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Various Changes proposed in the System of Government.

IT being thus clear and indubitable that free representative governments are the only foundation on which the prosperity and happiness of communities can safely repose, it only remains to ascertain how far the actual circumstances and situation of this colony are compatible with the concession of so great and important a privilege. At my very offset in this essay, after glancing in a cursory manner at the history of the most celebrated ancient and modern empires, and shewing that their progress kept pace with their freedom, and that their retrogradation is to be dated only from the epoch when they fell under the dominion of arbitrary and ambitious despots, whose successors gradually completed the work of destruction which they had commenced, I was compelled in candour to admit that the heterogeneous ingredients of which


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this colony was compounded, did not at the period of its foundation, afford his Majesty's government the power, if they had even possessed the will, to establish a free representative system. It is therefore incumbent on me, now that I have demonstrated the beneficial influence which free governments have in promoting the prosperity of communities in general, and have proved that this colony has for many years been languishing in a state of impeded growth, and tottering imbecillity, from the inefficiency of its administration to adopt those measures which are necessary to its revigoration; I say it is incumbent on me to shew that the component parts of this body politic, have undergone such a change since the period of its creation, as will warrant its identification in this respect with other states, and justify the conclusion that such institutions are essential to its welfare as have been found conducive to theirs.

It must be almost superfluous to state, that when this colony was formed, it was composed, with the exception of its civil and military establishments, entirely of convicts. It was consequently impossible that a body of men, who were all under the sentence of the law, and had been condemned for their crimes to suffer either a temporary suspension, or total


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deprivation of the civil rights of citizens, could be admitted to exercise one of the most important among the whole of them, the elective franchise; and to have vested this privilege in the civil and military authorities, both of whom then as at present were subject to martial law, and were besides at that time without landed property, the only standard I conceive by which the right either of electing or being elected can in any country be properly regulated, would have been equally improper and absurd. A council indeed might have been appointed, but even an institution of this kind might have clogged the wheels of the government by its opposition, and could have been of but little assistance with its advice; for as it has been already stated, there was but one object to be pursued, and that was to promote by every means the agriculture of the colony, so as to emancipate it as soon as possible from a precarious and dangerous dependence on other countries. Until, therefore, the free inhabitants of the colony had increased to a sufficient number to exercise the elective franchise, and until its productive powers had outstripped its consumptive, and it became necessary either to create new markets for its produce within, or to direct a portion of its strength to the raising of articles for exportation to other countries, the establishment of a free representative government


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would not have been expedient had it even been practicable.

The period at which the produce of this settlement fairly exceeded the internal demand for it, may, as I have already noticed, be dated so far back as the year 1804, being about sixteen years after the period of its foundation. It has been already seen that the harvests of that and the succeeding year were so abundant, that no sale could be obtained for more than one half of the crop;—that had it not been for a tremendous flood which happened in 1806, the majority of the cultivators must have abandoned their farms, and sought for other occupation;—and that since that period there has fortunately been a succession of floods and droughts, which with the exception of two or three seasons of equal plenty, have kept the productive powers of the colony nearly on a level with its consumptive, or else the situation of the settlers, deplorable as it now is, would have been infinitely more so. How radically defective, then, must be the government of this colony, when what would be calamities of the most serious and afflicting nature in a well organized community are here blessings! Is it in the nature of things to adduce more weighty arguments in proof of the necessity which has existed since the above period for its


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supercession? Ought not a government that would have felt the importance, and have possessed the power of creating new channels of consumption for agricultural produce to have been then instituted? This great object, it has been already shewn, could have been in no way so easily accomplished as by the erection of distilleries. To have diverted the attention of any part of the agriculturists from the growth of corn, would have been highly impolitic in a country, where the greatest and most fertile portion of the arable land is subject to such awful inundations. On the contrary, it was and still is expedient, that the whole agricultural energies of the colony should be confined to the production of grain, until the surplus become so great as to leave no chance whatever of these inundations being any longer attended with their former baneful consequences. But this can only be effected by creating a sure and adequate market for this surplus; and whether such market is to be found in the colony, or to be sought for abroad, no power either would have been, or is so fully competent to accomplish this important purpose, as an independent legislature chosen from the midst of the community, whose interests are identified with its own.

With respect to the expediency or even practicability


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of instituting a body of this nature so long as fourteen years back, I am aware that there exists a great difference of opinion among the respectable class of the colonists themselves. For my own part, however small may have been the number of those from or by whom a colonial legislature could at that time have been formed, I consider of but little moment in solving this great problem. The only question it appears to me to be ascertained, is, whether a legislative assembly, however small the number of whom it might have been composed, and however limited the body of electors by whom it might have been chosen, would not have done its utmost to promote its own interests, or what would have been the same thing, the welfare of the community which it represented. I cannot conceive the possibility of any one's doubting that such would have been its conduct; and in this case what power could have been instituted in the colony that would have been so well calculated to foster its infant efforts, and develope its nascent prosperity, as one that would have been invested with the faculties of legislation; or in other words, with the authority to enact as a matter of course those measures of which the existing government has not had sufficient influence to procure the authorization.




