A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 9

by Marion Phillips

CHAPTER IX.

THE STIRRING OF POLITICAL ASPIRATIONS.

Authorities.—Despatches, etc. (especially Appendix to Bigge's Reports) in Record and Colonial Offices. Sydney Gazette (especially 1819, 1820). P.P., 1819, VII.; 1822, XX.; 1823, X.

After Bent had left for England, and Field, who arrived early in 1817, had opened his court, the Colony settled down to a time of comparative tranquillity. A change had come over the settlement since 1810, which grew more and more marked as each year passed. The day of the adventurers had gone—men no longer grew suddenly rich by trade monopolies and by traffic in spirits. 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.^[1] This was not only because sudden fortunes could no more be made. 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. The young Australian was constantly referred to as though he could already be differentiated from the Anglo-Saxon. The youths were described as tall, loose-limbed and fair, with small features, and though strong, not so athletic looking as Englishmen. They made clever and daring sailors,^[2] were already proud of their horsemanship^[3] and were willing and quick to learn any trade. It was of course impossible that in one generation a new type could have been evolved, and the fact was that the children of the convicts, born into better conditions and growing up in a healthier environment, reverted to the type of which their parents were debased examples. It must also be remembered that many men were at that time transported for very slight offences, and that political prisoners from Ireland at the time of the Rebellion and from England and Scotland in the years of reaction after 1795, gave to Australia a fine and sturdy stock.^[4]

The convict parents were in general anxious that their children should grow up decent and honest, and desired them to have the advantages of schooling and the ministrations of the Church.^[5] In cases where the parents were dissolute and disreputable, their example was said to act rather as a deterrent than a temptation.^[6] Under Macquarie there was an increase in the number of schoolmasters, and two of the chaplains sent out had some training in the National Schools in London. Though there were neither schoolmasters nor schoolhouses in sufficient numbers to cope with the population, there were Government schools of some sort in each district, and in Sydney there were also several private "seminaries".

The gentlemen and the wealthy emancipists sent their sons to learn Latin at Halloran's School, by far the most popular in the Colony, while the poorer folk usually sent their boys to the free Government schools, where they learned little more than the three "R's". Education a little bridged the social chasm between the wealthy emancipists and the colonial gentlemen, for in Halloran's schoolroom the sons of both sat on the same bench, learned the same lessons, and whimpered under the same ferule.

As the colonists began to feel that New South Wales was their home the sociability of the settlement increased. The ceremonies of the Old World—dinners, evening parties, race-meetings, became frequent, and were varied by the more distinctive entertainments of water-parties and kangaroo-hunting. The officers of the garrison were the centre of all social gatherings, and for this reason their attitude towards the emancipists was a matter of considerable importance to the settlement. During Macquarie's time three regiments were stationed in New South Wales, the 73rd from 1810 to 1814, the 46th from 1813 to 1817, and the 48th from 1817 until after his departure.

The New South Wales Corps, which was relieved by the 73rd Regiment in 1810, after a service of thirty years, had kept with some strictness to a policy of exclusion. General Grose, who had originally raised the corps, and who for some years commanded it, thought that no officer should stay in the company of a man who had been a prisoner, and that any officer who did do so ran the risk of losing his commission.^[7] The 73rd had not considered the subject when they came out, and as Macquarie was their Colonel they were much under his influence. The officers consequently associated with and entertained the emancipists whom they met at the Governor's table, though they distinguished these from the remaining freed-men. Indeed one of their officers was tried by Court-Martial and dismissed from his regiment because he played cards with a man who had been a convict.

"I know," said Riley, "that he pleaded the precedent of persons in that situation having dined at the Governor's house; but with respect to this particular individual, unquestionably he never did so. He pleaded … that he had no intention of sitting at table with a person who had been a convict, as he had uniformly dissented from such a measure. The person alluded to accidentally came in and took a seat at the card-table, and the officer had not presence of mind enough to retire immediately. …^[8]"

He was afterwards reinstated in the Army, though not in the same regiment.

The reports of the intercourse between the 73rd and the emancipists had not a good effect upon their reputation. The 46th Regiment, having heard what was said of this intercourse in the talk of the mess-rooms, and seen some scurrilous paragraphs in the Press,^[9] determined not to lay themselves open to the same reproach.

On their arrival in Sydney, Macquarie welcomed them warmly, for Lieutenant-Colonel Molle, their commanding officer and the new Lieutenant-Governor, was an old companion-in-arms, and on his account alone the Governor was eager to show them hospitality. The officers were frequently invited to Government House, and Macquarie noticed that though they met several emancipists at his table, none were invited to theirs. Believing that Molle held the same views as he did himself on the treatment of this class of persons, Macquarie became curious to know the reason for their exclusion from the mess. He discovered "that the Officers of the 46th Regiment, on the particular recommendation of their commanding officer, Colonel Molle, had previous to their arrival in the Colony bound themselves never to admit into their society or hold any intercourse with any of those persons who had arrived here under sentence of transportation. They also entered into another resolution at the same time never to engage in any Trading, Farming or Grazing concerns in the Colony, the observance of which, although by no means exceeding what should be expected from their profession, would at least have reflected credit on them as military men. Their adherence to this rule," said Macquarie, "has been by no means so rigid as that in regard to the other."^[10]

Though Macquarie freely admitted their right to act as they pleased in drawing up rules for their mess, he felt "that a courtesy was due to me as their General and Governor of this territory, in regard to making my table the rule or standard for the admission of persons into society, and I could not but feel chagrined that a courtesy so usual and so becoming should have been withheld by a corps of officers to whom I had shown a particular inclination to pay every personal respect and attention within my power. The officers of the 46th Regiment in adopting a Rule of Exclusion, previous to their having acquired any local knowledge of the country, could not impress me with a very high opinion either of their good sense or their liberality: but I was peculiarly hurt at the consideration that Colonel Molle, in whose friendship and candour I had so fully reposed, and who constantly expressed himself in terms of admiration of the principles I was acting upon, should have privately lent himself to a measure which he was either ashamed to avow, or had not candour enough to make me acquainted with."^[11]

Outwardly all remained on friendly terms until Captain Sanderson of the 46th joined the regiment from England in 1815. This officer came before the magistrates for some petty misdemeanour and treated their authority with contempt. For this he was "reproved and admonished privately" by Macquarie, whose admonitions had the result of turning Sanderson into the leader of what Macquarie called a faction against him. The truth was that amongst a certain set of officers it became the correct thing to make fun of the Governor and his friends and all that they did. Even Molle, who was on intimate terms with those colonists who were least friendly towards Macquarie with Bent, Harris, Jamison and others, sometimes had to lecture his officers on the "bold license they gave to their tongues".^[12] Finally a young ensign, spending a dull day on duty at the Guard House, chalked up a caricature of the Governor on one side of the wall. Older officers came in to look at it, and though they should have been wiser, encouraged the lad by their laughter, and even wrote "scurrilous labels" around it. The matter was reported to Molle, who was of course officially severe, and held an inquiry at which the young officer confessed that the drawing was his. Macquarie was furiously angry and proposed to Court-Martial the boy, who only escaped by making a contrite apology and begging that he might be allowed to return home to his family and friends and not have to stay longer in this remote country where he was so miserable and so lonely. The boy's pitiful letters were full of terror and dismay, and the Governor allowed him to go back to England.

