FOOTNOTES:

FOOTNOTES:[232]Agricultural Dinner, October 18, 1843.[233]Despatch, June 28, 1843.[234]Despatch, No. 34, 1843.[235]NO TAXATION!A meeting will be held at the Theatre.Auctioneers, rise at our bidding.Pawnbrokers, pledge the public your interest.Butchers, show your pluck.Publicans, prove your spirit.Stage-coachmen, drive on.Cabmen, make a stand.Carters, put your shoulders to the wheel.Eating-house keepers, support the constitution.Boatmen, a long pull, a strong pull, and a pull altogether.God save the Queen!August 6, 1845.[236]Despatch. December 5, 1843.[237]January 24, 1845.[238]Despatch, Jan. 31, 1845.[239]Correspondence, January 5, 1843.[240]Mr. Maclean's Report, 1844.[241]Dr. Hampton's Report.[242]Despatch, January, 1845.[243]Mr. O'Connor, however, had protested against the police expenses in the following terms:—"Because, were this not a penal colony, one-third of its present police force would be adequate to its protection. I therefore do not consider that in common justice the colonial government ought to be required to defend themselves, at their own expense, against the aggression of convicts sent hither principally for the benefit of the mother country" (July, 1844).[244]Letter of Captain Swanston to Lord Stanley.[245]Despatch to Sir G. Gipps, Jan. 1st, 1845.

[232]Agricultural Dinner, October 18, 1843.

[233]Despatch, June 28, 1843.

[234]Despatch, No. 34, 1843.

[235]NO TAXATION!A meeting will be held at the Theatre.Auctioneers, rise at our bidding.Pawnbrokers, pledge the public your interest.Butchers, show your pluck.Publicans, prove your spirit.Stage-coachmen, drive on.Cabmen, make a stand.Carters, put your shoulders to the wheel.Eating-house keepers, support the constitution.Boatmen, a long pull, a strong pull, and a pull altogether.God save the Queen!August 6, 1845.

[235]

NO TAXATION!A meeting will be held at the Theatre.Auctioneers, rise at our bidding.Pawnbrokers, pledge the public your interest.Butchers, show your pluck.Publicans, prove your spirit.Stage-coachmen, drive on.Cabmen, make a stand.Carters, put your shoulders to the wheel.Eating-house keepers, support the constitution.Boatmen, a long pull, a strong pull, and a pull altogether.God save the Queen!

August 6, 1845.

[236]Despatch. December 5, 1843.

[237]January 24, 1845.

[238]Despatch, Jan. 31, 1845.

[239]Correspondence, January 5, 1843.

[240]Mr. Maclean's Report, 1844.

[241]Dr. Hampton's Report.

[242]Despatch, January, 1845.

[243]Mr. O'Connor, however, had protested against the police expenses in the following terms:—"Because, were this not a penal colony, one-third of its present police force would be adequate to its protection. I therefore do not consider that in common justice the colonial government ought to be required to defend themselves, at their own expense, against the aggression of convicts sent hither principally for the benefit of the mother country" (July, 1844).

[244]Letter of Captain Swanston to Lord Stanley.

[245]Despatch to Sir G. Gipps, Jan. 1st, 1845.

The development of the new convict system gradually disclosed its adverse character, and excited general dissatisfaction and alarm. The press warned the people that an attempt to change the whole aspect of the colony, from a free to a mere prison community, could only be resisted by instant measures. Abolition of transportation was spoken of, although as a contingency rather than an object desirable; and a few only of the colonists were anxious to speed that event. Among these was Mr. Pitcairn, a solicitor of Hobart Town, a gentleman never before prominent in politics, but eminently fitted to lead the community on this question. The first petition of a series unexampled in number was drawn up by him, and offered to the colonists for signature. All its allegations were supported by documentary evidence, drawn from the public records.

The location of the gangs exposed them every moment to public observation. A frightful sketch of their distribution was drawn by the author of the petition. "If," said he, "you look at the last map of Van Diemen's Land (Mr. Frankland's), you will see, at the entrance of D'Entrecasteaux's Channel, South Port. Here there are 500 men. Above, at Port Esperance, 400 men. Above this, along the banks of the Huon, the farmers begin. At Port Cygnet, up the Huon, there are 350 men; proceeding up the channel, you come to Oyster Cove, 250; Brown's River (just above Worth West Bay and five miles from Hobart Town), 500. Taking now the main road from Hobart Town to Launceston (the lands on each side being all settled, fenced, and improved), you will see Glenorchy (eight miles from Hobart Town), 150 men; Bridgewater (twelve miles), 100; Cross Marsh (thirty miles), 100; Jericho (forty miles), 100; Oatlands (fifty miles), 180; Ross (seventy miles), 120; and Cleveland (86 miles), 250. At Perth (one hundred miles from Hobart Town and nineteen from Launceston), there was another gang, which was recently withdrawn. Leaving the main road, there are at the Broad Marsh, 240 men; at Fingal, 400; at Buckland, 250; at Jerusalem, 500; at St. Mary's, 300; at Westbury, 200; at Deloraine, 300; at the Mersey, 200. In all, twenty gangs, comprising 5500 men."

