The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030545903 Cornell University Library JQ5311 .J53 The government of Victoria (Australia olin 3 1924 030 545 903 THE aOVEENMENT OF VICTORIA (AUSTRALIA) THE aOVEENMENT OP VICTOEIA (AUSTEALIA) BY EDWARD JENKS, M.A. OF THE MIDDLE TEMPLE BAEEISTER-AT-LAW ; FELLOW OF KINO's COLLEGE, CAMBRIDGE ; PROFESSOR AND DEAN OF THE FAOULTT OF LAW ^ IN THE UNIVERSITT OF MELBOURNE Ho nil on MACMILLAN AND CO. AND NEW YORK 1891 All righis reserved PREFACE I SHALL best explain the purpose of this work by a few lines of autobiography. In May 1889 I was appointed to the Chair of Law in Melbourne University as successor to the late Dr. W. E. Hearn, so favourably known, not only in Australia, but also m England and America, as the author of The Aryan Household, The Govern- ment of Englayid, and other works. Immediately upon my arrival in Melbourne, I found it incumbent upon me, in order to fulfil the engagements made by the Faculty of Law, to lecture upon a subject called " The Public Law of Victoria," of which I had not, at that time, any special knowledge. In ordinary circumstances it would have been a suf&ciently severe task to lecture to a large and critical audience upon a topic which I had not thoroughly studied. But in this case the hardship was intensified by the fact that I could find no text-book which would give me even an outline idea of the subject. The only authorities prescribed by the Faculty were the Acts of Parliament for the time being in force in Victoria on various branches of it. i The inadequacy of such a provision for the teaching of Public Law, in a country like Victoria, must be manifest. In Victoria, as in England, much of that which is most import- ant in sound constitutional knowledge is never embodied in statutes at all. Judicial decisions, diplomatic correspondence, resolutions of the Houses of Parliament, political tradition and practice generally, form essential items in the Kst of the sources of public law. To expect a beginner to assimilate public law from a study of the statutes alone, is like expecting a foreigner to master the railway system from an examination of the time- vi PREFACE table. For a ripe scholar such as Dr. Hearn, who had grown up with and personally influenced the developement of the Constitution of Victoria, it was easy to explain and illustrate the subject, using the statutes as occasional evidence. But to myself, and, I believe, also to my students, such a course was not open. In the circumstances, it seemed best for me to throw myself frankly on the confidence of my class, explaining to them the situation in which I was placed, begging their for- bearance for imperfections, and promising them at the earhest possible moment something in the way of a text-book. I felt that this latter promise was especially due to those country students who, though obHged to pass the examinations, were unable to attend lectures. Upon them the circumstances bore especially hard. I have now to thank the members of my class for the readiaess with which they entered iuto my views, and the consideration which they extended to my shortcomings. During the lecture terms of the years 1889 and 1890,1 was able, by dint of hard work, just to keep pace with their recLuirements. In fulfilment of my promise, I bring out this little book, having been more intensely convinced, as I have written each page of it, that the subject of which it treats cannot be grasped by an ordinary student without some other guide than the statute-book. It will be seen, then, that this work is primarily a text- book for university students. It is not, and does not pretend to be, a manual for practitioners. I have not attempted to go, for example, into the details of election law or the practice of Parhamentary Committees. I have, in all cases, subordinated the professional to the scientific side of the subject. It has, in fact, been my steady aim to show that the body of government is not a mere collection of casual mandates, the arbitrary result of the surrender of individual independence to the control of the aggregate, but the vital offspring of the working of the spirit of order upon the chaos of circumstance, a true organism with a verifiable past and a conjectural future, with a structure well worth careful study, and with limbs and members whose function it is to effect and apply the political ideals of the community. With this object, I have commenced by sketching PREFACE vii the organism in its earlier stages of developement ; when I have arrived at its present form, I have abandoned the historical method (except in a few details), and have subjected it to a process of dissection and analysis. But although I have written primarily for university students, I have ventured to hope that my book will have an interest also for a wider class of students. Among the ever- increasing number of those who study the course of political developement, and the nature of political phenomena, there may be a few who will be glad to have a report upon the growth of English principles in a new atmosphere. There is so much in that atmosphere which reproduces the conditions of their ancestral home, that these principles have taken root with amazing firmness. On the other hand, so much is different, or rather, so much is wanting, that the variations which have followed from the change of climate seem to me intensely inter- esting and instructive. Many tendencies, at present only latent in English poMtics, or kept in check by powerful counter- influences, have in Victoria run their unhindered course, and can therefore be studied under the valuable condition of abstraction. Knowing and sympathising with the desire of students such as I have alluded to for simple, imalloyed facts, I have, so far as possible, avoided comment or expression of opinion in the body of the book. In the concluding chapter only, I have permitted myself to moralise. It is easy to skip a concluding chapter. I should like also to think that a few of the more prac- tically-minded persons who actually carry on the business of politics would make use of my work. I do not offer them views or opinions, but simply facts, and I have been amazed to find how many persons in important pohtical positions (I do not allude specially to Victorian examples) are ignorant of the elementary facts of their subject. But, apart from these cases, in a country where every adult male has at least some influence on politics, there should be no lack of interest in political information. What, after all, is the good of democracy, unless it increases the intelligent interest taken by the members of the community in the problems of government ? And the first condition of such interest is an adequate knowledge of the elementary facts of the case. viii - PREFACE One word upon the title of my book. I have not (as I first intended) called it " The Public Law of Victoria," because I have thought that such a title might imply a more detailed statement of professional law than I intend to give. I have avoided the obvious name of " The Constitution of Victoria/' because it seems to be the custom with English writers to confine the term "Constitution" to a very narrow sphere, limited, practically, by the direct action of Parliament and the central executive. I am strongly convinced that this practice has tended to obscure that most important side of the citizen's existence which is covered by the action of the local authorities, and I do not think that there is any sound warrant for it. But I am bound by precedent, and I have therefore used the expression " The Government of Victoria," to cover what I hope will prove to be a fairly complete, though by no means detailed account of the organs of government in Victoria at the close of the year 1890. Of the merits of those organs, judged by their practical results, I have said very little. That is a topic which I hope to take up in a later and more com- prehensive work. But though I have not put in the shading, I trust that I have not omitted any important features in my sketch. It now only remains for me to perform the grateful task of thanking those who have so kindly come to my assistance with information and encouragement. Por the plan and execution of the book I am alone responsible. Notwithstand- ing that I have verified every relation which seemed to me of any real importance by reference to the original authorities, I dare not hope that I have avoided errors, and for such errors as there may be, I alone am to blame. But my special gratitude is due to Sir Henry Parkes, G.C.M.G., Premier of New South "Wales, to the Hon. H. J. Wrixon, Q.C., late Attorney-General of Victoria, and to my colleague, the Hon. P. S. Dobson, Q.C., Chairman of Committees in the Legislative Council of Victoria, for the valuable help which their official experience and position have enabled them, and their courtesy has prompted them to afford me in explaining the actual working of the traditional machinery of government ; to Mr. Donald Mackinnon, M.A., of Lincoln's Inn and the Victorian Bar, who has brought his great knowledge of the modern PREFACE IX statute law of Victoria to bear upon my proof-sheets ; and to Messrs. Dowden and Armstrong, of the Public Library, Mel- bourne, for their constant endeavours to lighten my always severe, and sometimes irksome labours in that valuable institu- tion. The help of other friends has been acknowledged in the footnotes, in connection with the special matters ia which their assistance has been so valuable. Melbourne, Avgust 1891. CHEONOLOGICAL TABLE OF PEINCIPAL DATES A.D. 1660. Appointment of Council of Trade. 1672. Appointment of Ooimcil of Trade and Plantations. 1675. The Council abolished. 1695. Revived. 1768. First appointment of Secretary of State for the Colonies. 1781. Abolition of ofB.ce, and of Council of Trade and Plantations. 1783. Act authorising Transportation. 1801. Appointment of Secretary for War, with charge of the Colonies. 1817. Appointment of salaried Vice-President of the Committee of the Privy Council for Trade and Foreign Plantations. 1823. Statute authorising creation of Supreme Court and Legislative Council for New South Wales. Partial separation of Van Diemen's Land (Tasmania) from New South Wales. 1827. Appointment of salaried President of Committee for Trade and Foreign Plantations. 1829. Founding of Swan River Settlement (Western Australia). 1831. Lord Ripon's Land Regulations (enforcing uniform system of sale of Crown lands). 1835. Founding of Port Phillip (Victoria) by the Port Phillip Association. Proclamation of Sir Richard Bourke, claiming Port Phillip as part of New South Wales. 1836 (Sept.) Arrival of Captain Lonsdale as Resident Magistrate at Port Phillip. (Dec.) Arrival of first governor of South Australia. 1837. Formal founding of Melbourne and Williamstown. 1838. Quarter Sessions proclaimed at Melbourne. Founding of Geelong. 1839. Arrival of Mr. Latrobe as Superintendent of Port Phillip. Proclamation of Court of Requests at Melbourne. Proclamation of Port Phillip as a Squatting District. 1840. Founding of Portland. Order in Council declaring Melbourne a " Free Port '' and " Free Warehousing Port." Land Regulations dividing New South Wales into three districts, and directing land to be sold in Port Phillip at non-competitive rates. xii CHRONOLOGICAL TABLE OF PRINCIPAL DATES Sub-division of Port Phillip (squatting) district into "Westemport" and " Portland Bay." 1841. Founding of the Melbourne Market. Appointment of first District Judge of Port Phillip. 1842. Establishment of Registry of Deeds at Port Phillip. Incorporation of the town of Melbourne. Introduction of Representative Government into Australia (Constitu- tion of 1842). The Crown Land Sales Act (introducing universal sale by auction). 1843. Protest of the Legislative Council against the Crown Land Sales Act. Sub-division of Port Phillip into four squatting districts (" Gipps- land " and " Murray " new). 1844. Important Squatting Regulations. 1846. Addition of fifth squatting district (" Wimmera "). The Legislative Council refuse to renew the Squatting Acts. Proclamation of the abortive colony of " North Australia." 1847. The Crown Lands Leases Act and the Orders in Council. Sub-division of the See of Australia. 1848. Proclamation of thirteen new counties in Port Phillip (16 in all). 1849. Revocation of "North Australia." 1850. Resolutions of Grievances by the Legislative Council. Passing of the Separation Act. 1851. Formal separation of Victoria from New South Wales. Discovery of gold in Victoria. Transfer of the Customs officials to the colonial staff. 1852. Creation of the Supreme Court of Victoria. 1853. Establishment of Road Districts and Central Road Board. Increase in numbers of Legislative Council. Appointment of Constitutional Committee. 1854. Excessive expenditure. Deficit. Establishment of system of urban municipalities. 1855. Report of the (Victorian) Royal Commission on the Land System. Increase in numbers of Legislative Council. Passing of the Act for the Government of Victoria. Change to Responsible Government. 1856. First meeting of Parliament under new system. Introduction of ballot for Parliamentary elections. 1857. Introduction of manhood suffrage for the Assembly and abolition of property qualification of members. Establishment of Board of Land and Works. Committee on the subject of Federal Union. 1858. Increase in numbers of Legislative Assembly to 78. 1859. Duration of Legislative Assembly reduced to three years. Separation of Queensland from New South Wales. 1860. Important Land Act. 1862. Important Land Act. 1863. Introduction of system of rural municipalities. 1867. Introduction of "protective" system of taxation on imports. 1869. Important Land Act. CHRONOLOGICAL TABLE OF PRINCIPAL DATES xiii Important " Shires Statute." 1870. Introduction of practice of payment of members of Parliament. Committee on Federal Union. 1872. Uniform system of state-school teaching introduced by the Educa- tion Act. 1874. Passing of consolidating Local Government Act. 1879. Creation of office of Governor and Commander-in-Chief by Letters- Patent. 1880. Federal Conference at Melbourne. 1881. Increase in numbers of Legislative Council to 42 and tenure of seats shortened to six years. 1883. The Mallee Pastoral Leases Act. The Public Service Act. Establishment of Council and Minister of Defence. Federal Convention at Sydney. 1884. Important Land Act. 1885. Passing of the Imperial Federal Council Act. Adopted in "Victoria. 1890. Federal Conference at Melbourne. 1891. Federal Convention at Sydney. CONTENTS INTEODUCTOEY CHAPTER I THE HOME GOVERNMENT OF THE COLONIES PRIOR TO 1835 Theory of government in England . Early foreign possessions of the Crown . Their immunity from Parliamentary control Similarly with true colonies Position of the Privy Council with regard to the colonies The Commonwealth Committee . The ConncU of Trade of 1660 . The Council of Foreign Plantations The Council of Trade and Plantations (1672) Abolished 1675 Revived 1695 ..... Abolished by 22 Geo. III. c. 82 The Committee of the Council for Trade and Foreign Plantations Receives a salaried Vice-President (1817) A salaried President (1827) The " King's Secretaries "... Acquire oflScial position under Henry VIII. "First" and "Second" or "Northern" and "Southern" Tradition of a right to sit in Parliament ex officio Seats in the Council Recognised in Clarendon's scheme of government Appointment of a " Third " Secretary (for Scotland) Discontinued in 1745 . Revived in 1768 (as Secretary of State for the Colonies) Abolished in 1781, with the Council of Trade and Plantations The " Office for Plantations " (department of the Home Office) Business of the colonies transferred to the Secretary for War (1801) Practice for Secretaries of State to be members of Parliament Extract illustrative of practice of Colonial department PAGE 1 1 2 2 2 2 3 3 3 3 3 4 4 4 4 5 5 5 5 5 6 6 6 6 7 7 7 8 8 CONTENTS CHAPTER II THE LOCAL GOVEENMENT OF THE COLONIES (AND PARTICULARLY OF NEW SOUTH WALES) PRIOR TO THE TEAR 1835 Parliamentary legislation for the colonies at the end of the eighteenth century Canada India ..•■■••• Formula for developement of colonial self-government in the nineteenth century Early government of New South Wales . Governor Phillip's commission . The 24 Geo. III. c. 56, and the Orders in Council The Vice-Admiralty Court The 4 Geo. IV. c. 96 . The Supreme Court and the Court of Appeals . The first Legislative Council Admission of non-official members Partial separation of Van Diemen's Land The Australian colonies become self-supporting . The 9 Geo. IV. c. 83 . Extension of powers of Supreme Court . Courts of Quarter Sessions and Courts of Bequests New Legislative Council Limited powers of legislation and taxation Members of the Executive The Executive Council .... The Commissioners of Crown Lands Condition of the other Australasian colonies in 1835 10 10 10 1 1 1 1 1 12 12 12 13 13 13 14 14 14 16 16 17 18 19 20 PART I— MAGISTEEIAL GOVEENMENT CHAPTER III THE POUNDING OF PORT PHILLIP The Port Phillip Association Grants of land from the aboriginals Constitutional position of the Association The ownership of land within the British dominions Sir Richard Bourke's Proclamation Confirmed by the Home Government 23 23 24 25 25 26 CONTENTS CHAPTER IV THE OKQANISATION OF POET PHILLIP Report upon the condition of Port Phillip in 1836 Appointment of Captain Lonsdale as Police Magistrate Attempts at self-organisation Arrival of Captain Lonsdale and stafif . Proclamation of the gaol Visit of Governor Bourke Proclamation of " Hobson's Bay " Melbourne ..... William's Town .... Geelong ..... Portland ..... Importance of these towns in developement of Victoria Quarter Sessions .... Arrival of the " Superintendent " (Mr. Latrobe) . The under-treasurer .... The Clerk of the Peace The Court of Requests at Melbourne Division of Melbourne into " North " and " South " The incorporation of the town . Proclamation of Melbourne as a " Free Port " and " Free Ware- housing Port " . 27 27 28 28 28 28 28 28 28 29 2& 29 29 29 29 29 30 30 30 30 CHAPTER V THE LAND SYSTEM OE PORT PHILLIP Feudal theory of Crown ownership of land The theory applied to colonial lands Early practice in New South Wales Scheme of 1824 The Australian Agricultural Company The Van Diemen's Land Company Scheme of 1824 modified in 1827 Lord Ripon's regulations of 1831 First land sales in Port Phillip held under these Regulations Report of House of Commons committee in 1836 Appointment of "The Colonial Land and Emigration Com- missioners" ..... Division of New South Wales into three Crown Land Districts 6 32 33 33 34 35 35 36 37 38 38 39 40 xviii CONTENTS Fixing of sale price of lands in Port Phillip at £X an acre The (Colonial) Land Eegulations of 5th December 1840 Fixed price and " special surveys " Abolished by the Home Government Effect of the Eegulations of 5th December 1840 The other aspect of the land system — " squatting " Leases within the limits of location Occupation beyond the limits . The new Squatting Act (2 Vic. No. 27) The Commissioners and the Border Police Working out of the scheme. Licenses . Proclamation of Port Phillip as a Squatting District Subdivided into " Western Port " and " Portland Bay Adoption of licensing system within the limits . PAGE 40 40 41 42 42 43 44 44 45 46 46 47 47 47 CHAPTEE VI BAELY INSTITUTIONS OF POET PHILLIP The Melbourne Market 48 The District Branch of the Supreme Court 49 Appointment of Mr. Justice Willis 51 The Eegistry of Deeds . 51 The Corporation of Melbourne . 51 The burgesses .... 52 The burgess-roll 53 The Councillors and the Council 54 The Aldermen 54 The Mayor .... 55 Separate Commission of the Peace for the Town 55 Special Constables 55 Assessors . • . . . 55 Auditors • . . . . 56 Grounds of exemption from oflce 56 The Town Clerk • . . . 56 The Treasurer . . . . . 56 The Surveyor .... 56 ■Committees 57 Powers of the Corporation 57 The "Town Fund" . . . ' 57 The " Police Fund " . 58 By-laws ... 58 CONTENTS Lighting, streets, and drains ..... Eesemblance between the Melbourne Corporation Act and the 5 & 6 WiU. IV. c. 76 . Amendments of the Corporation Act PAGE 58 59 60 CHAPTER VII GENERAL CONDITION OP PORT PHILLIP IN 1842 Official staff in 1842 . 63 Revenue and Expenditure 65 Population .... 65 Crown land sales 65 Produce of the land 65 Live stock 66 Shipping 66 Exports and Imports . 66 PAET II— EEPEESENTATIVE GOVERNMENT CHAPTER VIII THE NEW CONSTITUTION (1842) Indifference of England to Colonial questions in Importance of the Constitution of 1842 The new Legislative Council (partly elective) The electoral districts . The franchises Qualification of members Method of appointing nominee candidates Vacation of seats Sessions and duration of CouncUs Method of action Legislative powers Bills which must be reserved . Right of disallowance by the Crown Financial powers of the Council Limitations thereon The Civil List Summary of the Constitution of 1842 . 1842 69 69 69 70 70 70 70 71 71 71 72 72 72 72 72 73 75 CONTENTS OHAPTEE IX INAUaUHATION OF THE NEW CONSTITUTION Proclamation of the New Constitution . Last meeting of the old Legislative Council The new Electoral Act (6 Vie. No. 16) . The elections for Port Phillip and Melbourne First meeting of the new CounciL Appointment of Speaker Absence of the Governor Opening Speech The Electoral Court Disputed election at Melbourne General character of the new Constitution PAGE 77 77 77 82 84 84 84 84 84 85 CHAPTEE X LOCAL GOVBENMENT Difference between English and Australian Constitutions Scheme of local government contained in Constitution of 1842 District Councils ..... Powers ...... By-laws ...... Local taxation for police purposes Criticism of the scheme .... Comparison with the corporate powers of Sydney and Melbourne History of the scheme ..... The Charter of Maitland .... Opposition to the plan ..... Introduction of bill to widen the municipal franchise Adverse vote in the Legislative Council Failure of the scheme ..... Elective Road Trusts substituted Reasons for the failure ..... 87 87 87 88 88 88 89 89 89 89 90 90 90 91 91 91 CHAPTER XI THE LAND QUESTION Difficulties in studying the Land Question Three aspects of the question. Sale, Squatting, Quit Rents- Salb 93 The Crown Land Sales Act of 1842 (5 & 6 Vic. c. 36) 94 CONTENTS xxi PAGE General principle — no alienation except by public auction . 94 " Town," " Suburban,'' and " Country " lots . . . 94 The minimum upset price of £X an acre . . .94 Appropriation of Land Fund : one half to emigration, the other .to Public Works within the colony . . . .95 Power to divide any colony into Crown Land Districts . . 95 Eeception of Act in New South Wales . . . .95 Appointment of Committee of Legislative Council . . 95 Keport of the Committee (December 1843) . . .95 Criticism of the report . . . . .97 The report adopted and sent to England . . .97 Appointment of a second committee . . . .98 Its report (August 1844) . . . . .98 Adopted ....... 98 Protest against the extreme views of the second report . . 98 Answer to the Address of 1843 . . . . 98 Opinions of Sir George Gipps on the subject . . .99 Approved by the Colonial Land and Emigration Commissioners and the Secretary of State . . . .100 But promise of pre-emptive rights to squatters . . .100 Reply to the Address of 1844 . . . .101 Action of the Legislative Council thereon . .101 Appointment of a third committee (1847) . . . 101 Keport . . . . . . .102 Beginning of the jealousy against the squatters . . . 102 Lord Grey's reply to the report of 1847 . . . 102 Order in Council of March 1847 .... 103 Regulations thereunder granting commonage rights . . 103 Appointment of fourth Committee (1849) . . . 104 Its report ....... 104 Criticism of the report . . . . . .105 Its demands once more refused by the Home Government . 106 Squatting Sub-division of Port Phillip into four squatting districts (1843) . 106 A fifth (Wimmera) added in 1846 . . . .106 Returns from the squatting districts . . . .106 Inadequacy of the revenue from this source . . . 106 Regulations of 2d April 1844 (limiting size of stations, and re- quiring separate license for each) . . . .107 Recommendations by the " General Hewitt " . . .107 Criticism of the recommendations . . . .108 Unpopularity of Regulations and recommendations in the Colony 108 xxii CONTENTS The former condemned by the Eeport of 1844 . Criticism of the arguments of the Eeport Despatch of Lord Stanley, enclosing Mr. Hope's measure . Terms of the measure . . . • • Discontent with the proposals . . . • Eefusal of the Legislative Council to renew the Squatting Act Crisis. The Governor's suggestions for a compromise Adjournment of the Council . . ■ • Governor Gipps succeeded by Sir Charles Fitz Eoy Disappearance of the difficulty . Arrival of the 9 & 10 Vic. c. 104 Statistics of squatting for the year 1847-8 The Order in Council of 9th March 1847 Analysis of its provisions Carried out by Eegulations Great extension of squatting Petition for squatting franchise in Port Phillip Quit Ebnts The cause of dispute ..... Eevival of the claims of the Crown Statistics in 1845 Address to the Governor requesting a stay of proceedings Eegulations of October 1846 .... Disapproved by the Home Government . Memorial of 1847 ..... Address of 1848, praying absolute remission Answer of the Secretary of State General The Eesolutions of Grievances of 1850 . PAGE 108 109 109 109 110 110 110 111 HI 111 111 112 113 113 115 116 116 117 117 118 118 118 119 119 119 119 121 CHAPTEE XII GOVERNMENT OFFICIALS AND ELECTIVE SEATS Election of Sir Thomas Mitchell (Surveyor-General) for Port Phillip 122 Expression of opinion by the Governor . . . .122 Eesignation of seat by Sir Thomas Mitchell . . .122 Lord Stanley's opinion . . . . . .122 Act on the subject introduced. Reserved for Eoyal Assent . 123 Consideration of the point . . . . .123 CONTENTS CHAPTEK XIII SEPARATION Growth, of feeling in favour of separation Alteration of cliaracter of government at Sydney Unreal character of Port Phillip representation Proclamation of " North Australia " Division of the bishopric of Australia Practically a separate Executive for Port Phillip Motions by Dr. Lang in 1843 . Petitions from Port Phillip (1844) Despatch of Lord Grey in 1848 Eeception in the colony Action by the Legislative Council Petitions from the general public Election of Lord Grey for Melbourne Memorial from Port Phillip New elections for the District . Effect of the memorial in England Report of the Board of Trade (4th April 1849) Analysis of the Report . Approved by the Cabinet Reaches the Colony Further despatches from Lord Grey Resolution in favour of Responsible Government Separation announced . . . . PAGE 125 125 125 125 125 126 126 127 128 129 129 129 130 131 132 132 132 134 134 134 134 135 135 CHAPTER XIV GENERAL CONDITION OF PORT PHILLIP IN 1850 Population of Port Phillip in 1850 Occupations Sex and age Buildings Live stock Revenue Alienation of Crown Lands Expenditure . Industries Imports 136 136 136 137 137 137 137 137 137 137 xxiv CONTENTS Exports ...... Shipping . . . . ■ Crime ...... Contrast between Port PMllip in 1850 and Victoria in 1890 PAGE 138 138 138 138 PAET III— SEPAEATE GOVERNMENT CHAPTER XV THE NEW CONSTITUTION (1850) The 13 & 14 Vic. c. 59 . . . . .141 Separation of " Victoria " from New South Wales . . 141 Boundaries . .... 141 Legislative Council . . . . 141 Electoral franchises . . . 142 Disqualifications .... .142 Powers of legislation and finance . 143 Restrictions . . . . . . .143 Power to create a Supreme Court . . 144 Existing laws continued , . . . 144 Power to create new colonies . . . . .145 Circumstances attending the passing of the Act in England . 145 Interest shown in Parliament . . . 146 Question of two chamber constitutions . . . .147 Loss of the " General Assembly " clauses . . .147 General observations on the debate . . .148 Criticismof the Act of 1842 . . . . 149 CHAPTER XVI INAUGURATION OF THE NEW CONSTITUTION Arrival of the Constitution Statute in the colony Despatch of Earl Grey (30th August 1850) Despatch to Sir William Denison (27th July 1850) Meeting of the (N. S. W.) Legislative Council Discontent of the Council with the new Constitution Its " protests '' . . Mr. Westgarth's motion on boundaries . The Act to continue officials in Victoria . 150 150 150 151 151 151 152 152 CONTENTS The Victorian Electoral Act Distribution of the constituencies Process of elections Provisions for deciding disputed elections The Victorian Laws Continuation Act . Issue of writs for first elections to Victorian Council Discovery of gold in New South Wales . Arrangements of the Executive for separation Commissions of the Governor-General, Governors, and Lieutenant- Governors .... Explanation of these arrangements Proclamation of the Governor-General in Sydney Proclamation of the Lieutenant-Governor and Executive Council in Victoria .... Analysis of the Commission of the Governor of Victoria Analysis of accompanying Instructions . The Commission of the Lieutenant-Governor Criticism of these arrangements Discovery of gold in Victoria Issue of License Regulations Returns of the elections in Victoria Appointment of the non-elective members First meeting of the Victorian Legislative Council Election of Speaker .... Opening speech of the Lieutenant-Governor Disputed return for Geelong Standing Orders adopted XXV PAGE 152 152 153 154 154 154 155 155 155 156 157 157 157 158 158 159 160 160 161 161 161 161 161 162 162 CHAPTER XVII TWO FINANCIAL QUESTIONS Financial Settlement with New South Wales . . .163 Transfer of Customs to the Colonial authorities . . .164 The " Acts to regulate the Trade of the British Possessions Abroad " 164 The 9 & 10 Vic. c. 94 . . . . . . 164 Circular of 8th August 1850 . . 165 Second circular of 19th April 1851 . . . .165 Directions to the Lieutenant-Governor . . .166 Directions to the Collector of Customs at Melbourne . . 166 The actual transfer . . . . . .167 xxri CONTENTS CHAPTER XVIII LOCAL GOVERNMENT PAGE The local government clauses of the Constitution of 1850 . 168 Eeportof Committee of 1852 . . . . .169 Value of the report . . . . . .169 The Roads and Bridges Committee . . . .169 Constitutional history of roadmaiing in N. S. W. . . 170 The " Central Road Board " of Victoria . . . .171 District Boards. Elective . . . . .171 Power to levy rates . . . . . .171 Work done by the Board . . . . .171. Origin of the scheme . . . . . .172 Local government in the towns . . . .172 The "Act for the Establishment of Municipal Corporations " . 172 Analysis of the provisions of the Act . . . .172 Municipal Councils . . . . . .172 Powers ....... 172 CHAPTER XIX THE ADMINISTRATION OP JUSTICE The Supreme Court Act 1852 . . . . .174 Chief Justice and two Puisnfe . . . . 174 Jurisdiction of the Court . . . . .174 Circuit Courts ....... 175 Appeal to Privy Council in certain cases. Reforms in Criminal practice, law of evidence, Courts of Sessions, Courts of Requests, jury system, and police law . . .175 CHAPTER XX THE LANB QUESTION Crown Land statistics . . . . . .177 Desire to exercise the pre-emptive rights given by the Order in Council of March 1847 . . . . .178 Increase of sales on discovery of gold . . . .178 Application for leave to use the Land Revenue to meet extra expenses of Government . . . . .178 Grant of the revenue from gold licences . . . .179 CONTENTS xxvii PAGE Qualified permission to use the other Land Eevenue . . 179 The Legislative Council address the Lieutenant-Governor to expend the Land Revenue . . . , .179 Suspension of the sale of unsurveyed blocks . . .180 Growth of the feeling against squatters . . . .180 History of the question . . . . .181 Slow procedure under 9 & 10 Vic. c. 104 and the Order in Council ....... 181 Effect of the discovery of gold in increasing the demand for land 181 Mr. Fawkner's motion to extend the " settled " area negatived . 182 Amended motion to exempt homesteads agreed to . .183 Mr. Latrobe's Despatch of 7th September 1852 . . .183 Answer of the Duke of Newcastle . . . .185 Report of the Royal Commission (June 1855) . . - 186 Statistics in 1856 .... .187 CHAPTER XXI THE NEW CONSTITUTION (1855) The mining franchise .... 189 Increase in numbers of Legislative Council, 1853 and 1855 189 Suggestion as to" Responsible Government " from Home authoritie 5 190 Despatch of Sir John Pakiagton 190 Action in New South Wales 190 Analysis of Sir John Pakington's despatch 191 Change of government in England 191 The Duke of Newcastle's attitude 191 Appointment of a committee to frame a new Constitution 191 The Committee's resolutions 192 Sources of the resolutions 193 The bill in Committee of the Legislative Council 193 Points altered ..... 193 Measure finally passed and reserved for Royal assent 194 The measure in England 194 Criticism of Government proposals by Mr. Lowe 195 Indifference of Parliament to the subject 196 Debate on the second reading . 196 Committee ..... 197 Lords ...... 197 Royal Assent, 16th July 1855 . 197 The repeal of the Land Acts 198 xxviii CONTENTS Despatch of Lord Jolin Eussell with Constitution statute Alteration of boundary by New South Wales Constitution statute Origin of the change ...... Constitutional question as to the validity of the Constitution Act Question raised in the colony . . . . . FAOE 199 200 202 202 204 CHAPTER XXII THE CHANGE TO EBSPONSIBLB GOVERNMENT Peculiarity of the Cabinet system . . . .206 Absence of reference to change in formal documents . . 207 Covert allusions in Constitution Act . . . .207 And in Governor's Commission and Instructions . .207 Proclamation of the Constitution Statute and Waste Land Acts Eepeal Act ..... . 208 Question as to Eesponsible Officials .... 208 Opinion of the Law Officers . . . . .208 Protest of the officials . . .. . . .209 Resignation of four other officials . . . .210 Their "release from office on political grounds'' . . .211 Andre-appointment . . . . . .211 Minute of Sir Charles Hotham respecting Responsible Government (23d November 1855) . . . . .212 Criticism of the Governor's views . . . .213 Proceedings which led to resignation and re-appointment of officials 213 Motion of Mr. Greeves condemning the proceedings, lost by one vote 214 Criticism of the proceedings . . . . .215 CHAPTER XXIII GENERAL CONDITION OF VICTORIA IN 1855 Material prosperity Excessive expenditure in 1854 . Large deficit . Loans The Land Revenue Enormous increase of official staff Improvement in 1855 . Reduction in official expenses . Population at close of 1855 Agricultural statistics . 217 217 217 218 218 219 219 220 220 220 CONTENTS Squatting Mining Manufacturing industries Expori;s and Imports . Places of worship Education General view of the period XXIX PAGE 221 221 221 221 221 222 222 PAET IV— EESPONSIBLE GOVEENMENT CHAPTER XXIV INTRODUCTORY Change of method ...... Plan of the subject ...... Distinction between central and local government Division of powers of each into legislative, executive, and judicial Order of discussion 227 227 227 228 228 A. CENTRAL GOVERNMENT 1. LEGISLATIVE CHAPTER XXV THE GOVERNOR The Governor head of the Legislature . Creation of office by Letters-Patent of 21st Feb. 1879 Analysis of Letters-Patent a. Powers 6. Duties . Analysis of permanent Instructions a. Powers 6. Duties Powers by colonial statute Actual appointment of Governor Vice-Governors The Lieutenant-Governor The Administrator of the Government under standing Commission The Administrator of the Government specially commissioned The " deputy," temporarily appointed by the Governor . 230 230 231 231 231 231 231 232 233 234 234 234 235 235 235 CONTENTS CHAPTER XXVI THE PAELIAMBNT PAGE Summoning, prorogation, and dissolution of Parliament . 236 Oath of allegiance . . . • • 236 Privileges of members ..... 237 Disqualifications for membership 237 Methods of election ..... 238 " Provinces," " Districts," and " Divisions " . 238 Electoral Registrars .... . 239 "Elector's Rights" ..... . 239 Lists prepared in December and June . . 239 Revision courts ..... 239 The " electoral rolls " . 239 Returning oflScers ..... 240 Issue of -writs ... . . 240 Contents of writs ... 240 Duties of returning officer 241 Nomination of candidates 241 Deposit monies .... 241 The poll . . . . . 242 Declaration of result .... 243 Election offences . . 243 Decision of disputed elections . . . . . 244 Publication of Parliamentary reports . . . . 245 Powers of legislation, general and special 245 Practice under the 60th section of the Constitution Act . 246 Special duties of the legislature . . . . . 249 CHAPTER XXVII THE LEGISLATIVE COUNCIL Number of members in the Legislative Council . 250 Distribution of seats . • 250 Tenure of membership . . 250 Council incapable of dissolution 250 Biennial elections 250 Qualification of candidates 250 Qualification of electors 251 President of the Council 251 His duties 251 CONTENTS Other officials of the Council Quorum of the Council Position of the Council with regard to money bills PAOE 252 252 252 CHAPTER XXVIII THE LEGISLATIVE A8SEUBLT Number of members in the Legislative Assembly Distribution of seats Tenure of seats Dissolution and expiry Qualification of candidates Allowance for expenses Qualification of electors Election of Speaker His duties Quorum of the Assembly Special disability and privilege of the Assembly Position of the Assembly with regard to finance 253 253 253 253 253 253 254 254 254 254 254 255 CHAPTER XXIX OTHER LEGISLATIVE ORGANS Position of Crown as legislative authority in England Position of the question in Victoria Delegated legislation The " Governor in Council " The Board of Land and Works . The Public Service Board The Board of Public Health The Victorian Railway Commissioners The Supreme Court Unincorporated legislators Character of this non- Parliamentary legislation 259 259 259 260 262 262 262 263 264 265 266 2. EXECUTIVE CHAPTER XXX THE EXECUTIVE COUNCIL History of the Executive Council Its position before 1856 267 267 xxxii CONTENTS PAGE Official character . . . . . .268 Eesults of the character . . .269 Dangers of a purely official council . . .269 The Cabinet system devised to meet them . . .269 Evolution of the Cabinet system . . . .269 Imperfect adaptation to Australia before 1856 . . .270 Failure of the Constitutional Committee of 1853 to understand the system .... . 270 Settlement of the difficulty . ... 270 The Governor appoints the Cabinet . . . -270 Meaning of this rule . , . . . .271 Practice on a change of Ministry . . . .271 The power of the Executive Council in disposing of patronage . 274 Restrictions imposed by the Public Service Act . . .274 Effect of the Act on the politics of Victoria . . .274 Phases of the Executive Council . . . .275 The full Council ..... 275 The Cabinet ....... 275 The formal working Council . . . .275 Summary ....... 276 CHAPTER XXXI EESPONSIBLE MINISTERS The Officials in Parliament Act Peculiar wording of the provisions Actual arrangements ..... Responsible Ministers partly paid out of the Civil List . Functional character of the offices Chief offices usually found .... The Chief Secretary ..... Former precedence lapsed on introduction of title of " Premier " Usual and special duties .... The Treasii/rer ...... His duties by the Constitution Act History of a Government financial year . Committee of Supply and Committee of Ways and Means Votes of Supply ..... Consolidated Revenue Acts founded on resolutions of the Committee of Ways and Means .... Final Appropriation Act .... Taxation ...... 277 277 277 277 278 278 278 279 279 279 279 280 280 280 281 281 281 CONTENTS Special precautions on Customs Bills Collection and distribution of revenue . The Commissioners of Audit " Collectors of Imposts," " Receivers of Revenue " The Public Account " " The Trust Fund » " Paymasters " . Treasury warrants Powers to vary the terms of appropriation "The Bank Sheet," "The Cash Sheet" . The quarterly and annual statements The Attoriiey-General Legal Representative of the Crown Legal Adviser of the Government Administrator of the Legal Department . Adjudicator in certain cases The Gommissioner of Crown Lands cmd Survey Policy of Responsible Government with regard to Crown Lands Creation of Board of Land and Works . Reappearance of Commissioners of Crown Lands and Public Works Creation of Vice-presidencies of Board of Land and Works The Land Act of 1860 " Country " and " Special " lands " Allotments " and " subdivisions " . " Selectors " and close auction .... Limits of selection ..... " Farmers' Commons " . Sales by auction of " special " lands " Town Commons "... The Land Act of 1862 .... Agricultural area of ten million acres Selection without competition .... Compulsory cultivation .... Abolition of old system of squatting, and substitution of assessment on capacity of run .... Runs to be disposed of by auction Limited claim to compensation or pre-emption . The Amending Land Act of 1865 Abolishes the geographical reserve Selectors not to be entitled to immediate purchase Maximum limit of 640 acres Selectors' interest inalienable for three years Town lands still to be sold by auction . PAGE 281 282 282 282 282 283 283 283 283 284 284 284 284 284 284 285 285 285 285 286 286 286 286 286 286 287 287 287 287 287 287 287 288 288 288 288 288 288 289 289 289 289 xxxiv CONTENTS The Land Act 1869 ...... Two methods of purchase : . occupation with improvement, and immediate payment .... Licences to occupy, with rights to claim purchase or lease Sales by auction ..... Formation of Eailway Fund .... Simplification of powers respecting commons Mallee Act of 1883 and Land Act of 1884 Nine classes of lands ..... " Pastoral " may not be sold, leases to expire before 30th Decern ber 1898. Lease to first applicant, fixed rent according to estimated capacity of run. Interest of lessee inalienable except with permission, must destroy vermin. Crown may resume on three years' notice. Tenant may select homestead " Agricultural and Grazing," in " grazing areas " and " agri- cultural allotments." Leases and rights to limited purchase after improvement ..... " Auriferous " may be occupied for grazing purposes under licence " Auction." ^limited annual amount. Proceeds to " Eailway Con- struction Account" ..... " Swamp," may be reclaimed and leased, but not sold " State Forests," inalienable except for temporary purposes "Timber reserves," may not be sold, but may be added, as cleared, to " agricultural and grazing " lands " Water Reserves " absolutely inalienable except for public purposes (General rules affecting these classes of land) " Mallee," divided into " blocks," subdivided into sections. Leases, foi' limited periods, sold by auction. The " Mallee Border " and " Mallee Allotments," lease to applicants for limited term. Mallee interests inalienable without permission, tenants must keep down " vermin." No alienation in fee simple. " Vermin Districts," committees, rates. Limited right of selection Other duties of Commissioner of Crown Lands and Survey Public Parks, etc. The Land Tax The Gommissioner of Public Works The Gommissioner of Trade and Gustoms The Minister of Public Instruction Education in state schools Free, secular, and compulsory School Districts Boards of Advice Appointment of teachers PAGE 289 289 289 290 290 290 290 290 290 291 292 292 292 293 293 293 293 296 296 297 297 297 297 297 297 298 298 299 CONTENTS Committee of Classifiers Classified RoU Promotion and transfer The Minister of Defence The Council of Defence The permanent forces of the colony The Australasian Naval Force . Volunteer Forces of the colony . The Solicitor-Oeneral and Mmister of Justice The Minuter of Railways The Victorian Eailway Commissioners The standing committee on Railways Other Be^onsible Ministers PAGE 299 299 299 300 300 300 301 301 302 302 303 303 304 CHAPTER XXXII THE POLICE FORCE The Chief Commissioner of Police . . .305 Officers appointed by Governor in Council . 305 Constables by the Chief Commissioner . . . 305 Oath of service ..... 305 Special duties of members of the Force .... 305 Superannuations and pensions . . . . .306 Superannuation Fund and Board . . 306 Special tribunal for members of the force . . . 306 Special protection to constables acting under magistrate's warrant 306 CHAPTER XXXIII OTHER PUBLIC OFFICIALS The Public Service Act The Public Service Board Its composition and duties Divisions of the Public Service — "First," " Clerical," and " Non-Clerical " . Appointments, promotions, and transfers Compulsory insurance and retirement . Dismissal and reduction Vacations and furlough " Professional, 307 30S 308 309 309 310 311 311 CONTENTS CHAPTER XXXIV THE LEGAL POSITION OF THE EXECUTIVE IN VICTORIA PAGE English principles respecting the position of the Executive . 313 Non-imputability of the occupant of the throne . . .313 Legal authority required for every act of the executive . 313 Legal responsibility of officials . . . . .314 Illegal order of superior no excuse for subordinate . . 314 Special machinery for the enforcement of Crown claims . . 314 Application of these principles in Victoria . .314 Separate origin of legislature and executive . . 314 Method of creating the executive . . . .315 The Governor's Commission defines the limits of his authority . 315 Part of this' authority is to appoint officials . . 315 This part also regulated by statute . . . .315 Deductions from these premises . .315 Application to Victoria . . . 316 3. JUDIGIABY CHAPTER XXXV THE SUPREME COURT Increase in number of judges of the Supreme Court Terms of office ..... Capacities of the Court . The FitU Court .... Ordinary Courts of First Instance The Council of Judges .... The Court in its legislative capacity Outline of procedure 318 318 319 319 319 320 320 320 CHAPTER XXXVI OTHER CENTRAL COURTS The Court of Insolvency The "judge '' of the Court of Insolvency Appeals to the Supreme Court . Process in bankruptcy . Liquidation by arrangement and composition The Vice- Admiralty Court 322 322 322 322 323 324 CONTENTS Registrar or Marshal . Deputies Jurisdiction of the court Appeal to the Privy Council PAGE 323 323 323 324 B. LOCAL GOVERNMENT 1. LEGISLATURE CHAPTER XXXVII MDNICrPAIi COUNCILS No real local government in Victoria Various local units History of local government from 1855 Fifty-six municipal districts in 1860 The Act of 1 8 6 3 (" boroughs ") • The Act of 1869 ("boroughs") Second Act of 1863 ("District Boards and Ratepayers") "Shires" .... 106 shires or road districts in 1869 The Shires Statute of 1869 The consolidating Act of 1874 . Boroughs, towns, and cities Shires .... Municipal councils Number and qualification of councillors . Disqualifications for membership Annual retirement of one-third of council Extraordinary vacancies Municipal franchise Municipal Roll Revision Courts Process of election Deposit required Poll. Ballot . Decision of disputed elections Methods of Council's action Annual and ordinary meetings Proceedings at meetings " Special meetings " and " special orders " Mimicipal o£G.ces Legislation of a municipal council By-laws, Regulations, and Joint-Regulations 325 326 326 326 326 327 payers ") 327 328 328 328 329 329 329 330 330 330 330 331 331 331 331 332 332 332 333 333 333 333 333 334 334 334 xxxviii CONTENTS PAGE Method of enacting . . . . ■ .334 Conditions of the legality of municipal legislation . 335 Scope of municipal legislation. Direct and indirect . 335 Enforcement and proof of municipal legislation . . . 33'7 CHAPTER XXXVIII MINING DISTRICT BOARDS Decline in importance of mining . . 338 Dual aspect of the question . . . 338 Mining Districts . 339 At present seven. Divisions . .339 Mining District Boards . 339 Qualifications of members and electors 339 Vacation of membership . . 339 Meetings of the Board. Chairman . . 340 Legislative powers of Board . . 340 2. EXECUTIVE CHAPTER XXXIX MUNICIPAL AND MINING OFFICIALS Much executive work performed by the Council itself . 341 Chairman of the Council (" Mayor " " President ") . 341 The Treasurer ...... 342 The revenue of a municipality ... , 342 Rates . . . 342 "General" 342 " Separate " 343 "Extra" . . 343 Notice of intention to levy 343 Appeal to General Sessions . . 343 Enforcement of rates . . 343 Endowment . ... 344 Loans. Debentures . . . 344 Notice of intention to raise .... 344 Referendum if demanded by twenty ratepayers . 344 Sinking fund ..... 345 Expenditure of revenue .... 345 Municipal clerk ("Town clerk," "Shire Secretary ") . . 345 CONTENTS Municipal surveyor Auditors, elected Publication of municipal accounts " Special audit " Mining officials The Warden . Executive and judicial capacity . Warden's clerk The Eegistrar . The Surveyor . The Inspector The Board may also appoint officials PAGE 346 346 346 346 347 347 347 348 348 348 348 348 3. JUDIGIABY CHAPTER XL COUNTY COURTS Courts of Bequests abolished .... County Courts really local, though nominally universal . Appointment of judges. Their jurisdiction not confined to par- ticular courts ..... Registrars and Assistant-Registrars Bailiffs ...... Special protection to persons acting under the County Court Act Jurisdiction of County Courts .... Transfers from and to Supreme Court . Enforcement of County Court judgments Appeal to Supreme Court .... Extension of County Court judgments from other colonies 349 349 350 350 350 350 351 351 351 352 352 CHAPTER XLI magistrates' courts All magistrates are "justices" . Ancient character of the office . Always Crown appointment And, for a long period, honorary Justices in Victoria — specially appointed Ex-officio, perpetual and temporary Three capacities of a justice 353 353 353 353 353 354 354 xl CONTENTS Out of sessions .... Preliminary hearing of charges . Examination of witnesses and committal for trial Binding over of witnesses Administrative powers of justices out of sessions In Petty Sessions Police Magistrates Jurisdiction of Petty Sessions . Procedure .... Enforcement of orders . Appeal in certain cases to General Sessions Case may be stated for opinion of Supreme Court Power of Supreme Court to quash proceedings In General Sessions Clerk of the Peace Chairman of General Sessions . Civil and criminal jurisdiction of General Sessions Special protection to magistrates and their officials PAGE 354 354 355 355 355 356 356 356 357 357 357 357 357 357 357 358 358 358 CHAPTER XLII COURTS 01' MINES Holding of Courts of Mines . . . . .360 Judges of County Courts eayofficio judges of Courts of Mines 360 Clerks of the Courts ..... 360 Bailiffs ... . . 360 Special protection of clerks and bailiffs . . . .360 Jurisdiction of Court of Mines ..... 360 As a Court of First Instance . . . .361 As a Court of Appeal ...... 361 Enforcement of decrees . . . 361 Appeal to the Supreme Court . . . 361 CHAPTER XLIII ON THE LEGAL RELATIONS BETWEEN THE CENTRAL AND LOCAL GOVERNMENTS Overwhelming importance of central government in Victoria . 363 Control over local legislation . . . . .363 Over appointment of officials . . . . .364 Over distribution of public funds . . . . .365 CONTENTS xli CHAPTER XLIV ATTEMPTS TOWARDS A FEDERAL UNION Attempt at federal executive in 1851 The Committee of 1857 Attempts in England . Report of Committee adopted . Creation of new colony of Queensland . General acceptance of project of a conference Committee of 1870 . Royal Commission and Report . Conference at Melbourne in 1880 Adjournment to Sydney. Results of the conference The Sydney convention of 1883 The Federal Council Act Analysis of the measure Legislation of the Federal Council Assent to and disallowance of measures . Force of the federal legislation . Representations of the Council . Adoption of the Federal Council Act in Victoria History of the Council .... Additional matters referred by Victoria in 1889 Imperfection of the Federal Council scheme Federal Conference at Melbourne in 1890 Difficulty and novelty of the scheme PAGE 366 366 367 367 367 367 367 367 368 368 368 369 369 370 370 370 370 371 371 371 372 372 372 CHAPTER XLV CONCLUSION Reason for the adoption of the Cabinet system in Victoria Peculiarity of that system Origin of the system in England Three essential conditions Cohesion ..... Parties Tradition ...... Are these conditions existent in Victoria \ There is little cohesion 375 375 376 376 376 377 377 378 378 xlii CONTENTS PAGE There are no political parties proper . . . 378 Because no political questions . . . . .379 Why the great question of Capital against Labour cannot be made a party question at present . . . . .379 The force of tradition has been weakened . . .380 Probable rival in local government . . 381 Early weakness of local government in Victoria . . 381 Likelihood of change .... . 383 Its probable effect on the Cabinet system . 384 APPENDIX A Specimen Minute of the Executive Council of N. S. W. in 1837 . . 385 APPENDIX B Specimen Minute of the Executive Council of Victoria in 1855 . 386 APPENDIX C Statistical Summary of Victoria at the close of the respective periods 388 APPENDIX D The National Convention of 1891 . . .389 PRINCIPAL ABBREVIATIONS G. G. = " Government Gazette." L. A. = " Legislative Assembly." L. C. = " Legislative Council." N. S. W. = « New Soutli Wales." P. P. = " Port Phillip." V. = "Victoria," or "Victorian." V. and P. = " Votes and Proceedings" (i.e. the official miniites). [N.B. In the legislation of New South Wales and Victoria, each enactment is deemed a separate statute, not, as in English legislation, a chapter of the statute of the session. A Colonial Act cannot, therefore, fall in two regnal years. It is thus, in most cases, easy to distinguish at once between the quotation of an English and that of a Colonial Act. The former would run thus (e.g.) 18 & 19 Vic. c. 55, the latter thus 19 Vie. No. 6. From the first session of the Parliament of Victoria (1856-'7) the Acts are numbered consecutively, instead of being started afresh each year, and are often ' quoted by the number only. In these pages, however, the regnal year is generally prefixed, as a ready guide to the date of the enactment] CHAPTEE I THE HOME GOVERNMENT OF THE COLONIES PEIOE TO 1835 The ancient theory of government in England was that every act of state — legislative, executive, and judicial — was per- formed by and in the name of the Crown. The theory still holds, though it has received in the course of centuries a most important addition — that the Crown must itself act, in almost every case, through its appropriate agents, who, as a matter of fact, have practically suggested the act in question. And in tracing the origin of a department of state, the old theory is still our safest guide. If we go back far enough, we shall find surely that the root of the matter is to be found in the autocratic power of the Crown. As time goes on, and business increases, the Crown entrusts the matter to a special body of advisers, always in theory the servants of the Crown, and often very powerfully influenced by the Crown's personal views, but gradually acquiring an independent position. Still later, this body of advisers passes by degrees under the control of Parliament, though nominally remaining in the service of the Crown. Such is the general course of the history of English government, and it is especially the course of the history of English colonial government. The earliest foreign possessions of the English Crown were foreign in every sense. They consisted of certain fiefs of the decaying Koman Empire, which, by dynastic arrangements, or by conquest, became vested in English kings. Their inhabit- ants were strangers to the English, and, with rare exceptions, such as that of Calais, they never formed part of the ordinary English system of government. Long after the Parliament of England had become an important factor in home affairs it %<-< B 2 GOVERNMENT PRIOR TO 1835 introd. abstained from any share in the government of foreign depend- encies. It regarded them with dislike as sources of war and expense. They were left entirely, as a royal appanage, to the personal government of the Crown, through its personally chosen agents. Even when the founding of true colonies began, Parliament claimed no share in their management. Virginia, the oldest of the American group, was organised by letters-patent from the Crown. Maryland and Pennsylvania were actually granted in fee to private individuals. Crown-charters, not Acts of Parliament, were the bases of such powers of self-government as the old English-speaking colonies possessed.^ The depend- encies acquired by conquest were managed as Crown estates. The first body to acquire a constitutional position with regard to foreign possessions was the Privy Council. In the time of the Commonwealth, a period which is in truth the seedplot of modern politics, we find the Protector, whose generals had been fighting the Spaniard for the empire of the Southern Seas, appointing a committee " to take into considera- tion the Trade and, Navigation of this Commonwealth." ^ We are not told of what body this was a committee, but as no Parliament was in existence at the time of its appointment (2d November 1655), and as the letter of summons says that the appointment is made by His Highness with the advice of his Council, there can be little doubt that it was regarded as a committee of the latter body, and as a matter of fact we learn from another source ^ that its of&cials were paid by the Council. The inclusion of the subject of Navigation in its commis- sion would undoubtedly have given the committee power to deal with the English dependencies abroad. But unfortunately the statesmen of the Commonwealth were too busy to develope the idea ; and, though additions to its membership were occa- sionally made,* we learn from anonymous but fairly reliable ^ Cf. a list of the settlements which received charters from the Crown between 1574 and 1660 in Calendar of State Papers (colonial), p. viii. The whole of the preface to this volume is well worth reading by those interested in the history of the English colonies. * Whitelook, Memorials (edition 1782), p. 630. ' Privy Seal Book, 1656, p. 66 (quoted in Thomas's Notes of Materials for the History of Public Departments, p. 77). ^ Kg. Whitelock, p. 634 (February 1655-56). CHAP. I THE BOARD OF TRADE AND PLANTATIONS 3 testimony, that the committee soon became " merely nominal." ^ The plan did not, however, entirely drop out of sight, for, immediately after the Eestoration, Charles II. created by patent two bodies specially concerned with the administration of dependencies. The first, known as the Council of Trade, con- stituted by patent dated 7th November 1660,^ was charged by Article XI. of its instructions to consider the general state of the Foreign Plantations, and in all matters wherein these were concerned to take advice "from the Council appointed to sit apart for the most particular inspection, regulation, and care of the Foreign Plantations." ^ This was the second body, the Council of Foreign Plantations, constituted by patent dated 1st December 1660,* and its Articles of Instruction show clearly that it is the direct ancestor of the Colonial Office of the present day. Its members are to establish a regular correspondence with the Governors of the various dependencies, to require them to send an account of their affairs and the constitution of their laws and government, to hear and report to the king upon all complaints, to investigate the subject of emigration, " and how noxious and unprofitable persons may be trans- planted to the general advantage of the Public and commodity of our Foreign Plantations," and, in a word, " to advise, order, settle, and dispose of all matters relating to the good govern- ment ... of the Foreign Plantations." ^ These two bodies were consolidated by royal patent of the 27th September 1672 ^ into The Council of Trade and Planta- tions, with salaried president and vice-president, but the united Board was itself abolished by a revoking patent of the 21st December 1675.'^ There can be little doubt that, while they existed, these councils were looked upon as committees of the Privy Council, for, by their Articles, the members of the Council of Foreign Plantations are directed, when they deem further powers necessary, to address themselves to the king or Privy Council for further directions ; ^ and, in the patent revoking their commission, the joint council are ordered to deliver up their papers to the Clerk of the Privy Council.® The Board of Trade and Plantations was revived by King 1 Thomas, p. 77. = Ibid. ^ Ibid. ° Articles quoted in Thomas, p. 34. 6 Ibid. p. 78. ' Ibid. p. 79. 8 Thomas, p. 34 (Article XI.) » Ibid. 4 GOVERNMENT PRIOR TO 1835 introd, William III. on the 16tli December 1695. The powers given to the commissioners specially refer to the " Plantations in America and elsewhere," and include, in addition to the functions of the joint board of Charles II., the important right to recommend to the King in Council the names of persons to be appointed Governors and officials, and also the duty of con- sidering the Acts of the Assemblies of the Plantations sent to England for the royal approval.^ This board was continued, under various commissions, till the year 1781, when, at the close of the American War of Independence, the Board of Trade and Plantations was abolished by statute,^ and it was provided ^ that the functions of the commissioners might be exercised by any committee or com- mittees of the Privy Council, appointed by His Majesty during pleasure, without salary, fee, or pension to the members thereof. A feeling of despair, occasioned by the loss of the American colonies, and a desire for economic reform, combined to prevent the latter provision being properly carried out tiU the year 1786, when an Order in Council constituted a regular establish- ment of eighteen officials, charged with attending to the busi- ness of the committees contemplated by the Act of 1782.* In the year 1817 the Crown was authorised by statute ^ to pay a salary not exceeding £2000 a year to the Vice-President of the Committee of the Council appointed for the consideration of matters relating to Trade and Foreign Plantations ; and in the year 1827 a similar provision was made with regard to the Presidency,^ which, it was specially enacted, should not on that account be deemed a " new office." ^ (The President and Vice- President were, in fact, with the exception of the Colonial Secretary, the only working members of the committee.) The establishment thus created, familiarly known as " The Board of Trade," continued in existence down to the time of the foundation of Port Phillip. But it was by no means the sole, or even, the most important provision made by the English government for the management of the colonies. We have not yet seen how it was that Parliament came to have a voice in 1 Thomas, p. 79 (Article XI.) 2 22 Geo. III. u. 82. ' § 15. * Thomas, p. 79. '' 57 Geo. III. c. 66. » 7 Geo. IV. c. 32. ' This was to avoid the operation of the restrictions of the 6 Anne, c, 7, §§ 25 and 26 (which see). CHAP. I THE SECRETARIES OF STATE 5 the matter, for the Privy Council is a body which, in theory, is quite independent of Parliament, and its committees are not, nominally, under Parliamentary control. To understand how Parliament acquired the control of the colonial government, we must consider for a moment the history of the office of Secre- tary of State for the Colonies. From very early times there had been in England officials known as " King's Secretaries." As their name implies, they were officials attached to the, person of the monarch, to conduct his correspondence and act as his messengers. For centuries their appointments were purely casual, they had no definite position in the state, and their numbers varied with the actual requirements of the day. But with the reign of Henry VIII. they began to acquire a distinct standing. Their official rank was fixed by the Statute of Precedence of 1540.^ From that time until the year 1708 the regular number of Secretaries was two, known respectively as the " First " and " Second," or the " Northern " and " Southern," and this tradition was rarely departed from.^ The warrant of Henry VIII. (said to be of date 1539 or 1540),^ which appointed Thomas Wriothesly and Ealph Sadler to "have the name and office of the Kinges Majesties Principal Secretary es," ordained that they should attend His Majesty whenever he was present in the " Hiegh House " of Parliament, and that at other times they should sit alternately by weeks in the " Hieghe " House and the " Lowe " House, except that when special business should be treated in the latter, they might both be present.* The warrant aiso obviously contemplates the presence of the secretaries, though in a subordinate condition, in all meetings of the Council^ and we therefore glean from it this most important fact, that in the sixteenth century the king's secretaries did actually constitute a link between the Council and the Parliament, the respective depositories of prerogative and popular power. The office gained further recognition by the practice, which began in 1558,° of creating it by patent, instead of by mere 1 31 Hen. VIII. c. 10. = Thomas, p. 27. ' Staie Paper Com/mission, vol. i. p. 623 11. * Ibid. p. 624. But they had no votes unless they happened to be peers (31 Hen. VIII. u. 10, § 8). " Ibid. p. 623. The 31 Heu. VIII. c. 10, § 10, expressly gave them seats. 'Thomas, p. 27. 6 GOVERNMENT PRIOR TO 1835 introd. warrant or delivery of the seals, and from the beginning of the seventeenth century its holders are spoken of as Secretaries of State} Their position was still further strengthened by Claren- don's scheme of government at the time of the Eestoration, one of its rules being that the Principal Secretaries of State should be of all Committees of the Council? It is doubtful, however, whether a Secretary of State at this time retained the right to sit, ex officio, in Parliainent. Like the Lord Chancellor before him, a Secretary of State had ceased to be the personal attendant of the king ; he had de- veloped into a great public official. After the Eestoration, the office was frequently held by men of firstrate importance in politics, men like Arlington, Sunderland, and Godolphin, who were generally members of one House of Parliament ; and this practice led easily, after the Eevolution, into the maxim that a Secretary of State ought to be a member of Parliament. The custom of having two Principal Secretaries of State continued practically unbroken till the year 1768. Sixty years before that date. Queen Anne, in 1708, had appointed a Third Secretary, for Scottish affairs, and the appointment was con- tinued till the Jacobite rising in 1745,^ but the Third Secretary was not necessarily of Cabinet rank, and did not take an equal position with his older colleagues. Walpole was also made Secretary at War in 1708, and the office was continued inter- mittently for some time, but it was not a Secretaryship of State, and must not be confounded with the later Secretaryship for War. In 1768 a really new departure was taken by the appoint- ment of the Earl of Hillsborough as Secretary of State for the Colonies. The patent of appointment (dated 27th February 1768) distinctly states that "the public business of the Colonies and Plantations increasing, it is expedient to appoint one other Principal Secretary of State besides the two ancient Principal Secretaries." * Here, then, we get a clear recognition of the colonies as a department of state, with a special official to look after it. The holder of the office, if a member of the House of Commons, ' The first instance is said to have been in 1601 (Thomas, p. 27). I have not been able to trace the reference in Eymer, but find instances in 1610, 1616, and 1617 (Rymer, Fcedera, vii. 2, pp. 169 and 210, and vii. 3, p. 4). 2 Thomas, p. 23. » xbi^_ p_ 27. i Quoted in Thomas, p. 27. CHAP. I DEPARTMENT OF WAR AND COLONIES 7 "would require to be re-elected under the provisions of the Act of 1708,^ but he would escape the exclusion of the Place Act of 1742,^ and so the practice of Parliamentary control could be extended to the Colonial Office. Unfortunately, the creation of the department was soon followed by the loss of the American colonies, and in 1781^ the office of Third Secretary, or Secretary of State for the Colonies, was, with the Council of Trade and Plantations itself, swept away. Such colonial business as remained was transferred to the " Home " office,* which, with the "Foreign" office, by a new arrangement made in 1782,* replaced the former Northern and Southern departments. For some time the personality of the old Colonial Department sur- vived in the separate staff of the " Office for Plantations," which existed inside the Home Office, but even this distinction had disappeared before 1795.* Until the year 1801 the business of the colonies continued to be transacted in the Home Office.''' But in that year another change was made. The necessities of the great French war had led to the establishment, on the 11th July 1794,^ of a permanent War Department, presided over by a Secretary of State, and in 1801 the business of the colonies was transferred to this new department, the head whereof was thenceforward known as the " Secretary for War and the Colonies." This arrangement continued till some years after the founding of Port Phillip, and fixed the number of Secretaries of State at three. But, still, it must be remembered that the position of a Secretary of State is functional only, not organic. There is no law which compels Her Majesty to appoint any particular number, and the division of business can be varied at any time, while each Secretary can act for any other in all matters properly cognisable by a Secretary of State. It must be borne in mind also, that the other secretaryships referred to at this period of history, the Secretaryship at War hold by Lord Palmerston in 1812 and 1827, and the Chief Secretaryship for Ireland created at the time of the Union, are not Principal Secretaryships of State at aU.' It is stiU more important to remember that, during the present century, the ' 6 Anne, c. 7, § 26. " 15 Geo. II. 0. 22. » By 22 Geo. III. 0. 82. * Thomas, p. 35. ° l^id. p. 28. ' Ifnd. p. 35. ' Ibid. ' Und. ' Strictly speaking, the Home Secretary is to this day responsible for the afifairs of Ireland, the Chief Secretary being his official subordinate. 8 GOVERNMENT PRIOR TO 1835 introd. Secretary for the Colonies has invariably been a member of Parliament, and nearly always in the Cabinet. This practice it is which has enabled Parliament, by means of questions asked of the Colonial Secretary or Under-Secretary,^ to take part in the actual administration of the colonies. The right of Parliament to legislate for the colonies was formally claimed in 1766,^ and has often been exercised. We have now traced the growth of the two principles which, at the founding of Port Phillip, determined the form of the constitutional relations of the English government with the colonies. We may close the chapter with a quotation, which illustrates the working at that time of the two principles, the principle that the colonies are governed by the Crown, and the principle that that government must be conducted in accordance with the views of Parliament. The extract relates specially to colonial legislation, but it may serve as an illustration for general colonial business. " All Acts passed by Colonies having Legislative Governments are trans- mitted to tte Secretary of State to be laid before Her Majesty. These Acts are forwarded by the Secretary of State to the Clerk of the Privy Council, and are thus submitted to Her Majesty, who thereupon orders a reference to be made to the Board of Trade. The Secretary of State, being himself a member of the Board, communicates with the President by means of minutes, pointing out in the first instance the Acts which appear to him to require the peculiar attention of the Board, or which should be referred for the opinion of any other Department of the Government (most frequently the Treasury). Those Acts which 'do not appear to him to fall within the ' peculiar province of the Board of Trade are recommended to be confirmed, disallowed, or left to their operation, as the case may require, which recommendation is, as a matter of course, complied with ; but all the Acts of this class of Colonies must receive the formal sanction of the Board of Trade before being assented to by the Crown.^ That is to say, a colonial question came in the first place before the Secretary for the Colonies, who was nominally a servant of the Crown, but really a great parliamentary official with a seat in the Cabinet. By him it was laid before his 1 When the Colonial Secretary is a peer, the Under-Secretary is always chosen from the House of Commons, and conversely. So there is always some one to be questioned. ^'By the 6 Geo. III. c. 12. The Act expressly mentions only the American colonies, hut there is no doubt that the claim was meant to be general. The Act has never been repealed. 3 Thomas, p. 81. CHAP. I COLONIAL BUSINESS IN 1835 9 principal, the Crown, which referred it to its regularly appointed advisers on such subjects, the Committee of the Council for Trade and Plantations, or, as they were usually called, the Board of Trade, who finally advised the Crown as to its course of action. But, ever since the days of Huskisson's fiscal reforms, the President of the Board of Trade had also been a Cabinet Minister, responsible to Parliament. And so ultimately Parlia- ment controlled the whole matter. Such anomalies occur at every turn in the English constitution, and it is only by patiently unravelling their history that we can learn how the government of the empire has assumed its present character. CHAPTEE II THE LOCAL ^ GOVEENMENT OF THE COLONIES (AND PARTICULARLY OF NEW SOUTH WALES) PRIOR TO THE YEAR 1835 As has been before said, such local constitutions as the earlier English-speaking colonies possessed were usually acquired by direct charter or proclamation of the Crown. The first im- portant deviation from this rule was in the case of the colony of Quebec, which by statute of 1774^ received an improved form of local government. The precedent was followed, in the year 1791, by Mr. Pitt's famous Canada Act,^ which united the two provinces of Quebec and Ontario. It has been declared by high authority* that the reason for the introduc- tion of Parliamentary action into the government of Canada was the desire to concede to the Eoman Catholic colonists certain rights inconsistent with the severe Conformity statutes then existing, and with which the Crown had no power to dispense.^ But the application of the principle about the same time to the government of India, and, soon after, to Australian affairs, makes it more probable that the change was really due to the growing extension of Parliamentary influence over all departments of state. 1 The word "local" is used throughout this chapter to distinguish matters conducted in the colony from those conducted by the Home government. 2 14 Geo. III. c. 83. ' 31 Geo. III. c. 31. (These two statutes should be carefully studied, for they contain the modern policy of the English government with regard to colonial constitutions. ) * See Beport of the Committee of Her Majesty's Privy Council for Trade and Plantations (4th April 1849), in Victorian Fates and Proceedings, 1849, pp. 702-712. " This is a curious instance, if it be true, of deference to the teachings of his- tory. James II. lost his crown by his exercise of the dispensing power. George III. would have been only too ready to enforce the existing legislation against the Catholics, if his ministers would have allowed him. CHAP. II FORMULA OF CONSTITUTIONAL PROGRESS ii Be this as it may, the practice of the present century has been, whilst leaving to conquered acquisitions as much as pos- sible their previous forms of government, to confer local con- stitutions by Act of Parliament upon possessions acquired by settlement. The course of proceeding has been fairly uniform. First, there has been a purely despotic government, when the colony has been ruled as a military position by a Governor and a handful of officials appointed by the Home government. Then there has been a constitution, with a Legislative Council, partly appointed by the Governor and partly elective. Of this Council the Crown officials have always formed part, but the executive has been unassailable by the legislature, and respon- sible only to the Colonial Office ; possessions in these two stages being known technically as " Crown Colonies." In the third stage, there have generally been two Houses of Legislature, both elective, or one elective and one nominee, and the execu- tive has consisted of officials chosen for their Parliamentary position, and liable to dismissal, like ministers in England, in consequence of an adverse vote of the legislature. This is the era of " Eesponsible Government." Until the year 1823 the colony of New South Wales had been in the first, or military stage of government. The com- mission to its founder. Governor Phillip, practically vests despotic powers in his hands. There is no word of a local council, and the Governor has merely to take the oath to observe the laws relating to Trade and Plantations.^ The civil and criminal courts established^ under the 24 Geo. III. c. 56,^ and the consequent Orders in Council,* make no provision for any popular element in the administration of justice.^ Perhaps the most important check on the despotic power of the early Governors was the establishment, by Letters-Patent of 5th May 1787,^ of a Vice- Admiralty Court, though, as the Governor was ' See copy of commission in Barton, History of New SoiUh Wales, i. p. 474. The accompanying instructions (23d April 1787) are mainly economic in character. 2 By Letters-Patent of 2d April 1787 (Barton, i. p. 531). ' The Act legalising transportation. * Of 6th December 1786 (fixing eastern coast of N. S. "W. as place for recep- tion of convicts). " Unless, possibly, the presence of assessors appointed by the Governor may be regarded in that light. ' Copy in Barton, i. p. 537. It appears by a recital in the commission of Sir James Dowling as commissary of the court (Callaghan, Acts and Ordiiiances, ii. p. 1426), that there had been earlier Letters of the 12th April 1787. 12 LOCAL GOVERNMENT PRIOR TO 1835 introd. himself senior member of the court, even this step left him with an overwhelming power. Not till the year 1823 was passed the first Constitutional Statute which operated in Australia. And even the 4 Geo. IV. c. 96 is not primarily concerned with government in the fuU sense of the term, but with the administration of justice, a matter which, as we have seen, had been dealt with for New South Wales so far back as 1785. It is interesting to note the order in' which the functions of government develope. In Australia by far the earliest func- tion was the administration of justice. But the 4 Geo. IV. e. 96 marked a great advance. Not only was the old military court of 1787 to be entirely super- seded by the erection of a Supreme Court and Court of Appeals somewhat on the English model,^ but the Crown was empowered to create by warrant a Council, consisting of five, six, or seven persons, with considerable legislative power. The members of the Council were to hold their places entirely at the discretion of the Crown, and even a majority of them could not overrule the Governor in matters of legislation,^ in which the Chief- Justice was also to have an independent position ; ^ but stiU. the statute marked a great advance on the old state of things. It is noteworthy that it specially required * that all laws and ordinances made under it in the colony, as well as the English Orders in Council issued in pursuance of it, should be laid before the English Parliament. The 4 Geo. IV. c. 96 was carried into execution by Eoyal Charter, dated the 13th October 1823,^ creating a Supreme Court of Justice, and by the appointment, under warrant of the 1st December 1823,^ of five members of Council. These niembers were simply the five chief government officials — the Lieutenant-Governor, the Chief-Justice, the Colonial Secretary, the Principal Surgeon, and the Surveyor-General — and their official connection with the Council is proved by the fact that the warrant appointing them directs that in case any of them die before the warrant reaches the colony, their successors in office are to take their places in the Council. But Lord Bathurst's letter, which accompanied the warrant, explained 1 4 Geo. IV. c. 96, §§ 1-18. = Ibid. § 24. ^ in^_ g 29. ^ IIM. § 31. ^ Callaghan, ii. p. 1435. " Copy in Votes and Proceedings of Council (N. S. "W.), vol. i. p. 1. CHAP. II SEPARATION OF VAN DIEMEN'S LAND 13 that this policy was only to prevail until the English govern- ment had been made aware of the names of suitable local aspirants.^ In pursuance of this pledge the Council was re- constituted by warrant of the I7th July 182 5/ which appointed the full number of members, including amongst them the names of three private individuals. But meanwhile a very important • step had been taken. The 44th section of the Act of 1823^ had empowered the Crown to constitute and erect the island of Van JHemen's Zand * (which had formerly been part of the colony of New South Wales), " and any Islands, Territories, or Places thereto adjacent, into a separate Colony, independent of New South Wales." The Crown did not avail itself to the full of the powers of the section, but it made Van Diemen's Land a Lieutenant-Governor- ship under the Governor of New South Wales, whose somewhat peculiar relationship with the new Lieutenant-Governor of Van Diemen's Land was defined at length in Lord Bathurst's letter to Sir Thomas Brisbane of the 28th August 1823.= The importance of the step was twofold, for not only did it give the first form of separate existence to the present colony of Tasmania, but it practically deprived the settlers in Van Diemen's Land of the constitutional advantages granted by the 4 Geo. IV. c. 9 6 to the inhabitants of New South Wales. The growing wealth and development of the Australian colonies after the Act of 1823 is marked by the fact that in the year 1827 the Home government ceased to provide funds for the carrying on of the civil governments of Australia,^ leaving them to the support of the local treasuries ; and in the year 1829 the 4 Geo. IV. c. 96, originally framed as a tem- porary statute, but prolonged by a continuing Act, was super- 1 Letter in Votes and Proceedings (N. S. W.), vol. i. p. 1. •'■ Warrant, Hid. p. 20. ' 4 Geo. IV. c. 96. * Norfolk Island had already been constituted a lieutenant-governorship by letters-patent of 28th January 1790 {^Barton, i. p. 526). The Instructions of the lieutenant-governor were from Governor Phillip {iUd. p. 527). 5 Votes amd Proceedings [IS. S. W.), vol. i. p. 12. There had practically been a separate local government before this date in A''an Diemen's Land (cf. Hdbart Tmmx Gazette from 1820 onwards). A distinct Supreme Court-was constituted for Van Diemen's Land by Letters-Patent in 1823 (cf. 9 Geo. IV. c. 83, § 2). " Letter, dated 23d September 1834, from the Seoretaiy of the Treasury to Sir George Grey. (Quoted in House of Commons Sessional Papers, 1840, vii. p. 559.) 14 LOCAL GOVERNMENT PRIOR TO 1835 introd. seded by the important statute 9 Geo. IV. c. 83, the basis of constitutional rights in New South Wales at the time of the founding of Port Phillip. The new statute, like its predecessor, was primarily concerned with the administration of justice. In the first place, the existing Supreme Court, or any new creation which might replace it, was to be a Court of Eecord,^ and to have complete civil and criminal jurisdiction in New South Wales and its dependencies, with all the powers of the three common-law courts at Westminster ; to be at all times a Court of Oyer and • Terminer and Gaol Delivery ^ in and for New South Wales and its dependencies ; to be a Court of Equity in the same places, with all the equitable and common-law jurisdiction of the Lord High Chancellor in England ; ^ and to have such ecclesiastical jurisdiction as had been or should be given by the Letters- Patent of constitution.* The Crown was further empowered to institute circuit courts, to be served by judges of the Supreme Court, on the English model,^ and to allow, under such regula- tions as it should think fit, an appeal from the decisions of the Supreme Court to His Majesty in Council.® Criminal issues were to be tried before a judge or judges of the Supreme Court, assisted by seven assessors chosen from commissioned of&cers of the army or navy,^ and civil issues by a judge or judges with two magistrates acting as assessors ; ^ but upon special authority by Order in Council the legislature of . the colony was to be entitled to apply the jury system to any issues of fact permitted by the order.^ Provision was also made for the establishment of inferior tribunals by empowering the local legislature to institute courts of General and Quarter sessions, and to give them power to take cognisance in a summary way of all offences, not of a capital nature, committed by convicts, and of all matters cognisable by similar courts in England, subject, in the case of free offenders, to the rules laid down by the Act for the guidance of the Supreme Court.'"' A similar power was given to establish inferior courts of civil jurisdiction, to be known as " Courts of 1 /.e. a court whose records are received in all proceedings, without further proof, as conclusive evidence of the truth of the statements they contain. ^ For the exact meaning of these terms of. Blackstone (ed. 1769), iv. pp. 266-8. 3 9 Geo. IV. c. 83, § 11. ■• § 12. = § 13. « § 14. ' § 5. 8 § 8. 9 § 10. " § 17. CHAP. 11 COURTS OF JUSTICE IN NEW SOUTH WALES 15 Requests," presided over by '' Commissioners " appointed by the Crown, with jurisdiction in cases of debt and damage up to the value of ten pounds.-^ Another most important section enacts "That all Laws and Statutes in force within the Eealm of England at the Time of the passing of this Act (not being inconsistent herewith, or with any Charter or Letters-Patent or Order in Council which may be issued in pursuance hereof) shall be applied in the Administration of Justice in the courts of Ne,w South Wales and Van Diemen's Zand respectively, so far as the same can be applied within the said Colonies," but in case of any doubt as to this applicability the colonial legis- lature is empowered to declare whether or not they do apply, or to establish any modification or limitation of them within the colony. This section, which is still in force, leaves the position of the colonial courts and legislatures, with regard to the laws of England existing before 25th July 1828,^ extremely doubtful. Of course it is obvious that the colonial courts are bound to recognise any of such laws which are clearly unrepealed. It is equally plain that the colonial courts would be obliged to weigh any argument directed to show that an express or implied repeal or limitation by a colonial legislature was ultra vires. But it is submitted that no authoritative decision on the point could be pronounced by any court save the ultimate Court of Appeal, the Judicial Committee of the Privy Council. And it is clear that the 24th section of the Act of 1828 only intended to confer amending powers in cases of genuine doubt, whilst the actual enabling words both of that statute* and the previous statute of 1823^ distinctly limit the legislative power of the Governor and Council to laws and ordinances not repugnant to the Laws of England. Nevertheless, the power of the colonial legislature to alter the English law for the colony appears to have been recognised by Lord Chelmsford in the case of Bolfe V. Flower Salting Co.,^ decided in the year 1865, though the 1 9 Geo. IV. 0. 83, § 18. M 24. ' It will be noticed that this section speaks expressly from the passing of the Act. The other provisions, generally speaking, date from the 1st March 1829 (§ 39). 4 § 21. ^ i Geo. IV. c. 96, § 24. ' L.R. 1, P.O. at p. 48. The colonial Act in q^uestion was the 5 Vic. No. 17 (N. S. W. ) See also discussion of the same subject in "Webb, Imperial Law and Statutes, pp. 61-68 ; also an elaborate early judgment on the same point in the case of Macdonald v. Levy (.Votes a-nd Proceedings, N. S. W., 1833, p. 175). i6 LOCAL GOVERNMENT PRIOR TO 1835 introd. point was not actually necessary to the decision. Later Consti- tutional statutes have placed the matter on a different footing. After making these elaborate provisions for the administra- tion of justice, the 9 Geo. IV. c. 83 goes on to authorise the creation of a Legislative Council. Its members are to occupy their seats by the same tenure as before, but their numbers are increased to a minimum of ten and a maximum of fifteen.^ The Council cannot act unless at least two -thirds of its members, exclusive of the chairman, are present.^ AU legisla- tion (following strictly the Enghsh precedent) is to proceed in the Governor's name, but, except in cases of emergency, he is not to legislate until the proposed measure has been laid before the Council, and a disapproval thereof by the majority present at any meeting is to be fatal to the proposal, the objectors being,, however, bound to state their reasons on the Council minutes. No law can be proposed by any one but the Governor, but he is likewise bound to record his reasons for refusing to introduce a particular measure. The Governor is also to preside at all meet- ings of the Council unless specially prevented.^ All laws and ordinances made by the Council are to be submitted at once to the Supreme Court, whose members may within fourteen days of their passing represent to the Governor that they are ultra vires, whereupon the Governor is to suspend their operation (which otherwise begins at the expiration of the fourteen days) until the representation has been brought before the Council. The Council may, if it pleases, overrule the re- monstrance, but it must be transmitted by the Governor to the Home authorities.* Moreover, all colonial laws are to be so transmitted within six months of their passing, and may be disallowed by the Crown at any time within four years.^ They are also to be laid at once before both Houses of the English Parliament.® 1 9 Geo. IV. c. 83, § 21. ^ % 22. Such an essential proportion of a public body is usual spoken of, though somewhat inaccurately, as a "quorum." The word attained its present meaning from the old Latin forms of commissions to the justices of the peace in England. The commission would empower a certain number of them" to hear certain cases, but specify names of some of the justices, the presence of one of whom should be necessary. So the wording would run : "With power for you, or any three of you, of whom {quorum) X to be one." There is an amusing reference to the practice in Sheridan's Scheming Lieutenant, Act II. Scene 4. =* § 23. ■• § 22. 5 g 28. 6 § 29. CHAP, n THE NEW LEGISLATIVE COUNCIL 17 The actual extent of the legislative powers conferred on the council has been before alluded to. It is " to make Laws and Ordinances for the Peace, "Welfare, and good Government of the said Colonies respectively,^ such Laws and Ordinances not being repugnant to this Act, or to any Charter, or Letters-Patent, or Order in Council which may be issued in pursuance hereof, or to the Laws oi England!' ^ The power of imposing new taxation is also strictly limited to taxes required for local purposes,^ but the power, already vested in the governor by previous statutes,* of levying certain customs and excise duties, is made exercis- able for the future with the advice of the CouncU.^ These were the chief constitutional powers of the local government of New South "Wales at the time of the founding of Port Phillip. It will be seen that, while they mark a distinct advance on the old constitution of 1823, inasmuch as the Governor can no longer overrule the majority of the Council in matters of legislation, they still fall far short of a true system of Parliamentary government. The members of the Legislative Council still hold their seats at the pleasure of the Crown, and the Council has absolutely no control over the executive, which is directly responsible to the Home authorities. Such criticism of the executive as appears upon the minutes of the Legislative Council is strictly limited to protests regarding the expenditure of the colonial revenue, in which matter the Legislative Council has a statutory position,® but even here the expenditure is finally sub- ject to the control of the Commissioners of the English Treasury.'' The separation of the executive from the constitutional side of the government, and the fact that the records of the proceedings of the executive have not been published, render it somewhat difficult to give any account of its methods. But we gather from the official documents that at this period there was in New South "Wales an official staff consisting of a Chief- Justice, an Archdeacon, a Colonial Secretary, an Attorney-General, a Collector of Customs, an Auditor-General, a Principal Surgeon, ' It must be remembered that the 4 Geo. IV. c. 96 was a constitutional statute also for Van Diemen's Land. ^ § 21. ' § 25. * 59 Geo. III. 0. 114 ; 1 & 2 Geo. IV. u. 8 ; and 3 Geo. IV. 0. 96. The latter statute empowers the governor to levy customs duties of 10s. a gallon on British and 15s. a gallon on foreign spirits, 4s. a pound on tobacco, and 15 per cent ad valorem on non-British manufactures imported direct from British ports. » 9 Geo. IV. 0. 83, § 27. « IMd. ' Ibid. C i8 LOCAL GOVERNMENT PRIOR TO 1835 introd. and a Surveyor-General.-' These officials were all appointed and paid by the Home government, and some of them at least met as an Executive Council under the directions hy this time introduced into the Governor's Commission.^ The Executive Council is, of course, the direct ancestor of the modern Colonial Cabinet, the legal title of which body is still The Executive Council. Occasionally non- official persons sat in the old Executive Council of New South Wales,^ and the practice is still rarely followed. But primarily the Executive Council is a body of officials charged with the actual administration of the country, and meeting to discuss matters of common policy.* The titles of the offices which they hold usually explain their principal functions. The Colonial Secretary, or the "Chief" Secretary, as he is sometimes called, was the general political official ; he was responsible for everything not specially allotted to another department. To the Surveyor-General fell the im- portant task of extending the frontiers of the settled land of the colony, of superintending the making and repair of the roads, and of reporting upon applications for Crown grants. Some of the old offices are still in existence. The Chief-Justice and the Auditor-General ^ are no longer political officials, the •dignitaries of the Church have ceased to be officials at all, the Principal Surgeon has naturally disappeared. The Collector of Customs and the Surveyor-General have become the Commis- sioner of Customs and the Minister or Commissioner of Crown 1 The office of Lieutenant-Governor of New South Wales (as a permanent appointment) seems to have ceased with the separation of Van Diemen's Land in 1829. (Of. MinuUs of (he Council, N. S. W., 1826-1830.) 2 Kg. into that of Sir Richard Bourke, 25th June 1831. (Original in possession of government of New South Wales. ) ^ JS.g. Colonel Lindesay, 1827-1831. He was an official, but not a colonial official. (Of. Fates and Proceedings, N. S. W., 1831, p. 89.) ^ It appears likely that at this period the Executive Council was rarely summoned, except on special occasions, such as the examination of Captain Robinson in the case of Sudds and Thompson, under General Darling in 1829. (Pari. Report, 1st Sept. 1835, evidence, p. 5.) Through the kindness of the Premier of New South Wales (Sir Henry Parkes), the author has been allowed to reproduce (see Appendix A) a page of the Minute-Book of the Executive Council for 1837. From this specimen it seems probable that at this time in ordinary cases the Governor issued his instructions, which were merely communicated to the officials concerned. ' The office of Auditor-General was abolished in Victoria under the 21 Vic. No. 24, following the provision of the Constitution Act (19 Vic), and the posi- tion is filled by three non-political " Commissioners of Audit." (22 Vic. No. 86.) CHAP. II THE COLONIAL OFFICIALS 19 Lands respectively.^ The Colonial Secretary and the Attorney- General retain their old titles.^ The exact position of these political officials at the present day is a matter of some difficulty, •which will have to be considered. But there can be no doubt that, at the time of which we are speaking, they were simply paid administrative agents of the Crown, holding their posts on the same terms as the permanent officials in Downing Street or Somerset House. Some of them sat in the Legislative Council, and, doubtless, there expressed the Government policy ; but as officials they were entirely unfettered by the views of the legislature. Some considerable progress had been made in the develope- ment of the scheme of government contemplated by the Act of 1828 before the year 1835. There was a system of " common " and " special " juries for civil cases, and the principle of trial by jury had been slightly applied to criminal matters.^ Courts of General Quarter-Sessions and Courts of Eequests had been constituted.'* Police courts and Courts of petty sessions had been organised,* and the fees chargeable in them regulated by statute.® The Customs had been placed on a regular and statutory footing.' But especially important in the early history of Port Phillip was the Act passed in the year 1833 " for protecting the Crown Lands of this Colony from Encroach- ment, Intrusion, and Trespass." ^ This Act, with its amendment of 1834,^ authorised the appointment of "Commissioners of Crown Lands in the Colony of New South Wales," who should have power to take all necessary steps to protect the Crown Lands from trespass, and especially from trespass which might ultimately be used to ground a claim of title by occupation. These officials were invested with considerable authority, and were entitled to call on all justices of the peace and constables to aid them in the performance of their duty. ' The office of Stirveyor-General has been reconstituted as a non-political office in Victoria. ^ Perhaps one of the best ways of realising the extent of the executive machinery at this period is to glance through the estimates printed in the Voles and Proceedings of the Leg. Councils. ' 2 Will. IV. No. 3 ; and 4 Will. IV. No. 12 (N. S. W.) • 3 Will. IV. Nos. 2 & 3 (N. S. W.) " 4 Will. IV. No. 7; and 5 Will. IV. No. 22 (N. S. W.) » i Will. IV. No. 5 (N. S. W.) ' 11 Geo. IV. No. 6 (N. S. W.) 8 4 Will. IV. No. 10 (N. S. W.) '5 Will. IV. No. 12 (N. S. W.) 20 LOCAL GOVERNMENT PRIOR TO 1835 introd. It now only remains, to complete our view of the political horizon of Australia in 1835, to point out that the colony of Van Diemen's Land had been separated, for purposes of local government, from the colony of New South "Wales, by royal warrant under the 44th section of the Act of 1823 ;^ that the " province " of South Australia was just being organised on the most approved principles under the English Act 4 & 5 Will. IV. c. 95;^ and that the Swan Eiver settlement (afterwards known as " Western Australia " ) had been begun by Captain Stirling under Colonial ofi&ce Eegulations in the year 1829, and was now suffering from the untoward circumstances of its early history. Queensland had, at the time, no separate existence, but was the Moreton Bay District of New South Wales. New Zealand was a subordinate settlement, barely organised, under the control of the Governor at Sydney. 