NEW SOUTH WALES BILL. (Hansard, 18 April 1828)

§ Sir J. Mackintosh
said, that at a future day he should move two instructions to the committee. The first would be, that the committee should introduce a clause into the bill, extending the trial by jury to criminal and civil cases in the Colony; and the second, that a clause should be received, providing the election of a cer- 1565 tain number, say one third, of the members of the Legislative Council, by individuals whose incomes from real or personal property should not be less than 50l. a-year. There were certain points in the bill which he disliked. The trial by jury, for instance, had existed, for the purpose of quarter sessions, before this bill was introduced; but now it was to be abandoned. No mention was made either of the laws relative to insolvency or bankruptcy in the colony, as to which subjects he thought many new regulations might with advantage be made. Upon the whole, he considered the bill as retrograding rather from the spirit of liberality, than taking any step in advance of it.

Mr. N. Calvert
doubted whether the colony was yet in a state to profit by those institutions which the learned member proposed, though there could be no doubt that, as soon as it was in such a state, it ought to receive them.

§ Mr. Huskisson
said, that the regulations with respect to bankruptcy and insolvency were omitted in the bill, because he thought the colonial legislature better calculated to regulate those subjects than the House of Commons. His great object had been to meddle as little with details as possible, which were always much better arranged upon the spot. As to the trial by jury, the system had been tried in quarter sessions, and, from the peculiar state of society in that country, found altogether inapplicable. The time was not yet come in which the machinery of that valuable institution could be extended to New South Wales with effect; and to attempt to introduce it would only be to destroy a system which was suited to circumstances, and practically worked well already. No person could be better inclined than he was to give the colony the advantage of every institution which the mother-country possessed; but by attempting to go too fast at first, the progress of the good work would be retarded.

§ Mr. Bright
complained that the bill threw too much power into the hands of the Crown and of the privy council, and needlessly limited the other branches of the legislature in their power of interference. There were certain provisions, too, in it, to which he particularly objected; and amongst others, to that which took away the present Court of Appeal, and enacted that all appeals should be direct to the privy council in England. He particularly 1566 objected to this arrangement, and thought that, if it was to be insisted upon, some change ought to be made in the constitution of the privy council, which was certainly as badly constituted for the purposes of a Court of Appeal, as it was possible to imagine any tribunal to be. He disliked the bill altogether, and would be better pleased that it should be passed for a limited period than be made perpetual.

§ Mr. Huskisson
said, that the present measure would not take from the House of Commons the power of future legislation on the subject. As to the intermediate appeal, at the present moment, there was a supreme court of Law in the colony, consisting of barristers of a certain standing, appointed for the purpose of administering the English law. From their decision there was an appeal to the military governor, who could not be supposed to be well acquainted with the principles of law. If his decision confirmed the judgment of the court it would be unnecessary: but if he reversed it, no person would consider that full justice was done, and therefore that absurd practice was to be put an end to, and the appeal would lie in the usual way of appeals from the colonies to this country.

§ Mr. Spring Rice
agreed that it would be desirable to make the measure a temporary one. The colony of New South Wales must be considered in a double light: first, as a penal colony, and then as a colony of increasing wealth and importance, and which ought to be dealt with as a society of free, unpolluted men, of course not subject to that peculiar legislation which befitted a penal colony, Such were the present advantages of the colony, that he had seen many letters from, persons, who had been transported thither, inviting their friends in this country to join them. It is evident that the time must come when New South Wales could no longer be considered as a penal colony, and, therefore, when the whole course of government and legislation with respect to it, must undergo a change. It was on that account that he wished the measure to be a temporary one, in order that a more enlarged and liberal course might in future be taken.

Colonel Davies
said, it was a mockery to hold out that colony as a place of punishment, seeing that the convicts wrote to their friends to leave no means untried, 1567 even to the commission of crime, to get themselves sent out thither. What he would suggest would be, that they should send out free labourers to cultivate it. So great was the desire to obtain those free labourers, that an agent of the Agricultural Society had offered to take out five thousand families free of expense, provided proper grants of lands were allotted.

Mr. Wilmot Horton
said, that nothing could be more erroneous than the belief that the present state of the convicts in New South Wales was such that they no longer considered it a place of punishment. The very reverse was the fact. So far were the convicts from wishing to induce their friends in this country to qualify themselves for being sent out, by the commission of crime, that their letters were filled with complaints of their altered condition, and of the severity of their treatment. Their condition might have been different before the establishment of the internal secondary punishment.

