HC Deb 28 June 1832 vol 13 cc1089-115
Mr. Henry Lytton Bulwer

presented the Petition of the Free Inhabitants of New South Wales, for the introduction into that colony of Trial by Jury, and for a Representative Assembly.

Ordered to be printed.

The hon. Member proceeded to bring under the notice of the House a Motion on the subject, and said, notwithstanding the support which he received from the petition which he had just laid upon the Table, he confessed that he felt considerable reluctance in first undertaking to bring forward the present Motion. It was so natural for hon. Gentlemen to imagine, that a young man would enter the House with all that fervour and eagerness of imagination, which would at once induce him to grasp at every theory that proffered freedom, without considering the relative nature of that word, its varying and doubtful signification—dependant on time—on circumstances—on the local and social position of the people to whom it might be applied; he was so fully sensible that a youthful inexperience might naturally and fairly be identified with a kind of visionary enthusiasm, that he felt anxious, a little for his own sake, but more particularly for the sake of the colonists, that their case should be in the hands of one possessing a longer standing in the House, and a more established character. But as he went further into the case, and he had spared no pains to do so, he felt so strengthened at every step by practical and important facts, by sound and indisputable authority, that all his hesitation ceased, feeling perfectly confident that, if the House would but indulge him with some portion of its attention, he should be able to convince it, that there never was a request made to it, founded on more legitimate ground, supported by more solid and sober argument, than that of the New South Wales petitioners. He stopped for a moment to notice a prejudice which existed to a limited, but still to a certain extent, in respect to the colony in question. Having first been occupied solely by a few convicts, the idea arising from former associations was almost involuntarily present to the minds of many when they heard it spoken of. A name was frequently of much importance; and, notwithstanding the many attempts which had been made by the colonists themselves to cover their former history under the various and somewhat magnificent appellations of New South Wales, Australia, and Australasia, the more homely name of Botany still stuck to them, and to it was attached the notion of a small penal settlement, exclusively inhabited by thieves and pickpockets. In order at once to remove this prejudice—in order to convince the House that the colony of New South Wales was fairly worthy of their consideration, as well as fully justified in its present petition, he would mention a few statistical details, to which he earnestly intreated hon. Gentlemen's attention:—There were grown in New South Wales, hemp, flax, tobacco, and sugar. Its principal exports were, timber, wool, and whale-oil; more particularly the two latter. Of wool, then, there were exported in 1822, 172,880lbs.; and in 1829, 1,005,883lbs; being six times as much as in the former period. So in the whale fishery; in 1825 it employed three vessels; and in 1831 it employed twenty-five vessels; having increased in six years to eight times the number.