1 4 Geo. IV. ^. 96. '■' See, for full account, Sessional Papers (House of Lords), 1841, vol. iv. PAET I MAGISTEEIAL GOVEENMENT CHAPTEE III THE FOUNDING OF POET PHILLIP Foe purposes of constitutional law, the history of Victoria begins with the settlement of the Port Phillip Association in the year 1835. There had been earlier attempts at colonisation, but they had not led to any general results. The best known of them are the settlement under Captain Collins at Sullivan's Bay in 1803, abandoned almost immediately, the settlement at Western Port in 1824, which only lasted till 1827, and the settlement of the Hentys at Portland Bay in 1834, ultimately merged in the fortunes of the Port Phillip colony. The Port Phillip Association was simply the commercial venture of a few men living at Launceston, a port on the northern coast of Van Diemen's Land, the nearest, or almost the nearest, coast to Port Phillip Bay. At the time when their agent first landed at Port Phillip, and obtained by two so-caUed deeds of feoffment the grant of about 150,000 acres of land from the aboriginals, there appears to have been no formal arrangement between the members of the Association; ^ but, shortly after Mr. Batman's return from his expedition, a provisional deed of partnership was entered into by the fifteen members.^ This deed not only makes no attempt to provide any system of government for the new territory, but it care- fully excludes, so far as it can, even the notion of an ordinary partnership. Therefore, as the schemes of the Association soon collapsed, it is not worth while to analyse the contents of this deed of partnership. It has had no influence upon the form of government in Victoria. 1 Bonwick, Pwt Phillip Settlement, p. 357. ^ Copy in Bonwick, p. 365. 24 THE FOUNDING OF PORT PHILLIP parti For a very important though very easily settled question of constitutional law presented itself at the outset. What was the legal position of the so-called grantees of land at Geelong and Dutigalla ? Their own first view obviously was that they were entitled by virtue of the grant from the savages. This is put beyond question by their letter to the Secretary of State for War and the Colonies dated the 27th June 1835/ in which they say : "We might therefore have contented ourselves with this treaty with the aboriginal tribes, and quietly have taken possession of the land without any ofScial notice, either to the British or Colonial governments." And they emphasise the view that the real sovereignty in the soil is vested in the aboriginals, by pointing out that they have agreed to pay a perpetual tribute to them, which will be lost if the government do not advise the Crown to " relinquish any legal or constructive right to the land in question." It is possible that the writers of this letter did not quite consider the legitimate consequences of their argument. In all probability they did not mean seriously to deny the authority of the English Crown in the new territory, nor to dispense with British protection against the fleets of France and other powers, which might easily have snapped up such a tempting prize as the settlement at Port Phillip. Yet this is the logical inference from their letter. If the sovereignty in the soil were vested in the aboriginals, it could not be vested in the Crown; the territory of Port Phillip would be alien soil, and Great Britain would have no right to take the smallest part in its concerns, nor to interfere, except on grounds of expediency, to save it from appropriation by any foreign power. And John Batman and his friends would be legal subjects of Jagajaga, Moowhip, and Mommarmalar,^ the aboriginal chiefs. ^ To be found in Bonwiok, p. 160. The letter, as printed in Bonwiok, does not bear any address. It is probable that the writers thought they were addressing Lord Aberdeen, who held ofSoe tUl May 1835, on the 12th of which month Mr. Charles Grant (created Lord Glenelg) was appointed. The news of this change cannot have reached Van Diemeu's Land by the 27th June. ^ The alleged deed of feoffment is to be seen in the Public Library at Melbourne, and is interesting from an antiquarian point of view. The names of the chiefs must have been purely conjectural. The aboriginals of 1835 were not accustomed to the use of the pen, and did not sign their names. Doubtless they thought it a good joke to make little black marks on a sheepskin. CHAP, in THE FIRST CONSTITUTIONAL QUESTION 25 On any other supposition, the land, according to the well- known constitutional principle, was vested in the Crown. Whether the territory of Port Phillip were truly a No-man's- land, discovered and occupied by British subjects, or whether it were already British soil, within the jurisdiction of New South "Wales or any other jurisdiction, the legal result to the settlers was the same. They could have no title except that which the Crown chose to give them. What arrangement the English government would make for the organisation of the new territory was for it alone, influenced, doubtless, by the circumstances of the case, to decide. It might treat Port Phillip as part of New South Wales, of South Australia, or of Van Diemen's Land, or it might give it a separate government, regarding it as a new colony. The fact (even if it had been so)^ that none of the commissions of the Australian governors covered the new territory was, as between the British govern- ment and its subjects, immaterial; for these were mere in-' structions to officials, and could be altered at any time. The fact that Sir Eichard Bourke, then Governor of New South Wales, had been expressly forbidden by the same authority to allow settlements in the new region,^ was also immaterial, and on the same grounds. For the English law recognises no title to land by occwpatio in its subjects. There is not any No-man's- land within its dominions ; all is vested in the Crown. And if the British subject colonises land which is outside British dominions, he does so as an agent of the Crown, who may be disavowed if he acts without authority, but whose territorial acquisitions belong to his principal. This was practically the view adopted by the authorities both in England and Australia. To the latter naturally belonged the first step, which was taken by Sir Eichard Bourke when, on the 26th August 1835, he issued a proclamation claiming Port Phillip as part of the territory comprised within his commission, and warning the settlers that all persons found ' But it was not. Cf. the limits of the oommissioii of Governor Maoquarie printed in the volume of Australian papers (Pub. Lib. 443, 9, 15, p. 372), and that of Governor Bligh therein recited. I doubt if a copy of Governor Bourke's commission is to be seen in Victoria, but I have seen the original at Sydney, and it includes everything on the mainland up to the present boundary of Western Australia. " Cf. Letter of Sir E. Bourke in Votes and Proceedings (N. S. W.), 1837, p. 588. 26 THE FOUNDING OF PORT PHILLIP parti in possession of land without Crown authority would' be treated as trespassers.^ But the settlers appealed directly to the Home authorities, sending an agent to England to represent their views. The answer he received was decisive. He took the private opinions of four distinguished counsel, and three of them agreed that the soil of Port Phillip was vested in the Crown. The fourth (Dr. Lushington) came to a different conclusion on this point, for reasons not stated ; but all the four counsel agreed that the grants from the aboriginals were not valid as against the Crown.^ The action of the Government evidently proceeded on the same conclusions. Lord Glenelg (the Secretary of State for War and the Colonies) at once declared that the new settlement fell within the jurisdiction of the Governor of New South Wales, and, in spite of repeated applications, declined to 'interfere in any way between Sir Eichard Bourke and the settlers, mainly on the ground that a general principle for dealing with Crown lands in Australia had been laid down, and that to depart from it would create confusion. The claim of the settlers fell from recognition to confirmation, then to com- pensation on equitable grounds,^ and on this footing it was ultimately recognised, to a limited extent, by the executive council at Sydney.* The decision of the Colonial office left the new settlement of Port Phillip to be organised by Sir Eichard Bourke. We must now see how he set about the task. 1 Gm. Gazette (N. S. W.), 2d Sept. 1835. Copies also in Eusden, Sistory of Australia, ii. p. 71 ; and Richards, Official History of N. S. W. p. 62. ^ Doouments in Bonwiek, pp. 376-381. ' See correspondence in Bonwick, pp. 381-406. ^ Gov. Gazette (N. S. W.), 4th May 1839. And cf. Richards, p. 65 ; Bonwick, p. 411 ; and Rusden, ii. p. 79. CHAPTEE IV THE ORGANISATION OF POET PHILLIP On the 9th September 1836, Governor Bourke, having received from an official sent for the purpose a report upon the state of affairs, proclaimed the new territory of Port Phillip open for settlement, and appointed Captain WiUiam Lonsdale, of the 4th or King's Own Eegiment, to be police magistrate of the district.-' From the official report^ we learn that in June 1836 the settlement consisted of 177 persons, some living in the " town " of Bearbrass (the Melbourne of 1836), which com- prised thirteen buildings ("three weather -boarded, two slab, and eight turf huts "), and others scattered round in various " stations," some as many as 3 miles from the main settlement. The extent of territory claimed by the settlement was about 100 square miles, but no one had been known to penetrate more than 70 miles into the interior. The movable possessions of the settlers consisted of about 26,000 sheep, 57 horses, and 100 head of horned cattle. Sixty acres of land had been under cultivation in the previous season, and the wheat grown upon them was said to be of excellent quality ; but the great object of the settlers was pasture, not agriculture. Eleven small vessels, of a total register of 1500 tons, were employed in the trade between Van Diemen's Land and Port Phillip, principally to bring stock from the former colony.. Such was the comniunity which Governor Bourke had to organise. But it is worth noting, both as a contribution to the data of political science, and as a characteristic of the Anglo- Saxon race, that the earliest attempt at organisation came from ' In Gov. Gazette (N. S. "W.), 14th Sept. 1836 (Pari. Lib.) Also in Sydiwif Gazette, 13th Sept. 1836. ^ Copy in Bonwick, p. 419. 28 THE ORGANISATION OF PORT PHILLIP parti the settlers themselves. On 1st June 1836 a meeting of residents was held, which framed an exceedingly simple scheme of government. One official only was appointed, an arbitrator, to whose decision in all disputed matters, as well as in cases of aggression upon the aborigines, the settlers present bound them- selves to conform without appeal. The meeting also determined to petition the Governor of JSTew South Wales for the appoint- ment of a resident magistrate, with assistants chosen from the settlers. These were the only political resolutions of the meeting.^ Captain Lonsdale arrived at Port Phillip on 1st October 1836. He brought with him, apparently, two or three sur- veyors, a few soldiers, and two constables.^ Three months after his arrival the prison at Port Phillip was proclaimed one of the common gaols of the colony.^ It is worth while to notice the order in which the institutions of a community develop. We have seen how important a part was played in the early organisation of New South Wales by the administra- tion of justice. In the new community of Port Phillip the first institution is an arbitrator, the second a police magistrate, the third a constable, and the fourth a gaol. The great event of the year 1837 was the visit of Governor Bourke in person in the month of March,* which was followed almost immediately by the appointment of two additional police magistrates,^ and by the proclamation which named the bay at the northern extremity of Port Phillip " Hobson's Bay," after the commander of the ship which conveyed Captain Lonsdale to the settlement, and directed the sites of two towns to be laid out, one on the western shore of Hobson's Bay, to be called William's Town, the other on the right bank of the Yarra, to be known as Melbourne.^ In the month of September of the ' Account given in Bonwiok, p. 416. * Mr. Bonwiok (p. 424) says owe, Howson, but two (Day and Dwyer) were district constable and constable respectively by order of 13tli Sept. {Gov. Gazette, N. S. W., 14th Sept. 1836). Tbe number of the surveyors is corroborated by the Sydney Gazette of 17th Sept. 1836. 3 Gov. GazetU (N. S. W.), 28th Dec. 1836. * See official account in Gov. Gazette (N. S. W.), 29th March 1837 (Pub. Lib.) ' Gov. Gazette (N. S. "W.), 12th April 1837. One of these was Mr. James Simpson, the arbitrator appointed by the meeting in June 1836. 8 Proclamation of 10th April 1837 in Gov. Gazette (N. S. "W. ), 12th April 1837 (Pari. Lib. ) Melbourne was of course named after the Prime Minister of the day, William's Town (afterwards Williamstown) doubtless after the reigning king, "William IV. CHAP. IV THE SUPERINTENDENT 29 same year the town of Geelong obtained its police magistrate ^ and constables,^ and on the 26 th October 1838 the plan of the township received the Government approval.^ In July 1840 the town of Portland was opened for settlement,* in August it received its police magistrate,^ and in November its own petty sessions.® As each of these towns was founded, land within it was opened to public sale, on terms to be hereafter explained. Here it is sufficient to point out that Victoria, unlike England, is a community whose early government was based upon towns and town institutions. Before five years of its history had passed away, it contained four principal towns, which have since become great centres of commercial life and political activity. It is the Country of the Four Towns, and all its institutions bear the impress of town life. On the 14th August 1838 the Governor issued a proclama- tion,'' under the 3 Will. IV. No. 3, naming Melbourne as a place for the holding of Quarter-Sessions, and this proclamation was immediately supplemented by an Act (2 Vic. No. 5) apply- ing to the new court the jury system then in existence in New South Wales, and providing elaborately for the empanelling of juries. But it soon became evident that the community required more extensive powers of government than those vested in a police magistrate, and accordingly, on the 31st July 1839,* Mr. Charles Joseph Latrobe, an official sent out from England at the request of Governor Bourke, was gazetted " Superintendent of Port Phillip." A few weeks later a second proclamation defined his district as " that portion of the territory of New South Wales which lies to the south of the 3 6th degree of south lati- tude, and between thel 41st and 146th degrees of east longitude," and declared that within those limits he should exercise the powers of a Lieutenant-Governor.^ At the same time an addi- tion was made to the official staff of Port Phillip by the appoint- ment of an under-treasurer, with power to license auctioneers,^" and on the 26 th of October a clerk of the peace was appointed." 1 Qm>. Gazette (N. S. W.), 6th Sept. 1837 (Pari. Lib.) 2 Ibid. 13th Sept. 1837 (Pari. Lib.) » lUd. 28th Nov. 1838 (Pari. Lib.) * Ibid. 22d July 1840 (Pari. Lib.) = Ibid. 19th Aug. 1840 (Pari. Lib.) « Ibid. 4th Nov. 1840 (Pari. Lib.) ' Ibid. 22d Aug. 1838 (Pari. Lib.) 8 Ibid, of date. ^ Ibid. 11th Sept. 1839. 10 ji)ia_ 11 Ibid. 6th Nov. 1839. 30 THE ORGANISATION OF PORT PHILLIP parti Soon after the arrival of the Superintendent, provision was made for the local administration of civil justice by the Act 3 Vic. No. 6, which established a Court of Eequests at Melbourne, the sitting days of which were iixed, by proclamation of the 5th October 1839,^ as the first Tuesday in each month, but were subsequently changed to the first Mondays of the months of January, April, July, and October,^ to coincide with the Quarter-Session days fixed for the same dates.^ The growing importance of Melbourne was marked by the issue on 23d March 1840 of a proclamation,* dividing the town into two districts of north and south, corresponding roughly with the division made by the Yarra river. But Melbourne soon outstripped all such temporary measures, and emancipated herself very largely from the magisterial govern- ment of Port Phillip, by the acquisition, in the year 1842,* of her municipal constitution, thereby laying the first foundations of recognised self-government in Victoria. The important subject of early municipal government in Melbourne will require special treatment. We may close this chapter with a reference to another great step in commercial development marked by the Order of the Privy Council of 5th March 1840,* declaring Melbourne to be a "Free Port" and "Free "Warehousing Port " within the meaning of the Imperial Act 3 & 4 Will. IV. c. 59. This statute enabled the King in Council to proclaim certain places " Free Ports," i.e. ports with the exclusive right to the foreign trade (export and import) of a certain district, and " Free Warehousing Ports," i.e. ports where goods might be deposited under bond without payment of duty.^ Curiously enough the imperial statute only empowers the Crown to declare Free Warehousing Ports "in His Majesty's possessions in America,"® and it is somewhat doubtful if the Act was ever intended to apply to Australia ; but the legality of the pro- clamation of 1840 has, I believe, never been questioned. The port of Melbourne long remained without any special govern- ment of its own, but in the year 1876 the Melbourne Harbour Trust, a corporation with considerable powers, was established 1 Gov. Gazette (N. S. W.), 9th Oct. 1839. 2 lUd. 1st Jan. 1840. ' Ibid. < Ihid. 28tli March 1840. s By N. S. W. Act, 6 Vic. No. 7. « Gov. Gazette (N. S. W.), 19th Aug. 1840. ' 3 & 4 "Will. IV. c. 59, §§ 23 and 36-40. 8 jjj-(^_ § 3g_ CHAP. IV THE NA VIGA TION LAWS 31 by Victorian statute.^ The imperial statute of 1833 was part of a general scheme, commenced under the Commonwealth, and known generally as the " Navigation Laws," which had for its object the encouragement of British shipping by placing severe restrictions upon the entry of foreign trading vessels into English ports. The statute of 1833 was repealed in 1845,^ but practically re-enacted at once.^ The main provisions of the system were abandoned in 1850.* Meanwhile the 33d section of 3 & 4 Will. IV. c. 59, empowered the Governor of any colony, with the advice of his Executive Council, to pro- claim a Customs House at any port, and prohibited aU importa- tion except at proclaimed ports. " 40 Vie. No. 552, amended by Noa. 749 and 763. 'i By 8 & 9 Vic. c. 84. » By 8 & 9 Vic. c. 93. * By 12 & 13 Vic. c. 29. CHAPTEE V THE LAND SYSTEM OF POET PHILLIP Since the days of Harrington, it has been a truism that the distribution of the land of a country determines the balance of political and social power within it. It becomes therefore of the first importance, in studying the political development of a community, to ascertain the lines upon which this distri- bution proceeds. The land systems of British colonies have been based upon a most remarkable application of old ideas to new facts. Without going into details, it may be said that England has passed through the feudal stage of existence, in which all political and social relations are symbolised and guaranteed by the relationship of each individual to the land. In this stage, the king, the supreme political and social power, is also supreme, or, more properly speaking, sole landowner. The great nobles, next to him in power and wealth, are next to him in relation to the land ; they hold of him, as it is said, their great territorial estates, they are his immediate tenants. Next to them come the knights and squires, the landed gentry, who stand in like relation to the great nobles for their estates. Below them again are the farmers in the country and the burghers in the towns, very probably representing the old free settlers of pre-feudal times, but forced by feudal theories into this dependent relationship. And last of all come the semi- servile classes, the thralls, serfs, and knaves, whose condition, at first very degraded, rises precisely in the degree to which they can secure a permanent tenancy of their holdings. The completeness of this system in England had given way, long prior to the acquisition of her great colonial possessions, CHAP. V THEORY OF CROWN OVERLORDSHIP 33 before the rival influences of education and commerce, with their readjustment of political and social conditions. But enough survived to produce one great practical result. In England nearly all the land had long been in private hands, and the theory of the Crown ownership of the soU only came to light on rare occasions, when, for example, no other claimant could be found for an estate, or when a landowner was con- victed of felony, and his acres escheated to the Crown in default of other lords. But when the vast vacant lands of the colonies came to be disposed of, the theory woke to new life. It was this doctrine that gave to "William Penn and Lord Baltimore their titles in New England. It was this theory which was called into play when free settlers first began to emigrate, about the beginning of the present century, to Australia. At first there seems to have been no regular system of disposing of the Crown lands in Australia.^ All grants were finally made by the colonial Governors, in pursuance of the powers contained in their commissions ; but immigrants fre- quently arrived from England with "land orders" entitling them to government grants, and the Governors used their own discretion with regard to local claimants. In this way about 600,000 acres of land were disposed of in New South Wales alone before the year 1823.^ Conditions as to payment of perpetual quit-rents to the Crown and other returns were frequently imposed in the grants, and improvements upon the land so granted were generally considered grounds for increased grants to the improvers.* Notwithstanding these lavish aliena- ^ Governor Maoquarie's Instructions (Nos. 9 and 12) attempted to frame a. scale of grants to ex-convicts and freemen respectively. In the case of the former a quit-rent of sixpence for every 30 acres, and of the latter of one shilling for every 50 acres, was to be payable at the expiration of ten years from the grant. But from the return alluded to in the next note, it is obvious that this scale was disregarded (of. Instmicticms in vol. of Australian Papers, Pub. Lib. 443, 9, 14, p. 374). " Evidence of Mr. Kelsey (House of Commons Reports of Committees, 1836, vol. V. p. 699). Of course, as in aU such cases, a customary rule tended to estab- lish itself. In Van Diemen's Land the understanding was that a man CQuld get an acre of Government land for every pound which he could persuade the Govern- ment that he possessed (evidence of Mr. William Bryan, ibid. p. 715). Particulars of grants made between 1812 and 1821 can be seen in a volume of Australian Papers (Pub. Lib. ref., 443, 9, 14, p. 94). ' Evidence of Mr. William Bryan (House of Commons Reports, 1836, vol. V. p. 716). D 34 THE LAND SYSTEM OF PORT PHILLIP part i tions, great discontent was excited by the system. As might have been expected, accusations of favouritism and corruption were freely made, and apparently with good reason.^ And it seems to have been the custom for the lawyers of the period to agitate the landowners of the community by throwing out dark hints as to the validity of titles resting on colonial grants.^ The first attempt to introduce a settled scheme appears to have been made in the year 1824, when the Colonial office published a summary of Eegulations respecting grants of land in New South Wales and Van Diemen's Land.^ The summary stated that it was proposed to divide the whole territory into counties, hundreds, and parishes* (after the English model), the parish to be of an average area of 25 square miles. A complete valuation of lands throughout the colony ^ was to be made, and an average price struck for each pariah, at which price all lands were to be open for sale * in blocks usually of 3 square miles, with a maximum limit to any individual of five blocks, though the Secretary of State was prepared to consider special applications for larger grants.^ The purchase money was to be paid in four quarterly payments, but any purchaser who, within ten years of his purchase, should have relieved the public from a charge equal to ten times the amount of his purchase money, by the employment and maintenance of convict labour, would be then entitled to a return of his purchase money without interest. The cost of each convict to the government was fixed for this purpose at the rate of £16 a year. But the Eegulations contemplated other arrangements than the out-and-out purchase of land. To persons who established to the satisfaction of the Governor their power and intention to 1 Evidence of Mr. "William Bryan (House of Commons Reports, 1836, vol. V. p. 717). 2 lUd. p. 720. 3 Copy in ihid. p. 752. * Apparently this object was entrusted to a specially created department known as the Commission for Apportioning the Territory of New South Wales, abolished in 1830 (Papers handed in by Sir George Grey, iUd. p. 521). ^ It will be remembered that at this time Van Diemen's Land was part of the colony of New South Wales. ^ The words are "put up to sale," but auction is obviously not intended. There is to be no competition. ' This provision doubtless referred to the contemplated establishment of the Australian Agricultural Company and other great commercial speculations. CHAP. V A TTEMPTS A T REFORM 35 expend in the cultivation of the land a capital equal to at least half the value of it, grants ^ of from 320 to 2560 acres might be made without immediate payment. But at the expiration of seven years from the date of the grant, a quit-rent at the rate of five per cent upon the estimated ^ value would commence to be payable in perpetuity, unless redeemed within twenty-five years by a payment of twenty times its annual amount. On such redemption the grantee would be entitled to credit at one-fifth of the rate before mentioned for maintenance of convict labour. If at the end of the first seven years the grantee failed to prove to the satisfaction of the surveyor-general that he had expended the contemplated amount of capital (which proof was also to be a condition precedent to a second grant), his lands were to be forfeited to the Crown. But the old influences at work were too strong. The Home government at once proceeded to violate its own policy by creating two great commercial companies, and endowing them with vast tracts of land on special conditions. The Australian Agricultural Company was established by statute 5 Geo. IV. c. 86, and soon after received a large grant of lands in the neighbourhood of Sydney, it is said^ without payment of any kind. The Van Diemen's Land Company was created by 6 Geo. IV. c. 39, and on the 10th November 1825* received its charter, in pursuance whereof various Orders in Council were directed to the Lieutenant-Governors of Van Diemen's Land between the years 1825 and 1837, instructing them to " admit the company to possession " of large tracts of waste land on certain terms, and this possession was transformed into unfettered ownership in fee-simple under the powers of a later Act.^ These steps were not only economically doubtful, but they menaced a grave political danger. The history of the East India Company might very well have been repeated in the annals of the Australian companies. Had the stream of immigration ' The term "grant" in this connection is generally used in the documents exclusively to represent these special transactions, hut of course it must be remembered that the cash purchase would also be effected by a "grant." " This means value estimated at the time of the grant. ' By Mr. Rusden (vol ii. p. 262). An abstract of this charter may be seen in House of Commons Papers (reports), 1836, vol. v. p. 764. •• See preamble to 10 & 11 Vic. c. 57. « 10 & U Vic. c. 57. 36 THE LAND SYSTEM OF PORT PHILLIP part i to Australia been anything like so rapid as it has long been to America, the directors of these great landowning corporations would soon have become local magnates with wealth and in- fluence enough to defy the governments at Sydney and Hobart Town. Happily for all parties, the scantiness of the population of Australia prevented such a catastrophe, and the companies have all along had only an economic importance. But the regulations of 1824 seem to have met with little better fate in the colony itself. They were, of course, published in due form on their receipt by Governor Darling, who, how- ever, ventured on his own authority to alter the area of the average block from ,3 square miles to one-third of that extent. But the Governor appears to have taken a stUl stronger step, for, appended to the order publishing the Eegulations, is the ominous notice : " With reference to the above, his Excellency the Governor must decline receiving, until further notice, any more applications for the purchase of Crown lands." ^ The main object of the Eegulations, the establishment of a system of cash sales, probably, therefore, failed entirely. The Home government repeated its announcement in the year 1826,* but in the year following it modified its terms, and introduced a system of competition by tender for purchased lands (selected by claimants and then announced as open for sale), while allow- ing the payment to be made in half-yearly amounts at the discretion of the Governor. A stiLL greater change was made in the conditions of grant without purchase. The Governor, after a thorough investigation of the claimant's assertions by a Land Board, was to be entitled to make a grant at the rate of one square mile for every £500 of capital proved by the applicant, but not exceeding in any case 4 square miles. The rights of the Crown in the land for public purposes were to be reserved, and the land was to be forfeited upon failure of proof, at the end of seven years, of the expenditure upon it of capital to the extent of one-fourth of its survey value. After seven years the old quit-rent of five per cent would begin to run, but it would be redeemable at any time at twenty years' purchase. A final Eegulation, of great importance, provided that the personal residence of the grantee, whether with ^br with- out purchase, or at least the maintenance of a free man of 1 House of Commons Reports, 1836, vol.' v. p. 753. ^ Ibid. p. 754. CHAP. V LAND REGULATIONS OF 1831 37 approved character, on the land, should be deemed an essential condition of holding. Under these regulations, often modified by the colonial Governors, who conceived themselves warranted, by their superior knowledge of local circumstances, to alter the policy of the Home government, grants of land proceeded in New South Wales up till the year 1831. By that date upwards of three millions and a quarter acres had been disposed of since the year 1822,^ making a total of about four millions alienated under the old system. Lord Eipon's Eegulations of 1831^ laid down the great principle that thenceforth no lands would be disposed of other- wise than by public sale. Even in the case of military officers entitled to free grants, the lands selected were still to be open to public competition, the claimants being allowed to deduct certain sums, representing the value of their rights, from their purchase-money. All unappropriated lands in the colony were to be considered open for sale at a minimum or upset price of five shillings an acre, and applicants were to be allowed (subject to certain limits) to " select " such portions as they might prefer. But such selections would be advertised for sale for three months, and then put up to auction at the up set price, in lots averaging one square mile each. Upon payme nt of his purchase-money the purchaser would be entitled to a grant in fee-simple at a nominal quit-rent. The Crown reserved the right to effect public improvements, and also the rights to all mines of precious metals and coal. These Eegulations were enforced in the colony by Govern- ment Order of the 1st August 1831,* which, however, put a curious construction on the term " limits '' contained in th e Eegu- lations. The " limits "of selection contemplated by the Colonial Office appear to have been limits of quantity, not of localit y.* But the limits prescribed by the Government Order ^ are those of locality, not of quantity. Selection may only be made (except in special cases) from surveyed parishes,^ while it is expressly announced that "all free persons wiU be eligible as purchasers 1 Evidence of Mr. Kelsey (H. of C. Reports, vol. v. p. 699). 2 Copy in Votes and Proceedings (N. S. W.), 1847 (1), 635. ' Votes and Proceedings 1847 (1), 636. " Cf. Regulations of 1831, Sections (1) (2) and (4). ' Sections 1 and 2. ^ The limits of selection had been previously fixed by proclamation of 14th 38 THE LAND SYSTEM OF PORT PHILLIP part i of land without any limitation as to quantity." ^ At first no distinction was made between town and country lands, the difference in value being left to the natural effect of competition. But in the year 1833 an order was issued requiring the purchaser of each town allotment to give security to erect a permanent building, worth twenty pounds at least, within two years of his purchase.^ It was under these Eegulations that the first lands in Port Phillip, which had been announced as open for settlement by the proclamation of the 9th September 1836, were disposed of. The first sale took place on the 1st June 1837 at Melbourne, when town allotments of half an acre each in Melbourne and Williamstown were put up. Another sale was held in the same place on the 1st November, and another at Geelong in February 1839.^ The details of these transactions do not belong to our purpose, but it is worth noting that, in announcing the Geelong sale, the Governor took the step of fixing the upset price at £5 an acre.* But the question of land sales in Australia was attracting the attention of the Home government. Ever since the publication of the report of the committee of 1836, there had been a feeling that some definite policy ought to be adopted, not only with regard to the methods, but the proceeds of sale. The recommendations of the committee of 1836 had been that the whole of the arrangements connected with the sale of land should be placed in the hands of a central land board in London, having local boards as its agents in the different colonies, and that the proceeds of the sales should form an emigration fund, by means of which the colonists should be supplied with free labour.^ At the beginning of the year 1840, one half of these recommendations were carried into effect by the appointment of a Eoyal Commission of three October 1829. They comprised 19 counties (cf. Australian Almanack for 1833, p. 87). For the method of dividing a county into hundreds and parishes cf. Letters-Patent of 16th May 1885, in Votes ajid Proceedings, 1847 (1), p. 644. 1 Sect. 15, Gov. Order, 1st August 1831. 2 Votes and Proceedings, 1847 (1), p. 640. This regulation was rescinded on the 30th Nov. 1839 {ibid. p. 693). * On the 17th January 1839 the minimum price throughout the colony had been raised from 5s. to 12s. an acre {Votes and Proceedings, 1847 (1), 676). * Gov. Gazette, 28th November 1838. •> Report. Pars. 6 and 7 (H. of C. Reports, 1836, vol. v. p. 502). CHAP. V LAND AND EMIGRATION COMMISSIONERS 39 well-known philanthropists^ as "The Colonial Land and Emigration Commissioners," to supersede the old South Australian Commissioners and the Agent-General for Emigra- tion. They were charged with the fourfold duty of — (1) Diffusing information about the colonies. (2) Effecting sales of land in the colonies. (3) Assisting emigrants to proceed to the colonies. (4) Eendering accounts of the land funds. In regard to the second of these duties, the Instructions of the commission followed the recommendation of the committee of 1836, but with an important modification. They laid down the maxim that " the Crown lands in the colonies are held in trust, not merely for the existing colonists, but for the people of the British Empire collectively." But while they thus approved the policy of the committee, the Instructions admitted that public local claims were the first charge on the Land revenue ; the Imperial share, to be expended mainly in the assistance of high-class emigration, was to rank second.^ The actual grants of Crown lands, as theretofore, were to be made by the Governors, but the commissioners were to have joint power of contracting for sale.^ They were directed to inquire whether the system of sale at a fixed price, with priority for claims according to date, then followed in South Australia, or the system of auction at an upset price, then practised in New South Wales, was the best. Apparently, on this latter point, the commissioners decided that the South Australian system was to be preferred, for in the "Additional Instructions" of the 23d May 1840,* which Lord John EusseU, the Secretary of State, forwarded to Sir George Gipps (Sir Eichard Bourke's successor in the Governor- ship of New South Wales), the Governor was directed to sell all lands in the Port Phillip District (directed by the In- 1 Colonel Torrens, Mr. R. F. Elliott, and Mr. Edward Villiers. '^ The separation of the Laud Fund from the general revenue, and its appropriation to the expenses of emigration, had been adopted, as a matter of practice, since 1832, in pursuance of a despatch of Lord Goderich (H. of C. Sess. Papers, 1840, vii. p. 561). ^ This power was soon seen to be unpracticable of exercise, and was exchanged for the power to grant certificates of receipt which could be treated as cash by the Colonial government. * H.- of C. Sess. Papers, 1840, vol. vii. p. 667. 40 THE LAND SYSTEM OF PORT PHILLIP parti structions to be created) at a uniform rate, to be from time to time fixed by the Home government. The power of the commissioners in England to contract would be limited to the issue of certificates to persons who had actually paid money into the hands of the agent for the colony in England, which would simply be treated as bankers' receipts. The despatch, dated 31st May 1840,^ which accompanied these instructions provided for a division of the territory of New South Wales into three Districts, fixed the sale price of lands in the Port Phillip District at £1 an acre, but directed the continuance of the practice of sale by auction in those towns in which it had been already established, and also authorised very rare reserva- tions for the sites of towns (" only the probable situations of considerable seaports ") in other parts of the District, in which reservations the lands were to be sold at £100 an acre. Upon the receipt of these documents, the Government of New South Wales issued the very important Land Eegula- tions of the 5th December 1840.^ These Eegulations divided the territory of New South Wales, for all purposes connected with the disposal of land, into three Districts, to be known respectively as the "Northern" District, the "Middle'' or " Sydney " District, and the " Southern " or " Port Phillip " District. The first of these Districts practically comprised all the lands north of latitude 32° south, but it was expressly noted that its northern limits were not yet fixed. The second comprised the nineteen counties before alluded to, being bounded on the north by the southern boundary of the first district, " and on the south by the southern boundaries of the counties of St. Vincent and Murray, and thence by the rivers Murrumbidgee and Murray to the eastern boundary of the province of South Australia."^ The third, or Port Phillip District, included all the lands to the south of the southern boundary of the Sydney District. Following the lines laid down by the Instructions, the ' H. of L. Sess. Papers, 1840, vii. p. 664 ^ Gov. Gazette. (ST. S. W.), 9th December 1840. ^ It will be observed that the present boundary of New South Wales comes a good deal south of these limits, including some twenty new counties. The names and boundaries of the Districts had, however, been definitely settled by the Instructions of the 31st May 1840, and represent the views of the Home govern- ment, not of Sir George Gipps. For the change cf. post. CHAP. V DIVISION OF THE MOTHER-COLONY 41 Eegulations went on to provide that in Port Phillip District all country lands should he open for sale, after survey, at the uniform price of £1 an acre, that allotments in towns (especially including Melhoume, Williamstown, Geelong, and Portland) where the practice of auction sales had heen established, should continue to be sold by auction, but that in newly laid out towns allotments should be sold at an uniform price, for the present £100 an acre. There was to be no reservation of minerals, except in rare cases.^ But the most important clause of all in the Eegulations was the last, which announced that for the present no further sales of land near the four towns would take place. It was quite evident that Sir George Gipps did not approve of the policy of a fixed sale price. But the Governor did more than merely abstain from applying the Eegulations to the suburban lands. He remon- strated vigorously with the Home government, pointing out that the adoption of the fixed price of £1 an acre, within a five-mile circuit round Melbourne and Geelong alone, would entail a loss to the Crown of nearly a million sterling.^ He could also point to a secondary result of the adoption of the fixed price system, in the " special surveys " which were occasionally demanded by immigrants who arrived with Land Orders to a large amount. The first case was that of a Mr. Henry Dendy, who had paid in London for eight square miles of Port Phillip land the fixed price of £1 an acre, and who claimed, on his arrival in the year 1841, to select his eight square miles, either from the unappropriated surveyed land as near to the towns as possible, or to have a block specially surveyed for him at his own selection.^ The Superintendent at Port Phillip could not refuse to honour the land certificate, but the practice threatened to be so serious that he dechned to act upon it without special instructions from the Governor,* and the latter took the responsibility of issuing Eegulations for 1 Eegulations for the sale of land at Port Phillip under the fixed price system were issued on the 21st January 1841. They merely prescribe detaUs ( Votes and Proceedings, 1847 (1), p. 698). " Letter of 19th December 1840 in Votes and Proceedings (N. S. W.), 1842, p. 11. ' Ibid. p. 34. * Letter of La Trobe to Governor Gipps {Votes and Proceedings (N. S. W.), 1842, p. 33.) 42 THE LAND SYSTEM OF PORT PHILLIP part i the control of special surveys, which materially circumscribed the choice of the applicants.^ It was, of course, a strong step to take, for Mr. Dendy had been offered £15,000 for his certificate on the day of his landing, and the effect of the new Eegidations would doubtless be to depreciate seriously the commercial value of his claim. But the case was so forcible that the Home government promptly endorsed the action of Sir George Gipps,^ and put a stop to further " special surveys," directing a return to the old system of auction at Port Phillip, with certain small exceptions. By a government notice issued on the 10th February 1842,^ founded on the letter of Lord John Eussell and the additional instructions under the sign-manual, the old system of selling lands by auction was restored for Port Phillip in all cases, except the one case of country lands remaining unsold at an auction, which were then to be open for selection at the upset price. The importance of these various Eegulations, and the transactions to which they gave rise, can hardly be overrated in considering the history of Victoria. They introduced into the administration of the mother-colony three great changes, of which two were destined to be permanent, while the third, though soon afterwards reversed, was not without great effect. In the first place they established the rule, which so long prevailed with regard to the Land fund of the colony, that one half of it should be devoted to Public "Works, and one half to immigration. In the second, they introduced or at least gave official sanction to the idea of the separate existence of Victoria and Queensland. And in the third place, they effected for the time a complete change, in the method of the sale of Crown lands in Port Phillip. The last effect proved, however, as we have seen, to be only temporary. But the policy of the Eegulations was utterly distasteful to many influential people in New South Wales, They disliked the idea of separation altogether, they especially disliked the 1 Regulations of 4th March 1841 in Gov. Gazette (N. S.W.), 12th March 1841. The special survey system was abolished on the 28th August 1841, in pursuance of directions from the Home government (Votes and Froceediiufs, 1847 (1) p. 783). 2 Letter of Lord John EusseU, 27th August 1841 CFotes and Proceedings (N. S. W.), 1842, p. 43). Additional Instructions of 21st August 1841 {iUd. p. 41). 3 Gov. Gazette (N. S. W.), 11th February 1842. CHAP. V FEELING AGAINST SEPARATION 43 actual boundaries adopted. The Legislative Council immedi- ately came to an unanimous resolution to petition the Crown to alter the limits fixed.^ The objects of this attempt appear to have been twofold : first, to secure to the colony of New South Wales proper ^ " the course of the principal Eivers within the Territory, which have been discovered and explored by the enterprise, and at the expense of the Settlers," and, second, to " preserve the union under one Government of those Districts beyond the present limits of location, which have not only been peopled from this Colony, and occupied by stock, the property of residents within it, but must always continue united with it by the closest ties of a common origin and interest." ^ We shall see how the petition, which was framed upon this resolution, and duly forwarded to the Home government,* bore immediate fruit. But, meanwhile, the statement of its second object has brought us face to face with the other great feature of the Land system of the period, the important process known as " squatting." It will readily be understood that, while the system of purchase was well enough adapted to the wants of those persons who desired lands only for purposes of agriculture and residence, it did not suit the views of those who wished to carry on the business of stock breeders on a great scale. The time and labour required for agricultural and building opera- tions are so great, that they can usually only operate over a comparatively small area. But the business of sheep and cattle farming, especially of a rough character, can be carried on with very little labour and a much smaller amount of capital, provided that free access to natural herbage and water supply is secured. It would have been ruinous to the stock breeders of the colony to have had to purchase the land on which their flocks and herds were depastured. On the other hand, they were quite willing to take large tracts of very rough and hitherto unexplored country on very short tenures. ' The change in the method of sale did not apply to the Middle District, so that the Legislative Council made no reference to it. ^ It is quite evident that the council recognised that the division into districts foreshadowed the ultimate separation of Moreton Bay and Port Phillip. Cf. the petition at full in Votes and Proceedings (N. S. W.), 1840, p. 391. 3 Ibid. p. 387. * See extract in V. and P. (Victoria), 1853-54, vol. ii. p. 737. 44 THE LAND SYSTEM OF PORT PHILLIP part i At first the amount of capital which they invested in per- manent improvements was comparatively small. Most of their capital was of a floating character, which could easily be moved from one place to another. The Land Eegulations of the 1st August 1831/ before alluded to, contained provisions for the leasing of lands within the prescribed limits of settlement, in blocks of one square mile each. These leases, when applied for, were to be put up for sale by auction, at an upset rent of 20s. a block, and the highest rent bid was to secure the block. Such a lease did not secure the lessee, even for a year, for he could be ejected at a month's notice in favour of an applicant who wished to buy the fee-simple.^ And, at most, his interest was only for a year, the lease being again put up to auction at the expiry of that time. But these provisions proved wholly inadequate to regulate the occupation of Crown lands heyond the limits of location.^ The vast requirements of the great stock breeders of the colony were satisfied by excursions into what was then really the primaeval wilderness, where they appropriated, in symbolic fashion, large tracts or " runs," whose boundaries were often very ill-defined, but which in most cases far exceeded the lease limits of one square mile.* Here they lived, a scanty and scattered population,^ practically beyond Government control, and almost beyond the influence of civilisation. The extent to which this practice prevailed may be seen by a glance at a map drawn up under the directions of Sir George Gipps in the year 1843.^ From this it appears that these settlers had covered an enormous tract of territory beyond the boundaries of settlement or location,'' which tract, beginning at Hervey 1 Votes and Proceedings, 1847 (1), 636. ^ Of. form of lease in ibid. p. 633. ' It was said that in Port Phillip District they also failed to secure ohservance within the limits (cf. Report of Commission of 1855, V. and P. (Victoria), 1864-55, ii. p. 296). * Despatch of Sir George Gipps (H. of L. Sess. Papers, 1845, vol. vi. part i. p. 394). ^ Less than 10,000 in a district measuring 1100 miles across (ibid). 6 Jbid. p. 399. ' At this time they were practically the same thing. The scattered huts of the squatters and their riders cannot be called "settlements." Cf. Government Order of 14th October 1829 and Proclamation of 30th July 1830 in Australian Almanack, 1835, p. 21. CHAP. V SQUATTING 4s Bay in the north, swept round Stanley county (then the site of the settlement ahout Brisbane), round the old nineteen counties of the Middle District, and, in fact, included everything else south of the Darling river except the new county of Auckland (Twofold Bay) and the three counties of Port Phillip — Bourke, Grant, and Normanby. To check these unauthorised settlements, and to provide some system of government for these outlying districts, the then Governor of New South Wales had, in the year 1833, procured the passing of the "Act for protecting the Crown Lands of this Colony from Encroachment, Intrusion, and Trespass," ^ previously alluded to, which was followed up by an Act of the year 1836,^ making it penal to occupy any Crown lands in New South Wales beyond the limits of location,^ except under a proper Government license. The last reference points to the fact that by this time Government had realised the impossibility of putting a stop entirely to the process of squatting, and had determined to be content with regulating it. Whilst it still asserted the absolute right of the Crown, as of any other landowner, to treat the squatters as trespassers, it practically conceded to any applicant, for a small fee, permission to make a limited use of the Crown land. The whole matter was regulated anew by the important statute 2 Vic. No. 27 (N. S. W.), and a definite scheme projected for the regulation of the squatting interests. By this Act the penalty for unlicensed occupation of Crown lands beyond the limits was placed on precisely the same footing as for a similar trespass within the boundaries. The powers of the Commissioners of Crown Lands were amplified, and a system of adjudication upon disputed points settled. Then came a very important clause requiring all licensees to report full particulars of the breed and owner- ship of the stock maintained by them, and another, still more important, directing that the Crown land beyond the limits of location should be divided into districts, each under the control of a commissioner (who was also a justice of the peace) with a force of armed and mounted " Border Police." The Commis- 1 4 Will. IV. No. 10 (N. S. W.) => 7 WiU. IV. No. 4 (N. S. W.) ^ The "limits of location" at this time coincided with the extreme bonnd- aries of the proclaimed counties. This seems to have been the sole function performed by the counties. Cf. Sess. Papers (H. of L.), 1841, vol. v. p. 4. 46 THE LAND SYSTEM OF PORT PHILLIP part i sioner was given very wide powers of government, directed especially towards the regulation of the boundaries of runs and the prevention of encroachments, the settlement of disputes between masters and servants, the prohibition of cattle-stealing, and the impounding of strayed beasts. The Commissioners were to keep a register of all persons employed on stations, and of the returns of stock previously mentioned. The Act also imposed a stock-tax or assessment upon the sheep, cattle, and horses of the squatters, leviable, if necessary, by distress, the proceeds of the tax to be appropriated towards the expenses of the maintenance of the Commissioners and the Border Police. Students of property law will see in this Act a notable illustra- tion of the doctrine that the early law of possession is inti- mately bound up with police regulations, being, in fact, simply the result of protection from violence. For our immediate purpose, it is necessary to see how the policy of the Act was carried into effect. On the 21st May 1836, shortly before the Act came into operation, Eegulations for the granting of licenses to occupy Crown land were published by the Government.^ It was announced that licenses would be granted for one year from the 1st July then next, renewable on their expiry, upon a recommendation of the Commissioner of the district. No limits of occupation were to be defined by the licenses,^ which were, in fact, mere personal permissions (though transferable with the acquiescence of the Commissioners) to depasture stock, and did not give any title to land at all. For each license a fee of £10 was to be paid, and a license only allowed the holder to depasture stock in the district for which it was given. It was expressly notified that all improvements on licensed lands would be at the improver's risk, such lands being liable to be put up for sale upon the extension of the limits of location. At the same time a proclamation ^ divided the colony of New South Wales into nine pastoral districts, in pursuance of the Act, and among these was the Port Phillip District, including " the whole of the lands comprised in the district lying to the 1 Copy in H. of L. Sess. Papers, 1845, vol. vi. pt. i. p. 402, Oov. Gaz. (N. S. W.), 22d May 1839 (Chief Secretary's office), and Votes and Proceedings, 1847 (1), p. 687. 2 See form in H. of L. Sess. Papers, 1845, vol. vi. pt. i. p. 404. 3 Ibid. p. 398. CHAP. V SUMMARY OF THE LAND QUESTION 47 south of the main range, between the rivers Ovens and Goulburn, and adjacent to Port Phillip." This District was, by another Order published on the 1st July 1840,^ subdivided into the Westernport and Portland Bay Districts, the former comprising the lands lying east, and the latter those lying west of the Werribee Eiver. It must also be noticed that the leasing system for lands within the boundaries, having been found in- convenient, had been abandoned in favour of the license system by Eegulations of the 21st August 1841,^ so that the license system and the squatting interest may now be regarded as co- terminous. This brings the Land Question down to the close of the period we are now discussing. The extent to which the license system has been adopted may be guessed from the report of Sir George Gipps previously alluded to. The whole question of Crown lands will come up again in the next period, and it wiU be necessary to bear in mind the conditions under which it appears. There are two great classes of land- holders. One class consists of purchasers, who have either bought their lands by auction under the Eegulations of 1831, or, in Port Phillip, at a fixed price of £1 an acre under the Eegulations of 1840. The other consists of the squatters, some of whom hold land by lease within the boundaries of location, but the greater part of whom are mere licensees, living beyond the limits of settlement, having no definite holdings, but only vague " runs," with no security for improvements, practically outside the ordinary influence of government, but under the special control of a quasi-military force ; the great political features in their horizons being the stock-tax and the Border Police. 1 Gov. Gaz. (ISr. S. W.), 1st July 1840. 2 Votes and Proceedings, 1847 (1), p. 782. CHAPTEE VI EAELY INSTITUTIONS OF POET PHILLIP The number and character of the institutions of a country are a very fair test of its capacity for self-government. Institu- tions require a co-operation amongst the members of a com- munity, and an adaptability to the methods of united action, which are the first requisites of a stable political system. The strength of a Constitution which has grown, as distinguished from a Constitution which has been made, lies in the fact that the former has been produced by the gradual coalescence of independent and familiar institutions, which have contributed each its share toyvards the fabric of government. In studying, therefore, the Constitutional history of a community, especially in its earlier stages, it is important to glance at its early institutions. Almost the first indigenous institution of Port PhiUip was the Melbourne market. The .3 Vic. No. 19 (N.S. W.) directed the police magistrate of any town in the colony, upon the application of 2 5 free-householders of the town, to caU and preside over a public meeting of the inhabitants to consider the advisability of establishing a market. Upon receipt of a favourable resolution, the Governor, with the advice of his executive council, might approve the establishment. There- upon Commissioners to manage the market were to be elected by occupying householders of the annual value of £20, and proprietors (whether resident or not) of land or buildings to the value of £200, from among the proprietors of land and householders within the limits of the town. These Commis- sioners were to hold office for three years, and were empowered to erect market-houses, to pass by-laws, and to levy toUs and CHAP. VI THE MELBOURNE MARKET 49 dues within certain limits. After the opening of such market all other open sale within the town was to cease. The Com- missioners were empowered to enforce their by-laws by the im- position of fines, and to enforce such fines, as well as their tolls and dues, by distress and imprisonment. Their inspectors were empowered to seize food exposed for sale in an unfit condition. The Commissioners were further empowered to farm out the market dues for any period not exceeding one year, and to borrow limited sums of money upon the same security. In pursuance of the provisions of this statute, a meeting was held in Melbourne on 21st January 1841, at which a resolution in favour of the establishment of a Melbourne market was agreed to.^ In due course the resolution was reported to the Governor, and a market with Commissioners established. In some countries the gatherings of the inhabit- ants on market-days have been the origin of the popular element in the government. In Eome they developed into a sovereign assembly. In England they are closely bound up with the early history of popular politics and self-government. But, owing to the peculiar circumstances under which Port Phillip was founded, by settlers already familiar, by tradition at least, with more advanced forms of popular government, the market of Melbourne never acquired any political importance. It soon in fact ceased to have a separate existence, being absorbed into the greater institution of the Corporation of Melbourne.^ We may next notice the local branch of the Supreme Court of New South Wales established at Port Phillip. It will be remembered that the Supreme Court had been constituted under the 4 Geo. IV. c. 96, by royal charter dated 13th October 1823.^ It will also be remembered that courts for the trial of petty offences and for the hearing of small civil cases, Courts of Quarter-Sessions and of Eequests respectively, had been established at Port Phillip in 1838 and 1839.* AVhat was afterwards required, as the settlement grew in im- portance, was the presence of a judge qualified to try heavier cases, and thus to obviate the necessity of sending litigants, • Cf. account in Fort Phillip Patriot, 25th January 1841. " By the 71st and 72d sections of the 6 Vic. No. 7. ' Ante, p. 12. * AnU, pp. 29 and 30. E so EARLY INSTITUTIONS OF PORT PHILLIP parti prisoners, and witnesses a long sea journey to Sydney. This object was accomplished by the 4 Vic. No. 22 (K S. W.), which empowered the Governor to appoint two additional judges of the Supreme Court, for New Zealand and Port Phillip respect- ively, with powers limited in exercise to those localities, but otherwise equivalent to the powers of the other members of the Supreme Court. Matters, however, which by the existing law were required to be heard by the Pull Court, whether arising in the new districts or not, were stiU to be subject to review at Sydney, and the new District Judges were not to be entitled to take part in such sittings. The Governor was empowered to appoint deputy-sheriffs and ministerial officers for the Districts, upon the advice of the respective judges, and also, pending the institution of grand juries, to appoint Public Prosecutors, and Quarter-Sessions prosecutors, in whose names offences might be prosecuted in the districts. He was also empowered to direct Circuit Courts to be holden throughout the colony before single judges of the Supreme Court, in the English fashion. Writs of execution and subpoena of the Supreme Court, wherever issued, were to be available through- out the colony ; but where a judge might previously have ordered an arrest on mesne process upon an affidavit of an intended departure beyond the jurisdiction, he was now, if resident at Sydney, empowered to make the order upon evidence of an intention to depart to Port Phillip or New Zealand, and mce versd. One week after the passing of this Act was passed another statute,^ which boldly applied the jury system to Port Phillip, by providing that all crimes and misdemeanours, and all civil issues of fact, whether heard in the Supreme Court or a court of Quarter-Sessions, should be tried by a jury of twelve in- habitants of the district, qualified in manner provided by the Act.^ Under these statutes, at the beginning of the year 1841,' 1 4 Vic. No. 28. '' These qualifications were — (a) For common jurors. Males between 21 and 60 years of age, having a clear income of £30 from real estate, or £300 clear personalty (adopted from 2 Will. IV. No. 3). (J) For special jurors. Persons qualified as common jurors, and registered as esquii-es or persons of higher degree, as justices of the peace, or as merchants. 2 Fort Phillip Patriot, 28th January 1841. CHAP. VI THE REGISTRY OF DEEDS 51 Mr. Justice Willis was appointed first District Judge for Port PhiUip of the Supreme Court of New South Wales. In the same year the statutes were amended by another Act,^ which authorised the Governor to appoint, instead of circuit towns, circuit districts, in the courts whereof civH issues were only to he triable by juries when the Supreme Court should so specially direct. The Act also empowered the Governor to appoint district sheriffs for the circuit districts. In the year 1843 occurred the removal of Mr. Justice Willis. Thirdly, we may notice the Eegistry of Deeds, established at Port Phillip under the 5 Vic. No. 21, iu imitation of the earlier registry established at Sydney under the 6 Geo. IV. No. 22. The system of Crown grants of course secured to the original grantee of land the best possible evidence of his original title ; bat in order to complete the security of landowners, it was necessary to make some provision for the record of transfers. The name of Colonel Torrens is inseparably connected with the system of registration of land titles in British territory, although the principle had been tried before his day, in a tentative fashion, in the counties of Middlesex and Yorkshire. The Middlesex and Yorkshire registries, partly owing to the limited areas which they cover, partly owing to the deficiencies of the statutes creating them, and partly owing to the conservative jealousy of English landowners and lawyers, have had but very partial success ; whilst all attempts to extend the system in England have been failures.^ Colonel Torrens was, however, happy in living at a time when his plans could be tried on a magnificent scale in the great new countries then being opened up.^ The Act which constituted the Port PhUlip Eegistry of Deeds did not, unhappily, make registration essential to the validity of instruments, but it provided that all Crown grants and all instruments except leases for a period less than- three years, already or thereafter to be executed, should be enrolled 1 5 Vio. No. 4 (N. S. W.) " E.g. by the Land Registry Act, 1862 (25 & 26 Vic. 0. 53), and the Land Transfer Act, 1875 (38 & 39 Vio. c. 87). * In speaking of Colonel Torrens as the introducer of the Land Registry system, I am, of course, only following current report. There is nothing new under the sun ; and it is q^uite possible that careful investigation might trace the system from Australia to the Cape, from the Cape to Holland, and from HoUand to Roman provincial administration. 52 EARLY INSTITUTIONS OF PORT PHILLIP parti or registered, and that priority of registration (with certain exceptions) should absolutely determine priority of claim. Finally, we may notice that which was undoubtedly the most important of all the early institutions of Port PhUlip, the Corporation of Melbourne, to which, as the parent of municipal institutions in Victoria, we owe careful attention. The Corporation of Melbourne was constituted three weeks after the incorporation of the city of Sydney,^ by the N. S. W. Act, 6 Vic. ISTo. 7. For the purposes of the Act the area of the town of Melbourne was to consist of the parish of North Melbourne and the suburb of Newtown or CoUingwood, divided into four wards by imaginary lines drawn down the centres of Bourke Street and Elizabeth Street respectively, and produced to the boundaries.^ These four wards were to be known as the North-East or Gipps ward, the North-West or Bourke ward, the South-East or La Trobe ward, and the South-West or Lons- dale ward, and were to be properly marked off within six months by the mayor, who was also, in company with the town clerk, to "perambulate the metes and bounds'' every three years, and to note any changes of boundary names in the Boundary Book.^ The official style of the incorporated town was to be " The Mayor, Aldermen, Councillors, and Burgesses of the Town of Melbourne," and by that style it was to be capable of acting (in the prescribed manner) as a legal persojiality, suing and being sued, acquiring and alienating property, and having perpetual succession.* Of the component parts of the cor- poration, the burgesses were not, as a rule, to take a direct share in the government of the town, which was placed almost' 1 By the 6 Vic. No. 3 (N. S. W.) 2 See exact description in Schedule A to 6 Vio. No. 7. These boundaries were extended by the 8 Vio. No. 12. ^ The "beating of the bounds " (as it is popularly called) is one of the most ancient customs surviving in England at the present day. The boundary of a London parish passes through one of the rooms at the Guildhall, in which, on the occasion of the Loudon sittings, a Nisi Prius Court is held. Great is the glee of the boys engaged to do the actual beating, if they can time their arrival so as to compel his lordship to vacate the judicial bench in order that it may be "beaten." ^ The first two of these q^ualities distinguish a corporation from a mere casual collection of human beings, the last distinguishes it from all individuals. A corporation has "successors," not "heirs" or "executors," and may never die. Hence the old doctrines of Mortmain. CHAP. VI THE CORPORATION OF MELBOURNE 53 entirely in the hands of the mayor, aldermen, and council. Thus we get two phases of the corporation — a passive and an active. Let us consider the hurgesses first. By the 12 th section of the Act every male person of fuU age who has for one year^ previous to any 31st of August occupied any house, warehouse, counting-house, or shop within the town, of the clear annual value of £25,^ has for the same period been an inhahitant householder^ within the town or within seven miles thereof, and has paid all the corporation rates due from him in respect of the premises which he so occupies up to six months before the same date, is entitled to be enrolled on the burgess-roll of the town. The disqualifica- tions are — 1. The fact that the applicant is an alien. 2. The fact that within, the year he has received eleemosynary relief. 3. The fact that he has had any child admitted to any school for orphan* or destitute children in the colony or its dependencies during the previous three years. But in order to complete his title to burgess privileges, the claimant must secure enrolment. Every year, on or before the 31st August, "collectors" are to be appointed by the mayor for each ward, and the collectors are, on the 5th September following, to deliver to the town clerk alphabetical lists of the persons entitled to be enrolled as burgesses in their respective wards. These lists are to be open to inspection until the 15th September, up to which time any objections may be handed in to the town clerk ; and such objections are to be adjudicated upon in each ward by the alderman and by two assessors elected on the previous 1st March, according *to the provisions of the Act.^ So much for the constituent body of the corporation. Now we come to deal with its government. This again may be conveniently subdivided into two parts ; the one comprising the supreme government, actually forming part of the constitu- tion, the mayor, aldermen, and councillors, the other comprising 1 Reduced tio six months by 8 Vic. No. 12. 2 Reduced to je20 by the 8 Vic. No. 12, and to £10 by the 16 Vie. Ko. 18. ' The differences between occupancy, inhabitancy (or residence), and house- holding must be carefully noted. They are of great importance in a, municipal system. * It is a little difiicult to see how such a child would qualify for an " orphan " school. = § 33. 54 EARLY INSTITUTIONS OF PORT PHILLIP parti the executive officials only, some of whom are expressly con- templated by the Act of Incorporation, the rest being merely ministerial, but all being alike in this, that they form no in- tegral part of the corporation, unless qualified on other grounds. Of the first part, the most numerous section are the councillors, who by the Act are required to be seized or possessed of real or personal estate, or both,^ to the amount of £1000, either iq their own right or that of their wives, or to be rated on an annual value of £50, and to be entitled to be on the burgess list. The disqualifications for the office are as follows — 1. The fact of being in holy orders, or being a regular minister of any religions congregation. 2. The fact of holding any office (save that of mayor) in the gift of the council. 3. The fact of having a direct or indirect share in any contract or employment with, by, or on behalf of the council. 4i The fact of being a town "assessor," a judge, chairman, officer, or clerk of any court of justice, or a ministerial law officer of the Crown.^ , The councillors are to be elected by the burgesses, three councillors for each ward. Each enrolled burgess is to have as many votes as there are vacancies, but no cumulative voting is to be allowed, and no burgess may vote in more than one ward. The voting is to be open, in writing. The elections are to take place on the 1st November in each year, before the aldermen and assessors ; and the councillors chosen are to sit for three years, going out in rotation, so that one seat for each ward must fall vacant every 1st November. A retiring councillor may, however, be re-elected.^ The council is practically the governing body of the cor- poration. The court of aldermen is mainly executive, and the mayor has no veto on the acts of the council. To the latter body belong the power of legislation (the making of by-laws) and the appointment and superintendence of the executive.* By the provisions of the Act there are to be four alder- men, qualified as and elected by the councillors, but not neces- ^ It will be noticed that the Act does not prescribe any particular situation for the qualifying property. 2 § 49. Added to by 27 Vic. No. 178, § 33 ; of. post, p. 61. = §§ 24-28. * §§ 91, 65. As to the regulation of the elections, cf. 27 Vie. No. 178. CHAP. VI THE CORPORATION OF MELBOURNE 55 sarily members of the council. The election is to take place on the 9 th Novemher in every third year, when the two senior aldermen retire, but are eligible for re-election. The voting is to be open, as in the election of councillors, but no councillor may vote for himseE^ The disqualifications for the post of alderman are the same as those for the office of councillor,^ and the fact of election as alderman does not vacate a councillorship.^ The governing body is completed by the election of the mayor, immediately after the election of aldermen, also by the councillors, each of whom has one vote, which he exercises openly in writing. No councillor may vote for himself. The elected mayor must be either a councillor or an alderman, he holds his office for one year, is eligible for re-election with his own consent, and, if a councillor, holds his seat on the council till the 1st November after the expiry of his mayoralty.* The chief function of the mayor is, of course, to preside over the meetings of the council. He is the first man in civic affairs, and by the Act is given a general precedence after members of the Legislative Council.* But the Act gives him also other special functions. It constitutes a separate commission of the peace for the town of Melbourne, with such additional area as the Governor shall approve,^ and appoints the mayor ex officio a justice during his year of office and the following year.' In this capacity, with one or more other justices for the town, he is also authorised to appoint special constables, paid from the town fund.^ But besides these constitutional officials, provision is made for others, some elective, some appointed by the council. Of the former, the chief are the assessors and the auditors ; of the latter, the town clerk, the treasurer, and the surveyor. The assessors, two for each ward, are to be elected on the 1st March in each year, from among the burgesses qualified for election as councillors, in the same manner as the councillors. But no ' §§ 24-28. ^ § 49 ; ante, p. 54, and post, p. 61. ' On the other hand, it may prolong it. An alderman retains his seat on the council tiU the 1st November after his office of alderman expires. * §§ 46-48. ^ % 62. ' I 62 }• '^^^ sections are repealed by 28 Yic. No. 267, § 2 ; cf. 'post, p. 61. 8 §69. 56 EARLY INSTITUTIONS OF PORT PHILLIP parti person who is actually a member of the council, or who is town clerk or town treasurer, can be elected.^ The duties of the assessors are mainly to assist the alderman of the ward in the conduct of elections and the decision of disputed points.^ The auditors (two for the whole town) are elected at the same time, in the same way, from amongst persons of similar qualifications. They too hold office for a year, but are eligible for re-election.' The duties of the auditors are, briefly, to inspect and check the accounts of the corporate funds.* The assessors and auditors, although not part of the corporate constitution, are in many respects like the constitutional officials. Like the mayor, aldermen, and councillors, they are liable to a fine if they decline to serve when elected, unless they can claim exemption on one of the following grounds — 1. Lunacy, imbecility of mind, deafness, blindness, or other per- manent infirmity of body. 2. Age greater than 65 years. 3. Previous service (or payment of fine) in the same of&ce during the preceding five years. 4. Membership of the civil service. 5. Being a full pay ofiicer in the service of the Crown or the East India Company.^ Like them, they must accept office by taking the oath of allegiance and signing a declaration embodying their qualifica- tions.® Like them, they forfeit their office on the happening of any one of the following conditions — 1. Bankruptcy, insolvency, or composition with creditors. 2. Absence for more than six calendar months (in the case of the mayor, two months) from the town, except on the ground of illness. [If an official forfeits his post through absence, he must pay the fine.] ^ The town clerk is appointed to hold office during pleasure, and is practically the secretary of the corporation, though, as the corporation has no recorder, he probably acts as recorder also, but, of course, has no judicial power. He must be an attorney of the Supreme Court of New South Wales, the District Court of Port Phillip, or one of the superior courts of Great Britain or Ireland.* The duties of the treasurer (an annual official) and the surveyor appear from their titles. The treasurer is specially forbidden by the Act to pay money except for the 1 § 33. " §§ 28 and 17. » § 34. « § 95. ^ § 54. 6 §§ 53, 54. ' § 57. 8 § 65. CHAP. VI THE CORPORATION OF MELBOURNE 57 purposes contemplated by the Act, or upon the order of the council, signed by three members and countersigned by the town clerk.^ The town clerk and the treasurer may not be members of the council, and their offices may not be united in the same person. The council may appoint^ any other officials whom it deems necessary, but their offices, like those of the town clerk, treasurer, and surveyor, are purely ministerial ; they themselves are removable by the councU, and their offices may be discontinued if deemed unnecessary.^ The methods of doing business prescribed by the Act are very simple, much, naturally, being left to the discretion of the corporation itself. The council is bound to meet for general business on the 9th of November, February, May, and August respectively, and at such other times as the mayor shall decide. Eight members of council may at any time insist on a meeting being summoned ; but on all occasions except the quarterly meetings, only such business can be transacted as has been mentioned on the notice paper. For all purposes, except the passing of by-laws, a quorum of the council is to consist of one-third of the full membership, and questions are to be decided by a majority of those present, the mayor, or other pre- siding officer,* to have a casting vote.^ The council may appoint committees of itself for general or special objects, but the acts of a committee must receive the approval of the council.^ The council must print and publish annually their audited accounts.'^ The actual powers and duties conferred on the corporation are interesting, as showing the views of the legislators of 1842. They may be divided into two classes, those which are of an instrumental character, and those which are the ultimate objects of the corporation's labours. Amongst the first class, the financial provisions are very important. There is to be a "Town Fund," into which all receipts from general sources, such as market rents and tolls, fines and penalties, and town rates, are to be paid by the treasurer, and from which all payments for general purposes are M 97. " § 97. ' § 65. * If the mayor is absent the oounoillors must choose one of the aldermen present as chairman. If no alderman is present, then one of themselves. ^ § 93. ^ § 94. The principal committees usually appointed are — Public Works, Health and Parks and Gardens, Finance, Market, Legislative, Hackney Carriages. ' §67. 58 EARLY INSTITUTIONS OF PORT PHILLIP parti to be made. To supplement the receipts of the Town Fund, the corporation may levy an annual rate by a by-law upon the buildings within the town, to an amount not exceeding one shilling in the pound annual value,^ such rate to be enforceable first against the occupier, and, failing him, against the landlord. Buildings which do not qualify their occupiers for enrolment as burgesses are to be exempted,^ and an appeal against any rate is to lie to the next Quarter-Sessions, whose decision is to be final.^ Moreover, the council are empowered to levy a special Police Eate, not exceeding sixpence in the pound, for the maintenance of the Town Police, and the proceeds of this rate are to be kept by the treasurer as a special Police Eund.* The council is also authorised to borrow money on the credit of the corporation, to an extent not exceeding altogether the amount of five years' average income, exclusive of the Police Eate, but Government aid is not to be pledged for such loans.^ To enable it to perform its principal duties, the council is also authorised to make by-laws for the regulation of its own proceedings, for the conduct of the various elections connected with it, for the good rule and government of the town, and for the suppression of nuisances.^ These by-laws may impose fines to the amount of ten pounds each, but two-thirds of the council must be present on the occasion of passing any by-law, and no by-law can come into force until it has been submitted to the Government for forty days without disapproval, and until a copy has been published for one week in a local newspaper.' The ultimate objects of the corporation powers may be gathered from the enumeration of its instrumental powers. They are to secure the good government of the town and the suppression of nuisances. But, especially, the corporation is empowered to undertake certain specific duties. It is to take over the business of the Market Commissioners.^ It is to undertake the lighting of the town, and for that purpose to levy a " Lighting Eate," not exceeding fourpence in the pound, ^ This restriction was removed, by 17 Vic. No. 23. ^ This provision was altered by the 8 Vie. No. 12 and the 11 Vic. No. 17, but the result is much the same to the occupier. ' § 67. " § 70. As to the fate of this provision, cf. post, p. 60. ° § 98. These powers were largely increased by the 17 Vic. No. 13, etc. ' A long list of these is given in the Act. ' § 91. 8 §§ 71 and 72. CHAP. VI SOURCE OF THE SCHEME 59 on the value of "tenements and other property" within the town and the lighting area, and liable to the other rates.^ It is to undertake the making and repair of the streets,^ and the making and management of the drains and sewers.^ It is empowered to construct waterworks and supply water, but no one is to be compelled to take the corporation water.* Finally, any offence against the Act, or against any corpora- tion by-law, may be enforced in a summary way before a justice of the peace, who, in default of payment of the pre- scribed penalty, may imprison the offender for a period not exceeding three months. In cases involving payment of more than iive pounds, there is to be an appeal to Quarter-Sessions.^ A very slight acquaiatance with the history of municipal government in England will convince any one of the source from which the provisions of the Melbourne Corporation Act were derived. After being for many centuries in a state of hopeless anomaly and confusion, the municipal corporations of England were at length placed upon an uniform and orderly footing by the great Municipal Keform Act of 1835 (5 & 6 Will. IV. c. 76), passed by that Eeformed Parliament the appear- ance of which had been so long delayed by the reactionary influence of the borough -system itself It was one of the signal revenges of history, but we are here only concerned with its special influence on Melbourne. The resemblances between the Imperial Act of 1835 and the Melbourne Corporation Act are too striking to escape notice. They may be tabulated thus — 1. Style and qualifications of governing body (§§ 24, 25).'^ 2. Requirement of seven-mile limit of residence (§ 9). 3. Mode of making up and revising Burgess Roll (§§ 18, 22, 23). 4. Form of questions at elections (§ 34). 5. Duties of auditors and other oflioials (§ 37). 6. Relation of executive officials to the council (§§ 58-60). 7. Compulsory character of miinicipal office (§ 51). 8. Disqualifications for office (§§ 52-56). 9. Position of mayor as justice for the borough (§ 57). 10. Appointment by him of special constables (§ 83). 11. Process of summoning meetings of council, and proceedings thereat (§ 69). ' §§ 74-79. = §§ 80-85. ' § 86. See, .for additional powers under this head, 16 Vic. No. 38 (Vic.) * §§ 87-90. = §§ 100-107. , " These references are to the sections of the English Act. 6o EARLY INSTITUTIONS OF PORT PHILLIP part i 12. Lighting powers (§ 88). 13. Process of making by-laws (§ 90). 14. Provision for borough fund and rate, with appeal to Quarter Sessions (§ 90-93). The main differences between the two systems are easily accounted for by the differences between English and colonial history. They are as follows — 1. In the English Act the municipal franchise belongs to all house- holders (§ 9). In Melbourne it was confined to £25 resident occupiers. This is easily accounted for by the recent agitation in England, and by the ancient theory of " scot and lot." 2. In the English Act the appointment of ordinary constables is vested in the mayor and Watch Committee (§ 76). Police had always been a local matter in England, in New South Wales it was one of the chief concerns of the central government, and, as we shall see, even the local powers given by the Melbourne Act were held in abeyance. 3. The English Act provides for the continuance (§§ 118-123) of the ancient borough courts. There never had been any corresponding institutions in New South Wales. 4. By the Melbourne Act far wider scope is given to the corporation than in England, in the matters of a. Sewers. 6. Streets. c. Water-supply. d. Markets. These matters in England were already in the hands of independent bodies or individuals, some of them of great antiquity. The Melbourne Corporation Act was supplemented in the same year by a Money Act (6 Vic. No. 8, N. S. W.), appro- priating the fees taken in the Melbourne police office to the corporation Police Eate, and empowering the Governor to set aside annually, out of the general revenue of the colony, a sum not exceeding £1500 to match an equal sum to be raised by the corporation for the Police Eate, and a sum not exceeding £2000 to match an equal amount to be raised for the Town Fund. The Police Eate must have been levied by the corpora- tion for at least a year, for the 9 Vic. No. 19 (N. S. W.) directs that a surplus in the Police Fund for the munici- pal year ending 1st November 1844 shall be paid over to the credit of the Town Fund, but the police powers, after being annually suspended from the year 1845 to the year 1852,^ 1 statutes 8 Vic. No. 11, 9 Vic. No. 17, 10 Vic. No. 5, 11 Vic. Nos. 6 & 51, 13 Vic. No. 23, 14 Vic. No. 21, and 15 Vic. No. 2. CHAP. VI ALTERATIONS IN THE ORIGINAL ACT 6i seem never to have been acted upon since the introduction of separate government.^ The sections of the Incorporation Act providing for a separate commission of the peace for Melbourne, and the appointment of constables^ were repealed, except as to the precedence of the mayor, by the Local Govern- ment Act of 1865, which constituted the mayor ex officio a justice of the peace " for Victoria," but restrained him from sitting except within the corporation limits.^ This provision was further altered by the 51 Vic. No. 953, which constitutes him * a justice for every bailiwick in which any part of the city area is included. Several minor alterations have also been made in the con- stitution and powers of the corporation. By letters-patent of 25th June 1848 the town of Melbourne was converted into a city, and thereupon took ^ for its corporate title " The Mayor, Aldermen, Councillors, and Citizens of the City of Melbourne." Additional wards and aldermen were constituted by proclamation in 1856 and 1869, the boundaries of the town having been pre- viously extended by the 8 Vic. No. 12. The control of the corporation over hackney-carriages was extended to a radius of eight miles by the 14 Vic. No. 3, and its powers in the matter of drainage increased by the 16 Vic. No. 38,^ but its powers with regard to the construction of waterworks and supply of water were abolished by the Public Works Statute 1865.'^ By the 27 Vic. No. 178^ the following disqualifications for the office of councillor or alderman were added — 1. Attaint of treason or conviction of felony or any other infamous offence. 2. Personation or procuring of personation at any municipal election. By the 49 Vic. No. 567^ the election of councillors for Melbourne is placed on the same footing as those of boroughs and shires under the Local Government Act 1874.^" The * During the recent strike, the Mayor of Melbourne enrolled a number of "special " constables. But their services were given gratuitously. 2 §§ 62-64. = 28 Vic. No. 267, §§ 2 & 6. * § 14. ^ Under the 13 Vic. No. 14. ^ Cf. also the 16 Vic. No. 39, incorporating the " Commissioners of Sewers and Water Supply," and making the mayor of Melbourne ea; officio a member. ' 29 Vic. No. 289. ^ § 33. 9 § 6 (repealing 11 Vic. No. 17, § 2, and 27 Vic. No. 178, § 3). 1° 38 Vic. No. 506. 62 EARLY INSTITUTIONS OF PORT PHILLIP parti scheme of incorporation was extended to the town of Geelong in the year 1850 by the 13 Vic. No. 40, and most of the alterations in the Melbourne scheme include that of Geelong also. The importance of the corporation of Melbourne in Victorian history has been great. It is by far the oldest surviving institution of any magnitude. Created on a very- advanced model at a time when everything around it was in a most primitive condition, it must have exercised a great effect on the political ideas of the community. Its existence served emphatically to affirm the principle that Victoria is a country developed through the towns. The practical success of the corporation of Melbourne would contrast markedly with the failure of the ambitious Local Government scheme of 1842, and on that account would serve as a model for future efforts. There can be little doubt that the predominance of town-life in Victoria is pregnant with the germs of grave social danger, but it is easy to see how that predominance has arisen. CHAPTER VII GENERAL CONDITION OF POET PHILLIP IN 1842 This book does not profess to give a general history of Victoria. It deals only with the history of government. Nevertheless, to prevent our study being too abstract, we shall do well to glance occasionally at the general condition of the colony. And this course will also enable us to form some estimate of the merits of the scheme of government for the time being. Political machinery is largely a matter of accordance with environment. From the estimates submitted by the Governor to the Legislative Council of New South Wales in the year 1842,^ we find that the official staff at Port Phillip then consisted of the following functionaries — 1. The Superintendent (with clerks and messengers). 2. The Sub-Treasurer (with clerks and messengers). 3. The Customs staff (two sub-collectors at Melbourne and Portland, one landing-surveyor, two landing-waiters, three clerks, two lockers, one coast-waiter and five tide-waiters, a revenue cutter, and four Customs boats at Melbourne, WilUamstown, Geelong, and Portland). 4. The Postmaster and staff (the latter consisting of two clerks and two letter-carriers). 6. The survey staff (including two surveyors, five assistant-surveyors, and two draftsmen). 6. The Clerk of Public Works and four overseers. 7. The ecclesiastical staff ^ (one clergyman of the Church of England, two Presbyterian ministers, one Wesleyan minister, and one Roman Catholic clergyman). 8'. The medical staffs (two assistant-surgeons). 9. The judicial and legal staff, consisting of — a. The Resident Judge. ' To be found in Votes and Proceedings (N. S. W.), 1842, p. 345. ^ At this time maintained by the central government. 64 CONDITION OF PORT PHILLIP IN 1842 part i h. The Clerk of tlie Crown. c. Tlie Crown Solicitor and Clerk of the Peace. d. The Deputy- Registrar. e. The Deputy-Sheriff /. Two Commissioners of Bequests (Melbourne and Geelong). g. The Coroner. h. Subordinate officials. 10. Police establishments : — a. Melbourne. (In hands of corporation, under 6 Vie. No 7.) 6. Williamstown. (Watch-house keeper and two constables.) c. Geelong. (Police magistrate, clerk, chief constable, district constable, two watch-house keepers, five ordinary constables, and scourger.) A. Portland, (do.) e. The Grange. (Police magistrate, district and ordinary con- stable.) /. Port Fairy, (do.) g. Grampians and Pyrenees, (do.) A. Goulburn or Broken River, (do.) i. Water Police. (Superintendent, clerk, inspector, four constables, two coxswains, and crew of six men.) j. Mounted Police. (Two sergeants, two corporals, eighteen mounted and two dismounted troopers.) fc. Border Police.^ (Four Commissioners,^ two sergeants, two constables, and four corporals.) I. Native Police. (Superintendent, assistant, and sergeant.) 11. The Gaol. (Gaoler, clerk, three turnkeys, and messenger.) The estimated total cost of these establishments at Port Phillip for the year 1843 was £74,237 : 16 : 3, which included the sums to be granted to the corporation of Melbourne in aid of the Police Bate and Town Fund.^ Of this total sum £1 6,0 (odd) was appropriated to the police establishments, about £5000 to the administration of justice, and about £1700 to the gaol, making a sum of about £23,000, or nearly one-third of the total expenses of Port Phillip, to be spent upon the maintenance of order and the settlement of disputes. The estimates for 1843 were far less than the actual expenditure of 1842, which had amounted to £85,000.* 1 Under the 2 Vic. No. 27 (cf. wrde, p. 46), amended by the 5 Vic. No. 1. 2 Two of these were only occasional. 3 Under the 6 Vic. No 7, ante. * These and the following figures are from the returns submitted by the governor on the 22d August 1843 to the Legislative Council, hi pursuance of an Address of the 17th August previous. (See Votes and Proceedings (N. S. W. ), 1842, p. 461.) CHAP. VII GENERAL STATISTICS 65 Against these expenses the revenue from all sources for the same year (1842), except the great source of the sale of Crown lands, had been something over £84,000, or a deficit of about £1000 on the expenditure. On the other hand, in the year 1841 the revenue had considerably exceeded the expenses. On the whole, however, from its foundation in 1836 to the 24th April 1843 the settlement cost about £32,000 above its ordinary revenue. But this deficiency was counterbalanced by the fact that the proceeds of the sale of Port Phillip lands during the same period had amounted to very nearly £400,000,^ of which only about £200,000 had been spent in assisting emigration to the settlement, whilst its public works had been provided for by the ordinary expenditure. Thus the community starts on its second period of existence with a balance of nearly £200,000 to its credit. Passing beyond the statistics of government, we find that at the close of the year 1842 the population of Port Phillip District amounted to 23,799,^ of whom 15,691 were males and 8108 females, while of the total number about 5000^ were dispersed in the sc[uatting districts beyond the boundaries of location, principally in the districts of Monaroo, Murray, Western Port, and Murrumbidgee (which was then included in Port Phillip). The only counties proclaimed were those of Bourke, Grant, Normanby, and Auckland, the latter now belonging to New South Wales. The amount of Crown lands which had been alienated was 226,632 acres,* but of this only 8124 acres were under cultivation. Of the cultivated area 2432 acres were in wheat, yielding 55,360 bushels ; about the same quantity in oats, yielding 66,100 bushels; 761 acres in barley, yielding 20,025 bushels; 68 acres in maize, yielding 1360 bushels; and 1419 acres in potatoes, yielding just 6000 tons. The remainder grew hay, producing 2300 tons. The ' Votes and Proceedings (N. S. W.), 1843, p. 463. ' The following figures (unless otherwise stated) are taken from the Victorian Year-Book 1886-87, by the Victorian government statist, Mr. H. H. Hayter, C.M.G. ' Cf. map of squatting districts, Sess. Papers (H. of Lords), 1845, vol. vi. pt. i. p. 398. * Most of this appears to have been in the Barrabool country, on the Yarrow and Moorarbool rivers, and north of Melbourne, on the Yarra, and the Merri and Darebin creeks. Cf. map in Sessional Papers (H. L.), 1841, vol. v. F 66 CONDITION OF PORT PHILLIP IN 1842 part i year 1841 had grown 1440 cwt. of tobacco, but the experi- ment seems to have been given up in 1842. The community possessed about a million and a half head of live stock, divided thus: horses, 4605,^ cattle, 100,792, pigs, 3041, and sheep, 1,404,333. Of this stock by far the largest portion, amounting to 1,300,000 head, were in the squatting districts.^ The shipping in the ports during the year 1842 had been about 230 vessels, with a gross tonnage of about 40,000. The exports for the year had amounted to the value of £198,783, the principal being: wool (2,828,784 lbs., value £151,446), tallow (78,400 lbs., value £975), and hides (value £801). The imports, principally of bread-stuffs, amounted in value to £277,427. The capital invested during the year in mortgages and loans was £113,262. Along the road between Sydney and Melbourne, by the Yass plains and Gippsland, villages had been laid out and police stations formed.^ 1 The Year-Book says 4065, but this is prohahly a misprint. Cf. the original returns in Votes and Froceedirigs (F. S. W.), 1843, p. 473. 