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The expediency, however, of having established a house of assembly in the colony at the period in question, is at this moment, perhaps, rather a matter of curious speculation, than of profitable inquiry. Extensively beneficial, as would in all probability have been its effects, it is nevertheless useless to deplore an omission which cannot now be remedied. Nor has the absence, perhaps, of this important institution been altogether without its advantages. It has at least indisputably proved the inefficiency of the present system of government, and that the colony could not have sunk under any other form of administration whatever, to a lower ebb of poverty and wretchedness, nor have become a heavier and more unproductive burthen to the mother country. The want, therefore, of an internal legislature has combined every consideration that could be adduced in proof of the necessity of changing the present system, and adopting in its stead that form of government which has been found so salutary and efficacious in all countries where it has been established. The only question that remains to be ascertained, is whether the colony is now in a state of maturity for the reception of so important a privilege as the elective franchise; and this I conceive will be best answered by a reference to the numerical strength of its free


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population. At the general muster or census concluded on the 19th of November, 1817, there were found to be in all the various settlements and districts of the colony of New South Wales, and its dependencies, twenty thousand three hundred and twenty - eight souls, of whom sixteen thousand six hundred and sixty-four were in the various towns and districts belonging to Port Jackson. Out of these there were six hundred and ten soldiers, and six thousand two hundred and ninety-seven convicts, leaving a free population, independent of the military, of nine thousand seven hundred and fifty-seven souls. At Newcastle, a settlement about sixty miles to the northward of Port Jackson, there were five hundred and fifty souls, about seventy of whom were free. At the settlements of the Derwent and Port Dalrymple, there were in all three thousand one hundred and fourteen souls, of whom two thousand five hundred and fifty-four were at the former place, and five hundred and sixty at the latter: out of these there were about two hundred soldiers, but the number of free persons I have not been able precisely to discover. As these settlements, however, include the majority of the colonists and their families, who were removed from Norfolk Island; and as by far the greater proportion of the convicts who have been


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transported from this country have been sent to Port Jackson, I have no doubt that the number of free persons there, may be safely estimated at three fourths of their entire population, seeing that it is about two thirds of the population of Port Jackson. According to this rate of computation, therefore, the number of free persons in these two settlements, after previously deducting the two hundred military, will amount to about two thousand one hundred and eighty-six souls. It may, consequently, be perceived, that the grand total of the free population of all these various colonies in the latter end of November, 1817, may be safely estimated to have been eleven thousand nine hundred and seventy-three, being an excess of four thousand four hundred and seventy above the number of convicts, or in the proportion of more than three to two.

As the establishment of the legislative assembly in question could not, however, be well effected before the end of the year 1819, it may not be altogether irrelevant to ascertain what will be the probable amount of the free population at that period. The number of births in the colony cannot at present be computed under two thousand annually, since the increase in these various settlements between the month of November, 1816, and the month of November,


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1817, is found to have been three thousand two hundred and eighty-nine souls; and the number of convicts transported thither from the first of January, 1816, to the first of January, 1818, was only three thousand one hundred and eight. Allowing, therefore, that one half of these, or one thousand five hundred and fifty-four, were transported to the colony during the year 1817, the increase that took place there, from birth and emigration will have been one thousand seven hundred and thirty-five: to which if we add five hundred, the number of persons that probably quit the colony annually; the actual rate of increase in the free population in the course of the year 1817, may be fixed at two thousand two hundred and thirty-five souls. Of these the surplus above two thousand, is perhaps composed of emigrants, and the remainder of births. If we add to these one thousand more, who it may be safely calculated yearly become free, by pardon or expiration of servitude, we have an annual augmentation to the free population of three thousand two hundred and thirty-five souls: so that if we take the year 1817, as a standard of computation, and it is evidently a low one, the free population will amount by the end of the year 1819, to at least eighteen thousand four hundred and forty-three souls. This is an elective body much more extensive than is to be


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found in several of our West India islands, where houses of assembly have been long established. But as this free population is of a mixed description, and composed as well of persons who have been convicts, and have become free either by the expiration of their respective sentences, or by pardon, as of those who have been born in the colony, or have emigrated to it, and have never suffered the penalties of the law, a very delicate question here arises as to the propriety of extending to the first of these classes the privilege of being admitted into the legislative body. There is, I am aware, a party in the colony, by whom the very notion of granting such a privilege to a class of men who have been subject to the lash of the law, would be treated as a chimera pregnant with the most fatal consequences to this infant community. In this, as in most other societies, there is an aristocratic body, which would monopolize all situations of power, dignity and emolument, and put themselves in a posture to domineer alike over the governor and the people. If you consult one of this faction (they deserve no milder appellation) he will tell you that it is dangerous to vest any authority beyond the narrow circle of his own immediate friends. Until the administration of General Macquarie, this body considered themselves possessed of an equal right to the governor's


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confidence, as if they stood in the same relation to him which the nobility of this country bear to the king, and were de jure his hereditary counsellors. Before his government the great body of the people. I mean such as had become free, scarcely possessed any privilege but that of suing and being sued in the courts of civil jurisdiction. The whole power, and nearly the whole property and commerce of the colony, were in the hands of this faction, who with a very few exceptions were composed of the civil and military, and of persons who had belonged to these bodies formerly. And even in those few solitary instances which could be adduced, of persons originally convicts, who were allowed to acquire an independence, their prosperity was to be traced to the patronage and protection afforded them by some member of the aristocratic junta, to whom they either acted as agents in the disposal of their merchandize (for it was considered by these gentlemen derogatory to their dignity to keep shop and sell openly) or resorted for the purchase of goods on their own accounts. At the prosperity, however, and importance of this faction, the present governor has levelled many a deadly blow within these last nine years; but more particularly in prohibiting the military to hold lands, or to be concerned in traffic, in raising to situations of


