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UNT/ERSITY of CALIFORNIA

LOS ANGELES

LIBRARY

CONSTITUTIONAL DEVELOPMENT
OF VICTORIA, 1851-6.

Constitutional Development
of Victoria

1831-6

By
EDWARD SWEETMAN. M.A., Dip. Educ.

Lecturer in History, Teacher*' College, Melbourne ;

Harbison- Higinbolham Research Scholar, University

of Melbourne.

With an

INTRGDUCTIGiN

by
Professor W. HARRISON MOORE. LL.D., C.M.G.,

Dean of the Faculty of Law, University uf Melbourne.

/iRelbourne :

Auckland, Christchurch, Duncdin and Wellington, N.Z. and London.

WHITCOMBE & TOMBS LIMITED.

115948

INTRODUCTION.

The Colony of Victoria was established by separa-
tion from New South Wales on 1st July, 1851, tinder
the provisions of 13 and 14 Vict. C. 59. It received
'^ a Constitution similar to that which had been in
r:: force in the Mother-Colony since 1842, viz. : a
^ Legislative Council, as to one-third nomina.ted by
the Crown, and as to two-thirds elected by the
people of the Colony, but with an Executive
^ appointed by and responsible to the Crown. The
.. Legislature exercised the sole taxing power in the
Colony, but a considerable part of the revenue was
derived from the sale or leasing of Crown lands, and
from other prerogative rights in the lands. This
revenue, as well as the lands thenisehes. was disposed
of by the Executive under powers derived not from
the Legislative Council, but from the Crown under
the authority of Imperial legislation. On 23rd
November, 1855, a new Constitution under an Im-
c;; perial Act, 18 and 19 Vict. C. 55, came into opera-
• tion, and with it "Responsible Government" was
, established. The principal executive officers were
O appointed by the Governor, and became responsible
to the local Legislature ; subordinate officers and the
judiciary were appointed by the Governor on the
advice of his Executive, and were governed by local
legislation. The Territorial revenue and the disposi-
tion of the lands of the Colony came under the
control of the new Legislative Council and Legisla-
tive Assembly. In other words, the Colony passed
under the regime of self-government so far as its
internal and domestic afifairs were concerned.

It is commonplace that this change was effected
partly indeed by changes in the law, but partly
also — and in respect to its most distinctive char-
acteristic, the responsibility of the Executive to the

INTRODUCTIOX.

Legislature, mainly — by the adoption of new prac-
tices based upon the acceptance of constitutional con-
ventions. The present essay is a survey of the four
years of "representative institutions," with a view
to ascertaining how far the ground was, during those
years, being prepared for the change by the practice
of government and the relations of the Executive
and the Legislature. What were the relations
between the Governor and his principal executive
officers? How far did they collectively form a body
of advisers determining policy? To what extent
was the Executive Council a council of officials?
How far was it the practice to include officials or
Executive Councillors among the nominee members
of the Legislative Council? Did the Executive
Councillors or the officials in the Legislative Council
act collectively as does a Ministry, or separately as
do individual members? Had those nominee mem-
bers of the Council, who were neither officials nor
Executive Councillors, freedom of action, or were
they a "Government party'' expected to support the
Executive? Did the Executive "lead the House"?
Did the Legislative Council, in addition to making
laws and imposing taxes, claim to criticize the
general administration? Were "votes of censure"
known? Was a general Budget laid before the Legis-
lative Council, so as to enable it to review the whole
expenditure of government, including the part of
the expenditure which it did not directly control?
Were there any cases in which appointments to the
Executive Council were made with a view to secur-
ing the support of the Legislative Council, or any in
which a man ceased to hold office, or to be a member
of the Executive Council, or was removed from the
Legislative Council, in deference to the opinion of
that Council? In making appointments to the
Executive Council, did the Governor ever make a
choice from the elected members of the Legislative
Council?

INTRODUCTION.

Mr. Sweetman's careful examination of the
records, and of the political history of the brief
period under review, clearly establishes that a rapid
approximation to a Parliamentary system was
taking place, so that the formal introduction of
responsible government in 1855 was more the re-
moval of hindrances to control than a new condi-
tion attained per saltiun. The essay is thus a contri-
bution to the evolutionary character of our institu-
tions— formal change is made only after a prepara-
tory stage of practice and experience, which makes
the change itself a part of development.

W. HARRISON MOORE.

PREFACE.

The subject matter of this book is the in-
vestigation of certain problems connected with
the constitutional development of Victoria,
between 1851 and 1856. ^lost of the sub-
jects investigated were suggested to me by
Professor H. Moore, LL.D., C.M.G. (School of
Law), and by Professor E. Scott (School of
History), University of Melbourne, as needing
either solution or amplification by means of research
v^rork. With both these objects in view, I consulted
State papers, original documents, files of early
newspapers and rare political pamphlets, as well as
certain well-known historical works dealing with
the early constitutional history of Australia. Full
references to these sources of information will be
found, as a rule, at the foot of each page. To both
Professors Moore and Scott, I am much indebted for
the suggestions and 'guidance which they gave me
during the course of my investigation.

The topics dealt with fall broadly into three
divisions : (a) The Origin of Responsible Govern-
ment in Victoria; (b) The Executive and the Legis-
lative Council of Victoria, 1851 to 1856; their origin,
character and development; (c) Some constitutional
struggles in the Legislative Council, 1851-6. Com-
plete lists of the members of the Legislative Council,
and of Victoria's first Parliament, have been added
for the sake of reference, and to make the exposi-
tion of certain chapters as clear as possible.

Though the book deals with Victorian constitu-
tional history as its main subject, portions of it con-
cern the constitutional histories of New South
Wales, Van Diemen's Land and South Australia.
Lord Durham's Report, presented to the British
Parliament early in 1839, not only profoundly in-

PREFACE.

fluenced the future of Canada, but also produced
marked effects upon the political life of the Aus-
tralian colonies. By June, 1839, Lord Durham's
Report was receiving wide publicity in the Sydney
newspapers ; its recommendation to grant Respon-
sible Government to Canada won warm supporters
to that doctrine in New South Wales. Soon after
the publication of Lord Durham's Report in Sydney,
the Governor, Sir George Gipps, declared in the
Legislative Council that every man would do well
to read it.

The origin and history of the "Blended House" —
the Legislative Council — in connection with the penal
character of New South Wales, have an interest
afifecting not only that colony, but also Victoria, Van
Diemen's Land and South Australia. This type of
Legislature was in vogue in all four colonies ; its
genesis and history are unique in the annals of
British Colonial possessions.

In quite as striking a manner, the contest which
the Victorian Legislative Council carried on with
the Home Government over the Convicts Preven-
tion Act, claims a distinct place in Colonial consti-
tutional history. In this dispute the law of self-
preservation clashed with one of the Crown's
prerogatives, and finally triumphed. A marked
feature in connection with this and other constitu-
tional struggles which took place between the Legis-
latures of New South Whales and \'ictoria, and the
Home Government, in the years 1851 to 1856, was
the conciliatory spirit shown by tiie Home Govern-
ment towards the requests of these colonies. The
enlightened policy which the Home Government car-
ried out with regard to the Australian colonies at
this period, was admirably expressed by Lord John
Russell when he said: "I delight in observing the
imitation of our free institutions in colonies at a dis-
tance from the palace at Westminster."

PREFACE.

I am much indebted to Professor Moore for his
introduction to this book, the contents of which
result largely from the encouragement which he gave
me to persevere until each subject had been
thoroughly investigated. Ready and liberal assis-
tance was given to me in my search for despatches
and other papers, by Mr. Wadsworth, Librarian at
the Commonwealth Parliament; by Mr. Mabbott,
Clerk of the Executive Council, Treasury Buildings;
and by the stafif of the Melbourne Public Library.
From my sister, Miss S. K. Sweetman, B.A. (Essen-
don High School), and Mr. R. Lawson, M.A.
(Teachers' College), I received generous help in
checking my manuscript. To each of those who so
kindly assisted me in the production of this book,
I desire gratefully to acknowledge my indebtedness.

EDWARD SWEETMAN.
Teachers' College,
Melbourne,

September 1st, 1920.

COXTEXTS.

Page.
Introduction by Professor \V. Harrison Moore,
LL.D.. C.M.G., Dean of the Faculty of Law,
University of Melbourne - - - - 5

Preface .------9

PART I.
The Origin of Responsible Government in Victoria.

Chapter. Page.

I. Events preceding the preparation of the New

Constitution - - - - - 17

II. The Constitution desired ; its sanction by the
•^ Imperial Government - - - 45

PART II.

The Executive and the Legislative Council of

Victoria: Their Origin and Development.

1851-6.

Chapter

III. The Executive Council - - - - 71

IV. The Lieutenant-Governors of Victoria, 1851-5;

their political relationship to the E.xecu-

tive Council - - - - 85

V. The "Blended House" ; its origin and develop-
ment ... - - 95

\T. Nominees — some resignations under special cir-
cumstances - - - - - 112

VH. Analysis of Voting; its import in the Legis-
lature - - - - - 117

CONTENTS.

PART III.

Sojiie Constitutional Struggles in the J'ictorian
Legislature, 1851-6.

Chapter. Page.

VIII. The Gold Revenue - - - - 129

IX. The Territorial Revenue - - - - 136

X. The "Want of Confidence" Motion; its signifi-
cance _ - _ - - 140

XI. The Convicts Prevention Act - - - 146

APPENDIX.

A. List of the Members of the Legislative Council of

Victoria, November 11, 1851, to March 20th,
1856 ------ 16;?

B. List of the Members of the Upper and the Lower

House of Victoria's First Parliament, Novem-
ber 21st, 1856 - - - - - 182

Index ------- 184

PART I.

THE ORIGIN OF RESPONSIBLE GOVERN-
MENT IN VICTORIA.

CHAPTER I.

EVENTS PRECEDING THE PREPARATION
OF THE NEW CONSTITUTION.

When the Port Phillip District was first settled
in 1835, it was a part of the Colony of New South
Wales. At , that time New South \\'ales was
governed under the provisions of the 'Act of 1828, by
virtue of which the Governor was assisted by a
wholly nominated Council, over whose meetings it
was his duty to preside ; this Council made the laws
for the government of New South Wales. Between
the years 1828 and 1842, there was no change in this
form of administration, though agitations for altera-
tions in the constitution of the Colony arose, not
only in Sydney, but also in the Port Phillip District.
It is really in connection with the first definite move-
ment in the Port Phillip District for separation from
New South Wales that we get a distinct request
from the colonists of Port Phillip for the establish-
ment of a Responsible Government in Melbourne.

Even before the year 1840, the settlers of Port
Phillip had an outstanding grievance against the
Government at Sydney. This was over the appro-
priation of tiiat portion of the Land Sales revenue
which was derived from the Port Phillip District,
but used mainly to meet labor needs in connection
with Sydney. This grievance was aggravated by
the fact that the colonists of Port Phillip were also
suffering from scarcity of labor, though there was
a considerable number of convicts in the District.
Hence, a strong desire was created amongst the
colonists of Port Phillip to sever connection with
New South Wales and secure a Government of
their own, in order to remedy grievances and ad-

^A modified form of the New South Wales Judicature Act of 1823.

Constitutional Development of Victoria.

minister affairs locally. As early as T)ctober 1st,
1838, Governor Gipps wrote from Sydney to Lord
Glenelg, the Colonial Secretary, with reference to
the scarcity of labor in the Port Phillip District.
He acknowledged that, though his lordship had
asked him to limit the number of convicts in Port
Phillip as much as possible, he had been unable to
prevent a considerable number being taken to the
District. Nevertheless, labor there was very scarce ;
he therefore made suggestions for sending out two
ships to Port Phillip with farm laborers and ar-
tisans. At the same time, he expressed the opinion
to Lord Glenelg that, if it had been intended to pre-
vent altogether the assignment of convicts to the
Port Phillip District, it would have been better to
have given it a separate Government.

At a public ^neeting held in Melbourne on 2^1ay
5th, 1840, this despatch of Governor Gipps was
quoted as an argument in support of certain pro-
posals which the colonists of Port I'hillip desired
to place before the Home Government. It was well
known in Port Phillip that changes in the constitu-
tion of New South Wales were contemplated by
the Colonial Office, in response to petitions from that
Colony for a representative Government, suited to
its special conditions. At this meeting in Mel-
bourne, a committee was appointed to prepare a
petition for presentation to the Queen, and to both
Houses of Parliament. It was to request the sepa-
ration of the Port Phillip District from the Colony
of New South Wales, the establishment of an in-
dependent Government, and a representative Legis-
lature within the Province. On 'hi'ie 13th, the
committee presented the petition at a very represen-
tative pul)iic meeting, held in the Scots School,
Melbourne, where it was adopted, and afterwards

»"Port Phillip Herald," May 8tli, 1R40.
•"Port Pliillip Hcralfl." May 8th. 1840.
♦"Ibid," June 16th, 1840.

Preceding the New Constitution.

received numerous signatures. Among^st its warmest
supporters were many of the most influential resi-
<ients of Port I'hillip, one of whom, Mr. Redmond
Barry — afterwards Sir Redmond Barry, and one of
.the Judges of the Supreme Court of Victoria — took
a prominent part in securing signatures to the
petition. After setting out their grievances against
the Government of New South Wales, the petitioners
requested the British Parliament to obtain for
them : —

1st. A "Responsible Government entirely sepa-
rate from, and independent. of, New South
Wales ;
2nd. A free and extended legislative representa-
tion, corresponding with the extent and
population of the District, and equal to
the exigencies of a free state.
Two committees were nominated at the ])ul)lic
meeting on June 13th ; one was composed entirely
•of residents of Port Phillip, the other, of several
well-known local residents who were shortly to
proceed to England, and of certain persons influen-
tial in British Parliamentary circles. The former
committee was to keep in touch with the latter, the
members of which were asked to use their influence
towards securing the requests of the petitioners.
Mr. H. F. Gisl^orne was entrusted with the petition,
but he unfortunately died while on the voyage to
England. The document then passed into the care
of Major Mercer, who had acted as^chairman at the
public meeting in June, and who, along with Mr.
Yaldwyn, a fellow colonist, had been placed on the

'On 14th ^tay, 1829, Mr. Stanley (afterwards Earl of Derby) pre-
sented to the House of Commons a petition, which had been agreed to
at a meeting held at Yorktowii (Toronto), and signed by 2,110 inhabi-
tants of Upper Canada. According to .Stanley's speech in presenting
the petition, he asked, among otlier points, for a "local responsible
ministry." Tliis is commonly held to be the first mention of the term
■"responsible government." which subsequently became so familiar.
<Lord Durham's Report, edited by Sir C. P. Lucas, Vol. 1, page i;;7.)

Constitutional Development of Victoria.

deputation selected to present the petition to the
British Parliament.

Before we follow further the fate of the Port
Phillip petition, we shall discuss the two definite
requests mentioned in it. The first, asking for a.
Responsible Government, is certainly striking^
though references to that subject had been brought
prominently before the people of New South Wales
in the previous year. The Syd)icy Ga::cttc, of June
13th. 1839, contained a comprehensive outline of
Lord Durham's Report, which made such definite
proposals for the future government of Canada. In
this article. Lord Durham's recommendation to
grant Responsible Government to Canada was clearly
set out, and the full text of the Report itself was pub-
lished in sections by the same paper during the
months of June, July, August and September.
Other Sydney newspapers also gave this great State
paper marked prominence and wide publicity. The
Port Phillip Patriot, of July 18th, 1839, noted the fact
that Lord Durham's Report had been laid before
Parliament on February 11th. In the following
year, on February 29th. Dr. Bland, the correspond-
ing secretary of the "Australian Patriotic Associa-
tion," in his letter from Sydney to "Mr. C. Buller,.
Junr., M.P., freely discussed Lord Durham's Re-
port, This letter was soon afterwards published by
the Association, whose activities were well known
to the residents of the Port Phillip District. Lord
Durham's Report was therefore well known in Mel-
bourne in July. 1839. and was frequently referred to
in the news])a])ers of New South Wales.

It would be interesting to know precisely to what
extent Lord Durham's Report influenced the
colonists of Port Phillip to ask for a "responsible

*Mr. C. IJuller accompanied Lord Durham to Canada in 18.38. He-
became the Parliamentary agent for the "Australian Patriotic Associa-
tion" after Mr. H. !.. Hulwer's resignation, and was much interested
in the political affairs of \c\v South Wales.

Preceding the New Constitution.

government." Mr. Redmond Barry, barrister-at-
law, must liave known of the famous Report, and it
is not at all likely that he would ask peo])le to sign
a petition containing a vague and meaningless re-
<iuest. lie must have been aware that the Port
Phillip petition asked for the very thing Lord Dur-
ham had urged the Home Government to grant to
Canada, namely, "responsible government." No
mention of Durham's Report was made in the Port
Phillip petition, but there can be little doubt that its
influence upon those who drafted the petition caused
them to insert the request for a Resjionsible Govern-
ment.

The second request resembled the chief aim of
the '"Australian Patriotic Association" of New South
Wales, hitherto denied a representative Govern-
ment, because of the penal character of the Colony.
The Port Phillip District, how^ever, claimed to be
a "free state," an assertion only partly true, for con-
victs did get into the District, which was not, how-
ever, a penal settlement. The words, "a free
state," then, were inserted, as an additional argu-
ment for representative Goxernment.

The petition containing these two requests was
presented to Lord Stanley, the head of the Colonial
Office, by Major Mercer and Mr. Yaldwyn, on Sep-
tember 13th, 1(S41, In a 'letter from Edinburgh,
dated October- 31st, Major Mercer sent Mr. Kerr,
secretary of the separation committee at Port Phillip,
an account of the interview with Lord Stanley.
They had assured him that there could be but one
opinion as to the rights of Port Phillip, either to
have a separate Government, as requested, or to
secure proper representation at the seat of Govern-
ment. In reply. Lord Stanley remarked that he
•disapproved of the separation of the Port Phillip
District from the rest of Xew South Wales, if it

'"Port Phillip Herald," February 22nd, 1842.

Constitutional Development of Victoria.

could be avoided ; he was inclined to think that am
extension of powers to the head of the Government
at Port Phillip would be sufficient for the present
wants of the District. Before closing' the inter-
view, Lord Stanley pointed out that he had not been
long in office, but assured the two delegates that
they could rely upon his giving the subject his best
and most attentive consideration.

Other forces, howe\-er, had been at work in the
Colonial Office ])efore the Port Phillip petition
reached Lord Stanley. In England, Mr. C. Duller^
the Parliamentary Agent of the Australian Patriotic
Association, acting in conjunction with I\Ir. James
^lacarthur. of Camden, New South \\'ales, who was
then on a visit to England, drew up the 'rough draft
of a constitution, which they considered suited to
the conditions of New South Wales. This they for-
warded to the Colonial Office, where it was received
with favor. Some of its main "provisions closely
resembled those of the Act of 1842 (see chapter on
the "Origin of the Blended House"), which altered
the Constitution of New South Wales.

On April 28th, 1842, the Port Phillip petition
reached the House of Commons. It was '"designated
"A petition from Port Phillip for a Local Govern-
ment independent of the Government of 'New South
\\'ales, and for a Representative Legislature," and
^^'as presented to the House of Commons by Mr.
Christopher, member for Lincolnshire. The petition
A\'as simply received ; no discussion on it took place.
About a month later. Lord Stanley moved the first

""The Port Pliillip Patriot" of August 1st, 1»42, stated that a letter
liad been received from Mr. Valdwyn, in England, in which he stated
that there seemed to he no disposition on tlie part of the Downing
Street authorities to grant the wishes of the Port Phillip petitioners.
Mr. Macartluir had informed him that a Legislature composed of
nominees of the Crown and elected members would be given to New
South Wales. There would be no provision made in the new Act for
the separation of the Port Pbilliii District from that colony.

"Vide "Port Phillip Patriot" and "Sydney Herald," December 2nd,.
18?.0.

'"Parliamentary Debates (Commons). Vol. LXII., p. 1178.

Preceding the New Constitution.

reading- of the New South Wales IHll, which in
July became ^'Aji Act for the Government of Nczv
South Wales and Van Dicmcn's Land. Under the pro-
visions of this Act, the Port Phillip District did not
receive what the petition of June, 1840. had asketl
for; neither separation nor "responsible govern-
ment," nor "a free and extended representation,"
fell to the lot of the Port Phillip District under the
Act of 1842. Lord Stanley had intimated to the
two delegates in the interview which lie gave them
in September. 1841, that he did not favor the sepa-
ration of the Port Phillip District from New South
Wales, and the Act of 1842 showed fully that the
Port Phillip petition had failed to cause him to alter
his opinion on the matter. Important changes,
however, were made by the Act. The Legislative
Council of New South Wales was to be no longer
wholly nominated; two-thirds of the Council was
to consist of elected representati\"es, and the remain-
ing third, of nominees. Six of the elected represen-
tatives were allotted to the Port Phillip District.
This scheme of representation for Port Phillip pro-
duced intense dissatisfaction in that District, and
agitations and requests for separation from New
South Wales became more frequent and more
vehement.

The requests for separation drew from Earl Grey,
on July 31st, 1847, the "promise that Parliament
should be recommended to impart to Her Majesty
the authority necessary for carrying into effect the
separation of the Port Phillip I^istrict from New
South Wales. He was quite convinced, he said,
that the Port Phillip representation had become
unreal and illusory, and was not a substantial en-
joyment of representative Government. lie like-
wise stated that it was intended to revise the Con-

"5 and 0 Vict.. Cap. 7G.

"Australian Constitution (Public Library), page ?>, Earl Grey to
Sir C. A. Fitzroy, Governor of New South Wales.

Constitutional Development of Victoria.

stitution of New South Wales, and to return to the
old form of Colonial Government, i.e., two separate
Houses — the Upper House a nominated one, and
the Lower elective. The municipalities were also
to be given due weight and consideration, so that
they might be made to bear to the House of
Assembly the relation of constituents to represen-
tatives. The proposal to "abolish the single-blended
House, and make the municipalities something like
the "Electoral Colleges in France, received very
strong opposition in New South Wales. The
colonists of the "Port Phillip District also protested
against these Constitutional changes, which were
sought to be made on the occasion of the separation
of their District from New South Wales. They con-
demned the proposed new Constitution and form^ of
Government as being experimental and abridging
their natural rights as British subjects.

Earl Grey did not proceed further v^'ith the
changes protested against, but in his '"despatch to
Governor Fitzroy, on July 31st, 1848, he set forth
an outline of the measures he was prepared to re-
commend to the Home Government. He stated
that there was to be no change in the composition
or authority of the Legislative Council of New
South Wales, beyond such as would be the neces-
sary consequence of separation. There would also
be established in Port Phillip a Legislature, similar

"Australian Constitution, p. 29, Sir C. A. Fitzroy to Earl Grey.
February 2nd, 1848. _ , „ , ,, • tt i n>

"Australian Constitution, p. 30. The "Sydney MorninR Herald
Tanuary 21st, 1848, reported the speech made by the Mayor of -Sydney
"on this subject. In one portion of it he said, "It would be indeed a
piece of class legislation, disastrous in its results. The IcKislators ot
the country were to be elected only by the electors for the District
Councils whilst the right of representation by the members of their
own choice would be taken from the people altogether." At this
meeting Mr. W. C. Wentwortli spoke on the same topic. He felt
sure, he said, that the proposed legislation, if passed, would result in
the same spirit of unrestraint-d bribery and corruption whicli existed
in France, where the members of the I.egislature wire elected Iiy the
Electoral colleges, instead of by the mass of the people. (p. .'?9).

"Australian Constitution, enclosure .'!, p. ."i.") ; Sir (. A. I'ltzroy to
Earl Grey, March 27th, 1K4S. . - . t:-

"Australian Constitution, p. 45; Earl Grey to Sir L. A. titzroy.

Preceding the New Constitution.

in character to that which then existed in New
South Wales. But as this form of Government,
while on the whole it might be best adapted to the
existing circumstances, was one which might admit
of much modification and improvement, under the
suggestion of experience, and because he considered
the Australian communities fully competent to
■originate and discuss for themselves any change in
their Constitution, he further contemplated advising
that their several Legislatures should have the
power to "recommend such alterations in their own
Constitutions as they might deem expedient. These
changes would, however, be subject to the assent
of the Home Government.

While the proposals of Earl Grey were under dis-
<:ussion in the British Parliament, the colonists of
Port Phillip, on "July 27th, 1848, elected him as their
representative member in the Legislative Council
of New South Wales. In a "memorial sent by the
Port Phillip residents to Earl Grey, on Septeml)er
23rd, 1848, concerning the question of their repre-
sentation at Sydney, they candidly stated that the
present system was almost worthless to their com-
munity ; the elections were commonly spoken of as
"The Port Phillip Farce." Of the truth of this say-
ing, the election of Earl Grey himself was a very
pointed example. This action by the Port Phillip
.colonists caused Superintendent La Trobe to \vrite

"In Earl Grey's "Colonial Policy of Lord John Russell's .^dniinistra-
tion, ISM," Vol. 2, p. 95, we find the following: — "In our opinion, it
was improper that the power of the colonies to adapt their institutions
to tlie changes of the circumstances which are taking place so rapidly
should be thus restricted. In our old colonies, the constitutions of
which were originally granted by Charters from the Crown, there is
no restriction on the power of the local Legislatures to effect," with the
concurrence of llie Crown, the reforms which may be found necessary.
We saw no reason why a different rule should be' applied to Australia;
we therefore introduced into the Hill clauses investing the Legislative
■Councils with the most ample power of amending the constitutions thus
^granted.

"Australian Constitution, p. 7L

"Australian Constitution, p. 72.

'•Accounts and Papers, 1R49, Vol. XXXV.. p. 2o.

Constitutional Development of Victoria.

to Governor Fitzroy on Aug^ust 10th, 1848, and de-
nounce the election as being ■"impolitic, improper
and absurd." La Trobe also declared to Governor
Fitzroy that, with regard to the future government
of the Port Phillip District, any form of Constitu-
tion which Vvould take the Government out of the
hands of the Governor. Executive, and Nominee
Council, and substitute, for the last-named, a repre-
sentative body, would be ill-suited for its real state
and position, and would render the administration
of its Government an exceedingly difBcult and re-
sponsible task. With La Trobe's opinions. Gover-
nor Fitzroy expressed entire "concurrence, and par-
ticularly with his views that it was inexpedient to
erect Port Phillip into a separate Colony, and grant
it^ a representatixe Legislature. But, by this time,,
definite steps were being taken in the British Par-
liament to bring about the promised separation of
the Port Phillip District.

The Committee for Trade and Foreign Plantations
was asked by the Home Government to act as a de-
liberative body, and to consider the question of the
Constitution of New South \\'ales. and the separa-
tion of the Port Phillip District. On ''May 4th,
1849, the report of that Committee was read at
Buckingham Palace, and. while desirous of intro-
ducing the old system of Colonial Government,,
namely, a Governor, a Council, and an Assembly,,
yet. in view of the public opposition in New South'
\\'ales to two Houses, they recommended the con-
tinuance of the one House with nominees and elec-
tives. They proposed to grant to the southern
districts of New South Wales their long and

"Aii.-tralian Constitution, p. 71, September 23rd, 1848; Governor
Sir C. A. Fitzroy to Earl drey.

"Australian Constitution, p. 8.'1. The report also recommended that
one of the Governors of the Australian Colonies should hold a commis-
sion constituting him the Governor-Cieneral of Australia. Such a com-
mission was issued to .Sir C. A. Fitzroy, Governor of New South
Wales, on January l.'!tli. 1K.M.

Preceding the New Constitution.

earnestly solicited rec|nest that Melbourne should be
made the seat and centre of a Colonial Government
separated from that of Sydney. These recommen-
dations were embodied in the Act for the Better
Goz'er)uiient of Her Majesty's Australian Colonies,
whicli received the Royal assent on "Aujjust 5th,
1830 .and was transmitted to tiie Governor of New
South Wales, Sir Charles Fitzroy. on the 30th of
the same month.

The "Act of 1850 not only erected the Port Phillip
District into wdiat was now called the Colony of
Victoria, in honor of Queen Victoria, but also con-
ferred on the new Colony a Constitution similar to
that which had existed for New South Wales since
1842. A most notew^orthy section of the 1850 Act
was the 32nd. This made it lawful for the Gover-
nors and Councils of the Colonies to alter the Con-
stitutions of their respective Le.^islative Councils^
subject to the consent of Her Majesty-in-Council.
When the British Parliament was discussinsf the
Act of 1850, ^'somethinj;^' was said within the House
concernin.o" Responsible Government, and much
more outside, but this was not made the subject of
express le£2:islation. Still, there were few people
who doubted that Responsible Government must,
sooner or later, he the complement of the partly re-
presentative Government, and of the powers fur-
nished to the Australian colonists, under the 32nd
Section of the Act of 1850.

By a '"despatch, dated September 14th, 1850,
Superintendent La Trobe. who had been at the head

»1.T and 14 Vict., Cap. W.

**In the "Illustrated Australian Magazine," 1850. Vol. 1, p. ."JTo,
a correspondent, who sipfned himself "V.V.," stated that his friend. Dr.
McCrae had faiored him with a perusal of the original separation
petition. It was in the handwriting of a Mr. H. F. Gisborne. "At the
present time (1850)," said the writer, "this document is particularly
interesting."

""Colonies and Constitutions, embracing a Concise Statement of
the Principles of the Australian Hill," by J. H. Tackson, Launceston,
October, 1850.

'"Australian Constitution* p. ."Ol ; Earl Grey to Sir C. A. Fitzroy.

Constitutional Development of Victoria.

■of the Port Phillip Administration since 1839. was
appointed the first Lieutenant-Governor of the new
Colony of Victoria. Early in the following year,
■"Sir C. A. Fitzroy, the Governor of New South
Wales, was appointed Governor-General of all Her
Majesty's Australian possessions, including Western
Australia. The writs for the first election of mem-
■bers to serve in the Legislative Council of Victoria
were issued on July 1st, 1851, and the Nczv South
IValcs Gazette of that date contained a proclamation
■concerning these writs, whereby the territories
hitherto comprised within the Port Phillip District
were created a separate Colony.

Lender Section ii. of the 1850 Act. one-third of the
new Victorian Legislature was to consist of
nominees, and two-thirds of electives ; Section iii.
of the same Act empowered the Legislature of Xew
South Wales to apportion the number of members
for the first Victorian Legislature. They fixed the
number at thirty — ten nominees and twenty elec-
tives. On November 11th, 1851. the Legislative
Council of Victoria met for the first time. The fol-
lowing were the nominees, official and unofficial,
who were appointed by Lieut.-Governor La Trobe
on October 31st, 1851 :—

"^Official Nominees, i.e., those holding office —

William Lonsdale. Esq., Colonial Secretary.
William Foster Stawell, Esq., Attorney-General.
Charles Hotson Ebden, Esq.. Auditor-General.
Redmond Barry, Esq., Solicitor-General.
Robert Williams Po^hlman, Esq., Master-in-Equity.

