9    Toughly Interviewed by Commissioner Bigge

If the acquisition of land was the essential building block in the establishment of pastoral estates in New South Wales, and of family enterprises such as William Cox and his sons created, the assignment of convict workers to their owners came a close second. When John Thomas Bigge was sent out in 1819 to investigate the state of the colony he had been instructed by Lord Bathurst that transportation to the colony was:

intended as a severe Punishment … and as such must be rendered an Object of real Terror to all classes of the community … If … by illconsidered Compassion for Convicts … their situation in New South Wales be divested of all Salutary Terror, Transportation cannot operate … as a proper punishment.1

This applied as much to convicts assigned to private masters as to those employed on government work.

William Cox, though a disciplinarian, was far from lacking in human compassion towards convicts. His replies to Bigge’s questions were therefore both illuminating and potentially fraught with difficulty for him. They also reveal a good deal about William’s own character and attitudes, as well as providing an unusually clear exposition of what he thought about convicts and their management, with Clarendon as the backdrop. He appreciated that Bigge’s report might be crucial to the future of the colony, as had made been clear to the public by Macquarie’s announcements when the Commissioner arrived.

It has been remarked that Bigge and his assistants were ‘as assiduous as ants in gathering and storing a vast quantity of detail for carriage back to Whitehall’.2 There has also been much academic dispute over how far Bigge’s conclusions – which were to have a decisive effect on the colony as a whole and which greatly enhanced the fortunes of the pastoralists – were in fact based on the evidence he had taken and how far they derived from the private instructions he was given before he left England. The allegations made against William, which are in the collected evidence but were not published in the main reports, as well as comments in the main report itself, were discussed in the previous chapter.

From the start in 1788 the colony had been almost entirely dependent on convict labour, as the pastoralists themselves came to be. Without labour an estate could not be run or developed. An understanding of convict assignment and its role in both the landed gentry’s growing dominance overall, and in the running of William’s estates in particular, is therefore essential in forming an impression of the colony at that time. For the convicts, life on a farm estate, such as Clarendon, was far preferable to working on a purely pastoral one, where the shepherd’s life was lonely and miserable, although at the time of Bigge’s visit estates beyond the mountains were few.

It will be worth taking a look at the character of the Commissioner himself. John Thomas Bigge was a former Chief Justice of Trinidad, who socially had more in common with the Macarthurs than with Macquarie, whose regime he was investigating as a result of discontent with the Governor’s actions, voiced both in the colony and in London. Bigge had been commissioned to conduct a comprehensive enquiry into the state of the colony and to report back to the Secretary of State, Lord Bathurst.³ He delivered his conclusions in three reports, the first in June 1822, the second later that year, and the third in 1823. The first was on The State of the Colony of New South Wales.⁴ This dealt almost entirely with the transportation and servitude of convicts. The second was on The Judicial Establishments of New South Wales and of Van Diemen’s Land, for which William was not specifically interviewed, in spite of his being a magistrate. The third report was on the State of Agriculture and Trade in the Colony of New South Wales.5 This criticized William for giving indulgences to convicts, whilst being highly complimentary about his and other farmers’ agricultural methods.

Bigge’s directive from the Prince Regent had been ‘to enquire into the Laws, Regulations and Usages of the Settlement … and into every other Thing in any way connected with the Administration of the Civil Government’.⁶ However, Bathurst had given his own private instructions to the Commissioner three weeks earlier. The Secretary of State first asked for alterations that would render the colony ‘available to the purpose of its original Institution’ (as a penal colony) and then wanted Bigge to investigate the alleged extravagance of Governor Macquarie’s public works.⁷ This heavily loaded subtext also referred to:

the difference of opinion which has prevailed in the Colony. I allude to the Propriety of admitting into Society Persons, who came to the Settlement as Convicts. The opinion entertained by the Governor, and sanctioned by the Prince Regent, has certainly been, with some exceptions, in favour of their reception … upon terms of Perfect Equality with the Free Settlers.

No matter what the Prince had approved, Bathurst was aware of the hostility which Macquarie’s ideas had aroused, both in the colony and in parliament.⁸ Many of Bigge’s questions derived from this instruction.

