By the opening of the stores, and the prevention of the losses before mentioned, the Southseamen, and other vessels touching at Port Jackson, might at all times receive ample supplies of such refreshments as they stood in need of, in exchange for articles more serviceable to the inhabitants than any recompense of a pecuniary nature; and, indeed, absolutely necessary to the comfort and prosperity of the colony. In case of a war in these seas, or in any part of India, this settlement would prove a very desirable depot, and place of rendezvous. Soldiers and seamen would at all times be healthy, without great fatigue, free from scorbutic complaints so prevalent after a long voyage, and would not suffer from a change of climate, which too frequently brings on dysentery, or other fatal diseases; these circumstances would naturally render them more fit to enter a field of battle, and better qualified, in every respect, to endure the wearisome fatigues and dangers of war.
Several ships which have touched at the settlement under the pressure of necessity, have been denied the requisitions which they have made for bread and other provisions; and, although the local circumstances of the colony rendered that denial absolutely necessary, yet, had the settler been guaranteed by any means against loss, or could he have received any sufficient security for his grain, every ship which had been in need, as well as every one touching there in future, would have been, and might be, amply provided for. The influx of American vessels, and ships from the East Indies, has recently suffered a very considerable diminution; the former, at one period, nearly supplied the colony with articles of almost every description, at very reasonable prices, but, from some cause or other, vessels from the United States seldom now arrive at the settlement with merchandize for sale; the Indian vessels have also ceased to arrive in the same numbers as formerly, and the supplies have consequently fallen off materially, which naturally injures all descriptions of persons, not only by preventing an immediate intercourse between those countries, but also by lessening very considerably the consumption of stock, grain, etc. so that the settler, in planting his land, has now no other views than to raise a sufficiency of grain for the consumption of his own family, and the liquidation of his debts. He has no longer a stimulus to labour; he calculates that the time and toil are wasted which are spent in raising an article for which he has no vent; his industrious disposition is consequently cramped; his present exertions are without hope of reward; and his prospects are divested of the supporting promise of future comfort or competence. Such a system as this evidently and rapidly tends to ruin; these symptoms are the obvious marks of a diseased economy; and, if decay appears in the present unripe state of the country, with what propriety—with what hope—on what grounds, can the mind calculate upon future prosperity?
The vessels of neutral powers ought to be encouraged, in my opinion, to trade to the settlement; they would serve the colony, by giving encouragement to the settlers; there would once again be a beneficial competition; there would be a channel for the carrying off the surplus produce of the country, and industry might again look forward with joyous expectation to the harvest of its toil. These vessels might be laden back with spermaceti or other oils, seal skins, coals, ship-timber, fustic, or any other articles the produce of the settlements and the Southern Seas; and thus a traffic might be established and carried on with reciprocal benefit, and the independence of New South Wales must be greatly aided in consequence of these beneficial regulations.
It may perhaps be argued, that the indiscriminate admission of the trade of neutral vessels might tend to injure the British ships trading to this colony; but such a consequence, I think, may easily be averted, since the governor has power to prevent those ships from selling any such articles as he may deem it expedient to prohibit; and no injury could consequently be sustained, while it would hold out the necessity of selling the European goods at a reasonable rate, or the wants of the colony might be supplied from another market. The arrival of neutral ships with merchandize would also tend to prevent the too frequent monopolies which take place in this quarter, of the nature of which and their mischievous effects upon the general prosperity of the colony, I have spoken in a former part of this chapter; and I feel a great regret that circumstances at this moment prevent me from enlarging upon so destructive a subject, and exposing the very root of so pernicious an evil, which has latterly been fostered by those whom nothing more than suspicion could ever have attached to, but by recent events; and I am anxious that a full exposition of the plans which had been adopted to facilitate the rapid rise of a mercenary and powerful few, to the serious injury and almost inevitable downfal of the country, will be held up to the public view of every impartial man; by which means the grand promoters of so nefarious a practice will bring upon their own heads that disgrace, dishonour, and infamy, which their vile projects had formed for others to bear the burthen of. It has been truly said, that by means of those ships a great quantity of spirits have been introduced into the settlement of Port Jackson, and on this plea the prohibition of their sales, it is said, has taken place, but which I do not strictly believe: However, the landing of those noxious cargoes might easily be prevented; or they might be suffered to be brought on shore, and lodged in one of his majesty's store-houses, under a bond, so that, whenever the vessel was about to sail from the port, she might receive it again, having some trusty and vigilant person placed on board, to see that no smuggling transactions were carried on, and where he should be ordered to remain until the ship quits the Heads. By these means, which would be no expense to the crown, the dry goods, etc. which had been brought to the market, might be readily disposed of, without any risk being incurred of the introduction of too much of that maddening liquor, generally brought by these vessels, to be distributed amongst the inhabitants of the colony.
It must be obvious to every man of reason, that the early days of a colony require as much attention and assistance as human infancy, and that a course of improper and unskilful treatment at the outset must undoubtedly lay the foundation of future imbecility and ultimate destruction. Much evil has already been done in the settlement, but it is not yet too late to apply the remedy; the malady which threatens the existence of the colony has not yet attained to an incurable height, and if the proper measures are adopted, prosperity and happiness may yet be seen, where adversity and apprehension are at present discovered; and the seeds of a new and powerful nation may not be doomed to perish, before they have scarcely broken the ground which was intended for the scene of their growth and expansion. I shall, however, without farther digression, endeavour to point out other means of improving the settlement than such as relate to its agriculture.