The petition this statement sustained desired the most moderate changes:—the reduction of the number transported to Van Diemen's Land to the standard of 1840; the amelioration of the discipline; the relief of the settlers from the expense occasioned by the presence of prisoners; and the gradual and total abolition of transportation. It was not adopted at a public meeting, but was published in several newspapers, and deliberately signed by those who admittedits facts and joined in its prayer. Upwards of 1,700 persons attached their names, including six non-official councillors, forty-one magistrates, and many other persons of influence.

The committee who took charge of the petition requested the governor would testify to the truth of its allegations and the respectability of the petitioners. In few words he promised compliance. He accompanied the petition with a despatch generally hostile to the object and unfriendly to the character of the subscribers, whom he described as men habitually factious, and who attributed their difficulties to any cause but the right. He asserted that their colonial property was trifling, and that they were encumbered with debt. He ascribed their discontent to insolvency, and their embarrassment to extravagance and speculation. He disputed most of their statements—distinguished between them and the more respectable majority against them—and stated that the number of signatures was due to the indolent facility with which such documents were signed. This despatch (August 1, 1845) was printed for the use of parliament, and soon came into the hands of the colonists. The absence of constitutional channels for the expression of their dissatisfaction led them to a measure which would otherwise be deemed an extreme one. Sir E. Wilmot was the patron of the Midland Agricultural Association, a body including much of the wealth and influence of the colony. They were convened by certain of the members, and the obnoxious despatch was laid before them. An animated and indignant debate terminated in the removal of Wilmot from his place as their patron. No prudent colonist would desire to see this precedent often followed. The distinction between a governor as the head of the social circle and as the chief of a political body will be more readily apprehended when his power shall be less absolute, and his secret advice no longer over-ride the wishes and interests of the people.

Having filled up the vacancies in the legislative council, Sir E. Wilmot called them together. It appeared that money had been provided and appropriated, and a pledge given to the bank to confirm the contract in the council. It was intended to issue debentures, and thus settle out-standing accounts. Messrs. Reed and Hopkins offered to this scheme a decided opposition, and being unsuccessful, they resigned their seats.

The English government at length agreed to pay £24,000 per annum towards the police expenditure, but at the same time excepted the waste lands of the island from the generalsystem. The land fund, elsewhere given up for the benefit of the colony, was assumed by the lords of the treasury. It was contemplated to employ convicts in clearing and cultivating, and by the sale of land to indemnify the crown for the outlay. The governor was authorised by the secretary of state to allot portions of land to ticket-of-leave holders,—a measure offensive to the settlers in general, and found to be impracticable.

The legislative council passed several acts of great colonial consequence. The Abolition of Differential Duties Bill (July, '46) exacted the 15 per cent,ad valoremon colonial commerce, in obedience to the policy of ministers. Thus the inter-colonial trade was loaded with burdens of great severity, and in many instances it was cheaper to send raw material to London and import English, than to exchange colonial manufactures. The measure was welcomed by some sheep-holding members as a tax on Port Phillip sheep, but the government disclaimed any other object than the increase of the revenue. A heavy retaliatory rate was then imposed by the New South Wales legislature. They however addressed their governor to obtain, if possible, a disallowance of the exactions of Wilmot. Messrs. Dunn, Orr, and Stieglitz entered their protest against the bill, and avowed the principles of free trade.

A bill for electing commissioners of paving and lighting for the city of Hobart passed the council (August, '46), and although disliked as an indirect scheme of taxation, was not unpopular. The first election under it occasioned a keen competition and considerable excitement. It was the first instance of representation, but the bill made no provision for a scrutiny, and the returning officer declared the poll against the protests of the defeated candidates. Many fictitious votes had swollen the numbers of their antagonists. The commissioners sat for some months, and gave exemplary attention to their duties; but when the time came for rating the city, the defect of their election appalled them. This objection was long foreseen. An election without a scrutiny might not be founded on one valid vote. The government, unwilling to admit the defect of the bill, did not attempt to reform its details, and at length it fell into disuetude.

A measure of still greater ultimate importance was enacted by the council, intended "to restrict the increase of dogs." A heavy tax was imposed on the keepers of this indispensable protector of house and fold. The multitude running about the streets was felt to be a nuisance, and the destructionof flocks required some check; but the frame-work of the bill was objectionable, and the charge excessive. It will be seen hereafter that the tax occasioned the most serious disputes.