Bigge travelled widely and took evidence from a considerable variety of people, supplemented by numerous letters. His main report concluded that ‘the expediency of promoting … the growth of fine wool and creating a valuable export … appears to be the principal if not the only source of productive industry within the colony’.⁹ The Commissioner, therefore, recommended employing convicts in a pastoral economy as the solution to future development. This was to be the key to the pastoralists achieving pre-eminence in the colony.

Assignment had originated under Governor Phillip as a means of improving agricultural productivity. It soon became essential for reducing the costs of the penal colony by taking prisoners ‘off the store’, that is to say fed and housed by employers, not the government. As the historian George Rudé has commented, ‘once the convicts arrived in the colony they were cast for an economic role and if they became reformed in the process, so much the better’.10 The obvious role was in food production. Officers of the New South Wales Corps were assigned up to 10 convicts per 100 acres to work their land in the 1790s. Initially the assigned convicts were fed, clothed and, if necessary, housed by the government. But in 1797 Governor Hunter was instructed by the Duke of Portland that this was to be done by the employer.¹¹ In 1805 the Secretary of State began specifying that new free settlers, such as the Blaxland brothers, should be assigned 10 convicts for each 1000 acres of their land grants.¹² After 1815 assignment became even more fixedly the cornerstone of the colonial system, where private masters ‘should carry the cost and supervise the labour of convicts at every moment possible’.¹³

The convict population increased rapidly during Macquarie’s tenure as governor. In 1814 the total number of convicts to arrive was 819, of whom 72 mechanics (skilled men) out of 194 were assigned to private employers. In 1819, 2376 arrived, but only 92 out of 477 mechanics were able to be assigned.¹⁴ These figures are significant in terms of Macquarie’s problems in dealing with the vastly increased number of arrivals after 1815. However, assignment was not the slavery condemned by Sir William Molesworth in his highly partisan parliamentary report of 1838, which reflected how the system had become politically controversial at home.¹⁵ It was abandoned in 1840.

For those convicts who went along with the system and did not cause trouble (or managed not to be provoked into it by intemperate masters, as some of William’s court judgments showed they could), the system provided a way of learning practical skills and securing a far better future than a convicted felon in Britain could hope for. But convicts could be recalcitrant and an employer who did not allow extra rewards and indulgences to a skilled man would have been unlikely to have got much work out of him. As was seen during the building of the Blue Mountains road, William Cox did have a keen understanding of the convict mentality and an appreciation of the value of giving convicts incentives to work well, which was one of Macquarie’s reasons for giving him the job.

The way in which Governor Macquarie, and likewise William, viewed criminals had progressed beyond the classicist crime-is-in-the-blood school of the late eighteenth century and towards the idea of rehabilitation, anticipating aspects of the positivist approach of the 1820s. One commentator considers that ‘In Macquarie’s personality … were mixed a broad sense of justice and a humanity far ahead of Georgian concepts’.16 This attitude was very different to the terms of Bigge’s agenda. After Macquarie’s departure the belief in rehabilitation faltered and the aims of punishment reverted to the classical view of the eighteenth century. This had been expressed by Lord Portland when he told Governor Hunter back in 1798 that ‘crimes of a more heinous nature … can only be repressed by a sense of the certainty of the punishment that awaits them’.¹⁷ There was less concern with understanding the nature of the ‘criminal’ and more with developing rational and systematic means of delivering justice, which Bigge had been told to consider.¹⁸

So the Commissioner’s enquiries into how the assignment system operated under Macquarie, and how it could lead to tickets of leave, or even pardons, was highly charged politically. The ticket of leave was explained to the Molesworth Committee by a later Chief Justice, Sir Francis Forbes, as giving the holder ‘the right … to work for his own benefit’, thus freeing him from assignment, but he could not leave the colony. Tickets were ‘as a reward for good conduct and also formerly as a remuneration for extra work, skill or ingenuity’. That was before Governor Brisbane established a scale under which a ticket was allowed after four years of a seven-year sentence, after six on a 14-year one and after eight on a life sentence.¹⁹ The tickets were close to essential for providing a pool of free labour. A convict had also been allowed a ticket if living with a free spouse. By 1837, when Forbes gave his evidence, that privilege had been abolished.