The Imports in 1828 were £570,000
And in 1829 601,000
Increase £31,000
The Exports in 1828 were 90,050
And in 1829 161,716
£71,666
An increase of more than one-half. The number of ships entering Port Jackson alone in 1829, were 161, of 37,342 tons burden. The Revenue up to the 1st of January, 1829, as given in the Appendix to the Report on Australian Colonies, was 102,577l. 14s. 2¾3d.
£ s. d.
Balance in Treasury 11,216 8 3¾
Fixed Revenue 82,456 1 6¾
Incidental ditto 8,905 4 4½
£102,577 14 2¾
Of which above 80,000l. was taxation. In regard to the population, there seemed a most singular uncertainty. According to the returns of 1828, the amount was 36,598. Out of this population, 15,666 were convicts; leaving 20,930 free inhabitants. But by referring to the population returns of preceding years, it was found that in 1824, the population was 33,595; so that the whole population had only increased by about 3,000 in the five years. Now the population in those five years had, according to our lists of the persons transported, been increased by convicts alone, 10,005. To make, therefore, the census of 1828 correct, the free inhabitants must have decreased in these five years by about 7,000, a proposition perfectly absurd. In the year 1828, Mr. Huskisson stated the total population to be 49,000; it could not have suddenly decreased between the return and this assertion by 13,000. Take, then, this calculation of Mr. Huskisson as correct, since, in regard to the number of convicts stated, namely, 15,666, there could not be any error, the free population would then have amounted to 33,334. The colonists themselves stated it much higher. Instead, then, of this colony being an insignificant and guilty spot, without wealth, capability, or importance, and inhabited only by a few outcasts of society, it possessed vast and daily increasing resources; it contained a large population of free Englishmen; the products of every country in the world, within the temperate and torrid zone, might be cultivated there; the stream of our stifled and dammed-up state of civilization might be profitably directed thither, whilst with these real and immediate advantages, was connected the magnificent idea, that through this colony we possessed the means of spreading the British language, and for a while the British empire, to as wide an extent to the East, as our colonies had carried it to the West. But it was not only on account of these circumstances, interesting as they were, that he had come forward as the advocate of the colonists of New South Wales. Stories had reached this country of the most atrocious acts of injustice and misrule. They had heard of persons illegally transported, who had been solemnly acquitted by a Court of Justice. Tales, however monstrous they might appear, of the application of the torture, had reached our ears. It would be unjust to believe them on ex parte evidence; but when he heard them talked of in society, mentioned in that House, promulgated everywhere by public rumour, he did feel the deepest disgust and abhorrence, not that any person should have committed such misdeeds, for he could not as yet believe that they had been committed, but that any person within the limits of the British dominions should have possessed a power which could render it possible for him to be accused of having committed them. Wherever extraordinary power was given, an extraordinary temptation would exist to misconduct; and no such power, therefore, ought ever to be given, except where there was to the full as strong a proof of its necessity, as there was a probability of its abuse. Now, according to the present system, the governor of New South Wales had the power of levying taxes on the importation of all goods—of disposing of the whole revenue of the colony; the distribution of convict labour, so important in such a colony, was subject to his decision; he could accord a pardon for all offences; he had assumed the right of suspending all public functionaries from their employments; he could actually enforce laws which the Judges might declare repugnant to the laws of England, and dispose of places to more than the amount of 20,000l. a year. The only control to this authority—if control it could be called—was a Council sitting with closed doors, and consisting of fifteen members, eight of whom sat ex officio, while seven were named by the Government here, according to the recommendation of the Governor in the colony. With this extraordinary authority was coupled an almost equally extraordinary facility for abusing it with impunity. If any free colonist was anxious to petition the Government at home, he had to send his petition through the Governor, who subjoined his answer and defence, which the petitioner had no opportunity of seeing. Now, when hon. Gentlemen considered the advantages, not only of having the last word, but of knowing also the person and the tone and language which would suit the person to be addressed, they would see it could be little less than a miracle which could make a petitioner successful. At all events, during the time which it was necessary to wait for an answer, almost twelve months, he remained exposed to the full weight of the Governor's displeasure, who might force his cattle to perish from drought—who could deprive hint of the labour of his servants, or withdraw from him any official post or advantage of which he might be possessed. It was as some check to a power of this description that the colony petitioned for Legislative Assemblies and Trial by Jury. In regard to Trial by Jury under the existing system, the Court in all civil cases consisted of a Judge and two Magistrates, from which either of the parties might appeal to a Civil Jury, which the Judge might either grant or refuse; but in all criminal cases the Jury consisted of seven military officers, practically chosen by the Governor, and paid by the Governor while employed in this kind of service. By a regulation of the late Colonial Secretary, it had been determined, that, in all cases where the Governor was directly concerned, that there a civil Jury should be granted; but it was needless to point out the difficulty of deciding upon such cases, since it might frequently happen, that the Governor was deeply concerned in a case in which he did not appear by name. But this was a question, not between the Governor and the accused, but between the law and the free colonist, who demanded as an Englishman, as his hereditary right, that ancient institution, so peculiarly his own as to have been called the characteristic of the British race, distinguishing them from every other branch of the human species; and why was he refused this? Did other colonies, possessing a similar population, not enjoy it? There were twelve colonies—Jamaica, the Bahamas, Barbadoes, St. Vincent, Grenada, Tobago, Dominica, Montserrat, Nevis, St. Kitts, Tortola, and Antigua, with only one-quarter of the number of free inhabitants of New South Wales, which possessed both Legislative Assemblies and Trial by Jury. Was there anything so extraordinary, then, in the state of society in New South Wales as to render it neces- sary to make it an exception to the general rule? It might be said, that if you grant the privilege of being a Juror to a free colonist, you cannot withhold it from an emancipist, and that an emancipist would not be a proper person to sit in judgment upon a free colonist; but the number of emancipists possessing the property necessary for the qualification of a Juryman was small in proportion to the other free inhabitants; so that no evil of any consequence could result from this; and, indeed, in those cases where Trial by Jury was allowed, and where colonists and emancipists sit together, no objection was made. This, in fact, seemed a good method of uniting and amalgamating the two classes. But, if any objection existed as to an emancipist sitting as Juryman upon a free colonist, was there no objection to an officer in the army, a man nicely sensitive on all points of honour and character, sitting in judgment on an emancipist or a convict? Would not all the habits and dispositions of this officer induce him to regard the individual before him—an individual who had once been convicted of crime—with disgust and abhorrence. Would he not condemn him at once by his feelings, before his reason had time to pass a sentence? As to the practical working of the present system, it appeared from documents he held in his hand, that while the law had become more severe by the facility with which conviction was procured, a corresponding increase had taken place in crime:—There were 'Nor is it easy to conjecture,' said a gentleman learned in the law, and long resident in New South Wales, 'what will be the result of this almost geometrical progression in the rigour of punishments and continued contemporaneous increase of crime. Pending the process which has actually taken place in New South Wales in three years, murders, which were seven in number in 1828, increased to eleven in 1830; unnatural crimes increased at the rate of 150 percent; and rapes at the rate of 300 per cent during the same period of time'. In proof of what he had said, as to the impropriety of officers sitting in judgment on convicts and emancipists, he had a letter in the hand-writing of the foreman of a Jury, found in the Jury-box, of which he could not avoid reading the last sentence:—"Seven officers to be kept kicking their heels in a Court, doing nothing for five or six hours, about the damned rascally convicts." This was the spirit with which the foreman of this military Jury had been sitting in judgment on the life of a fellow-creature. But, even supposing the ends of justice were equally answered, were the forms of justice to be considered nothing? They were everything to men distant from their country. These forms spoke to them of the history of their forefathers—of that which was still passing near their ancient homes—of the early habits and recollections of their youth—of the antique liberty and of all those things which had descended to them—and which Justice, arrayed in such forms as these, had, through various storms and revolutions of the State, triumphantly defended. Now, what was the class of persons wanted in the colony? Not wealthy men, in that situation of society which rendered it impossible for them to be dragged into a Court of Justice. What the colony wanted was the poor mechanic—the poor husbandman, whom suspicion and poverty might place, even when innocent, in this situation. If such a person as this were to land at Sydney and to go into a Court of Justice, he would see the Judge sitting upon the Bench arrayed in his ordinary robes; the prisoner would be at the bar, the Counsel in attendance; everything would wear the solemn and citizen-like appearance he had been accustomed to in his native country, till his eye fell upon the Jury-box. The very appearance of the military uniform, so odious to Englishmen when displayed on civil occasions—the notion which, whether justly or unjustly, prevailed in respect to military men—their recklessness and levity, their want of seriousness and of religion—the idea arising from their profession, that they were careless of the spilling of human blood—these things, and the thoughts arising from these things, would shock and startle him when he saw seven officers sitting in judgment, with their swords beside them, on the life of a fellow-citizen. The Englishman who saw this, and who felt that he might be placed in the situation of the prisoner at the bar would not think his life safe under such a system. He would either immediately quit the colony, or, if he could not do this, he would enter into immediate hostility against a Government which sanctioned acts so contrary to his habits and feelings. At all events, would it not be wise to be consistent? If it was intended to keep New South Wales as a penal settlement, to restrain or drive back the tide of emigration we had been directing thither, our policy would be intelligible, if it were nothing better. But was it right, could it be right, when we were actually giving a premium to emigration, and doubting whether we should send out any more convicts there at all, to adhere pertinaciously to a system so hostile and odious to free settlers? But what the House would most look to would be, the practicability of the measure he was advocating, and the authorities in support of it. In 1811, before the Transportation Committee, then sitting—