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the highest trust and dignity many deserving persons who had been convicts, and in throwing open the ports of the colony to an unlimited importation of all sorts of merchandize. But he has not effected these radical and salutary changes in the colonial policy without having encountered a long and inveterate hostility. Many have been the attempts which this faction have made to vilify his motives and misrepresent his actions; but to every charge of his enemies his unshaken integrity and unwearied zeal for the conscientious discharge of his duties have proved a sufficient refutation. The opinion of this gentleman with respect to the expediency of adopting a liberal system, that may prove an effectual stimulus to reformation and good conduct in those who have unhappily deviated from the path of rectitude, has been expressed unequivocally both in his dispatches, and in the prominent measures of his government, and will deservedly carry with it more weight than the whole collected opposition which I anticipate from those who have been his opponents and calumniators. The covert aim of these men is to convert the ignominy of the great body of the people into an hereditary deformity. They would hand it down from father to son, and raise an eternal barrier of separation between their offspring, and the offspring of the unfortunate convict.


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They would establish distinctions which may serve hereafter to divide the colonists into castes; and although none among them dares publicly avow that future generations should be punished for the crimes of their progenitors, yet such are their private sentiments; and they would have the present race branded with disqualifications, not more for the sake of pampering their own vanity, than with a view to reflect disgrace on the offspring of the disfranchised parent, and thus cast on their own children and descendants that future splendor and importance, which they consider to be their present peculiar and distinguishing characteristics. Short - sighted fools! they foresee not the consequences of their narrow machinations! They know not that they would be sowing the seeds of future discords and commotions, and that by exalting their immediate descendants, they would occasion the eventual degradation and overthrow of their posterity. Such would be the result of their ambition; for it is the curse of injustice that it brings with it sooner or later its own punishment. Happily for the colony the realization of their projects depends not upon themselves; and his Majesty's ministers will not lend their sanction to schemes of private aggrandizement, which can only be accomplished by the sacrifice of the public good. If these men have not themselves the sagacity to dive into futurity,


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and to foresee the dangers and contests to which unjust privileges and distinctions must eventually give birth, shall the government be equally blind and improvident? Shall they in the short space of thirty years forget the benevolent designs for which this colony was founded, and convert what was intended as an asylum for repentant vice, not into a house merely of salutary correction, which may moderate with reviving morality and cease entirely with complete reformation, but into a prison of endless torture, where though the sufferings of the body may terminate, the worst species of torture, the endurements and mortifications of the soul, are to end only with existence? Shall a vile faction be allowed to inflict on the unfortunate convict a punishment infinitely greater than that to which he has been sentenced by the violated majesty of the law? Has not a jury of impartial freemen solemnly investigated the case of every individual who has been transported to this colony? And have not the measure and duration of their punishments been apportioned to their respective offences? Is it then for any body of men to assert that the law has been too lenient, and that it is necessary to inflict an ulterior punishment which shall have no termination but in the grave? Shall the unhappy culprit, exiled from his native shore, and severed perhaps for ever from the friends of his youth, the


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objects of his first and best affections, after years of suffering and atonement, still find no resting place,—no spot where he may hide his shame and endeavour to forget his errors? Shall the finger of scorn and derision be pointed at him wherever he betake himself? And must he for ever wander a recreant and outcast on the face of the earth, seeking in vain some friendly shore, where he may at length be freed from ignominious disabilities, and restored to the long lost enjoyment of equal rights and equal protection with his fellows?

I am aware it may be here urged that these men, if they were to return to this country, could never enjoy the privileges for which I am contending; and that the very same laws, which have fixed the bounds of their corporal punishment have deprived them for ever of the most valuable rights of citizens. To this I reply, that in this country, whither if the whole of the convicts who have been exiled from its shores were to return, they would form but an inconsiderable portion of the people, all such disqualifications as the law has annexed to conviction in a court of justice, are good policy; because they tend to promote virtue and discountenance vice. But the very same grounds of policy require that such disqualifications should not exist in New South Wales. There the great mass of the people are composed of


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persons who have been under the operation of the law, and who were transported with the avowed intention of the legislature to effect their reformation. How then is this great philanthropic end to be best attained? Is it by holding out no inducements to good conduct, no distinction between repentant vice and incorrigible enormity? Those who have been convicted of the higher order of offences, and have been in consequence transported for life, are from the very nature of their sentences precluded from ever enjoying the privilege in question, unless, indeed, their very exemplary conduct subsequently induce the governor to extend to them the benefit of the king's pardon. This, however, is an indulgence at present so rarely accorded, that the whole of this class may be in a manner considered as being without the pale of citizenship; and it is therefore such only as have been convicted of crimes to which the law has annexed the minor penalties of seven or fourteen years transportation, who could generally become candidates for a seat in the legislative assembly? How many of this description have been detected in their first offence, in their very offset in the career of criminality? How many ever afterwards deplore their errors in sackcloth and ashes, and conduct themselves in the most correct and unexceptionable manner? And shall no distinction be made between them and