William had been a major contractor on public works in the ‘Macquarie towns’ on the Hawkesbury. Immediately after constructing the Castlereagh Glebe House, he had built the Blue Mountains road and had been highly praised by the Governor, who had written, inter alia, ‘I cannot therefore too highly Appreciate the Merits and Services of Mr Cox on this occasion’.20 Bigge must have read this correspondence between Bathurst and Macquarie before he came out and such praise was unlikely to have impressed him. In the end he devoted more than a whole page of his main report to sniping criticism of the way the road building was conducted and its rewards for the convicts employed.²¹ Perhaps sensing that Bigge might be hostile to the rewards he gave convicts, William’s answers to the Commissioner’s questions were often guarded and on occasion he plainly said what he guessed Bigge wanted to hear. Having made a statement, he frequently modified it when checking the transcripts and was not always consistent.

The first interview was on the subject of agriculture on 25 November 1819, the transcript of which William signed on 14 February 1820, but he was not interviewed on convicts until 14 December 1820, shortly before Bigge’s departure.²² The records of his evidence were corrected by him personally, in his own hand. The interview on agriculture, which covers 49 pages, largely about assignment, suggests that Bigge expected to attach importance to what William had to say. He sought the views of only 25 individuals on agriculture and his talks with other landowners were much shorter.²³ John Ritchie, in a biography of Macquarie, suggests that Bigge ‘took precautions to ensure that their replies favoured his vision of a pastoral economy which would remove prisoners from government work in the towns’.²⁴

In his agricultural interview William told Bigge, in a way that underlined the primitive nature of farming of the early days, that when he first came to the colony in 1800, ‘Tillage was conducted entirely by hand hoes’, as was explained in Chapter 8. Nor were harrows used, ‘the seeds being covered in by the hoe’.²⁵ George Caley, the botanist, wrote in 1803: ‘Nothing further is done than break up the ground with a hoe and throw in the wheat which is again chopped over with a hoe or harrowed … the stumps that yet remain in the ground are against it’.26 However, it has been considered that the labour intensive method of hand hoeing and hand-setting or sowing seed ‘was intrinsic to improved husbandry on the light soils of the Port Jackson hinterland’.²⁷

When the surveyor general, John Oxley, was interviewed by Bigge in 1819 – he was one of the handful of landowners praised by the Commissioner – he was asked whether he thought the removal of stumps and trees ‘contributes to the augmentation of the produce?’ ‘I certainly do,’ Oxley replied, ‘at least one eighth is gained by grubbing the trees.’ He went on to explain: ‘It is a practice newly introduced and only freemen work at it … the price generally given is about 40s an acre’. Convicts would not perform enough to even pay for their rations, unless ‘they are overpaid as free men’.²⁸ Although John Macarthur had brought out the first iron plough in the 1790s, landowners were too well aware of the labour costs involved.

When the Commissioner asked by what means productivity could be improved, William gave specific examples, in addition to grubbing out the stumps, which had now begun. ‘A farmer can by raising artificial food such as rape, clover, turnips & English grapes, maintain a flock of sheep & the manure from them will enable him to raise his crops of wheat.’ Using sheep manure was exactly what was done in Dorset. William’s enthusiasm was, probably unknowingly, despite his growing agricultural expertise, echoing the agricultural revolution of ‘Turnip Townshend’ 90 years earlier. Viscount Townshend had introduced the cultivation of turnips on a large scale and a four field-field crop rotation system at his estate in Norfolk in the 1730s. William had similar ideas.

Wheat crop yields had declined from 20 to 25 bushels per acre on the Hawkesbury. Asked by Bigge if ‘it will soon be necessary to adopt a better system of husbandry’, William was emphatic that it would. ‘Most certainly,’ he replied, ‘& if they [the fields] were appropriated to the growth of maize according to a new system lately & successfully adopted of ploughing for maize and clearing it likewise with the plough I think the crops of the Hawkesbury district could still be very productive.’29 The fertility of the Hawkesbury soil was becoming exhausted.

