1850, in which the Secretary of State explained the views of the Home Government. The Act reached the colony on 11th January, 1851, and was immediately proclaimed. In June following Governor Fitzroy received a commission under the Great Seal appointing him Captain-General and Governor-General of all Her Majesty's Australian possessions; a commission appointing him Governor of New South Wales; and three separate commissions appointing him Governor of the colonies of Van Diemen's Land, South Australia and Victoria respectively; also commissions for the appointment of Lieutenant-Governors of Van Diemen's Land, South Australia and Victoria, together with warrants delegating to the Governor of New South Wales and the Lieutenant-Governors of the other colonies the power to nominate non-elective members of their respective Legislative Councils. Each commission was accompanied by royal instructions. On 8th April, 1851, the Legislative Council of New South Wales, under the leadership of Mr. W. C. Wentworth, adopted a report of its select committee, which protested against the new Constitution Act on the grounds that it did not place the control of all revenue and taxation entirely in the hands of the Colonial Legislature; that all offices of trust and emolument should be filled by the Governor and Executive Council, unfettered by instructions from the Secretary of State for the Colonies; and that plenary powers of legislation. should be conferred on the Colonial Legislature. It concluded by "solemnly protesting against these wrongs, and declaring and insisting on these our undoubted rights; we leave the redress of the one and the assertion of the other to the people whom we represent and the legislature which shall follow us."-Tregarthen's Australian Commonwealth (1893), p. 139. An Electoral Bill for New South Wales was passed increasing the number of members of the Council from 36 to 54, of whom 36 were to be elective members and 18 nominee members. An Electoral Bill for Victoria was passed providing that the Legislative Council of that colony should consist of 30 members, 10 nominated by the Crown and 20 elective. DEMAND FOR RESPONSIBLE GOVERNMENT.-A new election of the Legislative Council of New South Wales, on the liberalized franchise, then took place. The newly-constituted Council affirmed the opinion of its predecessor and passed a resolution that it was "prepared upon the surrender to the Colonial Legislature of the entire management of all our revenues, territorial as well as general, in which we include mines of every description, and upon the establishment of a constitution similar in its outline to that of Canada, to assume and provide for the whole cost of our internal government, whether civil or military." In a despatch addressed to Governor Fitzroy, dated 15th December, 1852, Sir John Pakington, the Secretary for the Colonies, stated that Her Majesty's Government had been greatly influenced by the considerations arising from the extraordinary discoveries of gold in the Australian colonies, which had imparted new and unforeseen features to their political and social conditions. Such a state of affairs had no parallel in history, and in all human probability there would be an advance in the population, wealth and material prosperity, with a rapidity unprecedented. Her Majesty's Government had further observed with satisfaction the general order and good conduct which distinguished the behaviour of the multitudes attracted to the gold deposits, and they were also bound to recognize the firmness and good judgment of the local authorities. With this evidence before them Her Majesty's Government could not but feel that, whilst it was more urgently necessary than before to place the full power of self-government in the hands of the colonies, it was equally plain that the extraordinary increase in wealth and prosperity testified to their fitness to regulate their own affairs. In reply, therefore, to the desire expressed by the Legislative Council of New South Wales in favour of a Constitution similar in its outlines to that of Canada, it was the wish of Her Majesty's Government that there should be established, in each colony, a new legislature on the basis of an Elective House and a Legislative Council nominated by the Crown or appointed subject to the approval of the Crown. Upon the receipt of such a constitutional enactment, framed by the existing Councils, with civil lists for the payment of salaries of permanent officers attached, the Imperial Government would undertake forthwith to propose to Parliament such measures as would be necessary to carry into effect the entire arrangement, viz. :—(1) By the repeal of the Land Sale Act, under which the sale of lands was vested in the Imperial authorities, and could not be regulated by colonial legislatures; and (2) by the requisite alteration in the Constitutional Act of 1850 with the schedules annexed thereto. It was added that the civil lists should provide permanent appropriation for the maintenance of the salaries of the principal officers of Government, such as the Governor, heads of departments, judges, &c. "It is my wish," concluded Sir John Pakington, "that the change should be speedily and satisfactorily effected." THE NEW CONSTITUTION.