Part 17

The opinions that prevailed among the prisoners, in reference to the intentions of the British government, were adopted by Macquarie himself; he held, like them, that the colony was established for the benefit of persons convicted, and that in forming a system of political government, their social welfare was the grand design to pursue. The notion was not without support. In the nominal list of the first fleet, not more than fifty in all were banished for terms exceeding seven years.[112] To suppose that these were perpetually excluded from the immunities of British subjects, would be to attribute to expatriation a forfeiture beyond the operation of English law. The opinion was further fortified by the distribution of land, under regulations which were intended to encourage their permanent settlement, and limited only to such as, "by their good conduct and disposition to industry, should be deserving of favor, and receive emancipation and discharge from their servitude."[113] This opinion was still further sustained by the comparative neglect of emigration, and the selection of officers, for situations of authority and trust, from the ranks of the prisoners. A comparison of property acquired by the various classes, in 1820, explains many anomalies[114] in their social aspect, and vindicates the policy of Macquarie himself. It is shown, that the emancipists and their children were more than five times in excess of the free; and that their property in land, trade, and commerce, exceeded by more than one-half the possessions of the voluntary settlers.

To erect the barriers of caste around so small a section, and to exclude emancipists from the common intercourse of social life, was a task no Governor could then accomplish, without danger. The changes which followed Macquarie's administration, especially the growth of a free population, enabled his successors to effect what, in 1817 to 1820, had been attempted in vain. The opposition encountered by Macquarie, and which he resented with the ardour of his character,[115] enabled his enemies to represent him as the patron of criminals. He was said to look upon their offences in the light of misfortunes, which they were to repair in the country of their exile, rather than to atone by the severities of toil and privation;[116] and that they were taught to look upon no title to property, as so just as that which had been derived by passing from crime to conviction; from thence to servitude, emancipation, and grant.[117]

The difference of opinion and feeling between the Governor and military, led to the combination of emancipists, who did not veil their former condition, but ennobled it by raising it to a political interest; who adopted a designation, and formed a system of morality, to which it is useless to look for a parallel. They returned with bitterness the reproaches of the free, and insisted on the benefit of the proverb, which ascribes more virtue to the vigor of reformation, than the constancy of obedience.[118] Their advocates would ask, with exultation, whether any emigrants were found whose life would bear a scrutiny? Whether greater crimes are not tolerated by the refinements of vice than those which are commonly visited with the vengeance of the law? or, exhibiting the doctrines of christianity in their aspect to the penitent, they thundered forth denunciations against the proud and the self-righteous! The champion of this system, Mr. W. C. Wentworth, turned the artillery of his wrath against the exclusionists: "and shall not," he exclaimed, in the ardour of his youth, "shall not the sole efficacious remedy be administered (the restoration of the civil rights, capacity to become magistrates and legislators), because a set of _interlopers_, in nowise connected with the purposes for which this colony was founded, wish to monopolise all the respectable offices of the government, all the functions of emolument, dignity, and power, themselves." "How can they expect pardon of God, if they withhold oblivion from their repentant fellow creatures." "Retrospection should not be pushed beyond the period of arrival, but then subsequent good behaviour should be subject to the severest tests. The re-convicted offender, branded with the _lasting_ impressions of infamy, should be rendered ever after incapable."[119]

Such was the recognised code of the emancipist: it were, indeed, easy to see that the several convictions of some small rogue might not, in their aggregation, equal the crime of him who sinks a ship or burns a house, or the guilt of an atrocious offence, which escapes the last penalty of public vengeance, by some legal error; but to obliterate the first stigma of those who constituted the great body of a population, and whose self-respect was their chief chance of virtue, was not unreasonable.

The evils which rose from this system of oblivion, are to be traced to the indiscretion which formed a community of criminal origin. The effects produced by their equipages, luxury, and licentiousness, on the British population, when set forth in the language of romance, were not to be charged on the local government. It is in the nature of commerce to collect wealth: the traders were nearly all expirees; they became rich, not because they were transported, but because some were industrious, others saving, and others fraudulent; and because they were in the midst of a system of expenditure, which made the Treasury of England their bank.

The acquisitions of men, who had been prisoners, with great absurdity and forgetfulness, were attributed to the laxity of the local governors. Even now, many who are dextrous, shrewd, and persevering, acquire considerable properties: their prosperity awakens no alarm, because they are lost amidst a dense population, and are surrounded by emigrants, who by similar vices or virtues are not less opulent, but far more numerous.