2 Ibid. 3 sess. Papers (H. L. ), 1841, vol. v. p. 8. PAET II EEPEESENTATIVE GOVEENMENT CHAPTEE VIII THE NEW CONSTITUTION The Act for the Government of New South Wales and Van Diemen's Land (5 & 7 Vic. c. 76) seems to have passed the Imperial Parliament without exciting the smallest interest. It is with difficulty that we can trace its progress in the pages of Hansard. What small amount of attention was in 1842 given to colonial matters seems to have been divided between the Crown lands question, the financial embarrassments of South Australia, and the grievances of Newfoundland. The English public had other matters to think of. The great Corn Law agitation was preluding to its final triumph. The ever-present Irish question was in a particularly acute state. A war with China was just over, a war in North-western India was raging, and a war in South Africa was impending. There was much industrial distress. Sir Eobert Peel was just about to revive the unpopular income-tax. In Scotland the great theological convulsion which resulted in the secession of the Free Church was agitating the country. Nevertheless, unnoticed as it was in England, the Constitution Statute of 1842 was of great importance in the history of Australia. Its chief claim to distinction, from a constitutional point of view, is that it introduced into Australia the principle of representation for purposes of central government. But it was in other respects also a very important statute. It begins by providing for a Legislative Council of thu-ty- six members, twenty-four to be elected in the colony of New South Wales,! and the remaining twelve to be appointed by the • By the 53d section the old form of government is continued for Van Diemen's Land, 70 THE NEW CONSTITUTION part ii Crown.^ The local legislature may increase the total numhers of the Council, but the proportion between elective and nominee members is always to be preserved.^ In the same way, the distribution of the representatives and the boundaries of the electoral districts are to be settled by the existing Council, but the District of Port Phillip, and the towns of Sydney and Melbourne, are each to be an electoral district. For the purposes of the Act, the boundary of the District of Port Phillip on the north and north-east is to be " a straight line drawn from Cape How to the nearest source of the Eiver Murray, and thence the course of that river to the eastern boundary of the province of South Australia." ^ The electoral boundaries of Sydney and Melbourne, and of all other towns which may be made electoral districts under section 2, are to be fixed by the Governor, by letters-patent or pro- clamation.* The electoral franchises are two ; first, the ownership in possession of a freehold estate within the electoral district of the clear value of two hundred pounds, second, the occupancy of a dwelling-house within the district of the clear annual value of twenty pounds.* The qualification must be of six months' standing, and all rates and taxes payable in respect of such ownership or occupancy, except such as have accrued within three months, must have been paid.^ The elected candidates must be qualified by the seisin (legal or equitable) of a freehold estate, within the colony, of the annual value of one hundred pounds, or the capital value of two thousand pounds, clear in both cases.^ Both electors and candidates must be males of fuU age, natural-born or naturalised subjects,^ and no person who is undergoing a sentence for attaint or conviction of treason, felony, or infamous crime within British Dominions, is entitled to vote.' The nominee members of the Council may be appointed either by royal warrant, countersigned by a Secretary of State, ' § 1. ' § 4. ' § 2. Note the difference between this boundary and that fixed by the Land Eegulations of 5th December 1840 {ante, p. 40). The change was evidently due to remonstrance from Sydney. (Cf. corresponded in V. aTid P. (Victoria), 1853-54, vol. ii. p. 735, etc.) ^ § 3. M 5. " § 7. ' § 8. 8 An elector is qualified also if he is a denizen (§ 6). ^ § 6. CHAP, vm THE LEGISLATIVE COUNCIL 71 and this warrant may either describe them by their names or by their official titles, or the Crown may delegate the power of making the appointments to the Governor, to be exercised in like manner, but the Governor's appointments are to be only provisional, and are not to be made until the return of all the elective writs.^ Not more than half of the nominee members may hold paid office under the Crown in the colony. The grounds upon which a seat becomes vacant are as follow — 1. Resignation (by letter addressed to the Governor). ^ 2. Failure to attend for two sessions witliout permission of the Governor signified to the Council. 3. Adherence to or becoming a subject of any foreign state or power.* 4. Bankruptcy, or insolvency. 5. Attaint of treason or conviction of felony or other infamous crime. .6. Insanity.* 7. Vacation of office (by a nominee member nominated as the holder of such office).^ All questions as to the existence of vacancies are to be settled by the Council itself.^ The places and times of holding the meetings of the Council are to be fixed by the Governor, but there is to be a session at least once every year, with an interval of not more than twelve months between any two, and each Council is to continue for five years unless sooner dissolved by the Governor.'^ The Council is to elect a Speaker (subject to the Governor's disallowance),^ and to adopt Standing Orders which, upon the approval of the Governor, will become binding on the Council, subject to disallowance by the Crown in the same way as other legislation.^ The Council cannot transact business unless one- third of its members are present, exclusive of the Speaker ; all matters are to be decided by a majority of those present, the Speaker having a casting, but not an ordinary vote.^" The Governor, with the advice and consent of the Legisla- tive Council, is to have authority t(5 " make laws for the peace, ' § 12. " § 15. ' This is almost the same thing as alienage, but not quite. It leaves the question of the right in the Crown to claim the allegiance of the person in question undecided. ■* § 16. " § 17. ^ % 18. ' §§ 20, 21. 8 § 23. ' § 27. " § 24. It was afterwards provided (by 6 Vic. No. 16, § 57, p. N. S. W.) that the Council might proceed to business after an election, notwithstanding the failure of two returns. 72 THE NEW CONSTITUTION part ii welfare and good government of the said colony," with two great restrictions, viz. — 1. No such law is to be repugnant to the law of England. 2. No such law is to interfere in any manner with the sale or other appropriation of the lands belonging to the Crown within the colony, or with the revenue thence arising.^ The Governor is to have power to submit the drafts of any- proposed bills to the Council, and to suggest any amendments in bills sent up by the Council, and his drafts and amendments must be regularly considered.^ Every bill presented to the Governor for the royal assent may be either assented to, refused, or reserved by him, in accordance with the directions of the Act or his Instructions, where the case is provided for in either, or at his own discretion, if there be no such provision.^ The Act provides that certain bills shall be in every case reserved by the Governor, unless they be of a temporary char- acter, and declared by the Governor to be necessary on account of some public and pressing emergency. These bills which must be reserved are — 1. Bills altering the electoral districts, or the number of members returned by them, or the whole number of the Council. 2. Bills altering the salaries of the Governor, Superintendent, or any of the judges. 3. Bills affecting customs duties.* A bUl so reserved does not come into force in the colony until and unless, within two years from its presentation to the Governor, the latter signifies the royal assent by speech in or message to the Legislative Council, or by proclamation,^ But, besides this check, the Crown reserves the right of disallowing, within two years of its receipt by the Secretary of State, any bill assented to by the Governor, and thereupon, upon similar notification in the colony, the Act becomes void as from the date of the notification.^ The revenue clauses of the Act are also very important. In the first place we have seen that the Council cannot pass any law interfering with the sale or appropriation of Crown lands and the revenue thence arising. Moreover, by common law, the ' §29. ^ § 30. This is strictly in accordance with English precedent, except that in England the Crown acts through its Ministers. 3 § 31. ■> § 31. 5 § 33. « § 32. CHAP, vni REVENUE CLAUSES 73 Council could not levy any tax on Crown lands or other Crown property, for this would be to make a grant to Her Majesty of her own money.-' And finally, as we have seen,^ any Customs Bill requires special reservation for the royal assent. But, subject to these exceptions, the Governor and Council seem to have power (though only by implication) to raise any kind of taxes and to any amount that they please. But a powerful check is laid on possible extravagance of the Council by the introduction of the good English constitutional rule, that no money can be voted for any purpose by the legislature, unless it is expressly asked for by the Executive.^ This brings us to the important appropriation clauses of the statute, which enact that all the taxation revenue of the colony shall be appropriated to the public service within the colony, in manner determined by legislation.* But this general direction is limited by two special clauses, one of which is very important. The first ^ subjects the revenue to the charges and expenses of collection. This stipulation is obvious and reasonable, especially as the control of the collection is placed entirely in the hands of the local legislature. The second ^ charges upon the revenue a permanent Civil List of £81,000 a year payable to the Governor without special vote, the object being, of course, to secure the in- dependence of the colonial executive. But as the whole of this sum does not stand on the same footing, it will be necessary to go slightly into details. The sum of £81,000 a year is divided between three different objects, dealt with by the statute under three separate schedules. A, B, C. Schedule A reserves a sum of £33,000 for the salaries of the Governor, the Superintendent at Port Phillip, the judges, the law ofi&cers, and the expenses of the administration of justice. These salaries are alterable only by Act of the Council specially reserved for the royal assent.'^ Schedule B reserves a sum of £18,600 for the political ofificials of the colony, the Chief Secretary, the Treasurer, the Auditor-General, and their departments, but the sums thereby ' This action is expressly forbidden to the contemplated local councils by section 43, but it is equally beyond the power of the central legislature. Of course there is no legal objection to taxing the occupiers of Crown property. 2 Ante, p. 72. M 34. ■> § 34. ' § 36. « § 37. ' § 38. 74 THE NEW CONSTITUTION part ii appropriated are variable at the pleasure of the Governor/ and, moreover, within thirty days after the commencement of the session the Governor is to lay before the Council detailed estimates of the amounts required for the ensuing year from the sum reserved by schedule B, for the purposes therein mentioned.^ About the sum reserved by schedule C (Public Worship) the Act is silent, but as the Governor is entitled to receive annually the total amount of the sums reserved by the three schedules from the Treasurer without special vote,^ and as he is accountable for their expenditure to the Home Government,* presumably the appropriation for Public Worship is placed, by the strict law, entirely in his hand. But as the requirements for Public Worship very soon increased beyond the limits of the sum provided by schedule C, it seems to have be- come the practice for the Governor to include details of that department in his estimates.^ The actual expenditure of the revenue is to be only by warrants of the Governor directed to the Treasurer ; ^ but this is mere machinery, leaving the duty of each official, to see that the share he takes in the expenditure is warranted by law, quite untouched. Leaving the important sections relating to municipal govern- ment for discussion in a separate chapter, we may note finally the clauses of the statute relative to the constitution of new colonies. Her Majesty is empowered, by Letters-Patent under the Great Seal, to define the limits of the colony of New South Wales and " to erect into a separate colony or colonies, any territories which now are, or are reported to be, or may here- after be comprised within the said colony of N&w South Wales : Provided always that no part of the territories lying southward of the Twenty-Sixth Degree of South Latitude in the said Colony of Hew South Wales shall by any such Letters-Patent as afore- said be detached from the said Colony." ^ In any such newly erected colony Her Majesty may create a Legislative Council of nominees, not less than seven, which shall, under the Instruc- tions of the Crown, have power to legislate for the peace, order, and good government of the colony, both Instructions and legislation being not repugnant to English law, and being > § 38. 2 § 39_ 3 § 37_ 4 § 37. » Cf. {e.g.) rotes and Proceedings (ST. S. "W.), 1843, pp. 409, 410. 8 § 35. 7 § 52. CHAP, vni SUMMARY OF THE CONSTITUTION 75 subject to the review of the Imperial Parliament.'' The limits of the 26 th degree of south latitude excluded the operation of the 5 2d section in any territory lying south of Moreton Bay, which embraced what was, in 1842, the Moreton Bay District itself, with the town of Brisbane, the colony of New Zealand, and the colony of Van Diemen's Land, but, of course, do not interfere with future subdivision of such territories by new legislation. All such provisions of the 9 Geo. IV. c. 83 ^ and its continuing and amending Acts^ as are not incon- sistent with the new scheme are made permanent.* The most important of these provisions are those relating to the administration of justice. The two great objects of the Act of 1842 were the intro- duction of representative government for central and for local purposes. With the latter we shall deal in a future chapter, the scope of the former may be here briefly summarised. The Act creates a colonial legislature, variable in size and distribution (subject to the veto of the Crown) according to the need of circumstances, but with a fixed proportion of two- thirds of elective members to one-third of nominees. The qualifications of the elective members and their electors are fixed by the statute, but these may be freely altered by the colonial legislature. The nominee members are actually appointed by the Home government, although the process of appointment passes through the hands of the Governor. One object of the nominee reserve is obviously to secure the presence in the legislature of certain high government officials, but this policy is limited to the appointment of one-half of the nominee members. The object secured by the nomination of the other half is probably the permanent presence in the legislature of men of experience and substance who, for some reason, do not care to face an election. Taken altogether, the nominee members are to form the permanent and aristocratic element in the councU. But it must be carefully noted, that while the official members of the council undoubtedly wiU bring the executive ' § 52. This section is praotioally a reproduction of the Sd section of the 3 & 4 Vio. 0. 62, the Act under which New Zealand had been constituted a separate colony. ^ Ante, pp. 14-17. * 6 & 7 "Will IV. 0. 46, 1 Vic. 0. 42, 1 & 2 Vio. 0. 50, 2 & 3 Vic. c. 70, 3 & 4 Vic. c. 62. * § 53 of 5 & 6 Vic. c. 76. 76 THE NEW CONSTITUTION part ii into closer relations with the representative body, the latter is given absolutely no direct control over the former. On the contrary, the independence of the executive is secured by the guarantee of the permanent Civil List, which the Governor is em- powered to draw without vote, and which is sufficient at least to maintain the barely necessary machinery of government with- out support from the Council Similarly the legislature is given no control over the administration of justice. The old Executive Council and the old Supreme Court are absolutely untouched. On the other hand, the legislature can, indirectly, to a certain extent affect both the executive and the judica- ture. By questioning officials in the Council, by demanding papers and accounts, by refusing to vote increased grants, it can seriously hamper the action of the executive and the judges. It is worth the latters' while to keep on good terms with the Council. Thus there is every incentive to harmony, while, at the same time, the possibility of discord is not averted. But there are sometimes worse things in an adminis- tration than discord. CHAPTEE IX ■ INAUGURATION OF THE NEW CONSTITUTION The Act of 1842 provided that it should be proclaimed by the Governor "within six weeks after his receipt of a copy, and that it should take effect within the colony from the day of the proclamation. The Governor received a copy of the statute on the 1st January 1843, and proclaimed the Act on the 5th.-^ But much remained to be done before the scheme could be put into operation, and the Act itself obviously contemplated delay when it provided ^ that the powers of the existing Council should continue until the actual issue of the writs for the new body. Accordingly, on the 24th January 1843, the old Council met, for its last session, to make the necessary preparations for the inauguration of its successor.^ On the 23d February the governor gave his assent to an Electoral Act which regulated the preliminaries. On the same day the old Council adjourned sine die, and did not again meet.* The Electoral Act <6 Vic. No. 16, K S. W.) divided the colony of New South Wales into eighteen electoral districts, of which one was the District of Port Phillip,' twelve were county constituencies in New South Wales proper,^ and five town constituencies,'' all, with the exception of Melbourne, within New South Wales proper. There were six single- county constituencies and six groups, three single town- ' Gov. Gazette (N. S. W.) 5th Jan. 1843. The Act had received the royal assent on the 30th July 1842. England and Australia were then a long way apart. ^ § 53, ' Votes and Proceedings (N. S. W.), 1843, p. ll/p^^j.^. j n * Do., p. 12. J ^ 6 § 1. « § 1- ' § 2. 78 THE NEW CONSTITUTION PART. II constituencies (Sydney, Melbourne, and Parramatta) and two groups/ The District of Port Phillip was to return five members,^ the county of Cumberland and the town of Sydney two each, all the other constituencies one each.^ The county constituencies comprised only land within the limits of loca- tion.* The towns having special representation of their own were excluded from the county constituencies.^ The bound- aries of certain counties had already been fixed ; those of the others were to be settled, for the purposes of the Act,^ by pro- clamation.'^ The Mayors of Sydney and Melbourne are to be returning officers for their own towns, unless they object,^ in other cases returning officers are to be appointed by the Governor from amongst the electors.^ There are to be four classes of polling-places, with their 1 § 2. ^ § 1. * IMd. (Sydney and Melbourne only by recital. ) * Ibid. ' Hid. The result of the Act is to group the constituencies thus — District.- — Port Phillip. 5 members. Towns. Parramatta, 1 I Windsor \ " Cumberland \ Richmond 1. Boroughs " \ Campbelltown j ' Liverpool / 1 inT ii. 1 1 J C East Maitland ^ BorouTs^' 1 ^^=* ^^"1^""^ V V Newcastle J Counties. Cumberland, 2 Northumberland, 1 Camden, 1 Argyle, 1 Durham, 1 Bathurst, 1 St. Vincent 1 ^ Auckland J Murray \ King U Georgiana J Cook I ^ Westmoreland / Roxburgh j Phillip [ 1 Wellington ) Gloucester "i Macquarie \-\ Stanley ) Hunter ^ Brisbane [-1 BKgh J " Note the limitation. It leaves the precise constitutional position of the new counties somewhat doubtful. ' § 3. ' We shall see that one of them, at any rate, did object. 8 § 6 : The returning officer must make a declaration before entering upon his duties (§ 60). CHAP. IX ELECTION MACHINERY 79 appropriate officials to draw up electoral lists, and decide upon questions arising therefrom, viz. — 1. In tie towns of Sydney and Melbourne. — Each ward to be a polling-place, electoral rolls to be prepared by collectors ap- pointed by tlie Mayor for each, ward, and kept by the Town Clerks, Eevision Courts of aldermen and assessors. ^ 2. In the town constituencies of the Cumberland and Northumberland Boroughs. — Each borough to be a polling-place, electoral rolls to be prepared by the Chief Constables, and Eevision Courts to be held in each place of Petty Sessions having a clerk of the bench by the police magistrates or the senior resident magistrate, with the other magistrates as assessors.^ The electoral lists to be sent to and kept by the returning oflB.eers.^ 3. In other constituencies. — Each place for holding Petty Sessions, where there is a clerk of the bench, to be a polling-place, electoral rolls and Revision Courts as in the last instance.* 4. Where there are any deficiencies, not provided for in the first three ■ instances, they are to be met by the appointment of the Governor.* We may gather from these details what an important part the recently created corporations of Sydney and Melbourne would play in inaugurating the new constitution. We now come to the process of election, and it will be well perhaps, for the sake of clearness, to trace the steps of the pro- cess in chronological order. They are as follow — 1. The, issue of the writs. For the first election this was required to be within twelve months from the proclamation of the Constitu- tion Statute,^ in subsequent cases within twelve months from the dissolution of the last Council.'^ The writs are directed to the various returning ofl&cers, they name in each case the occasion of the election, the day for nomination of candidates, and for holding a poll if necessary,^ and direct the officer to " return " the name of the person or persons duly elected. The writs are issued by the Governor.^ 2. Notice of the election by the returning officer. This must be given within four days after receipt by him of the writ.^" 3. The meeting for nomination. Held at the chief polling-place in the electoral district, under the presidency of the returning officer, on the day named in the writ. If no more candidates are nominated than there are vacancies, the returning officer declares the candidates nominated to be duly elected. If more are ^ §§ 7, 8, 13, 14 : Note the intimate connection thus created between the municipal and parliamentary elections. ' § 17. * § 19. * § 7. 6 §§ 7 and 17. 8 5 & 6 Vic. c. 76, § 22. 7 § 21. 8 6 Vic. No. 16, § 20. » Ibid. ^° § 28. By § 20 the day for the election must be fixed not less than 10, nor more than 30 days from the date of the wi'it. 8o THE NEW CONSTITUTION part ii nominated, the returning officer calls for a show of hands for each candidate, and declares the election thereupon " unless a poll be demanded by some one of the Candidates,^ or by not less than six electors on his behalf." If a poll be duly demanded, the polling takes place from 9 o'clock till 4 at the various polling-places in the district, on the day fixed by the writ.^ 4. The Poll. By signed voting papers, stating the place of the voter's qualifying property, handed to the returning officer by the voter.^ If required by two electors, the returning officer must put any of the four following questions, or administer one or both of the two following oaths to a person claiming to vote : — Questions — (i) Identifying signature upon voting paper, (ii) Identifying claimant with some person on the Electoral Rolls, (iii) Enquiring whether claimant has voted before at the election, (iv) Enquiring whether his property qualification described on the Roll still exists. Oaths — (i) Affirming the answer to Question ii. (ii) Against bribery.* 5. The Return. The deputies at the minor polling-places (where such exist) seal up the voting papers received by them and deliver them to the returning officer.^ The latter examines the votes, and at the place of nomination openly declares the result of the poU. In case of an equality the returning officer has a casting vote, but no officer or deputy may give an ordinary vote in his own polling district.^ The returning officer then endorses the names of the successful candidates on the writ, and sends it to the Governor.' (This is the " return.") He also forwards, with the writ, the voting papers.^ 6. The com/pletion of title to a seat. Before taking his seat each newly elected member is required ^ to take a rather stringent oath or affirmation of allegiance to the Crown. This concludes the proceedings at an ordinary election. But if the return is disputed, it becomes necessary to decide the dispute. The Electoral Act contains a rather remarkable scheme for such contingencies. Within three days of the first meeting of the Council, the Governor is to nominate two persons, not being members of the Council, the Council itself is to elect two of its members, and ' ? "Some [one] of the Candidates." ^ § 28. a § 29. * § 30. i' § 31. 6 § 32. !■ § 33. s g 34. " By the 5 & 6 Vic. c. 76, §§ 25 and 26. The declaration of property qualification is made prior to the election (§ 9). CHAP. IX THE ELECTORAL COURT 8i the Chief-Justice is to name a barrister or advocate of five years' standing.^ These five persons, when convened by the Governor,^ form a court for the trial of election disputes, the Chief-Justice's nominee acting as president.^ Their jurisdiction extends to all cases respecting disputed returns brought before them by the Governor,* but they are bound by the statements of the electoral roUs.^ The parties bringing the complaint, who must be either a candidate or at least one-tenth of the voters on the roll of the district, present a petition to the Governor,^ who refers the matter to the Electoral Court, and sends a copy of the petition to the Council.^ The Court, which must deal with the merits of the case apart from technicalities,® regulates its own proceedings, but must pronounce a decision within five sitting days, and such decision is final.® The decision may reject the candidate returned, or seat a candidate not re- turned, or may declare the election void altogether, in which case a new writ is to be issued.^" Bribery proved against a candidate disqualifies him from sitting in the Council till the next general election,^^ and the offences of bribery and persona- tion are also made criminally punishable.^^ This method of deciding _ election disputes was a striking improvement upon the corresponding scheme then at work in England. When the House of Commons in the seventeenth century finally wrested the right of deciding election questions from the Crown, they devolved its exercise upon committees of the whole House constituted ad, hoc. With the development of the party system, these committees came to be elected on party lines, and the legal and political views of their members generally coiacided in the most striking way. The defeat of a ministerial candidate on an election question, however weak his case, was the signal for the fall of his party in the House. Walpole resigned the reins of government, after having held them for thirty years, on the decision of the House upon the Chippenham election in 1742.^^ In the year 1770 a statute,^* 1 6Vio. No. 16(N. S. W.), §36. =§40. ^ § 36. « § 41. s § 44. " § 46. ' § 47. 8 § 42. » § 43. '0 § 48. " § 50. ^ §§ 52-54. ^' The Chippenham question was in form a dry point of law (cf. Hansard, 1st series, xii. 403). See also Mr. Bryce's account of a similar tendency in American politics in his American Commonwealth, i, 69, etc. " 10 Geo. III. c. 16, amended by 11 Geo. III. c. 42 and 53 Geo. III. c. 71. G 82 THE NEW CONSTITUTION part ii known as Grrenville's Act, provided that whenever an election petition should be presented a committee of forty-nine members present in the House should be drawn by lot, which by alternate rejection of names by either party to the question should be reduced to thirteen, and these thirteen, together with two other members, chosen by petitioners and sitting members respectively, should act as a select committee to decide the dispute, being sworn to give judgment according to the evidence. This was practically the substitution of trial by special jury for trial by party ; but the reform was not complete, for the party element was only reduced, not excluded, and in fact the scheme was abandoned after a trial of about a hundred years.^ The method instituted by the Electoral Act of New South Wales was greatly superior, for it practically secured a majority of impartial judges, and rendered the tribunal independent of the Council, while at the same time it gave the latter body representation upon it. It would be interesting to know to whom the colony was indebted for the new idea. The Electoral Bill having been duly passed, the work of carrying it out went on rapidly. On the 27th February 1843 the Governor proclaimed the electoral boundaries of the new counties,^ on the 13th March those of the towns.^ On the 30th May it was notified* that writs for the election of the members of Council had been issued. Notices of the elections were given by the various returning officers.^ For the five seats of Port Phillip District there were six candidates,^ necessitating a poll. The nomination took place, on the 13th June,''' and the poll was held on the 20th.^ It took three days to collect the papers, and the final result was declared on the 23d.^ Sir Thomas Mitchell, the Government Surveyor, was rejected. The greatest publicity with regard to It is worth noting that the House of Commons preferred that the matter should he regulated by statute, though a standing order would have been competent. 1 By the 31 & 32 Vic. c. 125, which gave the trial of election petitions to a iota (selected annually by themselves) of the judges of the three common-law •courts. 2 am. Gazette (N. S. W.), 28th February 1843. 3 Ibid. 14th March. * Hid. 30th May. 5 Ibid. pp. 738, 771, etc. ^ Port Phillip Patriot, 15th June. Port Phillip Herald, 16th June, viz., Dr. Thomson of Geelong, Dr. Lang of Sydney, Sir Thomas Mitchell, Mr. Ebden, Mr. "Walker, Mr. Nicholson. ? Ibid. 8 Patriot, 26th June ; Herald, ■'27th June. « Ibid. CHAP. IX THE FIRST ELECTIONS IN PORT PHILLIP 83 the voting prevailed. After the election the newspapers pub- lished a full Ust of the voters, showing how each had voted.^ Objection was raised that three of the candidates had not been present at the election to declare their qualifications.^ The Melbourne election took place on the 15 th June. The seat was contested by Mr. Edward Curr and Mr. Henry Condell, the Mayor of Melbourne.^ There was a good deal of disturbance,* and special constables were sworn in.^ Upon the majority of the questions before the electorate, such as immigra- . tion and separation, the candidates seem to have agreed, and the necessity for some point of doctrinal difference was supplied by the fact that their religious persuasions were different. There was a certain amount of rather poor ballad-mongering.^ The poll was held on the 1 7th June, and resulted in a majority of 34 votes for Mr. CondeU.^ The total poll was 556. One of the most interesting episodes of the elections was an agitation by the squatters in favour of an extension of the franchise.* Towards the end of June the official returns began to drop in,® and apparently by the 17th July all had been made." The first meeting of the Council, to be held in the old Council Chamber in Macquarie Street, Sydney," was fixed for the 1st August.^^ On the 18 th July the Governor announced the names of the nominee members. They consisted of the Commander-in- chief, the Colonial Secretary, the Colonial Treasurer, the Collector of Customs, the Auditor-General, the Colonial Engineer, and six non-of&cial members.^^ The Bishop of Australia (the see had not then been divided) was offered a seat by the Home govern- ment ; but in terms which showed that Lord Stanley had grave doubts as to the propriety of an acceptance. The bishop took the same view, and declined the honour." 1 Herald, 23d and 27th June. ^ Patriot, 22d June. ^ 7ji^_ 17^11 June. * Ibid. 5th and 19th June ; Herald, 20th June. " lUd. 17th June. ° lUd. 8th, 12th, I5th, 19th June ; Herald, 17th and 20th June. ^ Ihid. 19th June ; Herald, 20th June. ^ Advertisement in Patriot, 26th June. 9 Gov. Gazette (N. S. "W.), 1843, pp. 824, 837, 850, 865. " Ibid. p. 921. ^' The Governor had, however, already suggested the propriety of building new premises ( Votes and Proceedings, 1843, p. 2). 12 Gov. Gazette (N. S. W.), 1843, p. 863. ^^ jf^^ jgth July. " See correspondence in Votes and Proceedings, 1843, p. 937. 84 THE NEW CONSTITUTION part ii On the 1st August the Council met for the first time.^ The Governor was not present.^ The Colonial Secretary read a commission empowering himself and two others to administer the oaths of allegiance, which were duly taken, the evidences of title (the letters-patent of the nominee members, and the returns to the election writs) being produced.^ The Council then proceeded to the election of a Speaker. A contest between Mr. Alexander M'Leay and Mr. Edward Hamilton resulted in the election of the former by a majority of four votes.* On the next day the new Speaker, accompanied by members of the Council, was formally presented to the Governor and '' not dis- allowed."^ The Governor having announced his intention of opening the session in person, it was resolved to prepare him a suitable seat "without interfering with the seat of the Speaker." 8 On the 3d August the Governor appeared and delivered a speech, to which a formal Address of thanks was voted. There was no debate on the Address itself, but the Council asserted its dignity by striking out the customary word " humble " from the motion. The Attorney-General then produced a commission appointing the two Government members of the Electoral Court, and also a letter from the Chief Justice naming the president. The Council then elected its two members, thus completing the Court.'' On the 4th the Gazette announced the appointment of the Speaker and gave him special precedence next to the judges of the Supreme Court.® On the 5th the Governor's Proclama- tion convened the Electoral Court,^ and on the 10 th the Colonial Secretary informed the Council that the petitions against the returns for the Cumberland Boroughs and Melbourne had been referred to it. I have not been able to discover what became of these petitions, but apparently that against Mr. Condell's return failed, or was cured by the third section of the Imperial Act, 7 & 8 Vic. c. 74, which postponed the declaration of property qualification by a candidate till after the election of ■^ Votes and Proceedings, 1843, sub date. ^ This is the vital point in the new Council's position. It has ceased to he a mere advising committee of the Governor, and has assumed an independent stains. The Governor's visits are now only matters of ceremony. ^ Votes and Proceedings, sub date. * Ibid. ^ Ibid. ; this was strictly following the words of § 23 of 5 & 6 Vie. c. 76. « lUd. 2d August 1843. i Ibid. 3d August 1843. * Gov. Gazette (N. S. W.) of that date. s Ibid. 8th August. CHAP. IX CRITICISM OF THE ELECTION MACHINERY 85 the Speaker. At any rate the Mayor of Melbourne continued to sit and vote until his resignation in 1844.^ It was not until the 27th October that the Council passed its Standing Orders, which were duly approved by the Governor.^ They contain nothing very striking ; perhaps the two clauses most interesting for our purpose are the 88 th, which provides that in all private bills relating to Port Phillip, the evidence of service of notice required to be given to parties interested may be taken before the Eesident Judge, whose certificate is to be admitted as proof, and the 94th, directing that every private bill shall contain a clause suspending its operation until it has received the royal assent. In considering the machinery of the new Council one cannot help being struck with the minute resemblance which it bears, in most points, to the English machinery. It was natural perhaps that the English legislation should follow the old model, but the Colonial Electoral Act and the Standing Orders of the Council almost slavishly imitate their English precedents. The only important difference, undoubtedly an improvement, is in the mode of settling election disputes. Two reasons for the similarities, apart from the obvious reasons of kinship and political connection, may be pointed out. One was the paucity of other models. Eepresentative government is now such a common thing that we are apt to forget how young it is. In 1842 it existed strongly and obvi- ously in England and America, strongly but obscurely in Scandi- navia and Switzerland, and only weakly and tentatively in other European countries. It is not easy even now for an Englishman to find out much about. the constitutions of Scandinavia. The constitution of Switzerland, renewed since 1842, has only just been made readily accessible to English readers. America has had, until recently, surprisingly little constitutional influence beyond her own borders, partly, perhaps, because until recently the literature on the subject has not been great.^ But it is surprising to notice how America seemed to be entirely beyond the horizon of 1842. "■ Votes and Proceedings, 1844 (1), p. 9. ' Copy in Votes and Proceedings, 1843. ' Tooqueville's great work had, in 1842, only recently been published, and per- haps had not reached Australia. 86 ' THE NEW CONSTITUTION part ii The other reason is the extreme rarity of political invent- iveness. This reason is not always recognised, but it exists. I know of but two short periods in English history in which there has really been an abundance of political genius. And 1842 did not fall within either of them. CHAPTEE X LOCAL 1 GOVERNMENT CoNTEMPOEANEOUSLY with the introduction of the new constitu- tion, two questions agitated the colony of New South Wales. One was the question of local government, the other the ever-important Land Question. Of these in their order. It must never be forgotten that one of the greatest differences between the English and any Australian constitu- tion is that the former has been built up, by a process of integra- tion, from widely-spread local institutions, while the latter has evolved itself from a central authority. It is not at all surprising, therefore, that the English statesmen of 1842 should have thought it most important to introduce local institutions into the colony. It is equally natural that the colonists, whose circumstances and history differed so much from those of England, should regard the attempt with coolness. The local government clauses of the 5 & 6 Vic. c. 76 project a somewhat thorough scheme. They empower the Governor to establish " districts " in any part of the colony, irrespective of existing local boundaries, and to create by letters-patent a " District Council " for the local government of each, under the following conditions — 1. The council to be elective after the first nomination,^ with a membership varying from nine to twenty-one, according to the number of the population. 2. The franchise and qualification for membership to be the same as 1 Heuoeforward the term "local" will be applied to municipal (as distin- guished from central) government within the colony. ^ Any vacancies not filled by election within the proper time are to be filled by the Governor's appointment. § 46. S8 LOCAL GOVERNMENT part ii for tlie Legislative Council, tiU the colonial legislature shall make other provision. 3. No councillor is to hold paid office under the council, nor to contract with it. 4. The limit of tenure without re-election of a seat in the council is to be three years. 5. Each council is to have a warden, appointed by the Crown. 6. A district surveyor and other necessary officers are to be appointed by the Council subject to the approval of the Governor. 7. The details of the expenditure of each council are to be laid annually before the Governor.^ The district councils are empowered to legislate for several purposes, of which the following are the most im- portant. 1. The making, building, or repairing of roads,^ bridges, and public buildings. 2. The acquisition of property for public purposes. 3. The raising of funds for the performance of the duties of the council, especially for the maintenance of schools, and the administration of justice and police. But a by-law or order of the council may not impose imprisonment, nor a pecuniary fine greater than ten pounds,' and every by-law must be transmitted to the central authority within fourteen days of its being passed, the Governor having power to veto it within two months after its receipt, and its operation being held in suspense during that time.* The Act further provided^ that one half of the police expenses of the colony (exclusive of the convict establishment) should be paid by local taxation in the districts, and the other half out of the general revenue, and authorises the Governor, after apportionment of the levy by the legislature upon the various districts, by Act upon the estimates, to levy from the respective district treasurers the amount payable by their districts,® with power to enforce payment by distress and sale of the goods of the treasurer, the members of the council, or, failing these, the inhabitants of the district.' But the control of the police was not given to the local authorities, the Governor being merely bound to expend the sum raised in any district, 'plus a similar sum from the ' § 41. ^ The main roads were in the hands of the central government. 3 § 42. * § 44. 6 I 47. 6 I 48. ' § 49. CHAP. X FAILURE OF THE SCHEME 89 general revenue of the colony, for the police of that district, and the council being entitled to a credit for next year of any surplus.^ , This was the Local Government scheme of 1842. It followed, in the main, the generally accepted principles of local government, allowing great autonomy to a representative local council, but keeping a veto for the central government on its policy. In one particular, however, it undoubtedly violated accepted principles, namely, in the matter of the police. The district had to raise police funds and hand them over for expenditure to another authority, the character of this arrange- ment being but partially mitigated by the contributions from the central government. This arrangement was perhaps necessary, but it was sure to be unpopular. It wiU be observed also that the incorporated district differed from the incorporated town, such as Sydney or Melbourne, in the franchise qualification, in the nominee character of its warden, and in the greatly smaller powers of the council. As a matter of fact, the scheme was a complete failure. At first there seemed to be a faint disposition to welcome it. Petitions from Penrith,^ Murrurundi,^ and Illawarra,* asked that the provisions of the Act should be carried out. But these were soon overweighted by petitions of an opposite import from Bathurst,^ Dungog,'' Maitland,'' Merton and Mus- wellbrook,^ Hartley,^ Eaymond Terrace,-'" and Jerry's Plains." The main grounds of objection to the scheme were the narrow- ness of the franchise and the police contributions. On the first ground the squatters of Port Phillip prayed that their stock might not be subject to assessment by the district councils.-'^ Nevertheless the Governor determined to attempt the introduction of the scheme. On the 21st July 1843 the District Council of Maitland was established. Its charter, after reciting the sections of the Act of 1842, incorporates the inhabitants of the district (which does not appear to coin- cide with the county boundaries), with a warden and council of six. Future councillors are to be elected in the same 1 § 50. ^ Votes and Proceedings, 1843, p. 42. 3 Ibid. p. 61. •• Ibid. p. 213. ^ Ibid. p. 51. « Ibid. p. 73. ' Ibid. p. 77 (Petition in full). ^ 7^^. p. 91. « IMd. p. 127. " Ibid. p. 127. " Ibid. p. 149. 12 7^^. p. 20I. , 90 LOCAL GOVERNMENT part ii manner as members of the Legislative Council. The council is to meet quarterly, and at other times when specially- summoned. Its officers are to give security, and their accounts are to be examined by the audit committee of the council, and then to be transmitted to the Governor.^ During the month of August charters followed one another in rapid succession, all reproducing the terms of the Maitland charter, except in point of numbers of the council.^ On the 17th August the districts of Bourke and Grant in Port PhiUip received their charters, but the districts thus created did not coincide with the previously existing counties similarly named.* ' The wave of opposition, however, soon rose strongly. The Governor endeavoured to smooth the situation by introducing a bill to widen the municipal franchise,* and by agreeing with the Legislative Council to postpone the operation of the obnoxious 47th section for a year.^ But the measure was not carried, and when in the following year the Governor brought forward bills for the police assessment and for the reform of the district councils, the former was summarily rejected, and to the latter an amendment was carried, by a majority of two to one, that " in the opinion of this Council the District Councils are totally unsuited to the circumstances of the Colony." On the 9th August 1844 the Council carried an Address requesting the Governor to attempt to procure the repeal of the Local Government clauses of the Act of 1842, and suggesting that the police expenses should be defrayed out of the general revenue.^ On the 20th August the Governor replied that he would accept the sums voted, but declined to take any responsibility for this breach of the constitution.^ Apparently the assessment was never imposed on the districts,* and the whole scheme was allowed to lapse. Occasionally a district council published its accounts. Those of the Parra- matta Council for the year 1845 show that its only income was from government grants.^ It was the same in 1846.-"' And ^ Gov. Gazette, 26th July 1843. ^ Gazettes, 1st, 15th, 29th August, and 5th September. ' Of. boundaries in Gov. Gazette, 1843, p. 1147. * On the 22d November 1843. Votes and Proceedings, 1843, p. 201. = Ibid. p. 138. 6 lUd. 1844. 7 Bid. ^ Of. accounts for the year 1843, in Votes and Proceedings, 1846 (1). ^ Gov. Gazette, 1846, p. 467. " Ibid. 1847, p. 443. CHAP. X REASONS FOR THE FAILURE 91 in the year 1847 the committee of the Legislative Council appointed to inquire into the state of the roads and bridges in^the colony, after suggesting that the constitution probably contemplated the control of such matters by the district councils, added " but, by a sort of tacit consent, as well on the part of the District Councils themselves as of the Executive government, they have never for an instant been in full opera- tion, although the Letters-Patent establishing and defining their several boundaries and jurisdictions were issued shortly after the promulgation of the Imperial Law which authorised their existence." ^ And the committee practically recommended the withdrawal of roads and bridges from the district councils, by the constitution of elective local trusts for maintenance and repair, the expenses of the trunk routes being first provided by the general revenue.^ This policy was virtually adopted for the neighbourhood of Sydney by the 1 1 Vic. No. 5 (K S. W.), and subsequently became the general policy of Victoria, and the starting-point of local government for the rural districts. The district councils stUl dragged on a nominal existence. lUawarra went through the form of an election in 1849.^ But in 1848 the governor had had to fill up by nomination 14 councils, including those of the districts of Bourke and Grant. And it appears that the new Eoads Trusts sometimes really swallowed up the older councils ; for instance, in the case of Parramatta, whose council in the year 1849 handed over the whole of its small income to the local Eoads Trust.* Some of the district councils were in- solvent from the first.^ It is not difficult to see why the scheme was a failure. In the first place, it was too ambitious. It aimed to introduce a full-blown system at a single step, its authors apparently forgetting that the art of government requires gradual education, and that there had been no opportunities for such education in the rural districts of New South Wales. Secondly, the scheme was not local enough. It was merely a reproduction, on a small scale, of the Legislative Council at Sydney, and it excited no special local interest, it appealed to no particular local feeling. 1 Votes atid Proceedings, 1874 (2), p. 313. ^ Md. p. 334. 3 Ibid. 1849 (1), p. 295. * Gov. Gazette, 1850, p. 843. » Votes and Proceedings (Victoria), 1852 (2), p. 382. 93 LOCAL GOVERNMENT part ii The district councillors had very little power; in some of the most important functions of local government they would have been mere agents of the central authority. Thirdly, on the other hand, the councillors undertook a serious liability. They were liable, after the treasurer, to distress for non-payment of the police assessment, even though their own quota had been duly paid. A sparsely peopled district could hardly be expected to spare, in addition to its legislative members, six other men of sufficient public spirit to undertake an unpaid task, attended with considerable liability, and bringing very little influence. There was no leisured class in the rural districts, to aspire to the duties of government, which, in a newly-settled locality, are usually very heavy. But fourthly, there was perhaps a deeper reason than these for the failure of the plan. Before a community can success- fully work a scheme of self-government, it must possess a social unity and a sense of common interest. This was the secret of the vitahty of the Teutonic village -settlement, from which sprang the English system of local government. The Teutonic settlers were bands of kinsfolk, knit together also by a sense of a common danger, and a common desire to ward off that danger.! They were occupied chiefly with agriculture, a pursuit which demands steadiness of residence and permits of co-opera- tion. The country districts of New South Wales were ranged over, rather than settled, by individuals having little sense of fellowship with their neighbours, fearing very little the dangers which did sometimes threaten them, and engaged mainly in pursuits which encouraged wandering habits and wide separa- tion. The history of the district councils is a striking example of the truth that an unsuitable institution cannot be forced upon a community, or, as it is frequently put, that institutions must grow, not be made. Gradually, as the country became more settled, the need of local government was felt, first in one particular, and then in another, and, in the end, the process came easUy enough. ^ The same qualities, religion being substituted for kindred, were the secrets of the success of the New England townships of the United States. CHAPTEE XI THE LAND QUESTION No subject was more copiously discussed, nor more fiercely agitated, during the second period of the constitution than the Land Question. At first sight it seems hopeless for one who has not passed through the agitation, nor taken part in the discussion, to grapple with the intricacies of the subject. The mere physical difficulties of space cause endless confusion. For instance, during the time which must elapse between the despatch of a memorial or report from the colony, and the receipt of the reply of the Home government, we find that the whole question has changed front, and that the aspect of it which caused so much excitement when the memorial was drawn up, has ceased to be of interest when the answer arrives, while a new aspect is then being vigorously canvassed, and is giving birth to its own mass of documents. Still it is possible that an impartial and disinterested observer, though he views the agitation from a distance, may obtain as clear a judgment of the real facts of the case as the keen partisan who has lived through it, and knows aU its details, so to speak, unconsciously. The latter may know all the details, but he may not have grouped them with strict proportionate accuracy. Sometimes the stranger in the dis- tance, looking through his telescope, can judge the respective heights of the buildings in a town better than the citizen who daily walks its streets. Our first attempt must be to sketch a plan. We shall never understand the Land Question if we attempt to master it all at once. There were three distinct (though sometimes convergiug) elements in the land agitation of the period. They 94 THE LAND QUESTION part n may be defined as the Sale question, the Squatting question, and the Quit-Eent question. We must deal with these separ- ately, though cross-references will sometimes be necessary. A. SALE. Almost contemporaneously with the new constitution, there came into force the first of a long series of Acts dealing with the sale of land in the Australian colonies. This was the Crown Land Sales Act of 1842, the 5 & 6 Vic. c. 36. It was passed with the object of securing an uniform system throughout Australasia, and included in its provisions, not only New South Wales, but also Van Diemen's Land, South Australia, Western Australia, and New Zealand.^ It laid down the fundamental proposition that there should be no disposal of Crown land otherwise than by sale at public auction of surveyed blocks not exceeding one square mUe,^ except in the following cases — 1. Lands required for public purposes.^ 2. Lands granted to military and naval settlers.^ 3. Lands occupied under annual licence for depasturing or timber- cutting.* 4. " Country " lots put up for sale and not sold.^ (Tbe private sale, however, must not be for less than the highest bidding or the upset price at the auction.) 5. XJnsurveyed blocks comprising 20,000 acres or more.* (But these are not to be sold at less than the lowest upset price of lands in the colony.) The sales by auction are to take place quarterly, upon due notice, and the lands sold are to be ranked in three classes of " Town Lots," " Suburban Lots," and " Country Lots." The first of these will include all lands within the boundaries of existing or contemplated towns. The second aU lands within a distance of five miles from any boundary of a town, unless the Governor should see fit to exempt in any particular instance. The third comprises aU other Crown lands.'^ The lowest upset price at which any land may be offered is to be £1 an acre,^ and this sum may be increased at any time by the Governor, subject to the approval of the Home government,^ but no reduction can 1 5 & 6 Vic. 0. 36, § 22. ^ §§ 2, 6. 3 § 3. » § 17. '^ § 12. 6 § 15. ' § 7. 8 I 8. 9 § 9. CHAP. XI THE CROWN LAND SALES ACT 95 be made at any time except by the Home government.^ The Governor may also at any auction raise the prices of " special " lots in the third class, or of any lands in the other classes, provided that they are for the first time offered for sale, and that the special lots do not exceed, in the " Country " class, one-tenth of the whole offered in the class, and these raised prices may be reduced at any time by the Governor to the statutory minimum.^ At private sales the price is always to be paid in ready money, and at auction sales there must be a deposit of at least one-tenth, with a contract to pay the balance within a month.^ Purchasers are entitled to pay money in the United Kingdom and obtain certificates of the fact from the commissioners for the sale of Crown lands and emigration, which certificates must be accepted as cash by the colonial govern- ment.* The revenue from the sale of Crown lands (after pay- ment of expenses) is to be devoted to the public service of the colony furnishing it, one-half to be expended in assisting emigration from the United Kingdom to that colony, in manner directed by the Treasury, subject to the regulations of the Privy Council.^ The Governor of any colony is empowered by proclamation (subject to disallowance) to divide it into any number of parts not exceeding four, each part to be deemed a distinct colony for the purposes of the Act, except that no corresponding division of immigrants is to be necessary." The moment that the provisions of the Act became known in the colony, there arose a strong protest against the policy of fixing the minimum price at £1 an acre. Even in the short session of the old Council which was held to inaugurate the new constitution, a petition was presented, which described the measure as unjust and injurious,^ and when the new Council met, further petitions came in.* The new Council, at once, on the 15th August 1843,^ appointed a committee to inquire into the provisions of the Act regulating the price of land, and on the 5th December 1843 the report of the com- mittee^" was presented. It strongly deprecated the raising of the minimum price to £1 an acre, as tending to deter purchasers, both for agricultural and pastoral purposes, because neither 1 § 10. 2 § 11. " § 13. " § 16. ' § 19. M 14- '' Votes and Proceedings, 1843 (1), p. 13. 8 Ibid. (2), pp. 77, 185. « Ibid. p. 21. '» Ibid. p. 765. 96 THE LAND QUESTION part ii pursuit would yield a profit on the purchase money. It would therefore strengthen the already existing tendency towards squatting, which the report regarded as injurious to the permanent interests of the community. Being unable to buy land, immigi'ants would be forced into a roving life beyond the limits of location, and industry and revenue would alike suffer. The report founded its conclusions on this head upon the fact, that whereas during a period of nine years under the five- shilling minimum (1831-1839) the Crown revenue from land sales had averaged nearly £60,000, on the increase to twelve shiUings it immediately fell to £12,000, while the prospects from the few months at £1 threatened to reduce it to about one-third of that sum. But the report goes on further to condemn the system by which the land revenue is employed to bring labour into the colony. This system was, of course, the pet theory of Mr. Wakefield, and was accepted in England at that time almost as gospel. But the committee point out that, to work land profitably, both labour and capital are required, and that a system which sends capital out to bring labour in is unsound. They add that the great land sales of the past years have been chiefly made to the colonists themselves, the latter having in many cases borrowed the purchase money from English capital- ists. The net result has been that the capital which has been brought in by borrowing has been sent out again for labour, leaving the liability on the colony. But it is expressly noticed that this latter argument does not apply to Port Phillip. The remedy proposed by the report is to induce immigrants to come at their own expense, and then to allow them a re- mission on the purchase of land equal to the amount of their passage money. In this way it was hoped that a superior class of immigrants, who would not be eligible for assisted passages, would be induced to come, possibly even in associated groups, which " would form, in fact, colonies withia the colony." But, in any case, the committee insist that the uniform price of £1 an acre is too high, even according to the Wakefield system. " That price would bring immigrants to the country at the rate of sixteen to the square mLle,"^ and it is pointed out ' This reckons the cost of each immigrant at £20. (It will be remembered that only JwXf the land revenue was devoted to immigration. ) CHAP. XI UNPOPULARITY OF THE MEASURE 97 that, in pastoral pursuits at least, the land will not support a twentieth of that number. The report, therefore, recommends that there shall be a division of the waste lands into classes, according to their value, a proportionate minimum price being set on each. The actual recommendations are — 1. The sandy and rocky scrubs. Minimtun price 6d. an acre. 2. The common pasture lands. Minimum price 2s. 6d. an acre. 3. The rich pasture lands. Minimum price 5s. an acre. 4. The alluvial banks of rivers having ) access to the markets, and the rich > Minimum price £\ an acre, brush lands along the coast. j It is worth whUe to bear in mind the purport of this report, for it first embodies in definite terms the economic views which have played such an important part in the history of Australia. The weaknesses of some of them are very obvious, but there is no doubt that the recommendation with regard to the immigrants was admirably conceived. If it could have been carried out, it would both have checked the influence of inferior immigrants and held the hands of the great capitalists. Unfortunately it is just the class of immigrants aimed at which is most difficult to get. To the rich capitalist a remission of passage-money is too small an inducement to be of much avail. To the penniless labourer it is a mere mockery. While the person to whom it would be a real boon, the small tradesman or mechanic, with a hundred pounds or so of spare capital, is just the man whom it is most difficult to move. He has not enough means to speculate, he has too much to be reckless. To spend the savings of years in passage-money seems to him to be a reckless throwing away of the hard earnings of his labour. Had the scheme been carried into effect, the patience of Austrahans anxious for the speedy development of their country would have been sorely tried. The report was, however, adopted,^ and resolutions founded upon its conclusions passed by the Council and embodied in the form of an Address to the Governor, with a request that they, together with copies of the report and evidence, should be forwarded to the Home government.^ But, before any ' Votes amd Proceedings, 1843, ii. 231. Three government officials concurred in the adoption. ^ Ibid. 231, 241. It will be observed, however, that the resolutions did not repeat the view of the committee that the employment of the Land revenue for purposes of immigration was " a fatal wrong. " H 98 THE LAND QUESTION part ii reply could be received, the Council, in the following year,^ appointed a second committee to inquire into all grievances connected with the lands of the territory, and to report, distinguishing between those which could be redressed in the colony and those which could not. On the 20th August 1844 the report was laid before the Council.^ So far as the sale price of land is concerned, the report confirms the views of its predecessor, emphasising its conclusions by recent evidence, and pointing out that in almost every other British colony, Canada, Ceylon, the Cape, land could be obtained by immigrants on far easier terms than in Australia, while the national deterrents from emigration to Australia were in some respects greater than anywhere else.^ The report recommends the total and immediate repeal of the 5 & 6 Vic. c. 36, and also of so much of the Constitution Statute as reserves the land revenue' from the control of the colonial legislature.* This last re- commendation, to which it will be necessary hereafter to recur, and which was supported by a long precis of historical evidence, perhaps reveals, more clearly than anything else, the ultimate hopes of the Council. But these hopes were not realised for another decade. The report was taken into consideration on the 13th September,^ and, after some debate, was adopted,^ by the vote of the elective members, the ministerialists of course voting against it. A long series of resolutions dealing with the recommendations of the report was passed, and, accompanied by petitions to Her Majesty and both Houses of Parliament,'^ embodied in an Address to the Governor.^ Meanwhile, a disclaimer of the more extreme language of the report, signed by 2 1 " Members of Council, Magistrates, Barristers, Clergy, Landholders, Bankers, Merchants, Traders, and other Inhabitants of New South "Wales," * was presented to the Governor and duly acknowledged by him and the Home government.-"' On the 5th August 1845 the answer of the Home govern- ment to the Address of 1843 was laid before the Council by ' On the 30th May, Votes and Proceedings, 1844, i. p. 19. 2 Ibid. p. 135. ' Hid. vol. ii. p. 125. « Ibid. p. 139. = Ibid. vol. i. p. 211. « Ibid. p. 216. ' Ibid. vol. ii. p. 121. « Ibid. p. 122. ^ Volume of Australian Papers, 1844-1850 (Melbourne Public Library). " Ibid. pp. 3, 4. CHAP. XI GOVERNOR GIPPS' VIEWS 99 the Governor.^ It appears that in forwarding the address and report to the Secretary of State for the Colonies, Sir George Gipps had stated at length his views on the subject. He pointed out that the action of the Government, in raising the minimum price to £1 an acre, did not commit the Government to the view, assumed by the report, that all the land in the colony was worth £1 an acre, but merely to the view that it would be better for the present not to sell land of less value ; that whereas the report professed to deprecate the step as prohibitive of the occupation of land, the real feeling of its authors was that it prohibited the sale of land. Upon this latter point the Governor says plainly, " A high minimum price acts as an inhibition on the sale of land which is not worth improving ; and lands which are destined to remain for ages in an unimproved state are, in my opinion, better in the hands of Government than in the hands of private individuals. I am not at all prepared to admit that a tract of unimproved country, say any tract of ten thousand or twenty thousand acres of unimproved land, yields, at the present moment, more profit to the community, in the hands of an individual, than the same tract of lands would in the hands of the Government ; I rather believe the contrary to be the fact." The Governor also points out that the existing system does not prohibit occupation of the Crown lands, because of the per- mitted squatting practice, nor really the sale of land in reason- able quantities, for there is still much private land in the market. And then he goes on to hint pretty plainly that what the Council wishes is a return to the old land boom which lasted from 1835 to 1841, when enormous quantities of land were forced on the colonial market, bought with borrowed money, and then driven up to fancy prices in the English market by judicious advertisement. The Governor attributes the existing commercial depression of the colony to the reaction from that period of speculation. But he frankly admits that the report speaks the sentiments of a vast majority of persons of all classes in the colony.^ The Secretary of State took the opinion of the Colonial Land and Emigration Commissioners, and they, in an elaborate 1 Votes and Proceedings, 1845, p. 14. ' Despatch in full In Votes and Proceedings, 1845, p. 333. 100 THE LAND QUESTION part ii report, confirmed the views of Sir George Gipps, further point- ing out that the remission system recommended by the Council was practically unworkable without a return to the old and condemned practice of free grants, and that the conclusions of the Council upon the relationship of > labour and capital were refuted by the fact that the demand for labour in the colony was as great as ever.^ Fortified by the opinions of Sir George Gipps and the Emigration Commissioners, Lord Stanley sent back a decided refusal of the requests contained in the address. The request for a transfer of the Land Fund contained in the report he barely alluded to, preferring to treat it as a " demonstration." But he pointed to the enormous material progress made by the colony since the introduction of the sale system, as conclusive proof that it had not failed, and he expressed his determination to adhere to it. One thing, however, the Government would do ; to remove all just cause of complaint, they would enable the squatter to purchase sufficient land for a homestead, and thereby render the land beyond the boundaries available not merely for pastoral occupation but for permanent residence.^ "Whatever may be the opinion as to the wisdom of the policy pursued by the Home government on this occasion, there can be no doubt that it was actuated by the best motives and the most careful consideration. The Government declined to allow the colonists of New South Wales to treat its vast area as their private purse, it claimed a share in the land for aU the subjects of the empire, and especially for the over- crowded populations of English cities. But it also asserted; and with obvious justice, that in supplying the colonists with labour at a low rate, it was giviag them the one thing needful to their real prosperity. It is clear that the old days of indifference to colonial affairs were now over. On the 20th May 1846 the Governor laid before the Council two despatches from Lord Stanley on the subject of Crown lands.^ The first dealt mainly with the question of squatting, and therefore falls to be considered under another head. It is, however, worthy of notice that the despatch ^ Report in Votes and Proceedings, 1845, p. 338. " Despatch printed in Votes cmd Proceedings, 1845, p. 342. IS, 1846, vol. i. p. 13. CHAP. XI FURTHER PROTESTS loi approves of a measure recently introduced into the House of Commons with the object (amongst other things) of declaring the Crown's right to grant land, reserving the minerals or a royalty thereon.-' This was the beginning of a subject which was afterwards to prove very important. The second despatch was in reply to the resolutions of I7th September 1844,^ and is also concerned almost entirely with the squatting question.^ On the 2d June* the Council addressed the Governor for a return of all correspondence between the Bxecutive and the Surveyor -General, since the date of the last returns, relative to the alteration in the upset price of land.' On the 10th September this correspondence was laid before the Council and proved to be very short, showing merely that the Governor had adopted the advice of a sub- ordinate with regard to the size and minimum price of suburban allotments.® On the 25 th, on the motion of Mr. Eobert Lowe, the Council adopted a series of resolutions con- demning the raising of the minimum price, and af&rming the principle that the minimum upset price of land ought to be reduced to a sum not exceeding its value.' It is noticeable, however, that Mr. Lowe had only a bare majority on this occasion. Still the matter was not allowed to drop. On the 23d July 1847 a committee of the Council was appointed to inquire into, and report upon, what ought to be the minimum "upset price or prices of land in the various counties and districts of Few South Wales." ^ On the 13 th August the Council addressed the Governor for a return of " all Acts and Eegulations of the Government — Home as well as Colonial — affecting Crown lands, either as regards their sale or occupa- tion, since the abolition of free grants in 1831."^ In answer to this address the Council received (on the 9th September) a most valuable return, in which many documents affecting the question, which can scarcely be seen elsewhere, are set out at length.^" On the 24th September the answer of the Secretary 1 Votes and Proceedings, 1846, vol. i. p. 59 (copy of bill enclosed). ^ Ante, p. 98. ' Votes and Proceedings, 1846, vol. i. p. 65. * Ibid. p. 34. = 2bid. " Ibid. vol. ii. p. 249. ' Ibid. p. 46. 8 Votes and Proceedings, 1847, vol. i. p. 129. ' Ibid. p. 161. i» Ibid. p. 633. 102 THE LAND QUESTION part ii of State to the resolutions of 1846^ was laid before the Council.^ The answer merely adhered to the former position.^ On the 28th the report of the new committee was presented.* It is extremely lengthy, and in its general features can best be described as one prolonged grumble. It fails to meet the main argument of Sir George Gipps and the Home government, and is valuable only for one suggestion, and for the evidence which it affords of the appearance of a feeling on two distinct points, one of which proved afterwards of some consequence. The committee point out that the high selling price of land, combined with the greater security recently given to the squatters, will tend to make the squatting interests so per- manent and powerful as to be a source of danger to the com- munity. No one being anxious to buy the squatting lands at £1 an acre, the squatters will remain undisturbed until they acquire a moral, if not a legal title to their lands, by pre- scription. The jealousy of the great squatters, now beginning to manifest itself, is clearly indicated by the report, which also betrays some ill-feeHng against South Australia as the model colony, to gratify whose doctrinaire founders the price of land in New South Wales must be maintained at a prohibitive price.^ After this report, upon which no decided action seems to have been taken, there was apparently a lull in the storm, broken only by the presentation of occasional petitions.^ The report was duly sent home, and on the 2 2d May 1849 the answer of the Secretary of State arrived.'^ Earl Grey stands by his former position, maintaining that the experience of Canada and "Western Australia, where unrestricted land aliena- tion has been allowed, proves clearly the superiority of the restrictive system, pointing out that the reduction in the amount of the Crown land sales in later years has only been natural and perhaps desirable, as private individuals take the place of the Government in the land market, and hinting that 1 Aiite, p. 101. 2 Votes and Proceedings, 1847, vol. i. p. 215. 3 Copy in iUd. p. 507. * Hid. p. 219. ' Report on Votes and Proceedings, 1847, vol. ii. p. 513. (It was suggested that a reduction of the minimum upset price in N. S. Wales would have drawn away immigration from South Australia. ) ^ E.g. 29th Sept. 1847, Liverpool, Votes and Proceedings, 1847, vol. i. p. 731. 25th April 1848, Queanbeyan, ,, ,, 1848, p. 395. 24th Nov. 1848, Yass, Volume of Australian Papers, 1844-1850. ' Votes and Proceedings, 1849, vol. i. p. 16. CHAP. XI COMMONAGE RIGHTS 103 the assertion of the report, to the effect that the raising of the price has almost annihilated land speculation, is a matter for congratulation rather than regret.-' Accompanying Earl Grey's despatch is a long letter from the Emigration Commissioners, who repudiate very warmly the suggestion that the policy of the 5 & 6 Vic. c. 36 was influenced by the South Australian Commissioners (whose commission was cancelled before the Act was passed), and who answer in detail, in much the old strain, the various allegations of the committee. The objection that the combined policy of the Sale and Squatting Acts encourages dispersion and tends to confirm a squatting into an owning title, they meet by pointing out that these evils existed before the new policy came into force, will be checked by the powers reserved to the Crown, and are even now made a source of revenue.^ Meanwhile a new and interesting phase of the Land Ques- tion had appeared. On the 29th March 1848 there had been issued a new set of Land Eegulations,^ made in pursuance of an order of the Privy Council of the 9th March 1847,* which, though primarily dealing with the squatting question, were also concerned with the purchasers and grantees of Crown lands. They provided that the holders of purchased lands within the settled districts should be entitled to pasture their stock, free of charge, on any vacant Crown lands immediately contiguous to their respective properties, but without the power of erecting any building or enclosure, or of clearing or culti- vating any portion.' But the permission was to carry no exclu- sive right, merely a right of commonage with other persons, and was to give way at once before any more permanent purpose for which the lands might be required." Moreover, the holders in fee-simple of any land within the settled districts are to be allowed to obtain leases of adjacent vacant Crown lands, to the extent of their own holding, but not less than 640 acres, at a fixed price of ten shillings per section of 640 acres.'^ If there are two or more claimants they must agree among themselves or (where there are only ' Copy of despatch in Votes and Proceedings, 1849, vol. i. p. 481. 2 Ibid. p. 483. ^ Gm. Gazette, 1848, 29th March. * Copy in Gov. Gazette, 1847, p. 1071. The order itself was founded on the Act 9 & 10 Vic. c. 104, of which more anon. " Regulations, § 2. = Ihid. § 3. ' IMd. § 16. 104 THE LAND QUESTION part ii two rivals) submit to an arbitration, or the leases will be put up to auction in the same way as those to which there is no pre-emptive claim.-' These Eegulations do not specify the length or terms of such pre-emptive leases, but, by inference,* we may assume that they were annual, for pastoral purposes only, and carried no right to claim compensation for improve- ments. Holders of granted lands on which the quit-rents have been redeemed are to be deemed purchasers for purposes of the Eegulations ; where the quit-rents are not redeemed, they stand on the footing of grantees — i.e. are not entitled to free commonage, but have a pre-emptive right to leases to the extent of their granted lands.^ It will be observed that these Eegulations, whilst pro- viding a commonage pasture for the small landholders, do not make any provision for a several or separate pasturage for any one whose holding is less than 640 acres. The claims of these persons, however, received attention later in the year, when the Government and the Surveyor-General between them devised a plan by which each smaller portion sold * was surrounded by a belt of reserve, bounded by section lines or streams, described as " a sort of commonage," but really arranged as smaU severalties.^ Once more the whole question was considered by a committee of the Council, appointed on the 12th June 1849.^ Mr. Eobert Lowe was again chairman. On the 3d October' another lengthy report was brought up, which, after combat- ing at great length and with much acrimony the various arguments of the Home government,' finally agreed with all those arguments in principle, but differed from them in the matter of application. The contention of the committee now is that the suggested price of five shillings an acre will do all that the existing price of £1 is supposed and desired to do, while it will allow a moderate sale of land, and put a stop to M 19. = § 4. 3 I 21. ^ The question was rendered important by the practice then recently intro- duced of selling "Special Country Lots" of twenty to thirty acres to small farmers. 5 Vide letter to Surveyor-General, Votes wnd Proceedmgs, 1849, vol. i. p. 816. See reference to this plan in Eegulations of 21st November 1848, Gov. Gazette, 24th November 1848. * Votes and Proceedings, 1849, vol. i. p. 57. ' Ibid. p. 289. CHAP. XI CRITICISM OF THE OPPOSITION 105 the encroachments of squatters. " Thus the colonists are at issue with the Home government, not on a question of political or economical science, but on the exchangeable value of a commodity regulated by local circumstances, of which the most ordinary intelKgence on the spot must necessarily be a better judge than the most enlightened statesman in Europe.^ The contention of the committee being thus stated in a nutshell, we can test its validity in a very simple way. The committee argue that the price of £1 an acre is not merely restrictive, but prohibitory, and that five shillings is the fair value.^ Turning to the figures quoted in the report itself, we find the following facts — 1. That the raising of the minimum price from five shillings to twelve shillings in 1839 apparently reduced the sales from 465,000 acres (1838) to 254,000 (1839), but that the sales in 1840 rose again to 527,000 acres. 2. That the introduction of a fixed, price of £1 an acre at Port PhiUip in 1841 was followed by a fall to 117,000 acres in the same year. But it is necessary to observe that, while the sales in Port Phillip, where alone the change worked, fell from 83,000 acres (1840) to 49,000 (1841), or a decrease of about 41 per cent, in the Sydney district, lahe/re there was no change at all, they fell from 444,000 acres (1840) to 68,000 (1841), or a decrease of about 600 per cent. Evidently the change was due to something else than the alteration of price. ^ 3. That in spite of the restoration of the twelve shillings minimum in Port Phillip in 1842, the total land sales of the colony fell again from 117,000 acres (1841) to 44,456 acres in 1842. 4. That on the general raising of the minimum price to £l an acre, in 1843, the sales fell again to 11,000 acres in that year, and to 7000 in 1844. But this was the lowest point. In spite of the maintenance of the high price, the sales rose in 1845 to 18,000 acres, to 27,000 in 1846, and to 62,000 in 1847, when the protests of the Council were loudest. They had, however, fallen again to 47,000 acres in 1848.* It seems quite safe to draw two inferences from these facts : first, that other causes than the amount of the minimum price had a great effect on the quantity of land spld ; second, that the fixing of the minimum price at £1 an acre did not pro- hibit the sale of Crown land. 1 Votes and Proceedings, 1849, vol. ii. p. 553. ^ Ibid. p. 552. 3 The necessary information as to the Port Phillip figures is taken from the tables in the Victorian Year Book, 1887-88. * See summary in Votes and Proceedings, 1849, vol. ii. p. 549. io6 THE LAND QUESTION part ii ISTevertheless the report was duly sent home, only once more to receive an emphatic refusal from the Secretary of State, founded upon another confirming opinion of the Emi- gration Commissioners.'' B. SQUATTING. We turn now to consider the second division of the land question — the subject of squatting. On the 13th September 1843 Port Phillip District was subdivided into four squatting districts for the purposes of the Squatting Act,^ these four replacing the old pair proclaimed on the 1st July 1840.^ The four districts were named re- spectively the Gipps Land, Murray, Western Port, and Portland Bay districts. The two new districts, Murray and Gipps Land, were mainly carved out of the old Western Port district of 1840, so that it would appear that squatting was then being pushed in northern and easterly directions. But on the 9th November 1846 the fifth district of Wimmera was added in the north-west.* Perhaps a safer estimate of the increase of squatting pursuits may be obtained from a Eeturn presented to the CouncU in pursuance of an Address dated the 3d October 1843.^ The Eeturn shows that the receipts from fees paid to the Commissioners of Crown lands in the Port Phillip District rose from £10 : 3 : 6 in 1839 to £40 : 16 : 6 in 1840, to £139 : 12s. in 1841, and to £190 in 1842.^ But proportionally large as the increase had been, it was clear that the actual amounts received were ridiculously small. No returns as to the extent and stock of the squatting stations in Port Phillip at this date are to hand, but in New South Wales proper nearly 700 stations in the year 1840 paid just £60 for license fees, while the 800 of 1841 only yielded a third of that sum.'^ As the total acreage in the stations of 1841 included 9000 acres under actual cultivation, it was ' Volume of Australian papers, 1844-1850. a Vic. No. 7 (N. S. W.) 3 cf^_ QazMe of that date (N. S. W.) * Gov. Gazette, 1846, p. 1401. ' Votes and Froceedings, 1843, p. 111. 6 Ibid. 1843, p. 493. ' Ibid. p. 494. Later statistics show that in the Murray district in 1844 one squatter held 610,000 acres under one £10 license, another 96,000, two others 77,000 each. In the Gipps Land district the runs were smaller, the largest being 54,000 acres. But the smallest holding under one license was 1300 acres. (Cf. Votes and Proceedings, 1844, vol. i. pp. 672, 673.) CHAP. XI RECOMMENDA TIONS PER " GENERAL HE WITT" 107 clear that the squatters were getting agricultural land at about fivepence an acre rent, without reference to the vast pastoral tracts occupied by them, which were, however, covered by the stock tax. It should be observed that the proceeds both of the licence fees and the stock tax went into the general revenue. It seems to have been the practice, under the existing squatting Eegulations, to grant a £10 licence which enabled a licensee to occupy any number of runs without other permission.^ To remedy this abuse, new Eegulations were issued on the 2d April 1844 which required that a separate licence should be taken out for each station, that no station should exceed in area twenty-five square miles, unless the Crown Land Commissioner should certify that the stock carried upon it required more, and that blocks of land seven miles apart should be considered separate stations.^ But the matter evidently required further treatment. On the one hand it was necessary to protect the public, whose land would be diminished by any permanent interest given to the squatters ; on the other, it was most desirable that the squatters should be encouraged to improve and civiKse some- what smaller tracts of country instead of roaming over vast areas. Accordingly, on the 13th May 1844,* the Governor an- nounced that he had sent home, in the "General Hewitt," certain recommendations to Her Majesty's Government on the subject. His principal suggestions were as follow — 1. To allow a squatter, after five years' occupation, to purchase the fee-simple of not more than 320 acres of his run at a minimum price of £\ an acre, subject, however, to a deduction for improve- ments eflfected.* 2. To guarantee such "a purchaser undisturbed possession of his run for a further term of eight years, upon renewal of the annual £10 licence. 3. To allow at the end of such eight years a further purchase of 320 ' Cf. correspondence in Votes and Proceedings, 1844, vol. i. pp. 645-674. 2 Gov. Gazette, 1844, 2d April. ' Sydney Morning Herald, 13th May 1844, and Votes and Proceedings, 1844, vol. ii. p. 142. The ship sailed on the 3d AprU. * The land was to be put up to auction at £1 reserve, pliis the value of the improvements, which was to he credited to the squatter. io8 THE LAND QUESTION part ii acres on similar terms, witli a further guarantee for eight years> and so on. 4. If, however, the squatter is outbid at auction, the purchaser of the homestead, whoever he may be, is to have the rest of the run. The policy of the recommendations is not very clear. If it were to discourage monopolists and encourage settlers with moderate capital, it is obvious that the provision for sale by auction would singularly defeat the Governor's object. This provision would also deprive squatters of the security which the recommendations apparently intended to give them, by makiflg it uncertain for any man whether he would not be turned out of his run at the end of eight years, with his remote 320 acres of purchased land, valuable only as an adjunct to his run, left worthless on his hands. It is not a surprise, therefore, to find that both these recommendations, and the preceding Eegulations of the 2d April 1844,^ were exceedingly unpopular. Nineteen petitions, comprising 6500 signatures, are said to have been presented against them.^ Meetings to denounce them were held through- out the colony,^ including one at Melbourne, where it was determined to form a society of stockholders for the protection of pastoral interests, to be called the "Pastoral Society of Australia Felix."* Written opinions, many of them extremely long, were sent to the Land Committee of the Council then sitting, from all parts of the colony, by well-known settlers. Most of these opinions are decidedly unfavourable to the new policy but not all. A notably brief and emphatic communica- tion from Mr. S. G-. Henty of Portland ^ approves of all the new Eegulations except that which provides that stations seven miles apart shall be deemed separate. The report of the committee of 1844® also emphatically condemned the new regulations as "not only oppressive in their details, but absolutely impracticable in their original con- ception."^ But the main objection of the committee seems to have been of a legal rather than an economic character. They strive earnestly to show that the Eegulations are ultra vires. 1 AnU, p. 107. 2 Votes cmd Proceedings, 1844, vol. ii. p. 141. See the petitions in full. Hid. pp. 1-40. ' Ibid. p. 361 et seq. 4 Ibid. p. 367. 5 jiiid. p. 346. « Ibid. 1844, vol. ii. p. 126. ^ Ibid. p. 129. CHAP. XI MR. HOPE'S LEASING BILL 109 " Either," they say in effect, " the Squatting Act ^ was invalid as a fraud upon the Imperial Statute, 1 Vic. c. 2, by which the territorial revenue of the Crown was given up to the Con- solidated Fund in return for a Civil List, or the Eegulations are unconstitutional as attempting to raise taxation without parlia- mentary grant. The stock tax is provided for by the Squatting Act, but the alteration in the system of licences is a new taxation." The answer to this contention, which is supported by a good deal of rather unsound constitutional learning, is simply this : that the licence fees were not imposed under the Squatting Act, Which merely alludes to and recognises the right of the Crown to grant licences, and expressly saves the rights of the Crown in aU respects,^ The licence fees were not taxation, but rent. Though they were paid into the colonial exchequer, they really belonged to the Land Fund, which was then part of the Consolidated Fund of the empire, though by the English parliament allotted to particular purposes. The only authority entitled to complain of the Governor's action in the matter was the English parliament.^ In the year 1846 came the despatch of Lord Stanley,* enclosing -the draft of a bill proposed by Mr. Hope, and stating the views of the Home government upon the subject. The objects of this policy are stated by Lord Stanley to be the rendering available of the waste lands of the colony for pastoral purposes, with a due regard to the ulterior interests of the community. These objects it is proposed to effect by authoris- ing the Governor to grant either annual occupation licences or leases for not more than seven years, which leases are to' be granted without competition to persons who have been in occu- pation of their runs for five years, but in other cases after bidding at auction. Occupation under licence is not to give any right as against the Crown, but lessees wUl of course be unremovable during the existence of their terms.^ The bill 1 2 Vic. No. 27 (N. S. "W.) ^ §§ 2 and 26. ^ Temporary arrangements were made by Regulations of the 10th July 1845 {Gm. GazeUe, 11th July 1845). * Copy in V. mid P., 1846, vol. i. pp. 59-65. " §§ 1 and 7 of bill in Votes and Proceedings, 1846, vol. i. pp. 62 and 63. The first section also provides that the reversion may not be sold by the Crown with- out the consent of the existing lessee. no THE LAND QUESTION part ii contemplates the granting of licences without fee, hut licensees on such terms are to pay an annual agistment charge not exceeding one penny for each sheep, or threepence for each horse or head of cattle, to be fixed by Order in Council, or by the Governor and his Executive Council.^ Moreover, the Governor is to have power to reserve all the minerals in any grant or lease, or a royalty for the working thereof.^ It is expressly provided that all proceeds from licence fees, agistments, rents, and royalties shall form part of the Land Fund, in the same manner as sale proceeds under the 5 & 6 Vic. c. 36.^ Meanwhile the Eegulations of 1844 had created a feeling of discontent which was about to break out into open flame. The existing Squatting Act (2 Vic. ISTo. 27) had been only temporary, and had been renewed with amendments in 1841 by the 5 Vic. No. 1. This renewal was about to expire on the 30th June 1846. A strong party in the Council had made up its mind to prevent its re-enactment, and the Governor, warned of the approaching storm, had been obliged to instruct the Crown Land Commissioners * to inform the men of the Border Police that it was quite uncertain whether the Govern- ment would have the funds to continue their services after the 30th June. The anticipated result happened. When the Colonial Secretary moved ^ the first reading of the renewing bill, his motion was defeated, after a narrow division, by an amend- ment which substituted for it an Address to the Governor.^ The Address declined, on the legal grounds stated in the report,^ to renew the Squatting Acts, but offered on the part of the Council to co-operate in organising a police for the squatting districts, on the understanding that the police was not used for collecting Crown revenue. The Address, when presented, came very near producing a passage of arms between the Governor and the Council, but the danger was happily averted.^ StUl the great difficulty remained. Was the Border Police to be disbanded ? Before the close of the first session of 1846 the Governor made a suggestion. Owing to the increased productiveness of 1 § 6. 2 § 2. 3 § 8. * See circular letter of 3d April 1844 in Votes and Proceedings, 1846, vol. i. p. 247. = On the 3d June 1846, iUd. p. 37. ' Votes and Proceedings, 1846, vol. i. p. 39. ' Ante, p. 109. ^ Votes and Proceedings, 1846, vol. i. p. 43. CHAP. XI CRISIS IN THE SQUATTING QUESTION in the stock tax during the preceding two or three years there was a considerable surplus, about £17,000, from the funds devoted to the maintenance of the Border Police. This sum the Governor proposed, with the concurrence of the Council, to expend in continuing the force, at least for a short time. But there was another difaculty. Of this £17,000 about £14,000 came from the squatting districts of Port Phillip alone, and the Governor did not. think it right in these circumstances to use the whole as a general fund for the colony. He proposed, therefore, to expend the £14,000 on the four squatting districts of Port Phillip.i Time and reflection, however, brought wisdom. On the 12th June the Council adjourned for six weeks, in no very placid state of mind.^ The Governor had not ventured to in- clude the Border Police in his regular estimates for the year 1847.^ When the Council met for the second session, on the 8 th September,* Governor Gipps had been succeeded by Sir Charles Fitz Eoy, and all was politeness and amiability. The new Governor promptly presented additional estimates, which included the large sum of £22,300 for the expenses of the Border Police, but proposed to charge the strict expenses of the Commissioners (amounting to £5000 odd) upon the Crown revenues.^ How much can be won by a little suavity ! The estimate went through without a shade of alteration.^ But the long-expected statute did not arrive, and the new Governor had to make such temporary provision as he could for the squatting question. By Eegulations of 30th June 1846 ^ the temporary rules of Sir George Gipps were adopted for another year, before the expiring of which it was anticipated that Mr. Hope's measure would have become law. On the 26th June 1847* the Legislative Council received the long- looked-for statute, together with the draft of a proposed Order in Council to be made under it. The Act in question is the 9 & 10 Vic. c. 104, which is very much simpler than Mr. ' Votes and Proceedings, 1846, vol. i. p. 165. ^ Ibid. p. 57. There were omens of discontent other than the Squatting question. Mr. Lowe had carried a resolution to address Her Majesty in favour of a reform in the colonial department, ibid. p. 55. s Of 28th May 1846, ibid. p. 135. ■* Ibid. vol. ii. p. 1. » Ibid. pp. 199, 203, 204. s Ibid. p. 99, Resolution 29. ' Copy in G. 0., 3d July 1846. 8 Votes and Proceedings, 1847, vol. i. p. 40. 112 THE LAND QUESTION part n Hope's bill of the previous year.^ It leaves the question of minerals untouched, and merely authorises the Crown to grant leases of or licences to occupy any of its waste land in Australia for any period not exceeding fourteen years, and to reserve any rent or other return therefrom, the pecuniary proceeds of such reservation to go to the Land Pund provided by the 5 & 6 Vic. c. 36.^ All minor points are to be provided for by Order in Council, except that no such Order may authorise the sale of lands otherwise than under the Act of 1842, except in the single case of sale to occupants under pre-emptive right,^ and even then the sale is not to be for less than the regular minimum price.^ The draft of the proposed Order accompanying the Act is very important, but as its provisions were almost exactly repeated in the actual Order of next year, it will be more convenient to notice the differences in our analysis of the latter document. Of course the draft of 1846 only acted as an indicator. On the 13 th August 1847* Mr. Lowe carried an address to the Governor for a return of licensed stations beyond the settled districts, and on the 4th April 1848 the return was laid before the Council.^ An additional statement was supplied on the 9th May,^ and from these documents we gather that there were in the Port Phillip squatting districts,^ in the. year ending 30th June 1848, 901 licensed stations, with a total area of 30,000 square miles, and a total stock of upwards of 3,000,000 head. These stations were in the hands of 822 persons, so that the aggregation of runs was not serious. On the other hand, the tendency to form very large runs was obvious. Of the total number of 901 more than two-thirds contained upwards of 10,000 acres each, more than one-third upwards of 20,000, and more than one-fourth upwards of 30,000, Gippsland was altogether the thinnest district, both in the number and acreage of her stations. The 1 Arde, p. 109. ^ §§ 1 and 2. The Act (§11) exempted New Zealand from the operation of the 5 & 6 Vic. 0. 36. Van Diemen's Land had been exempted by 8 & 9 Vic. ft 95. ' § 6. * Votes a-nd Proceedings, 1847, vol. i. p. 161. » Ibid. 1848, p. 375. « Ibid. p. 377. ' It should be remembered that there were now five districts, Wimmera having been added in 1846. CHAP. XI THE ORDER IN COUNCIL 113 new district of Wimmera was forging rapidly ahead, having a greater acreage occupied than Murray, or even the old district of Western Port. After this came the expected Order in Council. It is dated 9th March 1847,^ and begins by providing that, for the purposes of the Order, all the lands in New South Wales shall be deemed to be divided into three districts, of " Settled," " Intermediate," and " Unsettled." The " Settled " districts are to include — 1. The nineteen counties of New South Wales proper, and the reputed counties of Macquarie and Stanley. 2. The lands within a radius of 25 miles of Melbourne, 15 of Geelong, and 10 of each of eight other towns, of which the only one in the district of Port Phillip is Portland. 