The establishment of a post-office for the receipt of all letters and parcels for private individuals, and for the dispatch of those which are transmitted from the colony, would be productive of essential service to the general interests, and could be entrusted to some person of respectability, whose remuneration might arise from a certain tax or postage: Such an institution would prevent a number of letters from being lost, delivered to wrong persons, or illegally obtained by such for the purpose of sending to the friends of the person for whom they were intended, with a view to obtain money or other property. It has frequently occurred that boxes, etc. have been gained under false pretensions, from on board ships which had arrived in the port, and the contents of which have been worth a very considerable value: The persons guilty of this crime, by some means obtain the information as to the packages which are on board, and then personate, or cause some of their connexions to personate, those to whom the packages are addressed, on which they obtain the property by only signing a receipt to the officer on board. An office of this description would effectually prevent the recurrence of such fraudulent practices, and would give a security for the regular delivery or transmission, as well as the security, of the letters, etc. which were entrusted to its care. An oath might be administered to the superintendent.
The unfit clothing sent out for the convicts has been a subject of sincere complaint, as being dispatched without any regard to quality or comfort. I am therefore of opinion, that it would be highly expedient to send out a considerable portion of wearing apparel unmade, so that there would be an absolute saving of the cost of making; for the wearers would feel much greater satisfaction from being allowed to receive it in the piece, that they might suit it to their respective wants, as well as consult their own comforts: Those who might have less leisure than their fellow-prisoners, could have their clothing made by the tailors of the different settlements, while the others would be happy to make their own. If this plan were to be carried into execution, it might be necessary to find a person properly qualified to take the superintendence of this mechanical department; and such an one might readily be found in the mother country, whose disposition, owing to adverse circumstances, might lead him to accept this situation in the colony; thus a proper quantity of work would be completed, and economy would be much promoted.
The indiscriminate distribution of the clothing sent over is also another evil which requires a remedy, and this might easily be provided, by supplying the prisoners only with such articles as were necessary to them; since those who had received superfluous garments have been in the habit of resorting with them to gaming, or sell them, being unable to apply them to any purpose of wear, as their scanty make will not allow of a change; this, however, would not be the case if the clothing was given to them unmade, since every man would find himself enabled to turn it to some beneficial purpose. The clothing has materially fallen off, in point of quality and suitableness for the climate, of late years; but the evil complained of would, in my opinion, cease to exist, if articles similar to those originally distributed in the time of Governor Phillip (of which I have seen several suits) were now to be issued annually. Many of the females indeed are the slaves of vanity and pride, and being in the custom of cohabiting with persons in affluent circumstances, never appear in the dress originally given them by the crown; from such as these the issue is now withheld, and they are struck off the victualling list. The consequence of these regulations would be the obtainment of more comfortable clothing to the convicts, and a considerable diminution in the sick list, which has been filled as much from this as from any other cause; and a degree of content and carefulness would be instilled into the minds of the prisoners, in lieu of the negligence, slovenliness, and discontent, which have recently prevailed amongst them on that account.
A very considerable saving in the expenses of the colony would be effected by the consolidation of the two offices of Ship-owner and Contractor into one, and the undertaking to land all stores which are liable to injury in the colony, in a perfect state, at his own risk; for it is a notorious fact, as I have often had occasion to observe in an official capacity, that vast quantities of clothing, stores, and provisions, are landed out of every vessel which arrives in the port, in such a damaged state as to be actually unserviceable; the necessary consequence of which very often is, the total loss of the articles to government; nor has it unfrequently happened, that boxes containing stores have been broke open on the passage, and articles of various descriptions thereby have been purloined to a very great amount. It cannot be doubted that there are many ship-owners who would not scruple to enter into an engagement of the kind to which I have alluded, by sending out his own vessels, and might undertake to convey the stores safely at a very reduced expense. The saving which would thus be effected is surely sufficient to justify the experiment, since the security of the articles, which are in general the most damaged, might be easily guarded by the adoption of a few measures of prudent precaution, and by a careful attention during the voyage. A considerable advantage might also accrue to the merchant from employing his vessels in the Southern Whale-fishery, and a strong probability would exist of his procuring freights from India for his ships, on account of the East India Company: The adoption of this plan seems to be practicable, and there cannot be a reasonable doubt entertained of its superiority over every other in point of economy.
A commissioner or agent might be appointed for the purposes of inspecting the stores and various articles sent to New South Wales, whose duty it would be to see the articles shipped correctly, and thus to prevent those omissions which are daily in the habit of occurring, and which are of more consequence than may, at first glance, be imagined. This person might also be beneficially employed in comparing the stores shipped with the receipts of the masters, so as to preclude all possibility of practices which are inconsistent with the welfare of the government, but which are too common, and can only be prevented by the adoption of such a measure as the one which I now propose. Whenever the governor of the colony should send over a requisition, this agent ought immediately to be furnished with an extract from his excellency's correspondence, so that by these means the requisition would not be liable to neglect, and much trouble would be spared to the Public Office, whose province it had previously been to attend to this department. The reduction of expense which would result from this appointment would be much more than adequate to the increased expense incurred by the appointment and remuneration of a gentleman of probity and respectability to this office.