'Governor Hunter, formerly Governor of this colony, says, there are many respectable families gone from England, which induced me to recommend to Government to make a change in the mode of trial in the Courts there, and to introduce the Trial by Jury there; there are so many decent people there now, they may change their Juries as often as they please; there are a great many decent people there who are fit to serve on Juries.'

Again—'Were there a sufficient number of such people in the colony before you left it?—There were.

And did that number appear to you to be annually increasing?—Yes; I thought so.

Mr. J. Palmer, Commissary-General: Is it the wish of the inhabitants to have a Jury instituted?—Yes; of every one.

Did it appear to you that there was a sufficient number of respectable inhabitants to establish a Trial by Jury?—Yes, there are a great number of free settlers now.

Is that respectable part of the society increasing?—Yes, there are a great many families and children.

Governor Bligh (1808): Did it appear to you that there were a number of settlers sufficient in the colony to furnish Juries?—Yes.

And of characters sufficiently good to enable you to place reliance upon them?—Yes; and I think their decisions would have been fairer than those that took place without them.'

In confirmation of these various authorities the Committee stated, that it was their opinion 'that the manner of administering criminal justice may be altered with great advantage to the colony. It is not to be expected that its inhabitants should view otherwise than with jealousy and discontent, a system which resembles rather a court-martial than the mode of trial the advantages of which they have been accustomed to see and to enjoy in their own country.'* * * 'A numerous class of respectable persons is now formed within the settlement, amply sufficient to warrant the establishment of that Trial by Jury, for which they were anxiously wishing.' Nor were these his only authorities: when he looked to this House, he found in 1823, that—'Sir Thomas Denman 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.' * On the words a "Jury of twelve men, duly qualified to serve," being proposed in lieu of officers in the army and navy, a division took place: among the minority were Denman, D. Gilbert, J. C. Hobhouse, D. Ricardo, T. S. Rice, J. Scarlett, W. Wilberforce, Mackintosh. There was one gentleman whom he had still to speak of—a gentleman whom the colonists could never think of but with gratitude, whom he could never speak of but with reverence—a gentleman whom he could never more see in his place—whose splendid eloquence, whose generous spirit, whose extended and philosophic views, would long be in the remembrance of those who heard him. It was four years ago since the late member for Knaresborough had presented a petition, nearly similar to that which he had that evening presented, and if he had had no other authority, this authority alone he should have considered sufficient on a legislative and colonial question. Thus far, then, he had shown that twelve other colonies possessed both Trial by Jury and legislative assemblies, for which New South Wales was then petitioning. While, as far as the former was concerned, he had the authority of the Committee on Transportation, in 1811, among whom were the names of Sir S. Romilly, Mr. Abercromby, Mr. Secretary Ryder, Mr. Brand, Lord Grenville, * Hansard (new series) vol. ix. p. 1452. Mr. Goulburn, Sir Robert Peel, and Mr. Horner. In 1823, he had also the authority of Mr. Ricardo, Mr. Wilberforce, Mr. Spring Rice, Sir John Cam Hob-house, Mr. D. Gilbert, Sir Thomas Denman, and Sir James Mackintosh; so also that of Admiral Hunter, Admiral Bligh, Sir Thomas Brisbane, the two Judges (Forbes and Stephen), Governor Macquarrie, all of whom had lived and held situations in this colony. He had all these authorities against New South Wales being made an exception to the other colonies he had mentioned; while, more than all this there existed the authority of an increase of crime to the amount of 100, 130, and 300 per cent against the present system; there he should leave the question as far as it concerned Trial by Jury. The second part of this subject which he had now to introduce to the House, and on which the petitioners hardly set less value than on that in which he trusted he had succeeded, was, the grant of a legislative assembly; or, at all events, the recognition in that colony of the principles of Representation. At the distance at which Members were divided by an immensity of ocean from this colony, perplexed by a variety of testimony, most difficult, indeed, was it to determine whether, in any degree, and if so, in what degree, the prayer of the petitioners ought to be complied with. No one, he thought, would dispute the general proposition, which he would not take up the time of the House by expatiating upon. No one would dispute the general policy of diminishing the distance between ourselves and our colonies by an approachment of laws and of customs which proceeded from laws, by the establishment of that connection, the closest we could invent—a similarity of habits and of thought, proceeding from a similarity of institutions. But, in fairly confessing that he was not one of those who contended that any rule, however excellent in general, admitted of a blind universality of practice, he still did contend, that if a rule were generally applicable, it would not he with him to show the propriety of its present application, but with the noble Lord opposite (Lord Howick) to convince the House that it could not safely and properly be applied in this instance. What were the principles on which Representation rested? Population and taxation. Here was a colony unrepresented, possessing a popula- tion four times more numerous than the whole population taken together of twelve colonies which had legislative assemblies. Here was a colony with a revenue of above 100,000l. per year, and which actually yielded in taxes more than the United States of America did prior to their revolution. But the noble Lord might say, that the state of society was very peculiar in that colony. This he granted, and he said, from this very circumstance, that it was peculiarly objectionable to send out a Governor from this country with arbitrary power over a curiously amalgamated population, with the singular combination of which, uniting the most singular combination of passions and feelings it was possible to conceive, he must be totally and wholly unacquainted; but a powerful government was required for the preservation of property in a country, a great proportion of the population of which were professionally thieves. This he granted also, and he said, that a powerful government for the preservation of property was a government in which the great bulk of persons possessing property was enlisted; that, in short, from all that could be said on this subject, he would appeal to the petition he had laid upon the Table, and would say, that as every government must be unwise, so every government must be weak, against which was arrayed so numerous and respectable a portion of its subjects as those whose names were affixed to that petition. After what he had stated, he did think that those who opposed the measure ought rather to prove that it was not possible, than that he should be called upon to prove its practicability. This he would do, however. According to the returns made in 1827 of those persons then qualified to serve on Grand and Petty Juries at Quarter Sessions, it appeared that

