The dawn of constitutional government
Uneasiness in England concerning the convict system — Commissioner Bigge’s inquiries — New South Wales Judicature Act — The first Legislative Council — Chief Justice Forbes — Enlargement of the Council — Wentworth — His Australian — The Governor and the Press — Governor Darling — Trial by jury — Robert Lowe — His Atlas newspaper — His visions of Imperial relations.
During the final years of Macquarie’s period the British Government arrived at the conclusion that the system in force in New South Wales needed overhauling. Strange rumours reached England from time to time, and there were always disappointed or malevolent persons ready to whisper their startling tales in the ears of officials and ministers. ‘Sir,’ said the Under-Secretary of State, Goulburn, to John Macarthur in London, ‘we have as heavy charges against Governor Macquarie as you have made against his predecessor.’
What most impressed the public was the story related by the free man who had been flogged by the Governor’s order. He had returned to England to proclaim his wrongs aloud and exhibit the scars of his stripes. Uneasiness was expressed in Parliament, and Lord Castlereagh, speaking on behalf of the Cabinet, admitted that it was necessary to inquire whether ‘even in justice to Botany Bay, the period had not arrived when it might be relieved from being the resort of such characters as had hitherto been sent to it.’
Ministers and the public required enlightenment from an independent source. It was therefore decided to send out a commissioner in the person of J. T. Bigge, a London barrister, to examine the laws, regulations, and usages of the settlement, the mode of government, the treatment of the convicts, and every other matter connected with the transportation system. Bigge arrived at Sydney in 1819 and remained nearly two years. He pursued his investigations with remarkable thoroughness, and his three large reports, printed as parliamentary papers, presented a mass of carefully sifted and skilfully marshalled information. He brought to bear a trained critical intelligence, and stated his conclusions in unmistakable terms. He was wholly opposed to Macquarie’s efforts to thrust his emancipist friends into social life and to place them upon the magisterial bench. Even as to such emancipists as Redfern he would admit no concessions, and complained that the surgeon’s manner ‘betrayed an entire forgetfulness in himself of that occurrence in his life which he will find it difficult to erase from the memory or feelings of others.’
The most important consequence of Bigge’s mission was the institution of the beginnings of constitutional government in Australia. His reports made no direct recommendation for modifying the method of government, but his criticism of the system prompted the Government in Great Britain to impose a limitation upon the Governor’s power. If Macquarie was the last of the tyrants, his successor, Sir Thomas Brisbane (1821-5) was the first of the Governors whose authority was by statute made subject to review. The New South Wales Judicature Act of 1823 set up a Legislative Council, to consist of not more than seven nor fewer than five members, with power to make laws ‘for the peace, welfare, and good government’ of New South Wales, provided that they were not repugnant to the laws of England.
The members of the Council were to be appointed by the Crown, which meant in practice that they would be nominated by the Governor himself. Further, the Council could only pass such laws as were submitted to it by the Governor. It could not initiate legislation; and no bill could even be submitted until it had been certified by the Chief Justice to be consistent with the laws of England. What is more, if the Governor proposed a law and a majority of the Council was not in favour of it, he could bring it into effect without the Council’s assent pending a reference of the matter to the Imperial Government.
The Council, therefore, was simply an advisory body. But even that was a step forward. It went far to destroy the arbitrariness of the Governor’s powers. He now had to work with a small body of constitutionally authorized councillors, who were able to bring the Government into touch with currents of public opinion. The Act of 1823 also established a Supreme Court, presided over by a Chief Justice. The first occupant of that office was Sir Francis Forbes, who had previously been Chief Justice of Newfoundland.
In 1828 the Act was amended by enlarging the Legislative Council to a maximum of fifteen members, who were still to be nominated by the Crown; but they were now endowed with power to reject, by a majority, a proposal made by the Governor. If the Council disapproved of a measure it became of no effect; it could no longer be put in force until the Imperial Government had considered it, as was the case under the 1823 constitution.
At this period William Charles Wentworth began to make his influence felt in public affairs. He was, indeed, the first Australian politician of distinction, and for over thirty years to come was a personal power in the land. After completing his University course at Cambridge, Wentworth had been called to the bar, with the intention of returning to Sydney to practise his profession there. But before leaving England he published (1819) a book about New South Wales, wherein he enlarged upon the abundant scope for settlement in the colony. He wished to see the population increased, but he did not disguise his dissatisfaction with the present mode of Government; and he outlined, as necessary reforms, the programme which he was afterwards to promote with all the energy of his virile mind. He demanded that representative institutions such as Englishmen enjoyed in their own land should be established in this English settlement, and that trial by jury should be made part of the judicial procedure. ‘The colony is, I believe,’ wrote Wentworth, ‘the only one of the British possessions inhabited by Englishmen in which there is not at least the shadow of free government.’ It was time that this state of things was brought to an end.
