2-338 (Original)

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THAT 'ACT OF COUNCIL', or colonial law, most objectionable, is the 'Bushranging Act'. It gives power to any constable, policeman, or executor of the law, to take into custody the body of any person whom they may meet with, unless the party can produce some official document, or convincing proof that he is a free man. To a stranger to New South Wales, and one at a distance, but a vague idea can be conveyed of the annoyance and abuse that this law subjects all persons in the colony to. It places vast power in the hands of the police, who are in general either ticket-of-leave men, or emancipated convicts; and these men are but too frequently happy at the opportunity it gives them to molest free persons, or vent their revenge for some real or imaginary insult or injury, that may have been inflicted on themselves, or their 'pals'. From the operation of the Bushranging Act - originally passed to aid the arrest of convicts illegally at large - the very class of persons, on whose account it was brought into existence, are those best protected.
Every ticket-of-leave man, expiree, or emancipated convict, on obtaining his partial or total freedom, receives from the convict departmens an official document bearing testimony to the fact. On demand, the production of this frees them from further molestation on the part of the police; but the free immigrant has nothing of the kind to produce, if required by any prying constable to 'show his freedom'; the consequence is generally, that unless the functionary of the law thinks fit to be satisfied with the exhibition of letters, or similar matters, the unfortunate free man, whose only fault seems his not having been 'lagged', is dragged to the nearest police station, and forwarded from lock-up to lock-up, till he reaches Sydney for 'identification', occupying not unfrequently weeks on the road. This long period is spent among felons and the scum of the colony, in rough unwholesome lock-ups, or temporary jails, on the coarsest fare. On reaching Sydney, the victim is first brought to the police office, and from thence sent to Hyde Park barracks, the chief convict depot. There an examination has to be undergone of the marks and peculiarities of the body, and a comparison with a register of the convict population, when at length not being recognized as a convict, he is discharged, and allowed to return from whence he came, as soon as he thinks fit. [245] No redress, no recompense, is afforded for long imprisonment and deep injury, although but too frequently caused by wilful malevolence. It may be imagined that it would be easy to procure such a document as would ensure the holder from molestation. But such is not the fact; there is no one authority recognized as capable of granting such. A protection might be obtained with difficulty from the Colonial Secretary; but this is entirely out of the reach of the lower class of immigrants. It maybe thought also that none but the labouring portion of the free population are likely to meet with interruption in their journeys; certainly they are the chief sufferers, but all classes are liable, and are but too frequently made aware that they are in a land where no man is really free.
Some of the principal persons in New South Wales have been subjected to the operation of the 'Bushranging Act'. Ex-Chief-Justice Sir James Forbes was once stopped by an officious policeman, who met him no very great distance from his own abode, and not being able to produce such proof of his freedom as the constable required, he was actually handcuffed, and marched down to Sydney, a distance of near forty miles, for 'identification'. Magistrates also have been thus arrested, and in some instances forwarded to the very police station where they themselves presided, on the way to Sydney. It would be supposed, now that the convict population forms such a small portion of the inhabitants of New South Wales, that such a restriction on the liberty of the subject would be abolished, but no such thing: it still continues in full force.
The author was some years since, in the early days of Port Phillip, proceeding thither from Sydney, He had crossed the Murray, and was rather better than half way on his journey, when he was overtaken by a corporal and three privates of the mounted police. The corporal immediately required the production of the accustomed 'freedom'. The answer was that the author had no such thing, but that the corporal was at liberty to inspect some letters and papers, which would soon satisfy him. This was declined; how was the corporal to know that the papers were really the property of their then possessor, as there were many escaped convicts making their way overland to South Australia, of whom, it was possible, the writer might be one. It was, therefore, absolutely necessary that he should proceed, in custody of the corporal, back to Yasa, the nearest town in New South Wales, and thence be forwarded to Sydney for identification.
From the place where this rencontre occurred, Yam was distant upwards of two hundred and fifty miles; whilst Melbourne, the destination of the writer, was little more than one hundred and fifty. On the day of the occurrence, the Ovens River had been crossed, and thither were the steps of the party retraced: and by dark, the small bush hut, that afforded temporary accommodation to the traveller on its banks,- was reached. Here the night was to be spent: in vain representations were made to the corporal, and every description of document but the 'legal one' produced to prove the freedom of the writer: he would not even inspect them, much less acknowledge that he had seen his prisoner twice on previous journeys, between Sydney and Port Phillip, and must, therefore, be in his own mind satisfied of his respectability and freedom. [246]
In disgust, the author threw himself on the sheet of bark and a few blankets, that had been spread for his bed, mentally anathematizing the laws that gave power and opportunity for so much wrong. As he lay, the conviction that the corporal had some especial reason for his conduct towards him became impressed on his mind; he therefore determined to feign sleep, and watch narrowly the conversation of the police party, who were seated in conviviality round a bottle of rum, for the sale of which, at that period, the house was not licensed, but which the police knew well how to procure, as it was sold on the 'sly'. Time passed on, the prisoner feigned to be in a sound sleep, whilst the police, as they imbibed, became more communicative; at length, considering from his breathing that he was incapable of hearing them, they laughed outright at the trick they had played him, for the purpose of affording the corporal an opportunity of leaving his post, and proceeding to Yass for no other object than to visit his sweetheart, an innkeeper's daughter, who dwelt there. It appeared the corporal had applied to his superior for leave of absence, but this having been refused, he determined to obtain his object at the author's expense.
