The Legislative Code of the Colony

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 splendor. 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 honorable 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 honor 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 neighbor, 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 practiced 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 favorable 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 counselor 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 endeavors successful; and the allowance of government, with the emoluments which they would derive from their practice, which might safely be calculated at 200l. or 300l. per annum; having a farm allowed them to cultivate, would render their situations not only comfortable, but eminently respectable; and their introduction would be attended with no extraordinary expense to government, beyond what is generally allowed to settlers in the colony. To encourage gentlemen of education and ability to make this attempt, it might not be an improper extension of liberality to allow them a free passage back to England, if, upon a fair and sufficient trial, it should be discovered that the speculation which induced them to embark for the colony should not turn out productive enough to reward them for their exertion, and to offer them that genteel support to which they would be entitled, on account of the superiority of their situation, and according with the habits of their former life.

In the trial of civil causes, it had, until latterly, been the custom of the court to insert in writing only the amount of the debt sought to be recovered, the damages which have been awarded, the names of the plaintiff and defendant, and the adjudication of the court; but in the opinion of many persons of consequence and respectability in the colony, it is absolutely requisite to cause all the viva voce evidence which is given in all civil cases to be taken down in writing. The following reasons are given for this alteration in the former custom, and their full weight has been allowed to them whenever I have heard an opinion given upon the subject. It occurs very frequently that appeals are made from the decision of the civil court to the governor, and, in consequence of the evidence which has been given before the court not being taken down, the witness has an opportunity of correcting, enlarging, or otherwise altering his depositions, so as to make his own case appear in a very different point of view to that which it bore in the former instance, and thus a temptation is held out to perjury, which is too strong for the weak morality of many in the colony to resist, and the current of public justice may, by this method, be completely turned out of its proper channel; and the decision of the civil court is at all times liable to be disputed and reversed. No writ of court is issued for less than ten pounds, so that the necessity of taking down the evidence in a suit instituted for a sum beneath that amount, does not appear to be so strikingly obvious; although an appeal may be made to the governor from the civil court, for any sum, even less than ten pounds; but this is not very often done, although some instances have occurred in my recollection. Where the sum sued for exceeds 300l. a court of appeal may be demanded, and if the plaintiff is dissatisfied with the decision of the governor, he has the right of appealing to the King in council; and here the necessity of taking down the evidence brought before the court becomes still more strong, since the character of the court itself may be involved in the issue of the legal decision. Suits to this amount are not now very rare, but they may be expected to become much more frequent in the thriving state of the colony.

The affixing a greater degree of respectability to the office of chief constable at Sydney, and the attachment of a salary to the situation from the crown, would be a desirable measure, since on this officer depends, in a great measure, the peace, the internal security, and good order of the colony; and it is therefore worthy of consideration whether the trust, inferior in importance to scarcely any in the settlement, ought not to be reposed in a person of some respectability, and who, by the receipt of an adequate remuneration, might be enabled to devote his time and attention to the duties of his office. To this situation so much responsibility is attached, and from it so much good is expected, that the person who fills it ought to be enabled to preserve a respectable appearance, and to embrace the comforts of life, without being permitted to have recourse to traffic or other pursuits which might contaminate his principles, or render him less zealous in his exertions for the good order of the colony. The benefit which must arise from the conscientious discharge of the duties of this office is much more than can be imagined at first sight; and the evils, on the other hand, which flow from its mal-execution, are in an opposite extremely baleful, and calculated more to promote excesses and tumults than to repress them.