The Hawkesbury river in 2010, seen from the road bridge (Author’s photo)

Bigge asked: ‘Were the convicts of that day [William’s first years] better fitted for the purposes of agriculture?’ The development of agriculture had always been part of the intention of the assignment system. At this, the general tenor of William’s evidence became a grievance – one frequently expressed by other settlers – that recent convict arrivals were less useful: ‘The convicts which arrived here in the early part of my time, were generally able bodied men, & who had been accustomed to country labor and capable of performing the duties required of them’. Many of the able-bodied had been Irish. By 1820, William lamented, one fourth of those arriving were aged under 21 and ‘not fit to send into the field for labour, being incapable of performing a day’s work’.³⁰ By then there were indeed very few country labourers being sent out.³¹ At the same time the constructive potential of the young convicts was being overwhelmed by their numbers.

The termination of the Napoleonic War had made matters radically worse for Macquarie, loading convicts on to him without consultation in numbers for which he could not find employment. The end had brought economic depression to England. Men were no longer being recruited to the armed forces, while some out-of-work ex-servicemen turned to crime. There were unemployed half-pay officers, some of whom later arrived as squatters. Even Jane Austen, in her novel Persuasion, written in 1815 and 1816, introduces naval officers looking for places to live.32 Men and women convicted of ‘serious’ crimes, which could include petty theft, posed an immediate problem and were transported.

In 1817 Bathurst admitted that ‘The Number of Convicts transported has increased beyond all calculation’, but still complained at the cost of lodging them. The situation had soon worsened.³³ In 1818 Macquarie drew Bathurst’s attention to five ships having arrived in one month and five days, bringing 1064 more convicts in that ‘Short time’ alone.³⁴ Meanwhile, the disastrous floods of 1817 had not only damaged farmland, they had reduced the demand for farm labour, with convicts who had been assigned being returned to government by employers. The Governor had attempted to tackle the 1818 influx by shipping some 440 of them straight on to Van Diemen’s Land. Bigge simply disregarded the difficulties which would have undermined his case.

Macquarie employed the majority of arriving convicts, and those already in New South Wales, on public works. This classic solution benefited William as a contractor and also meant he had no problem obtaining men for Clarendon. T. G. Parsons argues that Bigge ‘consistently ignored’ evidence that landowners were adequately supplied with agricultural labour, notably Jamison, Bayly and John Macarthur, ‘whose 47 convicts included 45 percent of mechanics and agriculturally skilled men’.³⁵ William told Bigge: ‘Myself and my sons employ about 100 men’ and described the many trades carried out on his own estate.³⁶ By 1823 he was employing 128 himself.³⁷

Bigge might have been concerned with the treatment of assigned convicts by their masters and, by implication, what kind of men those employers were. In fact, he devoted very few questions to the subject. What did emerge was to William’s credit, also illustrating the disparities between different employers’ attitudes. He told Bigge: ‘Our ploughmen and labourers are paid by the year from at not less than £10 and many as high as £15. When we employ them by task & they are good working men they are capable of earning considerably more. Some mechanics are given from £15 to £25.’38 At this time the official wage had recently been raised by Macquarie from £10 to £11 and for women to £7. It was intended to cover necessary domestic expenses (wages were abolished by Brisbane in 1823). Task work was paid for on completion of a specific job, after which the convict was ‘on his own time’ and both could, and often did, get up to no good. Macquarie would have liked to abolish it.³⁹

Overall, William estimated his workers cost him at least £25 12s a year each, some of this in rations. John Blaxland stated that each of his convicts set him back a very similar amount, £24, charging the rations at £14, while free shepherds earned between £15 and £25, with rations added.⁴⁰ By contrast, Gregory Blaxland, thought: ‘The ration is fair, but the wages are too high. £4 in necessaries would be sufficient’.⁴¹ A sterling coinage, as opposed to local notes and coins, known as ‘currency’, was firmly established in 1818, when the Bank of New South Wales was founded. William told Bigge that ‘they now receive their wages in money or in cloathing [sic] and other articles of necessity at a sterling price’.⁴² This was much better for the convicts. William was also opposed to clothing being given in lieu of wages and in a significant letter to Bigge emphasized the need to give assigned men some extra small comforts. He wrote:

It is laid down in law that ‘the Master shall not give his servants any money or useless thing unless they have a proper stock of clothing’ … what is he to do for Tobacco, Soap, thread to mend his clothing and little comforts that they want when unwell … or now and then getting a day’s recreation? … he would be like a slave without any stimulus for exertion.⁴³

Providing a stimulus to convicts to work well was important, not that Cox was alone in realizing it. With the currency stabilized, labourer convicts in the colony could be better off materially than they would have been as countryside workers in England, except for their lack of freedom and the threat of the lash. By the time of the mid-1820s in England William Cobbett recorded that farm workers would be earning only seven pence a day, six days a week, without board or food.44 Convicts were fed, clothed and provided with some sort of medical care.