So indignant did the discovery make the prisoner, that he sprung from his recumbent position, and at once stated what he had heard; but after the first start, he was only laughed at, the conversation denied, and the host called to witness that none such took place - which he was obliged to affirm, being in the power of the police as a 'sly grog seller'; the prisoner was then assured, if he made any more disturbance, that a pair of handcuffs would be resorted to as a quietus. Discretion was the better part of valour, so the author betook himself to sleep, after revolving in his mind the possibility of escape from such an unpleasant position.
Morning came; with it all were astir, and having despatched a bush breakfast, mutton, damper, and tea, the horses were brought forth, and every preparation made to cross the Ovens River, which ran close beneath the hut.
At the time, the river was swollen with rains, and the passage was no easy matter. It was effected by means of a small punt, made fast to, and traversing on, a cable, which was attached to a tree on either bank. One by one each rider entered the punt - navigated by the host of the last night's abode - and leading his horse, swam him across with the punt, supporting his head by a collar above the water.
All had crossed but the corporal, one private, and the prisoner; the corporal had led his horse into the river and entered the punt with its manager, when the thought occurred to the author, that he might escape from durance vile. His horse was now the only one that had not crossed, and but one constable or policeman remained with him as a guard. The decision come to, it was soon carried into effect. Producing a colonial pound note, the writer urged his guard to run up to the hut and procure a couple of bottles of rum, to cheer the party on their way. [247] The hut being but fifty yards distant up a slope, no thought of escape entered the head of the policeman, as the saddle, arms, and travelling bags of his prisoner were on the other side; and nought remained but the horse with a bridle on; so he at once cheerfully complied with the request. His own arms and horse had been conveyed over with the corporal, who was by this time in the middle of the stream, gradually progressing towards the other side, as the punt was pulled over by the rope, A case-knife was produced; unnoticed the rope - which secured the communication - was severed, and punt, corporal, horse, host and all, swept away down with the stream. There was no time to wait to see what would become of them; at one bound, the powerful and swift mare the author rode, was mounted, and whilst the guard was yet in the hut, he dashed up the hill and swept into the forest. A couple of shots from the far side of the river were fired, but ineffectually, on account of the distance, and the author disappeared from the sight and power of his late captors.
Well aware that there was no horse at the hut, and that it would take some hours, if not days, before a communication could be effected with the far side of the stream, no anxiety of immediate or effectual pursuit was entertained, as the speed and bottom of the author's horse would soon render such ineffectual. The only question was, how to obtain a saddle before any other police were fallen in with; for there was a station at the Broken River, which must be passed, as it was the place where the punt was kept for crossing the stream. This difficulty was settled by the author's knowledge of the country, and he was enabled to obtain a loan of a saddle on the deposit of its value, and on explaining the circumstances at a cattle station, a short distance off the track.
Passing the Broken River police station, a note was there written and left for the disappointed corporal, directing him to forward the writer's saddle and traps to Melbourne by the first opportunity; otherwise, an immediate and urgent representation of the circumstances would be made to Major Ryan in Sydney, who was, at the period, in command of the mounted police of the colony. Three days after, the writer arrived in Melbourne, and before the lapse of ten more, he was in possession of his saddle, arms, and traps, which the corporal duly forwarded, with an humble expression of regret at having been so mistaken in the character of his late prisoner, of whose respectability he had become satisfied. There the matter dropped; as the writer considered a severe ducking, with a narrow escape of drowning, and the loss of some of his accoutrements, a sufficient punishment for the corporal, without representing his conduct to his superiors.
Such is one instance, among many that could be related by any one who knows New South Wales, of the abuse of the power entrusted to the police by the 'Bushranging Act'; and when men of station are subjected to such treatment, what at times must be the position of the labouring, friendless, immigrant? For it will scarcely be believed, that one arrest-journey to Sydney, and subsequent discharge, does not obtain for the victim any protection against the immediate recurrence of the same injury and suffering. [248]
If, after he is discharged from custody, he makes application at the police office, to obtain a protection against future arrest, the answer received is, that the police office has no power to grant it; that it is not a part of the duty of the officials there. In like manner from post to pillar, and office to office, is the unfortunate immigrant, or free person, bandied, till at length he discovers that he must reconcile himself to an evil which he cannot guard against.
This liability of arrest, and curtailment of the liberty of the subject, is one of the chief objections to New South Wales as the seat of extensive emigration; but the period cannot be far distant when the Legislative Assembly will recognize the evil, and take speedy and effectual steps to abolish it.
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