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the still persevering offender whom no inducements can withhold, no punishments deter from the commission of fresh enormities? Shall the novice in crime and the veteran be placed on the same footing and held in equal estimation? To what end do they profess themselves to be Christians who can maintain such infernal doctrines? How can they reconcile them with that universal charity and good will inculcated in their religion? How can they themselves expect pardon of their God, who would thus withhold oblivion from their repentant fellow creatures? If it be then alike conformable to the principles of Christianity and sound policy, to make a discrimination between the reformed sinner, and the still hardened and abandoned profligate, what incentive to good conduct would prove so efficacious as the prospect of regaining, after years of unimpeachable integrity, all those civil rights which they had forfeited, of becoming once more privileged to act as jurymen, magistrates, and legislators? Such a possibility would quickly revive the latent sparks of virtue wherever they were not quite extinct, and electrify the mind when all other applications would fail to rouse it from its despondence and lethargy. And shall not this sole efficacious remedy be administered, because a set of interlopers, persons in no wise connected with the purposes for which this colony


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was founded, wish to monopolize all the respectable offices of the government, all the functions of emolument, power, and dignity to themselves? Shall the vital interests of the whole community sink before the ambitious projects of a few designing individuals, who have no object in view, but their own personal aggrandizement, and the maintenance of a self-assumed aristocratic importance? And who would build their own and their families' prosperity on the ruins of the social edifice, on the misery and degradation of thousands? But it is useless to enlarge on this topic: ministers will not allow their judgments to be warped by the subtle representations of this faction. In organizing that new constitution for this colony, of which every motive of humanity and policy conspires to demonstrate the necessity, they will be actuated solely by those principles that are best calculated to further the philanthropic and enlightened ends which were contemplated by the legislature at the period of its foundation. The good of the many will not be sacrificed to the sordid views of the few, and no disqualifications will be permitted, but such as are confessedly necessary for the repression of vice, and the promotion of morality and religion.

But, while I am thus contending against the total exclusion of such as may have been convicts


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from the enjoyment of this great privilege, I would by no means imply that the doors of the legislative assembly should be thrown open to all indiscriminately who may happen to be free. An unrestricted ability to exercise a function of such great confidence and dignity, would superinduce consequences equally fatal with those against which I would guard: in endeavouring to shun one extreme, it behoves us equally to avoid falling into the other. The very principle which forbids their utter inadmissibility to become legislators, demands that none should be able to arrive at that dignity, but those whose conduct during their abode in the colony shall have been absolutely unimpeachable. Retrospection should not be pushed beyond the period of their arrival; but their subsequent behaviour should be subjected to the severest tests, to the most rigorous scrutiny. Conviction either before a court or a magistrate, for any offence of a criminal nature, should be a bar to their pretensions for ever. Crimes committed in this country should be overlooked when followed by adequate atonement and indubitable reformation; but the interests as well of the rising generation, as of the great body of the convicts themselves, require that the re-convicted felon, whom neither the hope of distinction can reclaim, nor the fear of punishment deter from a recurrence to his old


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iniquities, should be branded with the lasting impressions of infamy, and rendered for ever afterwards incapable of exercising so respectable and important a function as the one in question.

With respect to the nature and extent of the property to be possessed by the members of the legislative assembly, I am of opinion, that a freehold estate of five hundred acres in any part of the territory of New South Wales, or its dependent settlements on Van Diemen's Land, should be considered a sufficient qualification, and that in the case of electors twenty acres of freehold should give the right of voting at elections for the districts in which such freehold property may be situated; and that either a leasehold of the value of £5 a year, or paying a house rent of £10 a year, that of voting at elections for towns. Excepting conviction, therefore, in this country as a ground of exclusion both as respects the candidates and the constituents, and making the above variation in the standard of their respective qualifications as to property, I think that every cause of rejection which is deemed in Canada of sufficient efficacy to invalidate the claims of either party, should be held of equal force in this colony, not only with persons who may have been convicts, but with all such as may wish either to vote for the return of members,


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or to become members of the legislative body themselves. In framing, indeed, a constitution for the colony, that of Canada would, I suspect, be upon the whole the best model for imitation; since there is not only a much stronger affinity between the great body of its inhabitants, and those of New South Wales, than exists in any of our other colonies; but every succeeding year will render the approximation of their character and pursuits still more complete.

There is but one topic more connected with the establishment of a house of assembly in this colony, on which I intend to comment; and I notice it not so much with a view to offer fresh arguments in support of the necessity of this measure, which I consider I have already sufficiently demonstrated, as to state all the prominent reasons which might be adduced on the occasion. It is a fundamental maxim of the British constitution, that no taxes shall be levied on the subject without his consent expressed by his representatives, and yet duties have been exacted in this colony for the last fifteen years, by the mere authority of the various governors. These, it has been seen, are appropriated to various purposes of internal economy, all of great public importance and utility, to which it is but equitable that the