The administration of Sir E. Wilmot was, however, suddenly brought to a close. Reports, forwarded by Mr. Forster, and adopted by the governor, extolled the outlines of Lord Stanley's system, while events were constantly occurring which, amply sustained by respectable testimony, demonstrated its sad consequences. Evils of a serious nature were extensively prevalent,—some, inseparable from every scheme of penal discipline, others aggravated by the excessive dimensions of the probation system, and not a few the result of the failure of demand for labor. The worst effects of sensuality were the most alarming feature of the system, but even they were probably only more flagrant because the extent of transportation gave them a wider range. Remedial measures demanded an outlay and inspection which the instructions of the home government had prohibited in language the most distinct. The ministers, having tied up the governor's hands, complained that he had carried economy to a pernicious extent, and in reporting the state of the prisoners, had passed over important questions. But those who examine the despatches of Wilmot with care will be compelled to question the accuracy of these complaints. There is scarcely an evil which the progress of the scheme unfolded that he did not admit and illustrate. These evils he thought partly accidental and partly inevitable in all penal schemes; but still he maintained that, with all its defects, the probation system, as such, was the best ever devised by the British ministry. Lord Stanley indeed stated that in "five reports from Captain Forster and seventeen despatches from Wilmot, he had either received no intelligence or that their remarks were casual, slight, and few." Thus at the end of three years he found himself destitute of any clear understanding in reference to the conclusions which Mr. Forster, as the immediate agent, or the governor, as the chief superintendent, must have formed respecting the soundness of the principles or the wisdom of the plans which both had been called upon to administer (September, '45). It was thus apparent that the colonial-office held the governor responsible not only for obedience to positive instructions, but for their results; and that, in the event of a sacrifice being required, the officers on the spot would be devoted: and so it happened.

In closing the session (September, 1845) Sir E. Wilmot announced his recall. Although not usual then to address the council, he stated that he could not permit the members to disperse without acknowledging their assistance. A delusion for a time might expose a public man to popular injustice; but however misjudged, either during his life-time or after death, his character would require no other vindication than truth would afford. He informed them that his recall was not occasioned by his differences with the late members, but was ascribed to an imputed neglect of the moral and religious welfare of the prisoners; and he added, that the memory of their kindness would remain with him during the short remainder of his life.

Mr. Gladstone, who had received the seals of office, conveyed to Wilmot the notice of his removal. The despatch is a singular example of its author's mental habits. While he complained that the governor's statements were obscure, he gave his own views in odd and scarcely intelligible terms. Thus, the governor had adverted to the moral condition of the convicts "in a manner too little penetrating:" he had not made it a point of his duty "to examine the inner world of their mental, moral, and spiritual state." Mr. Gladstone charged him with neglecting the vices of the stations—an error in judgment so serious as to render his removal imperative. These whimsical terms of reprobation excited universal astonishment. Practical men felt that the knowledge of the thirty thousand prisoners except by their conduct, to be ascertained by collating statistics, was rather more difficult than the hopeless task of similar investigations in ordinary life. The English press, with some truth and bitterness, described such demands as an encouragement of hypocrisy and religious pretence. No wise or good man will discredit religious teaching, but all such will look with suspicion, if not dread, and even disgust, on the statistics of prison piety—generally false and designing, in proportion as it is loud and ostentatious. The defects of the governor as a legislator were not taken into account. Mr. Gladstone indeed attempted to balance with much precision the merits of the patriotic six. He admitted that advice and assistance to the Queen might sometimes take the form of strenuous opposition to the executive. He denied the distinction between the offices of an elective and of a nominee legislator—between a council of advice and a representative legislature. He doubted whether Wilmot had properly calculated the difficulties which wouldfollow the passing of the estimates, or the sympathy which the six would receive from the people. He censured mildly the accusation of disloyalty, but at the same time he stated the quarrel with the six was in no degree the cause of the recall.

In his last address to the council Wilmot alluded to the benign influence of time on a slandered reputation. This was soon after explained. Mr. Secretary Gladstone had accompanied the recall with a private letter which stated that rumors reflecting on the governor's moral character had reached the colonial-office, of a nature to hinder his future employment. Nothing specific was stated, and no clue to enquiry given. Rumors had been long current, and they were spread with activity. TheAtlas, a Sydney journal, compared the governor to the tyrant of Capreæ, and referred to his private habits with expressions of disgust. Remarks of a similar tendency appeared in a London periodical. It stated that the conduct of Wilmot excluded the respectable inhabitants of Hobart from his society, and made it impossible for ladies to enter his house. This was instantly rebutted by Sir John Pedder and other official persons, who declared their entire disbelief in these charges.

Wilmot conjured Mr. Gladstone to state the time, place, and circumstances, the names of his accusers, and the exact nature of their imputations. In reply he observed that the persons who mentioned these rumors did not profess to support their credit by any statement of particulars, but to found them on general notoriety. He added that it "was not in his power to convey what he had not received." In the House of Commons a fuller explanation was afterwards given, in a discussion raised by Mr. Spooner, a Warwickshire member. It was then stated that the authors of the report were persons in the service of the crown, both in England and in the colony, and its effect, that the accused was living in scarcely concealed concubinage with several women. These preposterous imputations melted away the moment they were touched. Sir Robert Peel, an old neighbor of Wilmot, was highly displeased with the interference of Mr. Gladstone, and pronounced the charges unworthy of belief. The eldest son of Wilmot appealed to Earl Grey for a formal vindication, but he declined expressing an opinion, although earnestly pressed; and excused himself by alleging that, independently of this charge, there was ample justification of the recall. It would have been no great stretch of generosity had a minister admitted that rumors set up as a bar toemployment were no longer barriers to the confidence of the crown. Mr. Chester, a brother of Lady Wilmot, transmitted an address[247]presented to Sir Eardley to the Bishop of Tasmania, for his remarks. He replied he could not tell to what reports it alluded, and could not contradict them; but that rumors of the kind had fallen under his observation which he had proved to be groundless: charges had been whispered, but none had been substantiated (May, '47).