That prisoners who are transported for life are in general indifferent to their future fate, and careless of their conduct, is a fact well known to all persons who have resided in the settlement; and it therefore becomes a naturally interesting question, by what means these convicts may be brought to discharge their duties with more readiness, and to follow a course of life more fraught with happiness to themselves, and more satisfactory to those who are placed near them. The best method which suggests itself to me, is that of employing prisoners for life on government labor for a limited time only, at the expiration of which period they should be made free of the country, and, in case their conduct had been such as to merit approbation, should be allowed to become settlers, with the usual indulgences, and thus have the means once again placed before them of raising themselves to a respectable rank in society, in that country to which they had been banished. Those, on the other hand, who are found to be dissolute and abandoned characters when their term of labor had expired, might be made free also; but, instead of being allowed to become settlers and to receive indulgences, they might be taken off the stores, and be compelled to labor for their daily bread. Such an amelioration of the punishment of those unhappy delinquents who have incurred this heavy vengeance of the laws of their country, would induce numbers to look forward into futurity with a satisfaction which they had not possessed previously, arising out of the distant hope of becoming opulent and respectable, and of making the renewal, in the decline of their existence, of those prospects which, in their earlier years, had been eluded and destroyed by their vices; and this idea would not fail to stimulate them to a conduct more laudable, and calculated to accelerate the accomplishment of their wishes. It may be brought against this measure, as an argument, that it would reduce the extent of the power of government to grant pardons to deserving convicts, and that government would thus lose the advantage which was derived from the labor of those prisoners; but to the former objection it may be replied, that the certainty of an alleviation, and of the advantages which would attend a meritorious conduct during the specified period of punishment, would prove a powerful incentive to the convicts, and would tend to produce more good members of society and useful settlers than could be expected, unless some reward was to be the certain result of meritorious conduct; without this stimulus, there might be, as there has been, some good characters to reward, but their numbers would be comparatively insignificant: To the latter objection it will only be necessary to say, that if government loses the labor of these convicts, it also disburdens itself of the weight of supporting them and of providing them clothing, &c.

Against the perpetual imprisonment of convicts the following reasons may be brought forward:--The restlessness and indifference which generally pervade the conduct of delinquents of this description, who, seeing no termination to their captivity, lose the inclination to labor, if they ever possessed it, and become indolent and careless as to the color of their future fate; the impossibility of any governor, however diligent and compassionate, being enabled to discover all the meritorious convicts of this description who might be entitled to their liberation in pursuance of the present system, since he could not possibly, at any time, keep an eye upon the whole, scattered as they are through the settlements, and in the employ of various persons; many deserving prisoners, having never been in the service of an officer, have none to recommend them, and remain, consequently, unnoticed, although they may be more meritorious than even some who are emancipated; and the numerous desertions which take place amongst those convicts who have no prospect of amelioration in view, and who are, therefore, indifferent what becomes of them, placing upon a level the dangers of destruction and the prospect of toiling away existence, without the hope of freedom or of happiness, to the close of their days. Such a conduct as this is truly not to be wondered at, when the behavior of some criminals at the bar of their country is recalled to mind, where they have declined that mercy which has been extended to them, and preferred death to a perpetual banishment from that society which they had injured. If any of the liberated convicts should afterwards attempt to make their escape from the colony, they might be returned to the public labor, or be sentenced to such other punishment as may be thought adequate to the importance of their offence. What the consequence of the amelioration of the rigor of punishment would be may easily be imagined; instead of continually murmuring at the gloomy prospect before them--of displaying indifference to the future--of beholding before them no limitation of their slavery, nothing but misery, toil, and death; instead of these cheerless contemplations, they would begin to display a degree of contentedness with the situation to which their delinquency had reduced them, and their progress would be marked by utility to the government and to the community, instead of being checkered by continual efforts to elude the vigilance of their overseers, and to escape from a scene of uniform hardships, unillumined by a single ray of hope.