-On the receipt of Sir John Pakington's despatch a committee was appointed by the Council to draft a Constitution. Of that committee Wentworth was one of the leading spirits. By the terms of the Enabling Act 13 and 14 Vic. c. 59 s. 32, the Governor, with the advice of the Legislative Council, had been authorized to establish in the colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as might be determined, and to vest in such Houses the powers and functions of the Legislative Council for which the same were substituted. The Select Committee appointed to frame a new Constitution were not contented to establish a bi-cameral legislature capable of exercising only the powers and functions of the old Council. They considered it necessary that the new legislature should have "increased powers and functions;" and the Bill drafted by them was designed to confer on the new legislature increased powers and functions. In so doing the framers of the Constitution acted in excess of the authority conferred by section 32, and they ran the risk of the Royal assent being refused. This was what actually occurred to the first Constitution framed by the Legislative Council of South Australia. Nevertheless the leaders of political thought in New South Wales, believing that the measure of power granted by the Constitutional Act of 1850 was not sufficient to meet the requirements of the colony, proposed that the new legislature should have an express and enlarged grant of powers and functions, without reference to the limitations of the Act of 1850. The opening section of the Bill provided that there should be, in place of the Legislative Council then subsisting, a Legislative Council and a Legislative Assembly, and that Her Majesty should have the power, by and with the advice and consent of the said Council and Assembly, to make laws for the "peace, welfare and good government of the said colony in all cases whatsoever." Members of the Legislative Council were to be nominated by the Governor with the advice of the Exccutive Council. The first nominees were to hold their seats for five years only, but subsequent nominees were to be appointed for life. The members of the Assembly were to be chosen by the electors upon the franchise prescribed in the Bill. Section 45 specially enabled the legislature so constituted to impose and levy duties of Customs. Section 47 provided that all revenue should form a consolidated fund to be appropriated by the legislature in the manner directed. Two other sections conferred power to amend the Constitution, subject to certain conditions; another section declared that, subject to provisions therein contained, the legislature could make laws regulating the sale and disposition of the waste lands of the Crown. The final section stipulated that the Bill should not have any force or effect until inconsistent Imperial Acts were repealed and the entire management and control of the waste lands of the colony were vested in the proposed legislature. These grants of powers may be thus summarized: : 1. To make laws in and for New South Wales in all cases whatsoever. 2. To impose taxation, including duties of Customs. 3. To appropriate revenue. 4. To legislate concerning the waste lands of the Crown. Accompanying these grants there were certain restrictions:- 2. That no fiscal and commercial laws should be passed in- 3. That no differential or preferential duties of Customs should be imposed. 4. That all Bills for appropriating any part of the public revenue or for imposing any new rate, tax or impost should originate in the Legislative Assembly. 5. That it should not be lawful for the Assembly to originate or pass any vote, resolution or Bill for the appropriation of any part of the consolidated revenue fund to any purpose which should not have been first recommended by a message of the Governor to the said Assembly. The Bill contained provisions relating to electoral matters; respecting the assent of the Governor to Bills, and the disallowance of Bills by Her Majesty; also respecting the boundaries of the Australian colonies. Another section of some significance was one which provided that the appointment to all public offices, whether salaried or not, should be vested in the Governor, with the advice of the Executive Council, "with the exception of the appointments of the officers liable to retire from office on political grounds as hereinafter mentioned, which appointments shall be vested in the Governor alone."