Marion Phillips

“ I hope that I am not presuming too much when I express a humble confidence that it never could be intended that so vast a power should be placed in the hands of any one man without the smallest provision against its abuse; a power which, as far as this Colony is concerned, and under the bare pretence of local circumstances, I will be bold to say sets the Governor of New South Wales above the Legislature of Great Britain, and at once resolves the rule of action here into the mere will of the Governor, a will not subjected to any previous advice or controul. ”

“ In a society so restricted is there not reason to apprehend that they may unavoidably bring with them passions and prejudices which will ill dispose them to discharge the functions of judgment? The great principle of that excellent institution is that men should be tried by their Peers—would that principle be fairly acted upon, if free settlers were to sit in judgment on convicts; and that too in cases where free settlers might be a party? Would it be prudent to allow convicts to act as jurymen? Would their admission satisfy free settlers? ”

“ But the presence in the Colony of what Goulburn called "such inflammable material" as the convicts, and past troubles with Bligh, probably did no more than give a colour of reason to the Tory principle of the period. It was after all a time when government by the benevolent despot was a favoured system. The people were to be ruled by those selected for that purpose by the highest authority, and due subordination was to be preserved. A belief in inequality was not questioned as a prejudice, but firmly adhered to as a fundamental principle. ”

“ Between 1810 and 1820 the lot of the settlers was no easy one, and those who came intending to amass a fortune and return to England found their project a mere dream, and that they needed steady perseverance before they could make their way in the Colony itself. Bigge noticed that New South Wales was unlike any other British Colony, inasmuch as the colonists looked upon it as their future home. ”

“ The deeper and more fundamental cause lay in the fact that the children of the convicts felt that New South Wales offered them a chance of free and honourable careers such as, weighted with the shame of their parentage, could not have been before them in the older country. Nationalism, the strongest characteristic of the Australian of to-day, is a legacy from these sons of exiles for whom Australia was a land of hope and promise, and the sense of a national character seems even at that early time to have impressed itself upon the observer. ”

“ But you and I, who have voluntarily undertaken a duty which combines us equally with all, must, in the just fulfilment of those duties, lay aside our own personal feelings—for if we are so delicate in our moral sentiments as to be unapproachable by the general mass of the population of this Colony, or so refined in our senses as to be unable to bear the approach of a naked and generally filthy native, it will be difficult, if not impossible, to form a just estimate of the wants and claims which all alike have upon us. ”

“ It was not a matter of minor importance "whether persons so peculiarly circumstanced as George Crosley, Edward Eager and George Chartres should be solemnly accredited, not to this Colony but to the whole world, as in every respect fit persons to be entrusted with the management of all legal concerns whatever ... when I well know that it is an object of numerous Acts of Parliament, and of the regulations of all His Majesty's Courts of Justice, to do all that lies in their power not to admit as attorneys those whose characters were disreputable or suspicious". ”

“ Macquarie was unsparing in hunting out the perpetrator of any crime against the male convicts, and no more awful example of the tragedy possible under the system of transportation could be found than that afforded by the case of the Chapman.
The arrival of this transport with Captain Drake in command from Ireland on the 26th July, 1817, was the signal for a remarkable outburst of feeling throughout the town of Sydney. ”

“ For a small Colony it appeared obvious that such a system was a fitting one. The settlers belonged to a comparatively low stratum of society, the convicts of course lower still. It was but natural and proper that all should be governed by a superior (though not necessarily an exalted) intelligence selected for them by the Government at home. Lord Castlereagh, who was perhaps the harshest of this set of reactionaries, wrote of colonists in an undoubted tone of contempt. ”

“ I can assure your Lordship," wrote Bent, "that the comfort and happiness of any Judge-Advocate, nay, even the proper discharge of his duty, must depend entirely upon the personal character of the person in whose hands the executive power of the Colony happens to be vested."
The duties of the office he considered too heavy for one man, and in many ways inconsistent with one another. Thus in the Criminal Court he acted as judge in cases for which he had himself prepared the indictment, and in which he had the conduct of the prosecution. ”

“ It was no wonder that the Government service became popular amongst all the prisoners except the good mechanics [103] and that the landowners thoroughly disapproved of Macquarie's system. It was not merely their poverty which prevented them from taking men off the Government's hands. The disinclination of the men themselves to go into the settler's service, their consequent unwillingness to work, and the cost of their keep and wages, all constituted serious hindrances. ”

“ Macquarie, however, made no such distinctions. He held a very exalted notion of his position as the head of New South Wales society, and had neither the education nor the natural good taste which would have induced him to distinguish one man from another in the ranks below him. But Ellis Bent was something of a scholar, and, with a delicacy of mind probably heightened by ill-health, shrank from intercourse with ignorant men of doubtful character such as Lord or Thompson. ”

“ Macquarie's missionary-magistrates had jurisdiction only when crimes were committed on land. Even then, being wholly without coercive powers, they could do nothing effective. In New South Wales itself there was no court which could take cognisance of offences committed on the Islands or on the High Seas. The only thing that could be done was to hold an investigation into any charge brought against a ship's master or crew—a purely magisterial inquiry which was only effective if followed by committal and then the trial of the accused in England. ”

“ It is noticeable that no one, with the exception perhaps of Marsden, thought it would be possible to exclude ex-convicts altogether. Field, for example, thought the danger of petty juries would lie in the fact that emancipists would be legally entitled to sit upon them, and that jury trial would therefore be the means of still further embittering feeling between themselves and the free population. [57]
It is probable that the military officers who acted as judges and jury in the Criminal Court were as impartial and as intelligent as an average English jury. ”