The method of conveying convicts from England is so very inhuman, that some better and more benevolent measure ought to be adopted. The lives of these unfortunate victims of depravity ought surely to be regarded with as much care as those of any other class of his Majesty's subjects; the contrary of this has, however, been too frequently the case, and some of the masters of the transports who have been entrusted with these captives, have treated them with such uniform rigour that numbers have perished through the intensity of their sufferings. This want of care is to be attributed to the former custom of contracting for the transport of the convicts at so much per head, so that the master has no interest in the preservation of those entrusted to his care. This evil, too, might also be remedied by the contract being made only for the number which might be landed in New South Wales, and by which means the owner of the transport would study to preserve the life of each individual with the most studious attention, since the loss of a single life would be a diminution of his profit, and there could no longer be a danger of the unhappy prisoners being suffered to perish from any negligence or severity. In addition to this, the surgeon and the master might receive a reward for each person whom they delivered in good order, if their humanity was such as to require a pecuniary stimulus. I believe this has been tried in some instances, at least report has so stated, and, if so, there must have been sufficient evidence gained of the superiority of the method over that which was formerly adopted. It might not be a bad plan to try if some of the superfluous frigates in the service might not be converted into good transports; for there could be no doubt that, in vessels of this description, the accommodations which might be afforded to the convicts would much exceed those of the common transport ships, and the prisoners would of course be sooner fit for duty, and less liable to the attacks of disease. Out of several ships that have arrived, not two-thirds of the number of convicts originally put on board have reached their place of destination; and this mortality, it is feared, must have been occasioned by the embezzlement of the provisions and stores which were intended for the use of the captives. It is also much to be feared that an undue degree of severity has oftentimes been exercised towards the convicts, under the pretence of some attempts to mutiny and effect their escape, and such methods of throwing censure upon the innocent, to excuse wantonness and cruelty, cannot be too severely reprehended, if reprehension be all that can be inflicted upon the perpetrators of such diabolical deeds. The treatment has been directly reverse where a King's officer has been placed on board the transport, who evinced an unshaken resolution to perform his duty. The convicts which came out on board the Royal Admiral, Captain Bond, met with a treatment, and arrived in a condition, which reflected the highest honour on the humanity and prudence of her esteemed commander, and might be properly held forth as a model and an example to the masters of all transports who may in future be employed in the service. Every attention was paid to their cleanliness in particular, care was taken to provide them with the most wholesome provisions, and their messes were so varied as to prevent any dislike arising from repetitions with too much frequency; on the slightest appearance of indisposition, some nourishing broths, wine, etc. were constantly ordered; twice a day they were mustered on deck, and the ship was completely fumigated: The whole arrived in the most excellent health and spirits imaginable. If every master had displayed a similar good conduct, there would have been no ground for the present complaint, nor any room for the remedy which I suggest in the preceding part of this article.
A number of gentlemen, of small fortunes, might be appointed, whose characters will bear the strictest investigation, and whose talents are adequate to the task, to go over to the colony as justices of the peace, in order that the general welfare and individual security of the colony should be promoted. To these persons many indulgences might be granted, and a respectable salary ought to be attached to the office, so as to enable them to support that degree of respectability and dignity which their situation requires; so as to make their interest totally unconnected with those pursuits which have led so many to sacrifice their principles, and to neglect their duty, for the sake of pursuing the search after independence. The incorruptibility which ought to characterise the conduct of a magistrate should be so fortified by every prudent precaution, that it may at no time, however remote, be in danger of agitation; nor would it be prudent, in another point of view, to permit these gentlemen to mingle in occupations which must have an evident tendency to distract their attention from those arduous tasks which they would be called upon to fulfil, in a country where criminals must naturally abound. Numbers of persons are doubtless to be found in Great Britain who would gladly accept these appointments, whose educations have taught them to look above situations to which unforeseen and unavoidable calamity may have reduced them; men who have preserved their principles and integrity unshaken by the attacks of adversity, and who, consequently, must be eminently qualified to fill such offices as those which I have here suggested. The example which these persons would hold out to the rest of the settlement, could not fail of producing very beneficial effects upon the moral conduct of those who copy the models of their superiors; and would also be of service in assisting to create a society of power and independence, which might operate as a check upon the influence of all other descriptions of persons.
As instances of the irregularities that have been practised by some of those in magisterial capacities, I need repeat none others than that I have known men without trial to be sentenced to transportation, by a single magistrate at his own barrack; and free men, after having been acquitted by a court of criminal judicature, to be banished to one or other of the dependent settlements: And I have heard a magistrate tell a prisoner who was then being examined for a capital offence, and had some things found upon him which were supposed to have been stolen, and for which he would not account, that, were he not going to be hanged so soon, he (the magistrate) would be d——d if he would not make him say from whence he got them. Nor do I believe it less true, that records of an examination, wherein a respectable young man was innocently engaged, have been destroyed by that same magistrate before whom the depositions were taken. These and numerous other cases which I could enumerate, cannot admit of a doubt but that such a regulation must tend greatly to the preservation of the liberty of the subject, the property of all classes of the inhabitants, and the general interest and security of the colony at large.
