§ Sir J. Mackintoshsaid, he rose to present a petition from Mr. Eagar, a merchant and inhabitant of the settlement of New South Wales against two provisions in the bill then in its passage through the House, for the better government of that colony. The first provision against which the petitioner prayed was that which deprived an English subject of his right; to the trial by a by the substitution of a court martial composed of a prescribed number of army and navy officers, selected by the govern or and by a strange perversion of language designated a jury in the present bill. The se- 1401 cond clause to which the petitioner claimed the attention of the House, was that which gave to the governor of that colony the extraordinary power, on the affidavit of an unknown informant, to send a British subject from his residence in that settlement over three quarters of the globe, to England without trial, or any defence allowed on the part of the subject. Against those two provisions in the bill, the petitioner prayed to be heard by counsel at the bar of that House. He could not, under the circumstances, anticipate any objection to so reasonable a request. If it should be communicated to him that there would be no objection, he should present the Petition without further comment; but if that assurance was not given, it would be his duty to make some further observations on the character and tendency of these two very extraordinary provisions.
§ Sir James Mackintoshsaid, that after the intimation which he had received from the under secretary for the colonies, it became necessary to advert to the effect of these provisions on a numerous body of British subjects, whose interests were undefended in that House, and whose present claims and future prospects were seriously affected by them. The colony of New South Wales had ceased to be a mere receptacle for convicts. It had latterly grown into considerable importance, and was rich in all the capacities which promised eventually a high destination. Its inhabitants were composed of a greater number of European origin, than was to be found in the whole of our Asiatic settlements. Independently of the 20,000 convicts whose situation was not affected by the bill, there were the free settlers and the freedmen. The first class amounted to 4,000, the second to 7,000. There, was, besides, that numerous class, the progeny of convicts, born in the colony—persons whose innocence was unquestioned, and whose claims to the protection of British law were not vitiated by any misconduct of their parents. It was no argument to say, that heretofore these rights were overlooked in the administration of the colony; The parliament were now taking the first step in legislating for its interests, and it therefore was the more incumbent on that House not to entwine around such a principle the shoots of tyranny and arbitrary power. On what 1402 ground could it be contended that the 4000 English settlers were to be outlawed? And to similar rights were the emancipated convicts or freedmen, and the population born in the colony, entitled. No doubt it would be said, by those who supported those strange provisions, that we should recollect we were providing a system for a population, a great proportion of which had been convicts. Now, that very consideration was decisive with him not to grant arbitrary and unjustifiable powers to a governor. If he were to choose a situation where those powers were the most likely to be cruelly and wantonly exercised—where the danger and mischief resulting was most likely to be aggravated—it was precisely with a population so constituted. Let it not be pretended, that it was not the intention of this government to give trial by jury to New South Wales. The contrary expectation had been held out by governor Hunter, and after him by governors Bligh and Macquarrie. Neither could it be pretended that the settlement could not furnish a sufficient number of qualified persons from among whom juries could be formed. There were 3,000 landholders settled there, having between 50 and 60 acres each. The new regulation went to compose the juries of a majority of naval and military officers, from those who might happen to be on the station. It was plain that there might occur a deficiency of members, on account of the regulations of the service, or the particular stations of the ships, while no such circumstance could be dreaded with respect to the landholders. The other clause, which gave to the governor the power on the oath of an unknown informant, to transport a man from his family and business to Great Britain, on the mere charge of conspiracy or treason, was calculated to excite the abhorrence of every lover of the British constitution. To place the liberty and comforts of thousands of English subjects at the will of a governor, whose fatuity or whose malice might be worked upon by concealed accusations, was one of the most revolting propositions ever made; and if that House sanctioned it, it would be unworthy of the people whom it represented—a people whose glory, and whose principal source of national greatness, sprung from the love and the enjoyment of popular securities. He condemned in strong terms the illiberal system of Government, which inflicted on 1403 some classes unnecessary degradation and ignominy, and which, by encouraging the insolence of some orders of society, was likely to excite the vengeance of the majority of the population. He thought that invidious distinctions ought to be abolished, and the people generally admitted to the benefits of the British constitution, and above all to the enjoyment of the invaluable privilege of the trial by jury, by which means the interests of civilization would be most effectually promoted. He would now move that the petition be brought up and read, and he would afterwards move that the petitioner be heard by his counsel, before the committee on the said bill."
