every measure which, under a sense of public duty, your excellency has brought before us, for the benefit and security of the colony. Whatever may be the character and effect of those measures, we are sensible that this council, by adopting them, has taken upon itself an equal share of the responsibility which attaches to them. If we were to particularize any of the acts, which will most permanently mark the period of your excellency's presiding over us, we should refer to those by which great progress has been made towards the general establishment of trial by jury, to the control which the legislative authority has, for the first time, exercised over the duties hitherto levied by proclamation; and to those coercive measures of the last session, which we are sensible that nothing but the penal character of this settlement, and the disturbed state of the country at that time, could have justified; but the expediency of which acts of vigour has in the event been proved by the restoration of general tranquillity.
It cannot but be a source of lasting pride and satisfaction to your excellency to reflect, that you leave the colony in this state of internal security; that, notwithstanding a continuance of disastrous seasons, its natural resources have been gradually and strikingly developed; and that its increasing foreign commerce is testified by the daily accession of vessels to our ports, and the extension of all our mercantile relations.
We trust that your excellency's successor will have the gratification of witnessing an increase of that prosperity, the groundwork of which is already securely laid; and we request you, in vacating the government, to accept our congratulations on the prospects under which he will assume it. We desire to express, collectively and individually, our unabated esteem for your excellency; and that, after a safe return to your native country, you may, together with your family, enjoy many years of health, happiness, and prosperity, is, we beg to assure you, the unfeigned prayer of,
Your Excellency's Most obedient and very humble Servants,
FRANCIS FORBES, Chief Justice.
WILLIAM GRANT BROUGHTON, Archdeacon.
ALEXANDER McLEAY, Colonial Secretary.
JOHN KINCHELA, Attorney-General.
BURMAN LAUGA, Chief Officer of Customs.
WILLIAM LITHGOW, Auditor General of Colonial Accounts.
PATRICK LINDESAY, Colonel.
EDWARD CHARLES CLOSE.
HANNIBAL HAWKINS McARTHUR.
HIS EXCELLENCY'S REPLY
To the Members of the Legislative Council.
It is, I assure you, very gratifying to me, to receive at this moment, on the eve of my separation from you, this testimony of your sentiments and regard.
I thank you unfeignedly for the able assistance, which, on all occasions, you have so cordially afforded me in perfecting the various important measures, which it has been my duty to bring under your consideration. I have no claim to any merit for having abstained from endeavouring to control your discussions: I knew that the object of His Majesty's government—the true interests of the colony—would be best promoted by leaving you to the free exercise of your own judgment. As to one of the measures to which you more immediately allude, it was calculated to meet the exigency of the times, and the result is happily exemplified by the security which the inhabitants throughout the colony now enjoy in their persons and property.
It affords me, indeed, peculiar satisfaction, after the long continuance of disastrous seasons with which the colony has been visited, and the consequences resulting from such a calamity, to be enabled to transfer my charge in the improved and gratifying state which you have described. The character of my successor is the best promise, that the internal resources of the colony will be cultivated to the utmost; and that its agriculture and commerce will be fostered and extended by every possible means.
Feeling, gentlemen, as I sincerely do, an anxious desire for the prosperity of your adopted country, I cannot be indifferent to yours; and I beg you will believe, that individually, as well as in your collective capacity, forming the legislative body of this colony, I shall ever take a lively interest in your happiness and success; and I ardently hope, that the tranquillity which the colony now enjoys may meet with no interruption; that the bright prospects which the improved state of your commerce and the late seasons have opened to you, may be confirmed; and that your families may long continue to feel the benign influence of these great blessings.
With sentiments of sincere regard, I remain,
Your faithful friend and Servant,
(Signed) RA. DARLING.
Government House, }
14th October, 1831, }
ADDRESS FROM THE CIVIL OFFICERS,
HEADS OF DEPARTMENTS,
OF NEW SOUTH WALES,
HIS EXCELLENCY LIEUT.-GEN. DARLING,
On the occasion of his retiring from the Government of the Colony.
To his Excellency Lieut.-General RALPH DARLING,
Governor in Chief of the Territory of New South Wales, &c. &c.
The undersigned civil officers of New South Wales request permission to approach your excellency upon the occasion of your retiring from the government of the colony; and to tender the assurance of their respect at a moment when their sincerity cannot be questioned, or their motives for avowing it mistaken.
To offer an opinion upon your excellency's administration, would be unbecoming in those who have been entrusted with the execution of its measures, but they cannot refrain from respectfully bidding you farewell; and from offering to your excellency their sincere good wishes for the uninterrupted enjoyment of health and happiness; whether again engaged in the service of your sovereign, or in the calmer pursuits of private life.
They have the honour to subscribe themselves,
Most obedient and faithful Servants,
T. MACQUOID, Sheriff and Chairman.
M. C. COTTON, Collector of Customs by B. L.
BURMAN LAUGA, Controller of Customs.
F. ROSSI, Principal Superintendent of Police.
CHARLES WINDEYER, Assistant Police Magistrate.
C. D. RIDDELL, Colonial Treasurer.
JAMES DOWLING, an Assistant Judge of the Supreme Court.
JOHN KINCHELA, Attorney-General.
ROGER THERRY, Commissioner Court Requests.
J. BOWMAN, Inspector of Colonial Hospitals.
M. ANDERSON, Surgeon Parramatta Hospital.
W. RICHARDSON, Windsor Hospital by J. B.
J. MITCHELL, Surgeon Sydney Hospital.
PATRICK HILL, Surgeon Liverpool Hospital.
C. T. SMEATHMAN, Coroner.
JOHN BUSBY, Mineral Surveyor.
GEORGE BUSBY, Assistant Surgeon Bathurst Hospital by J. B.
WM. LITHGOW, Auditor-General.
JOHN EDYE MANNING, Registrar Supreme Court.
WM. CARTER, Master of the Supreme Court.
JOHN GURNER, Chief Clerk of the Supreme Court.
E. DEAS THOMPSON, Clerk of Council.
F. A. HELY, Principal Superintendent of Convicts.
SAMUEL WRIGHT, Police Magistrate Parramatta by F. H.
CHARLES WILSON, C. E. Director of Public Works.
S. A. PERRY, Deputy Surveyor-General.
JAMES RAYMOND, Postmaster of the Territory.
WILLIAM MACPHERSON, Collector of Internal Revenue.
T. C. HARRINGTON, Assistant Colonial Secretary.
J. NICHOLSON, Master Attendant.
Sydney, New South Wales,
October 10, 1831.
HIS EXCELLENCY THE GOVERNOR'S REPLY
To the Officers of the Civil Government of New South Wales.
I am very sensible, I assure, you of the kind feeling by which you have been influenced on this occasion, and I shall ever bear it in grateful recollection.
The expression of your good wishes is all I could desire, and nothing could be more agreeable or acceptable to me.
As to the measures of my administration, they must speak for themselves; but I will bear testimony to your zeal and exertions. The duties of your offices in general have been arduous and laborious in the extreme, as they always must be in a colony of this description.
I thank you, gentlemen, for the services you have so readily rendered in your several situations, and the assistance you have so cheerfully and kindly afforded me; and I beg you to be assured of my best wishes for your success, and the happiness of your families.
With unfeigned regard,
Your faithful friend and servant,
(Signed) R.A. DARLING.
Government House, 15th October, 1831.
ADDRESS OF THE EXECUTIVE COUNCIL,
To His Excellency Lieut-General Ralph Darling.
1. Being now assembled in Council, on the last occasion of your excellency's presiding over our deliberations, we cannot separate without requesting you to permit us to declare the sentiments with which we review our past official intercourse.
2. We are sensible that, under our circumstances, it would not become us to specify, for the purpose of commendation, any in particular of those public measures, which, having been adopted with our concurrence and advice, must to a certain extent be regarded as our own.
3. Nevertheless, as our connection with the executive has afforded us the best opportunity of correctly appreciating the general character of your excellency's administration, so the termination of that connection enables us, without suspicion of any sinister motive, to express the opinion we have formed.
4. We deem it, therefore, but an act of justice to declare, for the periods during which we have respectively sat in this council, that we consider your excellency, in the discharge of your high office, to have manifested an example of integrity unsullied and unimpeachable.
5. We have seen you devote yourself to the duties of your station, with an indefatigable perseverance, which left you scarcely those intervals of rest and opportunities of relaxation which are essential to health.
6. We feel ourselves bound to testify, that the utmost humanity and forbearance which the public safety would admit, have been shewn by you on those occasions, when the ends of justice called for examples of severity; no less than when individuals connected with the public service, have, by misconduct, exposed themselves to necessary animadversion.
7. We are persuaded that the governing object of your policy has been, the security and improvement of the colony; and that you have proposed no measure, which had not a designed reference to this end, or was not in your opinion qualified to promote it.
8. We have stated the reasons why we must leave to others the task of pronouncing a decision upon separate acts of administration. But, looking only to the general result, if success be any criterion of ability, your excellency may confidently appeal to the improved and improving state of the colony, and to the efficacy of the laws in maintaining its internal security, for a proof, that while you have duly upheld the dignity of his majesty's crown, you have not mistaken or compromised the interests of any class of his subjects.
9. We beg, in respectfully taking leave of your excellency, to thank you, on our own behalf, and on behalf of the public, for the readiness of access which you have at all times afforded us; for the urbanity and attention which our suggestions have in all instances received; and for the candid construction you have been pleased to put upon every representation which we may at any time have felt it our duty to offer; and, with the warmest expression of our personal esteem, we have the honour to express a hope that you will receive the approbation of your sovereign, and enjoy a continuance of every blessing and happiness on your return to your native country.
W. G. BROUGHTON, Archdeacon.
ALEX. McLEAY, Colonial Secretary.
P. LINDESAY, Colonel.
Executive Council Chamber,
18th October, 1831.
ADDRESS TO HIS EXCELLENCY LIEUT.- GENERAL DARLING.
We, the undersigned clergy, magistrates, landholders, and merchants of New South Wales, beg to approach your excellency, on the occasion of your departure from this colony, with sentiments of unfeigned respect, and with our sincere acknowledgments for the ability and unwearied exertions which have marked your excellency's administration of this government.
Your excellency's arrival among us occurred at a period when the colony had begun to emerge from the state of a penal settlement, and to assume the character of a commercial and agricultural community. Formerly our imports were paid for by treasury bills, drawn on account of the government expenditure, by which the affairs of the colonists were entirely regulated. During your excellency's administration, notwithstanding a great increase in the prison population, there has been a very great diminution of British expenditure, as well as a considerable increase of colonial revenue.
It would be unreasonable to suppose that such a fundamental change in the whole circumstances of the colony could have been effected in so short a time, without occasioning considerable temporary embarrassment, both to the agricultural and commercial bodies, which, to the former, has unfortunately been aggravated by unfavourable seasons, and a depreciation in the value of stock.
The agriculture and commerce of the colony have, however, extended to a fourfold degree, so that its exports form an important item in the markets of the mother country.
These results entitle your excellency to our grateful acknowledgments, and to the best thanks of the home government, as affording a pledge, that if judicious measures be persevered in, our colony will soon be capable of supporting herself on her own resources.
When the actual condition of the colony is contrasted with what it was on your excellency's arrival, its absolute increase of substantial wealth will form the eulogium on your excellency's administration. We cannot also but advert to the advantages which the colony has derived from the organization of an efficient body of police, whereby a more effectual security has been afforded to persons and property, as well in the interior districts as in our towns; from the establishment of improved regulations for the control and management of the prison population; and also from the judicious change in the system of punishment for colonial offences, by which the public roads have been greatly advanced.
Although the general feeling of the colonists is adverse to the recent land regulations, we acquit your excellency of all participation in their recommendation. These regulations, if carried into effect, would not only fail in their proposed object, but prove ruinous to the colony, injurious to the mother country, and would operate as a tax on emigration. We therefore trust that your excellency will become the warm advocate of more healthful measures on your return to your native land.
In taking leave of your excellency, it gives us great pleasure to acknowledge how much our community has been indebted to you, for the high moral example which has been invariably held up to imitation by yourself and family, and by the encouragement you have afforded to the cultivation of social and domestic virtues.
We should not do justice to our feelings did we omit to notice the important part which Mrs. Darling has taken in every act which could contribute to the religious and moral improvement of our community. We are not ignorant that under circumstances of no ordinary suffering, in sickness and in affliction, her unwearied efforts have been exerted to promote those important objects; and we trust, that the institutions she has been so instrumental in establishing for the instruction of female children, and others over which she has presided with great interest and anxiety, may justify her hopes for the benefit they will confer on posterity.
We beg that your excellency will accept our unaffected and ardent wishes for your health and happiness, and that whether engaged in the active service of your conntry, or placed in the retirement of private life, you may enjoy those blessings we ardently desire for yourself and family.
RICHARD JONES................ALEXANDER BERRY
W. E. PARRY......................J. BOWMAN
WILLIAM COWPER...............JOHN MACLAREN
ROBERT CAMPBELL Jun, of......S. RYRIE
George Street................A.B. SPARK
HENRY DONNISON...............THOMAS WALKER
MATTHEW HINDSON..............THOMAS MCVITIE
JOHN CAMPBELL................JOHN W. GOSLING
RUPERT KIRK..................A.J. ROSS, M.D.
THOMAS SHEPHERD..............GEORGE ALLEN
GEORGE MACLEAY...............E. WOLLSTONCRAFT
CHARLES COWPER...............RICHARD ALLEN
FRANCIS MITCHILL.............JOHN FOREMAN
CALEB WILSON.................JOSEPH MYERS
ROBERT CAMPBELL..............THOMAS HASSALL
JAMES HORTON.................W.G. WOODWARD
A. K. Mc KENZIE..............JOSEPH TAYLOR
A. C. INNES..................JAMES CHISHOLM
JAMES R. McLEAY..............JOHN T. CHURCH
W. MORGAN....................JOHN ROWELL
SAMUEL MARSDEN...............NICHOLAS ASPINALE
C. W. WALL...................JOHN WOOD
THOMAS ICELY.................THOMAS WILFORD
THOMAS MARSDEN...............GEORGE BOWMAN
CHARLES STAPLES..............JAMES WILTSHIRE
ALFRED KENNERSLY............JOJHN DICKSON
THOMAS WOOLLEY..............HENRY O'BRIEN
RALPH MANSFIELD..............CORNELIUS PROUT
EDWARD HALLEN................MICHAEL PHILLIPS
ROBERT FOSS.....................CHARLES THOMPSON
GEORGE WILLIAMS,.............A.F. WILTSHIRE
Hunter's River......................GEORGE TOWNSEND
GEORGE BUNN..................E. LOCKYER
RICHARD BROOKS...............JOHN VINCENT
HENRY BROOKS.................W.F. FORSTER
A.W. SCOTT...................JAMES B. BETTINGTON
T.U. RYDER...................EDWARD JONES
RICHARD HILL.................JAMES CHANDLER
H. JEANNERET, M.D.
REPLY TO THE CLERGY, MAGISTRATES, LANDOWNERS AND MERCHANTS, OF NEW SOUTH WALES.GENTLEMEN,
Nothing could be more gratifying to me, on this occasion, than the view you have so kindly taken of my administration.
Your testimony of its success renders it unnecessary for me to enter on the subject of the measures which you have reviewed with so much indulgence. The acknowledgments of those for whose benefit my exertions have been intended, is all I could have desired; but they are amply repaid by the proofs you have given of their having been gratefully received.
You may be assured, that the regulations recently established for the disposal of land, to which you have alluded, were adopted under an impression that the system would ultimately lead to the benefit of the colony. I should be wanting both in duty and justice to his Majesty's government, did I not distinctly assure you, that the governing principle, the sole and only object of its views, as evinced by all the instructions I have received, as well with regard to the disposal of land as to the encouragement of emigration, has been to promote the true interests and prosperity of the colony. With this paternal disposition on the part of his majesty's government, your cause requires no advocate; but whenever I can serve you, my exertions shall be as zealous, as my desire to do so is sincere.
The tribute which you have so kindly paid to Mrs. Darling's exertions, is indeed peculiarly gratifying to me; and will, I am sure, be rendered doubly acceptable to her, as an earnest of your perseverance in supporting the institution for the education of female children, which, with your assistance, has been so successfully established.
In taking leave of you, gentlemen, I beg you will believe that we shall ever retain a grateful recollection of your kindness, and that the remembrance of the many estimable friends whom we leave behind, will be cherished with feelings of affectionate regard.
I remain, &c.
Government House, 20th October, 1831.
His Excellency Major General Sir Richard Bourke, the present governor of New South Wales, succeeded Lieutenant General Sir Ralph Darling as governor, in December, 1831.
As the chief object of the present work is to arraign, at the bar of public opinion, the conduct of his Excellency General Sir Richard Bourke, and that of several of his functionaries in the government of New South Wales, and particularly as regards his and their spirit of favouritism towards the convicts,—it may even be politically said, criminal colusion with convicts,—it is necessary to treat this principal part of the subject at considerable length.
When General Bourke set off for his government, the principles of reform had gained the ascendancy in his Majesty's councils, and a large portion of the British people were enthusiastically engaged in obtaining the extension of their popular rights, and the reconstruction of their popular institutions.
General Bourke, imbued with the same spirit, unfortunately carried his political feelings to a colony, the composition of whose society necessarily required the application of very different principles from those which might be deemed best adapted to the government of the mother country.
Under the influence of such principles, he readily fell into the arms of Mr. Chief Justice Forbes, Mr. Wentworth, and other politically dangerous men in the colony, including the Scotch outlaw and most infamous English convict, William Watt, who became his excellency's literary champion, and also Watt's ally and confederate, Mr. Commissioner Therry!
General Bourke, in the very outset of his government, evinced a spirit rather too congenial with that of the party in the colony to which he attached himself; for the following document (to be found in the Sydney Herald of 29th August, 1833), with the use he made of it, proves that he also resorted to concealment and trickery, when resorting to these unworthy means could serve his purposes.
(Copy) No. 78,
"Downing-street, 24th March, 1838.
"Having received a dispatch from General Darling, of which the enclosed is an extract, I consider that I should be acting with a want of fairness towards that officer, did I not at once endeavour to remove the very important misapprehension under which he seems to have laboured, in regard to the circumstances under which it was decided that his government of the Australian colonies should be brought to a close.
"I do not feel that I am called upon to make any comment on the correspondence which seems to have taken place between Mr. Hume and the Editor of the Sydney Monitor, excepting to express my regret that any one of the daily journals of New South Wales should be written with so vindictive a spirit as is displayed by Mr. Hall in such of his papers as have been brought under my notice, and to add my anxious hope that a better tone than that which has prevailed hitherto will be found, in general, amongst the publications which issue from the colonial press.
"In regard, however, to the particular grievance of which General Darling complains, I feel myself bound to observe (not only for your information, but with a view to your giving the utmost publicity to the statement) that the change of the government which has recently taken place, was in no degree whatever produced by any representation which might have been made to this department by any of those persons in England who were inclined to disapprove of the mode in which its affairs had been administered by General Darling; and that nothing could be more erroneous than the supposition that any observations contained in any intemperate newspaper, or any suggestions from those at home who might think fit to espouse the cause and adopt the language employed in such a publication, could have any influence whatever with his Majesty's government in deciding upon a measure of so much importance as that of a change of the government of a distant colony, whether such a step be regarded with reference to the public interests, or to those of the officer whom such a decision would more immediately affect.
"I am, Sir, &c.
"Major General Bourke, Sec. &c. &c."
The foregoing dispatch was written by his Majesty's principal secretary of state to General Bourke, not only for the purpose of exculpating General Bourke's honourable and distinguished predecessor, but "with a view to your (General Bourke) giving the utmost publicity to the statement."
Will it be believed that General Bourke, however, was guilty of the meanness towards his predecessor, General Darling, as well as of the disobedience to his Majesty's government, and of the failure of his duty to the colonial public, of treacherously suppressing this very dispatch?
He did so suppress it, nevertheless! Friends of General Bourke, "Call you this honest? Is it fair?"
The author, viewing the suppression of Lord Goderiche's dispatch with the feelings of a military man, is quite at a loss for terms sufficiently strong to characterise the delinquency, without resorting to unbecoming language. As an officer and a gentleman, General Bourke, instead of suppressing the exculpation of General Darling, should have been eager to avail himself even of the most trivial circumstance,—almost, indeed, of any plausible pretext,—that could be turned in favour of a brother officer, his predecessor in his own high office, of whose character he might, therefore, be considered as the proper guardian,—a character which had been so unjustly and so falsely slandered, and which General Darling himself was no longer present to defend. The turpitude of suppressing the dispatch is therefore, perhaps, unprecedented. It fills the mind with astonishment and the heart with melancholy. But for the actual reality and presence, as it were, of the fact, it would be pronounced incredible. No wonder that a talented and highly gifted literary friend* of the author, having heard something of the felonry of New South Wales while this work was in the press, ironically remarked, that the present colonial government might with greater propriety be called the felonial government of the colony.
In further illustration of Governor Bourke's feelings and dishonourable policy as regarded the character of General Darling, in proportion as any individual had made himself conspicuous by by the bitterness of his abuse and the vileness of his slanders against General Darling, so sure was he of meeting favour in the sight of Governor Bourke, and of experiencing protection and advancement at his hands,—no matter whether the traducer held the honourable station of a ticket-of-leave man, or whether he bore the rank of a colonial judge.
With all Mr. Wentworth's eagerness to gain popularity by hollow pretension to convictism and emancipistism, he on one occasion betrayed his real feelings and sentiments regarding the convict population, and regarding his own rights and superiority as an assignee master of convict servants.
General Bourke had thought fit to grant a ticket-of-leave to one of Mr. Wentworth's convict servants, not only without Mr. Wentworth's recommendation as the assignee master of the man, (which is usually required), but even without his knowledge.
All Mr. Wentworth's theories in favour of convictism gave way before their practical application by the governor, in such a way as to touch his (Mr. Wentworth's) own interests and his pride!
His indignation at the private wrong was too strong for his acquiescence under his own public principle. He wrote an ironical letter to Governor Bourke, telling him, as he had thought fit to grant, without his approbation or knowledge, a ticket-of-leave to the worst behaved man in his service, that there were several well-behaved men remaining under him, and that he thought he (the governor) had better grant tickets-of-leave to his (Mr. Wentworth's) whole establishment!
Mr. Wentworth continued for some time to manifest a hostile feeling to General Bourke's government; but as he also continued to vilify General Darling, and as his views required him to smother his resentment at Governor Bourke's very improper, impolitic, and anti-subordinate proceeding with regard to Mr. Wentworth's assigned servant, he acquired high favour at government-house, and was eventually put in the commission of the peace!
This last mark of favour was matter of astonishment even to Mr. Wentworth himself. He is a barrister, and, as he well knew, it is not consistent with the practice of the mother country to place lawyers on the list of the unpaid magistrates. Mr. Wentworth, too, had taken a part in colonial politics, so very violent and peculiar, besides that there were other circumstances regarding him to which it is unnecessary to advert, that he was the very last free man in the colony who should have been put in the commission of the peace. It was what he himself, in his wildest imaginings, could never have dreamt of. It was, moreover, practically, highly injudicious and improper. It gave to this hot-brained and intemperate political partisan a right to interfere still more than he had yet done in the affairs of the colony, and particularly with the proceedings of the magistracy, amongst whom the introduction of an individual in the threefold capacity of a trained lawyer, a practised orator, and a political partisan, could not fail to be felt both as an annoyance and a vexatious obstruction to business.
General Darling was and is a distinguished member of military clubs.
Without knowing whether Governor Bourke is or is not on the same social and friendly terms with his military brethren, it may be put to military men whether General Bourke's treatment of General Darling, and marked partiality for his personal and political enemies and slanderers, including his favouritism towards a ruffian prisoner of the crown who even boasted of the favour shown to him at private audiences of his excellency within the walls of government-house, was conduct quite "becoming an officer and a gentleman?"
That conduct is divisible into two distinct branches of culpability, 1st. Concealment from the public of the exculpation of General Darling by the home government, including a highly culpable act of disobedience to that government, on the part of General Bourke:—2nd. The lending of a greedy ear by General Bourke to the calumnies uttered against his brother general officer and senior, General Darling, and the favouring, associating with, and promoting of the calumniators.
If the records of military courts-martial were to be examined, how many unfortunate officers, on charges of ungentlemanlike conduct,—conduct trifling in itself compared to these acts on the part of a general officer and a representative of the King,—would be found to have been dismissed the service!
As a wind-up to this part of the subject, a somewhat ludicrous piece of coquetry, on the part of Governor Bourke and his friend Mr. Wentworth, may be stated.
Governor Bourke had visited his friend Mr. Wentworth at his residence near Sydney, and having remained there from about three o'clock in the afternoon till eleven at night, it was stated in the newspapers, as a morsel of "court news," that on such a day the governor had dined with Mr. Wentworth.
Mr. Wentworth (why, he himself can best explain) thought it necessary to contradict the statement, and alleged that the governor had been at his house, not to dine, but merely to "inspect" his improvements!
This gave occasion to much jest and merriment amongst the wags of the colony. A newspaper in which the contradiction appeared with Mr. Wentworth's signature, led the way, by asking, "what was the meaning of all this?" Was Mr. Wentworth ashamed of his friend the governor having dined with him sans ceremonie? Or, was the governor ashamed of having dined with his friend Mr. Wentworth?
The general opinion was, that the governor, conscious of the impropriety of his connection with Mr. Wentworth, was the party who did not wish it to be believed that he had condescended so far as to sit down at Mr. Wentworth's table!
MR. Dudley Perceval, third son of the late Right Hon. Spenser Perceval (the hapless prime minister of George III., who was murdered by Bellingham in the lobby of the House of Commons), and son-in-law to General Bourke, has, in his eagerness to defend the conduct and character of his gallant relative the governor of New South Wales, unwittingly furnished a point on which to append the proofs of his Excellency General Bourke's incompetency, as well as the delinquency of some of his functionaries, and of his and their convict faction, by the publication of a letter in the Times newspaper, in October, 1836, of which the following is a copy:—
TO THE EDITOR OF THE TIMES.
"Sir—In the absence from England of any nearer relation or connexion of Sir Richard Bourke than myself, I feel it my duty to remonstrate with you on the hasty judgment you have passed on his conduct in the government of New South Wales, and on the severe and sarcastic, if not acrimonious, tone in which that judgment is expressed. I wish also to furnish you (so far as it happens to be in my power) with the means of correcting that judgment, of which I cannot doubt that you, Sir, as a candid and conscientious guide of public opinion, will readily avail yourself.
"When I tell you that the several items of your description of General Bourke's tendencies to action, viz., "as a military officer," "not finding much pleasure in a state of affairs which gave little or no exercise to his warlike habits," "as a stirring Irishman," to whom "life could not be at all supportable in the absence of agitation," "as a candidate for Whig-Radical favour," incapable of "abstaining from revolutionary practices," are all so utterly and ludicrously at variance with the General's real character and disposition, that it is impossible for a friend of his to read them without hearty laughter (in spite of the annoyance of seeing a most worthy man, and a most faithful and laborious servant of the Crown, absurdly misrepresented to the public), I think it will induce you to receive with a little more caution the statements of those persons (whosoever they may be) who have contrived to engage your powerful support on the side of their own colonial partizanship; and who, starting from the undeniable facts of Sir Richard Bourke being a soldier, an Irishman, and a Whig, have so far abused your confidence as to make you fancy that the metaphorical sketch of "a gallant roysterer, determined to treat himself to a sort of colonial Donnybrook fair—in short, to have "a regular Irish row of it," was, in any kind or degree of similitude, a likeness of the present Governor of New South Wales, either in his individual or official capacity.
"The charges against General Bourke, which have appeared in your paper, first, in two letters signed "Australianus," and, secondly, in this article of the 27th (which I think I may regard as the result of those letters), resolve themselves into three heads:—The first, and most serious, that of culpably relaxing the laws enforcing convict discipline in the colony; the second, that of admitting to familiar society, and otherwise favouring and promoting, individual convicts, and, in particular, one James Watt, whom General Bourke is alleged to have made editor of the "Sydney Government Gazette;" the third, that of dismissing several magistrates without reason assigned.
"The first charge involves a question most interesting indeed to the public at large, but one far too extensive for me to venture upon it in a letter. It is true that General Bourke, shortly after his arrival at Sydney, passed an act to consolidate and amend the laws relating to convict discipline. It is true that the new code did in some degree diminish the powers of the magistrates when acting singly. It is true that a limited portion of the community were so much displeased at this that they got up a petition (at a private meeting, however), complaining of the governors's conduct. And now I send you herewith a copy of a pamphlet, "by an unpaid magistrate," published at Sydney, in answer to the allegations of that petition. I call upon you, in common justice to General Bourke and to the public, to peruse it; and great indeed will be my surprise if you are not satisfied, by that perusal, that this first charge against him is most unreasonable, and unwarranted by facts.
As to the second charge, that "his excellency has lavished upon transported felons the token of peculiar favour and fellowship," given such persons "the entree of the government-house of Sydney," and "made them pets and poodles about his table," I take upon myself to assert that it is a gross calumny; and I call upon your anonymous correspondent, who has done you the injustice to palm such an infamous untruth upon your credulity, to come forward in his own name and substantiate it, if he can. It is well known that so long ago as in Governor Macquarie's time, the question as to the reception into society of convicts, the terms of whose penal banishment had expired (nay, of their children and descendants), had become the subject of much difficulty and dispute, many of them having risen to affluence and respectability; and it remains one of delicate management enough, and must remain so for some time to come. That some few of this class may have been admitted to government-house I am not prepared to deny; but that any person who could properly, at the present time, be designated a "transported felon," was ever received as a guest by Sir Richard Bourke, I will stake my existence is an utter falsehood.
"So also, as to the convict James Watt. It is impossible that he could have been "promoted by the governor to the editorship of the Sydney Gazette," for no such office exists in the governor's gift. The Sydney Gazette is just as independent of the government there as The Times here. If it prints the government notices, orders, proclamations, &c., it does so by contract or tender. There is no government gazette, properly so called, at Sydney.
"James Watt appears, by Australianus's letter, to have been a convict holding a ticket-of-leave; by virtue of which his services were at his own disposal: and if he chanced to be hired as sub-editor (which I believe was the case) by the proprietors of the Sydney Gazette, the governor had no more to say to it than he would have had if they had hired the man to black their shoes.
"The third charge, that of excluding the names of certain magistrates from a new commission of the peace without reason assigned, in the absence of detailed information I am unable to discuss. That the governor has the power, and consequently, that it is his duty, to select, continue, or remove those functionaries, is quite clear. That he has recently exercised the power of removal, is clear also. That the gentlemen displaced, their friends and partisans, should be very much dissatisfied, is only natural. But it neither follows that there were not very proper grounds for their removal, nor yet that the governor may not have exercised a very sound discretion (nay, possibly, and from General Bourke's character I would say probably, a kind forbearance) in declining to state those grounds, except to the secretary of state.
"In conclusion, allow me to suggest one general maxim. Beware of the statements of colonial partisans. If in any case, in these especially the maxim audi alteram partem should be religiously observed; and time and opportunity should be awaited for this purpose. Great injustice will hardly fail to be the result, if judgments are passed on exparte allegations, which perhaps cannot receive their authentic contradiction for the space of a twelvemonth. I have seen something of colonies myself, and I know that in direct proportion to the trivial and insignificant, and often merely personal, nature of the questions and interests which agitate those small societies, is the bitterness, the prejudice, and exaggerated violence, with which they are canvassed and taken up by the local press and local parties. Whatever comes from such quarters should be taken cum grano salis. For New South Wales and Sir Richard Bourke, the real question is this:—"Has the colony prospered—does 'Australia advance,' under his administration?" And I defy "Australianus" himself whoever he may be, to quit his incognito, to show his face, and, answer no!
"I have the honor to be, Sir, your obedient humble servant,
"DUDLEY M. PERCEVAL.
"Wold, near Northampton, Sept. 28, 1836."
The above letter was provoked by the masterly style in which the Times had previously animadverted upon the very improper policy pursued by Sir Richard Bourke in his government of New South Wales; and the author of the present work will now submit certain documents and other facts, in triumphant proof of the soundness of the conclusions to which the Times had come upon this important subject, even in the absence of that full knowledge of the affairs of the colony which it is to be presumed could only be acquired by persons who have been resident in it during a long course of years.
Mr. Perceval seems to have been well aware that one of the very many grave charges against Sir Richard Bourke, is, that he has exhibited an undue, an unwise, an impolitic, and a dangerous leniency towards the convict portion of the population of the colony, and that he has not only manifested this disgraceful propensity in the acts of his government, but that he has taken into his special grace and favour the well-known apologists and advocates of the convicts, while he has averted his countenance from the disciplinarians who have presumed to oppose his frantic experiments or to remonstrate against the lax and demoralizing tendency of his system.
The very earnestness with which Mr. Perceval, in his belief that Sir Richard Bourke is incapable of such conduct, denies the possibility of his having been guilty of it, and the very haughtiness with which he challenges Sir Richard's accusers to produce their proofs, is evidence of the great importance which even the dearest and nearest friends and connections of Sir Richard attach to the accusation.
If it be really true, therefore, in spite of Mr. Perceval's incredulity, that Sir Richard Bourke is culpable to the extent charged against him, even Mr. Perceval must admit that such culpability is indefensible,—even Mr. Perceval must, however reluctantly, confess, from the solemnity and importance with which he himself has invested the question, that the person convicted of a degree of misconduct too great to be believed but upon evidence amounting to demonstration, is altogether unfit for the exercise of the public functions with which he is invested, and that he ought forthwith to be removed from the high office he at present holds.
The pamphlet by "an unpaid magistrate," which Mr. Perceval transmitted to the editor of The Times, and upon which he vainly relied for a vindication of Sir Richard Bourke, was written, not by an unpaid magistrate, as it falsely pretends to have been, but by a personage (formerly a reporter for the London newspapers) whose present style, occupations, and payments, are, and were at the time when the pamphlet was written, "Roger Therry, Esquire, commissioner of the court of requests for the territory of New South Wales, with a salary of eight hundred pounds per annum, and a further allowance of two hundred pounds per annum for travelling expences;—also, a commissioner in the court of claims for grants of land in the territory, yielding him further emoluments to the amount of about five hundreds pounds per annum,—and also, a barrister before the supreme court of the colony, in which capacity he is indulgently permitted to practise, to the notorious neglect and delay of his own official duties, and from which indulgence he reaps further emoluments to an unknown amount!
And, this paid,—this well-paid,—this doubly, triply paid, commissioner, magistrate, and judge,—this fat civil pluralist of New South Wales,—this public servant, indulged, like a ticket-of-leave man, with permission to absent himself from the public work, in order, poor man! that he may practise as a barrister on his own account, and thus eke out, with his miserable pittance of fifteen hundred pounds a year, the subsistence of his family,—this pure, disinterested, and unpaid champion of Governor Bourke, who is so indignant at its being supposed that the governor could by possibility have any bias in favour of convicts, is himself (as is evident from his own handwriting and his own signature, subjoined)—is himself the avowed abettor of the convict Watt,—the friend, associate, correspondent, and complotter of the quondam convict O'Shaughnessy, transported as a convict from Dublin,—assigned as a convict servant to the Sydney Gazette office,—employed in that office, and allowed to write in the Sydney Gazette, during his convict servitude,—openly made editor of the Gazette after the expiry of his sentence,—and shortly afterwards associated in that editorship with the infamous and atrocious convict Watt, in order that the full measure of this "mystery of iniquity," as it has been termed, might be rendered complete, and in order that the stream of pollutions, flowing from the confluence of these two pestilent sources and their poisonous correspondents, might be poured forth upon the devoted colony, and deluge it with one destroying and overwhelming flood!
Yes:—while the marks of the fetters were still fresh upon the ancles of the new editor of the Gazette,—within a very few weeks after the expiry of his sentence,—Mr. well-paid commissioner Therry (calling himself an "unpaid magistrate,") addresses the felon O'Shaughnessy in the following terms,—terms only to be used by an old friend,—an old correspondent,—and therefore proving that this honourable intimacy and confederacy, between a civil dignitary of the government and a felon transported by the law, had its origin long antecedent even to the date of the extraordinary autographs which so clearly prove the high sense of honour, and the nice and punctilious regard for decorum and for truth, as well as the affability and condescension, of the public functionary who is one of the "high contracting parties" to the alliance!