I should also strongly advise, that nine or ten of the principal officers of government should be authorized to act in the capacity of council, to whom the governor could resort, in all periods of difficulty and delicacy, for advice how to shape his conduct, by which means he would not, in any future instance, be left wholly dependent upon his own judgment. The good effects of this arrangement must soon be evident, since the issuing of an order of council could not fail to carry with it much additional weight to that which would be attached to an act of the governor alone, and would tend to the speedy suppression of any appearance of insubordination, and discourage those who should incline so to act as to originate a spirit of dissatisfaction in the settlement. To a want of this council, it may not be too much to attribute the present unsettled state of the colony, and the maturation of a faction which has perverted the streams of justice, and which has impeded the growth of opulence throughout the settlement, merely to enrich a select party at the expense of the general welfare, and consequently to spread vice and ruin through a land, whose prosperity has never become their care, although it was a solemn pledge of their leaders to support and cherish it to the very utmost of their ability.
In addition to this council composed of the chief officers of the government, I consider it essentially requisite that a barrister should be appointed as a counsellor to the governor, at all times when his excellency is referred to in matter of doubtful disputation, which must oftentimes occur in the colony, and which frequently reduces him to an unpleasant dilemma. Aided by a legal adviser, however, his judgment must be strengthened, and his decision would be more weighty, without creating in his breast those uneasy sensations which must arise under different circumstances. In the present conformation of the government, the governor has no legal adviser to have recourse to when an appeal is made to his decision, which is not rarely the case, except the judge advocate, and this officer having previously given his opinion in the court below cannot, of course, be again consulted on the same subject. In consequence of this default of advice, the governor must give his own opinion, which may or may not be in conformity with the laws of the mother country, just as it may happen, and according to the knowledge he may possess of the principles and practice of jurisprudence, which is seldom very deep in persons whose inclinations are so opposite to this kind of study as the officers of the navy and army, from whom the governors of the colony have hitherto been selected. This counsellor could be selected from those who might be induced to listen to such a proposal, as may place before them a certain liberal competence, with the opportunity of rising to independence in a sphere where the number of competitors would be so low as to render final success less precarious. It is needless to expatiate more amply upon the benefits which must accrue from an appointment of this nature, which would impose but a trifling additional burden on the crown, since it is extremely possible that a barrister might be obtained for the salary of 150L. per annum, which, together with the victualling of himself and his family and servants from the public stores, and residence in the colony rent-free, added to the other customary indulgences given to persons from whose services utility is expected to be derived, would not make his situation worth less than 500L. per annum, a temptation which must possess some weight in the minds of those who meet with inadequate encouragement in England.
The legislative code of the colony requires a careful revision, since the numerous residents who have arrived in the settlement, and their increasing respectability and opulence, render such a measure necessary. That system which would suit the original establishment, composed only of two classes, the officers of government and the convicts, will scarcely be expected to adapt itself to the wants and wishes of a community advanced in civilization: In the former case, the principal object was to punish delinquency; in the latter, to secure property, and insure the safety of that wealth which now began to shew itself in the multiplication of luxuries, and the augmentation of individual splendour. The present system is so liable to abuse, and has given just occasion for so many complaints on the part of those traders who visit the colony in great numbers, as well as of the more respectable classes of the inhabitants themselves, that it is become highly expedient to substitute in its place one which shall be incorruptible, and which, from its own importance, may command a greater degree of respect. At the head of this court ought to be placed a chief justice, who, by the respectability of his salary, should be effectually placed above the reach of every motive of an improper or injurious nature; and in order to lighten this expense to the crown, certain court fees might be established which would materially assist to swell the amount of the remuneration which ought to be attached to this high office, so as to render it worthy the notice of men who are fitted, by habit and education, to execute its duties in a correct and honourable manner. The rent of the residence appointed to this gentleman ought to be taken from his shoulders, and the public stores should find provisions for himself, his family, and his servants, together with fuel and candles; the wages of a limited number of domestics might also be paid by government; and thus he would be exonerated from so many burthens of a pecuniary nature, that a salary which might at the first glance seem inadequate to the trust reposed, would, on considering every circumstance, appear less exceptionable, and more equal to the dignity which would externally be attached to the office. It is almost superfluous to mention, that the utmost care should be taken in the choice of a proper person to fill this situation, since his character, his conduct, and his general habits, ought to be such as to render him like Caesar's wife—"not only free from suspicion, but free from the suspicion of being suspected." With a person of this description to superintend the court of judicature, there could no longer exist causes to fear the introduction of party motives and malicious prejudices, to contaminate the stream of justice; a strict impartiality would direct every decision, and those who were doomed to meet with disappointment in their views, while they writhed under its decision, would not be able to impeach its integrity. If it were found necessary to adopt any further measures to preserve their honour unsullied, the rendering their situations limited might probably produce a good effect; and a pension might be allowed to them on their return to England, if they were able to produce certificates from the governors and lieutenant-governors who had held command in the colony during their residence, attesting the incorruptibility of their conduct, and the zeal which they had displayed in the due execution of their duty. A farm might also be allowed to the individual placed in this important office, if it were thought expedient, under certain restrictions which should prevent him from abstracting his attention from his official duties, at periods when his professional avocations might require his presence in the service of the public. A salary of 500L. per annum, with the addition of these indulgencies, would be equal to 1200L. a year.
