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CHAPTER IV.

GOVERNOR PHILLIP TO GOVERNOR KING.

1788 TO 1806.

FOUNDATION OF NEW SOUTH WALES—THE CONSTITUTION AND JUDICIAL SYSTEM

-THE LASH - THE LAW-THE FIRST CHURCH - FAMINE - WILD CATTLE FOUND_GOVERNOR HUNTER-GOVERNOR KING.

ON

N the 26th January the English fleet, having been brought round,

anchored in deep water close along the shore of Sydney Cove, so called after Lord Sydney, one of the lords of the Admiralty; a formal disembarkation took place a detachment of marines and blue jackets leaped from their boats into the shades of a primæval forest; after hoisting British colours “near where the colonnade in Bridge-street now stands," the proclamation and commission constituting the colony were read, a salute of small arms was fired, and the career of the province of New South Wales commenced.

The whole party landed amounted to one thousand and thirty souls, who encamped under tents, and under and within hollow trees, “in a country resembling the more woody parts of a deer park in England."

Such were the accidents of the foundation, and such the founders, of our colonial empire in Australia.

No sooner had the convict colonists been disembarked, and the erection of the necessary buildings commenced, than the want of a sufficient body of artificers was experienced. The ships furnished sixteen, and the prisoners twelve, carpenters; and by a piece of unexpected good fortune, which caused much rejoicing, “ an experienced bricklayer was discovered among the convicts. He was at once placed at the head of a party of labourers, with orders to construct a number of brick huts: in the meantime the governor occupied a tent.”

This first example is a fair specimen of the manner in which the penal discipline in the colony was conducted for a long series of years. A useful man was placed in authority, and allowed a variety of indulgences, quite irrespective of his moral qualities. The greatest ruffians became overseers, and occupied places of trust. Men of no use—mere drudges were treated worse than beasts of burden.

In the month of May the entire live stock of the colony, public and private, consisted of — 2 Bulls, 29 Sheep,

18 Turkeys,
5 Cows,
19 Goats,

29 Geese,
1 Horse,
74 Pigs,

35 Ducks,
3 Mares,
5 Rabbits,

210 Fowls. 3 Colts, The cattle were of the Cape breed, humpy on the shoulders, and long-horned, a fact which it afterwards became of consequence to remember.

In the ensuing month it is recorded as a public calamity that two bulls and four cows wandered away from the pickpocket herdsman who had them in charge, and were lost in the woods. In the sequel it was shown that the cattle were better colonists than their owners.

The entrance to Port Jackson, as already partly described, is through projecting capes, or two heads—which conceal and shelter the far extent of the harbour. A channel, about two miles in breadth, opens a land-locked harbour, about fifteen miles in length, of irregular form, the shores jagged with inlets, coves, and creeks, which, when the first adventurers landed, were covered to the water's edge with the finest timber. At the western extremity a current of fresh water mingling with the sea tide gave signs of the winding Paramatta River, navigable for vessels of small burden for eighteen miles.

The settlement was planted on the banks of an inlet or “cove,” about half a mile in length and a quarter in breadth, which received a considerable stream of fresh water at the upper

end. The native blacks, who then swarmed along the whole coast from Botany Bay, and far beyond in either direction, came to meet the white strangers naked, armed with the shield, the spear, and the boomerang, which the settlers often took for a wooden sword.

From the circumstance of the aborigines not being subject to the authority of any sort of government except that of the strongest man, from the imperfection of their arms, and their mental incapacity for combination, their communications and skirmishes with the white intruders do not occupy that place in the history of the colony which is filled by the Red Indian tribes in the history of North America, or the semi-civilized Peruvians and Mexicans in that of the Spanish South America.

On the 7th February, 1788, the king's commission for the government of the “territory of New South Wales and its dependencies” was

THE FORM OF GOVERNMENT AND COURTS OF LAW.

37

read. By this instrument the colony was declared “to extend from the northern extremity of the coast called Cape York, in the latitude of 10° 37', to the southern extremity of South Cape, in the latitude of 43° 39', including all adjacent islands within those latitudes, and inland to the westward as far as the 135th degree of east longitude.”

At the same time were read the letters patent issued under the 27th George III., cap. 56, for establishing courts of civil and criminal judicature in the colony. Under these the governor, or, in his absence, the lieutenant-governor, was authorized, whenever, and only when, he saw fit, to summon a court of criminal jurisdiction, which was to be a court of record, and to consist of the judge-advocate, and six such officers of the sea or land service as the governor should nominate by presents under hand and seal. This court was empowered to inquire into and punish all crimes of whatever nature; the punishment to be inflicted according to the laws of England, as nearly as might be, considering and allowing for the circumstances and situations of the settlement and its inhabitants; the charge to be reduced to writing ; witnesses to be examined upon oath ; the sentence of the court to be determined by the opinion of the majority; but the punishment not to be inflicted, unless five members of the court concurred, until the king's pleasure should be known; the provost-marshal to cause the judgment under the governor's warrant.

