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 His treatment was the subject of keen censure in the commons; and by an unpublished despatch—the nature, not the terms of which transpired—Sir Wm.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.