This was certainly true of William’s community at Clarendon, where his first manager, the Irish exile Joseph Holt, referring to his early days at Brush Farm, recorded that ‘His good treatment of the convicts in his service had the happiest effect upon many of those who were so lucky as to get into his service’.⁴⁵ As quoted earlier, William’s idea of a desirable relationship between master and servant was encapsulated when, in the later interview on convicts, he told Bigge that ‘where the man is capable of performing the task with ease to himself, he pleases his Master who makes his life more comfortable’.⁴⁶ He also made the point that there was more control over convicts if they were with a private employer, although not if they were with an emancipist smallholder, when he considered that master and servant would get up to mischief together.

William saw female convicts as either wives or domestic servants, as most of them were. But not, as so many others did, as inevitably being drawn into prostitution. Macquarie had soon after his arrival unequivocally condemned all cohabitation unsanctified by marriage ties in an official proclamation.⁴⁷ William, less puritanically, saw women as a stabilizing influence in society, although his frequent references to the desirability of marriage validate the contribution which he felt women made to family life. This reflected what they could become. From the moment of their arrival females were treated differently to men and were sent to employers almost immediately. Numerically they were far fewer. Charles Bateson estimates that from 1810 to 1819 the number of women transported was 1934 as against 11,650 men.⁴⁸ But they possessed many skills which the colony could increasingly utilize. Deborah Oxley summarizes a wide range of prior occupations, with 40 skills predominating, including nursemaids and laundrywomen, while 22.22 percent were housemaids. There were milliners, bootmakers and even five schoolmistresses.49 Female skills needed no adapting to the environment and convict domestics played a vital role in the households of William and other landowners, although he and they sometimes suffered from their thefts.

Strangely, William thought female servants should not be paid at all, because they were living with the family, as he told Bigge in a letter of May 1820. Generally speaking, domestic servants were ‘provisioned well’, although they slept ‘outside the house in a detached kitchen or outbuilding’ for fear of theft.⁵⁰ This does not seem to have been the case at Clarendon, although the kitchens were separate, while Elizabeth Farm had ‘A Kitchen with Servants’ Apartments’.⁵¹ William’s female servants really did live in, much as they slept in the attics or basements at English country houses, which William Jnr’s did in the basement at Hobartville, but in England they were paid.

The second role of convict females was as women available to men. Nothing that William told Bigge suggests that he thought women were merely providers of sexual services. Joy Damousi suggests that convict women were ‘assigned only one function – they were there primarily as objects of sexual gratification’.⁵² True, some employers did take convict servants to their beds. D’Arcy Wentworth lived with and finally married a convict woman, which hardly fits Damousi’s description, but it did cast doubt on his being a true gentleman. Between 1826 and 1831 Darling gave inducements to women who found husbands, so that husband and wife could be assigned to the same master. In 1831 William Jnr encouraged two employees, Agnes Wicks and Samuel Leicester, to marry so that the man could get a ticket of leave.⁵³

Bigge devoted more attention to the Female Factory than to any other aspect of the women’s lives, on account of its cost. It was William’s belief that women ought to be in domestic service and that the factory had given them ‘an aversion to service in the respectable families in the country’.54 His main concern was whether the factory produced potential domestics, a narrow-minded approach, which characterized his views on female convicts.

The Commissioner also asked William if ‘the encouragement held out to Prisoners to marry by giving them the privilege of tickets of leave is attended with good effects’. Convicts were allowed a ticket of leave if married to a free person. William expressed doubt about this change to ‘comparative freedom’ through a convict marrying and settling down. In practice, in 1818 he had helped a life prisoner, named William Price, to establish himself at Bathurst and to start a new life when he got married.⁵⁵ He did not share the strong views of the chaplain at the Hawkesbury, the Reverend Robert Cartwright, who was robust in attacking the exemptions attendant upon marriage, telling Bigge that such indulgences would be ‘making an holy Institution subservient to the vilest purposes, which is frequently done in this colony’.⁵⁶ Subsequently, marriage was increasingly seen by the authorities as a reward for good behaviour, rather than as a right.

