HC Deb 07 July 1823 vol 9 cc1447-52

On the order of the day for further considering the report of this bill,

Mr. Wilmot Horton

said, that this was a bill which related to New South Wales, most especially in the light of a British colony; whereas, in its previous measures with respect to this settlement, government had always treated it rather as the destination of certain individuals, who were sentenced on account of particular offences to be transported thither from the mother country. In the commissioner's report that had been lately printed, three places had been particularly designated as proper for the foundation of a new settlement, to be so ordered and governed as to combine the two great and, sometimes, incompatible advantages, of effectuating the objects of the law by the imposition of punishment, and of rendering the services of the individuals so punished useful to themselves and to the state. Of these three places, one in particular, which had already had a partial trial—he meant Norfolk, Island, situated to the north of the colony—was singularly well calculated, from the beauty of its climate, and the fertility of its soil, for the esta- blishment of what he might call a penitentiary on a great scale. The convicts might be made to cultivate the land, and to raise, as well as manufacture, produce for their subsistence and clothing. It had been truly stated, that, in too many instances, transportation was looked to by the guilty offender, not so much, as a visitation for his crimes, as a better condition and a more fortunate state of existence; but the necessity of labour, while it answered all the useful purposes, for which employment was applicable, and in which it could be beneficial to the community, was well calculated to remove so mischievous a delusion; and at the same time, in offering to the convict neither the leisure nor the temptations of vicious indolence, to effect in his habits and character, that reform which ought to be the ultimate object of all punishments. Another object contemplated by the bill was, to secure the employment of convict labour (as we understood the hon. gentleman) in detached parts of the colony, on a more extended and general plan than the present system of locations admitted of. The house would easily perceive, that at present, in proportion to the influx of agricultural settlers into the colony, so was the approximation of convicts to convicts; and the manifest consequence of this was, as had been pointed out by the commissioner, that these men, being brought once more into contact with each other, relapsed into the commission of those vices or offences which it ought to be the essential object of the colonial government to prevent by a judicious system of separation. It would be accordingly proposed, that convict labourers might be assigned to particular services, in small numbers, in distant and detached parts of the colony. As to the higher class of convicts, who had been transported for crimes from which their misused talents ought to have preserved them, much difficulty had naturally been felt as to the degree and mode of punishment that they ought to experience; and though it might not seem advisable to require of them agricultural or manual labour, it by no means followed that they ought to be exempted from all infliction of punishment. Whether a suggestion which had been thrown out in the report, that it might be expedient to employ them as schoolmasters, for the children of the convicts, was one which could beneficially or conveniently be acted upon, it would be for the government to consider. He apprehended that some objection would be made to the fourth clause, which provided that all offences should be tried before judges. Some hon. members, he understood, wished that the trial by jury should be substituted for the trial by judges. He, however, was of opinion, that at present it would be unwise to select juries from the peculiar population of New South Wales. It was, however, provided by the bill, that in cases where both parties desired it, trial by jury might be allowed. He concluded by moving, that the bill be recommitted.

Mr. Bright

said, that the trial by jury had been always justly considered as one of the proudest marks of freedom. With respect to the colony in question, Mr. Justice Bent had expressly and forcibly recommended that form of trial. It was a great mistake to suppose that the population of New South Wales was not prepared for that form of trial. The colony of New South Wales was not a colony of convicts. There were to be found there many free settlers who had voluntarily embarked their character and their capital; and who, on every principle of justice and policy, were entitled, as free Englishmen, to all the privileges and rights of the constitution. With respect to convicts, many convicts resided in New South Wales, having satisfied the severe penalties of the law, who were at this moment most industrious and valuable members of society, and who were deserving the rights of British subjects. He thought, therefore, that upon every fair view of the situation of the colony, and upon principles of public policy, the trial by jury ought not to be withheld. He thought that the bill professed to settle a variety of objects, too important to be so disposed of at the termination of a session. The trial by jury, as contemplated, was a farce; the Insolvent Court was a system of monstrous absurdity and injustice; and as for the Court of Requests, and the Court of Foreign Attachments, if any necessity for such tribunals existed, their formation might be deferred for another year. The bill was drawn with such an utter contempt of every principle of British jurisprudence, that he doubted whether all the lawyers in the house would ever be able to get it into shape. As for the council given to the colony, what did it amount to? The members were appointed by the Crown; they might be removed by the Crown; they had not the power of initiating any measure; and a law proposed by the governor might, in some cases, be passed without their consent. He could not help believing, that the bill, if it passed in its present state, would be a mischief to the colony rather than an advantage; and he should, therefore, move, "that the report be further considered this day six months."

