This article was published in Australian Dictionary of Biography, Volume 1, (MUP), 1966
John Thomas Bigge (1780-1843), judge and royal commissioner, was born on 8 March 1780 at Benton House, Northumberland, England, the third son of Thomas Charles Bigge, the high sheriff of Northumberland. He was educated at Newcastle Grammar School, Westminster School (1795) and in 1797 entered Christ Church, Oxford (B.A., 1801; M.A., 1804). Called to the Bar at the Inner Temple in 1806 he established a successful practice interrupted by a course of study in Spanish law at Madeira. This probably influenced his nomination in 1813 as chief justice of the former Spanish colony of Trinidad, where he served for four years. He discovered many flaws in the jurisdictions of the courts there and stimulated the legislature to rectify them. A registry of deeds was established on his advice. Governor Woodford appointed him senior member of the Colonial Council and judge of the Vice-Admiralty Court and recommended him for a Spanish title of honour, Alcalde Mayor, acknowledging his 'arduous exertions in the course of his judicial administration'. Because of urgent personal business in England Bigge was given leave in 1818, but his departure from Trinidad was permanent, for in 1819 he accepted appointment as commissioner of inquiry into the colony of New South Wales.
Bigge's assignment to New South Wales sprang from Bathurst's decision in 1817 to examine the effectiveness of transportation as a deterrent to felons. His royal commission, issued on 5 January 1819, authorized an investigation of 'all the laws regulations and usages of the settlements', notably those affecting civil administration, management of convicts, development of the courts, the Church, trade, revenue and natural resources. In three letters of additional instructions Bathurst suggested the criteria on which the inquiry should operate. Transportation should be made 'an object of real terror' and any weakening of this by 'ill considered compassion for convicts' in the humanitarian policies of Governor Lachlan Macquarie should be reported. Where existing administration was too lenient the commissioner could recommend the establishment of harsher penal settlements. He was also to disclose confidences of the private or public lives of servants of the Crown and leading citizens and officials 'however exalted in rank or sacred in character'. He thus left England in the dual guise of public commissioner of the Crown and of private inquisitor for the government.
On 26 September 1819 Bigge in the John Barry reached Sydney under a salute of thirteen guns. Macquarie, though receiving him cordially, was doubly shocked. He had little warning of the official inquiry and could not understand that his own request to resign the governorship had not been acknowledged. He did not know that Bathurst's conciliatory postponement of the resignation had strayed in the mails and he must have taken the commissioner's presence for a tacitly uncompromising answer. More humiliating were the orders that he comply with Bigge's directions and accord him precedence next to himself as governor. Macquarie, asserting a complete personal control, had converted New South Wales from a rebellion-torn penitentiary to a settlement of substance. In his personality were mixed a broad sense of justice and a humanity far ahead of Georgian concepts, manifest in his willingness to readmit emancipated convicts to society without any regard for their past. To Bigge such an attitude was incompatible with Tory concepts of the purpose of the criminal law and, with added prejudice from his experience in slave colonies, he assailed Macquarie's methods vehemently. The governor, long unused to a superior, affronted by the challenge to his authority and resentful of Bigge's frequent proposals for changes, was not prepared to submit quietly.
They were men of essential differences: Macquarie was a professional soldier of humble birth, practical, far-sighted, humane, and a specialist in the peculiar qualities of government in New South Wales; Bigge was a professional lawyer, an aristocrat, academic, disposed to judge everything by English standards, ignorant of the special problems of the colony, much younger than Macquarie and socially incompatible with him. Bigge found more in common with the Macarthurs and resorted often to their company as, finding the governor increasingly irascible, he 'nearly abandoned the hope of being able to influence him in any changes'. Private differences of opinion between them became embarrassingly public. Bigge rebuked Macquarie and elicited an apology from him for circulating to the magistrates and clergy a questionnaire on the state of the colony, in derogation, so Bigge asserted, of the terms of his commission. He was less successful in demanding the ex-convict William Redfern's dismissal as magistrate, to which office Macquarie had insisted upon appointing him in spite of Bigge's disapproval.
Because of these conflicts, Bigge's methods of inquiry should have been beyond reproach, but they were not. It was common knowledge that evidence was taken informally, often in private, with no distinction between sworn and unsworn testimony. Bigge declined to be a magistrate lest the necessity of giving all evidence to him on oath deter some of the witnesses. The thousands of pages of the transcript of evidence form an interesting but often specious chronicle. The governor himself believed that many witnesses were asked 'Have you any complaint to make against Governor Macquarie?' and abundant examples show that the inquiry did not enjoy judicial detachment. Witnesses were not cross-examined and no particular rules, let alone rules of evidence, were observed. On the other hand Bigge did show great perspicacity in sifting the mass of evidence even though he necessarily derived false conclusions from untested opinions.
Bigge prepared three reports which were printed by the House of Commons: The State of the Colony of New South Wales, 19 June 1822 (448); The Judicial Establishments of New South Wales and of Van Diemen's Land, 21 February 1823 (33); and The State of Agriculture and Trade in the Colony of New South Wales, 13 March 1823 (136). These collectively prompted the insertion in the New South Wales Act (4 Geo. IV, c. 96) of clauses to set up limited constitutional government through a Legislative Council, to establish Van Diemen's Land as a separate colony, to enable extensive legal reforms and to make new provisions for the reception of convicts from England. Bigge's work was valuable and important to the colony's development, though his methods were not always laudable and his assessments not without bias. When it is considered how ignorant most Englishmen were of the colony, Bigge's failure adequately to explain its history and to contrast the orderly society which he found to the virtual anarchy existing just before Macquarie took office wrought serious injury to the governor. Bigge's many sound recommendations were eclipsed by hypercritical detail and fastidious refinement unimportant to a remote convict settlement. Among the proposals of substance were the detailing of convict gangs to clear land, sale of crown lands and preparation of adequate registers of prisoners. Most of the other recommendations were so trifling that Governor Brisbane was easily able to implement them when he took office, Macquarie meanwhile trenchantly contesting them in a statement published too late to retrieve his position.