Sydney had 406
Paramatta 220
Newcastle 131
Windsor 268
Liverpool 74
1,099
In these five districts, then, there was a respectable constituency of 1,100—of whom he understood from gentlemen acquainted with them, there were about 120 emancipists. He believed, moreover, that hon. Members would find among this number upwards of 100 who possessed more than 500l. per ann., in which number twenty might be emancipists. From these persons surely a respectable body might be chosen, nor could the emancipists, in so small a proportion in the electing body and the body to be elected, obtain a share in the Legislature improper to assign them. Their influence, indeed, would become much less when the remaining districts were included of Hunter's River, Bathurst, Campbell Town, Argyll, which were composed almost entirely of free settlers. Here, then, were all the elements, he repeated, which could possibly be desired for Representation. But if there might be some difficulties, some inconveniences in working out the change he suggested, was there no spot nor blemish in the present system? Had that been immaculate from all inconveniences and evils? Had there been no barbarous enactments against the Press, to which the Government here was obliged to refuse its sanction? No unjust prosecutions against the Press, which, though supported by a military tribunal, had been reversed by a civil Jury? Was it a fact—he asked for information—that Mr. Hall was actually in prison for five sentences which had been passed upon him by the military court at the same time that he received damages for these very sentences by a civil Jury? Had convicts never been illegally and violently withdrawn from the persons to whom they had been assigned contrary to the solemn opinion of the Judges? Had lands been distributed without favour; or was it a fact, that in the grant of lands in Elizabeth Cove, fifty-four acres, comprising the whole bay frontage, and six times as much as any accorded to any other individuals, were given to one person. Were these things true? But supposing them to be exaggerated and misrepresented—and it was fair, perhaps, at this moment, so to suppose them—was there no evil, no inconvenience, in Members being daily assailed here by the most incredible stories proceeding from the most credible authorities, without the possibility, by referring to the general acts of a popularly elected assembly in the colony, to know whether such stories were really the complaints of much oppressed persons, or the wicked inventions of malicious accusers. He could assure the House that he felt the difficulty in his own person of the situation in which this circumstance had placed him. But even on the grounds of economy alone, setting aside, for the moment, every other argument—he conceived on the grounds of economy alone, that a change in the government of New South Wales was loudly called for. By a Parliamentary Return, No. 587, of 1830, it appeared that no less than 10,962l. 2s. 6d. was received by military men, either by way of pension, or for performing civil duties, in addition to their regimental pay. It also appeared from the same documents, that 750l. a-year pension was granted to the Colonial Secretary, in addition to 2,000l. per annum, and other perquisites, which pension, though received for services here, was paid out of the colonial revenue. The commissariat expenses, he was confidently assured, had alone increased in salaries to clerks from 5,000l. per ann. since the time when both Sydney and Van Diemen's Land were united, to 10,000l.a-year for the former colony alone, in the space of less than five years. The police establishment increased in the space of four years—namely, from 1825 to 1828, more than double—being in 1825, 8,945l. 8s. 2d.; and in 1828, 20,556l. 8s. 2½d.; while the population according to the Parliamentary Returns, at least, was increased from 1824 to 1829 by only 3,000 individuals, but these were the details which the hon. member for Middlesex would, in all probability, expatiate upon. He had most sincerely to apologize for the length of time he had occupied the House. But he felt that he had been speaking not only for a specific case, but against a general system. There was hardly any writer on colonial policy who had not deeply lamented the unfortunate jealousy we had ever shown in giving those civil advantages to our colonies of which we were so justly proud ourselves. During the short time he had been in that House, he had heard more frequent propositions made to withdraw commercial advantages and protections from our colonies, to which he was perhaps not opposed, than for giving them legislative improvements; the House had frequently complained of their cost; it would have done better by allowing them the management of their own resources. If the House meant the colonies to pay for themselves, it must allow them to govern themselves; it must get rid of that Downing-street Administration, so ably satirized by Swift, in his picture of a tailor measuring a man in the moon by the aid of a telescope. It had been by the long train of evils, a wrong sytem of governing our colonies had engendered, that the commencement of a belief had been induced—which was of the most serious nature—namely, that we might as well be without any colonies at all. It was on this account—on this account alone—that he thought the House was bound to give attention to such subjects as that now before them. But if such attention was demanded from all, more particularly might it be demanded from those who, like himself, had been the advocates of a measure, which, whatever might be its advantages—and great, he believed its advantages would be—would have the immediate effect of removing from the House many of those Gentlemen who had been the most talented and able supporters of the colonies. Most frankly, then, did he say, that it was incumbent on himself and all Reformers to show that their protestations had not been mere vulgar verbiage—to prove that they had really and sincerely believed that which they had so loudly asserted—namely, that public sympathy would supply the place of private interest, and that every British subject, in the most remote corner of our possessions, would find a ready defender in a Member of Parliament, fairly and freely chosen by the people of great Britain. "And now again to apologize (said the hon. Member) for the length of my intrusion, may I be allowed to recall the attention of the House to the course of argument I have attempted to pursue? I have shown that this colony is of the utmost interest, and that it would possess, under a good system of Government, all the qualities which could invite to emigration; secondly, that the present government is a bad one, full of extravagances and abuses, and calculated from its arbitrary nature to be odious to free settlers. As a change, then, and improvement of this system, I have supported the prayer of the Petition for some species of Representative Assembly, and the full extension of Trial by Jury. In regard to the first, a Legislative Assembly, I have shown, that on the two principles on which Representation rests—taxation and population—New South Wales is eminently entitled to it. I have proved, moreover, that the colony possesses the materials for such an institution both as to an electing and to be elected body. I hope I have shown, in short, that no great practical in- conveniences lay in its way, and that great practical evils result from the want of it—an enormous expenditure, and a variety of complaints, of which it is impossible to decide upon the justice, when there is no respectable body by whom they might be publicly discussed in the colony itself. In regard to the second object of the petition, Trial by Jury, I think that I have proved, not only that New South Wales affords a most singular exception to our other colonies in this particular, but, that the first practical authorities who have visited this colony, as well as the most able Gentlemen in this House, have declared, that they saw no reason for keeping it as such an exception. In 1811, the Transportation Committee, with Sir S. Romilly—in 1823 many Gentlemen opposite, among whom was the present Attorney-General—were of my present opinion. So that instead of being rash or presumptuous in my desires, I am only asking in 1832 for what it was considered by many of sober judgment, and high authority, wise and prudent to concede in 1823 and in 1812. While, as a still further and stronger evidence against the existing system, I can show by an enormous increase of convictions, and a proportionate increase of crime, that it is the more completely inefficient, the more rigidly it is enforced. Now surely, Sir, there is here a great moral and legislative lesson. In that colony, which is unrepresented, we find the severest taxation; in that colony which is without Trial by Jury, the most terrible increase in crime. We are now enlarging the basis of Representation in this country to its widest extent: shall we at the same time repudiate from our colonies its very first principles? We have lately been declaring by the Jury Consolidation Act, that no officer in the army or navy can act as a Juryman in England. Shall we now determine that only officers in the army or navy shall act as Jurymen in New South Wales? Let me entreat the noble Lord, whose name is another term for liberty in this country, to extend its synonymous signification to other and more distant shores. Let me entreat him not only to use those talents for debate which I know are his; let me entreat him also to have recourse to that spirit of conciliation so necessary to a Statesman and a Legislator. Let me entreat him, in short, not to refuse the prayer of the petitioners, unless he can give a strong proof of the unreasonableness of their demands, as I trust, perhaps improperly, they have given of their policy and their justice. The hon. Member concluded by moving an Address to his Majesty to give the colony of New South Wales a Legislative Assembly and the Trial by Jury.