The reports in disparagement of Wilmot originated in the freedom of his address—perfectly innocent in itself, but liable to misconstruction. The credit they received depended entirely on the party sympathies of the listener, and they grew as they went. No one, however, attached much importance to them on the spot. Mr. Gladstone was condemned for entertaining them. He seems more worthy of censure for his indefinite method of stating their nature and the authority on which they rested. The moral character of a governor is of moment to a colony, and a just consideration in his appointment; but when assailed it should certainly have all the protection of a full and open enquiry.

No governor ever was more unfortunate in his political position. He could only tax and restrain. There was nothing in his gift. To the substantial difficulties of the people around him he was unable to offer more than those general assurances which often exasperate rather than console. The state of religious parties increased his disquiet. He had to adjust the claims of churches to spiritual authority. In declining to erect ecclesiastical courts Wilmot not only gratified many, but he followed the direction of his legal advisers.

Sir Eardley Wilmot, like most governors, considered himself the servant of the crown, restrained in his discretion by absolute and specific instructions. Had Lord Stanley acted with prudence he would have left much to Wilmot's judgment; but just before he had dilated with vast perspicacity on the tendency of governors to act in behalf of the colonists, to forget imperial interests, to misapply the funds and pervert the labor belonging to the crown. The precision of his injunctions left no alternative but to obey. Had Wilmot at once declared the impracticability of Lord Stanley's schemes he might have been recalled, but the responsibility of an utter failure would have rested with his chief. The interested reports of his subordinate officers unfortunately enabled him to hold out hopes of success which were never realised and to furnish an excuse for his condemnation. The governor was impatient of contradiction. He had been accustomed to debate; but the sarcasm which falls harmless on the floor of St. Stephen's Chapel, in a colony cuts to the bone. He forgot that the head of a government can hardly say too little of men or measures. In a conflict of words, to an executive chief victory and defeat are alike pernicious.

The usual order had been given that the governor, during his residence in the colony, should enjoy the complimentary distinctions of office. It was commonly understood that his stay would be prolonged; but he died soon after his retirement (Feb. 3, 1847), in the sixty-fourth year of his age. The treatment he had received from the colonial-office, and his death far from the honored sepulchre of his fathers and the scenes of his early political fame, produced a general sentiment of regret. All the houses of business showed marks of mourning. A public funeral, attended by the administrator and the newly-arrived governor, was thronged by the citizens. It had been officially arranged that, except the ministering priest, the clergy of all denominations should walk in their several classes, but in one body, and the archdeacon, the moderator, and the vicar-general, as representatives of the three endowed churches, abreast. The Anglican clergy evaded this plan by stepping up before the coffin. When, however, the bearers were in motion, the catholic priests, by a rapid evolution, shot a-head of the procession. An ornamented Gothic tomb was erected in St. David's burial-ground to the memory of Sir Eardley Wilmot by subscription. It stands near the highway. His remains were interred close to the tomb of Collins.

Sir John Eardley Eardley-Wilmot was descended from the ancient family of Eardley of Audely, Staffordshire. He was grandson of Wilmot, lord chief justice of the court of common pleas—a judge celebrated for justice and piety. Sir E. Wilmot was twice married,—first to Elizabeth, daughter of Dr. Parry, of Bath; and afterwards to Elizabeth, daughter of Sir R. Chester, of Bush Hall, Staffordshire.

Charles Joseph Latrobe, Esq., Superintendent of the Port Phillip District, and subsequently first governor of that territory, now called Victoria, superseded Sir E. Wilmot (October 13, 1846). During his short stay as "administrator" he was employed in a careful scrutiny of the probation department. In performing this difficult duty he displayed exemplary activity and decision. He resolved to remove every officer chargeable with incapacity or neglect, and thus many were dismissed. This promptitude exposed him to imputations of harshness; but although it is probable he did not wholly escape errors of judgment, the chief acts of his administration were amply vindicated by the facts he saw. The opinions he expressed sustained the colonial impressions respecting the convict system. While he suggested many improvements in its details, he concurred with the general wish for its extinction. Mr. Latrobe never met the legislative council; and his government being limited to the established routine, left nothing to record.

FOOTNOTES:[246]Motion proposed October 28, 1845.[247]The following is the address, to which 250 names were appended:—"To Sir J. E. E. Wilmot, Bart.—We the undersigned, inhabitants of Van Diemen's Land, having heard that your recall has been influenced by reports injurious to your moral character, during your administration of the government of this colony, deem it to be a duty which we owe to truth and justice to express our unqualified contradiction of those reports, and we feel the more imperatively called upon to do so, from the fact of many of us having differed in opinion upon various measures of your government. Upon the occasion of your retirement into private life, we have to assure you that you carry with you our best wishes for your future welfare."

[246]Motion proposed October 28, 1845.