^'Australian Constitution, p. ^02; Earl Grey to Sir C. A. Fit/roy.
Though tlie position was looked upon as more or less nominal, still
the instructions to the Governor-General ran: "Hut you will under-
stand that if such a necessity should arise, you would, by virtue of
the Queen's commission to you, assume the government of any _ of
those colonies in which you might be present, and retain it during
the whole period of your residence, louring such period tlie functions
of the Lieut.-Governor would be completely suspended." (p. HOIl).

**Oflficial nominees were appointed provisionally by the Lieut.-
■Governor under powers delegated to him by Her Majesty on December
3lEt. \K>0. fSee Australian Constitution, p. :'..S0). Tlie Colonial Office
l)ad the power to reject any of tlie aiipoinfiuents.

Preceding the New Constitution.

Unofficial Nominees, i.e., those liolding no office —

Charles James Griffiths, Esq.

Alexander Cunninghame Wallis Dunlop, Esq.

William Clarke Haines, Esq.

James Hunter Ross, Esq.

Andrew Russell, Esq.

The following- were the Elective Representatives: —

\\illiam Westgarth James Ford Strachan

William Rutledge Thomas Wilkinson

James Stewart Johnston John Henrj' Mercer

Peter Snodgrass Francis Murphy

John Thomas Smith James I'"rederick Palmer

Robert Robinson Henry Miller

Adolphus Goldsmith John O'Shanassy

William Francis Splatt John l^ascoe Fawkner

Robert Turnbull William Campbell

Charles Hilton Dight Thomas Hamilton Osborne

While the colonists of Victoria were rejoicing;
over their new political privileges and freedom from
Sydney, by virtue of the Act of 1850, that measure
met with a very different reception at the hands of
the Legislative Council in New South Wales..
Before examining the attitude of the New South
Wales Legislature towards the Act of 1850, we may
here further notice the influence of the famous
Report, which was completed by Lord Durham in
January, 1839, after his short and troubled stay in.
Canada, whither he had been sent as High Commis-
sioner in 1838. His Report had not only a profound
effect upon the future government of Canada, but as
Sir C. P. Lucas says, "He gave to the world the
doctrine of Responsible Government, not as a pre-
lude to the creation of separate peoples, but as a
corner-stone, upon which a single and undivided
British Empire should be reared to abiding
strength." When Lord Durham's Report went out
to the world, its doctrines found a warm supporter
in one whose name stands high in the political his-

Constitutional Development of Victoria.

lory of Australia — the name of ''William Charles
Wentworth — for many years a prominent member
of the New South Wales Legislative Council. Sir
Henry Parkes, in writing of Wentworth in his book,
"Fifty Years in the '"Making of Australian History,"
says that W'entworth was saturated with Lord Dur-
ham's Report on the constitutional grievances of
Canada, and began to move in the cause of a fuller
system of self-government for New South Wales,
in order to secure freedom from Downing" Street.

To the course of action taken by the Legislative
Council in Sydney, and the part Wentworth played
therein, we must now turn with particular care, for
we are approaching a most critical time in the
political history, not merely of New South Wales,
but, indeed, of all Australia. Though the Act of
1850 gave the colonists of Victoria ample reason to
Tejoice, in that it brought to them a Government of
their own, yet that same Act gave to the Legislative
Council of New South Wales very small grounds
for satisfaction, apart from the 32nd section. For
years before, strenuous efiforts had been made by that
body to secure freedom from what they considered
to be the tyranny of the British Parliament, over
such questions as those concerning the W' aste Lands,
the Territorial revenue, and the vetoing of Bills. The
Act of 18.50 brought, they said, no redress concern-
ing these matters. On "April 8th, 1851, a Select
Committee was appointed, at the instance of Mr.
Wentworth, to prepare a Remonstrance against the
Act of 1850. On the 29th of the same month, it
was brought up and carried by eighteen votes to

^•Mr. W. C. Wentworth was also a Vice-President of "The Aus-
tralian Patriotic Association." He was not the earliest champion of
"Responsible (iovernmcnt" in Australia; that lienor belongs to Dr.
Bland, anollu-r i]rominent member of the A. P. Association. See
^'Report of ProctedinRs at tlie .Vational Hanrjuet held to celebrate the
establishment and inauguration of Responsiljle Government in New
South Wales," p. 4, by R. Thompson.

swVol. 1. p. 27.

'■•Official History of New South Wale-^, p. 17.")

Preceding the New Constitution.

eight. In this "Ivemonstrance, which was forwarded
to the Secretary of .State for the Colonies, through
Sir Charles Fitzroy, the Legislative Council stated
that they felt it to be a duty which they owed to
themselves and posterity, before they gave way to
the new Legislature established by the Act of 1850,
to record their deep disappointment and dissatisfac-
tion at the Constitution conferred by this -\ct on
their Colony. They felt, they asserted, that, on the
eve of the dissolution of the Council, and as the
-closing act of their legislation, no other course was
■open to them, but to enter, on their own journals,
their Remonstrance against the new Constitution
Act of 1850. They protested against —

(a) The schedules appended to the new Con-
stitution, and the appropriation of their or-
dinary revenue under the sole authority of
Parliament ;

(b) The administration of their Waste Lands
and the Territorial revenue thence arising,
by the Home Government ;

(c) The Customs and all other departments not
being subject to the direct supervision and
control of the Colonial Legislature ;

(d) The dispensation of the patronage of the
Colony at the dictation of the ^Minister f<^r
the Colonies ;

(c) The veto reserved and exercised by tlie
same Minister, in the name of the Crown,
in matters of local legislation.
They bequeathed to the Legislature, by which they
were to be succeeded, the redress of their grievances,
which they had been unable to effect by constitu-
tional means. This Remonstrance bore the date of
May 1st, 1851, and was signed l)y Charles Nicholson,
Speaker.

'^.Vustralian Constitution, pp. 340-1, June 18th, 1851 ; Govcrnor-
•General Sir C. A. Fitzroy to Earl Grey.

Constitutional Development of Victoria.

'^Early in December, the succeeding Legislature
drew up a petition affirming the Remonstrance of
the preceding Legislature, stating that they felt it
their solemn duty to Her Majesty and to their fellow
countrymen to declare that it would be impossible
nmch longer to maintain the authority of a local
Executive, which was obliged by its instructions to
refer, for the decision of an inexperienced, remote,
and irresponsible department, all measures of im-
portance, no matter how great the urgency of their
immediate adoption. The petition then made a
noteworthy proposal, which the Legislativ^e Council
of New South Wales considered would deprive Her
Majesty's confidential advisers of any excuse for
the continuance of the abuses complained of. It
declared that the Legislative Council of New South
Wales was prepared, upon the surrender to that
body of the entire management of all the Colony's
revenues, "Territorial as well as General, and upon
the establishment of a Constitution similar in its
outline to that of '"Canada, to assume and provide
for the whole cost of its internal Government, and
to grant to Her Majesty an adequate Civil List on
the same terms as in Canada, instead of the sums
appropriated in the schedules of the Imperial Act
of 1850.

The Governor-General enclosed the petition in his
"despatch of January 15th, 1852, and stated that it
was his conviction, that the desire to have a C'on-
stitution conferred on the Colony, agreeing in its
principles with that applied for in the petition, was

''Australian Constitution, pp. 3ol-3,_ December 5th, 1851.

'*The Territorial revenue was derived from the sale of Crown
Lands in the Colony. The General revenue was received from taxes,
duties, rates and imposts levied within the Colony.

"'Canada had two Houses — Upper House nominated by the-
Ciovcrnor, and Lower House elected upon a low franchise. Upon
retaining a majority in the Lower House depended the existence of
the .Ministry. The Lower House could stop supplies, and insist upon
the (iovernor's chan^inK his advisers. Tlie doctrine of Responsible
(iovernment was well establislied in Canada.

'"Australian Constitution, i)p. i{50-l.

Preceding the New Constitution.

not confined to the Legislative Council alone, but
was supported by the general opinion of the most
loyal, respectable, and infiuential members of the
community. He rather pointedly expressed the
opinion that to prolong the contest would weaken
the strong attachment to the Crown, and to the
institutions of the Mother Country.

Just a few days after the Governor-General had
forwarded his despatch and the petition. Earl Grey
penned a lengthy and argumentative "reply to the
Remonstrance of May 1st, 1851. The Act of 1850
did not, he affirmed, profess to make a new Con-
stitution for New South Wales, but its primary ob-
ject with regard to that Colony was to effect the
separation of the Port Phillip District. The only
great constitutional change effected by the Act, he
said, was that it gave power to the Legislatures of
amending and altering almost to the fullest extent
their own institutions. He regarded the Remon-
strance, mainly, rather as a protest against the prin-
ciples on which the Australian Provinces had hitherto
been governed, and against some laws affecting
those Colonies, than against this particular Act.
Other matters complained of in the Remonstrance
of May, 1851, were closely dealt with in the same de-
spatch. However able the reply, and whatever good
legal grounds the arguments used may have had to
support them, it did nothing to promote good feel-
ing, in the New South Wales Legislative Council,
towards the Home Government.

Earl Grey's despatch brought forth in reply, from
the Legislative Council, on August 10th. 1852, a
""document equally lengthy, and much more emphatic
in its tones than the previous Remonstrance. This
address to the Home Government was prepared by
a Select Committee, of which Mr. Wentworth was

"Australian Constitution, pp. 355-fiO, January 23rd, 1S'>'2.
•"Australian Constitution, pp. 545-9.

Constitutional Development of Victoria.

the chairman, and was transmitted to the Home
Government at the request of the Legislative Coun-
cil. The address was so strongly worded that the
Governor-General ''expressed regret to the Home
Government that the Council should have thought
fit to assume, throughout the document, a tone of
such great discourtesy. In Section 13 of the address,
the Council asserted that the Xorth American
Colonies possessed Responsible Government, and,
consequently, scarcely any of their legislation was
reserved for the disallowance of Her Alajesty. It
was only, they asserted, in Section 14, when the mis-
chievous principle of direct intermeddling with the
functions of the Legislatures of the Xorth American
Colonies w'as insisted upon, and attempted on the
part of the Crown and Parliament of England, in
the reign of George III., that those unfortunate
heartburnings arose, which soon led to the severance
of the North American Colonies from the British
Empire. They declared that the British Constitu-
tion, so far as it was applicable to their circum-
stances, was the "inalienable birthright of the people
of these Colonies." To be content with anything
less would, they affirmed, be alike derogatory to
themselves and unjust to their children. It would
be to bequeath to them a smaller measure of free-
dom than their fathers had transmitted to them.
This was a meanness to which they were not pre-
pared to sul)mit, and a wrong which they would
never perpetrate. Finally, they closed with the fol-
lowing words, "Xor will we be deterred from the
assertion of our undoubted rights, by the Hattery,
the imputations, or the obstinacy of any Minister;
but will continue our efforts until all we contend for,
all that is necessary to place us on a perfect equality
with our fellow citizens abroad, is conceded to us

"Australi.in Constitution, p. M't, August 20tli, 18.''i2; Oovernor-
General Sir C. A. Fitzroy to the Kiglit lion. Sir John Pakington.

Preceding the New Constitution.

and our posterity once and forever." This petition
was dated August 10th, 1852, and was signed by
Charles Nicholson, Speaker of the Legislative
Council.

A crisis in the history of the Australian Colonies
had been reached. The Legislature of New South
Wales claimed for the colonists the granting of a
perfect equality with their fellow subjects abroad,
not for New South Wales alone, but for "the people
of these Colonies." The Remonstrance of 1851, and
the strongly-worded address in reply to Earl Grey's
despatch of January 23rd, 1852, may be fitly named,
"Australia's Declarations of Right." Then it was
that the colonists of New South Wales brought the
whole matter of their grievances to a climax, and
the Home Government had to decide whether they
would grant the requests of the Legislature of New
South \\'ales. To accede would mean a freer but
closer union of New South Wales with the Home
Land ; to refuse would certainly lead to a diminu-
tion in the strength of those ties of l)lood and race
which bound the colonists to Britain. The whole
address of August, 1852, showed very plainly that
the people of New South Wales would never rest
imtil they were granted constitutional privileges
similar to those then being enjoyed in Canada. At
the end of August, the '"Governor-General notified
Sir John Pakington, the Colonial Secretary, that,
on the motion of Mr. W. C. Wentworth, the Legis-
lative Council had passed a resolution refusing" to
grant supplies for the year 1854, unless a favorable
reply was returned to the address which had just
b)een forwarded. The Governor-General added his
conviction that the concessions asked for should be
granted ; and at the same time stated that he had it
on good authority, that the Legislature had ap-

'•Australian Constitution, August 31st, 1852, p. 550.

Constitutional Development of Victoria.

pointed a Select "Committee to prepare a Constitu-
tion for New South \A'ales by virtue of the powers
conferred on that body by the Constitution Act of
1850. In a later "despatch, of November 1st. 1852,
he informed Sir John Pakington that the report had
been submitted to the House by Mr. Wentworth,
on September 17th, when the proposed Constitution
was read, pro forDta, the first time.

The discussion which took place in the House of
Commons on , June 17th, 1852, relative to the-
"grievance petition from New South Wales Legisla-
ture, was "reviewed by the Times in language whicli
was a warning as to the handling of the grievances
complained of by the New South Wales Legislature.
"A stern necessity," said the Times, "will shiver to-
atoms the Acts of Parliament by which we have
sought to fetter the Colonies ; will give them the
management of their lands, their revenues, and their
laws ; and give them, whether we wish it or not, the
fullest powers of self-government. It only remains
with us to say whether this shall be gracefully con-
ceded, or wrested from us by tumult and agitation."'
Before finally considering how the Home Govern-
ment met the demands from New South Wales, and
also to what extent the course of action advised by
the Times resembled that taken by the Home Govern-
ment, we must turn for a while to see whether the-
Legislative Council of Victoria had begun to ask
for concessions similar to those requested by New
South Wales.

On "December 16th, 1851. at a time when the
social and political problems caused by the discovery

"June Ifith, "Official History of New South Wales," p. 192; alsO'
Australian Constitution, p. OoO.

"Australian Coustitution, y. ,').'">1.

**>tr. Oladstonc suggested that, as the document was of such-
historical importance, it should he read by the clerk at the tabic
This was accordingly done.

"Reprinted in "Argus." September 2!)th, 1852.

"V, and I'., lRr.l. Vol. 1, p. 98.

Preceding the New Constitution.

of gold in \'ictoria were beginning to make them-
selves felt, six resolutions were brought before the
Legislative Council. They aimed chiefly at secur-
ing for the control of the House the administration
■of the Waste Lands of the Colony, and the Territorial
revenue arising from their sale. The mover of these
resolutions, when ^'addressing the House, stated
that it was onl}- by passing such resolutions as he
was about to submit that they could expect to obtain
that self-government which they desired. The six
resolutions, briefly put, claimed —

(1) That the revenues of the Waste Lands of
the Colony were the property of the
colonists, and should be subject to the con-
trol of the Colonial Legislature ;

(2) That the retention of droits of the Crown
simultaneously with a reserved Civil List
was unjust;

(3) That it was unjust and unconstitutional for
officers not responsible to the Victorian
Legislature to have the administration of
the Waste Lands and the Territorial re-
\'enues of the Colony ;

(4) That the gold discoveries in Victoria made
it more important than ever for the Land
Funds to be vested in the Legislature ;

(5) That the sense of injustice created in the
minds of the colonists was aggravated by
the knowledge that Canada was differently
dealt with ; and that Canada got her privi-
leges because she had resorted to rebellious
practices ;

(6) That an address should be presented to
the Queen asking for entire control of the
Waste Lands of the Colony and the Terri-
torial revenues thence arising".

"Parliamentary Debates, "Argus," December 17th, 1851.

1 1 5 94 ^

Constitutional Development of Victoria.

The import of the whole of these resolutions-
amounted to something very like a demand for Re-
sponsible Government. The reference to Canada in
Resolution 5 was most significant ; for a Colony not
six months old, the tone of the resolutions was de-
cidedly vigorous and direct. After passing the first
resolution, the Legislature agreed to the second in
the following amended form, "That the retention of
the Crown Land revenues, simultaneously with a re-
served Civil List, is an anomaly in the British Con-
stitution, unknown except in the Australian Colonies,
but that upon the surrender to the Colonial Legis-
lature of the entire management of all our revenues.
Territorial as well as General, including that derived
from mines and minerals, we declare that we are
prepared to provide for the whole cost of our Internal
Government, whether Civil or Military, and to enact
an adequate Civil List, during the life of Her
Alajesty, and for five years after her demise."' The
significance of this resolution, as passed by the
House, lay in the fact that much of it closely re-
sembled part of the New South Wales petition
passed only eleven days earlier, save in this, that
no request was made, as in New South Wales, for
a Constitution similar in its outlines to that of
Canada.

The third resolution was lost by one vote. The
mover of the resolutions was so disappointed at the
defeat of "the "soul of his motion," as he termed it,
that he withdrew the remaining resolutions. Hence
it was that no address to the Queen was made upon
the matter brought forward and passed.

In the following year, on *'']n\y 9th, the subject of
the Canadian Constitution came prominently before
the Legislative Council. On this occasion, Mr.
Fawkner. an elective member in the Council, made

♦'Parliamentary Debates, "ArRus," December 17th, lfi51.
"V. and P., 1852-3. Vol. 1. Part 1, p. 31.

Preceding the New Constitution.

a very definite attempt to bring the Constitution of
the Colony of Victoria under review. He asked that
a committee of nine should be appointed to take the
Act of Constitution of the Colony into serious con-
sideration, and to report to the Legislative Council
such alterations and amendments as, in their opinion,
the Act was susceptible of, and the state of the
Colony, under the present circumstances, might re-
quire. In his speech to the House, he touched upon
some points which he considered would engage its
attention, such as the question of nominees and the
estal)lishment of two Chambers. No discussion,
however, took place. The proposal was "lost in the
Legislature owing to a strongly-united vote against
the motion by the nominees and tlie representatives
of the pastoral districts of the Colony.

"Xearly ten weeks later, Dr. Thomson gave notice
of motion that an address should be presented to
Her Majesty the Queen, setting forth the dissatis-
faction of the Council with the existing Constitu-
tion, and praying her to bestow upon the Colony of
Victoria powders of self-government and a Constitu-
tion similar to those which had been granted to the
United Provinces of Canada. This notice of motion
was before the House on four subsequent dates ; but
on November 2nd Dr. Thomson withdrew it. It is
interesting to note that, when Dr. Thomson was in-
forming the House of the withdrawal of his notice
of motion, he distinctly stated that he had desired an
address to the Queen, praying Her Majesty to grant
"Responsible Government" to the Colony of Vic-
toria. At the same meeting of the House, he in-
timated that he would, on November 5th, bring for-
ward an "amended notice on the same subject. On

"See chapter on "Analysis of Voting."

'"V. and P., lSr)2-;5. 'Vol. 1, Part 1. p. 20."?. Dr. Tliomson's notice
of motion was given on September ITtli, and on October 2fitli, 27th,
28th and 29th.

"Parliamentary Debates, November 5th. See "Argus," Novem-
ber 6th.

Constitutional Development of Victoria.

the date specified, he brought forward a motion that
an address should be presented to the Lieut.-
Governor of Victoria, drawing his attention to the
inconvenience experienced in the House, from the
absence of a responsible officer in the Revenue De-
partment of the Government. The motion was
negatived. Why Dr. Thomson withdrew his original
notice of motion does not appear in the Parliamen-
tary Debates. One possible and probable explana-
tion may be found in the fact that on the day he
withdrew the notice of motion concerning "Respon-
sible Government," another member gave a notice
of motion which charged the Executive Government
with a lack "of intelligence, promptitude and vigor"
in its administration. Dr. Thomson probably knew
this was coming. This "want of confidence" motion
came before the House on November 23rd, 1852. and
caused some direct discussion on the subject of Re-
sponsible Government. The motion certainly was
lost in the House, but only by something very like
an accident. Dr. Thomson's original notice of
motion is the sole direct reference recorded in the
"Votes and Proceedings of the Victorian Legislative
Council," prior to the arrival of Sir John Pakington's
'Mespatch dated December 15th, 1852, of a desire for
a Constitution similar to that of Canada. The Port
Phillip petition of 1840 certainly asked for a Re-
sponsible Government, and for the separation of
the Port Phillip District from the rest of New South
Wales. That petition, however, was made eleven
years before the Victorian Legislative Council came
into existence.

On "November 16th. 1852, the Legislature ap-
pointed a Select Conmiittee to consider and report
upon the propriety of increasing the whole number

"Australian Constitution, p. 579.
"V. and P., 1852-3, Vol. 1. p. 253.

Preceding the New Constitution.

of the members of the Council. The "Report, which
was presented to the House on December 9th, re-
commended that the total number of members should
be increased from thirty to fifty-four, in order to
cope with the increasing- Inisiness of the Colony.
The members of the Select Committee stated that
they did not feel themselves authorised to conduct
an inquiry as to the necessity of a vital change in
the Constitution of the Colony, and they considered
that the time had not arrived when investigations
of such serious importance could be undertaken.
There was, however, they said, the general feeling
that the contemplated step of an increase of members
in the present Council was but preparatory to that
more important alteration of the Legislature, by a
revision of the Constitution, which at no distant
period must be the consequence attendant upon the
rapid progress in the prosperity and importance of
the Colony of Victoria.

After examining the cases cited for the purpose of
finding out how far \^ictoria had proceeded up to
the end of 1852 in seeking for Responsible Govern-
ment, we can safely state the following conclusion,
namely, that the movement towards securing Re-
sponsible Government in Victoria was plainly de-
veloping, and would have assumed definite form
within a com])aratively short time.. Victoria had
not been a sej^arate Colony for even two years,
•when the action of the Legislature of New South
Wales, in December. 1851, brought the offer of Re-
sponsible Government, not only to that Colony, but
also to Victoria and South Australia. The conces-
sion came to Victoria before sufficient time had
elapsed to allow t*lie growing political feeling on that
subject to ripen into direct requests. \'ictoria
reaped where New South Wales had sowed.

»*V. and p.. Vol. 1, Part 1, 1852-3, p. 303. For the report lee
V. and P.. 1852-3, 'Vol. 2, Part 1. p. 537.

Constitutional Development of Victoria.

Another factor in bringing Responsible Government
to Australia was the discovery of rich goldfields in
New South Wales and in Victoria. This is quite
evident from the despatch quoted in the next para-
graph ; it was not, however, the primary cause of it.
How the offer of Responsible Government came to
New South Wales. Victoria and South Australia we
shall now consider.

In a "despatch to the Governor-General, Sir
Charles Fitzroy, dated December 15th, 1852, Sir
John Pakington stated that Her Majesty's Govern-
ment had been fully impressed with the importance
to be attached to the petition sent from the New
South Wales Legislature through the Governor-
General, on January 15th. 1852, in that it carried
with it the sentiments of the most loyal and in-
fluential members of the community. The Home
Government, he stated, were also influenced by the
considerations arising from the extraordinary dis-
coveries of "gold which had taken place in some of
the Australian Colonies, and which they considered
to have imparted new and unforeseen features to
the social and political conditions of the Colonies
concerned. They felt that it had been urgently
necessary to place full powers of self-government
in the hands of such a people, so advanced in wealth
and prosperity, and showing evidence of signal fit-
ness to regulate their ow^n affairs. He advised the
creation of a double Chamber, for a safe and satis-
factory Government ; and then stated that he had
now the pleasure of announcing the readiness on
the part of the Home Government to make the con-
cessions which the colonists of New South Wales
desired. There were ample powers, he continued,.

"Australian Constitution, pp. 50fi-70.

"The theory that the Kurcka Stockade episode in 1R54 hroufirht
about Responsil)le ("lOvernnicnt in Victoria is not a sound one. Public
opinion at the time was so pronouncedly against Mr. Foster, the
Colonial Secretary, that he voluntarily resigned his position. No
other member of the Executive foIloNved his example.

Preceding the New Constitution.

for effectiiii^ this alteration, by tlie Constitution Act
of 1850. subject to the confirmation by the Crown of
any Act passed for that j)uri)ose. So the great de-
sire of the Legislature of New South Wales was now
definitely on the way towards realisation, and, in
a despatch of the same date as that containing the
good news to New South Wales, a message of equal
importance came to the Victorian Legislature.

On "December 15th, 1852, Sir John Pakington
forwarded to Lieut.-Governor La Trobe a coi)y of
the despatch sent to the Governor-General, atitl in
an accompanying letter stated that, although Mer
Majesty's Government had not any evidence before
them that the Legislative Council of Victoria was
prepared to make the same proposal as that sub-
mitted to them by New South Wales, they had
nevertheless, sufficient intimation of the general
views of that body to leave them no hesitation in
"offering to the Colony of Victoria the same con-
cessions on the same terms. "Though," Sir John
Pakington continued, "you see that this despatch
is, in form, an answer to certain representations on
the part of the New South Wales Legislative Coun-
cil, you are to regard the substance of it as equally
apj)licable to the Colony under your Government,,
and Her Majesty's Government undertakes to re-
ceive any constitutional act passed by the Legisla-
ture of Victoria, in the same manner, and will take
steps accordingly, as they purpose doing w^ith that
which may be passed by the Legislature of New
South Wales." The Duke of Newcastle, the suc-
cessor of Sir John Pakington, in a despatch, "dated
January 18th, 1853, to the Governor-General, con-
curred in the contents of his predecessor's despatch

"Auftralian Constitution, p. iu9.

"A similar offer was made at the same time to South Australia
(Australian C'onstitution, p. 594). Not until January .^Oth, 1S.'>4, was
the same offer made to Van Diemen's Land (Australian Constitution,
p. 7S6).

"Australian Constitution, p. 570.

Constitutional Development of Victoria.

of December 15th. 1852. In this he made reference
to W'entworth's motion relative to the stopping" of
supplies for 1854, in case a favourable answer to the
petition was not forthcoming. He also noted the
preparation being" made for a new Constitution for
New South Wales ; all these he considered as
reiterations to add new force to the petition made
at the commencement of the year. A copy of the
same despatch, dated February 8th, 1853, was also
^'forwarded to Mr. La Trobe, the Lieut.-Governor of
Victoria.

Not in vain had the vigorous words of the two
petitions from the New South \\'ales Legislature
been presented to the British Parliament : not with-
out success had the disciples of Lord Durham made
their strongly-worded representations to the Home
Government. Yet noteworthy as were these
petitions and the influence.-^ at work behind them, it
is even more remarkable, in the history of British
Colonial policy, to mark the wisdom and justice
displayed by the British Government in granting,
and in granting speedily, those privileges which the
Legislature of New South \\'ales claimed in their
petition to be "the inalienable birthright oi the
people of these colonies."

•"Australian Constitution, p. 580.

CHAPTER II.

THE CONSTITUTION DESIRED, AND ITS

SANCTION CY THE IMPERIAL

GOVERNMENT.

The Inauguration of Responsible Government.

The pathway to self-government in Victoria, as
well as in New South Wales, was at length quite
clear, and we can now turn our attention almost
exclusively to the progress made by the Legislative
Council of Victoria towards the realisation of Re-
sponsible Government. We can follow out the
course of events concerning the New Constitution
which was prepared, not only until its proclamation
on November 23rd, 1855. but also to the dissolution
of the Legislative Council on March 20th, 1856.

On September 1st, 1853, a Select Committee was
appointed by the House to consider and report upon
the best form of Constitution for the Colony. This
committee was composed of 'three ofihcial nominees
and nine elective members, and sat twenty-eight
times. On December 9th, 1853, they presented
their 'report to the House, together with the seventy
resolutions upon which they had constructed the
draft of a Bill to establish a new Constitution for
Victoria. The report stated that, w^hile the com-
mittee had desired to approximate the future Con-
stitution to that of the Mother Country, they had
unanimously concurred in thinking that the social

•The following gentlemen composed the Committee: — The Colonial
Secretary (Mr. J. V. F. Foster), the Attorney-General (Mr. W. F.
StaweD), the Auditor-General (Mr. E. Grimes), the Speaker (Dr.
Palmer), Mr. W. C. Haines, Mr. O'Shanassy, Mr. Greevcs, Mr.
Goodman, Mr. Nicholson. Mr. Miller, Mr. Smith and Dr. Thomion.
The three first were the official nominees; the others, elected member*
of the House. V. and P., Vol. 1, Part 1. lS.53-4, p. 20.

»V. and P., Vol. 3, Part 2, 18.>?-4, pp. 587-598,

Constitutional Development of Victoria.

conditions of the Colony rendered a close assimila-
tion to certain British institutions impossible. The
-committee recommended, amongst other things : —

(a) That the Legislature of the Colony should
consist of the Governor and of two Houses,
to be called the Parliament of Victoria ;

(b) That the two Houses should be designated
respectively, "The Legislative Council"
and '"The 'House of Assembly" ;

(f) That the Legislative Council should be elec-
tive, and should represent the education,
wealth, and, more especially, the settled
interests of the country.

{d) That to such a body should be entrusted
the Legislative functions of the House of
Lords ;

(e) That upon the House of Assembly should
be conferred all the rights and powers of
the House of Commons ;

(/) That the duration of the House of Assembly

should be for three years ;
*(g) That the responsible officers should be the
Colonial Secretary, to be called in future
the Chief Secretary, the Attorney-General,
the Colonial Treasurer, to be called in future
the Treasurer, the Collector of Customs,

•Afterwards altered to Legislative Assembly.

* and 'The substance of (g) and (,h) was embodied ir> Section
XXIV. of the Select Committee's Bill. V. and P., lSr)3-4, Vol. 3.
Part 2, p. G29. When the Constitution Act was passed by the Vic-
torian Legislature, Section XVIII., which referred to responsible
officers, read : —

"Of the following officers of Government for the time being,
that is to say, tne Colonial Secretary or Chief Secretary,
Attorney-General, Colonial Treasurer or Treasurer, Commissioner
of Public Works, Collector of Customs or Commissioner of
Trade and Customs, Surveyor-General or Commissioner of Crown
Lands and .Survey, and Solicitor-General, or the persons for
the time lieing liolding tliesc offices, four at least sliall be
members of the Council or Assembly.

"In the Constitution Act of \'ictoria (18 and 19 Vict. Cap. 55)
passed by the Imperial Parliament, Section X\'III. remained
unchanged, but at the side this marginal note was placed— "Who
are to be responsible officers."