Mr. Robinson

seconded the Motion. After the statement which had been made by his hon. friend, the onus probandi lay on the noble Lord to show that there was something peculiar in the colony of New South Wales, which rendered it necessary to continue in that colony a system so opposite to the Constitution, so arbitrary, and so liable to abuse. The only difference between New South Wales and other colonies was, that it was originally a penal colony; but the question was, whether a change had not taken place in the circumstances of the colony since its establishment, which warranted the improvements recommended by his hon. friend? With respect to one of them—the Trial by Jury—he could see no reason whatever for entertaining the slightest doubt that its adoption would, in every respect, be highly beneficial; for—

Lord Howick

begged to be permitted to observe, that within the last four days, despatches had been received from the Governor of New South Wales, by which it appeared, that in pursuance of authority which he had received from his Majesty's Government, previous to his leaving this country, he had announced to the colony that Juries would shortly be established in criminal cases. He stated this for the information of the hon. member for Worcester; and he had not stated it during the speech of the hon. member for Coventry, because he knew that that hon. Member was aware of the fact.

Mr. Robinson

still thought, that means should be taken to assimilate the institutions of the colony of New South Wales, in all respects, as far as it was practicable, to the institutions of our other colonies. He allowed that he did not believe that representative bodies, like those in the West-India colonies, were as yet altogether fit for New South Wales; but, he thought that the time had arrived when that colony ought to possess something like a representative body. At all events, he protested against the injustice and inexpediency of considering New South Wales in the light of a penal colony longer than circumstances might render necessary.

