The retirement of Lord Bathurst, and accession of Lord Goderich, gave
some hope of a change in the form, if not the agents of government. The
colonist expected much from the improved tone of the English executive;
but, except the rescue of the press, the sole effect was a reduction of
British expenditure for the civil government, and in 1827 its total
cessation.
Mr. Hood, a surgeon on half-pay, had offended Arthur by a letter: a
_Gazette_ announcement informed him that he was placed under a ban;[149]
and his name recorded, to prevent his participating in the "favors or
indulgencies of the local government"--a help to official remembrance,
which rulers seldom require. Thus official and opposition parties were
organised: as the distinction became more marked, a social gloom
overspread the capital. Whispers were heard with jealousy. The
mercantile class, who alone could defy the government, and who were
excluded from the "court circles," headed the opposition. "The official
corps," said a satirical lady, who drew a picture of the times, "are
punctilious; fearful of compromising their rank; all _etiquette_." The
entertainments at government-house were ceremonies, rather than parties
of pleasure. As the servant opened the door, he seemed to say, "you may
come in, but don't speak." Some more daring spirit would venture a
remark, as ballast is thrown out to send a balloon above the fogs; but
caution, like Sancho's physician, interdicted the perilous indulgence,
and restored the watchful silence. No Dutchman would willingly endure
the Humdrumstadt on the Derwent, notwithstanding its natural advantages
and commercial promise--a town without a library, and where the common
spirit of detraction was exasperated by competition for those favors the
governor could refuse or transfer. The presence of power was everywhere
felt, and dreaded wherever it could not be defied.[150]
The close connection and constant intercourse between New South Wales
and Van Diemen's Land affected the spirit of both governments. Sir
Thomas Brisbane, whose easy temper and courteous manner rendered him
highly popular, was superseded by Lieutenant-General Sir Ralph Darling,
whose administration after the first few months was a perpetual storm.
The chief justice, inclined to liberal politics, rejected several drafts
of laws which trespassed on the limits of the constitutional act, which
he himself had framed at the request of Lord Bathurst. At his dictation,
the ordinance against the press was less stringent than intended. The
titles of land, the property of masters in assigned labor, he determined
against the government. He was considered the tribune of the people.
Judge Forbes, a Bermudian by birth, was educated in an American college,
and charged with republican tendencies by those who designed to degrade
him.[151]
Brisbane was the patron of the turf club. This office was accepted by
Darling as his successor. He was invited to dine with the members: this
he declined. Mr. Wentworth, as chairman of the day, made certain
observations thought personally disrespectful; and when the governor's
health was proposed, the band struck up, without orders from the
stewards, "_There is na luck about the house_." Darling, informed of
these proceedings, withdrew his name as patron. The club passed
resolutions declaring their approval of Mr. Wentworth's speech. The
governor dismissed the acting attorney general (Moore), the sheriff
(Mackarness), and other officials, for their concurrence with the
majority.
Two soldiers, Thompson and Sudds, to escape from the service, committed
a theft, and received a sentence in the supreme court. To aggravate its
rigour, Darling brought them on parade: stripped them of their uniform,
fixed round their necks collars set with spikes, and loaded their legs
with chains. In a few days Sudds languished and died: this result, so
unexpected, was attributed in part to a latent disease of the liver,
rendered fatal by grief and the pressure of the iron. The affair became
the subject of parliamentary inquiry. Darling was accused of murder by
his enemies: he was vindicated by ministers; but although his motives
were uncorrupt, an arbitrary aggravation of a judicial sentence who
would seriously approve?
These transactions, together with the "Stamp Act" to check the
circulation of newspapers, were noticed in the _Australian_ (May, 1827)
in terms of ironical praise; severe, but not beyond the ordinary license
of public discussion. On the arrival of Mr. Baxter, the attorney
general, the proprietor, Dr. Wardell, was prosecuted in the supreme
court, at the instance of General Darling. Judge Forbes pointed out the
violent straining of the inuendos, and through his charge led on to an
acquittal. Although chosen by the prosecutor, the jury were unable to
agree, and the defendant was discharged. The alleged libel stated that
the stamp act "would immortalise" General Darling "in the annals of this
rapidly improving colony, and act as a passport to the admiration and
grateful respect of posterity." The meaning extracted by the inuendos
was this: "It would render his memory for ever infamous, and cause his
name to be hated and detested by future generations." The judge justly
remarked, that between immortality and infamy there are many steps.
The struggles between the governor-in-chief and the opposition were
watched in Van Diemen's Land with interest. The same parties existed in
both colonies; but Judge Pedder did not participate the political
sympathies of Judge Forbes, and made no pretence to popular applause. To
those who check the abuses of irresponsible power something is due; but
when the balance of human infirmity is struck, it will not be always
found in their favor.[152]
The employment of spies has been charged on Arthur as a chief vice of
his government--a practice hardly less perilous to the innocent than
guilty. Shortly before his retirement from office, Mr. Humphrey, the
police magistrate, was denounced for corruption. Major Honner, who had
formed a disgraceful connexion with Anne Pope, a prisoner of the crown,
applied for her assignment to his service: this Mr. Humphrey refused.