Bigge's first report canvassed four principal themes: general colonial conditions, the convict system, relations between social classes, and Macquarie's programme of public works. Much was made of the alleged mismanagement of convicts, and Bigge seemed little concerned that the convict system was working better than ever before in the colony, that Macquarie's methods had produced and maintained 'peace if not harmony' and that he had curtailed most brutality and violence. Bigge also criticized Macquarie's prejudice in favour of emancipists and disapproved the standing they were permitted in society. He strongly censured the governor's building programme as wastefully expensive and used his authority to discontinue some projects and to make changes in the construction and intended use of other buildings.
Macquarie's opinion that the report 'gave no knowledge of the present state of the colony' was justified by the commissioner's lack of balance. While Bigge properly exposed inefficiency in district constables, theft of government medical stores, flaws in the ticket-of-leave system for convicts, inadequacies of country education, poor accommodation for female convicts, faulty regulation of liquor traffic and a multitude of similar defects, he failed to account for the very real achievements of government. His analysis was unfairly prejudicial of an administration superior to any previously known in the colony which, in addition, enjoyed popular support among the inhabitants generally.
Where the first report was frank and forthright, the second report was evasive and indirect. It disposed of the colonial legal establishments superficially, reserving the most enlightening material for private dispatch to Bathurst. Bigge's supplementary instructions permitted him to report privately on matters of this kind but, having elected to do so, he should not have allowed the public report to become a vehicle of insidious attack on Governor Macquarie. Whereas he relied in his public report on statements by Mr Justice Barron Field and Judge-Advocate (Sir) John Wylde disparaging Macquarie, he admitted privately that he placed little confidence in either of these officers and held clear evidence that Field was not trustworthy. Bigge's lengthy treatment of the old libel case Marsden v. Campbell was obviously calculated to discredit Macquarie by its implication of John Campbell, the governor's secretary. Most of the recommendations in the report affecting the civil jurisdiction originated from Field and, while some credit is due to Bigge for suggesting reforms in the criminal jurisdiction, his part in framing the reconstitution of the courts in 1824 was comparatively small. He merely sponsored submissions of the colonial lawyers, and especially the earlier recommendations of Judge-Advocate Ellis Bent. Bigge actually suppressed popular demands for legal redress, refusing to approve the introduction of jury trial or the modification of the military tribunals which composed the criminal courts. It is extraordinary that Bigge as the first lawyer of any distinction in the colony should have made so little personal contribution to founding a sound legal system. He was concerned rather to draw attention to Macquarie's abuses of the limited legislative and prerogative powers vested in him and to condemn the governor's 'insensibility to the controlling power of the law'. Like so many of the commissioner's analyses, this was correct if judged by the letter of the statute book, but was unrealistically applied to a colony where the rule of law had almost expired only a few years before.
The third report was the most impartial and least contentious. It afforded a generally clear picture of farming and grazing in the Sydney district and west of the Blue Mountains. It did not sufficiently acknowledge the important developments of the Illawarra district and tended to suggest falsely that agriculture was drooping under Macquarie. Otherwise it was well presented and included useful accounts of the state of revenue, trade and the country's economic position.
Bigge returned to England in 1821 and within two years was given a similar appointment to investigate Cape Colony, Mauritius and Ceylon with Major William Colebrooke. They sailed in February 1823 and were in imminent peril of shipwreck during severe storms in the Bay of Biscay. On arriving in July they applied themselves closely to reviewing the general administration of government, the personal influence of each governor, the local establishments, especially judicial and religious, and the financial standing of these colonies. At the Cape they were to examine how far British law could be introduced and the disposition and possible emancipation of government slaves and apprenticed Africans. Slavery and the condition of the Negroes were even more important in their Mauritius inquiry, while at Ceylon their principal concerns were the disposal of land, its cultivation, and distribution of government crops.
The investigations were so detailed and protracted that the colonial government fell almost into abeyance, causing such concern in England that a third commissioner, William Blair, was appointed in 1825 to assist Bigge's work, described as having become 'interminable as the web of Penelope'. Finally reports were produced on finance (1826), government administration (1827), trade, harbours and navigation (1829), native tribes and missionary institutions (1830). Following these, there was a general reorganization of government, a reform of the courts and the establishment of an advisory council at the Cape.
The arduousness of travel and climate told heavily on Bigge after he suffered a leg injury in falling from his horse at the Cape, for which, it is reported, he was treated by a doctor who turned out to be not only a quack but a woman posing as a man. In 1829 he had returned to England for the last time. He continued in poor health and was too indisposed to accept a position to report on clerical establishments in 1832. He never married and lived a solitary life in retirement until his accidental death on 22 December 1843 at the Grosvenor Hotel in London. He was buried as directed by his will 'without ceremony or superfluous expense'.
J. M. Bennett, 'Bigge, John Thomas (1780–1843)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/bigge-john-thomas-1779/text1999, published first in hardcopy 1966, accessed online 11 February 2016.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 1, (MUP), 1966