There were various ways in which a convict could attain freedom. Convicts could become free by completing their term of servitude, or relatively free through indulgences, emancipation and, for a few, full pardons. These could be recommended to the governor annually. The men employed on the Blue Mountains road had been rewarded with pardons for their work, Macquarie telling Lord Bathurst, ‘They being a considerable time in this Country and of Decent Conduct’.⁵⁷ This was the focal point. If men worked and behaved well, in William’s view also, they merited encouragement and the starting point toward emancipation was the ticket. Yet when Bigge asked him whether issuing them led to good conduct among the convicts, he replied guardedly: ‘I think that tickets of leave are preferable to emancipations. In the first instance the holder is always amenable to the magistrates as a convict in case of misconduct … an emancipated man is out of the reach of the jurisdiction of the magistrates for offences committed by him.’⁵⁸

This was a considerable admission. On 9 November 1819, two weeks before William’s interview on agriculture, Macquarie had admonished all the magistrates over the issuance of memorials (for indulgences) ‘on behalf of any person whatever’, no doubt at Bigge’s insistence.59 Not that this stopped William doing so. In May 1820 he tried to obtain a relaxation of sentence for a John Stubbs who had been sent to Newcastle. Campbell, the Colonial Secretary, responded that unless the man’s conduct had been ‘steady and correct’ he should be retained there, ‘as in the late case of another person who had been recommended by Mr Cox’.⁶⁰ However, Macquarie himself performed a volte face by later strongly defending William’s recommendations, which he said ‘must necessarily rest with those who have the superintendence of men confided to them’. He went on to tell Bigge: ‘I feel that too much stress has been laid on the rumours to his [Cox’s] prejudice, and perhaps they have had even too much influence on my own conduct towards him latterly’.⁶¹

Pardons had become another explosive subject. In his report the Commissioner said: ‘In consequence of the suspensions on the annual distribution of pardons … Mr Cox and the magistrates of Windsor have thought themselves justified in giving passes to these men [who had laboured on the normal roads] to work as it is termed “upon their own hands” … such a pass having been given more frequently than by any other person, was vulgarly termed “Captain Cox’s liberty”.’ Bigge seems to have been criticizing both tickets given for government work and private employment.⁶² He concluded that ‘Mr Cox, a gentleman much distinguished for experience and sagacity, has observed a want of authority over their convict servants’.⁶³ This begs the question of whether William was considered a ‘soft touch’ by the convicts. The complaints laid against him at Bathurst, summarized in Chapter 8, suggest so.

Macquarie saw emancipation as the route to bringing convicts back into society. As a magistrate, William did not object to emancipists being appointed to the bench, and had long collaborated with Simeon Lord. This was another major source of disagreement in the colony between the Governor and the exclusives. Macquarie: ‘saw the necessity … of extending to them [ex-convicts] the same consideration … had they never been under the sentence of the Law’.64 William’s neighbour and fellow magistrate, Archibald Bell, also a former New South Wales Corps officer, saw convicts as ‘once having been tainted, unfit for associating with afterwards’, except for those sent out for ‘political errors’. For prisoners to become emancipated was one thing, but for them to be raised to an official position, like the magistracy, was unacceptable. He had refused to sit alongside the emancipist JP Andrew Thompson, who Macquarie so admired, and believed that ‘the feelings and sentiments of the respectable persons in this Colony are uniform on that subject’.⁶⁵ Bell’s position was less extreme than Marsden’s, less liberal than William’s.

Back in London Bathurst decreed that ‘No emancipist was to be appointed to civil office or the magistracy until he had proved himself qualified by his conduct and character’. By 1817 he had been ‘compelled to conclude that most of the emancipists elevated to positions of trust were unfit for such preferment’ and urged restraint on Macquarie.⁶⁶ This was to be the official line, and the attitude of the majority of the settlers, for the next two decades.

