FOOTNOTES:
[248] The council derived their powers from the Act 9 of George IV., c. 83. They were permitted to enact ordinances "for the good government of the colony," but they were forbidden to impose taxes, except for local purposes; and they were ordered to state "distinctly and particularly in the body" of every law the purposes to which the tax should be applied; and thus to prevent the evasion of the prohibitory clause intended to protect the subject. It was not worth while to enquire whether the view of the judges of the legality of the act in the case of Symons v. Morgan was in harmony with the parliamentary act, because the question merged in one of much greater importance—Whether they could take that act into consideration at all? It was of far more consequence to know whether the colony had a remedy against the usurpation of the legislative council, than to decide whether Messrs. Horne and Fleming were better lawyers than Sir John Pedder and Mr. Justice Montagu. "The powers of a subordinate legislature," says a distinguished writer, "are expressly or tacitly delegated by the supreme government. In order, therefore, to determine whether an act of the legislature has a binding force, it is necessary to look at the extent of the delegation. If the act be not within the scope of the delegation, it is without binding force, and can be annulled before a competent tribunal" (Lewis on Dependencies). Sir Wm. Denison stated that the silence of the Judges for fourteen days after the act was passed,—whatever might have been the cause of that silence—ignorance, indolence, sickness, or corruption,—rendered the most unlawful stretch of power on the part of the council, including the total subversion of all the limitary clauses, binding upon the colony, and if sanctioned by the Queen, through the same ministerial inadvertence or corruption, binding for ever. Judging of the intentions of parliament by the general character of colonial legislation and by the cautious wording of this act, it could scarcely be imagined that they suspended the public safety on such a thread. That Englishmen should be deprived of their rights, without the possibility of appeal, by the inadvertence of a judge—not sitting in a court of justice, but in his own chamber—would be to legislate by accident. Sir Wm. Denison relied on the despatch of Sir George Murray (1828), which accompanied the Act 9 Geo. IV., known as the "Huskisson Act." The former practice was to require the governor to submit to the judge the draft of a bill before it was laid upon the table of the council chamber, no principle of colonial law being more "firmly established than that a colonial legislature cannot enact statutes repugnant to the law of England." The judge (he said) "might have found himself often required in open court to deny the validity of a colonial ordinance, on the ground of repugnancy." By the Act in question "provision was made for fully learning the views of the judges upon the law, and for preventing their refusing to execute any law that may be passed after a full consideration of their objections." Thus it was intended to "combine, as far as possible, the advantage of a strict observance of a general rule, and a harmony between the judges and the legislature." It was therefore clear that the power given to the judges to stop the enforcement of any illegal ordinance continued until their objections—whenever and wherever they might arise—had been "fully considered."—Hobart Town Courier.
[249] Parl. papers, July. 1848.
[250] Despatch, August, 1838.
[251] Despatch to Earl Grey, 1848.
SECTION II
It now remains to record the most important colonial agitation of modern times. The opposition of Van Diemen's Land to a system reprobated by mankind—too long despised—awakened everywhere resistance to transportation; and, assisted by the discovery of gold fields of vast extent and opulence, will change the penal policy of the British empire.
In the progress of the struggle all classes ranged on the same side. Parents thought of their children—patriots of their country. Every legislature of this hemisphere has expressed the popular will and demanded abolition, and the final triumph only awaits the fiat of the crown. The steps of the colonists have been cautious and deliberate, their perseverence and energy indomitable! Their success has been chequered by frequent disappointment, but never was a battle more nobly fought—never was there a cause more worthy of triumph.
Mr. McLachlan, long a resident in Van Diemen's Land, judged the plans of Lord Stanley by the test of experience, and warned the minister of their too certain results. Other colonists in England corroborated his views and enforced his representation. Mr. Smith, a colonist of long standing, obtained an audience at Downing-street. He described the social dangers which environed the settlers. "I confess," said the noble lord, "that you are in an awful position."
The representation forwarded by Mr. Pitcairn and his coadjutors was intrusted to Mr. M'Lachlan's care. The press of England took the side of the oppressed, and the inexorable office was obliged to listen, to argue, and retract.
There was, however, one result of his scheme which moved the susceptibilities of Lord Stanley himself. He shrank from the "intolerable evils of a breach of faith" with the exiles of Great Britain. They had been encouraged to expect high wages and ready employment. Such was the fair reward offered. Far other was their actual lot. "Thousands of prisoners," said an official representation, "are going about idle, polluting the atmosphere in which they move. Is it to be wondered at that the Pentonville men should fall?"[252] The extreme social degradation and demoralising contamination to which they were exposed in Van Diemen's Land, and the disheartening difficulties they had to contend with, were utterly incompatible with the spirit of Lord Stanley's despatch.[253] This "breach of the public faith" was promptly repaired by a new series of projects.