As Molle made no inquiry into the conduct of the officers who had allowed the caricature to remain upon the Guard House wall, and had added to its humour by their comments, the relations between Macquarie and the regiment became strained and the officers began to decline invitations to Government House. Just at this moment two lampoons appeared one after another and were distributed about Sydney. These "pipes," as they were called in the Colony, contained a very bitter and libellous attack on Molle, who being a very excitable and enthusiastically sentimental man, was much perturbed. He was exceedingly anxious to discover the author and ready to suspect every one about him. Even his officers, for whom he had a sincere affection, came in for some of his suspicion, which was finally laid to rest by Wentworth, who told Molle that he had accidentally discovered that the first "pipe" had been written by his son William who had just left Sydney to finish his education in England.^[13] Molle was for the time completely satisfied with this knowledge, and a reconciliation took place between his officers and himself. The officers presented him with an address, to which he replied in writing, and Macquarie was asked to publish the documents in the Gazette. This he refused to do, and they were circulated in manuscript. The officers' address, a sincere and unconsciously comic document, after referring to the "scurrilous anonymous productions" continued in these words:—

"These we see issuing from the pens of men so much our inferiors in rank and situation that we know them not but among that promising class which (with pride we seek it) have been ever excluded from intercourse with us.^[14] And here, Sir, allow us still more to approve and applaud that system of exclusion which even prior to our arrival in a colony of this description was wisely adopted—the benefits of which we have reaped with advantage to ourselves as officers and gentlemen, and which although it may have prompted the malignity of those whom we have kept aloof, has established the name of the 46th Regiment on a most respectable basis. And, Sir, we presume that so salutary a rule will obtain the most perfect approbation of His Royal Highness the Commander-in-Chief and be as tenaciously adhered to by every regiment that may in succession compose this garrison.

"Henceforth we are confident no hostile inventions can disturb that union which it will be our zealous purpose to cultivate and support, and the prospect of shortly quitting this (a quarter in no point of view congenial to military feelings) will we hope afford us ample opportunities to evince that our hearts steadily accompany you no less in the active duties of our profession than they will keep pace with you in the social walks of life and in every wish for your domestic felicity and prosperity."^[15]

One sentence had been deleted before the address was circulated, though not before Macquarie had seen it. This was an assertion "that the mess-table of the 46th Regiment was regarded as the standard of society in the Colony".

The Governor was very indignant with the whole tone of the document, and sent to Molle the heads of charges which he proposed to lay against the officers of the regiment collectively at a general Court-Martial. He offered the officers the alternative of trial or the withdrawal of the address, and they accepted the former. But as in New South Wales the members of the court would have been themselves members of the regiment, Macquarie gave up the scheme and contented himself with laying the whole matter of their insubordinate behaviour towards him "at the foot of the throne" by writing to the Commander-in-Chief. Molle, meanwhile, attempted to bring Wentworth to a Court-Martial on the ground that he had aided and abetted the publication of the libellous "pipe," but Wylde decided that Wentworth's military commission as surgeon did not make him amenable to a Court-Martial for such an offence.

Luckily the regiment was then, in 1817, on the point of departure, and they left at the end of the year amid the general regrets of the inhabitants, except indeed of Macquarie and the emancipists.^[16]

The behaviour of the 48th was rather different. Lieutenant-Colonel Erskine, the Lieutenant-Governor; Major Morriset, afterwards Commandant at Newcastle; and Major Druitt, the Chief Engineer, were all on friendly terms with emancipists. They even took Redfern to call on other officers, though not one received them.^[17] When Redfern appeared at mess as Erskine's guest, the junior officers immediately rose from the table, and Erskine in consequence of this occurrence promulgated a mess-rule "that no officer should quit the table until the first thirds were drunk".^[18]

In spite of the ill-feeling between Macquarie and the majority of the officers, he and Erskine continued on such excellent terms that the situation with the 48th never became so strained as that with the 46th.^[19] But the discussions aroused by these attempts made at the desire and with the support of the Governor to force the emancipists upon the company of the officers, made their social exclusion more rigid than ever. The feeling of antagonism, though manifested only by exclusion from social gatherings, was a factor to be reckoned with in all the affairs of the Colony, and was especially to be regretted at this moment when the colonists as a whole were looking forward to the end of military Government and to some diffusion of political power.

The desire to bear a part in the management of the affairs of the Colony grew stronger year by year, and from 1816 Macquarie himself gave recognition to the feeling by frequently calling together the magistrates or a selected number of settlers to discuss measures that he had in contemplation.^[20] At these meetings Wylde, who would have made an excellent borough councillor, played an active part, and he took a great interest in the many associations formed for various purposes during these years.

A small society had been established in Sydney so early as 1813, for "Promoting Christian Knowledge and Benevolence," and the first of these objects formed the purpose of "The Auxiliary Bible Society of New South Wales," a larger organisation founded in 1817 to co-operate with the British and Foreign Bible Society. This and the Benevolent Society were the only organisations of any size which had the distinction of combining all classes of the population, emancipist and free, in their management.