3. All lands within 3 miles of the sea. 4. All lands within 2 miles of either bank of the Glenelg, Clarence, or Richmond rivers, below points to be fixed, within certain limits, by the Governor. The " Intermediate " districts are to include — 1. All other lands in the counties of Bourke, Grant, and Normanby in Port Phillip, and Auckland in Sydney district. 2. AU other lands in the (squatting) district of Gipps Land. 3. The counties formed or intended to be formed between Auckland and St. Vincent, and all other counties proclaimed before 31st December 1848. The " Unsettled " districts are to include — All the other lands of the colony. The order is, of course, mainly concerned with the third class of lands, in the " Unsettled " districts, which now must be taken to replace the old " lands beyond the boundaries of location." We will deal, therefore, with these provisions first, and put them in the form of rules. 1. The Governor may let runs for fourteen years for pastoral pur- poses only (except that the tenant may grow crops for his own use) at a rent to be calculated on the estimated sheep- carrying capacity of his run, at £2 : 10s. per annum for each thousand sheep, with a minimum capacity of four thousand. 2. The right of the Governor to enter upon the run for public pur- poses is reserved. 3. The carrying capacity of the run is to be estimated by the Crown Commissioner, and a valuer appointed by the applicant, with power to name an umpire. 1 G. a. 1874, p. 1071. I 114 THE LAND QUESTION part n 4. The rent is to be entirely independent of any stock-tax imposed by the colonial legislature. 5. During the lease term the fee-simple of the run is to be unsale- able except to the occupant, to whom the Governor may sell not less than 160 acres (selected in mode prescribed) at not less than £A an acre. But the Governor may reserve from such sale any lands which he deems to be required for public purposes, and may fix a higher price on any that he deems specially valuable. 6. Notwithstanding the existence of a lease, the Governor may grant or sell any of the lands of the run for any purpose of public utility, or for mining ; and if a railway is laid through or near a run, the lands on both sides within a distance of 2 miles may be sold at the end of any year of the term, upon sixty days' notice to the lessee, with right of pre-emption and compensation for improvements. 7. All licensees at present in occupation are to be entitled to leases of their runs if they apply for them within six months of the publication of the order, or within six months of the expiration of their year of licence, whichever is last. 8. New runs are to be applied for by sealed tender, the highest offer (generally) being entitled to succeed. 9. Leases are to be forfeited by — a. Non-payment of rent. /3. Conviction of the lessee for felony. •y. Conviction of the lessee by a justice of the district for any offence which two or more justices, within three months, may deem, subject to the approval of the Governor, to be a good ground for forfeiture, with or without compensa- tion. 10. Euns of which the leases have expired may be put up to sale, subject to the following conditions — a. The previous lessee may buy the land at its unimproved value (never to be less than £l an acre). /?. If he declines, the value of his improvements (not exceeding the actual outlay) is to be added to the upset price, and paid over to him after the sale, by the Government. 11. If not more than a quarter of the run be sold, the previous lessee is to be entitled to a renewal of his lease at a rent representing the improved capacity (which is not, however, to exceed by more than 50 per cent his former rent), unless the run has previously been brought within the " Intermediate " districts. 12. Any other lessee is to pay the full improved rent, estimated as above provided. In the "Intermediate" districts, the same rules are to ■obtain, except that — 1. No lease is to be for more than eight years. 2. At the end of any year of the lease, sixty days' previous notice CHAP. XI SQUATTING REGULATIONS 115 having been given, any part of the run may be put up for sale upon the terms of rules 10 and 11 (above). In the " Settled " districts — 1 . The governor may grant leases, exclusively for pastoral purposes, for terms not exceeding one year. 2. He may also make Regulations by which the holders of purchased lands may depasture their stock, free of charge, on the adjacent Crown lands, but without any other than a permissive right.1 The policy of the last rule was carried into effect by Eegulations published on the 29th March 1848,^ which authorised the holders of purchased lands within the " Settled districts" to depasture stock on contiguous Crown lands, in common with other adjacent holders, but subject to removal at any moment. The Eegulations also announced that lands within the " Settled Districts " would be let in sections of not less than 640 acres at rents of not less than 10s. a section, certain special lands being excluded from the operation of this provision.^ The leases are not to be assignable, and there is to be no compensation for improvements. Moreover the lessee can be ejected at any time upon a month's notice, and if, at the end of the year, he does not obtain a renewal, his lease is to be put up to auction. Holders of fee-Simple purchased lands in blocks of 640 acres are to have pre-emptive rights of leasing three times the amount of adjacent Crown land (if such exists), the claims of rival owners to be submitted to auction. The lands within the " Settled Districts '' at present held on squatting licences are, if possible, to be leased to the existing occupants at £1 a section, and such sections as con- tain valuable improvements are not at present to be let to any persons except the occupants.* On the 16 th May 1848^ the motion for a return of licensed runs was repeated and carried, but seems to have produced no result during the year. In the meantime it was obvious that the squatting movement was rapidly spreading. ^ For the Eegulations carrying these provisions into effect, see Gov. Gazelle. (N. S. W.), 1848, sub dates 5th Januaiy, 31st March, and 24th November. 2 Gov. Gaxette (N. S. W.) of that date. ' Under tliis clause the lands within a radius of 5 miles from Melbourne and 2 miles from Geelong were excluded from lease by notice of 5th July 1849 {Gov. Gazette, 1849, p. 1007). '■ See Regulations in full {Gov. Gazelle, 29th March 1848). " Voles and Proceedings, 1848, p. 74. ii6 THE LAND QUESTION part n It was found necessary to pass an Act (11 Vic. No. 61) authorising the appointment of Commissioners (who must be carefully distinguished from the old " Commissioners of Crown Lands,") ^ to decide cases of disputed boundaries of runs. A new office had to be established in Sydney for the purpose of dealing with applications for licences.^ And when the new return appeared, which it did on the 2 2d May 1849,^ it was obvious that great strides had been made. The 54,000 square miles in the Sydney district of 1847 * had risen to 68,000 in eighteen months,^ whilst in the same period the squatting lands in Port Phillip District had risen from 30,000* to 46,000 square miles.' And this is all the more startHng when we reflect that the progress of more settled colonisation had necessitated the inclusion of two new tracts of ten miles radius round Belfast and Warmambool respectively, within the " Settled Districts," ^ and the proclamation in Port PhOhp of thirteen new counties,^ which thereby fell into the list of "intermediate" lands. In the year 1849 the assessment on stock in the Sydney district produced upwards of £15,000, that in the Port Phillip District upwards of £11,000.^° It is worthy also of note that early in the year 1849 the squatters of Port PhiUip had petitioned the Crown for the extension to them of the elective franchise ; and though the petition was not immediately granted, the answer of Lord Grey promised careful consideration for the request in the contemplated constitutional bill." 1 The latter were specially prohibited by the Act (§ 1) from serving as Boundary Commissioners. 2 Gov. Gazette (N. S. W.), 1848, 29th Dec. (This alteration did not, however, affect Port Phillip.) ^ Votes and Proceedings, 1849, i. sub date. * Ibid. 1848, p. 375. s jj,{^_ 1349^ i p_ 793, « md. 1848, p. 376. ' Ibid. 1849, i. p. 793. 8 By order in Council 11th August 1848. Proclaimed 12th March 1849. ( Votes and Proceedings, 1849, i. p. 349.) " By proclamation of 29th December 1848 {Gov. Gazette, 1848, 30th December). The counties were ; — FoUet, Dundas, Villiers, Ripon, Hampden, Heytesbury, Polwarth, Grenville, Talbot, Dalhousie, Anglesey, Evelyn, and Mornington. " Votes and Proceedings, 1850, ii. 285. " Ibid. 357. "We shall see that in the next Constitution Act (§ 4 of 13 & 14 Vic. c. 59) the request was granted, though not at the instance of the Government. The petition of the Port Phillip squatters was pre- sented by Lord Mounteagle. There were also amending orders in Council of CHAP. XI QUIT-RENTS 117 G. QUIT-BENTS. Fortunately the matter of the quit-rents can be disposed of in a comparatively short space. It does not specially affect Victoria, but is interesting as part of the history of the land system. It will be remembered that the quit-renters were persons who, in the days before the Land Acts, had received grants of Crown land in fee-simple, upon the condition of payment of a small annual quit-rent.-^ One of the objects of the Government in making these grants had undoubtedly been to induce free settlers to undertake the management and employment of convicts, and thereby to relieve the Government of the cost of their maintenance. So long as the convict system lasted, the Government seems to have been very casual in demanding payment of the quit-rents ; but when the system was abolished, the Crown considered itself entitled to demand the quit-rents from land which no longer saved expense to the Government. The qidt-renters, on the other hand, complained that they were deprived of cheap labour just at the time when the demands on their pockets were increased. In some cases they refused to pay the quit-rents, and the question then became aggravated by the circumstance that the distresses levied by the Crown sometimes included stock not belonging to the owners of the land. This practice was, of course, strictly in accordance with the law, but its adoption created some ill-feeling. The matter appears not to have been of any serious extent. On the 12th August 1845 the Legislative Council carried an Address to the Governor for a return of seizures made in the previous twelve months.^ The return was promptly furnished, and it appeared that only nine seizures had been made, which had realised just £600.^ In six cases stock belonging to persons other than the owners of the land had been taken. 18th July 1849, and 19th January 1850. But they did not efifect any sub- stantial changes. ' Cf. ante, p. 35. The term " quit-rents " {quieti reditus) was adopted, without much regard to propriety, from the old English manorial system, under which the tenant frequently compounded for his various labour and service dues by payment of an inclusive rent, and thereby became quit of further claims. ' Votes and Proceedings, 1845, p. 28. ' Ibid. p. 425. ii8 THE LAND QUESTION part ii Immediately upon the receipt of this return, the Council addressed the Governor requesting him to withdraw distress proceedings, pending the reply to the Crown Land Grievances Petition then before the Home government ; ^ but the Governor declined to take any step which might lead to the inference that he doubted the rights of the Crown.^ The petition alluded to by this Address is that presented in 1844 to accompany the report of the Crown Lands Grievance Committee.^ The report deals with the subject very briefly, resting its complaints principally on the facts that the extent to which the arrears had been allowed to accumulate had led purchasers to believe that they would never be demanded, and that the change in the convict system had deprived the quit- renters of cheap labour. It appears, by the evidence taken before the committee,* that at the close of the year 1843 the annual sum receivable from quit-rents throughout the colony was slightly over £10,000, and that the arrears amounted to upwards of £55,000. The committee, in its report, pledges itself to the statement that " much of the land is not now worth the amount of quit -rent due." ^ But it is significant that the Colonial Treasurer, the chief witness examined on this subject, declines to be responsible for this view,^ remarking that no surrenders had been offered. The report of the committee finally recommends' that all arrears of more than six years' standing shall be aban- doned, and large reductions made in the quit-rents on country lands. The reply of the Home government to the Land Grievances Petition ^ did not contain any special reference to the quit-rent clauses; but on the 9th October 1846 the Governor issued Eegulations ^ which offered very liberal concessions. All lands upon which twenty years' quit-rents had been paid were to be thenceforth free, and those persons who had paid more than twenty years were to have the difference refunded. Holders upon whose lands twenty years' rent had not been paid were to be entitled to redemption upon completion of the twenty years, ' VoUs and Proceedings, 1845, p. 85. ^ jhid. p. 98. ' Ibid. 1844, ii. p. 123, and anU, p. 98. * Votes and Proceedinys, 1844, ii. p. 218. 5 Ibid. p. 133. 6 Tjfc?. p. 215. ' Ibid. p. 138. 8 Ibid. 1846, i. p. 59. » Gov. Gazette (N. S. W.), sub date. CHAP. XI CONCESSIONS BY THE GOVERNMENT 119 a substantial discount being offered to those who wished to redeem at once. It appears that these Eegulations were issued without instructions from the Home government, for when, at the close of the year 1847, the Governor was memorialised by the quit-renters for further reductions,^ he at once expressed his inability to accede to the prayer of the memorial, on the ground that the Home government had disapproved of his previous concessions.^ The memorial in question is hardly creditable to its framers, in some at least of its clauses. It points out that the squatters beyond the boundaries pay a smaller rent per acre than the amount of quit -rent, and thence draws the inference that the quit-renters are placed at a disadvantage as compared with the squatters. It hardly needs a specialist to see that a mere temporary occupation of land in the wilderness is worth less than the fee-simple ownership of land in a settled district. And again, when the memorial states that the quit- rent " applies almost exclusively to the purchasers of land to a large amount, the payment for which has been the chief means of promoting the immigration into the colony of shepherds and servants," ^ it obviously means to suggest that the payment for the, lands on which the quit-rents are charged has had this effect, whereas nothing beyond the quit-rents (and in many cases not even these) was ever paid to the Government for those lands. In spite of the weakness of the case, however, the Legislative Council did not shrink from taking it up. On the 16 th May 1848 it agreed to an Address,* framed on the motion of Mr. Cowper,' to be presented to the Crown, praying the absolute remission of all the quit-rents. In ' promising to forward the Address, the Governor repeated his former expression of belief that it would meet with little success at the hands of the Home government.^ The Governor's predictions were amply justified by the despatch in answer to the petition, which was laid before the Council on the 4th July 1849.'^ Earl Grey points out® that the question is really between one particular class of settlers and the whole community, for which the Crown, in the collection 1 Votes and Proceedings, 1848, p. 75. ^ Ibid. p. 76. 3 Ibid. p. 75. * Ibid. p. 74. " Ibid. p. 59. « Ibid. p. 135. ' Ibid. 1849, i. p. 105. ' Ibid. p. 489. I20 THE LAND QUESTION tart ii and expenditure of the Land Fund, acts as trustee. He points out that the assignment of convict labour, so far from heing a burden on the quit-renters for which compensation had to be offered, was a most eagerly coveted boon. While as to the comparative dearness of lands held under the highest quit-rent of twopence an acre, Earl Grey shows that in a colony where the minimum price of Crown land is £1 an acre, and the average interest on money ten per cent, the man who pays twopence a year for his acre gets his land at about a twelfth of the price paid by the man who gives a lump sum of £1 for it. The only cases which deserve consideration are those in which the grantees of land emigrated on the distinct faith of the Eegulations of the Home government ^ which promised the assignment of convict labour. Although these persons have had splendid bargains, they are entitled to all that the original improvidence of the Government promised them. The latter promise was redeemed by a later despatch presented to the Council on the 21st August 1849,^ which authorises ^ the Governor to remit the quit-rents to those persons who can prove that they emigrated on the faith of the Eegula- tions of 1824,* provided they have in aU other respects fulfilled the terms of the Eegulations. But there are to be no half measures. The claimant must go entirely by the Eegulations upon which he founds his claim, or abandon it altogether.^ QENEEAL All these detailed grievances were, however, but indirect' methods of approaching the real object of the Council, the acquisition of the control of the Land Fund. After many pre- liminary attempts, and much talk of a " compact " alleged to have been made between the Home and the Colonial govern- ments,* the demand was boldly formulated by Mr. DarvaU in his Land and Immigration resolutions of the 2d August 1850,^ ^ Ante, p. 34. Regulations of 1824. = Votes wnd Proceedings, 1849, i. 191. ^ 75^_ p_ 48g. 4 ^„jg^ p_ 34. " Another small item occurred in connection with so-called "quit-rents" at Parramatta and other towns in the years 1849-50. But these were really lease- hold rents, and stood on a different footing. Cf. Vol. of Australian Papers, 1844- 1850, in Melbourne Pub. Lib. " E.g. in the report of 1844 ( Votes and Proceedings, 1844, ii. p. 134). ' Hid. 1850, i. 123. CHAP. XI ''GRIEVANCES'' 121 and by Mr. Wentworth in his comprehensive resolutions of grievances of the 27 th of the same month.^ The latter, along with many other serious charges, assert — " That in the opinion €f this House, the Imperial Act, 5 & 6 Vic. c. 36, which places the management of the lands of the Colony, and the appropriation of the revenues thence arising, beyond the control of this House, is a grievance ; that inasmuch as the whole value of these lands has been imparted to them by the settlement of the Colonists, and by the labour and capital which they have expended upon them, and that the value consequently belongs to the whole Colony, it follows that the entire revenues thence arising, whether by sale or rent, ought of right to form part of the Ordinary Eevenue, and to be subject to the sole control and appropriation of the Local Legislature." We shall see what response this challenge met with in the new Constitution. ' Votes and Proceedings, 1850, i. p. 209. CHAPTEE XII GOVERNMENT OFFICIALS AND ELECTIVE SEATS During the period whicli we are now discussing, there arose a constitutional question which, though smaU in itseK, involved great issues. On the 28th May 1844 Sir Thomas Mitchell, the Surveyor- General of New South Wales, took his seat in the Legislative Council as an elective member for Port Phillip, having heen elected on the resignation of Mr. Ebden.^ It will be re- membered that by the existing Constitution Statute (the 5 & 6 Vic. c. 76) the Crown reserved the right ^ to appoint one- third of the members of Council, but with a proviso that not more than half of the Crown nominees should be holders of public office under the Crown. The Surveyor-General had not been included in the list of officials appointed to the non-elective seats ; he could not be appointed by the Crown among its non- official nominees. But no express words of the Constitution Statute excluded him from choice by a constituency as an elective member. But it is clear that doubts had been raised by the Governor as to the correctness of Sir Thomas Mitchell's action, for the latter resigned his seat in the Council on the 15th August following his election,* and, at the request of the Council,* Sir George Gipps laid before it an extract from a despatch of Lord Stanley ^ which contained the following expression of opinion — " If Her Majesty's Officers think fit to assume relations and responsibilities, disqualifying them for the support of Her ' Votes and Proceedings, 1844, i. p. 9. '^ By § 1. ' Votes and Proceedings, 1844, i. p. 179. * Ibid. p. 57. » Ibid. 1845, p. 423. CHAP. XII GOVERNMENT OFFICIALS 123 Majesty's Eepresentative, they are of course perfectly free to do so, but having done so, cannot be permitted to retain their employment ; otherwise, there would not only be an end to all concert and subordination in Her Majesty's service, but the sincerity and good faith of those by whom it is administered would be brought into serious discredit." The subject was definitely taken in hand by the Council in the year 1846, when it passed an Act (10 Vic. No. 16), which excluded from membership of the Council all persons in receipt of salary or pension under schedules A, B, or C of the Constitution Statute, as well as all ministers of religion and government contractors. But the Act was reserved by the Governor for the royal decision, and apparently never became law, for in the year 1850 we find Mr. Wentworth bringing in a bill to disqualify ministers of religion.^ The question raised by this little incident may be looked at from two aspects. From the point of view of the Executive, the case was clear. The stability of English government in the colony depended chiefly upon the character and actions of its officials. These officials were, in most cases, men sent out from England, with salaries guaranteed by the Home government, responsible to it alone for their conduct, and entitled to its protection in the discharge of their duties. The position of the Legislative Council at this period was that of a critic, sometimes a rather severe critic, of the Executive. It was natural and right that it should be so. The colony was certainly not ripe for self-government, but it was awaking to a consciousness of its corporate existence, and gradually forming a public opinion which (as we are bound to believe) it expressed through the elective members of the Council. This public opinion, naturally looking at questions from a colonial standpoint, was not in- frequently opposed to the policy of the Executive, which, as naturally, looked at matters from an Imperial standpoint. Had the elected officials sided with the colonial opinion in the Council, they would have disturbed the balance of power contemplated by the Constitution of 1842, and perhaps de- feated the government, upon an important question, by means of its own servants. If, on the other hand, the elected officials had sided with ^ Votts and, Proceedings, 1850, i. 44. This bill was, however, dropped. 124 OFFICIALS AND ELECTIVE SEATS part ii the Government, an equal injustice would have been done to the Council, and to colonial views. The necessary link between the executive and the legislature was supplied by the nominee seats, and the colonists were entitled to the full benefit of the others. The dangers of an official House of Eepresentatives had been fully realised in England, and had given rise to the famous Act of 1708,^ which did not, however, technically apply to the legislature of New South Wales. On the latter account the Home government did not attempt directly to forbid to its officials the privilege of election, but it expressed its views pretty clearly in an indirect way. It is barely possible that the presence of elected officials in the Council might have led to a feeble attempt at a " Eesponsible " system, for constituencies might have unseated the official members if the Government policy displeased them. But this would have been a very poor system, for the real offenders, the important nominee officials, would have gone unscathed, while the Government would have cared little for a revenge which would have de- prived its own officials of the power of voting against it. On the whole, there can be small doubt that the view of the Home government was right. ' 6 Anne (st. I.), c. 7. CHAPTEE XIII SEPAEATION Pekhaps the question most deeply interesting to the settlers at Port Phillip during this second period was the question of separation from New South Wales. How it first arose it is impossible to say ; it is comparatively easy to see that it must have arisen. It is an old view that popular governments are less fitted than autocratic systems for the rule of distant dependencies, and as the inhabitants of the old colony acquired more and more self-government, the Government of New South Wales became less capable of administering Port Phillip. The settlers at Melbourne bore easily enough the magisterial government dispensed from Sydney, so long as their fellow colonists of New South Wales and Van Diemen's Land lived under a similar system. But as the government at Sydney passed slowly under the control of the colonists there, the inhabitants of Port Phillip district began to envy the good fortune of their brethren, for their own share in the Legislative Council was too small to give them a feeling of proprietorship in it, and, as we shall see, the distance of Port PhiUip from the seat of government soon rendered the actual representation a farce. The only possible alternative, that the colonists of Sydney should rule the settlers of Port Phillip, was hardly likely to be grateful to the latter. As a matter of fact, events were clearly tending to separa- tion. Almost every one felt that the colony of New South Wales was too large for united administration in any department. In the year 1846 there had been an abortive attempt to establish a new colony of "North Australia," by 126 SEPARATION part ii proclamation of 9 th November/ carrying into effect letters- patent of the I7th February, themselves issued under the 51st section of the Constitution Statute of 1842.^ The new colony was to consist of all those parts of New South Wales which lay north of the 26 th degree of south latitude. But appar- ently its existence was never recognised, and it was practically extinguished by a proclamation (16th January 1849) of Sir George Gipps, who, under letters-patent of the 3d April 1848, declared its territory to be again included in the colony of New South Wales.' But the year 1847 witnessed a more permanent step in the process of disintegration. On the 25th June the old Bishopric of Australia* was divided into the four sees of Sydney, Newcastle, Adelaide, and Melbourne, the diocese of Sydney retaining the primacy over the newly-created sees, as well as those of Tasmania and New Zealand.^ Inasmuch as, at this time, the Anglican Church, with other religious denomina- tions, received government support, it is clear that the new step must have produced some moral result in strengthening the feeling for separation. Moreover, from very early days, there had practically been a distinct executive in Port PhiUip. The treasury at Mel- bourne was administered as a separate iastitution, and its accounts rendered separately to the Legislative Council. There was a Port Phillip Land Of&ce, to which all applications for grants of Crown lands in the District had to be made. We have seen^ that there was a separate branch of the Supreme Court for Port PhiUip, with officials for whom the officials at Sydney were not responsible. The poUce and the Customs organisations were peculiar to the district. The more direct movement may be said to have begun in the year 1843, when, in pursuance of an address carried on the motion of the well-known Dr. Lang,'^ the Governor laid upon the table of the Legislative Council a return of the revenue and expenditure of Port Phillip from its first settlement to the 1 Gov. GazdU (N. S. "W.), 1846, p. 1422. 2 5 & 6 Vic. c. 76. 3 grow. Gazette, 1849, p. 117. * Founded January 1836. The bishopric of Tasmania had been separated in 1842. ° Copy of letters-patent in Government Gazette, 1st January 1848. ^ Ante, pp. 49 and 50. ' Votes and Proceedings, 1843, p. 27. CHAP. XIII SIGNS OF SEPARATION 127 close of tlie year 1842.^ The return showed ^ that the general revenue (including that from scLuatting licences) had been £222,984, with an addition of nearly £400,000 from the sale of Crown lands, making in all a total of about £620,000. The local expenditure amounted to £255,000, or a sum slightly in excess of the general revenue, but of this expenditure a large part was for public works. The expenditure upon immigration to Port Phillip had, however, only been £204,000, so there was a balance on the whole account of upwards of £150,000. Against this balance some vague claims were made by the Sydney officials for a share of the cost of the central administration.^ Frequent motions on the same subject by Dr. Lang in the course of the same year produced little result, but in the following year (1844) Port Phillip itself took up the matter. There were two petitions, one from the District Council of the county of Bourke,* and one from the inhabitants of Port Phillip District generally,^ asking openly for separation ; and one from the Mayor and Council of Melbourne ^ which pointed in the same direction. The petition from the council of Bourke points to the practical existence of a separate administrative organisation in Port Phillip, the jealousy with respect to the appropriation of revenue, the impossibility of providing adequate representation of the district at Sydney, and the moral benefit of independence to the community, as grounds for its prayer.'^ That from the inhabitants generally urges also the independent origin of the Port Phillip settlement, and the precedent of Van Diemen's Land in 1824.* The petition of the Town Council deals purely with questions of financial justice.^ In the year 1845 the motion for returns of Port Phillip revenue was renewed,^" and when the returns appeared,^^ they again showed a surplus, viz. of £24,000, on the two years' finance. But this time the surplus came from the general revenue, the expenditure from the Land Fund having greatly exceeded its receipts.^^ The same year also witnessed a petition ^ Votes and Proceedings, 1843, p. 35. ° Copy in ibid. p. 461. 3 Ibid. p. 461. •• lUd. 1844, i. p. 79. ^ lUd. p. 135. 8 Ibid. p. 217. ' Ibid. ii. p. 81. « Ibid. s Ibid. p. 89. " Ibid. 1845, p. 147. ' " lUd. p. 181. ''^ Returns in Hid. p. 463. 128 SEPARATION part ii from the Town Council of Melbourne praying for an extension of the representation, so as to secure to Port Phillip a fair proportion with the whole colony.^ It would not be easy to trace the local history of the question for the next two years without travelling beyond the scope of this work ; but that the matter had engaged the serious attention of the colonial government is manifest from the second paragraph of the very important despatch from Lord Grey which was laid before the Legislative Council on the 31st March 1848.^ This paragraph refers to six despatches from Sir George Gipps and his successor, Sir Charles Fitz Eoy, and to numerous extracts from the Minute Book of the Execu- tive Council, all bearing upon the question of separation. Un- fortunately, these documents are not accessible, but from Lord Grey's despatch we gather that the separation movement had been favoured by all the members of the Executive Council except two.^ The despatch itself is invaluable as a key to the policy of the Home government with regard to New South Wales and Port Phillip during the next few years. Lord Grey says plainly that England is prepared to grant separation; upon the great principle of local government. This principle has evidently been misapplied in the District Council scheme; it shall be tried again under more favourable auspices. But the document goes much further. Along with separa- tion. Lord Grey contemplates " a return to the old form of colonial constitution." * The Legislative Council at Sydney has been an attempt to combine the nominee and elective principles in a single chamber. The results have not been encouraging, and it is proposed to revert to the simpler method of two Houses. Moreover, the question of municipalities is to receive atten- tion. The evidence from America and Canada is too strong to allow the Imperial Government to abandon entirely all attempts at municipal institutions simply because the scheme of 1842 has proved abortive. Nay, if it be necessary, in order to secure due weight and consideration for the municipalities, the Imperial ' V. and, P. 1845, p. 98. ^ Copy in ibid. 1848, p. 177. ^ The Colonial Treasurer and the Bishop of Australia. * V. and P. 1848, p. 178. CHAP. XIII LORD GREYS DESPATCH 129 Government will be prepared to consider a scheme for making them " bear to the House of Assembly the relation of Constitu- ents and Eepresentatives." But, above all, the despatch alludes, in no obscure terms, to the project of co-operation amongst the legislatures of the various Australian colonies, in the matters of customs dues, postal and other communication, and the like ; and " that part of the plan which respects the creation of a central authority, implies the establishment of the system of Eepresentative Legislation throughout the whole of the Australian Colonies, including Van Diemen's Land, and South and "Western Australia." ^ Questions of territorial revenue, adjustment of boundaries, and discriminating duties will also require careful attention. It is not surprising that such a catastrophic missive should provoke considerable comment. In Committee of the whole the Legislative Council agreed (by 19 votes to 3) that the proposal of separation was injurious, or at least premature.^ The question of the two Houses produced a close division, but ultimately there was a majority of one vote in favour of Lord Grey's proposal.* By sixteen votes to five the Council affirmed its former view that the approaching changes in the constitution should place the control of the territorial revenue, or of the Civil List, in the hands of the colonial legis- lature.* And by fourteen votes to five it agreed to a resolu- tion strongly condemning the contemplated action of the Imperial Government in submitting the proposed changes to parliament before consulting the colonists.^ But here the Council seems to have found itself going rather too far, and the proceedings were discontinued.® Enough had been done, however, to show its feeling with regard to the great question of separation. Outside the Legislative Council the feeling was also strong. Some of the petitions which Lord Grey's despatch evoked do ' Votes and Proceedings, 1848, p. 179. 2 Ibid. p. 532. (Sir Charles Fitz Roy's despatch of 11th August 1848 states that a resolution in favour of separation "was carried without observation." But this does not agree with the oflScial records. Of. despatch in V. and P. 1848, p. 685. See also a repetition of this statement in the report of the Board of Trade of 4th April 1849, in V. and P. 1849, i. 703.) » Ihid. 1848, p. 533. * Ibid. » lUd. 1849, vol. i. pp. 685-693. « Ibid. 1848, 9th May. K 130 SEPARATION part ii not refer to the c[uestion, but many of the New South Wales petitions condemn it. Almost all_ condemn, some in violent language, the hint of the threatened change in the position of the municipalities, which is regarded as a menace to the most valued rights of representation. Needless to say that the Port Phillip petitions are ardently in favour of separation, but towards the rest of Lord Grey's proposals they are, at least, lukewarm.^ Shortly afterwards, however, the colonists at Port PhiUip determined to give a practical proof of the necessity of separa- tion, and the manner of their proof is somewhat interesting. At the close of the session of 1848 the Legislative Council had been dissolved, and, in the month of July, writs for the Port Phillip and Melbourne elections were sent down in the usual way. Tired of what they deemed the needless delays in the separation matter, the colonists suddenly determined to show their abhorrence of the existing system by a practical reductio ad absurdum. The official meetings of electors were held in due course, but at that for the District the only candi- date proposed was withdrawn at his own request, and at the election for Melbourne the meeting returned Earl Grey, the Secretary of State for the Colonies, as the duly elected candidate. The astonishment of the authorities may well be imagined, but their proper course of action was by no means so obvious. By old English theory, a constituency which failed to send members to parliament could be heavily fined, but there was no pretence for saying that, even as a matter of strict law, that Tule applied in Australia. The electoral rights and duties of New South Wales were purely statutory, and circumstances had so changed since the days of the old parliaments, that no legislator dreamed of providing for the case of a refusal to ■elect. On the other hand, though Lord Grey was ineligible, as a peer, for a seat in the English House of Commons, there was no law which prevented him sitting in the Legislative ■Council of New South Wales, and it could not - be presumed that he had no landed qualification in the colony.^ That point could only be settled when he claimed to take his seat 1 Cf. petitions in V. and P. 1849, i. pp. 681-683. ^ Vide opinionof law officers, ibid. p. 695. CHAP. XIII RETURN OF EARL GREY FOR MELBOURNE 131 If the object of the colonists at Port Phillip were the em- barrassment of the government, they certainly chose their measures well. But it is hard to see how they could benefit themselves by the new manoeuvres. The official view, taken by the Colonial Government, was that the electors had acted upon a sudden impulse, and would soon repent of their rashness.'- There is considerable colour for the view, for it is fairly clear that up to the morning of the 19th July (the day before the District election) candidates were in the field in the usual way,^ and the notices of the meeting which appeared in the papers of the 21st betray a good deal of surprise. One of the two leading Melbourne journals of the day^ heartily approved of the scheme, the other condemned it as suicidal.* Nevertheless, there was a good deal of determination in the minds of the supporters of the movement. The Port Phillip electors prepared a long memorial, in which a state- ment of their grievances and a full account of the election proceedings culminated in a prayer for immediate separation. The memorial was adopted at a public meeting, and signed by the Mayor of Melbourne.^ One of the minor influences at work seems to have been hostility to the great squatters, who, as such, had no votes, but who, it was alleged,^ secured the return of their nominees, and by their means even controlled the government in the squatting interests. It was hoped that the mov^ would frighten the squatters, by lessening their legislative influence over the government, and there is some slight support for the view in the fact that a meeting to denounce the scheme was summoned at the great squatting centre of Geelong. The Argus, which represented the anti- squatting interests, accused the squatters of combining to keep up the sale price of grazing land to £1 an acre, presumably to minimise, the prospects of the amount of licence lands being reduced.' The Government, however, acted upon its own view, and ' Letter of Sir Charles Fitz Roy ( VoUs and Proceedings, 1849, i. p. 693). ^ Messrs. Boyd, Foster, and Bogue (of. Port Phillip Patriot for July 14, 17, and 19). ^ The Melbourne Argus (of. 21st July). * The Port Phillip Patriot (same date). " Copy in Votes and Proceedings, 1848, i. p. 695. ^ Argus, 28th July. ' Argus of August 1. 132 SEPARATION part n ordered a re-election to take place for the District, making Geelong the chief polling -place.^ The result justified the measure, for at the new election held in October.^ five members were duly returned.^ But the agitation had done its work. The memorial sent home to Earl Grey had stated that — " Our six seats during five years have been occupied by no fewer than seventeen members. . . . Two elected resident members never sat at all, and but one resident member ever sat out more than a single session." * This was enough to convince any impartial person, and doubtless the statement had weight with Lord Grey, for within a few weeks of its receipt we find the Cabinet ® approving of a very elaborate report of the Board of Trade, which dealt fully with the question.® This report bears date the 4th April 1849, and was drawn up in pursuance of an order in Council of the preceding 31st January, referring to the Board for consideration the corre- spondence between Lord Grey and the Australian Governors.' It is worthy of the most careful study, as impartial evidence of the views of English statesmen towards the AustraHan colonies in 1849, and as the basis of subsequent legislation. Upon the immediate question of separation the report is very clear. The earnest desire of the Port Phillip settlers and the difficulties of representation at Sydney combine to render the step inevitable, and Her Majesty is requested to sanction it formally by bestowing her name upon the colony to be newly created. It is especially to be noted, in view of subsequent events, that the Board of Trade at this time entertaiaed no doubt upon the afterwards vexed question of boundaries. " The line of demarkation between New South Wales and Victoria would coincide with the existing boundary between the two districts into which, for certain purposes, the Colony is abeady divided. It would commence at Cape How, pursue a straight line to the nearest course of the river Murray, and follow the 1 Gov. Gazette, 25th August 1848. ^ The time had been extended by proclamation {ihid. 29th September 1848). 3 Ibid. 24th October 1848. « r. and F. 1849, i. p. 656. ^ I.e. nominally, of course, the Privy Council. 6 As to the nature of this latter body, cf. ante, pp. 2-4. ' Copy of report in F. and P. 1849, i. p. 702. CHAP, xm CHANGES FORESHADOWED 133 course of that river as far as the houndary which now divides New South Wales from South Australia." ^ But though we are dealing, in this chapter, chiefly with the one subject of separation, it is convenient here also to state shortly the other views of this important document, upon subjects intimately connected with it. Briefly, then, after much consideration, the Board advises the retention of the single chamber form in the constitutions both of the old and the new colony. Its own opinion, backed by most authorities in England and that of the Governor of New South Wales,^ points the other way, but deference to the wishes of the colonists,^ and the pledge of the Secretary of State,* forbid the present introduction of the bi-cameral system. With regard to the abortive scheme of local government contemplated by the Act of 1842, the report^ deprecates the formal abolition of the existing District Councils, but suggests a suspension of the scheme until it is set in motion by local rec[uest. To stimulate such request a most important proposal is made — ^viz. to allow each local body to expend one-half of the revenue from Crown land sales within its district in the effecting of public works, instead of having the expenditure effected by the central government at Sydney.^ Upon the subject of public worship the report recommends that the four churches then at present temporarily endowed from the general revenue'^ shall have their endowments guaranteed to them in perpetuity by charges on the revenues of their respective colonies,^ the proportions being slightly readjusted in accordance with the latest statistics, and the colonial legislatures being left free to endow any other religious bodies.^ The vexed question of the Civil List also receives attention. It had long been a complaint of the colonial legislature that by the reservations of the constitution of 1842 they were deprived of all control over a large portion of the general revenue, as well I V. and P. 1849, i. p. 706. » Cf. ibid. p. 309. ' Ibid. p. 704. ■• In Lord Grey's despatch of 31st July 1848, ibid. p. 309. ' Ibid. p. 706. ^ P. 707. ' I.e. Church of England, Church of Scotland, Roman Catholics, Wesleyans. 8 It was only in New South Wales that any such provision had heen made, and the new scheme is therefore only to apply to N. S. W. and Victoria. " P. 709. 134 SEPARATION part ii as over the Land revenue of the colony. The report proposes that this restriction shall no longer prevail, but that the local legislature shall have power to alter, hy statute specially reserved for the royal assent} the appropriations for the Civil List.^ The question of customs duties leads up to the important question of a General Assembly. The Board is so strongly convinced of the importance of an uniform tariff for Australia that it recommends its promulgation by Imperial statute, with power to alter it conferred upon a general Australian Assembly. For this purpose one of the Australian Governors is to be con- stituted Governor-General, and he is to have power to summon a House of Delegates elected by the various Australian legis- latures. The general body thus created is to have power to legislate for all Australia in matters of Customs and harbour dues, mails, means of transport, beacons and lighthouses, a general Supreme Court of Appeal, and the like, as well as in any matter unitedly submitted by all the colonial legislatures.* Such were, in outline, the features of the great Eeport of the Board of Trade, which, being formally approved by the Privy Council on the 1st May 1849, became the basis of the approaching legislation. A copy of the Eeport was at once forwarded to the colony by Lord Grey, with a despatch which promised the immediate introduction into parliament of a bill to carry out its sugges- tions. On the 26th September 1849 these documents were laid before the Legislative Council.* But before their receipt * the Council had practically affirmed its recognition of the separation claim by agreeing to a resolution proposed by Mr. Foster, " That in the opinion of this Council all revenues raised in Port Phillip after the 1st January 1850, whether General or Territorial, should be expended for the benefit of that District." « These events practically settled the question. In the year 1850 two despatches were received from Lord Grey, in which the Secretary of State regrets the unavoidable delay of another year in the passing of the Constitution Bill, and makes two rather important announcements with regard to the plans of 1 Note how different this is from the Council's ideal of an annual vote. It is, however, in accordance with English precedent. 2 P. 709. ' P. 710. * r. and P. 1849, i. 279. 5 Viz. on 7th August 1849. e V. avd P. 1849, i. 162. CHAP. XIII FINAL RESOLUTIONS 13S the Imperial government. The new constitution will not provide the uniform tariff, but will leave it to the General Assembly, while the question of the elective franchise wiU also be left to the colonial legislatures.^ One other point is worth noticing. On the 1 8th July 1850 the Legislative Council adopted an Address to Her Majesty embodying the resolution that " the reserving to the Secretary of State for the Colonies the gift of appointments to public offices in New South Wales is inexpedient, and that from the advanced state of society in this colony the patronage should be absolutely vested in the Local Executive." ^ This is a fore- shadowing of a still greater change, a change which is not to come for a few years yet. It is significant as showing the direction in which men's thoughts are turning — to the full responsibility of Cabinet government on the old model. But for the present we have enough on hand. Separation has come, with its need for new arrangements and divisions. What these arrangements are we shall see when we deal with the new constitution. Meanwhile the visitor to the Melbourne Public Library may read, in framed broadside, how, on the 11th November 1850, came the glorious news to Melbourne that the Separation Bill had at last emerged from the furnace of the Imperial parliament, and how, by the proprietor of the Melbourne Morning Herald, the citizens of " the long oppressed, long buffeted Port Phillip " were invited to make merry and rejoice. 1 Despatches in V. and P. 1850, i. pp. 353, 355. 2 V. and P. 1850, i. 78. CHAPTEE XIV GENERAL CONDITION OF POET PHILLIP IN 1850 At this crisis in the history of Victoria it may be well to turn aside for a moment from the strictly constitutional line, and take a bird's-eye view of the general state of the community. On the 31st December 1850 there were 69,739 persons in Port Phillip, and these had risen to 77,345 by the 1st March following. At the latter date the local distribution was as follows : — Melbourne Geelong Other places Total 23,143 8,291 45,911 77,345 Classed according to occupations, the population was divided thus : — ► (In round figures.) The most striking results are, however, obtained from the records of sex and age. The males exceeded the females by fifteen thousand (or more than one-iifth of the whole com- munity), and of the total number of males in the community, more than one-half were between the ages of 21 and 45. In other words, the masculine vigour available was in an enor- mously high ratio compared with the average community. Commerce 5,000 Agriculture . 3,900 Pasture . 7,300 "Other labourers" . 6,000 Mechanics and Artisans 3,400 Domestic service 4,600 " Other occupations " 3,500 (Unclassed) . 41,000 CHAP. XIV ECONOMIC FEATURES 137 There were about 11,000 houses in Port Phillip, of which some 5000 were of stone or brick, and the remainder of wood. Of the more substantial class, nearly four-fifths were in Mel- bourne and Geelong. The live stock of the community comprised about six and a half million head, of which about seven-eighths were " beyond the settled districts," i.e. in the great squatting localities of Gippsland, Murray, Portland Bay, Westernport, and Wim- mera. Six million head were sheep, as might have been expected from their locality, and about 378,000 were cattle. The total revenue for the year 1850 amounted to close upon £260,000, of which £123,000 was "general" and up- wards of £136,000 "territorial." The chief items of the general revenue were customs (£76,000), assessment on stock (£12,000), and " licences " ' (£10,000). The principal heads of the territorial revenue were sale of Crown lands (£29,000), land and immigration deposits (£92,000), and leases and licences to occupy (£12,000). The area of Crown land actually granted during the year was 40,000 acres, making a total of 354,000, or about 554 square miles, since the first settlement ; ^ but it is impossible to make a fair estimate of the sale value per acre upon these figures, inasmuch as the receipts often represent deferred payments and deposits. The expenditure from the general revenue was about £95,000, and from the territorial about £96,000. Of the latter item £81,000 represents immigration — far more than the due proportion, but probably the large amount is due to debts of previous years. Upon the whole the revenue exceeds the expenditure by £69,000 — considerably over 30 per cent. The industrial pursuits of the community were represented by forty-six factories actually at work — nineteen in Melbourne, and fifteen others in the county of Bourke. There were, of these, fourteen breweries, thirteen tanneries, and eight salting establishments. The imports of the community amounted in value to £745,000, the principal heads being — clothing, malt liquors and spirits, cottons and haberdashery, hardware, and tobacco. Of these imports nearly £700,000 value came from Great ' I.e. presumably publicans' licences. '^ This total, however, does not include the free grants for public purposes. 138 PORT PHILLIP IN 1850 part ii Britain. The exports were just over a million sterling, chiefly, of course, wool, though tallow counted for something substantial. The exports, with trifling exceptions, all went to Great Britain. The shipping, inwards and outwards, for the year 1850 amounted to about 500 vessels, with a burden of something less than 100,000 tons. More than four-fifths of these were British vessels. The convictions for crime during the year had amounted to 111, but of these 102 were for felonies, and we cannot help suspecting either that the convictions for lighter offences were not fully reported, or that the administration of justice in minor cases was somewhat intermittent. The picture of Port Phillip which these figures draw is very different from the Victoria of to-day. At the time of separation Port Phillip was a great pastoral province, whose wealth lay in its flocks and herds. One quarter of its male population was actually engaged . in pastoral and agricultural pursuits, and less than one-fifteenth in manufactures. This is a strange picture for one accustomed to think of Victoria as a great country of artisan interests, striving to build up a giant system of mechanical industries, and viewing all things from the point of view of town life. In fact. Port Phillip in 1850 was on the verge of a compound revolution, which was to change not only her political machinery, but her social and industrial life.^ ^ The figures in this chapter have been taken mainly from two contemporary sources of information — the returns in V. and P. (N. S. W.), 1851, vol ii., and in Victorian Government Gazette, 1851. They have also heen compared with the valuable tables contained in Mr. Hayter's Victorian Tear Book for 1886-87. PART III SEPAEATE GOVEENMENT CHAPTEE XV THE NEW CONSTITUTION-' The 13 & 14 Vic. c. 59 received the royal assent on the 5th August 1850. It is entitled "An Act for the better Government of Her Majesty's Australian Colonies," and we must therefore be careful to remember that it was not concerned solely, or even mainly, with the colony of Victoria. Still, it will be better for us to analyse first the sections which deal specially with Victoria, passing then to the provisions affecting also other colonies, and reserving comment for the end of the chapter. The first section, after a somewhat lengthy summary of the statutory history of government in N"ew South Wales from the 9 Geo. IV. c. 83 downwards, enacts that after certain provisions have been made by the Governor and Legislative CouncU of New South Wales, and upon the issuing of the writs for the first election in pursuance thereof, the District of Port Phillip shall be separated from the colony of New South Wales, and shall be erected into a separate colony under the title of the colony of Victoria.^ The new colony is described as being "bounded on the north and north-east by a straight line drawn from Ga^e Sow to the nearest source of the Eiver Murray, and thence by the course of that river to the eastern boundary of the colony of South Australia." There is to be in the new colony of Victoria a Legislative Council, consisting of such number of members as the existing ^ From this point the references to the volumes of Votes and Proceedings, Hansards, Oolmiial Statutes, and Government Gazettes will indicate those of Victoria^ unless otherwise qualified. 2 Cf. also § 5. 142 THE NEW CONSTITUTION part m legislature of New South Wales shall determine.-^ One-third of these members are to be nominated by the Crown, the other two-thirds to be elected by the inhabitants.^ Moreover, the legislature of New South Wales is to divide the colony of Victoria into electoral districts, and to make aU necessary provisions for the conduct of elections.^ The writs for the first elections in Victoria are to be issued (in default of special nomination by the Crown) by the Governor of New South Wales.* The electoral franchises for the Victorian Legislative Council are to be four in number — 1. Ownership of a freehold witlim the electoral district of the clear value of £100. 2. Householding resident occupation of dwelling-house, value £10 per annum, within the electoral district. 3. Holding of a pasturing licence within the electoral district. 4. Ownership of a leasehold estate in possession, with three years to run, of the value of £10 per annum, within the electoral district. But these franchises are only available for male natural born or naturalised subjects of Her Majesty and denizens of New South Wales, of the age of 21 years, and the qualification under the first two must have existed for six months prior to the registration or issue of writs. The disqualifications for voting are — 1. An existing conviction for treason, felony, or infamous offence ia any part of the British dominions. 2. Non-payment of rates and taxes due in respect of the qualifying interest more than three months before election or registration.^ The legislature of the new colony is to have full power, when constituted, to make any alterations in the mode of election and distribution, and even to increase the number of members of the Legislative Council, the due proportion of nominee and elected members being maintained.® But until such alteration, the existing provisions of the 5 & 6 Vic. c. 76, and the 7 & 8 Vic. c. 72, are to be in force.' Moreover, by a later section, the legislature is empowered to make radical changes in the constitution, by the creation of a second chamber, 1 § 2. = Ibid. = § 3. * Mi, » § 4. 1= § n. =■ § 12, cf. ante, pp. 70, 71. CHAP. XV POWERS OF THE NEW COUNCIL 143 and the like ; but measures of this class must be specially reserved for the royal assent.'^ The normal functions of the new legislatures created by the statute are defined by the very wide permission " to make Laws for the Peace, Welfare, and good Government of the said Colonies respectively, and, with the Deductions and subject to the Provisions herein contained, by such Laws to appropriate to the Public Service within the said Colonies respectively the whole of Her Majesty's Eevenue within such Colonies arising from Taxes, Duties, Eates, and Imposts levied on Her Majesty's Subjects within such Colonies." ^ Thus the new legislature of Victoria may be said to have started with a general power of legislation, and a special power of appropriation of the general revenue. The specific restrictions upon these powers are as follow — 1. No law is to be " repugnant to the Law of England." 2. No law is to " interfere in any manner with the Sale or other appropriation of the Lands belonging to the Crown within any of the said Colonies, or with the Revenue thence arising." 3. No law is to appropriate to the public service any sum of money unless the object has been specifically recommended to the Council by the Governor on Her Majesty's behalf. 4. No law is to authorise the issue of public monies except in pursu- ance of warrants under the hand of the Governor, directed to the Treasurer.^ The statement of the three last restrictions brings us naturally to the consideration of the revenue clauses of the new statute. We have just seen that the Crown expressly retains control of the Land revenue. But in other respects the powers of the colonial legislature are very wide. It may impose any customs duties it may think fit, upon British as well as foreign goods, save only that it must not impose differential rates,* levy duties upon supplies imported for land or naval forces, nor infringe the provisions of any treaty existing between the Crown and a foreign power.^ With regard to the Civil List also, its powers are greatly enlarged. For Victoria the legislature is required at first to vote an annual grant of £20,000 for the expenses of government and public worship." 1 § 32. The provisions of 5 & 6 Vic. 0. 76 and the 7 & 8 Vic. c. 74 as to bills reserved for the royal assent are continued by § 33. ^ § 14. s Ibid. " § 27. = § 31. 6 § i7_ scijed. (B). 144 THE NEW CONSTITUTION part m But the salaries of the judges may be altered by the legislature unreservedly (vested interests excepted),^ as well as those of the political officials, while the Governor must account to the Council for the details of expenditure, and, in varying the dis- tribution of the sum granted, must not increase the total amount payable, nor contravene any provision made by the legislature for any permanent appropriation.^ The Governor must also, at the beginning of every session, lay before the Council the estimates for the Government service during the ensuing year.* On the other hand, biUs altering the salary of the Governor, or the amount distributable for the maintenance of public worship, must be specially reserved.* "With regard to the administration of justice, it is provided * that Her Majesty may by letters-patent create a court, to be called " The Supreme Court of the Colony of Victoria," to be holden by one or more judges, with the powers of the Supreme Court of New South Wales under the 9 Geo. IV. c. 83. From the date of the constitution of such court, the powers of the Supreme Court of New South Wales, so far as Victoria is concerned, are to be vested in it ; but, until its constitution, the existing arrangements are to remain in force.* The colonial legislature is also expressly empowered to make further provisions for the administration of justice.^ The laws now operating by virtue of any authority in the territories comprised in the new colony of Victoria are to continue to be binding therein until altered by the proper authority, except that any powers vested in the Governor of New South Wales are to be deemed transferred to the Governor of Victoria.^ The statute deals also with the question of local govern- ment, but that portion of it will be discussed in a subsequent chapter. With those sections of the statute which refer exclusively to other colonies, we have nothing specially to do. We may note, however, that they contemplate the establishment in Van Diemen's Land and South Australia of Legislative Councils similar to those provided for New South Wales and Victoria, and, upon certain conditions, a similar establishment in Western Australia. Also it is worth remembering that the powers given 1 § 13. » § 18. 3 § 19. * § 18. 5 § 28. = § 28. ' § 29. 8 § 25. CHAP. XV INTEREST IN PARLIAMENT 145 to the Crown by the Act of 1842^0 separate from New South Wales any portion of territory north of the twenty-sixth degree of south latitude, under which power the abortive colony of North Australia had been founded,^ were renewed and extended by the statute of 1850. Her Majesty is empowered* from time to time upon the petition of inhabitant householders of territory north of the thirtieth degree of south latitude to detach such territory from the colony of New South Wales, and to erect it into a separate colony or colonies, or annex it to any colonies to be established under the powers of the Act of 1842, and such new colonies are empowered to adopt the form of constitution contemplated by the statute of 1850.* But there is one section of the latter enactment which touches Victoria specially. This section, the thirtieth, empowers Her Majesty, upon the petition of the Legislative Councils of New South Wales and Victoria, or one of them (with notice to the other), to alter, by order in Council, the boundaries laid down by the statute, and to vest territory in accordance with the alteration. If the changes of 1842 failed to excite attention in the mother country, the same complaint cannot be made of the attitude of the English statesmen of 1850. In spite of the Pacifico splutter and the vagaries of Lord Palmerston, in spite of the Irish distress and the formation of the Tenant League, in spite of Papal " aggression " and Jewish disabilities. Parlia- ment found time to discuss with care and animation the Bill for the Government of the Australian Colonies. Lord John Eussell, the premier of 1850, was one of the earliest English statesmen to recognise the importance of Australia. He took an active part in carrying the measure, and the great names of the day. Grey, Hume, and Eoebuck, as well as the men of the future, Gladstone and Disraeli, also interested themselves in the matter. There was a formal "protest" upon it in the 1 5 & 6 Vic. c. 76, §§ 51 and 52. " Ante, p. 125. The colony will be found delineated in Black's General Atlas (ed. 1857). s 13 & 14 yic. c. 59, § 34. * This section obviously contemplated the separation of the Moreton Bay District, much of which lay between the twenty-sixth and thirtieth degrees of latitude. But when Queensland was actually made a separate colony, it was constituted under the powers of the 18 & 19 Vic. c. 54 (cf. 24 & 25 Vic. 0. 44, preamble). L 146 THE NEW CONSTITUTION part iii House of Lords, and in many of the divisions the numbers were large and evenly divided. The measure seems to have been first introduced by Mr. Under-Secretary Hawes, in the House of Commons, on the 4th June 1849.^ In asking leave to bring in the bill, Mr. Hawes announced that it had three great objects ; the separation of Port Phillip from New South Wales, the establishment in each of the other Australian colonies of a constitution similar to that then in force in New South Wales, and the creation of a federal union amongst the colonies for general purposes. As minor objects, it was desired to give the colonies power to initiate a change to two-chambered constitutions, to estabhsh an uniform tariff, and to introduce an amended scheme of local government. Mr. Gladstone, as one of the leaders of the Tory Opposition (he had been in office under Sir Eobert Peel three years before), professed a general approval of the measure, but strongly recommended an extension of the existing franchise, and an attempt at two-chamber constitutions (especi- ally in view of a federal union), and strongly deprecated any attempt to fix a general tarifij either by the Imperial Parlia- ment or a General Assembly.^ After a few more observations, including a speech from Lord John Eussell leaning decidedly against the two-chamber principle, leave was given to introduce the bill,^ which was read a first time on the 1 1th June,* but did not get any further in the session. A similar fate befeU another bill introduced on the 26 th June.^ But early in the session of 1850 a new bUl was introduced by the premier. In a long and interesting speech, Lord John Eussell reviewed the history of the Colonial Empire, and explained the reasons which had led the Government to adopt its present policy. He admitted that the new bill differed from its predecessor in one important matter, in that it left to the colonists themselves the fixing of their own customs dues. The eager zeal of the new British convert ® was not to impose free trade upon the unwilling colonists. " That, I say, must in future be a cardinal point in our policy." ^ At the same 1 Englisi Hansard (3d series), ov. 1125. ^ IMd. p. 1128. 3 Ibid. p. 1138. * Ibid. p. 1368. = jhid. cvi. p. 922. ^ Sir Eobert Peel had practically given the death blow to protection in England l)y carrying, in 1846, his bill to abolish the corn duties. ' Hansard, vol. cviii. p. 565. CHAP. XV DEBATE ON THE BILL 147 time, it is quite clear that the premier hoped that the colonies would follow the example of England's fiscal reforms. On one other important point, Lord John Eussell made a declaration. He was willing to leave the long-vexed question of the Land revenue to be settled by the federal assembly which the bill proposed to authorise.-^ This offer, though it was not taken advantage of, must be carefully borne in mind in estimating the conduct of the Imperial Government on the Land question. The premier was followed by Sir William Molesworth, Mr. Eoebuck (as spokesman of " The Colonial Eeform Associa- tion"), Mr. Gladstone, and Mr. Joseph Hume, all of whom, on one ground or another, felt bound to oppose the Government, though they professed to agree in the main with the bUl. Mr. Gladstone, who had the support, amongst others, of Mr. Francis Scott, the official agent for the colony of New South Wales, was strongly opposed to the creation of single-chamber legislatures, but his view was negatived in committee by 198 votes to 147.^ In the Lords a similar proposal by Lord Mounteagle was only lost by two votes.^ Mr. Gladstone also proposed to introduce into the bill certain clauses conferring powers of self-government on the Anglican Church in Australia, but he was defeated by 187 votes against 102,* and the Bishop of Oxford's attempt in the same direction in the House of Lords met with a still worse fate.^ The General Assembly clauses in the bill were easily carried in a thin House of Commons," but though they scraped through Committee in the Lords,'^ Earl Grey thought it prudent to withdraw them when the bill came on for third reading.* As agreed to in Committee, these clauses empowered Her Majesty, upon petition of any two colonies to the Governor-General, to create and regulate by Order in Council " The General Assembly of Australia," consisting of the Governor-General and a House of Delegates elected by the legislatures of the petitioning colonies, and such others as should afterwards join, in the proportion of one member to every twenty thousand inhabitants, with a mini- ^ Hansard, vol. cviii. p. 555. 2 KM. vol. cix. p. 1343. ' Ibid. vol. cxi. p. 1047. * Ihid. vol. ex. p. 33. ^ lUd. vol. cxi. p. 1067. 8 Ibid. vol. ex. p 806. ' Ibid. vol. cxi. p. 1227. * Ibid. vol. cxii. p. 171. 148 THE NEW CONSTITUTION part iii mum of four for any colony. The General Assembly was to have power to levy and expend customs duties, create a General Supreme Court, and regulate means of communication for the colonies represented in it, and also to legislate for such colonies upon such other matters as they might unanimously agree to submit to it. But, of course, the authority of the Assembly was not to extend to colonies not represented in it, and it was even provided that a colony joining the Assembly might except itself from the operation of the matters expressly confided to the Assembly by the statute.-^ In the Upper House, the important section fixing the franchise for the Legislative Councils was introduced at the instance of Lord Lyttelton,^ but his lordship was not equally successful in his attempt to insert a section enabling the colonial legislature to repeal the Land Act of 1842. The debate is also worthy of notice for the suggestion thrown out by Sir William Molesworth, to the effect that colonial representatives might with advantage sit in the House of Commons.^ The non-appearance of any provision for handing over half the Land fund to the District Councils, as proposed by the report of the Privy Council,* was explained by Lord Grey, who pointed out that no statutory authority was necessary to do that which the Treasury was already empowered to do as a matter of administrative detail.^ In considering the debate as a whole, we are struck by two obvious reflections. In the first place, it is clear that the apathy which marked the proceedings of 1842 has entirely disappeared. We have seen that the most prominent men in both Houses of Parliament took part in the discussion of the measure. The speech of Lord John EusseU showed that he was in earnest about the matter. Earl Grey ® fought hard for the 1 Clauses at length in H. L. (Sess. Pa.), 1850, vol. iii. pp. 18-21. 2 Hansard, vol. oxi. p. 1048. ^ xUd. vol. viii. p. 1007. ^ AtAs, p. 133. 5 Hansard, vol. cxi. p. 505. * The name of Grey ooours so often and so honourably in the political history of this period, that it is necessary to warn the reader against confusion. The Colonial Secretary of 1850, the father of the Constitution Statute, was Earl Grey, and must not he mistaken for his relative Sir George Grey, who was Home Secre- tary in the same Cabinet and became Colonial Secretary in 1854, on the division of the ofBces of War and the Colonies. This Sir George Grey, again, must not be confounded with the Sir George Grey of New Zealand and South African fame, at this time Governor of New Zealand. CHAP. XV SUMMARY OF THE MEASURE 149 bill in the Lords, and perhaps showed true wisdom in refusing to imperil the whole measure by retaining the clauses so narrowly passed in Committee. The second point to notice is the extreme anxiety shown by parliament to learn the wishes of the colonists, and to accede to them when they were known. There was much dispute as to what these wishes actually were, but the deference intended to them is obvious. The only fact which can be fairly urged against the admission is the refusal of the House of Lords ^ to hear counsel for the opponents of the measure at a late stage. But there can be no doubt that the House was right both in principle and application. The biU was a public bill, dealing with vast general interests. The temper of Parliament was such that any reasonable view of dissent could have found formal expression from the lips of its members. On the other hand, the applicants had no official authority, there was nothing to show that they were anything more than individuals privately interested. To have allowed them to gain special access to the ear of the legislature would have been to sow the seeds of jealousy and future intrigue. Three peers thought it necessary, however, to enter a formal protest against the decision.^ The measure itself marks a distinct advance on the legisla- tion of 1842. It creates the new colony of Victoria, and makes provision for its constitutional government and administration of justice. It greatly extends the electoral franchise throughout Australia. It introduces representative institutions into South Australia and Van Diemen's Land, and provides for their ex- tension to Western Australia. It substantially increases the financial powers of the colonial legislatures. It modifies the unsuccessful scheme of local government. It makes plain the way for future constitutional reform in the direction of self- government. And finally, by placing the constitutions of all the Australian colonies on substantially the same footing, it removes one great obstacle from the path of united Australian action. ' Hansard, vol. oxi. p. 956. ^ Hid. p. 1468. CHAPTEK XVI THE INAUGURATION OF THE NEW CONSTITUTION The 13 & 14 Vic. c. 59 reached the colony on the 11th January 1851, and was duly proclaimed by the Governor on the 13th following.^ Thereupon, in accprdance with the 37th section, it came into operation, though much remained to be done in order to set it in motion. The statute was accompanied by a despatch from Earl Grey (dated 30th August 1850), in which the latter explained the views of the Home government.^ Earl Grey advises that no alteration shall for the present be made in the constitution under the powers of the 3 2d section. The Governor is not to assent to any bills reducing the salaries of existing of&cials, or making temporary grants for purposes usually provided for by permanent appropriations. Though the statute is silent as to the destination of the territorial revenue, the Home govern- ment has no desire to control its appropriation further than " to ensure its being expended on the objects to which it is legitimately applicable, and in a manner consistent with justice towards those from whom it is raised." Earl Grey also ex- pressly says that the 34th and 35th sections contemplate the founding of a new colony at Moreton Bay, and intimates (what we already know) that the General Assembly clauses have been thrown out in the House of Lords. Moreover the Secretary of State encloses a copy of a despatch sent by himself to Sir William Denison, the Lieu- tenant-Governor of Van Diemen's Land, dated 27th July 1 Gm. Gazette (N. S. W.), 1851, 13th January. " Copy in V. and P. (N. S. W.), 1851, Sess. i. CHAP. XVI DISCONTENT WITH THE SCHEME 151 1850. This despatch deals more exactly with the appropria- tion of the Land fund, and directs that it shall be used to supply labour where specially needed, and to provide public works. Where there are local bodies in existence, the actual expenditure should be entrusted, so far as possible, to them, but where there are not the Government should distribute, rather than the colonial legislature, in which the views of the back settlers are apt to be insufficiently represented. These despatches were laid before the Legislative Council of N"ew South Wales when it met to carry out the preliminaries for the new constitution. The existing Council was convened for this purpose by a Proclamation of the 31st January 1851,^ which announced the commencement of the session on the 28th March, On the appointed day the CouncU met,^ and as an item of interest to Victorians we may note that in this last session William Westgarth took his seat as member for Melbourne, vice Earl Grey.* The Governor's speech requested the Council to work out the preparation for the new constitution, and, as we shall see, the Council accomplished the task. But it was by no means satisfied with the turn of events. On the 8th April Mr. Wentworth moved for a select committee " to prepare a remon- strance against the Act of Parliament 13 & 14 Vic. c. 59" (the Constitution Statute), and the motion was carried, a com- mittee being appointed by ballot.^ On the 29 th April it brought up its report, which contained five separate " protests," embodying what may be regarded as the popular views of the day. These five protests are directed against — 1. The appropriation clauses of the Constitution Statute. 2. The continued reservation of the Land revenue. 3. The control reserved over the Customs. 4. The appointment of government officials by the Home authorities. 5. The provisions for the reservation of bills.^ The report was adopted by a vote of 18 to 8, the protests being turned into resolutions of the Council, and ordered to be ^ Copy in V. and P. (N. S. W.), 1851, Sess. i. 2 Gov. Gazette (N. S. W.), 1851, 31st January. 3 V. and P. (N. S. "W.), 1851 (Sess. i.), sub date. < Ildd. = Md. 8th April 1851. ° Ibid, sub date 29th April. 152 THE NEW CONSTITUTION part in sent to the Secretary of State and the members of the Privy Council.-' Another element of hostility had been introduced by the new member for Melbourne, Mr. Westgarth, who on the 15th April moved that an Address should be presented to the Governor for "all evidence, correspondence, and other docu- ments, explanatory of the principles acted upon in determining the boundary, as at present fixed, between the Sydney and Port Phillip Districts, now to be constituted the Colonies of New South Wales and Victoria respectively." But this motion was lost.^ In spite of these evidences of discontent, the Legislative Council performed the task allotted to it. Four of the five statutes of the session provide the necessary machinery for setting the constitution in motion, and three of them specially concern Victoria. The fourth was a new Electoral Act for the mother colony. The 14 Vic. No. 45 (K S. W.) provides in effect that aU justices of the peace and other officials holding office or commonly resident within the Port Phillip District at the passing of the Act shall continue to act as though the Separa- tion Statute had not been passed, untU removed or re-appointed by the Government of Victoria. The 14 Vic. No. 47 (N. S. W.) is the Victorian Electoral Act. It provides^ that the Legislative Council of Victoria shall consist of thirty members, ten nominee and twenty elec- tive. The elective members are to represent sixteen electoral districts constituted as follows — 1. Northern division of Bourke County. 2. Southern Bourke County, and Counties Evelyn and Mornington. 3. County Grant. 4. Counties Normanby, Dundas, and Follett. 5. „ Villiers and Heytesbury. 6. „ Eipon, Hampden, Grenville, and Polwartb, 7. „ Talbot, Dalhousie, and Anglesey. 8. Pastoral district of Gipps Land. 9. „ „ Murray (except that part included in county of Anglesey). 10. „ „ the Loddon, formerly Western Port (except • 1 V. and P. (N. S. W.), 1851 (Sesa. i.), p. 31. 2 IWd. 15th April. (The votes were 18 to \i.) ^ % 1. CHAP. XVI NEW CONSTITUENCIES IN VICTORIA 153 that part included in counties of Dalhousie, Bourke, Anglesey, Evelyn, Mornington, and Talbot). 11. Pastoral district of tie Wimmera. 12. City of Melbourne. 13. Town of Geelong. 14. „ Portland. 15. United towns of Belfast and WarmambooL 16. „ „ Kilmore, Kyneton, and Seymour.^ Amongst these constituencies the twenty members are to be distributed thus. Melbourne gets three, Northern Bourke and Geelong two each, and each other electorate one,^ the areas comprised within the towns having separate representation being excluded from the county franchise.^ In Melbourne and Geelong the mayors are to be returning officers, in other districts persons appointed by the Governor.* Electoral lists are to be formed of persons entitled to vote under the franchise section^ of the 13 & 14 Vic. c. 59, by Collectors appointed by the mayors in Melbourne and Geelong, and by the chief constables in the other electoral districts," and these lists are to be kept by the town clerks and clerks of petty sessions open for public inspection.'^ Eevision Courts are to be held, in each ward of the towns by the alderman and assessors, and in the other electoral districts by the justices of the peace in Petty Sessions,^ and the revised lists are to be recorded and copies circulated.^ The writs for the first election are to be issued by the Governor of New South Wales; for subsequent general elections by the governor of Victoria, but for casual vacancies by the Speaker.^" They are to be directed to the returning officers, who must hold polls, if necessary, on the demand of six electors, at which the voting is to be taken by signed papers.^^ (During the passage of the bill through the Council there had been three petitions from Port Phillip in favour of the baUot, but their suggestions were not adopted.) ^^ The names of the successful candidates are to be endorsed on the writs, and returned to the Clerk of the Legislative Council, and by him kept as evidence for five years.^^ 1 § 2. " § 3. 8 I 5. « §§ 6 and 7. » The 4th. « 14 Vic. No. 47, §§ 10-13. ' § 14. 8 §§ 16-21. s §§ 22-24. >« §§ 25-27. " §§ 28-43. 12 V. and P. (N. S. "W.), 1851, Sess. i., 11th, 15th, and 29th April. ^ 14 Vic. No. 47, §§ 44, 45. Clerk of which Legislative Council? The 154 THE NEW CONSTITUTION part in The Act prescribes substantial penalties for bribery, persona- tion, and repetition.^ The Council jnay proceed to business when there are not more than three vacancies by non-return,^ and disputed returns are to be decided by a committee of seven members nominated (subject to the approval of the Council) by the Speaker at the beginning of each session, as " the Committee of Elections and Qualifications." ^ Cases are to be brought on by petition, signed by a candidate or alleged elector, and presented to the Governor, or (at a bye-election) the Speaker, within four weeks from the return complained of, and referred, to the Committee.* The Committee is to have large powers of summoning witnesses, inspecting documents, and awarding costs ; and it may either declare simply upon the validity of an election, or report a special resolution to the Council.^ It will be noticed that this provision for the trial of election questions, which was adopted also in the contemporary New South "Wales Electoral Act,^ is a return to the principle of the GrenvUle Act. It hardly appears to be an improvement upon the plan of 1842. FinaUy, the Council passed the 14 Vic. (N. S. W.), No. 49, which provided that all laws and Government or other Public Eegulations, especially laws imposing Customs and revenue duties, previously made for the colony of New South Wales, and then in force within the District of Port Phillip, should remain in force, after separation, in the new colony of Victoria, until altered by the Victorian legislature. Having made these preparations, the old Legislative Council was, on the 2d May, prorogued till the 1st July,'^ and, on the 30th June, dissolved. On the following day, 1st July 1851, the writs for the first election to the Victorian legisla- ture were issued,^ and thereupon Victoria became a separate colony. So much for the changes in legislative machinery. We have now to notice the arrangements made by the executive. But before passing to these, we ihay turn aside for a moment to note an event which, though not of obvious con- Viotorian Council was not yet in existence, and therefore, presumably, could not have a clerk. i §§ 46-51. ^ § 53, s §§ 54.57. « §§ 64, 65. 5 g| 63, 67-72. « 14 Vic. (N. S. W.), No. 48, §§ 55-59. ' V. and P. (N. S. "W.), 1851, Sess. i. suh date. 8 G. G. (N. S. W.), 1851, 1st July. CHAP. XVI EXECUTIVE ARRANGEMENTS 155 stitutional importance, was practically to change the whole character of Australia, and with it the Victorian Constitution. The existence of precious metals in Australia had long been suspected, and the price of land had risen in consequence. But in the month of May 1851 the discovery of gold at Bathurst placed the matter beyond all question, and sent through the community an electric shock of such force as threatened to paralyse its members. The Governor took a firm stand at once, and by a proclamation of the 2 2d May 1851 ^ claimed for the Crown the exclusive property in all gold, whether found in private or Crown land, and threatened prosecution against all who should attempt to take it without licence. At the same time the proclamation promised speedy regulations for the issue of licences. The promise was fulfilled on the very next day, when Eegulations for Gold Licences, drawn up by the Governor, with the advice of the Executive Council, duly appeared.^ The details do not fall within our province, for the Eegulations were re-issued by the separate government of Victoria upon the discovery of gold within the new colony, and it is doubtful if the New South Wales Eegulations were ever deemed to be in force in Victoria. To return to more immediate topics. At the beginning of June arrived an important despatch containing the arrange- ments of the executive in contemplation of the ensuing changes. Lord Grey encloses the following documents — 1. Four Koyal Commissions under the great seal, appointing Sir Charles Pitz Eoy Governor of New South Wales, Van Diemen's Land, South Australia, and Victoria respectively. 2. The Instructions for carrying out each of these Commissions. 3. Eoyal Commission under the Great Seal, appointing Sir Charles Fitz Roy Governor-General of all Her Majesty's Australian posses- sions, including the colony of Western Australia. [The Secretary of State also intended to include a commis- sion to Sir Charles Fitz Eoy, under the seal of the High Court of Admiralty, as vice-admiral of the four colonies of New South Wales, Van Diemen's Land, South Australia, and Victoria ; but at the last moment it was found that this docu- ment was not ready.] 1 Gov. Gazette (N. S. "W.), 1851, 22d May. " Ibid. 23d May. iS6 THE NEW CONSTITUTION part m 4. Three Commissions, under the Royal Sign-Manual, to the respective Lieutenant-Governors of Van Diemen's Land, South Australia, and Victoria. The explanation of this somewhat embarrassing wealth of documents is given as follows. Sir Charles is to open immediately his Commissions as Governor of New South Wales and Governor- General, and the former, together with its appropriate Instructions and the Commission as Vice- Admiral of New South Wales, is to be deposited in the arcliives of that colony. The Commissions as Governor and Vice-Admiral of the other colonies, together with the appropriate Instructions, are to be transmitted to the respective Lieutenant-Governors, to be by them opened and deposited in the archives of their colonies. With these the Governor -General is to transmit the Commissions of the Lieutenant-Governors. The Commissions as Governor-General and Governor are not to be used to interrupt the ordinary course of administration in the other colonies, which will continue to be perfectly distinct from that of New South Wales, the Lieutenant-Governors corresponding directly with the Colonial Office. But the view of the Secretary of State is, that " the officer administering the government of the oldest and largest of those colonies should be provided with a general authority to superintend the initia- tion and foster the completion of such measures as those com- munities may deem calculated to promote their common welfare and prosperity." The Lieutenant-Governors, therefore, will be instructed to communicate on matters affecting common interest with the Governor-General, and to be guided by his judgment. Especially, the Secretary of State desires that no legislation shall be allowed which has for its object the creation of differences between the import duties of New South Wales and Victoria, without mutual communication. And if the Governor-General does deem it necessary to visit either of the three colonies, his authority will unquestionably supersede that of the Lieutenant-Governor for the time being. Earl Grey regards it as unlikely that Sir Charles will have occasion, under any circumstances, to visit Western Australia.^ In pursuance of these instructions Sir Charles Fitz Eoy took 1 Copy of despatch in Gm. Gazette (N. S. "W.), 1851, 7th June. CHAP. XVI POWERS OF THE LIEUTENANT-GOVERNOR 157 the oaths of office, and proclaimed himself Governor-General on the 12th June 1851. Passing now to Victoria itself, we find Mr. La Trobe, on the 15th July 1851, announcing his appointment as Lieutenant-Governor, under the sign-manual, which, in effect, authorised him to exercise the powers contained in the Governor's Commission during the Governor's absence. Mr, La Trobe's proclamation also announced that Her Majesty had appointed the Principal Law Officer, the Treasurer, and the Collector of Customs to be members of the Executive Council of Victoria.^ As the Lieutenant-Governor was at this time the real head of the Executive in the colony, it may be worth while to see what were his actual directions and powers under the Commission, which, it is believed, has never been printed.^ By the terms of this instrument, the Governor is directed to take care that the legislation of the colony conforms to the provisions on the subject in the Constitution Statute, and to appoint an Executive Council of persons nominated by the Crown with the advice of the Privy Council, or provisionally, by himself, which Executive CouncO. is in no case to consist of more than four members. He is empowered to divide the colony into "Districts, Counties, Hundreds, Towns, Townships, and Parishes," to make grants of Crown land with the advice of his Executive Council, and, subject to the provisions of the various statutes and his Instructions on the subject, to appoint judges and judicial officers, to remit fines and penalties up to the amount of £50 * in each case, to pardon or suspend or mitigate the punishment of offenders, and to suspend from office, in accordance with the terms of his Instructions, any officials he may deem it necessary to remove, until the Crown's pleasure be known. In case of the death or absence of the Governor, aU the powers vested in him may be exercised by any Lieutenant- Governor appointed under the sign -manual, or, in the event of there being no such person capable of acting, by the senior member for the time being of the Executive Council. ^ Om. Oazette, 1851, 23d July. (Apparently there had been a misprint in the earlier issues.) 2 The originals of these documents are in the Treasury Offices at Melbourne. ^ This limit was abolished in the governorship of Sir Henry Barkly (Letters- Patent of 2d December 1858, in Treasury offices at Melbourne). 158 THE NEW CONSTITUTION part iii But these foriaal powers were considerably qualified by the Eoyal Instructions which accompanied them, and which really formed the practical guide of the Governor's conduct. By these, the Governor is directed to observe certain rules for the prevention of ambiguities in legislation, and to reserve for the royal assent all measures having the following objects : — 1. Infringement of the royal prerogative or the freedom of worship. 2. Pledge of public credit for negotiable instruments, or introduction of paper or token currency. 3. Raising of money by lotteries. 4. Facilitating divorce. 5. Making grant to the Governor, or conferring a private benefit on any person without reserving the rights of others. 6. Interfering with the interests of British subjects not resident in the colony. He is also directed as to his appointment of an Executive Council, he must (unless specially prevented) preside at all its meetings, and see that accurate records of its proceedings are kept and transmitted to England. If he overrules the opinion of the majority upon any question, he must allow them to enter their reasons at length in the Minute-Book. He must properly carry out, in his alienation of Crown lands, the rules laid down by the Crown Lands Act. In making appointments to the public service, he must, in the first instance, only act tem- porarily, and await the confirmation of the Home government. When a death sentence is pronounced, he must call a meeting of the Executive Council, and summon the judge who tried the case ; but the final responsibility for the confirmation or respite of the sentence must rest with him. Finally, the Governor is to assist ia the organisation of the diocese of Mel- bourne, recently constituted, and to protect and educate the aborigines by all means in his power.'' Mr. La Trobe's own Commission (of the same date with that of Sir Charles Fitz Eoy) simply appoints him to the office of Lieutenant-Governor of Victoria, with all the " Eights, Privileges, Profits, Perquisites, and advantages to the same belonging," to hold during the pleasure of the Crown ; and empowers him, in case of the absence or death of the Governor, to exercise all the powers contained in the latter's Commission, according to present and further Instructions.^ 1 Original Instructions in Treasury offices, Melbourne. - The original of this commission is also in the Treasury offices at Melbourne. CHAP. XVI CRITICISM OF THE ARRANGEMENTS 159 To persons unfamiliar with the mysteries of Downing Street, these arrangements may seem needlessly complex.^ It may indeed well be doubted whether it was wise to attempt to create a general Executive for Australia, in face of the fact that the imperial parliament had definitely declined to create a general legislature, or even to provide for its creation. Suppose that in any difference of opinion between Sir Charles Fitz Eoy and Mr. La Trobe, with regard to Victorian affairs, the Legislative Council of Victoria had taken the side of the Lieutenant-Governor against his chief Both parties would have been placed in an awkward position. But if the legislature had appealed to Sir Charles Fitz Eoy against the Lieutenant-Governor, the position of the latter might have been intolerable. It must be re- membered that Sir Charles Fitz Eoy was not only Governor- General of Australia, but Governor of Victoria, as well as of New South Wales, Van Diemen's Land, and South Australia. Only towards Western Australia did he stand in the position of a mere overlord, and the terms of his Instructions were such that he must have felt that his position with regard to Western Australia was intended to be merely nominal. It was doubt- less the fear that the same result would ensue in the other colonies which led the Home government to make the compli- cated arrangements described in this chapter. But it seems more than likely that these arrangements, if acted upon, would have led to dire confusion, and, as a matter of fact, they never were acted on, at least so far as Victoria was concerned. If it was merely desired to pay a well-merited compliment to a valuable public servant, whose sphere of action was being apparently reduced just as he was deserving well of his country, the object might surely have been attained by the simple grant of the titular distinction of Governor-General to Sir Charles Fitz Eoy. However, the arrangement was continued during Sir Charles Fitz Eoy's tenure of office. Sir Charles Hotham's commission, dated the 3d December 1853,^ being in the same form as that of Mr. La Trobe. But on Sir Charles Fitz Eoy's departure, 1 It is possible tliat they were suggested by Indian precedents. (Of. 33 Geo. III. c. 52, §§ 40-46, and 3 & 4 "Will. IV. c. 85, §§ 56-59.) And again, the Australian precedent may have reacted on subsequent Indian practice. 2 Original in Treasury offices at Melbourne. i6o THE NEW CONSTITUTION part m in January 1855, a new Commission as Governor of Victoria,^ substantially in the same form as that of Sir Charles Fitz Eoy, was issued to Sir Charles Hotham; and though the title of Governor-General was contimied till the arrival of Sir John Young in Sydney in the year 1861,^ we hear very little more about it. It seems to have been of no practical value. With these preparations, the constitution of Victoria was got to work. But not without a severe trial of stability. For the discovery of gold in New South Wales was speedily fol- lowed by its discovery in Victoria, and so great was the shock that the wheels of government were well-nigh stopped. On the 16th July 1851, less than three weeks after separation, the Lieutenant-Governor was obliged to issue a notice to the effect that any public servant who resigned his post in the existing emergency would be noted as ineligible to serve again, and would certainly not be re-appointed during His Excellency's administration.^ And this ominous notice was followed at the expiration of a month by a proclamation * declaring it to be illegal to take gold from any lands in the colony, and to dig or search for gold in the unalienated lands of the Crown. On the 18th August 1851 appeared Eegulations for Gold Licences. They are practically identical with those issued by Sir Charles Fitz Eoy for New South Wales, and fix the licence fee at thirty shillings a month, payable in advance, the licence to be obtaia- able from the Commissioner on the spot, who is to make rules adjustiag the boundaries of the different claims, to prevent confusion. No one is to be eligible for a licence or renewal unless he produces a certificate of discharge from his last place, or proves to the satisfaction of the commissioner that he has not improperly absented himself from hired service. No licences to dig in private lands are for the present to be granted to any person but the owners or their nominees. The Eegulations are followed by the well-known form of licence.^ In spite of the severe shock produced by these events, and 1 Dated 2d Feb. 1855. Original in Treasury offices at Melbourne. The maxi- mum membership of the Executive Council is by tbis Commission extended to six. 2 Cf. Qo-o. Gazette (N. S. W.), 1861, 21st Jan., 16tb May. 3 am. Gazette, 23d July 1861. ^ 15tb Aug. 1851, Gov. Gazette. (MS. copy in Public Library, Melbourne.) ^ Copy of Regulations in Gov. Gazette, 20th Aug. 1851. (Specimens of licences actually issued can be seen in the Public Library, Melbourne.) CHAP. XVI FIRST VICTORIAN LEGISLATIVE COUNCIL i6i the evil passions wliicli they aroused, the new Constitution was started. On the 4th October the returns of the elections were published.