Inauguration of Responsible Government.

to be called in future the Commissioner of
Trade and Customs, the Surveyor-
General, to be called in future the Commis-
sioner of Crown Lands or Survey, the
Postmaster-General, the Solicitor-General,
and the Commissioner of Public Works;
*(/;) That of the responsible officers of Govern-
ment, two at least should have seats in the
Legislative Council, and two at least have
seats in the House of Assembly ;
(0 That all the patronage of the Government

should be vested in the Governor;
(/) That the sum of £50,000 should be reserved
on the schedule for public worship, for the
advancement of religion, and the promotion
of good morals in the Colony of \'ictoria.
As the report of the committee stated, the Con-
iitutioH Bill had been drawn up to meet the social
conditions of the Colony. The committee did not
attempt to model the Victorian Parliament lavishly,
either upon that of Britain or of Canada. In Eng-
land, the Cpper House was composed chiefly of
hereditary peers ; in Canada, of nominees of the
Crown. The pro])osed \'ictorian Upper House was
to be elective. The British Parliament could last
for seven years, the Canadian four; that of Victoria
was not to exceed three years in duration. The first
reading of the Bill was on December 15th, and pro-
voked little discussion, except on the question of
the Upper House being elective. The second read-
ing took place on January 25th; there was further
discussion on the proposed elective Upper House,
and then the Bill was referred to the committee of
the whole House. The Bill came before the com-
mittee several times, and two important resolutions
of the Select Committee were altered: —

(1) Patronage was to be vested in the Gover-
nor and the Executive, instead of in the
Governor alone ;
47

Constitutional Development of Victoria.

(2j Fifty ihoiisand pounds was to be devoted
"for the advancement of the Christian re-
ligion," instead of "for the advancement of
religion."
Considerable discussion, both within and without
the House, took place over this grant of £50,000.
On March 21st, a motion was made in the House
to strike out the grant for public worship. It was
lost by a large majority. The Bill passed its 'third
reading on March 24th, 1854, and was entitled An
Act to establish a Constitution in and for the Colony
of Victoria. 'Early in July, 1854, Earl Grey for-
warded to Sir 'Charles Hotham, Lieut.-Governor of
Victoria, a copy of a despatch sent to the Governor-
General, in which he stated that the Constitution
from Victoria had reached England on May 31st.
The sitting of Parliament was, however, too far ad-
vanced, he said, to be able to do anything in that
session ; also the novelty and importance of some
of the provisions of the Act would make it necessary
to postpone their consideration until next session.

Sir Charles Hotham seems to have had uneasy
feelings with regard to the Nexv Constitution Act for
Victoria, 'for, on October 25th, 1854, he wrote to the
Right Hon. Earl Grey, stating that he considered
the Constitution was in reality that of a republic.
It was quite possible that Sir Charles Hotham had

•On March 25th, the Bill was reserved for the signification of Her
Majesty's pleasure. On the 28th, it was published in the "Victorian
Ciovernnient Gazette."

'V. and P., \KA-!S, Vol. W. Part 1, p. 22, July 3rd. 1854.

•Sir Charles Hotham, the successor of Lieut.-Governor La Trobc,
who left Melbourne for England on May 5th, _ 1854, was born in
IROfl, and distiiiRuished himself in the naval service. He was a mid-
shipman on the "Naiad," and assisted at the reduction of an Algerine
brig-ot -war under the batteries of liona in 1824. He was promoted
to K.C'.B. for his distinguished service in the operation of La Plata
in 1845. From 1840 to 1849 he was a Commodore on the West Coast
of Airica. He tilled the position of a diplomatic representative of
Great Britain to the Argentine Conference. The Duke of Newcastle
offered him the appointment of Lieut. -Governor of Victoria. This
position he accepted, and landed at Melbourne on June 21st, 1854.
Hi.i death occurred at Toorak on December 31st, 1855.

'Australian Constitution, p. 8.3.S.

Inauguration of Responsible Government.

opinions similar to those expressed by Mr. Griffiths,
a nominee member of the Victorian Legislature,
when he spoke in opposition to the Upper House
being elective. That gentleman questioned whether
it was possible to have a monarchy with republican
institutions ; in his opinion, an elective Upper House
was essentially republican in character.

It was during the same month, October, 1854, that
one of the strangest "motions in the history of the
Legislative Council of Victoria was brought for-
ward— a motion which sought for far more than
Responsible Government. This was during the
period of great unrest caused by the rejection of the
Convicts Prevention Act by the Home Government.
The motion desired the Imperial authorities to take
proper steps to erect the Colony of Victoria into an
Independent Province or Kingdom, under an heredi-
tary Chief Magistrate of a branch of the Royal
Family of Great Britain and Ireland. This motion,,
then, went far beyond the desire merely for Respon-
sible Government, and practically amounted to a
request for independence, though under the rule of
a member of the Royal Family. When, however,
the young-Prince-motion was put before the House,
it received very meagre support.

The delay in England in dealing with the Con-
stitution caused a feeling of unrest in the Colony;
there was a spirit of discontent, which daily became
more manifest. The latter part of the year 1854
was a stormy one in the history of Victoria, for in
October came the disturbances at Ballarat over the
grievances which the miners had against the Govern-
ment. On November 14th of the same year, an
address concerning the delay of the Bill was sent to
the Queen, wherein it was stated that, in the opinion
of the Legislative Council, no valid reason could
exist for any further delay. It was recognised that

»"V. and P., October 31st, 1854, Vol. 1, Part 1, p. 88.

Constitutional Development of Victoria.

public opinion was making itself felt with regard to
the system of a Ministry irresponsible to the people's
representatives. The manner in which this expres-
sion of public opinion was demonstrated may now
be examined.

Towards the end of 1854, the Eureka Stockade
episode and the troubles connected with the gold-
fields in Victoria gave rise to an interesting political
situation. Quite unexpectedly, as it were, an im-
portant feature of the doctrine of Responsible
Government was put into actual practice, rather
more than a year before the Nczv Constitution Act
became law in Victoria. The circumstances leading
up to this situation were as follow: — The fatal
collision at Ballarat and the bringing of the prisoners
to Melbourne produced great excitement amongst
the people. Popular feeling in ^Melbourne and else-
where was directed against the policy of the Gover-
nor and his Executive with regard to the gold-
mining conununities of the Colony. The Colonial
Secretary, Mr. J. V. F. Foster, was openly blamed
in public meetings for the continuance of the
licensing system of the goldfields, and his dismissal
from office was demanded. Public opinion was
thoroughly aroused. Mr. Foster, who was an Execu-
tive Councillor and also an official nominee, was re-
sponsible, not to the Legislative Council, but to the
Lieut.-Governor. He therefore wrote to him, stating
that if his remaining in office was an impediment to
the Government, he was prepared to resign, though
not anxious to do so. That the Lieut.-Governor
fully recognised the power of the voice of the-^ople
is abundantly clear from the "reply he sent to Mr.
Foster, in which he said, "I cannot disguise from
myself that, if I were to decline accepting you^
resignation, the Queen's Colony would be placed in
jeopardy.'' So, on December 9th, 1854, Mr. Foster

»V. and p.. Legislative Assembly, 1807, Vol. 2, p. 462.
50

Inauguration of Responsible Government.

resigned his office as Colonial Secretary, and Lieut.-
Governor Hotham accepted his resignation.

In 1867, Captain Mac^Iahon, who had been Acting
Chief Commissioner of Police in 1854, gave evidence
concerning this resignation of Mr. Foster, and
pointed out clearly the true significance of the in-
cident. That retirement was, he considered, the
first real step towards the introduction of Respon-
sible Government in \^ictoria, as admitting a re-
sponsibility to exist between an officer holding
political office and the population over which he was
placed. Of course, had Responsible Government
been in practice then, the other Ministers should
also have resigned their offices. Upon this question,
the "Parliamentary debate of March 28th, 1855, gives
some valuable information. In this debate, the
Auditor-General, when referring to Mr. Foster's re-
tirement, openly stated that the odium which had
been cast upon Mr. Foster should have been shared
hy the other members of the "Executive, who had
aided him with their advice. The principle of united
Ministerial responsibility in connection with the
Government policy was here definitely indicated ;
the doctrine of Responsible Government Avas clearly
approached. But the officers of the Government
were not, under tlie Constitution Act of 1850, respon-
sible to anyone but the Lieut. -Governor, so they
kept their seats, and the pension rights to which
they later became entitled under the Xezv Constitution
Act. Beyond the Auditor-General's statement in
the House, no other action was taken by Mr.
Foster's colleagues ; he fell alone.

Some months later an unexpected Parliamentary
incident occurred which caused the Lieut.-Governor
further anxiety, and made him earnestly desire the

'^"Argus," March 29th, 1855, Parliamentary Debates.

"At this time four out of five Executive Councillors were official
nominees, and therefore members of the quasi-ministry. (See chapter
on "Executive").

Constitutional Development of Victoria.

speedy arrival of the New Constitution. On "June
12th, 1855, the day on which the Legislative Council
was prorogued, Mr. J. O'Shanassy gave notice of a
motion, which iie intended to move early in the en-
suing session. The three sections of the notice of
motion are full of interest, and they caused the
^"Governor to write a special despatch to the Home
Authorities, who were requested to advise him as
to the proper course to pursue with regard to it.
The notice of motion set out : —

(1) That this Council, after four years of prac-
tical experience of the working of the
system of Irresponsible Government in
Victoria, declares that it has proved itself
most injurious to the highest interests of
the people, confessedly unsuited to their
wants, opposed most frequently to their
deliberate wishes, destructive alike to their
inalienable rights and most cherished con-
stitutional liberties, and ought to cease for
ever in this country ;

(2) That, whether the New Constitution shall
have reached Victoria or not, this Council
is of the opinion that it is their paramount

1 duty to call upon the Connnander-in-Chief,

on behalf of the inhabitants, whose happi-
ness and prosperity are imperilled, present
and future, to establish a system in con-
sonance with the views and opinions of a
free people — the enlightened system of Re-
sponsible Government;

(3) That this country pledges itself to make an
equital)le j)rovision for those Officers of the
Government who may be compelled to re-
tire from office in consequence of the con-
templated political changes.

"V. and p., Vol. ], Part 1, 18.54-5, p. 483.

"Sir Charles Hotham l)ecame Governor-in-Chief of Victoria by a.
deipatch dated February '2nd, 1855. Took the oath on May 22nd, 1855-

Inauguration of Responsible Government.

At a "later date, after the New Constitution had
arrived, Mr. O'Shanassy was asked what he had
really intended by his notice of motion. He stated
that, as the House would have dissolved by law on
October 1st, 1856, he purposed striving for a House
entirely free from nominee element, and then to
assist to introduce Responsible Government. As
far as Section 1 of Air. O'Shanassy's motion was
concerned, it would probably have secured strong
support in the Legislature ; but Section 2, looked at
in the light of Air. O'Shanassy's own explanation
with regard to eliminating nominee members,
amounted to a determination, if the Constitution did
not arrive, to ignore the law of the land, which re-
quired the com])osition of the Legislature to contain
one-third nominees. Mr. O'Shanassy's notice of
motion gave no hint of aiming at a House without
nominees. The Law Ofificers would never have
advised the Governor as they did, had such a course
been suggested in the notice of motion. What this
advice was we shall shortly see. With regard to
establishing "responsible government" in a Vic-
torian Legislature, it is most likely that Mr.
O'Shanassy had in mind that portion of Lord Dur-
ham's Report, where he stated that the "vital change
could be carried out without any legislation, and
that the introduction of Responsible Government
would simply amount to this, that the Crown would
henceforth consult the wishes of the people, as to
the choice of its servants.

Mr. H. S. Chapman, in his booklet, '"Parliamentary
Government or Responsible Ministries for the Aus-
tralian Colonies,'" published in 1854, gave wide pro-
minence to Lord Durham's Report on the political
situation in Canada, and. to the subsequent intro-
duction of Responsible Government into that

'•Sec Parliamentary Debates, "Argus," November 28th, 18");".
"Lord Durham's Report, edited by Sir C. P. Lucas, Vol. 2, pp.
377, 280, 285.

Constitutional Development of Victoria.

Colony. He also discussed at some length the sub-
ject of Responsible Ministries in the Australian
Colonies. This booklet must have been well known
to Mr. O'Shanassy. 'Tinally, the proposal by
Edward Gibbon Wakefield to introduce Ministerial
responsibility into the 'New Zealand Government,
in June, 1S54, must also have been a matter
of common knowledge in political circles in
Australia. From whatever source ^Ir. O'Shanassy
received the impulse that led to his '"notice of
motion, it is quite CA'ident that he felt the time for
Responsible Government in Victoria had not only
arrived, but was overdue. Governor Hotham. who
'"wrote urgently to Lord John Russell for advice
concerning" Mr. O'Shanassy's notice of motion, said
that he was informed by the Law Officers of the
Crown that no legal objection existed to the adop-
tion of the change Avhich was recommended in the
notice of motion, but, as it involved the introduction
of Responsible Government, he desired that he
should be furnished with instructions as to the course
he was to pursue. He further stated that, since the
despatches of Sir J. Pakington. of December 15th,.
1852, had been known, a heartburning on the part
of the people for Responsible Go\ernment had
existed. Then he drew attention to the fact that
the present Legislative Council would be dissolved
on October 1st, 1856. and that new writs for a
general election would follow. "From the temper
of the colonists," Governor Hotham continued, "and
more especially from the feeling which exists on
the goldfields, I am satisfied that a universal de-
mand for Responsible Government will arise, and
that they will refuse to proceed to an election unless
the Government is to be chosen from the majority

""The Constitutional History and I-aw of New Zealand," p. 276,
by Higlit and liamfonl.

'• and '"Australian Constitution, pp. 92(J-7, June 27tli, 1853.

Inauguration of Responsible Government.

of tlie new Council. If the Xevv Constitution shall
not have arrived Ijefore that period, either I must
accede to the wishes of the peo])le, pre])are for an
excitement which will border on revolution, or leave
the Colony without a Government." That the
Governor had begun to anticipate something which
would again bring about a crisis, as in the case of
the goldfields and the insurrection at Ballarat, is
markedly borne out in the closing part of his de-
spatch, of June 27th, 1855, where he says, "I
specially request that you do, by return mail, in-
form me —

(1) When the Constitution may be expected;

(2) Whether in the event of a delay being
likely to arise before the arrival of the Con-
stitution, Her Majesty's Government will
give their sanction to the objects contained
in Mr. O'Shanassy's motion ; and, finally, I
request, it is most urgent that I should re-
ceive an immediate answer."

Governor Hotham was, without doubt, very anxious
for the arrival of the Constitution, before a situation
arose which he felt would be full of political diffi-
culty. His anxiety, however, with regard to the
arrival of the New^ Constitution was soon relieved,
for on October 23rd, 1855, lie received it. To the
inauguration connected with that Constitution w^e
can now turn, and consider the new political prob-
lems to which its arrival and proclamation gave rise.

In a "lengthy despatch to Governor Hotham,
dated July 20th, 1855, Lord John Russell, when
speaking of the Xew^ Constitution for Victoria, ex-
pressed the earnest hope that this grant of self-
government to Victoria — a grant which was in more
ample measure than had yet been established in any
other Colony of Great Britain — might fulfil, in its

•^Australian Constitution, p. 947.

Constitutional Development of Victoria.

results, the anticipations of all friends of liberty and
good Government, both within and without the
Colony.

"Though the Constitution had arrived, and was to
be proclaimed on November 23rd, 1855, the Legisla-
tive Council, as appointed under the Act of 1850, was
still in office ; the blended character of the House
remained unaltered. Before the two Houses of Par-
liament, as proposed in the A^czc Constitution Act,
could assemble, a new Electoral Act had to be passed
by the present Legislative Council. Then, when
that was settled, the House could be dissolved, the
elections held, and the new members take their
seats in the Legislative Council and the Legislative
Assemblv. It is quite certain that, with the arrival
of the New Constitution, the situ^ition of a part-
nominee House, with the Officers of the Government
in no way dependent upon the wish of the majority
in the Legislature, presented a difficulty to the
Governor w^itli regard to the introduction of Re-
sponsible Government. As far back as August 4th,
1853, the Duke of Newcastle, in a "despatch to Sir
Charles Fitzroy. the Governor of New South \\' ales,
had anticipated that some such political situation
might arise, if an attempt were made to introduce
Responsible Government into the blended House. He

"Section \'. of the Statute stated that the New Constitution was
to be proclaimed within one month after it had been received. Section
59 of the Rill fixed the time at three months. (Statutes at Large,
Vict., 18 and 19, Cap. .")).

William F. Stawell, the -\ttorney-General, and Robert Molesworth,
the Soli«itor (leneral, were asked by Governor Hotham when the
Constitution Act should be proclaimed. They re|)lied, "It would
appear that inadvertently a time was fixed by the fifth clause of the
Statute, not identical with that named in the fifty-ninth clause of
the Bill, but as the time named in the Statute is shorter than that
named in the Bill, the provisions of both may be complied with by
proclaiming the whole Statute, including the Bill, within one month.
If this course were not pursued, a difficult question might arise as to
the power of proclaiming after one month ; but we could not advise
such a course being pursued. (V. and P., IS.'i.'i-O, Vol 2, Part 1,
p. 570).

"Australian Constitution, p. (i80. Copies of the same despatch
were' sent to the Lieut. -(jovernors of Victoria, .South .Australia and
Van Diemen's Land.

Inauguration of Responsible Government.

expressed the oj)inion that to conduct what was or-
dinarily understood as Responsible Government with
a single House, composed in part of nominees of the
Crown, would be, at all events, a new experiment,
and one of which he could not very well foresee the
issue. He was not at all inclined to anticipate its
•complete success. As we shall see later, the anoma-
lous political situation which arose in the Victorian
Legislature shortly after the proclamation of tlie
New Constitution was a concrete illustration of what
the Duke of Newcastle had feared might come to
pass.

Since the arrival of the Constitution, those Officers
of the Government who w'ould become politically
responsible under the New Constitution had doubted
their exact position and functions. They asked the
Governor's opinion on these matters. With regard
to their position after the proclamation of the New
Constitution, they received no definite instruction
until the morning of the proclamation. Their
''^political position, in the meantime, was soon made

"V. and p., 1855-6. Vol. 2. Part 1, p. 576.

On October 29th the Governor requested the Law Officers to give
their opinion on the following points: —

(a) Under the Constitutional Act, when do the officers designated
in the 18th Clause assume their responsibility?

(b) Are they responsible to the present Legislature?

Two days later the Attorney-General (Mr. W. F. Stawell) and
the Solicitor-General (Mr. R. Molesworth) concurred in sending the
following replies to the Governor's questions: —

(a) The words "responsible officers" occur not in the text, but
merely in the marginal notes of Sections 18 and 51 of
the amended Bill. According to the provisions of the ISth
Clause, four of the officers referred to in it must from the
time of the return of tlie writs for the first election, or at
least of the meeting of the Legislative Council, and Legis-
lative Assembly, he members of one body or the other;
the word "responsil)le" applied to such officers bears no
legal meaning. To a certain extent, the officers mentioned
in that clause have always been responsible to the existing
Council ; nor, indeed, with the exception of the necessity
of a certain numljer being elected members under the 18th
Clause, do the new Acts make any legal change in their
responsibility, though practically they may henceforth be
more liable to be removed, and called to account according
to the feelings of the Legislative bodies than heretofore.

(b) Their responsibility to the existing Council legally remains
unaltered.

Constitutional Development of Victoria,

clear to them. When the Governor, on ^-November
the 5th, asked the Officers of the Executive Council,,
four of whom were official nominees with seats in
the Legislature, to meet on the follojwing day for
the purpose of going through the Estimates, they
stated that they experienced a difficulty at starting.
They pointed out that they were not informed as to
whether they were to consider the Estimates as re-
sponsible Officers under the Constitutional Act, or
as Officers responsible to His Excellency for carry-
ing out the policy which he might indicate. In
reply to this, the Governor stated : —

(1) The responsibility of the Officers com-
mences on the day of the proclamation, and
the Governor will not sanction any devia-
tion from the present form of Government
or routine till then.

(2) With regard to the Estimates, if the Officers
desire to postpone framing the Estimates
until they are responsible, the Governor
acquiesces in their wish. If they think it
right to lay the Estimates on the table of
the Council, when it meets, the Governor
will consider such Estimates as having
been framed under the present form of
Government, thus requiring his sanction.

This answer quite satisfactorily defined the position
of the Officers of Government up to the Proclama-
tion ; indeed, no other sound reply was possible.
The Governor realised that the ])olitical situation
would necessarily be changed after the Proclama-
tion. What some of his views were on the new
order of things, when the Constitution had been
proclaimed, we may now consider.

On the morning of ""November 23rd, 1855, and
just before the proclamation of the New Constitu-

»V. and p. Vol. 2, Part 1, 185.'5-0, p. •,".

"V. and P., Vol. 2, Part 1, 18.">r.-r,, p. ,^81; also Parliamentary
Debates, "Argus," November 29th, ISTto.

Inauguration of Responsible Government.

tion took place. Go\"crnor Hotliam handed to the
Colonial Secretary a Minute, whicli, an accompany-
ing" letter explained, was transmitted for the infor-
mation and guidance of responsible officers regard-
ing the future administration of the Colony. He
deemed it right. Governor Hotham said, to record
the views which mature consideration had led him
to form regarding the position which he, as Gover-
nor, would hold with his responsible advisers. He
requested the Colonial Secretary to consider this
document under his special charge, and, in the event
of a change of Government, to hand it over to his
successor. The greater part of the Minute was quite
constitutional ; one very important section, however,
made an extraordinary demand, quite incompatible
with the introduction of Responsible Government.
The wording of the section ran : "The Governor of
this Colony will always require that, previous to
the introduction of any measures into Parliament,
his sanction should be obtained. Should he refuse
his sanction, and the measure be of such importance
as to warrant such a consequence, he may. should
he think proper, change his administration, or they
may. should they feel aggrieved, tender their resig-
nation ; but in no case can they be justified in sub-
mitting a measure to Parliament without the cog-
nizance of the Governor." At the same time.
Governor Hotham maintained that he had no desire
to interfere with the arrangement of the Ministry,
or to be party to their consultations ; he wished, as
he stated in the Minute, to confine himself to the
exercise of his own functions, as he understood
them. This extraordinary instruction for the in-
formation and guidance of Responsible Officers
would have rendered Responsible Government an
impossibility, for the Governor would have retained,
under such a course, the powers of an autocrat.
Governor Hotham would really have had "a double
veto" ; he would liave possessed power to prevent

Constitutional Development of Victoria.

the introduction into Parliament of any measure
which was not agreeable to him, in addition to his
right to withhold his assent from any Bill which
had passed the House. The day after the ^'Proclama-
tion, in response to a letter from the Colonial Sec-
retary, the "^Attorney-General advised the Governor
as to his formally appointing the Responsible Officers
of the Government. He pointed out that, though
politically irresponsible under the old Act, they con-
tinued to hold offices, the occupants of which were
responsible, not merely legally, but politically, and
thus their position was most anomalous. To meet
this, the Attorney-General advised that new Com-
missions should be issued to all officers who were
to become politically responsible. "Their positions,"
he said, "would be thus determined, and their re-
sponsibility unquestionable." That Governor
Hotham quite realised this anomalous situation is
clearly shown in his last despatch, written '*(but
imsigned) to the Home Government, and dealing-
with the inauguration of the New Constitution. He
said : "A singular, and I apprehend, an unexpected
state of things thus ensued, conformably to the pro-
claimed Act ; a Responsible Government came into
force under a Constitution for which it was not in-
tended. The Ministers hold their seats as nominee
members, by commission from me, and they ad-
dress a Legislative Council elected under a different

"On the day that the Constitution was proclaimed, Sir Charles
Hotham wrote out his resignation as Governor, stating- that he was
almost due for his rank as admiral, and wished again to take up his
duties in the Navy. lie affirmed that lie liad used every power the
Almighty had given liim to promote the interests of the Colony of
Victoria; Ijut, in so doing, he had taxed liis strength to tlie utmost.
He prayed Her .Majesty to appoint his successor. Parliamentary
Papers, Vol 2, p. ."i. Covernor Hotham to Hon. Sir William Moles-
worth.

»V. and P., Vol. 2, Part 1, 18o5-0, p. 578. See "Argus," Novem-
ber 29tli, 18.55.

"Australian Constitution, p. 937. Despatch from Governor Sir
C A. Hotham to the Right Hon. Sir William Molesworth (December
21st, 18."«5), vouched for by the OfficeradministcringtheGovernmcnt,
Major-(ieneral Edward Macarthur.

Inauguration of Responsible Government.

franchise, which does not represent the constituen-
cies contemplated in the Constitutional Act." The
Governor took the advice of the Attorney-General,
and on November 26th released from office, "on
political grounds," those Officers of the Govern-
ment who would become politically responsible by
the Proclamation of the New Constitution. These
officers were: The Colonial Secretary, the Attorney-
General, the Collector of Customs and the Surveyor-
General. They were requested by the Government
to continue the duties of their offices until their
successors had been appointed. All the officers thus
notified on November 26th, not only on the same
day acknowledged their release from office, but also
claimed their ^"pensions.

One more political move was made on the 26th
day of November. Governor Hotham offered Mr.
W. C. Haines, who had just ])een released from his
post as Colonial Secretary, his old position under
the new title of Chief Secretary, and requested him
to submit a list of the persons who he desired should
form the new Ministry. This list must have been
submitted to the Governor either on November 26th
or 27th, for the names of the seven members of the
new Ministry were published in the Govcrnmenf
Gazette Extraordinary, of November 28th. When the
House met en November 27th, the officers who had
been released "on political grounds" were not
present. The Colonial Engineer then informed the
members of the House that the Colonial Secretary,
the Attorney-General, the Collector of Customs, and
the Surveyor-General had tendered their resigna-
tions to the Governor, who had accepted them.
The House, taken completely by surprise, went into
Committee to discuss the political situation. It
agreed to present to the Governor an address, ask-
ing fof all papers and documents that would explain

'"18 and 19 Vict., Cap. 55, Section 50, Statutes at Large, p. 604.

Constitutional Development of Victoria.

why he had adopted the present course of political
action. "All the papers requested were sent to the
House by the Governor on the following day. Their
chief contents we have already mentioned. When
the House met on the 28th. the Speaker announced
that there had been handed to him seven Letters
Patent, dated 28th, appointing —

William Clarke Haines, Esq., as Chief Secretary of

the Colony of Victoria.
William Foster Stawell. Esq., as Attorney-General of

the Colony of Victoria.
Charles Sladen, Esq., as Treasurer of the Colony of

Victoria.
Charles Pasley, Esq., as Commissioner of Public

Works of the Colony of Victoria. ^

Hug-h Culling Eardley Childers, Esq., as Commis-
sioner of Trade and Customs of the Colony of

Vi-ctoria.
Andrew Clarke. Esq.. as Surveyor-General of the

Colony of Victoria.
Robert Molesworth, Esq., as Solicitor-General of the

Colony of Victoria.

This sudden and iniexpected releasing of ofificial
nominees "on political grounds," and almost
simultaneously creating them members of a new
iMinistry without the knowledge of the House, made
a great stir amongst the members. The whole pro-
ceeding was violently attacked by the elected repre-
sentatives, and the opinion was voiced that "personal
motives had l^een no small factor in accounting for
the course ]:)olitical events had taken.

The Governor's iMinute of November 23rd also
now came in for very severe criticism, and the
Ministers finally sent a "memorandum to the

'n^. and p., Vol. 2, Part 1, 1855-6. pp. 575-82; also published in
the "Argus," November 29tli. l.STi.'i.

"IS and 19 Vict., Cap. 55, Section 50, Statutes at Large, p. 604.

"(a) Parliamentary Debates, "Argus," December 5th, 18u5. On
December 4th the Chief Secretary frankly told the House he and his
colleagues had since considered the Governor's minute. They had
come to the conclusion that it was impracticable. (b) V. and P.,
1855-6, Vol. 1, Part 2. p. 768.

Inauguration of Responsible Government.

Governor on November 30th with regard to it.
They pointed out that, when they had received the
<locument, it did not then really relate to them,
therefore it did not receive the consideration to
Avhich it was entitled. Now, however, they felt it
imperative to state to His Excellency that they
•could not consent to accept its terms as defining
Responsible Government. They therefore requested
that the Governor would withdraw' his Minute.
When the reply came, three days later, the Governor
intimated that he had transmitted the ?^Iinute in
question as an exposition of his own view s. and not
as a dictation of the terms on which he expected a
Ministry to accept office.

The climax of the resentment felt in the House
against the proceedings of the Governor, upon the
occasion of the advent of the New Constitution,
came in the form of a "motion by ]\Ir. Greeves, an
elected member, on December 4th. It contained
six resolutions, the two most important being: —
(No. 5) That this House views with extreme
surprise and regret the principles laid dow^n
in His Excellency's jNIinute to the Colonial
Secretary, as to the conditions under which
the present or any future Administration
are to consider themselves acting; and
feels called upon to express its disapproba-
tion that any persons would accept office on
terms so humiliating to themseh'es, so
derogatory to the rights of the people and
to the powers of the Legislature of Vic-
toria ; so opposed to sound views of Re-
sponsible Government and subversive of
the principles of the Constitution ; and this
House disclaims sanctioning any part of,
and protests against and censures the
whole proceeding.

•*V. and p., Vol. 1, Part 1, December 4th and 5th, ISo"..

Constitutional Development of Victoria.

(Xo. 6) That an address embodying" the above
resolutions be prepared and presented ta
His Excellency.
In the debate which took place on Air. Greeves'
motion, an attempt was made to upset the wording'
of the resolutions, and modify them considerably,
but the House voted for the wording being re-
tained. The motion itself, however, on being put
to the vote of the House, gained for the Governor
and his policy, thus assailed, a victory by one soli-
tary vote. In Governor Hotham's last and un-
signed despatch to the Home Government, he just
briefly alluded to what was really an attempt to
censure his own proceedings, in connection with the
proclamation of the Constitution. The only official
information concerning the resolutions of Mr.
Greeves was, "a motion was made directly impugning-
the conduct of the Government ; a warm debate en-
sued, and Ministers were only saved from defeat
by an insignificant majority." Had the Governor
and his Executive, in the first instance, taken the
House into their confidence, as to the doubts con-
cerning those who were about to become respon-
sible Alinisters, much of the condemnatory language
levelled against the Governor and his Executive
would never have been heard within the House.
There can be no doubt that the Governor made a
blunder in issuing that portion of the Minute which
has been discussed, and which met with such a
stormy reception in the House, and with rejection
finally at the hands of the Ministers themselves. As
far as the Ministers were concerned, their acceptance
of office without an immediate protest against the
contents of the Minute laid tliem justly open to
the censure directed against them in Mr. Greeves'
resolution. Thus ended the political alarm and
struggle which were the direct outcome of the
Governor's Minute referring to the introduction of
Responsible Government in Victoria. But the re-

Inauguration of Responsible Government.

quest made by the Chief Secretary on No\ember
30th for the Governor's withdrawal of the Minute
was never granted.

