Wednesday, 12 September 2012

Macquarie: opposition and reform

Macquarie’s support of emancipists resulted in sustained opposition almost from the beginning of his governorship. Early in 1810 the senior chaplain, Samuel Marsden[1], refused outright to serve with the emancipist justices, Simeon Lord[2] and Andrew Thompson on the turnpike board for the new Parramatta Road. In 1811, Macquarie flatteringly named a street in Parramatta after Marsden, but despite Wilberforce’s attempts to mediate there was further controversy between them in 1814, and finally in January 1818 Marsden was summoned to Government House and denounced as a ‘secret enemy’. Since the chaplain probably had more influential friends in England than any other colonist he proved a dangerous antagonist. Jeffery Hart Bent, judge of the Supreme Court created under the new Charter of Justice granted in 1814 also proved a vehement opponent.[3] He kept his court closed rather than admit ex-convict attorneys to practise even though there was only one free lawyer in the colony. The governor’s growing rift with both Bent brothers led to their recall. Ellis Bent died before this decision arrived, but his brother returned to England and assisted H.G. Bennet in mounting the campaign against Macquarie in the House of Commons that led to the appointment of a select committee on gaols and of John Thomas Bigge as commissioner to enquire into the affairs of the colony.

Macquarie’s emancipist policy also led to his falling out with his old friend of Indian days, Colonel George Molle[4], who arrived with the 46th Regiment early in 1814 as lieutenant-governor. Soon after their arrival Molle and his officers complained of high prices and asked for higher pay. They disliked the favour shown by Macquarie to the emancipists, whom they excluded from the regimental mess, even in cases when the governor looked on them with favour. In 1816, William Charles Wentworth insulted Molle in a ‘pipe’ or lampoon. Next year, during the investigation of its authorship, some of the officers of the regiment insulted Macquarie in his turn, and he felt that his ‘old and Much liked Acquaintance’ Molle, on whose ‘Friendship and Candour’ he had relied, had not seriously tried to check the opposition of his juniors to the governor. Molle insisted that D’Arcy Wentworth, William’s father, was responsible for his son’s libels and demanded that he be court-martialled. To end all this bickering, Macquarie asked that the regiment be removed. Fortunately in August 1817 the 48th arrived to relieve it and Molle left for Madras the following month.

In 1817, concern was expressed by Lord Bathurst, Secretary of State for the Colonies, that Governor Macquarie’s humane and liberal policies were undermining the effectiveness of the transportation system as a means of criminal punishment. As a result, John Thomas Bigge was appointed to inquire into the overall effectiveness of the system, with sweeping inquisitional powers. It was clear that Macquarie as much as the transportation system was under scrutiny. From his arrival in the colony in 1819, Bigge’s relations with Macquarie were strained. Bigge felt that Macquarie’s public works policy was ‘absurd’ and they disagreed on Macquarie’s appointment on 1819 of William Redfern[5], an emancipist, as a magistrate. Bigge could not see the advantages in either the aims or achievements of Macquarie’s emancipist policy. The basic difference between Bigge and Macquarie was that they saw NSW in different ways. Macquarie viewed it as ‘a Penitentiary or Asylum on a Grand Scale’ though he believed that one day it must be one of the greatest and most flourishing Colonies belonging to the British Empire’. By contrast, Bigge was influenced by people such as John Macarthur who saw its potential as a free settlement and wool growing area. Tension turned to antipathy and Bigge found himself more in sympathy with the exclusives of the squattocracy than with the Governor. Bigge was assiduous in assembling evidence in NSW and VDL, but he was far from judicial and impartial in the conclusions he drew. His analysis was unfairly prejudicial of an administration superior to any previously known in the colony that enjoyed widespread popular support among the inhabitants. By that time Macquarie had resigned.