When Wentworth arrived in Sydney he commenced to agitate for the free institutions which he had advocated in his book. He had brought with him a printing press and plant, with the intention of starting a newspaper, and his Australian began to appear shortly after his landing in 1824. His was the first Australian newspaper conducted independently of Government control, for the Sydney Gazette, which commenced in 1803, was a publication principally for the issue of official notices seasoned with scraps of general news. Wentworth’s Australian was a vigorously critical organ of opinion. He was assisted in the conduct of it by a fellow law-student, Wardell, who had accompanied him from England. Before long their journal was engaged in a furious campaign against established authority, and incidentally in a fight for the freedom of the Press.
The case which promoted the first conflict between the Government and the Press illustrates a curious phase of life in the convict colony. It appeared to many soldiers in regiments stationed in Sydney that convicts, especially emancipists, were better off than they were. Emancipists could obtain grants of land and live independent lives, whilst soldiers were bound to duty and regulated by discipline. There were several instances of soldiers committing felonies in order that they might, as they believed, improve their lot in life by being convicted. Governor Darling (who succeeded Brisbane in 1826) determined to prevent this disposition among the soldiers by inflicting punishment of exemplary severity.
Two privates were found guilty of robbery, which there was no doubt had been committed for the purpose of gaining their discharge from the Army. But Darling would not permit them to serve the sentences imposed upon them in the ordinary manner. He ordered them to be set to work in irons and to be drummed out of the regiment with every mark of ignominy. They were loaded with heavy chains, had iron collars fastened round their necks, and, thus degraded, were marched from the barracks to the jail. One of them, named Sudds, whose iron collar was ‘too small for his neck,’ seems to have been ill at the time, and he died in hospital a few days later. The medical officer could find no trace of disease. Sudds apparently died from the shock of the ordeal.
Wentworth and Wardell hotly attacked Darling for cruelty in this and other instances — a charge of which, it should at once be stated, he was officially declared to be innocent after inquiry had been made. The quarrel was not confined to paper and printer’s ink, for Wardell fought a duel with the Governor’s brother-in-law, whilst the publisher of the Australian was fined £100 and sentenced to six months’ imprisonment. Later, when Darling’s term was coming to an end, Wardell was prosecuted for stating in print that his Excellency’s departure from Sydney would be hailed with pleasure; but the prosecution failed. From these quarrels originated the first measure for the regulation of the Press.
Smarting under the stings of the Australian, Governor Darling in 1827 sought to enact a law under which newspapers could only be issued under periodical licences. Such a system would have enabled the Government to stifle criticism at pleasure by declining to renew a licence or threatening to do so. But Chief Justice Forbes refused to certify that such an Act was not repugnant to the laws of England. Forbes also refused to certify an Act which was actually passed by the Legislative Council imposing a tax of fourpence per copy on newspapers; but his authority did not enable him to block another severe measure which made a second conviction for publishing a libel ‘tending to bring into hatred and contempt the government of the colony’ punishable by banishment for an undefined period. After the amended constitution came into force and the certificate of the Chief Justice to the validity of an Act was no longer required, Darling did not attempt to force a crushing stamp act upon the press, and, in response to the criticism of the Secretary of State, he modified the Newspaper Act of 1827 by limiting the term for which an offending printer or publisher might be banished. Chief Justice Forbes, who continued to hold his office till 1836, proved a stout friend to the liberalizing process which was now at work in New South Wales when he refused to sanction the newspaper licensing measure; and his sympathies throughout were with Wentworth in his campaign for the introduction of free institutions.
The establishment of trial by jury in a colony populated chiefly by convicts was from the beginning seen to be a serious difficulty. Even before the First Fleet sailed for Botany Bay in 1787, the Attorney-General had been called upon to advise Pitt’s Government as to the administration of justice, and had reported that the inhabitants would not be ‘the proper stuff to make juries.’ But it was hoped that this typically British mode of trial would be granted ‘as soon as it can be done with propriety.’ The opportune time did not arrive for over forty years after the establishment of the colony.
The essential difficulty of the problem was that persons who had been transported for breaches of the law could not be regarded as proper members of juries to try others; and this difficulty was bound to continue as long as the emancipists exceeded in number the free class. ‘The great principle of that excellent institution,’ wrote Lord Bathurst, ‘is that men should be tried by their peers. Would that principle be fairly acted upon if free settlers were to sit in judgement on convicts, and that too in cases where free settlers might be a party? Would it be prudent to allow convicts to act as jurymen?’