When Mr. Nicholson was trying to form a
Ministry after Mr. Haines' Government had re-
signed owing to their defeat on the question of the
Electoral Act, he saw Governor Hotham on Decem-
ber 21st, 1855, and during the interview broached
the subject of the Minute. The Governor desired
Mr. Nicholson to act as if the Minute had no exis-
tence. He asked that it should not be mentioned
further, and stated that all matters which might
arise between himself and his Executive should be
settled on their merits without any reference to
that document. As Mr. Nicholson "afterwards ex-
plained to the House, Governor Hotham had. in a
very constitutional manner, authorised him, with-
out a condition of any kind, to form his Administra-
tion. This last reference to the Minute has revealed
the fact that whatever motives led Governor Hotham
to issue the unfortunate document, he had by this
time reconciled himself to accepting Responsible
Government, as popularly interpreted. Neverthe-
less, he did not officially withdraw the Minute.

On December 19th the ballot clauses of the
Electoral Act brought about the defeat of the Haines'
Ministry. "The "secret ballot" had been made a
Ministerial question, and consequently Mr. Haines,
the Chief Secretary, handed his resignation to the
Governor. But in the meantime Governor Hotham
was taken seriously ill. Mr. Nicholson attenijjted to
form a new Ministry, but he was unsuccessful in
his efforts. When this news was communicated to
the Governor, he became decidedly worse, and early
in the afternoon of December 31st, 1855, he breathed

*"'Argus," Parliamentary Debates. January 9th, 1856.

"V. and P.. 1855, Vol. 1, Part 1, p. 70. See also "History of the
Australian Ballot." by Professor E. Scott, "Victorian Historical
Magazine," Vol. 8.

Constitutional Development of Victoria.

his last. He had only landed about eighteen months
previously, and had inherited many accumulated
grievances — the result of a policy adopted long-
before his arrival. The advent of the AVrc Con-
stitiition Act, and the incidents attendant upon its
inauguration, had brought many added burdens to
him. He had contributed, no doubt, to the political
storm which burst in December; but all his previous
training had been for the Navy, not for the political
arena. He became practically a martyr to a situa-
tion which would have taxed the powers of a Lord
Elgin. After all the anticipation of the Xew Con-
stitution, both by the Governor and the colonists,
its arrival and inauguration had brought a season
of great political perplexity ; upon no one had the
mental strain told more heavily than upon the
Governor. His career as Governor of Victoria
under the New Constitution Act was very brief; never-
theless, it has enriched our national history with a
mournful but a most instructive episode. The new.
year of 1856 opened inauspiciously for Victoria,
without a Governor or a Government. Major-
General Edward Macarthur, the eldest son of the
celebrated introducer of merino sheep to New South
Wales, became, under the instructions of the late
Governor's commission of February 2nd, 1855, the
Officer administering the Government. He sent for
Mr. Haines, who now, for the third time assuming
the reins of Government, acceded to his request that
"the secret ballot" should be made an open and not
a Ministerial question.

The New Constitution Act liad received the Royal
assent, yet its validity was publicly questioned, be-
cause it had undergone alterations and amendments
in the Imperial Parliament, without the concurrence
or sanction of the Victorian Legislature. It ''re-
ceived a definite challenge when, on February 15th,

'V. and p.. Part 1. Vol. 1, 1S55-6, p. 188.
GO

Inauguration of Responsible Government.

1856, a motion was passed in the House by a large
majority requesting that the Law Officers of the
Crown would lay before the House their written
opinions as to whether the Constitution Bill could or
did possess the force of law in the Colony. The
Attorney-General and the Solicitor-General agreed
in stating on "March 12th, with regard to the
Constitution Bill of 1854, that it did possess the force
of law in the Colony, and that its efficacy was due,
not to the power of the Colonial, but of the Imperial
Legislature, and to the assent given by Her Majesty-
in-Council to the Bill as amended (Act of Parliament
18 and 19, Vict. Cap. 55) ; such assent having been
made by the Imperial Legislature a condition pre-
cedent to the measure coming into operation.

On '"March 13th, 1856, the Victorian Electoral Bill
was read the third time and passed. The measures
necessary for electing the members of the two
Houses under the Constitution Act having been com-
pleted, it now only remained for the Acting-Gover-
nor to bring the political existence of the Legisla-
tive Council of Victoria to a close. This took place
on March 20th, 1856. Then came tlie election for
the Legislative Council and the Legislative Assem-
bly, and on November 7th of that year, the lists of
members for the new Houses were published in the
Government Gazette. In accordance with Acting
Governor Macarthur's proclamation, issued on
November 4th, the first Parliament met on Novem-
ber 21st, 1856.

»»V. and P., 'Vol. 2, Part 2, 1855-6. p. 783.
»»V. and P., Vol. 1, Part 1, 1855-6, p. 255.

PART 2.

THE EXECUTIVE AND THE LEGISLATIVE

COUNCIL OF VICTORIA.

THEIR ORIGIN AND DEVELOPMENT.

1851-6.

CHAPTER III.

THE EXECUTIVE COUNCIL, 1851-6.

As each Australian Colony was founded, a
Governor was appointed by the Home Government,
to be its official head. Provision was also made for
an 'Executive Council, which the Governor could
consult upon all important occasions. At the meet-
ings of the Executive Council, the Governor pre-
sided ; minutes of the meetings were kept, and from
time to time they were forwarded to the Secretary
of State. The highest and most responsible officers
were usually in the Executive, but the selection of
those who formed this Council was not uniform.
The usual number in the Executive Council was
four or five. The Colonial Secretary and the Trea-
surer were always members ; the holders of the
other seats varied. Before the Act of 1842, the
Legislative Councils were non-elective, being com-
posed both of official and of non-official members
nominated by the Governor. At the meetings of
the Legislative Council, the Governor presided, and
performed the double office of President and Speaker.
In these Legislative Councils, members of the Execu-
tive Council took their seats. As all the members
of both Councils were nominees of the Governor,
and as he presided at their meetings, they rarely
thwarted his wishes. In such gatherings there was
not much scope for animated debate. As long as
the Executive Councillors showed a decent know-
ledge of their individual departments, and could
answer in a conversational way any question relat-

'In New South Wales the Executive Council camL into existence
on December 20th, 1825. A body with many of the functions of an
Executive Council had, before 1825, assisted the Governor in his
public duties, though it did not enjoy the title or the prestige of such
a Council. Cramp's "State and Federal Constitution of Australia,"
p. 14.

Constitutional Development of Victoria.

ing to them, they were able to hold their positions
without being considered unsuitable for their duties.

When the Act of 1842 came into force, it did away
with the wholly nominated Legislative Council in
New South Wales and provided for a Council com-
posed of one-third nominees and two-thirds repre-
sentatives. Over this type of Legislature, the
Governor did not preside. His place was taken by
a Speaker selected by the House and approved of by
the Governor. The introduction of this partly-
elected Legislature in New South Wales in 1842
revealed the fact that some of the offices in the
Executive Council were filled by men who were
not ^competent to take seats in the Legislative
Council. Their places in the Legislature were taken
by official nominees who possessed the necessary
ability. When the Port Phillip District became the
Colony of Victoria on July 1st, 1851, and received
a partly-elected Legislature, an anomalous political
situation arose in Victoria, similar to that which
had occurred in New South Wales after the intro-
duction of the blended House in 1842. We shall
now examine the circumstances which gave rise to
this anomalous political situation in Victoria, and
set out and compare, year by year, the lists of the
members of the Executive Council with those of the
official nominees, who held seats in the Legislati\e
Council. This comparison will extend over the
whole period of the Legislative Council from
November 11th, 1851, to March ^20th, 1856.

Acting under the terms of his 'commission, Lieut.-
Governor La Trobe appointed four persons mem-
bers of his Executive Council on July 16th. 1851.
Four was the maximum number permitted by his

*See Chapman's "Responsible Ministries for the Australian
Colonies."

" and *In the office of Clerk of the Executive Council, Treasury
Buildings.

The Executive Council.

commission. By Section XVII. of his Snstrnctions,
Lieut. -Governor La Trobe was notified that the fol-
lowing were nominated by the Crown to be mem-
bers of his Executive Council: — The Crown Prose-
cutor or Principal Law Officer, the Sub-Treasurer
or Treasurer, and the Collector of Customs. Lieut. -
Governor La Trobe's appointments fulfilled the re-
<]uirements of this instruction. Five oflficial nomi-
nees were appointed provisionally by the Lieut.-
Governor on October 31st of the same year. These
appointments were made by virtue of "powers dele-
gated by Her Majesty to the Lieut. -Governor by
warrant under sign manual, dated December 31st,
1850. These five official nominees constituted a
virtual Ministry, something similar to the English
Ministries before they became responsible to the
majority of the Commons.

We shall now examine the Executive and the
Legislative Councils for the years ending 1851 and
1852, and see how many of the members of the
Executive Council had seats in the Legislature.
The members of the Executive and the Legislative
Councils at the end of 1851 were: —

EXECUTIVE COUNCIL. LEGISLATIVE COUNCIL

(Official Nominees).
President, His Excellency the

Lieut. -Governor, Mr. C.

J. La Trobe.
Colonial Secretary, The Hon. Colonial Secretary, The Hon.

William Lonsdale. Lons William dale.

Attorney-General, The Hon. Attorney - General. The

William Foster Stawell. Hon. W. F. Stawell.

Colonial Treasurer, The Hon.

Alastair Mackenzie.
Collector of Customs, The

Hon. James H. N.

Cassell.

Solicitor-General.
Not members of the Execu-
tive Council ") Chairman of General

f Solicitor-General.
\ Auditor-General.
1 Chairman of Gene
C Sessions.

•Australian Constitution, p. 380.

Constitutional Development of Victoria.

At the end of 1852:—
EXECUTIVE COUNCIL. LEGISLATIVE COUNCIL

(Official Nominees).
President, His Excellency the

Lieut. -Governor, Mr. C.

J. La Trobe.
Colonial Secretary, The Hon.

"William Lonsdale.

Attorney-General, The Hon.
Wm. Foster Stawell.

Colonial Treasurer, The Hon.

Frederick Armand Pow-

lett.
Collector of Customs, The

Hon. James H. N.

Cassell.

Colonial Secretary,

The

Hon. William

Lons-

dale.

Attorney - General,

The

Hon. William

Stawell.

Not members of
live Council

^ Solicitor-General.
the E;»:<'cu- 3 Auditor-General.

1 Chairman of General
C Sessions.

The members of the Executive Council may be
considered Ministers "in the Cabinet"; all the official
nominees not included in the Executive Council
may be classed as Ministers "not in the Cabinet."
Out of the 'four s^entlemen who became Executive
Councillors on July 16th. 1851, three had already
held official positions under Superintendent La
Trobe in the Port Phillip District. Only one chanp^e
took place in the Executive Council during 1852.
Mr. F. A. Powlett became Colonial Treasurer on
September the 30th, and an Executive Councillor on

•Captain Lonsdale liad been Police Magistrate in the Port Phillip
District from .September 29th, 18;t(!, to the arrival of Superintendent
La Trobe on September :50th, 1839. After Mr. La Trobe's arrival
he continued to act as Police Magistrate for eight months, and then
became Sub-Treasurer. He occupied the position of Superintendent
during the temporary absence- of Mr. La Trobe, who vras called upon
to administer the fiovernnient of Van Dienien's Land from October
i;uh, 1H4(!, to lanuary 2r»th, 1.S47. Mr. A. Mackenzie had been the
Sheriff, and Mr. J. H. N. Cassell the Collector of Customs under
Superintendent La Trobe. Mr. W. F. Stawell, the Attorney-General,
was a lawyer, who had been called to the Irisli Bar in 1839, and
admitted to the Melbourne liar in 1842. He quickly obtained eminence
in every important case, and took a leading part in public matters.

The Executive Council.

October 1st, 1852. owing to the death of Mr. A.
Mackenzie. Mr. Powlett had been Commissioner
of Crown Lands for Western Port under Superinten-
dent r^a Trobe, and held that position until his ap-
pointment as Colonial Treasurer.

The blanks in the two lists of the official noiuinees
for 1851 and 1852 indicate that certain members of
the Executive Council were not given seats in the
Legislative Council by the Lieut. -Governor. The
exclusion of these Executive Councillors from seats
in the Legislature does not imply that the Lieut.-
Governor considered that they were all incompetent
administrators. On the contrary, some of these
members performed their ordinary duties as public
officers in a creditable manner. It does mean, how-
ever, that these 'officers had not received that train-
ing which would have enabled them to take up
readily the duties which were inseparable from their
new positions. They were not competent to take
seats in the Legislative Council. The Lieut.-
Governor appointed in their places official nominees
who were able, not only to explain and advocate
the measures of the Government in the Legislature,
but also to oppose with ability measures brought
in by individual members, and considered by the
Government to be objectionable or inexpedient.
Thus the official bench in the Legislature was kept
sup])lied with the best talent available, but at the
cost of exposing the weakness of the Executive
Council. We learn, on the authorit}^ of Mr. H. S.
Chapman, that the Victorian Executive Council at
this time was the weakest in all the Australian
Colonies. The same authority, however, does not

'Mr. H. S. Chapman states that in lS,")l-2 there was a paucity of
fluent speakers and debaters amongst the New South Wales Govern-
ment members; some of them never opened their lips. The Treasurer,
the Finance Minister, upon wliom naturally devolved the explanation
o' 'lis budget, was content on the House going into committee on
ihe Estimates, to leave to the Colonial Secretary the task of fightinz
the financial battle.

Constitutional Development of Victoria.

omit to state that the Attorney-General Mr. F. W.
Stawell, was a gentleman of outstanding ability.
AVith regard to the Colonial Secretary, Captain Wil-
liam Lonsdale, who held a seat in 'both Councils,
Mr. G. Turner, in his '"History of Victoria," makes
the following statement: "The general impression
that Captain Lonsdale was weak and wanting in
capacity was tempered by the belief that his "long
■experience of local afifairs might be counted as a
•set-ofT, and it was almost impossible for La Trobe
to disregard his seniority in the service of the
Crown." The '"want of confidence" motion, which
was before the Legislative Council on November
.23rd, 1852, charged the Executive Council with in-
competency in its administration. That the purpose
•of this motion should have received strong support
"in tbe Legislature goes far to substantiate Mr.
Chapman's statement concerning the weakness of
the Executive Council during the vears 1851 and
1852.

At the end of 1853 :—

EXECUTIVE COUNCIL. LEGISLATIVE COUNCIL

(Official Nominees).
President, His Excellency
the Lieut. -Governor, Mr.'
C. J. La Trobe.

Colonial Secretary, The Hon. Colonial Secretary, The
John Vesey Fitzgerald Hon. John Vesev Fitz-

Foster. gerald Foster.

Attorney-General, Hon. W. Attorney-General, Hon. W.
F. Stawell. F. Stawell.

Colonial Treasurer, Hon.
W'm. Lonsdale.

Collector of Customs, Hon. Collector of Customs. The
H. C. E. Childers. Hon. H. C. E. Childers.

•Vol 1. p. 341.

•See Parliamentary Dc1>afes, "ArRus," Noveniljer a4th, lR.j2.

The Executive Council.

The Surveyor-General.
The ActingSolicitor-General
The Auditor-General.
Not members of the Execuj The Chairman of General
tive \ Sessions.

The Acting Chief Commis-
sioner of Police.
The Chief Commissioner
of Goldhelds.

The Executive Council underwent considerable
change in 1853. "Captain Lonsdale's provisional
appointment as Colonial Secretary was not con-
firmed by the Home Government. Mr. J. V. F. Foster
was appointed Colonial Secretary of V^ictoria on
July 20th, 1853, by the Duke of Newcastle's de-
spatch of March 19th, and received a seat in both
Councils. Captain Lonsdale now became Colonial
Treasurer, retaining his seat in the Executive Coun-
cil, but holding none in the Legislature. Mr. F. A.
Powlett, the retiring Colonial Treasurer, became
Chief Commissioner of Crown Lands on November
7th, 1853, and was not a member of either Council.
Mr. J. H. N. Cassell, Collector of Customs and an
Executive Councillor, received a seat as an ofificial
nominee in the Legislative Council on August 29th,
1853. His seat was one of the new nominee places
created when the number of members in the House
was "increased from thirty to fifty-four. After Mr.
Cassell's death, Mr. H. C. E. "Childers, formerly
Auditor-General, became Collector of Customs on
December 5th, 1853, with a seat in both Councils.
Only one Executive Councillor, the "Colonial Trea-

"Despatches from the Secretary of State, \'oI. 3, p. 191, 1853,
Treasury Building.

^'By an Act passed in Victorian Legislature on January 19th, 1853.

"Mr. Childers became a member of the House of Commons in
IfifiO. He occupied the position of First Lord of the Admiralty in
18t>8, and subsequently rose to be Chancellor of the Exche()iier.

"Following the analogy of the English Constitution, the Treasurer
should have occupied a seat in the I-egislative Council. When Sir
William Denison, the Lieut. -Governor of \'an Diemen's Land, notified
Earl Grey on January 10th, 1852, of the official appointments made
by him to the Legislature of that colony, he stated that he necessarily
gave the Colonial Treasurer a seat in the [legislature. (Australian
Constitution, p. 423).

Constitutional Development of Victoria.

surer, had no seat in the Legislative Council. Thus
the Executive Council by the end of 1853 had be-
come much more efficient for discharging" its duties
in the Legislature and in administration than during
the years 1851 and 1852.
At the end of 1854:—

EXECUTIVE COUNCIL. LEGISLATIVE COUNCIL

President, His Excellency the

Lieut. - Governor, Sir

Charles Hotham. K.C.B.,

Captain R.N.
Colonial Secretary, The Hon.

W. C. Haines.
Attorney-General, The Hon.

W. F. Stawell.
Acting Colonial Treasurer,

The Hon. Chas. Sladen.
Collector of Customs, The

Hon H. C. E. Childers.
Auditor-General, The Hon.

Edward Grimes.

(Official Nominees).

Colonial Secretary, The

Hon. W. C. Haines.

Attorney - General. The

Hon. W. F. Stawell.

Not members of Executive^
Council

Collector of Customs, The
Hon. H. C. E. Childers.

Auditor-General, The Hon.
Edward Grimes.

The Acting Solicitor-
General.

The Surveyor-General.

Colonial Engineer.

The Chief Commissioner of
Goldtields.

The Acting Chief Commis-
sioner of Police.

On "Alay 21st, 1853, Lieut. -Governor La Trobe
wrote to the Duke of Newcastle, requesting that
his Executive Council might be increased from four,
the maximum number as fixed by his commission,
to six. He considered that the existing" state and
prospects of the Colony rendered such an increase
advisable. The Lieut.-Governor suggested that the
heads of the Finance and the Police Departments
would be suitable appointments. Their advice and

**Australian Constitution, p. ORS.

The Executive Council.

assistance, he considered, would be of great service
to him in the Executive Council. Almost a year
elapsed before an answer came from the Home
Government, but on "May 4th, 1854, when Lieut.-
Governor La Trobe held his last meeting of the
Executive Council, he placed on the Council table a
"despatch from the Secretary of State which autho-
rised the addition of tw'O new members to the
Executive Council, as had been requested. The new
members were to be the Auditor-General of Ac-
counts and the Superintendent of Police. On the
same day, the Auditor-General, Mr. Edw'ard Grimes,
was summoned by the Lieut.-Governor to the
Executive Council, and took his seat as a member
of that body. The Auditor-General was now a mem-
ber of both Councils. The Lieut.-Governor then an-
nounced that, though he was empowered to summon
an additional member — the Superintendent of
Police — he had resolved not to summon the present
Acting-Commissioner of Police, who merely had
charge of the Police Department during the absence
of the Chief Commissioner, Mr. W. H. F. Mitchell.
He was strengthened in his determination, he said,
by the remembrance that, during the absence of the
Colonial Treasurer of New South Wales, some years
ago, his locum tcnciis, the Acting Treasurer, was
held to have no title to a seat in the Executive
Council. In consequence of Lieut.-Governor La
Trobe's decision, the new^ Lieut.-Governor, Sir
Charles Hotham, found his Executive Council com-
posed of five members.

After the departure of La Trobe for England on
May 5th, Mr. J. V. F. Foster, the Colonial Secretary,
being the senior member of the Executive Council,
was sworn in as the Officer administering the
Government. This position he retained until the

"Minutes of the Executive Council, Vol. 1, p. 387.
"Dated January 8th, 1854.

Constitutional Development of Victoria.

arrival of Mr. La Trobe's successor. Sir Charles
Hotham, who landed in Melbourne on June 21st,
1854. The other changes in the Executive Council
took place after the arrival of Sir Charles Hotham.
Mr. J. V. F. Foster voluntarily resigned his office
as Colonial Secretary on December 9th, 1854, and
consequently gave up his seat in both Councils. Mr.
C. Sladen was appointed Acting-Treasurer and
Executive Councillor by the Lieut.-Governor on
December 29th, 1854, during Mr. Lonsdale's absence
in England. Mr. Sladen had no seat in the Legis-
lature till November 28th, 1855.

At the end of 1855, and until the dissolution of the
Legislature on March 20th, 1856: —

EXECUTIVE COUNCIL. LEGISLATIVE COUNCIL

(Official Nominees).
President. His Excellency the
Governor-in-Chief, Sir
Chas. Hotham, K.C.B.,
Capt. R.N. (died Decem-
ber 3ist, 1855). Major-
General Edward Macar-
thur was the Officer ad-
ministering the Govern-
ment from January ist
to December 25th, 1856.

The Senior Officer Command-
ing the Troops in Vic-
toria, Major - General
Edw. Macarthur (to
December 31st, 1855).

The Chief Secretary, The The Chief Secretary. The
Hun. \V. C. Haines. Hon. W. C. Haines.

The Attorney-General, The The .A^ttorney-General, The
Hon. W. {'. Stawell. Hon. W. F. Stawell.

Treasurer, The Hon. Chas. Treasurer, The Hon. C.
Sladen, in rice William Sladen.

Lonsdale, released on
political grounds.

Commissioner of Public Commissioner of Public
Works, The Hon. Chas. Works, The Hon Chas.

Pasley, R.E. Pasley, R.E.

The Executive Council.

Commissioner of Trade and
Customs, The Hon. H.
C. E. Childers.

Surveyor-General, The Hon.
Andrew Clarke, R.E.

Solicitor-General, The Hon.
Robert Molesworth, in
rice James Croke, re-
leased on political
grounds.

Commissioner of Trade and
Customs, The Hon. H.
C. E. Childers.

General, The
Andrew Clarke,

Surveyor ■

Hon.

R.E.
Solicitor -

Hon.

worth.

Not members of
tive Council

General, The
Roljert Moles-

r Chief Commissioner
the Exccu-) Goldfields.

1 Acting Chief Commissioner
C of Police.

The year 1855 witnessed great changes in the
Executive Council; the proclamation of the New
Constitution on November 23rd brought with it also
the beginning of Responsible Government in Vic-
toria. Twice during 1855 Sir Charles Hotham re-
ceived a new commission. The "first one was dated
February 2nd, and created him Governor-in-Chief of
Victoria. This change from Lieut. -Governor to
Governor of Victoria was effected on the
departure from New South Wales of the
Governor-General of Australia, Sir Charles
Fitzroy, in January of that year. The
second commission was issued on September 8th,
owing to the New Constitution which had been
granted to Victoria. Both commissions contained
instructions which affected the composition of the
Executive Council. With his "commission of Feb-
ruary 2nd. Governor Hotham received authority to
appoint an Executive Council of six members. By
Section XVIII. of the ""instructions issued to him,
the Crown nominated the following to be members
of the Executive Council : — The Senior Military

"Little more is heard of the title of "Governor-General of all Her
Majesty's Australian Colonies, including Western Australia." It was
abolished in 1861, having been held by only two Governors of New
South Wales — Sir Charles Fitzroy and Sir William Denison.

" and "In office of the Clerk of the Executive Council, Treasury
Building.

Constitutional Development of Victoria.

Officer, the Attorney-General, the Treasurer, the
Collector of Customs, the Auditor-General, and the
Superintendent of Police. On May 22nd, Governor
Hotham reappointed all the five members of the
existing Executive Council, and Major-General
Macarthur, the Senior Officer commanding the
troops in Victoria. The nomination of the Superin-
tendent of Police to the Executive Council, notified
to Lieut.-Governor La Trobe on January 8th, 1854,
and again on February 2nd, 1855, to Governor
Hotham, was not put into efl:ect. The Police De-
partment remained for the time being under an
Acting Commissioner of Police. The appointment
of Major-General Macarthur to the Executive Coun-
cil was significant. The discontent of the colonists,
owing to the delay of the Constitutiou Act in England,
and the unrest among the mining population because
of their grievances, probably led Governor Hotham
to ask for the inclusion of the Senior Military Officer
in the Executive Council. The disturbances at
Ballarat in October, November and December of the
previous year, were only the climax of discontent
which had been manifest there and in other parts of
the Colony for many months previously. The ap-
pointment of the Senior Military Officer of the
Colony as an Executive Councillor followed a prac-
tice already well established in other Australian
Colonies. Real or supposed danger in the Colonies,
either from the natives or from the prisoners of the
Crown, probably led to the practice. The trouble
from the Maoris in New Zealand, and from the con-
victs in Van Diemen's Land, doubtless led the
Lieut.-Governor of each of those Colonies to appoint
the Senior Officer commanding the troops a member
of the Executive Council. The practice was also in
vogue in New South Wales. For the years 1851 and
1852 the Executive Councils in New South Wales
and Van Diemen's Land each had the Officer com-
manding the troops as the Senior Member of the

The Executive Council.

Council. The Governor's comniissitni of February
2nd also gave instructions that, in the case of the
■death or absence of Sir Charles Hotham. the Senior
Military Officer C(.)mmanding the troops in Victoria
should become the Officer administering the Go\'ern-
ment.

By the second Commission of Septeml^er 8th. the
Governor was instructed to nominate and aijpoint
the members of the Executive Council. Their num-
ber was not specified, nor were their appointments
provisional, as formerly ; those appointed, however,
held their seats during the pleasure of the Crown.
The New Constitution was proclaimed on Novem-
ber 23rd. and on December 10th, the day on which
Sir Charles Hotham was sworn in under his Com-
mission of September 8th, he appointed a new
Executive Council. Tn addition to the Senior Mili-
tary Officer, he nominated the seven non-elective
mem])ers of the Legislative Council, who had been
appointed by him to that body on Novemljer 28th.
The offices of these seven non-elective members corre-
sponded with those set out in Section XV'III. of the
Neiv Constitution Act. They were those of the Chief
Secretary, the Attorney-General, the Treasurer, the
Commissioner of Public Works, the Commissioner
of Trade and Customs, the Sur\eyor-General and
the Solicitor-General.

After the death of Governor Hotham on Decem-
ber 31st, 1855, Major-General Edward Macarthur,
who commanded the troops in Victoria, became the
Officer administering the Government. He brought
the Legislative Council to a close on March 20th.
1856, opened the first Parliament of Victoria on
November 21st, 1856, and remained Her Majesty's
representative until the arri\al of the new Governor.
Sir Henry Barkly, who commenced his official duties
on December 26th, 1856.

From the foregoing investigation, we can safely
draw the following conclusions: —

Constitutional Development of Victoria.

(a) That the members of the Executive Coun-
cil really formed "the Cabinet," and the
official nominees a "quasi- Alinistry," some
members of which were not "in the Cabi-
net."

(b) That the Executive Council of Victoria be-
fore 1853 contained members who were not
sufficiently competent to warrant the Lieut.-
Governor giving them seats in the Legis-
lature ;

(c) That the Lieut.-Governor had to pass over
these inefficient Executive Councillors, and
appoint to the Legislative Council official
nominees wdio possessed the necessary
ability ; who, though members of the
"quasi-Ministrv," were not members of
"the Cabinet" ;'

(d) That between 1853 and 1855 the Executive
Council became stronger, not only in num-
bers and administrative capacity, but also
in the possession of more seats in the
Legislative Council ;

(e) That the following table represents the
number of members in the Executive Coun-
cil and the number of seats held by its
members in the Legislature between the
years ending 1851 and 1855: —

Executive Councillors
Year Ending. Members of Executive with Seats in the

Council. Legislature.

i8si - 4 - - 2

1852 - 4 - - 2

1853 - 4 - - 3

1854 - 5 - - 4

1855 - (a) 6 appointed on

May 22-4
(b) 8 appointed on

December 10 - 7

«4

CHAPTER IV.

THE LIEUTENANT-GOVERNORS OF
VICTORIA.

(1851-5.)

Their Political Relationship to the Executive Council.

In this chapter we shall set out, first of all, some
of the chief instructions which were issued by the
Crown to Lieut.-Governor La Trobe and to
Governor Hotham to guide them in their political
relationship to the Executive Council. We shall
examine, then, as far as possible, contemporary
evidence as to what was the actual political relation-
ship which existed between the Executive Council
and these representatives of the Crown; and, from
this evidence we shall see that the extensive but
rather vaguely defined powers which the Crown's
instructions conferred on its representatives, led
La Trobe and Hotham, owing to differences in their
training- and temperament, to adopt widely different
methods of procedure in dealing with their Execu-
tive Councils.

Lieut.-Governor Hotham's Commission and In-
structions of December 3rd, 1853, were similar in
form to those of Lieut.-Governor La Trobe. To the
changes made in those furnished to Governor
Hotham on Fel)ruary 2nd and September 8th, 1855,
we have already made reference in the previous
chapter. Roth La Trobe and Hotham received the
following 'instructions : —

d) Their Commissions and Instructions were

to be read to the members of the Executive

Council.

'Taken from tlie commissions and instructions issued to I, a Trobe
and Hotliam by the Crown. (In the office of Clerk of the Executive
Council, Treasury Building).

Constitutional Development of Victoria.

(2) The Lieutenant-Governor was to preside at
the meeting's ; and in his absence the Senior
Councillor present was to take his place.

(3) Minutes of the Council's meetings were to
be kept, and copies of them were to be for-
warded twice a year to the Home Govern-
ment.

(4) The Lieut.-Governor was required in all
things to consult and advise with his
Executive Council.

