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 £50, and in the latter it might extend to £3000, 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 £3000, 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.
Such are the leading defects in the actual system of jurisprudence established in this colony; and I think it will not be disputed that a more crude and undigested organization of the colonial courts could hardly have been devised. Whether the judges of these courts have made any representations on the subject to his Majesty's government I am not aware; but I should apprehend not, or surely they would have been remodelled ere this after a more perfect design. To effect this highly important object would be a matter of very great ease: it appears to me that the following measures would amply suffice. 1st, The entire abolition of the actual courts of civil and criminal jurisdiction; 2dly, The creation in their stead of one supreme court, consisting of a chief justice and three puisne judges; 3dly. The establishment of trial by jury; and lastly, the creation of a high court of appeals to consist of the governor in council. The sittings of the supreme court should only be held at Sydney, the seat of government; but circuits should be established through-out the different districts of the colony, and of its dependent settlements in Van Diemen's Land, and commissions of assize, of oyer and terminer, and of general gaol delivery should be issued by the governor to the judges at stated periods, and they should determine among themselves their respective circuits. These courts of assize should possess the same power as belongs to similar courts in this country, and in some respects it might be advisable that they should be vested with a still more extensive authority. In the settlements in Van Diemen's Land I am of opinion that no appeal should be allowed from the decisions of the court of assize to the supreme court at Sydney, unless the verdict should exceed three hundred pounds; but it would of course be proper that the judges of this court should possess the power of granting new trials, on the same grounds on which such are accorded in this country. In judgments, however, for more than the above sum an appeal to the supreme court should be admitted.
With respect to the civil jurisdiction of the courts of assize in the various districts belonging to Port Jackson, I think it ought to be considerably curtailed, and that their decision should not be final in any instance whatever; because the removal of causes to the supreme court would be attended with a comparatively trifling expense and inconvenience to the parties. From the judgment of this latter court itself, I am of opinion that an appeal should lie in all causes where the damages might be estimated at more than one thousand pounds to the high court of appeals, and that its decisions should be conclusive in all pleas under the amount of three thousand pounds; but where the matter in dispute exceeded this sum, that an appeal should lie en dernier resort to the king in council. If to these courts were added a court of admiralty, possessing both a civil and criminal jurisdiction, the system of jurisprudence would be quite adequate to all the present necessities of the colony; justice would be brought home to the doors of all his Majesty's subjects in these remote and extended settlements; the delay and expence now attendant on civil and criminal prosecutions, would be in a great measure obviated; and the loyal and industrious would be effectually protected, both from the secret depredations of the midnight plunderer, and from the open dishonesty of the unprincipled debtor: hundreds of indolent and profligate persons who now prey in one way or the other on the hard earned savings of thrift and frugality, would be compelled to resort to the pursuits of industry for a subsistence; vice and immorality would be checked, and the wealth, happiness, and virtue of the community at large rapidly flourish and expand.
Of all the changes or modifications which I have thus ventured to recommend in the polity of this colony, the creation of a council, the appointment of a colonial secretary, and these alterations in the system of its jurisprudence, are the only measures which would be attended with an increase of expence. The establishment of a house of assembly, might of course be effected without any cost whatever, and even the remodelling of the courts of justice would be productive of but a very trifling addition to the scale of the civil establishment. The three judges who at present preside in the various courts, might be transferred to the supreme court, which I have recommended to be substituted in their stead; so that the appointment of one new judge is the principal additional expense of which this reorganization of the courts would be productive. It is true that it would be necessary to place all the puisne judges on the same footing in point of salary, and likewise to appoint an attorney general to act in behalf of the crown, but all this might be liberally accomplished for about six thousand pounds per annum. As to the court of admiralty, the chief justice might be appointed to preside in it, whenever circumstances might require it to be held; but this necessity would occur so seldom that no additional salary need be allowed him on this account. A few barristers would be necessary besides the attorney general, to support the respectability of these courts; but I consider that the practice arising out of them, would be sufficiently extensive to repay a few gentlemen of the bar very liberally for the sacrifices they would make in emigrating to this colony, and that the government need not hold out any pecuniary inducements to effect this object; although it is only four or five years since two attornies were each allowed £300 per annum by way of encouragement for them to go out and practise in the courts at present established there. Since that time, however, two more have voluntarily gone out to the colony without any salary whatever, and have found that there is sufficient litigation without the assisting liberality of the government. An addition therefore of £6000 per annum to the civil establishment of this colony, would effect the great radical reformation in its polity, of which it has been the main object of this essay to prove the wisdom and necessity; while on the other hand, the savings which this country would derive from the adoption of the various alterations proposed, would be found not only in the almost immediate check which would be imposed on the rapidly increasing expenditure of this colony, but also in the great permanent reduction in it, which would be the eventual consequence. The best means of accomplishing these highly important ends shall be the subject of the following section.