"Hunter Street, Monday.
"MY Dear SIR,
"I don't know your arrangements as to publication, which will explain to you why I do not send you a few remarks on the attempt of the Herald and Monitor, to cushion the letter of the 'Unpaid Magistrate'* by their taking no notice of it. They are silent, because they know they cannot confute. Therefore the faction feel that the best and safest way with which they can deal with the letter, is to take no notice of it. This shows they dare not approach the subject,—and so far the 'Unpaid Magistrate' reaps a triumph.
"Very truly yours,
(Signed) "R. THERRY."
"To E. O'Shaughnessy, Esq."
* The Pamphlet sent to the 'Times' and 'Morning Chronicle' by Mr. Dudley Perceval.
How short-lived was the so-so and imaginary triumph of the exulting "Unpaid," appears from his next note to his "dear" confidential. It is as follows:—
"Hunter-street, Friday Evening.
"MY Dear SIR,
"I have seen, with no great dismay, the attack in the Herald of yesterday. It abounds in insolence and mistatement; and the writer appears throughout to have [been] in a very passionate and even frantic mood when he wrote it. 'Tis better wait until this letter be concluded, before the 'Unpaid Magistrate' notices this splenetic production, if he should deem it requisite to do so. For the present, perhaps, the most judicious course will be to remind the writer that there is a rod in pickle for him.
"I am quite satisfied you are correct as to the writer. I have no doubt but it is the notorious O. P. Q.,—a good epithet, which will serve as the retort-courteous for the epithet applied to the author of Humanitas.
"Very truly yours,
"To E. O'Shaughnessy, Esq."
Gracious heaven! The champion, then, of Governor Bourke, draws up an anonymous libel upon the whole body of the independent territorial magistrates of the colony,—an anonymous vindication of his patron—which has its very origin in profligate deceit and audacious falsehood, bearing a LIE, little less than if not really and absolutely treasonable, upon its very front! Though he is himself one of the paid functionaries of the government,—one of the judges of the colony,—appointed, too, not by the colonial governor, but by the King's ministers, and sent out invested with his judicial character by the government at home, yet he has the duplicity to assume the character of an "unpaid magistrate" of the colony; and he has the treasonable audacity to deceive and mislead, or to attempt to deceive and mislead, the British government, by which he was sent out, by daring to address his calumnious libel on the magistrates, and his weak and flippant though sophistical defence of Sir Richard Bourke, as "A Letter to the Right Hon. G. Stanley, Principal Secretary of State for the Colonial Department. By an Unpaid Magistrate!!!"
Did Sir Richard Bourke officially forward the pamphlet of his champion to Downing-street? Did he, or did he not, (whether he forwarded it or not), apprise his Majesty's principal secretary of state for the colonies that the pretended "unpaid magistrate" was really no other than Mr. Therry, whom the home government had made a well-paid judge, and whom the governor had further made a well-paid lands commissioner; and therefore, that his representations, though they were against the detested colonial magistrates, and though they were in his (General Bourke's) favour, were altogether unworthy of credit? Did Governor Bourke, it is again asked, apprise the home government of this fact? Was it not imperatively his duty to do so? By concealing that fact, was he a party to the deceit and delusion practised upon his Majesty's government? And, if a party to it, was there not a conspiracy to deceive and mislead the government by its own functionaries?
The criminal daring of such an act, by any individual in the actual service of government, is only equalled by the baseness of the treachery and the deepness of the guilt. If that individual was aided and abetted in his deception, then there was a conspiracy to deceive and mislead his Majesty's government; and what other than a treasonable conspiracy could such a conspiracy be termed?
It is, however, for the attorney-general to say what is the nature of such a conspiracy in the eye of the law; and it manifestly seems to be his duty to prosecute it, and to bring the party or parties concerned in this flagitious affair to condign punishment.
Whether there was or was not a treasonable conspiracy to deceive the government, it is evident, from the precious letters of the soi-disant "unpaid magistrate" to dear O'Shaughnessy (esquire!), that there was an infamous and criminal conspiracy between a functionary of the government and a confederacy of convicts and other individuals of the felonry, whose objects were to deceive and mislead the colonial public, and to employ the colonial press as an engine of libel and threat against the public-spirited and respectable colonists, and as an implement for defending, at the self-same time (strange and portentous conjunction!) the atrocities of convicts and those measures of the colonial government which were obnoxious to the virtuous and reputable portion of the colony,—obnoxious, because of their dangerous and disgraceful spirit of favouritism for the felonry.
In this conspiracy, and between a confederacy of the felonry and the colonial government, Mr. Commissioner Therry stands bound in fetters of adamant,—rivetted by his own hand,—fixed and branded by his own letters,—as the connecting link. There is for him neither escape nor hope, but by bidding "a long farewell to all his greatness." When his letters are published in the colony, no respectable man will return his greeting. He will be shunned, by all but the felonry, as a pest.
And it is, as is proved by the same letters, by this atrocious confederacy of convict and government conspirators, that the independent magistrates and the respectable colonists, alarmed at the manifest existence of such a conspiracy, and at the ruin and infamy with which it threatened and still threatens to overwhelm the colony,—it is by this dominant conspiracy of convicts and public functionaries, assisted by the strenuous efforts of the convict and government press, that the free colonists are attempted to be stigmatized as a "faction!"
Mr. Commissioner Therry, who practises falsehood upon the home government, under the assumed character of an "unpaid magistrate," instructs his freed convict associate O'Shaughnessy, in pursuance of their system of falsehood and delusion, to lie to the public, by directing him to say that there is a rod in pickle for an honourable antagonist to the unpaid magistrate, though he acknowledges in the same sentence that it is even questionable "if he should deem it requisite" again to face that antagonist at all!
There it is,—in the second letter to O'Shaughnessy,—the unblushing avowal that the publication of that falsehood will for the present be "the most judicious course!"
The falsehood could do no harm to the cause of falsehood; and, it might have had the effect of frightening a champion of the opposite cause from any further disclosures of the truth.
And, in the same letter to his freed-man O'Shaughnessy, Mr. Commissioner Therry instructs him to stigmatize one of the most talented and respectable men in the colony with the epithet of "the notorious O.P.Q.,"—"a good retort-courteous!" (exclaims Mr. Commissioner Therry, in the pride of his genius and of his imaginary triumph,) which will serve as a set-off to the epithet applied to our co-associate and brother conspirator; "the author of Humanitas!"
And who was this co-conspirator and author?—Why, no other than that most infamous Scotch outlaw and English convict, William Watt, then living in open violation—and protected by authority in the open violation of the laws of the colony, and then also, and nevertheless, associated with dear O'Shaughnessy, esquire, in the editorship of the Sydney Gazette!
Mr. Dudley Perceval affects to believe that Governor Bourke had nothing more to do with the employment of a ticket-of-leave man as an editor of the Gazette, than with his employment as a shoeblack.
But would a shoeblack ticket-of-leave man have been protected in open violation of the colonial laws? Or would Watt, as a ticket-of-leave editor, if he had dared to write an article in condemnation of Governor Bourke's policy, have been so protected, and left at liberty to blacken gentlemen's characters instead of brightening their shoes?
No, as a ticket-of-leave man, subject to forfeiture of his ticket, not only for any criminal offence, but for any immorality,—for any irregularity of conduct of any kind,—for any mark of personal disrespect to a magistrate, or even to any respectable colonist,—in short, for improper conduct of any sort,—if the outlaw and convict Watt had dared to write against the colonial government, he would have been instantly punished with the cat-o'-nine tails, and sentenced to an iron gang, for his presumption.—"Shame! Where is thy blush?"
To add one more shade of darkness to this black affair, it may here be stated, that Watt, alarmed at the indignation which the publication of Humanitas had excited, suborned a man who had recendy returned to Sydney from transportation to a penal settlement, for a felony committed in the colony, to make affidavit that he (this freed colonial convict, or expiree), was the author of Humanitas.
The man was known to be obviously incapable of writing the production, of which he assumed the parentage upon oath. Mr. Commissioner Therry well knew that Watt was the real author; and yet he connived at the perjury and subornation of perjury perpetrated by these his confederates! Even should Mr. Therry deny his knowledge of Watt being the author (a denial which not a man in the colony would believe), he is welcome to his only alternative. He is on the horns of a dilemma; for, if he had not known that the British convict Watt was the author, he had the declaration upon oath that it was the colonial convict Halden who was the author; and therefore it was, in either case, for the benefit of a member of his convict confederacy, that he instructed his confederate O'Shaughnessy to practise falsehood and delusion upon the public, and to utter a libellous epithet upon a gentleman, as a retort-courteous for an epithet that had been bestowed upon one of their criminal and atrocious fraternity!
Of the sensation excited in the colony by the infamous association of government functionaries with the convicts, the following extract from the Sydney Herald of 10th December, 1831, may give some idea:—
"HUMANITAS.—The Sydney Gazette of Saturday the 21st ultimo contains an article headed 'HUMANITAS,' which appears to be the production of Mr. Roger Therry. Our readers will, doubtless, feel somewhat surprised at our assertion; but that surprise will subside when we inform them that, independently of internal evidence furnished by the article to which we allude, we are in a condition to prove that Mr. Roger Therry has not only been a pamphlet writer, but also occasionally a newspaper writer, during the last two years! Quem Deus vult perdere prius dementat. Mr. Therry is surely insane, or, knowing how he stands, he never would have dared the fate which awaits him, by becoming the instrument of the publication of such an article as that to which our attention has been directed.
"Assuming that the extract from the letter 'to an official gentleman here,' is no fabrication, it is some satisfaction to learn that 'Governor Bourke will be applied to for further information as to the proceedings.' His excellency, of course, as an honourable man, will tell 'the truth, the whole truth, and nothing but the truth;' and as the 'real Simon Pure' and his abettors will then be made manifest, we, too, may expect 'warm work in parliament.' We are told that the 'Secretary (Lord Aberdeen) seems acquainted with the author.' Not a bit of it. His lordship cannot know that the author is a convict (William Watt) under sentence from England—lately tried for felony in this colony, and though acquitted (!) since sent to a distant settlement. No; Lord Aberdeen cannot know this, and still less can suspect that the governor knows it; and that a civil officer of the government not only knows these things, but, in secret, obtained and perused a copy of the infamous phamphlet, and in secret actually furnished matter for it—which, however, from circumstances, was not used. These things he did, knowing that the author was a mischievous convict—and the medium of communication being also through another convict, a clerk in the office of a certain lawyer! It shall be our care, however, to disabuse the home government and the people of England, with reference to the villainous author of "HUMANITAS," and the infamous falsehood and gross malice with which his production abounds."
Does Mr. Dudley Perceval call for further proofs? He must admit, that it is clear that there has been an infamous intimacy,—a criminal collusion,—for most atrocious purposes, between an important government functionary and the convicts and their advocates. He may, however, say, that it is not proved that Governor Bourke was cognizant of these or of any other criminal and unworthy doings!
That Governor Bourke was cognizant of such sort of doings is well known in the colony. The fact is of public notoriety and undeniable; but, amongst other documents in the author's possession, there is one other short letter which lifts the curtain once again, and proves the criminal favouritism shewn to convicts,—aye, even to runaway convicts,—within the walls of government-house itself.
An assigned convict who had taken to the bush by absconding from his master (the author), travelled one hundred and forty miles, and, assured of a gracious reception, presented himself at government-house with a petition to the governor, charging his master with some alleged act of oppression.
Instead of this fellow being immediately taken into custody, and transmitted to the nearest magistrate for commitment to take his trial as a bush-ranger, he is listened to, comforted, and advised by Mr. Richard Bourke, the private secretary to the governor, and his excellency's son!
In legal construction, as well as in common sense, this conduct can be regarded as neither more nor less than an unlawful and criminal harbouring of the bushranger! By an act of council, a reward is offered for the apprehension of any bush-ranger, and a penalty is inflicted upon any settler for receiving a bush-ranger under his roof. Every inhabitant of the colony is bound to apprehend a bush-ranger, wheresoever he finds him. Dr. Wardell, a gentleman who accidentally came upon three bush-rangers, and whom, though he was unattended, he called upon to surrender to him, was, for thus intrepidly endeavouring to perform the duty he owed to the colony, inhumanly murdered by the villains on the spot. There is not even one of the black natives of the territory who would fail to apprehend a bush-ranger if he could, and to convey him prisoner to the nearest magistrate.
The bush-ranger whom the governor himself received under his roof, and whom, instead of apprehending him, as he was bound to do by law, he comforted and advised, was a convict runaway from an estate employing about one hundred convict and free labourers, of all of whom, by the way, the runaway in question was notorious as the greatest ruffian.
The spirit of disaffection and insubordination which the previous impolitic proceedings and laxity of the colonial government and of some of its functionaries had generated, was inflamed to such an extent by the courteous treatment this bushranger experienced at government-house, that it broke out into actual mutiny on the estate from which he had absconded.
In the temporary absence of its two proprietors, the mutineers took possession of the house, which, after deliberating on whether or not they should assassinate its mistress, they rifled of arms, ammunition, food, clothing, plate, and horses, and then took to the bush. They sought out and fell in with one of their masters, whom they were preparing to flog to death with a cat-o'-nine-tails, when he plunged into a river, and effected his escape by swimming amidst a shower of shot from the assassins. Six of these men were taken and tried, and five of them were hanged for these crimes,—crimes which would have been prevented, and the consequent appalling execution spared, had Governor Bourke done his duty by at once giving up the runaway who had visited him, to the punishment of the law.
It is true, that the master of the runaway, to whom the governor's private secretary had made him the bearer of an apologetic letter, immediately delivered him over to a bench of magistrates, by whom he was punished as a bushranger and condemned to an iron-gang, in conformity with law.
But the impression made upon the minds of the convicts by the reception he had experienced at government-house, had worked its mischief. Its effect upon the convicts, throughout the colony, was electrical. The governor had proved himself to be the convicts' friend; and the very efforts of their employers and of the magistrates to counteract the poison, only served to exasperate the malignity it was intended to subdue.
These are astounding facts! Mr. Dudley Perceval will not believe that his gallant relative can have been so culpable, because the degree of the culpability is so monstrous, that he thinks it impossible to have occurred.
Well, then, here is the letter of the honourable relative of Mr. Dudley Perceval to the master of the comforted and distinguished bush-ranger, and which letter inclosed the petition of the bushranger to the governor. The bush-ranger, however, was a better judge than his friend the governor as to the expediency of permitting the allegations of the petition to meet the eye of his master; and he accordingly broke the seal and abstracted the petition, before he delivered the letter:—
"MY DEAR SIR,
"The bearer of this is an assigned servant of yours, who has absconded from your place with a petition. Of course this is not the proper quarter to bring a memorial of the nature of his, and I have therefore returned it to him, and advised him (!!) to proceed without delay to his work (!!!), by which means you perhaps would look over his fault (!!!) If the man's character is not otherwise bad (!!!), he seems sorry for his misconduct, in this instance (!!!) and will, perhaps, mend (!!!)
"Very sincerely yours,
(Signed) "R. BOURKE."
"To James Mudie, Esq., Castle Forbes."
"If the man's character is not otherwise bad!"—Otherwise bad! Why, he was a transported felon,—sent to Governor Bourke for the purpose of being punished! And, he stood confessed a convict runaway and colonial bush-ranger!
It was not the province, either of the governor, or of his private secretary, or of the bush-ranger's master, to suppose or surmise any thing about the culprit's character. It was not their province to judge whether of not he seemed sorry for his misconduct. It was not their province to advise him in any way. It was not their province to calculate that he might or might not, perhaps, mend his ways!
They,—collectively and severally,—had but one duty to perform. They were bound, not even to listen to him; but instantly to deliver him up to the tribunal appointed by the law to take cognizance of his present heinous and most dangerous offence.
Mr. Dudley Perceval may doubt the genuineness of the documents accompanying this statement.
The documents, happily, are not in the colony, but in London. The hand-writing and signatures of both Mr. Richard Bourke and Mr. Commissioner Therry are known in Downing-street; and, if Mr. Dudley Perceval wishes, he may make an appointment for the purpose of having the documents produced and verified at the colonial office.
As the last, and perhaps a superfluous, addition to this chain of evidence, it may be stated, that when the trial of the mutineers and bush-rangers above referred to took place, who should appear as their counsel but Mr. Commissioner Therry! The culprits had no means whatever of retaining counsel; but the great "unpaid magistrate,"—this colonial judge,—who has been fully proved to have been in infamous and criminal conspiracy with the convicts, was himself so imprudent as to let it out that he had received, from some quarter, a fee of twenty guineas for the defence.
Now, mark:—the counsel for the prisoners (Mr. Commissioner Therry) endeavoured to justify them by alleging that they had been provoked to the commission of the crimes, by acts of tyranny and oppression on the part of their master!
The solicitor-general for the colony, much to his honour, indignantly put Mr. Therry down; and he made the startling remark, in open and public court, that the line of defence adopted by the counsel for the prisoners made him (the solicitor-general) suspect that there was some great unknown behind the curtain, by whom counsel had been prompted to take the extraordinary course upon which he had ventured!
The author will not presume to say, whatever he may think, to what quarter this startling remark applied.
Nothing, certainly, could have been more agreeable to the colonial government, at a time when the colony and the colonial office resounded with complaints that the insubordination of the convicts was owing to the laxity and impolicy of the colonial government, than to make out a case of insubordination and crime caused by the cruelties and oppressions of an emigrant, and that emigrant one of the territorial magistrates.
Accordingly, after the trial, the governor appointed the solicitor-general and the principal superintendant of convicts to hold a court of inquiry at the court-house, Patrick's Plains, near the estate in question, on the "charges" of oppression, &c., alleged against the master of the bush-rangers.
A most searching investigation, occupying seven days, was therefore instituted; and the result was the complete exculpation of the aspersed party, whose character, instead of being tarnished, was established by the severe ordeal to which it had been subjected,—so much so, that even Sir Richard Bourke himself was constrained to declare officially, that the conduct of the accused towards his assigned servants "had not been marked by harshness or oppression!"
"Well," Mr. Dudley Perceval may say, "here are still no positive proofs of Governor Bourke having actual cognizance of, or having culpably connived at, the protection by authority of the convict Watt, while he lived in open violation, as is alleged, of the laws of the colony."
Mr. Dudley Perceval, while he is filled with just indignation at the criminal connection of Commissioner Therry with the felon O'Shaughnessy and at his manifest confederacy with the convict Watt and with the convict cause, still sees nothing further proved against his gallant relative the governor, than that he had shewn a degree of good-nature, certainly amounting to weakness, towards the runaway convict whom he kindly advised to return to his work,—a degree of weakness doubtless quite inexcusable in any public functionary, and particularly in a military man, who ought to know that one such act must necessarily be subversive of all subordination and discipline. Were a soldier to abscond from his regiment at York, and to present himself at the horse-guards in London, with a petition to the commander-in-chief against his colonel, and were the commander-in-chief, instead of ordering the man to be instantly apprehended as a deserter, to clap him on the shoulder,—say he believed he was a good fellow,—advise him to go back to his regiment,—and give him a letter to his colonel, hoping the colonel would look over his fault, &c., &c.,—the two cases would be perfectly parallel! The commander-in-chief might be only good-natured and weak;—but, unless the good-natured commander-in-chief were instantly tried by court-martial and cashiered, or pronounced insane, there would be an end to all subordination and discipline in the British army,—as surely as an end has been put to the subordination of the felons of New South Wales, by the good-natured and amiable Governor Bourke, who ought instantly to have been superseded in his government for the act of insanity he had committed.
Or (Mr. Dudley Perceval may even yet think), if there be any thing more than weakness or incapacity chargeable against Governor Bourke, it is merely that he seems to have been rather culpably ignorant of such things going on within his government as those which have just been established.
But then, (Mr. Dudley Perceval may say,) all men are liable to be deceived; and General Bourke, a man of high honour and upright feelings and principles himself, could have no conception that either Commissioner Therry, or any other public functionary near his person, and participating in the administration of the government, could be guilty of such infamous conduct as it is now undeniable they have committed.
Like Mr. Dudley Perceval himself, who, in his innocence, cannot believe it possible that Governor Bourke can in any degree be guilty of the charges brought against him,—so also General Bourke, in his simplicity, could not believe it possible that the men of honour, the functionaries of his government, could by possibility be guilty of any heinous improprieties and irregularities on their part;—and, when complaints of the existence of such irregularities, both loud and deep, reached his ears, he contented himself with believing, like his honourable relative in England, that such complaints could not by possibility be well-grounded!
Now, let us, as one instance of the governor's cognizance of and connivance at improper doings, fairly state and candidly consider the case of the infamous convict and ticket-of-leave man, Watt.
Watt was originally a clerk in the office of a writer to the signet in Scotland; and having been charged with some serious delinquencies there, he fled from justice to England, and was consequently proclaimed an outlaw by the law of Scotland.
Being, however, a young man of plausible address, and the cause of his flight from Scotland not being generally known in London, he succeeded in getting into the employment of the great commercial house of Todd, Morrison, and Co., in Fore Street; and he was eventually promoted by that house to a confidential situation in their service, with a liberal salary, sufficient to support him rather as a gentleman than as a respectable clerk. In gratitude for this confidence and kindness, so little to be expected by him after his villainies in Scotland, he at different times purloined such large sums of money from Messrs. Todd and Co., that on his eventual detection and consequent flight a second time from justice, a reward of some hundreds of pounds was offered for his apprehension.
By the sagacity and extraordinary perseverance of an officer of one of the London police offices, who for weeks watched the movements of a female with whom it became known Watt had cohabited, he was at length traced to Edinburgh, where his pursuer apprehended him in a public street, though not till after a very desperate resistance.
He was then brought prisoner to London, and committed to take his trial at the Old Bailey, previous to which it was ascertained that he had been leading a very profligate and abandoned life while he was in the service of Messrs. Todd & Co., and while he was perpetrating his robberies of their property.
Having been found guilty of the offences charged in his indictment, he was sentenced to transportation for fourteen years, and was sent out to Botany Bay with an export of felons in the Marquis of Hastings transport.
After having been some time in the colony, the same plausibility of address and manners which had gained his admission into Messrs. Todd & Morrison's, procured for Watt a recommendation to the colonial government as a fit person to receive the indulgence of a ticket-of-leave, which was accordingly granted to him.
The favour shown to him, however, did not stop here, unworthy as he was of even this amount of favour, as is amply proved by his own subsequent conduct.
In pursuance of the lax and unwise policy of the government, in continuing to employ convicts and emancipated felons, even after there were in the colony abundant persons of unblemished character from whom the government could have selected all its own officers and servants, Watt was for a length of time employed to bring up the accounts of some of the public offices which had fallen into arrears.
He was afterwards translated into the Sydney Gazette office, in which he was associated in the editorship with the emancipated convict O'Shaughnessy.
With the imprudence and recklessness so characteristic of the class of degraded persons to which Watt belongs, he availed himself of his new situation to broach doctrines calculated to excite the minds and to inflame the passions of the felonry, and utterly subversive of convict discipline and subordination.
These doctrines were accompanied by atrocious libels on many of the most upright and independent magistrates in the territory and other reputable colonists, and by the manifestation of a spirit of malignant hatred of every thing virtuous and respectable in the colonial society.
But, they were also accompanied by articles of most fulsome adulation of the governor, and by thick-and-thin advocacy of all and sundry the acts of his government.
Governor Bourke, innocent soul! remained ignorant of all this, did he?
Why, the colony was thrown into a ferment by the infamous and libellous writings of this scoundrel and his associates, O'Shaughnessy and Therry. The whole territory resounded with cries of "shame" at the governor for permitting it to go on. The columns of the colonial newspapers attached to the cause of good order and public decency, were loaded with accounts of the crimes and immoralities of the wretch, and with the complaints of the respectable inhabitants against the government for suffering him, as a ticket-of-leave man, to continue his career of iniquity. The editors of the independent newspapers denounced his connection with the colonial press, not only as being an act in itself highly immoral and disgraceful, but as entailing infamy upon their order in particular, as well as generally upon the government and upon the colonial public at large.
Watt, however, was not to be driven from his lucrative post by the voice of thunder in which the indignation and horror of the public were expressed; nor was the governor to be moved to the exertion of his authority for the suppression of a public nuisance, which, how offensive soever it might be to the respectable portion of the colony, presented to his excellency only the sweet odour of adulation.
Commissioner Therry furnished the Sydney Gazette with "retorts-courteous" to the epithets applied to his convict associates and fellow labourers in the cause of misrule and insubordination, and by his "Letter of an Unpaid Magistrate," and other writings, at once assisted to vilify and bespatter the respectable free colonists, and to vindicate and eulogize, even to nausea, every thing that was unprincipled, unwise, and unjust, in the conduct and proceedings of the colonial government.
More than one of the gentlemen who had become marks at which Watt shot his venom, and whom he endeavoured to besmear with the disgusting slime of his malignant calumnies, finding that neither the governor nor the paid police magistrates of Sydney, were likely to perform their duty by curbing the licentiousness of Watt as a ticket-of-leave man, resolved to free the colony from the disgrace of his being connected with its press, by bringing him to justice for the habitual violation of the colonial laws in which he lived.
But these gentlemen "reckoned without their host," when they relied on the law for the punishment of an offender; for, an appeal to the law, in the case of this notorious offender, was authoritatively denied them; and they soon found, that the governor and his paid functionaries not only silently connived at Watt's misconduct, but that they were resolved upon openly protecting him in its perpetration!
By the colonial law, a convict only holds his ticket-of-leave during "good behaviour." For any irregular, immoral, or unlawful conduct, his ticket-of-leave ought to be taken from him, and he is subjected to such further punishment as the summary tribunal before which he is tried may apportion to his offence.
Independently of the gross public immorality and indecency of Watt being at all connected with the Sydney Gazette, and independently of the infamous purposes to which he prostituted that government journal, he was at the time living in open contempt of a colonial regulation whereby he was bound to attend a general muster of all the ticket-of-leave men, at stated periods, within the district of Sydney; he was at the same time leading a life of profligacy; he was known to be habitually a liar in private, as he was a traducer and a libeller in public; he was living in open adultery with a female runaway convict, transported for life, who bore two children to him, and whom he had the audacity to send to the factory, that her lyings-in might be defrayed at the public expence; and that the offspring of his adulterous, and (in other respects by the colonial law) peculiarly criminal intercourse, might be maintained at the expense of the same public, whom he was daily demoralizing and endangering by his pestilent and atrocious writings.
MR. George Cavanagh, of Sydney, one of the gentlemen who had resolved on bringing the wretch Watt to justice, addressed the following application, for that purpose, to Mr. Hely, the principal superintendent of convicts:—
"Sydney, 7th January, 1835.
"I do myself the honor to inform you that I am desirous of preferring charges of grossly immoral conduct against the convict named in the margin (William Watt, per Marquis Hastings,) who at present is employed in the Gazette office, and holds the indulgence of a ticket-of-leave.
"I may perhaps as well state now, that these charges consist principally of this man cohabiting with a female prisoner of the crown for life, named Mary Chapman, now assigned to Mr. Shepherd of South Creek.
"As the case will be investigated without delay, I forbear for the present entering into further particulars.
(Signed) "GEO. CAVANAGH."
The Principal Superintendent of Convicts, Mr. Hely, well knowing that Watt, whom he himself (Mr. Hely) should have punished for contempt of the regulation requiring his attendance at the general musters of ticket-of-leave men,—Mr. Hely, remembering that Watt was now a public character,—a political writer,—a champion of the governor,—high in favour with some of the authorities,—while he could not, dared not say, that the charges preferred against Watt by Mr. Cavanagh should not be investigated,—very naturally, if not wisely, endeavoured to shift the performance of a duty which he had reason to think would not be quite agreeable to his superiors, from himself to some other authority; and he accordingly replied to Mr. Cavanagh, as follows:—
"Principal Superintendant of Convicts' Office, "35—5.
"January 8th, 1835.
"Referring to your letter of yesterday's date, stating your desire of preferring certain charges against the convict named in the margin (William Watt, Marquis Hastings T. of L.,) I have to inform you that the magistrates sit on Mondays, Wednesdays, and Saturdays, at the police office in Hyde Park Barrack, and to suggest your bringing the case before them.
"Your Obedient Servant,
"F. A. HELY."
But the bench of magistrates at Hyde Park Barrack, consisting partly of paid police magistrates, and partly of territorial magistrates holding lucrative appointments under the governor, were as well aware as Mr. Hely that Mr. Cavanagh's charges were preferred against a man of consequence; and therefore they, in the case of a criminal complaint against a felon holding a ticket-of-leave, refused to interfere, unless they had a special order to do so from the governor himself!
Surely it will not be denied that this conduct of the Hyde Park Barrack bench was utterly subversive of law and discipline; and surely there is no man so blind as not to perceive the motive which induced these magistrates to desert their duty, and to betray the interests of that justice they were appointed to conserve.
Mr. Cavanagh reports their reception of him, and perseveringly returns to the charge upon Mr. Chief Superintendent Hely, in his next application to that functionary, as follows:—
"To F. A. Hely, Esq.
"In obedience to the suggestion contained in your letter of date the 8th instant, respecting my preferring charges against the convict named in the margin (William Watt, per Marquis Hastings), I do myself the honour to inform you that I waited on the bench of magistrates, at Hyde Park Barrack, this morning, with a view of obtaining summonses for witnesses necessary for the prosecution, and that the magistrates refused to investigate the matter without an order from the governor, stating you to be fully competent to adjudicate; and, further, advising me, under the circumstances, to lay the business before Col. Wilson.
"Having, however, made the original charge before you, I beg to request that you will entertain the case, and appoint an early day for its investigation, as I find the ends of justice are likely to be defeated through the witnesses being tampered with.
"I beg, further, to be informed how I am to obtain summonses for the witnesses I require for the prosecution.
"I have the honour to be, &c. &c.,
(Signed) "GEO. CAVANAGH."
From the next document, addressed by Mr. Cavanagh to his Excellency the Governor himself, it appears that Mr. Hely was driven to a non-plus, and that he had resolved on getting rid of the affair by silence:—
"I beg leave respectfully to lay the following statements under your notice, merely that your excellency may direct the charges I wish to prefer against the convict named in the margin (William Watt, per Lord Hastings) to be investigated, which your excellency will see, notwithstanding my application in the proper quarter, has seemingly been denied.
"On the 7th January last I wrote a letter to the superintendent of convicts, expressing my desire to prefer charges of grossly immoral conduct again the prisoner named in the margin, who holds a ticket-of-leave, and is at present employed as a clerk in the Gazette office.
"Mr. Hely, in his reply, which is dated 8th January, referred me to the bench of magistrates, at Hyde Park barrack, as the proper place for charges against prisoners of this class to be entertained.
"I accordingly made application to that bench, who refused to interfere, unless especially ordered to do so by your excellency; and further stated that 'it was Mr. Hely's duty to investigate all charges, if brought before him, against convicts holding tickets-of-leave.'
"I immediately wrote a second letter to Mr. Hely, dated 18th January, stating as above, and urging the necessity of his allowing the matter to be brought before him, to which I have not received an answer.
"My object in bringing this under your excellency's notice, is, that your excellency will be pleased to direct either Mr. Hely or the bench at Hyde Park barrack to enquire into the case with as little delay as possible, as the persons who will be produced as witnesses against the accused have been already tampered with by that individual, with a view of defeating the ends of justice, and sheltering himself through their means.
I have the honour, &c.
(Signed) "GEORGE CAVANAGH."
His Excellency Governor Bourke is thus made directly cognizant, not only of the peculiarly illegal conduct and criminal profligacy of Watt, but also of the fact, that his excellency's subordinate functionaries had rejected an application for the ordinary administration of the law, in its usual course.
Governor Bourke, however, instead of forthwith ordering the investigation of the charges, and reprimanding the functionaries whose culpable conduct had rendered an appeal to his excellency at all necessary, follows the example of Mr. Hely, and treats Mr. Cavanagh's application with silence, as is seen from the next of the documents:—
"To the Hon. Alexander Macleay, &c. &c.
"New Town, 11th February, 1835.
"I beg leave to inform you, that, about the beginning of this month, I wrote to his excellency the governor, direct, the following letter; but, as perhaps the proper channel of communication by letter to the governor is through you, I do myself the honour to enclose a verbatim copy of that letter, that you may lay the same before his excellency, my not having been favoured with a reply to which has led me to believe the cause to be its irregular delivery, though my servant, by whom I sent it, states most positively that he put the letter into the post office. I will further add, that I am most anxious to have the matter investigated with as little delay as possible, as it is not my intention to lose sight of the case till justice has been satisfied.
[Here follows the letter to the governor above quoted.]
"Trusting you will lose no time in laying the letter before his excellency the governor, I have the honour to be, &c.,
(Signed) "GEO. CAVANAGH."
Mr. McLeay of course laid the above letter before his excellency; but silence was still the only order of the day!
The indefatigable Mr. Cavanagh, however, was not thus to be repulsed; and accordingly, after having been "driven from pillar to post," and after having ineffectually consumed between two and three months in attempting to get his just and reasonable complaint heard, he at length adopted the decisive expedient of appearing before his excellency in person, and of thus extorting from him a reply of some sort to his application.
What success attended this last effort of Mr. Cavanagh appears from the next document, which is an affidavit, sworn by him before a magistrate, after Mr. Windeyer, a police magistrate, had, in consistency with the system, refused to swear him to the same effect.
"Sydney, N. S. W., to wit.
"George Cavanagh, of Sydney, in the colony of New South Wales, gentleman, maketh oath, and saith, that on the 7th January, 1835, he wrote officially to the principal superintendent of convicts, stating his desire to prefer charges of grossly immoral conduct against a prisoner of the crown named William Watt (per Marquis Hastings), then employed in the Gazette office: deponent further saith, that the grossly immoral conduct he was desirous of exhibiting to the government consisted of the said convict William Watt living in a state of adulterous intercourse (openly) with a runaway convict named Jemima alias Mary Chapman: deponent further saith, that after a fruitless attempt to obtain a hearing, to prove the charge aforesaid (having repeatedly written to the principal superintendent of convicts, to the colonial secretary, and lastly, to his excellency Governor Bourke, on the subject, which occupied three months), deponent was induced to wait personally on his excellency the governor, at Parramatta, for the purpose of stating the charges against the said convict William Watt, and to know the reason why deponent had been refused a hearing of the case: deponent further saith, that at the interview with his excellency, as aforesaid, he stated his anxiety that his excellency should order the charges to be investigated at his earliest convenience, as deponent was quite prepared to prove that the said William Watt, and the said Mary (alias Jemima) Chapman, did cohabit together for years, and had issue, and were cohabiting together at the time deponent preferred the charge, in the first instance, to the principal superintendent of convicts: deponent further states, that his excellency's reply was in substance as follows, viz., 'That he did not think it a case that called for his interference, it being a matter purely between the said convict Watt and the deponent, with which the public had nothing to do:' deponent further states that he (the deponent) urged respectfully but firmly his conviction that it was a case which called for his excellency's notice, for the sake of convict discipline and example; and in reply to a question from his excellency, deponent stated that he was induced to prefer the charges against the said convict William Watt in consequence of the said Watt having falsely slandered the deponent: deponent further swears, that his excellency the governor refused to order an investigation into the case, notwithstanding deponent gave his excellency to understand that deponent had no evidence of his own to give in support of the charges against the said convict Watt, but would have to substantiate the charges against the said convict Watt by most unwilling testimony of persons who were trying all in their power to screen the said Watt: deponent further swears that the said convict William Watt was in the Gazette office part of the time he was so cohabiting with the said Mary (alias Jemima) Chapman, and the whole of the time the deponent was preferring the said charge against the said convict Watt: deponent further states, that the said convict Watt had the virtual controul of the Sydney Gazette at the time deponent was preferring the charges aforesaid, and that that paper was a staunch supporter of his excellency the governor at the time aforesaid.
(Signed) "GEO. CAVANAGH.
"Sworn before me, at Sydney,
this 29th day of March, 1836.