Lord Howick

congratulated the House, that the observations which he should feel it necessary to make upon this subject would occupy but a very few minutes. The chief point urged by the hon. Gentleman who moved the Address was, in point of fact, as he (Lord Howick) had incidentally intimated, already practically settled. Previous to the appointment of the new governor of New South Wales, inquiries had been instituted, and witnesses examined, as to the practicability of allowing the Trial by Jury in that colony. The opinions given, and the evidence elicited upon that point, were, however, of so very contradictory and conflicting a nature, that it was found impossible to come to any clear or definite conclusion upon the question in this country. On the appointment of the new Governor, therefore, he was authorized, immediately on his arrival in the colony, to take the subject into his consideration, and to report his opinion upon it. Acting upon that authority, the Governor instituted an inquiry into the subject, and the result of that inquiry was such as to lead him to make it known to the inhabitants of the colony, that the Government at home would extend to them the boon that they required, and that, from the beginning of the next year, they might expect the system of Trial by Jury to be acted upon. That being the case, he (Lord Howick) hoped that the hon. Member would not think it necessary to press his Motion upon a point which was, in fact, already decided upon. The second point urged by the hon. Gentleman was of rather an extraordinary character. The hon. Gentleman called upon the House to recommend to his Majesty to grant to the colony of New South Wales, not a representative assembly, but something like a representation. Now he (Lord Howick) certainly did not know what he was to understand by the expression "something like a representative assembly." If direct representation were not given, he could not understand what possible benefit could be derived from the semblance of a representation. He begged, however, to disclaim any hostility towards the representative system. On the contrary, he was convinced that the most permanent and the happiest state of society, that in which civilization and refinement were capable of being carried to the highest point, was a state that was founded on a system of representation. He begged also to disclaim the other supposition of the hon. Gentleman, that his Majesty's Government were jealous of the colonies, and were indisposed to extend to the colonies the privileges enjoyed by the mother country. If this were really the case, the present would be a peculiarly ill-timed moment for manifesting such a feeling; having ourselves just acquired so many valuable rights. None could be more fully impressed than his Majesty's Government were with the truth, that it ought to be their object to make the colonies great and flourishing communities, with whom the mother country could carry on an extensive and valuable trade. They were anxious to spread the English name and race as extensively as possible over the whole world. In the case of New South Wales, however, there were some difficulties. The hon. Gentleman must know that there existed in that country a strong animosity between those classes of the inhabitants who had been sent thither for their offences, and those classes who had voluntarily gone thither. A constant struggle—exhibiting itself, among other ways, in admission to, or exclusion from, dinners, balls, &c.—was going on between those who had been once convicts, or who were the descendants of convicts, and those who were wholly untainted. Of whom was the proposed representative body to be composed? The hon. Member had given no decided opinion on the point; but he (Lord Howick) collected from what had fallen from the hon. Gentleman, that he was inclined to communicate the elective and the representative franchise to the emancipists; and to give them, in all respects, an equality of civil rights with the free settlers. That was a startling proposition; and, if it were adopted, it would give to the emancipists a paramount influence in the legislature of the colony. The hon. Gentleman, perhaps, was not aware of the great difference which existed between the numbers of the free settlers and free children born in the colony, and the numbers of emancipated convicts. According to the last census, which was taken in the year 1828, it appeared, that at that time, the number of free settlers, and free children born in the colony, being males, and above the age of twelve years, was 4,484; whilst, on the other hand, the number of the emancipists was 6,137; and the number of convicts, many of whose terms of servitude had since expired, was 14,155. Besides this, during the years 1829 and 1830, no less than 6,839 other convicts had been transported to that colony. It was idle to suppose that the emancipated convict was debarred from gaining influence or power. To show how rapidly many of them became persons of importance, he would mention only one fact. The first letter that came into his hands, after he became connected with the government of the colonies, was one from a person named Girard, containing a complaint against General Darling, the Governor, for having ill-used him with respect to a contract. Upon inquiry as to who this Mr. Girard was, it appeared, that he had been a very respectable pickpocket in London, who was transported in the year 1811 for stealing a watch, and who, in 1829, had become the great contractor for the colony. This person was one of that class who, if the hon. Gentleman's proposition were acceded to, would certainly gain the upper hand in the government of the colony. He left it to the House to say, whether it would consent to transfer the welfare, the prosperity, and the happiness of the colony to the keeping of persons who had been expatriated for offences against the laws at home. If they were, one thing he would answer for it was, that whatever body controlled the representative assembly, would soon assume the government of the whole colony. It must inevitably be so, because, at such a distance, it would be impossible for the Government at home to render effectual assistance to its representative there. But perhaps the hon. Member, after all, did not mean to give representation to the emancipists; if so, he could assure the hon. Member that the petitioners would thank him but little for the pains which he had taken. There was a strong objection to giving representation exclusively to the free settlers, because, whatever respect he might have for them, he would not give any one class, particularly the least numerous, power over the other. He contended, that the great desire of the colonists for Juries justified their appointment. The hon. Member had talked of the severity of the Juries; but he had always understood, that a Jury had nothing to do with severity or clemency, but merely to deal with the fact. He viewed with horror the increase of crime to which the hon. Member had adverted, but he attributed that increase to the great number of male convicts who had been sent out, and not to the want of a representative government, or the severity of the military Juries. It was partly to be expected from the number of convicts—the refuse of society—and principally males, which had been continually sent out. Measures had been taken to diminish crime, and one of those measures was, to send out 600 females. Free settlers had also been encouraged. Allusion had been made to the revenue of the colony. In 1830 it was 107,873l., and out of this sum no less than 76,000l. was paid on spirits imported or distilled in the colony, and on tobacco. The tax on tobacco was 9,000l., which was injudiciously imposed, at the request of the colonists themselves. In New South Wales the crying evil was, the consumption of spirituous liquors, and it had hitherto been the policy of the Government to make spirits as expensive as could be done, without giving rise to illicit distillation, or smuggling into the colony. Again, there was 5,100l. reserved for fees for grants, and the other taxes were for licenses for cutting timber on the Crown lands, and for other purposes. The hon. Member, then, could not show any great legislative abuse, as connected with the revenue of the colony, and on that ground could make out no case to induce the House to assent to his Motion. The hon. Member, however, left out of consideration several important circumstances; he forgot that there was a Legislative Council of seven of the most respectable inhabitants of the colony—he forgot that every law passed by this Council must be published in The Gazette some time before it could be brought into operation, and that, as the Press was free to the fullest extent, any objectionable measure was liable to the most severe censure. Again, it must not escape recollection, that the authorities at home would instantly, on receiving intelligence of its enactment, disallow any improper law, and that, at the same time, every case of grievance was instantly attended to. The hon. Gentleman, indeed, chiefly complained of the want of Juries in criminal cases, and did not so much rely upon the claim of the colonies for a representative assembly. One of the arguments he urged for the latter was, that there was a system of favouritism prevailing in the colony. But surely the hon. Gentleman must be aware, that as long as there was an executive government, there must exist something of this, at least in appearance. The hon. Member said, that the Government possessed considerable power in consequence of being able to deprive an obnoxious settler of his convict-servants; but if the Governor did not possess the power of removing a convict-servant, great abuses would arise. It was obvious, that if this were riot the case, the rich thief would send money to the colony to purchase his freedom. As long as the old system existed, it was necessary that this power should continue, but a change had been made in the system, which might, to some extent, at least, lead to a change in this power. But then the hon. Member said, there had been partiality in the administration of the government. Why, if that charge were just, it was no fit foundation for the desires of the hon. Member. But it was not just. Before he sat down, he (Lord Howick) begged to observe, that for many of the most serious charges which had been brought against the late Governor Darling, subsequent inquiry had proved that there was not a shadow of foundation. It was now evident, that the whole of the virulence and calumny with which that gallant Officer had been assailed, arose from a suspicion in the minds of the colonists, of his having acted upon a system of favouritism, particularly in the distribution of convicts. It was not unnatural that such a suspicion should have existed, where the demand for convicts, whose labour was extremely valuable, so much exceeded the supply of which the Governor had to dispose. He believed, however, that General Darling had endeavoured, to the best of his abilities, to act honourably and fairly to all. The Government had now done away with grants of land. A free sale by public competition was adopted, and there could no longer be a charge of favouritism. With respect to the distribution of convicts, that point was not so easily arranged. Some steps, however, had been taken, and they were calculated to prevent the imputation of favouritism. Then the hon. Member had given another reason why a legislative assembly should be given to the colony, and that reason was, the impossibility of the truth of charges being arrived at in this country. That was a most extraordinary reason. In the colony there was a free Press, and it was fully used; and he was decidedly of opinion, that the merits of cases were now truly known. He, therefore, must oppose the Motion as unnecessary.