On the Means of reducing the Expences of this Colony.
The establishment of a free constitution in the place of the arbitrary authority of an individual, would superinduce so many privileges of which the colonists have hitherto been debarred, that they would not at first be fully sensible of the nature and extent of their new acquisitions. The great facilities which would be presented to agricultural and commercial enterprize, would not at once be generally perceived, or extensively embraced. Industry, though one of the most active principles of human nature, settles when long restrained into a habit of inertion, which cannot be instantly overcome. When the mounds within which this principle has been long confined, are suddenly removed, it will not of itself rush at once into every new channel in its way, and stop only when it has found its own level. It is not like fluids possessed of an inherent elasticity and tendency to motion, but requires a directing impulse to set and continue it in activity, and its activity will then only be in proportion to the power and energy applied. It is not, therefore, to be expected, because the great fundamental changes which I have recommended in the polity of this colony would if adopted, immediately create new sources of profitable occupation, and completely unfetter the long restrained industry and enterprize of its inhabitants, that they are at once to take full advantage of their situation. There is a timidity in man, which though not sufficient to curb the adventurous spirit of his nature, tends materially to check and repress it. This principle alone, therefore, would suffice to prevent the sober and discreet part of the colonists from rushing headlong into the various new avenues of profitable occupation that would be open to them; but there is also in their poverty a still more effectual impediment. Though labour is itself the origin and measure of all wealth, it contributes but little to public or private advantage when left to its own isolated and unconnected efforts. It is only when in a state of union, and when subjected to the controul of a directing intelligence, which can combine its energies, and render them subservient to the attainment of some single end, that it becomes capable of effecting great beneficial results. But this necessary combination of labour can only be maintained by the help of capital; and where such capital does not exist, these great united efforts, the effect of the gradual accumulation of wealth, and the main cause of the prosperity of all ancient and populous communities, cannot be immediately organized and established. This observation in its reference to this colony, it will be seen, bears more particularly on the commercial privileges of which its inhabitants would thus become possessed. These undoubtedly would not be extensively embraced, until a very considerable accumulation of capital should have arisen from the progress and perfection of agriculture. This and manufactures are therefore the only two immediate channels that remain for the absorption of labour and the development of industry. The latter, I have long since endeavoured to prove would never have occupied any share of the attention of the colonists, had those encouragements which the government had at their disposal, been bestowed on the former. The manufacturing system, now so rapidly gaining ground, has been one of the retributive consequences of the short-sighted and illiberal policy of which this unfortunate colony has been so long the victim, and will cease of itself, whenever the existing impediments to the extension of agriculture shall be removed, for the best of all reasons, because no person will select a less profitable undertaking when a more profitable one, and one requiring less skill, capital, and assiduity, lies open to him. Agriculture, therefore, as soon as it shall be freed from its present restraints, will afford the readiest and most accessible channel for carrying off the large accumulation of stagnant labour which at present infests this colony. It is this mass of superfluous labourers, for whom there exists only a fictitious demand, and with whom the government are at present obliged to give a bounty in the shape of clothing and provisions, to induce the settlers to accept their services, that constitutes the main source of the great and increasing expenditure of this colony; and it is to this point alone that all radical and comprehensive schemes of retrenchment must be directed. The impoverished condition of the colonists, to which circumstance alone the expences of the government are mainly attributable, arises from the means of employment not keeping pace with the rapid increase in the population, and yet perhaps there is no community in which equal encouragements to industry are to be found. It has already been stated that within the last six years the population of this colony has actually doubled itself, in other words, it has advanced in this respect with a celerity nearly four times as great as the United States of America,--a country whose rapid numerical increase has been a subject of astonishment to the whole world. It may therefore be perceived that this unparalleled augmentation in the population of this colony, must of itself afford an unprecedented stimulus to agriculture;--a stimulus, perhaps, with which the agricultural progress of any other country could not keep pace. It is well known that Poland, which is the greatest corn country in Europe, and whose whole strength is directed to the pursuits of agriculture, does not export more than one month's consumption of grain for its population. America exports somewhat less, but would be able, without doubt, to export somewhat more, if the collected force of its inhabitants were applied to the raising of corn; yet still neither the one nor the other of these countries would be enabled to support such a rapid increase of population as is taking place in this colony. Such, however, is its fertility that the vast encouragement afforded by this unprecedented augmentation in its numbers (who, it must be recollected, are for the most part adults, and not, as in the case of old established societies, infants, and in consequence not gifted with the full powers of consumption,) so prodigious, I say, is its fertility, that there is far from a sufficient