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colonists should contribute. This system of taxation originated, I believe, with Governor King, but whether with the sanction of his Majesty's ministers, or from his own suggestion I am not able to determine. Since his time I should imagine that not less than two hundred thousand pounds have been levied in this unconstitutional manner; and until the administration of the present governor, those who paid this money had not even the satisfaction of knowing how any part of it was applied. From the secrecy indeed which was observed in the expenditure of this fund, and the rapacious character of his predecessor, many of the colonists suspected that very little of it was appropriated during his time to the purposes for which it was intended. This misapplication of it, however, is but a matter of conjecture; and it was probably to shelter himself from the possibility of falling under a similar imputation, that the present governor has caused quarterly accounts, which are first verified by a committee consisting of the lieutenant governor and the judge advocate, and afterwards examined and approved by himself, to be published for the general information. This custom, however, is a deviation, although it must be confessed a good one, from precedent: and the colonists have no guarantee that his successors will not revert to the same mysterious application


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of this fund that has been practised by his predecessors. In this case it may be converted into a fruitful source of peculation and plunder, and be at last in a great measure diverted from the public objects for which it was instituted to the satiation of private rapacity, and the colonists become gradually burdened with an overbearing load of taxation, merely for the purpose of enriching their governors. Be this, however, as it may, the illegality of levying money by the authority of any individual, is, I should presume, quite unquestionable; and I have no doubt that if any of the colonists had public spirit enough to resist the payment of these duties, the court of civil jurisdiction would not enforce it; since the decisions of this court are solely founded on acts of parliament. The magistrates of the colony might indeed take upon themselves to direct the execution of the governor's orders, which authorize the levying of these taxes, but I have doubts, since resistance to these orders would not amount to an act of a criminal nature, and the point at issue would be a mere matter of debt between an individual and the government, whether they even would consent to give such an illegal method of taxation the sanction of their support. At all events an appeal would lie in the shape of a writ of certiorari to the civil court, which could


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not avoid annulling the judgment of the magistrates, and consequently declaring the governor's conduct unwarranted and illegal. Such an occurrence would evidently be attended with the most prejudicial effects; for not to dwell on the mortification which the governor for the time being would experience at discovering in so disagreeable a way that by treading in the footsteps of his predecessors, he had been exercising a power to which his situation gave him no claim, there can be little doubt that a victory of this nature gained by an individual over the executive would be the signal for the institution of suits against the government for the recovery of all the money that has been levied under such an illegal and arbitrary authority. To prevent the probability of being forced to refund so large a sum of money to the persons or their heirs from whom it has been thus illegally wrested, and to legalize all future levies of duties in the colony, the establishment of a colonial legislature certainly offers the only judicious and constitutional expedient.

I would not that it should be considered from the foregoing remarks that the colonists are averse to taxation. On the contrary, it is my belief that they would cheerfully contribute whatever may be necessary for the promotion of objects purely colonial;


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but they expect, and have a right to do so, that all such objects should be submitted to the consideration and approval of their representatives, and that their money should not be taken out of their pockets, whether they will or not, by the mere ipse dixit of a governor. Few are discontented with the present rate of taxation, because it is moderate; and, with the exception of that small part of the colonial revenue which arises from duties on articles of export, may be even considered judicious; inasmuch as the great bulk of the duties falls on luxuries which can be dispensed with, without occasioning any material diminution of comfort and enjoyment. But all are averse to the manner in which these duties are levied; for if they once admit that a governor has the right to exact one farthing by his single authority, what limits can be afterwards assigned to the exercise of this power? He may on the very same principle tax every article of consumption, and on the plea of public contributions undermine the whole prosperity and happiness of the community. That the different governors have been allowed to prosecute this system without opposition for so many years, could only have arisen from the peculiar constitution of this colony; but its population has now attained a degree of consequence and respectability, which will not much longer tamely permit such an unprecedented deviation from all constitutional authority;


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and the best way to obviate the unpleasant circumstances of the contest, to which a continuance of the present system must shortly give rise, is to create a body legally endowed with the powers of legislation.

On the expediency of appointing a council, his Majesty's ministers are, I believe, themselves agreed; and I will not, therefore, enter at great length on the subject. The arbitrary and revolting acts, which the want of a controlling body of this nature has already occasioned, furnish the most convincing proof of its necessity. No power, in fact, could be established, which would at one and the same time prove so firm a defence to the subject, and so stable a support to the executive. A council in the colonies bears many points of resemblance to the House of Lords in this country. It forms that just equipoise between the democratic and supreme powers of the state, which has been found not less necessary to repress the licentiousness of the one, than to curb the tyranny of the other. Besides, it at all times provides a remedy for the inexperience or ignorance of governors; and is a sort of nucleus, round which all new bodies may easily agglomerate. Like a handful of veterans in a newly raised regiment, it will be capable of setting in motion the whole machinery of the government, and establishing with the greatest celerity that organization


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and discipline which are as requisite in administration as in war. There is but one precaution to be observed in the formation of the council: it is to give the members of it an adequate salary, or in other words to insure the independent and conscientious discharge of the duties of their highly important office.

The expediency of appointing a colonial secretary rests in a great measure on the same grounds as that of creating a council. How can a private secretary, whom every new governor is at present under the necessity of bringing out with him, be capable of entering at once upon the duties of the most complicated and laborious office in the colony? It is evident that a considerable time must unavoidably elapse, before he can acquire, how great soever his abilities, that fund of local information which can alone qualify him for his situation. In the mean while it is ten to one but he becomes the tool of one or other of his clerks, who are for the most part convicts; and thus the principal acts of the governor, which from the confidential nature of his office are necessarily very materially influenced by his advice, may be secretly dictated by persons who possess very little principle or character, and who if they be themselves too insignificant to profit to an extensive


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degree by the measures of the government, may for a trifling consideration become the agents of richer and more powerful individuals, and the public good be inadvertently sacrificed at the shrine of private avarice or ambition.