The Benevolent Society was founded to succour the poor in 1818. The poor were for the most part the old and infirm, many of them men who had been sent to the Colony as prisoners when they were already aged, and were no longer able to work for themselves. There were also many of the middle-class prisoners who had been given tickets-of-leave because they were unsuited to manual labour and were unable to find other work. Riley spoke of the "hard position of certain classes of prisoners—old or young people of the middle class—who from the multiplication of persons of this type can find no means of making a living".^[21]

In Sydney the Society for Promoting Christian Knowledge and Benevolence had given relief from funds raised by private subscriptions, and the Government did not allow any one to perish by actual starvation. But in 1817 Macquarie thought that some scheme should be organised for relieving the poor, and called a meeting of magistrates^[22] and other principal inhabitants, at which Wylde, who had, however, not been consulted as to the objects of the meeting, presided.^[23]

He proposed that a duty on tea and tobacco and an increased duty on spirits should be levied, and the proceeds devoted to the relief of the poor, thus leaving the fund to be raised and administered by the Government, and treating it as a national (if the word can be used for the Colony) service belonging not to each locality but to the Central Government.^[24]

Macquarie had expected the meeting to make arrangements for raising a private fund, and though he laid the extra duty on spirits and the new duty on tobacco, he did not utilise the proceeds as the meeting had suggested. His idea was that the people of each district should "support their own free, poor and decayed settlers".^[25]

The meeting on the other hand thought that "all expenses in regard to ticket-of-leave men and emancipated convicts should be borne by the Crown, especially in those cases where persons very far advanced in age were sent out under sentence of transportation, and also in the cases of prisoners who had been many years retained as mechanics by the Government".^[26]

Something of a compromise was finally reached by the establishment of the Benevolent Society first mooted in April, and founded at a public meeting on the 6th June, 1818. The chief rules were that persons applying for relief must be recommended by a subscriber, and that relief was so far as possible to be given in kind and not in money. The objects of relief were the "poor, distressed, old and infirm," and no distinction of bond and free was drawn. The funds were purely voluntary, and the management vested in a General Committee, an "Acting" Committee of seven, both of which met in Sydney, and five District Committees. The subscriptions in 1820 amounted to £434, and many poor settlers were amongst the subscribers. To have laid any compulsory obligation on any district to support its own poor would have been unjust as well as inexpedient, for there was no Law of Settlement, and population moved very freely from one place to another. The system of voluntary subscriptions to a central fund, assisted by local subscriptions which were also voluntary, worked fairly well, and between 1818 and 1820 the Society relieved 201 cases. The Government built a house for the reception of aged people just outside the town of Sydney, and handed it over to the management of the General Committee, and also gave to the Society a piece of land at Richmond, in the Hawkesbury District. Rations from the Government stores were also issued to seventy-seven persons recommended by the magistrates.^[27]

An attempt at this time to form an Agricultural Society came to an untimely end. Wylde hoped by means of balloting for the election of members to prevent the necessity of excluding or including ex-convicts by any rule. With a ballot he thought some would have been elected and others, who were personally undesirable, would not. But the Governor refused to be the patron of the Society unless the emancipists were freely admitted; and, lacking his support, the scheme was dropped.

Wylde was probably right in thinking that with the ballot the exclusion would only have been partial, for even Bell, one of the strongest opponents of convict magistrates and of Macquarie's emancipist policy generally, said he "would not confound a man sent out for a political crime with a common felon or man guilty of an immoral offence."^[28]

Men like Lord would have been excluded, but men like Fulton received.

During 1818 the hostility between Marsden and Macquarie culminated in the dismissal of the former from the magistracy; and the events leading up to his dismissal bore not only a personal but a political aspect of considerable interest. The bad feeling of the Governor towards the chaplain (for Macquarie seems from the beginning to have been the offender) had been much increased by Macquarie's mistake in attributing to Marsden Bayly's letter describing the treatment of the female convicts.^[29] It was further strengthened by the fact that Marsden, acting as a magistrate, had taken the affidavits of the public flogger and gaoler in regard to the flogging of Blake and Henshall in 1815.^[30] The Governor's sense of propriety was so far overcome by his bitterness that he allowed his secretary, who was a magistrate of the territory, to examine the gaoler on oath and try, without success, to obtain an admission that Marsden had solicited him to come forward and make his declaration.^[31] Marsden was also summoned to Government House, and in an official interview, in the presence of one of the chaplains and of Macquarie's personal staff, accused of seditious and turbulent conduct. At the same time the Governor strongly opposed Marsden's desire to retire from the magistracy.

A trivial incident was sufficient in such a state of affairs to bring about a crisis. In 1815, while Marsden had been in New Zealand on missionary business, Macquarie had established a Native Institution for teaching the children of the blacks. The school was at Parramatta, but nevertheless Macquarie did not include Marsden in the Committee of Management. To Marsden, the Principal Chaplain and Resident Magistrate at Parramatta, this presented itself as a deliberate slight, and he studiously avoided taking the least interest in its progress. Thus in 1816, when the Governor paid his annual official visit to the school, Marsden did not wait upon him. J. T. Campbell, the Governor's Secretary, who loyally detested his chiefs opponents, irritated by what he considered a discourtesy, inserted in the Gazette, over the signature of Philo Free, a violent attack upon the moral and commercial honesty of Marsden as agent of the Church Missionary Society.^[32]

Marsden immediately wrote to Wylde calling upon him as Judge-Advocate to institute criminal proceedings for libel against the printer. Wylde attempted to bring about a peaceful solution of the difficulty and wrote to Macquarie pointing out the impropriety of the publication and suggesting that a public apology should be made. Macquarie, who was quite ignorant of Campbell's part in the letter and was sensible of the wrong done to Marsden, published a Government General Order expressing regret that in the hurry of getting the paper to press the objectionable nature of the contribution had been overlooked.^[33] As Marsden had in the interval gathered evidence which showed him quite clearly that Campbell had not only passed but written the letter, it was not to be wondered at that the apology in no wise appeased him. He desired the Judge-Advocate to proceed this time not against the printer but against the Secretary. The Judge-Advocate demurred, and a long correspondence ensued in which Marsden claimed that Wylde must file depositions relating to the prosecution ex officio, and Wylde claimed that he had a discretionary power.^[34] The best of the argument seemed to lie with Marsden, for he had the support of the late Ellis Bent's authority, while Wylde could only reply in the confused unintelligible language at his command.^[35] In the end Wylde gave way, and the case came on for trial in October. Following the Judge-Advocate's charge, as his summing up may fairly be called, the officers who constituted the court gave a peculiar verdict simply declaring Campbell to be guilty of writing the letter, and the letter to be a libel. But Marsden did not press for judgment, declaring his intention, through his solicitor, of proceeding no further in that court.