(Signed) "M. S. MOORE, J. P."
The governor "did not think it a case that called for his interference!" but that "it was a matter purely between the said convict Watt and this deponent, with which the public had nothing to do!" and "his excellency the governor refused to order an investigation into the case!!"
1st, It was a case that called for the governor's interference; because a bench of magistrates had refused to interfere unless they had his excellency's order to do so.
This was special reason for the interference of the governor, which should have aroused his indignation at the impediments which had been placed before the administration of justice, and at the shield which had been interposed by magisterial authority between an infamous offender and the outraged laws of the colony.
2d, It was not a case between the deponent Cavanagh and the accused convict Watt, with which the public had nothing to do; but between that convict and the law,—and consequently between that convict and the public,—between the convict and the government of the colony; and yet by the government of the colony, and by its functionaries, was the application of Mr. Cavanagh, one of the public, for the investigation of the charges, at first covertly and at last openly refused, and the culprit authoritatively protected in his violation of the law and his outrages upon the public!
By the laws of the colony, the mere fact of harbouring a runaway convict is most properly visited with the infliction of a heavy penalty; and here was a case in which a female runaway convict was harboured by a male convict, who cohabited with her in open adultry and in open violation of the colonial law, and who shamelessly and audaciously even sent her to the factory to ly-in at the public expense; and yet the governor,—his Excellency General Sir Richard Bourke, tells Mr. Cavanagh that this was a case with which the public had nothing to do, and which did not call for his (the governor's) interference!
It was so far from being a case with which the public had nothing to do, that an improper cohabitation by a ticket-of-leave man is always held to be a very high offence, and is always a sufficient reason for taking away a ticket-of-leave; and nothing is more common (even under General Bourke's own government) than the forfeiture of tickets-of-leave for this very reason.
On reference to the Sydney Government Gazette, it will be seen how very frequently tickets-of-leave are forfeited for this offence.
So very seriously, indeed, is the offence regarded, that during the administration of General Darling, it having been represented that Mr. John Stephens, a gentleman of great respectability as regarded his connections and his station in the colony, son to one of the colonial judges, and cousin to an under secretary of state for the colonial department, and himself holding the office of registrar of the supreme court,—it having been represented that this gentleman was engaged in an amatory intercourse with a female convict, an investigation into the affair was ordered; and, upon the fact being proved, Mr. Stephens was deprived of his office of registrar, and removed from the commission of the peace.
This act of impartial justice on the part of Governor Darling, converted Mr. Stephens into one of his excellency's most implacable enemies. He was the same Mr. John Stephens, who, in conjunction with his brother-in-law Captain Robertson, so greatly annoyed the governor, and who, on his return to England, prompted members of parliament to make attacks upon his excellency for pretended acts of oppression, but really for having visited Mr. Stephens with the just and proper consequences of his own misconduct.
Ticket-of-leave men, as has already been mentioned, are very frequently deprived of their tickets for cohabiting with female convicts; and Mr. John Stephens was deprived of his appointment for a similar offence.
But, the convict William Watt, living in adulterous cohabitation with a runaway female convict,—himself a transported felon for fourteen years, and his lewd companion (an Amazonian who had been convicted in England of the unfeminine crime of highway robbery) a transport for life,—the convict William Watt, committing the same offence under these and other highly aggravating circumstances, is not only not punished, but is protected in his evil deeds by the very hands to which the impartial administration of justice had been unfortunately confided; and the governor refuses to allow the law to take its ordinary course against him! Why?
Why,—Mr. Cavanagh concludes his affidavit with the significant declaration, "that the said convict Watt had the controul of the Sydney Gazette at the time deponent was preferring the charges aforesaid, and that that paper was a staunch supporter of his excellency the governor at the time aforesaid!"
The date of Mr. Cavanagh's first application to Mr. Hely, relative to Watt, was 7th January, 1835; and, a document published in the Sydney Monitor of September 12, 1835, certifies, in in the usual way, that Jemima Chapman was delivered of a female child in the factory, on the 17th of April, 1834, and that the said child was the offspring of her (the said Jemima Chapman, a convict), and of William Watt, also a convict.
This certificate is of the birth of the first of the children born by Chapman to Watt; and Mr. Cavanagh, in his charges, and also in his affidavit, declares that Watt and Chapman were actually cohabiting together at the time that his (Mr. Cavanagh's) charges were prefered, and that they had been so cohabiting together for years, and had issue!
These dates are very important; for, about six months afterwards, when the author of this work, then a justice of the peace, at length succeeded in bringing Watt before a bench of magistrates, justice was again defeated,—and one of the pretexts for defeating justice was, that the alleged offence of the cohabitation had taken place so long ago, that it was not fit that it should now be entertained!
The circumstances attending the second ineffectual attempt to bring Watt to justice are still more extraordinary than those which have just been narrated.
Watt had been put on his trial before the supreme court for having instigated another ticket-of-leave man named Hay, a workman in the Herald newspaper office, to steal a proof impression of an article strongly stigmatizing the emancipated convict Halden, the fellow who had falsely assumed the parentage of Humanitas, and for having feloniously received the said proof copy, well knowing the same to have been stolen.
In the very purpose of the perpetration of this theft, there were the usual characteristics—the baseness and treacherous want of principle—distinguishing all the proceedings of Watt and his conspiracy of convicts and public functionaries.
For, the article, of which the proof copy was stolen, had been set up in type, with a view to its publication. On second thoughts, however, it was deemed by the proprietors and the editor to be libellous. They, therefore, prudently resolved that it should be suppressed; but Watt caused the proof copy to be stolen, and became the receiver of it, for the purpose of still furnishing Halden with a pretence for bringing an action for libel. The proof copy was accordingly transmitted to Halden through the post office,—that being in law a sufficient publication of a libel on which an action may be raised,—and an action for libel was accordingly brought against the proprietors of the newspaper, from the office of which the proof copy had been stolen for this very purpose! This led to the discovery of the theft, and to the detection of Watt's share in that dishonest and infamous transaction.
Watt, with the usual good luck which has attended his atrocities in New South Wales, was acquitted by his jury, consisting partly of his own caste, viz. emancipated convicts, although Judge Burton, who tried him, had, in his summing up, evidently no doubt of a verdict of guilty being found against him, and although Watt himself was so far from feeling certain of an acquittal, that in a long speech in mitigation of his offence, he indulged in the most malignant and false aspersions upon the character of the author of this work, who was in no way connected with the case, but who, Watt said, had, by causing him to be dismissed from an employment he had held in the Monitor newspaper office, driven him to desperation.
The author, upon finding himself thus aspersed, indignant at the calumnies of the scoundrel who had maligned him, immediately, and in his character and capacity of a territorial magistrate, had Watt brought before the bench of magistrates at the police office, Sydney, where he charged him, with being a man of infamous character and a habitual liar, living in a state of adultery with a female runaway convict, and with having falsely slandered the complainant during his defence before the supreme court, on which occasion he not only attributed his own situation to the persecutions of the complainant, but even alleged that the complainant had been guilty of murdering his convict servants.
In another part of this work, it will be seen how utterly groundless were the aspersions cast upon the author by this ruffian. At this place, it is unnecessary either to examine or to refute them,—the present object being to show the pertinacity with which Watt was defended and protected in all his misdoings.
For the mere utterance of these slanders alone, without being allowed either to explain them or to attempt their justification, Watt should have been deprived of his ticket-of-leave, as "disrespectful behaviour to any magistrate" is one of the understood grounds upon which tickets-of-leave are forfeited.
By the laws of the colony, the offences with which Watt was now charged, were to be tried before a summary tribunal; and, if proved, were to be visited with a summary punishment.
Several magistrates for the territory joined their brethren the paid police magistrates of Sydney, on the bench, probably with the view of seeing that justice should be impartially administered.
The proceeding, however, again failed. Such was the pertinacity of the prisoner, and such were the interruptions and the irrelevant discussions he was permitted to introduce and prolong, and such were the quibbles raised by some of the paid police magistrates, in his favour, that the summary tribunal was occupied ten days with this summary process; and there was every appearance that it would have continued to be occupied ten months, had not the territorial magistrates given up the case in sheer disgust,—in fatigue and despair,—and abandoned it and the future disposal of the prisoner, to decision of the governor!
Mr. Commissioner Therry, of course, did not fail to appear on behalf of his friend and confederate Watt; but on the suggestion of the complainant, it was decided by the bench that counsel should not be allowed either for the prosecution or the defence.
Mr. Therry then took his seat on the bench as a magistrate; but his interference as a magistrate was objected to by the prosecutor, on such sufficient grounds, that even Mr. Therry himself admitted his sitting as a magistrate would be improper; and he declared that he should attend only as a spectator.
As to the charge of Watt having slandered the prosecutor in his defence before the supreme court, it was objected that the bench of magistrates had no jurisdiction in a case of words spoken before a superior tribunal; thus holding that convict prisoners before the supreme court may utter the most atrocious calumnies and libels with impunity. The police magistrates, afraid, excellent men! of overstraining their authority by a hair's-breadth in the case of so notorious an offender, thought the objection insurmountable. The summary tribunal was arrested in its career by a legal quibble. The question was referred to the attorney-general, who held the objection to be valid; and, though the law authorized the magistrates to adjudicate upon the fact, and to punish the offence without regard to the place in which it might be committed; yet was the place of its perpetration held to sanctify the crime!
A counsel may be sued by civil action, either in England or in the colony, for slanderous words spoken in any court; but in the colony there is no redress for slanderous words spoken by a felon, since the only tribunal before which he can be brought is declared and has declared itself to have no jurisdiction over the offence!
With regard to the charge of Watt being a habitual liar, though it was established by the testimony of several of the most respectable men in the colony, with whom, as well as with the governor, the prisoner had boasted of being on terms of intimacy and friendship, and who also upon their oaths expressed their abhorrence of the infamous and atrocious character of the prisoner; yet Mr. Justice Windeyer, and others of his advocates on the bench, with unparalleled ingenuity and refinement in the cause of falsehood, pronounced that the lies of which the prisoner was clearly convicted were only "lies of vanity," and therefore that it would be cruel and unjust to visit them with punishment.
"Lies of vanity!" They were lies of such a nature that they excited the scorn and indignation of all the gentlemen (excepting only the governor), whose honour and characters they involved, as they themselves declared upon their oaths!
They were lies of such a nature that they were calculated, if believed, to put the finishing hand to the work of demoralization and insubordination which had so long been going on, and to eradicate all moral sense from the public mind, and level every distinction of right and wrong, in the colony, with the dust.
They were lies, in short, of such a nature, that they involved slander and disrespect towards the parties to whom they referred, and were therefore punishable in a ticket-of-leave-man on that account alone.
But, they originated, it was said by the sapient Mr. Justice Windeyer, in mere vanity; and, as vanity was the motive, they were not to be punished, however mischievous and wicked they might be in their tendency and effect!
They were of such a nature, that for the utterance of any one of them any other ticket-of-leave man than Watt would have been severely punished.
The "lie of vanity" has been a melancholy subject for jest, in the colony, ever since; and will go down to the latest posterity in conjunction with the name of Mr. Justice Windeyer, the ingenious inventor of a new name for falsehood, and the refined apologist for the infamy with which the convicted liar had sought to tarnish the reputation of respectable men!
With regard to the charge of the unlawful cohabitation with the female runaway convict Jemima, alias Mary Chapman, though that was fully proved,—and proved, too, to have been carried on in the most shameless and profligate manner, so that even the Gazette Office, to the scandal of even Mr. O'Shaughnessy himself, was polluted by the criminal intercourse taking place within its walls, where Chapman was known to sleep with Watt,—with regard to this charge (the investigation of which had been refused while Watt and Chapman were actually living openly together), Colonel Wilson and others of the police magistrates now contended that the offence was of too old a date, and pleaded prescription in favour of the criminal.
It was believed that the cohabitation was still going on; and, with a view of getting at the truth, the female was ordered to be produced; but Watt and his friends took care to smuggle her out of the way; and, though the emancipist Halden, a witness for Watt, who prevaricated grossly in his evidence, was reluctantly made to confess that he had seen her "last night," yet the police either could not or would not find her out!
The prevarications of Halden afforded another opportunity for luminous display to Mr. Justice Windeyer; for, a motion having been made to commit the witness for gross prevarication, his worship declared that "every allowance ought to be made for a witness's embarrassment while giving his evidence and being cross-questioned, before so numerous a bench, particularly if that witness should happen to be a timid and inexperienced young man!" Halden's timidity and inexperience! a villain of the deepest dye!—twice already convicted in the colony, and transported to a penal settlement,—a fellow the grossest effrontery, and already notoriously perjured on the subject of Humanitas,—with "villain" so legibly stamped upon his countenance, that, to quote a vulgar expression, "his very looks would hang him!"—a fate, indeed, predicted for him to his face, even by the captain of the ship who carried him out to the colony.
In the investigation of this case, the culpable and disgraceful connection of some of the public functionaries, and even of the government, with Watt, was made apparent.
Dr. Neilson stated, in his evidence, that Watt had told him that he was a particular friend of Colonel Wilson's; and on one occasion he (Watt) had shown witness a small note, signed "H. C. W.," which he said he had received from Colonel Wilson; "the contents of that note was concerning a woman that Watt had been keeping. Colonel Wilson said in the note, that he had seen the Governor respecting the charge [this refers to the charge ineffectually brought by Mr. Cavanagh against Watt],—that it arose from some vindictive spleen on the part of Cavanagh,—and that it (the charge) would not be entertained!" "Watt was then in the Gazette office, and a prisoner of the crown."
In answer to questions put to him by Colonel Wilson, Dr. Neilson further stated that the note shown to him by Watt as having come from the Colonel, was about the size of a half sheet of post paper. It was not a memorandum made on the corner of a sheet of paper. He thought it began with "sir."
Colonel Wilson (one of the police magistrates then sitting on the bench) being next sworn, stated, that "if Watt ever said he was a particular friend of his, he said what was not true. If he stated he had ever received a note from him, such as had been described by Dr. Neilson, it was a lie. But he thought it necessary to state, that he remembered having received a communication from Watt; that he made a memorandum upon a letter of his, upon a turned-down corner, which he returned to the prisoner Watt open. He received letters from all sorts of persons; and where an answer was required, he usually gave one. He sent it by a constable; it would pass through many hands before it got to him. Was quite sure he never wrote to Watt respecting a woman. Could hardly then bring it to his recollection what was the object of the prisoner's application, but believed his answer was, that it was a case he knew nothing about, or something to that effect. It was exactly such an answer as he would make to-morrow, to any one who addressed him in a respectful manner. Watt must have been guilty of forgery, if he produced such a letter as Dr. Neilson had described, and showed it as his."
Here was a sufficiently flat and peremptory denial of Colonel Wilson having ever written such as letter as that which the prisoner had shown, and which Colonel Wilson pronounced must have been a forgery!
Colonel Wilson, however, on being further interrogated by Mr. Lamb, one of the unpaid magistrates sitting on the bench, went on to state, that he "thought the governor's name was mentioned [in the memorandum]. He thought it was in this way,—something respecting an application to the governor. He thought the governor's name was mentioned in the memorandum. It was nothing improper; nothing which he thought to be secret; could not recollect the precise form of the answer; he did not know that he was called upon to state his official communications with the governor, but this he knew, that the governor never authorized him to deal differently with Watt from any other prisoner. Watt wrote to him respecting something that had occurred one or two years before; he thought he (Colonel W.) asked the governor if there was any complaint against the prisoner. It was usual for him (Colonel W.) to speak to the governor upon different subjects. Had no communication with the governor upon the complaint in question. Did not recollect the complaint. He thought it was respecting something which had occurred one or two years before. He believed he said that no such communication had reached the governor,—not that the governor had heard any thing of it. If Watt spoke of any other letter than what he had written on in the corner, he had said what was false; but he might with truth show his own letter, in which he (Col. Wilson) had written. He denied that the subject of his letter had reference to any woman. He denied both the shape and the matter of the letter spoken of by Dr. Neilson!"
Edward O'Shaughnessy being now called as a witness, the prisoner said, "he would save the time of the court, if such witnesses were to be brought against him."
O'Shaughnessy being sworn, stated that, "he knew the prisoner at the bar. Remembered seeing a note purporting to be from Colonel Wilson. The prisoner showed it to him himself. It was relative to some charge that was to be brought against the prisoner. It stated that Colonel Wilson had seen the governor, and the charge was not to be entertained. It was respecting a female, who lived with Watt at the time! Was told that this charge was going to be brought." "The charge had made a good deal of noise, as likely to come on at the quarter sessions. To the best of his belief, the note was written on the inside page. The front page was written on. He thought it was in answer to a note which had been written by Watt."
Cross-examined by Colonel: "Had a clear recollection the note had reference to a woman."
By Watt.—"Saw the note in the Gazette office. Was not living there now. Remembered a young woman coming after Watt very often at the Gazette office. Did not know that a young woman had run away with some of his clothes."
Watt now said, "he would plead guilty to all the charges, if that was the nature of the evidence to be brought against him. Some of the occurrences which they were raking up took place three years back."
Watt, however, was advised to retract his plea, and the court adjourned till Thursday.
On Thursday, the court having been formed, and the prisoner placed at the bar, and cautioned not to interrupt the proceedings,
The Colonel addressed his brother magistrates:—"He would like to state the result of his taxing further his recollection and memory respecting the letter. It would enable him to add something to his testimony, which, in its present state, he considered incomplete."
Colonel Wilson, having sworn himself, then said, "the letter alluded to yesterday came to him on the bench at quarter sessions. He had been previously applied to by Watt, to represent his case to the governor. It was respecting a charge of some intrigue, or cohabitation; was not sure which. He mentioned it to the governor. His (Colonel Wilson's) impression was, that the charges were not such as ought to come before the bench. His excellency was pleased to say, he agreed with him! He had made every enquiry, and found that no complaint had been made there. The request was made in the usual way, that he would intercede for Watt! It was Watt himself that made the request, but whether by letter, or petition, he did not now recollect. Did not know whether it was an apprehended charge, or one that had been preferred, nor whether it was a complaint to him, or to the governor."
After the court had been again opened on Friday,
Mr. Lamb said, "If the bench would permit him, he wished to put two or three questions to Colonel Wilson."
This being assented to,
Colonel Wilson was sworn and interrogated. "He received the letter from Watt, whilst sitting at quarter sessions. The letter was answered, he thought, in the usual way; but whether on the corner of the letter, or on the other side, he could not say. He thought it might be one or two days after he saw the governor that the answer was returned. When he saw the governor, he spoke of Watt as he would of any other prisoner. He told him (the governor) it had reference to some disorderly conduct, which had occurred two or three years before! There had been a previous application from Watt himself. He (Colonel Wilson) thought that if a statement was made to a magistrate of disorderly conduct, that magistrate was bound to entertain it; and (if a crime) even if it had occurred twenty years before, it ought to be entertained. But he thought if charges of immorality of two or three years' standing were to be investigated, they would require a much larger bench of magistrates than they had at present. Could not recollect how many months ago it was that the application was made, but knew it had reference to a transaction of two or three years' standing. The application was couched in language superior to what he was in the habit of receiving. Did not know prisoner was an author. Did not know then that he was."
Mr. Lamb (addressing Colonel Wilson) said, "An impression was entertained that through his (Colonel Wilson's) having so applied to the governor, a charge which was then about to be brought forward against the prisoner was abandoned."
Colonel Wilson.—"If it had been sworn that he mentioned in his note that the charge was malicious, and that it would not be entertained, it was false. He would not entertain any charge of three or four years' standing. That was his answer. The reason why he gave the explanation yesterday was to make his evidence more complete."
Examined by the complainant.—"The letter said something about a complaint; but he did not know what it was. Did not recollect any such charge being made either before or since. He knew nothing of the man, except seeing him upon business respecting the assigned servants belonging to the Gazette office. Prisoner never visited him at his private residence."
The complainant.—"You say he was never at your private residence?"
Colonel Wilson.—"He was ONCE brought by a constable!"
The complainant.—"He was in custody, I presume?"
Colonel Wilson.—"I do not know that he was in custody, exactly. I sent a constable for him."
The complainant.—"You sent a constable—merely as a messenger, I presume?"
Colonel Wilson.—"As a messenger."
The complainant.—"Then, in fact, he was not in custody! In point of fact, you sent a constable to say you wanted to see him, in the same way as you would send to any body else."
Colonel Wilson.—"I sent for him in the same way I would send for any other prisoner of the crown."
Examination continued.—"It was on the same day that Major Mudie had told him prisoner had been boasting of being upon intimate terms with him. Had no hint then given of any such charge being about to be brought."
The complainant.—"Then this matter was decided by you upon the prisoner's own statement, merely?"
Colonel Wilson.—"I told the prisoner that if the case was such as he described, I would not entertain it!"
The complainant.—"Then you took it for granted his statement was correct?"
Colonel Wilson.—"I did not take it for granted the prisoner's statement was correct."
The complainant.—"You said you had been with the governor, and the charge would not be entertained!"
Colonel Wilson.—"I did.—I did not then know he was at the Gazette office. I will repeat, that I am not the friend, nor enemy, of that man (pointing to the prisoner.)"
O'Shaughnessy was again called and sworn, and deposed that "about twelve months ago, a female was in the habit of coming to the Gazette office, and of sleeping there with the prisoner. She had sometimes stopped to breakfast. This was before the communication from Colonel Wilson to the prisoner. He believed this to be the identical woman alluded to in the correspondence."
Robert Popple, assigned to the Gazette office. "Knew the prisoner: used to attend upon him. A woman used to come to the office. Her name was Mary. Remembers O'Shaughnessy refusing to breakfast with Watt, on account of Mary being there. Mary used to visit Watt sometimes, both on Sundays and during the week. She came one night and wanted to see Watt; he was not in then, but she said she must see him. Did not know then that she was a prisoner of the crown. He left Watt and her together in his (Popples) room; when he returned he found they had left. He enquired of Mr. Jelf where they had gone. Jelf said, he supposed to Watt's own room. Had repeatedly seen this female with Watt in the Gazette office, as late as eleven o'clock at night, and also at breakfast in the mornings. She was well dressed, and wore a veil and parasol."
There were other witnesses as to the cohabitation of the prisoner with the same female, in Kent-street, and as to her being a runaway convict. Amongst these witnesses was:
George Jelf (reporter for the Sydney Gazette), who deposed that "He once paid a visit to Watt in Sydney; was living then with Mr. Cox. Watt was then living with Pegg. Slept there that night. There was a great row; was sleeping in Macintosh's room. Got up and dressed himself, and told Pegg he was sorry there should be any occasion for constables to come whilst he was there. Knew Mary Chapman well. Saw her on the occasion of his visit. That was not the first time that he saw her. The first time he saw her was at Morris's, in presence of Watt, who then said Chapman was his (Watt's) better half. Morris lived on the Brickfield Hill. Watt was lodging there. Only visited Watt once at Morris's. Had some refreshment. Chapman served it up, and partook of it with them. She then seemed prominent in the family way. The next time he saw Chapman was in October of last year. Remembers, while living at the Gazette office, Chapman visited Watt two or three times. She had some meals with them in the front room. Remembers hearing at that time there was a complaint about to be made respecting Watt and Chapman. Had some consultation with Watt about it. Watt showed him a letter respecting it."
Watt objected to this evidence.
The complainant appealed to the bench whether it was not perfectly regular.
Mr. Lamb said he thought it was competent for them to have the question answered.
Colonel Wilson asked, if he would swear that he had seen several letters written by him to Watt?
This question was objected to by the bench.
Colonel Wilson.—"If the witness swears that I have written several letters to Watt, let it be taken down."
Mr. Stewart "objected to any question being taken down, which did not apply to Watt."
Colonel Wilson "wished all the evidence to be taken down which made against himself. He had not the least objection to be then put upon his trial."
Jelf continued,—"To the best of his recollection, the letter which he saw, went on to say, that Colonel Wilson had seen the governor, and that the charge would not be entertained."
Colonel Wilson—"What charge?"
Jelf—"A charge concerning Watt and a woman, which was talked about generally. It was about the time Mr. Cavanagh left, sometime last January."
Colonel Wilson observed, "he did not call it a letter. Witness might call it what he pleased."
Jelf.—"It was from the letter he saw in January, that he understood the charge spoken of before would not be entertained. He had thought for some time there might be a disturbance about it; and for two or three months did not consider Watt out of danger. The letter he alluded to was on the third page of a note, which had been sent by Watt to Colonel Wilson. Did not read Watt's note to the colonel; but understood from what had been talked of in the office, it had reference to the woman Chapman. Never saw any other correspondence from Colonel Wilson to Watt. That was the only instance."
By Mr. Lamb.—"The answer in the note was about Mary Chapman, the woman whom he had seen at various times with Watt." "At Morris's, no person but Mary brought in refreshments. In the presence of Watt, Mrs. Morris called her Mrs. Watt."
Mr. Jilks, chief constable, stated "that he knew Watt; but had not supposed him to be a ticket-of-leave man, as he had never attended the general musters of his fellows."
On Monday, September 7, the court having again resumed,
Mr. Lamb, addressing Colonel Wilson, said, "he did not consider that the explanation given by him (Colonel Wilson) respecting the transaction which gave occasion for his writing a note to Watt, was sufficiently clear, and thought it would be better for Colonel Wilson to state the particulars of the charge which was at that time to have been brought against the prisoner."
Colonel Wilson said, "he did not recollect any charge, further than that Watt himself had stated he apprehended a complaint was about to be made against him, by some servant who had been dismissed from the Gazette office."
Mr. Windeyer "objected to such a course of proceeding."
Watt said, that "such evidence could not be received, the case for the prosecution having been closed on Friday."
Mr. Lamb "considered that at such a stage of the proceedings, it as fully competent for him to move that the Colonel should be sworn, to explain former evidence."
The bench decided that Colonel Wilson should be sworn.
Mr. Lamb said, "he wished to know, from Colonel Wilson, that, as he had believed the transaction was then of two or three years' standing, from whom he derived that impression?"
Colonel Wilson (being sworn), said he received the information from Watt himself! The nature of the communication (from Watt) was such as to impress him with the belief that the case had been got up by discharged servants from the Gazette office; and upon that ground, he declined to hear it! His impression was, the charge was too slight to be entertained! It had been said that he (Colonel Wilson) consulted the governor; but he denied consulting the governor as to the mode of proceeding. It was through what the prisoner told him, he had shaped his course."
Watt said, "Colonel Wilson might have spoken to the governor, without having received any communication from him."
Colonel Wilson to Watt.—"I mentioned it to the governor, because you had so stated it! And my impression then was, that you stated it occurred two or three years before! But I cannot state exactly the precise words you used."
The complainant.—"Pray, Colonel Wilson, is it customary for you, sir, as the principal police magistrate, to anticipate the result of complaints coming against convicts, and to decide upon them upon the representations of the parties charged, and to take the opinion of his excellency the governor whether they are complaints fit to be entertained?"
Colonel Wilson.—"Why,—I can't say I exactly consulted the governor.—The impression on my mind is, that—that I,—merely on leaving the room, asked his excellency if he had heard of such a complaint. His excellency said, he thought it ought not to be entertained."
To the preceding extracts from the voluminous minutes of this summary proceeding it is proper to add the following document, being an affidavit sworn in March of the present year, by Dr. Neilson, the first witness whose evidence has been noticed above:—
"Sydney, March 28th, 1836.
"Cumberland to wit.
"John Neilson, surgeon, residing in Hunter-street, Sydney, maketh oath, and says, that he frequently attended the people of the Gazette office in his professional capacity, by the orders of William Watt, holding a ticket of leave, and who, this deponent believes, managed the establishment of that newspaper office, the Sydney Gazette; this deponent further saith, that he has heard the said William Watt declare and boast of having private interviews with his Excellency the Major-General Bourke,—and has seen a communication from the chief police magistrate, Henry Croasdale Wilson, Esq., stating that he had seen the governor, and would not entertain some charge about to be preferred by one Cavanagh: this deponent further states, that he heard the said William Watt declare that if Major Mudie was the means of sending him to Port Macquarie, he would blow his brains out.
(Signed) "JOHN NEILSON.
"Sworn before me this twenty-ninth day of March, 1836.
(Signed) "RICHARD JONES, J. P."
Mr. Dudley Perceval himself might be asked, if it is possible to conceive anything more profligate and disgusting than the picture presented to him by the preceding extracts and documents.
On dispassionately reviewing the whole affair, it is difficult to decide whether the beastly immorality of Watt, or the corrupt and shameless baseness of the colonial government, and some of its functionaries, is the more revolting and disgraceful! Mr. Cavanagh's charge against Watt, it is proved, was stifled by the authority of the governor himself, who had been spoken to about it, at Watt's request, by Colonel Wilson, as Colonel Wilson himself admits, whose own duty it was, as the chief police magistrate of Sydney, to have punished Watt long before, and to have deprived him of his ticket-of-leave for not attending the general musters of the district, as well as for harbouring and cohabiting with a female runaway convict, and even for daring to pollute the public press of the colony by his atrocious writings.
And what a contemptible figure does Colonel Wilson cut during the examination! At first, when he thought there was no other witness than Dr. Neilson, he swears boldly that he never wrote any letter to Watt at all, but only made some memorandum on some letter of Watt's, about something he had forgotten,—but certainly, not about any woman, and not about any thing that had passed beween him and the governor! If Watt had ever said he had received such a letter from him, "it was a lie" and if he had produced any such letter as purporting to be from him, "it was a forgery!"
Finding, however, that there were more witnesses than one, Colonel Wilson, on the following day, thinks it convenient to remember that the correspondence with Watt was about "some intrigue," or "cohabitation," and also that "he had mentioned it to the governor," and had told him that "the charges were not such as ought to come before the bench," and that "his excellency was pleased to say he agreed with him!" And then, on the third day of the investigation, Colonel Wilson's memory is so much refreshed, that he admits that the letter of Watt was answered by him, he though, "in the usual way," but "whether on the corner of the letter, or on the other side, he conld not say!" And at last it all comes fairly out that he really did write to Watt, apprizing him that he had spoken to the governor in his behalf, and that the charges against him were "not to be entertained!"
But then, Colonel Wilson plumply swore that he "knew the charge had reference to a transaction of two or three years' standing;" and that was his reason for getting the governor to agree with him that the charge should not be entertained; yet, when he is further questioned by Mr. Lamb about how he knew that the charge had reference to something that had occurred two or three years before, he admits that he knew nothing about it except what Watt himself had told him! Turning to Watt, he says, with the most innocent naivete, "I mentioned it to the governor, because you had so stated it! and my impression then was that you stated it occurred two or three years before!"
Mr. Cavanagh, in his meritorious and persevering attempts to get his charge against Watt heard, uniformly alleged that he was prepared to prove, even by unwilling witnesses, that Watt was, at the time of the charge being preferred, cohabiting with a female runaway convict.
But it mattered not what Mr. Cavanagh offered to prove. Watt told his friend Colonel Wilson that it was "an intrigue" in which he had been concerned two or three years ago; and upon this high and unquestionable authority Colonel Wilson told the governor that it was an old story, maliciously got up by the prisoner's enemies (poor fellow!) and upon the same authority Colonel Wilson swore, in giving his unwilling testimony, that he knew it was an old story, about a transaction that had occurred two or three years ago!
His excellency the governor, too, who had so amiably concurred in Colonel Wilson's opinion that old stories should not be raked up against his own champion Watt, seems to have forgotten that argument when Mr. Cavanagh extorted from him a personal reply to his application; for the governor had by this time discovered, not that it was an old story, but simply that it was an affair between Mr. Cavanagh and Watt alone, with which neither the public, nor he, the governor, had anything to do!
But, in casting a glance at the pitiful figure of the governor himself in this disgraceful affair, the writhings of the wretched Colonel must not be lost sight of!
He swears positively that the prisoner was never at his private residence.
On perceiving, however, that the author, one of his interrogators, evidently knew something, somehow or other, of at least one interview at the private residence, the colonel suddenly recollects that the prisoner was once there, but then he was brought there by a constable!
"Brought by a constable!" exclaims the astonished querist, "was he in custody then?"
"No! O dear, no!" replies the colonel, "not in custody, exactly!"
"What then," asks the merciless interrogator, "did you send a constable to say you wished to see the prisoner,—Did you send a constable for him, as an ordinary messenger?"
"Yes, yes," answers the colonel, "I sent the constable, as a messenger!"
And this is the explanation of what the colonel had just sworn of the prisoner having been brought to his private residence by a constable, and after he had just positively sworn that the prisoner had never been at his private residence at all!!
Colonel Wilson, further, positively swore, that he did not know the prisoner was at the Gazette office, or was an author, when he spoke to the governor about him!
Did not know he was at the Gazette office, and an author! Why, the whole colony, long before that time, was in a ferment in consequence of this very prisoner's connection with the Gazette, and in consequence of his infamous writings! The author will not quote the colonel's own words to tell him this statement of his upon his oath was "a lie!" but he refers to the colonel's own evidence upon his oath, in another part of the proceedings, in which the colonel himself swears that he only knew the prisoner by seeing him upon business relative to the assigned servants of the Gazette office, so that, in fact, Colonel Wilson himself admits that he only knew the prisoner as being the manager of that establishment!
It is impossible to read all this, and not to feel, that the bench of magistrates did not do their duty, in not committing Colonel Wilson, although he was one of their own body, for gross prevarication and perjury.
But Dr. Neilson further affirms, in his affidavit of the 28th March, 1836, that he "heard the said William Watt declare, that if Major Mudie was the means of sending him to Port Macquarie, he would blow his brains out!"
This has reference to the summary investigation of August and September, 1835.
Did Dr. Neilson keep his knowledge of this atrocious threat to himself, until March, 1836?
By no means. Dr. Neilson immediately apprized the author of the threat, who reported it to Colonel Wilson, as the chief police magistrate of Sydney.
Even Colonel Wilson officially reported this matter to Mr. McLeay, the colonial secretary, for the information of the governor.
Mr. Mc Leay deemed the threat so important, or so audacious, that he sent an official communication to the governor respecting it, at Parramatta!
And what did the governor do? Why, nothing! This was no old story. Prescription could not be pleaded for this threatened assassination, by one of the greatest ruffians ever sent to the colony,—a threat, too, intended to deter a prosecutor and a justice of the peace from continuing his appeal to the law. But the governor treated it as an affair between the prosecutor and Mister Watt, with which neither the public, nor he (the governor) had anything to do; for the governor magnanimously imitated the conduct of the prosecutor, by treating the audacious and murderous threat only with contempt!
It has been stated that the whole proceeding against Watt fell to the ground, through the sheer disgust of the territorial magistrates, and their hopelessness of seeing justice administered upon him, and that they therefore left the disposal of Watt to the governor, in the hope, certainly, that, after the investigation that had taken place, the governor could not avoid dealing with Watt according to his deserts.
No wonder the territorial magistrates were driven to this acquiescence; for, after the ten days already consumed by the summary process, Watt announced his determination to call and examine five hundred witnesses (of his own stamp of course) in his favour,—which he assuredly would have done; and, the sapient Mr. Justice Windeyer, the witty and ingenious inventor of "the lie of vanity," declared his intention to sit and hear them, during whatever number of months the summary process might be prolonged!!!
The case, therefore, went to the governor, who never pronounced any judgment upon it, nor punished the prisoner! The governor, however, had previously received a representation from Judge Burton, before whom Watt had just been tried and acquitted by a convict jury, in the supreme court. In this representation, he reported Watt as an improper and dangerous character.
The governor, then, must do something with Watt! Yes, he did make a show of doing something; but, he did not punish Watt! Instead of punishing him, he merely changed his ticket-of-leave from the district of Sydney to the district of Port Macquarie, where Watt could still write for the Gazette, and perform the duties of the office of champion of the press for the humane and amiable governor!
Watt accordingly embarked in the steam-boat for Port Macquarie, taking with him his two saddle horses, and, along with his chargers, a suitable retinue of servants! At Macquarie he took possession of an estate belonging to Mrs. Ann Howe, the widow proprietrix of the Sydney Gazette.
Mrs. Ann Howe, with another suitable retinue of servants, shortly followed her editor-in-chief to his place of honourable exile!
