the administration of criminal law according to a procedure suitable enough, perhaps, for a penal settlement, but not for a free community. There was no statutory authority whatever for the creation of civil courts. The Imperial authorities seem to have considered that the Crown, in the exercise of its prerogative, could constitute civil courts. By letters patent, dated 2nd April, 1787, the Crown created a court of civil jurisdiction having power to deal in a summary way with personal actions and probate and administration. proceedings "according to the law of England." The civil court was presided over by the Judge-Advocate and two inhabitants of the settlement, appointed by the Governor. This civil procedure continued in operation until 4th February, 1814, when fresh letters patent were issued, formulating a new plan of administration, by which the civil and criminal jurisdictions, previously united in the Judge-Advocate, were separated. A primary civil court, presided over by the Judge-Advocate and two inhabitants appointed by the Governor, was established and endowed with jurisdiction in personal actions in which the amount involved did not exceed £50. A Supreme Court, presided over by a Judge and two magistrates, was erected and clothed with jurisdiction in personal actions in which the amount involved exceeded £50, and with general jurisdiction in equity, probate, and administration matters. Eminent jurists are now of opinion that these civil courts were established by the Crown without any constitutional authority. The legislative power exercised by the Governor is also believed to have been equally unconstitutional.-Webb's Imperial Law, p. 24.

His

The Governor was endowed with almost absolute power. rule was a despotism, tempered by his own discretion and by the knowledge that he was liable to be called to account by the Imperial authorities for any maladministration. His oath of office principally required him to observe the law relating to trade and plantations.Jenks' Government of Victoria, p. 11. Such was the legal authority under which, on 26th January, 1788, a penal settlement was established and for many years afterwards maintained at Sydney Cove. It was not at first intended to be a colony or plantation within the ordinary meaning of those terms, viz., for the purpose of trade and cultivation.-Clarke's Colonial Law, p. 1. Lubbock v. Potts, 7 East 449. Webb's Imperial Law, p. 12.

By the Acts 59 Geo. III. c. 114, 1 and 2 Geo. IV. c. 8, and 3 Geo. IV. c. 96, the Governor of New South Wales was given limited powers to impose local taxation in the shape of Customs duties on spirits, tobacco and other goods imported into the colony.

A RUDIMENTARY CHARTER.-The temporary Act 4 Geo. IV. c. 96 (1823), which became law during the governorship of Sir Thomas Brisbane, was the first legislation passed by the Imperial Parliament conferring anything like the rudiments of local self-government on the New South Wales community. It was intituled "An Act to provide until the 1st day of July, 1827, and until the end of the next session of Parliament, for the better administration of justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof;" but it went a little beyond its title. The old

Military Courts of 1787 were abolished, and a Supreme Court and Court of Appeal, on something like the English model, were authorized to be erected. The Crown was empowered to create, by warrant, a Council consisting of from five to seven persons charged with certain legislative powers of a limited character. They were to be appointed during the pleasure of the Crown; they could advise but not overrule the Governor in matters of legislation, and all laws and ordinances passed with their approval were required to be laid before the British Parliament. On 17th May, 1824, a charter of Justice, bearing date 13th October, 1823, was promulgated, creating the Supreme Court of New South Wales, and appointing Francis Forbes, Esq., to be the first Chief Justice. On 1st December, 1823, five persons were appointed members of the Council, consisting of the principal Government officials, viz., the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Principal Surgeon, and the Surveyor-General for the time being. On 17th July, 1825, the Council was re-constituted and increased to its full number of members, including three private persons, residents of the colony.

Up to the passing of the Act 4 Geo. IV. c. 96 (1823), Van Diemen's Land was a dependency of New South Wales. By sec. 24 of that Act the Crown was authorized to proclaim Van Diemen's Land a separate colony independent of New South Wales. The history of New South Wales and Van Diemen's Land (afterwards Tasmania), as constitutional colonies, begins with the Act 4 Geo. IV. c. 96, which was their first charter of Government.