[247]The following is the address, to which 250 names were appended:—"To Sir J. E. E. Wilmot, Bart.—We the undersigned, inhabitants of Van Diemen's Land, having heard that your recall has been influenced by reports injurious to your moral character, during your administration of the government of this colony, deem it to be a duty which we owe to truth and justice to express our unqualified contradiction of those reports, and we feel the more imperatively called upon to do so, from the fact of many of us having differed in opinion upon various measures of your government. Upon the occasion of your retirement into private life, we have to assure you that you carry with you our best wishes for your future welfare."

Sir William Thomas Denison, Knight, Captain of the Royal Engineers, presented his commission, January 26th, 1847. He had been employed in the dock-yards, and in the survey of important public works. His eminent abilities in a department connected with the employment of prisoners, not less than his respectable connexions, led to his nomination. His professional habits had not qualified him equally for civil affairs; but the chief object proposed by the minister, Mr. Gladstone, was the better disposal of prison labor, and the more effectual control of the convicts. Sir William entered on his office with less acclamation than usual. The changes had been too rapid and unfortunate to encourage much enthusiasm.

Before his embarkation the secretary of state instructed Sir W. Denison to arrange the dispute with the late councillors, and the claims of the gentlemen who occupied their places after their resignation. He was informed that the conduct of both sets of legislators had received the royal approbation. It was left to his discretion to select six out of the whole number to complete the council. They were summoned to the government-house to hear the minister's decision, and were requested to decide among themselves who should be honored with a seat. This experiment failed. An altercation ensued, and some quitted the conference. The "six" adhered to each other, and Sir W. Denison ultimately declared the appointments of Wilmot were disallowed, and re-appointed the "patriotic six." The gentlemen rejected were advised that they held their office until superseded by commands under the sign-manual. In this opinion the chief justice concurred; but, pursuing the scrutiny, it was found that some nominations of Wilmot had been informal, theinstrument not stating to whom they succeeded. Their claims being quashed by this discovery, the "patriotic six" were again appointed in succession to each other,—a transposition required by the law. At this stage, however, Mr. Orr, who entered the council some time after the rupture, produced his appointment, which, unlike certain others, was expressed in the legal form. Thus again all the previous proceedings were quashed; and the governor, unable to unravel the difficulty, dismissed the council, to await instructions from Downing-street, or a warrant for the nominees under the sign-manual of the Queen (July, 1847). Thus during 1847 there was no legislature sitting, but at length theGazetteannounced that the Queen had reinstated the original six (1848).

It has been seen that under the government of Sir E. Wilmot an act was passed to restrict the increase of dogs, and another levying 15 per cent. duties. The owners of dogs were required to take out a license, and the proceeds of the tax were carried to the general revenue. Some of the settlers never complied with this ordinance, and others paid under protest. According to the opinion of several lawyers the council by this enactment had exceeded its powers. The act of parliament by which the council was constituted contained a provision to the effect that a tax should be levied only for local purposes, "to be distinctly and particularly stated in the body of the bill." It was contended that the restriction was violated, since the Dog Act contained no specific appropriation, and the amount was carried to the general revenue. The government, willing to avoid the trial of this point, did not hasten to enforce the penalty. It was understood that Judge Montagu had not obtained a license for dogs on his premises, and Mr. Morgan, then editor of theBritannia, announced to the government that he was an owner of dogs, that he had paid no license fee, and intended to pay none. The chief constable was directed to recover the penalties. Mr. Morgan being fined, appealed to the quarter sessions, and then to the supreme court. The judges, having heard the arguments of counsel, declared that the Dog Act imposed a tax and exceeded the powers of the council. They therefore annulled the decision of the inferior courts (Nov. 22, 1847).

The views which dictated this judgment affected a more important act—the Differential Duties. Several merchants paid these charges under protest, and entered their suit for recovery. A revenue of £20,000 per annum was thus inperil. It was stated by the governor and crown lawyers that the judges themselves had passed the lawful limits of their jurisdiction, unsettled the whole body of colonial law, encouraged opposition to the government, and exposed its agents to vexatious prosecutions. The governor was determined to resist their judgment. The warrants for the members of the council had not arrived. Thus recourse to the legislature was impracticable, and the most obvious remedy was the removal of the judges, and the substitution of others, whose opinions were known to agree with the executive. The judges were charged, therefore, with a neglect of duty in omitting, as authorised by the law, to certify illegality in the Act prior to its enrolment; and by permitting the question of an act of council, they were said to override the legislature.[248]

Pending this dispute, a creditor of Mr. Justice Montagu sued him for £200. The privilege of his office presented a legal obstacle to the suit. This being decided by the chief justice, the creditor applied to the governor for relief. Mr. Montagu alleged an understanding, which in equity released him from immediate liability. The governor charged him with perverting the protection of his office, to defeat his creditors, and amoved him. Mr. Horne, the attorney-general, who framed the acts repudiated by the judges, was appointed to succeed Judge Montagu, and it became a question whether his opinion would send the merchants out of court. The registrar of the supreme court was called before the executive council, and questioned on the point. He stated that in the event of a division of opinion on the bench a verdict for the plaintiff would stand. To the suspension of the chief justice the executive council were opposed, and Sir Wm. Denison therefore requested the judge to relieve the government by asking leave of absence. To this he replied in terms suited to the respectability of his character. "Were I," said his honor, "to accept your excellency's proposal, I should, it appears to me, be for ever after degraded, and,ipso facto, render myself unworthy of holding the lowest office or employment which it is in her Majesty's power to bestow on a subject."[249]At this stage of the proceedings the warrant constituting the legislative councillors reached the governor, and the opinion of the chief justice was of less moment to the executive.