“ Writing to Commissioner Bigge in 1819, Macquarie gave the following account of his feelings towards them: "At my first entrance into this Colony," he wrote, "I felt as you do, and I believe I may add every one does—at that moment I certainly did not anticipate any intercourse but that of control, with men who were or had been convicts. A short experience showed me, however, that some of the most meritorious men of the few to be found, and who were most capable and most willing to exert themselves in the public service, were men who had been convicts! ”

“ It is to this humanity, often short-sighted and mistaken in its actions, that Macquarie's measures in regard to the convicts' wages, rations, and treatment generally may be traced. It was probably from this desire to give a gentler aspect to colonial life that he was so eager to ornament the town of Sydney with architectural beauty and to spread amongst the people opportunities for education and a knowledge of religion. ”

“ It is a necessary respect to the Laws that the sentence should be acted upon as long as it exists. No doubt many of the Free Settlers (if not all) would prefer (if they had their choice) never to admit persons who had once been convicts to any situation of equality to themselves. But ... in coming to New South Wales, they should consider that they are coming to a Convict Country, and if they are too proud or too delicate in their feelings to associate with the population of the country, they should consider it in time. ”

“ There is also no reason to suppose or at least no proof that the thieves, forgers, coiners and highway-robbers died childless; and as there were but few free women in the Colony, the female convicts must necessarily have been the mothers of the greater part of the first generation of Australian born. New South Wales thus carries before the world a banner of hope and a promise that future generations may yet escape from the bondage of past evils. ”

“ There had been a change, Lord Bathurst pointed out, from the time when convicts sought to have the sentence of transportation commuted "even for the utmost rigour of the law," to the present when men convicted of slight offences sought the punishment of transportation which was the penalty of greater crimes. Altogether the conditions of the Colony had altered. The free settlers had increased, many convicts had become settled on the land, population and wealth had become great. The growing number of convicts transported made it more difficult than in earlier years to enforce discipline ”

“ Is it to be a gaol or a Colony?—if a gaol you must bring back again to Europe all the free settlers—if a Colony, in order to maintain those who are already there in a flourishing condition, as well as to induce persons of character and property to settle within its territories, a rational, limited, legal Government must be established. ”

“ Bigge thought that such a course would have been a dangerous one, for the master who was responsible for the safe navigation of his ship should have power to interpose whenever he considered it endangered by any concessions or laxity of discipline amongst the prisoners. He thought the only remedy lay in the fearless exercise by the surgeon of the right to enter in his journal any refusal of the master to do what the surgeon considered necessary for the health and fair treatment of the convicts. ”

“ The important question was whether New South Wales was still a suitable place for a penal settlement. "So long," he wrote, "as the Colony was principally inhabited by convicts and but little advanced in cultivation, the strictness of police regulations and the constant labour, under due restrictions, to which it was then possible to subject the convicts, rendered transportation, as a punishment, an object of the greatest apprehension to those who looked upon strict discipline and regular labour as the most severe and least tolerable of evils". ”

“ The broadest division was that between convict and free, which marked a man from the moment at which he first set foot in the territory. No matter what position he afterwards attained, whether he rose from prisoner to landed proprietor or fell from freedom to the ranks of the colonial gaol-gang, the important thing was not what he had come to be but how he had come to be there. [20] Among the convicts themselves new divisions came into existence—the chief of them that between the men who were and the men who were no longer prisoners. ”

“ While the merchants and traders, who were usually landholders as well, belonged almost entirely to Sydney, in other respects the description of the people of one district serves equally well for that of all. Thus the classification given by Alexander Riley, a merchant of New South Wales, of the society of Sydney is not only an accurate account of that district, but well describes the whole settlement. ”

“ When it brought the convicts into a town as it did at Parramatta, it was an unmixed evil. Marsden, the senior chaplain, and Hannibal Macarthur, the two chief magistrates at Parramatta, opposed it strongly and refused to enforce the order; and Bayly, Townson and Sir John Jamison agreed with them. Anything which brought the convicts together in large numbers was open to serious objections, and these were all the stronger if after the muster there was no church within three miles for them to go to. ”

“ The Home Government were the real culprits, and either they had knowingly persevered in an illegal course or had ignorantly blundered. The latter theory seemed unlikely, for the power of Parliament had been invoked to give New South Wales a Criminal Court, and "wherefore apply to Parliament for powers for the organisation of a judicial establishment in that Colony". Judicial power is in its nature inferior, subordinate to legislative. If the Crown had an original right to create the superior power, how can it have been without the right of creating the subordinate? ”

“ Early in 1821 Macquarie made a tour of Van Diemen's Land, and on his return to Sydney was received, as he had been in 1812 with an address of welcome and a general illumination of the town. [84] Soon afterwards he started on his last progress through New South Wales, and it was while he was absent that Brisbane arrived at Port Jackson. On the 21st of November Macquarie returned to headquarters, and Sydney saw the spectacle of "Their Excellencies" riding through the streets together. ”

“ Lord Bathurst concluded with a vigorous description of transportation as it should be and as it had become "... you will in the whole course of your inquiries constantly bear in mind that transportation to New South Wales is intended as a severe punishment, applied to various crimes, and as such must be rendered an object of real terror to all classes of the community." ”