^ On the 1 7th the first meeting of the Council was fixed by proclamation for the 11th November, at St. Patrick's HaU, Bourke Street.^ On the 31st the appointment of the non-elective members was proclaimed,* and on the 11th November the Council duly met.* There were names weU known in Australia on the rolls of the first Legislative Council of Victoria. Mr. J. P. Fawkner, one of the pioneers of the colony, sat for the counties of Talbot, Dalhousie, and Anglesey ; Mr. J. F. Palmer (afterwards Speaker) for Normanby, Dundas, and FoUett; Mr. WiUiam Westgarth and Mr. John O'Shanassy for Melbourne City. The nominee members included Mr. (afterwards Sir William) Stawell, the future Chief-Justice ; Captain Lonsdale, the first magistrate of Port Phillip ; Mr. (afterwards Sir Eedmond) Barry ; Mr. Ebden, whose resignation of his seat in the Sydney Council had led to the election of Sir Thomas Mitchell ; and Mr. William Clark Haines, the future Colonial Secretary and first Eesponsible Premier of Victoria. It will be noticed that of the nominee members only two were members of the Executive Council. Immediately upon the assembling of the legislature the members proceeded to elect a Speaker. The choice fell upon Mr. J. F. Palmer,® who, on the following day (12th November 1851), was allowed by the Lieutenant-Governor.® On the 1 3 th followed the latter's opening speech,'^ which contained more than one interesting announcement with regard to the future relations between the legislature and the executive. The Lieutenant-Governor stated that he should submit the details of the Government expenditure, even in the unalterable items of the schedule, for the Council's examination, that he should propose a revised tariff after consultation with the other colonies,^ that he should propose a new system of education and a new judicial system. He asked for an indemnity for the acts of the executive in dealing with the emergencies con- ^ Com. Gazette, 8th Oct. 1851. ^ Ibid. 22d Oct. ^ jj^. sth Nov. ■* V. and P. 1851, p. 1 (this volume is not in the Public Library). » IHd. 6 jiicl. p. 3. ' Ibid. p. 10. ^ This plan was never carried out. The Customs Acts of New South Wales and Victoria for the following year are substantially different (cf. 16 Vic. No. 2 [Victoria], and 16 Vic. No. 7 [N. S. W.]) M 1 62 THE NEW CONSTITUTION part iii sequent upon the gold discoveries/ and he laid before the Council the papers relative to the proposed financial settlement with New South Wales.^ Two more formalities had to be disposed of before the legislature could get fairly to work. Disputed returns required decision, and the Council needed Standing Orders to regulate the details of its business. There was only one case under the former head. On the 13th November the Lieutenant-Governor laid before the Council a petition which he had received from Geelong, complaining of the return of Mr. Eobert Eobinson for the constituency on the ground of bribery under the 47th section of the Electoral Act, " For supplying meat and drink to the voters at the said elec- tion and keeping open public houses thereat." ^ On the fol- lowing day the Speaker produced his warrant appointing the Committee of Elections and Qualifications,* its members were duly sworn, and on the 20th November the petition was referred to them for decision.^ On the 11th December their report was brought up and received. After hearing the evidence, the Committee found that the charges had not been proved, but that the petition was not frivolous or vexatious.^ This finding is practically equivalent to a declaration that " All's fair in war," and is not creditable to the morals of the com- munity at the period. The published evidence proves, either that the bribery was open and unquestioned, or that the wit- nesses were guilty of unblushing perjury.^ On the 12th December the Council adopted a set of Stand- ing Orders, which were duly approved by the Lieutenant- Governor.^ ^ Apparently the Council did not comply with this request, but they passed a statute dealing with future cases (15 Vic. No. 15). 2 Of. post, pp. 163, 164. 3 Y_ a-nd P. 1851, p. 413. * lUd. sub date. ^ Ibid, sub date. ^ Eeport, ihid. p. 553. ' Evidence in V. and P. 1851, pp. 656-564. ^ Ihid. sub date. There is a copy, initialed by the Speaker, in the volume of Votes and Proceedings at the Parliament Houses. CHAPTEE XVII TWO FINANCIAL QUESTIONS Two financial questions were disposed of in the early years of the new Constitution. One related to the exact footing upon which the financial separation between New South Wales and Victoria should be effected, and, though not of firstrate import- ance, it is worth a passing notice. The other, the transfer of the collection of the Customs duties from imperial to colonial hands, becomes very important in the light of subsequent events. It will be remembered that on the opening of the first session of the new Legislative Council of Victoria, the Lieu- tenant-Governor had laid on the table the papers relating to the financial settlement with New South Wales.^ It will also be remembered that in the course of the agitation for separa- tion, the old Legislative Council at Sydney had passed a resolution to the effect that the revenues from New South "Wales proper and Port Phillip should be treated as distinct from the 1st January 1850.^ The Government of New South Wales was prepared to effect a settlement, upon the stricter basis of a division as from the actual date of Separation, based upon the average contributions of the preceding twelve months.^ Lieutenant-Governor La Trobe took a third view, and contended that the accounts should be treated as distinct from the 1st of January 1849, on the ground that Separation was practically conceded from that date.* 1 Ante, p. 162. ^ Ante, p. 134. 3 Cf. Minute of Executive Council of N. S. W., 11th March 1852 (copy in V. and P. 1853-4, ii. p. 454). * Letter of Mr. La Trobe, 3d May 1851, ibid. p. 456. There was no dispute as to the Land funds, which had practically been kept distinct from the resump- tion of immigration in 1848. i64 TWO FINANCIAL QUESTIONS part ii The practical issue between the parties was a sum of £21,165:17:4, and, as there seemed no likelihood of an agreement, the Governor-General decided to refer the question to the Home government for decision, at the same time point- ing out that as the Constitution Statute made no express provision on the subject, it might possibly be necessary to obtain fresh legislation.^ The Secretary of State, being fur- nished with full accounts,^ on considering the matter, concurred with the view of the Government of New South Wales, that the legal date of separation was the only date of which official notice could be taken, but for further security referred the matter to the Lords of the Treasury.^ The latter fully agreed with the Minister, and further had no doubt that the settle- ment was warranted by inference from the Constitution Statute, without further legislation.* Upon this basis, therefore, the settlement was effected, apparently without further remonstrance. The matter of the Customs, though there was no dispute in connection with it, proved somewhat intricate, and its history well illustrates the complicated machinery of the Imperial executive. By the English statute 9 & 10 Vic. c. 94, a long series of "Acts to regulate the Trade of the British Possessions Abroad," ^ passed with the object of securing uniformity in the Customs laws in force throughout the colonial empire, were in effect repealed, permission being given to the colonies to alter and repeal the Customs duties established under those statutes, by colonial Act, assented to by Her Majesty and the Imperial Parliament. The " Acts to regulate the Trade of the British Possessions Abroad " had not in express terms included the Australian colonies, but, as we have seen,® they had really been applied to New South Wales ; and when it had been desired to give to the latter colony, and others of the Australian group, the power to impose their own Customs duties, this power had been expressly conferred by Imperial legislation.^ Moreover, in auditing the expenses of ^ and in making appoint- 1 V. and P. 1853-4, ii. p. 454. 2 cf_ aj^;. pp. 458-465. 3 lUd. p. 468. * lUd. p. 469. « Viz. the 6 Geo. IV. c. 114 ; 3 & 4 Will. IV. 0. 59 ; 8 & 9 Vic. c. 93. ^ Ante, p. 30. ' E.g. 59 Geo. III. 0. 114 ; 3 Geo. IV. c. 96 ; 9 Geo. IV. c. 83, § 26. 8 Of. 7 & 8 Vic. 0. 82. CHAP. XVII TRANSFER OF THE CUSTOMS 165 ments to tlie Australian Customs staffs, the Imperial govern- ment had followed the practice ohserved in those colonies to which the " Acts to regulate the Trade of the British Possessions Abroad " did strictly apply .^ The statute of 1846 necessitated a change in this practice, and accordingly, by direction of the Treasury in 1847 and following years, the Imperial officers employed under the Board of Customs in Canada had been withdrawn, with the exception of a few who remained to secure the observance of the still subsisting Imperial laws relative to trade and naviga- tion.^ This change the Home government now proposed to extend to the Customs establishments in the Australian colonies, and on the 8th August 1850 the Secretary of State for the Colonies (Earl Grey) issued a circular to the Governors of the colonies in question, in which he announced that the Home government did not propose to await the coming into force of the new constitutions to effect the contemplated change, but to complete it at once. The effect of the change would be that, with the few exceptions necessary to enforce the Imperial rules relative to trade and navigation, the Customs officials would, for the future, stand on the same footing as the other officials in the colonial service, i.e. would be appointed and dismissed provisionally by the Governor, subject to the approval of the Colonial Office, in manner provided by the Colonial Eegulations.^ But in the course of a few months the Home government seems to have changed its mind with regard to the exact nature of the alterations proposed to be introduced, for on the 19th April 1851 we find Earl Grey writing to the colonial Governors to the effect that it is determined, instead of retain- ing Imperial officials to secure the enforcement of the Imperial Navigation Laws, to transfer the whole of the Customs estab- lishments to the Colonial Governments, vesting in certain of the colonial officials the powers necessary to enforce the Imperial rules. In return for these powers, the officials in question are to furnish such returns and documents relating to 1 Ti-easury Minute of 25th June 1850 {V. and P. 1852-3, i. p. 701), and cir- cular of Earl Grey {ibid. p. 702). = Cf. Treasury Minute of 25tli June 1850 {ibid. p. 701). ' Circular in ibid. p. 701. As to the Begulations in question, of. official copy in Public Library, Melbourne. i66 TIVO FINANCIAL QUESTIONS part iii trade as may be needed for the information of the Imperial government.^ Due notice of the application of this change to Victoria was sent by Earl Grey to Mr. La Trobe. In announcing the event, the Secretary of State for the Colonies especially cautions the Lieutenant-Governor to continue so far as possible in their present positions the existing officials, although they will legally be subject to his power of removal. The Lieutenant- Governor is also directed to consider and report upon the best means of examining and auditing the Customs accounts in the colony.^ The next step in the process was a letter sent from the Imperial Commissioners of Customs to the Collector of Customs at Melbourne, in which the latter is informed that "deputa- tions " appointing him and certain others Controllers of Customs and Navigation Laws, together with Instructions for the per- formance of the new duties, have been forwarded by the Commissioners to the Lords of the Treasury for transmission to the (Lieutenant) Governor of Victoria. Upon receipt of the letter, the Collector is to place himself in communication with the (Lieutenant) Governor, with a view to the transfer, on a date to be fixed by His Excellency, of the establishment of Customs to the Colonial government. Erom the time of the transfer the Customs accounts will be rendered to the Colonial government.^ Upon receipt of this despatch the Collector of Customs at Melbourne wrote a formal letter to the Colonial Secretary, announcing the fact, and requesting the Lieutenant-Governor to name a date for the transfer.* Thereupon the Lieutenant- Governor laid all the papers before the Legislative Council,* and suggested the 31st December 1852 as the date for completing the process. In this suggestion the Legislative Council immediately concurred,® and passed an Act'' vesting the necessary powers of appoiating Customs officials in the Lieutenant-Governor, and making general rules for the regula- tion of the department. But it would appear that the actual 1 r. and p. 1852-3, i. p. 704. 2 lUd. p. 699. By the Constitution Statute (13 & 14 Vic. c. 59, § 15) the Imperial government reserved the power to give directions on this point. 3 Ibid. p. 700. « IHd. » Ibid. 11th August. " Ibid. 26th August. ? 16 Vic. No. 23. CHAP. XVII TRANSFER OF THE CUSTOMS 167 re-organisation was not effected till the appointment of Mr. Childers in 1854, and even then the old title of "Collector" was retained, though the Collector undertook the Imperial duties of " Comptroller of Customs and Navigation Laws." ^ The inevitable effect of the change would be to consolidate the colonial executive, and thus prepare the way for Eesponsible Government. ^ V. and P. 1855-6 (Papers), ii. p. 51. CHAPTEE XVIII LOCAL GOVERNMENT It now becomes necessary to examine the progress made in the development of local government under the Constitution of 1850. By the Constitution Statute itself it is provided that all District Councils created under the constitution of 1842, to which no elections have ever taken place, shall he treated as nuU, and that even in cases where elections have taken place, the Governor may, upon the petition of the Council itself or of the inhabitant householders of the District, revoke the patent of constitution. The way thus being cleared of former wrecks, the Governor is to have power, upon the petition, duly pro- claimed, of the inhabitant householders of any division not included in an existing District Council, to incorporate such inhabitants in manner and for the purposes provided by the statute of 1842.1 j^ nearly all respects the provisions and powers contained with respect to the subject in the statute of 1842 are to apply to the Districts thus created, but the important and unpopular provision of that statute which provides for the payment of half the police expenses of the colony by assessment levied upon the Districts, is unequivocally repealed.^ It is also provided that, in spite of any powers of local government existing by virtue of either statute, the colonial legislature may regulate the exercise of their powers by the local bodies, as well as alter their constitution and powers and the limits of the districts themselves.^ Practically, then, the new Constitution made the future formation of local government areas optional on the part 1 13 & 14 Vic. c. 59, § 20. ^ Ibid. § 23. ^ k^^ g 24. CHAP. XVIII THE DISTRICT COUNCILS 169 of their inhabitants, and removed the most objectionable feature of the old system, the heavy charge for the police rate. In the second session of the new legislature the matter was taken up, and a select committee appointed to consider the whole subject of district councils.^ On the 15 th September a report was presented.^ The committee find that the failure of the scheme of 1842 is due mainly to the great areas of the districts, and to the provisions as to the police rate. They recommend that for the future areas of local government shall not have a radius of more than twenty-five miles, that the duties of the local bodies shall be confined to the execution and maintenance of public works, that to this end the suggestion of the Privy Council with regard to the distribution of the territorial revenue shall be adopted, and that the outstanding liabilities of the Districts of Bourke and Grant shall be defrayed out of the general revenue.^ Of these suggestions the most substantial for general purposes are certainly those which recommend a reduction of the area of the districts and the scope of the local government functions. But the report of the committee loses a good deal of its value when it appears that the evidence upon which it is framed is very scanty, and obviously biassed.* Only two witnesses were examined, and they were both led. The report must be taken merely as an expression of the a priori views of the Committee, and it was not adopted by the Council.^ For there was a rival scheme in the field. On the 7th July 1852 the Lieutenant-Governor had laid before the legis- lature a return showing the amount expended on roads and bridges by the government during the year 1851,^ and on the same day with the appointment of the District Councils Com- mittee (which was only carried by 12 votes to 5) another committee had been appointed without opposition to consider the subject of roads and bridges.'' On the 3d November this Committee presented a very interesting report, in which they sketched the previous history of road-making in the parent 1 V. aiid P. 1852-3, 14th July. ^ yj;^, gui, ^ate. = Ibid. ii. p. 373. ■> Ibid. pp. 377-381. = Ibid. 1852-3, 1st December 1852. ' Ibid, sub date. ' Ibid. 1852-3, 14th July. I70 LOCAL GOVERNMENT part in colony of New South "Wales. Before 1824^ all the roads had been made by Government as part of its ordinary duty, and toUs for maintenance had been levied under prerogative claim. This practice was recognised and continued after the constitu- tion of the Legislative Council by the 6 Geo. IV. E"o. 20 (K S. W.)/ continued by the 2 Will. IV. No. 12 (N. S. W.), and the policy thus inaugurated was extended, and great additional powers given to the Surveyor -General, by the 4 Will. IV. No. 1 1 (N. S. W.), which also empowered the governor to appoint " Commissioners of Roads," charged to inspect and report. But it is expressly provided by this Act that these developments shall not interfere with "the right of the Crown to make or repair public or private Eoads." * A schedule to this Act shows that at the date of its passing (1833) there were only thirteen public roads in the whole colony. A great step in the process of development was taken in the year 1840, when the Legislative Council of New South Wales passed an Act,* providing for the election of trustees of parish roads by the proprietors of land situated within three mUes of and usually approached by any parish road. The trustees so elected may hold office for three years, and may levy a rate for the purpose of making or maintaining parish roads. They may also appoint surveyors, endowed with powers similar to those granted to the Surveyor-General by the 4 Will. IV. No. 11, and the Governor is empowered to proclaim tolls on the roads and to assign the proceeds to the trustees. Apparently some progress had been made under this last enactment, for in the year 1850 we find an Act® giving extended powers of letting the road tolls to farm. It should be remembered also that the corporations of Melbourne and Geelong had considerable powers in the matter of road-making. Accordingly the committee recommend a further develop- ment of the existing policy, by the creation of an elective Central Eoad Board, charged with the duty of maiataining the main roads and bridges, and a provision for the creation of ^ I.e. the date of the creation of the first Legislative Council under 4 Geo. IV. 0. 96 {ante, p. 12). " This Act based itself upon the Imperial Statute, 59 Geo. III. o. 114, but the latter enactment really only refers to import duties. 3 4 Will. IV. No. 11 (N. S. W.), § 33. M Vic. No. 12 (N. S. W.) 6 14 Vic. No. 5 (N. S. W.) CHAP. XVIII CENTRAL ROAD BOARD 171 District Eoad Boards, in districts proclaimed by the Governor, with charge of the parish and cross roads. The Central Eoad Board is to have the disposal of all the government grants for roads, and is to be assisted by an executive of an inspector- general and staff. The chairmen of the District Boards, when these are established, are to have seats, but not votes, on the Central Board.^ The valuable report of the committee formed the basis of the 16 Vic. No. 40 — the " Act for making and improving Eoads in the Colony of Victoria." But in one important particular the Act differed from the views of the committee. The Central Eoad Board created by the Act was a nominee body of three members, appointed during pleasure by the Lieutenant- Go vernor.^ The Central Eoad Board is to have the powers and officials suggested by the report,^ and local Eoad Districts are to be formed in the manner proposed by the same document, except that the initiation is vested in rather a larger class of persons.* Until the District Boards are formed, the trustees of parish roads elected under the 4 Vic. No. 12 (N. S. W.) are to act as District Boards for three miles on either side of their parish roads.® But though the District Boards, when created, are to have power to levy tolls, the fixing of the rate is to be left, within the bounds prescribed by the Act, to a meeting of land- holders and householders.^ The occupier of land is to be primarily Kable for the rate, but may deduct one-half from his rent.'^ All the funds collected by the District Boards a,re to be paid into the Colonial Treasury, but are to be issuable upon warrants signed by the chairmen and one ., member each of the respective Boards which collected them.* The District Boards are to be capable of suing and being sued in the names of their members, but the liability for corporate debts is to be confined to corporate property.^ This was a thoroughly statesmanlike attempt to deal with the question, and it succeeded admirably. Up to the 31st December 1855, less than two years from its creation, the Central Eoad Board had completed 152 miles of main road, and done a good deal of other work at a time when labour was D^ 1 See report in V. and P. 1852-3, ii. pp. 504-8. = jg Vic. No. 40, 3 16 Vio. No. 40. ♦ §§ e^and 7. ^ § 11. " § 27. ' § 30. 8 § 5g, 9 1 69. 172 LOCAL GOVERNMENT part in singularly hard to get and very difficult to organise.^ The scheme of District Boards gradually developed, till it glided naturally into the policy of the "Shires Statute ''of 1869/ which again led the way to the consolidating Local Government Act of 1874. But it is doubtful if the credit of the policy can rightly be claimed by Victorian statesmen, for there can be little hesitation in attributing the main outlines at least of the scheme to similar legislation which had taken place a short time before in South Australia and Van Diemen's Land.^ But another great step in the development of local govern- ment was taken in this period. In the year 1854 general measures upon the subject were proposed by the Government, which obviously wished to attempt some fulfilment of the intentions of the Constitution Statute. Although former efforts to introduce a complete scheme of local government into the country districts had not been successful, the town corporations of Melbourne and Geelong had for some time been in existence with good results, and quite recently the municipal franchise had been greatly extended.* The result of the Government proposals was the " Act for the Establishment of Municipal Corporations,"* which em- powered the incorporation of any area not exceeding 9 square miles, and having a population of at least 300, upon the petition of 150 resident householders, not opposed by a greater number,^ and authorised the Governor, with the consent of the municipality, subsequently to include within it any adjoining district with a density of population of 36 resident house- holders to the square mile.''^ The governing body of the municipality is to be a Council, consisting of three, five, or seven members, with a chairman annually elected, and made, ex officio, a justice of the peace.^ The members of Council retire by rotation, but are re-eligible.^ The powers given to the municipal Council are considerable. It has the power of making by-laws for the "general good government " of the district.^" It is to manage the roads, piers, and wharves, and to provide and manage public cemeteries, to care for the poor and infirm, to provide a water supply, and to 1 V. and P. 1852-3, ii. p. 511. 2 33 yic. No. 358. 3 Cf. Ordinance, 1849, No. 14 (S. A.) and 15 Vic. No. 8 (Van Diemen's Land). * By the 16 Vic. No. 18, reducing the qualification by one-half. = 18 Vic. No. 15. « § 2. ' § 3. « §§ 10-17. " § 18. i" § 26. CHAP. XVIII MUNICIPAL CORPORATIONS 173 make rules for drainage and lighting arrangements.^ It may levy tolls and dues upon the roads, wharves, and other puhlic conveniences vyithin its district, and a general rate on houses and land not exceeding two shillings in the pound on the annual value, half of such rate to be paid hy the landlord and half by the tenant.^ All by-laws, rates, and assessments are to be approved of by the Lieutenant-Governor before coming into operation,^ and the Government is to have the right of inspecting the progress of all works undertaken with borrowed money.* If a Council, after receiving a loan of public monies, fails to comply with its engagements, and the ratepayers decline to elect a new Council, the Governor may transfer its functions to a board of commissioners, to be exercised until the loan is repaid.^ This Act may. be regarded as the parent of town self- government in Victoria, just as the 16 Vic. No. 40 was the parent of rural self-government. The area fixed by it as the maximum for a municipality still remains the orthodox limit for a borough, and many of the provisions of the Act are con- tinued in the most recent legislation on the subject. The Act was popular, and immediately put into force.^ The period before us is therefore important, amongst other things, as being the seed plot of the system of local government in Victoria. 1 §§ 27, 28. 2 g 30. 3 I 33. 4 § 28. 6 § 50. ^ Cf. petitions for incorporation in 0. 0. 1855, 27th February, etc. CHAPTEE XIX THE ADMINISTEATION OF JUSTICE The arrangements contemplated by the constitution of 1850 for the establishment by Letters- Patent of a Supreme Court of Victoria were never carried out, for things moved quickly in those days, and within a short time after the establishment of the new colony the matter was made the subject of a colonial statute. The 1 5 Vic. No. 1 0, many of the provisions whereof are still in force,^ provides that there shaU be a court to be styled " the Supreme Court of the Colony of Victoria,"^ con- sisting of not more than three judges, of whom one is to be styled " the Chief- Justice of the Supreme Court of the Colony of Victoria," and is to take precedence of every person in the colony except the Governor and Lieutenant-Governor and certain very exalted Imperial personages.^ The judges of the court are to be appointed temporarily by the Lieutenant-Governor, and permanently by Her Majesty, with similar provisions for their suspension.* The court is also to be furnished with a Master in Equity, Eegistrar, Prothonotary, and other necessary officials, appointed in the same manner as the judges, but holding of&ce during pleasure only.* The court is to be a Court of Eecord,® and to have within Victoria the common law jurisdiction of the three superior courts of common law at Westminster; the criminal juris- diction of the Court of Queen's Bench and the Central Criminal Court in London ; the equitable, common law, and domiciliary jurisdiction of the Lord High Chancellor of England; and ecclesiastical jurisdiction, including the power to grant and ^ They have, of course, been re-enacted by the " Supreme Court Act 1890." 2 15 Vic. No. 10, § 2. * §§ 3, 4. ^ §§ 3, 5. = § 7. « § 9. CHAP. XIX THE SUPREME COURT OF VICTORIA 17S effect probate and administration according to the practice of the Prerogative Court of Canterbury.^ Every criminal pro- secution in the court is to be by information in the name of a law officer of the colony, but a private person may obtain leave to file an information in any matter not involving the punishment of death.^ All issues of fact on criminal trials are to be tried by juries of twelve.^ Besides the Supreme Court, there are to be Circuit Courts proclaimed by the Lieutenant-Governor throughout the colony, with the powers to hear civil issues and try criminal offences committed witliin the circuit districts of the courts of Nisi Prius, Assize, Oyer and Terminer, and General Gaol Delivery in England ; * and in the matter of civil issues the Circuit Courts are to stand in the same relation to the Supreme Court as the courts of Nisi Prius occupy towards the superior courts from which their records are sent, but no judge of the Supreme Court will require a special commission to hold a Circuit Court.^ There is also to be a sheriff for the colony, with deputies for the circuit districts, to act as the executive officers of the court, with power to sell the real and personal property of execution debtors and to grant replevin as in England.^ An important provision enables the Supreme Court to change the "venue"' in any proceedings in the interests of justice.^ The Court may also, subject to certain restrictions, make rules of practice for the conduct of business and the education and admission of practitioners.® So far as Australian authority is concerned, the decision o&the Supreme Court is in every matter to be final ; but in any case involving one thousand pounds the party aggrieved may obtain leave to appeal to Her Majesty in Council, upon giving within three months the security ordered by the court.'^" This provision is, however, to be subject to Her Majesty's own 1 § 15. " §§ 12, 13. ' § 12. The Supreme Court Act was founded upon a report drawn up by Mr. Stawell and Mr. Barry in the first session of the Legislative Council ( V. and P. 1851-2, p. 239). * For meaning of these terms cf. Blackstone, Commentaries, bk. iv. c. 19. 6 15 Vic. No. 10, § 17. « §§ 21-25. ' I.e. the place of trial, which formerly, in certain cases, depended upon the place where the oSence was alleged to have been committed. 8 § 31. M 32. " §§ 33, 34. 176 THE ADMINISTRATION OF JUSTICE part in Eegulations upon the subject of appeals,^ and, by an Order in Council, the amount necessary to constitute a good ground of appeal was in fact reduced to five hundred pounds.^ The Act was immediately got to work, and two judges appointed under it, These were Mr. (afterwards Sir William) h, Beckett, the former District Judge of Port Phillip, who was appointed Chief-Justice, and Mr. (afterwards Sir Eedmond) Barry, who was at the time Solicitor-General and a nominee member of the Legislative Council.^ In accordance with English practice, Mr. Barry, on his appointment as judge, resigned his seat in the Legislative Council.* But the increasing needs of the colony required a great development of legal machinery, and in the next session we find several very important Acts dealing with the various departments of legal administration. The intricacies and pitfalls of criminal practice were remedied by the 16 Vic. No. 7, the law of evidence by the 1 6 Vic. No. 9, the subject of Courts of Sessions was dealt with by the 16 Vic. No. 3, the old system of Courts of Eequests was superseded by that of County Courts by the 16 Vic. No. 11, the jury laws were extended by the 1 6 Vic. No. 7, and various reforms effected on the pohce system by various enactments.^ 1 § 35. ^ Order of 9th June 1890, under 7 & 8 Vio. o. 69 (copy of Order in Govern- ment edition of Consolidated Statutes, under Supreme Court Act 1890). 3 G. G. 1852, 21st January. " V. and P. 1852-3, 2d July. ^ ig yjo, -^os. 13, 14, 16, 24. CHAPTEE XX THE LAND QUESTION Although the Land question occupied a good deal of attention in this period, there is not very much of a historical nature in connection with it, for the action of the Council was directed rather more towards the operation of the existing system in individual cases than towards the system as a whole. Towards the end of the period, however, important steps were taken. Very full statistics upon the subject of the Crown lands were laid before the Legislative Council by the Lieutenant- Governor during the session of 1852. From them it is possible to gather not merely the legal, but to some extent the economic position of the question. The total amount of Crown lands, just over 600 square miles, which had been alienated before Separation, had produced a total result of £776,000 (odd). The fluctuation of prices had at different times been singularly capricious, but the general result was that during the latter years of the period town lands had shown a decided tendency to fall in value, while the suburban and country lands showed an equally steady tendency to rise. Till the year 1845, the average price of country lands in any year never exceeded the statutory minimum of £1 an acre, but in the year 1850-1 (before the discovery of gold) it rose to £1 : 5 s. an acre. The purchase by private contract of lands unsold at auction seems to have been very popular, this method accounting for nearly one-half of the total sales. The auctions generally took place at Melbourne, Portland being the only other place at which they were held. One very interesting item in the statistics is the return showing the extent to which the squatters had availed them- N 178 THE LAND QUESTION part in selves of the power of pre-emption granted by the Order in Council of 9th March 1847.^ Only 1783 acres had actually been granted, to five claimants, under the Order, but within the last twelve months no less than seventy other applications to purchase had been received, and were only delayed by the inability of the Survey department to make the necessary investigations. This return is a striking comment on the report of Mr. Lowe's committee of 1849, which described the pre- emptive right as worthless.^ The discovery of gold in the winter of 1851 had, of course, enormously increased the amount of the land sales during the ensuing twelve months, the country lands going up in quantity from 33,000 to 128,000 acres. But it is a little remarkable that the average price of country land had scarcely increased at all ; such increase in price as there was went to the account of town lands. Altogether, in the year ending 30th June 1852, the Land fund realised from sales alone no less a sum than £327,000. The applications for purchase by pre-emptive right were still pouring in, and the powers of the Survey department were taxed to the utmost to secure suitable reserves for the future use of the public. It had, however, succeeded in reserving over 1000 square miles in the Intermediate and Unsettled districts of the colony from the claims of the squatters.^ But the difficulties and dangers of the first year of gold produced other effects on the Land question. So great had been the excitement in the colony, that the Government had only been able to retain the services of its officials, at a time when they were imperatively needed, by the offer of greatly increased salaries. And not only had the salaries of the exist- ing officials been increased, but very large extensions of the staff had to be made. In these circumstances both the Governor- General and the Lieutenant-Governor suggested to the Home authorities that the large funds being derived from the issue of gold licences should be definitely appropriated to meet the increased expenses of the Colonial government, and that they should be invested with power even to employ the unap- 1 A'nic, p. 103. 2 ^,jjg^ p_ 104. 5 These figures are taken from papers in V. and P., 1852-3, ii. pp. 1-84. As to the difficulty between the squatters and the reserves, of. post, pp. 182-188. CHAP. XX CESSION OF THE GOLD REVENUE 179 propriated moiety of the remaining Land revenue for similar exigencies. The answer to these suggestions came in the very important despatch of Sir John Pakington (Earl Grey's successor) dated 2d June 1852, which was laid before the Legislative Council of Victoria on 7th September 1852.^ The income from the gold licences is granted freely and unreservedly, and the distribution of this fund is placed in the hands of the Legislative Council,^ who will thenceforward take over the management of the gold question.^ With regard to the unappropriated moiety of the residue, the permission is by no means so wide, though the concessions are great. The Lieutenant-Governor is authorised to apply the fund generally, with the advice of the Executive Council, " to the purposes rendered urgent by the present crisis, so far as this can be done without absolute inconvenience to other departments of the public service." * The urgent need for immigrants at present existing in the colony of course rendered it impossible to entertain the cession of that part of the Land fund appropriated for emigration purposes, and the demand of Geelong to be admitted to share in the distribution amongst the municipal councils contemplated by the constitution of 1850 met with a rather cool reception from the Home government.* This despatch marks another important step in the develope- ment of the Land question. Not only is a substantial part of the territorial revenue absolutely handed over to the colonial legis- lature, but the colonial executive is empowered to draw upon half the remainder at its discretion.^ Nominally, of course, the executive still remained independent of the legislature, but the progress of events was strengthening the latter, and the result of the concession soon became obvious. On the 9 th December 1853 the Legislative Council passed a resolution that "the exigencies of this colony are so great, that the unappropriated moiety of the Land Fund is necessary for the general wants of the Colony," and embodied the resolution in an Address to the 1 r. and P. sub date. Despatch in V. mid P., 1852-3, i. pp. 720-723. = Par. 16 of despatch. " Par. 19. * Par. 23. " r. and P., 7th Feb. 1853. Despatch in vol. i. p. 928. ^ For the year 1852 the gold revenue handed over reached nearly half a million (K. and P., 1853-4, i. p. 832). i8o THE LAND QUESTION part iii Lieutenant-Governor.^ The following day the latter replied, that if the funds already provided failed to meet the requisite expenditure, he should hold himself bound to make up the deficiency, so far as might be, from the balance of the un- appropriated moiety of the land fund ; but that " if the object of the Council in its present Address be to induce the Lieutenant- Governor to pledge himself to an unconditional transfer of the unappropriated moiety of the Land Fund to the General Eevenue, to be placed on the Ways and Means — the Lieutenant-Governor must state his regret that a compliance with the wish of the Council is, at this time, quite out of his power." ^ In other words, the fund may be relied upon as an ultimate resort, but is not to be treated as part of the ordinary revenue. Upon this footing matters continued during the period, the Government constantly supplying the deficiencies in the ordinary revenue by drafts from the Land fund.^ On the 7th February 1853 there came an important announcement from the Home government, to the effect that the colonial officials would no longer be allowed to exercise the right reserved to the Crown by the 15 th section of the Land Act of 1842,* of selling unsurveyed blocks exceeding 20,000 acres by private contract at the minimum upset price then prevailing.^ This section, the parent of the great Land companies of New South Wales and Van Diemen's Land, had been made use of by a private capitalist in Victoria, and it was evident that, in the new circumstances, the practice tended to encourage a dangerous monopoly. The credit of the of&cial initiative in the matter is apparently due to Lieutenant-Governor La Trobe. We now come to the very important and acute develope- ment of the question which took place during the latter portion of the period under review, and which practically carried the subject up to the grant of Eesponsible Government. This time it is not a question between the colony and the Home govern- ment, but a division amongst the colonists themselves. The Order in Council of 9 th March 1847^ practically.- contemplated the substitution for the annual licence system, in 1 V. and p., sub date. 2 y_ ^^^ p^ ^Qth December 1852. 3 Cf. accounts for 1852, 1853, and 1854 in volumes of V. and P. for the succeeding years. ^ 5 & 6 Vic. c. 36. 5 Despatch in V. and P., 1852-3, p. 928. " Ante, p. 103. CHAP. XX PRE-EMPTIVE CLAIMS OF THE SQUATTERS i8i the Intermediate and Unsettled districts, of a leasehold squatting system, hased upon the grant of leases not exceeding eight and fourteen years respectively. It also contemplated the pre- emptive purchase by the squatters of portions of their runs, to secure their homesteads and permanent improvenients. But it win be remembered that the licence system had been purely personal, being, in fact, mere permission to certain individuals to depasture flocks within certain roughly-defined districts. But a lease has, almost from time immemorial, signi- fied in English law a grant for a term of years of a definite and carefully identified piece of land. While, therefore, it was quite possible to give a squatter a personal licence to pasture stock in a country never before trodden by the foot of white man, a country whose local details were absolutely unknown to the (rovernment, it was not logical to grant the same person a lease of a similarly vague character. It became necessary to make a survey of the land proposed to be granted, and to settle boundaries between rival claimants. It is barely possible that this necessity altogether escaped the attention of the framers of the Order in Council of 9 th March 1847. It is more likely that their ignorance of local conditions led them to assume that the task of survey would prove comparatively light. Probably they were not intimately famihar with the local features of South Gippsland and Port- land Bay District. Be this as it may, it is quite certain that the necessity for survey practically postponed to an indefinite date the granting of the leases in Port Phillip. When Separation came, very little headway had been made in the task ; and, in spite of the Government Eegulations which from time to time appeared on the subject, the squatters were practically, to all appearance, in the same position that they occupied before the passing of the 9 & 10 Vic. c. 104.-^ Possibly they considered themselves safe ; possibly they were indifferent to the prospects of being ejected. But the discovery of gold at once changed the aspect of affairs. Its first effect was to stop the slow process of survey by calling off the survey parties to more exciting pursuits. ' Despatch of Lieutenant-Governor La Trote, dated 3d September 1852 (r. and P., 1853-4, ii. p. 244). 1 82 THE LAND QUESTION part iii Its second was to establish a mutually helpful and profitable trade in supplies between the squatters and the thousands of improvident gold-seekers, who rushed to the front without a thought of provisions. Its third effect, closely connected with the second, was to excite in the minds of the squatters a lively anticipation of ftiture profit to be realised by holding on to that popular commodity, land. And the fourth was to arouse in the minds of the newer arrivals, the gold-seekers and those connected with them, a strong desire to break up for sale the undeveloped lands of the colony. Hereupon arose much difficulty. Naturally enough, the squatters began to look with unbounded respect upon that charter of their hopes, the Order in Council of 9th March 1847, and its amendments. Into these documents they naturally read all that their feelings dictated, and, in the expressive language of old equity principle, they " treated that as done which ought to have been done." Briefly put, their claim was, that having applied for leases, and their demand having been thwarted only by the dUatoriness of the government, they must be deemed to be leaseholders in actual possession under the Orders in Council, with pre-emptive rights to purchase the fee-simple of any parts of their runs at non-competitive rates.-' And they strenuously opposed the throwing open to public sale of any portion of the lands they occupied. Considerable agitation was the result of this conflict of views, and after much petitioning and resolving^ the matter came before the Legislative Council. On the 28th July 1852 Mr. Fawkner moved a resolution advocating the inclusion of the whole of the " Intermediate " districts proclaimed under the 9 & 10 Vic. c. 104, together with such parts of the " Unsettled " districts as included known goldfields, within the " Settled " area.^ As the effect of this prayer, if acceded to, would have been greatly to reduce the area of pastoral leases, and practically to annihilate the most valuable pre-emptive claims of the squatters, the motion was strongly opposed by the pastoral interests in the Council, with the result that an inconsistent amendment was carried by a majority of 18 to 7 votes.* The amendment suggested that leases should be 1 V. and p., 1853-4, ii. p. 248. " Documents, ihid. pp. 276-285. ^ For meaning of these terms of. ante, p. 113. * V. and P., 1852-3, 28th July. CHAP. XX ACTION OF THE LIEUTENANT-GOVERNOR 183 immediately issued to the occupants of Crown lands, to date from the Vth February 184 8,1 in order that the lands might be " opened for sale under the Orders in Council of the 9th March 1847 in quantities to meet the demand of the increasing population of the colony." ^ Three weeks later, however, the Legislative Council seems to have agreed upon a compromise between the contending parties, for when, on the I7th August 1852, it was moved by Mr. Fawkner that the Lieutenant-Governor should be requested to withhold grants of land to all persons claiming under the pre-emptive rights alleged to have been conferred by the Orders in Council, the motion was amended by a clause exempting the grants of land for homesteads, and then agreed to, apparently without a division.^ The policy of the Government at this juncture is concisely stated by the Lieutenant-Governor himself, in his report of the matter to the Home government. He declined to interfere with the preparations for the issue of leases which were still proceeding, and he allowed the applicants for leases to purchase, under the pre-emptive claim, limited portions of their runs for homestead purposes. But he made a very liberal use of the powers of reservation contained in the Orders in Council by vrithdrawing from the pastoral areas large reserves, not merely for public purposes usually so understood, but also for town- ship and village sites ; and these reserves, although situate beyond the settled districts, he threw open to public sale in allotments for the benefit of settlers. At the same time he promised to bring the whole matter at once before the Home government.* This promise the Lieutenant-Governor amply redeemed by his long and careful despatch of the 7th September 1852,* from which we learn so much of the history of the question. The Lieutenant-Governor had to justify himself to his chief for two breaches of routine which were said by some persons to be breaches of law. He had made use of the powers of reserva- ' The date originally fixed for the first application for new runs under the Order in Council. (Of. Q. G. (N. S. "W.), 1848, 5th January.) 2 V. and P., 28th July 1852. s jj^^^ i^j^t^ August 1852. * See reply of Lieutenant-Governor to address of Legislative CouncO, in r. and P., 1852-3, i. p. 131. » Copy in V. and P., 1853-4, ii. pp. 241-304. i84 THE LAND QUESTION part hi tion for public purposes contained in the third section of the Land Act of 1842/ and the Order in Council of 9th March 1847, to withhold from the squatters large tracts of land which they claimed to he entitled to purchase under pre- emptive right ; and secondly, he had put up these reserves for sale to the general public, under the power contained in the order in council to "grant" reserves for public purposes, although it had hitherto been the- practice only to sell lands within the settled districts. But the breaches of law were only apparent. The Laiid , Act of 1842 was a restraining, not an enabling statute. It put an end to the power of the Crown to dispose of lands otherwise than by public auction, except in certain instances which, in spite of the general words of section 3, clearly do not cover the case of Mr. La Trobe's village reserves. But the Act was directed not against open sale but against free grant or private contract, and the Lieutenant-Governor had not adopted either of these methods. The Act, by implication, left the Crown perfectly free to sell any lands by public auction, at the statutory upset price. It was true that Government had not been in the habit of selling lands beyond the settled districts, but that was a matter of practice only. The Order in Council is more difficult to dispose of. The eighth section of Chapter II certainly empowers the Government to reserve from the sales to occupants under pre-emptive claims any land required for the purposes enumerated in the third section of the Land Act. And the following section of the order authorises him to make grants or sales of lands comprised within leases actually granted to occupants, for a very compre- hensive list of public purposes, including mining of all descrip- tions, "or for any other purpose of public defence, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement or settlement of the colony." But it is doubtful if a construction of these words in a court of justice would have warranted a withdrawal of lands actually comprised in a lease for the purpose of starting a new township. As a matter of fact, the law officers of New South Wales were divided in opinion when the question was put to them,^ while those of Victoria itself were clear that the practice could not ' 5 & 6 Vie. c. 36. 2 V. and P., 1853-4, ii. p. 261. CHAP. XX THE LIEUTENANT-GOVERNOR'S DESPATCH 185 be legally justified.^ However, this was not the whole case. The squatters seemed to have overlooked the fact that the whole tenor of the Order in Council was, as regarded the Colonial government, permissive and not mandatory. The Governor was empowered to grant leases for periods not exceeding certain fixed limits. The squatters treated this permission as a direction to grant leases in all cases for the full periods allowed by the Order. Moreover, they assumed all through that such leases had actually been granted, although as a matter of fact they had not. Having stated the facts, the Lieutenant-Governor proceeds to make three suggestions for the future settlement of the question. He considers it of the first importance that, with due care to secure homestead allotments to the squatters, the Government shall be entitled to throw open for sale any of the land in the unsettled districts. Secondly, he suggests that the issue of such leases as it may be deemed desirable to grant shall be immediately proceeded with, even at the risk of some uncertainty in the description of boundaries. And thirdly, that for the valuation system applied to the runs, there shall be substituted a fixed capitation rent on the sworn returns of stock. On the 14th March 1854 the reply of the Secretary of State was laid before the Legislative Council.^ It is no wonder that the Duke of Newcastle (who had succeeded Sir John Pakington) shrank in rather an obvious way from the formid- able difficulties of his task, hinting very plainly that if the Colonial Office had desired to shirk its duties, there was a certain loophole of escape in the fact that the approaching changes in the constitution would turn the whole question over to the hands of the Colonial government. But the Secretary of State will struggle with the difficulties, and his view is, briefly, that if the squatters are disposed to insist upon the extremest view of their rights under the Order in Council, regardless of the public interest, they shall have justice, more than they desire. The length of the lease-terms, within the limits fixed by the Order, being left entirely to the Government, the latter will exercise its unfettered discretion as to those terms. It is true that, during the continuance of 1 V. and P., 1853-4, ii. p. 255. 2 jjj^^. gub ^ate. i86 THE LAND QUESTION part iii the leases, no lands in the unsettled districts can be sold to outsiders, but neither is the Government bound (only empow- ered) to sell to the occupants. Further, the Government shall construe very liberally, in the public interest, the powers of reservation and sale contained in the order. And, if necessary, a special Order in Council wUl be forwarded, enabling the Lieutenant-Governor to extend the limits of the settled and intermediate districts, and thus to do away 'ipro tanto with the claim for leases. But if the squatters will be reasonable, and accept leases with proper restrictions in the public interest, and moderate provisions for the exercise of their pre-emptive claims, the Lieutenant-Governor is empowered to grant such leases, even up to the maximum terms sanctioned by the Order in Council, without waiting for the conclusion of the survey. And if there are any who would prefer to surrender their extreme claims for compensation, the Home government will be ready to sanction any measures recommending an appropriation for that purpose of the public funds of the colony, or of lands in other neighbourhoods.'' A not very important Order in Council, partly carrying out the views of the Secretary of State, was made on the 18th April 1854,^ and laid before the Legislative Council of Victoria on the 21st February 1855.* But the remaining great event in the history of the question during this period was the appointment, on the 2d November 1854, of a Eoyal Commission to inquire into the whole subject of the occupa- tion of Crown lands in the colony, including both the existing rules on the subject and the claims made against the Govern- ment in respect of alleged disappointments.* The Commis- sion consisted of eleven persons, most of them well-known names, and their report was presented on the 8th June 1855.* UnhappHy, the members disagreed considerably in their con- clusions. The main report, which was signed by every member of the Commission save one, though seven entered protests on different points, found as a fact that during the agitation which 1 Copy of despatch in V. and P., 1853-4, ii. p. 693. 2 Ibid. 1854-5, iii. p. 243. 3 2jj^_ s„b date. * Copy commission in Ibid. iii. p. 293. " Ibid, sub date. CHAP. XX REPORT OF THE ROYAL COMMISSION 187 preceded the passing of the 9 & 10 Vic. c. 104, the squatters never claimed protection against the hona-fide auction purchaser, but only against arbitrary ejectment by the Government.-^ It also' held that the assent of the Government to the applica- tions for leases must be held to be proved, as a fact, by its long silence in the matter ; but it adopted the view that, as a matter of law, the Government was not bound to grant the leases for the maximum terms allowed by the Order in Council.^ Its practical recommendations are as follows — 1. Coutinuous survey and sale of Crown lands, with a view to the requirements of all classes of purchasers, so as to prevent the (average) price rising much above the existing legal minimum. 2. Granting of annual licences to existing occupants for pastoral purposes only. 3. Fixing of an uniform rent under such licences according to the grazing capabilities of the run, with minimum assessment of Id. per acre. 4. Abandonment of the existing territorial classiiication.^ The extreme views of the squatters were represented by Mr. Eorlonge, who declined altogether to sign the report, and charged its framers with being the mouthpiece of an unscrupu- lous anti-squatting party, and the report itself with being "subtle, insidious, and one-sided."* The extreme views on the other side found expression in the protest signed by Messrs. O'Shanassy, Fawkner, and Nicholson, who, in effect, proposed to rack rent the runs.^ More moderate expressions of dissent from the actual recommendations of the report were recorded by the Speaker (Mr. J. F. Palmer) and Mr. Charles Bradshaw, who held the view that the squatters were equitably entitled to compensation, and suggested that it should take the form of eight -year leases in the unsettled districts, subject to an unrestricted right of sale by the Crown without notice or compensation.® This report practically ends the history of the matter for the period, for on the 23d November 1855, at the assembling of the Legislative Council for its last session under the existing constitution, the Governor laid before it the Imperial statute 1 Report in V. and P., 1854-5, iii. at p. 300. ^ Ibid. pp. 306-9. ' Hid. p. 313. * Ibid. p. 329. 5 lUd. p. 326. « Ibid. pp. 315-9. i88 THE LAND QUESTION part iii 18 & 19 Vic. c. -56, repealing the Land Act of 1842, and the matter was thus left to the discretion of Eesponsible Government.-' But in order that we may obtain a just idea of the magni- tude of the subject, we may glance at a report presented to the Legislative Council on the 18th March 1856,^ in pursuance of a resolution carried at the instance of Mr. Fawkner on the 8th June 1855.^ The report* shows that at the close of the year 1855 there were upwards of a thousand different runs in the grazing districts of the colony, that upon these upwards of five million head of sheep and nearly half a million head of cattle were being fed, and that the territorial income of the Government from the licence fees of these stations amounted to upwards of £60,000 a year, irrespective of the amount paid into the general revenue as the assessment on stock At the same time, it is clear that the existence of sc[uatting runs did not prohibit the process of sale. During the last half of the year 1855, 177,000 acres were disposed of by auction sale, realising a price of £326,000. Under pre-emptive rights 32,000 acres had been purchased, at a price of £34,000. Country lands continued to rise in value, the average price per acre during this period being £1:9:11.^ ^ V. and P., sub date. '^ Ibid, sub date. ^ Ibid, sub date. * Ibid. 1855-6, ii. pp. 817-883. * Keport in ihid. pp. 515-526. CHAPTEK XXI THE NEW CONSTITUTION DuEiNG the period under notice several changes were made in the details of the Constitution. At the beginning of the year 1854 the Lieutenant-Governor introduced the Elective Franchise Bill, expressing his action as being under the provisions of the 5 & 6 Vic. c. 76.^ The BiU passed through the Council without much discussion, and ultimately became law as the 17 Vic. No. 32. It extends the electoral franchise to every subject of the Crown who, in consideration of payment, is entitled to occupy or mine on any waste lands of the Crown within the colony for a period of twelve months, and who has actually so occupied or mined for a period of three months before registration, the disqualifications of the Constitution as to crime and non-payment of rates and taxes being continued. This Act was presented to the governor for consent along with the new Constitution Bill, and was by him reserved for the royal approval.^ Owing to a technical difficulty,^ the royal assent was not received for upwards of twelve months, but on the 21st May 1855 it was duly proclaimed.* Twice also during the period the numbers of the Legisla- tive Council were increased. On the first occasion, in the year 1853, twenty-four seats, eight nominee and sixteen elec- tive, were added, bringing the total membership to fifty-four. Of the sixteen new elective seats, nine were added to the existing county constituencies, and seven were given to the towns, Melbourne obtaining three new members.^ On the 1 V. and P., 27tli Jan. 1854. This must be a mistake for 13 & 14 Vie. o. 59. 2 Ibid. 28tli March 1854. ^ IMd. 1854-55, ii. p. 419. * G. 0., 22d May 1855. ^ 16 Vic. No. 29. igo THE NEW CONSTITUTION part hi second occasion, in 1855, twelve new members were admitted. Of these the elected eight were distributed amongst the new electoral districts of Castlemaine, Sandhurst, BaUaarat, Avoca, and Ovens, all of these districts, with the exception of the last, being apparently divided into parishes. Some of the older districts were rearranged to provide for the new constituencies.^ Apparently it was not considered necessary to reserve either of these Acts for the royal assent. The numbers of the Legislative Council thus reached sixty-six. But these changes were, after all, mere matters of detail compared with the fundamental proposals then being discussed for the adoption of Eesponsible Government, to which we must now turn our attention. It seems undoubtedly true, though very curious, that, so far as Victoria is concerned, the first ofiicial step in the pro- cess was taken by the Home government, not by the Colonial legislature. In fact, in the session of 1852-3 Mr. Fawkner had moved for a committee to inquire into the Constitution Act of 1850, with a view to suggesting amendments, and the proposal had been met by a flat negative.^ But, on the open- ing of the following session, the Lieutenant-Governor laid before the Council a despatch from Sir John Pakington, enclosing a copy of another despatch to Sir Charles Pitz Eoy, and " offering to the colony of Victoria the same concession on the same terms." ^ It appears from other sources that the protest adopted by the old Legislative Council at Sydney immediately upon the receipt of the constitution of 1850* had not received much sympathy from the Home government; but when, after the discovery of gold and the consequent inrush of population, the protest was renewed by the new Council, it had borne sub- stantial fruit.° Earl Grey's successor. Sir John Pakington, sent an answer which was practically a concession of all disputed points.^ The Secretary of State cannot admit the right of the colony to the Land fund, but he will grant it on grounds of 1 18 Vic. No. 34. 2 Y and P., 9tli July 1852. 3 Ibid. 1853-54, ii. p. 385. * Ante, p. 151. s Committee appointed 31st Oct. 1851. Report 27th Nov. 1851 (cf. K and P., N. S. W., sub dates) and copy report in ibid. vol. ii. p. 643. Adopted 5th Dec. 1851 ( V. and P., sub date). And cf. statements of Mr. Adderley in (Imperial) Hansard (3d series), cxxxviii. p. 1974. 8 Copy in V. and P., 1853-4, ii. p. 387. CHAP. XXI PROMISE OF RESPONSIBLE GOVERNMENT 191 expediency. The restrictions on the alteration of the Civil List, though of a trifling character, will be withdrawn. Transporta- tion, even to Van Diemen's Land, will be wholly discontinued.^ Sir John Pakington points out that, owing to the recent changes in the Customs administration,^ the complaints of the remon- strance on that head have ceased to have any force. Curiously enough, that which seems to us the very marrow of the whole matter, the change to the system of Eesponsible Ministers, is hardly touched upon. The Secretary of State repudiates the charge that the Crown patronage has been unfairly exercised, and suggests that any contemplated Constitution Bill shall contain a Civil List (variable by the Colonial legislature) pro- viding for the claims of political of&cials. But he practically accedes to the demand for a constitution resembling that of Canada, based upon a double-chamber legislature, and suggests that the Legislative Council shall at once proceed to frame it. This last point is noteworthy. Hitherto the Australian colonies have been governed by constitutions made in England ; hence- forth the initiative is to come from them. Almost immediately after this important despatch had been written. Lord Derby's Cabinet, of which Sir John Pakington was a member, fell from office, and was replaced by a coalition Ministry under Lord Aberdeen. The Duke of Newcastle suc- ceeded to the seals of the Colonial Office, and he hastened to confirm the promises of his predecessor.^ It only remained therefore for the Victorian legislature to take full advantage of the invitation of the Imperial government. This it was by no means loath to do. Two days after the receipt of the despatches, a strong committee of twelve members, chosen by ballot, was appointed to consider and report upon the best form of constitution for the colony.* On the 9 th December 1853 this committee brought up its report, together with a draft bill,^ which was read a first time on the 15th.^ The discussion of its details will come at a later stage, but it will be necessary to sketch here the outlines of the scheme, in order that we may trace its progress to its final stage. Fortunately the means of doing so are easy of access, for 1 This had been the subject of considerable excitement in New South "Wales and Victoria. ' ^«" Ante, p. 240. " § 124. i= Ibid. ^3 This is almost doubtful under the peculiar wording of § 124 of the Constitu- tion Act Amendment Act. But there can be no doubt as to the practice. " § 126. 254 THE LEGISLATIVE ASSEMBLY part iv of official salary abates the allowance for expenses 'pro tanto} The following are qualified to vote in the election of mem- bers to the Legislative Assembly : — 1. Any male of the age of twenty-one years, natural-born or natural- ised, who has resided in Victoria for twelve months before his application to register (for the electoral district in which he resides).^ 2. Any such person who is also owner in possession of a freehold estate of the capital value of £50, or the clear annual value of £5 (for the electoral district in which such property is situate).^ 3. Any such person who is enrolled as a voting rate-payer in a muni- cipal district (for the division of the electoral district in which his rateable property is situate).* The Legislative Assembly has a constitutional officer, the Speaker, who is elected at the first meeting after every general election, and vacates his seat by expiry or dissolution of the Assembly, and by death, resignation, or a removing vote of the Assembly.^ The Speaker is not subject to the disallowance of the Governor, but is usually presented to him on his election.^ He presides at all meetings of the House,'^ and, as we have seen, issues the writs for bye-elections to the Assembly.* The Legislative Assembly usually also appoints other officials, such as the Chairman of Committees and the Clerk of the Assembly, as well as ministerial officials,^ but these appointments are not of a constitutional character. The Assembly cannot proceed to business unless twenty members, exclusive of the Speaker, are present, and the Speaker has a casting but no substantive vote.-'" As in the case of the Council, no failure in the elections invalidates the proceedings of the House if the proper quorum be present.-'^ No member of the Legislative Council may, of course, sit in the Assembly.'^ The Legislative Assembly is subject to one disability and one privilege alike distinguishing it from the Council. Not 1 § 126. Members of Parliament are also entitled to free passes over the public railways during their tenure of seats. 2 Constitution Act Amendment Act 1890, §§ 128, 129. 3 § 130. * § 135. = Constitution Act, § 20. 6 Cf. e.g., r. and P. (L. A.), 9th April 1889. ' Constitution Act, § 20. s ^^te, p. 240. " Cf. Constitution Act Amendment Act 1890, §§ 346-367. i» Constitution Act, § 21. " Ibid. % 22. 12 Constitution Act, § 16. Constitution Act Amendment Act 1890. CHAP. XXVIII FINANCIAL PRIVILEGES OF THE ASSEMBL Y 255 more than eight of the salaried officials specially exempted from the rule disqualifying Crown officials from sitting in Parliament may at any one time be members of the Assembly.^ This clause was probably intended to secure to the Council at least two of the ten Eesponsible Ministers who may be ap- pointed. But if this be the case, it is entirely inadequate to its object, for the Governor is not bound to have more than eight Ministers, and even if he have, only four need sit in Parliament at all.^ The peculiar privilege of the Assembly in financial matters has more than once been the subject of serious difficulty, to which, as it is essentially a legal question, it will be necessary to refer. It is hardly necessary to say that it will be treated here as a legal question merely. By § 5 6 of the Constitution Act — " All Bills for appropriating any Part of the Revenue of Victoria, and for imposing any Duty, Rate, Tax, Rent, Return, or Impost, shall originate in the Assembly, and may be rejected but not altered by the Council." But by § 57 — " It shall not be lawful for the Legislative Assembly to originate or pass any Vote, Resolution, or Bill, for the Appropriation of any part of the said Consolidated Revenue Fund, or of any other Duty, Rate, Tax, Rent, Return, or Impost, for any Purpose which shall not have been first recommended by a message of the Governor to the Legislative Assembly during the Session in which such Vote, Resolution, or Bill shall be passed." The reference to " the said Consolidated Eevenue " in § 57 relates to a previous section (the 44th) which provides that all the revenues of the Crown in the colony of Victoria shall form one consolidated revenue, available for the public service of the colony. One other section is also worthy of notice — " The Consolidated Revenue of Victoria shall be permanently charged with all the Costs, Charges, and Expenses incident to the Collection, Management, and Receipt thereof, such Costs, Charges, and Expenses being subject, nevertheless, to be reviewed and audited in such Manner as shall be directed by any Act of the Legislature." ^ It will be observed that these sections place the parlia- mentary initiative both in taxation and expenditure in the 1 Constitution Act Amendment Act 1890, § 13. = §§ 13, 14. ' Constitution Act, § 45. 256 THE LEGISLATIVE ASSEMBLY part iv hands of the Assembly, subject to the proviso that its use of the initiative in the latter capacity can only be exercised on the recommendation of the executive. The action of the Council is limited to a direct approval or negative ; though, doubtless, it is perfectly open to the House to explain that its negative is only applied to induce an amendment. The sections in question remained unaltered in the Constitution Bill sent to England from the colony in 1854; but it is not, of course, permissible to go behind the Act itself to ascertain the intentions of its framers. Such a course leads to endless disputes, for, after all, its framers had no authority to impose their viev^s either on the colonial or Imperial legislatures. The real question is not What was intended ? but, What was done ? The present state of the question may perhaps best be gathered from the discussion which took place in the years 1877-8. In the year 1877 the question of the payment of members came before Parliament. The practice had been adopted by two temporary Acts,^ the second of which was about to expire. Mr. Berry's Government, which was in favour of the continuance of the practice, was in a minority in the Legislative Council, which in December 1877 refused the second reading of the continuing measure.^ Anticipating this event, Mr. Berry, in the Governor's name, had included a sum of £18,000 in the Appropriation Bill of the session, for the purpose of providing payment as an ordinary item of expenditure.^ Thereupon the Council, on the motion of Sir Charles Sladen, " laid aside " the Appropriation Bill,* and the Government, in order to meet daily necessities, ordered the collection of the duties voted by the Assembly in the Appropriation Bill, which the Council had refused to pass, founding their action upon the alleged precedent of the House of Commons, and, with regard to the expenses of collection, upon the 45 th section of the Constitution Act.° In this action the Government was supported by the opinion of its law officers, but the Supreme Court had, in a previous crisis, refused to recognise 1 34 Vic. No. 383, and 38 Vic. No. 499. '^ Votes and Proceedi'tigs of the Legislative Council, 11th Dee. 1877. ' ' Ibid, of the Legislative Assembly, 29th Nov. 1877. * Ibid, of the Legislative Council, 20th December 1877. ^ Jnfe, p. 255. CHAP. XXVIII THE CRISIS OF 1877 257 the claim of the Assembly,^ and the Government found it im- possible to enforce its demands. Thereupon it made wholesale reductions in the civil service, and something like a crisis ensued.^ On the one hand, the Assembly claimed entire control over the financial policy of the country, and denied the right of the Council to interfere with it in any way. The supporters of the Council, on the other hand, denounced the action of the Government in placing the vote on the Appropriation Bill, as an attempt to prevent a fair discussion of the principle of the payment of members, and their attempt to collect the revenue on the vote of the Assembly as generally inconsistent with constitutional principles, and especially as a breach of the 2 5th section of the Audit Act,^ which directed the Commissioners of Audit, before countersigning any warrant for the payment of public monies, to " ascertain that the sums therein mentioned are then legally available for and applicable to the service or purpose mentioned in such instrument." Moreover, it was asserted that the institution of the Commissioners of Audit was adopted for the express purpose, amongst other things, of super- seding the system of payment of monies on mere resolution which had previously prevailed.* The matter was ultimately compromised by the withdrawal of the objectionable item from the Appropriation Bill, and by the passing of the Payment of Members Bill in its original form.^ This result in itself left the question of principle un- decided, but the opinion of the Imperial government, to which the matter was referred, taken in combiaation with the facts of the case, seems to lay down the following rules as to the legal position of the much-disputed question. 1. The Legislative Council is entitled to reject any bill, whether con- taining money grants or not, which comes up from the Assembly. (Constitution Act, §§ 1 and 56.) 2. The Assembly is not justified (certainly not morally, perhaps not legally) in inserting a question of principle into an ordinary administrative measure, by covering it with a money vote. (The ' Stevenson v. The Qiieen, 2 W. "W. and A'B. (L.), 143. 2 F. and P. of Leg. Assembly, 1878, ii. 957-960. ^ 22 Vio. No. 86. * See respective statements of Council and Assembly in F. and P. of Council, 19th Feb. 1878, and F. and P. of Assembly, 13th Feb. 1878. " F. and P. of the Council, 28th March 1878. Cf. debate in Victorian Hansard, xxvii. pp. 2313-2332. S 258 THE LEGISLATIVE ASSEMBLY part iv Assembly practically confessed this rule by witMrawing the objectionable grant from the Appropriation Bill.) 3. Public officials are not warranted in collecting taxes on the mere vote of the Legislative Assembly, nor in making payments which have not been authorised by statute. (Opinion of the Secretary of State for the Colonies, explaining the practice of the House of Commons.^) Another somewhat important point has lately arisen with regard to the scope of the 56 th section of the Constitution Act. The difference of opinion may be best illustrated by statiag that there are two views, one of which holds that the words " all bills for appropriating " (revenue) " and for imposing " (taxes) confine the operation of the section to bUls having for their principal object the authorisation of payments or the granting of supply, while the other maintains that legislation which merely incidentally or consequentially authorises the collection of money or the payment of officials may be dealt with as ordinary legislation by the Council. It has been said to be the difference between " a bill for appropriating," and " a bill which appropriates."^ In spite of the apparently verbal character thus given to the contention, the distinction is an important one, for the adoption of the stricter view practically cuts the Council off from many useful functions. It must, however, be taken to have the weight of authority in its favour, having been upheld by a ruling of the President in the year 1885,® and supported by the Committee of Standing Orders of the Legislative Council itself* ^ Copy in V. aiid P. of the Leg. Assembly, 1878, iii. p. 667. Also Stevemm Y. The Queen (ante). For other informatiou relating to the question, see V. arid P. of Leg. Assembly, 1877-8, i. pp. 569 and 711 ; ibid. iii. 631 and 663 ; and ibid. 1878, ii. 887-972. Also Viet. Hansard, vols. xxvi. and xxvii. sub titt. "Appropriation Bill," "Crisis," "Payment of Members," etc. ^ Hearn, Government of England (2d ed. ), p. 619. -" Vict. Hansard, xlix. p. 1332 ; V. and P. of Leg. Council, 6th October 1885. ^ Viet. Hansard, xlix. p. 1487; V. and P. of Leg. Council, 1885, pp. 139, 143. CHAPTEK XXIX OTHER LEGISLATIVE OKGANS It is a mistake commonly made to suppose that in England the sole organ of central legislation is the Parliament. Long before Parliament acqifired its powers of legislation there existed an authority by which laws were made. This authority was the Crown, and to this day the Crown possesses all those plenary powers of legislation which it once exercised, except so far as it has been expressly deprived of them. No doubt these deprivations have been very great, and they have caused much bitterness of feeling. On the other hand, since Crown and Parliament have ceased to quarrel, the latter has conferred upon or restored to the former many legislative powers, so that the legislative power of the Crown is now considerable. And it must be remembered that the Crown has never, in England, recognised the right of the Parliament to make laws in all cases whatsoever. So that in England the legislative power of the Crown is in some cases the survival of ancient prerogative right. The wide powers conferred upon the Victorian Parliament by the highest authority in the empire precludes the possibility of such a claim being made by any other authority in Victoria. Such powers of legislation as other authorities exercise, they exercise as deputies of the Parliament, and, if they exceed the powers given to them, their legislation may be set aside. Thus, where the Board of Land and Works, avowedly acting under the powers conferred by the Land Act 1862,^ published Eegulations which were in fact ultra vires, and then attempted to enforce them, they were, though acting in the name of the Crown, 1 25 Vio. No. 145. 26o OTHER LEGISLATIVE ORGANS part iv enjoined by the Supreme Court to act in defiance of their own Eegulations.^ And where the Governor in Council framed Eegulations under the Mining Statute 1865,^ which the Supreme Court deemed to be in excess of the powers conferred by the statute, they were treated as null, and action taken on them was set aside.^ The chief instances of such subordinate legislative authorities are the Governor in Council, Pubhc Departments, and the Supreme Court. Less frequently legisla- tive powers are entrusted to unincorporated officials and the judges of inferior courts.* When we come to deal with the executive branch of the central government, we shall see that the " Governor in Council" means the Governor acting with the advice of the Executive Council or Cabinet.^ In delegating powers of legis- lation to the Governor in Council, therefore. Parliament is, prac- tically, delegatiag them to a committee of both Houses, though, as it is not essential that all members of the cabinet shall be members of Parliament, it may happen that the power is exer- cised by persons whom the community has not entrusted with legislative duties at all. The increasing tendency to entrust legislative powers to what is primarily an executive body, is one of the most curious features of modern parhamentary government, and indicates an appreciation of some of the draw- backs of a parliamentary system. Leaving this aspect of the question for future discussion, we may here point out one or two conspicuous examples of the practice, merely premising that the familiarity of the community with it previous to the introduction of Eesponsible Government may have reconciled it to the practice now that it has a totally different significance.^ A very conspicuous example of the practice occurs in the 49 th section of the Constitution Act, which provides that the pensions authorised by the Act for retiring judges of the 1 Kettle r. The Queen, 3 "W. "W. and A'B. (E.), p. 60. 2 29 Vio. No. 291. s johiison v. Thomson, 6 W. and W. (M.), 18. ' This is, of course, leaving local legislation out of account for the present. ^ Acts Interpretation Act 1890, § 5. ^ Occasionally powers of legislation are directly conferred upon the Governor by Imperial legislation, e.g. 24 & 25 Vic. c. 52, which empowers him to issue Regulations qualifying the terms of the "Passengers Act 1855 " (18 & 19 Vic. o. 119). Although the expression used is " Governor " simply, it is prohable that the terms of his Commission and Instructions would require the Governor to act with the advice of the Cabinet. CHAP. XXIX LEGISLATION BY GOVERNOR IN COUNCIL 261 Supreme Court shall be granted in accordance with Eegulations to be framed by the Governor and Executive Council. Later sections of the same enactment make similar provisions with regard to the pensions to Eesponsible Officers and the grants to religious denominations/ but the sections themselves have been since repealed.^ Still -more important are the wide' powers of legislation conferred on the Governor in Council by more recent enactments. To take only three instances. By the Aborigines Act 1890,^ he may make regulations prescribing the place of residence of any aboriginals, and the terms upon which they may be employed, and for apportioning their earnings amongst them. He may lay down the conditions upon which aboriginals shall be entitled to a share in the parliamentary grants voted for them, may order the supply to them of the necessaries of Hfe, and may prescribe for the care, custody, and education of their children. By the Education Act 1890, he may regulate the uses of State School buildings, the terms and appointments of members of Committees of Advice, the conditions under which scholarships and exhibitions may be granted, the secular in- struction to be given in the schools, the examination and classification of teachers, and the scale of fees to be paid by parents.* By the Land Act 1890, he may make rules, regula- tions, and orders for the numerous purposes of the Act, and for prescribing the mode of applications under it, for providing surveys and adjustment of boundaries,^ and for supervising and controlling the local committees established to ensure the destruction of vermin.® The 142d section of this last Act adds the important condition that regulations made under the section shall be signed by the Minister having charge of the Act, and shall be laid before both Houses of Parliament within fourteen sitting days from their publication. Upon their publication in the Government Gazette, these regulations become "valid ia law as if the same were enacted in this Act, and shall be judicially noticed." In other words, they are true legislation. No element is wanting. Similar provisions are now becoming common in cases of delegated legislation such as those we have first considered. 1 Constitution Act, §§ 51 and 53. ' By 28 Vio. No. 235 and 34 Vic. No. 391. ^ %e. ^ § 23. 6 § 142. « § 205. 262 OTHER LEGISLATIVE ORGANS part iv As examples of public departments entrusted with powers of legislation, it will be sufficient to take a few prominent examples, such as the Board of Land and Works, the Public Service Board, the Board of Public Health, and the Victorian Eailway Commissioners. The Board of Land and "Works, constituted by the Public Works Statute 1865,^ 'consists of not less than three nor more than seven persons, of whom one at least (the president) is a Eesponsible Minister of the Crown.^ By the Public Works Act 1890, it has very wide powers of legislation in the matter of roads and sewers. It may make by-laws for regulating the manner in which the public shall use the roads and bridges under its control, and the nature and number of the vehicles traversing them, and the speed they may make. It may make regulations for the drainage of roads and streets into sewers, and for the dimensions, manner of construction, and manage- ment of the pipes and drains communicating with the sewers, and for the assessment and collection of sewerage rates.^ More- over, by the Land Act 1890, the Board of Land and Works is authorised to make rules and regulations for the care, protection, and management of all public parks and reserves not conveyed to or vested in trustees.* The legislation of the Board is subject to the disallowance' of the Governor in Council,^ but does not appear to require his sanction in the first instance. The legislative powers of the Public Service Board were conferred upon it by the Public Service Act 1883,'' and they extend to the making of regulations concerning the duties to be performed by officers in the public service, and the discipHne to be enforced during such performance,^ as well as to the pro- curing and inspection of stores for the public service.^ But the legislation of the Public Service Board requires the approval of the Governor in Council.® The Health Act 1890 confers very wide powers of legisla- tion on the Board of Public Health, which consists of an appointed chairman and medical inspector, and seven repre- sentative members.''*' In addition to the general power con- 1 29 Vic. No. 289. The first appointment was under the 21 Vie. No. 31. 2 Public "Works Act 1890, §§ 4 and 5. " Public Works Act 1890, § 15. " § 136. 5 SxHoWa "Works Act 1890, § 12. « 46 Vic. No. 773. ' Public Service Act 1890, § 123. s g i39_ s § 14. " Health Act 1890, § 7. CHAP. XXIX LEGISLATION BY PUBLIC DEPARTMENTS ^ 26 ferred upon it to legislate for the purposes of the Act, the Board is expressly empowered to make by-laws in the foUowiag cases : — 1. For the inspection of and enforcement of cleanliness in dairies, grazing-grounds, and other places connected with the production of milk.i 2. For the cleansing and disinfecting of streets, houses, and other places, to prevent the spread of epidemics, endemics, or contagious 3. For the prevention of overcrowding and obstruction in public buildings, and for the prevention of fires in public buildings, common lodging-houses, licensed victuallers' premises, and boarding- houses.^ 4. For the registration of plumbers and gasfitters.* Moreover, the Board has a general power of supervision of the legislation promulgated by the local authorities under the Health Act,^ and may also direct the making of such legisla- tion by local authorities.® On the other hand, the Board's own legislation requires the approval of the Governor in Council, and it may be ordered by the Minister in charge of the Act to issue legislation upon the subject of public health in pursuance of the terms of any Act of Parliament.'^ Finally, on. this branch of the subject, we may notice the great powers of legislation conferred on the Victorian Eailway Commissioners by the Eailways Act 1890. The purposes for which the Commissioners may make by-laws are almost in- numerable, but a few of the principal may be mentioned. 1. The prevention of nuisances and damage upon railway property. 2. The management of the wharves, piers, and jetties vested in the Commissioners. 3. The regulation of the duties and charges of persons not in the •employ of the commissioners who are connected with the railway service. 4. The disposal of unclaimed goods. 5. The regulation of trafiic on level crossings. 6. The regulation of the insurance of passengers by an Accident In- surance Company.^ No by-law made by the Commissioners has any force until confirmed by an Order of the Governor in Council. This slight sketch will have indicated something of the extent of legislative powers delegated to public departments. 1 Health Act 1890, § 29. ^ g yn. ^ % 233. * § 30. » § 33, " § 31- ' § 28. ' RaUways Act 1890, § 105. 264 OTHER LEGISLATIVE ORGANS part iv With regard to their relationship to the Parliament, it has to be noticed that the legislation in every case but one requires the direct approval of the Cabinet, which is, practically, a parliamentary committee. In the excepted case, that of the Board of Land and Works, the reason probably is that the President of the Board is always a Cabinet Minister. But even here, as we have seen, the Cabinet can annul the legislation, if it pleases. Inasmuch as the Supreme Court is by the terms of the constitution kept sedulously distinct from all connection with Parliament, the powers of legislation conferred upon it stand on a somewhat different footing from those exercised by Public Departments. Unfortunately, it is impossible to state these powers as concisely as would be desirable, seeing that they have been conferred at different times and in different ways. (a). The Supreme Court,^ with the concurrence of a majority of its members present at a meeting held for the purpose, may make and alter any Rules of Court for the following purposes — 1. Regulation of the sittings of the Coiirt, and its judges in chambers. 2. Regulation of the pleading, practice, and procedure of the Court, the duties of its officers, and the fees and costs in the proceedings of the Court. ^ All such rules are to be laid before Parliament within forty sitting days, and if within forty subsequent days either House address the Governor against them, the Governor must annul them. In the meantime, however, they are valid, unless they relate to fees, no rule relating to fees being of force until it has lain one month before Parliament and been published in the Government Gazette.^ (b). The Supreme Court may make rules respecting the admission and examination of, and fees payable by intending practitioners. But every such rule must be sent to the Minister ad- ministering the Act and be by him laid before Parliament " without delay." Either House may within one month after such presentation address the Governor to disallow the rule, who, if he shall think fit, may accede to the request. But the ^ For constitution and powers of Supreme Court, of. post. 2 Supreme Court Act 1890, § 23. ^ Ibid. Under this section the rules are apparently signed by a majority of the judges, who state that the meeting at which they were made was held for the purpose (cf. Gov. Gazette, 7th Dec. 1888). CHAP. XXIX LEGISLATION BY THE SUPREME COURT 265 rule takes effect from its promulgation by the Court, except it relate to feep, when the conditions formerly mentioned apply .^ (c). The judges of the Supreme Court mow/ make rules for the following purposes, viz. 1. The regulation of the duties of the Eegistrar of Probate and Administrations, and generally for effectuating the provisions of the Administration and Probate Act 1890, Farts I. and II. 2. The regulation of the procedure and practice of the Court in all applications under the Local Government Act 1890.^ And they tnvst make such rules as from time to time appear necessary for the following purposes, viz. The regulation of the duties of the Registrar of Probates and Ad- ministrations under Part III. of the Administration and Probate Act 1890,^ and the carrying of the same into effect. All such rules must be published in the Government Gazette and be laid before Parliament within ten sitting days after their promulgation.* Finally (d), the judges of the court may make general rules and orders concerning the following matter, viz. Application to a Court or Judge under Part IV. of the Admini- stration and Probate Act 1890.* All such rules and orders are to take effect from a day named therein, and must be published in the Government Gazette within one month from the making.® It will be observed that none of the legislation of the Supreme Court requires the confirmation of Parliament or the sanction of a Eesponsible Minister. In some cases the Parlia- ment, and in others the Cabinet have discretionary powers of repeal, but in others again there is no bar to the absolute discretion of the Court.''' It is only rarely that such powers of legislation are con- ^ Supreme Court Act 1890, § 26. Under this section the rules are appar- ently signed only by the prothonotary, and published by the Minister, who states that he has complied with the recjuirements of the section (cf. Gov. Gazette, 27th July 1888). ^ Local Government Act 1890, § 543. ^ I.e. in Foreign Probate and Letters of Administration. * Supreme Court Act 1890, § 27. Under this section, apparently, all the judges sign the rules (cf. Gov. Gazette, 3d April 1890). ° Curator of deceased persons' estates. ^ Supreme Court Act 1890, § 28. ' At the last moment, Parliament has passed an Act (the 54 Vic. No. 1199) which renders this statement no longer correct. Upon the Address of either House of Parliament, the Governor in Council may now annul any Rule of the Supreme Court ; and no Rules are to take effect until thoy have lain for ten sitting days on the tables of both Houses, and, a week thereafter, been published in the Govemvunt Gazette. 266 OTHER LEGISLATIVE ORGANS part iv ferred on unincorporated individuals, yet there are one or two instances of the practice. For example, the Minister adminis- tering the Constitution Act Amendment Act 1890 may make rules and regulations for the direction of deputy electoral registrars in their making of returns and forwarding of lists to the electoral registrars.-^ And the Governor in Council may appoint any two of the judges of the Court of Insolvency, together with a law officer, to frame rules for the conduct of insolvency proceedings in and out of court.^ It is usual for writers on constitutional law to class the important enactments dealt with in this chapter under the head of administrative regulations. If by this expression it is intended to assert that great questions of principle, upon which men widely differ, are not left to be settled by this kind of legislation, the doctrine is true enough. Nevertheless it should be remembered that these duties, though performed by bodies primarily appointed for executive and judicial purposes, are truly legislative duties, and that the enactments made iu pur- suance of them, whether they are called " by-laws," " orders," " regulations," " rules," or " proclamations," are yet real legisla- tion, and are perfectly distinct in character from true executive and judicial acts. They proceed by general rules, not by personal application. They are intended to affect classes and not individuals. They are not restricted within limits of locality. They are openly announced as legislative changes. Some of them have been judicially declared to have the force of Acts of Parliament.^ By handing them over to other authorities. Parliament does undoubtedly abandon its exclu- sive legislative monopoly. And it may be that in an exten- sion of the practice we shall ultimately find our way out of the increasiag difficulties of parliamentary government. ' Constitution Act Amendment Act 1890, § 54. 2 Insolvency Statute 1890, § 12. The Chief-Justice of Victoria and any two or more judges of Courts of Mines may also frame general rules for the conduct of business in Courts of Mines (Mines Act 1890, § 285). 3 In re. Gair, 10 V. L. R. (L.), 108. 2. EXECUTIVE CHAPTER XXX THE EXECUTIVE COUNCIL The head of the executive is, of course, the Governor. It is in this capacity that he makes all appointments to the public service. It is in this capacity that he is commander-in-chief of the forces in Victoria. In this capacity he exercises the prerogative of pardon. But as we have considered the legal position of the Governor in detail in a previous chapter, we need not repeat the facts there stated. More especially as, in the greater part of his executive functions, the Governor acts with the advice of a body whose nature we are now about to consider, the Executive Council. Ever since Victoria became a separate colony, it has had an Executive Council. For a few years after Separation, the executive officials of the colony were, in fact, appointees of the Colonial Office in London, and it was, therefore, only natural that such important posts as those of Executive Councillors should be filled directly by the Secretary of State. As we have seen, the Lieutenant-Governor was directed in his commission to appoint an Executive Council for the colony, to assist him in the performance of his duties. But his own appointments were only temporary, being subject to confirmation by the Colonial Office.^ Owing to the studied ambiguity of the official documents, it is difficult to say what were intended to be the precise relations between the Governor and the Executive Council under ' Ante, p. 157. 268 THE EXECUTIVE COUNCIL part iv the old system. The Governor was directed to take the advice of his Council in all cases, before acting in important matters. But, on the other hand, he was entitled to act in defiance of that advice, if he chose to take the responsibility of doing so.^ Owing to the fact that members of the Executive Council were generally also members of the legislature, this authority must have been a valuable weapon in the last resort, for it was clearly intended under the old system that the powers of the executive and the legislature should not reside in the same hands. But to what extent the personal views of the Governor habitually predominated over the views of his advisers, it would be impossible for any one not personally famihar with the period to say. In the Appendix will be found an extract from the Minute Book of the Victorian Executive Council for the year 1855,^ which may be usefully compared with the corresponding extract from the Minute Book of the Executive Council of Sir Eichard Bourke. But there was one very important characteristic which always marked the Executive Council in Victoria. Its members were not merely executive councillors, they were also the holders of important offices in the administration.' There was no necessary reason why this should have been so. The Crown might very well have chosen to call to the Executive Council those non-official members of the community on whom it could rely, such men, for example, as it Used to appoint to the non-official nominee seats in the Legislative Council. Some of them might have been abler men, who refused to sacrifice their other prospects for official place. But, as a matter of fact, not only were officials always appointed to the Executive Council, but the appointments generally used the official title ; so that if the individual afterwards resigned his office, he vacated, ipso facto, his seat in the Executive Council. Thus one of the distinctive features of the Cabinet system, the union of the chief officials in the community in one body, was early introduced into Victoria. And its importance in the history of Victorian government cannot easily be overrated. A non- official Executive Council may be very disinterested .1 Arde, p. 158. 