Saturday, 27 July 2013

New South Wales and the ‘rule of law’

NSW was by any standards a different sort of colony, like Newfoundland ‘an anomalous society too divided and too backward to be able to work the old representative system’.[1] In its early decades the lack of conventional legislative bodies and the single-minded commitment of Governors to establishing and maintaining a convict colony meant little open debate and conflict over the meaning of the rule of law. This occurred, despite the fact that Lord Sydney, the intellectual planner of the colony seems to have imagined it as a society of freemen. Under the practical disciplinary guidance of Governor Phillip and his successors various forms of radicalism including republicanism were entertained by some convicts, especially those transported for political crimes, such as Maurice Margarot, the Scottish martyr and General Joseph Holt, one of the many United Irishmen to be transported.[2] However, as long as these people were subject to penal law, most had no accepted public forum for voicing their views.

After 1800, the discourse and rhetoric of the rule of law began to be invoked more openly by groups in the colony who stood outside the executive and judiciary. Convicts were pardoned and emancipated. Some of these, such as Margarot, continued to nurse the radical views for which they had been transported. Others deployed the rule of law out of pure self-interest. George Crossley, a former attorney transported for perjury, appealed to both English law and the rule of law to vindicate his own dubious machinations in the court room, whether as litigant or legal adviser.[3] As Governor Philip Gidley King discovered, convicts or emancipists who were literate, gentlemanly and with influential friends in Britain, could be potential problems when they invoked the Ancient Constitution, Magna Carta and the rights of freeborn English men in their correspondence with the executive. King was well aware that his predecessor John Hunter had been recalled after complaints about the governor’s alleged fiscal mismanagement of the colony to the Colonial Office by Thomas Fyshe Palmer, Scottish Martyr turned colonial businessman.[4]

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Anonymous, Philip Gidley King

It was self-protective instincts at work then that caused King to react sourly to being castigated for abusing the rule of law by John Grant, in 1805.[5] Grant had been transported in 1803 after being sentenced to death for the attempted murder of a solicitor who had warned him off an heiress with whom he was obsessed. He had arrived in the colony with 50 hogsheads of brandy purchased in Rio and expected, given his class, to be put on the government pay roll. Governor King, no doubt distracted by the aftermath of the Castle Hill Rebellion of Irish convicts in 1804, was not responsive to Grant’s pleas to be allowed to land his brandy and to be granted a job. The gentleman convict reacted unfavourably when King granted him a conditional pardon in 1805, which he found to his dismay did not allow him to return to England until the close of his sentence. In high dudgeon he wrote to the Governor. After quoting from Blackstone on the rights of English subjects in ‘uninhabited’ lands and with a brief reference to Magna Carta, he inveighed

Now Sir! I ask you as an Independent Englishman, witnessing with astonishment the miserable state to which Thousands of Unfortunate Men are reduced in this country, by what Authority do those in power at home, by what Right do you, make Slaves of Britons in this distant corner of the Globe? ... [A]t your Door lies all the blood spilt in the struggle of half-starved Men for Personal Liberty in this Country. [6]

Even though Grant and several other gentlemen and political prisoners, including Margarot, were re-transported for their temerity in accusing the Governor of despotism, they can be said to have kept the discourse and rhetoric of the rule of law alive in the colony, at least in providing a yardstick by which governmental performance should be judged. Moreover, the fact that Grant who had also directed similar sentiments to Judge-Advocate Richard Atkins[7] was called before the judge on the direction of King, convicted of sedition and sentenced to five years hard labour on Norfolk Island and VDL suggests that those in the executive recognised the potential power, and, for them, the subversive quality of this rhetoric. [8]

Growing opposition to the arbitrary authority of successive governors came from an emerging colonial elite ready to impress its image of governance and society on the colony. The role of the exclusionists, led by John MacArthur, in seeking to secure their social and economic ends is a case in point. While they received a set-back in the wake of the Rum Rebellion of 1808, their disgrace was only short-lived. The exclusionists cultivated strong connections with conservative politicians in Britain and sought to exercise their influence both with the imperial government and at home in Australia,[9] They were the group from whom the magistracy was selected and, as a result, they secured considerable power at a local level. Moreover, with varying degrees of success they sought to put pressure on governors to further their aims of ultimate involvement in government of the colony. Lachlan Macquarie who sought the full inclusion of emancipists in colonial society was not well disposed to them.[10] They fared better with his successor, Ralph Darling, who faced attacks from the emancipists and their champions.[11] The NSW ‘Family Compact’, ‘a snug coterie’ and ‘a family party’ as W.C. Wentworth once described them, was not as consistently influential as its Upper Canadian counterpart. This is because there lacked the executive and legislative bodies through which they could influence the political process. Their pressure operated at a vicarious level in that they had to secure their ends through allies in the expatriate colonial administration or their friends in London.[12]


[1] Ward, J.M., Colonial self-government: the British experience 1759-1856, (Macmillan), 1976, p. 130.

[2] Ibid, Silver, Lynette, R., The Battle of Vinegar Hill: Australia’s Irish Rebellion, pp. 128-130 contains pen portraits of several convicts, including Maurice Margarot and Thomas Fyshe Palmer (‘Scottish Martyrs’). See also, Roe, Michael, ‘Margarot, Maurice (1745-1815)’, ADB, Vol. 2, pp. 206-207.

[3] Allars, K.G., ‘Crossley, George (1749-1823)’, ADB, Vol. 1, pp. 262-263 and ‘George Crossley: An Unusual Attorney’, Journal and Proceedings of Royal Australian Historical Society, Vol. 44, (5), 1958, pp. 261-300.

[4] Earnshaw, John, ‘Palmer, Thomas Fyshe (1747-1802)’, ADB, Vol. 2, pp. 312-313.

[5] On this see Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, (National Library of Australia), 2000, pp. 89-153 and Lynravn, N.S., ‘Grant, John (1776 -)’, ADB, Vol. 1, pp. 469-470.

[6] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 105; Grant to King, 1 May 1805, HRA, Series I, Vol. 5, p. 537.

[7] Bennett, J.M., ‘Atkins, Richard (1745-1820)’, ADB, Vol. 1, pp. 38-40.

[8] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 116.

[9] Eddy, J.J., Britain and the Australian Colonies 1818-1831: The Technique of Government, (Oxford University Press), 1969, pp. 68-70.

[10] Ward, J.M., James Macarthur: Colonial Conservative 1798-1867, (Sydney University Press), 1981, pp. 20-33.

[11] Ibid, Neal, David, The Rule of Law in a Penal Society: Law and Power in Early New South Wales, p. 108. See also, Fletcher, B.H., Ralph Darling A Governor Maligned, pp. 103-130, 257-275.

[12] Wentworth W.C., Statistical, Historical and Political Description of the Colony of New South Wales, and its dependent Settlements in Van Diemen’s Land, 1819, 2nd ed., (G. and W. B. Whittaker), 1820, p. 383.

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