The first sound that fell on the ear of the prisoner, when he stood before Governor Macquarie, tended to animate his confidence: having enquired of his treatment through the voyage, he then informed him that the past was left to oblivion, and that the future would determine his condition,[120] This was often no vain promise: the sentiments he expressed were, more or less, recognised by the preceding Governors. The Commons, in 1812, gave his policy their sanction, and Earl Bathurst, though with more reserve, favored the same opinion. Macquarie never disguised this system of mercy.[121] When transportation only contemplated the establishment of a colony, this system of oblivion was useful; but the passage from the bar of justice to liberty, was sometimes not longer than the passage from England: and those who rose to wealth, by their character and career, gave to public retribution the aspect of grimace.

On the appointment (1814) of H----, as superintendent of convicts, an office then of greater _real_ power than any other in the penal department of the British empire, Macquarie, says Bigge, gave an enumeration of his merits; and continued frequently to publish in the _Gazette_ eulogies on his character. This is slily sketched by the Commissioner himself, and with more precision by Dr. Reid, who was on the spot at the time. Mr. H---- was a convict, and was placed in office at Sydney, but breaking into the King's stores, either in person or by deputy, and taking away a bale of slops, he was re-transported to Norfolk Island, where he won the government notice by his diligence as a dealer in pork, and was recommended by the commandant to Macquarie. This man exercised his functions in the Turkish style: he rigorously depressed all unseasonable attempts at virtue; but nothing was impossible to those who were able and willing to pay, for whom he was accustomed to act as banker. His manners were coarse to loathsomeness, and he addressed the prisoners in language which outstripped their own;--"eclipsed them in wickedness, and in revolting filthiness." Nor was his domestic position more respectable: his wife was one of two, too bad for endurance, who were forced from the colony, and sent to England for reformation.[122] Such was the man entrusted with more than magisterial power.

While the female prisoners were landed, his clerks became brokers for masters, friends, and husbands. When ships arrived, boats crowded round them, and the visitors chose, among the female prisoners, a wife, or such other relative as might answer to their prior engagements.[123] Having _sworn_ to these ties of kin, the superintendent assigned them according to the plan of the contracting parties, who, within twenty-four hours, had been total strangers. We may imagine the _eclat_ with which so clever a device would be appeared to the correspondents of the fortunate transport.

Those, whose appearance or dullness excluded them from these resources, were taken to the factory. On their arrival, "according to custom," they were met by a body of men, who, having satisfied the constables, spread before these women the spirits and provisions provided for the feast of welcome: what followed need not be told. The connivance of the superintendent, with the most of these excesses, might be expected from his character; and although he displayed considerable tact in subjecting the prisoners to his control, his appointment and prerogatives almost justified, and they fully accounted for, the rancour with which his patron was opposed and condemned.

Thus Macquarie did not exercise the caution requisite to preserve his generous designs from parliamentary censure: imprudent efforts to give effect to his conviction, involved him in a contest which hastened his recall, and it is said, shortened his life.[124] He raised to the bench, and invited to his table, several emancipists of wealth, and made their social reception the condition of his favor. When elevating to offices, he sometimes violated his own rule of forgetting the past, by basing his eulogy on the reformation of the person he delighted to honor. The details of their character, furnished by the indignant or malicious, cast an air of ridicule on their public reception. The subalterns of the army refused to join their superior officers in entertainments, at which emancipists were guests. The resentment of Macquarie aggravated the quarrel, until the differences divided the colony into factions, and finally originated the emancipist party; and by provoking observation, tended to increase the severity which fell on their successors.

In those times of despotism, many were transported for political offences, which in Great Britain leave no moral stigma, and when forgiven by the crown, close no social circle.[125]

The prosperity of New South Wales--founded on the government expenditure, so vast as to excite the most serious complaints, but so subtle as to elude imperial censure--was but slightly participated by Van Diemen's Land. Its later occupation, the low character of the first settlers, and the subordinate station of its ruler, afforded no room for fashion. Many emancipists in Sydney had become wealthy by the vices of the less cunning and thrifty, and created a social state, without a precedent. They could command the most expensive luxuries; and, compared with them, the highest officers of the government were poor. They looked for the honors of opulence, and did not perceive that an emancipist must pass through oblivion to honor; and that, in this case, to distinguish is to stigmatise.

It was observed by Mr. Bigge, that when Macquarie made some emancipists magistrates, and professed by that dignity to restore them to the station they had lost, he forgot that they were elevated to a rank they had never filled. It was equally true, that a large number of free colonists, whose pretensions in early life were equally limited, rose by opulence to a superior station, and higher pretensions: to deny the usual appendages of their position, would be virtually to degrade them. Whether just or not, the formal exclusion of emancipists was a supplement to the penalty of the law, and, as such, must have been taken. It is not the actual exaltation, but equal eligibility of British subjects to the highest station, which constitutes that equality so grateful to Englishmen: the son of a sweep may keep the conscience of a king.