2 cf_ Appendix B. ' In the Minutes of the Executive Council prior to 1856 the names of the Individual members are not recorded, only the titles of their offices. The change begins in February 1856 (Minute Book of Executive Council, passim). CHAP. XXX OFFICIAL CHARACTER OF THE COUNCIL 269 and very ambitious of the public good, but it will not have that practicality and sense of responsibility which an official body will have. If a proposal is made in an official CouncU, the official whose department will be affected by it knows, almost by instinct, how it will work. He will be able to bring vividly before his colleagues the difficulties in carrying it out, or, on the other hand, he may be able to assure them confidently of its feasibility. Moreover, the power of an official Council will be infinitely greater than that of a mere senatorial body, for it is almost impossible for it to be in conflict with the rank and file of the official staff. But, though it has these advantages, an official Council has its dangers. It may easily get out of touch with the com- munity, it may quarrel with the legislature, it may foster corruption and incapacity. A permanent executive is always liable to these dangers, and their result is both unpopularity and inefficiency of government. The remedy which England, after much agitation and many failures, succeeded in applying to these dangers, is that feature which gives her system of government its peculiar character, and which has been applied so often in the EngKsh-speaking dependencies of the Crown. The remedy is, in fact, the responsibiUty of the executive to the legislature, and, through the legislature, to the community. The difficulties - which occurred in England were mainly owing to the traditional theory of the constitution, which placed the control of the executive in the hands of the Crown, unfettered by the direct action of Parliament. So long as the Crown held to this prerogative, it was impossible for Parliament to acquire any direct control over the executive, except in periods of revolution. A restoration of peace always brought a restoration of the executive to the hands of the Crown. But at length, owing to a combiuation of circumstances, of which the most important was a succession of monarchs who cared little for English politics. Parliament obtained indirectly what it had failed to secure directly. The Crown put itself more and more into the hands of a few Ministers united by party ties, who held the seals of office so long as their party retained a majority in Parliament. The great offices of state were broken up, and the fragments distributed amongst supporters of the Ministry of the day, on the understanding (in 270 THE EXECUTIVE COUNCIL part iv some cases) that they should be given up when the heads of the Ministry deemed it expedient to resign. Even then, Parliament could not directly unseat a Ministry. But, by withholding supplies and refusing to follow the wishes of the govern- ment, they could practically render it helpless and ridicu- lous. When Walpole resigned over the Chippenham election in 1742, it became clear that a Prime Minister could no longer hold office against a hostile majority in the House of Commons. For no one clung to power more desperately than Walpole. This developement of English policy so far affected colonial administration, that in Australia, even under the old system, the chief Ministers used to sit in the legislature. But their position was anomalous. They occupied nominee seats, there- fore the constituencies could not refuse to elect them. It was known that nothing short of personal delinquency could cause their removal from office. Their policy could be thwarted, as the legislature became more and more powerful, but other pohcy could not be substituted for it. To change this state of affairs was the great object of the framers of the Constitution of 1855. As we have seen, they did not quite know how to set about it. In spite of the warning of the Auditor-General, who saw the real difficulty of the question, the committee which drafted the resolutions upon which the constitution was framed, insisted on vesting all the patronage of the colony in the Governor alone.^ As the biU was framed, however, the section placed the whole patronage in the Executive Council,^ a provision equally fatal with the other. It was not until the matter was fairly thrashed out in the House that the true way out of the difficulty was discovered ; which was, to vest in the Executive Council all the patronage except the appointments to the responsible offices, and to vest these in the Governor alone. This is the course actually adopted by the Constitution Act,^ and sanctioned by the Governor's Commission.* Its results are obvious. It places the whole of the government patronage at the disposal of the cabinet of the day, and places the appointing of the Cabinet in the hands of the Governor, 1 V. aiid P. 1853-4, iu. p. 606. " Ibid. p. 632. ^ § 37. * By virtue of tlie Constitution Act the patents of office run in the name of the Governor ; by virtue of the Commission, the patents for the Execu- tive Council are in the Queen's name, attested by the Governor. CHAP. XXX THEORY OF THE CABINET SYSTEM 271 These results are so important that we must consider them for a moment. And we will take the latter first. It will readily be objected that this result leaves it legally possible for the Governor to make and unmake Cabinets at his pleasure. Technically, no doubt, this is the case. But, practic- ally, there are serious difficulties in the way of such a course, and a statement of them will show, perhaps as clearly as can be shown, the peculiar character of the Cabinet system. In the first place, it may be assumed that an Executive Council which did not contain members of Parliament would be practically useless. It could expend no money, carry out no policy, and it would, in effect, be a mere nullity. The amount of the Civil List guaranteed by the Constitution Act forms such a small proportion of the expenditure of the com- munity that the public business could not go on for a year without a parliamentary vote. And it may safely be assumed also, that Parliament would not follow the lead of any but its own members. The Governor would then be compelled to choose at least some of the members of his Cabinet from amongst the members of Parliament. Unless they undertook to serve without salary, his nominees would vacate their seats in Parliament and would require re-election.-' Hereupon, one of the checks of Eesponsible Government would probably appear. If the appointment were not in accordance with the feeling of the country, the persons appointed would not succeed in securing re-election. But even should they succeed in being re-elected, there would still be another check. If the views of the Ministers were not in accordance with those of the majority in Parliament, the Houses would take especial care to reject every one of their proposals, financial or legislative. Their acts would be sub- jected to continual and hostile criticism, and the Government would be no better off than if it had no representatives ia Parliament at all. And this process would be repeated until a Cabinet of which Parliament approved was appointed. Of course it is possible that an existing Parliament does not really represent the views of the constituencies. In such a case the Governor, at the request of his Ministers, is perfectly justified in dissolving the Assembly and awaiting the test of a ' Constitution Act Amendment Act 1890, § 19. 272 THE EXECUTIVE COUNCIL part iv general election.^ If the new Parliament is favourable to the views of the Governor's nominees, he and they have secured a victory. If not, the question remains as before. Practically, therefore, the verdict of Parliament settles the composition of the Cabinet. What really happens is this. When a Ministry is de- feated in Parliament or at the polls, its members tender their resignations to the Governor, whose duty it is to announce his intention of accepting them.^ The outgoing Premier gener- ally suggests to the Governor the name of the most prominent of his opponents, probably the man whose speech has resulted in the vote which has convinced the Premier of the hopelessness of his position. Thereupon the Governor "sends for" the individual suggested, and, if the latter feels himself in a position to take up the reins of government, he endeavours to form a Ministry. If he fads, he informs the Governor of the fact, and the Governor then applies to some one else. Here comes in the most delicate part of a Governor's duty. It is precisely when the claims of two or more parliamentary leaders are nearly equal, that he must decide whether he will foUow the suggestions of the unsuccessful aspirants, or use his own discretion. It may seriously damage the reputation of a community to be apparently unable to find a government, and the Governor is bound to use his influence to prevent delay. At the same time, his con- stitutional position precludes him from giving a shadow of assistance to any party. During the momentous interval, Parliament usually adjourns. Ultimately, some one succeeds in finding a body of fol- lowers with whom he thinks he can conduct the administration of the community, and amongst them he distributes the Cabinet offices. These may now be ten in number, and may be dis- tributed in any way.^ There need not be ten different holders of offices, but no individual may draw the salaries of two or ^ This was the great doctrine settled by the precedent of 1784, when the king, at the request of Pitt, and against the vehement protests of the House of Commons, dissolved Parliament. The result abundantly justified Mr. Pitt's expectations. ^ He does not actually accept the resignations at once, for then there would be vacancies in the offices, and business would be at a standstill. 2 Constitution Act Amendment Act 1890, §§ 13 and 16. There is appar- ently no limit to the number of unsalaried ofBces. CHAP. XXX FORMATION OF A CABINET 273 more offices.^ The distribution is first arranged by the pro- posed Ministers themselves, and then submitted to the Governor for approval. Unless the list contains the name of any one against whom very serious objections exist, or proposes a new and revolutionary arrangement, the Governor always adopts it, and proceeds to carry it into effect by appointing the persons named to their various ofl&ces.^ Immediately before this he accepts the resignations of the outgoing Ministers, which have been previously tendered.^ He also appoints to seats in the Executive Council such members of the new Ministry as do not already hold them.* The outgoing Ministers still nominally hold seats in the Executive Council, but they never attend its meetings, and it is, in fact, of the essence of Cabinet Govern- ment that they should not do so, except on purely formal occasions. If need be, they can be dismissed, but such an extreme measure is, practically, never resorted to.® Now begins the testing of the new Ministry. Their seats in Parliament being vacated by their acceptance of office, they go before their constituencies, and, if their opponents see a. chance, opposition candidates are run. The result of these elections usually decides the attitude of the Opposition in Parliament. But it may decline to adopt the verdict of the^ elections, and may succeed in seriously embarrassing the Government, even though the Ministers are returned. In such a case, the Ministry may ask for a dissolution. The principle which decides a Governor in granting or refusing such a request is the probability of success for the Ministry in the event of its being granted. This of course depends on many circumstances, the chief of which is the age of the Parliament. If the Assembly has quite recently been elected, there is, usually, no claim for a dissolution ; the Ministry must resign, and another must be formed. If a dissolution is granted, the result decides absolutely the fate of the Ministry. 1 § 21. = Cf. e.g. Gov. Gazette, I'Sth Feb. 1886. " Cf. ibid. ■* Ibid. ^ The power of removal was expressly conferred on Governor Sir Henr^ Barkly by sign-manual of the 10th March 1859 (Original in Ti'easury Buildings, Melbourne). And it was publicly stated by Sir Henry Barkly in his message to the Legislative Assembly of 11th Jan. 1859, that it was the intention of the Colonial Office that Executive Councillors who had lost the confidence of the local legislature should resign {V. and P. (L. A.), 11th Jan. 1858-9). See the whole process worked out in G. G., 1890, 5th and 11th Nov. T 274 THE EXECUTIVE COUNCIL part iv We have thus seen how the apparent liberty of the Governor in choosing his Executive Council, is practically limited by constitutional machinery. We have now to con- sider how the power of the Executive Council, in disposing of the other patronage of the Crown, is controlled. Briefly, there are two aspects of the question, dismissal and appointment. With regard to the first, the power of the Cabinet was at one time practically omnipotent. Subject only to the odium which such a course involved, a Cabinet could dismiss at a moment's notice almost the whole executive of the colony, from the heads of departments down to the tele- graph boys. All held their appointments during the pleasure of the Crown, and the pleasure of the Crown meant, in such a case, the pleasure of the Cabinet. As a matter of fact, the power of dismissal was at least once in Victoria used as a powerful weapon in a party conflict. But the effectiveness of the weapon has been greatly diminished by alterations recently introduced. Appointments and dismissals are still made by the Executive Council, but they must follow precisely defined rules. No appointment can be made except upon the request of a permanent head of a department and upon the certificate of the Public Service Board (a " non-political " body), which, in giving its certificate, names the person entitled to the appointment by strict statutory provisions ; and no official can be dismissed or pun- ished (save for proved misconduct) except by the Public Service Board with the consent of the Executive Council.-' It is these rules, and the consequences which follow from them, which make the politics of Victoria so different from those of America. In America the famous " Spoils " system makes every official, down to the bow oar of the pUot's boat, a keen partisan and a determined supporter of the Government. He knows that if his party is defeated he must lose his post, and he will strain every nerve to prevent defeat. In Victoria the holders of official positions, at least the younger members of the service, are largely indifferent to the rise and fall of Governments. One very obvious result of the fact is that the party system is dying a natural death in Victoria. Before leaving the Executive Council, we may say a word 1 Public Service Act 1890, §§ 32 and 121. CHAP. XXX THE TWO PHASES OF THE COUNCIL 275 or two as to its methods of doing business. We have already discussed its legislative functions, we have now to consider it in its purely executive capacity. It will have been observed that the Executive Council has an ideal and an actual existence. Ideally, it contains all the persons who have ever been appointed to it, except those who have died or been deprived of their seats.^ In this form the Executive Council never meets. It has been sug- gested that it should assemble on great ceremonial occasions, such as the arrival of a new Governor, and that its ranks should be recruited from the most distinguished members of the com- munity, irrespective of their political importance. This is the practice followed in England with the Privy Council, but the suggestion does not seem to find much favour in Victoria. Even in its active phase, however, that of the existing Ministry, the Executive Council has two shapes, the formal and the informal. The latter, which is usually spoken of as the " Cabinet," is the real core and essence of the Government. In its private meetings at the Premier's offices no one is admitted but the actual Ministry of the day, no records of the meetings transpire, and no official notice is ever taken of the proceedings. (This was the type of meeting so distasteful to the English patriots of the seventeenth and eighteenth centuries, the meet- ing stigmatised as " Junto " and " Cabal," but which has proved so necessary that it has become the pivot of the Imperial sys- tem of government.) The former is the " Executive Council " proper, presided over by the Governor, and attended by the clerk, who keeps a formal record of its proceedings. Though strangers are not admitted, the records of its deliberations are frequently published, with the names of its members prefixed.^ Here the decisions of the Cabinet are put into official form, appointments confirmed, resignations accepted, proceedings ordered, and notices published. It is the formal organ of the executive of the colony. ' There were, at the close of the year 1889, 74 members (Blue Book for 1889). The appointments to the Executive Council make the tenure of seats dependent on the occupant's residence iii the colony. Apparently, however, this condition is not insisted on except in the case of active members. ^ Cf. e.g. Gov. Gazette, 19th Feb. 1886, for numerous examples. As before pointed out, the individual names of members present, and not the titles of their offices, are now published. 276 THE EXECUTIVE COUNCIL part iv It is hoped that the foregoing sketch has made clear the true position of the Cabinet in the modern English system, for it is emphatically an English system, of polities. The Cabinet, composed almost entirely of the highest of&cials in the administration,^ wields the whole executive force of the com- munity. Being also composed of parliamentary leaders, it controls the bent of legislation. No new departure in financial or other policy can take place without its sanction. It is, as nearly as possible, the sovereign power of the community. On the other hand, its tenure of office is uncertain. It lives on the popular credit, and can be got rid of by a change of popular feeling. This change usually manifests itself through Parliament, but the Cabinet, should it be disposed to take the risk, may appeal from Parliament to the constituencies. If the verdict of the constituencies be against it, it must retire from administration and legislation alike. There is no further appeal. ^ There is no legal objection to the appointment of non-official members, and, as a matter of fact, one or two are usually appointed by each government (of. Gm. Gazette, 5th Nov. 1889, Mr. Stuart and Mr. Peacock). The practice is open to abuse. CHAPTEE XXXI RESPONSIBLE MINISTERS Although there appears to be no statutory authority on the subject, a " Eesponsible Minister " may be defined as a Crown official who is eligible for a seat in Parhament.^ Owing to the very peculiar wording of the Officials in Parliament Act 1883 ^ (adopted into the Constitution Act Amendment Act 1890), it is difficult to state exactly the law on the subject, but it is submitted that the following is an accurate summary of its provisions. The Governor may appoint any number of persons, not exceeding ten, to offices of profit under the Crown, and these persons, notwithstanding the general rule which disqualifies Crown officials from sitting in Parliament, may be elected to either House. But they must be "responsible ministers of the Crown and members of the Executive Council, and '' (i.e. presumably if so many are appointed) "four at least of such officers shall be members of the Council or Assembly."^ The total amount available for their salaries is the annual sum of £15,500, of which £14,000 was provided by the Constitution Act,* and the remaining £1500 by the Officials in Parliament Act 1883.^ But there is no statutory rule as to the mode of distribution of this sum, except that the " additional officer appointed under the Officials in Parliament Act 1883 " must ' I should have been inclined to add "and is a member of the Executive Council," but as the 2d section of the Officials in Parliament Act has provided that certain persons shall be " responsible ministers of the Crown and members of the Executive Council," I presume there is no necessary connection between the two ideas. ^ 47 Vic. No. 280. " Constitution Act Amendment Act 1890, § 13. * § 46. = § 3. 278 RESPONSIBLE MINISTERS part iv receive £1500 a year.-' Not more than eight salaried officials, may sit at any one time in the Legislative Assembly.^ Not only are the salaries of those officials specially appropriated by statute, but, up to the extent of the £14,000 provided by the Constitution Act, they must be accounted for to the Imperial Treasury.^ Upon accepting salaried office, a Eesponsible Minister vacates his seat in Parliament,* but he is re-eligible, and a sub- sequent change from one office to another does not necessitate his re-election.^ The object of these peculiar provisions is undoubtedly to secure greater pliability in the distribution of offices. In theory, by the constitution of Victoria, the Cabinet offices are functional only, not organic. The holder of one office can do the work usually performed in another, and a redistribution of business can be made at any time.^ Nevertheless, owing to the requirements of certain statutes, and the natural convenience attaching to traditional names, the chief offices in the administration have become stereotyped, and may be enumerated as follows. 1. The Chief Secretary, whose office was, under the old system, when its. holder was known as the "Colonial Secre- tary," "^ the official head of the Ministry, having been specially given precedence by Eoyal Instructions of 11th March 1852.^ Upon the introduction of Eesponsible Government, the change in the title was made at the wish of the framers of the Con- ^ 47 Vio. No. 280, § 3. The arrangement during the Gillies-Deakin govern- ment was as follows : — Chief Secretary i Treasurer . . . . } ^2000 each Attorney-General £1600 Minister of Defence .... £1500 Minister of Public Instruction . . ' Minister of Justice Commissioner of Trade and Customs ,, ,, Crown Lands and Survey Minister of Public Works Postmaster-General ^ 2 Constitution Act Amendment Act 1890, § 13. ^ Constitution Act, § 46. * Constitution Act Amendment Act 1890, § 19. = § 17. ° With this object doubtless has been adopted also the increasing practice of conferring statutory functions on " the Minister for the time being administering this Act." ' The old title is retained in the New South Wales Ministry, and it is still, apparently, officially recognised in Victoria (cf. Acts Intei^pretation Act 1890, § 6). ' Original in Treasury Buildings, Melbourne. £1400 CHAP. XXXI CHIEF SECRETARY AND TREASURER 279 stitution/ but the official precedence of the Chief Secretary- seems to have disappeared on the introduction of the title of "Premier," which, however, in spite of the attempt of Mr. Berry to elevate it into an office, remains, as in England, merely a titular distinction. The head of the Ministry invari- ably fills the office either of Treasurer or Chief Secretary. Like the Home Secretary in England, the Chief Secretary comes in for all Government work which does not distinctly belong to a special department, as well as for duties specially imposed on him by name.^ In the former capacity he usually undertakes the control of the business connected with the machinery of the police force, the inspection of factories and shops, the maintenance of penal establishments and gaols, the hospitals for the insane, the public libraries and museums, and the enforcement of the Health Act.^ In the latter he receives and publishes the returns of the Eegistrar of Births, Deaths, and Marriages,* the accounts of the Commissioners of Savings Banks,^ licenses places of public amusement," and communicates the remission of a sentence to the judge who tried the case.^ 2. The Teeasurer is one of the very few executive officials of the colony who have definite duties imposed on them by the constitution. In fact it may be doubted whether the business of government could be legally conducted without him. He seems to combine in his person the functions of the Treasury and Exchequer departments, which in England, though long united, have for some time been severed. By § 46 of the Constitution Act the Treasurer ^ is bound to issue monies to the extent of the Civil List in discharge of warrants directed to him by the Governor, and to account for the same to Her Majesty through the Commissioners of the (Imperial) Treasury, ^ V. and P., 1853-4, iii. 597. The official in question is also described in the same document as "the Secretary to the Government." ^ Even in these cases his functions can be executed by any other Responsible Minister (Acts Interpretation Act 1890, § 6). ' Sometimes minor duties in connection with these matters are conferred on him by statute {,e.g. Police Regulation Act 1890, § 7 ; Gaols Act 1890, § 22 ; Libraries Act 1890, § 8). Since November 1890 there has been a separate Minister of Health. Cf. O. G., 5th Nov. 1890. * Registration of Births, Deaths, and Marriages Act 1890, § 11. ' Savings Banks Act 1890, § 48. « Theatres Act 1890, §§ 3, 4, and 6. ' Crimes Act 1890, § 541. 8 The Constitution Act said "Treasury," but the misprint was corrected by 50 Vic. No. 904, § 2. 28o RESPONSIBLE MINISTERS part iv the corporate body into which the great office of Lord Treasurer has long been resolved. By | 58, no part of the revenue of Victoria arising from sources over which the legislature has control can be made issuable except in pursuance of warrants under the hand of the Governor, addressed to the Treasurer. So that although, under § 48, the office of Treasurer may be abolished, it would hardly be possible for the Government to exercise this power without making some substantial change in the financial scheme. It is, of course, quite possible that the colony may some day follow the Imperial example, and put the Treasury in commission. Moreover, certain duties are imposed on the Treasurer by name, in colonial legislation, notably in the Audit Act. But the best way to form an idea of his position will be to sketch the history of a Government financial year.-' Early in the session the Treasurer moves, in the Legislative Assembly, resolutions for the appointment of two committees of the whole House, the Committee of Supply, and the Com- mittee of Ways and Means. On the occasion of the first sitting of the Committee of Supply, the Treasurer produces in the name of and by message from the Governor, the Estimates of the revenue and expenditure for the forthcoming year, together with the recommendations for expenditure and taxation, in pursuance of the 57th section of the Constitution Act.^ These documents taken together form the " Budget," and are generally introduced by a speech from the Treasurer, in which he explains the financial policy of the Government, and generally refers to the results of the previous year's finance. The Estimates may be amended by any subsequent estimates in the same session. The Committee of Supply then proceeds to consider the Budget, and passes " votes " or resolutions, authorising the making of certain payments. At first these resolutions are for lump sums, well within the requirements of the various items for the year (except in the case of items fixed by statute), and are only intended to cover a period of about three months. They are reported to and confirmed by the House, and are the 1 The Government financial year ends on the 30th June (Acts Interpretation Act 1890, § 13). 2 The accounts for the previous year are also presented in pursuance of the Audit Act (cf. -post, pp. 282-284). CHAP. XXXI GOVERNMENT FINANCIAL YEAR 281 Government's authority for payments on account. To put the Government in funds for such expenditure, the Committee of Ways and Means then resolves upon the grant to Her Majesty of a sum to cover the expenditure voted by the Committee of Supply ; and the resolution, having been reported to the House, is embodied in a short " Consolidated Eevenue BUI," and passed through all stages of legislation, appearing finally as a regular Act of Parliament. With the monies thus provided, the Govern- ment makes payments, in manner hereafter described, on account of the expenditure sanctioned by the Committee of Supply. The Committee of Supply then takes into account the detailed items for the year, and, after examining them, votes them individually, deducting the amounts previously granted on account. As progress is made, the Committee of Ways and Means from time to time recommends various further grants to meet the expenditure sanctioned, and such recommendations are incorporated in Consolidated Eevenue Bills and carried through all stages. Finally, the accounts for the year are passed, and included in a comprehensive Appropriation Bill, which also grants the balance of the funds necessary to meet the expenditure voted. The Appropriation Bill, like the bills making grants on account, is introduced on the formal vote of the Committee of Ways and Means. In so far as the grants made are not already provided for by existing taxation or other sources of revenue, they have, of course, to be met by legislation. There is no general taxation Act, but duties are imposed by various statutes upon the im- portation of goods, the succession to the estates of deceased persons, or other objects, according to the policy of the day. With regard to Customs duties, the legislature of Victoria adopts one rather stringent precaution, making the Acts retrospective, so as to include all importations conducted since the proposal of the measure.^ Between the announcement and the enactment of the measure, evasion of the Act is pro- hibited by Customs Eegulations, which are made by the Com- missioner of Customs in pursuance of a resolution of the Assembly,^ and which practically enforce collection of the new ' Thus the Duties of Customs Act 1889 in most cases applied from the 31st July, though it was not passed till 4th November. 2 E.g. V. mid P. (L. A.), 30th July 1889. 282 RESPONSIBLE MINISTERS part iv duties at once, subject to return if the legislature alters them in their passage through the houses.^ So much for the way in which revenue and expenditure are voted. Now we must consider how they are actually collected and distributed. When the office of Auditor-General was abolished in the year 1857, a new system under the control of Commissioners was introduced.^ The new scheme was itself remodelled in 1859, but the Commissioners were continued,^ and in outHne the scheme is now as follows. The Commissioners of Audit, whose salaries are permanently charged upon the revenue, are appointed by the Governor in Council, and cannot be removed except upon Addresses of both Houses in the same session, or of the Legislative Assembly in two successive sessions.* They may, however, be temporarily suspended by the governor in council.^ They cannot be members of parliament or of the Executive Council.^ Monies payable to the Consolidated Fund "^ are in the first instance received by " Collectors of Imposts " stationed at various places throughout the colony,® and by them paid over to " Eeceivers of Eevenue " in such places as the Governor in Council shall direct, and at such intervals as may be prescribed by the Treasurer.^ The Collector, in handing over the monies to the Eeceiver, furnishes him with a detailed statement of the items of which they are composed, and sends each month ■ a return of his receipts to the Commissioners of Audit.-^" The Eeceiver discharges the Collectors of their payment, pays the amounts daily into a bank to the credit of " The Pubhc Account," and forwards daily statements of the sums so paid in, together with duplicate banker's receipts, to the Treasurer." Sums received by pubHc officials for private persons are simi- larly paid into the bank, the interest accrues to the Consoli- ^ For evidence as to the process above detailed, of. 53 Vic. Ifos. 1012, 1018, 1019, 1043, and 1053 ; V. and, P. (L. A.), 1889, pp. 41, 59, 81, 83, 125, 128-156, 184, 187-205, 210, 213, 217-225, 226-229, 230, 233, 236-279, 281, 283, 285, 291, 294, 326-339, 342, etc. ; Hansard, vols. Ix.-lxii. sub titt. "Supply,-" "Ways and Means," etc. = 21 Vic. No. 24. ^ 22 Vic. No. 86. * Audit Act 1890, §§ 6-8. " g 3_ 6 § 7. ' It will be remembered that by the Constitution Act (§ 48) all incomings are to be paid into a Consolidated Fund. Cf. also Public Monies Act 1890, § 3. 8 Audit Act 1890, § 13. » §§ 12, 15. 1" Audit Act 1890, §§ 16, 21. " §§ 17, 19, 20. CHAP. XXXI EXPENDITURE OF PUBLIC MONIES 283 dated Fund, and, if the sums are not claimed for three months, they are paid into a "Trust Fund" account kept in the Treasury.-' After six further years' non-claim, provided that the persons entitled are not under disability, the sums hecome part of the Consolidated Eevenue.^ The expenditure of public monies is effected through " Paymasters " in the following way. The Treasurer estimates the amount which wiU be payable out of each local account during the ensuing month, and prepares a warrant in official form which he signs and transmits to the Commissioners of Audit.^ The latter examine the warrant, to see that the monies upon which it proposes to draw are " legally available " for the purposes to which it is proposed to devote them, and, if it is satisfactory, two of them countersign and return it to the treasurer, who submits it for the signature of the Governor.* Upon securing this final attestation, the warrant is filed in the Treasury, and becomes the of&cial authority for the payment of the money .^ The Treasurer, by order in writing, directs that the cheques of certain Paymasters named shall be honoured at any bank at which the Public Account is kept, but even this document must be countersigned by a Commissioner of Audit before the bank is entitled to act upon it.® The Paymaster, finally, must only pay such claims as are transmitted to him by the Treasurer.^ In making this distribution of public monies, the executive is only entitled to depart to a very limited extent from the appropriation made by the legislature. It may make up the deficiency in any one item in a " subdivision of the annual supplies " ^ by transferring to it any surplus from another item in the same subdivision, provided that the subdivision is not expressly stated to be " inalterable." But such alteration can only be effected by Order, not by warrant, and may not be employed to increase any salary or wages fixed by law.® And the sums appropriated can only be expended within the financial year for which the appropriation was made.^° Further precautions are taken, by provisions which com- pel bankers with whom public monies are deposited to send ' Audit Act 1890, §§ 23, 24. = § 25. = § 28. " Audit Act 1890, § 29. ' §§ 29, 30. » § 30. ' § 31. * I.e. (presumably) in the Schedule to the Appropriation Act. » Audit Act 1890, § 32. " § 33. 284 RESPONSIBLE MINISTERS part iv daily, to the Commissioners of Audit and Treasurer respectively, a statement, known as " The Bank Sheet," showing the position of the Public Account at the bank,-' and which direct the Treasurer to forward daily to the Commissioners of Audit a " Cash Sheet " showing the amounts of the statements, accounts, and receipts forwarded to him by the Eeceivers and Paymasters.^ Prom all these documents the Treasurer prepares a quarterly statement of receipts and expenditure, which is published in the Government Gazette, and an annual statement of the Con- solidated and Trust funds, which, when audited by the Com- inissioners, is transmitted to the Legislative Assembly.^ Of late years it has become the custom for the Premier of the colony to occupy the office of Treasurer. 3. The Attorney- Geneeal acts in several distinct capacities. a. As Legal Representative of the Grown, he conducts all process in whioh the Crown appears as a party. A striking example of this capacity is to be found in § 388 of the Crimes Act 1890, which ' authorises the Attorney-General to make presentment of any person for any indictable offence, and in the 391st section of the same statute, which empowers him, in the case of any person imprisoned under committal for trial on a charge of felony or misdemeanour, to grant a certificate of noUe prosequi addressed to a judge or the judges of the Supreme Court, whereupon the prisoner's immediate release must be ordered. h. As Legal Adviser of the Government, the Attorney-General is bound to furnish, when called upon by the Governor, a written opinion with regard to any legal question which may arise in the conduct of the executive, such as, for example, whether the provisions of a certain statute have been complied with by a government depart- ment, whether a certain contemplated course is constitutional, or whether certain alleged offenders have brought themselves within the limits of the law. In the difficult and important matter of death sentences, it would seem that it is the function of the attorney-general to request the judge who tried the case to forward his notes of the trial to the executive, and to advise the Govern- ment upon the course to be adopted. Information as to the actual conduct of the trial is furnished by the judge, while the final decision on the matter rests with the Governor, and is com- municated to the judge by the Chief Secretary.* c. As Administrator of the Legal Department, the Attorney-General is the head of the legal staff of the Government. Under his 1 Audit Act 1890, § 34. 2 § 35. " §§ 48-52. ^ The position of the Governor, with regard to death-sentences, cannot, how- ever, be said to be free from doubt. CHAP. XXXI COMMISSIONER OF CROWN LANDS 285 supervision are the Crown Solicitor, and the Public Prosecutors, the various ofacials of the Land Transfer Office, and the sheriffs. The publication of official legal documents is also in his charge, and he is deemed accountable to Parliament for the working of the legal machinery of the state. d. As Adjudicator, the Attorney-General also acts in certain special cases, as, for example, in the case of disputes between the Post- master-General, and any depositor in the Post- Office Savings Bankji and where, under the Insolvency Act 1890, he orders payment of the costs of a trustee or assignee out of the "Insolv- ency Suitors' Fund." ^ In these cases he appears to act rather as a judicial than an executive official. 4. The Commissioner of Ckown Lands and Suevey, who has succeeded to the old office of Surveyor-General,^ and who takes over the duties of that office. To him belongs in effect the administration of the unalienated lands of the Crown. In his duties are included the survey, sale, and management of the public domain, and the carrying out of the legislation enacted with respect to it. We have seen that, in the early days of the colony, no subject was more sure to excite public interest than the matter of Crown lands. All alike were interested in their distribution, and the desire to obtain com- plete control over them was one of the strongest elements in local feeling. It becomes almost essential therefore to notice, in outline, the developement of the policy of Eesponsible Govern- ment on the subject. In the year 1857 the functions of both the Surveyor- General and the Commissioner of Public Works were transferred to the new department of the Board of Land and Works created by statute.* The Board was to consist of not less than three nor more than five members, of whom one, the "President of the Board of Land and Works," was to be a Eesponsible Minister, but all the others were to be permanent officials, incapable of sitting in Parliament.^ To this body were also transferred the func- tions of the Central Eoad Board.^ The object of this scheme was, clearly, to abolish the offices of Surveyor-General and Commissioner of Public Works, and to place the whole admini- stration of Crown lands, together with the creation and 1 Post Office Act 1890, § 84. " Insolvency Act, § 127. ' The post of Surveyor-General has been reconstituted as a non-political office. * 21 Vic. No. 31. " § 1. By the 21 Vic. c. 58 provision was made for the appointment of a Vice-President. * § 6. 286 RESPONSIBLE MINISTERS part iv management of public works, in the hands of a single Eespon- sible minister, the President of the Board of Land and Works.^ But this part of the plan seems to have fallen through very quickly. The Surveyor-General reappeared as the Commissioner of Crown Lands and Survey in December 1858, simultaneously with the reappearance of the Commissioner of Public Works.^ The office of President of the Board of Land and Works was undertaken by the Commissioner of Crown Lands and Survey, a practice which has since been usually followed. In the year 1862, after the creation of the new office of Commissioner of Eailways and Eoads, the Governor in Council was empowered to appoint one or two Eesponsible Ministers to be vice-presidents of the Board,^ and the practice was for some time to confer the vice-presidencies on the Commissioner of Public Works and the Minister of Eailways. But latterly they have been held as unsal- aried offices by members of the Cabinet holding no other posts. Meanwhile, the policy with respect to the alienation of Crown lands had been embodied in a statute of the year 1860, which has been completely remodelled on three later occasions. The Act of 1860, after providing for special reserves of lands for public purposes, and also of water frontage and mineral lands, divides the saleable Crown lands of the colony into two great classes of " country " and " special" lands.^ The former are thrown open to sale by selection, after Government survey, in "allotments" of from 80 to 640 acres, each being divided into two equal " subdivisions." For these subdivisions private applications may be received, accompanied by a deposit of £1 an acre, and if before a fixed day there is only one applicant for an allotment, he is to be deemed the purchaser of it in fee-simple at his deposit price of £1 an acre. If there are more applicants than one, the subdivision is put up to auction, but only the applicants are allowed to bid. The successful bidder is to be allowed to purchase the other sub- division of his allotment at the same price as he pays for the first, or to rent it, at his option, at the rate of one shilling an acre, for a term specified in the proclamation throwing the land open for selection. A lessee is to have no compensation 1 This was the practice adopted in the Haines Ministry of 1857-8. ^ G. G., 21st Dec. 1858. 3 25 Vic. No. 62, § 5, continued by 29 Vic. No. 289, § 6. ■* 24Vio. No. 117, §§2, 9, 12. CHAP. XXXI LAND ACTS OF i860 AND 1862 287 for improvements on his rented subdivision, but he is to be entitled to purchase the fee -simple at any time during his term, upon payment of a sum equal to the purchase-money of his purchased subdivision. If there are applicants for both subdivisions of a section, they compete together at the auction, and the highest bidder is entitled to claim his choice of one, and to purchase or rent the other without competition. But no selector is to obtain more than 640 acres of land, leased or purchased, within a year, except in the case of lands which have been open for sale twelve months. An important section provides that ' country lands are to be proclaimed open for selection in districts, not in isolated allotments. Moreover, when one-fourth of the lands opened by a proclamation have been selected under this process, the purchasers may use the unsold allotments as "farmers' commons" for pasturage purposes.^ " Special " lands, i.e. lands within certain named distances of towns, villages, sea -coasts, railways, and rivers, are to be sold by quarterly auction sales, at an upset price which is never to be less than £1 an acre for the fee-simple, and may be raised by the Governor in Council previous to a sale. The value of existing improvements is to be added to the upset price, and purchasers are not, without permission of the Board of Land and Works, to interfere with existing races, dams, or reservoirs.^ Mining leases may be granted for thirty years, and licences, for one year, for any purpose except the working of gold,^ and " Town Commons," for the use of the inhabitants of towns, may be proclaimed.* The scheme of 1860 was substantially altered by the "Land Act 1862,"^ which provides that ten million acres of Crown land shall be at once set aside for proclamation in agricultural areas, two millions to be kept constantly open for selection.^ The competitive clauses of the Act of 1860 are replaced by provisions which give the exclusive right of pur- chase to the first selector,^ and the minimum size of an allot- ment is reduced to 40 acres.^ In other respects the methods of application and allotment are continued, except that the term 1 24 Vio. No. 117, §§ 14-47. ^ 24 Vie. No. 117, §§ 48-59. 5 §§ 62 and 63. The gold fields were then regulated by the 21 Vic. No. 32. « § 69. " 25 Vic. No. 145. « 25 Vic. No. 145, § 12. ' § 17. ' § 13. 288 RESPONSIBLE MINISTERS part iv for which a lease of one subdivision may be granted on the purchase of the other is fixed at eight years, and the rent at half-a-crown an acre.^ The holders of licences under the former Act are to have a pre-emptive claim to purchase the subdivision occupied by them under the licence.^ An important section^ provides that every selector is within one year to cultivate one acre out of every ten of his allotment, or to erect a dwelling, or a substantial fence upon the allotment. All lands not comprised in the agricultural reserve are to be open for sale by public auction at the minimum upset price of £1 an acre.* After authorising the granting of short leases for various industrial purposes, and making elaborate provisions for the proclamations of commons, the Act of 1862 proceeds to deal with the subject of squatting. The existing system of Hcence fees and assessment on stock is abolished, in favour of a system of rent, assessed on the capabilities of runs at the rate of eight- pence a head for sheep and two shillings a head for cattle.^ No licence is, in the future, to protect any run from sale or proclama- tion as a common,^ and henceforth new runs are to be disposed of by auction, none being created of greater carrying capacity than 5000 sheep or 1250 cattle.'^ The licensee of a run is not to cultivate any more land than will be sufficient for the supply of his own family and establishment, but he may transfer his interest in a run or part of it, and on ejectment he may recover modified compensation for improvements effected by him with the consent of the Board of Land and "Works, or be allowed to purchase the land on which they are made (not exceeding 320 acres) at the statutory minimum of £1 an acre.^ The Act also provides that one-fourth of the total Land revenue shall be de- voted to the assistance of emigration from the United Kingdom.' The Act of 1862 was only intended to operate until the close of the year 1870,^° but before its expiry its provisions were substantially modified by the "Amending Land Act 186 5." -"^ The latter statute abolishes the geographical reserve of the Act of 1 862, authorises ^^ the proclamation of new counties, and merely empowers the Government to proclaim agricultural areas when surveyed, and to throw them open for selection." 1 25 Vic. No. 145, § 22. 2 § 34. " § 36. ■> § 39. ^ §§ 82-83. « § 80. '' §§ 98-200. 8 §§ 204-222. ^ § 33. 1° § 135. " 28 Vic. No. 237. ^^ § 3. '^ § 9. CHAP. XXXI LAND ACT OF 1869 289 For the future, however, selectors are only to be entitled to seven-year leases of their allotments, at rents of two shillings an acre, until they have resided upon them for three years, and have made improvements of the value of £1 an acre. They are then to be entitled to purchase the fee-simple at the fixed price of £1 an acre.^ No selector is to obtain more than 640 acres of agricultural land.^ If he pleases, at the end of his three years, the selector may require the Government to put up his land to auction at the reserve of £1 an acre phis the value of his improvements, and to have the value of his improve- ments repaid out of the purchase money.^ The selector may not part with his interest until three years from the commence- ment of his term.* All lands not included in agricultural areas (as well as those reserved for townships in agricultural areas) are by the Act of 1865 authorised to be sold by auction.^ Increased provisions are made for commons, and for leases for industrial purposes.® The rules on the subject of squatting are also slightly amended.^ The whole subject was receded by "The Land Act 1869," which provided for the acquisition of the fee-simple of Crown land in two ways, viz. by occupation and improvement, followed by grant, and by immediate purchase. With regard to the former process, the intending purchaser is to be entitled to apply to a Land oSicer for licence to occupy any land not ex- ceeding 320 acres and not being within the limits of a city, town, or borough, for a period of three years, at a fee of two shilKngs an acre for each year.^ If the licensee resides on his allotment for at least two years and a half, and, within the three years, effects substantial improvements of the value of £1 an acre, he is to be then entitled either to a grant of his allotment upon payment of fourteen shillings an acre, or a lease for a further period of seven years at an annual rent of two shillings an acre, with a right to purchase the fee-simple at any time upon payment of the difference between the total amount of his rent paid since the commencement of the lease and the statutory price of £1 an acre.® The interest of the licensee is not saleable, nor even descendible.^" 1 28 Yic. So. 237, § 14. ^ § 15. 3 |g le, 20. «§ 22. ^ g 33. 8 §§ 37-54. '' §§ 55-63. s 33 yjc. No. 360, §§ 18-21. ' § 20. i" § 28. U 290 RESPONSIBLE MINISTERS part iv In the case of the immediate purchase, the lands are put up to auction at the orthodox minimum reserve. But there is a limit of 200,000 acres on the sales of Crown land during any one year, and a sum of £200,000 a year, arising from the sale or alienation of Crown lands under the Act, is to be appro- priated towards the construction of railways or the extinguish- ment of railway debentures.^ In the Act of 1869 the powers of the Government with regard to the proclamation of commons are greatly simplified by the abolition of the various distinct classes of commons before existing, and the conferring of general authority on the subject.^ The provisions on the subject of squatting are mainly continued, except that no claim for compensation for improvements is to be recognised after the 31st December 1870.^ On the other hand, the pre-emptive right to the homestead is to be continued.* The scheme of the Act of 1869, with its various amend- ments,^ was in the year 1884^ replaced by another scheme, which, with its amendments and the Mallee scheme of 1883,' has been incorporated into the consolidated Land Act 1890. By this Act the unalienated lands of the Crown in the colony are arranged in eight classes, each having its own special regulations. The names of these classes and their respective areas are recorded in maps sealed with the seal of the Board of Land and Works, and deposited with the Clerk of the ParHa- ments.^ They may be enumerated as follows. a. Pastoral lands, which are to be divided into allotments, varying in capacity from 1000 to 4000 sheep, or from 150 to 500 head of cattle.^ These allotments may be leased for any period which will expire before the 30th December 1898, but the fee-simple may not be sold.^" The lease is granted to the first applicant,-^^ provided that he is not already tenant of an allotment.'^^ The annual rent to be reserved upon the lease 1 33 Vic. No. 360, §§ 34-43. ^ §§ 57.62. 3 § gO. * § 79. ^ S.g. 39 Vic. No. 515 (which raised the rental of squatting runs to one shil- ling a head for sheep and five shillings a head for cattle), 42 Vic. No. 634 (which increased the term and decreased the rent of the allotment licenses), 43 Vic. No. 653, 44 Vic. No. 681. « By the 48 Vic. No. 812. ' 47 Vic. No. 766, 48 Vic. No. 795, 49 Vic. No. 875, 53 Vic. No. 1040. 8 Land Act 1890, § 6. There is, however, really a ninth class of lands de- scribed as being within the "Mallee Country" (§ 145). 9 § 19. " §§ 20, 21. " § 22. 12 g 21. CHAP. XXXI LAND ACT OF 1884 291 is to be at the rate of one shilling a head for sheep and five shillings a head for cattle, according to the carrying capacity of the run, with a maximum estimate of 1 acres to a sheep or 50 to each head of cattle.^ The interest of the lessee is not transferable without the consent of the Board of Land and "Works, he must within three years destroy all the vermin ^ upon his land, and keep it free from vermin and spreading weeds, and be must not destroy timber without Government permission.* The Government reserves the right of resuming any part of his land for public purposes, and of granting working licences for industrial pur- j)oses to strangers.* The Crown may also resume the land without special object upon giving three years' notice, and upon payment for improvements made before the notice.* Moreover, on the expiry of his term, the tenant is entitled to be paid by the incoming lessee the value of his improvements (limited to half-a-crown an acre) so far as they have increased the value of the land for pastoral purposes," and at any time during the term he may select a homestead of not more than 320 acres upon payment of £1 an acre.''' h. Agricultural and Grazing lands, which are divided into "grazing areas" of varying size, not exceeding ,1000 acres each.^ These grazing areas are dealt with in two distinct ways : — 1. They are granted, at annual rents of from twopence to fourpence an acre, under terms of lease very similar to those described under the heading of " Pastoral Lands," except that the lessee is bound to fence within three years, and on the expiry of his term he may recover from the incoming tenant for the value of his improve- ments up to ten shillings an acre.^ 2. Parts of them, not exceeding 320 acres in any case, may be set aside as "agricultural allotments" on the application of the respective lessees, provided that such applicants have not selected, ■ under previous Land Acts, allotments which, with the new selec- tion, will give them more than 320 acres altogether.^" Such appli- cants receive occupation licences for periods of six years at one shilling an acre.^^ Their interest is not transferable,^^ but if they ' Land Act 1890, § 26. 2 "Vermin" includes kangaroos, wallabies, dingoes, stray dogs, foxes, and rabbits, and any other animal or bird proclaimed by the Governor in Council (§ 4). 8 § 27. * Ibid. = Ibid. « § 28. ' § 29. 8 § 30. 9 §§ 32, 37, 38. " §§ 33, 34. " § 42. " It may, however, be pledged under certain conditions (§§ 56-63). 292 RESPONSIBLE MINISTERS part iv occupy under it for five years of the six, and make certain im- provements, they are entitled at the expiry of the six years to grants of the fee-simple at fou.rteen shillings an acre, or to leases for fourteen years at one shilling an acre, with the right of pre- emption at any time during the term upon payment of the difference between the amount of rent already paid and the statutory minimum of £l an acre.i Very stringent provisions exist ^ to prevent these agricultural allotments being obtained by any but lonafide intend- ing settlers, not already entitled to the maximum of 320 acres. " Non-residence licences " for improvement purposes, at double rents, may however be issued, ^ and any licensee or lessee of an agricultural allotment may obtain a grant of an area not exceed- ing twenty acres for an orchard or vineyard at a price which, with the rent paid, will make up the statutory minimum.* For purposes of this class of lands a person of the age of eighteen years is deemed to be legally of full age.^ c. Auriferous lands, which, like the pastoral and grazing areas, may not be alienated in fee-simple, but of which annual grazing licences, renewable for five years, may be granted.^ But no licensee is to occupy more than 1000 acres of auriferous lands, and his occupation is not to interfere with mining pursuits.''' The rent at which he holds is to be fixed by valuers appointed by the Board of Land and Works.^ d. Lands which m,ay be sold hy auction. Certain other areas are defined as those which may be sold out and out by public auction at a minimum upset price of £1 an acre.^ Not more than 100,000 acres may be thus sold in any one year, and no " country " ^° lands may be sold until a schedule of them has been laid before both houses of Parliament.^-' Streets, roads, and townships may be proclaimed, and the land in the townships sold by auction.-'^ The produce of aU auction sales is paid into "The Eailway Construction Account," to make provision for the construction of Government rail- ways. e. Swamp lands, situated in five localities. These may be reclaimed by the Government with prison or other labour, under the supervision of the Board of Land and Works, and, when reclaimed, may be leased in allotments not exceeding 1 Land Act 1890, § 44. ^ % 43. ^ § 49. 4 | 55, 6 § 36. « §§ 65-67. '' §§ 67, 68. ^ § 67. " § 69. J" "Country" lands are those which are not comprised within the limits of a city, town, or borough (§ 4). " § 69. 12 § 73. is § 73. CHAP. XXXI LAND ACT OF 1884 293 160 acres, for terms not exceeding twenty-one years.^ But the fee-simple may not be sold.^ /. State forests. These may not be disposed of in any way except under grazing licences or licences to cut timber.^ g. Timber reserves. These may not be alienated in fee- simple, but, as they become denuded of timber under licensed cutting, they may be added to the pastoral or agricultural and grazing lands, and dealt with in such capacities.* State forests and timber reserves may be placed under the control of Local Forest Boards.^ h. Water reserves, i.e. the catchment areas, from which are fed the streams which supply water for public domestic pur- poses, are absolutely prohibited from alienation in any manner whatsoever,® except for certain public purposes.'^ The Act also enables the Governor in Council to grant leases or licences of small areas for industrial purposes, for periods not exceeding twenty-one years in any case ; but where the lands in question are within the limits of a city, town, or borough, the leases must be put up to auction.^ Moreover, commons may be proclaimed and placed under the control of an existing local authority, and managers may be appointed to enforce the destruction of vermin and the eradication of weeds.® Every lease of a pastoral allotment or grazing area is subject to the entry for gold-mining purposes of the holder of a miner's right or mining lease, without compensation for surface damage, and every grant, and every lease or licence made with right of pre-emption, is subject to a similar entry on payment of com- pensation.'''' Moreover, any traveller is entitled to depasture his cattle and sheep upon any unsold Crown lands within a quarter of a mile of any road or track, except in certain counties named, where the right is restricted to cattle, and to similar lands within a quarter of a mile of a surveyed road." But twenty-four hours' notice of such intention must be given to the occupiers, and a reasonable rate of progress must be made each day.^^ Finally, i. Mallee lands, or lands comprised within the Mallee Country in the north-western district of the colony, amounting 1 Land Act 1890, §§ 79, 81, 85. ^ § 80. ' §§ 86, 87. ■> §§ 88, 89. = §§ 91-96. « § 90. ' § 100. 8 §§ 97-99. » §§ 200-118. i» §§ 118 and 119. ^^ § 131. "■" § 132. 294 RESPONSIBLE MINISTERS part iv to about 10,000,000 acres, are subject to special rules. The peculiarity of these lands appears to be that they are covered with a scrub having a fibrous root of great tenacity, which scrub harbours large quantities of " vermin." The Mallee Country is to be divided into " blocks," each of which is to be subdivided into two parts designated respectively A and B on the Government maps.^ The right to a lease of a mallee block, for a term of years fixed by the Governor in Council, but not exceeding 20 years from the 1st December 1883, is put up for sale by auction, and the successful bidder is entitled to take such lease of either part, according to his option, and must " occupy " the other part for a period of five years from the date of the lease.^ The southern and eastern border lands of the Mallee Country, known as the " Mallee Border," are to be divided into " mallee allotments," varying in size, but not exceeding in gross area 20,000 acres each. And such allotments may be leased to any applicant for a term similarly limited as in the case of mallee blocks, provided that no person shall hold more than 20,000 acres of mallee allot- ments.^ Moreover, any mallee block may be subdivided iato allotments, if applicants are forthcoming sufiBcient to take them all up.* The rent reserved on the leased part of a mallee block is to be twopence a head on sheep and a shilling on cattle for the first five years, twice these amounts for the next five years, and thrice for the third five years, each calculated upon the average number of head actually depasturing on the land. For the " occupied " portion of the block, the rent is to be at the lowest rate.^ The lessee is not to cultivate, assign, or sublet his land without the permission of the Board of Land and Works, he must destroy within three years and afterwards keep out the vermin from both portions, and must keep all improvements in repair.^ The Crown may re-enter, upon three years' notice and payment of compensation.'^ Similar conditions, except as to " occupied " portions, apply to the leases of mallee allotments.^ No alienation in fee-simple of mallee lands is allowed,^ and lands alienated prior to 1883 in the Mallee 1 Land Act 1890, §§ 145 and 146. 2 §§ 147-149 and 152 and 153. = §§ 155.157. * § 155. s gg igo, 161. " § 162. ' Ibid. 8 I ig4_ 9 gjyg g^g appears by the next page. CHAP. XXXI THE MALLEE COUNTRY 295 Country may be compulsorily repurchased by the Crown.'' The Board of Land and Works is to be deemed the " occupier " of any unleased or otherwise unoccupied mallee lands.^ The Governor may from time to time proclaim any "vermin districts" within the Mallee Country or MaUee Border, and thereupon the owners, lessees, and occupiers of all lands within the district must annually elect five duly qualified persons as a local com- mittee for the destruction of vermin within the district.* Votes can be claimed according to a scale varying with the claimant's possessions in cattle and sheep.* The business of the local committee is to ensure the destruction of vermin within its district, and for that purpose it must recommend to the Governor an annual rate upon each square mile of land within its district as well as upon the sheep and cattle kept thereon.^ This rate, when proclaimed by the Governor, becomes payable by the owners, lessees, and occupiers at the times appointed for payment of the rents of the latter, to the Minister, by whom it is handed over to the local committee, to be by them expended, along with the Government grant, in measures for the destruction of vermin.® In like manner, the local com- mittee may recommend a " fencing rate " to defray the interest of the money expended by the Board of Land and Works in the erection of vermin-proof fences in the district.'' If any owner, lessee, or occupier within the district fails to destroy the vermin on his land, the local committee or, in the event of their failure, the local committees of adjoining districts, may enter and do so, charging him with the cost of the pro- ceedings.* Within a period of three years from the 25 th November 1889,^ the lessee or assignee of. a maUee allotment is entitled to select such part of it as, with his previous selections, wiU not exceed in the whole 320 acres, and the part selected thereupon becomes an " agricultural allotment." But in the event of his exercising his right the selector is liable to have his other holding in a "mallee allotment" reduced to 1000 acres.^" The economic results of this varied programme of land ' Land Act 1890, §§ 166-169. ^ §§ 159, 171. » §§ 186, 187. " § 187. " § 190. « § 191. ' § 192. 8 |§ 194.199. » The passing of the 53 Vie. No. 1040. " Land Act 1890, §§ 203, 204. 296 RESPONSIBLE MINISTERS part iv policy, brought up to the close of the year 1889, may be stated in bare outline. Of the fifty-six mUKon acres of land in Victoria, which all were, originally, vested in the Crown, there remain more than half still undisposed of. Of this area, about eighteen million acres (including eleven millions and a half of " mallee lands ") are occupied for pastoral purposes, seven million acres form reserves for public purposes, and eight millions are still available for settlement. The average price realised for lands sold absolutely by auction during the year 1889 was £5:7:8 an acre, the total area thus disposed of being 13,681 acres. The total amount of money which the Crown has received for the sale of lands since the founding of the colony is £23,811,586, not allowing for interest on deferred payments. For the last ten years the amount of Crown land sold by auction has generally been from 20,000 to 30,000 acres 'per annum, but the amount acquired by selection has substantially fallen off since the coming into operation of the Act of 1884. The number of leases of pastoral lands existing in 1889 was only 94, but a large number of " grazing areas " were temporarily occupied under lease or licence. Substantial progress has been made in the settlement of the " Mallee Country." Amongst the agricultural purposes to which the land is devoted, the growing of wheat is by far the most important, occupying five times as many acres as any other crop. The average produce of wheat in the last eighteen years has been 11 "6 5 bushels to the acre, but, with the exception of one or two very good years, there has been a notable falling off in the crop since 1878.^ Besides his duties in connection with this elaborate scheme of land alienation, the Commissioner of Crown Lands and Survey controls the administration of the public parks, pleasure gardens, and reserves, the management of which, in so far as it is not in the hands of specially appointed trustees or municipal bodies, is by statute vested in the Board of Land and Works.^ He also works the machinery of the Land Tax Act, by which, speaking broadly, every owner of land amounting to 640 acres in area, and being above the value of £2500, pays an annual ' Cf. statistics in Hayter's Year Book of Victoria, 1890, §§ 375-391. 2 Land Act 1890, § 136. CHAP. XXXI MINISTERS OF WORKS, CUSTOMS, ETC 297 land tax of twenty-five shillings per cent upon the capital value of his land.-^ 5. The Commissioner of Public Works, who is generally- charged with the supervision of those functions of the Board of Land and Works which are not included in the duties of the Commissioner of Crown Lands. According to present arrange- ments, these functions include the erection and maintenance of public buildings, the construction and management of extra- municipal ^ roads, and the distribution of the grants to municipal authorities in aid of the construction of municipal roads, the management and completion of the scheme of the Melbourne water supply,' and the construction and maintenance of public sewers,* and bridges.^ 6. The Commissioner of Trade and Customs, who is charged with the duty of collecting the Customs and Excise revenues, and with the supervision of ports, harbours, and navi- gation generally, as well as the control of immigration. 7. The Minister of Public Instruction, whose main function is to supervise the machinery of the elementary educa- tion system provided by the Government, but who also distri- butes the grants made by the Treasury to institutions for the promotion of higher and technical education, such as the University of Melbourne and the various Schools of Mines. The office dates from the year 1873, having been established under the Education Act 1872.* At that date, the community definitely undertook to provide a complete system of primary education for its members, after having hesitated some time between the voluntary and the Government schemes. As the influence of this resolution will probably prove to be one of the most important factors in the future history of the colony, it may be well just to sketch the outline of the scheme. To borrow familiar, though, perhaps, not very accurate ' Land Tax Act 1890, §§ 3 and 4. And Docker v. The. Quem, 5 V. L. E. (L.) 316. 2 Public Works Act 1890, § 19. ' There is also sometimes a separate "Commissioner of Water Supply" for the country districts, where the regular distribution of water is not undertaken by the Government. The powers of the Board of Land and Works, so far as they relate to the Water Supply of Melbourne, have now been transferred, by Order in Council, to the "Melbourne and Metropolitan Board of Works," created by the 54 Vic. No. 1197. « Public Works Act 1890, §§ 69-99. " Now largely subject to the powers of the municipal authorities. 6 36 Vic. No. 447. 298 RESPONSIBLE MINISTERS part iv terms, the public education of Victoria is " free, secular, and compulsory." Instruction in the following branches is absolutely gratuitous — Eeading Geography Writing Drill Arithmetic Health and Temperance Grammar Sewing (for girls) Singing | Drawing V where practicable. Gymnastics ) Parents who desire their children to be taught in other subjects pay fees according to a scale fixed by the Government.^ Instruction is also " secular." No teacher may give any other than secular instruction in a Government school during the normal four hours set apart for compulsory instruction. The buildings may be used for other purposes out of school hours, but attendance on such occasions is purely voluntary.^ And instruction is " compulsory." The parents of aU children between the ages of six and thirteen are bound to cause them to attend a Government school during the normal four hours for forty days in each quarter of the year, unless they can claim exemption on one of the following grounds — Efficient instruction elsewhere.^ Sickness, fear of infection, or other unavoidable cause. Distance of residence from nearest school (two miles up to nine years, two-and-a-half from that age to twelve, and three miles from twelve to thirteen). Education up to the required standard. Moreover, if a child of thirteen ceases to attend school without having been for four quarters in the fourth class, he must, until the age of fifteen, attend some other school for not less than five hours a week, unless specially exempted.* School districts may be proclaimed by the Governor in Council, and thereupon the resident ratepayers must elect Boards of Advice, consisting of not less than five nor more than seven ' Education Act 1890, § 22 and 3d Sched. A part of these voluntary pay- ments goes to the teachers, in addition to their regular stipends (§ 23). ^ § 11. ^ Opportunity for the testing of such instruction is afforded by the half-yearly examinations for children not attending government schools held by the district inspectors. * Education Act 1890, § 13. There are six classes in each school, and the teaching throughout Victoria is on an uniform plan. (Does any one know how the orthodox number of Six classes appeared in Anglo-Saxon school systems ! ) CHAP. XXXI SCHEME OF EDUCATION 299 persons, subject to removal by the Governor in Council. These- Boards of Advice have the following duties — 1. To control (subject to the approval of the Minister) the use of the school buildings out of hours. 2. To report on the condition of the school premises and appliances. 3. To suspend temporarily any teacher for misconduct. 4. To visit and record the state of attendance and their opinion of the management of the schools. 6. To induce parents to send their children regularly, and to report the names of defaulters. 6. To recommend rewards and scholarships for promising scholars.^ The officials and teachers in the Government schools are public officials appointed by the Governor in Council.^ In most respects they are subject to the rules of the permanent civil service, under the Public Service Act, but, as the teachers are in the nature of specialists, their promotion and transfer is regulated by rules specially applicable to them alone. For this purpose, there is a "Committee of Classifiers," consisting of the Inspector-General of the Education Depart- ment, a person (not a public official) appointed from time to time by the Governor in Council, and the headmaster of a Government school with an average attendance of least 400, specially elected by the certificated teachers for a period of three years.* This Committee prepares a roll which contains classifications both of schools and teachers. The. schools are arranged in five classes, according to the average attendance of scholars, and the teachers in five corresponding classes, accord- ing to various qualifications of sex, experience, and attainments. Pupil teachers, sewing mistresses, teachers of night schools, students in training, and instructors in drill, drawing, and gymnastics are also classified by the Committee.* Each class of teachers, except the first, is further subdivided into three sub-classes according to the claims formerly enumerated, with the addition of length of service.^ The classified roll is revised every three years, and may, in the meantime, be supplemented.® An appeal from the classification lies to the Public Service Board.^ Appointments and promotions to teacherships in the Edu- cation Department can only be made upon a request to the 1 Education Act 1890, § 20. = § 5. ' Public Service Act 1890, §§ 65 and 66. « § 73 and ii\ Sohed. » § 76. " §§ 77 and 78. ' ' § 80. 300 RESPONSIBLE MINISTERS part iv Minister by the secretary, and then only upon a certificate of the Public Service Board that such appointments or promotions are required.^ Each appointment is made on probation for one year.^ Every school must be under the charge of a head teacher of the corresponding class in the roll, and in the case of schools having an average attendance of more than fifty scholars, and also of part-time schools, the head teachers must be males.^ Subject to certain exceptions, the qualified candi- date next on the roll or employment register is entitled to claim the vacancy.* Transfers from one school to another in the same class may be refused by the teachers to whom they are offered, unless the secretary of the department and the Inspector-General jointly certify that they are needed in the public interest.^ A teacher may be required by the Minister to reside in the neighbourhood of his school, if the secretary of the Education Department certifies that such residence is desirable in the interests of the school.^ 8. The Minister of Defence, appointed under the powers of the Officials in Parliament Act of 1883,^ upon the rearrange- ment of the Victorian military system in that year.^ By this new scheme the control of the naval and military forces in Victoria is placed in the hands of a Council of Defence, consisting of the Minister and the five chief officers of the different branches of the service, three members forming a quorum.^ The Council itself works under regulations issued by the Governor in Council, but it is its duty to make recom- mendations to the Government with regard to the exercise of its powers,^" and to furnish an annual report upon the condition of the forces.^^ The forces connected with the service of Victoria may be classed into three divisions. a. The "permanent naval arid military forces of Victoria. These are raised and commissioned by the Governor, in pursu- ance of parliamentary authority, and placed under his command. Each member of the forces, before joining, enters into a sworn agreement of service, which may only be annulled in the pre- scribed way.^^ Those engaged as naval troops are subject, both 1 Public Service Act 1890, § 88. ^ § 89. In some cases tlie appointees are required to insure their lives. 3 § 90. M 91. 5 § 96. 6 § 105. 7 47 yic. No. 780. 8 47 Vic. No. 777. " Defences and Discipline Act 1890, §§ 9 and 10. i» § 11. " § 13. '2 § 8. CHAP. XXXI MILITARY AND NAVAL FORCES 301 ashore and afloat, to the enactments and regulations for the time being ia force for the discipline of the Eoyal Navy/ and all the members of the forces are amenable to the regulations for discipline published by the Governor.^ Moreover, in time of actual service, members of the military forces are subject to the provisions of the Imperial " Army Discipline and Eegula- tion Act." ^ Courts-martial may be appointed by the Governor with power, subject to challenge, to fine up to £50, and im- prison with or without hard labour, up to six months,* but no sentence can be acted upon till it has been confirmed by the Governor.^ The commanding ofiicer may fine up to twenty shillings or award solitary confinement up to twenty- four hours for minor offences against discipline.® A sum of £145,000 a year is regularly to be available for the expense of the permanent forces until the 31st December 1891, and any surplus of any year may be carried forward to the next.^ 6. The, Australasian Naval Forces, an Imperial squadron to which the Governments of the various Australasian colonies contribute annually, according to their respective populations, for a period of ten years.^ The agreement under which this arrangement has been made provides that the squadron shall consist of five fast cruisers and two torpedo gunboats, three of the former and one of the latter being always kept in com- mission, and the other three in reserve in Australasian ports ; that none of the vessels shall be employed beyond the limits of the Australasian Station except with the consent of the colonial Governments ; that the first cost shall be paid out of Imperial funds, and the interest on the actual expenditure recouped by the colonial governments to an amount not exceeding £35,000 a year in all. The colonial Governments also contribute towards maintenance a sum not exceeding £91,000 a year. At the termination of the agreement (which can only happen after two years' notice), the vessels remain the property of the Imperial government.^ c. Volunteer Forces, which have existed in Victoria since the 1 Defences and Discipline Act 1890, § 7. ^ § 16. These are to be laid before Parliament within 14 sitting days. 3 § 19. < §§ 20-22. = § 26. « § 35. ' § 56. The accounts of this expenditure are to be laid before Parliament every year (§ 57). = §§ 59, 60. ' Schedule VI. 302 RESPONSIBLE MINISTERS part iv year 1854.'^' As their name implies, they are voluntary associations, whose services have been accepted by the Govern- ment.^ Though to a certain extent under Government regula- tions in the matter of enrolment and discipline,^ they retain large powers of self-government. They may recommend members for promotion to officerships under the rank of captain,* the majority in any corps may make rules for the management of its affairs, which may be legally enforced after approval by the Government,^ the members may individually withdraw from the service in time of peace,® or, on their own application, may be enrolled as a corps among the permanent forces, and placed on a similar footing with regard to discipline and pay.^ Volunteer corps may be called out " in all cases of actual invasion of Victoria, or hostile or predatory attack thereon, or of imminent danger thereto," and they then become subject to the discipline of the permanent forces in time of war,^ are entitled to pay, if demanded, and may be quartered and billeted as regular troops.^ The Governor may also accept the services of cadet corps of volunteers, who do not take the oath of allegiance, and may not be sent on active service.^" 9. The Solicitoe-General and the Minister of Justice, of&ces usually alternative, though occasionally both fiUed at once.^^ The Solicitor-General or the Minister of Justice appears to act in two capacities. In the first he is the deputy of the Attorney-General, as the legal adviser of the Government and legal representative of the Crown ; but inasmuch as the Minister of Justice is not technically a " Law Of&cer," ^^ it would seem that he cannot act as fully in all cases as the Sohcitor-General. In his second capacity the Solicitor-General or the Minister of Justice administers a portion of the legal machinery of the Government, generally the county courts, the courts of insolvency, and the courts of general and petty sessions. 10. The Minister of Eailways, who became necessary upon the establishment of the system of Government railways 1 18 Vic. No. 7, amended by 19 Vic. No. 8, etc. " § 55, 3 g gg. * § 68. 5 Defences and Discipline Act 1890, §§ 70-71. " § 72. ' § 50. 8 § 77. " § 79. 1° § 81. " E.g. in 1890, when Mr. Cuthbert was Minister of Justice and Mr. Deakin Solicitor-General. '^ Acts Interpretation Act 1890, § 5. CHAP. XXXI GOVERNMENT RAILWAYS 303 in the year 1857, and since greatly developed.^ The Minister is the person responsible to Parliament for the working of the railway department, and the expenditure of the funds voted for it, but the actual property in and management of the Government railways are vested in a corporate body of three Eailways Commissioners, appointed under a statute of 1883,^ by the Governor in Council, for a period of seven years. The Commissioners, who consist of a permanent Chairman and two ordinary commissioners, cannot be removed from ofSce except upon Addresses by both Houses in the same session, or of the Assembly in two consecutive sessions, unless they incur one of the following disqualifications — 1. Acceptance of other employment. 2. Insolvency. ■3. Acceptance of personal interest in any contract made by the com- missioners. 4. Absence without leave, incapacity, or resignation.^ The Chairman of the commission may decide upon action against the views of his colleagues, after postponement of the discussion for twenty-four hours, but in such a case he must enter his reasons upon the Minutes and send a signed copy to the Minister.* In the management of the Government railways the Commissioners exercise the powers vested in the Board of Land and Works with regard to other public works.® They must make quarterly traffic returns to the Minister, and pre- pare a full annual report for Parliament.^ They must also, before the second reading in the Assembly of any Eailway Construction Bill, prepare an estimate of the cost and returns of each proposed new line.^ All appointments to the railway service are in their hands, subject to certain Hmits, and they may make regulations with regard to employments and dis- missals.^ They may erect and manage a system of telegraphs, subject to certain claims of the post-office department.^ 1 21 Vio. No. 35, 27 Vio. No. 186 ; Minister of Eailways first appointed 1860. Private railways are perfectly legal, but they are subject to Government inspection (Railways Act 1890, §§ 122-143). 2 47 Vic. No. 767. They have since been reappointed (of. G.G. 1891, Feb. 6, etc.) s Railways Act 1890, §§ 46-50. * § 44. = § 56. « §§ 58, 59. ' § 61. 8 §§ 70 and 92. Eailway employes do not come under the Public Service Act. " §§ 99, 100. By the Eailways Standing Committee Act 1890 a standing com- mittee of both Houses of Parliament has been appointed to report upon proposed railway extension (54 Vic. No. 1177), 304 RESPONSIBLE MINISTERS part iv Besides the Eesponsible Ministers whose functions have been enumerated, others, whose titles will sufficiently explain their duties, are frequently appointed. The most conspicuous examples are — 11. The Postmaster-General, 12. The Commissioner of Water Supply (for the country districts), 13. The Minister of Agriculture, 14. The Minister op Mines (whose functions wUl appear in our account of local government), and 15. The Minister of Health. CHAPTEE XXXII THE POLICE FORCE The police force of Victoria is subject to a special form of government and special regulations which mark it off from the great body of the civil service, from which it is excluded by the provisions of the PubUc Service Act.^ The permanent head of the force is the Chief Commissioner of Police, who, with the acting Commissioner (if any) and all the officers of the force down to the grade of sergeant, is ap- pointed by the Governor in Council.^ -The ordinary members of the force are officially known as " constables," and are appointed and dismissed by the Chief Commissioner, the num- ber to be employed being signified by the Governor in Council.* A member of the force has the powers and duties of a constable by the common law, as well as those specially conferred by statute.* Each constable, other than a Chinee or aboriginal, binds himself by an oath of service, and cannot resign without three months' notice, even though his term of appointment has expired.^ The detailed duties and discipline of the pohce force are prescribed by Eegulations of the Governor in Council, but the following special duties are imposed on every sergeant and constable by statute — 1. Attendance on the justices at general and petty sessions for the districts in which he is stationed. 2. Execution of recognisances and fines levied by the Supreme Court or any court of general or petty sessions, and of all process issued by justices of the peace.^ 1 § 3. ^ Police Kegulation Act 1890, §§ 4-6. 3 § 8. ^ § 9. ' §§ 11-13. " §§ 17 and 18. X 3o6 THE POLICE FORCE part iv Unlike the ordinary members of the civil service, the members of the police force are entitled to superannuation allowances on retirement, as well as to pensions on disablement There is a Police Superannuation Fund, into which a sum of £2000 a year is paid out of the Consolidated Eevenue, and which is supplemented by the fines imposed upon the members ■of the force, as well as those awarded to them on the conviction of offenders, and if necessary by a deduction from their pay. The payment of allowances is regulated by a Superannuation Board, subject to the approval of the Governor in Council.-' With regard to the offences of members of the force, an ■ordinary constable may be punished by fine or dismissal by the Chief Commissioner, a sergeant may be punished by the Commissioner by fine, or recommended for reduction or dis- missal by the Governor in Council, while the misconduct of any superior ofiicer is investigated by a board of three persons specially appointed by the Governor in Council.^ Other members of the force accused of insubordination may also claim to be tried by a specially appointed board.^ A member of the force acting in obedience to a warrant issued by a magistrate or reputed magistrate is not responsible for any irregularity or want of jurisdiction in the warrant or magistrate.* 1 Police Regulation Act 1890, §§ 20-38. ^ g§ 39.4i_ 3 § 42. 4 § 57, CHAPTEE XXXIII OTHER PUBLIC OFFICIALS As the political organs of a comnmnity undertake the per- formance of new functions, they need an increasing staff of functionaries, and the question of patronage becomes increasingly dif&cult. In democratic communities, the matter is even more pressing than in aristocratic societies, for whilst it is found that tendencies to corruption exist equally in both, in the democratic community it is less possible to preserve a cloke of decent silence. Everything is talked about, and there gradually grows up a class of persons who live by the discovery, or pre- tended discovery, of scandals. It may well be doubted whether the action of these self-appointed censors is, in the long run, productive of more good than harm, and whether a cast-iron system of appointment and promotion is calculated to procure the best public service for a community. But it wiU be sufficient for us to examine here the actual system which the circum- stances alluded to have produced in Victoria. The system was introduced by a statute of the year 1883,^ and was remodelled in 1889.^ Practically it includes within its provisions every member of the Government civil service, except the Eesponsible Ministers of the Crown, the judges and higher officials of the courts of law, the officials of the Houses of Parliament and the Eoyal Mint, the members of the police force and the Government railway staff, and a few of the higher Government officials specially appointed under various statutes.^ There are special provisions (before noticed) regarding the appointment of State school teachers, but they are subject to the general provisions of the Public Service Act. 1 47 Vio. No. 773. = 53 Vic. No. 1024. » Public Service Act 1890, § 3. 3o8 OTHER PUBLIC OFFICIALS part iv To carry out the system, there is a Pubhc Service Board consisting of three persons, appointed by the Governor in Council, and removable in the same way as the Eailway Com- missioners.'"- Two members of the Board constitute a quorum, and each member receives a salary of £1500 a year, per- manently appropriated for the purpose.^ The appointments have hitherto been made for indefinite periods.^ The principal duties of the Board are as follow — 1. To investigate and report upon the efficiency, economy, and general working of any public department when required to do so by the Minister in charge of it.* 2. To make an annual report to the Governor in Council on the condition and efficiency of the public service.^ 3. To increase or diminish, with the consent of the Governor in Council, the number of persons employed in any department, or to alter their distribution.^ 4. To keep a record of the services of all persons (with certain exceptions) employed in the Pubhc Service, and publish it annually.'^ 5. To certify, upon the happening of any vacancy which it is deemed desirable to fill up, the necessity for a new appoint- ment and the name of the person entitled to such appoint- ment.^ 6. To keep a register of candidates for temporary employ- ment under Government, and to select from such candidates persons best qualified to perform any work required.^ 7. To make regulations for the following purposes — a. The examination of candidates for admission to the service and for certain offices.^" y8. The employment of women in the Public Service. ^^ y. The fixing of the scale of remuneration for manual labour.'^ 8. The compulsory life or annuity insurance of members of the Civil Service.15 e. The securing of specially selected and suitable ofiicials for the Public Library, Museums, National Gallery, and for penal establishments, reformatory schools, and lunatic asylums, i* {. The admission of certain supernumeraries to the service.^' 1 Public Service Act 1890, § 5. ^ §§ g and 9. ^ cf. G. G., 1st Feb. 1884, etc. * Public Service Act 1890, § 11. « § 13. s § 27. ' § 28. 8 §§ 32 and 87. "§38. " §§40 and 59 (II.) "§42. " § 59 (VIII.) " IMd. (IX.) " § 60. 15 § 61. CHAP, xxxm THE PUBLIC SERVICE BOARD 309 17. The duties of officers in the Public Service and the discipline to be observed by them.'^ Q. The procuring and inspection of stores for the government service.^ 8. To hear appeals from the Committee of Classifiers for State school appointments.^ 9. To investigate charges laid by the permanent head of a department against an official of the department, and referred by the Minister to the Board.* 10. To punish offences thus proved, by reduction of rank, forfeiture of increment, or dismissal from the service.^ 11. To authorise payment for overtime.® The Public Service (excluding the officials before alluded to) is divided into four divisions, known respectively as " first," "professional," "clerical," and "non- clerical."^ The First Division contains the Clerk of the Executive Council, and eleven permanent heads of public departments. Its members, except those whose salaries are provided by special statute, are paid the amounts fixed by the Annual Appropriation Act.* The Professional Division comprises those offices for the discharge of which professional skill is required, as well as the inspectors and teachers in the education department. Its members are paid according to scale fixed by regulation and provided by the Annual Appropriation Act.* The Clerical Division, which, as its name implies, includes those officials whose duties consist of clerical labour requiring no special professional education, is subdivided into five classes, of which the first, second, and third are known as the " higher " classes, and the fourth and fifth as the " lower." The members of each class receive the minimum and maximum salaries and the annual increments provided by the Public Service Act.'"' The Non-Clerical Division comprises, practically, the officials of the service engaged in manual labour, and their wages are fixed by Eegulations of the Public Service Board." No new appointment in the service can be made, except upon a request from the permanent head of a department to the Minister, accompanied by a certificate from the Public 1 Public Service Act, § 123. = § 139. » § go. ^ § 124 (II.) 6 Bid. " § 141. ' § 15. 8 §§ 16 and 22. " § 23. But the maximum and minimum salaries of the teachers are fixed by the Schedules to the Public Service Act. >» §§ 19, 20, 23. "§59 (VIII.) 3IO OTHER PUBLIC OFFICIALS part iv Service Board, stating that the appointment is necessary, and naming the person entitled.^ In the case of appointments to the Pirst or Professional Divisions, the person thus named must, if possible, be already a member of the service.^ In the case of new appointments to the Clerical Division, they must be made, in the first instance, to the fifth class, from applicants between the ages of sixteen and thirty, who have passed the required examination, which may be competitive if necessary.* Promotions to the First or Professional Divisions, or to the higher classes of the Clerical Division, may be made either from the officials next in rank in the department in which the vacancy occurs, or from the next rank in any other department, according to the recommendation of the Public Service Board.* But any official thus passing from the lower to the higher classes of the Clerical Division must have passed an examina- tion severer than that required for the lower, unless he be an university graduate.* Promotions to the fourth class of the Clerical Division go by seniority and merit combined.® Appointments to the Non-Clerical Division are also decided by competitive examination, except where the Board reports that the system of competitive examination could not be advantageously applied, and transfers from the Non-Clerical Division to the lowest class of the Clerical Division may be made on the recommendation of the Board, in the case of any official who has served for two years in the Non- Clerical Division.' ' In the case of examinations the Board may reduce the number of candidates by lot, to a number not less than three times the number of vacancies.^ Candidates for the Non- Clerical Division must be between the ages of sixteen and forty, except in special cases.^ Every appointment to the public service is at first made upon probation only, for a period of six months,^" and cannot be confirmed until the probationer has insured his life by a 1 Public Service Act 1890, § 32. 2 § 34. This rule does not apply to teachers in the Education Department. ' §§ 35, 63, 56. There is a special examination for candidates for the office of police magistrates who are not practising lawyers (§ 40). M 47. = §§ 63, 54. 6 § 48. ■> §§ 68 and 62. » § 59 (III.) » § 36. '" § 32. In the case of appointments from outside the public service to a post in the professional division, the probationary term is for a period of three months only (§ 33). CHAP. XXXIII THE PUBLIC SERVICE 31 r non-assignable poKcy, in accordance with the Eegulations of the Public Service Board.^ An official can be called upon to retire upon attaining the age of sixty, and at sixty-five he retires as of course unless he is called upon by the Governor in Council to continue, and is willing to comply with the demand.^ No ordinary official appointed since the passing of the Pensions. Abolition Act of 1881^ may receive any pension or allowance on retirement,* and no official under the Public Service Act (including members of the Public Service Board) may engage in any trade or calling, other than. his official duties, either for himself or for another person, without the consent of the Governor in Council.^ On the other hand, no public official may be dismissed or punished except upon a reduction of the staff of a department made upon the recommendation of the Public Service Board, or for an offence duly reported to the Minister, who may lay the matter before the Board for investigation. The Board may, if it think fit, obtain the appointment of a special tribunal of three persons to investigate the charge, or it may do so itself If the charge is established, the Board may reduce or fine the offender, deprive him of increment or leave of absence, or, with the consent of the Governor in Council, dismiss him from the service.® An official thus charged may be represented by counsel, and may adduce evidence in disproof of the charge.^ A conviction for felony or infamous offence or insolvency forfeits the office, but an insolvent official may be reinstated, if he prove to the satisfaction of the Board that his insolvency was not due to fraud, extravagance, or dishonourable conduct.* The Minister in charge of a department may grant leave of absence to an official for not more than three weeks in any year, and after twenty years' service an official may be granted a twelve months' furlough on the recommendation of the Board.'' In addition to these allowances, there are eight statutory holidays in the year, and the Governor in Council may proclaim others.^" Finally, a register is kept of applicants for temporary employment, and in the event of urgent need by a Minister • Public Service Act 1890, § 37. = §§ 143-145. ^ 45 yic. No. 710. * Public Service Act 1890, § 106. » § 116. « §§ 121, 124. 7 § 125. 8 § 126. 3 §§ 133, 134. i» § 135. 312 OTHER PUBLIC OFFICIALS part iv for temporary assistance in his department, the Board, on the application of the permanent head, selects from the register suitable applicants, who may be employed for any period not exceeding three months, renewable twice, but not oftener. After the termination of an employment, the candidate cannot be employed again by the Government in a temporary capacity for a period of six months, except in special circumstances.