Mr. Warburton

was glad to hear that a change of system was to take place in the administration of justice in New South Wales. It certainly was quite time that a change of some kind should be adopted. In his opinion, a change in the system of government was equally necessary, and for that reason he was favourable to the establishment of a representative assembly, as in the other colonies. He did not mean to bring any charge against the Governor; but the whole system was bad, and gave rise to oppression which he was sure no Government at home could sanction. One individual (Mr. Hall) had had eight prosecutions ex officio against him in one year, and had had the assigned servants of the Crown taken from him on account of his opposition to the government there. These were petty vexations, to which no individual should be subjected, or could be subjected under a representative system. He was glad to hear the admission of the noble Lord, that a representative government must be given to the colony of New South Wales, sooner or later, and he thought that the sooner it was given the better it would be for the colony. If that system were adopted, the petty piques and complaints of personal injuries, which naturally resulted from the existing mode of government, would be put an end to.

Mr. Dixon

said, that it was the curse of this, as of all other colonies, that instead of having its interests judged of by persons residing in it, and of course acquainted with those interests, representations were sent home, by Governors and other parties, which representations were, to say the least of them, at all times partial, and often interested. The necessity of a local legislature, he thought, was well illustrated in the absence of all control over the public accounts, and the frequency of the abuses which could not fail to be the consequence of such a system. At present there was no proper control over the expenditure of the colonies, which could not be the case if the colonies had each a resident legislature. He adopted the general principle, that populations so large should not be taxed without their own consent. If there had been a local legislature existing in New South Wales, no such appointment as that recently made—he meant that of the resident of New South Zealand, who was to be compensated out of the revenues of the colony, would have taken place. He must also express his regret, that the noble Lord should have declared an opinion, that the charges against the late Governor Darling, which, it was to be recollected, were about to undergo inquiry, were unfounded. What, he begged to ask, would those who had come from New South Wales, merely to obtain justice from the British Government, say, when they heard that a noble Lord, a member of that Government, had, in his place, expressed an opinion that General Darling had been grossly calumniated? This was at once pronouncing a verdict against the complainants, and in favour of the officer against whom the complaints were made, without any investigation. He could not do otherwise than characterize such conduct in the noble Lord as extremely injudicious, and even unjust.

Mr. Stanley

said, it was not his intention to have spoken, if it had not been for the last observation of the hon. member for Glasgow, for he was by no means competent to say, whether the charges against General Darling were true or false. He should, however, contend, that his noble friend (Lord Howick) had not, in what he had said, gone one inch beyond the fair protection which Government was bound to afford its officers, pending the investigation of charges against them. The noble Lord had only spoken of the charges which had been investigated, but, at the same time, said, that there were some charges which had not been gone into.