The Act 9 Geo. IV. c. 83 (25th July, 1828), intituled "An Act for the Administration of Justice in New South Wales and Van Diemen's Land, and for the effectual government thereof," was the second constitutional charter of Australia. It was passed during the governorship of Lieutenant-General Sir Ralph Darling. It re-enacted the main provisions of the temporary measure and made better provision for the administration of justice. The civil and criminal jurisdictions of the courts were amended and improved, power being given to the respective Legislative Councils to introduce trial by jury in all criminal cases. It contained the well-known section (24), which enacts "That all laws and statutes in force within the realm 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 New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said colonies; and as often as any doubt shall arise as to the application of any such laws or statutes in the said colonies respectively, it shall be lawful for the Governors of the said colonies respectively, by and with the advice of the Legislative Councils of the said colonies. respectively, by ordinances to be by them for that purpose made, to declare whether such laws or statutes shall be deemed to extend to such colonies, and to be in force within the same, or to make and establish such limitations and modifications of any such laws and statutes within the said colonies respectively, as may be deemed expedient in that behalf."

Another interesting and important section of this Act was sec. 20, in which it was recited that "it may be necessary to make laws and ordinances for the welfare and good government of the said colonies of New South Wales and Van Diemen's Land, and the dependencies thereof, the occasions of which cannot be foreseen, nor without much delay and inconvenience provided for, without entrusting that authority for a certain time, and under proper restrictions, to persons resident there." It was also recited that "it is not at present expedient to call a Legislative Assembly in either of the said colonies." It then proceeded to enact "That it shall and may be lawful for His Majesty, his Heirs and Successors, by warrants under his or their sign manual, to constitute and appoint in New South Wales and Van Diemen's Land respectively, a Council, to consist of such persons resident in the said colonies respectively, not exceeding fifteen nor less than ten, as His Majesty, his Heirs and Successors, shall be pleased to nominate."

The Governors of the colonies of New South Wales and Van Diemen's Land, with the advice of the Legislative Councils so created, were authorized "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 of England." This included. certain limited powers of levying customs and excise taxation for local purposes, but it conveyed no control over the waste lands of the Crown. No proposed law could be passed by either of these Councils unless it was first laid before such Council by the Governor of the colony. The members of these legislative bodies held their seats at the pleasure of the Crown, and they had no control over the administration, which was exclusively vested in the Governor.

At this time the official staff of the New South Wales Government consisted of a Chief Justice, an Archdeacon, a Colonial Secretary, an Attorney-General, a Collector of Customs, an Auditor-General, a Principal Surgeon, and a Surveyor-General. These appointments were made by the Imperial Government. During this period we find some of the earliest traces of a colonial Executive Council, a body which subsequently acquired in the Australian colonies a position analagous to that of the Privy Council in England. In the Commission appointing Sir Richard Bourke Governor of New South Wales (25th June, 1831), he was authorized to nominate an Executive. Council. This Council consisted of such of the leading government officials as the Governor thought fit to consult with in matters of local administration.-Jenks' Government of Victoria, p. 17.

FIRST REPRESENTATIVE LEGISLATURE.-The third important charter regulating the Government of New South Wales was 5 and 6 Vic. c. 76 (30th July, 1842), passed during the Governorship of Sir George Gipps. It was intituled "An Act for the Government of New South Wales and Van Diemen's Land," but it principally concerned, and was for the benefit of, New South Wales. The Legislative Councils established by previous Acts were purely nominee and irresponsible bodies. This Act established, for the first time in Australia, a legis

It was

lature partly, but not wholly, representative in its character. enacted that there should be within the colony of New South Wales a Legislative Council to consist of 36 members, 12 of whom were to be appointed by Her Majesty and 24 elected by the inhabitants of the colony. The Governor with the advice and consent of the Council was authorized to make laws for the peace, welfare and good government of the colony, including the power to impose duties of customs, provided that such laws were not to be repugnant to the law of England; nor were they to interfere with the sale or appropriation of lands belonging to the Crown or with the revenue arising from the same. Bills imposing duties of customs had to be reserved for the Queen's assent. The Council was to be presided over by a Speaker elected by itself. There was to be a session of the Council once every year, and every Council was to continue for five years from the day of the return of the writs and no longer, subject to be sooner dissolved by the Governor. Power was given to the Governor to establish, by letters patent, district Councils for the purpose of carrying on local government in such counties or other divisions of the colony as he might deem fit. Elective members of the Council were required to be the owners of freehold land of the clear annual value of £100, or of the capital value of £2,000. They had to be chosen by the votes of electors being owners of freehold land of the clear capital value of £200, or householders occupying dwellings of the clear annual value of £20. This Act also contained provisions relating to the giving or withholding by the Governor of the Royal assent to Bills passed by the Council, the disallowance of Bills assented to by the Governor, and the assent to Bills reserved by the Governor, and enacting that the Queen, by the advice of the Privy Council, or through one through one of her principal Secretaries of State, might convey instructions to the Governor for his guid

