a Parliamentary Committee on the whole subject. The result of which was the statute of 1783, which authorised 24 G. III., the King in Council to fix places, either within or without the British Dominions, to which offenders might be transported. Botany Bay had been mentioned before the Committee as a suitable place, and Lord Sydney suggested that the establishment of a convict Colony might be included in the scheme of a settlement in New South Wales. In 1786 Orders in Council definitely fixed upon the East Coast of Australia as a place to which convicts might be transported under the Act. If we compare the high hopes with which Virginia was started, with this crude avowal of a convict colony, we can recognise the measure of England's disappointment and disillusion. At the same time, it is quite clear that, with Canada and the States comparatively near at hand, and no pressure of surplus population, any attempt to colonize Australia, at the time, by free immigrants must have been foredoomed to failure. But if the settlement of Australia was a desirable thing, and who now will contest it, it is unfair to condemn the only means by which it became possible. There was, surely, much exaggeration in the language used by Whately and the theorists of the Gibbon Wakefield School. Undoubtedly, from the point of view of the Mother country, transportation was an economical measure, while from the Colonial point of view it rendered possible those "preparatory works," (roads, &c.), without which free settlement would remain impossible. It has been said that the fear of associating with convicts deterred respectable people from emigrating; but on the other hand, it would seem that the system encouraged free emigration by providing the settler with markets, and above all by assigning" him cheap and efficient labour. It is reckoned that, in the first thirty-four years of Australia, more than ten million pounds were expended in it by the British Government. Can anyone suppose that the spending of this money was not of advantage to the free colonists? From the moral point of view, it must be remembered that the criminal code of that day was more cruel than that of

our time, and that the convicts were by no means that separate class, diminishing in number, but less and less capable of reformation, which puzzles the sociologist of to-day. Of course there is a limit to the extent to which any colony can absorb this kind of emigrant. Lord Hobart 1802. himself admitted, "if you continually send thieves to one place, it must in time be supersaturated. Sydney now I think is completely saturated. We must let it rest and purify for a few years, till it begins to be in a condition again to receive." Equally, of course, there comes a time in the development of a colony when, to use it as a dumping ground for criminals, would be an act of foolish insolence, but that transportation may up to a certain stage play a most useful part in economic development, without generating counterbalancing moral ills, is a conclusion supported by experience, and by the authority of the shrewd Merivale, and the capable foreign economist, M. P. Le Roy-Beaulieu. Probably the truth of the matter was stated by Darwin :— "On the whole, as a plan of punishment, transportation has failed. As a real system of reform it has failed, as perhaps would every other plan. But as a means of making men outwardly honest, of converting vagabonds, most useless in one country, into active citizens of another, and thus giving birth to a new and splendid country, a grand centre of civilization, it has succeeded to a degree perhaps unparalleled in history."

Be this as it may, the kind of colony dictated the form of government. No one out of Bedlam would advise a popular Assembly for a Colony of convicts. The only free settlers were government officials and soldiers, whose duty it was to obey the orders of the Governor. For the first twenty-five or thirty years the form of government was purely military: the first Governors being for the most part naval officers. The first emigrants to Australia started in May 1787 and reached Botany Bay in the January of 1788. The Governor was Captain Phillip; the expedition consisting of about 750 convicts and about 200 marines. Phillip at once recognised the unsuitability of Botany Bay as a site for a Colony, and

removed to Port Jackson. When leaving Botany Bay, Phillip noticed two French ships in the offing. What their object was is not clear, but there would seem to be "some, justification for the saying that England won Australia by six days." Phillip's commission defined New South Wales as including the whole East coast of Australia from Torres Strait in the North to South Cape in the South. (It is to be noted that Tasmania was at the time believed to be part of the mainland.) The inland boundary was the 135th degree of longitude east. New South Wales also included all the islands in the Pacific, within the same degrees of latitude as the mainland. The Colony thus comprised the present Colonies of New South Wales, Queensland, Victoria, Tasmania, a portion of South Australia, the bulk of New Zealand, the New Hebrides, Fiji, &c. &c. At first, however, the only attempt to colonize, outside the settlement of Port Jackson, was the occupation of Norfolk Island. In fact, the struggle with nature was a severe one. With roads to make, and houses, barracks, and wharves to build, the progress of agriculture was necessarily slow. Meanwhile, with communication with England or other countries infrequent and doubtful, there was serious risk of famine. Phillip, whose capacity well justified his appointment, called out for free emigrants. "If fifty farmers were sent out with their families, they would do more in one year in rendering the Colony independent of the mother country, as to provisions, than a thousand convicts." In 1789 Phillip was authorised to make grants of land to non-commissioned officers, marines, and free emigrants, also to assign to any grantee the services of any number of convicts he might judge sufficient: the settlers being bound to maintain and feed the convicts, and to pay an annual quit rent for the land, after five years' occupation. Convicts, at the expiration of their term of service, had already been allotted grants of land, from thirty acres upwards. We are not able here to pursue the fortunes of the Colony. The circumnavigation of Tasmania, the discovery 1798. of Queensland, together with the finding of coal at Newcastle, 1797. 1Jenks' History of Aust. Colonies, p. 30.