In this court the judge-advocate was president (there was no provision that he should be a man of legal education); he was also to frame and exhibit the charge against the prisoner, to have a vote in the court, and to be sworn like the members of it. The military officers were to appear in the insignia of duty-sash and sword; they had the right to examine witnesses as well as the judge-advocate ; he alone centred in his person the offices of prosecutor, judge, and jury.

There was also a civil court, consisting of the judge-advocate and two inhabitants of the settlement, who were to be appointed by the governor, “empowered to decide, in a summary manner, all pleas of lands, houses, debts, contracts, and all personal pleas, with authority to summon parties, upon complaint being made, to examine the matter of such complaint by the oath of witnesses, and to issue warrants of execution under the hand and seal of the judge-advocate.” From this court an appeal might be made to the governor, and from him (where the property exceeded the value of three hundred pounds) to the king in council. To this court was likewise given authority to grant probates of wills, and administration of the personal estates of intestate persons dying within the settlement.

A vice-admiralty court was also established for the trial of offences committed on the high seas.

The governor was captain-general and vice-admiral, with authority to hold general courts-martial, to confirm and set aside sentences.

Powers equal to those of the first governor of New South Wales, if held, have never been exercised by any other official in the British dominions.

He could sentence to five hundred lashes, fine five hundred pounds, regulate customs and trade, fix prices and wages, pardon capital as well as other punishments, bestow grants of land, and create a monopoly of any article of necessity. All the labour in the colony was at his disposal, all the land, all the stores, all the places of honour and profit, and virtually all the justice, as the case of Governor Bligh afterwards proved. His subjects consisted of his subordinates, officers,-for, as captaingeneral, the commandant of the troops was under his orders,—of the few who resorted to New South Wales to trade, whose profits were at his disposal, and the convicts, outcasts without civil rights. The distance from England, the few means of communication, the indifference of the English public to the fate of the inhabitants of a penal colony, or of any colony, rendered the governor, so far as the control of law extended, actually irresponsible. As there was no law, so there was no publicity and no public opinion to restrain the exercise of the despotism which was the only possible government in such a penal colony.

The chief officers were naval and military, of the old school; not the school of Cook and Keppel, Nelson and Collingwood, Wolfe and Cornwallis, but of that school which, by its tyranny, its abuse of power, its neglect of common honesty, of common decency, of common humanity, in the treatment, the wages, the clothing, and the food of sailors, created the alarming mutinies of Portsmouth and the Nore.*

The powers vested in the governor were exercised without the restraining influence of council or law adviser until 1822.4

Amazement and horror overcome us when we look back on the early days of New South Wales. Under the absolute government described, the settlers were crowded together on a narrow space—a promontory cleared of a dense forest. The soil was a barren sand—every yard required for cultivation had to be gained by removing enormous trees of a hardness that tried the temper of the best axes, wielded in skilled hands. On one side was an unknown shore and a ship

* Portsmouth, May; the Nore, June, 1797.
† The Charter of Justice was not formally promulgated until the 17th May, 1824.

WANT OF DISCIPLINE-CLASSIFICATION-RELIGIOUS TEACHING. 39

less sea ; on the other, an apparently limitless country, inhabited by savages, in which not a step could be taken without danger of being totally lost ; a country which produced no wild fruit or root fit for the sustenance of man; and, with the exception of a wandering kangaroo, or a shy swift emu, no game of any size fit for food.

The want of enterprise which marked the early career of the colonists, and left them so long in ignorance of the rich districts on which, after a long interval, the colony became self-supporting, cannot but be attributed to the form of government and to the moral blight caused by the composition of the society : the mass of the community were slaves—slaves without the contented spirit of negroes or Russian serfs, for they had been born in a free country, and could not learn to submit and be happy even if in the matter of food and lodging they had been well provided, instead of being burned with heat, perished with cold, and always half starved. They were slaves too, labouring hard, but scarcely producing anything. The

voyage was a bad preparation for useful labour. The convicts were heaped on board ship without selection, the vilest and most veniał criminals chained together. No classification of degrees of crime, or for the purposes of useful labour, was attempted. The overseers were prisoners selected by favouritism, or for their bodily strength; and the work was divided between personal service on the officers, handicraft, and mere drudgery.

One chaplain enjoyed a salary for preaching occasionally to an ignorant uninstructed multitude, of whom one-third were Irish rebels and prisoners transported for agrarian offences, of the Roman Catholic faith. Religious teaching, bedside prayers, the solemn call to repentance were seldom heard in that miserable Gomorrah.

Far from all civilizing, humanizing influences, in such society the finest natures became brutalized into tyrants, while the criminals under their command dragged on a miserable existence or rebelled with all the dogged ruffianism of despair. Although the chief records of the early days of the colony are drawn from the writings and reports of officials, who were naturally inclined to put the best face on a system of which they were the paid instruments, and whose eyes,

whose ears, whose consciences were seared by constant contact with misery and tyranny, yet there is more than enough testimony of the cruel and stupid despotism which prevailed.

We learn from the journals of Howard, and the reports of the parliamentary inquiries instituted through his influence, how frightful were the abuses practised on tried and untried prisoners at the close of the

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