Mr. Wilmot Hortoncould have wished that the hon. gentleman had reserved his observations for the regular stage of discussing the bill, instead of incidentally arguing the merits of the question upon presenting a petition. The hon. gentleman must excuse him if he declined to follow so inconvenient a precedent, or to discuss with him now the propriety of practically applying the theory of the British constitution, and the institution of trial by to a state of colonial society so essentially different from that of the parent country. As to the bill, he considered it necessary for the purpose of giving effect to the report of the parliamentary commission, and did not see that there was any ground for hearing the petitioner by his counsel.
§ Mr. Brightsaid, that the petition, complaining as it did of the non-introduction of the trial by jury into a British colony was most worthy of the consideration of that House. He regarded the trial by jury as quite necessary for the freedom and civilization of the colony. The real question in this case was, whether the colony was to remain to them a useful auxiliary, or become a source of inquietude and danger. The principle of the colonial government ought to be to amalgamate all the classes of society in the colony; and what better mode of doing so could be devised, than securing for them that invaluable privilege which brought the rich end the poor into an honourable contact.
Mr. Marryatthought it important that time should be allowed for ascertaining whether this bill was as perfect as it ought to be. As to the benefit of the introduction of the trial by jury, he looked on it as doubtful, in the present state of the colony. He was of opinion that several 1404 of the regulations in that government were harsh, and injurious to the principles of civilization; and he therefore thought the petitioner ought to be heard by his counsel.
Mr. Forbeswas of opinion, that some clauses in the bill were objectionable. He defended the administration of governor Macquarrie, and objected to the report of commissioner Bigg, on which the bill was founded, and on which no confidence could be placed. He thought the instructions to that commissioner ought to be laid on the table for the purpose of ascertaining how far he had complied with or exceeded his instructions. On the whole, he thought more time ought to be allowed for the consideration of the bill.
§ Mr. R. Colbornevindicated the conduct and character of commissioner Bigg, than whom, he said, a more honourable man did not exist. He could assure the House he had not been appointed to that situation by earl Bathurst on account of personal acquaintance, but because he had filled with credit an official situation in the island of Trinidad.
§ The petition was ordered to lie on the table.
§ Sir J. Mackintosh, in rising to move that the petitioner be heard by his counsel, called the attention of the House to the important fact, that if the bill passed with the clauses which it at present contained, 8000 freemen were liable to be transported without trial, at the mere will of the governor. If the House should, after this statement, refuse to hear the counsel of persons who had so deep an interest in the measure, let the fault lie with them. For his own part, he would enter a practical protest against such a proceeding, and would call for a division, even though he should stand alone.
Mr. Wilmot Hortonsaid, it was in tended, in the Committee, to introduce a clause by which the operation of the bill would be so limited, that instead of extending to 8,000 individuals, it would scarcely extend to as many hundreds. In fact, it would operate only on those who had just completed the term of their transportation.
§ Mr. Humeobserved, that according to the hon. gentleman's own shewing, the bill would deny to any person who had completed his term of punishment, and who ought therefore to return to the rights of an Englishman, the enjoyment of those rights.
Mr. Marryatremarked, that the question for the House to determine was, whether they would see with their own eyes or with the eyes of the executive government? He had great confidence in the disposition of the colonial department to abstain from any act of injustice, but he could see no reason for objecting to hear counsel. If the argument in support of the petition should prove invalid, it would have no effect on the House; if, on the contrary, it should prove valid, it ought to induce them to pause before they acquiesced in the measure.
§ The House divided: For the motion 47. Against it, 60.