demand for labour. The settlements in Van Diemen's Land alone, on the occasion of the flood which took place in the month of March, 1817, at the Hawkesbury river, the principal agricultural establishment, and where, for the causes I have already explained, the colonists, in most instances, allow their stacks to remain within the influence of these destructive inundations, were able to supply Port Jackson with about twenty thousand bushels of wheat, the whole of which was raised without any probability of a market, and would have perished in the hands of the growers, or at best, have become the food of hogs, had it not been for the great loss of grain occasioned by the overflowing of the above river. It may, therefore, be perceived, that the colonists in Van Diemen's Land raise on the strength of the bare possibility of a flood happening at the principal settlement, very nearly as much corn as is required for their own consumption; and there can be no doubt if their industry was stretched to the utmost point of extension, that they would be enabled to export at least three times as much as they thus casually furnished in the year 1817. The settlements, however, at Port Jackson, cannot pretend to equal fertility of soil, yet even their productive powers are considerably cramped by the want of an adequate market. How this most important object might be effected, and profitable occupation created for all the labour that is now, or may be hereafter disposable in the colony, I have already explained at considerable length; and it is under the presumption that my recommendations on this head will be deemed worthy of adoption, that I shall hereafter submit a plan for gradually diminishing the colonial expenditure.
The readiest way of accomplishing this object would be to abolish at once the system of victualling and clothing the convicts from the king's stores; but this is impracticable and must be done judiciously, and in proportion only to the gradually increasing demand for labour. This mode of retrenchment, indeed, has already been pushed further than circumstances have warranted. The ticket of leave system, by which convicts are permitted to go on their own hands, and administer in any way that they can to their own wants, though first intended as a reward to the really reformed and meritorious convict, has of late years been resorted to as the most efficacious means of lessening the expences of the government. And hence the very end and aim of this colony, the reformation of the lawless gang who are transported to its shores, have been postponed to a paltry saving, unworthy the character of the nation, and subversive in a great measure of the philanthropic intentions with which the legislature were originally actuated. The alarming increase of crime that has taken place within the last few years, is the re-action of this pernicious and mercenary system, which has already been carried to such an extent as to endanger the lives and property of every honest and well disposed inhabitant of the colony. This system, so injurious of itself, has been powerfully seconded by the lax and indiscriminate manner in which convict servants have been assigned to the various settlers. Being in most instances freed or emancipated convicts themselves, many of them possess but little character, and in fact only accept the different indulgences that are held out to colonization, with a view to the immediate profit which they can derive from them, and without any intention of performing the remote conditions which they tacitly or expressly enter into with the government. So long as their servants are victualled and clothed at the cost of the crown, they in general avail themselves fully of their services, but the moment this great indulgence ceases, they generally compound with them, and in consideration of the performance of a stipulated quantity of labour free of expence, grant them an exemption from their employment for the remainder of the year, and consequently, a licence to prowl about the country, and plunder at every convenient opportunity, the honest and deserving part of the community. And although the present governor has taken every step that could be devised for the suppression of this pernicious practice, yet in consequence of the thinly inhabited state of the colony, and the remoteness of the various agricultural settlements from one another, circumstances which prevent the appointment of proper persons to detect and punish such violations of public orders, his efforts have been in a great degree unavailing. He is well aware of the nature of the disease under which the colony is languishing, but he has not the power to administer the only effectual remedy. Create but a sufficient market for the colonial produce, and labour will then become too valuable to be suffered thus to remain in inactivity. It will then and not before be the interest of the settlers to push their servants' exertions to the utmost. The competition that will then exist for the products of labour, will be the best guarantee for its proper application. The method which I am about to submit for the suppression of this alarming state of anarchy and danger, will, it must be confessed, occasion a very considerable immediate addition of expence; but this is necessary to rectify the great and increasing evils of the ticket of leave system, and to insure the honest and laborious colonist that security of person and property which the injudicious extension, within these few years, of this narrow-minded system has so greatly endangered. Without the enjoyment of a full and sufficient protection, the colonists, however enlightened may be the future conduct of their government in other respects, will make but a timid and feeble advance in the various departments of internal industry. A certainty of reaping the fruits of their exertions, is indeed an indispensable preliminary to the resumption of those active habits which have been so long paralyzed, and a recurrence to which is the main stock whereon all shoots of future retrenchment must be engrafted. Under a hope, therefore, that an internal legislature, which I again insist can alone fully provide for the present and future necessities of this colony will be established, I venture to propose the following plan for eventually diminishing the scale of its expenditure: