§ Mr. Huskisson moved, that the House resolve itself into a committee upon this bill.
§ Sir J. Mackintoshrose, and after alluding to the various changes that had taken place in the Colonial office, to which might be attributed a great portion of the delay which the measures proposed by the right hen. gentleman had met with, he said, that at that late hour of the night, and in the exhausted state in which he found himself, he should take care not to waste any part of that time and attention which the kindness of the House usually bestowed upon him, by unnecessary delay, or still more unnecessary apologies. Without further comment, therefore, he should proceed at once. The objects embraced in the motion of which he had given notice, were embodied in the following resolutions, which he should now read, as the foundation for those arguments with which he should afterwards trouble the House. The first resolution which he should propose was, "That it be an instruction to the committee to receive a clause for the immediate establishment of trial by jury in New South Wales and Van Dieman's Land (excepting the penal settlement for offenders there convicted), and for directing the governor and council of each colony respectively, to frame regulations for that purpose, respecting the number and qualifications of jurors, either in the whole colony, or in any districts which may seem to them to require modification." The second resolution was,—"That it be an instruction to the committee to receive a clause to provide for the election of one-third of the legislative councils of both the said colonies (till assemblies shall be called by his majesty), to be chosen for five years, by all persons enjoying a clear yearly income of 100l., who shall have been free inhabitants for three years, and 1457 to direct the governor and the present council to make such regulations as they think fit, respecting the time, place, and other circumstances of the election of such members."—Having stated the objects which he had in view, and which were contained in these resolutions, he might almost content himself without intruding upon the patience of the House; but feeling, as he did, a warm interest in the fate of those colonies, he hoped he might be excused if he trespassed a little upon their time. It appeared by a late census, that in New South Wales there were fifty-five thousand free Englishmen, all of whom would be eligible to act as jurors. He saw no reason why those colonies should differ from other colonies, and why the blessings of the British constitution should be withheld from them, while other parts of his majesty's foreign possessions enjoyed those blessings. Their condition as penal colonies was no reason why they should not possess the right of electing representatives, and the blessing of a trial by jury. The only way to wipe out the foul stain cast upon these colonies would be, to show their inhabitants that they were placed upon the same footing and enjoyed the same privileges as other parts of his majesty's possessions. Many persons had been deterred from settling in New South Wales from no other cause than that it was branded by the legislature as a receptacle for crime. The only way to introduce a reformatory system, if he might use the term, and to make those colonies one grand penitentiary, would be to afford to the inhabitants the means of relieving themselves from the stigma which had been cast upon them. The hon. and learned gentleman proceeded at some length to point out the advantages which would arise by the introduction into New South Wales of the two measures to which he had referred; namely, the right to elect representatives and the trial by jury. The right hon. gentleman opposite (Mr. Huskisson) had narrowed the ground upon which he was now presuming to legislate; and the only question between them appeared to be, whether the proposed measures should be adopted now or hereafter. He wished to begin the work of reformation by granting some of those privileges at once, which in time must all be conceded. The free settlers were all native Englishmen, who had most of them been jurors in their native coun- 1458 try. He was not introducing new measures amongst a new people. The great body of the settlers were already acquainted with the duties which, as jurors and electors, they would have to fulfil, and consequently the present time was that which should be seized upon, to afford them those advantages which they were entitled to receive. But, if those measures were delayed to an indefinite hereafter, the present proportion of British settlers would grow less and less, and a new race would spring up, who would neither understand nor be capable of appreciating the blessings of the British freemen. Was it wise to say, wait until this people shall number half a million, and then, ignorant as they would be of the benefits to be derived from the privilege of electing members to watch over their interests, and equally ignorant of the blessing of the trial by jury thrown suddenly amongst them those institutions of which they had previously known nothing, and the benefits of which they would be wholly incapable of appreciating? Was it consistent with policy to withhold those institutions from the colonists of New South Wales, and wait until they became too strong for subjection; when they might possibly demand that as a right which they would now look upon as a boon? If those institutions were delayed, a civil war, or the total loss of the colonies, must follow.—The hon. and learned gentleman then alluded to the feuds which existed in New South Wales between the "emancipationists," as they called themselves, and the non-emancipated. Now, nothing, he conceived, could have a greater tendency to soften down asperities, and blend men together, than when they were in the habit of acting together in different situations of society. From the result of his inquiries, he could not help wishing that he had not at first moved for the appointment of a select committee to investigate the subject now under discussion. Excepting Mr. Bigg, there was no authority against the introduction of those institutions: opposed to his evidence, there was the testimony of governor Hinton, and also that of the late governor-general Macquarric, who was justly called the father of the colony, and who, in his report to lord Bathurst, in 1825, stated, that there was a sufficient body of freemen in those colonies competent to perform the duties not only of jurors, but electors. It might be said that 1459 sir Thomas Brisbane, because he was devoted to the pursuits of science and philosophy, was not a competent witness upon such a question. It was true that queen Elizabeth said, that "Mr. Bacon," as she called him, was too much of a wit to make a good lawyer; but, however true the observation might be, generally speaking, it was about as just in the instance of the great Bacon, as it would be to say, that sir Thomas Brisbane was an incompetent witness upon a question like the present, because he had brought home a larger; share of knowledge upon other subjects than fell to the lot of most men. Chief justice Wilde, and Mr. Justice Forbes, had also given it as their opinion, that the trial by jury would work well in New South Wales; and they laughed with scorn at the idea, that this colony was not as ripe as any other to partake of the benefits of a free constitution.—Now, with respect to a representation, there was no doubt that if the inhabitants of New South Wales were represented in assembly, they would more cheerfully contribute towards taxation. Above all things let the benefits intended sooner or later, come in the shape of free gifts; else, by protracting them, a great part of the grace and favour which belonged to concession would be taken away. In an able anonymous essay upon Milton, the supposition that a nation could not be ripe for liberty, was very ingeniously opposed. The author said, it reminded him of the story of the man, who sagaciously resolved never to go into the water until he had learned to swim. He, however, although struck with the whimsical ingenuity of the illustration, still maintained a different opinion. Desiring to teach his son the useful exercise of swimming, he would put him at first into shallow water, and give him an opportunity of acquiring the art by degrees. In the same manner would he impart constitutional privileges to the colony. It would be judicious policy to initiate them into the system of perfect civil liberty as early as possible, in order to prevent hereafter such a shock to their feelings and habitual opinions, as its sudden introduction must necessarily produce.
§ On the first resolution being put,
§ Mr. Huskissonsaid, he would offer a few observations in support of the measure which had been originally proposed. It had not been framed without a careful investigation into the circumstances of the 1460 colony, and the right hon. gentleman had done him but justice in saying, that he had kept in mind the importance of not forming any regulation which would prevent the gradual introduction into that country of all the institutions which were so beneficial in this. He wished to see the population of New South Wales in the perfect enjoyment of the advantages resulting from trial by jury, and an elective assembly, on the same principle as that which was so successful in its operation in England. But the question was, whether they could at present be so introduced, under all the peculiar circumstances now attendant on the state of society in that colony? He thought not. There was, in fact, little difference between the proposition of the right hon. gentleman and his own. The one wished for the immediate introduction of trial by jury, giving the governor a qualifying power of suspending it in any local district, according to his discretion. The other proposed, that it should be suspended for the present, but gave a power to the governor gradually to extend the system, as circumstances might admit of it. He also intended to move an amendment, "that in all civil cases the supreme court should have a discretionary power to grant trial by jury, if the parties were not averse to it." If the right hon. member had made inquiry into the state of the population, he would have found it quite impossible practically to introduce, at present, the forms and proceedings appertaining to jury trial, and constitutional elections for a legislative assembly. He had talked of the manner in which he would gradually accustom an innocent boy of fourteen years, brought up in a monastery, to the business of life and the usages of the world. For his part, he could not perceive any similarity whatever between such a boy and the population of New South Wales, two-thirds of which had been sent forth, not from a monastery, but from Newgate, condemned to fourteen years of punishment for their agressions against the civil and moral interests of their fellow subjects. The average of the inhabitants was one man to 20,000 acres; and society, he need scarcely add, was on a footing quite different from that of this country. There there were feuds and jealousies arising from the relative situation of freed men and masters. They could never be brought to intermix in social life, and the one class would be too often dis- 1461 posed, when an opportunity should present itself, to avenge former injuries and slights, which they might have received from the other. Would an Englishman, who went out to the country possessed of wealth, character and education, choose to have his life and liberty exposed to the decision of a jury, nine or ten of which were convicted criminals? He was satisfied, from the official inquiry which he had instituted, that nothing would so much tend to deter capital, and respectable members of society from finding their way to this colony as the establishment of trial by jury, in its existing condition. The species of trial now in operation there appeared to give the completest satisfaction, whatever might be its defects. There were no complaints against the administration of the law, either on the part of the chief justice, or of the population. He had no doubt but any man would prefer being tried by seven officers of honour and reputation, to risking his fate on the verdict of such persons as he had described. As the duration of the bill was to be but seven years, he gave sufficient earnest of his wish not to interfere with the future introduction of all the institutions which this country enjoyed. He was far from desirous to withhold from the colony any of the benefits to which it should be entitled. With respect to the election of a legislative council, he wished the right hon. gentleman to observe, that the present bill went a step towards imparting the privilege.—The existing government was neither arbitrary nor despotic, for there was a free press, which had a due influence and control over public affairs; all trials were held openly, and the population, on all occasions, manifested a jealousy with respect to their rights. Such being the present civil condition of the colony, he could not believe that all the constitutional customs of this country would be there forgotten in a few years, as the right hon. gentleman apprehended. The glorious institutions of England would surely not appear alien to their habits and feelings, when new settlers of wealth, intelligence, and reputation were every day removing thither, and thereby causing a constant infusion of British principles amongst the population.—It seemed to him, that the proposition now suggested would place the governor in a most invidious situation, as it would have him, at fifteen thousand miles distance, to suspend a popular privilege, which the par- 1462 liament of the mother country had been pleased to confer. For these reasons he should persevere in recommending the original measures to the House, with a clause empowering the governor to extend trial by jury in certain cases, and also requiring, that on the enactment of any new statute, he should make a declaration of the extent to which the British law obtained in the colony. The right hon. gentleman had expressed himself desirous of having a select committee appointed on this subject. He wished, however, to remind him, that he had also taken an interest in the state of Canada, and obtained a committee for the purpose of inquiry, That committee, notwithstanding, had not been favoured with either the counsel of the right hon. Gentleman, or the light of his countenance, as far as he could understand, from that hour to this [laughter].
Mr. D. Gilbertsaid, he had always felt a great interest in the fate of New South Wales, which he could not avoid thinking was destined to spread the British language to as wide as extent in the east, as our other colonies had carried it in the west. He was, therefore, much delighted to hear from the right hon. Gentleman who spoke last, that so much of the constitutional doctrine of the mother country ought to be infused into the government of a colony, which was rapidly rising to power and importance. He felt satisfied, from the statement of the right hon. gentleman, that in a country, where so large a proportion of the population were slaves, trial by jury could not be yet introduced with safety. He thought, however, that there might be a slight mixture of representation introduced. For that purpose he would give the new settlers a vote for the election of a representative; and he thought that by these means the colonists might gradually acquire the advantage of a representative government.
§ Mr. Humewas sorry that the inhabitants of this colony had been pronounced unworthy to be admitted to the privileges of the British constitution. It was said, that trial by jury should not be introduced suddenly into New South Wales. In proof of the fallacy of that position, he would instance the cases of Florida and Louisiana, into which trial by jury was introduced one week after the colonies were ceded to the United States, and its introduction rendered the inhabitants good subjects and good members of society. He 1463 regretted that this colony should be kept for seven years more in a state of pupilage; and that it would not be placed at once in a situation to enjoy those privileges to which it was fairly entitled.
Mr. Warburtonintimated, that when the House went into committee he should propose to leave out the clause giving suitors in the courts of justice in New South Wales, the power of appeal to the Privy Council.
Mr. Stuart Wortleyeulogised the bill, which he considered admirably adapted to carry into effect the objects it had it view. New South Wales was placed in a different situation from that of other colonies; the continual influx of a certain class of persons into that colony opposed a bar to the sudden introduction of legislative improvements, and created and maintained castes in society which were prejudicial to the interests of the colony
§ Sir M. W. Ridleysaid, he could state, upon the authority of persons well acquainted with New South Wales, that it would be impossible to introduce either trial by jury or a legislative assembly there, under the present circumstances of the colony. He would suggest, however, that the official appointments should be published in the London Gazette, that the public might have an opportunity of judging of the character of the individuals selected to fill such situation.
§ Mr. H. Twisssaid, that the governor of the colony had the power of extending to the colonists the right of trial by jury, if he should deem it expedient.
§ Sir J. Mackintoshhere intimated that he should not press his amendments—They were accordingly put and negatived.