CHAPTER X. 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. If Macquarie was the last of the tyrants, his successor, Sir Thomas Brisbane (1821-5) was the first of the Governors whose authority was limited by statute. 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 authorised 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.