An alteration in the judicial code appears also to be necessary, or at least highly expedient. In the criminal court, the judge advocate and six naval and military officers are at present empowered to decide and try delinquents; and although I believe that their opinions on verdicts have latterly been almost unanimous, yet I cannot but call to recollection a period when, painful to relate, the naval and the military were too frequently, if not generally, opposite in their determinations: Nor is this the least part of the evil; for evidence is on record of persons having been bribed, or controlled, by one or more of the members of the court then sitting in judgment, to accuse their industrious neighbour, upon oath, of crimes which he had never committed, in order to lay a ground for the ruin of the unfortunate individual, merely because his industry and prosperity in trade were objects of envy. If such a system is not suppressed, it is not possible for the human mind to calculate upon the termination of the mischiefs which may ensue from it; it is not possible for humanity to look upon the probable consequences, without emotions of horror and dismay. To prevent, therefore, the recurrence of any circumstance so flagrant and unjust, it is absolutely necessary to take some measures to render the criminal and civil courts free from every kind of prejudice; for what argument can justify the committal of the existence or the fortunes of individuals, to the mercy or the caprice of men who are blinded by prejudice.—Prejudice and party must be fatal to the progress of justice; and as the preceding remarks are nothing more than the details of facts which are notorious to every individual who has lived long in the colony, there is no occasion for my saying much in addition, to prove that a necessity does exist for some change in the judicial code of the settlement; and it is much to be wished and desired, that by that change the power may be vested in honest and incorruptible hands, which may be held out equally to punish the guilty, and to protect the oppressed; to curb the insolence of pride, and foster humble merit; and, finally, to render New South Wales an exact copy from that fine picture of freedom and justice which is represented in the mother country.
That the trial by jury should be introduced into the colony, has long been a desideratum amongst the best-informed inhabitants of the colony; since its effects could not be otherwise than beneficial where such universal iniquity prevails, and where even in the courts of law many enter with impure motives and unclean hands; since the greater part of the community are more or less implicated in the notorious and impoverishing impositions which are continually practised amongst all classes. When I say that this blessing has been desired by the well-informed, I must also be understood to mean the well-intentioned only; for its establishment in the settlement would unavoidably prove fatal to that ruinous traffic, from which several of the superior classes have derived their opulence and consequence, and it is not therefore to be expected, that such as these would wish to behold the approach of that scourge which would remove from them the power of extending universal evil for the promotion of their individual good. By these persons the admission of the trial by jury is sincerely and ardently deprecated, while it is wished for with equal fervency by others, and particularly those oppressed inhabitants, whose miseries and necessities have been the means of increasing the wealth, and hardening the feelings of those who have so long pursued the destructive system of monopoly. It would not have been practicable to introduce the trial by jury at the commencement of the settlement, since there were none but convicts, and a few free persons who were paid and supported by the crown; but the case is now materially altered, and the great influx of free, independent, and respectable inhabitants, which the later years of the colony have witnessed, not only render such a measure practicable and prudent, but loudly call for it as a step rendered indispensable to the welfare of the community. Numbers have also served their terms of transportation, or have been made objects of royal bounty on account of their signal good conduct, and have thus swelled the numbers of free residents; so that there could be no difficulty in making out a list of jurors, sufficient for every purpose, even if the assizes were ordered to be held monthly, which is a more frequent occurrence than in the mother country. Objections may be started to the propriety of receiving those, who have been convicted and have suffered the sentence of the law, as jurors; but if this description of persons are worthy to be received as evidence at all in a court of justice, and there are instances sufficient on record to prove this to have been the case; and where this evidence of persons so objected to and proscribed, has been the sole means of the conviction to death of the accused, surely it could afford no room for cavil that a jury should in part be composed of persons, whose conduct during the term of their punishment has been such as to give general satisfaction, and who have proved by their conduct that they have reformed their dispositions, corrected their principles, and are likely to become useful, and consequently valuable, members of society; and none others should be admitted on the list. Besides, even allowing this objection to have some weight, will reason and policy justify the carrying of this principle to such a length, as to exclude from this privilege those free settlers who have been guilty of no crime, and have suffered no punishment? Shall these, in return for their voluntary exile from their native land to promote the interest of the colony, lose the benefit of this inestimable distinction, which operates as a security to the freedom of Englishmen, and renders it so far superior to the boasted independence of any other nation in the world? If it were thought inexpedient to admit twelve jurors, in consequence of the limited population of the settlement, eight might be allowed in the first instance, and the rest could be added when circumstances would permit; so that the principle of the system would be established, and these could be instructed in the laws of the land from the bench. In each of the settlements there are a great many persons competent to fill the office of jurors, and it is to be hoped that no long interval will be suffered to elapse without the colony being permitted to participate in those inestimable privileges which render the mother country the envy of the world.