There were freed men, who were even detestable for their wealth; others, whose offences would not have excluded them from any society. Such was that of Mr. Redfern, transported when a boy, for dropping a word to the mutineers of the Nore. Society will ever make its exceptions, founded on the nature of the offence, the proofs of reformation, or the general character; but Governor Macquarie resolved to wash out the stain by authority, and to treat those as enemies who disputed his policy, or refused to share in its promotion.

The determination of the free to make no distinction between those who merited the oblivion of their offences, and emancipists atrocious in their history and character, rendered the hostility of caste more inveterate.

The measures of Macquarie were followed by years of faction: a press, representing emancipist interests and emancipist principles, and making the Governor the instrument or the object of the most violent hatred; still, on their side, the emigrants were often positive, virulent, and contemptuous.

From this, Van Diemen's Land was free: there were few whose wealth or education could pretend to rank. One gentleman so situated, Mr. Gatehouse, by his respectability and intelligence, won the respect of all classes: he was admitted to the table of the Governor, and was only distinguished by the colonists for his enterprise and probity. When an office of trust was in their gift, they chose him to share it with the chief merchants of the island; and thus pronounced the judgment which good men will adopt, against both an undiscriminating ban and an unlimited admission.

The Commissioner, Bigge, joined with the anti-emancipists, in almost every prejudice or opinion. Great as were the services he rendered by his keen observation and courageous delineation of colonial society, in this, and some other instances, he overlooked those facts of its history, which gave a disastrous prominence and authority to the emancipist settlers; and enabled them to claim consideration which offended the free men, not always superior in substantial merit.

But disabilities, far more serious and unexpected, united the emancipists, and obtained the sympathy of many who could not be charged with indifference to crime. The remission of punishment was in the discretion of the Governor-in-chief: the 30 Geo. iii, authorised the granting of pardons, and the commission of the Governor, which recited this provision, was supposed to convey the power. In 1811, Macquarie declared that a long course of good conduct would be an essential preliminary; but the rule was more easily stated than enforced: and, in 1813, one day in the year was fixed for pardons. It was declared that conditional pardons could only be granted when ten years, or half sentence, had expired; or, for absolute pardons, until fifteen years, or three-fourths had been fulfilled.

Fond of dispensing mercy, he appointed a day, when those who thought themselves entitled crowded his presence. The petitions, drawn up by letter-writers, dwelt on every topic calculated to move to compliance; among which were profuse compliments to the Governor's benevolence and humanity. The concourse of suppliants was often very great--many venturing to ask, who did not hope to obtain; and whose sole claim to mercy, was the bad terms on which they lived with the law. The crowd pressed on with their (700) petitions, which the Governor read in their presence, and by one letter of the alphabet gave liberty to the impatient captives, or sent them back to merit freedom, as freedom was then merited. The _Court of Clemency_, thronged by suitors, would have afforded a fine subject to the artist--a scene unique in the history of man.

The dispensation of pardons was not regulated by any uniform principles. The interest of superintendents was given, as the reward of task-work performed for the crown; more successful, by services rendered to themselves. Such was a common condition; but many are mentioned, who obtained their pardons on easier terms than personal labor. The loan of a horse and cart, driven by his assigned servants, procured the liberation of the lender; others hired vehicles to convey his Excellency's baggage during his progresses, and thus payed in money the price of freedom. The bargain was public, and questions of national policy never entered the minds of him who granted, or those procuring the royal mercy. The grant of pardons, thus formed an important department of Macquarie's government.

A decision of the Court of King's Bench, Bullock _v._ Dodds, where the plaintiff was an emancipist, seemed to peril their freedom and property. The defendant, when sued in England on a bill, pleaded the attaint of the plaintiff, who had received the pardon of Macquarie. The validity of these remissions, which affected great numbers, was thus brought to the test. The Chief Justice, Abbott, declared that an attainted person was, in law, as one _civiliter mortuus_: he might _acquire_, not because he was entitled _to hold_ any possession, but because a _donor_ could not make _his own act_ void, and reclaim his _own gift_. Thus, a person giving or conveying property, could not _recall_ it, but the convict attaint could not _hold_ it; and it passed to the hands of the crown, in whom the property of the convict vested. This being the law, any ticket-of-leave holder, or any person whatever standing on the pardon of the Governor, was liable to be deprived by the crown, or obstructed at any moment in attempting to recover by suit at law.