ance.

This Act did not grant to New South Wales the system known as Responsible Government. The Governor was still his own prime minister, and the heads of the Departments and other public officers still continued to receive and hold their appointments from the Crown; their tenure of office depended, not on their possession of the confidence of the Legislative Council, but on the pleasure of the Crown represented by the Governor. Although it was only a half measure and an instalment of political freedom, it marked the dawn of a new system. It contained the feeble germs of Representative Government, whence has since sprung the splendid fabric of the Parliamentary institutions in Australia. It was the first concession made by enlightened British statesmen to the growing wealth and importance of the Australasian colonies. Limited as were the provisions of this Constitutional Act, meagre as were the liberties conferred, it was nevertheless drawn on lines capable of development and expansion with the growing wants and aspirations of the young community. The Council was built partly on the representative principle, and the qualified electors of the colony had the predominant power of constituting twenty-four members, as against twelve nominated by the Crown. The new Council was opened by Sir

George Gipps on 1st August, 1843, and among the elective members were- -William Charles Wentworth and William Bland, for the city of Sydney; John Dunmore Lang, Charles Nicholson, Thomas Walker, among the members for the District of Port Phillip (now Victoria); Charles Cowper, Richard Windeyer, George Robert Nichols.

The next important charter of Representative Government in Australia was 13 and 14 Vic. c. 59 (5th August, 1850) intituled "An Act for the better government of Her Majesty's Australian colonies," and commonly known as the Australian Colonies Government Act. The Bill, of which this Act was the outcome, was first introduced into the House of Commons in June, 1849. The two main objects of the Act were the separation of the Port Phillip District from New South Wales, and the establishment in all the colonies of an improved system of Provincial Government. The Legislative Council, erected in New South Wales by the Act of 1842, was not materially disturbed. Its powers were in some respects increased, and the franchise on which its representative members were elected was liberalized.

The Governor and Legislative Council of New South Wales. were empowered to increase the number of members of that body, subject to the condition that one-third of its members were to be nominated by Her Majesty and the remaining members to be elected by the inhabitants of the colony. The property qualification of electors was reduced in the case of freeholders from £200 to £100, capital value, and in the case of occupiers of dwellings from £20 to £10 per annum. The qualification of members remained as under

the Act of 1842.

Two new powers were conferred on the Governor and Legislative Council by this Act, which they did not possess by the Act of 1842. The Governor, with the advice of the Council, was authorized to impose and levy duties of Customs on the importation of goods, wares and merchandise imported into the colony from any part of the world, subject to the limitation that no differential duties could be imposed (sec. 27). There was no provision requiring Customs Bills to be reserved for the Queen's assent; and all doubts whether such reservation was still necessary were afterwards removed by the declaratory Act 29 and 30 Vic. c. 74. Power was given to the Governor and Legislative Council, in common with the Governors and Legislative Councils of the other Australian colonies, to alter the qualifications of electors and of members as fixed by the Act, or to establish, instead of the Legislative Council, a Council and a House of Representatives, or other separate legislative Houses, to be appointed or elected by such persons and in such manner as should be determined, and to vest in such Houses the powers and functions of the old Legislative Council, provided that such Bill should be reserved for the signification of the Queen's pleasure (sec. 32). The Council was still unable to pass laws repugnant to the law of England or relating to the sale and appropriation of the waste lands of the Crown, which continued to be dealt with under Imperial Legislation (sec. 14).

The Act 13 and 14 Vic. c. 59 was forwarded by Earl Grey to Governor Fitzroy, accompanied by a despatch dated 30th August,