It now remained for the governor to annul either the laws opposed to the provisions of the parliamentary act, which declared the taxing clauses illegal, or to subvert those restrictions by declaring them inoperative. He chose this last course. The Doubts Bill declared that an ordinance once enrolled, whatever its provisions, or however repugnant to common law or parliamentary acts, should be held binding on the court; and although its rejection was proposed by the chief justice and five other members, it passed the legislative council.

That the "Doubts Bill," so called, was inconsistent with the limitations of the council, has been virtually determined by a retrospective clause in the recent constitutional act, which cures the defect of these taxing clauses, and takes the question of legality from the future judgment of the court. By the act of 9 Geo. IV., sec. 83, the governor possessed powers sufficiently ample to pass, without notice or delay, any measure, and to adhere to its provisions in a pressing emergency; but the prohibition of taxes, for all but strictly local purposes, was peremptory and explicit.

An instance of rapid legislation contemplated by the act, occurred (1843) when Dr. Turnbull held the office of sheriff. More cautious than his predecessor, he closely examined his commission, and discovered that the seal of the colony had been attached, and not that of the governor, as required by the charter of justice. This error had been made in successive commissions for many years. Every execution—criminal or civil—had been therefore illegal. At one sitting of the council the act of indemnity was passed, and all proceedings affected by the mistake were declared valid. The propriety of this promptitude was indisputable.

The chief justice left the representation of his conduct to the governor. His treatment was the subject of keen censure in the commons; and by an unpublished despatch—the nature, not the terms of which transpired—Sir Wm. Denison was informed, and through him, the chief justice, that his conduct to this judge was decidedly reprehended by the crown. Mr. Horne's appointment and the amoval of Mr. Montagu were confirmed. Mr. Justice Montagu was an acute, eloquent, and impartial judge, but passionate and eccentric. His imprudence exposed him to a proceeding which, in the circumstances, it is difficult to approve, and, on general principles, not easy to condemn. The chief justice stood still higher in public estimation. For nearly thirty years he occupied a station of awful responsibility with a reputation unsullied, in a court where every variety of legal knowledge has been in demand and a vast amount of toil endured. Among the blessings which the British constitution bestows foremost of all is the freedom of the judgment-seat; and few political faults are less capable of palliation than a deliberate attempt to subject a judge to the influence of the executive.

A minute addressed to the legislative council charged the merchants with forgetting the duty they owed to society, when they offered resistance to the tax. They, however,maintained that every illegal demand is spoliation, and claimed a right to protect themselves and the public from its operation. Fifteen hundred persons signed a petition deprecating the interference of the executive with the supreme court. They asserted their conviction that the removal of Judge Montagu was occasioned by his decision on the Dog Act, and the desire to replace him by a more pliant judge. These various remonstrances had no effect on the ministers, and the entire course of the governor was approved, except the attempted coercion of the chief justice. The position of the government was one of considerable embarrassment. It was the unquestionable right of those affected to oppose the execution of illegal ordinances; but no blame would have rested with the governor had he amended them without removing the land-marks of the colonial constitution.

A minute acquaintance with colonial history would justify the belief that appeal to Downing-street against the conduct of governors is utterly futile. When the dispute is between persons high in office the established policy does not predicate the result; but when a mere colonist complains he will find no precedent in Australian experience to cheer him in his task. Gross instances of oppression have not infrequently occurred; but in the Australian journals of half a century no example is recorded of a governor's recall on such grounds, or of such a censure on his conduct as might influence the habits of colonial rulers. An opposite course would be inconvenient—perhaps dangerous. As a choice of evils, it is better that the colonists should despair of redress than to encourage the discontented to harrass the representative of the crown. A result so invariable, however, proves that a colonial-office cannot protect the Australian people. This futility of appeal is more striking when the local authorities are protected by a laborious despatch writer. The subtle arrangement of facts and inferences suggests without appearing to dictate the judgment of the office. These papers first fall into the hands of subordinate officials, who feel a natural antipathy to colonists, whose established character is turbulent, rapacious, and democratic. In the multiplicity of business, comprehending the affairs of forty colonies, the responsible minister can know little of details, and that little he must rapidly forget. Thus, when a question is proposed, he asks time to refresh his memory. A pungent passage or epithet, wholly irrelevant to the real merits of the dispute, is drawn from these documents. It was thus when the quarrel between the executive and judges was debated in thehouse. The minister, having read in a despatch that the decision of the judge would disorganise the body of law, represented the colony as a scene of turbulence, when not a single step had been taken but the courts of Westminster would have approved. But the house was equally ill informed. It readily acquiesced: the conversation dropped, and the despatch triumphed. No governors have stood so high in the colonial-office as despatch writers; whether that ability in epistolary correspondence implies general superiority, or that they beguile the minister of his judgment by the subtlety or wisdom of their political disquisitions.