The worst feature of the affair was the report of the trial inserted in the Gazette on 1st November, 1817, which so described it as to be little short of a fresh libel upon Marsden, and implied that Campbell had been not only guiltless in fact but even in the opinion of the court.^[36]

It was so bad that even Wylde, who according to evidence given to Bigge had displayed some clear bias towards Campbell during the trial,^[37] went so far as to call upon Garling, Campbell's solicitor, for an explanation of this improper report. "Upon his suggestion that he had no knowledge of it I required him to address a letter to the printer, which he afterwards showed me, correcting the general account as well as the principles that were stated to have regulated the decision of the court. It does not appear that any such letter was inserted in the Gazette. Mr. Garling informed me that the letter had been returned from the printer, he stating that he had instructions not to insert it."^[38]

Wylde could do nothing more. He thought it inadvisable to proceed against the printer as the account was in a "leader" not a report, and he found the Governor quite unapproachable. The subject aroused in him, according to Wylde's diplomatic phrase, "such disagreeable sensations".^[39]

Marsden, dissatisfied with the criminal trial, took proceedings against Campbell in the Supreme Court, and was there awarded £200 damages. Altogether Campbell lost much of his reputation and £500 as the result of his fit of temper.^[40] No report was made by Macquarie of these transactions, but hearing of the matter indirectly, Lord Bathurst sent through the Governor a severe reprimand to Campbell^[41] and afterwards instructed Macquarie to transmit a full report of the trial.^[42] He was, however, ready to let the matter rest, and did not express sympathy with Marsden's desire for Campbell's dismissal.^[43]

Marsden for a time very unwillingly continued to act as magistrate at Parramatta. In March, 1818, the Judge-Advocate being in the town, visited the gaol, and on his return to Sydney suggested that the Governor should release some of the prisoners in order to lessen the pressure on the gaol accommodation. This was done without further communication with Marsden, who had been the committing magistrate. Already bitterly hurt by Wylde's behaviour in the libel action, and always very ready to accept any action as a criticism on his magisterial sternness (for his severity was probably often brought into invidious comparison with Macquarie's clemency), Marsden at once wrote to Macquarie resigning his office. This was on the 18th March, 1818, and the only answer Marsden received was a copy of a General Order which stated curtly, "that his Excellency the Governor had been pleased to dispense with the services of the Rev. Samuel Marsden as justice of the peace and magistrate at Parramatta and the surrounding districts".^[44]

Although from this time Marsden might with good reason have displayed a greater hostility towards the Governor, there appears no evidence to connect him with any hostile demonstration. Under the circumstances the clergyman, who was a hot-tempered, full-blooded man, behaved with remarkable self-control, and showed himself more sinned against than sinning. The chief interest of the whole affair lay, however, in the fact that this was the first trial for libel in the Colony, and that in the criminal trial and in the civil trial which followed it the defendant was not merely a Government official, but one in very close and intimate connection with the representative of the Crown, and one who styled himself the Censor of the Press. More important still was the fact that judgment was given against this official, and that the Censor of the Press learnt how narrowly the law limited his functions. In short, the action in the Supreme Court marked a very definite stage in the growth of civil liberty, and proved not only how far the Colony had outgrown the simple governmental needs of earlier times—but also what an anomalous confusion of military autocracy and civil liberty had been created. By Macquarie the decision of Mr. Justice Field in the Supreme Court was doubtless taken to express the latter's hostility to his government.

The beginning of 1819 was a very busy time in the Colony. An influential body of settlers, with Sir John Jamison at their head, had decided that the time was ripe to petition the Prince Regent to grant a more liberal form of Government, an improved judiciary, and a freer trade. Early in the year, with Macquarie's full permission, a public meeting was held with Jamison in the chair, and a committee appointed with Eager as secretary to draw up the petition. At a second meeting their draft was adopted and copies sent to the magistrates and members of the committee that they might collect signatures.^[45]

The petition "though perhaps," wrote Macquarie, "in no very courtly language,"^[46] asked for trial by jury, the replacement of military officers of Government by civil officers, the reduction of duties on New South Wales products imported into England, permission for ships of less than 250 tons to trade with the Colony, and permission to distil from their own grain.

It was signed by 1,260 persons "including (with the exception of a very few persons, most of whom, holding official situations, did not consider themselves warranted) all the men of Wealth, Rank, or Intelligence throughout the Colony".^[47] The promoters had difficulties of many kinds to contend with; in February and again in March the flood waters were up at Parramatta and the Hawkesbury. Cox wrote to Jamison from his house at Windsor on the 13th February at the early hour of 6 a.m.

"My dear Sir John,

"I feel with many others much disappointment in being deprived the pleasure of attending the Committee and meeting to-morrow, but the waters are too much out to attempt it. … The joint letter and return I enclose you signed by the magistrates of these districts, and I would much wish the question as to who should act as jurymen should not be agitated at this meeting. I have no doubt the Legislature will form their own opinion on that subject and lay down the law for us—but should they not, it will be time to canvas it here. If done now it will create division which in my humble opinion is better avoided if possible."^[48]

Cox's advice was taken, and nothing in the petition suggested that there was any ill-feeling in the Colony between emancipists and free men.

Marsden, who was collecting signatures at Parramatta, also had trouble from the floods. He wrote to Eager: "I am sorry that the weather was so bad some persons could not be visited. I sent a man on horseback to Mr. Bayly's, but he came back not being able to cross the creeks. I had left a place for his signature … and I have sent it to him at Sydney."^[49]

Jenkins in Sydney had troubles of a different nature.

"I return you the skin of signatures," he wrote to Eager "with the addition of only one name (Mr. Secretary Campbell's). I have been and solicited the following persons:—

Mr.Wentworth.
„Broughton.
„Garling.
„Harris (I believe Harris is out of town)
„Oxley.
„Johnston.^[50]

but without effect. Some declare their signing would be improper while holding the King's Commission. Mr. Johnston thinks his name might injure our petition. Mr. O. dislikes the Trial by Jury. Mr. Garling will consider about the propriety of signing. Mr. Campbell signed very cheerfully and freely."^[51]

Campbell's readiness to sign was a good indication of the Governor's hearty approval of the petition. Indeed Macquarie had himself recommended to the Colonial Office the greater part of the measures which it argued. The most difficult and important of these was trial by jury.

Field dealt thus with its legal aspects. "Except in certain classes of misdemeanours, which do not induce legal incompetencies, and except in case of pardon under the Great Seal, which removes them, men convicted of felony or misdemeanour, after the expiration of their terms of transportation or (after being) pardoned by the Governor, are liable to challenge as jurors. The pardon of the King under Sign-Manual is sufficient in the case of transportation."^[52]

There was, of course, the property qualification, and in accordance with the returns sent by the magistrates to Sir John Jamison there were 614 persons free and emancipated owning freehold property and so entitled to act as jurors. But amongst these there were fifty-one officers of Government and many others who, as Bigge pointed out, were "raised too high above the condition of the ordinary description of offenders that come before the Criminal Court to be selected as jurors".^[53] Those born in the Colony and resident on their own property numbered no more than eighty-seven, and though equal, if not superior in intelligence and moral conduct, to the class from which petty jurors were taken in England, would find it burdensome and expensive to leave their farms to attend the sittings of the Criminal Court.^[54] Apart altogether from the legal aspect, it was necessary to consider what would be the actual effect of jury trial, and whether it would secure a more efficient administration of justice. It was in the Criminal Court that it was felt to be most needed, and the petitioners gave little consideration to its use in the Court of Civil Judicature.

