to order freemen to be flogged—was proof of his unfitness,
but his offence was not known in England for some time
after its perpetration. In days of tardy communication the
consequences of his illegal acts recoiled slowly upon Macquarie.[1]
One of his favourites was engaged in mercantile enterprise, and deemed his profits encroached upon by the competition of an American resident named De Mestre. The East India Company's charter prevented an English subject from importing tea direct from China, and it reached him circuitously from Bengal. The American was under no such restraint. But Macquarie had declared that the colony was a field for profit of the convict class. The ex-convict brought an action against the American (under a Statute of Charles II.) for trading in the colonies. The American applied to the Court for twelve months' time to plead, in order to produce proof of the conviction of his antagonist, alleging at the same time that he had a good defence in the action, which (he averred) was prompted only by malice. Judge Field granted the application,[2] and the proceedings against the American ignominiously perished; as did similar proceedings taken at a later date against a Frenchman. The Court declared that before they applied the highly penal statute of 12 Charles II. cap. 18, in "favour of tradesmen who were themselves only the creatures of remission of sentence, they ought to be fully satisfied that they had power to try a qui tam action, a public penal action, two-thirds of the fruits of which are to go to the King and the Governor, under a charter, the object of which is to make sufficient provision for the recovery of debts and determining of private causes between party and party in New South Wales." There was no reason, the Judge said, to believe that the Governor had authorized the action, and therefore he gave time to procure a certified
- ↑ Mr. Goulburn's subsequent apology for Macquarie was inane. He said that a Select Committee of the House of Commons had, in 1812, reported in such terms as to show that such punishments were extant, and that "as no observation was made on that report, it was natural for Governor Macquarie to conclude that there was no objection to the practice."
- ↑ He relied upon a case, Bullock against Dodds, tried before the King's Bench, in 1819, as to the effect of attainder.