Bigge’s reports were important for the future constitutional and political development of Australia. He emphasised that the population of the colony had grown enormously and now included many free settlers. His three reports, published in 1822 and 1823, questioned the autocratic style of government that had existed since Governor Phillip’s administration. [6] Collectively they prompted the insertion in the New South Wales Act (4 Geo. IV, c. 96) of clauses to set up limited constitutional government through a Legislative Council, to establish VDL as a separate colony, to enable extensive legal reforms and to make new provisions for the reception of convicts from England. Bigge’s first report, The State of the Colony of New South Wales, focused on four principal themes: general colonial conditions, the convict system, relations between social classes and Macquarie’s programme of public works. Much was made of the alleged mismanagement of convicts but Bigge was unconcerned that the convict system was working better than ever before in the colony, that Macquarie’s methods had produced and maintained ‘peace if not harmony’ and that he had ended most brutality and violence. Bigge also criticised Macquarie’s emancipist policy and disapproved of the standing emancipists were allowed in society. He thought the governor’s building programme was wastefully expensive and used his authority to discontinue some projects and to make changes in the construction and intended use of other buildings. Macquarie’s opinion that the report ‘gave no knowledge of the present state of the colony’ was justified by the commissioner’s lack of balance. Bigge failed adequately to explain the colony’s history or contrast the orderly society that he found to the virtual anarchy existing just before Macquarie took office. While Bigge properly exposed inefficiency in district constables, theft of government medical stores, flaws in the ticket-of-leave system for convicts, inadequacies of country education, poor accommodation for female convicts, faulty regulation of liquor traffic and a multitude of similar defects, he failed to account for the very real achievements of government.

If the first report was candid, the second report, The Judicial Establishments of New South Wales and of Van Diemen’s Land, was evasive and indirect. Its analysis of the colonial legal establishments was superficial and he reserved his most valuable conclusions for private dispatch to Bathurst. Bigge’s supplementary instructions allowed him to report privately on matters of this kind but, having elected to do so, he allowed the public report to become a vehicle of insidious attack on Governor Macquarie. In his public report, he relied on statements by Mr Justice Barron Field[7] and Judge-Advocate (Sir) John Wylde[8] disparaging Macquarie but privately admitted that he placed little confidence in either of these officers. Bigge’s lengthy treatment of the old libel case Marsden v. Campbell was calculated to discredit Macquarie since John Campbell had been the governor’s secretary from 1810 to 1821.[9] Most of the recommendations in the report affecting the civil jurisdiction originated from Field and, while Bigge deserved some credit for suggesting reforms in criminal jurisdiction, his part in framing the reconstitution of the courts in 1824 was comparatively small. He simply supported submissions of the colonial lawyers, and especially the earlier recommendations of Judge-Advocate Ellis Bent.[10] Bigge opposed popular demands for legal redress, refused to approve the introduction of jury trial or the modification of the military tribunals that composed the criminal courts. Bigge was the first lawyer of any distinction in the colony yet made surprisingly little personal contribution to founding a sound legal system. His concern was to draw attention to Macquarie’s abuses of his limited legislative and prerogative powers and to condemn the governor’s ‘insensibility to the controlling power of the law’. Like so much of his analyses, it was correct in terms of the letter of the statute book, but was unrealistically applied to a colony where the rule of law was still in an embryonic form.

The third report, The State of Agriculture and Trade in the Colony of New South Wales, was the most impartial and least contentious. It afforded a generally clear picture of farming and grazing in the Sydney district and west of the Blue Mountains. It did not sufficiently acknowledge the important developments of the Illawarra district and tended to suggest incorrectly that agriculture had stagnated under Macquarie. Otherwise it was well presented and included useful accounts of the state of revenue, trade and the country’s economic position.

Macquarie was the first to see beyond the limits of the convict settlement or the opportunities for self-enrichment that had characterised the early colony. His vision, by 1821, was shown in a public building and town-planning programme that had established a solid infrastructure for the colony. Exploration had reached deep into the inland and settlement and agriculture were following, north and south along the coastline and inland beyond Bathurst. Agriculture was, in fact, creating the conditions for the colony to become almost economically self-sufficient. The non-Aboriginal population of the colony including VDL was approximately 37,000, of whom at least 8,000 were free settlers or had been born in the colony. However, frustration and recurring bouts of illness led him to submit his resignation on several occasions. A serious illness in 1819 almost proved fatal, and the pressures of Bigge’s commission of inquiry into the state of the colony reinforced his desire to end his term of office and return home to defend the charges made against his administration. Finally at the end of 1820, he learned that his third application for resignation had been accepted though it was not until 12 February 1822 that he and his wife and son departed for England. Macquarie had converted NSW from a rebellion-torn penitentiary to a settlement of substance. His broad sense of justice and humanity was radical by Georgian standards and was expressed in his willingness to readmit emancipated convicts to society without regard for their past.