With the blushing consent of the blooming widow, whose connubial exploits, according to common fame in Sydney, partook so much of the heroical, that few men but a "bold buccaneer" could have had the courage to aspire to her hand, an application was soon afterwards made to his excellency Governor Bourke, for his gracious permission to have the ordinance of marriage duly solemnized between the talented felon Mr. William Watt and the rich and engaging widow, Mrs. Ann Howe!
This application was opposed by the author,—then an ex-magistrate, on the ground that Watt had been sent to the colony as a married man, and that he was so entered in the books, as the convict William Watt, a married man, having a wife and one child!
Watt, fertile in expedients where so trifling a matter as an oath or two is concerned, now got some of his old chums to swear that they had reason to believe that he (Watt) was not a married man! To be sure, Watt himself told them, and he no doubt told Mrs. Ann Howe, that he was not a married man! and it must be admitted that they had as good a right to know, upon such authority, that he was not a married man, as the good-natured and credulous Colonel Wilson had a right to know, or the same authority, that Mr. Cavanagh's charges against Watt had reference to an old story of two or three years' standing!
But the reader, considering how serious a thing bigamy is, morally, ecclesiastically, legally, and politically, no doubt anticipates that both Watt's allegations and the "reasons to believe" of his friends, went, in this case at least, for nothing!
It must be admitted, certainly, that the colonial authorities are usually sufficiently rigid in requiring proofs of the death of wives or husbands left in England, before permission is granted to transported felons to marry again in the colony. Instead of "reasons to believe," documents in proof are invariably required to be procured from home. And even after all these precautions, if the slightest reason to disbelieve still exists, permission to marry again is withheld,—not through harshness or caprice, but because it has occurred, that documents of this kind have been forged in the colony, have then been sent to England, and have again been returned to the colony, with all the appearance of genuineness and authenticity which the English post-mark could confer upon the forgeries.
The reader will have a still stronger idea now of Watt's influence over Governor Bourke, when he is told that all these obstacles at once gave way before his application for leave to marry Mrs. Howe.
Surely the authorities in London, who sent him out to the colony, had "reasons to believe" that he was a married man, before they so marked him in the indents, and so represented him to the governor to whom he was transmitted for punishment; and surely their "reasons to believe" the affirmative were worth a thousand even of positive oaths in favour of the negative! Besides, there was Watt's own signature in support of his being actually a married man.
When he was apprehended in Edinburgh, he was living under the name of Captain Williams. The female, whose journey from London to Edinburgh had enabled him to be traced, was seen to receive a letter from the post-office there. That letter, in Watt's hand-writing, was afterwards found upon her. It contained instructions for her to come to him at the lodgings he occupied, and charged her to be careful that she was not watched. The letter concluded thus, "Your affectionate husband, Williams." By the law of Scotland, the mere acknowledgment of a marriage makes a marriage. Whether this female, therefore, was or was not his wife previously, he, by his own hand-writing, as there was proof of the previous cohabitation, made her his wife,—his wife both in fact and in law,—and such marriages, so established by the law of Scotland, are held to be valid in England, and in all the possessions and dependencies of the British Crown. Many persons living recollect the famous case of an English gentleman of rank and Miss Gordon, in which the marriage was proved by the letters of the gentleman.
All this was duly represented to Governor Bourke, who was also furnished with a newspaper containing an account of Watt's trial at the Old Bailey, and containing a copy of the very letter (produced on the trial) in which Watt acknowledged himself to be a married man!
No matter! The good will and pleasure and the interests of Mr. Editor Watt were concerned; and therefore, neither law nor fact, nor reason nor religion, were regarded.
The governor never condescended to state whether or not he "had reasons to believe" that Watt was not a married man; but (perhaps thinking any previous marriage was an affair merely between Mr. Watt and the ladies, with which the public had nothing to do) he granted permission to consummate the felicity of Mr William Watt and Mrs. Anne How; and the happy pair were married accordingly!
Watt, supported by the governor, esteemed by Commissioner Therry, complimented by Mr. Justice Windeyer and Colonel Wilson, admired by his lady, and applauded by the felonry, is now a real gentleman, living upon his own estate, and the proprietor as well as director of the Sydney Gazette.
The fellow's history is quite a romance! Guilty of crimes in England, for one of which he was sentenced to fourteen years' transportation, he was, on his arrival in the colony, instead of being really punished, sent to Wellington Valley, a sort of Botany Bay elysium for the reception of gentlemen convicts. There he was employed by the district superintendant of convicts, Mr. Maxwell, to keep his books for him, and act as his factotum, as if there were not men of integrity in the colony better deserving of and equally or more competent to such an employment.
Mr. Maxwell, an easy good-natured Scotchman, knowing nothing of the ways of the world, and having never, indeed, mixed in intelligent society, was soon so far duped by Watt, that he recommended him,—a criminal, who, in the opinion of the English judge who had tried him, deserved a punishment of fourteen years,—that in a very short time Mr. Maxwell recommended this same criminal, who had as yet undergone no punishment at all, as a fit person to receive the indulgence of a ticket-of-leave,—that is, instead of punishment, to be empowered to do as well as he could for himself, and indeed to be placed in this respect on a footing with the free emigrants, with this advantage, that his expensive passage out had been paid by the British people as a reward for his having so often violated their laws!
The ticket-of-leave was granted to him, as a matter of course!
He was then employed and well paid for bringing up the accounts of some of the public offices in Sydney, including that of the archdeacon's court,—again as if there were no honest men in the colony either willing to perform or capable of performing such duties!
He tried his hand at writing for the press, and was, when his official duties were concluded, employed on the newspapers!
Although he utterly disregarded and openly violated the laws of the colony under which he held the unmerited indulgence of a ticket-of-leave, yet he took care, while he was disseminating the most dangerous doctrines amongst the convicts and emancipated convicts, and was calumniating and libelling the territorial magistrates and respectable settlers,—yet he took care, while he was so engaged, to eulogise the governor, and all the acts of his government; and the governor, His Excellency Major General Bourke,—was and is so prone to flattery as to accept it greedily even from hands upon which he himself should have fixed the manacles of an iron-gang!
What followed has been faithfully related to the reader,—with so little disposition to exaggerate, even, that it has till now been omitted to mention, that, through the medium of the Sydney Gazette, and through his secret connection with functionaries of the government, Watt actually ruled the colony. He has been heard to boast that it was by his means, and through his influence, that no less than thirty-three of the independent territorial magistrates were at one swoop omitted from the commission of the peace, because they had dared to attempt preserving themselves and the colony from being literally convict-ridden!
Be this as it may, these pages have made it evident that a most corrupt, profligate, criminal, disgraceful, and dangerous correspondence and conspiracy existed between this ruffian and functionaries of the colonial government!
And, it is as undeniable as it is notorious, that Governor Bourke has, for Watt's sake,—for the sake of screening him from the operation of the law and from punishment, suffered the whole colony to be thrown into an unprecedented state of ferment, from the excitement of which it has not yet begun to subside!
How often has Mr. Dudley Perceval, while reading the foregoing simple detail of facts, indulged in "bursts of hearty laughter," at the ludicrousness of the charges alleged against the government of his gallant relative, his Excellency General Bourke?
Peals of appalling laughter are sometimes heard, indeed, to ring through the cell of the maniac,—but the scorching glow of conscious shame,—and the groan of the convict's agony,—are more appropriate to the feelings of men thus indelibly stamped with the guilt of public delinquency, and held up to derision, contempt, and scorn, for their mental incapacity and folly.
Let the public of England, and particularly her merchants and other persons employing confidential servants, ponder upon the picture which has just been presented to them. They see the rewards likely to be reaped by servants who rob them. Let them say whether New South Wales is properly governed as a penal settlement,—is so governed as that the fate of the criminals sent there for puuishment, affords the remotest chance of operating as a means for the prevention of crime in England!
THE British public can have no idea of the inequalities of the punishment which attend the sentence of transportation from this country.
These inequalities are not, as it would be reasonable to suppose, proportioned to the different degrees of turpitude in the crimes for which the same sentence has originally been passed, nor even according to the former characters of the culprits. Quite the contrary.
A common labourer, or industrious mechanic, whom want of work and distress may have driven into the temporary commission of crime, is as liable and as likely to be transported, as the most expert thief and experienced depredator in London.
Every convict ship takes out to the colony men of the above description, as well as desperate and practised burglars, habitual and experienced receivers of stolen goods, artful and designing swindlers, skilful forgers robbers of banks and mail coaches, and a sprinkling of all sorts of the villains denominated the swell mob.
On the arrival of this motley assemblage of criminals at the port of Sydney, lists of the convicts are made out,—applications for their assignment are put in by those of the settlers who are entided to convict servants,—and in the course of about eight days the new comers are landed and assigned.
The simple labourers and ordinary mechanics, having nothing to recommend them but their former industry,—the misfortunes which drove them to crime,—and perhaps a remaining disposition still to behave well, are sure to undergo the full measure of their sentence.
They are at once assigned to agricultural settlers or other suitable masters; and, in proportion as they are well-behaved and industrious, they have not unfrequently the less chance of obtaining either tickets-of-leave or conditional pardons. They are of too ordinary a character and too common a class either to attract the notice or to excite the sympathy of the convict-loving philanthropists of Sydney.
As for the masters to whom they are assigned, however humane and respectable they may be, it is of course natural that they should look for labour from men both able to labour, and sent to the colony for the purpose of being punished by labour.
To labour, therefore, they are put.
In proportion as they are laborious, it is not the interest of their assignee masters to facilitate their obtaining tickets-of-leave; nor are the convicts of this description likely themselves to obtain indulgences of that kind by stratagem and deceit.
They usually, therefore, as has been stated, undergo the full measure of their sentences; or, if after the term of years prescribed as probationary, they at length obtain tickets-of-leave, they are obliged to continue still at labour somewhere, as a means of providing for their subsistence.
On the other hand, those of the convicts who have something of the "look of a gentleman,"—clerks, for example, such as Watt, who have robbed masters by whom they were confidentally trusted and liberally paid,—robbed them of large sums, not through want or necessity, but for the sake of gratifying their profligate tastes and depraved desires,—or swindlers who have for years preyed upon the public by obtaining all kinds of goods and money by every species of false pretences,—if they be gentlemen convicts, they are treated as gentlemen, and are either removed to the elysium of Port Macquarie, or assigned to masters whose employments for them and their accompanying treatment are redolent of ease and comfort instead of punishment.
By some plausible tale they excite sympathy; and if for some time they take the trouble of acting a part, they soon get recommended for tickets-of-leave or conditional pardons, which, if they do not serve as passports to employment in the government offices, are sure to be followed by their obtaining comfortable berths of some kind, or getting into some way of dealing, by means of which, with a very small share of diligence and attention, and a large stock of roguery, they are sure to get on well,—to become rich and luxurious citizens,—and to hold up their heads with the best and proudest in the colony.
Indeed, the more knowing ones,—that is, the very worst characters amongst the convicts,—seldom undergo any real punishment at all.
Whether thieves, burglars, receivers, forgers, swindlers, or mail coach robbers, if they are "well up to the trick," they bring out with them letters to some of the "old hands" in the colony, so as to ensure their being applied for as assigned servants by persons of the right sort.
If they have secured a portion of the plunder they had acquired in England, they easily make themselves comfortable; for in that case they enter into copartnery, under the rose, with some one or other of the emancipated felonry, who, being enabled by the funds of their convict partners to take houses or enter into business, apply to have their partners assigned to them as servants, and the gentlemen convicts fall upon a bed of roses at once!
If a wife has been left in England with the charge of the spoil, she follows her husband in the first ship;—on her arrival she takes a house, and then petitions the Governor to have her husband,—the father of her children,—assigned to her as her servant,—in which petition her husband of course joins. If she has no children of her own, three or four brats are easily borrowed in Sydney for the purpose of stage effect; and off she sets for government-house, where the sight of the afflicted lady and her little ones of course has a wonderful influence over the sympathetic Governor Bourke.
In short, having brought with her a supply of the "swag," as the convicts call their ill-gotten cash, a wife seldom fails of having her husband assigned to her, in which case the transported felon finds himself his own master, in possession of all the present wealth his past nefarious courses may have procured for him,—and on the road to future fortune.
For the very worst characters who are transported, therefore, it appears that New South Wales is not any punishment at all, or at least that it is easy for them, owing to the careless laxity and childish leniency of the colonial authorities, to evade the punishment which their crimes have merited.
One case, characteristic of the facility with which Governor Bourke is practised upon by any scoundrel who seeks his favour, deserves to be recorded.
A London cooper, named Robinson, or Robertson, was transported for some felony. The wife of this fellow followed with the swag, but was unsuccessful in her first application to have her husband assigned to her.
This was a sad blow, and the cooper seemed to have nothing for it but submission to the fate to which the law had doomed him.
But being an ingenious fellow, and hearing that vanity was the governor's weak side, he wrote a letter to his excellency, telling him he had discovered a new species of hard-wood, admirably adapted to the making of casks, and that he had called it Bourke-wood!
The clever cooper by this device fairly caught the governor in his hoop. He was assigned to his wife; and he now struts through the streets of Sydney with spurs to his boots six inches long,—while Bourke-wood will be the subject of a standing joke as long as casks are made in the colony!
To such a pitch has this system arrived, that the streets of Sydney are literally almost as crowded with carriages of every class, as Cheapside or the Strand in London,—carriages not only conveying, but being the property of emancipists and convicts assigned to their wives.
A London thief of any notoriety, after having been a short time in Sydney, would scorn to place himself or his assignee wife in so mean a vehicle as a gig:—nothing less than a carriage and pair is commensurate with the rank in felonry to which they have arisen in Australia.
A better idea of the effect of all this upon a stranger cannot be conveyed than by the following anecdote of an officer who visited New South Wales on leave of absence from his regiment in India.
Having gone with a friend, in a gig, from Sydney to the races at Parramatta, they were passed on the road by many genteel equipages, including close carriages, curricles, and landaus.
In answer to the stranger's questions, his companion informed him that one brilliant set-out belonged to Sam such-a-one, who had been a convict, but was now a free man and a man of fortune,—that another was the property of a convict who kept a draper's shop in Sydney, but was assigned to his wife, who had brought out with her a large sum of money,—that a third belonged to a ticket-of-leave man, who had obtained that indulgence almost immediately after his arrival in the colony;—and so on.
At the race-course, where "all the beauty and fashion" of felonry was assembled, the stranger's astonishment was complete at the number of instances in which he obtained similar answers.
After some graver reflections on so singular an exhibition, he ironically remarked that he thought he had better return as soon as possible to India, for the purpose of there committing some crime that should subject him to a short sentence of transportation; for it really seemed to him that that was the best way of getting on in the world!
Many readers may remember the case of Luke Dillon, a young Irishman, of very respectable connections, who was, some years ago, transported for life, from Dublin.
The offence of Dillon was one of such peculiar atrocity, that it is difficult to account for the sentence having been commuted from that of death to transportation for life, except by attributing it to the great influence and interest exerted for him by his friends.
He had for some time paid his addresses, with professions of honour, to a beautiful and accomplished young lady, also of very respectable connections, by whom he was received and treated as her acknowledged lover. He had no other view, however, than that of adding this amiable and confiding female to others of her sex whom he had already made his victims;—and he was but too well practised in the arts of seduction and in the perpetration of crime for the gratification of his passions.
Having prepared his measures for the accomplishment of his present villainy, he took advantage of a shower of rain occurring one day, while he was walking with the young lady in Dublin, to prevail on his fair companion to take shelter with him in a house, from the rain.
In this house, the occupants of which he had previously prepared to forward his criminal purposes, he administered to the ill-fated girl a potion which reduced her to a state of insensibility, and then basely perpetrated the crime he had so long meditated.
The poor victim, besides being dishonoured, was so deeply injured in her health, by the united effects of the drug administered to her, and the mental anguish consequent upon Dillon's brutality, that she died a short time afterwards.
Dillon was tried for the crime; and, the indictment against him being proved, he was sentenced to be hanged.
The case excited universal public sympathy and universal horror of the ruffian, at the time,—so much so, that there was a general feeling of indignation at his not being executed in pursuance of his sentence.
On the arrival of this caitiff in the colony,—where it was certainly intended by the home government that he should be punished,—else why commute his sentence of death to transportation for life,—he, as a gentleman convict, was not punished at all! Having money in his pocket, he was allowed to walk about Sydney, at his own discretion, for several weeks, during which time he was even noticed as a friend and a gentleman by some of his countrymen holding high rank in the colony.
After this, he was sent to Port Macquarie, where, having sufficient funds, he indulged himself as he best pleased, and where, the circumstances of the country being considered, he was as much his own master as if he had been at any watering-place in England!
In as short a time as possible he received a conditional pardon, which makes a convict in every respect a free man, excepting only, that he cannot leave the colony.
He is now living luxuriously in Sydney, where he plays the part of a regular Bond Street lounger, or Australian exquisite, daily exhibiting himself in the streets,—a regular frequenter of the billiard rooms, the theatre, and other places of amusement.
It is but the other day since a seaman, rather advanced in years, and known to be not very sound in his intellect, was convicted at the Old Bailey of having administered a drug to a young female employed by his wife as a needlewoman.
There can be no doubt of the fellow's intent in giving the potion to the young woman; but his purpose, whatever it was, failed, and the meditated crime was not accomplished.
For the mere intent, however, or the misdemeanour, as it was called in the indictment, he was sentenced to two years' hard labour in the house of correction.
This was really a severe punishment, though not more severe than the fellow deserved.
But, when the severity of his punishment, for the mere attempt at committing a crime which Dillon had fully perpetrated under circumstances of the greatest aggravation and atrocity,—which utterly destroyed a young, innocent, and lovely female,—consigning her, with a tortured mind and a broken heart, to a premature grave,—when the old sailor's real punishment is compared with the pretended punishment of Luke Dillon, it is no wonder that the sentence of transportation, as appears by the following instance, amongst thousands of others, has in a great degree lost its terrors:—
"JACOBS' LADDER.—Crime, it is said, is decreasing in England. If punishment tend to the repression of crime, we fear the joy which this intelligence is calculated to inspire will be of short duration. One mode of punishment, at least—transportation to Botany Bay—has lost its terrors. Thanks to the governor, Botany Bay is no longer a penal settlement, but the land of promise—the El Dorado—of the dissolute, the idle, and the desperate. To the numerous candidates for this desirable retreat who have recently preferred their claims at the police-offices and the Old Bailey, is to be added the following aspirant.
"A young man was charged at the Mansion-house, on Monday last, with having snatched at the watch-chain of a passenger at the gate of that edifice and wrenched it from the ring. Upon being taken into custody, he said he committed the offence in order to be transported. He had made no attempt to escape, but accompanied the policeman into the justice-room with alacrity. Being asked by the magistrate whether he could not get out of the country by other means, he said that something in his bosom prompted him to take that course. He had drunk himself out of place, out of character, out of money, and out of friends; and the name he gave, Charles Jacobs, was a fictitious one; for his friends were respectable, and he was determined not to disgrace them. He was then remanded until Friday next, and walked quietly out of the room with the policeman; but the moment they got into the street he made a snatch at the chain and seals of a gentleman who was passing, and wrenched them from the ring of the watch. Upon being brought back into the justice-room he repeated his determination of being sent out of the country, and that, fearing the first case might prove to be too weak, he resolved to fortify it by another, that there might be no mistake.
"Cases of "Determined suicide" are frequently found in the public press; "Determined suicide" is, indeed, become a familiar phrase with reporters. "Determined candidates for Botany Bay" will probably soon become equally familiar. Mr. Jacobs has discovered a sure way to that colony, and all those who are ambitious of the honour will not doubt be induced to use "Jacobs' Ladder."—Weekly Post, Nov. 13, 1836.
The convicts, as may be readily supposed, are generally profligate, treacherous, dishonest, and mutinous. It is a fearful thing for an agricultural settler to be placed in the midst of from twenty to fifty such labourers and household servants,—prejudicially operating, by their atrocious example, their disgusting manners, and horrid language, upon his family,—and continually engaged, more or less, in plundering him and his neighbours. Even when divine service was performed at the establishment of the author, which he procured being done as often as circumstances would permit, many of his convict servants falsely excused their non-attendance on the plea of their being Roman Catholics. Their object was, to go upon predatory excursions while the family and the rest of the establishment were engaged in the ordinances of religion. This purpose, however, as soon as discovered, was defeated, by compelling all the real and pretended Roman Catholics to muster outside the building, and to remain there during the time of worship. Their conversion to Protestantism was miraculous, none of them withstanding this test act more than twice or thrice,—but all successively taking their places in the congregation.
From the lenity of the colonial government in the treatment of these ruffians, not only are they insubordinate and mutinous, but they are even full of high notions of their own dignity!
Masters have been reproved for speaking with too little respect to the gentry assigned to them as servants!
The language and oaths of the convicts are too horrid for repetition; but should an execration or two occasionally escape the lips of a master almost maddened by the misconduct of his convict labourers, he may expect a complaint to be preferred against him to the governor, and think himself fortunate if he escape without a court of inquiry being appointed to rake together all the slander and falsehood to which the malignity of his ruffians may give utterance.
General Darling, by an official notice, prohibited the convicts from directly addressing themselves, on any pretence, to the government, and confined them, in making their complaints, or other applications, to the course prescribed by law,—that is, to apply to the nearest bench of magistrates, by whom the applications were forwarded to the principal superintendant of convicts; and in all instances of deviation from this course, the complaints were transmitted by the government to the masters of the convicts, who were obliged to make a report upon the allegations of the complainers.
General Bourke, on the other hand, encourages the correspondence of convicts with himself and his functionaries, receives the secret accusations of any of the ruffians of the colony against their masters, and even comforts and advises runaways who repair to him for consolation!
So high-minded, indeed, under this childishly-foolish system, have the felon population become, that convicts of the very worst and lowest grade are quite indignant at being called convicts, and insolently deny the right of any one to treat them with disrespect.
An old man and a young fellow were once assigned to the author together. The aged man made his appearance first; and, on being asked for his companion, replied, "What! the young gentleman who came along with me! He is behind a little way. The young gentleman is foot-sore, and couldn't get on. He hasn't been accustomed to walk much, and it doesn't agree with him!" The "young gentleman" was a young London thief of the most depraved description, and used to entertain his fellow-servants, after his arrival, with accounts of his exploits, from his early childhood, when he was put into premises through windows, &c., and lay concealed till night, and then opened the doors to his gang. He boasted that he had been a regularly trained and educated thief. Though so young, he was indeed quite master of his profession; and, amongst his other accomplishments, could give imitations of many of the leading counsel, as well as of the judges, of London, in the trying of criminals.
The author, who never withheld from his convict servants any reasonable or proper indulgence, would not submit, nevertheless, either to their folly and caprices, or to their insolence and tyranny. He, as well as one other settler on the Hunter, not only kept his convicts in their proper place, and at their proper distance, and compelled them to wear the regular convict dress, but he had the dress of each branded with a number, and with his own name as the assignee master.
The laxity of the government, and of great numbers of the settlers, with regard to the dress of the convicts, is productive of very great evils. Being allowed to wear clothes which they have acquired by robberies, or with the fruits of robberies committed in the colony, they are, of course, not distinguishable from free men, a circumstance which facilitates their commission of new crimes. Every convict should, without exception, be compelled to wear a uniform convict dress, branded with a number and his master's name; and every ticket-of-leave man, without exception, should be forced to wear a badge, openly exposed, on pain of forfeiting his indulgence.
As to the treatment of gentlemen convicts, it is obvious to common sense, and to the ordinary feelings of justice, that they should be punished in the same way as the other felons transported to the colony. Or,
If there be any distinctions admitted as to the modes of treatment and punishment, it is quite clear that the distinctions should be proportioned, not to the finer coats, the more plausible manners, or the heavier purses of some of the criminals, but to the degree of good or bad character distinguishing each, and to the greater or less amount of turpitude in the crimes for which they severally received sentence of transportation.
Upon all convicts, without exception, the sentence of transportation should really be made to operate as a punishment; or the sentence, as a means of prevention of crime in England, must become altogether inoperative, if it has not become so already.
IF the male convicts are depraved and profligate, the female convicts are even still more so, notwithstanding the efforts of Mrs. Fry and the other amiable lady philanthropists who visit them in Newgate, and there attempt the hopeless task of their reform, by benevolent exhortations, and by furnishing them with religious tracts, and with little necessaries and comforts for their voyage to the colony.
Extraordinary as it may appear, it is nevertheless true, that the very women who have most attracted the attention of these excellent ladies (so that Mrs. Fry has specially mentioned them favourably) generally turn out the very worst characters.
Some of them, indeed, keep up the deception throughout the voyage, and even arrive in the colony with pretensions to religious character and pious attainments; but on their being assigned as servants, and dispersed amongst the settlers, they almost invariably show themselves to be the most vicious and abandoned of their sex.
The assignment of the female convicts, like that of the males, usually takes place eight or ten days after their arrival in Sydney; and, when the applicants have been supplied, the remaining females (if any) are forwarded to what is called the Factory, at Parramatta.
In that extensive establishment, capable of containing, and usually containing, many hundreds of female convicts, the females are divided into three classes; viz., a first class, consisting of female convicts who have never been assigned, and also of females who have been assigned, but who have been returned to the Factory without any charge or complaint having been alleged against them. The second class consists of females who have been in the third class, which must therefore be next described, in order that the nature of the second class may be understood. The third class, then, consists of women who have been assigned as servants, but who, in consequence of their bad dispositions, or insubordination, have been returned upon the hands of government; and also of female convicts who, having committed some offence not punishable with transportation, have been sentenced by magistrates to imprisonment in the Factory for periods of from one month, rarely, if ever, extending to more than twelve months. The second class consists of those of the third class who have undergone the periods of their sentences; and, after some further probation in the second class, they are again transferred to the first class, as being deemed fit for a new experiment of assigning them as servants.
The factory cannot properly be regarded as a place of punishment. The females are well fed, having, in addition to abundance of animal food, flour, bread, and vegetables, the indulgence of tea and sugar. They are not put to any labour; and though they are certainly and necessarily cut off from external intercourse, they have the range of an extensive garden, in which they are permitted to walk.
There is indeed some trifling difference as to the food given to the third class. With this exception, the factory at Parramatta is by no means an unpleasant asylum, in which the females pass their time in sufficient merriment, relating to each other their former histories,—their amours and debaucheries,—the thefts in which they have been concerned,—and the crimes for which they respectively received sentence of transportation!
So agreeable a retreat, indeed, is the factory, that it is quite a common thing for female assigned servants to demand of their masters and mistresses to send them there, and flatly, and with fearful oaths, to disobey orders, for the purpose of securing the accomplishment of their wish!
In the factory, too, there is a good chance of getting married; for the convict swains scattered amongst the settlers, when they obtain the consent of their masters, or choose, when they become free, to enter into the connubial state, usually apply for permission to go to the factory in quest of a fair helpmate, with the full knowledge that it is more likely to be for worse than for better that they make their election.
On the arrival of one of these at the abode of the recluses, the unmarried frail ones are drawn up in line for the inspection of the amorous and adventurous votary, who, fixing his eye on a vestal to his taste, with his finger beckons her to step forth from the rank. If, after a short conference, they are mutually agreeable, the two are married in due time and form. If, on the contrary, either the Macheath or the Polly prove distasteful to the other, the resolute amateur continues his inspection along the line, till he hits upon a Lucy more complying, or more suitable to his mind!
Not that either party is likely to be very fastidious on such occasions.
A young fellow who had just become free, and had got himself established on thirty acres of land, with a few pigs, &c., set off for the factory in search of a wife.
On his way, he had to pass the estate of the writer of this work. In conversation with the wife of the porter at the gate, he mentioned the object of his journey. The porter's wife advised him to pay his addresses to one of her master's convict female servants, whom she recommended as being both sober and industrious, whereby he would at once gain a good wife, and spare himself an additional journey of a hundred and forty miles.
At the request of this Celebs of Australia, the damsel was sent for, and the bargain struck on the instant, provided the necessary consent of the lady's assignee master could be obtained, which she herself undertook to solicit.
Entering the breakfast room of her master with an unusually engaging aspect, and having made her obeisance in her best style, the following dialogue ensued:—
Marianne.—I wish to ask you a favour, your honour.
His Honour.—Why, Marianne, you have no great reason to expect particular indulgence; but what is it?
Marianne (curtsying and looking still more interesting.) I hope your honour will allow me to get married.
His Honour.—Married! To whom?
Marianne (rather embarrassed.)—To a young man, your honour.
His Honour.—To a young man! What is he?
Marianne (her embarrassment increasing.)—I really don't know!
His Honour.—What is his name?
Marianne.—I can't tell.
His Honour.—Where does he live?
Marianne.—I don't know, your honour.
His Honour.—You don't know his name, nor what he is, nor where he lives! Pray how long have you known him?
Marianne (her confusion by no means over).—Really, to tell your honour the truth, I never saw him till just now. Mrs. Parsons sent for me to speak to him; and so,—we agreed to be married, if your honour will give us leave. It's a good chance for me. Do, your honour, give me leave!
His Honour.—Love at first sight, eh! Send the young man here.
His Honour.—Well, young man, I am told you wish to marry Marianne, one of my convict servants.
Celebs (grinning.)—That's as you please, your honour.
His Honour.—As I please—Why, have you observed the situation the young woman is in? (Marianne being "in the way ladies wish to be who love their lords.")
Celebs (grinning broadly.)—Why, your honour, as to that, you know, in a country like this, where women are scarce, a man shouldn't be too "greedy!" I'm told the young woman's very sober,—and that's the main chance with me. If I go to the factory, why,—your honour knows I might get one in the same way without knowing it,—and that, you know, might be cause of words hereafter,—and she might be a drunken vagabond besides! As to the pickaninny, if it should happen to be a boy, you know, your honour, it will soon be useful, and do to look after the pigs.
The author having afterwards satisfied himself as to the man's condition, and as to his being free, gave his consent to the match; and the enamoured pair were of course united in the holy bond of matrimony.
The object in giving the above sketch, is to convey to the reader, at once, some idea of the nature of rustic courtship in New South Wales, and of the relations towards each other of the two sexes of the felon population, as well as of the charming prospect attendant upon a convict wedding.
Such scenes as the above are of constant occurrence; and the writer has deemed it best to present one of them, without embellishment, as it actually took place.
The sketch is as slight as may be, yet it images a state of things difficult to be conceived in England, and certainly unparalleled in any civilized country.
But to return to the system on which the female convicts are treated:—Nothing can be more impolitic, or more unlike punishment, from the first hour of their embarkation in England.
Each convict ship carries out a herd of females of all ages, and of every gradation in vice, including a large proportion of prostitutes of all grades, from the veriest trull to the fine madam who displayed her attractions in the theatres.
All who can, carry with them the whole paraphernalia of the toilette, with trunks and boxes stuffed with every kind of female dress and decoration they can come at.
In the ship, they have unlimited freedom of intercourse amongst themselves, both in the prison-room, and during the day, on a prescribed portion of the deck, which completes the corruption of the younger and least profligate.
The ship-surgeon is entrusted with the discipline of the female convicts on board ship. Though the regulations may sometimes prevent improper intercourse between the convicts and the crew, yet there are too many and almost always exceptions which ought not to take place.
Those few of the females who are appointed nurses to the sick, have privileges; and, it does happen that the surgeon sometimes appoints an attractive or favourite lady to the post. At other times he admits ladies on the sick list, and to the indulgences of the hospital.
This is a practice which should at once be abolished.
As it is an object of government to send out respectable females to the colony, they could not do better than appoint a sufficient number of matrons to every female convict ship, to act as superintendants and nurses; and also (the absence of which is at present productive of much mischief) to employ the female convicts, during the voyage, partly by means of a school, and partly at some kind of work.
Many respectable and competent females would be glad to go out to the colony for a free passage and some trifle in name of salary, merely that they might not be altogether without resources on their first arrival.
Such a measure as this would be attended with little or no expense; it would be productive of incalculable good as to the character of the female convicts before their landing; and it would be a means, as far as it went, of insuring an influx of really reputable and virtuous female emigrants into the colony.
With regard to the question of expense, it may here be mentioned, that, on the certificate of the surgeon of each ship, that the master of the vessel has rendered him (the surgeon) all necessary assistance for the preservation of decorum amongst the convicts, and between the crew and the convicts, the master is rewarded with an extra douceur of fifty pounds;—the chief officer, on receiving a similar certificate, becomes entitled to a douceur of twenty pounds; and the second and third mates, by virtue of similar certificates, receive fifteen pounds each.
These sums, amounting in the aggregate to one hundred pounds per ship, would, if better applied, be found sufficient for the salaries of six or eight matrons, who (backed, of course, by the authority of the nautical officers), would be of more real service, not only in enforcing decorum amongst the women, but in training them to some useful occupation or employment on board ship, than could ever be accomplished by all the surgeons and masters and mates of vessels in the commercial navy of England.
Things are very differently managed now, and, when a female transport-ship arrives at Sydney, all the madams on board occupy the few days which elapse before their landing, in preparing to produce the most dazzling effect at their descent upon the Australian shore.
With rich silk dresses,—bonnets a-la-mode,—ear pendents three inches long,—gorgeous shawls and splendid veils,—silk stockings, kid gloves, and parasols in hand, dispensing sweet odours from their profusely perfumed forms, they disembark, and are assigned as servants, and distributed to the expectant settlers.
On the very road to their respective places of assignment, the women are told of the easy retirement of the factory, and advised to get themselves sent there, where they will be allowed to marry, without having to obtain the consent of an assignee master.
Offers of marriage are made to some of them from the waysides; and, at their new habitations, they are besieged by suitors.
The hapless settler, who expected a servant, able, or at least willing, to act, perhaps, both as house and dairy-maid, finds he has received quite a princess!
Her highness, with her gloved and delicate fingers, can do no sort of work!
Attempts are made to break her in,—but in vain.
"If you don't like me, send me to the factory," is the constant retort; and the master, having no alternative, takes her before a bench of magistrates, by whom she is returned to government, and consigned to the factory accordingly.
The author, amongst the favours of this kind that have been conferred upon himself, once received a dulcinea who, in addition to her other finery, brought such a cargo of hair, tooth, and nail brushes, Macassar and other hair oils, otto of roses and botanical creams, cosmetics and scented soaps, that she might have commenced as a dealer in perfumery. She would have spent half her time at her toilette, and the rest in playing off the airs of a fine lady! She was quite indignant at not being allowed an exclusive dressing room; and the more so, as the dear doctor, during the passage, had considered her much too delicate to endure any sort of hardship, and had been so kind and considerate as to insist upon her using two kinds of tooth brushes, lest the hardness of that first applied should injure the enamel of her teeth!
So much for the fine-lady convicts.
As for the coarser portion of the sex, when equally depraved with their more showy companions, their language, manners, and conduct, are infinitely too dreadful for public description.
Their language, disgusting when heard even by profligate men, would pollute the eyes cast upon it in writing. Their open and shameless vices must not be told. Their fierce and untameable audacity would not be believed. They are the pest and gangrene of the colonial society,—a reproach to human nature,—and, lower than the brutes, a disgrace to all animal existence.
But enough.—Were the veil raised, and the appalling spectacle exhibited as it really is, the picture would be too horrid for affrighted humanity to look upon.
It is evident that if radical reform be required any where, it is in the whole system of the treatment of the female convicts. It has already been suggested, that they should be employed in some way, under the charge of respectable matrons, while on board ship. On their arrival in Sydney, instead of the dulcineas and princesses being allowed to land in their dazzling attire, all the female convicts should be furnished with an uniform prison dress.
As it is certainly desirable, however, on considerations not only of policy, but of morality and religion, that these females should become married women, it may be quite proper that their dress, though plain, should be neat and becoming, and such as would bespeak, indeed, a purer taste and a better tone of feeling, than perhaps any of these wretched creatures actually possess.
Still, the habit of being obliged to wear the semblance of decency, as is well known to moralists, sometimes produces the virtue of which it was at first only the symbol.