Sir Charles Fitz Roy and Sir E. Wilmot, assisted by Mr. Latrobe, were instructed to select a site whither to send exiles, there to remain while awaiting hire or voluntary emigration: conditional pardons which gave liberty in Van Diemen's Land, were made available in all the colonies.
The formation of a new settlement was the grand expedient. Vessels bringing convicts to Van Diemen's Land were to convey ticket holders to North Australia. Happily for the world this project was defeated. A squatter hired exiles in England, with the sanction of the minister. A demand for labor sprung up. Sir George Gipps informed the secretary of state that from Moreton Bay to Melbourne exiles would be welcome. This Mr. Latrobe confirmed (1845). The settlers associated to bring expirees from Van Diemen's Land. Many shiploads were deported at £1 per head. Thus the difficulty appeared at an end. The Maitland, engaged for North Australia, was diverted to Port Phillip. The men were promptly employed. The considerable flockmasters were desirous of a regular supply, while the colonists in general were far less cordial. Opposition was, however, languid; and the occasional apathy of the public and the indecision of the press were construed as assent.
While the home and colonial governments were constructing and dissolving systems, the idea of abolition was started by the press. "The settlers," said the Examiner, "may not be prepared for this. Our own impression is that they are not; but it is our firm opinion that at no distant day the unanimous voice of the community will say, in a tone not to be disregarded, cease transportation for ever." (March, 1844.) Events a few months after still more forcibly pointed to this issue.
Mr. M'Lachlan, in a letter to Mr. Gladstone, put the case of Van Diemen's Land in a striking aspect. "Shall the fairest isle in the south be converted into one huge gaol? shall the free inhabitants be made the passive instruments of punishing these criminals? Is this the only capacity in which the British government will recognise the free colonists? The petitioners have laid their case before the legislature. They trust they have not appealed in vain—that they will not be driven from a land where the best days of many of them have been spent" (February, 1846).
The petition prepared by Mr. Pitcairn was presented in the lords by the Marquis of Lansdowne (March, 1846). In remarking on its contents, Lord Stanley begged their lordships to believe that the question involved interests more important than a single colony! He stated that Van Diemen's Land could not be swamped by an annual influx of four thousand. If, he said, the thirty thousand persons released from the prisons of France were so intolerable, what must be the condition of England with sixty thousand expirees then settled in the colonies? Van Diemen's Land was always a penal colony, and he saw no reason that it should be otherwise. Earl Grey warmly censured this policy, and complained "that no hope of relief from the frightful evils of transportation had been afforded." He stated that he was "prepared to express an opinion that transportation should be got rid of. He had long entertained that opinion, and had never seen the arguments of the Archbishop of Dublin refuted." A duplicate of this petition, presented to the Commons, was followed by the motion of Mr. Ewart, "That it is inexpedient to make Van Diemen's Land the sole receptacle of convicts, and that transportation be abolished, except as a supplement to penal discipline" (May, 1846). The day chosen was inauspicious. The "house" was gone to the Epsom races. Mr. Hudson, the railway king, not better employed, stumbled into the chapel of St. Stephen, and counted out the members. Mr. Ewart renewed his motion (July 6). A few days before Earl Grey and Mr. Hawes had obtained the command of the colonies, they admitted the facts of the petition, and promised redress. The liberal principles avowed by the new government reassured the friends of Van Diemen's Land. Mr. Gladstone had determined to arrest the influx of convicts for two years: this was approved by his successor. In quashing the North Australian colony, Earl Grey stated his dissent from the principles on which it had been founded (September 30, 1846). The whigs ever expressed a decided abhorrence of penal colonisation and the collection of masses cradled in the traditions of crime. When taunted with this accumulation in Van Diemen's Land as the result of his policy of 1840, Lord John Russell explained:—"As to the sending of convicts to Van Diemen's Land, he had intended to adopt the policy recommended in the work of the Archbishop of Dublin. Had his plan been carried out, instead of 4,000 convicts sent to Van Diemen's Land there would not have been more than five or six hundred."