The petitions for representative government, repeated for more than twenty years, and which strongly interested the sympathy of all classes, were renewed with increasing hope of success from 1846 to 1850. The ministers, though admitting the abstract value of the privilege, hesitated while the great preponderance of convicts seemed to require an absolute authority. This feeling was not overcome until the accession of Lord Grey, who saw no danger in conceding to the free population the common rights of Englishmen. A variety of plans were submitted at different times to the parliament and ministry, to secure colonial representation. Mr. Joseph Hume suggested (1832) the admission of a certain number of representatives chosen in the colonies to seats in the House of Commons; in all nineteen, one being for Australia,—a measure once suggested for the old American colonies; but the distance in both cases, and expenses of transit, would not easily have admitted effective representation or perfect responsibility. Sir John Franklin suggested (1839) a legislature, to consist of twenty-one members, one third nominated by the crown, and the remainder elected by persons holding the qualification of common jurors. He gave a generous testimony to the intelligence and probity of the settlers, and alleged that they would bear comparison with corresponding classes within any dominions of the crown.[250]

In 1843 the legislature of New South Wales was constituted. Originally a nominee council, the popular element was infused by two thirds being elective members. A civil list was reserved, and the disposal of territorial revenues withheld; but the partial liberty enjoyed was used with discretion and effect. The bill enjoined the establishment of district councils, authorised to superintend internal affairs,and to fulfil many of the functions of municipal bodies. They were, however, never called into action. The scattered inhabitants found it difficult to assemble, and more so to reconcile their neighbors to local taxation. The machinery of the councils was set in motion only to defeat their design. Thus the legislative body retained in its hands the whole power which it had been intended to balance and check by the petty councils. Port Phillip, however, then a part of New South Wales, but more distant from the metropolis than England from Rome, was represented in a council sitting at Sydney. The loss of time required disinclined most gentlemen to undertake the representation, and those chosen were chiefly resident in New South Wales proper. Their numbers were too small for effectual action, and their sympathies were divided between their constituents and their neighbors. The revenues raised at Victoria were expended to some extent in the elder city, and the superintendent of Port Phillip had little influence and less power in the government. The popular dissatisfaction, which led to some unavailing petitions to the crown, took a curious form. Thus, in 1848, the electors met at the hustings and discountenanced the appearance of a candidate, and after waiting an hour, the returning officer announced that no member had been returned. On meeting for the election of a member for the city Earl Grey was chosen. The governor and superintendent considered this proceeding a disgraceful farce. The law officers could not question its legality, and the secretary of state was for two years member for Melbourne, without, however, taking his seat. Mr. Westgarth, a merchant of tried intelligence and public spirit, was chosen afterwards, and was presented to the house "in the room of the Right Hon. Henry Grey, Earl Grey."

Sir Wm. Denison was instructed to report on the subject of an elective legislature for Van Diemen's Land. He furnished Lord Grey with various opinions and suggestions. He had recommended a frame-work, the counterpart of the New South Wales assembly, only, however, that he deemed it undesirable for colonies so contiguous to differ in their institutions. The experience of the Tasmanian legislative council had, he asserted, assisted him in forming an opinion on the character of the people. "When we see," said Sir William, "the low estimate which is placed upon every thing which can distinguish a man from his fellows, with the sole exception of wealth; when we see that even wealth does not lead to distinction, or open the road to any otherambition save that of excelling in habits of self-indulgence,—it can be hardly a subject of surprise that so few rise above the general level, or that those few owe more to the possession of a certain oratorical facility than to their powers of mind or the justness of the opinions they advocate." "There is an essentially democratic spirit, which actuates a large mass of the community; and it is with a view to check the development of this spirit that I would suggest the formation of an upper chamber." Sir William Denison suggested that bishops might be members of an upper house, and certainex officiorepresentatives of government; the rest, whether nominated by the crown or elected by the people, to hold their seats for life.[251]

By a despatch to Sir Charles Fitz Roy, Earl Grey expounded a new constitutional system for the colonies. It was zealously opposed in New South Wales. The people complained that the change in the constitution without their consent was an infringement of their vested rights, and disrespectful to their legislature. They objected strongly to a plan which made the district councils the electors of the assembly. They repudiated the statement that their legislature had absorbed all the powers of "the colonial state," and the checks and balance contemplated by the original constitutional act. These views were sustained by the legislature itself. The idea of two chambers was approved by the majority, but most elected members were against it.