At any rate, in appearance the women would, as far as dress goes, be on an equality; and, as these poor creatures of course habitually consider themselves as objects of sale, they might, in the competition for the best matches, be induced to cultivate decency of behaviour as an addition to their other attractions, instead of relying upon the "fineness of their feathers to make them the finer birds."
It should be inculcated upon them from the very first, that they should receive no indulgence whatever,—not even that of being allowed to marry, but as the reward of good behaviour. No female convict should be allowed to marry from the factory, but only with the consent of an assigned master, or of a bench of magistrates, after a specified term of good conduct, or after having obtained a ticket-of-leave, or having become free by pardon or by the expiry of the term of sentence.
At present, the servitude under one master for the short term of two years, entitles a female convict to a ticket-of-leave; and yet the charms of the factory are so much more seductive than even this slight probation or noviciate, that all the worst women prefer the chance of the factory to the certainty of good behaviour.
The factory, therefore, as now managed, is, like all the rest of the system, a premium for the continuance of crime and contumacy, rather than a preventive, or punishment.
Instead of this, the ticket-of-leave after two years of servitude to one master (implying good behaviour) should be the only premium, and the factory, as an alternative, should be really and indeed a punishment.
Not only, however, is the factory at Parramatta not a place of punishment. It is, even regarded as an asylum, very far from being well managed. It is very extensive, and the frail inmates are, as has already been mentioned, always very numerous. Yet it is abandoned to the management of an uneducated and in other respects very incompetent woman, a Mrs. Gordon, the wife of a serjeant.
It is true, that the police magistrates of Parramatta and some others of the magistracy, are a visiting committee; but these gentlemen give themselves very little trouble about the matter.
Mrs. Gordon is, de facto, as well as ostensibly, the governess of the establishment. How fit she is, under the dignified title of the matron, for so truly delicate and difficult a task, may be inferred from the fact, that she has living with her two dashing daughters, not the most perfect examples of virtue to the numerous females under her charge.
Indeed, as if to prove the rankness of the corruption which pervades the whole system of the management of the convicts, and all the branches of Sir Richard Bourke's government to its very core, one of the Misses Gordon, while she was a resident with her mother at the factory, bore a child to the son of the governor, which son was then the governor's private secretary; and the offspring of this disgraceful, peculiarly improper, and disorderly amour, was duly christened "Richard Bourke!"
The governor, it it well known, was aware of the intimacy subsisting between his private secretary and Miss Gordon. It is not insinuated, that, as a father, his excellency approved of such an intercourse; but how deplorably lax does this affair (when taken in connection with all the other facts) prove that system to be, under which such an intercourse could take place, and under which the matron of the factory is still retained in her situation!
Not only is confinement in the factory not a punishment; but it is a subject of loud complaint in the colony that its inmates are not even employed. They should be compelled to labour; and, while their food should be sufficiently nutritious, it should be ordinary and plain.
Protracted confinement in the factory, for insubordination, refusing to work, or other misconduct, and the withholding of permission to marry until after two years of good behaviour from the time of leaving the factory, would afford some, and perhaps an effectual, chance of reformation.
One pretty obvious means of improvement would be to send from this country, as the governor of the factory at Paramatta, a married man who has been accustomed, and successfully, to discipline female prisoners, and to make them work, in some or other of the houses of correction and jails in England.
The female overseers under such a man should not be convicts, but competent women selected in this country, to take the places of the subordinates whom Mrs. Gordon now appoints from amongst the convict inmates of the factory. Her selected females, it has been observed, are pretty much employed in doing for Mrs. Gordon herself, either in arranging and keeping in order her own spacious and well-furnished apartments in the building, or in needle-work for the family; and it is perhaps more for their qualifications in those respects, than as being fit persons to restrain their vicious companions, that they are appointed to the situations of overseers.
These, however, are the very qualifications which would render them most desirable servants to the settlers; and they should therefore be assigned at once for the benefit of the public, instead of being detained in the factory, for the benefit of Mrs. Gordon.
To this account of the factory, it is perhaps only necessary to add, that of the five or six hundred females usually within its precincts, from one to two hundreds are mothers of illegitimate children,—all maintained in great comfort and lazy idleness at the expense of the colonial public. A weekly report of the numbers, both of the mothers and of their offspring, may be seen in the Sydney Government Gazette.
IN due keeping with all the rest of the system in New South Wales, is the composition of the police or paid magistracy.
Police magistrates were at first confined to Sydney; and none but the territorial or unpaid magistrates acted throughout the rest of the colony.
Gradually, however, paid police magistrates were appointed to the more populous districts; and this evil (for the thing, as it is managed, is really a very serious evil), has greatly increased during the government of Sir Richard Bourke.
There are now upwards of sixty district police magistrates. They are nearly all, and most improperly so, officers of the regiments doing duty in the colony, receiving three hundred pounds* a year each of salary as magistrates, besides their full pay, as officers, and leave of absence from their military duties.
* It is thought that some of the police magistrates in remote districts only receive £200 a year salary.
It is difficult to say whether this composition of the police magistracy is more injurious to the discipline of the troops, or to the administration of justice, and to the best interests of the colony.
The gentlemen thus withdrawn from their military duties form a very large portion of the officers of their respective regiments, and really cannot be spared with any degree of propriety from military duty.
So far as to the military branch of the grievance.
As to the magisterial or judicial branch, it is self-evident, that military officers, some of them ensigns,—mere boys, who had but just joined their regiments,—appointed, perhaps, very soon after their arrival in the colony, to the magistracy, are amongst the most unfit persons that could be selected for such a purpose.
They are all of them necessarily entirely ignorant of the condition of the agricultural settlers and of their convict servants.
The very terms employed in subjects of dispute or complaint between the colonists and their labourers, are utterly unknown to their military judges.
In general, they know as little of agricultural and pastoral affairs, as they do of the laws of the colony or of the mother country.
Worse than all: as they are appointed by the governor, and their magisterial posts are, to most military men, of great pecuniary importance, of which the governor can at pleasure deprive them without its being even expected that he should assign a reason, they are of course the paid and ready instruments and tools of any system which for the time being may have the ascendancy at government-house.
Magistrates of such a description cannot indeed be expected to act from their own knowledge, or from an understanding of the spirit of the law: they receive, as military men, their cue from the head of the government and commander of the forces; and according as either laxity or severity of discipline chances to be the order of the day at head quarters, so do they adapt their magisterial conduct to the temper of the time.
In a political sense, the constitution of the police magistracy is at least as objectionable as it is when considered either in a military or judicial one.
It is to them, and not to the territorial magistrates, that Governor Bourke applies when he wants a report on the state of crime in the colony,—on the subordination of the convicts,—or on the working of his own measures and system.
It was from the reports of these military police magistrates,—reports required and obtained for the very purpose,—that Mr. Commissioner Therry, under the falsely assumed name of an "Unpaid Magistrate," quoted his authorities, in proof of the excellence of General Bourke's administration, in his pamphlet in vindication of his excellency Governor Bourke's measures!
The pamphlet of an Unpaid Magistrate, therefore, was written by a well-paid government functionary, and rested for support upon the ready testimony of the well-paid military justices.
After what has been shown as to the conduct of Commissioner Therry himself, and of Colonel Wilson, the chief police magistrate of Sydney, the reader will not be surprised at being told that district police magistrates have been heard, before they received the governor's circular requiring them to make a report,—have been heard to ridicule the lax and absurd system of the colonial government, and to express their astonishment that the territorial magistrates, who were independent of the government, did not make a decided effort to check a system so subversive of convict discipline and subordination.
The author, if it be necessary, can prove that language of this kind has been uttered by police magistrates, and that, notwithstanding, reports were made by these police magistrates, eulogizing in writing that very system which they had previously orally condemned!
When such baseness as this is practised even by military men, who are presumed to be peculiarly influenced by principles and feelings of honour, "as officers and gentlemen," some idea may be formed of the demoralizing tendency of the entire system now practised in New South Wales, under the government of General Sir Richard Bourke.
The enormities of the officers of the New South Wales regiment, before as well as during and after the government of Captain Bligh, are proofs of the utter unsoundness with which a whole body of officers may become infected under a vicious or lax system of government.
It is curious to notice, en passant, that in their anxiety to constitute juries of emancipated felons, the government and its advocates did not fail to make a great outcry against military juries,—the colonial juries, previous to the present jury law, having been composed of military officers;—yet this same colonial government appoints none but military officers as paid police magistrates, though a magistrate, having to act summarily, should be well versed in the nature of all the cases likely to be brought before him; whereas a juror has little else to do than to decide upon a fact, carefully investigated before him, with all the niceness of legal subtlety, and supported or assailed by all the evidence and explanation that can be brought for its establishment or contradiction.
In order to give a more distinct idea of the unfitness of mere military men to act as magistrates, the author will here relate one or two instances of what has occurred while he himself sat upon the bench with police magistrates who were military officers.
On one occasion, before the bench at Patrick's Plains, to which a captain of the 17th had just been appointed at the usual salary, a convict servant was charged by his master with having neglected his duty as a shepherd, and with having thereby caused the loss of a great number of valuable sheep from the flock entrusted to his charge.
On the case being clearly proved, and the prisoner asked what he had to say in his defence, he told a long story of the flock having been too numerous for any man to be able to take charge of it.
The new military magistrate new nothing, of course, as to the care of sheep, nor whether a man was capable of taking charge of twelve sheep, or twelve hundred.
A territorial or unpaid magistrate would have been not in the least at a loss. His own knowledge would have rendered evidence upon that point unnecessary, or would have supplied the want of it.
The military police magistrate, on the other hand, if no territorial magistrate had happened to be on the bench with him, must have cut a very ridiculous figure, and in short would have been utterly unable to decide the case.
The author (who was the other magistrate on the bench) was applied to by the new magistrate for information; and, as his experience was not be imposed upon, he of course stated that the prisoner had made a false defence, for the mere purpose of evasion, as the flock under his charge, instead of having been too large, had not consisted of even so many as the usual number.
On the same day a settler complained against one of his convict servants for not having done a sufficient day's work in ploughing.
The military justice was of course as ignorant of ploughing, as he was of sheep-shearing, and again had recourse to his more experienced brother magistrate.
These are merely samples. The military justices are equally ignorant on all subjects of magisterial supervision. And what makes this evil wear the character of one that is interminable and incurable, is, that, as the regiments forming the garrison of the colony are only, as it were, halted there on their way to India, no sooner do the military justices acquire some practical knowledge as magistrates, through the patience and preseverance of their territorial brethren on the bench, than they are ordered to head-quarters, and move on to India with their regiments; and another set of "Johnny Newcomes," take their place.
Indeed the military routine of the garrison of New South Wales is so peculiar, as to merit being stated. The garrison for some time past has consisted of three regiments of foot; and those regiments are sent out in detachments, as follows:—
Every transport carrying out male convicts to New South Wales has a military guard of about thirty men, under the command of a subaltern officer. These guards are successively taken from a regiment under orders for New South Wales, as a step towards going on to India. Detachment after detachment accordingly leaves this country, as the transports with male convicts are successively prepared for them; and about the time of the last detachment leaving England, the senior regiment in New South Wales, that is, the regiment that has been longest there, embarks for India, carrying along with it, of course, the new-fledged police magistrates of the colony,—spoiled for soldiers, after their comfortable quarters and well-feathered nests in Australia, which they reluctantly leave behind them for the new favourites of the Major General and Governor his Excellency Sir Richard Bourke.
Another circumstance, curious in a military point of view, as to this "relief of guard," is this, that the commanding officer of a regiment under orders for New South Wales, usually goes out with the last, or one of the last detachments; and it is not a little singular that the military guard of the ship on that occasion generally consists only of the band.
The band, it is true, is, besides its regimental duty, an understood appendage upon the rank and person of the commanding officer.
The government at home, it is to be presumed from motives of laudable economy, makes the band which accompanies the commanding officer act as the guard of soldiers on board the convict ship.
The author of this work knows, that, as the band of any regiment cannot at all be relied upon, and indeed never would be employed by any officer as rank and file, very serious apprehensions have on such occasions been entertained for the safety of the ship.
The author is not aware whether or not anything untoward has as yet arisen from this very unmilitary proceeding. If nothing very bad has happened, it has been, as an old saying has it, more owing to "good luck than good guiding." Sure he is, that so unmilitary a proceeding can never have been represented at the Horse Guards; for it is impossible to believe that the paltry economy involved could ever induce the safety of a ship and crew, and of the military detachment on board, including the commanding officer and other officers of a regiment of the line, to be so foolishly committed.
What makes this military error the more glaring, is, that in fine weather, these poor fellows (the band) are actually employed in their proper capacity, as a band, to entertain the colonel and his officers; exposing the ship to the risk,—evidently to the very imminent risk,—of the convicts then making a rush, and overpowering their escort.
The territorial magistrates, with the exception of a few expectant sycophants of the government, have become so heartily disgusted with the Bourke system, and so weary of the endless task of instructing the military birds of passage, who are thrust upon them as justices, that they have almost ceased to take any interest in magisterial business, and have abandoned it to the government tools, until the evil shall work its own cure.
If the magisterial duty of the colony is to be performed by paid functionaries, it is evident, and the author respectfully submits, that the home government should send out a sufficient number of properly qualified men, for that purpose, from this country.
These gentlemen should be instructed as to the object and spirit of the administration of the laws of the colony, considered both as a penal settlement, and as a progressive British community, and should be perfectly independent of the colonial government, excepting that they might be liable to be suspended by the governor, in any case of flagrant misconduct, or upon any occasion of great public emergency.
Being removeable only by the government at home, they would be freed from all unworthy fears of giving offence to the colonial government. After a residence of some time in their respective districts, they would become thoroughly imbued with the local knowledge indispensable to them as magistrates, as well as fully conversant with the colonial law.
The author hesitates not to admit, and he ventures to make such an admission for the territorial magistrates and the respectable settlers at large, that such a body of magistrates would even be preferable to a magistracy composed of the gentlemen of the colony.
It would take from their shoulders the performance of an arduous and painful duty, which, although they have no disposition to shrink from it, they have felt to be both onerous and unthankful.
They are so far from being a grasping and ambitious faction, as Messrs. Chief Justice Forbes, Commissioner Therry, and the rest of their convict faction attempt to represent them, that they have no other wish,—a wish obviously dictated by a regard for their own best interests,—than that the public affairs should be so administered as to promote the general welfare of the colony,—keeping in view a proper tone of morals, and the due discipline and subordination of the convicts, as indispensable features of the public welfare; and therefore they would hail the appointment of a competent and independent magistracy by the home government,—though it would confine themselves to the performance of the ordinary duties of peaceful citizens and loyal subjects,—as one of the greatest boons his Majesty's government could confer upon New South Wales.
AFTER what has been stated in Chapter I. as to the peculiar construction of society in New South Wales, and as to the legal and unalterable infamy of the convict population, regarded as a caste, it must excite no slight degree of astonishment that the admission of freed convicts, whether by pardon or expiry of their sentences, to the same social and civil rights and immunities as the emigrants, is not only a subject of discussion, but of bitter and well-grounded complaint.
Trial by jury was first introduced into the colony, only as an experiment, and with an avowed determination either to modify or abolish it, as circumstances and the working of the institution might hereafter indicate.
If it was not self-evident that this experiment should never have comprehended the admission of the whole body of the freed convict portion of the population to the right of acting as jurors, the progress of the experiment has proved, to the most sceptical, that nothing can be more unwise or disgraceful than its continuance.
Indeed, it is difficult to conceive how any men having pretensions to legal knowledge or to statesman-like experience or sagacity, could for a moment entertain the idea that felons, who had themselves been found guilty of the highest and most heinous infractions of the law, could possibly be ever afterwards entrusted with any share whatever in the administration of that law they themselves had so often violated.
If in England a convicted felon be deemed unworthy of remaining a member of even a benefit society, surely he cannot be deemed worthy of being associated in the jury-box with persons whom the law has appointed to represent the whole society of the country, and to express its voice in the administration of justice.
If in England such a proposition would be considered too preposterous for serious consideration, how infinitely more preposterous, and how highly objectionable and dangerous, is its adoption in New South Wales, where the freed convicts, over and above their legal and moral infamy, are, by their numbers, likely always to sit as jurors on the trials of their own former friends and criminal confederates, and to give their verdicts in cases involving the prosperity or the characters of their former assignee masters, to whom they themselves had been assigned as convict servants, and by whom they had probably been brought before benches of magistrates for misconduct, and punished, on their complaint, either by the cat-o'-nine tails, or by sentence to an iron-gang, or transportation to a penal settlement.
The idea of forming juries of such materials as these, is really so preposterous, that it is amazing that it could ever for one moment be entertained, even experimentally; and it is inconceivable that its practical adoption is still persisted in, after the experiment has been tried, and has signally failed.
Innumerable are the instances in which the ends of justice have been defeated by the perversity of the jurors of New South Wales.
So infamous, indeed, is the composition of the juries, that but few of the respectable free settlers can be brought, even by the consideration of their own interests and of the general well-being of the colony, to submit to the degradation of being impannelled in the same jury-box with an equal or greater number of emancipated convicts.
It would fatigue the reader to cite many instances of the brutal and criminal pertinacity with which these convict jurors have often set the law, as well as the dictates of common sense and common justice, at open and most profligate defiance.
It is, indeed, quite impossible that either the government or the public of the mother country, can form an adequate conception of the frightful, the atrocious working, of the jury system experimentally adopted in the colony, and which forms one of the subjects of complaint and of proposed enquiry and reformation stated in the petition of the members of council, magistrates, &c., as given in a succeeding chapter.
Let an honest upright English juryman imagine the case of two notorious felons, found guilty by his own verdict, and sent out to Botany Bay,—for punishment, as he supposed when he delivered his verdict,—one for seven years, and the other perhaps for fourteen years, or for life.
Let him further imagine that in a few months, nay weeks, after their arrival in the colony, one of these ruffians is concerned in a new crime of the greatest turpitude and guilt,—robbery, incendiarism, or even murder!—that the colonial government, besides offering a reward for the discovery of the perpetrators, also offers a conditional pardon to any accomplice giving such evidence as shall convict his associates in the crime.
Let him suppose the colonial government to go even further, and to offer a full pardon, and a free passage to England, which sometimes occurs if the case be one of more than ordinary atrocity even for the appalling atrocities of Botany Bay.
Let the English juryman suppose that in either case the caitiff turning king's evidence remains in the colony (if conditionally pardoned, he must remain till the expiry of his original sentence,—if fully pardoned, he may remain if he thinks fit.)
Let him suppose that this ruffian, who, amidst the thronging thousands of similar persons, is immediately lost sight of, in a short time becomes a dealer, a rum seller, or, in any other way, a householder of £30 per annum rent.
What must be the indignation and astonishment of the English juror on being told that this thief,—this swindler,—this murderer, perhaps,—on the proper officers going round to take the lists of persons qualified to act as jurors, and on his stating himself to them to be "a free man," is duly entered on the lists, and summoned to serve on a jury?
How is it possible that justice can be administered under any circumstances by such a man?
But, if it should occur,—as it has occurred,—that such a juror should sit in charge of one of his own confederates, what else can be expected than that which has often taken place, namely, that justice should be altogether defeated, and crime, including murder itself, rescued from conviction and punishment in the teeth of the clearest evidence?
Let an English juryman suppose further, that one of his own convicts is re-transported from Sydney to a subsidiary penal settlement for a fresh crime committed in the colony, and that he thus serves out the term of his original sentence of seven years.
The culprit of course returns to Sydney, and is now "a free man."
In a short time he becomes a householder.
He is called as a juryman. He stands out for the acquittal, and succeeds in gaining the acquital, of an old friend, or even of a stranger whom he admires for his dexterity in thieving, or for his boldness in the execution of a more daring offence!
Or, to his inexpressible joy, he finds himself entrusted with the character and life of a former enemy,—of the assignee master, perhaps, to whom he had been assigned as a convict servant,—who may have brought him to punishment,—to be flogged,—or to be sent to an iron-gang,—or even transported to the penal settlement from which he has but recently returned.
Here is an opportunity for vengeance to a spirit only to be restrained by the terror of the gallows! He may now even shed the blood of his victim by the arm of that very law which should be stretched forth only for his defence.
Well may the petition already referred to state that such a jury system, "in its operation as regards innocent persons, might be such as the petitioners tremble to think of!"
These things are not all mere possibilities. They have actually taken place,—not merely now and then, or rarely,—but often,—very often,—so often, that the reader will see in another page that the attorney general declared he could not go on with a case of cattle stealing, because experience had taught him the melancholy fact, that the administration of justice could not be entrusted to a jury composed chiefly of emancipated felons!
These are things which would occur every day, if juries were sitting daily;—and they are of daily occurrence during the sittings of the court,—and the felon population of New South Wales take care that these sittings are both frequent and long-continued.
The universal depravity of morals, especially in Sydney,—caused, no doubt, chiefly by the very nature of the colony as a receptacle for the convicts of England,—but aggravated,—unnecessarily and frightfully aggravated,—by the lax policy of the colonial government,—by its liberalism towards the convicts and ticket-of-leave men,—by its employment of or connivance at the employment of felons to conduct a corrupt and profligate felon press,—and by its frantic experiment of felon juries, is of course truly deplorable.
On such a subject, a jest would not only be in bad taste, but highly reprehensible. There is, however, an anecdote which, though somewhat ludicrous, is, at the same time, so characteristic of the moral condition of Sydney, and of the felon population in general, that its insertion may be permitted.
A negro had come to the colony as some gentleman's servant. Associating with such characters as Sydney abounds with to overflowing, Jaccho soon received the taint which forms the curse of the colony. He had been many years in the service of his master, by whom, for his good conduct and tried honesty, he was entrusted with the keys of his wardrobe and even of his desk.
But, after his acquaintance with some of the jurymen of New South Wales, he robbed this very master, by whom he had been esteemed and confided in as a faithful servant.
Jaccho was accordingly brought to trial before a court of quarter sessions.
After the evidence against him had been gone through, the presiding magistrate called upon him for his defence, and asked him if he had any witnesses to produce as to his character.
Jaccho (shaking his head mournfully) replied, "No, Massa! Poor Jaccho hab no character now! When Jaccho come a Tidney, Jaccho berry good man. But Jaccho dam rogue now! All dam rogue in Tidney. By-by, Massa be dam rogue too!"
Poor Jaccho, indeed! His simple and unpremeditated speech told the too true tale that he had fallen a victim to the corruption with which he had been brought in contact,—a corruption so irresistibly contagious, in his imagination, that he thought escape from it impossible, and therefore predicted that the very judge before whom he stood, if he ventured longer to breathe the pestilential atmosphere of the capital of Australia, must necessarily, and "by-by,"—soon—become "dam rogue too."
But to return to the jury system. Of the numberless instances of its villainous bad working, one or two will be sufficient for expressing to the reader the character of the whole.
A convict charged with having murdered his wife, was put upon his trial. The evidence was conclusive. The prisoner, however, had the benefit of a New South Wales jury. They retired to consider of their verdict. The foreman was a magistrate; and a few others of the jury were men of respectability. The rest were emancipists.
The judge, in his summing-up, had considered the case so clear, that he almost told the jury that they must find the prisoner guilty.
But when the foreman asked the jurors for their opinions, one of them, an emancipated felon, immediately exclaimed, with horrid oaths, that "he would not find the prisoner guilty;—in his mind, the woman desarved what she had got!" Pulling off one of his shoes, and repeating "he'd be d—d if he'd find him guilty," he declared his resolution to subsist upon his shoe leather, if the rest of the jury had a mind to test their consciences by the process of starvation.
The jury returned more than once into court, to appeal to the judge under the circumstances in which they found themselves placed.
The judge, unfortunately, could render them no assistance.
Reason and remonstrance with the ruffian juror were of course vain, how perseveringly soever they were tried!
The case ended in the acquittal of the prisoner,—an acquittal so wrong and culpable in the estimation of the judge, that he ordered the prisoner to be taken back to Bathurst, whence he had been brought, and to be there delivered to a bench of magistrates, to be dealt with in a summary way, not, of course, on the charge of murder, but on some other charge, to be framed from the circumstances accompanying the commission of the crime.
An emancipated felon was arraigned before the supreme court. The jurors, one after another, were perfectly to "his mind;" for they were brethren of the felonry. At length, a gentleman was called whom the prisoner challenged.
The gentleman who was objected to is one of the most amiable men in the colony; he possesses large property, and was at the time in the commission of the peace; his appearance and demeanour correspond with his station and his mental and moral qualities.
The objection to him as a juror seemed so unaccountable, that the prisoner was asked to state the reason for his challenge.
The fellow looked a little confused. "He didn't know, exactly;—the gentleman was quite unknown to him;—but the fact was, he didn't like his appearance!"
He looked too respectable,—too upright,—too intelligent, to be trusted,—by the prisoner! He was not one of the right sort for an acquittal!
The petition of the members of council and other reputable colonists states that "one of the obvious and natural effects" of the present jury system, "is to encourage crime, by the facility it affords to the guilty to devise plans for insuring acquittal;" and one of the most obvious of those plans is, for prisoners to challenge every juryman they know or suspect not to be one of their own caste!
In a court of quarter sessions at Maitland, a prisoner was acquitted against evidence.
The foreman of the jury, after delivering the verdict which acquitted the prisoner, complained that the jury were driven to that verdict by the obstinacy of one of their own body (an emancipated felon), who had said, that in the morning before he came to the court, he had taken an oath not to find any prisoner guilty, in the event of his being impannelled on a jury!
The court of course removed this fellow from the jury box, and another was called in his place.
In the case before the supreme court, of Hay for stealing a proof from the Herald Office, and of Watt for receiving it, almost all the jurors were members of the felonry; and both Watt and Hay were ticket-of-leave men.
Mr. Justice Therry was of course counsel for the prisoners; and the prisoners were, of course, acquitted.
The case is referred to at present merely for the purpose of still further shewing the nature of a New South Wales jury; for, when some of the jurors were afterwards separately asked why they had given a verdict of Not Guilty, one replied,
"He was no schollard, and did not understand the thing!"
Another, a publican, candidly said, "he was doing a good stroke of business, and could not afford to make himself a marked man in the eyes of his best or only customers!"
A third said "the prisoners were but young men; and he thought he would give them another chance for it," &c. &c.
In the true spirit of felonry, Hay himself afterwards made a full acknowledgment of his guilt, and of the share Watt had in the crime; and in the fervour of his real or pretended penitence, he even made an affidavit of the facts before a magistrate!
The affidavit was published in the Sydney papers of the time; and it appeared from it that Watt had instigated Hay to commit the theft, and had rewarded him with five shillings when the stolen proof was delivered to him.
The whole affair is quite characteristic of Australia.
When their periods of sentence have expired, both Watt and Hay will be qualified to act as jurors!
And, should a house of assembly be created and filled by popular election, it is probable enough that Watt might be returned as one of the legislators of the colony, and of course a distinguished advocate of colonial liberal principles!
At the time these observations are in course of being written in London (October 1836) the author has received by an arrival from New South Wales, the Sydney Herald of May 9th and 16th, from which the following passages are extracted:—
CATTLE STEALERS.—The number of cases of cattle stealing for trial at the present criminal sessions almost exceeds belief; but our attention has been particularly called to the fact by a circumstance which powerfully exhibits the working of that jury system which is so much lauded by Mr. Wentworth and the Patriotic Association. A man, named Lewis Soloman, recently convicted of this offence, was actually one of the jury at the last sessions, upon a trial for cattle stealing (he himself being at the time out on bail on a charge of horse stealing), and stood out for an acquittal in the face of the clearest evidence. Thus it is, as we often said,—a fellow feeling makes us wondrous kind! But oh! such a jury system, in virtue of which such men may be jurors!"—Sydney Herald, May 9th, 1836.
In the same paper of May the 16th it is recorded that Mr. Plunkett, the attorney general, after a jury had been impannelled to try a case of cattle stealing, on the 12th of May, addressed the court as follows:—
"In the absence of almost all the special jurors, he would not go on with the case of the Deans for stealing cattle. The names that had been called were almost all publicans (that is, emancipated convicts); and in the absence of the merchants, he would not risk the administration of justice in their hands!"
When the experiment of this strange jury system was first tried, a summoning officer returned two of the summonses with most characteristic endorsements.
On the back of one of them was written, that the man intended to be summoned as a juror was "hanged" at such a time.
On the back of the other, that the expected juryman had been "transported for life" to a penal settlement in the colony.
The petition of members of council, &c. states that by the jury law "persons of bad repute and low standing in society have been set upon a footing with magistrates and colonists of the highest respectability."
The above, unfortunately, is not the whole extent of the evil; for, as magistrates and other respectable colonists will not voluntarily consent to being put on an equal footing so repulsive to to their feelings, they choose rather to pay the fines for non-attendance, than to degrade themselves by sitting as co-jurors with the characters who must occupy the jury-box along with them; and the felonry, consequently, too often "have it all their own way."
It being impossible for Governor Bourke or Mr. Chief Justice Forbes to shut their eyes to the enormous evils attendant upon the working of one of their most favourite measures, they attempted, with ill-disguised duplicity and unavailing cunning, to shift the obloquy from themselves.
A circular letter from the governor to the magistrates was accordingly concocted, in which blame was, by implication, attempted to be cast upon the magistrates for permitting improper characters to be summoned as jurors, by affecting to caution them to be more circumspect for the future.
Blame the magistrates for the past, and instruct them to be more circumspect for the future! Why this is literally directing the magistrates to pack the juries by authority, and speaks volumes as to the pseudo liberalism of the colonial government.
The fault is in the law and no where else. The law is, that housekeepers of a certain rate are eligible to be jurors. It is for the authorities who summon the jurors to summon them indiscriminately, and for the parties in a trial to challenge such jurors as they may respectively deem objectionable.
Though the governor's circular was laughed at, yet, as it contained a rebuke, a full meeting of magistrates was held upon the subject, when amongst other reasons it was shown, that, as the colonial law stands, a magistrate might, if he complied with the sinister advice of the governor, subject himself to an unlimited number of civil actions for implied defamation of character.
THE independent free settlers and territorial magistrates, who were at first favourable to the idea of the colony obtaining a house of assembly, soon become aware of the impracticability of instituting, in the present state of the colony, a representative legislature.
Even if Mr. Wentworth, Sir John Jamison, and the convict faction, had not so palpably betrayed their dangerous and subversive doctrines and projects, the infamous working of the new jury law clearly proved that the society of New South Wales is so essentially dissimilar from that of Great Britain, as to render it, while the same degree of dissimilarity continues, quite unfit for enjoying and properly exercising all the rights and immunities of British institutions.
The experiment of a representative house of assembly, they now distinctly foresee and solemnly predict, would be attended with utter ruin.
If the qualification as to voters and candidates is to be confined to free emigrants and untainted natives of the colony, of certain property (and that the qualification should be so restricted must be admitted by every unprejudiced and impartial man at all acquainted with the social, moral, and political vices and condition of the colony), the heart-burnings and jealousies which now distract the colony, would be fearfully aggravated.
The reputable free settlers, therefore, as on the question of the magistracy, being actuated by no motives but those connected with a sincere desire for the real welfare and interests of the colony, would rather forego the prospect of personal distinction which the formation of a house of assembly would hold out to themselves, than purchase that distinction at the risk of further compromising the public peace and tranquillity.
If, on the other hand, the popular principle of representation were to be so far extended as to admit the emancipated felonry equally with the untainted emigrants and natives of the colony, to the elective and representative franchises, no man acquainted with the colony, nor even any many who has read this work, can be of any other opinion than that the convict faction would gain the ascendency, and that, if the colony did not speedily become a scene of bankruptcy and bloodshed, it would at least be utterly and for ever ruined both as a penal settlement cooperating with the laws of the mother country for the repression of crime, and as an infant society destined to become a people imbued with a British spirit, and governed by British law.
Even the mutual jealousies and heartburnings which now disturb the colony, would be much more frightfully aggravated by the indiscriminate admission of the free emigrants and the emancipated felonry to the exercise of the elective and representative franchises than they would be by the franchises being restricted to the untainted population alone.
Experience has proved, not only that the great body of the emancipated felonry are entirely unworthy of being admitted to the privilege of sitting as jurors, but also, that the emigrants and emancipists cannot possibly act as jurors together, and that the experiment of their doing so has not only failed, but has been productive of very great and serious evils.
Experiment would soon also prove that the great body of the emancipated felons are still less worthy of being endowed with either the elective or the representative franchise,—that it would be still more impossible for the untainted colonists and any portion of the felonry to act together as either electors or elected,—and that the making of such an experiment could be productive only of calamities, before which all the other evils of the colonial society would sink into absolute insignificancy.
It is true, that the present legislative council is very viciously constructed, and that it neither represents the opinions and feelings of the colonists, nor works well as an instrument of government.
It is, in fact, a mere tool of the governor, or rather of the governor and the chief justice.
If the governor and the chief justice chance to pull together, then, indeed, the governor and chief justice might as well issue their avowed vice-regal proclamations and ordinances, as profess to pass them off upon the colony as being the decisions and acts of a deliberative council.
If, on the other hand, the governor and the chief justice do not pull together, then the council is rendered nugatory even as an instrument of government; for the chief justice can prevent the passing of any law, by refusing to certify that it is in conformity with the laws of England.
The legislative council at present consists of the governor, the chief justice, the attorney general, and other members, whereof four more are government functionaries, and the remaining seven members are private colonists.
The council is so constituted by act of parliament.
It is evident that in such a council, the governor, when the chief justice agrees with him, necessarily exercises an overwhelming preponderance; so that the council, in fact, forms no check either upon negligence or tyranny, or upon pecuniary extravagance.
The government functionaries of course always pull together; and it is at least certain that a portion of the other members of council pull together with the governor. This is a necessary consequence of the expectations and positions of those members, subject to all the influence of the governor, personally present and presiding over them in council, and with the chief justice at his elbow practising upon them with all the finesse of legal subtlety, and confounding them with authoritative assurances, which he has the power of enforcing, that the measures before them are or are not in conformity with the law of England; and therefore that they must or must not be passed as laws for the colony.
Even if the governor's influence and authority did not thus predominate in the council, some of those of the members who may be supposed to have been appointed with the view of their being a sort of check upon him, are altogether incompetent for such a purpose.
Mr. Blaxland for example, certainly a very worthy and reputable, as well as a portly and good-natured man, was originally a yeoman in the county of Kent. He was an early settler in the colony, and by dint of praiseworthy enterprise and assiduity, and particularly by means of a salt manufactory which he established, has risen to opulence and to the possession of valuable land and stock.
This is all very well, and reflects much honour upon Mr. Blaxland as a private colonist.
But the idea of making this English yeoman,—this worthy "man of Kent," a legislator, is as preposterous as it would be to make him archbishop of Australia, or poet laureate to his Excellency Governor Bourke.
On one occasion, indeed, he did present to the council a protest against a pension of £700 a year voted to the colonial secretary; but it was at once manifest that the document was not of the worthy member of council's own drawing up. It was so replete with legal technicalities, and was so studiously worded and rounded, "clause on clause," that any one not knowing the ostensible author of the protest, would have supposed him to be a man of practised subtlety and erudition.
It soon became known in the colony that in this affair Mr. Blaxland had been made a "cat's-paw" by the chief justice, who, having a private reason for objecting to Mr. McLeay's pension, which he did not wish to avow in the council, had drawn up the protest in the name of a gentleman who must have had it several times read over to him and explained, before he could be considered capable of even presenting it.
This protest, however, obtained a good deal of celebrity, and was much talked of at the time, the complaint that the colony was saddled with a pension of £700 a year for services rendered by the grantee in England, to the government at home, being too justly founded not to excite attention.
Another anecdote of Mr. Blaxland may suffice to show his unfitness to exercise the functions of a legislator. It is still a subject of much laughter.
Being a proprietor in a bank, the shares of which were at a very high premium, and receiving from 17 to 20 per cent. of annual dividend, it is suspected that the Chief Justice, for the sake of the joke, advised Mr. Blaxland to sell out, and gravely to assign as his reason for doing so, that he did not think a bank investment safe, inasmuch as on the first war with America any American privateer might possibly take Sydney, levy a contribution on the town, and carry off the money in the banks!