Since the time when Ellis Bent and Macquarie had urged it upon the Government, feeling on the subject had undergone some changes. Jeffery Bent doubted whether petty juries would be an advantage and Riley was quite against it. "It is certainly most natural," he said, "that Englishmen should wish for so great a blessing, but according to my opinion the present state of the territory does not warrant it in New South Wales; and I think, if immediately extended to it, it would become an evil. In saying this I believe I deliver the sentiments of a majority of the inhabitants who are capable of duly appreciating the result of so important a measure. When I left the Colony I thought many years must elapse before it would be capable of producing a sufficient number of proper jurymen."^[55]

Cox, Macarthur and Bell, who all signed the petition, were opposed to the establishment of petty juries, and Marsden was opposed to ex-convict jurors.^[56] The fact that in spite of their feeling on this point they did sign was a proof of the development of a spirit of party government, all of them sinking their feelings on this point in the hope of gaining the others. 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. The great objection to the peculiar organisation of the court was that it was unnatural and inimical to the ideas of the people. It often happened also that the decision of questions of guilt lay with a young and inexperienced officer who knew nothing of New South Wales, and very little of the world.^[58] Wylde complained that the officers, aware that the court was unpopular merely because it was military, too often erred on the side of leniency from a fear of raising ill-feeling, while if a member of their regiment were tried before them, from the same fear they were inclined to be too severe. The officer in command of the garrison complained that the demands of the Criminal Court interfered seriously with the military duties of his officers, and to the regiment the court work was thoroughly distasteful. Thus dislike of the military court and hesitation as to the wisdom of introducing jury trial were balanced against one another, and the scale just dipped in favour of the latter. The opinion of Bigge and Field was that a little time should elapse to allow the exceedingly bitter feelings, aroused against the emancipists by Macquarie's policy, to subside before trial by jury could be safely established.^[59]

Lord Bathurst received the petition in 1820 and already much had been done on the lines suggested. Trade regulations had been relaxed and permission had been given to establish distilleries. Before making any further changes, the Secretary of State proposed to wait until he received the report of Commissioner Bigge.^[60]

A decision of the Court of King's Bench in 1817 came as an unexpected and heavy blow to the emancipists.^[61] The old custom of the Colonial Courts had been that a convict could not sue or be sued, but that the convict free by servitude or pardon stood in the courts as a free man. Field modified this by allowing a convict to sue or be sued in his court, on the ground that a record or office copy of his conviction was necessary as proof of his status, though if such record were produced the convict had no standing. The case of Bullock v. Dodds, heard by the Court of King's Bench, decided that the Governor's pardons had only the power of pardons under the sign-manual and did not allow a convict attainted of felony to give evidence, maintain personal actions, or acquire, retain and transmit property. Up to that time the Act, 30 Geo. III., cap. 14, which conferred on the Governor the power to pardon had been interpreted as giving to his pardons the same force as pardons issued under the Great Seal, so that the news of the decision in Bullock v. Dodds which reached New South Wales, in 1818 came as an unwelcome surprise.

In ten years, from 1810 to the end of 1819, only eleven pardons had been granted or confirmed by His Majesty, and a minority of these had been passed under the Great Seal. As the Governor's pardon was effective in the case of crimes which did not carry legal incompetencies, Field succeeded in somewhat alleviating the hardship of the new doctrine. Thus when attorneys, being hard-pushed, took the "objection of attaint" against witnesses, Field said that he "never allowed the witnesses to answer the question, as I think it a dilemma too hard to place any witness in, as if he tells the truth he disgraces himself. I always tell the party who produces the witness to exhibit the office copy of the record of the conviction. In cases of this kind I have consulted the members of the court as to the general character of witness produced.

"Nor," continued Field, "can a man be examined himself in those things, for he may not say anything to injure or incriminate himself.

"The sting of the law is therefore, in this remote Colony, where it would only sting itself to death, well and wisely taken away by the law itself."^[62]

This rule he applied throughout, but it was clearly one which "gave to the judicial authorities, the great power of determining how long and in what cases they may exercise that right".^[63] This power "may equally be applied," wrote Bigge, "to the convict whose term of service is expired, and who to all intents and purposes is a free man, as to the convict whose term of service has been remitted by the Governor of the Colony, and who stands in the situation of a person holding a sign-manual pardon".^[64]

Under these circumstances the emancipists were naturally uneasy, and two decisions, one by Wylde in the Governor's Court, and one by Field in the Supreme Court brought their anxiety to a head.

In the Governor's Court, Eager proceeded against Mr. Justice Field on a charge of slander contained in a rebuke administered by Field when acting as Chairman of the Bench of Magistrates at Parramatta. Field pleaded that Eager could not bring a personal action, having been convicted of forgery and not having since been included in any issue of pardons under the Great Seal. Stay of proceedings was allowed for eighteen months in order that Field might procure from England an office copy of the record of conviction.^[65]

In the Supreme Court it had been adjudged "That persons arriving in this Colony under sentences of transportation and afterwards receiving instruments of absolute and conditional remissions … were not thereby restored to any civil rights of free subjects unless and until their names should be inserted in some general pardon under the Great Seal of England; but on the contrary that they still remained convicts attaint, incapable of taking by grant or purchase, holding or conveying any property real or personal, of suing in a Court of Justice or of giving evidence therein—and upon the sole ground that the name of the plaintiff did not appear in any general pardon under the Great Seal of England, decreed that the plaintiff … could not maintain his action. …"^[66]

The emancipists obtained Macquarie's permission to hold a public meeting and to petition the Crown to remove these disabilities. The meeting was duly advertised in the Gazette on 7th January, 1821. Field and Wylde, who were on the point of sailing to Van Diemen's Land on circuit, at once wrote to the Governor, thinking it their duty "to apprise your Excellency that if you had been pleased previously to such sanction, to have consulted us upon the law, we could have demonstrated … that none of the civil privileges of the above mentioned persons (the emancipated convicts and expirees), have been affected by any rules of law lately pronounced by us; and we beg to add that we make this declaration with no view of interfering with any measure of your Excellency's Government, or on the ground of any objection on our part to the meeting proposed, but solely for the purpose of absolving ourselves from any consequences which the convention of such a meeting may occasion, during a probably three months' closure of the Courts of Civil and Criminal Judicature."^[67]