Mr. Bennet

said, he took a different view of the bill from that which had been taken by the hon. member for Bristol. He thought that the colony was not yet fit for such an institution as the trial by jury. The number of persons who could be found in New South Wales fit to sit upon a jury was small indeed. The possession of wealth in that country by no means indicated (of necessity) respectability of character; for many of the most opulent and extensive land-holders had acquired their property, even in the colony, by the most dishonest and disgraceful means. According to the report of Mr. Biggs, out of 4,376 remitted convicts in New South Wales, 369 only were living in any degree of respectability upon their means. Even where there were men of great property, they had often acquired it by acts of the grossest swindling. A person who had been transported for an act of robbery on a bank on a large scale had carried with him the property, and was living opulently in the colony. A person who was living with this individual as a servant, had written home, that it was a happy night in which he had committed the robbery for which he was sent there, as he was servant to "Squire Love," who was a gentleman of great opulence and liberality. With such a population, the institution of jury-trial could not turn to good. He remembered that at Turin, he was informed, that though Bonaparte had done a vast deal of good, he had introduced one law, winch had spread terror throughout the country, namely, the examination of witnesses vivâ voce, in presence of the accused. The consequence of this was, that witnesses were murdered. This excellent law was thus pernicious, for want of accompanying protection; and so it was, that most enactments, however excellent in other situations, would, when unsuited to the state of society, produce the most calamitous results. The hon. member then detailed circumstances, to prove the general corruption of morals in New South Wales, and particularly mentioned the small number of marriages in proportion to the population, from the general aversion of the youth, who were accustomed to the constant exposure of females in the most degraded character. Under the actual state of things, he thought the bill necessary, and, with a few amendments, he should give it his support.

Sir J. Mackintosh

said, that the bill bestowed none of the blessings of the British constitution on the inhabitants of New South Wales, with the exception of that simple, summary, cheap, and expeditious system of justice of which they had recently heard so much—the Court of Chancery. The policy which England had adopted towards her colonies had been various at various times. The first and best had been that under which Englishmen carried, wherever they went, the institutions of their native land, and under which colonies, instead of subaltern despotisms, became societies of freemen. All the arguments now used against the extension of trial by jury to New South Wales, might have been applied to the extension of trial by jury to the colony of Virginia at the time of the Revolution. There were many convicts, many slaves, and few persons of considerable property. Yet we saw the beneficial effects of free institutions in Virginia. The next system pursued was, the introduction of absolute power into the colonies, of which ah unhappy example had been given in Canada. Each of these systems was consistent in itself—one in good, the other in evil; but the present experiment wavered between both. He deprecated most strongly the impolicy and injustice of postponing those clauses of the bill, the object of which was to confirm the pardons granted by the governor of the colony, on the ground of the necessity of revising those pardons. The object of those clauses was, to secure the individuals, to whom the pardons were granted, in their persons and possessions, and it was an act of the greatest injustice to postpone the consideration of them to another session.

Mr. Peel

said, that it was impossible that the details of the bill could have been fully considered by ministers, in consequence of the great press of other important business. With respect to the clauses which related to rendering the pardons granted by the governor valid, he would admit the justice of making them so, but for the present would limit the act to persons still in New South Wales.

Mr. Denman

insisted upon the justice of realizing the hopes held out to all those to whom the governor had granted pardons. He contended against the policy of appointing officers in the army and navy to decide questions, on which property, liberty, and even life might depend. He would give the colonists the advantage of jury-trial as in England. By placing such confidence in the people there, they would be excited to a much greater respect for themselves and the law; than could be looked for while they were deemed unworthy to be intrusted with so valuable a privilege.

The House then went into a committee on the bill. Several amendments were proposed. To that which allowed Officers of the Army and Navy to judge cases, Sir J. Mackintosh objected, and proposed the addition of the words "a Jury of twelve men duly qualified to serve." After a few words from Mr. W. Horton, in opposition to the Amendment, upon the ground that, according to the opinion of all the Judges who had been in that Colony, it would be impolitic; and from Mr. H. Gurney, Mr. Wilberforce, Mr. D. Gilbert and Mr. Bright, in support of it, the House divided: for the Amendment 30—Against it 41.

List of the Minority.
Attwood, M. Monck, J. B.
Bright, H. Maberly, J.
Bailie, J. Money, W. G.
Bennet, hon. G. Marjoribanks, S.
Coffin, sir I. Palmer, C. F.
Denman, T. Robinson, sir G.
Forbes, C. Ricardo, D.
Fremantle, W. H. Rice, T. S.
Gurney, Hudson Smith, R.
Gilbert, D. Smith, J.
Heber, R. Scarlett, J.
Hume, J. Taylor, M. A.
Hutchinson, C. Tremayne, J. H.
Hart, G. Wilberforce, W.
Hobhouse, J. C. TELLER.
Lester, B. Mackintosh, sir J.