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.
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 labour 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 labour 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 labour 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 labour 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 labour 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 labour, if they ever possessed it, and become indolent and careless as to the colour 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 behaviour 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 labour, 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 rigour 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 chequered 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.