Macquarie replied expressing his regret that they disapproved of the advertisement of the meeting, and adding, "Had I conceived anything illegal or even irregular in the wording … I should certainly have consulted you on the occasion, before I gave my sanction to the publication of it. But, impressed as I am with the firm conviction of the serious grievance this description of people labour under at present, from the late explanation of the law, as it regards themselves and their property, I consider it my indispensable duty to sanction their meeting for the purpose of seeking relief from the injurious consequences of the present state of the law, not contemplating that such a measure would have proved in the smallest degree annoying to you, as the judges who had expounded the law."^[68]

Bigge agreed with Macquarie, and no harm came of the meeting. Dr. Redfern presided and Eager acted as secretary. The petition was signed by 1,360 persons, and the secretary and chairman both went to England to forward the cause.^[69]

There can be no doubt that the emancipists and expirees^[70] had never been intended to occupy the precarious position which resulted from the decision of Bullock v. Dodds, and that some alleviation might fairly be asked for.

Bigge thought that the Governor's pardon should be given the power of a pardon under the Great Seal, within the boundaries of New South Wales, and that some such statutory provision was safer than a discretionary power which was open to abuse so long as the reasons for its exercise remained as Field would have said "in the breast of the court".^[71]

Bigge's commission in New South Wales gave him the right to remonstrate with Macquarie, and even direct his administration as well as to inquire into the whole conditions of the Colony. He arrived in 1819 and left in 1821, and, as was perhaps inevitable, he and Macquarie were more than once engaged in arguments. Twice their disputes led to a complete rupture in their relations, and on each occasion Macquarie was certainly in the wrong. It is useless to raise the dust over all these past contests again, for the time was not one when they could lead to further result. It was a period of waiting; the time of Macquarie's departure was growing near; the Governor's administration had been assailed in the House of Commons and in two pamphlets by the Hon. H. Grey Bennet, M.P., and it was well known that, so soon as Bigge's Report had been presented, great changes would be introduced.^[72] It was what had happened before Bigge's arrival rather than what happened while he was in the Colony that was of real importance. That Macquarie should dislike the commission was natural, for whatever Bigge's finding, his appointment in itself was a reflection upon Macquarie's administration by showing that inquiry was felt to be necessary.^[73] His resignation also had been neglected, and he wrote in 1820 in a tone of extreme depression to Lord Bathurst, saying, "Two years and two months having now elapsed since the sailing of the Harriett for England, I cannot conceal from your Lordship the regret and mortification I feel at your Lordship's not condescending even to notice the receipt of my letter of resignation, and thereby leaving me utterly at a loss to know when I am to be relieved.

"After the arduous and harassing duties I have had to perform in the administration of the Colony for now upwards of ten years, the constant counteraction I have experienced here even to my best measures, and the cruel and base calumnies circulated to the prejudice of my character at home, I must confess, my Lord, I am now heartily tired of my situation here, and anxiously wish to retire from public life as soon as possible.

"I therefore most earnestly entreat your Lordship will be so good as to move His Royal Highness the Prince Regent to accept this second tender of my resignation, and to be graciously pleased to appoint another Governor to relieve here as soon as a competent person can be selected for that purpose."^[74]

Lord Bathurst replied, "I regret to find that you had not at the date of your former despatch received my communication of October, 1818^[75] … as it would have fully explained the reasons on which alone I had thought it my duty to decline submitting your resignation to the King^[76] until you had an opportunity of reconsidering the ground upon which it was then tendered. Finding, however, that your anxiety to resign your command has no longer any reference to the circumstances stated in your despatch of December, 1817, I have thought it encumbent upon me to submit your request to the King, and have the honour to acquaint you that His Majesty has been graciously pleased to accept your resignation."^[77]

On the 5th of August, 1820, Major-General Sir Thomas Brisbane, having heard that Macquarie was returning, asked for the command. He had already been suggested for the post by the Duke of Wellington and the late Sir Joseph Banks. Of his own qualifications he refused to say anything save to assure Lord Bathurst of his "utmost assiduity in behalf of that infant Colony".^[78]

On the 3rd of November, the appointment was offered to him and at once accepted. He was a soldier of distinction with a knowledge of astronomy and kindred sciences, and it was on account of these that he was anxious to go to New South Wales. He sailed in May, 1821, and arrived in November after a five months' passage by Rio Janeiro. But before speaking of Macquarie's departure, some account must be given of his last attempt to honour, in the person of Dr. Redfern, the class to whom he had throughout his administration shown so much favour.

Redfern had been an assistant surgeon in the Navy when at the age of eighteen he had been sentenced to death for complicity in the mutiny at the Nore. His complicity had been proved by his being overheard in urging the mutineers to greater unity among themselves. On account of his youth his sentence had been commuted to transportation for life, and after being some years in the Colony he had received a free pardon and in 1812 a commission of assistant surgeon, a post which he occupied until 1819.

Wentworth, the principal surgeon, retired in 1818, and Macquarie assisted Redfern in bringing to bear as much influence as possible upon the Colonial Office in order to secure for him the higher post. To Macquarie's surprise, Lord Bathurst passed over Redfern in silence and appointed Dr. Bowman, a skilful naval surgeon who had been a remarkably successful superintendent of transports.^[79] Redfern, indignant at being thus overlooked, resigned his position of assistant, and Macquarie promised to appoint him to the magistracy, apparently in compensation for his disappointment. Bigge urged the Governor not to take such a step, pointing out that the Secretary of State had already expressed disapproval of such a policy, and that by doing so Macquarie would be giving to Redfern a higher rank than that to which Lord Bathurst had tacitly declined to raise him. Macquarie submitted reluctantly to Bigge's authority though not to his arguments, but two days later changed his mind. Bigge wrote indignantly to ask the reason, and Macquarie replied, … "I was and am fully bent on according with you in every measure you can suggest, however different from my previous opinions and conduct … providing the alterations you propose are calculated in my mind, after the most mature consideration of the subject, to promise that advantage which I am well aware it is your intention they should. … I am willing to make every reasonable sacrifice of my own feelings to the wishes and views of His Royal Highness the Prince Regent, and His Majesty's Ministers—but I feel that I should be no longer worthy of the situation I hold in this Colony, were I to make so complete an abandonment of my authority, honour and principle, as to cancel an appointment after the precept had been made out actually signed by me in conformity to a promise made before your arrival in this Colony. …

"With all due deference to your acquirements and the superior faculties of your mind, I consider myself at least your equal in the consideration of a subject new to you, but familiar to me in my daily and hourly duties for now nearly ten years, and I cannot let this opportunity pass without dwelling a little longer on the subject which has given rise to this communication. The most virtuous and best disposed of the free people of this Colony agree with me in the adoption of this principle. The malcontents who since Governor Phillip's time to the present moment have ever been the burden and turmoil of this Colony have free access to you." The blandishments of these people, he continued, usually brought newcomers to their way of thinking, a matter of little importance when the strangers were birds of passage. "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.