Mr. O'Connell

was not in the House during the speech of the noble Lord, but if, as he had been informed, the noble Lord had applied the term "virulent persecution" to the charges brought against General Darling, be thought it was pronouncing an opinion prematurely on any of those charges which had not yet been examined. He, of course, had no personal knowledge of the charges made against General Darling. All that he heard came to him on the authority of others, but if the one-tenth part of the allegations which had reached him against General Darling could be proved, it would be sufficient to expose him to the most severe censure. If the First Minister of this country(and he was sure that no man could be named who would be less likely to be guilty of such conduct than the noble Earl who now held that office) could have acted, in this country, as General Darling had done towards a man named M'Hue, after he had been discharged on a Habeas Corpus, by the Chief Justice of the colony, the Chief Justice of the Court of King's Bench would deserve to be deprived of his office, if, within twenty-four hours, he did not commit the person so acting to the custody of his Marshal, for a gross contempt of Court. Then again there was the conduct of General Darling with regard to the prosecutions of the Press. There was no surer test of tyranny than a disposition to prosecute the Press on all occasions. He would not go into the case of Mr. Hall, another opportunity would be afforded for that. He thought, indeed, it was too late in the present session to bring the case of General Darling before the House, but he pledged himself, that if no other Member did, he would do so in the course of the next Session, should he have a seat in Parliament; and if only a small part of the allegations which he had received against him could be proved, he would be able to establish such a case against him as would make Verres appear innocent as a child in the comparison. He was glad that General Darling was no longer the Governor of the colony. He rejoiced that the Government had sent out a person who had twice honourably distinguished himself in situations of difficulty, and whose appointment gave the happiest promise to the colony. In his opinion, the present Government could not have done a more wise thing than to appoint General Burke, whose conduct at the Cape of Good Hope and in Ireland had entitled him to the highest praise. The colonists claimed seven, but if four out of the legislative council were in future to be elected by the people, and if the doors of the legislative council were thrown open, as were the doors of that House to the Press, he had no doubt that these changes would be productive of the happiest effect. It was impossible that large bodies of Englishmen should be assembled together in a colony, and not be discontented if they were not able to correct on the spot the faults of the government, instead of being obliged to send to the most distant part of the earth to obtain redress.

Lord Howick

denied that he had made the conduct of General Darling the subject of praise, nor had he attacked those who complained against him. He had cautiously abstained from saying a word one way or the other. He must, however, observe, that, some time since, he had stated in that House that a charge of murder had been made against General Darling—that that charge had been investigated, and the counsel for the prosecution had thrown up his case, and said he would have nothing more to do with it. He had a right, therefore, to say that General Darling had been basely calumniated, and he repeated the expression. He was the more confident in doing so, as the report of what had then passed in the House had gone out to the colony, and had never been in the slightest degree contradicted.

Mr. Dixon

was glad to hear that the noble Lord had avoided both praise and censure, but with respect to the case particularly mentioned, the noble Lord must know, that the question of the murder still formed a part of the charges at this moment lying before the Colonial Office.

Mr. Hunt

said, that the conduct of General Darling could not be made the subject of praise, at all events, though it was always the case, that when any man, even down to a Gaoler, was charged with cruelty, he was sure to find defenders in that House. He was glad to hear that the colonists were to have Jury Trial, and he hoped that the Juries would be fairly chosen. When that step was taken he should expect that a representative assembly would be granted, though the noble Lord was at present not inclined to grant one.

Mr. Burge

would support the Motion before the House upon many grounds, but upon none more strongly than the experience which the country had had, that the colonies possessing legislative assemblies were invariably better and more economically governed than those which were not possessed of such an institution. The expenditure of all colonies which had any thing like a free legislative assembly had been uniformly found less than the expenditure of the colonies that were denominated Crown colonies. He thought that every argument which had been used by the noble Lord opposite (Lord Howick) was particularly fallacious; for if his Majesty's Ministers were not prepared to give the colony a legislative assembly, in the full and free acceptation of the term, they might at least, try the experiment upon a confined or partial scale. They might, for instance, introduce into the existing executive council two or more Members, freely elected by the people, as a modification of that assembly. The experiment might certainly be made with some limitation of numbers, or with some modification of the franchise; and, now that the subject had been so often discussed, the people of this country had a right to expect that a reforming Ministry would make such a concession to the colonists of so rising and prosperous a settlement. He conceived that, after what had occurred, Ministers could scarcely have resorted to a worse argument to get rid of the Motion, than that the bad government of the colony would find a sufficient correction in the Press, which had already been established in New South Wales.

Mr. Slaney

did not intend to enter upon the subject before the House, but he could not suffer the discussion to close without pointing out the strange and extraordinary inconsistency in the conduct of the hon. Member who had just sat down. The hon. Member had just advocated the granting of a legislative assembly to the colony of New South Wales, and so anxious was he that the people of that colony should possess the rights and privileges of a free constituency, that he would consent even to an incipient approach to it, upon a scale however small. He only begged the hon. Member to consider how he could reconcile this love of a free legislative assembly in a colony, when he had recently stood forward as the unflinching opponent of every extension of elective rights or legislative privileges among the people at home. He would maintain that the people of England ought, upon a subject like the present, to place implicit confidence in the Government, as Ministers had afforded such substantial proof of their desire to extend and secure popular rights and privileges wherever it was practicable. Their conduct with respect to Juries in New South Wales was an earnest that they wished to benefit that colony, by emancipating it as soon as the state of its society and population would render such a course safe and eligible.

Mr. Henry Lytton Bulwer

replied. He would consent to withdraw so much of his Motion as related to the Jury system in the colony of New South Wales. Upon this point he was satisfied by what had been said by the noble Lord; but, upon all the other points, what the noble Lord had advanced had confirmed him in the opinions which he had formed upon the subject, before he had brought it under the notice of the House. He should now alter his original intentions, and move "that an humble Address be presented to his Majesty, praying that his Majesty will be graciously pleased to cause measures to be taken in order to give to the free inhabitants of New South Wales a system of legislative representation, such as the present condition and circumstances of that colony may seem to require."

The House divided:—Ayes 26; Noes 66—Majority 40.

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