The major then offered to produce evidence against this officer, on
condition that free pardons were granted to his witnesses, one of whom
was found to be his paramour. The governor declined to pledge a reward;
but Honner was assured by a member of the executive that, provided the
results were satisfactory, his recommendation would be favorably
considered. He forwarded a letter to the governor, who satisfied that
the imputation was malicious and incapable of proof, directed the
prosecution of the accuser. The transaction was unfortunate: the
negociation indicated that secret informers were tolerated, and that
pardons might be procured by a successful witness.
Mr. Humphrey, originally a mineralogist, who filled various offices from
the foundation of the colony, received a pension of £400; but soon after
died (1829). The governor eulogised in strong language his official
career.
The recall of Arthur was announced, and the policy of his successor
gravely debated before his career was midway. "It is a fact," said the
_Sydney Gazette_, "Colonel Davies is the distinguished individual." "The
successor of Colonel Arthur," said the _Australian_ (1829), "is placed
beyond doubt. The appointment of Colonel Gibbs is now certain."
Clergymen of such names emigrated about the time, and rumour could
easily supply the rest.
When the constitutional act approached its term, the colonists
determined to seek not only for trial by jury, but a voice in the
legislature. A petition adopted by a meeting held in 1827, was confided
to a deputation, who were instructed to forward it through Arthur, and
to entreat his concurrence with its prayer. A time was fixed to receive
them; but when at the government-house, they were met by a blundering
message, postponing the interview for one hour. Deeming themselves and
their constituents slighted, they declined a second attendance. Arthur
published a vindication of himself: he stated that business of great
importance with Mr. Curr, prevented his examination of the documents; he
had requested the delay only to prepare himself for the audience, and
regretted that the colony were deprived of his friendly offices by an
unreasonable caprice. This paper fell into the hands of the deputation a
few hours after the vessel had sailed with despatches for the secretary
of state. They considered this a manoeuvre, contrived to stifle their
defence; and instantly dispatched a fast sailing boat to pursue the ship
with an exculpatory letter.
By a circular of Lord Bathurst,[153] still in force, it was announced to
the colonists that their complaints must pass through the governor's
hands to the home-office. Duplicates without new matter might be
forwarded by other channels; but an answer could only be expected on
the arrival of the governor's report.
The violation of this rule the deputation imputed to the necessity of
the case; to counteract an attempt of the governor to evade its spirit.
Their promptitude was unavailing: for his share in the transaction, the
name of Mr. Gellibrand was expunged from the list of magistrates, by
Lord Goderich's orders.
The hostility of Arthur to the petition was well understood, and there
were many others who did not sympathise with its object. Sir John Owen
presented it to the Commons without a word. The ministers expressed
their desire to grant free institutions, so soon as the colony was ripe
to enjoy them, when Mr. A. Baring (Lord Ashburton) remarked that
colonies are never ripe for free institutions until they get them.
Mr. Marshall, the shipping agent, attempted to form an association in
London (1828), for the protection of these colonies. All persons,
commercially or otherwise interested, were eligible for membership. A
correspondence was projected with the leading colonists, and it was
assumed the British government would readily attend to representations
emanating from such a source. The scheme did not obtain the support it
merited, and the scattered colonial interests could never be combined
for a joint action. The partizans of Arthur ridiculed the plan, and it
came to nothing.
The constitutional act, which became law, July 25, 1828, to terminate
1836, but extended until now, differs in many of its provisions from the
last. The governor is president, and has a deliberative and casting
vote. The council is increased from five or seven to ten or fifteen; the
oath of secresy is abolished; drafts of acts are _gazetted_; a law
cannot be made by the crown or the governor alone; two-thirds of the
council must be present; although previous duties are confirmed, no new
tax can be imposed except for local purposes expressed in the bill;
ordinances must be conformable to English laws; all statutes in
operation at the date of the act were applied to the colony, all others
may be adopted. A member may draft a bill, which the governor must lay,
_verbatim_, on the council table, with his reasons for refusing to
propose it. A member may record his protest, and a majority is necessary
to pass a measure. The members are appointed by the crown, and vacancies
are filled up by the governor: they must be resident; _ex-officio_ they
are magistrates. The preliminary certificate of the chief justice,
required by the former act, is substituted by another clause, which
compels the council to reconsider a bill declared by the judge repugnant
to the laws of England, or the act constituting the council.
The British legislature, in criminal cases, establishes a military jury
alone: challenge is allowed for direct interests, and magistrates may
act in default of commissioned officers; but in civil actions assessors
are continued. But the local council is authorised to institute trial by
jury, under such limitations as may be deemed meet. It is under this act
of parliament that the colony has seen the jury-box delivered up to
civilians; but awaits the hour which the law itself foretells, when in
recognising the ancient principle of representation it records the
purpose of resuming it, "so soon as the cause shall cease to operate
which had forbidden its immediate observance."[154]
In transmitting this bill, Sir George Murray explained that by the
clause which superseded the veto of the chief justice, it was intended
to avoid a collision of opinion between the high functionaries of
government. Nothing, however, but the most urgent necessity would
justify the governor in setting aside his opinion.[155]
FOOTNOTES:
[Footnote 149: April, 1826.]
[Footnote 150: _Letter from a Lady_ (Mrs. Adey), inserted in the
_Morning Herald_, 1827.]
[Footnote 151: _Mudie's Felonry of New South Wales_, p. 52.]
[Footnote 152: Dr. Wardell was murdered some years after by
bushrangers.]
[Footnote 153: May 20th, 1826.]