1799.

1797. and the introduction of merino sheep, were perhaps the events of most far-reaching importance in the early years of the Colony. Hunter succeeded Phillip, and King Hunter. .King's successor Bligh was solemnly deposed, but, even in the time of Bligh's successor, McQuarie, the founder of schools and churches, the devoted friend of the "emancipists," who, on their behalf, waged war with the society of the Colony, we find martial law still so prevalent that the Governor could coolly order trespassers to be flogged without trial and then justify himself to the Secretary of State on the ground "that I was legally authorised in my capacity as Governorin-Chief. . . to direct them to be punished in this summary manner without any regular trial."1

It is an interesting study to trace from such beginnings the growth of constitutional government. From the first, the Governors had been assisted in their public duties by civil and military officers appointed and paid by the Home Government. Towards the end of the period under review, the Governors were in their commissions directed to summon certain of the officials as an Executive Council and to consider their advice, when given collectively. This tentative proceeding prepared the way for the Executive Council of a later date. With respect to judicial arrangements, the administration of justice was, from the nature of the case, at first frankly military. The absence of any express provision for the creation of civil courts was met by the Judge Advocate's commission empowering him to decide in civil cases. Supreme courts were established in 1814 in New South Wales and Tasmania for the hearing of all cases involving more than £50, and Governor's courts for the 4 G. IV., hearings of minor cases. In 1823, civilian judges were c. 96. substituted for the military jurisdiction of the Judge Advocate, and trial by jury tentatively introduced. In another direction, the Act of 1823 is a land mark in Australian Sec. 24. history. It provided for the establishment of a Legislative Council, to consist of five, six, or seven members, to be appointed by the Crown. The Governor retained the initia1 Quoted by Rusden, Hist of Aust. Vol. I. p. 546.

tive in legislation, and in urgent cases where essential to the peace and safety of the Colony, the Governor could legislate in spite of all its members dissenting, but no ordinance could be made without being submitted to the Council. Where an ordinance was rejected by the Council, the dissentient members were to record the grounds of their dissent on the minutes. No ordinance could be laid before the Council or passed, unless the Chief Justice had previously certified that its terms were consistent with the laws of England "so far as the circumstances of the Colony will admit." Under Sec. 44. the same statute, power was given to erect Van Diemen's Land into a separate Colony. A Legislative Council of this kind may not seem of much importance, but it was explained that the new Council was intended to represent, to some extent at least, the views of the non-official colonists, and three independent members were, in fact, appointed in 1825. Moreover, as the British Government ceased in 1827 furnishing money for the civil as opposed to the penal establishments of the Colony, the Council, being entrusted with the power of levying taxes, obtained the control of finance. The subsequent Statute in 1828 enlarged the pro- 9 G. IV., visions of the earlier one. The Legislative Councils were c. 83. increased in size and importance. They were to consist of not more than fifteen members or less than ten, and to have the control and expenditure of the customs revenue. The power of the Governor to legislate against the opinion of the Council was taken away, and the absolute veto of the Chief Justice abrogated.

The Statute of 1823 is notable on other than constitutional grounds. It legalised the practice of indentured service, and Sec. 41. provided for the enforcement of such arrangements, both against the parties to them, and against third parties who Sec. 42. attempted to break them. It gave legal sanction to the Sec. 34practice of Governors in remitting to convicts of good behaviour, portions of their sentences, and empowered the Sec. 38. Governor to create separate settlements for convicts, who had been convicted of fresh felonies since their arrival. By all these means it endeavoured to encourage and