It is seriously intended to fortify Sydney, not, indeed, for fear of any danger from a privateer to a town containing twenty thousand inhabitants and a strong garrison; but as a precaution against possible danger, in the event of a war, not only from the ordinary operations of an enemy, but from the effect the appearance of an enemy might have on the felon population. Mr. Blaxland, however, actually sold out.
But to return to the legislative council;—though it must be admitted to be extremely imperfect, it might be so improved as to answer, in the best manner, all the present puposes of a legislature for the colony.
In making this improvement, however, not only should the numbers of what may be called the independent members be increased, and several of the public functionaries be withdrawn from it, but the governor himself, and above all, the chief justice, should have no seat in the council. The proceedings, in short, should be as independent as possible of the governor, while they should be subject to the controul of public opinion, by the discussions being made public.
It is sufficiently self-evident that the chief justice should not be at once the most influential member of the legislature, and the dispenser and interpreter of laws framed by himself, and only of laws of his own framing. The presence of the attorney or solicitor-general in the council, as a member, would be quite sufficient for giving it the benefit of legal instruction on subjects involving legal difficulties, without the impropriety of the chief judge of the colony sitting as a legislator, particularly in conjunction with the governor, so as by the weight and influence of the one, and the sophistry of the other, to carry any or all measures they think fit.
The chief justice settles some questions by declaring the propositions to be inconsistent with the laws of England. Constituted as the legislative council now is, it would be contrary to a law of human nature, if, after the governor has made a proposition, and the chief justice has moulded it into form by his legal aptitude, and afterwards gilt the pill with his sophistry, it should not be swallowed by the knowing functionaries and some of the expectant simple ones of the present legislative council.
Should the home government and parliament deem it right to re-model the legislative council of New South Wales, so as to make it virtually represent (though not by popular election), the property and public opinion of the free untainted colonists, it may be deemed right that the governor, as the king's representative, should have the power of recommending measures to the consideration of the legislative body by his message, and also that he should wield the further prerogative of the royalty he represents, by having a veto upon the acts of the council.
It may be also expedient that the colonial secretary should have a seat in the legislature, as the organ through which the views of the governor may be pronounced, and by means of which those views may be examined and discussed.
Beyond this, the governor's interference with, or influence or controul over the legislative body, should not be permitted.
It is but justice to add that several of the independent members of the present legislative council are equally distinguished by their virtues, their intelligence, and their public spirit.
MUCH injury has been done to the colony from the incapacity of all the individuals who have been sent out as law officers of the crown, with the exception only of Mr. Plunkett, the present solicitor-general. All the rest have been destitute of talent, and have been rather deficient even in ordinary respectability.
Mr. Bannister, who was the first attorney-general, under the government of Sir Thomas Brisbane, was a very respectable private character,—and a very honourable man. He had, however, been a captain in the army,—and consequently had had little or no experience to qualify him for the situation of attorney-general in such a colony. Hence the differences that arose between Mr. Bannister and the late Governor Sir Ralph Darling.
Mr. Baxter, who succeeded Mr. Bannister as attorney-general, was a man of very intemperate habits,—and, being scarcely ever sober, left his business to be done for him by a convict clerk, who had been a lawyer of some sort previous to his transportation from England.
Even in this, the culpable folly of employing convicts in any situations of public trust, or of such a nature as to involve the public interests, was apparent; for, the drawing of indictments being left by Mr. Baxter to his felon coadjutor, the lattter frequently, either from feelings of favour, or in consideration of a bribe, so framed the indictments as to leave flaws for the benefit of the prisoners, and yet so artfully, as to make it impossible to decide that the flaws were intentional. In this way several atrocious criminals escaped conviction.
Mr. Kinchela, the present attorney general, instead of possessing any superiority over his two learned predecessors, is inferior to them in every respect. Deficient in legal knowledge, he has not even the address or manners, or the language of a gentleman. His utterance is bad, and strongly tinctured with the brogue of Kilkenny, and, to crown the whole, he is excessively deaf,—a defect necessarily subjecting him to the most mischievous or the most ludicrous mistakes.
On one occasion, when he was conducting the prosecution of a man for stealing a bull, a witness was examined as to the identity of the stolen animal. The witness said that several bulls had been shewn to him, that it might be ascertained if he could pitch upon the right one; and he stated that he was certain he had done so; for the bull was called Peter, and on his calling out, "Peter! Peter!" the animal had turned round to him.
The poor deaf attorney general, hearing only something about calling "Peter," and fancying the witness was detailing a conversation with some man of that name, resumed the interrogative in the usual pompous way of a counsel, by addressing the witness with, "well sir, and what did Peter say?" The effect upon the whole court, the chief justice included, especially considering that the subject was a bull, and the attorney general an Emerald Islander, may be conceived, but cannot be described!
What will the reader think, when he is now informed that, for the time being, this Mr. attorney general (deaf as he is), is at present exercising the functions of a judge? Yet so it is! The departure of Mr. Chief Justice Forbes for England, rendered several new law arrangements necessary during his absence. Mr. Justice Dowling accordingly sits as chief justice, and Mr. Attorney General Kinchela as junior judge; Mr. Solicitor General Plunkett of course fills, and fills worthily, the post of attorney general; while for Mr. Commissioner Therry, with his usual good luck, and per special favour of Governor Bourke, who certainly owed him as much for his famous "letter of an Unpaid Magistrate," there has been invented the office of assistant crown prosecutor, as an additional morsel to his pickings as commissioner of the court of requests, commissioner of the land board, barrister in the supreme court, &c.!
Perhaps there is no part of the civilized world, particularly any appendage of the British crown, in which such abuses have existed, and continue to exist, as in the law courts of New South Wales.
Some fifteen years ago, there were only four lawyers besides the judge of the supreme court and the judge advocate, in the colony,—two of whom had been sent out by the home government, with salaries of three hundred pounds a year each.
Now, there are from forty to fifty cormorants of the law, of different grades as to rank and emolument but with an equality as to the voracity of most of these harpies, quite in keeping with the character of their race. Notwithstanding the numerousness of the flock, New South Wales, however, offers a very good field for a few really respectable barristers; for, since the murder of Dr. Wardell, the practice has been chiefly in the hands of Mr. Foster, Mr. Wentworth, and Mr. Commissioner Therry.
Of these, the reader is of course aware that the respectable emigrants would rather dispense with the legal assistance of Mr. Therry, and even of Mr Wentworth.
The rest of the practising lawyers, with the exception of Mr. Norton, are of such a stamp, that they would be briefless in England, but are employed because the colonists have no choice.
Mr. Norton, as an attorney, stands alone, in point of respectability.
A few years ago, when abuses were at their height, the whole squad of barristers and attorneys acted both as solicitors and counsel; and, this arrangement rendering it unnecessary for attorneys to advance fees to counsel, there was little or no restraint upon the spirit of litigation. Actions of the most frivolous description were accordingly got up for the mere purpose of making business,—until even Mr. Chief Justice Forbes was scandalized at the flagrant enormity of the system, and made what was called a division of the bar,—that is, insisted on his legal brethren confining themselves respectively to one or other of the branches of the profession,—a reform which had a very happy effect on the interests of the public, though it was much exclaimed against by the fraternity whom it more immediately affected.
Many notorious convicts have been barristers or attorneys at home, but have been transported for forgeries, altering of wills, or the commission of other infamous frauds. These ruffians, instead of being sent to Norfolk Island, worked in irons on the roads, or assigned as labourers to settlers, are at once assigned to their brother lawyers in the colony, and generally to such of these as are remarkably deficient in legal knowledge or talent of their own. The imported legal scoundrels being generally clever, or at least versed in every species of quirk, manoeuvre, and quibble, whatever attorney is so lucky as to obtain one of them as an assigned servant, is almost sure of gaining much business in what is called "the emancipist connection"—the convicts and emancipists having not only a fellow-feeling with the lawyer's convict clerk, but a pretty strong assurance that the latter will stick at no roguery to serve a client, particularly if even a trifling douceur be given to himself.
The convict clerks are often entrusted by their masters with the entire conducting of their business.
The scoundrels have access to the jails, in which they make themselves masters of the cases of the prisoners. They tamper with the witnesses. Where hard swearing is required, it is not difficult in such a place as New South Wales, to find men who will swear to any thing. Instances have even been known, while trials have been going on, of convict clerks going out of court, and making bargains with fellows, perhaps for half a pint of rum, to give prisoners a character, though these rum witnesses, may never even have seen the prisoners, till they behold them in the dock!
One of these convict clerks, perhaps as great a ruffian as ever was transported, is named Williams. He had been an attorney in Liverpool. He altered or forged a will affecting the inheritance of a considerable property, with so much dexterity, that it was long before the fraud was discovered. As usual, however, detection came at last. He was tried at Lancaster, and the case was found to be so atrocious, that, upon conviction, he was sentenced to be transported for life. On his arrival in Sydney, he was assigned to a young attorney, named Nichol Allen. Allen had been previously destitute of business; but Williams proved for him a happy windfall. From that day, practice poured in upon him. The convict clerk managed well, and, behind the curtain, both represented his employer and conducted his business. Soon after his arrival, he got out his wife, who took a house; and the transported felon, instead of being punished, is more prosperous than he was in England, enjoying every comfort of life, and all the substantial advantages, in reality, of a free emigrant.
Williams became the bosom friend and counsellor of the infamous convict Watt, whom he is reported to have assisted in the authorship of the atrocious pamphlet by Humanitas. When Watt was tried before the supreme court for receiving the stolen proof sheet, Mr. Nichol Allen was of course the ostensible attorney for the prisoner. With Williams, however, for the real solicitor,—Commissioner Therry for his counsel,—and a jury of emancipists for his judges, it would have been strange indeed if Watt had not escaped.
Mr. Justice Burton, who has not yet been named, is perhaps the only man of strict honour and integrity, exercising judicial functions, with whom New South Wales has as yet been blessed. No greater benefit could be conferred upon the colony than the appointment of this upright and independent judge to the station of chief justice.
The reader, from the faithful though faint description that has been laid before him, may form some idea of what a sink of corruption and iniquity, detestable profligacy and disgusting filth, is presented by the whole system of the law courts and the actual state of the legal profession, in New South Wales. There is perhaps no man so competent to cleanse this augean stable as Mr. Justice Burton. He has already done good service to the colony,—none greater, perhaps, than by his address to the jury at the close of the sittings of the supreme court, on the 18th of November, 1835, which is given below.
It is only matter, if not of reproach to him, at least of surprise, that, knowing as he does the crying evils attending the assignment of convict clerks to the legal profession, he has not yet taken effectual steps for having the whole crew of these ruffians swept out of Sydney.
Charge delivered by his honour Judge Burton, to the Jury, at the close of the Sessions of the Supreme Court of New South Wales, for the year 1835.
Sydney, 18th November, 1835.
Mr. Justice Burton, addressing the jury, said:—It was now his duty to discharge them from any further attendance this session; but before he did so, he must make to them a few observations, which they might carry with them into their homes, and there give them a calm and serious consideration. His own mind was seriously impressed with their importance, otherwise he should not introduce them to their attention. It had been his lot to preside alternately with his brother judges in that Court, he might say for three years; since with the present Sessions the judicial business of the Court would end for the present year, and the Court would not meet again in the exercise of its ordinary jurisdiction before the first of January.
It was a period at which, as a judge, he might himself well pause and enquire what he had been doing during that period—what had been the effect of his labours—and especially, considering the number of capital convictions which had taken place before him, and the number of sentences past, it was fitting that he should ask himself the question, what has been the effect of those sentences in the way of example? and he felt that they were equally interested in the same question. He would, therefore, before they separated, lay before them the conclusions and views to which his own mind had arrived.
It was customary for the judges at home, when on a circuit, to address the grand juries of the respective counties upon the state of the calender presented to them. No such opportunity presented itself to the judges in this colony; instead of meeting a grand jury, those gentlemen who would constitute that class, and those who would belong to the petty jury, were alike on the panel. He deemed, therefore, the observations which it would be his duty to make, if he had the opportunity of addressing a grand jury in this colony, might properly be made to them; and it had been his practice, in the colony from which he was removed to this, where the same constitution in this respect prevailed, to take an opportunity, before he separated from the jury, of making such observations as occurred to him on the state of crime within their respective districts.
He had requested a return to be made out by the Chief Clerk of the Court, of all the capital convictions that had taken place during the last three years, and he thought when he stated the number of them, they would feel he was fully justified in the course of observations he was about to make:—
1833, there had been one hundred and thirty-five capital convictions; on sixty-nine sentence of death had been passed; forty-five of those capital convictions, and fifteen of these sentences of death, had taken place upon his judicial responsibility.
In 1834, one hundred and forty-eight capital convictions, on eighty- three of which sentence of death had been passed; forty-eight of which convictions, and thirty-six of which sentences, had been before himself.
In 1835, one hundred and sixteen capital convictions, and seventy-one sentences to suffer death; fifty-six of which convictions had taken place before him, and twenty-eight of which sentences he had passed. In addition to which sentences there are thirty-three prisoners who have been capitally convicted, waiting for sentences. Whether death might be recorded or passed upon them, the number of capital convictions was a feature sufficiently striking in the administration of justice in this colony; for it was to be remarked, that capital punishment had been taken away from several offences, such as forgery, cattle stealing, stealing in a dwelling house above the value of £5. (those fruitful sources of capital convictions in former times), ever since the first of August, 1833, so that those which had taken place since that time, were all for crimes of violence, murder, rape, robbery, burglary, maliciously stabbing, shooting and wounding, and offences of similar character.
He then stated, that the calender for the present Sessions, presenting the following facts, had been furnished to him by the Crown Solicitor:—
There had been convicted for murder, two; stabbing with intent, &c., shooting at with intent to kill, cutting and maiming, assault with intent to do bodily harm, six; manslaughter, two; arson, one: piracy and burglary, eight; housebreaking, ten; highway robbery, seven; receiving, one; forgery, two; larceny on the high seas, one; larceny, four; cattle stealing, one; piracy only, one; robbery, eight; total, fifty-four.
Prisoners in jail on the 18th November, 1835, who had been in custody previous to the 2nd November, 1835, viz:—
For trial on the 18th, seven; Quarter Sessions, 6th December, thirty; stand for next Criminal Sessions, thirteen; for discharge, three; consideration, nineteen; total, seventy-two. Tried on the 18th, seven; convicted of cattle stealing, two; robbery and receiving, death recorded, four; acquited, one; total, fourteen.
He further stated, that there were still in the jail untried, the number of seventy-four prisoners, from various causes of delay, as to which it was not now his business to inquire. They were, however, neither unknown nor unheeded. With respect to the causes of this state of crime, he had nothing to do with what others had to assign—he had formed his own conclusion as to them, which he would lay before the Gentlemen of the jury, and beg them carefully to weigh and examine them and judge for themselves; he had thought the number of capital convictions alone enough to point out his own and their attention to it, as an indication of the state of the country as to crime; he had not thought it necessary, with so prominent a feature before him, to mention the number of convictions before the Supreme Court during the same period, for offences not capital; he would only briefly refer to them, and to all those offences which were tried before the several Courts of Quarter Sessions throughout the colony, in the exercise of their summary jurisdiction, and by juries; the mass of offences which were summarily disposed of by the magistrates, and at several Police Offices throughout the colony, and, added to all these, the numerous undiscovered crimes, which every man who heard him, or to whom the report of those words should come, would admit to have occurred in his own circle of knowledge; and then the picture presented to their minds would be one of the most painful reflection; it would appear to one who could look down upon the community, as if the main business of us all were the commission of crime and the punishment of it; as if the whole colony were continually in motion towards the several courts of justice; and the most painful reflection of all must be, that so many capital sentences, and the execution of them, have not had the effect of preventing crime by way of example.
In his opinion one grand cause of such a state of things, was an overwhelming defect of reglious principle in this community; a principle which he considered as the polar star to guide a man in all his conduct, and without which none other would prevent him from crime.
But that he might not be said to make so grave a charge upon light foundations, he would instance the crimes of violence,—murders,—the manslaughters in drunken revels,—the perjuries,—the false witnesses from motives of revenge or reward, which in the proceedings before him had been brought to light. These were indeed of so atrocious a character, which had occurred before him, that he would briefly instance some of them which the time that had elapsed might have caused to pass away from their memory; and he mentioned the case of Mullaly and his wife, who were convicted of stealing from the person of Patrick Sherry, by means of some deleterious drug administered to him, which for a time deprived him of sense, and perhaps only the quantity administered prevented the loss of his life; and the case of Armstrong, an overseer, who was acquitted upon a false charge brought against him by a convict under his superintendance, of shooting at him with intent to murder.
He referred to the case of Cowan and his wife, who were acquitted of the murder of a man named Kerr, as embodying in itself a picture of those evils with which the colony is visited. These persons, and one Campbell, and the deceased Kerr, lived near Liverpool, and kept an unlicensed still, and a house to which the gangs of prisoners in their neighbourhood resorted for drink; and they were cattle-stealers (it was no slander to call them such, since they have been convicted of it). On a Sunday evening their house was visited by a constable from Liverpool, about eight o'clock in the evening, who found all parties, as he expressed it, "beastly drunk," and two prisoners of the Crown in the same state: this was the last time Kerr was seen alive by any respectable person. Information was given next day, by two of Cowan's servants, to the Magistrates of Liverpool, against him for cattle-stealing; and it was proved that their having done so was known to Peter Montgomery, a convict employed as overseer at the Liverpool Hospital, in the afternoon of the same day, and that he visited Cowan afterwards, and understood by expressions made by Cowan during his intoxication, that he expected Kerr would give evidence against him; Kerr was murdered by some one on that night, and his body was afterwards found at the distance of forty or fifty rods, but the blood was traced to within seventeen or eighteen yards of Cowan's door.
At the trial, Campbell, who had given a statement before the Magistrates, which, if he had adhered to on the trial, would have brought home the guilt of that murder to both prisoners, recanted the whole of his previous statements, and they were acquitted. It appeared in evidence, that this person had been forwarded from Liverpool to Sydney, handcuffed with Cowan—was confined in the same yard in the jail with him, and the Gentlemen of the jury had had an instance before them this day, of the effect of such an association upon the evidence of a witness. It further appeared, and it deserves notice as an instance of retributive justice, as well as showing the character of this case, that another dead body was found at the same place within three months before,—and upon that occasion, a Coroner's jury had acquitted the prisoner Cowan upon the evidence of that man Kerr; and the deposition after his death was given in evidence in this Court in favour of the same prisoner, when Cowan was subsequently tried before one of the other judges on that charge, and was the main ground of his acquittal.
The conclusions to be drawn from such a case are manifest; and the judge stated, that he was sorry to say, and those who heard him could bear him out in what he said, and this was not the only case which had recently been before the Court, in which there was the strongest suspicion of an expected witness against a prisoner being made away with, to prevent his giving evidence.
In another case, an old man who is now gone to his own account, and whose name he would not therefore mention, was acquitted of maliciously shooting at a servant in his employment, and the means taken to procure that acquittal, was a false charge of felony set up against the principal witness.
In another case, as many as ten or eleven persons had successively abused the person of a woman; of course consent in such a case was impossible to be presumed; but what must be the state of moral degradation of those persons who could consecutively follow one another in the commission of such an act?
These and many other instances, to which it would be long now to refer (but they were upon his notes of evidence in cases tried before him), had brought him to the conclusion that there is an overwhelming defect of religious principle in this colony. If he was wrong in this conclusion, his reasoning upon it would fail; the jury would judge of this; but if he were correct, then it was a state of things which warranted him in calling upon them by all the means in their power to improve it.
He could not but acknowledge there was a deficiency of religious instruction in the colony. There was not that number of religious teachers its extent and population required. He did not intend to impute blame to any one individually. But when he imputed a want of religious principle, he looked around to see whether there was an adequacy of religious instruction, in order to point their attention to this circumstance; so that if they found a deficiency, they might call upon the proper authorities to make such an addition as necessity required. There were only at present thirty such persons for the whole of this scattered population, independent of a few whom the charity of Societies in England had supplied; a number too scanty to admit of any being spared for the penal settlements. It had been his lot to visit one of those penal settlements. To see them herding together without any such chance of improvement, without any religious instruction, was painful in the extreme. One man particularly had observed, in a manner which drew tears from his eyes and wrung his heart when he was placed before him for sentence—"Let a man be what he will, when he comes here he is soon as bad as the rest; a man's heart is taken from him, and there is given to him the heart of a beast." He did not impute blame to any one, and he trusted no such motives would be ascribed to him; but in a question of such vital importance, which involved not only the present, but the ultimate welfare and security of the colony, all were interested; and it was the duty of every one to do what he could to ameliorate, if possible, its present condition. He only stated the fact, and lamented it.
He felt, however, bound to say, that masters of convicts were not sufficiently attentive to the morals of their men; defective as our means of religious instruction might be, it had been proved before him, that highly respectable persons near to a church, in the same town, and within a few miles, not only neglected to oblige them to attend the church, but actually suffered them to spend the Lord's Day amidst scenes of drunkenness and debauchery. Nor was that all. It had been further proved, that the Lord's Day by some masters was made a day of labour—and that some other day was allowed to them as an equivalent. But what equivalent, he would ask, could a master give for the loss of that moral instruction which the security of society required? There were doubtless many, who, being under the necessity of attending a distant service, could not take their servants. But he would ask, whether in such situations they did all which they could? He would ask, what was the example that had been set by them? What instruction did they give them? It was in every man's power to set an example of moral conduct and observance of the Lord's Day in his own person, and to gather his family and servants together for divine worship, whether the church was near or distant. And he would further beg to impress upon their minds, that they were not in a situation to blame others for want of moral instruction, so long as they did not avail themselves of such means as were within their power. He was sorry to say, that many of the worst crimes which had been brought under his notice were committed on the Lord's Day, and he was led to apprehend, that there was a very general disregard and desecration of it.
There were other causes which led, in his opinion, to crimes in this country. With respect to them, there might be a difference of opinion: he could only say, that he had formed his own; and as he was prepared to give it to the governor, he should be wanting in candour if he did not state it to them.
He had been induced by what had been proved before him in that court, gravely to consider the question of convicts working in gangs out of irons, and felt convinced that it was one of the most frightful sources of crime to be found in the colony. He had before him a return from which it appeared that the number of convicts at this time employed upon the roads was 2240; of whom 1104 are out of irons. And, he continued, when they (the jury) considered who these men were, and what they had been, placed under the guardianship of a convict overseer, that they left their huts in any number, armed or unarmed as they pleased; in short, from the evidence he had upon his notes, respecting the conduct of the road-parties of the colony, it would appear that those establishments were like bee-hives, the inhabitants busily pouring in and out—but with this difference, the one work by day, the other by night; the one goes forth to industry, the other to plunder. To the carelessness or worse conduct of the overseers, he did attribute a vast proportion of the burglaries and robberies that were committed in the country districts. It had been proved in a recent case (he spoke from his notes), that a party of these men had committed a robbery, under such circumstances of aggravation that sentence of death had been passed upon four of them.
He must, however, say, that the settlers were themselves to blame for many of the crimes committed by the convicts belonging to road-parties; they too frequently appear to have employed these men in their leisure or working hours, or on a Sunday, paying them for their labour in money, which was spent in drink, and so prepared them for the commission of crime. And it appeared to him, that they frequently, after using their service in harvest time, remunerated them for their labour by granting them passes for several days more than was necessary to return to their gangs; and during that time the whole country they pass is laid under contribution by their depredations. If there must be road-parties, then the settlers ought to keep themselves aloof, and abstain from employing them, and from giving them improper indulgences. And if they should receive their assistance occasionally for harvest, they ought to take special care that they were sent securely to their gangs, under an overseer or constable; for although the depredations may not be committed upon the settler himself, yet he is in some measure bound to protect his neighbours.
Another source of crime, he thought to be the occupation of the waste lands of the colony by unauthorised and improper persons, both bond and free; who, commencing with nothing, or very small capital, very soon after acquire a degree of wealth which must lead every reasonable man to the conclusion they do not get it honestly. Another cause, he considered was the congregation of large numbers of convict servants in the town of Sydney; to which he attributed a vast proportion of the burglaries and robberies committed there; the master allowing his convict servants to wander about where and when they pleased after his work is done, or on the Lord's Day, instead of keeping over them that vigilant watchfulness it is his duty to do; and the premises of respectable and unsuspecting persons furnishing them with some means of concealment.
Another source of crime was the allowing improper persons to have licensed public houses. It had been proved that a great many robberies were concocted at such places, and the proprietors of many of those low houses being persons who were not far removed from the class of life in which the prisoners were themselves placed, undoubtedly such houses would be the most frequented by improper characters; but if none but respectable persons were allowed a license, such characters would not dare to enter their houses.
But there was another cause which comes home to all, which is the almost total want of superintendance of masters over their assigned servants. It had been proved to him that many robberies had been committed, which are attributable to this alone; where there had either been no overseer at all, or else a very inactive one. In such a matter every man's respectability was concerned; the reputation of himself and family required that he should keep his servants under just restraint. It had been proved before him that convict servants, six or seven in number, armed with muskets (a weapon not capable of much concealment), and masked, had committed various robberies upon their adjoining neighbours; one of them attempted a robbery even in the middle of the day, on a Sunday, in the high road from Sydney to Parramatta, armed with a musket, another person being in his company. How, he would ask, could such things be, if masters would exercise a just superintendance? Why could not they keep them to their farms, by devising some innocent and rational English amusement, for the occupation of their minds after the hours of labour, or the hours of worship on the Lord's Day? They would then not have to accuse themselves of being the means of causing depredations to be committed on others.
Further, as many robberies were committed through convict servants being left too much at liberty to roam where they pleased during the hours of sleeping, it was well worth the consideration of all parties whether convict servants might not, during those hours, be placed under such restraint as to put it beyond their power, either to injure their master's property or that of his neighbours. He felt himself that some such measure was called for, at least in and near populous towns. He knew that no individual could do it, but he spoke of recommending it as a public measure.
He had made to them such observations as presented themselves to his mind after three years of his judicial life in this colony. He might have detained them longer than usual, but that was because he considered this to be the proper time for him to bring them to their notice; and, long as he might have detained them, he trusted they would consider his observations of sufficient importance to warrant him in doing so. When they calmly looked at, and gravely considered the vast amount of crime which was passing around them, could they feel otherwise than convinced that so lamentable a circumstance must seriously retard the establishing in this colony of those free institutions which were the pride and the boast of the parent country. He could assure them he had equally an English heart with them, and was as dearly attached to the freedom of the laws; but he must press upon their attention, what, considering the nature of the population of this colony, must be the effect of these institutions, upon men passing from one class to another without moral improvement? To himself it appeared that it must be the total corruption of them all. In that point of view alone the subject was well worthy their grave attention. Free institutions could only be appreciated and enjoyed by the virtuous; coercion was for the depraved; and a vicious people have never continued to be free. He stated, that he felt he need do no more to impress upon all their minds the necessity there was of exercising all their influence to procure the moral improvement of those persons who were committed to their trust, and their utmost vigilance and superintendance over them to restrain them from crime, than draw their attention to the comparative numbers of the free and convicts in this colony, and to the fact that the tide of convict population still sets strongly here, whilst that of free emigration appears feebly to reach our shores. He stated, that it appears from the census, taken in September, 1833, published in the next Government Gazette after the 1st December, 1833, that it was then estimated that there were in this colony, free males above twelve years of age, 18,578; convict males, 21,445, and that he had been informed that the number of free emigrants since arrived, up to November, 1835, has been 2800, of whom 905 are men, the rest being women and children; and that the number of convicts arrived since the same time, has been 8163, of whom 7357 are males. He trusted they would take with them to their homes, the facts he had stated, and the opinions he had expressed, and communicate to their neighbours, so that each might judge for himself as to the justness of his views. The facts themselves he had drawn from what had come before him in evidence; as such he put them. He sincerely hoped they would have proper weight upon the mind of every one to whom they were stated; and that as he had taken the opportunity of enquiring on his part what he had done during the last three years, each one of them would also consider what he had been doing during the same period.
FOR several years past, there has been considerable clamour in the colony for an act of parliament authorising the election of a house of assembly, or colonial legislature, empowered to raise and appropriate taxes, and in other respects to exercise legislative authority.
The excitement upon this subject was not a little increased by a letter received in the colony from L. Bulwer, Esq. M. P., recommending the colonists to have a parliamentary agent in London, with instructions to watch over the interests of the colony, and to be ever ready to promote the views and wishes of the colonists.
This recommendation appeared to be so plausible and innoxious, that even many of the most respectable emigrants adopted the suggestion.
Public meetings were accordingly held,—an association calling itself the Patriotic Association, was duly formed,—subscriptions were entered into,—and Mr. Bulwer himself was appointed the agent for the colony, or rather for the association; and a remittance was made to him of £500, as the first sugar-plum for inducing his attention to the wishes of his constitutents,—a sum, however, which the honourable member declined accepting.
It was not long before the reputable colonists, who at first cordially approved of this proceeding, discovered that the association, whose very appellative of patriotic should have been deemed ominous of mischief, especially by Botany Bay folks, whom England had favoured with a few transported specimens of the soi-disant patriots ycleped friends of the people,—it was not long before the reputable colonists discovered that the patriotic association was an engine to be employed, not for obtaining measures really promotive of the interests of the colony, but for serving the purposes of party politics, even at the expence of admitting emancipated felons to an absolute equality with the free settlers, as the basis on which the leaders of the colonial liberal faction were to found their popularity.
A subscription list was handed round from door to door, and swelled with names of the emancipated,—some of whom, over and above their original crimes and sentences in England, had been convicted a second, and even a third time, in the colony, of new offences, for which they had been transported from Botany Bay to the subsidiary penal settlements of the colony.
Not only were these double and trebly convicted felons solicited to become subscribers to and admitted as members of the patriotic association, but even convicts actually undergoing their sentences, but living, nevertheless, in ease and luxury, as assigned servants of their wives, were allowed to contribute to the fund.
With the exception of a few lawyers, eager for popularity, as a means of obtaining both employment and place, and of Mr. Wentworth, a native of the colony, of Sir John Jamison, and a very small number indeed of other persons having the slightest pretensions to respectability, and being more or less dependent on or connected with the above named gentlemen, the association was deserted, as soon as its composition and real objects were ascertained and understood, by all its members of wealth and character.
The patriotic association, therefore, became a ready instrument for serving the purposes of its leaders, or rather, the leaders, bound to the degrading task of studying the humours and pandering to the audacious spirit and insolent demands of the gang over whom they could only hold sway by being ever ready to lead them on to a trampling predominancy over the free settlers,—or rather the leaders were forced to become the degraded tools of the vicious and disgraced multitude of whom they were the head.
A better specimen of this spirit cannot be stated, than that at a public meeting called for the purpose of considering the propriety of petitioning the King and the House of Commons, for the establishment of trial by jury and a house of assembly, the demagogues, instead of arguing on the propriety of adopting such a step, produced petitions ready cut and dry to their tastes.
Mr. James Macarthur, a native of the colony, a gentleman of large property and of unquestionable character, appealing to the terms of the requisition on which the meeting had been called by the sheriff, objected to the unfair and summary course pursued by the patriots and their leaders, and proposed that the party petitions should be withdrawn, and a committee appointed to frame petitions in which men having a stake in the welfare of the colony could concur, and which should be submitted to a subsequent meeting for approval.
It was with the greatest difficulty that Mr. Macarthur obtained a hearing; and he was eventually clamoured down with deafening uproar.
Not so Mr. Bland, commonly called doctor Bland, an emancipist, and an active patriotic sub-leader, who in an inflammatory speech suited to the taste and feelings of his brethren of the felonry, levelled his sarcasms at the stake claimed by the possession of wealth; and exultingly asking what was the possession of number of acres compared with that of talent, said that for his part he knew of no stake in the colony save that of "Liberty and Life,"—a sentiment which was of course received with the loudest acclamations of "bravo, Bland!" "Bland for ever!" "bravo!" &c. &c.
Even Thistlewood or Doctor Watson, the cobler Preston or the madman Benbow, never went so far as this.
Considering that Mr. Bland is not only the medical adviser of the present chief justice of the colony, Mr. Forbes, but that he is also his honour's political confident and jackall, the sans-culotte doctrines broached by him are another evidence of the connection of the colonial government and its functionaries with principles and parties of whom the honest radicals of England and all other civilized countries would be ashamed, and with whom they would scorn to hold communion on any terms.
To such an extent, indeed, did the demagogues of the patriotic association go, that when the sheriff, with the best intentions, even towards the accomplishment of the objects of the meeting, suggested that a tirade which had just been uttered against his Majesty's principal secretary of state for the colonies was calculated rather to retard than to forward the wishes of the petitioners, Mr. Wentworth, in a furious and most disrespectful philippic, accused the sheriff of unfairness and partiality,—stood up for the right of every man to say whatever he pleased,—declared that the meeting did not want the sheriff there,—and insolently threatened to have him turned out of the chair, and his brother demagogue Sir John Jamison put in his place!
As for poor Jamison, he, as is customary with him, endeavoured to cloak his want of talent and capacity for public speaking, under the plea of being rather unwell,—having caught a cold,—being troubled with a bad headache, &c. &c.
After several such meetings as that which has just been but slightly alluded to, the sheriff, in disgust at the coarseness of the proceedings, and in prudent dislike to the violent and dangerous purposes of the popular speakers, at length refused to call any more public meetings on their requisition, and the patriots, deserted, as has already been stated, by every thing respectable in the colony, were left to get up their own exhibitions as they best might.
It is proper that the British public and the government at home should know that these are the assemblages which have the presumption to call themselves public meetings of the free inhabitants (for which please to read freed inhabitants!) of the colony, and to send home their petitions as being those of the free settlers at large,—assemblages in which Mr. Wentworth is the sole framer of the resolutions and petitions, and the sole orator both willing and able to speak in their support!
Had anything like dispassionate reason or decent moderation ever governed the proceedings, the reputable inhabitants would have continued their attendance; but as the thing was managed, they were forced to leave it with disgust; and Messrs. Wentworth, Jamison, Bland, Samuel Lyons and Co. have ever since had none but the gang for their auditors and supporters!
The respectable free inhabitants,—who at first only withdrew from the public meetings, seeing the high hand with which the demagogues attempted to bear sway,—and instructed by the fatal results of the experiment of suffering emancipists to act as jurors, as well as by the frightful increase of crime consequent upon that experiment, and upon the lax measures of the colonial government as to the discipline of the convicts and the ticket-of-leave men, at length found it necessary to bestir themselves.
It may be necessary to state that such a thing as a respectable public meeting, for a political purpose, cannot take place in New South Wales. The thing, from the peculiar composition of the colonial society, has been found to be an utter impossibility. No rational or dispassionate man would be suffered to speak.
It cannot be supposed that any gentleman, presuming to dissent from the opinions of the patriots, should stand forth merely to be blackguarded by infuriated demagogues and their gang. It would even be unsafe for any respectable man to do so.
Several gentlemen, therefore, met and consulted, and, carefully keeping in view the known sentiments of the reputable inhabitants of the colony, prepared such petitions to his Majesty and to the House of Commons as they thought would express the general feeling of that class.
They then gave the utmost publicity to their proceedings,—published the substance of the petitions in the newspapers,—and invited their brother colonists to sign copies of the petitions sent for that purpose to the different banks in Sydney, where they soon received the signatures of all the most respectable and independent men in the colony. The signatures to these petitions speak for themselves, and by their weight and worth make the petitions of the patriots kick the beam.
The patriot petitions falsely pretend to be the petitions of the colonists.
The counter-petitions, on the other hand, are the petitions of the "members of council, magistrates, clergy, landholders, merchants, and other free inhabitants of New South Wales," whose names are annexed to them.
These petitioners pretend to speak no other sentiments than their own; they call for no new and dangerous experiments on subjects so pregnant with mischief as those comprehended in the views of the patriots; they satisfy themselves with warning the government and parliament of the evil consequences which have resulted from the experiments that have already been undertaken; they respectfully state their conviction that alterations in the system of the colonial government are indispensably necessary; but, calling earnestly upon the government and the parliament to institute inquiry into the actual state of the colony, leave it to the wisdom of parliament and of his Majesty's government to devise what the remedial measures ought to be.