"The class of persons here who must ever be considered as the first … have overturned the Government of this Colony—they have occasioned the retirement of every Governor who had held the Government, they are factious, discontented and turbulent. … Let not the disposition with which nature seems to have endowed you for doing good," he concluded with a sudden flight into rhetoric, "be overwhelmed by an overstrained delicacy, or too refined a sense of moral feelings, for such I consider the preference given to a bad man who perhaps narrowly escaped the stigma of having once been a convict—to one who is now good—but who has been proved not to have been always so. Avert the blow you appear to be too much inclined to inflict on these unhappy beings (if you make them so!), and let the souls now in being, as well as millions yet unborn, bless the day on which you landed on their shores—and gave them—(when they deserve it) what you so much admire—Freedom!"^[80]

Bigge was not much affected by the rhetoric, and easily cut the ground from beneath Macquarie's arguments. The question had nothing to do with vague generalities, but dealt simply with the wisdom of making Dr. Redfern, an emancipist, whose promotion had not been continued beyond the post of assistant surgeon, a magistrate, against the known opposition of Lord Bathurst.

"Your Excellency must be well aware," he wrote in one part of his letter, "that not only in this Colony but in England likewise, the admission of convicts to the magistracy, the distinguishing feature of your administration, has been more than questioned." And again, "I never can admit that the faithful discharge of the duties of assistant surgeon can ever form a claim to the honours of the magistracy, even among the limited number of aspirants to that office in this Colony".^[81]

His arguments were of little use, for Redfern held Macquarie to his promise. "Honour, Character and Principles" were so deeply involved that the Governor felt bound to fulful his pledge.^[82]

Redfern was appointed and held his coveted rank for nearly a year. But when the new King came to the throne and a new commission of the peace was issued, Macquarie received orders from Lord Bathurst to omit Redfern's name. Thus when Sir Thomas Brisbane took up the reins of Government no convicts sat upon the Bench, for Lord, persuaded by both Macquarie and Bigge that the trade of auctioneer was unsuited to one of magisterial rank, had retired on the plea of ill-health on the same occasion.^[83] 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. Brisbane was sworn in on the 1st of December, 1822, and a fortnight later addresses—one of welcome, one of farewell—were presented, in the preparation of which, the Gazette^[85] recorded that "a deplorable lack of unanimity was shown".

Macquarie with his wife and little son sailed for England on 12th February, 1822. He lived just long enough to publish a defence of his administration in response to the earlier attacks of Bennet, and died in London in 1824. He had governed New South Wales for eleven years, and if good intentions, unremitting labour and honesty of purpose were the only qualities called for in a Governor, Macquarie had indeed deserved well of his country. But before estimating his services there is still another side of his administration to be considered, that side which presented itself to the Imperial Parliament and became in a dim and hazy manner impressed upon the British public.

