The Present Picture of New South Wales (1811) by David Dickinson Mann

D >> David Dickinson Mann >> The Present Picture of New South Wales (1811)

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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.

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