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The retirement of Lord Bathurst, and accession of Lord Goderich, gave some hope of a change in the form, if not the agents of government. The colonist expected much from the improved tone of the English executive; but, except the rescue of the press, the sole effect was a reduction of British expenditure for the civil government, and in 1827 its total cessation.

Mr. Hood, a surgeon on half-pay, had offended Arthur by a letter: a Gazette announcement informed him that he was placed under a ban;[149] and his name recorded, to prevent his participating in the "favors or indulgencies of the local government"—a help to official remembrance, which rulers seldom require. Thus official and opposition parties were organised: as the distinction became more marked, a social gloom overspread the capital. Whispers were heard with jealousy. The mercantile class, who alone could defy the government, and who were excluded from the "court circles," headed the opposition. "The official corps," said a satirical lady, who drew a picture of the times, "are punctilious; fearful of compromising their rank; all etiquette." The entertainments at government-house were ceremonies, rather than parties of pleasure. As the servant opened the door, he seemed to say, "you may come in, but don't speak." Some more daring spirit would venture a remark, as ballast is thrown out to send a balloon above the fogs; but caution, like Sancho's physician, interdicted the perilous indulgence, and restored the watchful silence. No Dutchman would willingly endure the Humdrumstadt on the Derwent, notwithstanding its natural advantages and commercial promise—a town without a library, and where the common spirit of detraction was exasperated by competition for those favors the governor could refuse or transfer. The presence of power was everywhere felt, and dreaded wherever it could not be defied.[150]

The close connection and constant intercourse between New South Wales and Van Diemen's Land affected the spirit of both governments. Sir Thomas Brisbane, whose easy temper and courteous manner rendered him highly popular, was superseded by Lieutenant-General Sir Ralph Darling, whose administration after the first few months was a perpetual storm. The chief justice, inclined to liberal politics, rejected several drafts of laws which trespassed on the limits of the constitutional act, which he himself had framed at the request of Lord Bathurst. At his dictation, the ordinance against the press was less stringent than intended. The titles of land, the property of masters in assigned labor, he determined against the government. He was considered the tribune of the people. Judge Forbes, a Bermudian by birth, was educated in an American college, and charged with republican tendencies by those who designed to degrade him.[151]

Brisbane was the patron of the turf club. This office was accepted by Darling as his successor. He was invited to dine with the members: this he declined. Mr. Wentworth, as chairman of the day, made certain observations thought personally disrespectful; and when the governor's health was proposed, the band struck up, without orders from the stewards, "There is na luck about the house." Darling, informed of these proceedings, withdrew his name as patron. The club passed resolutions declaring their approval of Mr. Wentworth's speech. The governor dismissed the acting attorney general (Moore), the sheriff (Mackarness), and other officials, for their concurrence with the majority.

Two soldiers, Thompson and Sudds, to escape from the service, committed a theft, and received a sentence in the supreme court. To aggravate its rigour, Darling brought them on parade: stripped them of their uniform, fixed round their necks collars set with spikes, and loaded their legs with chains. In a few days Sudds languished and died: this result, so unexpected, was attributed in part to a latent disease of the liver, rendered fatal by grief and the pressure of the iron. The affair became the subject of parliamentary inquiry. Darling was accused of murder by his enemies: he was vindicated by ministers; but although his motives were uncorrupt, an arbitrary aggravation of a judicial sentence who would seriously approve?

These transactions, together with the "Stamp Act" to check the circulation of newspapers, were noticed in the Australian (May, 1827) in terms of ironical praise; severe, but not beyond the ordinary license of public discussion. On the arrival of Mr. Baxter, the attorney general, the proprietor, Dr. Wardell, was prosecuted in the supreme court, at the instance of General Darling. Judge Forbes pointed out the violent straining of the inuendos, and through his charge led on to an acquittal. Although chosen by the prosecutor, the jury were unable to agree, and the defendant was discharged. The alleged libel stated that the stamp act "would immortalise" General Darling "in the annals of this rapidly improving colony, and act as a passport to the admiration and grateful respect of posterity." The meaning extracted by the inuendos was this: "It would render his memory for ever infamous, and cause his name to be hated and detested by future generations." The judge justly remarked, that between immortality and infamy there are many steps.

The struggles between the governor-in-chief and the opposition were watched in Van Diemen's Land with interest. The same parties existed in both colonies; but Judge Pedder did not participate the political sympathies of Judge Forbes, and made no pretence to popular applause. To those who check the abuses of irresponsible power something is due; but when the balance of human infirmity is struck, it will not be always found in their favor.[152]

The employment of spies has been charged on Arthur as a chief vice of his government—a practice hardly less perilous to the innocent than guilty. Shortly before his retirement from office, Mr. Humphrey, the police magistrate, was denounced for corruption. Major Honner, who had formed a disgraceful connexion with Anne Pope, a prisoner of the crown, applied for her assignment to his service: this Mr. Humphrey refused. The major then offered to produce evidence against this officer, on condition that free pardons were granted to his witnesses, one of whom was found to be his paramour. The governor declined to pledge a reward; but Honner was assured by a member of the executive that, provided the results were satisfactory, his recommendation would be favorably considered. He forwarded a letter to the governor, who satisfied that the imputation was malicious and incapable of proof, directed the prosecution of the accuser. The transaction was unfortunate: the negociation indicated that secret informers were tolerated, and that pardons might be procured by a successful witness.