1. Bigge, Report III.
2. When Bigge was going from Sydney to Van Diemen's Land the ship was manned exclusively by Australians in order to ensure a trustworthy crew. See Report III.
3. There were many complaints in the Gazette of reckless riding and driving. A favourite trick was to drive through the town without reins. Macquarie wished to raise a volunteer corps of mounted dragoons from amongst the young men.
4. It is rather curious that the only prisoners against whose character Macquarie was ever warned were five men who had been convicted of High Treason and were transported in May 1820. He was cautioned against their designing characters and the "wicked principles which they may attempt, if not narrowly watched, to instil into the minds of others". See letter from Home Office with assignment of convicts, 11th May, 1820. R.O., MS. Hunter (C. on T., 1812) and Riley (C. on G., i819) both gave very favourable accounts of the Irish convicts.
5. The Rev. Mr. Cross said that he had heard "a man who was a Catholic say: 'I have been very bad myself and I don't wish my child to be as bad; I would rather he should be a Protestant than that'." Appendix, Bigge's Reports. R.O., MS.
6. See Bigge, III. and Evidence of Riley, C. on G., 1819; also Evidence of several colonists in Appendix to Bigge's Reports. R.O., MS.
7. See Riley, C. on G.
8. See Riley, C. on G.
9. Bigge's Report, I.
10. See D. 27, 25th July, 1817. Enclosure to Commander-in-Chief. R.O., MS.
11. D. 27, 25th July, 1817. R.O., MS. Probably this means no more than that Molle refrained from adverse comment. Macquarie would be quite ready to take that for approval. See, e.g., his belief that Lord Bathurst approved of his emancipist policy. Chapter VI. and later in this chapter.
12. See Macquarie to Commander-in-Chief, above.
13. This was the famous William Charles Wentworth, who was at this time sowing his literary wild oats in a defence of the wealthy emancipists, in which class his father, who had as a matter of fact never been a convict, was placed by common consent of the gentlemen-settlers and officers.
14. The italics are in the original document.
15. See enclosure to Macquarie's despatch above.
16. See Riley, C. on G., 1819, and Harris, Evidence in Appendix to Bigge's Reports. R.O., MS. Harris was a leading member of a Masonic Lodge founded in Sydney some time before 1817, of which Molle and J. H. Bent were members. When they left the Colony the Lodge presented them with addresses, of which Harris was an active promoter. Macquarie regarded this as a proof of Harris's hostility to his Government. Rusden, in vol. i., p. 546, writes, "Many regiments bear on their banners mottoes telling of their past services, but it may be questioned whether the scutcheon of the 46th could be more nobly adorned than by the memory of their conduct in New South Wales, which smells sweet across the lapse of half a century".
17. In referring to this episode Rusden makes an insinuation against the character of Macquarie's Brigade Major which appears to be wholly unfounded. See History of Australia, i.
18. Bigge's Report, I.
19. Bigge remarks that the intercourse between the commanding officer of the 48th and emancipists encouraged an objectionable intimacy between the private soldiers and the convicts, which caused uneasiness in the Colony generally. See Report I. Probably it had always been impossible to prevent this intercourse between the rank and file and prisoners, and there is no evidence which distinctly shows that it was greater with the 48th than the 46th.
20. e.g., to discuss currency proposals, the question of poor relief, etc.
21. Riley, C. on G., 1819.
22. S.G., 5th July, 1817. Notice does not say for what purpose the meeting is called.
23. Meeting took place on 13th August, 1817.
24. The taxes suggested were 6d. a lb. on tobacco, 1s. or 2s. a lb. on tea, and another 3s. on spirits. See Wylde's Evidence, Appendix, Bigge's Reports. R.O., MS.
25. Macquarie, D. 20, 24th March, 1819. R.O., MS. In "free" he certainly included emancipists and possibly ticket-of-leave men.
26. Wylde, see above.
27. See Wylde's Evidence, Appendix, Bigge's Reports. R.O., MS. See Bigge's Report III., and Sydney Gazette for June, 1818. The absence of any compulsory Poor Law organisation making each district self-supporting for purposes of poor relief probably accounts very largely for the slow growth of local Government institutions in Australia. The administration was from the first very much centralised.
28. See Evidence of Wylde and Bell. Appendix, Bigge's Reports. R.O., MS.
29. See Chapter VI.
30. See Chapter VIII.
31. See Appendix to Bigge's Reports. Copy of this examination. R.O., MS.
32. S.G., 4th January, 1817. Marsden's name is not mentioned, but there was no possible doubt of the application of the libel.
33. G.G.O., 18th January, 1817.
34. For all the correspondence see enclosure to D., 20th March, 1821. R.O., MS.
35. See especially Marsden to Wylde, 24th April, 1817, in above D. "He always gave it as his opinion that it would be extremely dangerous to the administration of public justice if the same authority was vested in the Judge-Advocate for the time being as that possessed by the Grand Jury in England, and I may venture to say that he never acted upon this principle while he had the honour to preside as Judge-Advocate in our Criminal Courts. He considered that it was a matter of too great importance to every member of the community to be left to the discretion of one man to determine whether a cause should or should not be heard before a legal tribunal, and that it was the sole province of the Criminal Court, and not of the Judge-Advocate alone, to decide upon the evidence in such cases."
36. See S.G., 1st November, 1817.
37. See Bigge's Correspondence with C.O., 1823, R.O., MS. Wylde was himself apparently aware that his conduct of the case was open to objection. See his long confused account in enclosure to D. above.
38. Wylde's Evidence, Appendix to Bigge's Reports. R.O., MS.
39. See Appendix, Bigge's Report. R.O., MS.
40. See Campbell to Macquarie. Enclosure to D. 25, 31st March, 1819.
41. See D. 25, 1819.
42. Given in D, 8. See above.
43. See Bigge, Report I.
44. For facts of this quarrel see Bigge's Report, I. Bigge gives a very full account, and it appears, from all the evidence, to be a very just one. The G.G.O. appeared in S.G., 21st March, 1818.
45. See S.G., January and February, 1819.
46. See D., 22nd March, 1819. R.O., MS. Petition was sent by Macquarie with this despatch.
47. D., 22nd March, 1819, above.
48. Appendix to Bigge's Reports. R.O., MS.
49. Ibid. Dated 18th March, 1819.
50. The deposer of Bligh.
51. Appendix, Bigge's Reports. Dated 18th March, 1819. R.O., MS.
52. Field to Bigge, 23rd October, 1820, Appendix to Reports. R.O., MS. The last sentence refers to misdemeanours not entailing legal incompetencies.
53. Bigge's Report, II.
54. Ibid.
55. Riley, C. on G., 1819.
56. See Appendix, Bigge's Reports. R.O., MS.
57. Field to Bigge. See above.
58. See Bigge's Report, II. The verdict was a majority and not a unanimous one.
59. Bigge proposed that the emancipist should fulfil the condition of cultivating a certain proportion of his land before he should be eligible as a juror, and also he should have "the free and unencumbered possession of not less than fifty acres of land granted or of a house of the value of £100". See Report, II.
60. See D. 3, 24th March, 1820. C.O., MS. For new trade regulations see Chapter V. and see also Chapter X.
61. See Report of Bullock v. Dodds in Barnewell and Alderson, Reports of Cases in the King's Bench, vol. ii., pp. 258-278. Judgment of Bayley, J., and Abbott, C. J.
62. See Field to Bigge, above.
63. Bigge's Report, II.
64. Ibid.
65. See Petition of Emancipists, enclosure D., 22nd October, 1821. R.O., MS.
66. Ibid.
67. See letter, Appendix, Bigge's Reports, 7th January, 1821. R.O. The advertisement of the meeting stated that it was called for the purpose of petitioning the King and Parliament for relief from the consequences of certain rules of law, lately pronounced in the Courts of Civil Judicature in the Colony, affecting the civil privileges of the above mentioned colonists.
68. Macquarie to Wylde and Field, 7th January, 1821. Appendix, Bigge's Reports. R.O., MS.
69. Redfern had private business of his own, but Eager's visit had to do only with the petition. He was a restless, troublesome man, and Field wished the Secretary of State to forbid his return. See his letter to Bigge, Appendix, Reports. R.O., MS.
70. In the Colony "emancipists" was used to cover both.
71. Bigge thought "that all felonies committed by convicts during their term of punishment or by remitted convicts after their remission, shall be held to deprive them of all future personal right of action and of serving as jurors, and should also create a forfeiture of all lands granted to them by the Crown, or held by other title". Report III., 30th January, 1819. See Chapter X. See Bathurst to Macquarie, C.O., MS.
72. See Chapter X.
73. Macquarie did all that was fitting in the way of public ceremonial with a very good grace, and wrote of Bigge—except when quarrelling with him—with respect and admiration.
74. Macquarie to Bathurst, 20th February, 1820. R.O., MS.
75. This was not a despatch but a private letter, and it does not seem to have been sent. In any event Macquarie did not receive it.
76. George IV.
77. D. 14, 15th July, 1820. C.O., MS.
78. Brisbane to Bathurst, 5th August, 1820. R.O., MS.
79. Bathurst to M., April, 1819. Macquarie, C.O., MS.
80. 6th November, 1819. Enclosure, D. 2, 22nd February, 1820. R.O., MS.
81. 10th November, 1819. See above, R.O., MS.
82. Macquarie to Bigge, 12th November, 1819. See above, R.O., MS.
83. Bigge's Report, I.
84. See Gazette, 23rd November, 1821.
85. Gazette, 14th January, 1822.