The admission of the bankrupt laws into the colony would tend still more to the perfecting of the system of jurisprudence, and appears to be a very desirable object of solicitude. For want of some legal system of this kind, many families have been reduced to the lowest extremes of misery and want, the heads being immured in prison, without the ability to liquidate the claims of their unfeeling creditors, or to provide support for their perishing families. The necessary consequence was, the individuals fell to the charge of the government, since they must not be suffered to starve. The obduracy of the creditors may be assigned as the sole cause of this wretchedness; for although, in such circumstances, the unfortunate debtor had been willing to relinquish all his possessions; to surrender his land, his cattle, his stock, and every thing else of which he could boast of the possession; nothing short of payment in money could satisfy; and the ill-fated was doomed to experience the accumulated horrors of personal suffering, in addition to that which must arise from the idea that his sorrows extended themselves, with equal or superior bitterness, to those who were dear to him. Such occurrences as these have tended to multiply considerably the expenses of government, who have frequently found it necessary to extend their assistance to the whole of the unfortunate debtor's family, to preserve them from actual destruction; and who could not, by any authority which was vested in them, compel the hard-hearted and inhuman creditor to accede to the only proposal which it was in the ability of the prisoner to offer. The introduction of the bankrupt laws could not fail to afford an effectual relief to persons reduced to this unfortunate condition, and must be productive of much future benefit, in consequence of the continual augmentation of the trade of the settlement, and the increasing numbers of the dealers; circumstances of themselves which must carry to every rational mind the strong necessity which exists for the adoption and introduction of some legal code, assimilated as much as possible to the bankrupt laws of the mother country, if it should be considered imprudent to copy precisely after this exquisite model.
The encouragement of a few barristers to go over to the settlement, who have not met with success adequate to their wishes in the mother country, but who are, notwithstanding, persons of unimpeached moral character (for nothing could be more impolitic in any case than to import persons of doubtful characters into a colony of this description), and whose legal knowledge would be amply sufficient for every purpose in New South Wales; such an importation would be attended with very great advantages to the inhabitants. For the want of such persons has, in numerous instances, been very severely felt by those who have had occasion to come into the courts of law. Many instances have occurred, within my observation, where the persons accused might, by the assistance of a counsel who possessed the ability to penetrate the motives and intentions of the prosecutor, have escaped the punishment which he has been compelled to endure. Evidence is frequently mis-stated and misrepresented in the courts, and this, owing to the great ignorance of numbers who are brought forward as witnesses, is a circumstance of no rare occurrence; the questions being taken down in writing, and, in the attempt to give them some grammatical connection, ideas being frequently perverted, and taken directly opposite to their original meaning, without any intention whatever to enter into a mis-statement. Now it must be sufficiently obvious that the allowing of counsel would tend to do away this evil, since he would himself be in the habit of taking notes of the evidence, and would thus not only be able to detect any misrepresentation, but would convey satisfaction to the mind of the prisoner himself; and convince the spectators (who, by the bye, frequently retire under very different impressions), that the accused has at least been treated throughout with fairness. It cannot be necessary to enter into reasoning to prove that this mis-statement of evidence is an evil which calls for redress; and I think the reader will concur with me in opinion, that no better plan can be devised than the introduction of counsel into the courts, who might keep a vigilant watch over the progress of the trial, and not only insure the correct statement of the various depositions, but be ready to take immediate advantage of any circumstances which might arise of a favourable complexion to the person accused, by which means many prisoners might be rescued from the punishment which, from a want of legal aid, they have been compelled to submit to. In the answers of witnesses, I have myself heard of "No" being substituted for "Yes;" and what guarantee can there be for the obtainment of justice, where a possibility exists of the occurrence of such mistakes—mistakes on which the existence of a fellow-creature might hinge!
If then the criminal court needs so strongly the introduction of counsel, the court of civil judicature is equally in want of similar aid, where subjects of the most complicated nature are frequently brought for decision, and where the difficulty of deciding correctly is almost, if not totally, insuperable. Considerable sums here depend upon the issue of a question, of the nature of which no one present is qualified to judge; and an appeal from the decision which ensues is frequently made to the governor, who is thus left singly to decide what has caused so much difficulty to a whole court!
The utility, nay the necessity, then, of a professional assistant in these cases, must surely be evident to every one, and without such aid it is not possible that justice can be impartially administered. The ignorance of many suitors, even men of great opulence and respectability, is so deplorable that they cannot make you comprehend their own case, when called upon to state their grievance; but the possibility of having their cause pleaded by a counsellor would not only save the court itself a serious loss of time and a considerable degree of perplexity, but must surely lead to a more correct decision in cases of difficulty. By these means the discontent which now universally displays itself in the person who has lost the cause, would be completely done away, and he could no longer attribute his defeat to the partiality of the judges, when he should have experienced the full benefit which he might derive from a communication with, and the able aid of, a legal adviser. If two, three, or more barristers, could be induced to depart for the colony merely as private settlers, receiving from government a free passage; victualling from the stores for themselves, families, and servants; and every other indulgence which is usually granted to settlers, there could be no doubt that they would soon find their endeavours successful; and the allowance of government, with the emoluments which they would derive from their practice, which might safely be calculated at 200L. or 300L. per annum; having a farm allowed them to cultivate, would render their situations not only comfortable, but eminently respectable; and their introduction would be attended with no extraordinary expense to government, beyond what is generally allowed to settlers in the colony. To encourage gentlemen of education and ability to make this attempt, it might not be an improper extension of liberality to allow them a free passage back to England, if, upon a fair and sufficient trial, it should be discovered that the speculation which induced them to embark for the colony should not turn out productive enough to reward them for their exertion, and to offer them that genteel support to which they would be entitled, on account of the superiority of their situation, and according with the habits of their former life.