(5) In case of emergency, however, he could
act without the advice of the Council ; but
the matter was to be brought "with all con-
venient speed" ])efore the Council for their
revision and sanction.

(6) In cases which he considered unimportant^
the Lieut.-Governor could act without the
advice of the Council.

(7) Only the Lieut.-Governor was permitted to
bring questions for discussion to the
Council.

(8) If any member wished to bring up a ques-
tion for deliberation, he had to apply in
writing to the Lieut.-Governor. and pro-
pose that it be discussed.

(9) Any Councillor could require that his
written application be recorded in the
minutes of the meeting, together with the
Lieut.-Governor's answer to it.

(10) Any member of the Council could cause the
grounds or reasons of any advice he gave
upon any question discussed at the Council
to be entered at full length in the minutes.

(11) The Lieut.-Governor could reject the ad-
vice of a majority or the whole of the Coun-
cil, but he was to transmit to the Home
Government a full explanation of the
grounds for so doing, together with a com-

^ l)lete copy of the minutes.
86

The Lieutenant-Governors.

(12) The Lieut.-Governor had the power of
"suspending" any officer appointed by the
Crown, subject to certain restrictions which
saieguarded the rights of the person sus-
pended, until the decision of the Home
Government was made known.
(13) The Lieut.-Governor could exercise the
prerogative of pardon, even against the ad-
vice of the whole Council.
From the foregoing instructions, it is quite clear
that the Lieut.-Governor could defy the whole
of his Council if he so desired ; there was ample
room for him to play the part of an autocrat if he
chose to do so. Still, by rejecting the advice of his
Council, the Lieut.-Governor was placed in the
position of carrying entire responsibility for the out-
come of his political actions. The Councillors were
not left hopelessly at the mercy of the Lieut.-
Governor, for they could record in the minutes the
advice they gave him. The minutes in due course
would come before the Home Government, but a
long period would necessarily elapse before the
Home authorities could take any action. The in-
terpretation and the carrying out of the Crown's
Instructions rested upon the character of the Lieut.-
Governor; if he chose to work in close union with
his Executive Council he could do so; if not, he
could take the helm practically alone.

The majority of the members of the Executive
Council from 1853 Avere also official nominees ap-
pointed by the Lieut.-Governor to seats in the
Legislative Council. As Mr. H. S. Chapman pointed
out in his booklet published in 1854, the policy of
the Lieut.-Governor was the policy of the of^cial
nominees. Professor Jenks. in his "Government of
Victoria," touches upon this point when he says:
"But to what extent the personal views of the
Governor habitually predominated over the views of
his advisers it would be impossible for anyone not

Constitutional Development of Victoria.

personally familiar with the period to say." We
are, however, in the position to cite evidence given
npon this very point by Mr. J. V. F. Foster, who
was ColoniaJ Secretary of Victoria from July 20th,
1853, to December 9th, 1854; by Captain MacMahon.
Acting Chief Commissioner of Police in 1854; and
by Captain Kaye, Private Secretary to Sir Charles
Hotham. \lr. Foster was Colonial Secretary under
Lieut.-Governors La Trobe and Hotham, and had a
seat in both Councils. Captain Mac]\Jahon was an
ofificial nominee, appointed by La Trobe, and in
ofifice also under Hotham. 'The evidence of these
three gentlemen was given in August, 1867. when
a Select Committee, appointed by the House, con-
ducted an inquiry into Mr. J. V. F. 'Fitzgerald's
(Foster) claim for a pension from the Government.
Mr. Foster's position, while Colonial Secretary, fur-
nished him with unrivalled opportunities of l:)ecom-
ing familiar with the political situation of the Execu-
tive Council with regard to the Lieut.-Governors.
He stated that Lieut.-Governor La Ti-obe frequently
sought his advice on political matters. In support
of this statement, Mr. Foster pointed out certain
portions of one of La Trobe's speeches to the Legis-
lature. These related to the abolition of the license
fee and the substitution of an export duty on gold,
and had been inserted at his instigation. His re-
lationship with Governor Hotham was different.
The speech Hotham delivered to the Legislature on
November 23rd, 1855, was palpably his own work.
In it he regretted that the new members for the
mining districts were not present ; five were present.
Mr. Foster further stated that Sir Charles Hotham
rarely asked him for advice, and from the beginning
of his Governorship took all matters, great and small,

"V. and P., Legislative Assembly, Vol. 2, pp. 425-65.

•Mr. J. V. F. Fitzgerald is identical with Mr. J. V. Fitzgcr-ild
Foster, who resigned his position as Colonial Secretary of ViLtoria
on December 9th, 1854.

The Lieutenant-Governors.

into his own hands. It was not, he said, the Gover-
nor's habit to consult the Executive Council as to
his future policy. There was a number of matters
upon which he was bound by law to consult the
Colonial Secretary, pro forma, such as issuing
grants for certain purposes, and commutation of
capital sentences ; but it was not his habit to con-
sult the Executive prior to adopting any particular
line of policy. This, Mr. Foster thought, was
largely due to the very faulty and anomalous nature
of the Constitution, and to the fact that the func-
tions of the Governor and his advisers were never
laid down accurately. Sir Charles Hotham was ac-
customed, from his naval education, to act for him-
self. He could not recollect any one occasion on
which the Lieut.-Governor called the Executive to-
gether and consulted them as to his future policy.
Sir Charles Hotham usually came into Melbourne
about twice a week. All papers were sent out to
him daily to Toorak, and they were returned with
the Governor's minutes written thereon. Mr.
Foster said he had often to carry out these instruc-
tions without having had any interview with
the Governor. He had often remonstrated with Sir
Charles Hotham when he considered his instructions
erroneous. He thought that at last the Governor
began to look upon him as more inclined than any-
one else to thwart him. He therefore ceased to re-
monstrate except on some extraordinary occasions.
He considered that Governor Hotham was the most
self-willed man he had ever met. At the same
time, he was a man continually asking advice from
people "out of doors."

\\\\\\ reference to his duties in the Legislature as
Leader of the House, Mr. Foster said that he had
often to support the Governor's measures, even
when not approving of them. He quoted one strik-
ing incident. Governor Hotham adopted a proposal
suggested to him by one of his "outdoor advisers."

Constitutional Development of Victoria.

It was to impose an ad valorem duty of 10 per cent,
on all imports. The first that either he, as Colonial
Secretary, or any of his officers heard of it was an
instruction that they were to introduce it into the
House the following day. None of them approved
of it. They had not even heard of the suggestion
before, nor did they know from whom it had
emanated. As Colonial Secretary, ]\Ir. Foster said
he was continually being asked questions in the
House, and received instructions from the Governor
to answer them verbatim, as he directed. At this en-
quiry, Mr. Foster read one of the Governor's in-
structions to him. The word "verbatim" was under-
lined. The letter, with the accompanying instruc-
tions, he cited as evidence of how far the Governor
interfered with his legislative action as Colonial Sec-
retary. The letter was —

"Dear Sir, — In reply to Mr. Ilervey's question. I
have to desire that the words employed in the en-
closed note be used verbatim.

"Very truly yours,

"CHARLES IIOTHAM."
November 28th, 1854.

The following was the note to l^e read ''verbatim'' : —

"The Committee of Finance have not yet gone into
the consideration of the Estimates of 1855, which
were framed by several officers of their respective
departments. The Committee of Finance have re-
ported to His Excellency upon the financial position
of the Colony, as shown in those Estimates, with a
view to provide means to meet the proposed expen-
diture. His Excellency has availed himself of the
information and advice thus offered on his minute
on the Supplementary Estimates for 1854 and the
Estimates for 1855. His Excellenc}' does not think
it advisable in this present stage of enquiry to pro-

The Lieutenant-Governors.

duce reports which are of a conlidential nature ; but
he takes the opportunity of expressing" his obliga-
tions to the gentlemen who have thus afforded him
the benefit of their experience." N^ovember 29th,
1854.

Mr Foster pointed out that, under the system of
Government in Victoria before the introduction of
Responsible Government, the Governor was
supreme ; he was not bound to follow the advice of
the Executive Officers. It was their duty to give
their advice, when asked. The policy of the
Governor was the policy of the Government.
He was answerable for it to the Imperial
Government and to nobody else. Simi-
lar opinions were expressed at the same enquiry
by Captain MacMahon, Acting-Chief Commissioner
of Police, in 1854. He stated in his evidence that
he believed the Governor was directly appointed
from England, with the intention that he should
exercise such control and power as he thought fit.
The Executive of that day was merely a Council
of Advice. The Governor interfered directly with
all the executive details of the country.

Valuable evidence on the political relations be-
tween the Governor and the Executive was also
given by Captain Kaye, R.N., Private Secretary to
Sir Charles Hotham. He was asked by the Com-
mittee whether it was a fact that the Governor
undertook the general supervision of the different
departments. In reply. Captain Kaye said that
Governor Hotham considered that the Executive
had leagued themselves against iiim to oppose his
efforts to restrict the enormous expenditure that
was going on. The Governor iiad attempted a task
beyond any man's strength. He took all the papers
connected with the Government of the Colony and
read them for himself. The effort proved too much
for him, and practically caused his death.

Constitutional Development of Victoria.

In addition to Mr. Foster's evidence, further proof
of La Trobe's harmonious relations with his Execu-
tive Council is furnished by the Minute Book of the
Executive Council for his term of office. ''The re-
cord of the Executive Council meeting held on July
29th. 1851, shows that Lieut. -Governor La Trobe
sought the advice of the members of the Council
with regard to his action in omitting Mr. J. Croke,
formerly Crown Prosecutor in the Port Phillip
District, from an official place in the new Colony of
Victoria. Also, at the last Executive meeting held
by Lieut.-Governor La Trobe on 'May 4th, 1854, he
took the opportunity of thanking the Council for the
xeal and diligence which they had always shown in
their dealings with him. There was, the minutes of
the meeting records, "but one unanimous appear-
ance and expression of kindliness of feeling between
His Excellency and the Council." Before the Lieut.-
■Governor left the Council Chamber, he was shown
the minutes referred to, and gave his approval of
them.

One further piece of evidence confirming M'r.
Foster's statement of Governor Hotham's indepen-
dent action when dealing with the Executive Coun-
cil is forthcoming from the "minutes of the meeting
•of that body, held on October 30th, 1855. They
show that a very long discussion ,J:ook place as to
whether or not the Legislative Council should be
summoned to meet on November 23rd. All the
members of the Executive Council except one,
?^Iaj()r-General ^Nlacarthur. agreed that the Legisla-
ture should not be summoned for despatch of busi-
ness before Noveml)er 27th. This they desired be-
cause the writs for the elections about to take place
on the various goldfields were not returnable until
November 26th. The Governor, however, rejected

<Vol.

P-

r>.

••Vol.

!'•

:{9i.

*Vol.

P-

119.

The Lieutenant-Governors.

the advice of the majority of the Executive Council^
and directed that a special minute, which he dictated,
should be entered in the record of the proceedings
of the meeting-. In this minute he stated the reasons
which led him to reject the advice of an almo.st
unanimous Executive Council. On November 23rd,
the House assembled, and the Proclamation of the
New Constitution took i)lace.

From the foregoing evidence we can safely state —

(a) That Lieut.-Governor La Trobe not only
sought and acted upon the advice of the
Executive Council, but also that amicable
relations existed between himself and that
body ;

(b) That Governor Hoiham desired to become
conversant with the financial and economic
conditions of Victoria, and to that end en-
deavored to master those details of public
business which usually devolve upon the
heads of departments ;

(t) That Governor Hotham not only frequenth'
rejected the advice of his Executive Coun-
cillors, but also at time sought counsel else-
where ;
(d) That Governor Hotham brought his policy
to the Executive in a final form, and looked
upon the members of that body as mere in-
struments to carry it out, if possible.
Thus we have seen that a representative of the
Crown might rely on his Executive Council and
take it into his confidence, as did Lieut.-Governor
La Trobe; or he might, in a marked degree, with-
hold his confidence from it and often act indepen-
dently, as did Governor Hotham. As a partial ex-
planation of the dififerent lines of conduct adopted
by La Trobe and Hotham, it should be remembered
that the former had been in the Port Phillip Dis-
trict long before its se])aration from New South
Wales, and had surrounded himself, as the Lieut.-

Constitutional Development of Victoria.

Governor of Victoria, with Executive Councillors
of his own choice, men whom he had known for
many years. But in Governor Hotham's case, the
circumstances were different. He came into a
strange country, full of perplexing problems caused
by the discovery of rich goldfields. In the Navy,
his career had been a successful one, but the quali-
ties which had made him a successful naval com-
mander were not alone sufficient to secure har-
monious relationship with his Executive Council.

CHAPTER V.

THE BLENDED HOUSE.
Its Origin and Development.

When the Port Phillip District was separated
from New South Wales on July 1st, 1851, by the
Australian Colonics Government Act of 1850, provision
was made by that Act to give the newly-created
Colony of Victoria a 'single Legislature, one-third
of whose members were to be nominees of the
Crown, and two-thirds representatives of the people.
New South Wales had possessed such a Legislature
since 1842. We shall first of all investigate the
origin of this blended Legislature in Australia,
tracing the developments it underwent in the Colony
of Victoria between 1851 and 1856, and noting some
interesting facts connected with nomineeism, not
only in Victoria, but also in 'New South Wales and
Van Dieman's Land.

Until the 'commencement of the nineteenth cen-
tury, it was almost invariably the custom of the
Home Government to establish local legislatures in
the Colonies of Great Britain. Each of these legis-
latures consisted of two chambers, one being a Coun-
cil nominated by the Governor, and the other an
Assembly elected by the people. Though in some
cases other schemes of Colonial policy had been at
first established, these had all. with the exception
of Sierra Leone, been brought progressively into
conformity with this general type or model, before
the end of the eighteenth century. With the found-
ing of New South Wales in 1788, the usual double
chamber was not established. The settlement at

'See "The Beginning of the Second Chamber in Australia," by
Professor H. Moore, LLD., University of Melbourne. "Victorian
Historical Magazine," Vol. 2.

'Australian Constitution, pp. 83-4.

Constitutional Development of Victoria.

Port Jackson was at first purely penal in character,
and the Governor's powers were despotic. Naval
and military officers assisted him in the administra-
tion of the Colony. In 1823, the New South Wales
Judicature Act provided the Governor with a small
nominated Legislature of from five to seven mem-
bers— the first Legislative Council in Australia.
Even under the x-\ct of 1823 the Governor's powers
were almost those of an autocrat. In 1828 the
existing Act v\as modified by "An Act to provide for
the /Administration of Justice in New South Wales
and Van Diemen's Land and the more effectual
Government thereof." This Act stated that it
was not deemed expedient by Parliament to
call a Legislative Assembly; in its place the
numerical strength of the existing Legisla-
tive Council was increased. The nominated
members were not to exceed fifteen, or be less
than ten. in number. At the meetings of these
nominated Councils, the Governor — himself a
nominee of the Crown — presided. "In June, 1832, a
petition from the free colonists of New South Wales
for a Representative Assembly came before the
House of Commons, and a proposal was then made
by several members that a certain proportion of the
New South Wales Legislative Council should con-
sist of elected members. This suggestion was re-
jected by the House.

After a few years the colonists of New South
Wales became more and more dissatisfied with the
form of Government allotted to them. The devotion
of a portion of the "Land Sales Fund to
assist emigration from the United Kingdom
to Australia and the abolition of transporta-
tion to New South Wales in 1840, led to
a steadily-increasing agitation, which had, as its

•Hansard f Commons). June 28th, 18-'^2. Vol. XIII.
"See "Colonization of Australia, 1828-42." by Dr. R. C. Mills.
pp. 178-80 and 201.

The Blended House.

chief aim, the introduction of a system of govern-
ment which should include representatives of the
people in the Legislature of New South Wales.
"The Australian Patriotic Association," founded in
1835, with Sir J. Jamison as President, and Mr. W.
C. Went worth as Vice-president, made this object
clear in its first "annual report. The desire of the
Patriotic .Association was to obtain for the free in-
habitants of New South Wales a bona fide represen-
tative Government. Mr. Henry Lytton Bulwer,
M.P., ofifered to become the Association's Parlia-
mentary Agent in England. His offer was accepted,
and as a guarantee of their genuine desire to obtain
a representati\'e form of government for New
South Wales, the members of the Association en-
tered into a bond to provide £1200 per annum for
four years, to defray expenses incurred in England
in the promotion of their aims. When Mr. Bulwer
resigned his position, Mr. C. Duller, Jun., M.P., who
was with Lord Durham in Canada in 1838, took his
place, and worked very actively in the interests of
the Association.

In a "despatch to Lord Glenelg, the Colonial Sec-
retary, dated April 13th, 1836, Sir Richard Bourke,
the Governor of New South Wales, alluded to the
expectation amongst the colonists of a new Act,
which would improve the government of that
Colony. He enclosed printed copies of two petitions
from them, setting out some of the political desires
of two distinct sections of the colonists. One
petition had three hundred and ninety-eight signa-
tures, which were obtained at one meeting, and two
of its most influential supporters were Messrs. H.
H. and James Macarthur. It pointed out that the
Act then in force was largely inoperative, because
the members of the Council were mostly Govern-

'^Report of tlie Directing Committee of the Australian Patriotic
>ociation for the year ending July 1st, 18.'{6.
"Accounts and Papers, 184G, Vol. XXIX., pp. 14-20.

Constitutional Development of Victoria.

ment officials, and also because the Councirs de-
bates were not open to the public. The presence of
the Governor at such Council meetings was con-
sidered a hindrance to free expressions of opinion.
The supporters of the petition thought it was still
questionable w^hether the Colony was ready to par-
ticipate in the free institutions of England. They
certainly desired to set aside the "crude and dan-
gerous innovations" which the Home Government
had thought of giving them. These innovations,
which proposed the creation of municipal bodies
throughout the Colony, and the establishment of a
certain degree of control on the part of these various
bodies over the legislative actions of the Governor
and the Council, were also strongly opposed by the
Patriotic Association. Speaking of the same scheme,
Mr. "Buller said, "I believe I am stating the out-
lines of this plan fairly when I say that it proposes
that the Governor and the Council shall make laws ;
that these law^s so made shall be submitted to the
various municipal councils, and discussed by them ;
and that the power of these councils is not to extend
to the amendment or rejection of the laws, but that
a majority of the councils may, by disapproving of
a law, suspend the operations until it shall have
been referred back to the iNIother Country.'' In the
first mentioned petition, forwarded by Governor
Bourke, the petitioners did not desire a representa-
tive Government, but a larger Council, and the
rectification of the drawbacks which they had
enumerated.

The other petition. Governor Bourke pointed out,
contained over six thousand signatures. These
petitioners considered that the Legislative Council,
as then constituted, was inadequate for the exigen-
cies of the Colony, and had no hold on public con-
fidence. They opposed the idea of a still larger and

""Port Phillip Patriot," December liiid, lR.'i9.

The Blended House.

more irresponsible Council, and requested that, at
the expiration of the existing Act, a representative
Assembly, upon a wide and liberal basis, might
be introduced. Such an Assembly, they considered,
should be composed of not less than fifty members,
three-fourths of whom should be elected by the
people. The remaining fourth was to consist of
members nominated by the Crown. Dr. Bland, the
Corresponding Secretary of the Australian Patriotic
Association, was a strong supporter of the plan [)ro-
posed in this petition ; other members preferred an
Upper House of nominees, and a Lower House of
elected members. When referring to these petitions,
in a later despatch, on July 25th, 1836, Governor
Bourke candidly stated that he believed the vast
majority of the colonists capable of forming sound
opinions desired a Legislature either wholly or in
part representative.

At a public meeting held in Sydney, on May 30th,
1836, of those who supported the first mentioned
petition, Mr. James Macarthur. who was shortly to
visit England, was requested to be the bearer of
the petition to the Home Government. He agreed
to this, and promised to urge its requests, not only
upon the Colonial Office, but also upon influential
members of Parliament. These duties he under-
took to carry out without remuneration.

In England, Mr. C. Buller, Jun.^.^ M.P., and Mr.
J. Macarthur drew up the rough "draft of a Con-
stitution, which they believed would suit the peculiar
conditions of New South Wales and Van Diemen's
Land. This Mr. Buller forwarded to the Colonial
Office, and enclosed with it a letter, in which he
expressed his views upon the political situation of
New South Wales. He pointed out that the
greatest amount of content and harmony in New
South Wales and Van Diemen's Land would be

""Port Phillip Patriot," December 2nd. 18."}9.

Constitutional Development of Victoria.

secured by allowing those Colonies, as much as pos-
sible, to govern themselves. He further stated,
"You must either stop free emigrants from coming
to these Colonies, or you must make up your minds
to expect that a large population of free intelligent
Englishmen will not submit to the restraints of a
fortress or a gaol."

When the news of this Constitution, proposed by
Mr. Buller and Mr. Macarthur, reached the Port
Phillip District, it was stated in the Port Phillip
Patriot that in all probability the new Act for the
government of New South Wales would contain
much that was set out in this scheme. When the
Act of July 30th, 1842, which was entitled An Act
for the Government of Neiv South Wales and Van
Dienien's Land, reached New South Wales, it cer-
tainly contained portions very similar to some of
the proposals set out in the Buller-Macarthur Con-
stitution. We shall notice here only those resem-
blances which refer to the subject of the blended
House.

In Paragraph 10, the proposed Constitution sug-
gested that the Colonial Legislature should be com-
prised of the Governor and the Assembly ; that there
should be twelve oifiicial, and about twice as many
elected members, these latter to be returned by the
different districts according to their population. In
the same paragraph, Mr. Buller stated that he had
fixed the proportion of the nominated to elective
members in the ratio of one to two, because he
thought it most important to guard against the evil
adverted to in the papers he had received from the
Colonial Office, namely, of causing jealousy and
absolute separation between the nominees of the
Crown and the representatives of the people. This
appeared to him only possible by preventing the
former from ever being able to out-vote the latter.
He had noted, he said, that no suggestions from

100

The Blended House.

the Colonial Office ever advocated a second Cham-
ber; he quite agreed that there should be no Legis-
lative Council. The greater part of the recommen-
dations which were set out in this paragraph were
embodied in .Sections I. and IV. of the Act of 1842.
In almost prophetic words, Mr. Duller pointed out
in Paragraph 13 that there would be great difficulty
in getting representatives, and that in all probability
the remote districts would have to select persons
resident in Sydney. The Act of 1842, in Section II.,
allotted six elective members to the remote Port
Phillip District, and the colonists of that part oi
New South Wales experienced pr^^cisely the diffi-
culty foretold by Mr. Buller. From this investiga-
tion, we can safely conclude that the provision in
the Act of 1842 for a blended House, instead of an
Upper and a Lower House, owed not a little to the
roughly-drafted Constitution prepared by Mr. C.
Buller and Mr. J. Macarthur. and forwarded to the
Colonial Office.

Somewhat similar ideas concerning a blended
House had been put forward by Henry W'alker
Parker, barrister-at-law, in 1833. in a pamphlet, en-
titled "The Rise, Progress and Present State of Van
Diemen's Land, with Advice to Emigrants." Though
in this publication, the writer made special reference
to the nominated Council assisting the Lieut.-
Governor of \'an Diemen's Land, his criticism of
the form of Government in that island was equally
applicable to the Council of New South Wales. He
affirmed that the Council, as then constituted, did
not meet with the approval of the generality of the
colonists. Though convinced that the time had not
yet arrived when legislation by popular representa-
tion could be introduced, still he considered that
the community at large should be allowed to recom-
mend half the members of the Council.

Another interesting piece of evidence which deals
with the circumstances attending the origin of the

101

Constitutional Development of Victoria.

blended Legislature was given in an '^address de-
livered by Mr. R. Lowe, afterwards Viscount Sher-
brooke, to the members of the Colonial Reform
Society, in their room at Charing Cross, London,
on June 1st, 1850. Mr. Lowe's speech was upon
The Australian Colonics Government Bill, which was
then under discussion in Parliament. Much interest
was aroused by this speech, because Mr. Lowe
had been in the Legislature in New South Wales,
both as a Crown nominee and as an elective
member. In his speech, Mr. Lowe gave an account
of how the system of a mixed House came to
be introduced into New South Wales in 1842.
He stated that the Government in 1841 was placed
in a very peculiar dilemma. The convict community
of New'South Wales— a community deeply tainted —
had solicited from the Home Government represen-
tative institutions. To accede to the request was
to make a great and perilous experiment. "Nobody
could wonder that any Government, realising the
responsibility it ^\•as incurring, would shrink from
trying this experiment. To grant a fully represen-
tative Government, and afterwards to find it neces-
sary to withdraw the privilege. Vx^ould be to create
an awkward situation. This the Government

"Australian Pamphlets, Vol. 53, Commonwealth Parliament Library.

"A somewhat similar situation occurred later with regard to Van
Diemen's F.and. When Sir J. Pakinglon, by despatches dated Decem-
ber 1.5th, 18.'i2, invited the Legislatures of New South Wales, Victoria
and South Australia to draft constitutions suited to the needs
of their respective colonies, he did not extend the invitation to the
Legislature of Van Diemen's Land.

On August 25th, IR.'j.'S, the Lieut. -Governor of Van Diemen's Land
wrote to the Duke of Newcastle, the Colonial Secretary, concerning
this omission. He said, "I can fully understand the reasons which
induced Sir J. Pakin^ton to delay tlie concession of similar powers
and privileges to the inhabitants of Van Diemen's Land; but as those
reasons have now, in consefjucnce of the cessation of transportation,
ceased to operate, 1 trust that your Grace will allow me to express
the hope that a distinction, which must necessarily prove invidious,
may no longer be made between this colony and those on the mainland
of Australia." (Australian Constitution, p. 782).

The Legislature of Van Diemen's Land received the desired con-
cession by a despatch dated January ;Wth, 1854. (Ibid., p. 78(j).

102

The Blended House.

avoided by adopting the plan of the blended House.
The experiment had already been tried in New-
foundland, to meet a temporary emergency there,
and prevent discord and disagreement between the
nominees and representati\es, whose controversies
had stopped the whole course of public business.
Mr. Lowe did not consider such a system was an
effective machine for carrying on a good govern-
ment. At the same time, he judged it to be one
which might be applied to a Colony with compara-
tive safety, in order to show how far society there
was fit for representative institutions. He further
regarded it as a sort of caution or security which
the Home Government had taken, so that if the in-
stitution did not work well, as little harm as pos-
sible should be done by it. He also thought that
the nominee principle prevented the convict element
from becoming predominant in this single Legisla-
ture. At first the system had worked well, because
of the fine material in the House; but he was of
the opinion that, at a later period, the presence of
the Crown nominees tended to bring the Home
Government into collision with the Colony. In sup-
port of his statements concerning this blended
House and the nominee element in it, Mr. Lowe
claimed to possess the most weighty evidence ob-
tainable. His former position as Crown nominee
had given him an unrivalled opportunity of studying
the whole political situation in the Colony of New
South Wales.

Further light upon the rise of the blended House
is to be found in the Right Hon. C. B. Adderley's
""Review of Earl Grey's Colonial Policy of Lord J.
Russell's Administration (1853)." This review,
published in 1867, commented upon the mixed form
of government, as instituted in 1842, and said that
the colonists were supposed to have wanted the

"Page 100.

103

Constitutional Development of Victoria.

system; and also, after its introduction, Earl Grey
became so enamoured of the system that he dilated
upon the advantage of a single Chamber for all the
Colonies.

Still another reference to the blended House, and
incidently to nomineeism, is to be found in one of
Dr. D. Lang's "letters. Dr. Lang, who had been an
elected member for the Port Phillip District in the
New South Wales Legislature, was residing in Lon-
don in 1849. He wrote to Benjamin Hawes. M.P.,
and Under Secretary of State for the Colonies, with
reference to the Australian Colonies Government Bill,
then being discussed in Parliament. After review-
ing how, under Lord Stanley, a blended House was
formed by way of experiment, instead of the old
Colonial system, he expressed regret that the pro-
posed Act should purpose retaining that type of
Legislature. He attacked the nominee element in
such a House, and considered its presence there to
be contrary to the wishes of the colonists. Such a
system he considered unconstitutional because it
was_ a universally acknowledged principle of the
British Constitution that the people's money was the
people's own. No person whatever could have the
right to vote it away, except those whom the people
had expressly chosen for the purpose. He pointed
out that what the House of Peers was precluded
from doing by the Constitution, the nominees under
the proposed Act were empowered to do. They
could vote away the people's money.

In spite of the protests made by Mr. Lowe and
Dr. Lang against the retention of nominees in the
single House, the British Government passed The
Australian Colonies Government Act of 1850, and re-
tained therein that section of the Act of 1842 which
provided for the presence of one-third nominees in

""Remarks on the Proposed Constitution for the Australian
Colonies." in a letter to Benjamin Hawes. M.P., Under-Secretary
of' State for the Colonies, by Dr. D. Lang, June 17th, 1849, London.

104

The Blended House.

the single Legislature. Under Section III. of the
Act of 1850, the Legislature of New South Wales
divided Victoria into sixteen electorates, and fixed
the number of members in the Legislature of that
Colony at thirty. Ten members were to be
nominees ; the remaining twenty were to be elected
representatives. The following table shows clearly
the allotment of the representatives for the first
Victorian Legislative Council, which opened its first
session on November 11th, 1851: —

Number of

Memb

ers.

"Electorates.

Population,

1851.

North

of Yarra

13,092")

Bourke

17,469

South

of Yarra

4.377 -)

Grant

4,469

Follett

648)

Normanby

1,505 \ -

3.064

Dundas

911 J

Villiers
Heytesbury

2,705 ] .
59 3

2,764

Ripon
Hampden

814]
7893 -

1,603

Grenville
Polwarth

392 1,

1,552 )

1,944

Talbot

8937

Dalhousie

790 ^ -

2,251

Anglesey

568)

Mornington "
Evelyn

879

Gippsland

1,770

Murray District

2,693

Loddon District

1,127

Wimmera District

2,019

Melbourne

23,143

Geelong

8.243

Portland ")

1,025

Belfast >

964

2,372

Warrnambool )

383

Seymour"!

117

Kyneton ?

2g6

1,550

Kilmore )

1,137

"Australi

ian Constitution, p. '.

132.

105

Constitutional Development of Victoria.

SUMMARY.