A more becoming or more temperate petition was never presented to the House of Commons than that now referred to, and of which the following is the substance.
The petition, as has been already stated, sets forth that it is the petition of the undersigned members of council, magistrates, clergy, landholders, merchants, and other free inhabitants of New South Wales,
And it respectfully sheweth;
THAT although the colony of New South Wales, as regards its agriculture, commerce, and revenue, presents an aspect of extraordinary and unexampled prosperity, yet, apprehending the best interests of this community to be threatened with serious danger, which a timely enquiry may avert, the petitioners feel it to be their duty, on the occasion of the expiration of the existing act of parliament, and the enactment of a new law for the government of the colony, humbly to submit, for the consideration of the House of Commons, a statement of the evils they are at present exposed to, and the grounds of their apprehensions for the future.
The petitioners in the first place entreat the attention of the House to the fearful increase of crime that has of late years taken place in the colony; the particulars of which are fully set forth, as well as several of the causes that have led to so lamentable a state of things, in a charge delivered by the honourable Mr. Justice Burton, to the jury at the close of the sessions of the supreme court for the year 1835, a copy of which is appended to the petition, together with a return of the criminal cases that have occurred since that time. These documents, the petitioners conceive, afford full proof of the alarming increase and extent of crime in the colony, and clearly establish the necessity for some change in a system that produces such results.
The petitioners in the next place beg to advert to the existing colonial law for the regulation of juries in the supreme court, and in the courts of quarter sessions; by the provisions of which law, individuals who have undergone sentence of transportation and other ignominious punishments, as well as persons of bad repute and low standing in society, have been placed upon a footing with magistrates and colonists of the highest respectability. This the petitioners conceive to be repugnant to the spirit of the law of England, as well as at variance with its practice; and, if not expressly forbidden by that law, they humbly submit, that it is merely because in a moral and virtuous society, like that of Great Britain, there is no necessity for such a prohibition; whereas, in the community of New South Wales, which is unhappily so differently constituted, additional precautions are, in the opinion of the petitioners, indispensably necessary to guard the administration of justice from any sinister and contaminating influence.
That if persons who have undergone punishment for their crimes, and of bad repute, be entitled to sit as jurors, the same reasoning, carried a step farther, would render them eligible as judges,—a proposition revolting to every right feeling, and too monstrous to be for a moment entertained.
The petitioners state that they are aware that one of the principal objects proposed to be attained by the New South Wales jury law, was to elevate the tone of public feeling, and to hold out to the convict an inducement to reform; but they respectfully submit, that even in this point of view, the effect of the measure is quite the reverse; and that its unavoidable tendency is to degrade the respectable portion of the community, and produce a general debasement throughout the colony.
That the law, in its present shape, was passed through the legislative council, in opposition to the votes and conscientious opinions of the most experienced and independent members; and, as the petitioners are informed, was intended merely as an experiment, the failure of which, they have reason to believe, is now fully admitted by the supporters of the measure.
That one of the obvious and natural effects of this law is to encourage crime, by the facility it affords to the guilty to devise plans for ensuring acquittal; whilst its operation, on the other hand, as regards innocent persons, might be such as the petitioners tremble even to think of, were its pernicious tendency not restrained by the right which is still left in criminal cases, to the party upon trial, to demand a jury of military officers. And the petitioners humbly submit, that if the law be continued upon the same principle as at present, and extended to all cases, both criminal and civil, it will necessarily have the effect of deterring men of character from investing capital, or becoming settlers, in the colony, and prove a manifest injustice to the emigrants, and the native-born inhabitants, and to all persons of respectability, of whatever class; who will thus be virtually deprived of the right of trial by their peers, in cases involving property, reputation, liberty, and life; and that, too, in a community in which perjury is of every-day occurrence.
The petitioners in the next place beg leave to bring under the notice of the House, the important subject of the disposal of the crown lands, which have become a fruitful source of revenue, and the funds arising from which, if judiciously laid out in the introduction into the colony of industrious and well-conducted families of the labouring classes, would, in the opinion of the petitioners, be the most obvious and powerful means of raising the colony from its present depth of moral debasement. The petitioners, impressed with this belief, state that they have observed with the deepest concern and affliction, that notwithstanding the virtual promise of his Majesty's secretary of state for the colonies, that these funds should be devoted solely to the encouragement of emigration, a large proportion of them has been proposed to be applied to other local purposes,—a measure so injurious to the best interests of their community, that the petitioners feel themselves bound to appeal against it by every means in their power.
Relying with the most perfect confidence in the benevolent disposition of his Majesty, and in the wisdom and justice of the House, the petitioners feel assured, that the subject requires only to be brought under the consideration of their sovereign and of parliament, to secure the adoption of measures, by which these funds may be restored, in their full amount, and applied in the most advantageous manner to the accomplishment of the important ends for which they appear to have been providentially destined; namely, the reformation of society in the colony and the infusion into it of that just, moral feeling, which is the only secure foundation of free institutions.
The petitioners then entreat the House to bear in mind, that from the facility of acquiring wealth in New South Wales, by dishonest and disreputable practices, the possession of property affords but slight proof of good character; a state of things which the petitioners are of opinion must necessarily prevail, so long as transportation is continued, unless an entire change in the management and discipline of the convicts can be effected, which under the present circumstances of the colony, they conceive to be hopeless, if not almost impracticable.
The petitioners therefore humbly submit, that if it be proposed to confer free institutions upon this community, property ought not to form the sole standard for the regulation of the elective and representative franchises.
The petitioners further submit, for the consideration of the House, that if the convict, upon the expiration of his term of transportation, be admitted to the exercise of all the rights and privileges of citizenship in the colony, transportation, as regards the mother-country, will no longer operate as a punishment, but as an incitement to the commission of crime; while the consequences of such a system, as regards the colony, would be disastrous in the extreme.
The petitioners state that they have dwelt upon these subjects not only as vitally affecting the present and future welfare of the colony, but as intimately connected with the whole system of secondary punishment, and involving considerations of the utmost importance to the empire at large; and in submitting their views to the high feeling and enlightened judgment of a British senate, they feel assured that the result will be such, as at once to protect the interests of this remote dependency, and to advance the national prosperity.
The petitioners with all deference submit, that in a community so peculiarly constituted as that of New South Wales, the administration of justice, and more especially in criminal matters, should be prompt, certain, and energetic; and that notwithstanding considerable improvement has of late been effected in the mode of conducting the business of the supreme court, it still admits of important reforms, which would tend greatly to the public advantage.
That the judges of the supreme court are liable to be dismissed at pleasure, instead of retaining office during good conduct; and that by the appointment of the chief justice to a seat in the legislative council, the exercise of judicial and legislative authority is united in one person—departures from established constitutional principles for which the petitioners are not aware that any good reason can be assigned.
That the legislative council, as at present constituted, is inadequate to the exigencies of the colony, and has no hold upon the public confidence; as well from the number of its members being too limited, and the majority of these members consisting of civil officers of the colonial government, as from its debates not being open to the public; and the right to originate measures being confined to the governor, as president of the council—a circumstance in itself sufficient, as the petitioners humbly conceive, materially to affect that free expression of opinion, which is so essential to a legislative body.
That by a recent judgment of the supreme court of Van Dieman's Land, considerable doubt has been thrown upon the validity of titles to landed property in either colony; it having been decided by that court, that his Majesty cannot, without the concurrence of parliament, delegate a power to alienate the crown lands; and that the governors of the colonies have consequently never possessed legal authority to execute grants, whether under the old tenure of quit-rent, or under the present regulations for the sale of the crown lands.
That doubts are also entertained, whether the marriage laws, or what portion of them, extend to the colony—a subject regarding which the petitioners feel deep anxiety, inasmuch as it seriously affects the rights of inheritance, and the interests of their children.
The petitioners most earnestly entreat that, in deliberating upon the bill for the future government of the colony, which they are informed is about to be submitted to parliament by his Majesty's ministers, the honourable house will be pleased to institute a full investigation into its present circumstances and condition; and more especially to take into consideration the following important subjects, viz.:—
The efficiency of transportation to New South Wales as a secondary punishment—whether it shall be continued, and under what alterations of the present system—or, if discontinued, in what manner it may be made gradually to cease, so as to produce the greatest degree of good to the parent country with the least detriment to the colony; the interests of which might sustain much injury from too sudden a change.
The capabilities of the colony as a free settlement, and the most effectual means of developing its resources, and elevating the character of its inhabitants by the encouragement of emigration, and by the adoption of some well-devised scheme of religious and moral instruction.
How far it may be wise and expedient to extend the legislative council of the colony, and to effect such changes in its constitution as to render it efficient for all present purposes, and a step towards the attainment of a representative legislature.
Whether, under the peculiar circumstances of this colony, a conditional pardon, or the completion of the term of transportation, is to be held equivalent to the King's pardon, in removing legal disabilities, and what should be the qualifications respectively for grand and petty jurors.
The settlement of titles to landed property acquired from the crown, and of the marriage laws retrospectively, as well as for the future, and the most certain and effectual mode of determining what statutes shall and what statutes shall not be in force in the colony.
The petitioners, in making this appeal to the House, state that they repose the firmest reliance on its wisdom and justice; and feel confident that whatever measures may be determined upon by parliament, and sanctioned by the approval of his Majesty, will be such as to secure the best interests of the colony, strengthening those ties which bind it to the parent state, and rendering it every way worthy of its British origin.
MR. Chief Justice Forbes is now in England. He left the colony in April last, about a month after the departure of the author of this work.
The sickly condition of the colony, as regards its social and moral phenomena, drove the author from its shores, that he might have the happiness of once more breathing the purer political atmosphere of his native country.
The ostensibe motive of the chief justice for paying a visit to England, was the benefit of his honour's physical health.
But, it is well enough understood in the colony that his solicitude for the health of the colonial government, threatened as it is with being speedily subverted, is the real cause of his honour's long and humiliating voyage. It was indispensably necessary to adopt some "conservative" measure, proportionate to the violence of the paroxysms with which Sir Richard Bourke's government has recently been visited,—convulsed as it is to its very core by the vigour of the attacks that have been made upon it.
The utter failure of the governor to make out a case of oppression against the author, by means of the court of inquiry which he appointed to investigate the author's treatment of his convict servants, whereby the responsibility of its own misrule would have been transferred from the colonial government to the respectable free settlers and territorial magistrates,—the acquittal of the author, which the governor himself was reluctantly obliged to pronounce upon the evidence laid before him the court of enquiry, after seven days had been devoted to the "strict" examination of the author's numerous convict servants,—the utter failure to sustain the charges against the author, so infamously trumped up by Commissioner Therry and his confederates, by a single scintilla of evidence, although the author underwent the severe ordeal of more than seventy convicts, his assigned servants, being examined against him, was in itself sufficient to shake Sir Richard's government to its very base.
The author published the entire proceedings of the court of inquiry, in the colony, with a narrative of the events immediately preceding and consequent upon that uncalled for and insulting measure.
He cannot better express the scorn with which he viewed the accusations, and the contempt he felt for his accusers, than by quoting from that pamphlet the few words he addressed to the court of inquiry, when, after seven days of investigation, he was called upon by the court to make "such remarks on the evidence and the proceedings as he might think proper."
"Mr. Mudie replied, that his defence was contained in the cross-examination of his accusers, which then lay upon the table, and he trusted he would never see the day, when it became necessary for him to require a character from any prisoner of the crown; and if that day did arrive, he hoped he should cease to live."
Upon this high ground the author was determined to stand, and did stand.
Accordingly, of his numerous friends, he did not condescend to call any as witnesses, in his favour. No persons were examined but his own servants,—both convicts and free labourers; and yet by their examination alone, he was triumphantly exculpated.
He may be pardoned the egotism of saying, that he knew and felt his character stood too high in the colony, for the calling of witnesses on his part to be necessary.
Respect for the public of England, however, to whom the author's conduct in the colony is of course unknown, induced him afterwards to request the testimonials in favour of his conduct and of his character, which he has respectfully appended to the present work, and of which he will only say, that they are written by the principal men, as to rank, integrity, and influence, in New South Wales, which is not only well known in the colony, but, as respects several of the gentlemen who have done the author this act of justice, is well known in England also.
But although the author was fully acquitted, and although Sir Richard Bourke himself could not avoid pronouncing officially upon the evidence, "that your (the author's) general conduct towards your assigned servants had not been marked by harshness or oppression," and that "it does not appear to have been any part of the system laid down for the management of your (the author's) assigned servants to detract from the ration which the government has directed to be issued, either in its quantity or quality,"—but although the author was thus fully acquitted, yet was he made a victim to the political system and the sinister policy of the colonial government.
On reference to preceding Chapters wherein are detailed the treatment one of the author's runaway convict servants experienced at government house, and the efforts made by the colonial government to impute the insubordination of the convicts to the tyranny of their assignee masters, it will be easily understood that a motive still existed for the colonial government to do something that should, even yet, if possible, affix some disgrace, or at least some semblance of obloquy and suspicion, upon the author.
Sir Richard Bourke, accordingly, without reason assigned, dismissed the author from the commission of the peace for the territory,—dismissed him without reason assigned, although, as is proved by the letters of two governors of the colony, viz. General Sir Ralph Darling and Colonel Sir Patrick Lindesay, by those of the late colonial secretary, Major Goulburn, and of Mr. Foster, the chairman of the courts of quarter sessions, and of numerous members of council, magistrates, and clergymen, the author "was always found to perform his magisterial duties with great zeal, ability, and impartiality!"
There can be no doubt, therefore, in the mind of any dispassionate man, or in that of his majesty's government, especially considering all that has been divulged in this work, that the author had this indignity put upon him for a political purpose, and from the base motives of the very base and despicable political party, whose misconduct and misgovernment have in these pages been so thoroughly exposed and so undeniably established.
His Excellency Governor Bourke, it is true, did the author the very great honour of including him with thirty-two others of the territorial magistrates, whom he at the same time dismissed also from the commission of the peace,—and who are known and will be admitted to rank amongst the most upright, respectable, and independent men in the colony.
But the goodly and right worshipful company with whom the author was associated in his dismissal, only completes the proof that it was from a political motive, that the author was deprived of his commission of the peace.
Indeed, the convict Watt,—the governor's political and literary champion,—whose sole authority the governor and Colonel Wilson considered decisive on another question (see a former Chapter), boasted that the thirty-three magistrates, of whom the author was one, were removed from the commission of the peace through the exertion of his political influence,—through the influence of a ruffian respecting whom the Rev. Dr. Lang says, in his letter (see appendix), "Your (the author's) exertions in endeavouring to bring to justice one of the greatest pests of society with which this colony has been afflicted (the convict Watt) entitle you to the commendation of the colony!"
Governor Bourke assigned no reason for the dismissal of any one of the thirty-three magistrates whom he at once deprived of their commissions of the peace; and he refused to assign any reason for so unprecedented, arbitrary, and unjustifiable a stretch of power, to such of these gentlemen as requested it.
As Governor Bourke would assign no reason for the author's dismissal, the latter may be pardoned for quoting a few passages from the appended letters, as showing why he ought not to have been dismissed.
Lieutenant General Sir Ralph Darling, the late governor of the colony, says, "I never knew or heard that I am at present aware of, any thing derogatory to your character. As you were appointed by me to the magistracy, it has afforded me much satisfaction to observe the testimony borne to your public conduct in the letter of Mr. William Foster, late chairman of the quarter sessions, who says, 'that he always found you to perform your magisterial duties, with great zeal, ability, and impartiality.'"
W. Foster, Esq., quoted as above by Sir Ralph Darling, says, "My late situation of chairman of the courts of quarter sessions gave me frequent opportunities of observing your conduct as a justice of the peace; and I feel it but an act of justice to you to say, that I always found you to perform your magisterial duties with great zeal, ability, and impartiality."
Sir Patrick Lindesay, who was Lieutenant-Governor of the colony, during the interval between the departure of Sir Ralph Darling and the arrival of Sir Richard Bourke, says, "I am happy to say that during the whole time I served in that country (New South Wales) including the period I exercised the government of the colony, I never heard or knew of any thing derogatory to your character as a gentleman, or touching your conduct as a justice of the peace."
Major Goulburn, the late colonial secretary, says, "It affords me much gratification to be able to state, in reply to your enquiry of the 17th, that, during the period of my holding the office of colonial secretary in New South Wales, no circumstance came under my notice prejudicial to your character as a gentleman and a colonist, or as an assignee of convict labour: with reference to which last relation, I remember your having voluntarily deposited in my hands a copy of the rules which you had established at Castle Forbes;—rules, which struck me, at the time, as having been framed with a very praiseworthy attention to the well-being of the prisoners of the crown confided to your care."
The Rev. S. Marsden, senior chaplain of the colony, says, speaking of the dismissal of the author, and thirty-two other magistrates from the commission of the peace, "I cannot account for this public measure, as I have never heard of any reason being assigned for it. As an individual, I regret on public grounds that the government should have done an act so opposed to the public feeling."
The Rev. M. D. Mears, one of the chaplains of the colony, says, "I have great satisfaction in stating, that for a period of ten years, during which I have had the pleasure of your acquaintance, I have esteemed you for your personal worth and integrity; and although I must confess myself incompetent to form a due estimate of your conduct as a magistrate, yet, judging from the manner in which you fill all the relative duties of a member of society, I feel assured that in the discharge of the duties of that very responsible situation (in a penal colony especially) you have been actuated by the purest motives."
The Rev. Dr. Lang, senior minister of the Scots church, principal of the Australian college, Sydney, and author of an Historical and Statistical Account of New South Wales, says, "your exertions as a settler have been praiseworthy and exemplary, your endeavours to procure the regular dispensation of the ordinances of religion in your neighbourhood, zealous and disinterested, and your exertions in endeavouring to bring to justice one of the greatest pests to society with which this colony has been afflicted, (the convict William Watt) such as entitle you to the commendation of the colony."
The Rev. John Macgarvie, minister of St. Andrew's Scots church, Sydney, says, "It gives me much pleasure to state, that during a personal acquaintance of more than seven years, I have neither known or heard any circumstance that could affect your character as a private gentleman, or as a respected member of society. I have had occasion to sojourn in your house at Castle Forbes. I have repeatedly exercised the duties of my sacred calling in the family of your nearest relatives, where you resided, and I have often met you in private life; and I have not the slightest hesitation in adding to that of your numerous friends, my humble tribute of testimony to the correctness of your deportment, and excellence of your character." "It also comes within my own knowledge, that you have given every encouragement to the performance of divine service in your own house, when opportunity offered; that you have proposed to set apart a portion of ground on your own estate for the erection of a church; and in every instance in which ministers of our communion (and of those I speak with perfect certainty) have expressed a desire to exercise their sacred functions at Patrick's Plains or Castle Forbes, you have forwarded their views and opened your hospitable mansion for their reception. When I attended at Castle Forbes, I was particularly gratified by the appearance of comfort, regularity, and respect presented by the convict portion of the audience." "Your firmness, discrimination, urbanity, and strict love of justice and truth in private life, enable me to judge that upright and honourable feelings only have actuated your conduct in dispensing justice and law (as a magistrate) impartially, to bond and free."
The Rev. W. Garven, minister of the Scots church, Maitland, says, "I have now had considerable acquaintance and intercourse with you; and can with candour say, that I never heard anything of you but what became you at once as a gentleman and a magistrate. As to your treatment of your convict servants, I have once and again, in course of conversation, heard individuals, unbiassed and almost daily cognizant of the fact, declare that it was eminently generous and kind. Any thing to the contrary, I can boldly aver, I never saw, and I have been repeatedly, and for days at a time, an inmate of Castle Forbes. Indeed, all my observation leads me to the conclusion that it was any thing but harsh and oppressive. I may add, that you were mainly instrumental in securing and continuing my services occasionally as a minister of the gospel at Patrick's Plains; and while your men, so far as convicts were concerned, had almost exclusively the benefit of these services,—divine worship, from your appropriation of a room in your house to the purpose, being celebrated on your premises,—of their attendance on them I can speak in the highest terms. They not merely turned out well, but were well attired, clean, orderly, and attentive; and who that knows the general character of convicts, can refuse you the credit of the whole?"
The Rev. R. Mansfield, minister of the Wesleyan chapel, Sydney, says, "In reply to your enquiries whether I have ever known any thing in your conduct to affect your character, either as a private gentleman, or as a justice of the peace, I can not only give a decided negative, but must add, that the high esteem in which you have ever been held by the most honourable and virtuous classes of this community, is an abundant testimonial for your unsullied reputation. I have now had the pleasure of calling you my intimate friend for more than seven years, and during the whole of that period I have entertained the highest opinion of your honour as a gentleman, and of your virtues as a christian." "In the management of your convict servants, you displayed sound judgment and heartfelt benevolence. I accompanied you, in your daily rounds, through the huts of your men, and witnessed the lively interest you took in their welfare, and the grateful feelings with which that solicitude was acknowledged. At your request, I performed divine service in your barn, and was delighted with the neat, comfortable appearance, and the serious and attentive demeanour of your convict and other servants."
W. Berry, Esq., a member of the legislative council, says, "I beg to say, that you were introduced to me in London by Sir Charles Forbes, Bart., in 1823, and soon after came to this colony as an agriculturist; and it gives me much pleasure to state, that during this long period I have never heard of any thing to affect your character as a gentleman. On the contrary, to my knowledge, you have honourably supported your character through all the vicissitudes of this colony; and although, from the distance of our respective establishments, your conduct as a magistrate has never come under my observation, I have never heard any thing to your prejudice in that capacity."
W. Lithgow, Esq., a member of the legislative council, and accountant general for the colony, says, "I am happy that I can, with truth, declare, that ever since I have had the pleasure of your acquaintance, no act of yours has ever come under my observation, which I did not consider as, in every way, creditable to your character, both as a private gentleman and as a justice of the peace."
E. C. Close, Esq. a member of the legislative council, says, "As to the magisterial part of the matter, the cause of your suspension will speak volumes in itself, without any assistance from my feeble pen. I regret that you, or any of you, have been made martyrs through a policy which I deplore."
R. Jones, Esq. a member of the legislative council, says, "I beg to state that I have been acquainted with you upwards of ten years, and during that period I have never known any thing in your conduct discreditable to you either as a magistrate or as a private gentleman. On the contrary, I believe you to have been an active, useful, and independent justice of the peace; and I consider your recent dismissal by his excellency the governor, from the commission of the peace, an arbitrary act, and an unjust abuse of the power vested in him as supreme ruler in this colony."
Dr. Carlyle, a territorial magistrate, says, "This I can safely say, a fifteen years' acquaintance (during which I have been in the frequent habit of receiving your hospitality) has left the impression upon my mind that you are incapable of any act derogatory to the character of a gentleman in every respect."
Mr. Barker, a territorial magistrate, says, "With regard to the first question, I can only reply by reiterating the sentiments of every respectable colonist,—that I most sincerely believe you have at all times conducted yourself as became a gentleman,—a greater proof of which cannot be, than the estimation in which you are held by persons of respectability, and the very close intimacy that subsists between you and them. With respect to your magisterial capacity, I have every reason to believe you have acted most conscientiously in the discharge of the various arduous duties imposed by that office."
Robert Campbell, Esq., of Bligh Street, one of the principal merchants in Sydney, says, "You have at all times, while I have had the pleasure of your acquaintance, which has been for fourteen years, conducted yourself as a gentleman, both in your private capacity, and as a justice of the peace for the colony."
J. Coghill, Esq., a territorial magistrate and landowner, says, "I never heard or knew any thing to affect your character, in the slightest degree, either as a private gentleman or a justice of the peace. I regret to find you should think it necessary to defend yourself against the vile attacks of the worst of mankind. In leaving the colony, you carry with you the respect and good wishes of the respectable part of the community."
J. Norton, Esq., the principal and most respectable solicitor in the colony, says, "During the long period I have had the pleasure of your acquaintance (now nearly fourteen years), I have entertained the highest opinion of your character as a gentleman: and although I have not had much opportunity of judging of your conduct as a magistrate, I have been led to entertain an impression I consider universally felt in this community, of the conscientious and discriminating manner in which you have at all times discharged that public and important duty."
Colonel Mackenzie, late of the 4th regiment, now a landowner and territorial magistrate, says, "During the period of my acquaintance with you, I neither know nor have heard of any thing derogatory to your character as a gentleman or a magistrate in the commission of the peace."
Major Innes, late of the 3rd foot, but now a land-owner and a territorial magistrate, says, "I beg to say that during the period of nearly fourteen years I have had the pleasure of your acquaintance, I have never known any thing derogatory to your character."
Major Lockyer, formerly of the 57th foot, now a land-owner and territorial magistrate, gives a similar testimony.
Captain Piper, late of the 102nd regiment, a territorial magistrate and a land-owner, gives a similar testimony.
W. Cordeaux, Esq., formerly a commissory, and now a landowner and a territorial magistrate, gives a similar testimony.
Edye Manning, Esq., a territorial magistrate, and a merchant in Sydney, gives a similar testimony.
W. Macpherson, Esq., an ex-magistrate, and still collector of the internal revenue of the colony, gives a similar testimony.
J. Lamb, Esq, a merchant, and an ex-magistrate, gives a similar testimony.
D. Reid, Esq. a land-owner, and a magistrate, gives a similar testimony.
W. Dumaresq, Esq. a land-owner, and an ex-magistrate, gives a similar testimony.
J. B. Bettington, Esq. a territorial magistrate and a merchant, gives a similar testimony.
George Brooks, Esq. one of the colonial surgeons and an ex-magistrate, gives a similar testimony.
T. Walker, Esq., merchant and magistrate, gives a similar testimony.
The author treats his dismissal from the magistracy by Governor Bourke, or any other attempt at putting an affront or indignity upon him, by such a government as that of New South Wales now is, with as much contempt and scorn, as he treated the accusations of his convict servants, to which the colonial government listened, or were disposed to listen, with so much eagerness.
He does not exaggerate, when he declares that he considers the good or bad opinion of the convicts themselves, or the good or bad opinion of their convict-loving governors, as being precisely of the same value, or rather as being equally insignificant and worthless.
Nay, considering who the gentlemen are, along with whom the author was dismissed from the magistracy, he looks upon his dismissal as a positive honour conferred upon him, instead of an indignity.
In a preceding chapter he has stated that the independent territorial magistrates are so thoroughly weary of the thankless duties imposed upon them by an imbecile government, and of the never-ending task of instructing the soldier-justices of Governor Bourke, that they have in a great measure abandoned to the latter the whole magisterial business of the colony, in the hope that the evil may work its own cure.
Dismissal by these gentleman would, therefore, be regarded as a relief from the odious task of serving a government which they despise.
Indeed, nothing but pity for the colony, considering the sort of persons who would have been put in the commission of the peace in their room, prevented all the magistrates of honorable and independent feeling from resigning en masse, immediately after the tyrannical dismissal of their thirty-three brother magistrates. Even that consideration was not enough to prevent William Dumaresq, Esq., from indignantly resigning his commission as a magistrate.
The reader, it is respectfully presumed, must be pretty well satisfied that no gentleman could feel dismissal from the magistracy by such a government, and under the circumstances which have been stated, as in the slightest degree disgraceful to him.
The author, for his own part, has always been in the condition of a gentleman, and in the habit of associating with gentlemen. In that character, he has no hesitation in expressing his opinion that General Bourke has forfeited his pretensions to the same rank, and indeed, has lost caste!
If this may seem too severe, let the reader recollect Governor Bourke's shameful suppression of Lord Goderiche's dispatch relative to General Darling, in which he (General Bourke), was specially directed to give the utmost publicity to that exculpatory document. Let the reader further recollect General Bourke's scandalous appointment of Mr. Wentworth to the magistracy,—of Mr. Wentworth, who had, in every possible way, blackguarded, traduced, and threatened, General Bourke's senior officer, General Darling, than which nothing more dangerous and indelicate, in a military sense, can easily be conceived. Let the reader—not merely the military reader, but every reader actuated by a sense of honour and the feelings of a gentleman—recollect these two facts, these two conclusive facts alone, without taking into account all the other facts by which his public character is absolutely overwhelmed, and then say whether or not General Bourke ought to be put out of military society,—degraded from the rank of a gentleman,—and deprived of the high honour of representing the person, and exercising the delegated authority, of his sovereign, as the Governor of a British colony.
But although Governor Bourke's arbitrary dismissal of thirty-three magistrates could not possibly be felt as disgraceful by any one of those gentlemen,—and assuredly it was not felt either as an indignity or as an injury by the author,—yet the author was deeply injured—irreparably injured, in his pecuniary interests, in his present fortune, and in his future comfort and independence, by those acts of the colonial government, intended, if possible, to cover its own delinquency by making him the victim.
When the Court of Inquiry was appointed to make a "strict" investigation into the conduct of the author towards his convict servants, he had in his service about one hundred convict and free labourers. A just idea, therefore, may be formed from that fact, and from the testimony of his excellency Sir Ralph Darling, and that of other gentlemen, as given in the appended letters, of the magnitude and great value of the author's agricultural operations.
Of these operations General Darling says, (referring to a time at which, while governor of the colony, he had done the author the distinguished honour of visiting him at his residence on the Hunter) "My stay at Castle Forbes was so short that I had not an opportunity of going over your grounds: but, judging from the farm-yard, there could be no doubt that they were well cultivated, and I remember remarking that the stacks of wheat were very numerous, and on a larger scale than I recollected to have seen on any former occasion."
The Rev. John McGarvie, minister of St. Andrew's Church, Sydney, says, "The estate of Castle Forbes presents one of the most extensive and best conducted agricultural establishments in New South Wales; and, as you were the first settler in that vicinity calculated to set an example of spirited enterprise to your less opulent neighbours, I feel confident that the extent and judicious management of that estate have tended, in a most material degree, to give that pleasing, comfortable, and British-like aspect to the whole district, for which it is remarkable."
Thomas Barker, Esq., a magistrate, and the most extensive purchaser of grain in the colony, says, "I have had opportunities of informing myself of the numerous difficulties a settler contends with, in bringing a tract of country into cultivation; and having visited your late estate of Castle Forbes," "my opinion of your agricultural exertions is formed from seeing the state of your farm in 1834, with the barn yard full of the largest wheat stacks I ever witnessed; doubtless your exertions must have been very great, and you must have expended a considerable sum of money in improvements, for amongst the settlers in that respectable district, I do not know any who cultivated so extensively, and sent so much wheat to the Sydney market."
Richard Jones, Esq., a member of the legislative council, says, "I have visited you at your estate, Castle Forbes, upon which much labour and expense has been bestowed; and it stands proverbial as the largest agricultural establishment in the colony."
The Rev. M. D. Mears, one of the chaplains of the colony, says, "your establishment at Castle Forbes, judging by what I have seen of it, as well as from general report, does great credit to your judgment and exertions."
The Rev. R. Mansfield, minister of the Wesleyan chapel in Sydney, says, "In the summer of the year 1834, my impression was, that your estate was the most extensive and the best conducted agricultural establishment I had ever seen, either in New South Wales or Van Dieman's Land."
The real injury, then, inflicted upon the author, is this,—that he has been forced, by the sinister proceedings and convict-policy and propensities of the colonial government, to abandon his estate of Castle Forbes,—to forego the very great pecuniary advantages derivable from his extensive, his well-combined, and profitable agricultural operations,—as certainly forced to relinquish and forego the high station and ample income which he had attained, as if he had been violently dispossessed of them by Governor Bourke's arbitrary edict, and the lawless exercise of his military and civil power.
After the insubordination produced amongst his convict servants by the reception of the bushranger at government-house,—by the appointment of the court of inquiry,—by many other impolitic and unjustifiable acts, with the details of which the author will not fatigue the reader, but all of which were calculated, directly, and apparently intentionally, to render the author an object of detestation and vengeance, not only in the eyes of his own servants, but in those of the whole convict population of the colony,—the acts of the colonial government, followed up by the dismissal of the author from the commission of the peace, rendered it absolutely impossible for the author any longer to exercise the authority of an assignee master over convict labourers, and consequently compelled him to relinquish his agricultural establishment, just after he had brought it to the high state of perfection to which it is proved it had attained.
The acts of the colonial government, indeed, as directly affecting the author's relation to the convicts, were equivalent to his proscription, and to his being put, in the eyes of the depraved beings by whom he was surrounded, without the pale of the law! The reader is aware that the mutineers upon his estate attempted to assassinate his son-in-law and partner, Mr. Larnach; and if the author himself was not exposed to the same danger, he was, at any rate, rendered incapable of any longer commanding the obedience and services of convict labourers.
After having, therefore, devoted the prime of his life,—with all his energies,—and the application of "much money and toil,"—to the reclaiming of a tract of country from the barren waste,—after having, as the appended letters prove, set an example of successful enterprise and judicious improvement that had even exercised an extensive and beneficial influence over an important district of the colony,—after having, as the same letters prove, faithfully performed all his duties as a private citizen and a justice of the peace,—after all this, and as the reward for all this, and merely because he did faithfully perform his duties as a private citizen and as a magistrate,—he has been robbed of the advantages he was about to derive from his perseverance and enterprise, and driven from his station in the colony, by the secret machinations and frantic policy of that very government by which he should have been protected,—and, he will go so far as to add,—thanked. It is surely not too much for him to expect, that the home government should make him compensation for the injury and damages he has sustained from the oppressive and unjustifiable proceedings of the functionaries exercising its delegated authority in the colony.
That the author has not made this appeal without first attempting to obtain justice, or even explanation, from Sir R. Bourke, is evident from the following correspondence:—
Castle Forbes, January 16th, 1836.
I perceive by the last commision of the Peace, my name has been omitted.
Your Excellency having done me the honor to become my guest, and to dine at my table, I am sure you will excuse the liberty I take in requesting to know if there has been any thing in my conduct derogatory to the character of a Gentleman, or a Justice of the Peace, to call for so extraordinary a proceeding, if I am right in considering it intentional.
I have the honor to be,
Your very obedient servant,
(Signed) J. MUDIE.
His Excellency Sir R. Bourke, &c. &c. &c.
No. Colonial Secretary's Office,
Sydney, 20th January, 1836.
I have had the honour to receive and lay before the Governor, your letter of the 16th instant, requesting to be favored with the grounds upon which your name has been omitted in the New Commission of the Peace, published in the Government Gazette of the 6th of this month; and in reply I do myself the honour to inform you, that His Excellency does not think it necessary to assign any reason for using his discretion in the selection of Justices of the Peace for this Colony. I have the honour to be,
Your most obedient Servant,
(Signed) ALEXANDER McLEAY.
James Mudie, Esq., Castle Forbes.
THE unprecedented progress of the colony of New South Wales, in spite of the errors (at first nearly fatal) in its government, affords a most instructive lesson to the legislators of a great naval and manufacturing power like Great Britain. It is not yet half a century since the first settlement, consisting wholly of convicts and their military guard, with a few civilians for the assistance of the governor, was formed at Sydney Cove. For the first quarter of a century, from the apathy of the home government, and the habit of regarding the settlement merely as a place of punishment for felons, little or no advance was made in developing or cultivating the natural resources of the new world which was made the scene of so extraordinary an experiment. After some encouragement, however, had been given to the settlement of free emigrants in the colony, its capacities were discovered and drawn forth with a degree of assiduity and success quite unexampled. The colony now rapidly progressed in populousness, enterprise, and wealth. In the short time of less than a quarter of a century, a territory extending several hundreds of miles in length and breadth has been occupied, partly cultivated, and opened up by roads in all directions. The capital town, Sydney, has increased to twenty thousand inhabitants; and there are twenty-nine other post towns in different parts of the country, all maintaining regular intercourse with each other and with the capital, by land or water conveyances. Sydney is handsomely built, and is now, or is immediately about to be, lighted with gas. It abounds with warehouses and shops of every description. So numerous are its wealthy inhabitants, that its streets are almost as crowded with carriages as are the busiest thoroughfares of London. There are seven newspapers, one of which is published thrice a week, and four others twice a week, making thirteen newspapers issued weekly. The exports from the colony now amount to about a million sterling per annum, and the imports, consisting chiefly of British products, are nearly of the same value. The revenue raised within the colony was estimated, for 1836, at two hundred thousand pounds, whereof more than one half was anticipated as customs duties on spirits alone. The population of the colony is not supposed to exceed eighty thousand persons; and yet the above revenue is double the amount of that which was drawn from the North American colonies of England, when their population amounted to three millions of persons. In addition to the revenue for the past year, the surplus of income over expenditure, for 1835, was estimated at sixty thousand pounds, so that the total receipts into the colonial treasury for the past year will have exceeded a quarter of a million sterling!