By 1822, a colony created by transportation had begun to evolve away from its penal origins. Although free settlers had begun to arrive in the colony in the early 1790s, it was not until after 1815 that in both NSW and VDL, there was sustained growth and new land was brought into cultivation.[11] Constitutionally, NSW was founded as an autocracy run by the Governor, although the early governors effectively ruled by consent, with the advice of military officers, officials and leading settlers and exercised their powers within the restraints of British law. By the early 1820s, it was widely believed that the deterrent effect of transportation had declined and there had been a blurring between the respective positions of emancipists and free settlers. Bigge’s reports sought to restore transportation as ‘an object of real terror’ by calling for greater severity in the treatment of convicts, an end to free grants of land at the end of their sentences and a continuance of their subordinate status by not admitting them to positions of social responsibility. For Bigge, the future of the colony lay with the free settlers who would possess the land, employ the convicts and produce wool. Free immigration was no longer incidental to the purposes of settlement and this meant that the autocratic system needed to be modified and a system of government more suitable for free subjects of the Crown introduced. This, for Bigge, meant a legislature to curb the autocratic tendencies of governors and a judicial system that safeguarded the rule of law. This restraint on rule by decree exacerbated the existing tensions between exclusives and emancipists and opened up a three-way contest for power between successive governors and these two groups that dominated colonial politics until the 1850s.

[1] Yarwood, A.T., ‘Marsden, Samuel (1765-1838)’, ADB, Vol. 2, pp. 207-212.

[2] Hainsworth, D.R., ‘Lord, Simeon (1771-1840)’, ADB, Vol. 2, pp. 128-131.

[3] On conflict between Macquarie and the Bent brothers, see

[4] Macmillan, David S., ‘Molle, George James (1773-1823)’, ADB, Vol. 2, p. 243.

[5] Ford, Edward, ‘Redfern, William (1774-1833)’, ADB, Vol. 2, pp. 368-371.

[6] Bigge’s Reports were printed in three volumes. Vol. 1: The State of the Colony of New South Wales, The House of Lords, (Papers 119), printed, 5 August 1822, facs ed., Adelaide, 1966; Vol. 2: The State of Agriculture and Trade in the Colony of New South Wales, The House of Lords, (Paper 119), printed, 4 July, 1823, facs ed., Adelaide, 1971; and, Vol. 3: The Judicial Establishments of New South Wales and Van Diemen’s Lands, The House of Lords, (Paper 118), printed, 4 July 1823, facs ed., Adelaide, 1966. See also Ritchie, J., (ed.), The Evidence to the Bigge Reports: New South Wales under Governor Macquarie, 2 Vols. Melbourne, 1971 and Bennett, J.M., ‘Bigge, John Thomas (1780-1843)’, ADB, Vol. 1, pp. 99-100.

[7] Currey, C.H., ‘Field, Barron (1786-1846)’, ADB, Vol. 1, pp. 373-376.

[8] Mckay, R.J., ‘Wylde, Sir John (1781-1859)’, ADB, Vol. 2, pp. 627-628.

[9] Holder, R.F., ‘Campbell, John Thomas (1770?-1830)’, ADB, Vol. 1, pp. 199-201. The ‘Philo Free’ letter, was published on 4 January 1817 in the Sydney Gazette, of which Campbell was official censor. This elaborately sarcastic review of the missionary activities of the ‘Christian Mahomet’ of the South Seas was obviously directed at Samuel Marsden who instituted a criminal charge against Campbell. He was found guilty of allowing the libel to appear, but no sentence was passed. Marsden then brought successful civil action and obtained £200 damages. Campbell, in his official apology sent to the Colonial Office by the governor, said that the ‘hasty and inconsiderate Letter’ was inspired by his indignation at Marsden’s ‘marked disrespect’ to the governor’s orders in not attending the meeting of Aboriginals at Parramatta a few days before. Undoubtedly this indignation had been growing for some time over the clergyman’s open defiance of and devious attacks on the governor’s authority and policy.

[10] See Judge-Advocate Bent to Under-Secretary Cooke, 7 May 1810 and Judge-Advocate Bent to Earl Liverpool, 19 October 1811, HRNSW, Vol. 7, pp. 310-377, 621-630.

[11] In 1809, there were an estimated 300 free settlers in NSW and VDL though this figure does not include children. By 1820, there were 1,307 free immigrants.

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