The last measure which I consider necessary to the prosperity of this colony is a radical reform in the courts of justice. It has long since been noticed that at the principal settlement and its dependencies, there are five courts, one of criminal and the other four of civil judicature, viz. the criminal court, the governor's court, the supreme court, the court of vice admiralty, the high court of appeals, all of which are held in Sydney, and the lieutenant governor's court, which is held in Hobart Town. The constitution of these various courts has been already explained, and a mere cursory glance at their several jurisdictions, will convince us of the danger and absurdity of their organization. To commence in the order in which I have noticed them, what can be more improper than the constitution of the criminal court? At the time indeed, when this court was instituted, there was a necessity that it should wholly consist of the officers of the colony, since they and convicts were the only two classes of whom it was composed; but even then, what motive existed for excluding the civil officers? Were they either


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less competent to be members of a court, whose decisions ought to be founded solely on the laws of England, or were they less respectable than the military and naval? The bare appearance of this tribunal has long been odious and revolting to the majority of the colonists. It is disgusting to an Englishman to see a culprit, however heinous may be his offence, arraigned before a court clad in full military costume; nor can it indeed be readily conceived that a body of men, whose principles and habits must have been materially influenced, if not entirely formed, by a code altogether foreign to the laws of this country, should be able on such occasions to divest themselves of the soldier, and to judge as the citizen. Without meaning to impugn the general impartiality and justice of their decisions, it may be easily imagined that an individual might happen to be traduced before a court, of which all, or part of the members, might from various causes be his enemies. No one has mixed much in military society, without witnessing that esprit du corps which is so common in regiments, and which, however much it may contribute to their union and happiness, is, in a community of this nature, of the most dangerous tendency to the individual, against whom its collected fury may be levelled. It must be remembered that this colony is not like a country town from


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whence a regiment may be removed the moment its conduct becomes obnoxious to the inhabitants. There the regiments necessarily remain for many years, and from this very circumstance, disputes of a much more serious and rancorous nature are apt to arise between the inhabitants and the military, than are known in this country. And this observation applies more particularly to the officers and the superior class of the colonists: since the disputes and contests which take place between the lower orders of the inhabitants and the common soldiery, generally arise on the spur of the moment, and evaporate with the immediate cause of the provocation; while the others are more frequently the effect of cool and deliberate insult, and consequently settle into a fixed and inveterate hostility. Under these circumstances, therefore, it is not to be wondered at, that no person should feel himself in perfect security. The respectability of the higher order of the colonists may indeed shield the generality of them from any likelihood of their being ever arraigned before this tribunal; but still it might happen to them to be traduced before a court composed of their bitterest foes, not only on charges of a mixed nature, such as assault, battery, libel, &c. but also on others of a much weightier responsibility. The probability of such a contingency


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would be still further increased if the governor should happen to have imbibed the same spirit of hostility against the accused, which I have supposed actuating the military. For although the present governor, in order to render the administration of justice as unimpeachable as the nature of this court will allow, has invariably appointed the members of it according to the roaster furnished by the commanding officer of the regiment, his predecessors did not, I believe, invariably observe the same delicacy, nor is it incumbent on his successors to imitate his example. Any person therefore, who may unfortunately become obnoxious to the governor and the officers of the regiment, or indeed any part of them, should he be accused of any offence within the pale of the criminal court, might be thus forced to take his trial before his selected and implacable enemies. In this extremity what could he do to rescue himself from their gripe? He would have no right to challenge one of them; and if the sanctity of an oath, and the dread of the future scorn and detestation of mankind, did not deter them from the commission of a crying and palpable injustice, his innocence, were it as clear as the noon day, would avail him nothing, and he must unavoidbly sink, the devoted victim of foul conspiracy and deadly revenge. I am not sufficiently acquainted with the history of the proceedings


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of this court from the period of its institution, to shew how far the whole or any part of this supposed case may have been in any instance verified. That it may occur is sufficient to prove the necessity for changing the constitution of this court, and to justify the general anxiety which is felt by the colonists for the introduction of that right, so dear to the heart of every Englishman, the trial by jury. It is this inestimable privilege alone which can insure them the tranquil enjoyment of their persons and property, and enable them, while possessed of conscious integrity of conduct, to set at defiance the confederated efforts of their enemies, and to despise both the open attacks of power and the secret contrivances of malignity.

The constitution of the governor's court and of the supreme court, is liable to the same objection. They are both composed of the judges, who have each a vote in their respective courts, and of two members specially appointed by the governor: so that none of those causes of challenge which are held sufficient in this country to disqualify a juror, are of any validity in the courts of this colony. In the governor's court, indeed, the two members are to be appointed from among the respectable inhabitants; but, although the governor himself is the only judge of the measure of their respectability,