In the trial of civil causes, it had, until latterly, been the custom of the court to insert in writing only the amount of the debt sought to be recovered, the damages which have been awarded, the names of the plaintiff and defendant, and the adjudication of the court; but in the opinion of many persons of consequence and respectability in the colony, it is absolutely requisite to cause all the viva voce evidence which is given in all civil cases to be taken down in writing. The following reasons are given for this alteration in the former custom, and their full weight has been allowed to them whenever I have heard an opinion given upon the subject. It occurs very frequently that appeals are made from the decision of the civil court to the governor, and, in consequence of the evidence which has been given before the court not being taken down, the witness has an opportunity of correcting, enlarging, or otherwise altering his depositions, so as to make his own case appear in a very different point of view to that which it bore in the former instance, and thus a temptation is held out to perjury, which is too strong for the weak morality of many in the colony to resist, and the current of public justice may, by this method, be completely turned out of its proper channel; and the decision of the civil court is at all times liable to be disputed and reversed. No writ of court is issued for less than ten pounds, so that the necessity of taking down the evidence in a suit instituted for a sum beneath that amount, does not appear to be so strikingly obvious; although an appeal may be made to the governor from the civil court, for any sum, even less than ten pounds; but this is not very often done, although some instances have occurred in my recollection. Where the sum sued for exceeds 300L. a court of appeal may be demanded, and if the plaintiff is dissatisfied with the decision of the governor, he has the right of appealing to the King in council; and here the necessity of taking down the evidence brought before the court becomes still more strong, since the character of the court itself may be involved in the issue of the legal decision. Suits to this amount are not now very rare, but they may be expected to become much more frequent in the thriving state of the colony.
The affixing a greater degree of respectability to the office of chief constable at Sydney, and the attachment of a salary to the situation from the crown, would be a desirable measure, since on this officer depends, in a great measure, the peace, the internal security, and good order of the colony; and it is therefore worthy of consideration whether the trust, inferior in importance to scarcely any in the settlement, ought not to be reposed in a person of some respectability, and who, by the receipt of an adequate remuneration, might be enabled to devote his time and attention to the duties of his office. To this situation so much responsibility is attached, and from it so much good is expected, that the person who fills it ought to be enabled to preserve a respectable appearance, and to embrace the comforts of life, without being permitted to have recourse to traffic or other pursuits which might contaminate his principles, or render him less zealous in his exertions for the good order of the colony. The benefit which must arise from the conscientious discharge of the duties of this office is much more than can be imagined at first sight; and the evils, on the other hand, which flow from its mal-execution, are in an opposite extremely baleful, and calculated more to promote excesses and tumults than to repress them.
That prisoners who are transported for life are in general indifferent to their future fate, and careless of their conduct, is a fact well known to all persons who have resided in the settlement; and it therefore becomes a naturally interesting question, by what means these convicts may be brought to discharge their duties with more readiness, and to follow a course of life more fraught with happiness to themselves, and more satisfactory to those who are placed near them. The best method which suggests itself to me, is that of employing prisoners for life on government labour for a limited time only, at the expiration of which period they should be made free of the country, and, in case their conduct had been such as to merit approbation, should be allowed to become settlers, with the usual indulgences, and thus have the means once again placed before them of raising themselves to a respectable rank in society, in that country to which they had been banished. Those, on the other hand, who are found to be dissolute and abandoned characters when their term of labour had expired, might be made free also; but, instead of being allowed to become settlers and to receive indulgences, they might be taken off the stores, and be compelled to labour for their daily bread. Such an amelioration of the punishment of those unhappy delinquents who have incurred this heavy vengeance of the laws of their country, would induce numbers to look forward into futurity with a satisfaction which they had not possessed previously, arising out of the distant hope of becoming opulent and respectable, and of making the renewal, in the decline of their existence, of those prospects which, in their earlier years, had been eluded and destroyed by their vices; and this idea would not fail to stimulate them to a conduct more laudable, and calculated to accelerate the accomplishment of their wishes. It may be brought against this measure, as an argument, that it would reduce the extent of the power of government to grant pardons to deserving convicts, and that government would thus lose the advantage which was derived from the labour of those prisoners; but to the former objection it may be replied, that the certainty of an alleviation, and of the advantages which would attend a meritorious conduct during the specified period of punishment, would prove a powerful incentive to the convicts, and would tend to produce more good members of society and useful settlers than could be expected, unless some reward was to be the certain result of meritorious conduct; without this stimulus, there might be, as there has been, some good characters to reward, but their numbers would be comparatively insignificant: To the latter objection it will only be necessary to say, that if government loses the labour of these convicts, it also disburdens itself of the weight of supporting them and of providing them clothing, etc.