3
7

Two Agricultural Counties
Seven Intermediate Districts,

including Gippsland
Pastoral Districts
Four Urban Districts

21,935

14,275

5,83^

35.308

20 77,360

From this table it can be seen at glance that the
allotment of members was not made upon a basis
of population. Evelyn and Mornington, with a
combined population of only 879, received a repre-
sentative, while Melbourne, with 23,143 inhabitants^
received only three members. Whatever the defects
of this distribution of seats may have been, still
Victoria secured a partly representative system. It
might have been otherwise, for when Mr. La Trobe
was Superintendent of the Port Phillip District, he
advised the Plome Government against introducing
representatives into the Legislature of the new
Colony of Victoria. Unlike Mr. Lowe and Dr. Lang,
he favored the nominee element in the Legislature
so much that he desired a wholly nominated House.
He considered that the colonists of the Port Phillip
District were not fitted to have representatives yet.
Fortunately for V^ictoria, the Home Government did
not follow Mr. La Trobe's advice.

The following gentlemen formed the first blended
Victorian Legislature, at its opening on November
11th. 1851:—
'^Official Nominees —

William Lonsdale, Esq., Colonial Secretary.
William F. Stawell, Esq., Attorney-General.
Charles H. Ebden, Esq., Auditor-General.
Redmond Barry, Esq., Solicitor-General.
Robert Williams Pohlman, Esq., Master-in-Equity.

'"The Act of 1H,'50 did not say that half of the nominees should be
oflTicial. Lieut. -Governor La Trobe selected half to be official

nominees under powers delegated to him by Her Majesty on December
aist, 1850. (Vide Australian Constitution, p. .'iSO). Their appoint-
ments were made provisionally; they were subject to review by the
Colonial Office, which, on more than one occasion, rejected appoint-
ments made by Lieut. -Governor La Trobe.

106

The Blended House.

Noii-Officia! Noniiiiccs — ,

Alexander Cuniiinghanie Wallace Dunlop, Esq.
Charles James Griffiths, Esq.
William Clarke Haines, Esq.
James Hunter Ross, Esq.
Andrew Russell, Esq.

Elect ivcs —

William Westgarth William Rutledge

James Stewart Johnston Peter Snodgrass

John Thomas Smith Robert Robinson

Adolphus Goldsmith William Francis Splatt

Robert TurnbuU James Ford Strachan

Thomas Wilkinson John Henry Mercer

Francis Murphy James Frederick Palmer

Henry Miller John O'Shanassy

John Pascoe Fawkner William Campbell

Charles Hilton Dight Thomas Hamilton Osborne

Under normal conditions this Council might have
effectively managed the public business of Victoria,
but the discovery of rich goldfields in 1851 produced
an abnormal state of affairs. The tide of emigra-
tion which set in towards the shores of Victoria
soon very considerably increased the duties of the
Legislative Council ; it was felt that a stronger
House, numerically, w^as necessary in order to cope
with the business of the Colony. So on November
16th, 1852, a Select "Committee was appointed to
consider and report upon the propriety of increasing"
the number of the members of the Council. When the
Committee's "Report was presented to the House on
December 9th, it recommended that the number of
members should be increased from thirty to fifty-
four. The report of the Committee was adopted
by the Council, and the allotment of the new repre-
sentatives was as follows: —

"See Parliamentary Debates, "Argus," November 17th, 1852.
"See Parliamentary Debates, "Argus." December 10th, 1852; ali^
V. and P.. 1852-:!, Vol. 2, Part 1, p. 5.*^7.

107

Constitutional Development of Victoria.
''SCHEDULE.

Present number Proposed
of members additional

returned.

number.

Melbourne

North Bourke

South Bourke

Ceelong

Grant

Ripon, Hampden, Grenville, and

Polwarth

Villiers and Heytesbury

Belfast and Warrnambool

Portland

Normanby, Dundas and Follett

Talbot. Dalhousie and Anglesey

Kilmore

Wimmera

Loddon

Murray

"Gippsland

20 - l6

An Act to give effect to this wish of the Legisla-
ture was "assented to on January 19th. 1853. The
enlarged House met for 'the first time on August
30th, and the new members were : —

Official Ahniiiiccs —

Andrew Clarke, Surveyor-General.

The Hon. James Horatio Nelson Cassell, Collector of

Customs.
William Henry Wright, Chief Commissioner of the

Goldfields.
William Henry Fancourt Mitchell, Chief Commissioner

of Police.

Non-Official Nomitwcs —

James Graham, Edward Nucella Emmett, William
Highett, Edward Stone Parker.

"V. and P., 1862-3, Vol. 2, Part 1, p. 538.

'♦Australian Constitution, p. GSfi.
_ "An Act to alter 'The Victorian Electoral Act of 1851,' and to
increase the number o( members of the Legislative Council of th»
Colony of Victoria." Act XXIX.

108

The Blended House.

Elcctivcs-

Henry Langlands (after- Melbourne
wards unseated by

Frederick James Sargood)

James Murphy ,,

John Hodgson ,,

James Cowie Geelong

George Annand North Bourke

John Dane South Bourke

\\ illiam Clarke Haines Grant

James Henty Portland

Mark Nicholson Belfast and Warrnambool

Patrick O'Brien Kilmore, Kyneton and Sey-

mour

George Winter Villiers and Heytesbury

William Thomas Mollison Talbot, Dalhousie and

Anglesey

James Thomson Ripon, Hampden, Grenville

and Polwarth

Charles James Griffiths Normanby, Dundas and

Follett

Matthew Hervey Murray

John Goodman Loddon

Notwithstanding the increase in the Legislative
Council, the majority of the gold miners of Victoria
were not entitled to vote for the return of members
to the Legislature. This grievance, along with the
discontent over the gold licensing system, led to-
disturbances on the goldfields, and to the Eureka
Stockade incident at Ballarat in December. 1854.
After the conflict with the miners, the Lieut.-
Governor. Sir Charles Hotham, appointed a Com-
mission to report on the state of the goldfields.
Amongst other suggestions made by the Commis-
sion in its "report were these : —

(1) That the miners should be granted political
rights ;

(2) That the electoral districts should be at
once altered, and arrangements made to

•"Discovery of Gold in Australia," 1853-6, Vol. 3, pp. 25-60.
109

Constitutional Development of Victoria.

admit eight additional elective and four ad-
ditional nominee members to the blended
House.

As a result of these recommendations, Sir Charles
Hotham, on IMarch 29th, 1855, transmitted a Bill to
the Legislature to give effect to the proposals of the
Commission. "On May 16lh, 1855, this Bill passed
its third reading, and for the second time the Legis-
lative Council was increased in numbers. Twelve
members were to be added, eight electives and four
nominees. For some reason not known, the Lieut.-
Governor filled only one out of the four places for
nominees. This was probably because the arrival
of the New Constitution for Victoria was considered
to be imminent. Dr. Owens was the non-official
nominee appointed, though the Lieut. -Governor was
well aware of the democratic opinions of that
gentleman.

The following were the new representatives: —

Vincent Pyke

Castlemaii

James Atkin Wheeler

„

Robert Benson

Sandhurst

Robert McPherson Grant

Peter Lalor

Ballarat

John Basson Humffray

Daniel Cameron

Ovens

Duncan Longden

Avoca

By appointing only one instead of four nominees,
the Lieut.-Governor disturbed the proportion of
nominees to elected members which was required
by the Act of 1850. Instead of sixty-six members
in the Legislative Council, there were only sixty-
three — forty-four elected members and nineteen
nominees, nine of whom were official. These figures
remained unchanged until the dissolution of the

""An Act to further alter 'The Victorian Electoral Act of 18.51,'
and to increase the number of members of the Legislative Council of
Victoria." Assented to on May 22nd; gazetted May 25th. Act
XXXIV.

110

The Blended House.

Legislature. With the proclamation of the New Con-
stitution on November 23rd, 1855, the life history
of the blended House in Victoria came near to its
closing days. It passed through a short but stormy
political period after November 23rd, and finally
ceased to exist on March 20th, 1856. The first Par-
liament of Victoria, with its elected Upper and
Lower Houses, met for the first time on November
21st, 1856.

Ill

CHAPTER VI.

OFFICIAL AND NON-OFFICIAL NOMINEES,

Some Resignations Under Special Circumstances.

In the previous chapter we have seen how nomi-
nees came to be in the blended Legislatures in Aus-
tralia, between 1842 and 1855. The official nomi-
nees formed what Mr. H. S. Chapman called a
"quasi-Ministry," some members of which were "in
the Cabinet" ; as such the Governor looked to them
for implicit obedience to his wishes. 'His policy was,
for the "quasi-Ministry," the policy of the Govern-
ment. The non-official nominees were usually
selected by the Governor, because they were mode-
rate in their political views, or were men of no
politics at all. Such members were not likely to
show the Government any serious opposition. We
shall now investigate some resignations of official
and of non-official nominees, who resigned under
circumstances quite distinct from those ordinarily
incidental to political life.

Our first case for examination is the resignation
of Mr. W, C. Haines, who afterwards became
Colonial Secretary of Victoria. That gentleman was
appointed a non-official nominee on October 31st,
1851. 'Before he took his seat in the Legislature,
he inquired from the Government whether it was
intended to issue leases of Crown lands to the squat-
ters under the Orders-in-Council of March 9th, 1847.
He was informed that the leases would not be
issued. Upon that consideration alone did he take
his seat in the House. When he found that the
Government had altered their views upon the sub-
ject, and were determined to issue the leases, he re-

> and •See "Responsible Ministries," by H. S. Chapman.
*See speech by Mr. Haines, "Argus," August 16th, 1852.

112

Official and Non-official Nominees.

signed his seat as a nominee. On June 6th, 185vl,
Mr. \V. C. Haines became an elected member for
Grant.

'Another case is the resignation from office of Mr.
C. H. Ebden. the Auditor-General, who was ap-
pointed to that position on October 31st, 1851. In
Mr. Chapman's opinion, there were at that period
only two official nominees really capable of
conducting the business of the Government. One
was Mr. F. \V. Stawell, the Attorney-General ; the
other was Mr. C. H. Ebden. the Auditor-General.
The x\ttorney-General w^as also a member of the
Executive Council, but the Auditor-General held no
seat there. The Attorney-General was frequently
absent attending to his professional duties, which,
owing to the influx of population from Van Diemen's
Land, had increased very much. At such a time,
the whole brunt of the Government business fell
upon the Auditor-General, and he w^as expected to
support the views of the Government, though he
was not a member of the Executive. How was he
to get these views? As he was not a member of
the Executive, information was very sparingly and
grudgingly afforded him. Finally, he found his
position so anomalous and so painful to himself that
he resigned his position as an official nominee. He
*ceased to hold the office of Auditor-General, and
'ipso facto, a seat in the Legislative Council. This is
the explanation of his resignation according to his
own account of it. It is true he was accused of unduly
interfering with the official functions of others. It
is quite possible that this may have been the case ;
but how could it have been otherwise, considering
his peculiar position?

The political career of Mr. Foster, Colonial Sec-
retary, after Mr. Lonsdale, furnishes a third and

^Resignation accepted at a meeting of the Executive Council on
October 7th, 1852. ("Minutes of Executive Council," Vol. 1, p. 169).

•This applies to each case quoted of official nominees who resigned
office.

113

Constitutional Development of Victoria.

striking case. He voluntarily resigned his position
on December 9th, 1854, because of the popular feel-
ing manifested against him in connection with the
Ballarat riots and the gold licensing policy. He
offered his resignation to the Lieut.-Governor, Sir
Charles Hotham. in case his retention of office should
embarrass the Lieut.-Governor in his administration
of the country. At the same time, he stated dis-
tinctly that he was not anxious to resign. Sir
Charles Hotham accepted the proffered resignation,
and stated that he feared "the Queen's Colony would
be placed in jeopardy" if he declined the resigna-
tion.

In the fourth case to be quoted — that of Mr,
Pohlman, an official nominee, and the Chairman of
the Quarter Sessions — the political circumstances
differ from those of the cases already quoted. In
this case the Lieut.-Governor himself really brought
about the resignation. Something of Mr. Pohlman's
character can also be judged from the following in-
cident:— On July 13th, 1852, Mr. Pohlman voted in
support of a motion, which expressed satisfaction
at the retirement of Earl Grey, the Secretary of
State for the Colonies, from Her Majesty's Councils.
The other official nominees voted against the motion.
Mr. Pohlman did not like Earl Grey's attitude
towards transportation to Van Diemen's Land. He
voted according to his convictions, and on this occa-
sion was not called to account by the Lieut.-Gover-
nor. At a later date, on October 8th, 1854, the same
gentleman was taken to task by the Lieut.-Governor,
Sir Charles Hotham, who considered that Mr. Pohl-
man had not acted in a manner Ijefitting his position
as an official nominee. The matter which incurred
Sir Charles Hotham's disapprobation was a notice
of motion then standing in Mr. Pohlman's name in
the proceedings of the Legislative Council. 'It was,

•V. and p., 1854-5, Vol. 3. Part 1, p. 421.
114

Official and Non-official Nominees.

"That an address be ])rescnted to His Excellency,
praying that he will l)e pleased to place on the Sup-
plementary Estimates of the year a sum of £50,000,
to be placed at the disposal of the Denominational
School Board, etc." The Lieut.-Governor sent for
Mr. Pohlman, and asked him to allow the notice of
motion to lapse. He took exception, he said, to Mr.
Pohlman's conduct in giving the notice of motion
without consulting the Head or any principal mem-
bers of the Government. In his letter to Sir Charles
Hotham, dated October 9th, 1854, Mr. Pohlman de-
fended his position against the charge made against
him. He pointed out what he considered to be the
distinction between his position as a non-elective
member of the Government, and as Chairman of
the Board doing work gratuitously. Under these
conditions, he felt compelled to state that, if it were
still the Lieut.-Governor's desire that the notice
standing in his name should be withdrawn, he would
respectfully tender his resignation. He felt that no
other course was open to him, if he wished to pro-
tect his character as a member of the Legislature.
Sir Charles Hotham accepted Mr. Pohlman's re-
signation on October 11th, and declared his seat
vacant.

The fifth case is connected with Mr. Lowe's poli-
tical career in the New South Wales Legislature.
He was a Crown nominee in 1843-4. It is interest-
ing to note that certain features connected with his
resignation resemble those of Mr. Pohlman's case.
When speaking at Charing Cross on June 1st, 1850,
upon the subject of nomineeism in New South
Wales. Mr. Lowe candidly stated what his own
position as a Crown nominee had been. He found
it impossible to fill the position to the satisfaction
of his own conscience, and at the same time to the
satisfaction of others. When he voted with the
Government, he had been dubbed a slave. If at any
other time he voted against it, he was taunted with

115

Constitutional Development of Victoria.

being a traitor. He therefore considered the wisest
step he could take was to resign his position. That
he did.

A final and interesting piece of evidence concern-
ing the nominees in the Victorian Legislature was
furnished by Mr. Foster, the Colonial Secretary. On
September 1st, 1853, that gentleman made a fine,
clear and a broad-minded speech concerning the
important task of devising a new Constitution
suited to the needs of Victoria. He recognised that
the day of the blended House would not now last
long ; and he openly told the members present what
he thought of the introduction of the nominee
element into the House. He acknowledged that the
nominee members in the Legislature were second
to none in point of intelligence and ability. Never-
theless, he knew that none of them would challenge
his statement when he said that the introduction of
nominees into that House had not been attended
with success. A Crown nominee was often viewed
with suspicion, and it was undoubtedly true that it
required a great deal of moral courage for any man
to do his duty as the holder of such a position.
He considered the present nominees were deserving
of special respect for the patriotism they had shown
in coming forward and occupying the positions as
they had done.

The New Constitution was proclaimed in Victoria
on November 23rd, 1855. It sounded the death knell
of nomineeism in that Colony. When the first Par-
liament of Victoria met on November 21st, 1856,
both Upper and Lower Houses were composed of
elected members.

116

CHAPTER VII.

ANALYSIS OF VOTING.

Its Import in the Legislature.
1851-5.

We shall now examine the political attitudes
adopted by the different sections in the Legislative
Council, that is. by the official nominees, the non-
official nominees, and the representatives. A por-
tion of this sul)ject has been touched upon in the
previous chapter. We shall now examine it more
fully. Did the official nominees consistently sup-
port the Government policy? Were the non-official
nominees expected to vote with the Government, or
were they permitted to vote as they pleased with-
out being- called to account for so doing? What also
was the political attitude of the representatives?
Did the representatives from the urban and from
the country districts vote for the people's interests
generally, or support in a marked manner the in-
terests of the areas they represented? These are
points which we shall now investigate. We shall
examine a sufficient number of cases of voting in
the House to enable us to arrive at safe general con-
clusions concerning each type of voter.

Cose I. — On 'November 26th, 1851, before the
House went into Committee for the consideration
of the Estimate of Ways and Means for the expen-
diture of 1852, it passed the resolution, "That it be
an instruction from this Council to the Committee
not to vote any sum from the General Revenue for

>V. and p., 1851, p. 55.

117

Constitutional Development of Victoria.

the additional expenditure caused by the discovery
of gold." The voting upon the resolution was : —

AYES, i8. NOES, lo.

Reps 17 Off-Nom 5

Non-Off. Nom. . . i Non-Off. Nom. ... 4

Rep I

18 10

As the motion was really a protest against an un-
fair demand made by the Lieut.-Governor upon the
General Revenue, it naturally received a strong re-
presentative vote. All the official and four of the
non-official nominees voted against the motion^
which sought to thwart the Lieut.-Governor's pro-
posed policy, which was for them the policy of the
Government. The non-official nominees were fre-
quently men without any particular political bias,
and were often chosen because of this fact. Still,
as in this case, the Government did not always re-
ceive their unanimous support.

'Case ^.— On July 9th. 1852, Mr. Fawkner moved,
"That a Committee of nine members be appointed
to take the Act of Constitution of the Colony inta
serious consideration, etc." The voting on this
motion was : —

AYES, 8. NOES, 15.

Rep 7 Ofif.-Nom 5

Non-Ofif. Nom. ... i Non-Off. Nom. ... i

'Squatter Rep 8

Rep I

~8 15

The official nominees' vote was unanimously
against the motion, which really aimed at investi-
gating the efficiency of the existing Government.
The squatter representatives voted strongly against
the motion, for a change in the Constitution might
very possibly have affected the land question. As

*V. and P., 1R523, Vol. 1, Part 1, p. 31.
•See Appendix "A."

118

Analysis of Voting.

will be seen in Case 5, this was a matter of vital
interest to the squatters. Tlie non-official vote was
divided ; one representative, not of the squatter
group, voted with the Government.

Xasc J.— On July 13th, 1852, Mr. Westgarth
brought forw^ard a series of resolutions condemning
the transportation system to Van Diemen's Land.
Two of the resolutions — Nos. 5 and 7 — were the
subjects of divisions in the House. No. 5 set out,
"That this Council regards wnth satisfaction the re-
cent retirement of the Right Hon. Earl Grey, Sec-
retary of State for the Colonies, etc." Many of the
colonists believed that Earl Grey's attitude towards
transportation was damaging to the welfare of Aus-
tralia generally, and to Victoria in particular. The
voting on Resolution 5 was : —

AYES, 10. NOES, 5.

Off.-Nom I Off. Norn 4

Non-Off. Nom. ... i Rep i

Rep 17

19 S

Four out of the five official nominees voted against
the attack made upon the political conduct of Earl
Grey. The dissenting official nominee, Mr. Pohl-
man, voted against the Government, as he did over
the Convicts Prevention Act on July 13th, 1852, and
September 28th, 1853. Mr. Westgarth, in his
"'Early Melbourne," makes special reference to Mr.
Pohlman's opposition to the Government on this
occasion. All the representatives, save one, sup-
ported the motion. It was to this very period that
Mr. H. S. Chapman referred when he said that dur-
ing the winter of 1852 it was dangerous in Melbourne
to be out after dark. This was because of the large
number of convicts who had come over from Van
Diemen's Land.

♦V. and p., 1852-3. Vol. 1, Part 1.
•Page 147.

119

Constitutional Development of Victoria.

Case 4. — Resolution 7, after expressing sympathy
with the colonists of Van Diemen's Land in their
efforts to rid themselves of the penal system, stated,
"That this Council cannot advert, without the ex-
pression of alarm and dissatisfaction, to the course
pursued by Sir W. T, Denison, the Lieut.-Governor
of the Colony, in his advocacy of the continuance of
the system of transportation." This resolution was
voted upon as follows : —

AYES, 21. NOES, 3.

Off. Norn 4 Off. Norn i

Rep 17 Non-Off. Norn. ... i

Rep I

21 3

Resolution 7 did not involve the land question,
so vital to the squatter representatives, nor attack
a Alinister of the Crown, as in Resolution 5. It did
touch, however, upon the matter of the personal safety
of the colonists of Victoria, for the perils emanating
from the penal system in Van Diemen's Land were
at that very time causing them great anxiety.
As we have mentioned already, it was not safe to
be out in the streets of Melbourne after nightfall,
owing to deeds of violence committed by men of
the convict class. Hence a strong combination of
ofificial nominees and representatives voted in sup-
port of the resolutions. Of the three men w^ho op-
posed the motion, there was one from each type of
voter in the House. The official nominee here was
the Auditor-General. The heavy voting for the
motion was practically a censure passed upon Sir
W. T. Denison's views on the question of transpor-
tation to Van Diemen's Land.

'Case 5.— On July 28th, 1852, the "Rutledge
amendment" was put to the House, viz., "That
leases be immediately issued to the occupants of
Crown lands, to bear the date of March 7th, 1848,
in order that the lands may be open for sale, under

•V. and P., 1852-3, Vol. 1, Part 1, p. 75.

120

Analysis of Voting.

the Orders-in-Council of March 9th, 1847, in quan-
tities to meet the demands of the increasing popula-
tion of this Colony." This amendment was put for-
ward by Mr. Rutledge, an elective member for
Villiers — a 'squatters' area — and opposed Mr. Fawk-
ner's motion, which aimed at extending the area of
the Settled Districts of Victoria. The passing of the
motion would have brought the Government into
opposition with an Imperial Act, as well as with the
interests of the squatters. Under the Orders-in-
Council of IVIarch 9th, 1847, leases could be issued to
squatters in the Unsettled Districts for fourteen
years, in the Intermediate Districts for eight years,
and in the Settled for only one year. By this Order-
in-Council, it was possible for the Crown lands of
the Colony in the Unsettled Districts to be locked
lip from the public for a period of fourteen years.
The squatters had good legal claims under this Or-
dinance, but the conditions with regard to land in
Victoria had been changed by the gold discovery.

The whole land policy stood in need of a states-
manlike revision, for the discovery of the rich gold-
fields in Victoria had created a rising demand for
land. Under the 'Ordinance of 1847, the holder of
a lease had the sole right to purchase a portion of
the run at £1 per acre. The enhanced value of the
land gave undoubted opportunities to leaseholders
to make handsome profits upon their purchases.
Bearing these facts in mind, we shall now examine
the voting upon the "Rutledge amendment." It
was as under : —

AYES, i8. NOES, g.

Off. Nom 5 Rep 9

Non-Off. Nom. ... 4

Eleclives represent-
ing squatters' in-
terests 9

18 9_

'See "A Short History of Australia," Chapter 16, by Profeiior
E. Scott, University of Melbourne.

•"London Gazette," April 27th, 1847, Section VI.

121

Constitutional Development of Victoria.

The analysis of this voting shows nine represen-
tative members in opposition to the amendment, and
a unanimous vote by the official and non-official
nominees in support of the land policy as deter-
mined by the Imperial Parliament. The conspicuous
feature in the voting, however, is the siding of all
the squatters' representatives with the Government
nominees. Their support brought an easy victory
to the amendment. We have already seen how vital
a matter the land question was to the squatters. No
wonder can be expressed, therefore, at the support
given to the amendment by those who represented
their interests. This coalition, moreover, of the
squatters' members with Government nominees,
made progress with regard to the waste lands ques-
tion very difficult. Mr. "Westgarth's "Early Mel-
bourne" furnishes confirmatory evidence on this
question, and further helps us to understand the
analysis of the voting. It says, "In anything that
touched squatting, however, the squatting represen-
tatives, led by W. F. Splatt, of the Wimmera,
bodily went over, thus giving the Government a
small majority, which, as I have already shown in
my sketch of Mr. La Trobe, blocked us seriously
in dealing with the waste or Crown lands, for the
benefit of the inpouring tens of thousands of people."'

"Case 6. — On August 5th, 1852, the Chairman of
the Committee of the whole reported, "That, in the
opinion of the Committee, the salary of the Lieut.-
Governor of this Colony is wholly inadequate to
support the dignity of his office, and that it ought
to be increased." The voting was as follows : —
AYES. 12. NOES. 8.

Ofif. Norn 4 Rep 8

Non-Off. Nom. ... 3

Squatters' Reps. . . 4

Rep 1

•Page 147.

"V. and P., 1852-3. Vol. 1, Part 1. p. 95.

122

Analysis of Voting.

Here the question was one affecting the dignity
of the Lieut.-Governor's position. Consequently,
there was the usual united official vote in support
of tile motion. .'Ml the non-official nominees present
voted in like manner. The representative vote was
almost twice as strong in the opposition as in the
affirmative. The question of the Lieut.-Governor's
dignity of office was not so vital to the squatters'"
representatives as a probable change in the land
policy, or an attack on the existing Constitution,
Here, only four squatter representatives supported
the Government, as against nine in the "Rutledge
amendment." about eight days earlier.

''Case 7. — On September 28th, 1853, at the second
reading of the Convicts Prevention Act Amendment Bill,.
the most important clause was passed by an over-
whelming majority. The voting was as follows : —

AYES, 34. NOES, 7.

Union of Un-Oflf. Oflf. Norn 6

Noms. and Reps. . 33 Rep i

Off. Norn 1

34 7

A similar measure had been passed in the previous-
year, but was disallowed by the Queen, because the
Act was said to be an infringement of the Royal
prerogative of mercy. Only one representative
voted with the six official nominees in defence of
the prerogative of the Crown. In this case, as in
that of the anti-transportation motion, Mr. Pohlman,
an official nominee, joined in the opposition to the-
Government. The heavy voting for the Convicts
Prevention Act Amendment Bill on this occasion caused'
the Government to withdraw all opposition to it at
the third reading on October 5th.

''Case 8. — On March 16th. 1855. a motion was made-
during the discussion of the Impounding Laiv Act

"Parliamentary Debates, "Argus," September 29th, 1853.
«V. and P., 1854-5. Vol. 1, Part 1, p. 564.

123

Constitutional Development of Victoria.

Amendment Bill, Clause XX., "That the Chairman
report progress, and ask leave to sit again this day
month.'' The voting was : —

AYES, 13. NOES, 25.

Off. Nom 3 "Off. Norn. ...... 5

Reps 10 Non-Off. Nom. ... 5

Reps 15

13 25

The question here was not a vital one, so even
•official nominees divided forces, three being for and
five against the motion.

From the cases which we have examined, we may
safely conclude that the official nominees almost
invariably voted in support of Government policy,
whether Imperial or purely Victorian. Mr. Pohl-
man's divergences have been noted. The almost
unanimous support of official nominees was due,
without doubt, to pure loyalty to the Lieut.-Gover-
nor. who had nominated them on behalf of the
Crown. That such was the case is shown by the
following incident : The Auditor-General, in the
debate on November 26th, 1851, concerning La
Trobe's proposed policy to use the General Rex'enue
for expenses incurred by the gold discovery, stated
that he thoroughly understood why the Legislature
opposed the Lieut. -Governor's wish. He really made
an acknowledgment that they were right. Vet he
voted in support of the Lieut.-Governor's proposed
policy. Such must have been the case also when the
Convicts Prevention Act came so frequentl}- before
the House in its various readings and re-enact-
ments.

The non-official nominees gave the bulk of their
votes in support of the Government policy. From
the cases we have cited, we can see that their sup-

"Official nominees were increased to nine in number by an Act
passed on January 19th, 185U.

124

Analysis of Voting.

port was sometimes not unanimous. The squatters'"
representatives, particularly in the early years of the
Legislature, \oted with the Government when the
land policy was assailed, or when attacks were made
on the existing system of Government. On other
matters of general interest to the colonists, they
seem to have voted without any bias. The urban
representatives voted, for the most part, with de-
cidedly democratic tendencies, as was evinced in
Cases 1 to 7. This was to be expected, seeing that
the vast stream of emigrants from the United King-
dom and Europe to Victoria contained thousands of
men to whom the the democratic opinions so pre-
valent in Europe in the middle of the nineteenth
century were very familiar. The troubles in Ire-
land, the Chartist movement in England, and the
democratic revolutions in Erance, Germany and
Hungary, did much to make not only Victoria, but
also the other Australian States, very democratic.

Finally, there was a small percentage of repre-
sentatives who gave the Government frequent sup-
port. Such a one, Mr. Westgarth tells us, was Wil-
liam Campbell, of the Lodclon, who, disliking the
democratic tendencies of the times, w^as found a
pretty steady supporter of the Government. Because
of this, Edward Wilson, then editing the Argus^
designated him, "The lost sheep of the Loddon."

125

PART 3.

SOME CONSTITUTIONAL STRUGGLES IN

THE VICTORIAN LEGISLATURE,

1851-6.

CHAPTER VIII.

THE GOLD REVENUE.

The Victorian Legislature's First Constitutional Struggle.

By the Australian Colonics Govcrnmoit Act, passed
in 1850, the Port Phillip District became the Colony
of Victoria on July 1st, 1851. Before separation
took place, the growth of the Port Phillip District
had been that of a pastoral community steadily in-
creasing in population and prosperity. There can
be no doubt that Victoria would have continued to
develop in material wealth and population, solely
as a result of her flourishing pastoral industries.
The year 1851, however, brought another and a
mighty force into the life of Victoria. This new
power arose because of the discovery of rich gold
mines within her borders ; and an era of extraor-
dinary wealth and progress commenced in the
newly-created Colony. The discovery of gold in
New South Wales, by Mr. Hargreaves, at Summer
Hill Creek, on February 12th, 1851, caused a great
stir in that Colony, and its influence began to be
rapidly felt in the province south of the ^Murray
River. A few months later, the goldfields dis-
covered in Victoria completely eclipsed those of
New South Wales. Ere long, ships sailed from
almost every civilised land with eager searchers
after the precious metal in this wonderful gold-
mining country. As the population of Victoria in-
creased at an extraordinary rate, the financial bur-
dens of the Colony became greater, and the Lieut.-
Governor and his Executive needed far more money
to meet the increased cost of administration.

