The increased demand for assigned servants, enabled Governor Arthur to enforce the regulations which had been often promulgated in vain. It ceased to be necessary to pay wages, and the master was bound to provide sufficient food and clothing for his men: the scale was determined. The practice of lending out servants was restricted, and finally abolished. All those means of stimulating labor, which had tended to suggest the rights of property, were forbidden. It had been the custom to permit assigned servants to receive a share in the increase of stock; allotments of land had been separated to their exclusive use; they had been suffered to trade upon their own account. These arrangements were calculated to stimulate industry, but they also generated disputes, and led to petty theft. Thus reduced to an absolute dependance upon the liberality of their masters, they had no reward but as a boon: many of whom, however, evaded the regulations, and paid their servants the ordinary wages of free men.
No rule can be devised, that is not liable to objection. The men were discontented with a service, in which money was refused them: it was illegally possessed, and therefore rapidly spent in debauchery and drunkenness. The settlers usually allowed some luxuries; but these, discretionally given, were a tax to the liberal, often more onerous than reasonable wages. Domestic servants, and those entrusted with important concerns, were paid by all, from the Governor downwards, and that while regulations were promulgated against such violations of order.[163] It was doubtless not at his direction, but at his cost!
A decision at Sydney, explained the nature of the claim for wages granted by former regulations of government. A female, at the close of a long servitude, sued her master for arrears: the judge advocate declared "his court one of equity and right," not of law; that the spirit of public orders, not their letter, was the rule of judgment; that the allowance of money required by the crown, was intended to secure the plaintiff certain comforts: those comforts she had already enjoyed, and thus her claim in equity had been already satisfied (1823). The wages of a man servant were stopped by the magistrates, because he had been accused of stealing from his master (1821)!
The right of a master in the services of his assigned servant, was incidentally raised in the celebrated case of Jane New. She arrived in Van Diemen's Land under a sentence of transportation, and, according to the prevailing custom, was assigned to her husband; who was allowed, by Governor Arthur, to remove her to New South Wales: she was charged there with a capital felony, and death was recorded against her. The prosecutrix, Madle. Senns, a French mantua-maker, gave her evidence by an interpreter: afterwards, it was discovered, that the conviction was erroneous, both in substance and in law: released on the recommendation of the judges, by order of the sheriff she was committed to the female factory at Parramatta. Her husband then sued out a writ of habeas corpus, to which the return, as amended by the direction of the court, alleged under the hand of the colonial secretary, that her detention was by authority of Governor Darling, she being a prisoner of the crown. The question seemed to depend on the nature of the rights conveyed by assignment; but a second arose: whether those rights could be exercised beyond the limits of the territory appointed for the transportation; or whether Governor Arthur was authorised to permit the removal. The judges, Forbes, Stephen, and Dowling, decided that the prisoner having been transported to Van Diemen's Land, was, by removal to Port Jackson, no longer under the provisions of the act of parliament; that neither the magistrates nor Governor of New South Wales, could make her the subject of summary treatment; but as a prisoner illegally at large, must remand her to the place of her original and unsatisfied term of transportation.
In giving this decision, the judges announced their opinion upon the rights of assignment in general, as regulated by the 9th Geo. iv. cap. 83. The Act required the consent of the governor in the assignment of a prisoner, and authorised the revocation of that assignment: this power to revoke, was however, to enable the governor to grant remission—to change the civil condition of the servant; and thus, by his restoration to liberty, to extinguish the rights of the assignee. The law officers, on the part of government, alleged that the discretion was absolute, and authorised a summary disposal of the services of the prisoner; whether under, or independent of, a magisterial decision.
The chief justice, however, maintained that such a right in the executive might be ruin to the people. He asserted, that the duty and right of the governor was limited to the execution of a public trust, as between the crown on one side and the prisoner on the other; to minister to a covenant, subject only to those stipulations, the neglect of which might, by the common rights of humanity, dissolve the engagement. "If," he remarked, "the governor, at discretion, may revoke the assignment of prisoners, as a consequence he may render the estates of landholders of no value; nor does it appear that this power of revocation is sustainable under any circumstances in the large and discretionary form claimed by the law officers of the crown."[164]
The government endeavoured to contest this right (1829), in the instance of Mr. Hall, publisher of the Monitor, whose strictures had provoked official hostility. His men were recalled by the superintendent; he, however, paid no attention to the notice, and continued to employ them: for this he was summoned before the bench of magistrates, who, influenced by the known opinions of the government, fined him, under the act against harbouring. Mr. Wentworth moved for a criminal information against Messrs. Berry, Wollstoncraft, and others, for contempt: a rule was granted, but afterwards dismissed; the judges expressing the strongest indignation that the magistrates had dared to set aside the solemn decision of the court on a point of law, and in reference to the most important rights of the colonists; and to mark their displeasure, they saddled them with all the costs. Mr. Hayes, of the Australian, was involved in a similar contest; but to break the bond, the governor granted a ticket-of-leave—thus releasing the prisoner from his assignment. The printer, notwithstanding, brought his action against the superintendent for abduction, and gained damages; the judges holding, that the sudden deprivation of the master, by an arbitrary and unusual indulgence—granted only to deprive him of his rights as assignee—was not contemplated in the law, which modified those rights by the prerogative of mercy.
The following are the chief provisions of the Parliamentary Acts on the subject of assignment:—
The 4th Geo. i. (1717) conveyed an absolute property to the shipper, who again assigned to the master.
An opinion was obtained from the law officers of the crown (about 1818), that the state of convict servitude was created by the 4th Geo. i. and subsequent statutes, under which a property in the servant was reserved to the master, whether captain or colonist: the power to punish was assumed as a necessary consequence.[165]