The best interests of the colony would be greatly forwarded, if government were to select some clergymen, of unequivocal piety and zeal, to inculcate religious and moral principles. For this purpose, they should be chosen of unblemished character, whose respectability and exemplary conduct would assist to give weight to the doctrines which flow from their lips. Much good cannot be derived from the efforts of men, who are chiefly engaged in farming and traffic, and who will sell a bottle of spirits, or oblige some of those very persons with it, to whom they have just before been preaching the duty of temperance, and whose learning and appearance are better adapted to less important avocations, than fulfilling the sacred functions it is intended they should perform.--The future prosperity of the settlement also greatly depends upon the manner in which the rising generation are instructed. The education of youth is, at present, much neglected, through the want of four or five schoolmasters of sufficient capacity. There cannot be a doubt that persons qualified for this profession would meet with very liberal encouragement, as the children are numerous, and there are but few parents who cannot afford to educate their offspring respectably.

The want of some able superintendants in different branches of business is at present much felt, since such individuals might be usefully employed in training up youth to the pursuits of industry; by which means the commission of crimes would be rendered less frequent, and the dispositions of children would receive a proper bias. An arrangement of this nature would also remove the severe inconvenience occasioned by the extreme scarcity of able mechanics throughout the colony.

It will be immediately admitted by every unprejudiced mind, that the salaries of the deputy-commissaries should be increased, when the circumstances under which they are placed are duly considered. They have now only five shillings a day; a sum so totally inadequate to the services they perform, as to excite surprise in all who witness the extent of the trust reposed in them. This daily pay is barely sufficient to purchase a dinner in the colony, as they are obliged to appear in every respect as gentlemen; and the necessary consequence is, they are compelled to enter into other occupations, unless they have a better source of income than their salaries, in order to meet their own unavoidable expenditure, and to maintain (as is generally the case there) a wife and large family. The impolicy of giving small salaries must be obvious, when it is considered that individuals who are thus sparingly rewarded for their labor, abstract from their official duties some portion of that attention which ought to be wholly devoted to them.

A different arrangement with respect to the grants and leases of land would also be productive of beneficial consequences. Whenever any of those deeds have been made, under the hand and seal of the governor, or of the colonial seal, they ought to be considered as secured to the grantee or lessee, their heirs, &c. and, under no pretence whatever, except a failure in the fulfillment of the conditions expressed therein, ought the governor, or any succeeding governor, to retain the power of taking that land away. The existence of such a power, indeed, is, upon its surface, arbitrary; and, in its effect, totally destructive of the spirit of improvement; for there scarcely exists a man who would bestow his whole exertions and property in increasing the value of buildings and land, which he holds by such an uncertain tenure. In the midst of his expectations, just as he has impoverished himself with the hope of reaping a future recompense, he may, by the sudden whims or caprice of an individual, be deprived at once of the means of gaining future subsistence, and plundered of every thing which he may have done with a view to his own benefit, and the bettering of the estate. It is surely unwise to leave a power (which, it is to be hoped, is without authority) of this description, in the hands of any man, however exalted his character, and however conspicuous his love of justice.

The whole of the contingent expenses which would result from these improvements, might be paid by duties laid on importations, exportations, &c. which are at present by no means inconsiderable, but might be greatly increased, to the mutual advantage of the colonist and the government.

To expatiate largely on the benefits which would result from the establishment of a free trade, is altogether superfluous to men whose minds can embrace the increased stimulus which would be given to industry, the influx of wealth and population, the improvements in agriculture, commerce, and the arts and sciences, and the rapid advancement of the best interests of the colony, which must result from such a measure.

The strong necessity for some considerable alteration in the internal arrangement and policy of the colony, to various parts of which I have drawn the reader's attention, can but be apparent to all unprejudiced persons, who have but a superficial knowledge of the settlement. The suggestions I have now presumed to offer to the public, as my opinion for means of improvement, I beg to state, are as unbiased as my statements are faithful; and which are the result of some reflection, founded upon the experience of a long, and, I should hope, an unimpeachable residence, in the fulfillment of some important duties, thereby obtaining more than common means of observation. With these assurances, I have to trust that due credit will be given to my intentions, which had their principal stimulus from an anxious wish that the mother country should receive every possible benefit, in the adoption of so promising and highly interesting a part of the uncivilized globe to its fostering care.

The Present Picture Of New South Wales, 1811