When Earl Grey instructed Sir William Denison in reference to certain reforms, he intimated his expectation that transportation would terminate. Soon after Sir William Denison addressed to the magistrates of the territory a series of enquiries (March, 1847), of which the first was awfully momentous. "Do you consider it desirable that transportation of convicts to this country should cease altogether?" The character of the enquiry was described in a letter signed by the private secretary. The governor preferred communicating with these gentlemen, and by them with their neighbours, rather than with popular assemblies. It was not, however, to be expected that a subject of direct and universal concern would be resigned to the discussion of a single class; nor did persons holding magisterial distinctions, on that account command the confidence of the people. This was felt by the magistrates themselves. A preliminary meeting was convened at Hobart Town to discuss the subject of the circular. A difference of opinion was apparent, and an angry altercation ensued. Mr. Carter, a storekeeper, defended transportation as necessary to trade. Mr. Gregson advised his auditors to cast the question of crocks and slops to the wind, and to secure at once the final liberation of the colony. A public meeting was held at Hobart Town. Ineffectual attempts to postpone the question by the advocates of transportation were offered, and the speakers on the popular side were loudly cheered. The party defeated signed a memorial representing that they were not heard at the meeting, and repudiating its decision. Sir William Denison promised to place it in the hands of Earl Grey "as a record to be employed in the support of the facts it contained."
This second petition, adopted by the colony (6th May, 1847), was also drawn up by Mr. Pitcairn. The editors of the London Morning Chronicle remarked "That they never read a public document more calculated to command both the convictions and sympathies of those whom it addresses. Future ages would contemplate with amazement the fact that wrongs so cruel in their nature, and so enormous in their amount, have been inflicted in civilized times." It recapitulated the grievances of the colony with energy and clearness. It complained that promises of relief had proved fallacious—that the worst evils of transportation were continued; that there were then four thousand prisoners more in the colony than were ever at one time in New South Wales, and that 12,000 free persons had quitted the country since 1841. The petition asked for representative government, the abolition of transportation, and the importation of 12,000 free immigrants at the expense of Great Britain; and it recommended the removal of the men to the colony of North Australia, or wherever they might be required. Meetings were held by different classes in several districts of the colony. In the most populous the feeling decidedly favored abolition. Not the least important of the series were held in Launceston. Six magistrates of the north determined to advise with the colonists at large. The persons who assembled at their call were undecided; the friends of abolition desired delay; its determined opponents deprecated public discussion; but to the majority deliberation seemed necessary, and on the motion of Mr. Dry a committee was constituted who were requested to collect evidence, to make a report, and draft a reply to the circular of the governor.[254] The tradesmen of that public spirited community first expressed their sentiments. A few transportationists induced a respectable shopkeeper to propose thirty-nine reasons for the continuance of transportation, but the warmth of his elocution and the frequent repetition of "because" in an Aberdeen accent, dissolved his party in laughter. The good humoured logician acquiesced in the voice of the assembly and abandoned the cause of transportation for ever. The meeting convened of the northern colonists assembled on the 10th of May. The committee appointed on the 3d of April having prepared a report, and founded on its conclusions a reply to the circular, it was signed by the chairman, James Cox, Esq., of Clarendon.[255] Many who were formerly advocates for transportation as it once existed, saw its dangers when they became anxious for the moral and social welfare of their sons. They were formerly but flockmasters, but they had become the founders of a state. They learned from the discussions of the ministers that what they had thought a service rendered to the crown was deemed disgraceful and degrading. Opulent settlers who visited Europe found it convenient to conceal their home, and some less prudent were repelled with unconquerable distrust.[256] In a small community the public reputation is of personal importance, and it was alleged that to neglect the offer of social freedom would be infamy unexampled. To this feeling the abolitionists appealed. "Parents of Van Diemen's Land," said the author of a pamphlet called Common Sense, "can you hesitate? Let the timid and sordid doubt,—let them reckon the farthing they may lose! Let your hearts dictate your answer to the circular. Let it be worthy Britons, Christians, and Parents. Shew that you prize your rights, and that you love your children. That land which they tell you will become a desert when the clank of chains, the cries of torture, the noise of riot, and the groans of despair shall be heard no longer, will not become a desert; 'it will blossom abundantly, and rejoice with joy and singing,' when your sons and daughters shall go forth, the free among the free. Consult your own understandings, that you may obey the dictates of your hearts. The Sovereign has invited you to express your desire. Let it not be one that will cause the eyes of mankind to look upon you with abhorrence, and turn away with contempt. Make not your name a scorn and a hissing! Perform your duty, and save your adopted country!"