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he could not well avoid selecting them out of that class which in case of the introduction of trial by jury, would have a right from their property and character to be summoned as jurymen. In this court, therefore, an individual in a trial with the crown, would have a much greater chance of obtaining justice than in the supreme court; because the two members of it are to be appointed from the magistracy, and might be selected by the governor from their known zeal and corrupt devotedness to his service. But it is of infinitely greater importance that the decisions of this latter court should be the less exposed of the two to the possibility of bias; because in the former the injury which an individual could sustain from an unjust verdict could only amount to £50, and in the latter it might extend to £3000, and consequently occasion his utter ruin. I limit the injustice which might arise from the very improper constitution of this court to the above sum; because, although it is competent, as I have before stated, to take cognizance of all pleas to any amount whatever, an appeal would lie, from the high court of appeals, whose verdict I here take it for granted, would in all crown causes be confirmatory of the judgment of the inferior court, to the king in council, when the matter in dispute exceeded this sum. Any unjust verdict, therefore, for


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more than £3000, would of course be reversed in this country; but this is a trifling set-off against the heavy charges to which the court is in other respects liable; since few of the colonists are wealthy enough to be concerned in causes where the matter at issue could attain so great an amount: so that this remedy is quite beyond the reach of the majority of the inhabitants, and they are abandoned to the scourge of oppression, wherever a capricious and overwhelming tyranny may choose to single out its victim. It is highly necessary, therefore, that the constitution of both these courts should undergo an immediate revision, and be so framed as to ensure henceforth the impartial administration of justice to all. They are not to be tolerated because they cannot commit a robbery beyond this enormous amount, and because there are some few individuals, whose prosperity is too deeply rooted to be overturned by the malignant fury of vengeful despots. It must be evident that the power of the governor of this colony is sufficiently leviathan, uncontrolled as he is by a council, and possessed as he is of an incontrovertible right to nominate the most obsequious of his creatures as jurymen on all trials, whether of a civil or criminal nature, to endanger the property and life of every individual under his government. Nor should it here be forgotten that there has been a governor


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who, if the colonists had not arrested him in his iniquitous career of vengeance and despotism, would have hurled death and destruction from one end of the colony to the other. Without the circle of his immediate creatures, with the most favored of whom it is well known that he was in a commercial partnership, every individual who either had attained affluence, or was gradually rising to it, was the object of his hatred or envy. The former he detested, not more because they had no need of his protection, than from fear they should promulgate to the world his nefarious proceedings; the latter because they were absorbing some portion of that wealth, which he wished should flow wholly into the coffers, the contents of which at the division of the spoil he was to have so large a share of. It does not follow, therefore, because his successor has not imitated his base example, because he has surrounded himself with respectable counsellors and a conscientious magistracy, that we should overlook the possibility that his very successor may undermine the whole superstructure which he has been rearing, and become in every respect as great a monster as the wretch who before drove the colonists to desperation and rebellion. Experience is the beacon of past times set up for the guidance of future; and those who shape their course by it, shall avoid striking on the


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rocks to which it forbids approach. Woe to the pilot who disregards this friendly admonition, and runs on incredulous of the risk. Soon in the midst of surrounding reefs he shall when too late repent his temerity, and wish, that content with the experience of others he had not authenticated by the shipwreck of his hopes, the folly of his incredulity, and the reality of the danger! It is with governments as with individuals. The institutions which have occasioned anarchy and devastation before, will, if persisted in, produce them again. Vile and detestable as have been the monsters of antiquity, the world still contains their parallels; and if they languish in obscurity, if they have not attained a celebrity equally atrocious, it is because they possess not equal facilities for the display of their real character and propensities. Human nature is still the same, and wherever a field is opened for the growth of tyranny, there that poisonous fungus, a tyrant, will shoot up.

But the encouragement which these courts in general hold out for the indulgence of private animosities, and their consequently imperfect adaptation to the administration of justice, are not the only reasons which may be urged for a change in their present organization. The whole of the inhabitants of the various settlements


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in Van Diemen's Land, are in a great measure placed without the pale of the law. They have, indeed, what is termed the lieutenant governor's court, but as I have already observed, it can only take cognizance of pleas to the amount of fifty pounds, and possesses no criminal jurisdiction whatever. They are consequently left without any internal protection from the spoliations of lawless ruffians, and in a great measure from the scarcelyless pernicious depredations of dishonest creditors. For although they may obtain redress in both instances in the courts established at Port Jackson, nothing but an invincible necessity will propel them to seek so distant and expensive a remedy. The consequence is, that scarcely any but delinquents of the very worst cast, as murderers and housebreakers, are ever brought to trial; for notwithstanding all criminal prosecutions are conducted at the cost of the government, and the witnesses are paid their indispensable expenses from the police fund, still, what with the period that elapses in the voyage to Port Jackson, the delays incident to the courts themselves, and the time that the witnesses must generally wait before they can obtain a passage back again, very few of the persons who are constrained to give evidence on such occasions can possibly manage to resume their domestic occupations under three months. This to a


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set of men, who are for the most part agriculturists, is too serious a sacrifice of private advantage to public duty; and it is not, therefore, to be wondered at that a general disposition should be manifested by the inhabitants of Van Diemen's Land to suffer quietly the depredations that may be committed on their property, rather than incur perhaps the much greater loss attached to the prosecution of the offender. The remedy, which they possess for civil injuries is, indeed, somewhat more palatable, but still far too remote and expensive. The principal reason, indeed, why so many debts and obligations contracted in these settlements, become matter of action before the supreme court at Port Jackson, is to be traced to the satisfaction which results from compelling one who considers himself a privileged plunderer, and at liberty to fatten with impunity on the industrious, to disgorge the wealth of others, which he may have thus sucked. The expence, however, of supporting witnesses at so great a distance from their homes, and the precarious issue of suits in general, induce many creditors to run the risk of voluntary payment at some future period, who would not hesitate to institute actions against their debtors, if there were a competent tribunal within their reach. The want, therefore, of a court possessing an unlimited


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civil and criminal jurisdiction, is of the most baneful consequence to these infant settlements. It encourages all species of crimes and dishonesty, strikes at the very root of virtue and religion, and cannot but have a most pernicious effect on the morals of the rising generation.