Almost equally controversial was the Governor’s policy of allotting ex-convicts small land grants as the foundation both for their rehabilitation and the development of agriculture, even though its origins went back to Grose’s time. To then give them convict servants was even more so. Interviewing William about convicts in December 1820 Bigge probed him over it. Had the ‘practice [of assignment] been changed since the arrival of Govr Macquarie?’ William replied that it had changed about 1811 and ‘it is now customary to assign convicts to those who hold as small a quantity as five or ten acres of land, provided the District Constable reports to the magistrate they are enabled to maintain them’. This frequently meant assigning them to ex-convicts. William said Macquarie had ‘informed me for my guidance that it was his wish that this should be our general mode of distributing them’.⁶⁷

Ritchie describes what had resulted: ‘Only two fifths of the ex-convicts to whom Macquarie had granted land throughout his administration continued to occupy their farms in 1821 … they lived in rudimentary hovels and exhausted their soil by overcropping; they worked in paddocks beside their convict assignees in shared defeatism’.68 William was all too familiar with this miserable situation on the Hawkesbury, which Bigge himself observed in the aftermath of the 1819 flood. He did not approve. Back in 1811 he had ‘been careful to prevent Prisoner settlers being set down for servants’ as a magistrate and rejected many without ‘the Means of Maintaining themselves’.⁶⁹ He now told Bigge, ‘If a convict is badly inclined he has a greater opportunity of doing wrong than if placed with a respectable settler’, adding that ‘many instances have occurred where they both have combined to commit the same crime’.⁷⁰

Giving evidence on agriculture in 1819, William had said that ‘an emancipated convict had much better remain as a labourer’. A ‘great majority have sold their lands and are reduced to poverty’.⁷¹ Possibly he was recalling the numerous failures after the March 1819 floods (or those of 1817). But Bigge had reminded him that some emancipated convicts were thriving and successful people. ‘Certainly,’ he later contradicted himself by admitting during the interview on convicts, ‘& I would point out many who now have large families and considerable stock, who began with nothing more than the land they got.’⁷² In the end Bigge concluded that: ‘an emancipated convict, without capital or means of cultivation’ could not so manage 30 acres ‘as to derive subsistence or profit from it’.⁷³

The convicts’ true character, on which the future of the colony would depend, was ever controversial. ‘Let a foreigner, a stranger,’ William later wrote to Bigge, ‘be told that it is the convict, the refuse of our country, that have performed nearly all the labour that has been done here in the short space of thirty years and I think he would be astonished.’⁷⁴ That they were indeed not the refuse of Britain is shown by Stephen Nicholas and Peter R. Shergold’s researches. They write: ‘All three of our separate measures of the convict workers’ human capital – their occupations, literacy and height – point to the same conclusion: the convict settlers sent to New South Wales were ordinary members of the British and Irish working classes’.75 In the early decades of the colony the inherent wickedness of criminals had been a commonly held belief. But it has been calculated that in the period 1810– 19 those transported were overwhelmingly aged between 15 and 29, which meant they had the youth and energy, once free, to develop the colony. ⁷⁶ Would they, and their children, enjoy the rights of British citizens?

Transported felons had common law rights in the penal colony which they would not have enjoyed as prisoners in England, such as the right to petition, bear witness, own property and marry. Trial by jury could have been considered implicit in this. But at the time of Bigge’s visit all trials were conducted initially by magistrates, then if necessary by the Supreme Court in Sydney. Both trial by jury, and more particularly having ex-convicts serving as jurors, would have been steps too far for both the authorities and many settlers, even though several ex-convicts were magistrates. Bigge asked William if the idea of ex-convicts acting as jurors had been discussed. As he probably knew, William had been at a meeting on 12 February 1819, resulting in a petition to the home government asking for ‘that great and valued inheritance of our ancestors, trial by jury’, with 1260 signatories. This was refused by Bathurst the following year.⁷⁷ The petition had been ‘a fresh and historic conjunction of nearly all exclusive and emancipist interests’.⁷⁸ It was of keen concern to Bigge.

