9 R.D. Lumb: Australian Constitutionalism, Butterworths, Brisbane, 1983, pp. 24. 10 W. Blackstone: Commentaries, Bk I, Ch 1, pp. 121 et seq. 11 Op. cit., p. 25.
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the constitution and laws of England was to influence profoundly the understanding of these laws in the Australian Colonies. For they were to adopt the principles embodied therein — the principles of the Common Law.
The beginning of the transportation of convicts to Australia
Events in America now had an interesting impact on Australia. Right after the outbreak of the American War for Independence in 1776, it was no longer possible for Britain to continue sending many of her convicts there — where the American settlers had been buying their services. One of the American Loyalists, Magra (or Matra), had been with Captain Cook in Eastern Australia. So in 1779, it was suggested that American Loyalists faithful to Britain during the 1776f War for American Independence be sent to New South Wales — together with soldiers and Britain's accumulating convicts.12
The convicts sent to Australia in 1788, were a very mixed group. Many were poachers (similar to Jean Valjean in Victor Hugo's Les Miserables), who stole food to feed their starving families.
Many others were petty offenders, including women and children. A naval surgeon, William Redfern, who was transported because when nineteen he gave friendly advice to some mutineers — later became one of the best doctors in Sydney. An elderly scholar, transported for cheating the Post Office of tenpence in order to oblige a fellow clergyman — at length became Sydney's leading Schoolmaster. Early governors of New South Wales testified that many of the convicts were as well-behaved and hard-working as freemen.
Among the convicts, there were also political prisoners. Such included the "Scottish Martyrs" — who were transported for urging that Scots be given more influence in the British Parliament. Hundreds of Irishmen were transported for similar offences, sometimes religiously motivated by a hearty papal dislike of Britain's Protestant Monarchy. For similar reasons, a hundred French Canadians were transported 'Down Under' in 1839f.
Later, also many Scottish Presbyterians arrived as free settlers. Whether bond or free, with so many Irish Romanists and Scottish Presbyterians — the Celtic contribution to Australia vis-a-vis the English element, was thus very pronounced.
Yet there were many convicts and some free settlers too from England — in addition to the English soldiers who maintained law and order. Also banished to Australia were many labour agitators who had tried to organize workmen into unions in Britain. Some from Tolpuddle in Dorsetshire were the best known of those in this category.
Finally, there were also felons such as thieves and murderers. These are they whom New South Wales Governor Phillip called "complete rascals" and "the most infamous of
12 Wood: op. cit., pp. 36f.
THE CHRISTIAN FOUNDATIONS OF AUSTRALIA
mankind." This was a very small fraction of the original settlers. For till about 1790, most perpetrators of capital crimes were executed according to the Common Law — in England.
Indeed, perhaps a little euphemistically, eyewitness Henry Gordon wrote about the very first Australian convicts: "The convicts generally had much on which to ruminate…. They are generally not vicious criminals (not one of them has been sent here for murder or rape), but the vast majority are thieves who would have no qualms about lifting the odd chicken.."13
However, with the rise of socialism in Britain — especially following the abolition of slavery throughout the British Empire in 1833 — many felons were no longer executed, but instead sent to New South Wales. Fortunately, however, there was by then a big free population in Australia — as well as many Emancipists (alias convicts pardoned by the Colonial Governor). Consequently, the influence there of the bad qualities of the new waves of convict-immigrants — was minimal.14