Such are the leading defects in the actual system of jurisprudence established in this colony; and I think it will not be disputed that a more crude and undigested organization of the colonial courts could hardly have been devised. Whether the judges of these courts have made any representations on the subject to his Majesty's government I am not aware; but I should apprehend not, or surely they would have been remodelled ere this after a more perfect design. To effect this highly important object would be a matter of very great ease: it appears to me that the following measures would amply suffice. 1st, The entire abolition of the actual courts of civil and criminal jurisdiction; 2dly, The creation in their stead of one supreme court, consisting of a chief justice and three puisne judges; 3dly. The establishment of trial by jury; and lastly, the creation of a high court of appeals to consist of the governor in council. The sittings of the supreme court should only be held at Sydney, the seat of government; but circuits should be established through-out


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the different districts of the colony, and of its dependent settlements in Van Diemen's Land, and commissions of assize, of oyer and terminer, and of general gaol delivery should be issued by the governor to the judges at stated periods, and they should determine among themselves their respective circuits. These courts of assize should possess the same power as belongs to similar courts in this country, and in some respects it might be advisable that they should be vested with a still more extensive authority. In the settlements in Van Diemen's Land I am of opinion that no appeal should be allowed from the decisions of the court of assize to the supreme court at Sydney, unless the verdict should exceed three hundred pounds; but it would of course be proper that the judges of this court should possess the power of granting new trials, on the same grounds on which such are accorded in this country. In judgments, however, for more than the above sum an appeal to the supreme court should be admitted.

With respect to the civil jurisdiction of the courts of assize in the various districts belonging to Port Jackson, I think it ought to be considerably curtailed, and that their decision should not be final in any instance whatever; because the removal of causes to the supreme court would be attended with a


  ― 377 ―
comparatively trifling expense and inconvenience to the parties. From the judgment of this latter court itself, I am of opinion that an appeal should lie in all causes where the damages might be estimated at more than one thousand pounds to the high court of appeals, and that its decisions should be conclusive in all pleas under the amount of three thousand pounds; but where the matter in dispute exceeded this sum, that an appeal should lie en dernier resort to the king in council. If to these courts were added a court of admiralty, possessing both a civil and criminal jurisdiction, the system of jurisprudence would be quite adequate to all the present necessities of the colony; justice would be brought home to the doors of all his Majesty's subjects in these remote and extended settlements; the delay and expence now attendant on civil and criminal prosecutions, would be in a great measure obviated; and the loyal and industrious would be effectually protected, both from the secret depredations of the midnight plunderer, and from the open dishonesty of the unprincipled debtor: hundreds of indolent and profligate persons who now prey in one way or the other on the hard earned savings of thrift and frugality, would be compelled to resort to the pursuits of industry for a subsistence; vice and immorality would be checked, and the wealth,


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happiness, and virtue of the community at large rapidly flourish and expand.

Of all the changes or modifications which I have thus ventured to recommend in the polity of this colony, the creation of a council, the appointment of a colonial secretary, and these alterations in the system of its jurisprudence, are the only measures which would be attended with an increase of expence. The establishment of a house of assembly, might of course be effected without any cost whatever, and even the remodelling of the courts of justice would be productive of but a very trifling addition to the scale of the civil establishment. The three judges who at present preside in the various courts, might be transferred to the supreme court, which I have recommended to be substituted in their stead; so that the appointment of one new judge is the principal additional expense of which this reorganization of the courts would be productive. It is true that it would be necessary to place all the puisne judges on the same footing in point of salary, and likewise to appoint an attorney general to act in behalf of the crown, but all this might be liberally accomplished for about six thousand pounds per annum. As to the court of admiralty, the chief justice might be appointed to preside in it, whenever


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circumstances might require it to be held; but this necessity would occur so seldom that no additional salary need be allowed him on this account. A few barristers would be necessary besides the attorney general, to support the respectability of these courts; but I consider that the practice arising out of them, would be sufficiently extensive to repay a few gentlemen of the bar very liberally for the sacrifices they would make in emigrating to this colony, and that the government need not hold out any pecuniary inducements to effect this object; although it is only four or five years since two attornies were each allowed £300 per annum by way of encouragement for them to go out and practise in the courts at present established there. Since that time, however, two more have voluntarily gone out to the colony without any salary whatever, and have found that there is sufficient litigation without the assisting liberality of the government. An addition therefore of £6000 per annum to the civil establishment of this colony, would effect the great radical reformation in its polity, of which it has been the main object of this essay to prove the wisdom and necessity; while on the other hand, the savings which this country would derive from the adoption of the various alterations proposed, would be found not only in the almost immediate check which would


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be imposed on the rapidly increasing expenditure of this colony, but also in the great permanent reduction in it, which would be the eventual consequence. The best means of accomplishing these highly important ends shall be the subject of the following section.

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