Mr. Humphrey, originally a mineralogist, who filled various offices from the foundation of the colony, received a pension of £400; but soon after died (1829). The governor eulogised in strong language his official career.

The recall of Arthur was announced, and the policy of his successor gravely debated before his career was midway. "It is a fact," said the Sydney Gazette, "Colonel Davies is the distinguished individual." "The successor of Colonel Arthur," said the Australian (1829), "is placed beyond doubt. The appointment of Colonel Gibbs is now certain." Clergymen of such names emigrated about the time, and rumour could easily supply the rest.

When the constitutional act approached its term, the colonists determined to seek not only for trial by jury, but a voice in the legislature. A petition adopted by a meeting held in 1827, was confided to a deputation, who were instructed to forward it through Arthur, and to entreat his concurrence with its prayer. A time was fixed to receive them; but when at the government-house, they were met by a blundering message, postponing the interview for one hour. Deeming themselves and their constituents slighted, they declined a second attendance. Arthur published a vindication of himself: he stated that business of great importance with Mr. Curr, prevented his examination of the documents; he had requested the delay only to prepare himself for the audience, and regretted that the colony were deprived of his friendly offices by an unreasonable caprice. This paper fell into the hands of the deputation a few hours after the vessel had sailed with despatches for the secretary of state. They considered this a manœuvre, contrived to stifle their defence; and instantly dispatched a fast sailing boat to pursue the ship with an exculpatory letter.

By a circular of Lord Bathurst,[153] still in force, it was announced to the colonists that their complaints must pass through the governor's hands to the home-office. Duplicates without new matter might be forwarded by other channels; but an answer could only be expected on the arrival of the governor's report.

The violation of this rule the deputation imputed to the necessity of the case; to counteract an attempt of the governor to evade its spirit. Their promptitude was unavailing: for his share in the transaction, the name of Mr. Gellibrand was expunged from the list of magistrates, by Lord Goderich's orders.

The hostility of Arthur to the petition was well understood, and there were many others who did not sympathise with its object. Sir John Owen presented it to the Commons without a word. The ministers expressed their desire to grant free institutions, so soon as the colony was ripe to enjoy them, when Mr. A. Baring (Lord Ashburton) remarked that colonies are never ripe for free institutions until they get them.

Mr. Marshall, the shipping agent, attempted to form an association in London (1828), for the protection of these colonies. All persons, commercially or otherwise interested, were eligible for membership. A correspondence was projected with the leading colonists, and it was assumed the British government would readily attend to representations emanating from such a source. The scheme did not obtain the support it merited, and the scattered colonial interests could never be combined for a joint action. The partizans of Arthur ridiculed the plan, and it came to nothing.

The constitutional act, which became law, July 25, 1828, to terminate 1836, but extended until now, differs in many of its provisions from the last. The governor is president, and has a deliberative and casting vote. The council is increased from five or seven to ten or fifteen; the oath of secresy is abolished; drafts of acts are gazetted; a law cannot be made by the crown or the governor alone; two-thirds of the council must be present; although previous duties are confirmed, no new tax can be imposed except for local purposes expressed in the bill; ordinances must be conformable to English laws; all statutes in operation at the date of the act were applied to the colony, all others may be adopted. A member may draft a bill, which the governor must lay, verbatim, on the council table, with his reasons for refusing to propose it. A member may record his protest, and a majority is necessary to pass a measure. The members are appointed by the crown, and vacancies are filled up by the governor: they must be resident; ex-officio they are magistrates. The preliminary certificate of the chief justice, required by the former act, is substituted by another clause, which compels the council to reconsider a bill declared by the judge repugnant to the laws of England, or the act constituting the council.

The British legislature, in criminal cases, establishes a military jury alone: challenge is allowed for direct interests, and magistrates may act in default of commissioned officers; but in civil actions assessors are continued. But the local council is authorised to institute trial by jury, under such limitations as may be deemed meet. It is under this act of parliament that the colony has seen the jury-box delivered up to civilians; but awaits the hour which the law itself foretells, when in recognising the ancient principle of representation it records the purpose of resuming it, "so soon as the cause shall cease to operate which had forbidden its immediate observance."[154]

In transmitting this bill, Sir George Murray explained that by the clause which superseded the veto of the chief justice, it was intended to avoid a collision of opinion between the high functionaries of government. Nothing, however, but the most urgent necessity would justify the governor in setting aside his opinion.[155]