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Statistical, Historical and Political Description of the Colony of New South Wales and its Dependent Settlements in Van Diemen's Land by William Charles Wentworth

W >> William Charles Wentworth >> Statistical, Historical and Political Description of the Colony of New South Wales and its Dependent Settlements in Van Diemen\'s Land




But, while I am thus contending against the total exclusion of
such as may have been convicts 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 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 L5 a year, or
paying a house rent of L10 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, 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 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 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 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_; 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; 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 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 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
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 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, etc. but also on others
of a much weightier responsibility. The _probability_ of
such a contingency 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 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, 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 L50, and in the latter
it might extend to L3000, 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 more than L3000, 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 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 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 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 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 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.

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