The practice of the Sydney Supreme Court had long virtually rejected such distinctions. The mixed considerations of convenience and equity induced the judges to allow the witnesses and plaintiffs the same privilege, whether under attainder or not. Judge Field[126] declared, that while the crown did not interfere, the court would not touch the property of the convict: nothing but an attested copy of conviction, would be admitted as evidence of conviction. Nor would the proof of transportation, of itself, as the law then stood, prove the incompetence of a witness. His time might have expired; his expatriation might have been the condition of his pardon, or his offence might have been a misdemeanour, and not involve the corruption of blood;[127] and, except for perjury or subornation of perjury, the King's pardon might restore his competency to give evidence, or hold property. On these grounds the courts of New South Wales were enabled to evade the plea of attainder in bar of a just action.

But the decision of the King's Bench discovered a serious omission in the forms of pardon issued by Macquarie, and further enquiry even threw doubt on his power to grant them at all. The Act of Parliament empowered the crown to delegate the _authority to remit_ a sentence of transportation, to the Governor of New South Wales; but the commission of Macquarie said nothing of this power, except the criminals were colonially convicted, when he could grant reprieves and pardons. His _instructions_ authorised the pardons to British offenders, and those instructions were warranted by _parliamentary enactment_; but the royal commission gave _no such power_: and thus all his pardons were legally void.

Another essential condition was neglected: to give effect to the pardon of the Governor, it was required that he should transmit to the Secretary of State the names of the persons whose sentences he remitted, to secure their insertion in the next list of general pardons. This course had never been taken: no list of remissions had been furnished to Downing-street.

Among the extraordinary omissions of the government at home, was in many instances the place of trial, and even the sentence of the transports; to save the labour of penmanship, "ditto," was sometimes the sentence found under another name, in the line of which 7, or 14, was written; not at full length, but in numerals. Some "indents" exhibited erasures: in one, a sentence of seven years had been converted to "life." More strange than all, some were sent without even their names, and others without any sort of information of their crime or sentence; and the authorities felt justified in gaining by artifice, from the unsuspecting prisoners themselves, what the ministers had neglected to furnish.

An Irishman, who could give no information, was suited to a sentence by a process of analogy: he was set down, in compliment to his comrade, for "life."[128] The regular transmission of this kind of information was neglected, chiefly, by the Irish executive; ever slow to perceive the obligation of reason and justice. The longevity of abuses is among the most instructive lessons of history. The first fleet left their lists with the owners of the transports: soon after their arrival, several prisoners declared their sentence was completed; this, the government was unable to affirm or deny, and therefore did nothing; but one of the claimants, having expressed his discontent in a manner disrespectful to the Lieutenant-Governor, received 600 lashes, and six months in irons![129] Such atrocious neglect of the first principles of equity, is a sad set-off against the license of indiscriminate pardons. The Roman judge was a far better casuist: "For it seemeth to me unreasonable, to send a prisoner, and not withal to signify the crimes laid against him."[130]

A quarrel between Mr. Justice Field and Mr. Eagar, an emancipist attorney, displayed more forcibly the effect of the decision of the English Chief Justice. Judge Field presided at a session of magistrates at Parramatta, when Eagar attempted to act as counsel: this was prevented by the court; and the judge, as chairman, expressed himself, in reference to Eagar, in terms of severe disapprobation and contempt, stigmatising him as a common _barrator_, or mover of quarrels, whom the Governor might justly prosecute for sedition, or banish from the colony. Eagar, not daunted by the philippic of the judge, resolved to sue him in a secondary court for slander, and to recover back fees paid in the Supreme Court, and which he alleged the judge had levied illegally; but Judge Field ordered his solicitor to file an affidavit of his belief that Eagar was under attainder, and prayed for time to obtain an office copy of his conviction: this course was allowed, and the action defeated.

Not long after, Eagar attempted to recover certain penalties imposed by the Act of Charles II. on foreign merchants trading in the British plantations: the penalties were enormous, and the law was obsolete. The particular object of Eagar was, to suppress the competition in the sale of tea, which the superior trading connection of Messrs. L. Mestre and Co. enabled them to offer. The French merchant very fairly pleaded the attaint of the plaintiff, and Judge Field, in giving judgment, insisted on the obvious injustice of the suit; that men, whose trading was permissive--themselves the creatures of indulgence--and who, by connivance, were allowed to become wealthy and prosperous--should endeavour to rouse forgotten and restrictive statutes, to put down useful commerce, and abuse privileges conceded by the clemency of the court; to force the court to become the instrument of oppression: he therefore allowed the plea of the merchants to bar the action of the plaintiff.

All this, on the face of it, was just; but the emancipists saw that it gave to the judge a discretion which laid them helpless at his mercy: the same plea might be offered, to cover a fraudulent debtor, or deprive a large majority of traders of legal protection. Nor was it a competent answer, that the policy of the colony had been of an opposite description: to stand on suffrage, was to stand in peril.