Against the perpetual imprisonment of convicts the following reasons may be brought forward:—The restlessness and indifference which generally pervade the conduct of delinquents of this description, who, seeing no termination to their captivity, lose the inclination to labour, if they ever possessed it, and become indolent and careless as to the colour of their future fate; the impossibility of any governor, however diligent and compassionate, being enabled to discover all the meritorious convicts of this description who might be entitled to their liberation in pursuance of the present system, since he could not possibly, at any time, keep an eye upon the whole, scattered as they are through the settlements, and in the employ of various persons; many deserving prisoners, having never been in the service of an officer, have none to recommend them, and remain, consequently, unnoticed, although they may be more meritorious than even some who are emancipated; and the numerous desertions which take place amongst those convicts who have no prospect of amelioration in view, and who are, therefore, indifferent what becomes of them, placing upon a level the dangers of destruction and the prospect of toiling away existence, without the hope of freedom or of happiness, to the close of their days. Such a conduct as this is truly not to be wondered at, when the behaviour of some criminals at the bar of their country is recalled to mind, where they have declined that mercy which has been extended to them, and preferred death to a perpetual banishment from that society which they had injured. If any of the liberated convicts should afterwards attempt to make their escape from the colony, they might be returned to the public labour, or be sentenced to such other punishment as may be thought adequate to the importance of their offence. What the consequence of the amelioration of the rigour of punishment would be may easily be imagined; instead of continually murmuring at the gloomy prospect before them—of displaying indifference to the future—of beholding before them no limitation of their slavery, nothing but misery, toil, and death; instead of these cheerless contemplations, they would begin to display a degree of contentedness with the situation to which their delinquency had reduced them, and their progress would be marked by utility to the government and to the community, instead of being chequered by continual efforts to elude the vigilance of their overseers, and to escape from a scene of uniform hardships, unillumined by a single ray of hope.
The best interests of the colony would be greatly forwarded, if government were to select some clergymen, of unequivocal piety and zeal, to inculcate religious and moral principles. For this purpose, they should be chosen of unblemished character, whose respectability and exemplary conduct would assist to give weight to the doctrines which flow from their lips. Much good cannot be derived from the efforts of men, who are chiefly engaged in farming and traffic, and who will sell a bottle of spirits, or oblige some of those very persons with it, to whom they have just before been preaching the duty of temperance, and whose learning and appearance are better adapted to less important avocations, than fulfilling the sacred functions it is intended they should perform.—The future prosperity of the settlement also greatly depends upon the manner in which the rising generation are instructed. The education of youth is, at present, much neglected, through the want of four or five schoolmasters of sufficient capacity. There cannot be a doubt that persons qualified for this profession would meet with very liberal encouragement, as the children are numerous, and there are but few parents who cannot afford to educate their offspring respectably.
The want of some able superintendants in different branches of business is at present much felt, since such individuals might be usefully employed in training up youth to the pursuits of industry; by which means the commission of crimes would be rendered less frequent, and the dispositions of children would receive a proper bias. An arrangement of this nature would also remove the severe inconvenience occasioned by the extreme scarcity of able mechanics throughout the colony.
It will be immediately admitted by every unprejudiced mind, that the salaries of the deputy-commissaries should be increased, when the circumstances under which they are placed are duly considered. They have now only five shillings a day; a sum so totally inadequate to the services they perform, as to excite surprize in all who witness the extent of the trust reposed in them. This daily pay is barely sufficient to purchase a dinner in the colony, as they are obliged to appear in every respect as gentlemen; and the necessary consequence is, they are compelled to enter into other occupations, unless they have a better source of income than their salaries, in order to meet their own unavoidable expenditure, and to maintain (as is generally the case there) a wife and large family. The impolicy of giving small salaries must be obvious, when it is considered that individuals who are thus sparingly rewarded for their labour, abstract from their official duties some portion of that attention which ought to be wholly devoted to them.
A different arrangement with respect to the grants and leases of land would also be productive of beneficial consequences. Whenever any of those deeds have been made, under the hand and seal of the governor, or of the colonial seal, they ought to be considered as secured to the grantee or lessee, their heirs, etc. and, under no pretence whatever, except a failure in the fulfilment of the conditions expressed therein, ought the governor, or any succeeding governor, to retain the power of taking that land away. The existence of such a power, indeed, is, upon its surface, arbitrary; and, in its effect, totally destructive of the spirit of improvement; for there scarcely exists a man who would bestow his whole exertions and property in increasing the value of buildings and land, which he holds by such an uncertain tenure. In the midst of his expectations, just as he has impoverished himself with the hope of reaping a future recompense, he may, by the sudden whims or caprice of an individual, be deprived at once of the means of gaining future subsistence, and plundered of every thing which he may have done with a view to his own benefit, and the bettering of the estate. It is surely unwise to leave a power (which, it is to be hoped, is without authority) of this description, in the hands of any man, however exalted his character, and however conspicuous his love of justice.
The whole of the contingent expenses which would result from these improvements, might be paid by duties laid on importations, exportations, etc. which are at present by no means inconsiderable, but might be greatly increased, to the mutual advantage of the colonist and the government.
To expatiate largely on the benefits which would result from the establishment of a free trade, is altogether superfluous to men whose minds can embrace the increased stimulus which would be given to industry, the influx of wealth and population, the improvements in agriculture, commerce, and the arts and sciences, and the rapid advancement of the best interests of the colony, which must result from such a measure.
The strong necessity for some considerable alteration in the internal arrangement and policy of the colony, to various parts of which I have drawn the reader's attention, can but be apparent to all unprejudiced persons, who have but a superficial knowledge of the settlement. The suggestions I have now presumed to offer to the public, as my opinion for means of improvement, I beg to state, are as unbiassed as my statements are faithful; and which are the result of some reflection, founded upon the experience of a long, and, I should hope, an unimpeachable residence, in the fulfilment of some important duties, thereby obtaining more than common means of observation. With these assurances, I have to trust that due credit will be given to my intentions, which had their principal stimulus from an anxious wish that the mother country should receive every possible benefit, in the adoption of so promising and highly interesting a part of the uncivilized globe to its fostering care.