William told him: ‘It was considered at the meeting that persons whose sentences were expired would be legally capable of acting as jurors and that no further objections could or ought to exist to their so acting’. But there had been disagreement over whether those privileges ought to be allowed to convicts pardoned by the governor or only those given freedom by the higher authority of the King. ‘Are such persons morally competent to Discharge the office of Jurors?’ Bigge asked. William retreated, suggesting that some ex-convicts would be unfit ‘as they are too much tainted with effects of crime’. He then prevaricated, saying ‘but I do not think the time has arrived yet for introducing the Trial by Jury upon any Plan’.⁷⁹

Here William was reflecting a serious division in the colony between those who saw the convicts as future citizens, and those like Archibald Bell and Marsden who could not countenance their being given public responsibilities. In any case, there might by then have been enough free citizens to sidestep that possibility. Gregory Blaxland, when interviewed, thought there were enough ‘persons who had not been transported’ to form a jury.80 William’s own response was half-hearted. Bigge eventually found ‘among all ranks’ a desire to see jury trial introduced ‘[but] the time was not ripe for its introduction in the penal colonies’.⁸¹ When trial by jury was introduced, many years later, no emancipists were selected.

A second ‘right’ which William told Bigge about was imaginary. It was the convicts’ ‘right’ to own the land of the colony they had laboured to create. William explained: ‘They give a Decided Preference to those who have been convicts … they think that the Free People have no right to the possession of lands in this colony’. Did ‘convicts look on a grant of lands as their right?’ Bigge asked. William replied cautiously: ‘latterly they have been inclined to hold that opinion’.⁸² He was evasive, even though others had made similar observations (which he was unlikely to have known). This careful conversation presaged a crucial later change in the colony, when the offspring of the emancipists asserted their rights as native-born citizens in the 1840s. The naval surgeon Peter Cunningham noticed, on a visit in 1826, that ‘currency lads’, children of convicts, did not like working for settlers as ‘they naturally look upon that vocation as degrading’.⁸³

Thanks to a shortage of skilled men among the predominantly young convicts arriving, there was resentment against William for favouring himself, as a magistrate, in the allocation of ‘mechanics’. Chapter 7 includes discussion of Commissioner Bigge’s investigation of such allegations. Surprisingly, however, Bigge’s interviews with William Cox, Archibald Bell and the Blaxland brothers did not touch on how the assignment system helped the government or the welfare of the colony. Atkinson is critical of the landowners’ behaviour at that time when he writes: ‘Until the mid-1820s employers in both New South Wales and Van Diemen’s Land thought of the assignment system as an employment exchange … To a progressive mind many employers seemed to do too little for the improvement of the country. They also failed to understand that they were agents of the state in the management of their men and women.’84 Bigge did not appear interested in how the private interests of landowners could be reconciled with and support the needs of government. Yet from its inception the assignment system had been intended to do exactly that, both to boost food production and save government expense by taking prisoners ‘off the store’. However, Bigge had his agenda, and ‘once he developed an approach, his investigation was directed to reinforcing his opinion’.⁸⁵ However he did end up shedding an unprecedented light on how the colony was run.

Two pictures emerge from the evidence just reviewed; one general to the colony, the other individual to William Cox. The effect of the report in terms of the economy was an encouragement of pastoral enterprise, which attracted new free settlers. But Macquarie had believed in development ‘by means of small land settlement … linked with the redemption of the wicked.’⁸⁶ That ideal of rehabilitation was abandoned. Recognition of the part emancipists could play in developing the colony was set back a generation. The rights which convicts should have had, as British citizens, were not recognized. Bigge’s brief had been to reduce public expenditure. As the jurist J. J. Spigelman points out: ‘He focussed on the idea by which increased severity of the convict experience could … also reduce public expenditure in the colony. This could be achieved by ensuring that a greater proportion of convicts were assigned to private employers, especially pastoralists.’ Bigge was a bureaucrat and, even though he identified sheep farming as the future of the colony’s economy, a wider vision for the future was not on his agenda.⁸⁷

William himself emerges as liberal and humane, understanding convicts’ feelings about the country their labour was creating. If he was evasive in giving evidence to Bigge, it was not without reason. In public life he is revealed as continuing the eighteenth century’s blurred distinctions between public and private property. That he exploited his official position, as did others, cannot be in doubt. But the complaints levelled against him were, if seen in proportion, minor compared to his achievements. His assigned servants were well treated, clothed and housed. He gave them incentives and assisted them towards tickets of leave and emancipation. Such liberal instincts would lead, in the 1820s, to his assuming a benevolent public role in the colony.