Mr. Marryat
expressed his satisfaction at finding that the inhabitants of New South Wales were, in the estimation of government, so improved in morals and good conduct as to be deemed worthy of being intrusted with such political privileges as were proposed in the bill. He trusted the new council would restrain those acts of arbitrary power which had too generally characterized the conduct of the governors of our distant colonies; and he hoped that this measure was the commencement of a new and improved system of colonial legislation. He would, however, call the attention of the House to the state of our other foreign possessions, and put in a claim to their being admitted to similar political privileges. The colony of Trinidad had been specially reserved as a field of experimental legislation, and though it certainly was intended to apply merely to the point of the melioration of the slave population, yet that unfortunate colony had been subjected to every possible species of experiment. English governors and judges had been sent out to execute and administer Spanish laws without any previous knowledge of the Spanish language. Orders in council had been issued to adapt English laws to Spanish jurisprudence, and such confusion existed, that on the examination of the two judges before the commissioners of legal inquiry, they differed toto cœlo, as to what was the existing law 1568 of the colony, there being no collection of these orders open to the public. The governor, moreover, by way of experiment, was invested with powers most extraordinary and unconstitutional. Besides the executive power representing the king, he engrossed the legislative power by his control of the council; and being president of the Cabildo, he levied taxes at will; and, as if these immense privileges were insufficient, he was invested with the high judicial offices of chief judge of many of the courts, and judge of appeal in all. Vested with such unlimited powers, it was not in the nature of man not to abuse them; and, without any personal reflection upon sir Ralph Woodford, the colony under his administration had suffered great oppression; the taxes had been quintupled, new offices had been created at his will and pleasure, for the support of which additional exactions had been imposed. The taxes in that colony amounted to 150,000l. currency, while in the neighbouring island of Grenada they did not exceed 35,000l. currency.—The hon. member then referred to the proceedings respecting the Crown lands, in the report of the commissioners. It appeared there, that he, by a simple proclamation, declared all the titles to the estates in the colony to be had or defective, called upon the proprietors to exhibit their title-deeds to the inspection of the Attorney-general for the colony, and directed proceedings to be instituted in the court over which he himself presided as judge, to decide upon their validity. He decreed such lands as were judged to be defective in title liable to confiscation to the Crown, and subjected the proprietors to the payment of heavy fines and quit-rents. In consequence, however, of representations to the government by merchants and planters at home, who did not relish this experiment upon their rights and properties, this proclamation was suspended, and finally annulled. The report of the commissioners completely exposed the conduct of the governor in this proceeding; but, strange to say, it did not recommend any compensation being granted to those proprietors, who, like good and loyal subjects, paid the fines imposed upon them, while those who contumaciously resisted had come off scot free. The commissioners seemed to have felt a professional horror at refunding a fee, however illegally and unjustly exacted. By some informality in the com- 1569 mission, they were precluded from inquiring into the complaints of the English occupants; many of whose grievances were much greater than those of the Spanish settlers. The foreign colonies were placed in a peculiar situation; they were not represented in parliament, and had yet no legislature of their own. The office of colonial agent had become a sinecure, by the appointment resting with government and not with the colonists: they had no constitutional means of stating their grievances but through their governors to the Colonial office. The governor, however, had influence enough to stifle any such representation in the colony, while merchants and others residing at home were deterred from making remonstrances, which were transmitted abroad by the Colonial office, from the ill-will and vexatious persecutions they led to on the part of the governor and his adherents, towards their connexions and interests there. The present Secretary for the Colonies would signalize his administration by putting an end to the present, system. In the case of Trinidad, a great deal was not asked for; any change almost would be for the better. While the inhabitants were mostly Spanish, some plea existed for retaining Spanish laws; now they were chiefly British; give them British laws, and the benefits of a British constitution; let the colony in future be a field for improvement, and cease to be a field of experiment. There was a Spanish proverb that said, "to the thirsty any thing is wine." Surely it was not too much to ask from a British legislature, civil liberty and personal protection, and habeas corpus, and at least to do away with the horrid possibility of imprisonment for life, which the want of a habeas corpus now vested in the power of the governor.