^ 1 Public Service Act 1890, § 38. CHAPTEE XXXIV THE LEGAL POSITION OF THE EXECUTIVE IN VICTORIA The exact position of the executive officials, under a constitu- tion which is more or less dependent upon tradition for its authority, is always difficult to define. In Victoria this position is made additionally complex by the fact that the constitution, besides being largely traditionary, is involved in somewhat vague relationship with another constitution, that of the British Empire. The English principles on the subject were, however, laid down in fairly clear terms long before the founding of Victoria, and these principles, therefore, make an excellent foundation for an examination of the subject. They may be stated in the form of five canons. 1. The Crown cannot be made personally responsible by any of the ordinary legal methods, for any act done by itself or its subordinates.-' A Petition of Eight may be presented to Her Majesty, and relief is usually granted upon grounds similar to those which would entitle the suppliant to judg- ment against a fellow-subject. But no claim, even though judicially declared valid, can be enforced, if the Crown does not choose to recognise it. A successful attempt to enforce such a claim would amount to a revolution. An unsuccessful one would probably be held to be treason. 2. Neither the Crown itself nor any of its officials can, as against a subject,^ legally justify any act for which there is not > ToKn V. The Queen, 16 C. B., N. S. 310. 2 The question of aliens is more doubtful. 314 LEGAL POSITION OF THE EXECUTIVE part iv positive legal authority/ by the plea of state necessity.^ In the very improbable case of the Crown personally offending against this rule, there would, of course, be no legal remedy. In the event of its breach by an official, the latter can be pro- ceeded against in accordance with the next canon. 3. A Crown official, of however exalted a position, can be made personally responsible, for any illegal act committed by him against a fellow subject, by ordinary process of law.^ 4. A subordinate cannot plead the illegal command of his superior as an excuse for his illegal act, except in very rare cases, specially excepted by statute.* 5. The Crown may enforce its legal claims by a special machinery not open to subjects.^ We may assume, I think, that these principles apply in Victoria. Some of them have been expressly adopted by statute,^ the others form part of the unwritten law. The difficulty is not in the principles, but in their application. It must be remembered' that the position of the Crown with regard to the colonies retained its prerogative character longer than the position of the Crown in English affairs. Until the close of the last century, the real government of the colonies was vested in a committee of the Privy Council. Until the introduction of the Swan Eiver Settlement BUI of 1829, Parliament seems to have held aloof from Australian matters. But it will readily be admitted that long before the estab- lishment of the present form of government in Victoria, the Colonial Office had become as thoroughly parliamentary as any other department of state. It becomes therefore important to look at the present state of the question. The chief point to bear constantly in mind is, that the legislative and executive authorities of the colony are nominally distinct in their origin, the link between them being purely ' By this statement it is not, of course, meant to assert that for every exercise of power by the executive there must be statutory or even judicial authority. But the defendant must prove the existence of the prerogative on which he relies. 2 Wilkes V. Lord Halifax, 19 St. Tr. (Howell) 1406. 3 Moatijth V. Fahrigas, 20 St. Tr. 81, and Hill v. Bigge, 3 Moo. P. 0. C, 465, followed recently in Musgrave v. Pulido, L. R. 5, App. Ca. 109. * EntiA V. Oarrington, 19 St. Tr. 1030. * E.g. by arrest on mesne process, information, etc. * E.g. Crown Remedies and Liability Act 1890. CHAP. XXXIV LEGAL POSITION OF THE EXECUTIVE 315 traditional. The legislative authorities were established by- statute in 1855, and the prime and avowed object of the Con- stitution Act is to create a legislature, four-fifths of its pro- visions being occupied with that subject. The executive, on the other hand, though it is incidentally alluded to in the Constitution Act, is mainly the creation of the Crown prerogative. Such powers with regard to the colonies as have not been engrossed by Parliament, remain with the Crown ; and just as out of its authority the Imperial Parliament created the legislature of Victoria, so out of its authority the Crown from time to time creates the executive of Victoria. This process of creation is, briefly, performed by the com- missioning of a Governor, with power to appoint subordinates. The Crown does not by any means delegate the whole of its prerogatives, even as regards the colony, to the Governor ; it gives him certain general and certain special powers, which have been previously discussed. One of these special powers is, as we have said, the power to appoint the subordinate members of the executive. But this power is qualified by statutory enactment, to which the Crown has assented, which provides that, with certain exceptions previously noticed, all appointments shall be made by the Governor with the advice of the Executive Council of the colony.-' Moreover, as we have also seen, the advice which the members of the Executive Council may give in such cases is sharply limited by the Public Service Act, to which, as inhabitants of the colony, they are bound to conform. It would appear then to be an undeniable conclusion for these facts — 1. That the members of the executive are entitled and bound to do everything which they are authorised or ordered to do by the legislature of the colony acting within its proper powers. 2. That the executive is further entitled to do anything which reasonably falls within the powers conferred upon the Governor by his commission. Whether a subordinate official is, as between him and his superiors, entitled to exercise any such power, is a question of discipline, which can 1 Constitution Act, § 37. 3i6 LEGAL POSITION OF THE EXECUTIVE partiv only be settled by the disavowal or confirmation of the superior. 3. That any act done by any member of the executive, from the Governor downwards, not warranted by some rule of law, written or unwritten, is, however morally justifiable or even urgently necessary, an act for the consequences of which he is, unless indemnified by the legislature, personally liable. It is true that the executive acts in the name of the Crown, but as all its members, with the exception of the Governor himself and the Lieutenant-Governor, are appointed by the Governor, it is unreasonable to suppose that they can exercise greater powers by virtue of the prerogative than have been conferred on the Governor himself These principles are generally admitted. But there is a difficulty in the application of them. And this difficulty arises from the simple fact that much of British constitutional law is evidenced solely by tradition and precedent, which evidence is hard to interpret. In the case of a statute, the matter is simple. You must take the words of the statute and nothing more. The question is always what the law- maker did, not what he intended to do. And therefore it is not permissible to take into account any of the proceedings which led up to the passing of the statute. Precisely the same question arises in the case of unwritten law, but it cannot be settled in the same way. In every dis- puted point the question is. What has been done on similar occasions in the past ? The men who made the precedent made the law, but it does not follow that their successors may make a new law. That is the province of the legislator. 'So doubt there is a great temptation, on certain occasions, to strain the power of the executive. These occasions occur especially in matters in which the wish of the executive is known to be in accord with the feelings of the majority of the community. But the community which allows such a strain- ing of executive authority is really preparing a rod for its own back. The power which can be strained for the people may some day be strained against the people, and it will then appeal to precedent for its support. When a really overwhelming necessity for unauthorised action occurs, the illegality can be cured by a biU of indemnity. But it has been the steadfast CHAP, xxxiv "ACT OF STATE" 317 policy of Anglo-Saxon communities, for upwards of a century, to be very sparing in grants of indemnity, and to insist rigidly upon the observance of the law by officials and private citizens alike. The plea of " act of state " can now in England practi- cally only be used against an alien suitor, and even as against aliens the plea is regarded with just suspicion.'' ^ The author had hoped, before going to press, to be able to refer to the decision in the case of Ah Toy v. Musgrove, recently decided by the Judicial Committee of the Privy Council. As, however, the official report of the decision has not yet appeared, he must content himself with saying, that the cabled messages respecting it seem to confirm the view, expressed above, that the plea of ' ' act of state " may in some cases be used against aliens. The more important point, with respect to the general prerogative powers of Colonial Ministers, was not, apparently, decided. 3. JUDICIARY CHAPTER XXXV THE SUPREME COUET We have already discussed somewhat fully the constitution and powers of the Supreme Court, established by the Act of 1852,^ and as these constitution and powers remain substan- tially unaltered by more recent legislation, it will be possible to deal with them briefly in this place. The number of the judges of the Supreme Court has been increased to six (including the Chief-Justice), but the additional salaries thus necessitated have not been included in the Civil List, which is therefore inadequate to provide more than a part of the expenses of the staff. The balance is guaranteed by permanent appropriation under a colonial statute.^ By a liberal construction of the 37th section of the Constitution Act, the judges of the Supreme Court are appointed by the Governor in Council, but their commissions are, by the 38th section, to run during good behaviour. As a question which is of no practical importance, but of some little theoretical interest, it appears that there are three ways by which a judge of the Supreme Court can be temporarily or permanently removed from office — 1. By Her Majesty, for misbehaviour. This power is implied in the grant of the commission, but under present circumstances it could hardly be exercised without raising great constitutional diificulties. 2. By the Governor, upon the address of both Houses of the Legis- lature (apparently without reason assigned).^ 1 Ante, pp. 17i-176. = Supreme Court Act 1890, § 15. = Constitution Act, § 38. CHAP. XXXV PHASES OF THE SUPREME COURT 319 3. By the Governor in Council, as a temporary measure, until Her Majesty's pleasure be known, upon the wilful absence without reasonable cause, incapacity, or neglect on the part of the judge. (During such temporary suspension a locum tenens may be appointed by the Governor in Council).^ Moreover, a judge of the Supreme Court, ipso facto, vacates his office if he accepts any other office or place of profit in Victoria, unless granted to him under the royal sign-manual, or unless it be the office of judge of the Vice- Admiralty Court." But a demise of the Crown does not affect his commission.^ The jurisdiction of the court remains as fixed by the Act of 1852, but the manner of its exercise has been modified in some important particulars. Practically the court now sits in the following capacities — 1. As the "Full Court," which must consist of at least three judges.* This court hears all appellate business, and business in the nature of appeals, as well as all trials at bar, and certain matters specially allotted to it.^ It sits without a jury. The decision of the court is in accordance with the opinion of the majority, and, if the court is equally divided, the opinion of the Chief-Justice, or, if he be not present, of the senior judge present, decides the matter.^ 2. As an Ordinary Court of First Instance, when it may be represented by a single judge in all cases, except those in which two or more judges are specially required by statute.' In this capacity the Supreme Court sits, not only in Mel- bourne, but in eighteen other places specified by statute, and distributed amongst the six baihwicks which now replace the old circuit districts. Strictly speaking, there are now no such things as " Assizes," with specially constituted Commissioners, but the judges of the Supreme Court hold sittings of the court in the various centres, on days appointed by the Governor in Council.* For the purposes of sheriff's business, the colony is divided into six bailiwicks, each with its sheriff,* but the central character of the jurisdiction of the Supreme Court is shown by the fact that all civil actions, except those for injury to im- 1 Supreme Court Act 1890, §§ 13 and 14. 2 § 16. = Constitution Act, § 38. * Supreme Court Act, 1890, § 3, and see, e.g., the Marriage Act 1890, §§ 3, 102, 124, etc. ° § 36. « §§ 38, 39. ' § 37. 8 §§ 45, 54, 55. " § 239. 320 THE SUPREME COURT part iv movables, or in cases specially provided for by statute/ are transitory, i.e. non-local in their character.^ 3. As a " Council of Judges," which must assemble at least once in every year on the summons of the Chief-Justice, and may be summoned at any time to an extraordinary meeting. The Council considers the operation of the Supreme Court Act ^ and the Eules of Court for the time beiag in force, and the working of the system of judicial machinery, and reports annually as to amendments which it deems advisable.* 4. As a Court for the making of rules of procedure. The authority of the Supreme Court in this, its legislative capacity, has been previously explained.^ Ordinary litigious procedure before the court is of two kinds, civil and criminal. Civil procedure, between subjects, is commenced by a writ of summons and conducted through pleading and trial to judgment and execution. A defendant may be arrested and held to bail on mesne process, if the plaintiff satisfies the court that there is reason to believe that he is about to withdraw from the jurisdiction, and that such withdrawal will tend to defeat the action.® After final judg- ment, a party ordered to pay money may be committed to prison for a term not exceeding six months, if, in the opinion of a judge, he has contracted the liability fraudulently or reck- lessly, or has neglected to satisfy the judgment though able to do so, and is about to leave the colony without payment, or to change his place of abode for the purpose of avoiding payment.^ In the criminal business of the Supreme Court, proceedings may commence by indictment, presentment, information, or (where a coroner has jurisdiction) by inquest.^ But treason and misprisions of treason can be prosecuted by indictment ' E.g. Marriage Act 1890, § 103. ^ Supreme Court Act 1890, § 41. The same rule applies also in many cases to criminal prosecutions (Crimes Act 1890, §§ 392-399). ^ Sic in Supreme Court Act 1890, § 33, but ? whether the consolidated statute fairly represents the former law. ^ § 33. ^ §§ 23 to 29. In addition to these functions, the members of the court sit in chambers to dispose of business of an administrative or routine character. « Supreme Court Act 1890, §§ 110, 111. ' Imprisonment of Fraudulent Debtors Act 1890, §§ 3-13. Similar provisions obtain as to the judgments of County Courts {iMd. §§ 14-21). The limit of im- prisonment is here four months. 8 Crimes Act 1890, §§ 386, 390. These rules do not, of course, apply to offences punishable by summary jurisdiction. CHAP. XXXV CRIMINAL PROSECUTIONS 321 only.^ Indictment by a grand jury can, apparently, only be preferred upon the application of a law officer, except the alleged offender be a corporate body, or except it be sworn that there has been a miscarriage of justice.^ A presentment is an accusation by a law officer or a Crown Prosecutor in his name, and may be preferred either to the Supreme Court or to General Sessions.^ This is the usual method of bringing a prisoner to trial. An information is an accusation filed by the Attorney-General, or with his permission.* An inquest is the formal inquiry held by a coroner's jury in the case of sudden or suspicious death, or a destructive fire.® If a coroner's jury returns a verdict against a person, the coroner may commit him to custody, or, in cases of manslaughter, or arson,® may hold him to bail, and a coroner's commitment or bail after verdict is equivalent to that of a justice.'^ No accused person may be charged any court fee in the conduct of his case.^ Upon a plea of " not guilty " he is put upon his trial before a jury, and is entitled to be defended by counsel.' Moreover, it is the practice of the court to allow a prisoner, after a verdict of guilty has been pronounced, to make a personal statement in explanation or mitigation of his crime. But, after conviction for felony, the prisoner is civiliter mortuus, and can make no disposition of his property,^" which vests in a curator appointed by the Governor in Council," who, after payment of the costs of the prosecution, the convict's debts, and compensation to persons who have suifered by the criminal acts of the convict, may make an allowance for the support of the latter's wife and family, holding the balance for him upon his release.''^ No conviction or attainder for treason or felony now works any forfeiture or escheat.^^ 1 Crimes Act 1890, § 386. 2 § 389. ' § 388. ^ § 390. « Coroners Act 1890, § 4. 8 § 12. ' § 15. 8 Crimes Act 1890, § 446. » § 447. '» § 550. " § 552. i" §§ 555-560. ^^ § 544. CHAPTEE XXXVI OTHER CENTRAL COURTS Two other courts having central, though somewhat special jurisdictions, require a word of notice. These are the Court of Insolvency, and the Vice- Admiralty Court. The former is a court of record, having jurisdiction in and for Victoria. Within its proper scope it has the powers of the Supreme Court, and its judges sitting in chambers have the powers of judges of the Supreme Court acting in a simihar capacity.^ It has original jurisdiction in all matters of insolv- ency, except where expressly prohibited by statute. The Governor in Council is entitled to appoint " a judge " of the Court of Insolvency, and all judges of county courts in Victoria are ex-qfficio judges of the court, subject however to the local limits of jurisdiction imposed upon them by the assignment of special districts.^ So that the Court of Insolv- ency would appear to be a central court with local branches. An appeal from any order of the court lies to the Supreme Court.' Proceedings are commenced by the presentation of a petition to the court, either voluntarily, by the insolvent himself or his representative, or, as a hostile step, by creditors upon the happening of certain events.* In the voluntary cases, the court, upon proof of the facts, makes an order vesting the estate of the petitioner in one of the of&cial assignees of the court.^ In contentious cases, the court makes a provisional order, or order nisi, contingent upon the alleged insolvent not showing cause within a certain time, and, in the interval, the 1 Insolvency Act 1890, § 5. 2 §§ 7 and 8. 3 § 11. M§ 34 and 37. ^ g§ 34 ^nd 35. CHAP. XXXVI VICE-ADMIRALTY COURT 323 court may place the estate under temporary sequestration.^ When the order is made absolute, the estate, as in the volun- tary cases, vests temporarily in an of&cial of the court,^ but the creditors are entitled to appoint a trustee and a committee of inspection, and upon confirmation of the appointment by the court, the property passes to the trustee.^ The insolvent is bound to give up all his property except that which he holds as trustee, and the tools of his trade and necessary apparel and bedding of himself and family to an amount not exceeding £20.*' The trustee or assignee realises the estate and distri- butes it amongst the creditors, having for this purpose large disciplinary powers over the insolvent. If the latter compUes with the provisions of the law, and has not in the opinion of the court been guilty of causing his own insolvency by fraud or negligence, he may be granted his certificate of discharge, which will free him from all claims provable in his insolvency.^ Instead of adopting the process of the court, the creditors may accept a proposal for liquidation by arrangement, in which the estate is realised privately by the creditor's trustee, or they may accept at once a payment of a composition without realising the estate or divesting the insolvent of it.® The Vice- Admiralty Court is an Imperial tribunal created by a statute of the year 1863,^ which provides that upon any vacancy of the office of judge of a Vice-Admiralty Court in a British Possession becoming vacant, the Chief-Justice, or Principal Judicial Officer of such Possession, shall esc officio occupy it, with power to appoint, with the approval of the Governor, a registrar or marshal.* Before the passing of this statute it was usual to appoint a vice-admiralty judge for each colony by letters-patent under the seal of the High Court of Admiralty, and this power is still reserved by the statute.^ By a later Act, the judge is empowered to appoint a deputy judge or judges, with deputy registrars and marshals, subject to the disallowance of the Admiralty, and the deputy judges may sit either with or apart from the judge, or in the same or other places, according to the discretion of the judge.-"* ' Insolvency Act, §39. This power is also given to a judge of the Supreme Court, and, as a matter of fact, contentious business of this kind is usually dis- posed of by the Supreme Court. 2 § 59. 3 § 61. * § 70. " §§ 138-141. « §§ 153-155. 7 26 & 27 Vic. c. 24. « 26 & 27 Vic. c. 24, §§ 4 and 5. » § 7. '» 30 & 31 Vic. c. 45, §§ 5-13. 324 OTHER CENTRAL COURTS part iv The Court of Vice- Admiralty has jurisdiction in all claims for seaman's and master's wages, for services rendered to a ship, and for damage done by a ship, as well as for claims arising out of liens and mortgages on a ship. It also takes cognisance of all breaches of the Eegulations of the Eoyal Navy, and of all matters arising out of droits of Admiralty/ As a general rule it is immaterial that the cause of action has arisen beyond the limits of the possession in which the court is established.^ The judge and ofScials of the Vice-Admiralty Court are paid by fees from time to time fixed by the Admiralty, and an appeal lies from a decision of the Vice-Admiralty Court to the Privy Council.^ But no appeal can be brought after the expiration of six months from the decision complained of, nor can it be brought at all from any merely interlocutory order, except with the permission of the judge.* \Note. — The reader is warned that the position of the Vice-Admiralty Court may at any moment he changed by the application to the colony of the Imperial statute 53 & 64 Vic. o. 27. But the statute expressly provides that its terms shall not extend to Victoria until they have been made specially applicable by Order in Council, and it is believed that no steps to obtain this Order have yet been taken.] 1 26 & 27 Vic. §§ 10 and 11. 2 § 13. s § 22. ^ 26 & 27 Vic. c. 24, § 22. B. LOCAL GOVERNMENT 1. LEGISLATURE CHAPTER XXXVII MUNICIPAL COUNCILS In the case of a community, such as England, which has been gradually formed by the coalescence of a number of formerly separate units, it is exceedingly difficult to give any coherent account of the state of local government. Some of the local organs date back to a time far older than the central government itself. Others have been gradually dovetailed into them in the course of centuries, till the result is a bewildering mosaic without unity or method. Such was, in fact, the case in England, until the statutes of the present century^ made some attempt to reduce the chaos to order. Parishes, hundreds, municipahties, highway districts, petty sessional divisions, poor law unions, electoral districts, health districts, ridings, and other units of government lay huddled together in confusion, overlapping and rivalling one another. Happily in the case of Victoria the materials are far simpler. In the true sense of the term, there never has been any local government in Victoria. That is, there has never been any local unit evolved spontaneously and independently of the central ■ power. Every local authority is a creation either of the Imperial or the colonial legislature, and is a sub- ordinate body deriving its existence from a higher source. This fact has, naturally, produced a palpable unity in the system. Powers of government conferred upon local bodies 1 E.g. the 5 & 6 Will. IV. o. 76 and 51 & 52 Vic. c. 41. 326 MUNICIPAL COUNCILS part iv have from time to time been codified and arranged with a view to their working as a whole. Care has been taken to keep the hand of the central authority over all. Putting aside for the present the judiciary aspect of local government, we may say that there are, practically speaking, two units of local administration, the municipality and the mining district. Others doubtless exist, and may in the future rise into great importance. The needs of irrigation and water supply, and the efforts made to satisfy them, may, in Victoria as in India, give birth to a widespreading system of local administration. At present the system is limited in its opera- tion. Land districts also there are, but these tend to disappear as the Crown lands are disposed of, and the influence of the municipalities extends. "Vermin Districts," with powers of self-government, exist (as we have seen) in the Mallee Country, but their scope is limited. Counties and parishes are mere geographical expressions. Of the two units which we have chosen for discussion, there can be no doubt that the municipality is infinitely the more important. Its scope is now almost universal, its powers are constantly being extended, while the scope and influence of the mining district tend to contract. "We will, therefore, deal with municipal government first. It will be remembered that we have brought our sketch of the developement of municipal government up to the year 1855.-^ In that year there existed a general system of local government in the urban districts, framed under the " Act for the establishment of Municipal Corporations."^ This statute was slightly altered by two enactments ^ passed in the years 1856 and 1860 respectively, and from the latter we learn that at the time of its appearance fifty-six municipal districts had been created under the general Act. Shortly afterwards the "Municipal Corporations Act 1863"* recast the scheme, by constituting the existing dis- tricts "original boroughs," and providing for the creation of new "boroughs," thus introducing that distinction of name between urban and rural municipality which has since been 1 Ante, pp. 168-173. 2 js Vic. No. 15. ' 19 Vic. No. 16 (excluding women from the municipal franchise), and 24 Vic. No. 114. * 27 Vic. No. 184. CHAP, xxxvii HISTORY OF LOCAL GOVERNMENT 327 always retained. By this statute power was given to the Governor in Council to divide any borough, on its own petition, into " wards," ^ and largely increased jurisdiction in such matters, for instance, as markets, slaughter-houses, baths, and refreshment licences, was conferred on the municipal authori- ties.^ Apparently the progress of developement under this statute was not very rapid, for we learn from the next enactment on the subject, the "Boroughs Statute" of 1869,^ that only four new boroughs had been created under it. This new statute made certain alterations in the number of councillors, and re- arranged the franchise. It also conferred the title of " Mayor " upon , the chief magistrate of the borough. This enactment brings the history of urban municipalities down to the point at which they were united with the rural authorities in an uni- form system. "We have seen * that, after repeated failures, local govern- ment in the rural districts had in 1855 got so far as the authorisation of voluntary " districts " charged with the making and maintenance of parish and cross roads and .bridges, and working in subordination to a Central Eoad Board in Mel- bourne. We have seen also that the powers of the Central Eoad Board had been transferred to the Board of Land and Works in the year 1860.^ But the general policy of developement was continued by an important statute passed in the year 1863,^ which, while repealing the Act of 1853, continued the existing Eoad Dis- tricts, and provided for the creation of new ones, under the corporate title of "District Board and Eatepayers." Each district was to be governed by a board, elected by ratepaying occupiers to the extent of £10 annual value. The districts had to make and maintain local roads and bridges, and to maintain such parts of the main roads as passed through their jurisdiction. They might also be called upon to construct main roads at the expense of the central government. To enable them to carry out these duties, they were empowered to pass by-laws, levy rates and tolls, and take land and materials upon payment of compensation. 1 27 Vic. No. 184, § 18. J § 73, etc. ' 33 Yic. No. 359. " AiiU, p. 171. ^ By the 23 Vic. No. 96. « 27 Vie. No. 176. 328 MUNICIPAL COUNCILS part iv By a most important part of the Act now under review, the Governor in Council was empowered to proclaim as a " shire " any Eoad District having an area of 100 square miles, and having paid a sum of £1000 under its last general rate. Such shire, when constituted, was to be governed by an elective council, with a president, and to be endowed with largely extended powers and duties, such as the regulation of pounds, slaughter-houses, and places of amusement, and the manage- ment of commons.^ An important section^ empowered the governor in council to adjust the boundaries of shires and dis- tricts to those of electoral districts.^ It appears by a later statute that no less than 106 shires or road districts had been proclaimed under the various enactments we have enumerated, before the close of the year 1869.* This later statute, the "Shires Statute" of 1869, provided for the gradual extension of the shire system throughout the rural districts of Victoria, by authorising the proclamation as a shire of any area, not comprised within the limits of a borough, containing rateable property capable of producing a sum, of £10.0 upon a rate of one shilling in the pound, when- ever an unopposed petition of fifty inhabitant ratepayers should desire it. The shires were to be incorporated as " the Presi- dent, Councillors, and Eatepayers,'' and to be capable of sub- division into ridings, corresponding with the wards of a borough, and having the members of the Council equally apportioned amongst them. There was a provision for regular subsidies from the central government to each shire, during the first five years of its existence, in the proportion of twice the amount of rates locally levied on a given basis.^ To the duties of the councils were added the control of the markets, the estabhsh- ment of asylums, and others.® Finally, an enactment of the succeeding year '' empowered the Governor, without waiting for a petition, to proclaim any Eoad District, of whatever area, whose rateable property should at the last general rate have stood at a net annual value of £12,000. ^ 27 Vic. No. 176, §§ 279-329. Elaborate provision for commons had been made by the 25 Vie. No. 145, §§ 63-78. = No. 284. ' Apparently there is now no identity between the two (cf. Local Government Act 1890, Sched. 2, and Constitution Act Amendment Act 1890, Sched. 17). " 33 Vic. No. 358 (Sched. 1). « 33 Vic. No. 358, § 266. « ITM. §§ 339-367. ' 34 Vic. No. 387. CHAP. XXXVII THE ACT OF 1874 329 This brings the history of municipal government down to the time of the great consolidating "Local Government Act 1874,"^ which put rural and urban municipalities nearly on the same footing. As this statute, though frequently amended, is still the basis of the existing law, we may proceed to take an analytical survey of the present system. Nearly the whole of Victoria is now covered by muni- cipalities, and of municipalities there are practically two examples, boroughs and shires. There are at present 57 boroughs and 132 shires.^ Any borough having a gross revenue of not less than £10,000 may be proclaimed a " town," and any borough having a gross revenue of not less than £20,000 a" city." ^ But towns and cities are by con- stitution " boroughs," * and the distinction between them is mainly titular. The city of Melbourne and the town of Geelong are still, for the most part, governed by their special Acts, and do not, therefore, come within the operation of the general rules affecting municipalities.^ The old " counties " and " pastoral districts " have no meaning so far as local government is concerned. A borough, then, is an area so proclaimed, containing not more than 9 square miles, and having no point in it distant more than 6 miles from any other point, and containing at the time of proclamation a population of inhabitant householders not less than 300.^ A shire is an area so proclaimed, con- taining, at the time of proclamation, rateable property capable of yielding, upon a rate not exceeding one shilling in the pound on the annual value thereof, a sum of £500.' The inhabitants of each borough and shire constitute a corporation by law, and are known as a " municipality." * The official title of the corporation of a borough or town is " Mayor, Coun- cillors, and Burgesses," of that of a city, "Mayor, Councillors, and Citizens," of that of a shire, "President, Councillors, and Eatepayers." ^ 1 38 Vic. No. 506. '^ Local Government Act 1890, Sched. 2. ^ j^^^ § 14 (xi.-xii.) * Ibid. % .54. "Cities" and "towns" have increased borrowing powers (cf. ■post). ' Ibid. § 5. ^ Local Government Act 1890, § 14 (ii.) Apparently a borough whose in- habitant householders fall below the number of 300 cannot be dissolved on that account. ' Ihid. § 14 (i.) « Xbid. § 4. » j-jj^^. § 9. 330 MUNICIPAL COUNCILS part iv The governing body of every municipality is a " Council," and all the acts of the council are deemed to be Acts of the municipality.^ "We will deal first with the constitution of a municipal council, and then examine its legislative functions. A municipal council consists of the number of councillors fixed by the Order in Council creating the municipality, or by some subsequent Order.^ Where the municipality has been created since 1874, its council consists of some multiple of three persons, not less than six nor more than twenty-four, if the municipality be undivided. If the municipality be sub- divided into ridings or wards, the council consists of three mem- bers for each subdivision.^ The actual number is usually nine.* But by increased subdivision of the municipality,^ this number is necessarily enlarged. Subject to certain exceptions, any person liable to be rated in respect of property of the annual value of £20 within the municipality may be a member of the council so long as he holds the qualification.^ The following are the disqualifications. 1. Sex. No female is qualified to be a member. 2. Insolvency. No uncertificated and undischarged bankrupt or insolvent may be a member. 3. Attaint of treason or conviction of felony or infamous crime. 4. Mental incapacity.^ 5. Holding of an ofiioe or place of profit under; or. being interested in a contract with, the council.^ 6. Failure to sign the declaration of office within two months after election.^ Any person who acts as a councillor whilst suffering from any of the above disabilities (except unsoundness of mmd) or before signing the declaration, is liable for every offence to a penalty of £50. But the official acts of such a person are valid.^" One-third of the members of the municipal council or, in case of subdivision, one-third of the representatives of each subdivision, retire every year, but are eligible for re-election." 1 Local Government Act 1890, § 10. ^ jrj^.^^ g j^_ 3 ^^_ gg y^ ^^^ jg. * Hayter, Victorian Tear Book 1890-91. « Local Government Act 1890, §§ 12 and 14 (vii.) « lUd. § 49. ' Ibid. § 50. 8 jiiia_ g 5i_ 9 jiia_ g 52. 1" Local Government Act 1890, § 63. There is also a penalty for procuring or assisting in the nomination of an unqualified person as a candidate (§ 113). " Ibid. § 54. CHAP, xxxvii MUNICIPAL FRANCHISE 331 And extraordinary vacancies may occur in any of the following events — 1. Death. 2. Eesignation. 3. Incapacity.^ 4. Ouster by the Supreme Court. 5. Absence, -without leave of the council, from four consecutive ordinary meetings.^ of any member of council. A councillor elected to fill an extraordinary vacancy is deemed, for purposes of retirement, to have been elected at the same time as the last occupant of his seat who was elected at an annual election.^ Every person of full age who on the 10 th June in any year is liable to be rated in respect of any property within a municipality, and who has paid all his rates up to three months previously, is entitled to be enrolled upon the roll of municipal voters for that year. If such property, being in a borough, is rated at less than £50, or, in a shire, at less than £25, he obtains only one vote; if in a borough at between £50 and £100, or, in a shire, at between £25 and £75, he obtains two votes ; if his rateable property amount to or exceed, in a borough £100, or in a shire £75, he obtains three votes. No one, except an occupier, can claim enrolment in respect of property worth less than £10 a year. In all cases where there is an occupant, he, and not the owner, is entitled to be enrolled in respect of the property.* The municipal clerk makes out the municipal roll in the last week of June in each year, from the last rate books and the returns of the rate collectors.' The draft roll prepared by the municipal clerk is then open for inspection, and a revision court is held by the chairman and council to decide upon objections. At least three councillors, in addition to the chairman or his deputy, must be present.^ After all objections are heard and adjudged, the chairman ' (Kind not specified, see Local Government Act 1890, § 56). " § 56. 3 I 57. 4 § 66. ° §§ 70, 71. It will be remembered that municipal rolls are used also for parliamentary elections. As non-payment of rates is no bar to the parliamentary franchise, the names of all defaulting ratepayers are kept on a separate voters' list (§ 66). But only such as are males can vote at parliamentary elections (Constitution Act Amendment Act 1890, §§ 45 and 135). « Local Government Act 1890, § 74. 332 MUNICIPAL COUNCILS part iv and at least two members of the council sign the list, which then becomes the municipal electoral roll for the year.^ Elec- tions are held annually on the second Thursday in August, to fill the vacancies caused by periodical retirements. Elections to fin extraordinary vacancies take place when required.^ Where a municipality is subdivided,, annual elections take place for each subdivision. Every one whose name is on the municipal roll is entitled to give the number of votes appear- ing there against his name.^ The nomination of candidates is made to the returning officer, who, in the case of a municipality not subdivided, is the chairman of the council ; where there are subdivisions the council or, failing them, the governor in council, appoint one of the existing councillors for the sub- division or some other person if no such councillor can act.* A nomination paper must be signed by ten duly qualified electors ° and also, as an acceptance, by the candidate nominated. A deposit of £10 must also be made in each case,^ and in case a candidate fails to poll one-fifth of the number of votes received by the successful candidate lowest on the poll, his deposit is applied by the returning officer towards the payment of official expenses.'' A candidate may, however, retire, with the consent of five of his nominators, not later than four clear days before the day of polling,^ and he is then entitled to have his deposit returned.' In the event of a contest, the polling takes place on the day fixed by statute for the election.^" There is a polling place for each subdivision,-'^ and the returning officer provides polling booths in such a proportion that not more than 600 voters can be called upon to vote at any one booth.-'^ The voting begins at 8 A.M., and lasts, in the case of a shire, till 4 p.m., and, of a borough, till 5 p.m.^^ It is con- ducted by ballot, each ballot paper contains the names of all the candidates in alphabetical order, each voter receives as many ballot papers as he has votes, and strikes out the names of all those candidates for whom he does not wish to vote.^* ^ Local Government Act 1890, §§ 80, 81. The actual official roll is a printed copy signed by the municipal clerk and handed to the chairman. 2 §§ 97, 100, and 101. » § 105. « § 108. » § no. 6 § 111. '■ § 138. 8 § X19. 9 § 138. i» § 118. " §§ 116 and 135. " § 117. " § 118. " §§ 118, 125, and 127. CHAP, xxxvii ACTION OF MUNICIPAL COUNCIL 333 Each ballot paper is marked on the hack with the voter's numher on the municipal roll,^ and a person applying for a ballot paper may be asked certain questions to test his identity and the fact that he has not voted before.^ After the poll has closed, the votes are counted by the returning officer, who declares the result, and forwards the papers sealed up to the municipal clerk, by whom they are kept secretly for six months, after which time they are destroyed in the presence of three councillors.^ Disputes as to the validity of elections are decided by the Supreme Court.* Having now considered the constitution of a municipal council, it is necessary for us to see how it can act. And, taking first the question of methods, we may notice the dis- tinction between normal and abnormal methods, the latter being resorted to for business of special importance. The council must hold an annual meeting at noon of the third Tuesday in each November at its office, and it may hold ordinary meetings at the same place at times fixed by itself These ordinary meetings may be at stated intervals, in which case, after notice has once been given to members, they need not be reminded on each occasion.^ But notice of special business, including the revocation or alteration of previous resolutions, must be given at the previous meeting, and sent to each councillor.® At all meetings, unless it be specially provided to the contrary, all members present must vote. The voting is open, and a majority decides, the chairman having a casting as well as a substantive vote.'' Nine members, or any smaller number forming an absolute majority of the council, are necessary for the transaction of business.^ No councillor may vote upon or discuss any matter in which he has a pecuniary interest.^ At the ordinary meetings the council sits with open doors.^" Special meetings may be summoned by the chairman or by any three councillors ; two clear days' notice must be given 1 Local Government Act 1890, § 126. 2 §§ 128 and 129. ' §§ 130 and 131. Many of these elective rules apply also to Melbourne and Geelong (§§ 115, 121, and 140). * §§ 165, 167. » §§ 170, 177. « §§ 176 and 177. ' § 171. In the case of a revocation of a, previous resolution, unless the numbers present be greater than those at the meeting which passed the resolution, there must be a two-thirds majority (§ 177). ^ § 172. 9 § 173. 10 1 175, 334 MUNICIPAL COUNCILS part iv ill a borough, and four in a shire.'' A " special order " can only be issued if passed at a meeting of which special notice has been given, and confirmed at a subsequent meeting, held not sooner than four weeks later, which has been advertised during the interval, once a week, in a local paper, and of which each councillor has received special notice.^ The council may appoint occasional or standing committees of itself, and may appoint a chairman and fix a quorum in each case.^ It may also appoint an ofl&ce either within the district, or, in case of a shire, within five miles of the boundary,* and it must require its clerk to attend there during stated hours for the conduct of business.^ It must keep proper minutes of its own business and that of its committees ; and these minutes are open to the inspection of councillors and creditors of the municipality.^ The legislation of a municipal council consists of by-laws, regulations, and joint-regulations.^ By-laws and regulations are practically governed by the same rules, except that no regulation can impose a penalty.^ A joint-regulation (except in special cases ^) requires the active concurrence of at least two municipalities. Each by - law and regulation of a municipality must be passed by " special order " (above described) of the council, and sealed with the common seal of the municipality.-''' Each joint-regulation must go through a similar process in each municipality concerned in making it, except in cases in which the compulsory process is resorted to." Notice of the proposed legislation must be published not less than seven days before the confirming meeting, and the legis- ■ lation itself must be published in the Government Gazette?^ When the process has been properly gone through, the by-law, regulation, or joint-regulation has the force of law throughout the municipalities concerned in making it, and takes effect from the date fixed by it for that purpose, or from the day succeeding pubhcation.^' But the operation of all municipal legislation is subject to certain restrictions. 1 Local Government Act 1890, § 178. ^ § ^-j^^ 3 § 132. * §§ 186 and 187. s § 188. ^ § jgg, 7 § 198. , 8 I 219. 9 See note 11. i» § 199. 11 § 200. If in certain cases municipalities refuse to concur, they may^be held bound, with the approval of the Governor in Council, by a regulation made by a single municipality (§ 202). ^ §§ 201 and 204. is g 203. CHAP. XXXVII MUNICIPAL LEGISLATION 335 1. It must not contain matter contrg.ry to any " public law " "^ in force in Victoria.^ 2. It may be repealed by the Governor in Council, by Order pubHsbed in the Government Oa?xUe? 3. It may be quashed for illegality by the Supreme Court, upon the application of a resident ratepayer.* Moreover, a by-law or regulation may be regularly repealed by a subsequent by-law of the same municipality, and a regu- lation by a subsequent regulation.^ The repealing legislation must observe the rule as to majorities before noticed." A joint- regulation may be repealed by a subsequent joint-regulation.'' The subjects upon which a municipal council may legislate by making by-laws are very numerous, and it is impossible here to do more than enumerate some of the most important. But it is worth noticing that such by-laws may be either of an original character, or they may be simply adoptions of a common form provided by the Local Government Act for certain cases.^ Taking first the cases in which the council may proceed directly to pass by-laws, we may enumerate the following subjects as coming within its jurisdiction. 1. The management of streets and footways, including very wide powers for the prevention of nuisances of all kinds. 2. The control and care of waterworks and drains. 3. The management of wharfs, jetties, and piers belonging solely to the council and not within the operation of any Act relating to ports and harbours. 4. The management of commons, public reserves, places of public recreation ^ or instruction, belonging to or placed under the control of the council. 5. The regulation of buildings, including the removal of dangerous structures. 6. The prevention of dangers from fire. 7. The suppression of nuisances (generally, and of various special kinds enumerated). 8. The carriage of passengers or goods by public conveyances, such as cabs, carts, and boats. ^ I.e. (presumably) any law recognised by the Supreme Com-t, and affecting the colony generally. " Local Government Act 1890, § 193. 3 § 208. * § 224. = § 207. 8 R. V. Shire of ffunily, 13 V. L. R., 606. ' Local Government Act 1890, § 207. ^ § 191 (i. and ii.) " The granting of liquor licences is within the jurisdiction of a specially constituted system of "licensing courts " (cf. Licensing Act 1890, §§ 49-84). 336 MUNICIPAL COUNCILS part iv 9. The conduct of the business of the council and its officers. 10. The conduct of public meetings and ratepayers. 11. The establishment and regulation of fairs, public sales, labour marts, and offices. 12. The supply and distribution of water from waterworks under the management of the council. 1 3. Sewerage and drainage.! 14. Lighting. 15. Public decency and public health. ^ 16. Quarrying and blasting operations. 17. Traffic and processions.^ 1 8. The use of public baths and washhouses provided by the council* 1 9. The control of markets provided by the council.^ Besides which the council have a general power of making by-laws for generally maintaining the good rule and govern- ment of the municipality.^ But it is doubtful if this general power is worth very much.' By way of indirect legislation, the council may pass by-laws adopting existing provisions on the subject of a. The matters enumerated as Fos. 1 to 9 ante, as subjects of direct legislation. (These provisions are contained in Schedule 8 of the Local Government Act 1890.) ^ 6. Water supply. (Provisions contained in any Act of Parliament authorising their adoption.) ^ c. Any of the sections of Division I. of Part V. of the Water Act 1890.1" And the council of a shire may by any by-law extend to any part of its district any of the provisions of Part I. of the Police Offences Act 1890." Moreover any council may make regulations or join with other councils in making joint regulations authorised by any provisions adopted under a (ante)P ' All public sewers and drains in a municipal district, and all sewers and drains in and under the streets thereof, whenever and however built, are vested in the municipality and placed under the entire control of the council (Local Government Act 1890, § iU). 2 By § 16 of the Health Act 1890, the municipal oonncil is practically made the local Board of Health for the municipality. In this capacity it is largely subject to the control of the Board of Public Health. 3 § 191 and Sehed. 13. " § 480. = § 510. 6 g ^gj (^j^j j ' See In re CowmU of Kyneton, Ex parte Gumer, 1 W. and W. (L.) 11. 8 Local Government Act 1890, § 191 (i.) " § 191 (iv.) Sometimes these Acts empower direct legislation by the muni- cipality {e.g. Water Act 1890, § 518). " § 191 (ii.) " § 190. These provisions are already in force in all boroughs [ihid.) " § 192. CHAP. XXXVII MUNICIPAL LEGISLA TION 337 Finally, we have to see how the legislation of a municipal council is enforced. Disobedience to any by-law, regulation, or joint-regulation of a municipal council or councils, lawfully made, is deemed an offence against the Local Government Act 1890,^ and may be punished, in the absence of special provision, by fine in the discretion of the magistrate, not exceeding £20.^ And a by-law may also impose a penalty, or series of penalties, not exceeding £20 ^ for any offence, or for any series of offences which practically constitute one act.* But an offender may not be prosecuted or punished for the same offence under the Local Government Act or municipal by-law and also under the Police Offences or Health Acts.^ A docu- ment certified under the hand of a municipal clerk as a true copy of a by-law or regulation of his municipality or of a joint- regulation as affecting his municipality, is prima facie evidence of the fact." ^ Local Government Act 1890, §§ 218, 535. ^ § 536. The penalty ia recoverable before two justices (§ 537). Cf. also' Police Offences Act 1890, § 99. ^ Local Government Act 1890, § 217. * B. V. Shuter, 8 V. L. R. (L.) 138. ^ Local Government Act 1890, § 221. 6 § 223. CHAPTER XXXVIII MINING DISTRICT BOAEDS Thirty years ago, mining was the most important and popular industry in the colony. For some time past the popularity of the pursuit has been rapidly waning, until it is now estimated that less than 24,000 persons, of whom nearly one-sixth are Chinese, are engaged in it.^ But its former importance has given the subject something more than a historical interest. So much government machinery was needed to organise the goldfields in the palmy days of the " fifties," that the subject has left a broad mark, which will not for many years be effaced, upon the government of Victoria. The matter has two sides with which government is directly connected — the economic and the constitutional. The economic aspect is due mainly to the old feudal rule which gave the Crown the right to claim all precious metals found within its dominions, whether on private or public land. The doctrine was firmly established on the outbreak of the gold fever in Australia, and is the key to the history of the subject from a public point of view. The Crown has acted as landlord no less than as ruler, and this fact has given the miniag legislation its economic aspect. Putting aside this aspect, as not strictly within our province, and confining ourselves as much as possible to the constitutional side of the question, we proceed to sketch the mining system as a branch of local government. 1 Report of the Mining Department for tlie quarter ending 30th June 1890, p. 47. The precarious character of mining pursuits may be estimated from the fact that the total returns do not average £100 a year for each individual engaged in it. This sum, which takes no account of interest on fixed capital, is less than the average wage of an unskilled labourer. CHAP. XXXVIII MINING DISTRICTS 339 Mining Districts appear to date from the year 1855, when the Governor was empowered, with the advice of the Executive Council, to proclaim any goldfield as a district for the purpose of forming a local court.^ There was no limitation as to number, but when the power was renewed by a statute of the year 1857, the number of goldfields was limited to six, unless upon the petition of the two Houses of Legislature.^ By the Mining Statute of 1865 ^ the limit was raised to seven, at which number it now remains,* the present mining districts of Ballaarat, Beechworth, Sandhurst, Maryborough, Castlemaine, Ararat, and Gippsland, containing a total area of 86,760 square miles.^ A mining district may by proclamation be divided into any number of divisions.® The district of Beechworth contains eighteen, the others various smaller numbers.'^ The legislative body of each mining district is its Board, which consists of ten members,^ and to which four members are elected annually on the last Saturday in February, in place of the four senior members, who retire by rotation." These members are distributed amongst the divisions of the district by proclamation, and receive remuneration out of a fund pro- vided by the Consolidated Eevenue.^" Eetiring members are re-eligible.^^ Any male of the age of twenty-one years, the holder of a miner's right or business licence, and being a natural-born or naturalised subject of the Queen, resident within his division, may be elected a member of a mining board.^^ The qualification for an elector is the same.^^ But in each case the miner's right must have been held for at least three months.^* There is no special roll of electors, but each voter produces his miner's right or business licence, and may be called upon to answer certain questions in proof of his qualification.^^ In each district there is a returning officer, appointed and removable by 1 18 Vic. No. 37, § 16. ^ 21 Vic. No. 32, § 13. ' 29 Yic. No. 291, § 46. * Mines Act 1890, § 80. ^ Report of Mining Department for quarter ending 30th June 1890, p. 47. 8 Mines Act 1890, § 80. ' Report, p. 47. » Mines Act 1890, § 84. 9 § 88. i" § 87. " § 88. 12 1 89. '' lUd. A "miner's right" is a Crown permit, entitling the holder to take possession for purposes of mining and residence of a limited area of Crown land. A "business licence" empowers the holder to occupy a limited area of Crown land on a goldfield for purposes of residence and business (§§ 4, 5, 11, 12). " § 90. " §§ 96 and 97. 34° MINING DISTRICT BOARDS part iv the Governor in Council.^ A member of a mining board may, by letter to the returning officer, resign his seat.^ He becomes disqualified for membership by the following events. 1. Failure to attend four consecutive meetings. 2. Insolvency. 3. Conviction of felony, perjury, or infamous offence. 4. Insanity.5 Each mining board must hold a meeting on the second Tuesday after a general election, and at such other times as it is convened by the chairman upon seven days' notice by advertisement in a local newspaper.* Five members form a quorum.^ At the first meeting after a general election, it elects a chairman, who holds office until the corresponding meeting of next year, unless he dies or resigns in the meantime.® He has a casting, but not an ordinary vote.'^ Each mining board may make by-laws, not affecting existing rights and liabilities, for the regulation of decision of disputed elections and the conduct of its own business, as well as for the settling of a large number of points arising in connection with the operation of mining and for prescribing the conduct of mining operations. It may also pass by-laws imposing rates upon land and machinery occupied or used for mining purposes.* All by-laws must be signed by members concurring therein, and sent to the law-officers of the Crown, who, if they are not contrary to law, certify and publish them in the Governmeiit Gazette. Twenty-one days after publication they come into operation, and have the force of law throughout the district, or that part of it to which they are made applicable.' But such by-law cannot prevent the operation of a municipal by-law, and any person, upon due notice advertised, may state his objections in writing to the law officers, who thereupon bring the matter before the Governor in Council, by whom the by-law in question may be revoked.-"" The proper court in which to enforce a by- law of a mining board is the court of the warden of the district, which has power to inflict a penalty of £10 for its breach.-'^ 1 Mines Act 1890, § 85. 2 § 8g_ s § io4. " § 101. " § 103. 6 § 102. 7 § 103. ^ § 106. (The provisions are too technical to be stated in detail.) 5 § 107. i» § 108. " § 289. 2. EXECUTIVE CHAPTER XXXIX MUNICIPAL AND MINING OFFICIALS A MUNICIPAL council does much of its own executive business directly, just as the Legislative Assembly does. It may treat (subject to certain precautions) with the conductors of offensive works for their removal upon payment of compensation/ it may register dancing saloons,^ may sell, purchase, and lease lands,^ may borrow money for permanent works or the pay- ment of its debts,* may enter into contracts for various pur- poses,^ may take land compulsorily on payment of compensa- tion,^ may open, close, construct, manage, and alter streets, bridges, and other means of communication,'^ may construct and maintain sewers and drains,^ may provide baths and wash- houses,^ construct and establish markets,^" and provide places of recreation and amusement.^^ All these functions, at least in their initial stages, must be performed by the council in its corporate capacity, and cannot be delegated to officials. But to conduct the routine business of the municipahty, and carry its legislation into effect, certain oflRcials are appointed by the council, some of whom are constitutional, i.e. contemplated by the general scheme of local government as essential to each municipality ; the others are merely ministerial, appointed as convenience requires. The first of these is the Chairman of the Council, who, in the case of a borough, is called the " Mayor," and, of a shire, ' Local Government Act 1890, §§ 226, 227. => §§ 228-230. = §§ 232-236. ' §§ 304-350. " §§ 374-377. « §§ 378-387. ' §§ 388-463. 8 §§ 464-469. » § 480. i» §§ 482-510. " § 512. 343 MUNICIPAL AND MINING OFFICIALS part iv the " President." The chairman is elected by the council, and holds office tiU the next annual election of the council, unless he has previously resigned, lost his seat on the council, or been ousted by the Supreme Court.^ He presides at all meet- ings of the council, and takes precedence at all municipal proceedings within the district.^ The council may, previously to the election of a chairman, vote an allowance to the office for the ensuing term, of an amount not exceeding three per cent of the gross income of the municipality for the year.* The president or mayor of a municipality is ex officio a justice of the peace for every bailiwick in which any part of his municipality is situated, and continues as such until twelve months after his vacation of office, provided he retains his qualification.* As we have seen, he has various duties with regard to the municipal roll, and the conduct of elections.^ A Tkeastjeer must also be appointed by every council, and by him all monies payable to the municipality are received.^ He must give security upon his appointment.'^ The mention of the treasurer naturally leads us to consider the nature of the revenue of a municipality. In such revenue there are, broadly speaking, three great items — rates, endowments, and loans. It may be objected that loans are not really revenue,® inasmuch as they can only be raised for works of a permanent character, and have, of course, to be repaid. This is quite true, but it is convenient to treat of loans in the present place. 1. Bates. All land witMn a municipality, whether occupied or not, except that devoted to public, religious, or charitable purposes, or to mining,^ is rateable property. i" Its net annual value is assessed by valuers appointed by the council, ii subject to an appeal within one month to the justices in petty sessions.^^ Upon this valuation the council must in every year levy a rate, known as the " General Rate," not exceeding half-a-crown and not less than sixpence in the pound,^^ which is primarily payable by the occupier, and, fail- ing him, by the owner of each tenement, i* But before making 1 Local Government Act 1890, §§ 60, 61. ^ §§ 62 and 64. ' § 65. « Justices Act 1890, § 13. s AkU, pp. 332, 333. « Local Government Act 1890, §§ 141, 147. ' § 146. 8 §238. (Loans do not form part of "ordinary revenue," the "municipal fund," §238.) 9 I.e. mining on Crown lands (Local Government Act, 1890, § 24). " § 246. " § 248. " § 276. ^ § 256. " §§ 257, 293. CHAP. XXXIX MUNICIPAL RA TES 343 such rate, the council must frame an estimate showing the necessity for it. And this estimate must be entered in the rate-book.^ Where a municipality is subdivided, at least half the amount received in " general rates " during the year, deducting all payments made on account of loans, must be apportioned and expended among the subdivisions in proportion to the amount of their contributions.^ Moreover the council may by " special order " ^ levy a " separate rate" upon a particular portion of the municipality, for the pur- pose of effecting a work which in its opinion will be for the special benefit of that portion, and this " separate rate " is payable only by the occupiers (or, failing them, the owners) in that portion,* and is treated as a separate fund for the special purpose for which it is levied.^ And thirdly, a council may levy, in a similar way, " extra rates " upon any subdivision or subdivisions of its muni- cipality, to be expended wholly upon such subdivision or subdivi- sions." But such " extra rates " can only be made upon the request of the councillors for the subdivision,^ and the total amount of " extra " and " general " rates for any one year upon any subdivi- sion must not exceed half-a-crown in the pound on the net annual value of its rateable property.^ The fund produced by "extra rates" is liable to a proportion of the general expenses of the municipality.^ All rates may be made for and payable at such periods as the council sees fit, but notice of the intention to levy a rate must be circulated in the neighbourhood one week previously to the levy.^'* A pro- posed rate must be fairly transcribed into the " rate-book," which, both before and after the levy, is open to the inspection of persons interested.il Appeal from the making of a rate lies to the general sessions of the bailiwick in which any part of the municipality is situated. 12 The court may amend the rate in respect of the appel- lant, or quash it m toio}-^ The payment of rates may be enforced by — a. Proceedings before any justice or by " action of debt " in ainy court having jurisdiction.^* (An occupier or owner parting with his interest before the expiration of the period for which the rate is levied is liable only for a proportionate amount.^^) 6. Taking possession of the property rated, and leasing it to pro- vide for payment. This remedy cannot be adopted till rates are in arrear for five years. Unless the property is released by payment of arrears within thirty years, it vests absolutely in the municipality.!" 1 Local Government Act 1890, § 259. ^ § 242. ^ § 260. " §§ 260, 261. 5 I 262. « §§ 263, 268. 7 § 264. ^ § 266. ' § 267. i» § 271. '1 §§ 272, 273. •"^ § 277. (Apparently if the appellant objects only to the amount assessed upon his property he may appeal to petty sessions, § 276.) ^^ §§ 278, 279. " § 288. (? If the action of " debt " still exists.) ^^ § 292. " §§ 297-303. 344 MUNICIPAL AND MINING OFFICIALS part iv 2. Endowment. Whenever any monies are voted out of the consoli- dated fund of the colony for tlie endowment of municipalities, they are payable in the following way. Each borough receives a sum equivalent to and each shire a sum double of the amount received by it in " general " rates during the previous year, upon a maximum basis of a shilling rate. But no borough is to receive in any year an endowment of more than ,£2000. If the sum voted by Parliament will not suffice to pay these amounts, each municipality bears a proportionate reduction.^ The endowment is payable in equal moieties in the months of March and September,^ but before the 31st of January in any year succeeding that in which endowment has been received, the council must forward to the treasurer of the colony a statement (verified by the solemn declaration of its treasurer or clerk) showing the expenditure of such endowment, and also a statement containing full particulars of its rating assessment and receipts.^ 3. Loans. The council of a municipality may borrow money upon the municipal credit for two purposes only, viz., a. The construction of permanent works.* &. The repayment of the principal of previous loans.^ Every loan must be raised by debentures of the municipality payable to bearer, under the seal of the municipality, and signed by the chairman, clerk, and treasurer of the municipality.^ The total amount which the council may borrow for permanent works is limited to ten times the average income of the municipality from general rates, on a maximum basis of one shilling and sixpence in the pound, for a period of three years next preceding the notice for a loan.'^ The total amount which it may borrow for the repay- ment of outstanding loans is limited to the principal owing there- upon,® deducting the amount of any sinking fund set aside towards the repayment thereof.^ Any councillors who concur in raising a loan beyond the statutory limits become personally liable for its repayment, and cannot recoup themselves out of the municipal funds. Notice of intention to raise any loan must be published by the council for one month before the adoption of the proposition, and such notice must specify the purposes for which the loan is sought. If it is for works, it must state that the plans, specifica- tions, and estimates can be seen at the municipal offices.^" Any twenty persons on the municipal roll may obtain a plebiscite upon 1 Local Government Act 1890, §§ 351, 352. ^ § ggj^ s gg 354^ 358. * A list of " permanent works " Is given in § 311. They include the improve- ment of streets and bridges, and the construction of sewers, waterworks, gas- works, municipal offices, markets, baths, hospitals, asylums, etc. 6 § 305. 8 §§ 312-317. Each debenture must contain various particulars concerning the loan. ' §§ 306 and 309. A "city " has further powers (§ 349). 8 § 306. s g 310. 10 § 320. CHAP. XXXIX REVENUE AND EXPENDITURE 345 the question, conducted, as nearly as may be, in the manner of a municipal election.^ If there is no opposition, or the plebiscite approves, the council proceeds to authorise the loan by " special order,"^ and debentures are issued.^ No loan must be for a longer period than thirty years.* And the council must at once com- mence the annual investment of a sum not less than two per cent of the amount of the loan in Victorian Government stock, to form a sinking fund for its repayment. This fund stands in the joint names of the treasurer of the colony and the municipality in question, the interest accruing from it is added to the capital sum, and when the debentures fall due, it is applied towards their repayment.^ If the council is able to repurchase its debentures, it is entitled to withdraw so. much of the sinking fund as, in the opinion of the Commissioners of Audit, will leave enough to meet the outstanding liability.^ The holders of debentures under different loans rank in order of time priority against the general assets of the municipality, but each sinking fund is primarily applicable to the discharge of its own loan.' A receiver of the rates of a municipality may be appointed by the Supreme Court on the petition of a debenture holder whose principal or interest is unpaid.^ Municipal creditors have, of course, no claim on the consolidated fund of the colony.^ Besides these three great items, there are many miscel- laneous incomings to a "municipal fund," such as tolls, fines for breaches of by-laws, payments for use of municipal property, and the like. All monies coming to the munici- pality, and amounting to the sum of £20, must be paid into a bank within seventy-two hours after their receipt, or within such shorter time as the council may direct.^" In addition to the ordinary items of expenditure, a municipal council is expressly authorised to expend its funds upon — a. Expenses of obtaining Acts of Parliament.'^i 6. Repurchase of its own debentures.^^ c. Expenses of preparing parliamentary municipal roUs.^^ Each municipality has also a Municipal Cleek, appointed by the council, who, in the case of a borough, is called the ^ Local Government Act 1890, §§ 321-325. ^ In this case the confirming order requu'es the sanction of an absolute majority of the council. And if the loan is for works which will necessitate the compulsory taking of land, the order for the works must receive the sanction of the Minister (§ 327). = § 328. * § 318. » §§ 330, 331. 6 § 332. ' §§ 337, 344. « § 338. 9 § 346. 1" § 241. " § 239. 12 § 245. " § 240. 346 MUNICIPAL AND MINING OFFICIALS part iv " town clerk," in that of a shire, the " shire secretary." ^ The municipal clerk is, in eifect, the chief literary ofi&cial of the municipality. His duties are too numerous to detail. They include, amongst others, the signature of new and the destruc- tion of repurchased debentures,^ the attestation of accounts sent up to the central government,^ the preparation of the municipal roll,* and the representation of the council in legal proceedings.* Each municipal council also appoints a SuRVEYOE, whose duties are mainly concerned with the construction and main- tenance of municipal works, and the administration of the immovable property of the municipality. N"o person can be appointed surveyor or engineer to a municipality unless he holds an official certificate of his qualification as a Surveyor of Land and "Works, and a special body, the "Municipal Sur- veyors' Board," exists to grant certificates of competency or qualification.® In addition to these necessary officials, a municipal council may appoint valuers, collectors, health officers, inspectors, and other officers necessary to the performance of its duties.'^ All officers employed by a municipal council must render accounts at times prescribed by the council,^ they must, if entrusted with money, give security for their fidelity,* and they are forbidden, on pain of forfeiture of office and a penalty of £100 recover- able at the suit of a common informer, to exact or accept any fees other than their official salary, or to have any interest in a bargain or contract made by the council.^" But besides these officials appointed by the council, every municipality has one or more important officials, known as Auditors, who are directly elected by the ratepayers. Their election takes place annually, at the same time as the annual election of councillors, and in the same way, except that the auditor or auditors of a municipality is or are elected from the whole constituency, irrespective of subdivisions.-'^ Moreover, in addition to the elected auditors, the Governor in Council may appoint an auditor for any municipality.''^ The remuneration of the auditors is paid out of the municipal fund, but is fixed by the Governor in CouncU.^^ The accounts of a municipality ' Local Government Act 1890, §§ 141 and 142. = § 314. ' § 356. M 70. 5 §§ 519-524. 6 §§ 151.158. 7 § 141. 8 § 148. 9 § i46_ 10 § i45_ 11 §§ 160-162. ^ § 163. 13 § 164, CHAP. XXXIX MINING OFFICIALS 347 must be balanced to the 30 th September in each year, and after being audited in the presence of the parties interested, must be published and lie open for inspection.^ As finally- settled, they are passed by the council at its ordinary meeting, on which occasion ratepayers and creditors of the municipality are entitled to be present, but not to take part in the proceed- ings.^ Upon the request of 20 ratepayers, accompanied by a deposit of £50, the Governor in Council may direct a "special audit " by specially appointed auditors. Such special auditors report to the Minister, and if their report is unfavourable, the specified items may be disallowed with costs out of the muni- cipal fund.^ With regard to mining officials there is not very much to be said. The Governor in Council is empowered to appoint such officers and for such districts and divisions as he shall think fit, for the making of inspections and surveys and regis- tration of claims and mines, and for such other purposes as may be required.* Under this authority, the following officials are usually appointed for a mining district. 1. The Warden, who is the executive head of the district, and also acts in many cases in a judicial capacity. He receives and decides upon the due formalities of applications for mining leases and licences,^ and hears objections to their reception," he appoints persons to assist him as assessors in his judicial capacity,^ inspects disputed " claims," ^ authorises entry on claims to view alleged encroachments,^ conducts the inquiries necessary before a lease of mining rights is granted over private property, i" and orders con- tributions towards the cost of pumping machinery by the owners of claims benefited thereby.^^ In his judicial capacity he has a general jurisdiction to hear such matters as are cognisable by the Court of Mines of his district, as well as claims to the possession of Crown land under a licence, and debts alleged to be due under mining partnerships or under the provisions of the Mines Act 1890 (where no other.remedy is provided).!^ He may also grant injunc- tions in cases of urgent necessity,!^ and for disobedience to his orders (other than for payment of money) he may commit to prison.^* But his jurisdiction in debt or contract is limited to .£100,1^ and an appeal in most cases lies from his decision to the 1 Local Government Act 1890, §§ 360-363. 2 § 364, and see Bippm v. Denis, 6 V. L. K. (L.) 81. = §§ 366-372. ^ Mines Act 1890, § 80. = § 65. «§66. '§228. 8 §233. » § 244. " § 306 and Schedule 33. " § 378. ^^ § 2I6. See also § 310. 13 § 246. " § 249. " § 216. 348 MUNICIPAL AND MINING OFFICIALS part iv Court of Mines of tlie district.^ When either of the parties demands it, or the warden himself thinks it expedient, he is assisted by four expert assessors. ^ 2. The Warden's Clbek, who acts as the warden's representative in formal business.^ 3. The Mining Registbae, who acts under the direction of the Mines Department in the compiling of information and supply of statistics, and under the by-laws of the Board of the District in the registration of claims, residence areas, and other particulars of the mining industry.* 4. The Mining Scteveyoh, who is not exclusively occupied in official business, but who, under the direction of the Mines Department and the District Boards, does certain surveying work for which he is entitled to certain fees.^ For example, he makes a survey whenever an application is made for permission to mine on private property." 5. The Inspeotoe of Mines, who, when authorised by the Minister or by a police magistrate, or upon the complaint of a miuer work- ing therein, must inspect any mine, together with its machinery, to see that the provisions of the Mines Act relative to the safety of miners are being complied with.'' Moreover, the mining manager of any mine in which an accident attended with serious injury to any person has happened, must give notice to the local inspector within twenty-four hours, under penalty of a fine of £50.s Besides these officials appointed by the Governor in Council, every Mining Board is entitled to appoint such officials for the inspection of channels, enforcement of by-laws, and collection of rates as it may think fit.^ But, as a matter of fact, this power is very rarely, if ever, acted upon.i" Mines Act 1890, § 254. ^ § 229. =* § 220. ^ Cf. e.g. % 32. Schedule 33, Appendix B. ^ Schedule 33, Eegs. 6-10. ' § 367. 5 § 370, 376. 9 § 109. ^o For many of the details in the last part of this chapter, which it is almost impossible to obtain from documentary sources, I am indebted to the kindness of A. W. Howitt, Esq., F.R.S., Secretary for Mines in the colony ofVictoria. 5 3. JUDICIARY CHAPTER XL COUNTY COURTS In examining the local administration of justice, we shall have to discuss three items, — county courts, magistrates' courts, and courts of mines. "We will begin with county courts, but we shall see ultimately that there is a substantial connection between all three. County courts are the modern successors of the old Courts of Eequests, established for the decision of small civil cases, principally relating to recovery of debts. We have seen these introduced into New South Wales proper, and their extension to Port Phillip.^ Soon after separation, they were abolished to make way for the new system,^ which has been since amplified in many directions.^ County courts are from time to time established and held at places proclaimed by the Governor in Council.* Strictly speaking, each court has jurisdiction throughout the whole of Victoria ; but if, on the hearing of a common law plaint, it appears that the defendant does not reside, and that the cause of action did not arise within 100 miles of the court, or that the defendant resides at least 10 miles nearer to some other court (the cause of action not arising nearer the court chosen than such other court), the defendant is entitled, as a matter of right, to a non-suit.® 1 AnU, p. 30. 2 By 16 Vic. No. 11. '" Of. e.g. 21 Vic. No. 29, 28 Vic. No. 261 ("County Courts Statute 1865") 33 Vic. No. 345 ("County Courts Statute 1869"), 40 Vic. No. 556, 50 Vic. No. 907, 51 Vic. No. 942, etc. * County Court Act, 1890, §§ 3 and 7. = § 5. 35° COUNTY COURTS part iv Not more than nine barristers or advocates of seven years' practice may be appointed by the Governor in Council to be judges of county courts in Victoria.^ Such judges hold office during good behaviour. The Governor may remove them for absence from Victoria without leave, for incapacity, and upon the Address of both Houses of the Legislature.^ Each judge presides over such courts as may be assigned to him by the Governor in Council, but his jurisdiction runs throughout the colony.^ A county court judge may not practise at the bar, nor sit in Parliament,* and he may be compelled to reside within his district.^ In addition to the judge, there are appointed for each county court one or more registrars, who may appoint deputies to act for them in cases of emergency, and one or more baUiffs (removable by the judge for inability or misbehaviour), with power to appoint assistants by writing under their hands.* The registrar's duties are, briefly, to conduct the adminis- trative business of the court, especially the proceedings prior to the hearing. He issues and receives all process, decides on points of practice, administers oaths, receives fees and other monies, prepares lists of causes for trial, and registers orders and judgments.'' Assistant registrars may be appointed at places at which no courts are held, to conduct preliminary process.^ The duties of the bailiff are, briefly, to execute the process of the court, by serving notices and summonses, enforcing warrants, and levying executions.® Officers of the court must not be concerned for any party in any proceeding before it, and registrars and bailiffs must not perform one another's duties.'"' Both registrar and bailiff give security for the due performance of their functions.^^ Any registrar, assistant, or deputy proceeded against for any act done in obedience to a warrant issued by him may plead the warrant and the judgment upon which it is founded as a justification ; in similar cases, the bailiff or his servants may justify under the warrant alone.^^ And all actions brought against any person for anything done under 1 County Court Act 1890, § 9. ^ § 10. s § 12. ^ § 14. There seems to be no restriction upon his accepting any other office. He is not within the provisions of the Public Service Act (see Public Service Act 1890, § 3). = § 24. 6 §§ 25, 26, 33. ' § 31. 8 §§ 27 and 28. 9 § 34. i» § 36. " § 38. " § 40. CHAP. XL JURISDICTION OF COUNTY COURTS 351 the County Court Act must be commenced within six calendar months after the commission of the act complained of.^ All constables and police officers must aid in the execution of county court process.^ Subject to the limits of locality previously mentioned, the jurisdiction of a county court extends to the following cases — 1. All personal actions where the amount, value, or damages sought to be recovered do not exceed £500.^ 2. All actions of replevin where the goods seized do not exceed in value £500. (The action must be brought in the court nearest to which the goods are situate.)* 3. All actions of ejectment in which the value of the premises, the possession whereof is sought to be recovered, does not exceed £50 a year, or where the rent (exclusive of ground rent) does not exceed that sum.^ 4. All suits for account, administration, execution of trusts, foreclosure or redemption of mortgages, specific performance of agreements for sale, purchase, or lease, appointment of guardians to or maintenance or advancement of infants, and dissolution or winding up of partnerships or companies, where the property in question does not exceed in amount or value the sum of .£500.^ 5. All such actions of tort as may be remitted by the Supreme Court upon the af&davit of the defendant that the plaintiff has no visible means of support.'^ But no county court may try any action for — 1. Seduction, 2. Breach of promise of marriage, 3. Decision of title to a toU, fair, or franchise, unless — 1. The parties have consented in writing to the jurisdiction,^ or 2. The case has been remitted by the Supreme Court.^ The Supreme Court has power, within certain limits, to order a transfer from the county court to the Supreme Court, in cases where it shall consider the latter the preferable tribunal.^" A judgment in the county court is enforceable by execu- tion against the goods of the judgment debtor,^^ by attachment of debts due to him, and by charge on stock or shares standing in his name, of which he is beneficial owner, and even by 1 County Court Act 1890, § 41. = § 43. ^ § 48. ■• § 118. '' § 119. ' § 121. The court has power to entertain proceedings for injunction in all cases otherwise falling within its jurisdiction. ' § 51. 8 § 48. ' § 51. " §§ 52 and 123. " § 99. (There is a reservation of wearing apparel and tools of trade up to £10.) 352 COUNTY COURTS part iv arrest of the debtor's person.-' The bailiff of one county court is bound to enforce the warrant of another,^ and a county court judgment may be registered in the Supreme Court and execution issued thereupon.^ But an appeal lies from a judg- ment, decree, or order (not being an order of commitment) of a county court to the Supreme Court by special case or motion, provided that the point be raised within a limited time, and a deposit paid to cover costs.* The Supreme Court may affirm or reverse the decision appealed from, or order a rehearing before itself^ A county court judge may also reserve any question for the decision of the Supreme Court.® Judgments of county or other local courts of record in any other Australasian colony may now be enforced in Victoria, provided that, upon adoption of a reciprocal policy, the Governor in Council has made a proclamation to that effect.' It must be remembered that county courts are also, practically, local Courts of Insolvency (cf. ante, p. 322). 1 County Court Act 1890, §§ 107, 108, 115, and 117. ^ § 101. ^ g io4. ^ §§ 133, 134. = § 133. 6 § 135. 7 §§ 137-145. CHAPTER XLI MAGISTEATES COUETS The specific title of every magistrate in Victoria is "justice of the peace." Many of the justices have other offices, of a more important character, which influence their powers as justices,, but, in order that they may act in a magisterial capacity, they are specially invested with the title. It is generally known that the office of "justice of the peace" is very ancient. It goes back beyond question to the fourteenth century, and there are traces of similar offices at a still earlier date. As the powers of the autonomous local authorities disappeared in England, their places were gradually taken by these officials, until the whole character of the local administration was changed. Eor it has always been a distinguishing feature of the office that it has been created by the Central Government, whereas the older local authorities were created by the locali- ties. Every justice of the peace holds his office from and at the pleasure of the Crown. Another remarkable feature of the office is, that from early times, though not from its com- mencement, it has been of an honorary character. The over- whelming importance of the justices in local administration dates from the time of the Tudors and the Eeformation. Justices of the Peace in Victoria are of two kinds — a. Specially appointed. 6. Ex officio. a. In every bailiwick ^ such and so many justices as are necessary are " assigned " by Commission under the seal of the Colony to keep the peace.^ The Commission is in the Queen's ' For bailiwicks of. Supreme Court Act 1890, §§ 41 and 42, and Sched. 3. 2 Justices Act 1890, § 12. 2 A for every bailiwick. 3S4 MAGISTRATES' COURTS part iv name and is signed by the Governor.^ Justices thus specially- appointed have jurisdiction only in their own bailiwieks. At present there are in Victoria between two and three thousand of such justices.^ 6. The following persons are ex officio justices of the peace — 1. Members of the Executive Council, ' 2. Judges of tbe Supreme Court, 3. Chairmen of General Sessions, 4. Coroners and deputy coroners, 5. Police magistrates, „ m, -J i r I.- J ffor every bailiwick in which 6. The president of every shire and ^ c .i • ,^_ c T. 1, any part of their mumci- the mayor ot every borough, J ft "t t <1 • 7. The mayors and mayors elect of | fi • ^ ^ 'n- ? TVT 11, J /-I 1 their terms ot office, and Melbourne and Geelons, ^ i ^i j.^ ■. » ° \_ twelve months afterwards.'' No insolvent is capable of acting as a justice, and the Governor in Council may prohibit any justice from acting.* The duties of justices are now so numerous and important that it will be impossible to give more than a brief outline of them. The simplest way will be to note the different capaci- ties in which a justice may act, and shortly touch upon his duties in each. Broadly speaking, a justice acts in three capacities — a. As a magistrate out of sessions. 6. As a magistrate or judge in petty sessions. c. As a magistrate or judge in general sessions. a. The great function of a justice out of sessions is to receive information of the commission of offences, and to pre- pare the cases for trial. Having' heard information, either by mere statement or ■oath, which raises in his miud a reasongJble probabihty of an offence having been committed, he issues a summons calliag on the accused to appear and answer the charge, or, if the infor- mation has been on oath and an indictable offence is charged,' he may issue a warrant ordering his immediate arrest.® If the accused does not obey the summons, a warrant may also be issued after sworn proof of service.'' A justice may compel the attendance of witnesses, and the production of documents.' 1 Justices Act 1890, Sched. 3 (form). ^ Ex.relaMone the Crown Office. 3 Justices Act 1890, §§ 13 and 14. * §§ 15 and 16. « §§ 19 and 32. " § 30. ' § 32 (3). 8 § 29 (3). CHAP, xu MAGISTRATES OUT OF SESSIONS 355 During the preliminary hearing, the witnesses for the prosecution are examined on oath, they may be cross-examined by the accused or his counsel, and their depositions are taken down by the justice and signed by them.' Such examination is not a judicial proceeding, and the justice may, if he thiaks fit, exclude the public ; ^ but if the evidence, in the opinion of the justice, raises a prima facie case against the accused, the latter must be allowed to call witnesses for the defence, whose depositions are similarly taken.^ Before hearing the accused's witnesses, however, the justice, if he thinks there is a case, must ask the prisoner if he wishes to make a statement. But the question is accompanied by an elaborate caution as to the effect of such a statement, and the accused is not bound to say anything.* If he does so, his statement is treated in the same way as the depositions of the witnesses.® If the justice, after these steps, makes up his mind to commit the prisoner for trial, he forwards the information and depositions to the Crown Solicitor (if the trial is to take place in the Supreme Court) or to the clerk of the peace for the bailiwick (if the trial is to be at general sessions)." The witnesses for the prosecution may be, and the material witnesses for the prisoner (except mere witnesses to character) must be, bound by recognisance to appear and give evidence at the trial.'^ If the proceedings require adjournment at any stage, the justice may (subject to certain restrictions) remand the accused to custody,^ but he may at any stage, even after committal for trial, take bail for his reappearance, except upon a charge of treason.^ The powers previously enumerated may be exercised by a single justice or by two or more in conjunc- tion." Besides these functions as committing magistrate, a justice of the peace may be called upon to perform an almost count- less number of acts of a purely administrative character. He may, in conjunction with another justice, order the destruction of an injured or diseased animal,-'' commit a neglected child to 1 Justices Act 1890, § 39. = § 40. ^ § 44. 4 § 43, ■' Ibid. 6 § 56. ' §§ 45, 46. ^ 1 50. * §§ 29 (6) and 51. The power to admit to baU extends even to the case of a person found guilty by a coroner's jury of manslaughter or arson (Coroners Act 1890, § 12). " § 29. " Animals Act 1890, § 15, and Stock Diseases Act 1890, § 70. 356 MAGISTRATES' COURTS part iv the care of the Department for Neglected Children or of a private person/ order a husband to pay money for the support of his deserted wife,^ visit and examine gaols,^ decide, in certain cases, as to where bridges over drainage works are necessary,* apprentice orphan or deserted children,^ order the return of any seaman who has deserted from a foreign vessel,'' direct a search for runaways on the complaint of the master of such vessel,'^ command the dispersion of an unlawful assembly,^ or arrest a person suspected of being a foreign criminal.^ &. As a judge or magistrate in Petty Sessions. A court of Petty Sessions is an open court, constituted by two or more justices, a single police magistrate,^" or (where the parties con- sent in writing), a single justice.^-^ Courts of petty sessions are held at places and times fixed by the Governor in Council.-'^ At present there are about 240 of such places in Victoria.-'^ Every Court of Petty Sessions has a clerk attached to it, whose duty it is to keep the register of the proceedings of the Court, and conduct its formal business.^* Besides the powers conferred on it by special statutes, a Court of Petty Sessions has jurisdiction in the following cases — 1. Offences made punishable on summary conviction. 2. All eases of assault where the damages claimed do not exceed £50. 3. Claims for the restitution of goods alleged to be illegally detained, where the value of the goods does not exceed £50. 4. Actions for " civil debts recoverable summarily," where the sum claimed does not exceed £50. (Under the head of "civil debts recoverable summarily" are specified a large number of cases which do not, as a rule, involve much dispute as to facts.) 5. Enforcement of fines and penalties recoverable before one or more justices, where no special provision is otherwise made for their enforcement. 15 1 Neglected Children's Act 1890, §§ 20 and 63. 3 Marriage Act 1890, § 43r s Qaojs ^^^ 1890, § 19. » Water Act 1890, § 72. ^ Master and Apprentices Act 1890, §§ 6 and 11. « Seamen's Act 1890, § 6. "> Ibid. § 9. 8 Unlawful Assemblies and Processions Act 1890, § 6. 9 Crimes Act 1890, § 370. ^'' A police magistrate is an official under the Public Service Act, having special qualifications (Public Service Act 1890, § 9). No special- statutory power is needed for the creation of the office {Ex parte Hargraves 1 A. J. E. 23). A police magistrate alone may, as a rule, do whatever two justices are authorised to do (Justices Act 1890, § 63). There are at present twenty-three police magis- trates in Victoria {Year Book of Australia 1890, p. 613). " Justices Act 1890, § 68. ^^ § e2. i3 year Book of Australia 1890, p. 609. " Justices Act 1890, §§ 64, 65. is § 59. CHAP. XLi PETTY AND GENERAL SESSIONS 357 But the following cases are expressly excluded from its jurisdiction — 1. Civil cases in which a county court has not cognisance for the same cause. ^ 2. Cases involving title to land.^ Procedure is by information and summons,^ and the order of the court may be enforced by warrant of distress or commit- ment issued by a single justice,* or by an attachment of debts,^ except that a warrant of commitment cannot issue to enforce a " civil debt recoverable summarily." " But in all matters involving the payment of a fine of £5 or damages for assault or for trespass by cattle, or involving immediate or contingent imprisonment, an appeal lies from the Court of Petty Sessions to the next practicable court of General Sessions of the Peace.'' And, after notice of such appeal, by consent of the parties and an order of a judge of the Supreme Court, a case may be stated for the opinion of the Supreme Court, the parties agreeing that a judgment in accordance with such opinion shall subsequently be entered at the sessions.^ A judge of the Supreme Court may also, on the application of any person injured by a summary conviction or by any order or warrant of a court of petty sessions or a justice, issue an " order to review," calling on the other parties and (if he shall think fit) the justice or justices involved, to show cause why the proceed- ing should not be reviewed.^ An appeal lies from the refusal of a single judge to the Full Court,^" and, in any case, the return of the order takes place before the Pull Court, which may confirm, quash, or vary the proceeding complained of" The justices whose decision is questioned may file explanatory affidavits.''^ c. As a judge or magistrate in General Sessions. There is a court of General Sessions of the Peace, which corresponds with Quarter Sessions in England,^^ for every bailiwick, and sessions are held at twenty-eight places provided by statute," at times directed by the Governor in Council.^^ To each court of General Sessions is attached an official, known as the " clerk of the 1 Cf. ante, p. 351. ^ Justices Act 1890, § 69. ^ § 73, § 90. 5 § 116. 6 I 59 (4). 7 § 127. 8 § 137. » § 141. 1" § 142. " § 146. " §§ i49_ 150. 13 § 174. " Sched. 4. i« § 176. 358 MAGISTRATES' COURTS part iv peace," appointed by the Governor in Council, who issues process, arraigns prisoners, records verdicts, judgments, and proceedings, enters appeals, files convictions, and generally conducts the ministerial business of the court.-' The only essential member of the Court of General Sessions is the chairman, who is a specially qualified official appointed by the Governor in Council ; but any one or more ordinary justices having jurisdiction within the bailiwick in which the court is held, may sit with him.^ In civil matters, the court may hear all appeals, and take cognisance of all matters cog- nisable by the appellate jurisdiction of courts of general and quarter sessions in England.^ In its criminal capacity, it may try all indictable offences within its bailiwick, except about twenty from the more serious classes of crimes.* Criminal trials at General Sessions are held before juries of twelve.^ Finally, we may notice the special protection extended to magistrates and their officials in the discharge of their duty. Every action brought against a justice for any act done in the execution of his duty, may be met by a plea of " not guilty by statute," and if, after such a plea, the plaintiff fails to prove that the act was done maliciously aind without reasonable and probable cause, judgment must be given for the defendant.^ But even if the act complained of was irregular, the complainant must first proceed to have it quashed by General Sessions or the Supreme Court,^ his action must be commenced within six months after the act complained oif and before commencing it he must give one month's notice in writing to the defendant, stating the ground upon which he intends to bring the action.' Moreover, such action can only be brought in the Supreme Court, and the defendant may tender amends before action or pay money into court after action commenced, and if the plaintiff does not recover more than the sum tendered or paid in, he is mulcted in costs.'"' Similar provisions apply to actions against any officers of General Sessions, except that an action against a clerk of the peace must be commenced within four months after the happening of the cause of action.^^ These special provisions, moderate as they are, form one 1 Justices Act 1890, §§ 181, 182. = §§ 178, 179. ' § 178. * § 179. 