The History of Tasmania, Volume I

by John West

FROM 1847 TO 1852

SECTION I

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 The gentlemen rejected were advised that they held their office until superseded by commands under the sign-manual.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, the instrument 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 the Gazette announced 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 the Britannia, 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 in peril. 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 the house. 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 other ambition 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 certain ex officio representatives 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 enlarge their 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 give irresistible 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 by Mr. 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.