The mode of trial in criminal cases, by the Judge-Advocate and six naval or military officers, was not abolished by the Acts of 1823 and 1828; though in civil cases, which were tried in the Chief Justice’s Court, the parties could demand a jury if they desired. Wentworth and the Emancipist party insistently demanded that trial by jury on familiar British lines should be inaugurated promptly; but the opposite party, the Exclusives, detested the idea of entrusting any public functions to ex-convicts. Forbes was of opinion that all persons who had served their terms of transportation would be eligible as jurors if the system were instituted, and he made no secret of his own opinion that it should be.
Governor Darling was not unsympathetic towards the institution of the jury system, especially as a little gentle pressure was being exerted from England. The Legislative Council in 1830, under his guidance, while passing a bill providing for trial by jury, and even enabling emancipists to sit, expressly excluded all who had been convicted for serious offences committed in the colony. The stirring of opinion by Wentworth counted for very much in securing this measure of advance. Indeed, the passing of the Act of 1830 was the direct outcome of the insertion, upon his motion, of a petition for trial by jury in an address presented to King William IV on his accession to the throne in that year. The petition urged that the time was ripe for extending ‘to the only colony of Britain bereft of the rights of Britons a full participation of the benefits and privileges of the British Constitution.’
The limitation of the power of the Governor by setting up a Council to work with him, the institution of trial by jury, and the prevention of official control of the Press, were the three first important steps in the direction of constitutional liberty. But the Council was not an elected body; it was a group of officials and prominent persons, selected by the Governor, and appointed by the Crown. Representative institutions were not established until the convict system had been abandoned and until four new colonies had been built in Australia.
With such a Council the reform party could never be satisfied. In the leadership of that party, Wentworth was ably assisted by Dr. William Bland, an ex-naval surgeon who had been transported for ‘killing his man’ in a duel in India, and who devoted himself in his place of exile to an energetic life of public usefulness.
Yet, restricted as the first Legislative Council was in scope and personnel, it did valuable work for Australia. In 1842 it was reconstituted, when its membership was fixed at thirty-six, of whom twenty-four were elected by freeholders possessed of a property qualification of £200 and householders who paid not less than £20 per annum rent. The remaining twelve members were nominated by the Government. The nominee members, from first to last, included several men of very great ability. The most distinguished of these, apart from Wentworth, was Robert Lowe, who came out to Australia during the Governorship of Gipps (1838-45), with a brilliant scholastic reputation, and was appointed a member of the Council within a few months of his arrival in 1842. For eight years Lowe was in the thick of every political controversy. A white-headed young man whose tongue rattled with amazing fluency, he developed the caustic wit and the sparkling eloquence which were afterwards to illuminate the debates of the House of Commons, and (when he became Lord Sherbrooke), the House of Lords, while handling such questions as the minimum price of squatting lands, the duty on flour, and the admissibility of aboriginals as witnesses. Classical allusions flashed in his rapid sentences. In his newspaper, the Atlas, he lavished a wealth of learning on colonial problems, and occasionally he sprinkled a jet of satirical couplets on persons who offended him.
But Lowe’s acid sarcasm and vehement temper involved him in many quarrels, including one which broke his friendship with Gipps. Twice at least he received challenges to fight duels from opponents, who, though no match for him in dialectic, thought they could do better with pistols. He was wholly with Wentworth on the question of extending free institutions to Australia, and had noble visions of the future relations between Great Britain and her colonies. In 1844 he said in the Legislative Council that ‘he hoped the time was not remote when Great Britain would give up the idea of treating the dependencies of the Crown as children to be cast adrift from their parent as soon as they arrived at manhood, and substitute for it the far truer and nobler policy of knitting herself and her colonies into one mighty confederacy, confident against the world in arts and arms.’ That note had never been struck in Australian politics before Lowe’s time; and none but he was capable of sounding it in language which was then fresh and inspiring, though much that is like it — hardly better expressed, however — has been heard since.
Lowe’s experience of Australian politics stood him in good stead when, on his return to England, he secured a seat in the House of Commons, and Gladstone made him Chancellor of the Exchequer in his Cabinet of 1868. It is indeed remarkable that both in Gladstone’s first and second Cabinets the Chancellorship of the Exchequer should have been held by men who acquired their grounding in practical politics in Australia. The second instance was that of Hugh Childers (Chancellor 1882-5), who was a member of the first Government of Victoria.
Ernest Scott, A Short History of Australia, London: Oxford University Press, 6th edition, 1936, pages 109-117