Although these results are chiefly attributable to the energy and enterprise of the free emigrants, yet there is a striking peculiarity in the formation and progress of the society of New South Wales, which certainly has had its share in causing so rapid a progression in wealth, as well as it has occasioned the very depraved and vicious condition of public morals in the colony, and the frightful extent of crime with which it is afflicted.
The peculiarity referred to is the convict population, and the sums of money expended by the British government for many years in providing for their subsistence; whereby the partial settlement of the colony was effected, and many roads and other valuable public works were executed, not at the expense of the colonists, but at that of the mother country.
Nor was this all. Though the convicts were certainly, in point either of industry or subordination, the very worst description of labourers and servants with which the free colonists could have been provided, yet they were a never-failing supply of labourers, such as they were. The worst of them, too, being returned upon the hands of government, and employed by government as they best could, in road gangs and on public works, the labour performed by them, whether more or less, was labour performed by them for the benefit of the colony; while their subsistence, with that of the troops and other dependents on the government, formed a market for the productions of the industrious colonists. Bad as the convict labourers and servants of the colonists were, too, all the colonists were in this respect on an equal footing; and, as they were at too great a distance from civilized countries to be in much danger from foreign competition, their competitions amongst themselves were carried on upon equal terms.
But the most remarkable circumstance is, that, compared with either the capital sunk by the British government in the colony, or with that brought into the colony by the free emigrants, or with the united amount of these capitals in the aggregate, the annual value of the productions of the colony is immensely great. Indeed, so highly productive have been and are the operations of the colonists, and so valuable are those operations in proportion to the amount of the capital embarked in them, that the regular discount upon bills at three months, charged and obtained by the colonial banks, is two and a half per cent., or at the rate of ten per cent, per annum. For money lent upon unquestionable heritable security, the interest usually paid is from ten to fifteen per cent, per annum. For money lent upon more doubtful security, but still what is considered good security, by money lenders and usurers, the enormous interest of from twenty to thirty per cent, is charged and obtained. These facts prove not only the great value of productive capital in the colony, but also the inordinately great value of its other productive powers, in comparison with the amount of the capital required for or actually embarked in putting or keeping the other productive powers in motion. So inordinately great, indeed, is the value of the productions of New South Wales, in comparison with the value or amount of the capital embarked in its formation, that the value of the productions of only two years is probably greater than the total amount of the capital as yet sunk in the formation of the colony,—and that, too, although the largest portion of the capital contributed by the home government was absolutely thrown away by the mismanagement of the first quarter of a century, and although a further large portion of it ought in fairness to be set down as having been expended, not in the formation of the colony, but in the coercion and maintenance of the felons of England.
But although the convict labourers are most objectionable on the score of industry and morality, yet there is one circumstance regarding them which has been highly favourable to the interests of an infant colony; and that is, their being composed of almost every description of skilled labourers, and also of many men of very diversified knowledge and attainments, as well as of nearly every grade as to the rank in society which they had held in the mother country. New South Wales in consequence became, suddenly, an epitome of the old and civilized society of England, in the respects which have been adverted to. There is no species, either of labour or of enterprise, which there are not to be found persons in the colony capable of undertaking. The useful and more refined arts of life, consequently, at once attained a high state of perfection, as compared with their condition even in the parent state; and even the literature of the colony is respectable as to talent, though more mischievous, perhaps, than useful, as to its application. Competent teachers in every branch of education are also to be found in the colony; which likewise contains two colleges,—an agricultural and horticultural society,—a religious tract society,—a society for promoting Christian knowledge,—a society for promoting colonial produce,—a subscription library,—five banks,—two assurance companies,—a benevolent asylum,—a Bible society,—associations for suppressing cattle stealing,—a museum,—a botanical school,—an emigrants' friends society,—a mechanics' institute,—a mechanics' school of arts,—several masonic lodges,—a church missionary society,—a Wesleyan ditto,—an observatory,—orphan schools,—a school of industry,—a steam conveyance company,—a dispensary,—and various other institutions,—besides a theatre,—with balls, concerts, races, and other public amusements;—altogether presenting a state of things perfectly unexampled in the formation of an infant community, and exhibiting the phenomenon of a colony, that has not yet existed fifty years, with most of the distinguishing features hitherto belonging only to ancient and civilized states.
How instructive is the lesson to be derived from all this,—all this accomplished in spite of the extreme moral depravity inherent in the constitution of the colonial society, and in spite of the former apathy of the home government, and of the gross errors existing in the system and committed in the administration of the colonial government. The astonishing progress of New South Wales, in short, in the arts and enjoyments of civilized life, in so short a space of time, and at so insignificant an investment, comparatively, of capital, for their acquisition, incontestably proves that so long as the Crown of England possesses extensive tracts of unappropriated lands in foreign climes, it is in the power either of the British government, or of associations of the British public for the purpose of raising the requisite capitals,—capitals trifling in their amount when compared with the prodigious magnitude of the advantages to be gained,—not only to provide an adequate outlet for the superabundant population of Great Britain and Ireland, but to form new nations, capable of repaying an enormous profit upon the capital employed in giving them birth, and of becoming, moreover, customers for the manufactures of the mother country, to an unlimited and illimitable extent. The imports of New South Wales already amount to about a million sterling per annum, employing with advantage a proportionate amount of British capital, British labour, and British shipping,—an employment which is continually augmenting, with increasing profit, of course, to the mother country. It is self-evident, therefore, that either the government or a public company might form colonies, the benefits derivable from which would be so great, both nationally and to individuals, as to set calculation at defiance, and to render the advantages which have been gained even by the East India Company, comparatively insignificant.
In order to effect such an object as this, however, the new colonial establishments should be formed at once on a scale of great magnitude, and so as to form, from the very first, a highly perfect though miniature civilized community. The colony should consist, therefore, of individuals and families of good character, selected, in due and well calculated proportions, from all the useful and productive classes of the mother country, with the proper sprinkling of persons necessary for imbuing the colony with, and continuing to cherish in it, the ornaments of civilization, as well as a proper tone of religious and moral feeling, and literary and scientific acquirement. A capital of from five to seven millions sterling would be sufficient for at once settling a colony with a population as numerous as that of New South Wales now is. The progress of such a population, of which the component parts should be harmoniously proportioned,—in which the evils of the convict system should be entirely avoided,—and which should have infused into it, from the very first, not only all the elements, but the ripened fruits, of high civilization and moral and intellectual refinement, would be incalculably great and rapid. It would be the transplantation, in short, of a perfect and civilized though small community, capable of making giant strides in subduing an unoccupied portion of the earth,—the richest pursuit indicated by political science,—and the most glorious achievement and triumph of experienced legislation and enlightened humanity.
The great financial and monetary operations both of the British government and of the British people, prove with how much ease either the government or the public could carry out well devised plans of colonization, offering the most splendid prospects of success to enlightened philanthropy, as well as a rich harvest of profit to capitalists of speculation and enterprise.
The author, who contents himself, for the present, with throwing out the suggestion, without pretending, in a work of this kind, to venture upon the details, is sure that there are many persons both willing and competent to give assistance in maturing any feasible project, founded on just principles, for practical execution. Certain he is, that, in so promising, as well as so patriotic an enterprise, if any man of influence from his wealth, his rank in society, and his character, were to take upon himself the glory of originating an undertaking which would entitle him to be regarded as one of the greatest benefactors of the human race, the public would respond to his call by speedily subscribing the required capital, and the government would afford every facility for the promotion of one of the most interesting experiments ever attempted in the history of the civilized world.
Haymarket, 16th September, 1836.
I beg to acknowledge the receipt of your letter, requesting that I would state my opinion, whether, during my government of New South Wales, I knew any thing in your conduct unbecoming the character of a private Gentleman or a Justice of the Peace; as also, of your exertions as an agriculturist? I beg to state in reply, that I never knew or heard, that I am at present aware of, anything derogatory to your character. As you were appointed by me to the Magistracy, it has afforded me much satisfaction to observe the testimony borne to your public conduct in the letter of Mr. William Foster, late Chairman of the Quarter Sessions, who says, that he "always found you to perform your Magisterial duties with great zeal, ability, and impartiality."
With regard to your exertions as an agriculturist, I can only observe, that my stay at Castle Forbes was so short, that I had not an opportunity of going over your grounds; but, judging from the farm yard, there could be no doubt that they were well cultivated; and I remember remarking, that the stacks of wheat were very numerous, and on a larger scale than I recollected to have seen on any former occasion, and that the farm yard, generally, was in the best order, and the arrangement excellent.
I have the honour to be,
Your faithful humble servant,
(Signed) RA. DARLING.
J. Mudie, Esq.
11, Brighton Crescent, Portobello, Edinburgh,
Sept. 27, 1836.
I am duly favoured with your letter of the 17th inst., requesting me to state my opinion of you, whilst I knew you in New South Wales, as regarded your conduct as a Justice of the Peace, and of your character as a private Gentleman. I am happy to say that during the whole time I served in that country, including the period I exercised the government of the Colony, I never heard or knew of any thing derogatory to your character as a Gentleman, or touching your conduct as a Justice of the Peace.
I have the honour to be,
Your very faithful servant,
(Signed) P. LINDESAY.
J. Mudie, Esq., &c. &c. &c.
Bligh Street, March 25th, 1836.
My Dear Sir,
With reference to your note of yesterday, wherein you request me to state whether, during the course of years I have been acquainted with you, I have ever known any thing in your conduct to affect your character either as a private Gentleman or as a Justice of the Peace, I consider it quite a sufficient answer to the first part of this inquiry to say that I have still the pleasure of your acquaintance, which I of course should not permit myself to have, if I felt any difficulty in answering this first part of your question in the negative.
With respect to the second branch of your question, my late situation of Chairman of the Courts of Quarter Sessions gave me frequent opportunities of observing your conduct as a Justice of the Peace; and I feel it but an act of justice to you to say, that I always found you to perform your Magisterial duties with great zeal, ability, and impartiality.
With my best wishes for your health, happiness, and prosperity, I am,
My Dear Sir,
Yours very faithfully,
(Signed) W. FOSTER
James Mudie, Esq., &c. &c. &c.
Sydney, March 26th, 1836.
I received your letter relative to your name and the names of several other Gentlemen of respectability being omitted in the last commission of the peace.
I cannot account for this public measure, as I have never heard of any reason being assigned for it. As an individual, I regret, on public grounds, that the Government should have done an act so opposed to the public feeling, and which is thought to reflect more or less dishonour upon the Magistrates. I have known some of these Gentlemen for a long time, and you amongst the number, and considered them men of character and principle.
Had any reason been given for the removal of the Magistrates from the bench, I am of opinion the public feeling would not have been so much excited.
The Government must have conceived that it would be the most prudent way to assign no cause for this measure, and therefore the Authorities took sullenly the responsibility upon themselves. I have no doubt but at some future day the real cause will be ascertained.
Your obedient humble servant,
(Signed) SAMUEL MARSDEN.
James Mudie, Esq.
March 28th, 1836.
My Dear Sir,
I beg to acknowledge the receipt of your letter of the 26th instant, in which you enquire whether I have ever known any thing in your conduct which could affect your character as a private Gentleman or a Magistrate; in reply to which I have great satisfaction in stating that for a period of ten years, during which I have had the pleasure of your acquaintance, I have esteemed you for your personal worth and integrity; and although I must confess myself incompetent to form a due estimate of your conduct as a Magistrate, yet, judging from the manner in which you fulfil all the relative duties of a member of society, I feel assured that in the discharge of the duties of that very responsible situation (in a penal colony especially) you have been actuated by the purest motives.
Your establishment at Castle Forbes, judging by what I have seen of it, as well as from general opinion, does great credit to your judgment and exertions.
My Dear Sir,
Very sincerely yours,
(Signed) M. D. MEARS.
James Mudie, Esq., &c. &c. &c.
Sydney, 28, March, 1836.
My Dear Sir,
I beg to acknowledge the receipt of your letter of the 25th inst., desiring me to state whether, during the period I have had the pleasure of your acquaintance in this colony, I had known of any thing in your procedure prejudicial to your character either as a Magistrate or as a Gentleman. In reply, I have much pleasure in stating that I have heard of nothing to your prejudice in either capacity, and that, on the contrary, your exertions as a settler have been praiseworthy and exemplary,—your exertions to procure the regular dispensation of the ordinances of religion in your neighbourhood, zealous and disinterested,—and your exertions to bring to justice one of the greatest pests of society with which this Colony has ever been afflicted, such as to entitle you to the commendation of the Colony.
Wishing you a prosperous voyage to England, I am,
My Dear Sir,
Yours very sincerely,
(Signed) J. D. LANG.
J. Mudie, Esq., &c. &c. &c.
Sydney, 30th March, 1836
I have this moment received your letter, in which you request me to state, whether I "have heard or known any thing to affect your character, as a private Gentleman, or as a Magistrate;" and also, what I "know respecting the extent of your agricultural exertions, and your mode of treatment of the convicts in your employment."
It gives me much pleasure to state, that, during a personal acquaintance of more than seven years, I have neither known nor heard any circumstance that could affect your character, as a private Gentleman or as a respected member of society. I have had occasion to sojourn in your house at Castle Forbes; I have repeatedly exercised the duties of my sacred calling, in the family of your nearest relatives, where you resided, and I have often met you in private life; and I have not the slightest hesitation in adding to that of your numerous friends, my humble tribute of testimony to the correctness of your deportment and excellence of your character.
The estate of Castle Forbes presents one of the most extensive and best conducted agricultural establishments in New South Wales; and as you were the first settler in that vicinity calculated to set an example of spirited enterprise to your less opulent neighbours, I feel confident that the extent and judicious management of that estate have tended, in a most material degree, to give that pleasing, comfortable, and British-like aspect, to the whole district, for which it is remarkable.
It also comes within my own knowledge, that you have given encouragement to the performance of divine service, in your own house, when opportunity offered; that you have proposed to set apart a portion of ground on your own estate, for the erection of a church; and in every instance in which ministers of our communion (and of these I speak with perfect certainty) have expressed a desire to exercise their sacred functions, at Patrick's Plains, or Castle Forbes, you have forwarded their views, and opened your hospitable mansion for their reception. When I attended at Castle Forbes, I was particularly gratified by the appearance of comfort, regularity, and respect, presented by the convict portion of the audience.
As I have not been present on any occasion when you have exercised the office of Magistrate, I do not feel so competent to give an opinion, as other friends perfectly acquainted with the subject. But your firmness, discrimination, urbanity, and strict love of justice and truth, in private life, enable me to judge that upright and honourable feelings only have actuated your conduct, in dispensing justice and law, impartially, to Bond and Free.
On the eve of your departure, I cannot close this letter without an assurance of the happiness it will give to your numerous friends, to hear of your safe arrival in England and speedy return to Australia. For your future happiness, I can only add my most fervent wishes.
(Signed) JOHN McGARVIE.
James Mudie, Esq., Sydney.
Maitland, 23d March, 1836.
My Dear Sir,
An' you will leave us, I cannot but regret that you have determined to do so, while I am happy to learn that your absence from the Colony is to be but temporary. I trust we shall in due course have the happiness of seeing you once more in New South Wales, in wonted health, and with good news from Old England. Permit me, as a parting token of my regard, to tender you my thanks for the great kindness I have received at your hands in this remote quarter of the globe; as also to render the tribute of my testimony to your general character and deportment.
I have now had considerable intercourse and acquaintance with you, and can with candour say, that I never knew any thing of you but what became you, at once as a Gentleman and a Magistrate.
As to your treatment of your convict servants, I have once and again, in course of conversation, heard individuals, unbiassed and almost daily cognizant of the facts, declare that it was eminently generous and kind. Any thing to the contrary, I can boldly aver, I never saw: and I have been repeatedly, and for days together, an inmate of Castle Forbes. Indeed, all my observation leads me to the conclusion, that it was any thing but harsh and oppressive.
I may add, that you were mainly instrumental in securing and continuing my services occasionally as a Minister of the Gospel at St. Patrick's Plains; and while your men, so far as convicts were concerned, had almost exclusively the benefit of those services (divine worship, from your appropriation of a room in your house to the purpose, being celebrated on your premises), of their attendance on them I can speak in the highest terms. They not only turned out well,—but were well attired, clean, orderly, and attentive. And,—who that knows the general character of convicts, can refuse you the credit of the whole?
My Dear Sir,
With best wishes for your safety and prosperity,
(Signed) JOHN H. GARVEN.
James Mudie, Esq., &c. &c. &c.
Bathurst-Street, Sydney, 30th March, 1836.
My Dear Sir,
I have the pleasure of acknowledging the receipt of your letter of the 25th instant, which, owing to my absence from town, did not reach me till yesterday.
In reply to your enquiries whether I have ever known any thing in your conduct to affect your character, either as a private Gentleman or a Justice of the Peace, I can not only give a decided negative, but must add, that the high esteem in which you have ever been held by the most honourable and virtuous classes of this community, is an abundant testimonial for your unsullied reputation.
I have now had the pleasure of calling you my intimate friend for more than seven years, and during the whole of that period I have entertained the highest opinion of your honour as a gentleman, and of your virtues as a Christian.
In the summer of the year 1831, I had the happiness of spending a fortnight under the hospitable roof of Castle Forbes, having for my fellow guests, during part of that time, some of the first gentlemen, in point of rank and wealth, in the colony. My impression was, that your estate was the most extensive and the best conducted agricultural establishment I had seen either in New South Wales or Van Dieman's Land; and that in the management of your convict servants, you displayed sound judgment, and heartfelt benevolence. I accompanied you, in your daily rounds, through the huts of your men, and witnessed the lively interest you took in their welfare, and the grateful feeling with which that solicitude was acknowledged. At your request, I performed divine service in your barn, and was delighted with the neat, comfortable appearance, and the serious and attentive demeanour, of your convict and other servants.
Wishing you a pleasant voyage to your native shores, and hoping for the pleasure of your return to Australia,
My Dear Sir,
Very truly yours,
(Signed) R. MANSFIELD.
James Mudie, Esq. &c. &c. &c.
Southgate, near London, January 19th, 1837.
My Dear Sir,
It affords me much gratification to be able to state, in reply to your enquiry of the seventeenth, that, during the period of my holding the office of colonial Secretary in New South Wales, no circumstance came under my notice prejudicial to your character as a Gentleman and a Colonist, or as an Assignee of convict labour; with reference to which last relation, I remember your having voluntarily deposited in my hands a copy of the rules which you had established at Castle Forbes;—rules, which struck me, at the time, as having been framed with a very praiseworthy attention to the well-being of the prisoners of the crown confided to your care.
Believe me to remain,
My Dear Sir,
Very faithfully yours,
(Signed) F. GOULBURN.
James Mudie, Esq.
Sydney, 26th March, 1836.
My Dear Sir,
In answer to your letter of the 24th inst., I am happy that I can with truth declare, that ever since I have had the pleasure of your acquaintance, no act of yours has come under my observation, which I did not consider as in every way creditable to your character, both as a private Gentleman and as a Justice of the Peace.
Wishing you a good and prosperous voyage and every happiness, believe me,
(Signed) WM. LITHGOW.
James Mudie, Esq., &c. &c. &c.
Sydney, New South Wales, 1st May, 1836.
My Dear Sir,
On my return from the country, I received your letter of the 24th March last, requesting I would say, whether, during the period of our acquaintance, I had ever known any thing in your conduct to affect your character as a private Gentleman or as a Justice of the Peace.
In answer, I beg to say that you were introduced to me in London by Sir Charles Forbes, Bart., in 1823, and soon after came to this Colony as an agriculturist; and it gives me much pleasure to state, that during this long period I have never heard of any thing to affect your character as a Gentleman. On the contrary, to my knowledge you have honourably supported your character through all the vicissitudes of this Colony; and although, from the distance of our respective establishments, your conduct as a Magistrate has never come under my observation, I have never heard any thing to your prejudice in that capacity.
I have the honour to be,
My Dear Sir,
Yours very truly,
(Signed) ALEXR. BERRY.
James Mudie, Esq. (late of Castle Forbes), London.
Morpeth, March 26th, 1836.
My Dear Sir,
I am in receipt of your letter of the 24th, and must say in reply to it, that I conceive your course of proceeding very injudicious and uncalled for. I think it degrading to a gentleman to beat about for a character:—for this is what no one will question in nineteen cases out of twenty*, or think of, until it is brought under notice by decided statements, the result of which is the immediate birth of some embryo illiberality or spleen from some offended quarter,—of little moment perhaps; but which cause annoyance both to the giver as well as to the receiver of such characters; and at the same time leave impressions on the mind of the public, that had there been no doubt, a thing of the kind had never been got up.
As to the Magisterial part of the matter,—the cause of your suspension will speak volumes in itself,—without any assistance from my feeble pen. I regret that you, or any of you, should have been made martyrs through a policy that I cannot but deplore.
I trust to hear of your safe arrival in Old England, and wish you a pleasant passage.
My Dear Sir,
(Signed) E. C. CLOSE.
J. Mudie, Esq.
*[The situation of the Undersigned was very peculiar. His case was one out of a thousand. He could stand upon his known character, in the Colony; but, as he intended to appeal to the home Government, and to the British Public, to whom his character and conduct as a colonist, are of course unknown, it was therefore necessary for him, in respect for His Majesty's Government and the Public of England, to collect the evidence supplied by these letters.]
Sydney, 25th March, 1836.
My Dear Sir,
I have the pleasure to acknowledge receipt of your letter of the 23d instant, requesting to be informed, whether I have ever known any thing in your conduct to affect your character, either as a Justice of the Peace or a private Gentleman; and also asking my opinion as to the extent of improvements and cultivation on your estate, Castle Forbes.
In answer, I beg to state, that I have been acquainted with you upwards of ten years, and during that period, I have never known any thing discreditable to you either as a Magistrate or as a private Gentleman. On the contrary, I believe you to have been an active, useful, and independent Justice of the Peace, and consider your recent dismissal, by his Excellency the Governor, from the Commission of the Peace, an arbitrary act, and an unjust abuse of the power vested in him as Supreme Ruler in this Colony.
I have visited you at your estate, Castle Forbes, upon which much labour and expense has been bestowed; and it stands proverbial as the largest agricultural establishment in the Colony.
Very truly yours,
(Signed) RICHARD JONES.
James Mudie, Esq., &c. &c. &c.
Sydney, 25th March, 1836.
My Dear Sir,
I do myself the pleasure to say, I received yours of yesterday's date, requesting me to state, having known you many years, if I knew any thing in your conduct as a private Gentleman, or a Justice of the Peace, to affect your character—and that from my long residence in this Colony, I have had opportunities of informing myself of the numerous difficulties a settler contends with, in bringing a tract of country into a state of cultivation, I having visited your late Estate, Castle Forbes, you request my candid opinion of the extent of your agricultural exertions.
With regard to the first question I can only reply by reiterating the sentiments of every respectable Colonist,—that I most sincerely believe you have at all times conducted yourself as became a Gentleman, a greater proof of which cannot be, than the estimation in which you are held by persons of respectability, and the very close intimacy that subsists between you and them.
With respect to your Magisterial capacity, I have every reason to believe you have acted most conscientiously in the discharge of the various arduous duties imposed by that office.
My opinion of your agricultural exertions is formed from seeing the state of your farm in 1834, with the barn yard full of the largest wheat stacks I ever witnessed. Doubtless your exertions must have been very great, and you must have expended a considerable sum of money in improvements; for amongst the settlers in that respectable district, I do not know any who cultivated so extensively, and brought so much wheat to the Sydney market.
I cannot close this without an expression of regret, that you should feel compelled to leave us. I trust, however, we may shortly have the pleasure of again enjoying your society. Believe me you carry with you every good wish for your safety and speedy return.
Yours very truly,
(Signed) THO. BARKER.
James Mudie, Esq., &c. &c. &c.
Sydney, 25th March, 1836.
My Dear Sir,
In answer to your letter of the 17th instant, I beg leave to say, that my acquaintance with you commenced in 1831, and that I have not known, or heard, of any thing in your conduct, to affect your character either as a private Gentleman and respectable member of society, or as a Magistrate.
Wishing you a pleasant voyage to England,
My Dear Sir,
Yours very sincerely,
(Signed) WM. MACPHERSON.
James Mudie, Esq.
March 23rd, 1836.
My Dear Sir,
I have this moment received yours of the 17th inst, and regret it is not in my power to speak positively as to the execution of your duties as a Justice of the Peace, having never had the honour of sitting upon the Bench with you, or witnessing any of your Magisterial proceedings; but this I can safely say, a fifteen years acquaintance, during which I have been in the frequent habit of receiving your hospitalities, has left the impression upon my mind that you are incapable of any act derogatory to the character of a Gentleman in every respect.
Should the promptness of your departure prevent my having the pleasure of seeing you, pray accept my sincere wishes for your welfare and happiness, and believe me to be,
Always sincerely yours,
(Signed) W. B. CARLYLE.
James Mudie, Esq.
Sydney, 18th March, 1836
My Dear Sir,
In compliance with your request, under yesterday's date, I have much satisfaction in stating my opinion of your conduct.
I do not know, and I have not heard of any act of yours, of a description inconsistent with the rank and respectability of the Magisterial Office.
Respecting your private character, it is sufficient to state, that had you done any thing to forfeit the designation of gentleman,—our friendly intercourse, which has existed so many years (fourteen) would not have continued to the present time.
My Dear Sir,
(Signed) GEO. BROOKS.
James Mudie, Esq.
Glenfield, 24th March, 1836.
My Dear Sir,
I beg to acknowledge the receipt of yours dated the 22nd inst, and in reply thereto have to state that during the period of my acquaintance with you I neither knew nor have heard of any thing derogatory to your character as a Gentleman or a Magistrate in the commission of the Peace.
Yours very truly,
(Signed) J. K. MACKENZIE
J. Mudie, Esq., &c. &c. &c.
Ermington, 26 March, 1836.
My Dear Sir,
In reply to your letter of the 17th inst., I have no hesitation in declaring that since I have had the pleasure of being acquainted with you, thirteen years past, I have never known or heard any thing that could affect your character either as a private Gentleman or a Justice of the Peace.
I have the honour to remain,
My Dear Sir,
Yours very sincerely,
(Signed) EDMUND LOCKYER.
James Mudie, Esquire.
Sydney, 14th March, 1836.
In reply to your letter of this date, requesting me to state whether I have ever known any thing in your conduct to affect your character during the period I have known you, I beg to say that during the period of nearly fourteen years acquaintance I have never known any thing derogatory to your character.
(Signed) ARCHD. C. INNES.
J. Mudie, Esq.
Bank, Bathurst, 26th March, 1836.
My Dear Sir,
In answer to your letter of the 17th instant, requesting to know whether, in the course of our very long acquaintance, there had been any thing in your conduct to affect your character as a private Gentleman, or as a Justice of the Peace, to which I have pleasure in saying, Certainly not. And as I hear you are about to depart the Colony, I wish you health and every good, and remain,
My Dear Sir,
Yours very faithfully,
(Signed) JOHN PIPER.
J. Mudie, Esq.
Sydney, 29th March, 1836.
My Dear Sir,
I have the pleasure of receiving your letter, in which you request to know if I have ever known any thing in your conduct to affect your character either as a private Gentleman or as a Justice of the Peace.
In reply to which I have great pleasure in saying that I never knew or heard of any thing most remotely to your prejudice in either capacity.
I am, my dear Sir.
Yours very truly,
(Signed) EDYE MANNING.
James Mudie, Esq.
Sydney, 22d March, 1836.
My Dear Sir,
As you are about to leave the Colony, I take the opportunity of saying to you, that I neither know nor have I heard of any thing that could derogate from your character as a Gentleman or as a Magistrate, during the very many years I have had the pleasure of knowing you; and I remain,
My Dear Sir,
Very truly yours,
(Signed) WILLIAM CORDEAUX.
James Mudie, Esq.
Bligh Street, 26th March, 1836.
My Dear Sir,
In reply to your note of the 23rd instant, I beg to assure you that you have at all times, while I have had the pleasure of your acquaintance, which has been for fourteen years, conducted yourself as a Gentleman, both in your private capacity, and as a Justice of the Peace for the Colony.
I have the honour to remain,
My Dear Sir,
(Signed) R. CAMPBELL, JUN.
James Mudie, Esq.
Sydney, 25 March, 1836.
My Dear Sir,
I have great pleasure, in reply to the queries contained in your letter of yesterday's date, in assuring you that during the very long period I have had the pleasure of your acquaintance (now nearly fourteen years) I have entertained the highest respect for your character as a Gentleman; and although I have not had much opportunity of judging of your conduct as a Magistrate, I have been led to entertain an impression I consider universally felt in this community, of the conscientious and discriminating manner in which you have at all times discharged that public and important duty. With sincere wishes for your health and early return to the Colony,
My Dear Sir,
Yours very truly,
(Signed) J. NORTON.
J. Mudie, Esq.
Makerstoun, 17th February, 1837
My having been for some time from home, this county being under the excitement of a contested election, will explain why your letter of the 30th inst. has remained so long without a reply; and it affords me pleasure to assure you in answer to your question that during the four years I was Governor of N. S. Wales, no one circumstance, either as regards your treatment of the convicts assigned to you, or as to your character as a Gentleman, was ever brought under my notice.
It also affords me pleasure to hear you have established your family so comfortably in the colony.
THOS. MACKDOUGALL BRISBANE.
James Mudie, Esq.
Upon looking over the preceding pages, previous to their publication, the author regrets to see that he has, by some oversight, neglected to do justice to the character of Mr. McLeay, the present Colonial Secretary. That gentleman was as virulently and as unjustly attacked, by the convict faction, and the convict press, as even General Darling himself. The Colony is deeply indebted to Mr. McLeay for his services under General Darling; and, as to his private character, the author can say, of his own knowledge, that a better Christian, or a more charitable and benevolent man, does not exist. He always bestowed a very considerable portion of his salary in charitable donations, and his purse was ever open to the cry of distress.
After that portion of this work which refers to the convict William Watt, had passed through the press, information was received from the colony of Sir Richard Bourke having been at length compelled to deprive Watt, in consequence of the continuance of Watt's own misconduct, of his ticket-of-leave; and the information adds, that it was rumoured that the scoundrel had at length become a bushranger. His tardy punishment (too late to save the character of the infatuated governor) only corroborates the accusations preferred against Sir Richard on this very man's account. Had his excellency sooner given up his ruffian protege to justice, how much public mischief would have been averted, as well as the ruin of individuals! It appears that Watt's downfal has involved that of a paid police magistrate at Port Macquarie, who had so debased himself by consorting with Watt, that his excellency thought it necessary to deprive him also of his magisterial appointment, and of its accompanying salary, which was an object of no small importance to his large family. The author pities the victim, whose intimacy with Watt, he verily believes, was owing to the favour so long shown to Watt, by his friend the Governor! Indeed, Mister Watt had carried things with so high a hand, that police magistrates were actually afraid of giving him offence. In fact, they had great cause; when they knew that several of the territorial magistrates had been dismissed for even daring to do their duty against this very man, and when they recollected the part played by him with the Governor and Colonel Wilson, as disclosed during the summary process instituted against Watt, at the instance of the author. What a warning to future governors and magistrates does the record of this fellow's history present!
In consequence of a conversation between Dr. Rutherford and the author, relative to the treatment of female prisoners on board ship (see a preceding chap.), the author has received a written communication from the worthy Doctor on the subject, in which he says, he thinks that the names of surgeons whose conduct has been culpable should be mentioned. In reply, the author begs leave to state, that he has no wish to make a direct charge against any medical gentleman, in particular, upon this subject. What he has stated, is against the system; and the alteration of that system, not the exposure of the frailty of individuals, is his object. He has, however, great pleasure in adding, that if the surgeons of penal convict ships had all been such men as Doctor Rutherford, no ground of complaint would ever have arisen. The Dr. Rutherford of whom the author speaks is Dr. James Rutherford, now invalided in the service, not Dr. George Rutherford, who holds property in New South Wales.
Should a legislature returned by popular election be created by parliament for the colony, the following noble or otherwise very eminent public characters, many of them being members of the felonry, may be expected to take their seats as representatives of the very peculiar constituency of the society of Botany Bay, viz.:—
Lord William Soames, familiarly called Bill Soames, as the honourable member for the Hulk;
The Hon. William Hang-us Watt, on the interest of the bushrangers and ticket-of-leave men;
Sir Hardy Vaux, for Moreton Bay;
Sir Joseph Raphael (speaker of the house);
Sir Samuel Lyons, for Norfolk Island;
Luke Dillon, for Patrick's Plains;
Lord Hay, with the proof of his title from the Herald office;
Mr. Serjeant Williams, for the jails;
Sir John Jamison, for the road-gangs;
Baron William Fitzwentworth, the Botany Bay emancipator, for all unfortunate convicts still in captivity;
Roger Therry, first lord of the felonry, and hereditary champion of the governor—unsalaried;
Messrs. Mott, Sullivan, and Jordan, for the free traders;
Sir William Bland, for the freed inhabitants of the colony;
Major-general Wilson, for Sydney;
As very numerous members of the felonry are possessed of great wealth, having incomes of not less than from five thousand to forty-five thousand pounds a year, some idea may be formed of the wisdom and virtue, the patriotism and philanthropy, by which the proceedings of the Botany Bay parliament will be distinguished. Several important motions are already anticipated. Increase of the population of the colony being an acknowledged and primary object of both public and private interest, and the utmost reliance being placed in the practised judgment, experience, and zeal, of the Hon. Hang-us Watt, he will move a series of measures having for their object the more effectual encouragement of crime in England, as a sure means of obtaining an additional influx of adult exiles to the colony, of enterprising habits and character; while its further populousness will be promoted by enhancing the comforts of the Parramatta factory, and placing it under the able and judicious direction of the gracious Mrs. Watt and the amiable Miss Jemima Chapman, as co-matrons of the establishment. Mr. Rogery Therry will propose the abolition of all punishment for bigamy committed in the colony; which, however, will be opposed by the learned and philosophic Baron Fitzwentworth, who will demonstrate, by arguments and facts derived from reason, analogy, and history, and especially by returns of births obtained from the factory at Parramatta, that the performance of the ceremony of marriage is by no means necessary to the increase of population, and therefore that it would be supererogatory to interfere with the bigamy law as it now stands. Mr. Therry will, of course, express his own astonishment that he had not thought of all this sooner; and, with the candour for which he is remarkable, after apologising for his simplicity, and claiming consideration only for the purity and disinterestedness of his intention, will withdraw his motion. Sir Samuel Lyons, after descanting, in an argumentative and statesmanlike speech, on the intention of the home government to make the colony a means of the reformation of the unfortunate persons transported to it, will transport the whole house with joy, by showing that the acquisition of wealth is the best possible proof of moral reformation; and, as the reformation is meritorious in proportion to the previous depravity and guilt of the reformed, he will therefore move an address to his Majesty, praying that the governor be empowered to confer the honour of knighthood upon every rich member of the felonry who shall have been twice convicted in the colony. Mr. Sullivan intends to propose the abolition of iron-gangs and of the cat-o'-nine-tails; and Mr. Luke Dillon will bring in a bill for making it a misdemeanour to address a convict in disrespectful language. It is confidently expected that the duties on rum will be totally repealed; and in short, every thing that the collective wisdom and philanthropy of the felonry can devise, will be done to render Australia an inviting and absolute elysium to all aspirants for fame, fortune, and distinction, by means of a trip in a convict ship to Botany Bay.
To be serious, however, and notwithstanding what has been said in this work as to the general bad character of the felonry, it is but an act of justice to add that there are many and praiseworthy exceptions. Several colonists, originally convicts, have acquired a fair claim to consideration, if not to respectability, by the propriety of their conduct, as well as by their accumulation of wealth. These very persons, however, will agree with the author in what he has said of the freed inhabitants as a body.
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