The plans of Earl Grey and the correspondence and petitions they produced were referred to the committee of the Privy Council, and the report adopted recognised all the great principles of British government except the full control of the expenditure (1849). This able paper recommended legislative councils for all colonies capable of supporting a civil list, one third nominees, and the remainder chosen by the people. The division of the legislature into separate chambers it resigned to the judgment of the colonies. It suggested a federal assembly for the general interest of the Australias, having its action closely defined. The "House of Delegates," to consist of not less than twenty nor more than thirty, were distributed—to each colony two, and one additional for every fifteen-thousand souls. This plan of government was differently regarded in different colonies. The elder condemned its restrictions: the younger rejoiced in the prospect of new franchises, and trusted to time to enlargetheir liberties. The general opinion of intelligent men was favorable to the division of the legislature, but the colonies were not capable of supplying the elements of nobility. Some aspiring persons desired a little house of peers, others the appointment of senators by the crown, and for life: a greater number were convinced that the legislature should be elective throughout. The social equality of settlers who landed together could not be forgotten in the diversities of their colonial fortune. The first collision of opinion would bring the machinery of double chambers to a dead lock, and no interposing power could adjust the dislocated frame-work. A stoppage of supplies would follow the first impulses of resentment. In English representation it is the last remedy, but then it betokens the dismissal of a minister or the downfall of a dynasty.

The colonial press generally approved the ministerial bill, not as a measure approaching perfection, but for some favorite object it was calculated to hasten. It was hailed at Port Phillip because it secured separation from Sydney; at South Australia, as certain to terminate the ecclesiastical endowments; and in Van Diemen's Land it was welcomed, with all its faults, as the engine sure to destroy transportation. Thus the Colonial Reform Society, which attempted to defeat the government measure, found little sympathy beyond New South Wales, where the change gave nothing. The ministers interpreted the satisfaction of the colonies as a testimony to their skill, not detestation of their government. The real cause of colonial delight was the severance of their chains, and the certainty that when broken all the power of Europe could never renew them.

The bill suffered some mutilations in its passage to the throne. The federal clauses were expunged. The local governors were opposed to the establishment of an assembly of delegates, which would have overruled their individual policy. They were fearful of compromising their revenues by permitting to New South Wales the preponderance of members. These objections, not indeed without weight, and, still more, the jealousy of the conservatives of an organisation which seemed but a prelude to independence, despoiled the measure of a provision which, however modified, must be ultimately restored. A reduction of the franchise of the bill from £20 to £10, nearly equal to household suffrage, was, however, the most considerable change. It was suggested by Mr. R. Lowe, to bear down an opulent emancipist interest in New South Wales. It was expected to giveirresistible power to that class in Van Diemen's Land. The bill was carried through the lords by a trifling majority in a thin house. The fate of a young empire but slightly moved the British peerage. It received the royal assent, August 5th, 1850.

When the bill arrived the joy of Port Phillip was unbounded. Several days were devoted to processions and feasting. Numberless devices were exhibited, displaying the political bias of the people. Many thousand pounds were spent in the festivities. A similar though less magnificent display was made in Van Diemen's Land. All ranks were inclined to forget their differences, and public dinners, at which many hundreds were guests, celebrated the constitutional victory.

Lord John Russell, on the second reading of the bill, explained his opinions, which, whether or not consistent with the ministerial measure, were worthy his station and political renown. "I anticipate with others," he said, "that some of our colonies may so grow in wealth and population that they may feel themselves strong enough to maintain their own independence in amity and alliance with Great Britain. I do not think that that time is yet approaching. But let us make them, as fast as possible, fit to govern themselves. Let us give them, as far as we can, the capacity of ruling their own affairs. Let them increase in wealth and population; and, whatever may happen, we of this great empire will have the consolation of saying that we have increased the happiness of the world." Such sentiments tend to extinguish the desire to quit a political connection rendered honorable by terms so nobly expressed by the first minister of the crown, and which, if fairly carried out, will make the colonies cling with fondness to a nation so magnanimous as to greet them with applause.

In 1846-7 important additions were made to the educational means of the colony. An episcopal institution, called Christ's College, was formed at Bishopsbourne. Scholarships were founded by the medical, military, and clerical professions, and divinity fellowships endowed (1846). Lord Stanley recommended the establishment of a proprietary high school, open on equal terms to all denominations, and promised the patronage of the crown. The site reserved for this purpose at Hobart Town was granted by Sir W. Denison to the episcopalians, for the Hutchins' school. This alienation was deemed unjust. Instead, however, of wasting time in unavailing complaints, the friends of education were convened byMr. H. Hopkins, an opulent merchant, when a prospectus was submitted by the Rev. Dr. Lillie and J. West. A thousand pounds were subscribed in the room, and in five weeks £5000 (1847). The first conspicuous object seen by the stranger on entering the river is the High School of Hobarton,—an edifice erected amidst enchanting scenery, on a site granted by the crown, and possessing architectural attractions which have yet to be equalled in this hemisphere. The institution is managed by a council of nine, chosen by the shareholders. The Rector, nominated by the London University, was the Rev. J. B. Froude, author of the "Nemesis of Faith,"—a publication which led to his instant resignation. James Eccleston, Esq., appointed in his stead, survived the opening of the school only one month. A thousand pounds were subscribed for his widow.

Thus the activity of private zeal effected the objects contemplated by legislative interference. The growth of population will give ample scope for these various institutions, and extinguish all but a wholesome rivalry.

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