5 Juries Act 1890, § 37. « Justices Act 1890, § 155. ' § 157. » § 134. 8 Ibid. 10 § 166. 11 §§ 164, 171-173. CHAP. XLi SPECIAL PROTECTION TO MAGISTRATES 359 of the most important exceptions to the widely-accepted rule of English Constitutional Law, that a government official is liable for the consequences of his unlawful acts in precisely the same way as a private citizen. They are admitted, doubtless, out of consideration for the honorary character of the office of justice, and the extreme difficulty of mastering the whole of its duties. CHAPTEE XLII COURTS OF MINES " Within and for " every Mining District there is a Court of Mines, which is held at such times and places as are appointed hy the Governor in Council.^ Judges of County Courts are ac officio judges of all Courts of Mines in Victoria,^ and, as a matter of fact. Courts of Mines are generally held on the same days and at the same places as County Courts.^ Owing to the peculiar wording of the legislation on the subject, it is some- what difiScult to pronounce whether Courts of Mines are strictly local courts, but there can be little doubt that a Court of Mines is primarily intended to confine itself to matters arising within its own district.* It is, however, expressly provided that a judge of such a Court may sit outside its territorial hmits.^ Besides its judge, each Court of Mines has its clerk, with assistant and deputies, who issue process and keep accounts of the court fees, and generally act under the direction of the judge, and also a bailiff and his deputies, who attend the sittings of the Court, and serve and execute its process.® Each clerk and baUiff gives security for the performance of his duties, and the functions of clerk and bailiff may not be performed by the same person.' Clerks and baihffs of Courts of Mines are protected against vexatious proceediags in the same way as registrars and bailiffs of County Courts.^ Apart from the question of locality, the jurisdiction of a Court of Mines extends generally to all questions and disputes 1 Mines Act 1890, § 115. ^ County Court Act 1890, § 11. '^ Tear Boole of Australia 1890, p. 604. " Mines Act 1890. Compare §§ 135 and 310, etc. ^ § 118. « §§ 120-126. '' §§ 127, 128. 8 1 129. Ante, p. 350. CHAP. xLii JURISDICTION OF COURTS OF MINES 361 of law or equity arising between miners in relation to mining on Crown Lands, and particularly to questions concerning — 1. Claims by virtue of miners' rights or licences to the user of Crown Land or the user or sale of water thereon. 2. Trespass to or ouster of such claims. 3. Contracts and partnerships for the conduct of mining operations on Crown Lands. 4. Mortgages or charges of mining property. 5. Boundaries of mining property.^ Moreover, it has jurisdiction to award compensation to owners of private property whose lands have been claimed for mining purposes.^ Within the scope of its jurisdiction, a Court of Mines acts both as a Court of First Instance and as a Court of Appeal from the Warden of the District.' But where in an action of debt or contract which could have been brought in the Warden's Court, the plaintiff does not recover more than £100, he cannot recover more than the costs which would have been payable in the Warden's Court, unless the judge of the Court of Mines issues a special certificate.* Subject to this limitation, however, a Court of Mines has, when acting within its jurisdiction, all the powers of the Supreme Court in analogous cases, includiag the power to grant a warrant of possession.^ But the form of proceedings is similar to that in use in the County Court, except that in all cases either of the parties, as well as the judge, may require the trial of any question of fact by a jury of six assessors." The decree or order of a Court of Mines is enforced by execution against the property,^ and any person failing to pay money directed by it may be summoned and examined as to his assets, with liability to imprisonment if he fail to attend.^ Moreover, the Court may grant injunctions, appoint managers of undertakings, and provisional guardians of lunatics against whom it is desired to take proceedings.^ And bailiffs of Courts of Mines must execute the decisions of Wardens, duly certified to them.^° Finally, an appeal lies from the decision of a Court of 1 Mines Act 1890, § 135. 2 g ^^l. ' § 254. For the powers of this official, cf. arde, pp. 347, 348. « Mines Act 1890, § 218. ^ § 135, 6 | 172. 7 § 183. 8 §§ 185, 186. 9 §§ 175, 198, 205. i» § 242. 362 COURTS OF MINES part tv Mines to the Full Supreme Court, either by way of special case stated by the judge himself, or by way of substantial appeal from his decision.^ But unless the proceeding is an appeal from an order of the Court of Mines granting a rehearing bejfore itself (which it is competent to make ^) the appellant must give security for the costs of the appeal.^ The Full Court may either affirm, reverse, or vary the decision appealed from, or may direct a rehearing before the Supreme Court,* and in either case the result is transmitted to the clerk of the Court from which the appeal is brought, and is binding on it.^ 1 Mines Act 1890, §§ 209, 210. ^ § 207, 208. 3 § 210. * § 211. 5 § 213. CHAPTEE XLIII ON THE LEGAL EELATIONS BETWEEN THE CENTRAL AND LOCAL GOVERNMENTS Hardly less important than a clear understanding of the dis- tinction between central and local government, is a knowledge of the links which bind the two together. For the balance of power, which gives so much of its character to the tone of governmental functions as a whole, is decided almost as much by the nature of these relations as by the comparative strength of the two authorities. In Victoria, it is not difficult to trace the nature of these links. In every important point the relation between the central and local authorities is that of master and servant. Hence the overwhelming power of central machinery, and the overwhelming importance of the seat of central government. In the earlier chapters of this book, we have seen how it was that the scheme of government in Victoria naturally assumed this aspect. We have now to notice how it is practically exemplified at the present day. There are three principal ways by which the central government acts upon a local authority ; viz., by control of local legislation, by appointment of local officials, and by disposal of public funds. In the first place we have noticed^ that a municipal by-law may be repealed, without reason assigned, by order of the Governor in Council, that is, by the executive authority of the central government. This power of the Governor in Council extends not only to cases in which the municipal legislature 1 Ante, p. 335. 364 CENTRAL AND LOCAL GOVERNMENT part iv has exceeded its powers in passing the by-law, but also to cases in which the central authority differs from the local in a matter within the legitimate scope of the latter's action. But in the former class of cases, where the municipal legislation is clearly illegal, the initiative may also be taken by a private person, without waiting for an actual case. And the central judicial authority, the Supreme Court, may declare the legisla- tion in question to be illegal and null. The example of the mining boards is still clearer. For here no enactment of the local authority is even frimM facie binding until it has been certified as legal by an officer of the central authority ; and, even when fully in action, a miuing by-law may be revoked by the Governor in Council, upon the application of an objector. And of course it is perfectly lawful for the central authority, by the exercise of its own legislative power, not merely to alter and repeal all local legislation, but even to abolish or reform the local authority itself. Doubtless there was once a time, in England, when such a claim on the part of the central authority would have been met by a plea of ultra vires. But the time for that plea has long since passed, even in England. And it has never existed in Victoria. From the very beginning of Victorian history, local authorities have been the creatures of and controlled by the central legislature. Secondly, the central government controls the local by the appointment of officials. It is true that municipal officials are, for the most part, appointed by the councils, or elected by the ratepayers, the principal exception to this rule being in the case of the auditors who are appointed by the Governor in Council to audit the municipal accounts. But even in the case of the locally appointed officials, the central authority reserves the power of deciding upon the legality of their ap- pointments, and in some instances of pronouncing upon their, professional capabilities.^ And, as we have just seen, the officials of the mining districts are almost wholly appointed and paid by the central government, and are, therefore, primarily accountable to the central authority for their actions. Their tenure being the ordinary official tenure, in the event of- their acting in accord- 1 Ante, p. 346. CHAP. XLiii CONTROL OVER THE LOCAL AUTHORITIES 365 ance with the wish of the local in opposition to that of the central authority, they can be dismissed by the latter. In the department of local judiciary, the influence of the central authority is even more abundantly clear. There are no municipal courts of justice, as there are in England. Every judge, every magistrate, who dispenses justice in the districts, is directly appointed by the central power, with the single exception of the chairmen of the municipahties ; and when it is remembered that a single ordinary justice cannot act judicially without the consent of the parties, it will be understood that even the local administration of justice is in the hands of the central power. Nor is it unimportant to remember that the agents of justice, the police force, are entirely a central body. But finally, it is perhaps ia the matter of public monies that the central authority keeps the most effective control over the localities. The local authorities have always looked to the government at Melbourne for pecuniary assistance. From the days when it was attempted to force District Councils into existence by a promise of a share in the Crown Land Eevenue, down to the wholesale endowment of municipalities in 1874, there has been a uniform system of subsidising which has at length grown into a habit. But no less marked than the fact itself has been the manner of its treatment. The municipalities have not been invested with the unalienated land within their limits, nor with the revenue from forests, rivers, or mines within their districts. It is true that they have been empowered to tax their constituents, and to borrow money on their property. But a municipality which relies entirely upon its ordinary revenue is still a rarity, and the endowment which it obtains from the central authority is given in the most paternal way, by cash subsidy dependent upon the happening of certain conditions, as may be seen by any one who chooses to read the annual Appropriation Acts.^ Doubtless there have been good reasons for this practice, but its influence upon the munici- palities has been very marked, in a want of public spirit, an absence of sense of responsibility, a hungering after a division of the spoil, and a feeling of dependence upon the central authority. It is, however, as the prime cause of the last effect, that we have to notice it here. • The expenditure of the Railway Fund, of course, also acts in the same way. CHAPTEE XLIV ATTEMPTS TOWARDS A FEDERAL UNION We have seen that when the colony of Victoria was first con- stituted, by separation from New South Wales, there was a definite attempt by the Colonial Office to establish a federal executive for Australia, in spite of the fact that the Imperial Parliament had deliberately refused to create a federal legis- lature. We have seen that this attempt came to nothing, although traces of it remained until the year 1861. We have seen also that no attempt was made by the Imperial or the Victorian legislature to revive the subject on the grant of Eesponsible Government to the Australian colonies ia 1855. But the matter was taken up with considerable energy by the colonies themselves shortly after the latter date, and a brief outline of the more important stages in the progress of the movement, which has to a certain extent become law, may here be given. On the 16th January 1857, Mr. Gavan Duffy moved in the Legislative Assembly of Victoria for the appointment of a committee to consider and report upon the necessity for a federal union of the Australian colonies for legislative purposes.^ After eight months, the committee presented a report,^ which recommended that the colonies of New South Wales, South Australia, and Tasmania should be invited to send delegates to a conference which shoidd settle all preliminary questions as to the line of action.^ On the very day that this report was presented, viz. the 9th September 1857, the Governor laid on the table of the Assembly a despatch from the Secretary of ' r. and P. of Leg. Ass., 1856-57, sub date. 2 Ibid. vol. iii. p. 141. 3 Ibid. 9th September 1857. CHAP. XLiv THE MOVEMENT IN i860 AND 1870 367 State for the Colonies, enclosing copies of correspondence which showed that influential Australians in England were urging the Imperial Government to take up the matter once more.^ Thus encouraged, both Houses of the Victorian Legislature agreed to the recommendations of the committee's report,^ and early in the following session it was announced that !N"ew South Wales and South Australia had definitely given in their adhesion to the scheme,^ whilst Tasmania, two months later, forwarded an equally decided assent.* Shortly after these events, viz. in the year 1859,^ the new colony of Queensland was created by separation from New South Wales, and the need for federal union became increasingly evident. On the 3d May 1860, the Legislative Assembly of Victoria, acting on the report of a new committee, recommended that the new colony be invited to join in the arrangements," and before the close of the year the invitation had been cordially accepted by the Queensland government.'^ In the year 1862, a communication was received from Tasmania, to the effect that the Tasmanian delegates to the conference had been actually appointed,^ and thereupon both Houses of the Victorian legislature agreed to communicate with the other colonies, with a view of securing a general nomination of representatives.^ But here the matter seems to have halted, until, in the first session of 1870, a new committee was appointed, again on the motion of Mr. Duffy, who had been persistent in his efforts to secure consideration of the subject.^" The committee had barely time to recommend the appointment of a Eoyal Com- mission, when the session came to an end." The suggestion was however adopted, and in the second session the Commission presented a report which recommended permissive legislation, 1 Copies in V. and P. (L. A.), 1856-57, vol. iv. p. 1385. ^ Ibid. 15tli September and 17th November 1857. = Copies of correspondence in V. and P. (L. A.), 1857-58, vol. i. p. 661. ^ Ibid. i. 395. " By Letters-Patent and Order in Council of 6th June 1859, confirmed by Imperial Statute, 24 & 25 Vic. 0. -44. 6 V. and P. (L. A. ) 1859-60, 3d May. ' Copy correspondence in V. and P. (L. A.), 1860-61, vol. i. p. 561. 8 Copy in ibid. 1861-62, vol. i. p. 779. ^ Ibid. 17th June 1862. 1" V. and P. (L. A.), 1870, 1st Session, 2d June. " Copy Report in ibid. vol. i. p. 855. 368 ATTEMPTS TOWARDS FEDERAL UNION part iv enabling such colonies as might think fit to do so, to enter into arrangements for concerted action. The majority of the com- missioners also made a somewhat startling suggestion, to the effect that each colony should be allowed to exercise treaty- making powers on its own behalf.^ Conferences on various topics of intercolonial interest were from time to time held, subsequently to this date. One con- ference which sat in Melbourne in the year 1880, comprised representatives from New South Wales, Victoria, and South Australia, and discussed a large number of important subjects, including an uniform tariff, a general Australian Court of Appeal, and the immigration of Chinese.^ On its adjournment to Sydney, the conference was strengthened by the adhesion of the colonies of Queensland, Tasmania, Western Australia, and New Zealand.^ The adjourned conference then agreed to the form of bills for the establishment of an Australasian Court of Appeal, and for the execution of intercolonial warrants of apprehension.* New South Wales and Victoria also agreed (with exception of details) on one BiU to restrict the influx of Chinese,* and four other colonies to another,® for the same pur- pose. And all the colonies, except Western Australia, agreed to a strong protest against the action of the government of that colony in encouraging Chinese immigration.'^ But the Imperial Government decHned to interfere with the action of Western Australia,^ and the conference itself failed to agree upon the terms of a Federal Council Bill.* At last, however, a convention which met in Sydney at the close of the year 1883, and in which all the seven colonies of the Australasian group were represented,^" succeeded in pro- ducing definite results. The immediate incentives to the meeting were the apprehended designs of the French Eepublic in the New Hebrides, and the action of the Queensland Government in opposition to them. But although much interest was dis- 1 Copy in V. and P. (L. A.), 1870, 2d Sess., vol. ii. p. 467. 2 V. ami P. (L. A.), 1880-81, vol. iv. p. 293 (Minutes). 3 Ibid. p. 417 (Minutes). * Ibid, pp. 439-449. « Ibid. p. 451. 6 V. and P. (L. A.), 1880-81, vol. iv. p. 455. '' Ibid, p.' 477 (copy). 8 V. and P. (L. A.), 1881, vol. ii. p. 317. » V. and P. (L. A.), 1880-81, vol. iv. p. 459. " Sir "William des Voeux, governor of Fiji and High Commissioner of the "Western Pacific, was also admitted at his own request. {Report of the Australasian Convention of 1883, p. 3.) CHAP. XLiv THE FEDERAL COUNCIL ACT 369 played in this question, and resolutions upon the subject were arrived at, the chief importance of the convention for our immedi- ate purpose is that it agreed to the terms of a Federal Council Bill, which, with some alteration, ultimately became the law of the Empire.^ More than eighteen months elapsed before this re- sult was accomplished, but in August 1885 the "Federal Council of Australasia Act 1885 " received the Eoyal Assent.^ In its terms it is a purely permissive measure. It provides that there shall be a Federal Council, so soon as four of the Australasian colonies shall have agreed to join it in manner provided by the Act.^ But the joining of any colony is entirely within its own option, and a colony which has once joined may withdraw, though remaining subject to the federal legislation which affected it as a member of the Council, until such legis- lation is altered or repealed by the Council itself* Each self- governing member of the group is entitled to send two repre- sentatives, each Crown colony one.^ The manner of choosing and the tenure of representatives is left entirely to the legis- lature of the colony in each case.® When once constituted, the Council must sit at least once in every two years, being summoned by the Governor of the Colony in which it has itself decided to hold its next session. '^ But special sessions may be called at any time upon the request of the Governors of three colonies, to deal with matters speci- ally mentioned in the convening proclamation.* The Council is competent to proceed to business if a majority of the whole number of its members, representing a majority of the colonies with respect to which the Act is iu operation, are present, not- withstanding any vacancy in the representation of a colony.* Questions are decided by the votes of members taken mritim, the president, who is elected each session, having an ordinary (as well as a casting) vote.''" ' The chief alterations are in §§ 20 (addition) and 31 (entirely new). There was very little discussion on the measure iu the Imperial Parliament. " 48 & 49 Vio. 0. 60. ^ §§ 2 and 30. « § 31. ' § 5. At the request of the " legislatures of the colonies," Her Majesty may, hy Order in Council, increase the number of representatives of any colony. (Does this mean at the joint request of all the colonial legislatures ? Cf. § 1). A "Crown colony " is defined as " any colony in which the control of public officers is retained by Her Majesty's Imperial Government " (§ 1). 1 § 6. ' §§ 4 and 11. ' § 11. 9 §§ 10 and 13. " §§ 12 and 13. 2 B 370 ATTEMPTS TOWARDS FEDERAL UNION part iv The authority of the Council is almost purely legislative, and extends to the following matters — (i.) The relations of Australasia with the islands of the Pacific. (ii.) Prevention of the influx of criminals. (iii.) Fisheries in Australasian waters beyond territorial limits. (iv.) The service of civil process of an Australasian court out of the jurisdiction of its own colony, (v.) The enforcement of judgments of courts of law of aiwj colony beyond the limits of the colony. (vi) The enforcement of criminal process beyond the limits of " the colony " in which it is issued, and the extradition of offenders. ^ (vii.) The custody of offenders on board ships belonging to the Colonial Governments beyond territorial limits, (viii.) Any matter which at the request of "the legislatures of the colonies " Her Majesty may refer to the Council. (ix.) Any matter " of general Australasian interest " upon which the various colonial legislatures may legislate within their own limits, and which has been referred to the Council by the legis- latures of any two colonies. (x.) Questions relating to any two or more colonies or their relations with one another, which the governors of these colonies, upon an address of the legislatures of such colonies, shall refer to the Council.^ But every bill passed by the Council must be presented for the Eoyal Assent to the Governor of the colony in which the Council is sitting, who may assent to, refuse, or reserve the measure, or suggest amendments in it.^ The assent to a reserved bUl must be notified to the Council or proclaimed in the colonies affected within one year from its receipt by the Home Government, and, within a similar time, a measure to which the Governor's assent has been given may be disallowed.* When duly assented to, the Acts of the Federal CouncU have the force of law, and override colonial enactments, throughout the colonies represented, except in the case of legislation on matters specially referred by the legislatures,^ which binds only the referring colonies and those which sub- sequently adopt it.® Moreover, the Federal Council may make representations to Her Majesty on matters of general Australasian interest, or 1 Does this mean any colony, or only a colony within the Australasian group ? There is no definition of "colony" in the Act. 2 48 & 49 "Vic. c. 60, §§ 15 and 16. ' § 17. Every bill on subjects 1, 2, and 3 imu^ be reserved, unless previously approved of by Her Majesty. * §§ 18 and 19. " § 15 (i). « §§ 20, 22. CHAP. XLiv ADOPTION OF FEDERAL COUNCIL ACT 371 on the relations of the colonies with the possessions of foreign powers.^ The Federal Council Act was adopted by Victoria, as from the 9th December 1885, by the (Victorian) Act 49 Vic. No. 843. This statute provides that the representatives of Vic- toria in the Council shall be appointed and removed by the Governor in Council. They must be members of Parliament, and, where practicable, Eesponsible Ministers of the Crown.^ Their appointments, resignations, and removals must be noti- fied by message to both Houses of Legislature within fourteen sitting days from their taking place.^ No matter is to be referred from Victoria under the provisions of the Federal Council Act, except by Act of the Parliament of Victoria.* The necessary preliminaries having been complied with, the Federal Council held its first session, at Hobart, in January 1886. On this occasion Victoria, Queensland, Tasmania, Western Australia, and Fiji were represented.^ At the second session, held in 1888, Fiji did not appear. At the third, in 1889, Fiji was still unrepresented, but South Australia appeared.* The Council has passed a few Acts, the most important, per- haps, of which are the 49 Vic. No. 3, on the subject of the service of civil process out of the jurisdiction of the court issuing it, and the 49 Vic. No. 4, the "Australasian Judgments Act 1886." By an Act of the year 1889, Victoria has also referred to the Federal Council the following subjects — (i.) The laws relating to letters-patent, (ii.) The naturalisation of aliens of European descent, (iii.) The status of corporations and joint stock companies, (iv.) The recognition in other colonies of orders and declarations of the Supreme Court in matters of lunacy, (v.) The compulsory production to the Supreme Court of documents or property required for the purposes of proceedings in the Supreme Court of any other colony.^ There has been one meeting of the Federal Council since this Act was passed, but only one step was taken to give effect to it. ' 48 & 49 Vic. c. 60, § 29. = 49 Vic. No. 843, § 3. ' § 4. * § 6. Presumably this section cannot limit the powers conferred on the Governor by the 16th section of the Federal Council Act, but it ■will be noticed that those powers must be exercised with the advice of the Executive Council (§1). ^ Cf. volume of Votes and Proceedings. ' South Australia has since withdrawn. ' 53 Vic. No. 1002. 372 ATTEMPTS TOWARDS FEDERAL UNION part iv And it has been very generally felt that the Federal Council can, at the best, only be regarded as a step in the direction of union. There are two main objections to it as a federal organ. In the first place, its membership is purely optional. Not only may any colony refuse to join, a power which has been used by the great colony of New South Wales, the mother of four members of the group, but any member which is opposed to any proposal, however vital to the interests of the others, may cripple its prospects of success by withdrawing from the union. It is not surprising, therefore, to find that the matters with which the Federal Council has hitherto dealt have been those only of second-rate importance. But, in the second place, the absence of an executive and a judiciary of a federal character leaves the Council in the position of a limbless trunk. The Acts of the Council are, doubtless, binding upon the executive officials and the courts of the various colonies represented in it, and so long as there is but little difference of opinion upon the subjects with which it deals, these agents are doubtless sufficient. But, in the event of a real conflict of views between one colony and another, it is too much to assume that the machinery of a colonial government would be promptly and effectively used to enforce legislation of which it did not approve, and which, possibly, had been passed at the suggestion of its rival. And, even in times of harmony, the absence of a revenue and visible engines of power must tend greatly to weaken the influence of any legislative body.^ It is not surprising to find, therefore, that a very decided movement in favour of a closer union is on foot. As is well known, a conference met at Melbourne in February 1890, to consider the preliminaries of a new attempt. All the Australasian colonies, with the exception of Fiji, were repre- sented, and if cordiality of expression go for anything, the prospects of ultimate success are good. The conference did very nearly all that it could do. It thoroughly and openly debated the whole subject in a session of several days' duration, and ultimately adopted resolutions binding its members to use their efforts to procure the immediate appointment by their ^ As a matter of fact, the term Federal Council is misleading. The union at present existing is one of the rare examples of Confederation now surviving. CHAP. XLiv PROBABILITIES OF FEDERATION 373 various legislatures of delegates to a Constituent Convention.-' Most of the colonies have already appointed their representa- tives, and it is generally anticipated that the Convention will meet early in the year 1891.^ It is, however, to be noticed that New Zealand, though in the most friendly way, has intimated clearly that she will be unable to join a union at the present time. If it is accomplished, the Federation will, for the present at least, be Australian, not Australasian. Meanwhile; it may be permissible to point out, that if the Australian colonies accomplish federation under existing cir- cumstances, they will succeed in a political experiment for which there is practically no precedent in modern times. All through modern history there has been one and but one determining cause of political union between communities — physical force, or the fear of physical force. In Switzerland, Germany, Austro-Hungary, Sweden and Norway, the United States of America, Canada, Mexico, Central America, the tale has been always the same. No community has consented to link its fortunes with the fortunes of another, save when in- stigated by fear of violence from that other or a third power. Many attempts have been made on other grounds, many other excellent motives have suggested themselves to thinking men. But the determining cause, the dead lift over the hill, has always been force or the fear of it. It is curious to notice how, even in the history of Australia, the same factor has been potent. Three times before this the Australian colonies have made distinct efforts towards union. The dates of these efforts are, as we have seen, 1856 and the following years, 1870, and 1881-3. Which three dates coincide with the Crimean War, the Franco-Prussian War, and the real or fancied aggressions of France in the New Hebrides. And even the present attempt, though not directly due to fear of aggression, and on that account the more remarkable, is still largely due to miUtary circumstances. A reading of the correspondence which led to it shows clearly that the occasion, at least, of the Federal Con- ference of 1890 was suggested by the report of Imperial experts on Colonial defences. 1 Cf. report of proceedings presented to Victorian Parliament. - The Convention has now (August 1891) become a thing of the past. Some account of its proceedings will be found in Appendix D. 374 ATTEMPTS TOWARDS FEDERAL UNION part iv It is not surprising that it should be so. Every community contains many persons whose importance and, possibly, emolu- ments, may be lessened by any surrender of its independence. Those who are responsible for a particular policy fear for its continuance under the new rigime. Those who are now supreme may, after union has come, be subordinate. Some of their most cherished prerogatives may disappear. The gain of the community may be their personal loss. So long as the community is apathetic, the influence of these men is naturally great. And the community is busy about other things, and prefers to shut its eyes to dangers ahead, until an appeal to its physical fears arouses its attention. Then, if the danger is vivid enough, the community insists upon the obstacles being removed. If the French fleet were once to strike a successful blow against the English on the great ocean highways, the Federal Union of Australia would be accomplished in three months. If no such event happens, it may not be realised for thirty years. And yet it would indeed be a rash thing to say that this long delay must intervene. It is true that the AustraUan colonies are attempting a task which is almost without pre- cedent. But it will not be the flrst experiment in pohtics which some of them, at least, have made. To say nothing of the ballot system, which, in addition to the doubtfulness of its utility, labours under the disadvantage (in this respect) of ancient precedents, we may point to the fact that Victoria, South Australia, and New Zealand are engaged in the unpre- cedented task of building up an extensive social, political, and industrial fabric on the unalloyed basis of voluntary labour. If they succeed in doing this, in an age remarkable above all things for the migratory character of its manual labourers, but remarkable also for the revolutionary tendencies of its theories on the subject of labour and employment, they wiU indeed inaugurate a new era in the world's history, and establish a claim on mankind, as the solvers of one of the most perplexing of the problems of the age. If they succeed here, they will without doubt succeed in the far easier task of accomplishing federal union. CONCLUSION When a work of any kind has been well performed, it seems almost ungracious to criticise the machinery which has been used in its performance. But the ungraciousness is more apparent than real. If men are brought face to face with an undertaking, the essential parts of which must be accomplished at once, they naturally seize the first accessible tools and endeavour to make them suffice. As the extreme urgency of the case disappears, they are glad to use improved machinery to complete and maintain their undertaking, machinery which obviates the necessity for the waste of labour attendant upon imperfect methods. And they will then hardly be prepared to find fault with a friend who ventures suggestions in this direction ; still less to quarrel with him for simply speculating as to their future course of action, without desire to influence it. When the founders of the Victorian political system took upon themselves the task of organising the colony upon a self- governing basis, they had no time to spare for choice of methods. The exigencies of the situation were so acute, that they simply seized the nearest implements, and fell to work. The pressure of circumstances sharpened their faculties, and the result of their labours was effective for existing circumstances, if not finally complete. But this is not to say that, upon reflection, they would have maintained the supreme fitness of the methods employed for the task in hand. As a matter of fact, their scheme was adopted nearly en hloc from EngUsh politics, and few persons who live under it (so powerful is the infiuence of association) realise how very peculiar that scheme is. The Cabinet system, which was the real result of the grant 376 CONCLUSION of Eesponsible Government in 1855, is a purely English pro- duction, and, unlike some other English discoveries in politics, has made very little way outside the Empire. It is commonly supposed that all countries which have adopted a representa- tive parliament, based on English models, have also adopted the Cabinet system. No belief could be more misleading. The United States of America, Federal Germany, Austro- Hungary, Spain, Italy, Belgium, Switzerland,^ possess repre- sentative assemblies, under one name or another, and these representative assemblies have generally some machinery for attacking single members of the executive who actually infringe the law. But this is a very partial imitation of Cabinet government ; and even in France, Holland, and Swedo-Norway, where English ideas are more nearly reproduced, the system cannot be said to be an unalloyed success. On the other hand, Cabiaet government has been the universal ambition of the English-speaking dependencies of the British Empire. In Canada, Cape Colony, and Australasia, a grant of self-govern- ment has always meant the Cabinet system. It will be worth while to look for a moment at the nature of this pecuUar scheme of government. I think it not too much to say, that, for the Cabinet system to work, not perfectly, but at all, three conditions must be present. And if we look at the historical origin, as well as the present circumstances of Cabinet government, we shall see that these conditions were present at the time of its appearance. In the first place, to constitute a Cabinet, it is necessary to have a number of of&cials accustomed, from social or political causes, to act together. In other words, every successful Cabinet must contain the principle of cohesion. This was, in effect, the great difficulty in the way of the introduction of the Cabinet system. William III. wished to entrust the govern- ment of the country to the most distinguished men of all opinions and connections. But events were too strong for him, and it is one of the most interesting studies in modern history to watch how, in the closing years of the seventeenth century and the beginning of the eighteenth, government gravitated, ^ I do not, of course, suggest that Switzerland boiTowed her representative institutions from England. But, in most of the other cases I have named, Eng- lish influence is apparent. PECULIARITIES OF THE CABINET SYSTEM 377 by an irresistible tendency, into the hands of a body of men allied by social and political ties. The family relationships of the Churchills, Spencers, and Godolphins, of the EusseUs and Montagus, the "Walpoles and Townshends, the Carterets and Pettys, the Pitts, GrenviUes, and Wyndhams, often decided the composition of Ministries during the eighteenth century. It is even said that Cabinet government grew out of the practice of weekly dinners, initiated by a famous statesman. But, in a more moderate way, it may safely be alleged that the process of forming a Cabinet in early days often resembled the division of a great estate amongst the various branches of a family, rather than the construction of a national government. In the second place, the Cabinet system could hardly have been evolved without the existence of clearly-defined parties, divided by sharp and unmistakable barriers. During the critical period of its evolution in England, this clear distinction existed. The Whigs were pledged to the parliamentary suc- cession, with freedom of worship and press, and other sub- stantial political ideas. The Tories were really Jacobites, and, in their hearts, abhorred the Eevolution. Each Ministry knew that its conduct was being watched by jealous opponents, and that its failure meant, not merely expulsion from ofi&ce, but possibly proscription or banishment. Thus the principle of Ministry and Opposition, based on real differences of ideas and hopes, was firmly established. Without this principle, the Cabinet system, as we know it, could not have been produced. And, thirdly, it was necessary that there should be in existence a strong body of received tradition upon political conduct. It has been so often pointed out that the Cabinet system depends entirely on the observance of maxims which are never enunciated in legal form, that I need not dwell on the subject. But I may remark that one cardinal maxim of this tradition, the maxim of deference to the opinion of Parliament, had been generated in the minds of the eighteenth-century statesmen by a series of events so striking as to leave no room for misapprehension. The men who wished to avoid the fate of Strafford and Laud had to follow the example of Finch, Windebank, and Clarendon. In other words, an unpopular minister offered resignation to avoid impeachment, and, as the punishment was less, it was the more readily demanded. It 378 CONCLUSION required conduct so bad as to be almost criminal to found an impeachment. But mere errors of judgment soon came to be looked upon as necessitating a resignation. "We see, then, that Cabinet government grew out of a com- bination of three special conditions — the presence of groups of influential ofiicials accustomed to act together both in society and politics, the existence of strongly- defined parties and policies, and the habit of deference to political tradition. If we turn to Victoria at the present day, we shall hardly find these conditions existent there. In the first place, the element of cohesion is wanting. It is true that there are now a large number of persons who have been born in the colony, and that the vast majority of immi- grants come either from the British Islands or other Australian colonies. But, within these limits, there is practically no end to the diversities of habit, education, mode of thought, and lineage which exist. If there is one feature more striking than another about Victorian society (in its largest sense) it is its atomic character. Men come and they go. They are thought nothing the worse of for being new men, and hardly the better for being old. A very few families have branched out and intermarried with each other, but the extent of genealogic society is very small. LocaKty, also, is a far less powerful element of cohesion than in older countries. Amongst immi- grants, it is natural that it should be so. They who have crossed twelve thousand miles of sea will not shrink from leaving their abodes in the land of their adoption. And, even amongst natives, it is at present rare to find any deep attachment to a particular locality. Still more strikingly absent is the second condition. Practically speaking, there are no political parties in Victoria. There are stiU faint echoes of bygone battles, but they have lost their meaning. Other cries may in the future arise. Some day the feeling of native against immigrant may raise a real political question, but at present it would be idle to say that it is a substantial factor in politics. All the old questions — extension of the franchise, vote by ballot, payment of members, — have been settled. We have practically confessed this truth. For the last seven years we have been content with so-called " Coalition " Ministries, and the ardent politicians, who have ABSENCE OF TRUE PARTIES 379 demanded a return to severer times, have forgotten that it is impossible to have party government unless there are parties. But it may be said that, if there are no pohtical questions, there are, and there have been, economic questions upon which the community has been keenly divided. That is quite true. There has been one great struggle on an economic subject ; a still greater struggle on another is now going on. In the battle between Free Trade and Protection there was a perfectly legit- imate basis for a formation of parties. But that struggle is over, at least for the present. And the great economic question of the day, the relation of Capital to Labour, is not, for a special reason, capable of being used as a basis of party government. The reason is that, upon this question, each party holds one House of the Legislature, and party questions must be fought out in a single House, just as two combatants must fight in one ring. Broadly speaking, the Legislative Council is the organ of capital. Its restricted franchise, the property qualification of its members, the size of its constituencies and the consequent expense of its elections, the fact that its mem- bers are unpaid, all render it practically certain that it will be filled by men of wealth, who quite naturally take the capitalist view of the situation. The opposite incidents of the Assembly tend, as naturally, to make it the mouthpiece of labour. And as it is obviously necessary that each of these two great parties should be duly represented in the government of the country, the present state of things is so far satisfactory, that any pro- posal to extinguish either branch of the legislature carries on its face this obvious injustice, that its effect would be to deprive one party or the other of all voice in the management of affairs. But, although the abolition of one House of the Legislature would be manifestly unjust, it is possible that an amalgamation of the two would be of advantage. There is little doubt that a somewhat slavish copying of English institutions has resulted in placing the Legislative Council in an anomalous position, in which much of its usefulness is lost. There can be no reason, for example, why the members of a representative body such as the Council should be precluded from dealing with questions of finance. The prohibition has enabled the Assembly to per- 38o CONCLUSION petrate at least one flagrant piece of class legislation.^ And, in other respects, the analogy upon which the two Houses are framed altogether breaks down when the circumstances of the colony are considered. Of course, if the two Houses were com- bined, and all the members of the combined House were elected on the same basis, injustice would be done, for the plan would be almost certain to suit one party better than the other. But, as the practice of European countries shows, there is no reason why all the members of a representative body should be elected on the same basis. And it is more than probable that, in their earlier days, what are now the separate houses of the Parliaments of European countries sat together as united bodies. Thirdly, it must be confessed that in Victoria the binding force of political tradition has been considerably weakened. In some respects it is still strong, but in others, and especially on some of those points most essential to the working of the Cabinet system, it tends to break down. The proof of this assertion lies in the record of certain facts which have hap- pened during pohtical crises, but which are not, perhaps, very pleasant to refer to specifically. On broader grounds, we may safely say that the whole tendency of modern thought is to do away with the influence of tradition, not less political tradition than other forms, and thus to weaken one of the conditions most essential for the working of the present system. And it does not need special insight to see that, if the rather delicate traditions of Cabinet government break down, the system will degenerate more and more into a cynical struggle for office, in which, as the prizes are not very great, the competitors engaged will not necessarily be of a very high order of merit. In fact, Parliament has already marked its appreciation of the truth that the working of Cabinet government is not altogether satis- factory under polonial conditions, by removing from the control of the Ministry of the day certain large departments of business which used to belong entirely to it. And if this tendency con- tinues, if important departments of public business are made permanent, and their management placed in the hands of non- political officials, the Cabinet will more and more recede from 1 I allude to the "Land Tax Act 1877," whieli imposes a tax upon the owner of a grazing estate of 640 acres, worth £3000, but lets the owner of a piece of land upon which a street of suburban houses has been built go scot free. PROBABLE FUTURE OF THE SYSTEM 381 its old position of working head of the executive system, and assume a new status as a committee of inspection, which committee may itself ultimately become permanent. As a final criticism, we may note also that the Cabinet system sins against one of the cardinal maxims of democracy. If there is one article of democracy's creed more easy to dis- cover than another, it is the jealousy of paid ofiicials. The doctrine of democracy is that no man who holds a paid office is to be trusted with a share in the government of the institu- tion from which he draws his salary. The plan of the muni- cipalities, where the executive officials are rigidly excluded from the legislative bodies, is the ideal plan of democracy. The " interested expert " is its aversion, for all laymen dread the influence of professional knowledge. And against this doctrine the Cabinet system sins in the most open way. But it may be said that it is idle to criticise a scheme which is now an essential of the political system ; that, how- ever unsuited Cabinet government may really be to the cir- cumstances of the case, it cannot now be dispensed with. My answer is, that an elementary study of history reveals the truth that there are very few essentials in poUtics, and that institutions which are not really suited to the circum- stances in which they exist are apt to disappear. But, to be more specific, I may point, in conclusion, to tendencies which may possibly result in the euthanasia of the Cabinet system in Victoria. For I do not think, for a moment, that it is likely to be forcibly or even consciously displaced. If I have succeeded, in this book, in reproducing the picture of Victorian government as it appears to my own eyes, it wiU be evident from a perusal of it that the power and influence of the central government are out of all proportion with those of the local government. Many causes have con- tributed to this result, but they do not aU continue. In the first place, Victoria was settled at a time when central government in England was abnormally strong, and local government unusually weak. The great increase in the influence of Parliament of the United Kingdom, consequent upon the Eeform Act of 1832, made itself felt even in Australia. All through the earlier history of the mother colony, it is the desire to reproduce parliamentary institutions 382 CONCLUSION which is the motive power of political life. Municipal iastitu- tions awaken no enthusiasm. Secondly, the character of the immigration to Victoria, especially after the gold discoveries, tended in the direction of centralism. The immigrants were chiefly men whose ideal was a town life, with its excitements and conveniences. Many of them had no inducement to settle in the country. They had no children to start. They cared nothing for agriculture. Victorian scenery was not attractive. So, when the gold rush waned, they gravitated back to and by their presence increased the towns. And as more immigrants came, they all passed into the arena of Melbourne, many of them never passiag out of it. Even from the very first, but most decidedly from 1855, the note of Victoria has been town life, and especially Melbourne life. And it is only lately, and under the influence of powerful inducements, that a country population has begun to radiate from the towns. But, thirdly, the character of the country itself has had much to do with the intense centralism. A country which contains many mountains and impassable rivers, dense forests and wide lakes, which is also infested with physical dangers, is the country of local government. The scattered settlements are cut off from one another by substantial boundaries, and their members do not lightly risk the dangers of travel. They find their interests at home, and devote their attention to the regulation of them. But such dangers have never been great in Victoria. There have been, and still are, it is true, large extents of forest in which an inexperienced traveller may easily lose his way. But the mountaias are few, the rivers and lakes insignificant, and there are broad plains of boundless extent across which, even before the days of roads and railways, it was easy for travellers to make their way. Consequently there was always a tendency, for such settlers as had actually gone out into the wilderness, to gravitate back agaia to Mel- bourne. Finally, a most important factor has been the character of the immigration. If tradition speaks the truth, the ancient immigrations into Western Europe were by tribes of kindred blood, who settled down upon the new lands in spontaneously formed groups representing the old blood relationships. And PROSPECTS OF LOCAL GOVERNMENT 383 SO the local groups appeared long before the large political aggregates were formed out of them. But there was no such process in Victoria. Although in some cases the immigrants were sent out by government agency, there was no cohesion amongst them. They came as individuals, not as groups. Those who settled in villages bought their land at the Govern- ment sales, or selected it at the Government land office, and went to strangers, as well as to a strange land. It is not wonderful, therefore, that the spirit of local cohesion should have been singularly absent all through the history of Victoria, and that no local organisation should have grown up at all able to balance the central organisation at Melbourne. But some of these causes have already disappeared, and others are disappearing. As the population settles down and forms local ties, as children grow up who learn to look upon particular places as their homes, as more capital is invested in rural industries, as the habit of local eo-operation under muni- cipal government increases, above all, as the patrimony still at the disposal of the central government is distributed, and the localities no longer look to the Treasury for continual help, a spirit of local independence will arise. With the pressure of population upon the means of subsistence, people will find the advantage of developing local resources. And thus their attention and their ambitions will be turned more and more in the direction of that part of the government machinery which •immediately affects their interests. Then, when this has happened, the full importance of municipal government will be appreciated, and municipal government will begin seriously to compete in influence and attractiveness with the central power. It will then be seen that a highly-centrahsed form of govern- ment is really inconsistent with democratic ideals. For the true democracy, in which each citizen takes a direct share in the business of government, or at any rate of legislation, cannot be worked over large areas. To adapt it to the enlarged conditions of modern (3ommunities it has been necessary to admit the principle of representation. And, after aU, repre- sentation is either merely a makeshift, or it is aristocracy disguised. And it is probable that if an increased interest in muni- cipal government does come, it will be followed by demands 384 CONCLUSION for increased municipal powers. The restrictions on municipal legislation will be removed, the control of the local police, the appointment of the local judiciary, will be demanded. And gradually the central government will be deprived of all those matters which are not obviously of universal concern, such as railways, posts, telegraphs, and the like. Por when there is no common danger to be feared, the tendency towards localism generally appears, especially in democracies. And if the tendency should manifest itself to any substan- tial degree, it is easy to see how it will work against the Cabinet system. For as the central Parliament sinks iu import- ance, its mere caprice will no longer be allowed to oust a set of officials who are doing their work to the satisfaction of the country. There will come a time when Ministers, their powers being less than now, will decliae to retire upon a hostile vote, and the country will approve, or at least tolerate them. And then the permanence of the executive, or, at any rate, its security for a definite period, will be acknowledged. But, in that event, the question of appoiutment will, of course, assume a new phase, and as the Parliament will no longer be able to oust a Mihistry at its pleasure, it will no longer be possible for Ministers to take office in the old way. Possibly the electors will claim to appoint directly the head of the Ministry, leaving him to choose his colleagues, as in America, or the Parliament may formally elect the Ministers, as in Switzerland. In fine, it may well be doubted whether the Cabinet system is at all suited to a community such as Victoria, It was evolved by a close oligarchy, whose members were keenly sus- ceptible to the influence of tradition and the opinion of their order, who were bound, by the circumstances of the case, to stand by one another, and who were kept constantly on the alert by the fear of political disaster. It has descended to a fortuitous assemblage of unconnected units, having little rever- ence for tradition and small respect for the opinion of their fellows, bound to one another by no ties save those of immedi- ate and temporary expediency, and living in a peaceful political atmosphere. APPENDIX A (Specimen Minute of the Executive Council of N. S. W. in 1837.) M. 3866. 28tli Jan. 1837. St. Andrew's Church, Sydney. Government House Jan. 28, 1837. 13 Minute No. 1837. First P. Magistrate, Inform the 1st Police Magistrate that the SOth Jan. 1837', Building St. Andrew's Church is shortly to be S7J25S6. commenced, and that some other place must be found for the stocks. Swveyor-General for Let arrangements be made for conveying description, the Site for that church to Trustees, as the S£d Feb. 18S7. Bishop of Australia has intimated to me his wish of beginning to build immediately. Colonial Architect, Instruct the Colonial Architect to give the Slst Jan. 18S7. Bishop any assistance his Lordship may require in preparing the design of the intended Church. E. B. {i.e. " Richard Bourke.") The Honourable The Colonial Secretary etc. {Indmsed.) Surveyor-Gen. — A measurement of this allotment was directed by Col. Sec. letter No. 37/163 and a description requested in order that the same may be conveyed to Trustees under the recent Act. The Surveyor's description is here used and will serve for purposes required. The intended line of George Street has been preserved. Gov. decis. " Let me see a Tracing." 5th Aug. 1837. Surv.-General, 3717129. 2 APPENDIX B (Specimen Minute of the Executive Council of Victoria, 1855.) Council Chamber, Melbourne. 14tli May 1855. Present. His Excellency the Lieutenant-Governor. The Hon. the Colonial Secretary. The Hon. the Attorney-General. „ ,, Acting Colonial i „ „ Collector of Customs. Treasurer. J „ „ Auditor General. The Council having assembled in accordance with adjournment, the Minute of proceedings on the 1 0th instant is read and coniirmed. At His Excellency's suggestion the discussion of the proposed Rules concerning the exportation of Gold is resumed. It is advised that Regulations to the following effect be pro- mulgated. [Here follow the Rules.] His Excellency lays upon the table a plan furnished by the Surveyor-General showing the township of Ballaarat, and with the advice of the Council approves of the same. His Excellency informs the Council that he has been requested to appoint Claude Earie, Esq., Chairman of a meeting convened in terms of the Municipal Districts Act, 18 Vic. No. 15, and it is advised that the request made by a Committee of the residents at Prahran be complied with. The nomination of Trustees for Church of England purposes, viz. at Wangaratta Messrs. G. Faithful, F. G. Docker, Dobbyn, Clark, and Foord; and at Hamilton Messrs. Fetherstonhaugh, Puckle, Nowlan, Graham and Blastock is then with the advice of the Council approved by His Excellency. Grants of money in aid of the Presbyterian Church as solicited by the Rev. J. Hetherington, Moderator, viz. for (£400) Four Hundred Pounds in aid of a Minister's Dwelling at Tarraville, and for (£296) Two Hundred and Mnety-Six Pounds in aid of a Minister's Salary at Colac, are with the advice of the Council APPENDIX B 387 approved by His Excellency on the report of the Auditor-General that the requisite funds are available. (Other similar applications for grants for ecclesiastical purposes.) An application for the approval of Messrs. Preshaw, Beauchamp, and Joshua as Trustees of the Castlemaine Mechanics Institute being laid on the table by His Excellency it is advised that it be approved. Applications for renewal of Licences to ship Seamen in .the several cases of James Chapman and James Hendy are laid before the Council, and the Police authorities having reported favourably in each case it is advised that they be sanctioned. The recommendation of the Council on a former occasion that D. S. Campbell, Esq., be offered a vacant seat as Commissioner of Savings Banks having been acted upon, and Mr. Campbell's willing- ness to act being shown, in a letter laid upon the Council Table by His Excellency, it is advised that Mr. Campbell be appointed accordingly. His Excellency announces to the Council that Despatches have been received since the last sitting of the Council conveying to him • separate commissions as Captain-General, and Governor-in-Chief of the Colony, and as Vice-Admiral of the same, and that he is about to cause reference to be made to the Attorney-General in order that the steps which it may be necessary to take in giving effect to the Commissions may be adopted in due course. The Council is then adjourned sine die. G. W. RUSDEN, Clerk of the Council. APPENDIX C (Statistical Summary of Victoria at the close of the respective periods. i) Item. 1842. 1850. 1855. 1889. Population 23,799 4,136 76,162 364,324 1,118,028 Immigrants by sea . 10,760 66,571 84,582 Eevenue^ . £108,381 £357,403 £3,492,210 9,006,044 Land in Cultivation . 8,124 acres 52,341 acres 115,135 acres 2,627,262 acres Live Stock (Head) . Imports (value) . 1,509,190 6,432,068 5,166,101 5,145,415 £277,427 £744,925 £12,007,939 £24,402,760 Exports ( ,, ). £198,783 £1,041,796 £13,493,338 12,734,734 Urban Municipalities (1) (2) (2) 59 Rural Municipalities . — (2) (2) 130 Factories . — (46) 278 3,137 1 These figures, with the exception of those enclosed in brackets ( ), are taken from the Victorian Year Book for 18S9-90, compiled by Mr. H. H. Hayter, C.M.G., Government Statist. 2 In 1842, 1850, and 1855 the financial year ended on the 31st December. Since 1871 it has ended on the 30th June. APPENDIX D THE NATIONAL CONVENTION OF 1891 Only a short space can be given to the important measure drafted by the Federal National Australasian Convention which sat at Sydney during the months of March and April 1891. The Con- vention consisted of thirty-five delegates, chosen by the legislatures, of the seven colonies of New South Wales, Victoria, Queensland, South Australia, New Zealand, Tasmania, and Western Australia, in pursuance of the resolutions carried at the conference held in Melbourne in the previous year.^ The delegates were not, of course, authorised to conclude any final arrangements ; they were merely to frame a Federal Constitution which was afterwards to be submitted to the various colonies and, finally, to the Imperial authorities. After five weeks of animated debate the Convention produced a measure, which was ultimately adopted without formal opposition, though several members reserved the right to refuse to recommend it to their constituents if, after further consideration, they could not bring themselves to agree with its provisions. Whatever may be the substantial merits of the measure, it is an admirable piece of drafting, and it will be comparatively easy to give a short analysis of its contents. The federal aggregate which it is proposed to create is to bear the name of the " Commonwealth of Australia," and its legislative powers are to be vested in a Governor-General, appointed by the Queen, and a Parliament of two Houses, to be known respectively as The Senate and The House of Representatives.^ The Senate, which will represent the " States Eight " principle,^ will consist of eight members from each colony, chosen by the Parliament of such colony for a period of six years, and retiring in ' The resolutions gave each colony power to appoint seven delegates. All the colonies named availed themselves of it to the full extent, with the exception of New Zealand, which sent only three delegates. The voting was by heads, not by colonies. Western Australia had just been made a self-governing colony by the 53 & 54 Vic. c. 26, which did not, however, make "Responsible Government" compulsory. 2 Cap. I. § 1. ^ But the voting will be by heads. § 9. 390 APPENDIX D alternate sections at the end of every three years.^ The House of Representatives, vi^hich will represent the National principle, will consist of members chosen on the basis of population by the electors in each colony for the more numerous House of the Parliament of that colony. Until otherwise provided by the Parliament of the Commonwealth, the ratio is to be one member to every thirty thousand of the population ; but no one of the existing colonies re- presented in the Convention is to have less than four members.^ The Parliament of a colony may determine the electoral divisions for the return of its Eepresentatives, but where a colony excludes the members of a particular race (not being aboriginal Australians^) from the franchise for its more numerous House of Parliament, the numerical basis of federal representation in that colony is to be proportionately reduced.* The members of the House of Eepre- sentatives are to sit for three years,® and there is to be a session of Parliament in every year.® No property qualification is required either for Senators or Eepresentatives, but a Senator must be of the age of thirty years, he must be entitled to vote at the election of members to the House of Eepresentatives, he must have resided for five years within the limits of the Commonwealth, and he must be either a natural-born subject of the Queen or a naturalised subject of five years' standing; while a Eepresentative must possess similar qualifications, except that the periods in his case are reduced to twenty-one years and three respectively.^ The members of both Houses are to receive payment for their services, at first at the rate of £500 a year.* The usual disqualifications of ofiice, interest in a public contract, foreign allegiance, insolvency, and conviction for crime, attach to members of both Houses.^ Moreover members of the Parliament of the Commonwealth are not to be capable of sitting in the Parliament of any constituent colony, i" The Parliament of the Commonwealth is invested, subject to the provisions of the Constitution, with power to legislate on a great variety of subjects, including international and intercolonial trade. Customs and Excise duties, posts and telegraphs, military and naval defence, navigation and shipping, statistics, coinage and bank- ing, weights and measures, negotiable instruments, insolvency, copy- rights and patents, naturalisation and aliens, marriage and divorce, intercolonial legal process, immigration and emigration, "external aifairs and treaties," intercolonial river navigation, and railways used for national purposes.^^ It is also endowed with the exclusive right of legislation in respect to the people of any race ^^ for whom 1 Cap. I. §§ 9, 12. 2 §§ 24, 27. ° Cap. VII. § 3. Aboriginal Australians are excluded from calculation in any case. * Cap. I. § 26. « § 24. « § 7. ' §§ 15, 32. 8 § 45. s §§ 47-49. " Cap. V. § 10. " Cap. I. § 52. ^2 Not including aboriginals in Australia or Maoris in New Zealand. APPENDIX D 391 it is deemed necessary to make special laws, to the government of such territory as may be surrendered to the Commonwealth for the seat of government or as sites for national purposes, and to the control of the Public Service of the Commonwealth.^ The House of Representatives is to have the exclusive power of originating Supply and Appropriation Bills, which the Senate may affirm, reject, or return with suggestions, but not amend. But laws imposing taxation are to deal with the imposition of taxation only, and, except in Customs Acts, with one subject of taxation only ; and no vote of appropriation may be passed by the House of Eepre- sentatives, except upon the request of the Government.^ The powers of the Governor-General, with regard to assent, refusal, and reservation of bills, are substantially the same as those of the Governor of Victoria in respect of Victorian legislation,^ except that there is no provision for compulsory reservation of bills on any subjects. The executive power and authority of the Commonwealth, which are to extend to the execution of the provisions of the Con- stitution and the laws of the Commonwealth,* are to be exercised by the Governor-General as the Queen's Representative, with the advice of a Federal Executive Council, to consist of members summoned by the Governor-General, and holding office during his pleasure.^ The Governor-General may from time to time appoint officials during pleasure to administer such departments of State as he may establish, and such officials may be chosen and sit as members of the Commonwealth Parliament. They are to be members of the Federal Executive Council and "the Queen's Ministers of State for the Commonwealth." ^ But the number of officials who may sit in Parliament is limited to seven, and the offices which these officials may hold may be designated by Parlia- ment.'^ The appointments to all other offices under the Common- wealth are vested in the Governor-General in Council,* and the Commonwealth is at once to take over the departments of Customs and Excise, Posts and Telegraphs, Military and Naval Defence,^ Ocean Signals, and Quarantine, assuming the obligations of the constituent colonies in connection with such matters.^" It is also provided that all powers which, at the date of the establishment of the Commonwealth, are vested in the Governor of or any officer or authority in a colony, with respect to any matters which, under the Federal Constitution, pass to the Executive of the Commonwealth, 1 Cap. I. § 53. " §§ 54, 55. ^ §§ 57.59. (gee ante, p. 72.) * Cap. II. § 8. 5 II 1 and 2. « § 4. ' § 5. 8 I.e. the Governor-General acting with the advice of the Federal Executive Council. § 3. ' But the command-in-chlef of all the forces is vested in the Governor-General alone. § 9. " §§ 7 and 10. 392 APPENDIX D shall vest in the Governor-General in Council, or the corresponding subordinate official of the Commonwealth.^ To provide for the judiciary functions of the Commonwealth, the Parliament is empowered to create a Federal Supreme Court, consisting of a Chief Justice and at least four other judges, ap- pointed by the Governor-General in Council, but holding during good behaviour, and only removable upon an Address of both Houses of Parliament. The Federal Supreme Court is to be a final Court of Appeal from all other federal tribunals, and also from the highest courts of final resort in each constituent colony ; and the Federal Parliament may provide that appeals from such last- mentioned courts which have hitherto lain to the Queen in Council shall be brought to and finally determined by the Federal Supreme Court. ^ But power is reserved to Her Majesty to grant leave to appeal from the Federal Supreme Court to Herself in Council " in any case in which the public interests of the Commonwealth, or of any [constituent colony], or of any other part of the Queen's Dominions are concerned." ^ Parliament may also constitute and define the powers of other federal tribunals ; but jurisdiction may not be conferred on such tribunals except in cases under the Con- stitution, under federal legislation or treaty,* in Admiralty or Mari- time matters, in matters relating to foreign official representatives, in matters in which the Commonwealth is a party, in controversies between constituent colonies, or relating to the same subject matter claimed under the laws of such different colonies.^ The trial of all indictable oiFences cognisable by any federal tribunal is to be by jury.* The provisions of the Constitution relating to Trade and Finance are very important, but it will only be necessary to specify those which deal with the financial settlement between the colonies. These were, in fact, the very crises of the whole task of the Con- vention. The others are merely the usual revenue clauses of a Constitutional Government. The existing Customs and Excise laws of the constituent colonies are to remain in force, unless altered by the various colonies, until an uniform system is provided by the Parliament of the Common- wealth, but the duties levied under such laws are to be paid to and collected by the federal officials.'^ Upon the establishment of an uniform system, the Customs and Excise laws of the various colonies ' Cap. II. § 11. This section Is very wide. It is not unlikely that an attempt to enforce it would give rise to serious difficulties. 2 Cap. III. §§ 1-5. 3 § 6. * It will be noticed that this section, as well as § 52 (26) of Cap. I., impliedly authorises the Commonwealth to enter into direct negotiations with other countries, a power which has been exercised de facto by the Australian colonies amongst them- selves, but which is usually considered an Imperial function. 5 Cap. III. § 7. « § 11. ' Cap. IV. § 7. APPENDIX D 393 are to become void, and the exclusive power of imposing Customs and Excise duties, and of granting bounties on production or export of goods, is to be exercised by the Parliament of the Commonwealth,^ subject to the necessity for absolute equality and freedom of trade throughout the Commonwealth.^ From the date of the imposition of such an uniform system, " trade and intercourse throughout the Commonwealth, whether by means of internal carriage or ocean navigation, shall be absolutely free." * Moreover the Parliament of the Commonwealth may annul laws made by any constituent colony derogating from such freedom of trade ; * and the Commonwealth itself may not give any preference in its Trade or Eevenue laws to the ports of one part of the Commonwealth over those of another.* The expenditure of the Commonwealth is to be charged to the several constituent colonies in proportion to their populations, and the surplus of revenue over expenditure is to be returned to each colony in proportion to the amount of revenue raised therein. But, in estimating the amount of revenue collected in a colony, the amount of duties levied on goods afterwards exported to another constituent colony is to be deducted from the revenue of the former colony, and credited to that of the latter.* And there are to be deducted from the surplus otherwise payable to a colony the amounts granted by way of bounties to any of its people,'^ and also the amount of the interest on any of its debt which may have been taken over by the Commonwealth.^ The bill also contains some provisions which affect the internal administration of the constituent colonies, or, as they are technically termed in the measure, "the states." These provisions will, of course, if the measure passes into law, become part of the constitu- tional law of each colony which adopts it. After confirming to the authorities of each state the powers residing in them at the date of the establishment of the Common- wealth, except so far as they are inconsistent with the proper legislation of the Commonwealth,* the bill goes on to provide that there shall in every state be a Governor appointed and removed in manner determined by its Parliament,^" but that all communications required by the Constitution of any state to be made by the Governor to the Queen shall be made through the Governor-General of the Commonwealth, and that the Queen's pleasure shall be made known through him.i^ Moreover no state is to impose any Customs duties except such as are necessary for executing its inspection laws ; and such inspection laws may be annulled by the Commonwealth.^^ Nor may any state, without the consent of the Federal Parliament, impose any duty of tonnage, or raise or maintain any military or 1 Cap. IV. § 4. 2 Cap. I. § 52 (2). s Cap. IV. § 8. ■» § 12. = §11. « § 9. ' § 9 (3). 8 § 13. » Cap. V. §§ 1-4, 6. " §§ 7, 8. " § 5. 1= § 13. 394 APPENDIX D naval force, or impose any tax on any property belonging to the Commonwealth. On the other hand, the Commonwealth must not impose any tax on property belonging to a state, and it must protect every state from foreign invasion, and, if required by the Executive Government of a state, from domestic violence. •"■ Five other things a state is absolutely prohibited from doing. It must not coin money, it must not make anything but gold and silver a legal tender, it must not make any law prohibiting the free exercise of any religion, it must not make or enforce any law abridging the privilege or immunity of citizens of other states, and it must not deny to any person within its jurisdiction the equal protection of the laws.^ Any of the existing colonies may, upon adopting the Constitution, be admitted to the Commonwealth, and the Federal Parliament may admit other new states upon such terms as it may think fit.^ Moreover, the limits of a state may, with the consent of its Parlia- ment, be altered by the Federal Parliament* Finally, the Constitution may be amended by legislation passed by an absolute majority of the Federal Parliament and approved by a majority of state conventions elected by the electors to the House of Representatives of the Commonwealth and summoned in manner provided by the same authority ; but the people of the states whose conventions approve of the amendment must be a majority of the people of the Commonwealth.^ Every such amendment will, of course, be subject to the royal assent, and any amendment by which the proportionate representation of a state, or the minimum number of Eepresentatives thereof, is diminished, is not to become law vtdthout the consent of the Convention of that state.^ The most obvious feature in the Constitution which we have just analysed is its strongly central character. To use terms of a corresponding date in American history, it is " Federal " rather than " Democratic." The feature is seen very clearly in the rule that all communication with the Imperial Government is to be through the Governor -General, in the exclusion of members of the states' parliaments from the Commonwealth Parliament, in the constitution of the Federal Supreme Court as a final Court of Appeal from the highest state courts, and in the prohibition of fiscal autonomy, and the raising of military forces in the states. The chief guarantees of the Democratic or States -right principle, which the Constitution affords, are the equality in the numbers of the Senators for each state, the minimum limit of Representatives and the power of each state to regulate the electoral basis on which they are chosen, and the states' veto on electoral amendments. Secondly, we may notice that, in one or two points, the 1 Cap. V. §§ 14, 19. 2 II ig.i7_ 3 Cap. VI. §§ 1, 2. « § 4. = Cap. VIII. § 1. « lUd. APPENDIX D 395 Constitution goes near to impair what have hitherto been exclu- sively Imperial prerogatives. It expressly provides that the states may regulate the appointment and dismissal of their own Governors, a power which, if carried into law, will certainly authorise a state to declare its headship elective and thus, practically, to annihilate Eesponsible Government. It almost puts an end to appeals to the Imperial tribunals by limiting the right of the Queen in the allow- ance of appeals to very special classes of cases. And, at least impliedly, it authorises the Federal Parliament to enter into direct relations with foreign states. In the case of the Canadian Constitu- tion, the Imperial authorities consented^ to allow the provincial Lieutenant-Governors to be appointed by the Governor -General, himself an Imperial official; it remains to be seen whether they will give up all control over the appointments in Australian colonies. The clause as it now stands was carried by the barest majority in the Convention,^ and it will be remembered that any legislation by which a colony proposed to alter the method of appointing its Governor would be subject to the veto or reserva- tion of a Governor who was an Imperial official. It was indeed proposed by Sir George Grey to annul the necessity for the reservation of any state legislation, but the proposal was negatived by a decided vote.* The restriction on Her Majesty's right to grant leave to appeal was also carried by a very small majority ; the subject having been made the ground of a special memorial by Mr. Justice Eichmond, of the Supreme Court of New Zealand.* The implied recognition of a right to enter into direct relations with foreign powers is probably something quite new in the history of Colonial government, although the Federal Government of Canada is specially charged with the execution of treaties entered into by the Imperial authorities.* It is possible that the contem- porary question of the Newfoundland fisheries may have had some- thing to do with the matter. One other subject of great importance may be noticed in connection with the Federal Constitution. This is its attitude on the matter of Responsible Government. The nature of Eesponsible Government has been previously dealt with in this work ; it will not therefore be necessary to repeat the explanation. But it is worth noticing, in view of certain suggestions with regard to the future of that institution which the author has ventured to make, that the attitude of the Commonwealth Constitution on the subject is studiously neutral. The Constitution of Victoria, by providing that four Ministers shall sit in Parliament, and by subjecting Ministers to re-election on the acceptance of office, 1 By 30 Vic. c. 3, § 58. ^ Cf. vote in Minutes of Proceedings of the Convention (Official Eecord), p. cxii. 8 lUA. ^ Copy in ibid. p. cxci. » 30 vio. c. 3, § 132. 396 APPENDIX D makes Responsible Government compulsory in Victoria. But the Federal Constitution contains no such requirements. It allows seven officers administering departments of State to sit in Parliament, and it requires that such officers shall be members of the Executive Council and "the Queen's Ministers of State for the Common- wealth." The last title viras the subject of great debate in the Convention. 1 It was added, after the bill had left the Constitu- tional Committee, as a substitute for another proposed amendment, viz. : " Eesponsible Ministers of the Crown." It seems to have been thought that the new title conveyed by implication the right to use prerogative powers which would not be conferred by the mere fact of membership of the Executive Council. If this construction be correct, such powers can only be acquired by an implied grant of Her Majesty's prerogative rights ; for a Minister of State, apart from express statute, has no personal powers save those which belong to hira as a subject of the realm. And it is quite possible that the Imperial authorities might hesitate long before advising Her Majesty to delegate irrevocably by parliamentary statute, to Australian Ministers, those powers which in England she merely allows her Ministers to exercise at her pleasure. It is to be observed, however, that the words, whatever else they may import, do not necessarily involve the recognition of Eesponsible G-overnment. Apart from the measure itself, it may be permissible to say one word as to the composition of the Convention which passed it. This Convention, like the Conference of 1890, was purely parlia- mentary in its character. It was chosen by Parliaments, and con- sisted entirely of members of Parliaments. The heterogeneous and comprehensive character of the English House of Commons at the present day is apt to lead Englishmen to suppose that Colonial parliaments are similarly comprehensive. As a matter of fact all representative bodies constituted on uniform bases tend to become the possession of a particular class. It has been so in English parliamentary history. It is not so just now, because one class is being pushed out and another class is pushing its way in, and there is a meeting of the waters. But in Australia a social revolution has already effected the change which is being effected in England. As a consequence, the National Convention hardly represented all classes. In Australia, as a general rule, neither the great merchants nor the great landowners, nor the most eminent lawyers, especially those lawyers who ultimately become Supreme Court judges, are to be found in Parliament. It is evident that a country like Australia is poorly represented by any assembly which does not contain some reasonable proportion of these elements. Unquestionably there were lawyers of great ability in the Conven- ^ See debate In Official Record, pp. 371-6. APPENDIX D 397 tion, but they were not lawyers of a judicial stamp, and an observer can hardly help suggesting that the presence in the Convention of a few names so respected as those borne by the judges of the Supreme Courts of the Australian colonies, would have lent an additional guarantee to the work of the Convention. Of. the fate of the measure it would be rash to prophesy. Its acceptance, even after the sanction of the Imperial authorities has been granted, is intended to be purely voluntary in the case of each colony, and there is a general feeling that such acceptance can only be satisfactorily ascertained through the medium of a plebiscite. It is not proposed to take any further steps in the matter until at least three colonies have adopted it. If there is little enthusiasm for the movement, there is little opposition to it. Other questions excite greater interest. It may be that the bill will have to wait till these are settled. INDEX Adderlet, Mr., 196, 197 Addresses to Governor, 97, 98, 101, 110 Agriculture, Minister of, 304 "Agricultural Allotments," 291, 292 Agricultural Areas, 287, 288, 289 "Agricultural and Grazing Lauds," 291, 29 Aliens, may not sit in Parliament, 237, 238 "Appropriation Act," 281 Assembly, Legislative, 253-258 Attorney-General, 284, 285 Audit of Public Accounts, 282-284. "Auriferous Lands," 292 Australia, first colonised, 11 Australian Agricultural Company, 35 Bail, 355 Bailiffs, of County Courts, 350 Ballot, 242 Bankrupts, etc., 238 "Bank Sheet," the, 284 Barry, Sir Redmond, 161, 176 Batman, John, 23 Bearbrass, 27 (see "Melbourne") Bishopric of Australia, subdivided, 126 Board of Trade, 4, 132 Land and Works, 262, 285, 288, 290, 291, 292, 295, 297 Public Health, 262, 263 Boards of Advice, 298, 299 Border Police, 46, 110 Boroughs, 172, 328 {see " Local Govern- ment ") Bourke, County of, 45 District Council of, 90, 91, 127 Bourke, Sir Richard, claims Port Phillip as part of N. S. W., 25; his action confirmed, 26 ; visits Port Phillip, 28 Bribery, 243 Budget, the, 280-282 Bye-elections, 240 By-laws (see "Local Government") Cabinet System, 206, 269-276, 375-384 Cadet Corps, 302 Canada Act, Mr. Pitt's, 10 Constitution of, 193 Capital cases, position of Governor in, 233 " Cash Sheet," the, 284 Central and Local Governments, relations of, 363-365 Central Road Board, 170, 171, 285 Chairman of General Sessions, 358 Chief Secretary, 278, 279 Circuit Courts, 175 Civil List, of 1842, 73 ; of 1850, 133, 199, 219 "Clerical Division," of Public Service, 309, 310 Clerk of the Peace, appointed at Mel- bourne, 29 Collectors of Imposts, 282 Colonial Office, 200 Colonial Reform Association, 147 Commissioners of the Treasury, 279, 280 Committee of Classifiers, 299 Committees, of Privy Council, 4 Commons, 290 Comptroller of Customs, 167 Condell, Henry, first Member for Mel- bourne, 83, 85 Constitution, of 1823, 12 of 1828, 14 of 1842, 69 of 1850, 141-167 of 1855, 190-198 alteration of, 246-249 Constitutional Bills of 1849 and 1850, in English Parliament, 146-149 Contractors, Government, 238 Convicts, 238, 321 Council, Executive, of N. S. W., 18, and Appendix A of Victoria, 157, 158, 179, 193, 194, 207, 208, 231, 232, 267- 276, and Appendix B of Foreign Plantations, 3 ; abol- ished, 3 ; revived, 3 ; abolished, 4 of Trade, 3 400 INDEX Council, Legislative, of 1824, 12, 13 of 1829, 16, 17, 43, 170 of 1843, 69, 71, 83, 84, 85, 90, 91, 97, 101, 104, 110, 111, 117, 119, 123, 129, 134, 151-154 of 1851 (Victorian), 141-144, 161, 163, 179, 182, 183, 189, 210, 214 of 1855, 191-205, 250-252 "Country" lands, 38, 286 County Courts, 349-352 Criminal Prosecution, process of, 321 Cromwell, colonial policy of, 2 Crown, its constitutional position, 1, 2 "Crown Colonies," meaning of, 11 Lands, 24, 25, 33, 39, 94-121, 137, 151, 177-188, 218, 219, 231, 286-297 Eegulations, of 1824, 34, 37 ; of 1831, 37, 44; of 1840, 40, 43; of 1844, 108, 110 ; of 1846, 111 ; of 1848, 103, 113-115 ■ Commissioners of, 19, 110 Districts, 40 ■ and Survey, Commissioner of, 285, 296 Leases Act, of 1846, 111 Sales Act, of 1842, 94, 95, 184, 188, 198, 208 ; protests against, 95 Customs, transfer of, 164 ; collection of, 281 Declaration, of property qualification, 241 Deeds, Eegistry of, 51 Defence, Minister of, 300 Council of, 300 Dendy, Mr. Henry, case of, 41, 42 Deposits by candidates for Parliament, 241 District Judge of Port Phillip, 50 Councils (see "Local Government ") ■ Road Boards, 170, 172 Districts, squatting (see "Squatting Districts ") electoral, 70, 72, 77, 82 Education, 222, 297-300 Elections, machinery of, 78-80, 152-154, 238-243 Election offences, 243, 244 questions, trial of, 81, 84, 162, 244, 245 Elector's rights, 239, 242 Electoral divisions, 238, 239 registrars, 239 Endowments, municipal, 344 English Law, how far binding in Vic- toria, 15 Estimates, Parliamentary, 280, 281 Executive, legal position of, 313-317 Executive Council (see " Council, Execu- tive ") Exports (see " Imports ") " Faemebs' Commons," 287 Fawkner, Mr., 161, 182, 187, 188, 190, 210 Federal Council, 369-372 Federation, 129, 134, 199, 366-374 " Fencing Rate," 295 Feudal land system, theory of, 32 Financial Year, account of, 280-282 "First Division," of Public Service, 309, 310 Fitz Roy, Sir Charles, arrives. 111 ; deals with squatting difficulty. 111 ; de- spatches on Separation, 128, 129 vt. ; made Governor-General, 155 ; arrange- ments thereupon, 156 Fixed price system, 39, 41 Forces, naval and military, 300-302 Forlonge, Mr., 187 Franchise, Parliamentary, 70, 142, 148, 189, 251, 254 Municipal, 331 (and see " Local Government ") "Free Port," 30 " Free Warehousing Port," 30 "Full Court," the, 319 Gaol, proclaimed in Port Phillip, 28 Geelong, 24 ; police magistrate appointed, 29 ; first land sale at, 38 ; incorpor- ated, 61 ; disputed election at, 162 ; claims under Constitution of 1850, 79; population in 1850, 136; two members in 1851, 153 "General Assembly," project of, 134; abandoned, 147 " General Hewitt," recommendations sent by the, 107 General Sessions of the Peace, 357 Gipps, Sir Geo., modifies Land Regula- tions, 41 ; his remonstrance followed, 42 ; criticism of Address of 1843, 99 ; difficulty over Squatting Question, 110, 111 ; leaves the colony. 111 ; action with respect to Sir lios. Mitchell's election, 122 ; abolishes ' ' North Aus- tralia," 126 ; despatches on Separa- tion, 128 Gladstone, Mr., 146, 147 Gold, discovery of, 155, 160, 178 ; effect on Land Question, 178, 181, 182 Government officials, 122, 135, 238 Governor, the, his powers and duties, 230-235 ; substitutes for, 234, 235 "Governor-in-Council," 233, 240, 260, 261, 275, 282, 286, 287, 293, 294, 299, 303, 305, 306, 308, 318, 321, 322, 327, 347, 349, 352, 354 Governor-General, 134, 155, 156, 159, 160, 178 INDEX 401 Grant, District Council of, 90, 91 Mr., 204 Grey, Lord, despatches from, 102, 119, 128, 134, 147, 150, 155, 165, 166 elected member for Melbourne, 130 "Grievances," Resolutions of, 121 Haines, Mr. W. C, 161 Henty, Mr. S. G., 108 Hobson's Bay, 28 Hope, Mr., his Squatting Bill, 109 Hotham, Sir Chas., Commission, 159, 160 ; difficulty with Ministers, 208- 211 ; his views on Responsible Govern- ment, 212 House of Commons, Journals of, 237 Imports and Exports, in 1842, 66 ; in 1850, 137 ; in 1855, 221 (and see Appendix C) India, 10 Insolvency, Court of, and proceedings in, 322, 323, 352 n. Inspector-General of the Education De- partment, 299 Inspectors of mines, 348 Instructions, Royal, of 1850, 158 permanent, of 1879, 231 "Intermediate" Districts, 113 Judges, may not sit in Parliament, 238 ; are, ex officio, Justices of the Peace {see "Supreme Court," "County Courts," etc.) Jury system, introduction of, 19 Justice of the Peace {see " Magistrates ") Justice, Minister of, 302 Land Question {see under " Squatting," " Crown Lands ") Land and Emigration Commissioners, 39, 99, 103 Land and Works, Board of {see " Board of Land and Works ") "Land Orders," 33 Lang, Dr., 126, 127 Latrobe, Mr., Superintendent, 29 Lieutenant-Governor, 157, 158, 161, 163, 166, 180, 183, 189 Legislation, powers of, 245, 246 Legislative Assembly {see "Assembly, Legislative ") Council {see "Council, Legislative") Letters -Patent of 21st Feb. 1879, creating office of Governor, 230, 231 Licences, gold, issued, 155, 160 ; income transferred to colonial exchequer, 179 pastoral (see "Squatting ") Loans, municipal, 344, 345 Local Government, scheme of 1842, 87- 92 1850, 128, 130, 133, 148, 168, 169 history of, 326-328 existing form of, 329-337 Lonsdale, Capt. W., first police magis- trate at Port Phillip, 27, 28, 161 Lowe, Mr. Robert, 101, 104, 112, 195, 196 Maqistkates (generally), 353-359 Maitland, District Council of, 89 " Mallee " Lands, 290, 293-295 Market, Melbourne, 48 Mayors of Municipalities, 341; 342 Melbourne (formerly Bearbrass), con- dition in 1836, 27 ; first meeting at, 28 ; named, 28 ; obtains Quarter Ses- sions, 29 ; Court of Requests, 30 ; divided, 30 ; made " Free Port " and " Free Warehousing Port," 30 ; first land sale at, 38 ; market, 48 ; first Parliamentary elections in, 83 ; return of Mr. Condell for, 83 ; of Earl Grey, 130 ; population in 1850, 136 ; three members in ,first Victorian legislature, 153 ; corporation of, 52-61, 79, 127, 128, 218 Miall, Mr., 196, 197 Minerals on Crown Lands, 101 Mines, Courts of, 360-362 Minister of, 304 Mining, statistics in 1855, 221 Districts, 339 District Boards, 339, 340 Leases, 287 Ministers of Religion, 123, 194, 228 Mitchell, Sir Thos., 122 "Money Bills," 255-258 Moreton Bay District {see "Queens- land ") Jlunicipalities {see " Local Government ") Municipal clerks, 345, 346 rolls, 331, 332 surveyors, 346 Navigation Laws, 31 Newcastle, Duke of, 185, 191 New colonies, power to create, 75, 145 New Zealand, 20, 75, 368, 373 Nicholson, Mr., 187 Nomination of candidates for Parliament, 241 Nominee members of Legislative Council, 12, 16, 69, 75 "Non-Clerical Division," of Public Ser- vice, 309, 310 " Non-residence licences," 292 "North Australia," 126, 145 2D 402 INDEX Official Staff, of N. S. W. in 1835, 17, 18, 19 of Port Phillip in 1842, 63 O'Shauassy, Sir John, 187 Pakington, Sir John, 179, 190, 191, 196, 197 Palmer, Mr. J. P., 161, 187 Parliament, no power at first over col- onies, 1 "Victorian," 236-249 Parliamentary Eeports, 245 " Pastoral Lands," 290, 291 "Pastoral Society of Australia Felix," 108 Paymasters, 283 Payment of memhers, 253, 256, 257 Pensions for public officials, aholished, 311 Petty Sessions, introduced, 19 ; powers of, 356, 357 ; procedure at, 357 Phillip, Governor, his commission, 11 Police, of Port Phillip in 1842, 64 of Victoria, 305, 306 Chief Commissioner of, 305, 306 Magistrates, appointed, 27, 28, 29 Courts, introduced, 19 Poll, at Parliamentary elections, 242 Population of Port Phillip in 1842, 65 ; in 1850, 137 ; in 1855, 220 Portland Bay (squatting district), 47 Portland, founded, 29 Port Phillip (Victoria) organised, 27 ; general condition in 1842, 63 ; in 1850, 136-138 Port Phillip Association, 23, 26 Postmaster-General, 285, 304 Pre-emptive right, 178, 181 President of Board of Trade, 4, 9 of Legislative Council, 240, 251 Presidents of shires, 342 Privileges of Parliament and its mem- bers, 237 Privy Council, 2 committees of, 2 . orders of, 103, 112, 182, 184, 186 as Court of Appeal, 175, 324 "Professional Division," of Public Ser- vice, 309, 310 Property Qualification for Legislative Council, 250, 251 Public Service Board, 262, 274, 299, 308, 309, 310, 311 Worship, provision for, 74, 133, 144, 223 places of, 221 " Public Account," the, 282-284 Works, commissioner of, 285, 286, 297 Instruction, Minister of, 297 QuAKTEK Sessions, proclaimed at Mel- bourne, 29 Queensland, separate existence fore- shadowed, 42, 145 ».; accomplished, 367 Questions, to voters at elections, 242 Quit-Rents, 33, 35, 117-120 Railways, Minister of, 302, 303 Railway Commissioners, 303 " Railway Construction Account," 292 Rates, municipal, 342-344 Receivers of Revenue, 282 Registrars of Mining Districts, 348 of County Courts, 350 Registry of Deeds, 51 Representative Government, introduced, 69 Requests, Court of, established at Mel- bourne, 30 Reservation of Bills for Royal Assent, 232 Residence, required for voters at elec- tions, 242 "Responsible" officials, 192, 193, 206- 216, 255, 277, 288 Returning officers, 240, 241 Revenue of Port Phillip in 1842, 65 ; in 1850, 137 ; of Victoria in 1854, 217 ; in 1855, 219 (and see Appendix C) clauses, 72, 73, 143, 252, 255- 258 collection of, 282, 283 expenditure of, 283, 284 Revision Courts, 239, 240 Roads and Bridges, 91, 169, 327 Roads Trusts, 170 Royal Commission, of 1854 (Land Ques- tion), 186, 187 Russell, Lord John, 145, 147, 195, 198, 199 St. Patrick's Hall, first meeting of Victorian Legislative Coimcil at, 161 School Districts, 298 Secretaries of State, origin and history of, 5, 6 ; no part of Constitution, 7 ; now always in Cabinet, 8 Secretary of State for the Colonies ap- pointed, 6 ; office abolished, 7 ; incor- porated with War Department, 7 ; finally separated, 199 "Selectors " (of Crown Lands), 286, 287, 288, 289 Separation (of Victoria from N. S. W.), 125-135, 141 Sessions of Parliament, 236 "Settled" Districts, 113 Sheriffs, appointed in Port Phillip, 51 Shipping (Victorian) in 1842, 66 ; in 1850, 138 Shires, first created, 328 {see "Local Government ") Solicitor-General, 302 INDEX 403 South Australia, organised, 20 ; system of land grants in, 39 ; roads, 172 Speaker, of the Legislative Council, 71, 84, 161, 187, 211 of the Legislative Assembly, 240, 244, 254 " Special " lands, 286, 287 " Special " surveys, 41, 42 Squatting, 44, 45, 103, 107-116, 131, 137, 178, 182, 185, 187, 188, 221, 288, 290 ■ Eegulations of 1836, 46 of 1848, 113-115 Districts, 47 Franchise, 116 (and see " Crown Lands ") Stanley, Lord, 100, 109, 123 " State Forests," 293 Stawell, Sir William, 161, 176, 234 Superintendent of Port Phillip (sec " La- trobe, Mr.") Supply, Committee of, 280, 281 Supreme Court, of N. S. W., 13, 14, 16 of Victoria, 144, 174, 175, 264, 265, 318-321, 322, 323 n., 331, 333, 351 Surveyor-General, 285 Surveyors (Mining), 348 "Swamp Lands," 292 Swan Eiver Settlement ("Western Aus- tralia"), 20 Tbaohees in Government schools, 299, 300 "Timber Reserves," 293 " Town " lands, 38 Trade and Customs, Commissioner of, 297 Treasurer of the colony, 279-284 of a municipality, 342 "Treating," 244 "Trust Fund," the, 283 Under-Teeasueee of Port Philip ap- pointed, 29 " Undue influence," 244 "Unsettled" Districts, 113 Vacation of seats in Parliament, 238 j Van Diemen's Land (Tasmania), separ- ated from N. S. W., 13 ; roads in, 172 Van Diemen's Land Company, 35 "Vermin," 291, 295 "Vermin Districts," 295 Vice-Admiralty Court, first established in N. S. W., 11 ; of Victoria, 323, 324 Vice-President of Board of Trade, 4 Victoria, creation of, 141 ; boundaries of, 132, 133, 141, 201, 202 ; condition of, in 1855, 217-223 Victorian Railway Commissioners, 263 Volunteers, 301, 302 Votes at elections, counting of, 243 return of, 243 Wagers on. results of elections, 244 Wardens of Mining Districts, 347 "Water Reserves," 293 Water Supply, Commissioner of, 304 Ways and Means, Committee of, 280, 281 Wearing of badges, 244 Wentworth, Mr., "protests" of, 151 Westernport (Squatting District), 47 Westgarth, Mr., 151, 152 Wheat, average yield per acre, 297 Williamstown, named, 28 Women, ineligible for Leg. Council, 238 for municipal council, 330 Writs, for Parliamentary elections, 240, 241 THE END Printed By R. & R. Cl.ARK, EdMurgh €uMoQnt of §0oks PUBLISHED BV MACMILLAN AND CO. Bedford Street, Covent Garden, London May, 1891. 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