-Sec. 37. On 21st December, 1853, the new Constitution was adopted by the Council and transmitted to the Secretary of State for the Colonies. As it contained provisions in excess of the power conferred by 13 and 14 Vic. c. 59 s. 32, the Bill could not receive the Royal assent. It was decided by the Imperial Government to strike out the clauses relating to the reservation and disallowance of Bills. In that amended shape it was made a schedule to a Bill introduced into the Imperial Parliament, entituled "A Bill to enable Her Majesty to assent to a Bill, as amended, by the legislature of New South Wales to confer a Constitution on New South Wales and to grant a civil list to Her Majesty." Section 2 of this Bill conferred on the Parliament of New South Wales the entire management and control of the waste lands of the Crown; section 3 preserved the provisions of former Acts respecting the allowance and disallowance of Bills; section 4 preserved to the Parliament of New South Wales the power to make laws amending the Constitution, subject to the provisions contained therein; section 5 declared that the whole watercourse of the river Murray from its source to the eastern boundary of South Australia should be deemed to be within the territory of New South Wales. In this shape the Bill was passed by the Imperial Parliament and received the Royal assent on 16th July, 1855. Its number is 18 and 19 Vic. c. 54, and it is now known as the New South Wales Constitution Statute, whilst the Act contained in the Schedule is known as the New South Wales Constitution Act. The Act conferring a Constitution on Victoria was assented to on the same day. These Acts were transmitted to the respective colonies, accompanied by explanatory despatches from the Secretary of State, Lord John Russell, in which the Governors were instructed as to the introduction of Responsible Government. RESPONSIBLE GOVERNMENT.-"That great change in our colonial system which is known as the introduction of Responsible Government was," wrote Dr. Hearn, "effected solely by a despatch from a Secretary of State. This despatch did not even affect the legal tenure of colonial offices; it merely described the circumstances in which the Crown would exercise its right of displacing at its pleasure certain classes of its servants. In the body of the Act, for example, which conferred upon Victoria its present form of government" (and these remarks apply equally to the New South Wales Act) "the words Responsible Minister, or any equivalent terms, never once occur. Were it not for a marginal note, which forms no portion of the Act, not even a hint would be given by this statute of the important changes which it was intended to effect."-Hearn's Government of England, pp. 8-9. Sir Richard C. Baker, President of the Legislative Council of South Australia, has expressed a similar opinion as to the method and circumstances in which Responsible Government was introduced into the colonies. "It is evident," he writes, "that the enormous power exercised by the Ministry rests on a very small legal basis, and it is curious to note that this system of Responsible Ministry, that is, of advisers, theoretically responsible to the Governor and constitutionally and practically responsible to the Parliament, was introduced into Australia simply in pursuance of a few words contained in a despatch of Sir R. Peel to one of our colonial Governors, and that it was originally introduced into Canada simply in pursuance of a conversation between Sir Francis Head and a Secretary of State for the Colonies."-Notes on the Constitution of South Australia, "Adelaide and Vicinity," p. 27. The theory maintained by Dr. Hearn, and by Sir Richard Baker, has not been concurred in by all the leading constitutional authorities. Mr. George Higinbotham (afterwards Chief Justice of Victoria) held the view, during his official career as Attorney-General of Victoria, that the existence of Responsible Government in a constitutional colony was dependent, not upon instructions to the Governor, but on the statute law under which the Constitution was established in such colony. These principles he afterwards affirmed judicially in the great constitutional case of Ah Toy v. Musgrove (1888), 14 V.L.R. p. 349. In his opinion the Imperial statute law was the sole source of the public rights of every dependency of the British Crown possessing powers of internal self-government. Those rights could not be legally derived from the commission and instructions issued by the Crown to successive Governors of a colony. The commission and instructions were issued to the Governor by Her Majesty on the advice of her Imperial Ministers, and the powers and commands contained in those instruments were as revocable as they were grantable by the Sovereign.-Id. p. 379. It was in the Constitution Acts and other Imperial legislation applicable to the colonies that the system of Executive administration, generally described as Responsible Government, could alone be found. The increased powers of legislation conveyed to New South Wales, Victoria, and the other colonies, in and by their Constitution Acts, necessitated the far greater change introduced by the same Acts into the system of government by the application to the enlarged functions of government of the new principle of Ministerial responsibility. Mr. Higinbotham did not acquiesce in the contention of Dr. Hearn and other learned constitutional jurists, that Responsible Government could not be found in the Constitution Acts of such colonies as New South Wales and Victoria. On the contrary, he was able to find in those constitutional charters abundant evidences of the intention of their framers, ratified by the Imperial Parliament, to establish such a plan of Executive Government. It was true that in those Constitutions the Cabinet was not mentioned; that the expression "Responsible Ministers" occurred only in the marginal note-which formed no part of the law-annexed |