The revenues of the Colony were at that time
classed under tw^o heads, the General and the Terri-
torial. The Lieut.-Governor, wath the advice and

129

Constitutional Development of Victoria.

consent of the Legislative Council, had the 'power
to make laws enabling them to appropriate the
whole of the revenue derived from taxes, duties,
rates and imposts, subject to certain restrictions.
The fund produced from the sources mentioned con-
stituted the General Revenue, and was used to meet
the cost of administering the ''Government of the
Colony. Under the Land Sales Act of 1842, passed
by the Imperial Parliament, ^the funds derived from
the sale of Crown lands in the Colony formed the
Territorial Revenue. By this Land Act. one-half of
the revenue so derived was reserved for the purpose
of assisting emigration from the United Kingdom
to the Colony where the revenue was raised ; the
other half, the unappropriated moiety of the Land
Fund, was expended on the public service, under the
direction of the Executive Council. All revenue
from the 'licenses issued in connection with gold-
mining in V'ictoria %vas paid into the Territorial
Revenue. Gold was a droit of the Crown. The
Territorial Revenue was, as we have seen, separate
from the General Revenue. Its use was definitely
fixed l)y Section XIX. of the Land Sales Aet of 1842,
and could not be appropriated for General Revenue
purposes.

When gold-mining in V^ictoria became a rich and
extensive industry, the revenue from the gold
licenses increased greatly. The General Revenue,
however, could not make any financial demand upon
this rich source of revenue.

'1.3 and 14 Vict., Cap. 59, Section XIV.

'Under Section XVIII. of the Land Sales Act of 1842 ("An Act
for regulating the sale of waste lands belonging to the Crown in
the Australian Colonies" — ij and G Vict., Cap. 36), the expenses of
the Survey Department were made a charge on the Territorial revenue.

••Section XIX. — 5 and « X'ict., Cap. 'M.

♦The proclamation issued by the Lieut. -Governor on .\ugust 16th,
1851, declared "the rights of the Crown in respect to gold found in
its natural place of deposit within the Colony of Victoria." The
license to dig for gold was fixed at 30/-. "Government Gazette," p. 259.

•The right of tlie Crown to mines royal formed a source of revenue
which the Crown could dispose of, owing to its prerogative, at it
disposed of the Land revenue before 1842.

The Gold Revenue.

Hence, for the General Revenue to benefit from
the Gold Revenue v^ould mean the surrender of the
prerogatixe of the Crown over the latter; to receive
aid from the Territorial Revenue would require the
sanction of the Home Government. Sucli then was
the general disposition of the financial rexenue of
the Colony of Victoria in 1851.

When Lieut. -Governor La Trobe formally opened
the V^ictorian Legislature on "November 13th, 1851,
he made special reference to the gold discovery in
Victoria, the great influx of population, and the
temptations held out to subordinate officers of the
Government to quit the Civil Service. It had be-
come necessary, he pointed out, to make consider-
able additions to the police force of the Colony, not
only for the sake of assisting to carry out the regu-
lations and to furnish escort for the gold sent to
the towns, but also to ensure good order and the
due observance of the laws amongst the large popu-
lations on the goldfields. In making additions to
the police, he had relied, he said, upon the sanction
of the Legislative Council and its willingness to
make provision for such portions of this expenditure
as might justly be held to form a charge upon the
ordinary revenue.

When the Legislative Council met on Novemljcr
26th, 1851, for the consideration of the estimate of
Ways and Means for the year 1852, and the supple-
mentary estimate for '1851, it proceeded to consider
this question raised by Lieut.-Governor La Trobe.
Before the House resolved itself into a Committee
of the whole, a Svarm discussion took place over
the injustice of allowing receipts from the gold to
be paid into the Territorial Re\enue, while the ex-
penditure caused by the gold discovery in Victoria
was to be charged upon the General Revenue. It

«V. and p., 1851. Vol. 1. p. 9

'Ibid, p. ns.

'Parliamentary Debates, "Argus," November 28tli, 1851.

131

Constitutional Development of Victoria.

■was looked upon as an absurd thing that the gold
should disorganise everything, and yet not provide
for its own attendant expenditure. Although the
Auditor-General, later, cast his vote for the policy
proposed by the Lieut.-Governor, he admitted that
he could perfectly understand why the House, not
having control over the Territorial Revenue, was
unwilling to vote one farthing in support of it.
Finally, the House, by a majority of eight votes, ex-
pressed its wish, "That it be an instruction from
this Council to the Committee not to vote from the
General Revenue any sum for the additional expen-
diture caused by the discovery of gold." This gave
the Council a decisive victory over the policy set
out by the Lieut.-Governor.

Under the circumstances, Lieut.-Governor La
Trobe had acted in the only way legally open to
him. New conditions, however, had arisen in Vic-
toria, and the Council felt that alterations in the laws
relating to the gold and land revenues were needed.
Those considerations led to the stand which they
made against the proposal to use the General Re-
venue for burdens caused by the gold discovery.
Later in the session, owing to certain representa-
tions from the Lieut.-Governor, who pointed out the
exigencies of the times, the Legislature granted
some measure of financial aid to him. He was
forced, however, to draw upon the Territorial Re-
venue for further assistance, and then report his
action to the Home Government.

In the following 'month, December 16th, 1851,
the Victorian Legislature passed a resolution ask-
ing the Home Government for the entire manage-
ment of all revenues, Territorial as well as General,
including that derived from mines and minerals.
The latter request was equivalent to asking the

•V. and P., Vol. 1, p. 98.

132

The Gold Revenue.

Crown to surrender its prerogative respecting- the
gold mines ; the former, concerning the Territorial
Revenue, practically requested the abrogation of the
Land Sales Act of 1842. Roth requests also involved
the demand for fuller powers of self-government.

"Three cla3-s after these requests had been made
by the Legislature, Lieut.-Governor La Trobe drew
the attention of Earl Grey, the Colonial Secretary,
to the fact that, as the Legislature had no control
over the goldfields, it was scarcely likely to render
effective aid in collecting the gold royalty. He
pointed out that the Legislature desired that this
revenue, together with all the other branches of the
Territorial Revenue, should be placed under its
control. When La Trobe "wrote to Earl Grey on
February 26th. 1852, he related the opposition he
had encountered with the Legislative Council. They
had imitated, he stated, a course of action which had
been followed but a short time before in the New
South Wales Legislature. He explained to Earl
Grey what steps he had taken to show the Council
the extraordinary circumstances which had arisen
since the Estimates were framed. This led them,
he said, to grant a partial relief; but they had left
him to meet, as best he might, the large expenditure
incurred from circumstances of absolute necessity.
La Trobe pointed out that, while the Council had
no control of the Gold revenue, they would not be
disposed to make grants from that which was under
their power, towards expenditure due to the gold
discovery. They maintained that the Territorial
revenue, including as it did the Gold revenue,
should meet vvhaj; were really its own obligations.
La Trobe then informed the Colonial Secretary that
necessity had forced him to use some of the Terri-
torial revenue for administrative purposes. The

""Discovery of Gold in Australia," 1851-3, p. 64.
"Ibid, p. 160.

1S3

Constitutional Development of Victoria.

action of the Legislature had compelled him to do
so, he said. He requested to be furnished with in-
structions as to his future course of action in dealing-
with the difficult situation which still confronted
both himself and his Executive.

On September 7th of the same year, the '"reply
dated June 2nd which Lieut.-Governor La Trobe re-
ceived from Sir John Pakington, the Colonial Sec-
retary, w^as placed before the Legislature. This
despatch dealt with the matter at issue between the
Legislative Council and the Lieut.-Governor as to
the source from which the expenses attendant upon
the gold discovery should be met. By this despatch
the proceeds arising from the Gold revenue were
handed over to the Lieut.-Governor and the Legis-
lative Council, to be appropriated to meet the in-
creased expenditure in the Civil Service. The sur-
render of this prerogative of the Crown was the sub-
ject of much congratulation to the Legislative Coun-
cil and the colonists of Victoria.

In this constitutional struggle, the first in the
political history of the Victorian Legislature, there
was no reluctance on the part of the Home Govern-
ment to yield the Gold revenue. It is quite true that
the power of the purse was demonstrated by the
action of the Victorian Legislative Council. They
had a grievance; therefore they practically withheld
supplies, as "far as they had the power, until the
injustice complained of had been rectified. .'\ situa-
tion, new both socially and politically, had unex-
pectedly arisen in Victoria in 1851, and Lieut.-
Governor La Trobe had to face the situation as best
he could. He tried to get aid from the General
Revenue, but the decision of the Council barred his

"V. and P., 18.-)2-:'., Vol. 1. Part 2, p. 720.

"Schedule "P." in the Act of 1K.">0 removed the salaries of tht
important Government officials o>it of the power of the Legislative
Council.

134

The Gold Revenue.

way. He ille.Qally drew on the Territorial Revenue,
because he had no alternati\e. The Home Go\ern-
ment, however, showed prompt and just dealing
over the Gold revenue, and "granted the request of
the Legislature as soon as it was able to do so.
This, however, detracted nothing- from the fact that
the \'ictorian Legislature had secured an important
constitutional triumph.

135

CHAPTER IX.

THE TERRITORIAL REVENUE.

The Victorian Legislature Seeks Its Full Control.

With regard to the Territorial Revenue derived
from the sale of Crown lands under the Act of 1842,
a different course was pursued by the Home
Government. We shall see how it dealt with this
matter, and with the request made by the Victorian
Legislature, on December 16th, 1851, that it might
control the Territorial Revenue.

'On June 2nd, 1852, Sir John Pakington replied
to the representations made to him by La Trobe
concerning the Territorial Revenue. He bore in
mind the action of the Legislature on November
26th, and the resolutions passed on December 16th.
He pointed out that the appropriation of the Land
Fund was fixed by the ^Land Sales Act of 1842. The
question of altering the policy of that Act would
necessitate much deliberation on the p^rt of the
Home Government. He quite recognised, at the
same time, through how critical a period Victoria
was then passing, and desired to avoid all controver-
sial topics. The Home Government, therefore,
authorised generally the application, with the advice
of the Executive Council, of 'the unappropriated
moiety of the Land Fund to the purposes required
by the exigencies of the existing crisis. The matter
was left, he said, in the hands of the Lieut.-Gover-
nor, to be dealt with as his judgment should dic-
tate, subject to the instructions given. Here, again,
as in the case of the Gold revenue, the British

•v. and p.. 1852-3, Vol. 1, Part 1. p. 720.

»Vide .') and 6 Vict.. Cap. .10, Section XIX.

'Half of the Territorial revenue derived froin^ the sale of Crown
lands in the Colony was devoted to assist emigration from the United
Kingdom to the Colony; the other half, called the unappropriated
moiety, was expended on the public service of the Colony.

136

The Territorial Revenue.

Government acted promptly, and as generously as
was consistent with reasonable caution. To have
altered the Laud Sales Act at once in order to meet
Victoria's requests would immediately have affected
the application of that Act in the other Australian
Colonies. Moreover, there was no guarantee that
the gold-mining in Victoria, which had so revolu-
tionised social conditions there, would become a
permanent source of great wealth to that province.
Still, the relief which was granted \yas very helpful ;
the concession granted by the Home Government
concerning the Territorial Revenue placed the finan-
cial situation of the Legislative Council upon an en-
tirely new footing. It gave the Executive Council
the means of meeting, to a great extent, the wishes
of the Legislature. ''Lieut.-Governor La Trobe
caused £300,000 to be transferred from the unap-
propriated moiety of the Territorial Revenue, and
placed "on the estimated W^ays and Means of the
General Revenue for 1853. This the Lieut.-Gover-
nor, with the advice of his Executive Council, was
empowered to do by the terms of Sir John Paking-
ton's despatch, of June 2nd, 1852. Lieut.-Governor
La Trobe stated that rather than retain in his own
hands the responsibility of appropriating so great an
amount to the General revenue, he had resolved to
place it at the unfettered disposal of the Legislature.

*V. and p., 1852-.3, Vol. 1, Part 1, pp. 227-8.

^Estimated Ways and Means for 1853, Shelving the Cold
and the Allotted Territorial Revenue
Customs . _ -

Postage - - -

Pilotage, Licenses, Fees, Fines, and Miscel-
laneous Receipts
Gold Licenses and Leases
Escort and Treasury Fees
Export Duty on Gold
Transfer from the Territorial Revenue

137

- £434.800

17,900
1.

37.900

- 505,000

63,000

- 375.000

300,000

£1,733,600

Constitutional Development of Victoria.

He expressed confident anticipation that the
liberality and judgment with which the Legislature
would meet him would justify the change which he
had made with respect to the temporary adminis-
tration of so large a portion of this revenue. The
sum thus allotted was the largest amount which
he considered that the primary and other charges
upon the Land Fund would prudently allow. In
receiving the right from the Lieut. -Governor to de-
termine the detailed expenditure of the grant from
the Teritorial Revenue, the Legislative Council
secured a considerable enlargement of its powers.

Though the Legislature had gained what was
really a constitutional victory with regard to the
unappropriated moiety of the Land Fund, the
majority of its members continued to strive for the
full use of that fund. "On December 9th, 1852,
after the House had resolved itself into a Coinmittee
of the whole for the consideration of the Estimates
of 1853, the following resolution was agreed to : —
"That in the opinion of the Committee the exigen-
cies of the Colony are so great that the unappro-
priated moiety of the Land Fund is necessary for
the general wants of the Colony." An address con-
veying this resolution was sent to the Lieut.-
Governor. \\nien replying to the Council on the
following day, La Trobe stated that, in case it was
found that the General Revenue of 1853, with the
assistance of the £300,000 transferred, as proposed,
from the Territorial Revenue, was insufficient, he
would consult his Executive about the matter. He
would consider it his duty, he said, under the ad-
vice of his Executive Council, to make up the de-
ficiency, as far as possible, from the balance of the
unappropriated moiety of the Land Fund. He con-
sidered that he was empowered to do this under the
recent authority conveyed by Sir John Pakington's

«V. and p., 18.-.20. Vol. 1. Part 1, p. ,304.

138

The Territorial Revenue.

despatch, of June 2ncl, \H52. But if the object of
the Council, in its ])rcsent request, was to induce
the IJeut.-Govcrnor to pledge liimself to an uncon-
ditional transfer of the unappropriated moiety of
the Land Fund to the General revenue, to be placed
on the Ways and Means, he stated that to comply
with such a request was quite out of his power.
Such a ])roceedino- on his part would not be justified
without the express sanction of Her Majesty's
Government. He promised that the opinion of the
Council should be brouoht under the notice of the
Home Government without unnecessary delay.
'When the Lieut.-Governor was addressino; the
Legislature on February 8th. 1853, he stated that
he" quite agreed with the Council in considering
that the whole of the unappropriated moiety of the
Land Fund might be expended upon the general
wants of the community, in view of the present
state and prospects of the Colony. The question of
the full control of the unappropriated moiety was
not, however, to be the subject of a prolonged dis-
pute.

When Sir John Pakington's despatch, dated
December 15th, 1852. arrived, inviting the Victorian
Legislature to draw up a new Constitution suited
to the needs of the Colony, it was at once recog-
nised that the full control of the Land Fund would
pass into the hands of the Legislature within a
comparatively short time. On October 23rd. 1855,
the repeal of"^ the JVastc Lands Act of 1842 and the
new Coiistiliitiou Act of Victoria were received by
Governor Hotham. Both Acts were gazetted on
November 23rd of the same year, and the control
of the revenite derived from Crown lands in Vic-
toria passed into the hands of the Parliament of that
Colony.

'V. and P., 18.j2-f,, Vol 1, Part 1, p. 41.3.

139

CHAPTER X.

THE WANT OF CONFIDENCE MOTION.

Its Significance.

In the early "fifties," the Argus kept a permanent
notice at the head of its reports on the proceedings
■of the Legislative Council. This notice was in-
tended to serve as a caution to those who read the
accounts of the Council's decisions, not to consider
that they expressed the views of the colonists of
Victoria. Since by the Act of 1850, one-third of
the Legislature consisted of nominees of the Crown,
of whom half were official, and since the Executive
was responsible, not to the Legislature, but to the
Lieut.-Governor, and because the great mining com-
munity did not participate in the franchise, the
Argus concluded that a Legislature so constituted
was simply a mockery of representation. Was there
any justification for this conclusion? In the light
of the extraordinary advance made by Victoria in
wealth and population, because of her rich gold-
fields, there was a considerable amount of truth con-
tained in the warning. The Constitution designed
to meet the needs of Victoria, at the time of her
separation from 'New South Wales on T"ly 1st. 1851,
was by no means suitable for that Colony when it
"began to be thronged with tens of thousands of
miners who had come from almost every civilised
country in the world. Social and political condi-
tions liad altered very much in Victoria ; the Con-
stitution, which was generally suitable in 1851,
needed considerable revision by 1853. Definite and
sustained efforts to achieve that result would,
doubtless, have been made had not the New South
Wales Legislature practically saved Victoria the
need of a request f(jr a recasting of the Constitution

140

The Want of Confidence Motion.

in force. The remonstrances from the New South
Wales Legislature to the Mome Government in 1851
and 1852 accomplished that object. In the mean-
time, however, Victoria's rapidly increasing- popu-
lation, with the problems attendant upon such an
increase, called for the presence of a strong Execu-
tive ; but at that time the Executive Council was
deficient in men of administrative ability. Mr. H,
S. Chapman, in his booklet, "Responsible Ministries
for the Australian Colonies." published at Idobart
Town in 1854, pointed out that, in the midst of diffi-
culties of no ordinary kind owing to the gold dis-
covery, Lieut.-Governor La Trobe possessed the
weakest Executive of all the Australian Colonies.
Mr. Westgarth also stated, in his book, "Early Mel-
bourne," that when Dr. C. Nicholson (afterwards Sir
Charles), the Speaker of the New South Wales
Legislative Council, paid a visit to the Victorian
Legislature during the early period of its political
existence, he expressed rather pronounced opinions
upon the apparent lack of political talent in the
Council. His adverse criticism was not entirely
sweeping; Mr. W. F. Stawell, the Attorney-General,,
was singled out as a man of fine ability.

Eicaring in mind the evidence furnished by these
two contemporary writers, we may now turn to-
examine an interesting political situation and a
'Parliamentary debate which took place in the Vic-
torian Legislature on November 23rd, 1852. On
that day a motion was brought before the Legisla-
ture. It ran as follows : — "That the House, occupy-
ing the position of an authorised organ for expressing
the opinion of the colonists of Victoria, cannot,
without being guilty of a dereliction of duty, longer
abstain from recording its conviction that the ad-
ministration of the Executive Government is not
characterised by such an amount of intelligence.

'See "Argus," November 24th and 25tli, 1H52.

141

Constitutional Development of Victoria.

promptitude, and vigor, as is imperatively called for
by the exigencies of the times, and absolutely essen-
tial to the peace and welfare of the Colony." The
import of this motion was not disguised in any way.
It was plainly a "want of confidence" motion against
the Executive. At this time only two members of
the Executive Council had seats in the Legislature.
These were the Colonial Secretary and the Attor-
ney-General. The other two members of the
Executive Council, the Treasurer and the Collector
of Customs, had not been deemed sufficiently com-
petent by the Lieut.-Governor to undertake Minis-
terial work in the Legislature. The members of the
Executive were, of course, responsible to the Lieut.-
Governor, and not to the Legislative Council ; all
the official nominees in the Legislature owed re-
sponsibility to the Lieut.-Governor alone. During
the debate which arose after the motion was placed
before the House, the view was put forward that
the existing state of affairs in the Colony peculiarly
•demanded a vigorous and capable administration of
the public business. It pointed out that an in-
judicious recognition of claims to 'office, on the
ground of past service, had led to several depart-
ments of the Public Service being so feebly manned
iis to diminish the confidence of the colonists in the
Government. That the paramount interests of the
Colony should be sacrificed to any such secondary
considerations was strongly protested against. It
was felt that the services of incompetent servants of
the Crown could be reasonably rewarded without
placing them upon the Executive.

When the Auditor-General rose to speak upon
this "want of confidence" motion, he made some
valuable comments upon the political situation. He
desired that members would consider the effect that

*Sce chapter on "Executive" for memliers of first and second
Victorian filxccutivc Councils who had held official positions in the
Port Phillip District prior to July 1st, 1H51.

14-2

The Want of Confidence Motion.

this motion would hcue, that is, taking into con-
sideration the Constitution of tiie IJouse, and the
position it held vvitli regard to the Lieut.-Governor.
He pointed out that, when a "want of confidence"
motion was brought forward in the Council, and
when a similar motion was brought forward in the
House of Commons, the results were bound to be
different. When such a motion was carried in
England, the Government resigned their seats; but
in X'ictoria no such results could follow, and the
motion was calculated to produce injurious effects.
He recommended the House to investigate the par-
ticular points upon which the Government was stated
to be weak, and to let the allegations against the
public servants go fairly before the country. It
would be a pity, the Auditor-General thought, if the
House agreed to the terms of the motion, as it would
take away a great deal of influence which the
Government had, and ought to have, in the Colony.
The Chairman of General Sessions spoke in similar
terms concerning the motion. He drew attention
to the fact that the Government, as then constituted
under the 1850 Act, was not a responsible one. The
present motion, therefore, he argued, could only be
productive of evil by unsettling the minds of the
colonists.

The speeches by the Auditor-General and the
Chairman of General Sessions pointed out clearly
that, even if the motion passed the House, it could
serve no practical purpose. There was no such
thing as Responsible Government in Victoria under
the existing Constitution. Both speeches were con-
stitutionally sound. The Auditor-General was also
right in maintaining that, if the Government suf-
fered a defeat with regard to the motion, it would
lose a great deal of the influence which it should
rightly possess. Such, then, were the arguments
advanced by these two speakers to urge the rejec-
tion of the motion.

143

Constitutional Development of Victoria.

An 'amendment, which really went the full length
of the motion, was brought before the House by a
representative member. When the wording of the
motion was put to the House, it was defeated by
only two votes. The form of the amendment was
supported by the mover alone. There therefore
remained no further question before the House, sa
that the motion was, in effect, lost. Had the
amendment been first disposed of, in a plain, straight-
forward manner, it would have been negatived by
a large majority. The mover of the amendment
could then have voted for the motion. That would
have made the voting equal. There was little doubt
in what direction Dr. Palmer, the Speaker, and an
elective member, would have cast his vote. All the
possibilities of a victory for the "want of confidence"
motion were in the House ; a complicated system of
putting a question to the vote caused the potential
victory to be lost. Had the "want of confidence"'
motion passed in the House, it was, of course, quite
open for the Ministerial ofticers to resign volun-
tarily, as did Mr. Foster, Colonial Secretary, on
December 9th, 1854. He proffered his resignation to
Lieut. -Governor Hotham, because he felt that public
opinion was completely against him. This action
was really an acknowledgment of Ministerial respon-
sibility to public opinion and to the Lieut.-Governor,
but not to the Legislature. Mr. Foster explained to
Sir Charles Hotham that he had no wish to em-
barrass him in the work of administration. Some-
thing similar could possibly have happened had vic-
tory instead of defeat attended the "want of confi-
dence" motion placed before the House on Novem-
ber 23rd, 1852. The heavy voting for the wording
of the motion was full of j)olitical significance.
There was plainly a growing desire to put the aff^airs.
of Victoria into the hands of more competent men.

•"Argus," November 25th. 1852.
144

The Want of Confidence Motion.

The Colony, so wonderfully stimulated by its ex-
traordinary increase in population and in wealth,
stood in need of a thoroughly capable Executive to
administer its affairs. That was the very least the
times demanded, though a complete remodelling- of
the Constitution was the only real remedy to meet
the changed social and political conditions of Vic-
toria. The character of the Executive Council did
improve. Between December, 1852, and 1855, the
Executive became ^strengthened both in numbers
and in administrative ability. No further "want of
confidence" motion was made against it. Within
one month of the "want of confidence" motion of
November 23rd, 1852, Sir John Pakington, the Sec-
retary of State for the Colonies, wrote a despatch to
Lieut.-Governor La Trobe, inviting the Legislature
of Victoria to draw up a Constitution suited to the
needs of their Colony, and based on lines similar to
those of the Canadian Constitution. This the Vic-
torian Legislature did, and on November 23rd, 1855,
the New Constitution for Victoria was proclaimed.
With its proclamation, the era of Responsible
Government in Victoria also commenced.

*See chapter on "E.xecutive."

145

CHAPTER XI.

"THE CONVICTS PREVENTION ACT."

TJie Royal Prerogative Contested — The Triiunph of the
Legislative Council.

In 1788, vessels conveying convicts from England
arrived in Botany Bay, New South Wales ; but the
place being found unsuitable for a settlement, the
prisoners were landed at Port Jackson. These were
the first convicts sent to Australia. Van Diemen's
Land, a dependency of New South Wales, soon re-
ceived its quota of criminals, and later acquired an
unenviable reputation as a penal settlement. The
Port Phillip District was opened up in 1835, and
Captain Lonsdale, who took charge of that District,
as Police Magistrate, on September 29th, 1836, soon
afterwards 'requested the Governor of New South
Wales to send him a number of convicts. These he
required to furnish the labor necessary to erect
buildings and to cut out the streets of the infant
settlement which Sir Richard Bourke, Governor of
New South Wales, soon afterwards named Mel-
bourne. In June, 1837, he asked for the assistance
of additional convicts. Earlier in the same year,
Captain Lonsdale complained that many of the worst
characters, who had served their sentences in Van
Diemen's Land, resorted to the Port Phillip Dis-
trict. Lonsdale had difficulty enough with those
under his authority without these undesirable immi-
grants from Van Diemen's Land, whose jiresence
presented a difficult ])roblem to him. He requested
the Governor at Sydney to send him more police. In
addition to the convicts under Lonsdale's authority,

'"Captain Lonsdale and the Foundation of Melbourne," by Pro-
lessor E. Scott. "Victorian Historical Magazine," Vol. 4, p. 106.

14G

" The Convicts Prevention Act."

and those who came from Van Diemen's Land after
the expiration of their sentences, there were in the
Port Phillip District "assigned" convicts, whom
squatters and others had brought in as servants.

As far as the Home Government was concerned,
no attempt was made to send convicts to Port Phillip
until 1849. ''"Arden's Information" stated that a
very important feature of the Port Phillip District
was the absence of the penal system. It described
the District as "emphatically the free province of
New South Wales." Certainly, it was not a dump-
ing ground for convicts, as in the case of Sydney and
Van Diemen's Land. Though the penal system was
not in force in the Port IMiilHp District, we have
seen that many convicts were introduced for the
reasons already given. Sir George Gipps. the
Governor of New South Wales, when writing to
Lord Glenelg in October. 1838, had to acknowledge
that the convicts formed a considerable portion of
the settlement of Port Phillip, tlK)Ugh Lord Glenelg
had previously asked him to limit the number of
convicts there as much as possible. Sir Geo'!;e
Gipps frankly acknowledged that he had not been
successful in preventing their Ijeing taken there.

'Between 1821 and 1830 emigration from Great
Britain to Australia was but a trickle; but early in
1831 provision was made by the Home Government
to use part of the Land Fund for the purpose of as-
sisting emigrants to Australia. With the increasing
tide of free settlers, a feeling of revulsion against
the penal system sprang up in all the Australian
Colonies. Strong protests were made to the Home
Government, who abandoned transportation to New
South Wales in 1840. That system, however, w^as
continued to Van Diemen's Land until 1853, and to

*Arden's "Information Concerning Australia Felix," Chapter 6,
p. SI.

^'"Colonization of Australia, ISli.'^ 42," by Dr. R. C. Mills, pp.
178. 180, 201.

147

Constitutional Development of Victoria.

Norfolk Island until 1855. 'Between 1844 and 1849
the Port Phillip District received prisoners who had
undergone reformatory treatment at the Millbank
and the Pentonville prisons in England. On being
landed at Port Phillip, they were free to go where
they chose, but could not return to England until
the expiration of their sentences. These "Penton-
villains," as the colonists named them, were regarded
by a large section of the colonists as most unwel-
come. The reformatory system of ]\Iillbank and
Pentonville had not turned out the success antici-
pated, and the British Government determined to
renew the transportation system to New South
Wales. When, on August 8th, 1849. the "Randolph"
brought a shipload of convicts to Melbourne, the
colonists refused to allow them to land. The
"Hashemy," with a cargo of "Pentonvillains," re-
ceived similar treatment in the following May, and
was compelled to proceed to Sydney. In September
of 1849, the "Neptune," with 181 convicts, had been
sent from England to Simon's Ba}^ South Africa,
but the colonists there positively refused to allow
the convicts to be landed. °Sir C. P. Lucas, speaking
of the Simon's Bay incident, considered that this
refusal to receive the convicts w^as one of the most
emphatic pronouncements of Colonial right in ad-
vance of Colonial Self-Government.

The colonists of Port Phillij) also deserved equal
commendation for their resistance against the land-
ing of convicts on their siiores in 1849. Though they
had successfully prevented their District from be-
coming a direct receptacle for convicts from Eng-
land, they were not ecpially successful in debarring
their introduction by indirect means. Escaped con-
victs, conditionally-pardoned men. ticket-of-leave
men, and expirees continued to arrive in the District

«"A Short History of Australia," Chapter XVII., by Professor
E. Scott.

•"Lord Durham's Report," edited by Sir C. P. Lucas, Vol. 1, p. 13.

148

*' The Convicts Prevention Act."

from Van Diemen's Land. When the news of the
rich g-oldfields in Victoria reached Van Diemen's
Land in 1851, these people came over in "greatly in-
creased numbers. The city of Melbourne and other
parts of the Colony became inundated with convicts
from Van Diemen's Land. Deeds of violence com-
mitted by them were common; the colonists l)ecame
-seriously alarmed. The question of preventing further
ingress of convicts into Victoria from Van Diemen's
Land was regarded as crucial at the elections
for the Legislative Council. Candidates' addresses
published in the newspapers almost invariably stated
that those seeking election regarded the convict
question as one demanding immediate attention.
The firm stand taken later by the elected mem])ers
of the Legislative Council upon the convict ques-
tion was due largely to the fact that they represented
public opinion on this matter. The Lieut.-Governor
of Van Diemen's Land, Sir William Denison, placed
certain active agents in Victoria for the detection
and apprehension of offenders who had been trans-
ported to Van Diemen's Land, and were illegally at
large in Victoria. A better solution of the problem,
however, became most urgent.

In view of the influx of convicts into Victoria,
and their growing menace to society, Lieut.-Gover-
nor La Trobe 'began to prepare a Bill in order to
cope with the situation. His intention, however,
was anticipated by an elective member bringing in
a "Bill for the apj^rehension of offenders illegally at
large, and for their ready transmission to the coun-
tries from which they had escaped. To this Bill, after-
wards commonly known as the ^Convicts Prevention

'"Discovery of Gold in Australia," ISol-.l, Vol. 1, p. 118; Lieut. -
Governor Denison to Earl Grey.

'Sess. Papers, 1S52-3, Vol. XVIII., p. 506.

"A Convicts' Prevention Bill had been brought before the House
•on July 9th, but was withdrawn.

