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THE CHRONICLE. SATURDAY, DEC: ~IDElt 5, IC.0. THE CENSUS ILL1. FOR 1811. IT was our pleasing duty, on r late occasion, to notice the manly and straightforward conduct of Sir James Dowling and Mr. lustice Stephen in opposing the eurolment of the il!egal and unconstitutional Census Act. The following is a copy of the letter transmitted to his Excellency on that occasion, in which the subject is calmly and ably discussed in all its legal bearings: " New South Wales, "1 November 2nd, 1840. "Srn-An act of his Excellency the'Governor, with the advice of the legislative council of New South Wales, intitutled, ' An act for ascertaining the number of the inhabitants of New South Wales, in the year one thousand eight hundred and forty one,' having been passed by the said Governor and council on the 23rd day of October, 1840, and the salne having been transmitted by your Excellency to be enrolled and recorded in the supreme court, in pursuance of the statute 9 Gen. IV., cap. 83, sec. 22, we have tle honor, by virtue of that statute, humbly to represent that, in our opinion, some of the provisions contained in the said act are repug nant to the law of England, on the following grounds : By the first section, the magistrates of districts are to exhibit notices on the public buildings therein, requiring every householder, &e. to be piepared by a specified time ' to give all such information as is required by the schedule annexed, matked A, to such persons as shall be appointed to collect the same.' " fly the second section, the magistrates are to appoint a person for each district ' to collect the inlormation required;' and such collector is to take an ' account in writing of the number of persons itt the district, and to inform himself of the several particulars specified in the said schedule.' And the ' better to enable such collector to take such account.' he is authorised and empowered to ask such questions of the persons within the district 'concerning themselves, and the number, quality, class, age, &c., of their families, and all such other particulars as may be necessary to fill up the said schedule ;' and every person refusing or neglecting to answer, or wilfully giving a false answer to any such question, is liable to pay a sum not exceeding five pounds, nor less than forty shillings, at the dis cretion of 'one or more justices.' " The schedule referred to it the art merely con tains the heads or matters of information required; but the particulars, it would seem, are to be pro. cured by the e,,lhcrir', by such questions as lie shall put, to enable him to fill up such schedule. Ihe questions which the colhk?tor is empowered to put are not restricted to householders and employers of servants, but they may be asked of all persons ' ie. siding or being in his district,' concerning them. selves as well as their families; andi there is no restriction on the form or number of such questions. They will, of course (in practice), be such as the collector himself tmay deem necessary in his discie; tion to enable him to ' rake the accounit required,' and to 'fill up the said asc1d,.le.' " Schedule A. contains a ' list of questions to be proposed by the collector to every householder, erm. pIloyer of servants, and proprietor or occupier of land ;' and opposite to these questions are to be inserted replies by the householder, if able to write, or otherwise by the collector, under a pecuniary penalty. Amongst these questions is a return of the number of persons on the establishment, the house. holder included, showing what number ' are born in the colony, or arrived free, or are otherwise free.' " If there were nothing in the act but this schedule, (with enactments, that a copy of.it should be given to every householder, who should be com pelled to fill in truly the blanks, or give the required return personally, so as to enable the collector to do so,) we should see in it nothing in point of law to object to. We should think there was nothing ille gal in asking a householder ' how many in your establishment were originally transported hither?' (for that is, in effect, one of the questions involved) merely because possibly he himself might be one of that number; for this would not require him to dis. tinguish individually who are the persons alluded to ; nor would there be anything to identify or point out the parties beyond the bare statement of sex, and whether married or single. "The course pursued as to this point in the Census Act of 1828, 9 Geo. IV., No. 4, was less objectionable than this. It required the master to state only the number of persons 'int his employ' who were originally transported. The priociple of the objection in the present case is, that house holders and others are compelled to give that infor mation respecting themselves, (and this, as it would seem, without any necessity ; for the information, so far as regards every householder or employer, could, we presume, be supplied by the police;) and are so made the instruments of their own degra dation. " If we anticipated such a consequence from the schedule, we should hold it to be illegal. But though we see no such illegality in thiat part of the act, standing by itself, yet, in section 2, taken in connexion with such schedule, we do not conceive that, on the principle above explained, there is mani fest illegality. Part of the information to be ac* quired is, how many persons on each establishment or, in the words of the act, ' in each family') have originally been transported. In order to enable the collector to obtain tits information, Ihe is authorised to ask as many questions as may be necessary of all persons in his district, either concerning their fami lies or themselves. Little doubt, therefore, can be entertained that it will frequently ' become neces sary' to put to individuals the degrading question (one so tempting to falsehood, and so likely to wound and irritate), " Have you ever been trans ported?" It appears to us that to force men, being free, (especially when the object in view might be otherwise effected) to answer such a question under a penalty in case of refusal, or evasion by falsehood, is repugnant alike to justice and law. "'llre are high authorities for holding that, even in courts of justice, a witness, under the obligation of an oath, to speak ' the truth and tile whole truth,' cannot be asked questions the tendency of which is to degrade his character, or rather, that though such questions may be putt, yet he is not compellable to an answer. " If this protection is thrown around a witness as his privilege in a court of justice, the reason of it is surely much stronger when such a question is put at discretion by a mere census collector, to a free person, as " Have you ever been transported?" The law of England makes no difference in tile classes of free Biritishl subjects in respect of their personal rights and exemption from unnecessary annoyonce.-We have the honor to be, your Excel lency's most obedient and most humnble servants, " JAMEs DoWLstO, C. J. '" ALFSRE STsu'E.N. " His Excellency Sir George Gipps, &c." It will be observed tlhat tie learned judges have altogether abstained from discussing the question as to the utility .of tile information sought to be ob tained by the parties who made themselves busy in originating the illegal portions of the act. 'This did not enter into the discussion of the matter as a legal question: it cannot, however, but be apparent to every reader, that this ihformation could only be
serviceable to one of the parties into which this community is unhappily divided, by furnishing them with some imaginary argument for excluding a por tion of their free fellow-subjects from their political rights. If there can be alleged any other motive for prying into the past history of private families, it will be for the representatives of the faction in council to exhibit it. But if no other can be as signed-and of this we feel confident,-it will be for his Excellency the Governor and his honorable council to say if it is wise to legislate for a faction by entertaining this portion of the bill at all. Young or old-male or female-free or bond-Catholic or Protestant-Jew or Gentile-these are all ques. tions that may be usefully put; but to enquire whether or not such a poor man has suff'ered for the errors of his youth, and whether or not such another has escaped, and obtained a seat at an honorable board, with all his unatoned for, are questions that cannot serve any of the purposes of good government, and ought to be erased from the schedule of the act.