*The title of the Act was, "\n Act to facilitate the apprehension
and prevent the introduction into the Colony of Victoria of offender*
illegally at large." (Vide Vict. Statutes, Act XIII.)

149

Constitutional Development of Victoria.

Act, La Trobe gave his assent on September 23rd,

1852. The drastic character of this Act may be seen

from the following portions of it, which stated: —

Section 1. — That any person who brought by

ship to Victoria any runaway convict, or

any convict coming in under cover of any

conditional pardon, or ticket-of-leave^

was liable to a fine of £100 or six months'

imprisonment ;

Section 2.— That offenders illegally ai large

could be arrested without warrant ;
Section 4. — That male offenders illegally at
large were liable to hard labor in irons for
three years; females, to imprisonment and
hard labor for two years ;
Section 5.— That all property found on persons
convicted of being illegally at large would
be forfeited.
The refusal of the Royal sanction to this Act, on
two subsequent occasions, roused public indigna-
tion in Victoria, and caused the Legislative Council
to act in defiance of the prerogative of the Crown.
The Argits named the disallowed measure "The
Apple of Discord." The Convicts' Prevention Act
certainly was, as we have seen, stringent in its pro-
visions; and the Lieut.-Governor of Van Diemen's
Land urged Sir John Pakington. the Colonial Secre-
tary, to secure its '"disallowance. He asked for its
rejection, because a convict to whom the Queen had
granted a pardon for the offence for which he was
transported, conditional on his continued absence
from the United Kingdom, was, by this Act, treated
as a felon illegally at large. When Lieut.-Governor
La Trobe sent the Act home to England, he
acknowledged that the zeal and haste of the framers
of the Bill had induced them "to "overlook many

"Sess. Papers, Vol. XVIII, p. 48.1. October 2nd, 185:?.
"Ibid., p. 50C, December 2nd, 1H.">2.

150

" The Convicts Prevention Act."

salient principles of constitutional liherty." He
added, however, tliat he felt it to be his duty, under
the extraordinary circumstances and peculiar exigen-
cies of the period, to yield the Royal assent. At
the same time, he mentioned that the Uill was for
two years only. He also furnished data to support
his reason for sanctioning the Bill.

In the following '^ear, the Duke of Newcastle
notified Sir William Denison, the Lieut. -Governor,
by a despatch dated February 22nd, 1853, that no
more convict ships would be sent to Van Diemen's
Land. This was good news, not only for that island,
but also for Victoria. A considerable time, how-
ever, would elapse before Victoria derived much
benefit from the cessation of transportation to Van
Diemen's Land, and in the meantime convicts would
continue to pass over to the Colony of Victoria. It
was hoped in Victoria that the Convicts Prevention
Act would relieve the situation, but the Duke of
Newcastle's "despatch to Lieut.-Governor La
Trobe on April 30th, 1853, brought the un-
welcome news that the Act had been dis-
allowed. The Duke of Newcastle stated that
he was unable to understand the Act to
which La Trobe had assented on September 23rd of
the previous year. He could only infer from it that
the holder of a conditional pardon was to be adjudged
by the courts of Victoria to be an oflfender illegally
at large. This was, he pointed out, a practical in-
terference with the Queen's prerogative of pardon,
and on this ground the Bill was disallowed.

This decision on the part of the Home Govern-
ment caused the Victorian Legislature, on October
5th, 1853, to pass the Convicts "Prevention Act Amend-

"Sess. Papers, 1852-3, Vol. XVIII., p. 5:?2. Lieut. -Governor La
Trobe also notified. Ibid, p. .')77

"Sess. Papers, 1^52-3. Vol. XVIII., p. 577.

"Its title after passing the third reading was "An Act to amend
the law relating to offenders illegally at large." (V. and P., 1853-4,
Vol. 1, Part 1).

151

Constitutional Development of Victoria.

ment Bill, which was even more stringent than the
Act of September 23rd of the previous year. At
its second reading, it passed with thirty-four votes
in its favor, and only seven votes against it. At the
third reading, the Government practically withdrew
its opposition ; the second reading had shown the
temper of the House. The Lieut.-Governor did not
assent to the Act, but he promised to withhold the
disallowance of the original Act until the British
Government had been communicated with. On
"October 21st, an address to the Queen, setting out
the reasons for passing the Convicts Prevention Act
Amend>nc}it Bill, received the approval of the House,
The address stated that the Legislature had no de-
sire to impinge upon the Royal prerogative. They,
however, viewed with alarm the withholding of the
Royal assent to the Convicts Prevention Act, because
of the great dangers to the colonists from the con-
vict element. The demoralising effect of the influx
of convicts from Van Diemen's Land was looked
upon as a serious menace to the social life of the
colonists of Victoria. The frequency of crime in
the Colony was appalling. Hence the Legislature
had passed a measure similar to that which had been
disallowed.

The re-enactment of the Convicts Prevention Act
created a crisis in Victorian political history, and
tested the unity of the Legislature over this ques-
tion. Some years before, the New South ^^'ales
Legislature had passed the Lien on Wool Act, which
was assented to by the Governor, but disallowed by
Lord Stanley. It was disallowed twice. On the
third re-enactment the Minister withdrew his op-
position. The Lien on Wool Act, however, did not
directly involve the prerogative of the Crown, as did
the Convicts Pre7'cntion Act. By passing anew the
first Act, the Victorian Legislative Council prac-

"Ibid., Subdate.

152

" The Convicts Prevention Act."

tically declared that they knew better than Her
IMajesty's advisers in England what was the best
course to pursue, in order to deal effectively with
the influx of convicts from Van Diemen's Land into
Victoria. There was a determined claim on the part
of the \'ic^orian Legislature to control the develop-
ment of the social condition of the Colony. This
determination was the more remarkable, because
Responsible Government had not yet been intro-
duced into Victoria. Before the dispute reached its
final stages, Lieut.-Governor La Trobe had left Vic-
toria on May 5th, 1854. His successor, Sir Charles
Hotham, landed in Melbourne on the 21st of the fol-
lowing month.

Prior to leaving England the new Lieut.-Gover-
nor had had two interviews with the Duke of New-
castle concerning the disallowed Convicts Prcvcntiofi
Act. He had suggested to the Duke of Newcastle
that certain localities in Victoria should be specified,
out of which it would be illegal for conditionally-
pardoned men to reside, and that every month such
men should appear before a magistrate. With these
suggestions the Duke of Newcastle concurred, and
directed Sir Charles Hotham to use his best en-
deavors to reconcile the views entertained by the
British Government on the subject of conditionally-
pardoned men with those held by the Legislature of
Victoria, ^^'hen Sir C. Hotham left England for
Victoria, he felt satisfied that he would be able to
restore a harmonious feeling between Victoria and
the Home Government on this question. As he
himself, however, acknowledged later, he had quite
miscalculated the feeling of the colonists over this
iDurning question.

On March 15th, 1854, Sir W. Denison, the Lieut.-
Governor of Van Diemen's Land, "informed the
Secretary of State that some conditionally-pardoned

"See "Argus," October 12th. 1854.

153

Constitutional Development of Victoria.

men had been sent from Victoria, while others he
knew of were working on the roads of that Colony.
So Sir Charles Hotham received "instructions that
if he found these complaints by Lieut.-Governor
Denison to be true, he was, without delay, to cause
free pardons to be issued to such alleged offenders
against the Act. The news of this decision by the
Home Government caused great dissatisfaction
amongst the colonists of Victoria, and the deter-
mination to maintain the Bill was plainly shown
when the ^^Convicts Prevention Act was passed for
the third time by the Legislative Council, on Novem-
ber 15th. On the following day. the Lieut.-Gover-
nor, Sir Charles Hotham, acting on the advice of
the Law Officers, gave his assent to the Bill. His
legal advisers stated that as the Act was for one
year only, it would not be an infringement on the
Royal prerogative. When Sir Charles Hotham
"wrote to Sir George Grey, on November 18th. con-
cerning this Act, he explained very fully what other
considerations beside the advice of the Law Officers
had led him to assent to the Act. He wrote. "I
have good grounds for believing that, had I refused
to affix my signature to the Influx of Criminals Pre-
vention Bill, the people would have taken the law
into their own hands, and justified it on the grounds
that the Goxernment had left them no alternative."'
Later, on """April 2nd, 1855, he again wrote to Sir
George Grey, and reiterated the views expressed in
his despatch of November 18th of the previous year.
In one part of his letter, he said, "I found the Colony

"Ibid., for despatch dated June 24th, 1854.

'*On October 10th, 18.54, the Lieut.-Governor transmitted to the-
Legislature for consideration, "A Bill to prevent the influx of un-
reformed criminals into Victoria." The Colonial Secretary claimed
that the measure was free from the objectionable clauses of the old
liill. A select committee appointed to examine it declined to recom-
mend it to the Legislature. (See Parliamentarj* Debates, "Argus,""
<')ctober 12th. 1854).

"Despatch IJook, p. ^501 ; Library, Executive Council's Room,
Treasury Building.

"Ibid., p. 394.

154

" The Convicts Prevention Act."

united in determination not to sanction the admis-
sion of men who had been convicts, and resolved ta
proceed to any length, in measures of resistance."
The real attitude of the colonists on tlie convict
question was thus plainly stated to the Home
Government.

When Lord John "Russell, on June 4th, 1855, re-
plied to Governor Hotham's despatch of November
18th, 1854, he dealt with the question of the Con-
victs Prevention Act in a comprehensive and critical
manner. He reviewed the Act to which Lieut.-
Governor La Trobe had ^iven his assent on Sei)tem-
ber 23rd, 1852, and pointed out that the despatch,,
which accompanied the Act assented to, was mis-
leading. He challenged the right of the Victorian
Legislature to include "conditionally-pardoned"
men amongst those "illegally at large," and drew at-
tention to the fact that the Home Government had a
duty to perform to Her Majesty's subjects in main-
taining the right of those who had received the
Crown's pardon. He then remarked that, if Vic-
toria was still seriously infested with offenders of
the convict class, as Sir Charles Hotham's despatch
of November 18th had informed him, the Act which
the Legislature sought to renew must have failed to-
be effective. Having discussed the subject at con-
siderable length, he continued, "It is impossible that
Her Majesty's advisers can recommend or allow
such a law to remain in operation in one of her
Colonies. I shall not, however, advise the imme-
diate disallowance of the Act; I shall await your

reply to the despatch I therefore give you

notice of the course which Her IVIajesty's Govern-
ment feel it incumbent upon them to adopt, in order
that measures may be taken for substituting for it
an Act free from the serious objections to which it
is liable." He suggested that the [legislature should

"Despatches from the Secret.iry of State, Vol. S, pp. 17-37, 1855;
Library, Executive Council's Koom, Treasury Building.

155

Constitutional Development of Victoria.

pass a Police or Vagrancy Law to meet the exigen-
cies of the case, and that the convicts and condi-
tionally-pardoned men should be excluded from the
■goldfields and their neighborhood.

No reply to this despatch was sent to the Colonial
•Secretary by Sir Charles Hotham before his death,
which occurred on December 31st, 1855. It is quite
■evident from the discussion which took place in the
House in January of the following year, when the
Convicts Prevention Act came up for renewal, that
the contents of Lord John Russell's despatch of
June 4th, 1855, were known to very few.

^^'e shall now investigate the circumstances con-
nected with the passing of the Convicts Prevention
Act by the Victorian Legislature, for the fourth
time, and note upon what grounds Major-General
Macarthur, the officer administering the iGovern-
ment, justified the giving of his assent to it.

On January 11th, 1856, a Bill entitled the Influx
•of Criminals Prevention Act Continuation Bill was in-
troduced by the Chief Secretary, Air. W. C. Haines,
and read in the House for the first time. When he
moved the second reading of the Bill on January
15th, he was asked by Mr. Nicholson whether the
Government had received any instructions relative
to the last Convicts Prevention Act sent home. Had
the Royal assent been given to it ? The Chief Sec-
retarv stated in reply that he was not then in a posi-
tion to say what had been the decision of the Home
Government. He. however, promised the House
that he would take an early opportunity of ascer-
taining what the situation was in regard to that Act.
A week later, the Chief Secretary explained to the
House the exact position of the Act sent home in
the previous year for the Royal sanction. The
Home Government had not disallowed the Act, but
liad expressed themselves as not satisfied with it,
and were anxious that it should be amended. It
Avas the opinion of the Imperial Parliament that all

156

" The Convicts Prevention Act."

persons holding Her Majesty's conditional pardon,
and not residing in one or other of the goldfields,
should not be interfered with, and that those
of this class who located themselves on the gold-
fields should be visited with a penalty. The Chief
Secretary then proposed the continuation of the Act
of November 1854, and pointed out that) any measure
limited in its operation to the goldfields would have
ni) eft'ect.

Mr. Greeves asked the Chief Secretary if
there w^ere any objections to the despatch from the
Home Government being produced. In reply, the
Chief Secretary said that he did not feel warranted
in producing it at the time. The ^''Bill was then read
the third time and passed. Thus did the Convicts-
Prevention Act for the fourth time pass in the Legis-
lative Council of Victoria. The Officer administer-
ing the Government, Major-General Macarthur,
gave his assent to it on February 5th.

What the contents of that despatch were which the
Chief Secretary did not divulge to the House, we
have already discussed. We can compare his answer
to the Legislature with the strongly-expressed sen-
tences in the despatch, and note how guardedly the
Chief Secretary worded his reply. It would seem
from the Chief Secretary's answer on January 15th^
either that he did not know of the despatch or else
he had been instructed not to give the information it
contained, without the Governor's permission. The
tone of Lord Russell's despatch was not calculated
to soothe popular feeling, either inside or outside the-
House, on the question of the Convicts Prevention
Act. Victoria was still unsettled after the miners'
conflict with the Government at Ballarat towards
the end of the year 1854, and public feeling had

"The title of the Act was, "An Act to continue for a limited period
an Act, intituled 'An Act to prevent the influx of criminals into Vic-
toria.' " The Act was to continue in force and effect for one year

157

Constitutional Development of Victoria.

turned rather against the Governor. In addition to
these causes of unrest, the colonists were getting
very impatient, owing to the delay of the Consti-
tution Act which was to bring them Responsible
Government. It is quite easy to understand why
Governor Hotham would, for a time, prevent the
contents of Lord Russell's despatch from becoming
generally known.

On April 14th, 1856, Major-General '^]\Iacarthur
"vvrote to the Colonial Secretary. Mr. Labouchere. in-
forming him that, acting on the advice of the Attor-
ney-General, he had given his assent to the renewal
of the Convicts Prevention Act, on February 5th. He
stated that the reasons which had actuated the late
Sir Charles Hotham to assent to the preceding Act,
and which had been set out in the despatch of
November 18th, 1854, had also greatly influenced his
own decision. On the following day, "April 15th,
he addressed a lengthy despatch to ]\Ir. Labouchere
on the subject of the Act to which he had given his
assent. This despatch was really the official reply
to Lord John Russell's despatch of June 4th, 1855,
sent to the late Governor Hotham. The opening
part of Major-General Macarthur's despatch plainly
indicated that he felt considerable difficulty in
ans^\■ering Lord John Russell's communication,
especially as he had assented to a measure the re-
newal of which Lord John Russell had intimated
would not be allowed. He pointed out the extra-
ordinary conditions which prevailed in the colony,
and stated that the people would not ])ermit unjust
enactments to remain long unrepealed or allow an
improper or harsh application of them. He ex-
plained that a Vagrancy Act or Police regulation,
as suggested by Lord John Russell, would not be
effectual in a country thinly peopled like Australia,

"Despatcli Book, Vol. 2, p. 6.31; Executive Council's Room,
Treasury lluilding.
»«Ibid., pp. iWZ-l.

15S

" The Convicts Prevention Act."

or pre\ent convicts from niint;lin<4" with the popula-
tion residing at the numerous golclfieUls of Victoria.
He asked the Home Government to consider the jus-
tice and propriety of allowing the colony of Victoria
to continue, from year to year, to legislate for itself
with respect to this exceedingly dilificult and most
-embarrassing question. He acknowledged that the
legislation in this particular might be at variance
with the general law of the realm, but argued that
as necessity and self-protection had been shown to
be the causes of the Legislature's action, it might
be well to allow the colonists of Victoria to provide
for their own safety. He made these remarks, he
said, "with great submission," but he felt that in the
responsible position which he occupied, he could
neither fulfil his duty to Her Majesty nor to the
colonists if he did not present the situation as he
had done.

The reply to this despatch which came from the
Colonial Office on ^'August 8th, 1856, was a very
short one, but it was quite definite, and eminently
satisfactory to the Legislature and the colonists of
Victoria. .After acknowledging the receipt of the
last Convicts Prevention Act to which Major-General
Macarthur had given his assent, and noting the
reasons he had advanced for so doing, the Colonial
Secretary, Mr. Labouchere, stated that, as the Act
was only of a temporary nature, it was not con-
sidered expedient by the Colonial Office to renew
the discussion on the subject.

In not forcing an issue with the V^ictorian Legis-
lature over the fourth enactment of the Convicts
Prevention Act, the Home Gox'ernment again evinced
that new spirit in British Colonial Policy already
shown to Victoria and New South Wales by the
surrender of the Gold revenue, and by the invitations

"Despatches from the Secretary of State, Vol. 9, pp. 599-600;
Executive Council's Room, Treasury Building.

159

Constitutional Development of Victoria.

sent out on December 15th, 1852, to New South
Wales, Victoria and South Australia, to draw ui>
constitutions suited to their respective needs. Never-
theless the Legislative Council of Victoria achieved
a constitutional victory. It gave evidence over the
Convicts Prevention Act of a steadfastness and
tenacity of purpose not unworthy to rank with some
of the Parliamentary stands made in England in the
seventeenth century against certain prerogatives of
the Crown. Sheer necessity and self-defence forced
the Victorian Legislature to enact and to re-enact
the Convicts Prevention Act — a kind of Defence of the
Realm Act — in order to protect the colonists against
dangers from individuals of the convict class. The
fact that Sir Charles Hotham and Major-General
Macarthur each assented to the Act, in spite of the
Home Government's instructions to the contrary,
was proof conclusive not only of the temper of the
colonists at that time, but also of the real necessity
for the Act itself.

160

"The Convicts Prevention Act."

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APPEXDIX.

(.]) IJst of Members of tlic Lcf/islatkr Council of
I'lctoria, Xovcinbcr iitli, /(Vj/, to March 20th, 18^6.

{B) List of Members of the Ut^f'er and the Lozcer House
of I'ietoria^- first Farliaiiumt, Xoreiubcr 21st, iSf^d.

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181

Constitutional Development of Victoria.
(B). VICTORIA'S FIRST PARLIAMENT.

Members of the Legislative Council.

Central Province — John Hodgson; John Pascoe Fawkner;

Henry Miller; John Hood; Nehemiah Guthridge.
South Province — Donald Kennedy; Thomas Herbert Power;

William John Turner Clarke ; Thomas McCombie ;

John Barter Bennett.
South-Western Province — James Ford Strachan; Robert

Cuthbertson Hope; James Henty; William Roope;

James Cowie.
Western Province — Stephen George Henty ; Andrew Rose

Cruikshank ; Daniel Joseph Tierney ; James Frederick

Palmer; Charles Vaughan.
North-Western Province — John Allan ; Dennis Patrick Keogh ;

George Urquart ; John Hunter Patterson ; William

Henry Fancourt Mitchell.
Eastern Province — Matthew Hervey ; James Stewart ; Robert

Thompson; William Kaye; Benjamin Williams.

Members of the Legislative Assembly.

Melbourne — David Moore; Archibald Michie; William Foster
Stawell ; John Thomas Smith; John O'Shanassy.

St. Kilda — Frederick James Sargood ; Thomas Howard
Fellows.

Collingzuood — George Harker; Thomas Embling.

South Mielbourne — Andrew Clarke.

Richmond — George Samuel Evans ; Daniel Stodhart Camp-
bell.

Williamstoivn — John Leslie Vesey Fitzgerald Foster.

Brighton — Jonathan Binns Were.

Geelong — Alexander Fyfe; Charles Sladen; Charles Read;
John Henry Brooke.

Portland — Hugh Culling Eardley Childers ; Daniel Abraham
Hughes.

Belfast — Francis Edis Beaver.

Warrnambool — George Samuel Wegge Home.

Colac — Andrew Rutherford.

Kihnore — John O'Shanassy.

Kyneton Boroughs — George Walter Johnston.

18a

Appendix.

Murray Boroughs — Francis Murphy.

Alberton — James Davis.

Castlemaine Boroughs — Alexander Stenson Palmer; Vincent

Pyke.
Sandhurst Boroughs — James Macpherson Grant.
North Grant — James Basson Humffray.
North Grcnvillc — Peter Lalor.
Ovens — Daniel Cameron.
Rodney — John Dunstan Baragwanath.
Loddon — John Downes Owens ; Ebenezer Syme.
Talbot — Butler Cole Aspinwall ; David Blair.
East Botirke — Robert Bennett; Augustus Frederick Adolphus

Greeves.
West Bourke — Patrick Phelan ; Robert McDougall.
South Bourke — Charles Pasley; Patrick O'Brien.
South Grant — William Clark Haines; Horatio Spencer Wills;

John Myles.
Evelyn and Mornington — William Acland Douglas Anderson,
Anglesley — 'Peter Snodgrass.
Dundas and Follctt — Charles James Griffith.
Nonnanby — Edward Henty.
Villiers and Heytesbury — Charles Gavan Duffy; William

Rutledge.
Polwarth, Ripon, Hampden and South Grenville — Jeremiah

George Ware ; Colin Campbell.
The Murray — John Goodman; Travers Adamson.
Gipps' Land — John King.

183

INDEX.

Act for the Administration of Justice in New South

Wales and Van Diemen's Land (1828) 96

Act for the Government of New South Wales and

Van Diemen's Land (1842) 23, 72, 100

Act for the Better Government of Her Majesty's Aus-
tralian Colonies (1850) 27, 95, 104, 129

Adderley, The Right Hon. C. B 103

Address to Home Government 34

Address to Queen 49

Analysis of Voting 117

Allotment of Representatives (1851) 105

Apple of Discord, The 150

Arden's Information 147

"Argus," on Representation 140

"Assigned" Convicts 147

Assignment of Convicts 18

Australia, A Short History of 121, 148

Australian Patriotic Association 20, 21, 30, 97

Ballarat Disturbances 82, 157

Barry, Sir Redmond 19,21, 28

Beginning of Second Chamber in Australia 95

Bland, Dr 20, 30, 99

Blended House 24, 95, 111

Bourke, Sir Richard 97, 146

British Colonial Policy 44

Buller, C. 20, 22, 97, 98

Buller-Macarthur Constitution 99, 100

Bulwer, H. L 20, 97

Canada 20, 2,7

Canadian Constitution Z2, 38

Cassell, J. H. N 7Z, 74

Censure Motion, Greeves', p. 63 ; debate on 64

Censure Vote on Sir W. T. Denison 120

Chapman, H. S 53, 72, 75, 87, 113

Chief Commissioner of Crown Lands 77

Childers, H. C. E 77, 78, 81

Christopher, Mr 22

Colonial Office, on Second Chamber 101

Colonial Policy of Lord John Russell's Administra-
tion (1853) 25

Colonial Reform Society 102

Colonial Self-Government 148

184

Index.

PAQR

Colonization of Australia, 1828 to 1842 96, 147

Committee of Finance 90

Conclusions of Voting Analysis 124, 125

Condemnation of Earl Grey 119

Conditional Pardon 150, 151

Conditionally-pardoned Men 155

Constitution Desired by Victoria 45

Constitution for N.S.W. (1852) 36

Constitution Act 49, 51, 53

Constitutional Struggle, Victoria's First 129

Constitutional Victory, A 160

Control of Revenue 132

Convicts in Port Phillip 17, 146, 147

Convicts' Prevention Act 146-160

Convicts' Prevention Act, Details of 150

Convicts' Prevention Act Criticised 155

Convicts' Prevention Act, Table of 161

Convicts' Prevention Acts Passed; first time, 150;

second time, 152; third time, 154; fourth time, 157

Convicts' Prevention Act Amendment Bill, Voting on 123

Council of Advice 91

Council Nominated 17

Crisis in Victoria, Political 152

Croke, J 92

Declarations of Right, Australia's 35

Defence of the Realm Act 160

Denison, Sir William 11, 149

Denominational School Board 115

Dr. Thomson's Notice of Motion on Responsible

Government 39

Droit of the Crown 130

Duke of Newcastle 57, 102, 153

Earl Grey 23, 25, 119

Ebden, Charles Hotson 28, 113

Elective Upper House 49

Electoral Act 65

Electoral Colleges 24

Electorates in 1851 105

Estimate of Ways and Means 131

Eureka Stockade 42, 50, 109

Executive Government, Charge Against 40

Executive Council in N.SAV 71

Executive Council in Victoria ; An Anomalous Situa-
tion, 72; Its Weakness, 75; in 1851, li; in 1852, 74;

in 1853, 76; in 1854, 78; in 1855 and 1856 .... 80, 81

Fawkner, John Pascoe 29, 38, 118

Financial Powers Increased 137

185 1*

Index.

PAOB

Fitzroy, C. A., Governor-General 27, 28, 42

Foster's Resignation 51, 113, 114

General Revenue Explained 32

Gisborne, H. F 19, 27

Gladstone, Mr 36

Governor-General of Australia 26, 28, 81

Governor Gipps 18, 147

Glenelg, Lord 18, 97, 147

Gold Discovery Expenses, Voting on 117, 118

Gold License 130

Gold Revenue 129, 133

Goldfields 42, 129

Goldfields Commission 109, 110

Grey, Sir George 154

Grievances in the Remonstrance (N.S.W.) 31

Grievances of the Victorian Legislature, 1851 37

Grievance Petition, Mr. Gladstone on 36

Grievance Petition, "Times" on 36

Haines, William Clarke 29, 112, 113

Haines Ministrj^ Members of 61, 62

Hargreaves, Mr 129

"Hashemy," The 148

Hawes, Benjamin, M.P 104

Home Government on Territorial Revenue 136

Hotham, Sir Charles 48, 51, 65. 66, 81, 92, 93, 94

Licrease in Executive Council 78, 79

Increase of Members in Victorian Legislative

Council 107, 108, 109

Illustrated Australian Magazine 27

Import of Analysis of Voting 117

Impounding Law, Voting on 123, 124

Independent Government 18

Independence of Victoria 49

Instructions to Lieutenant-Governors 85, 86, 87

Jamison, Sir J 97

Jenks, Professor 87

Judicature Act of New South Wales 96

judicature Act Modified 17

Kerr, Mr. 21

Kaye, Captam o°

Labouchere, Mr 158, 159

Land Sales Fund 96

Land Sales Act ^^^

La Trobe, C. J., Lieutenant-Governor 27. 28. 93, 106, 132, 133

Lang, Dr. D 104

Law Officers on Constitution Act 30

Law Officers Advise Hotham 60

18G

Index.

PAOB

Legislature for Port Phillip 24

Legislature, First Victorian 28

Legislature of New South Wales 30, 71

Legislative Council, Proposal to Increase, 40; Its

Close 67

Lonsdale, Captain 28, 73, 74, 146

Lord Durham's Report 20, 29, 30

Lord Glenelg 18, 97, 147

Lord Stanley 21, 22

Lowe, R 102, 103, 115

Lien on Wool Act 152

Lieutenant-Governors of Victoria, 1851-5 85

Local Legislatures 95

Lucas, Sir C. P 19, 148

Macarthur, Major-General 66, 156, 157, 158 159

Macarthur, James 22, 97

Macarthur, H. H 97

Mackenzie, Alastair 11 74

MacMahon, Captain 51, 88, 91

Members of the First Victorian Blended House . . 106, 107

Members of Legislative Council 165-181

Members of Victoria's First Parliament 182, 183

Memorial, Port Phillip 25

Mercer, Major 19, 21

Millbank Prison ^ 148

Ministers "in the Cabinet" 74

Ministers "not in the Cabinet" 74

Ministry, Local Responsible 19

Ministry, A Virtual 11

Minute by Governor Hotham 59, 62

Municipalities 24

""Neptune," The 148

New Constitution, Prior to 17

Newcastle's Despatches 43, 151, 153

Nicholson, Sir Charles 31,35, 141

Nicholson, Mr 65

Officer Administering the Government 83

Official Nominees, in 1851, ll\ in 1852, 74; in 1853, 76;

in 1854. 78; in 1855-6 80, 81

Opposition of Legislature 133

Orders in Council 112, 121

Origin of Blended House 95

Origin of Executive Council 71

Origin of Legislative Council 71

O'Shanassy, John 29,52,53,54, 55

Pakington, Sir John 35, 42, 43, 145

Palmer, James Frederick 29, 144

187

Index.

PAOV

Parker, Henry Walker 101

Parkes, Sir Henry 30

Parliament, First Victorian 67

Parliamentary Agent 22, 97

Patronage 47

Pentonville Prison 148

Pentonvillians 148-

Petition by Legislature of New South Wales 3Z

Petition for Representative Assembly 96

Petition from New South Wales 97

Pohlman, Robert Williams 28, 114, 115, 119, 123-

Policq Regulation 158-

Policy of La Trobe Defeated 131, 132

Policy of Sir C. Hotham 89

Political Effect of Goldfields 107

Political Situation in 1852 142'

Population of Victoria in 1851 105

Port Phillip District 17

Port Phillip Farce, The 25

Port Phillip Petition 18, 20, 21, 22, 23, 27, 40"

Powlett, F. A 74, 75

Prerogative Surrendered 134

Proclamation of New Constitution 58

Public Meeting 18

Quasi-Ministry 84, 112

"Randolph," The 148

Remonstrance, The 30, 32, 33

Report on the Legislative Council, 1852 41

Report of Select Committee on a Constitution for Vic-
toria 45, 46, 47

Representation 19, 2Z

Representative Legislature 22'

Representative Government 21, 26

Resignation by Sir C. Hotham 60

Resignation of Nominees 112

Kesponsible Government, 17, 19, 20, 34. 42, 45, 50, 51, 52,

54, 63

Responsible Government in a Single Chamber . . 57, 60

Responsible Officei s 46, 57, 58

Revenue, Territorial and General 129, 130'

Revenue Dispute iaa

Royal Prerogative Contested, The r/ rV ice

Russell Lord John 54,55, 155

Rutledge Amendment, The l-'O, U.\

Salary of Lieutenant-Governor, Votmg on 1^^

Scots School •• .•• •■ •• •.; •• " ,|^

Second Increase in Victorian Legislative Council .... ^-v^

188

Index.

Secret Ballot, The 65

Schedule of Increase in Victorian Legislative Council 108

Separation of Port Phillip District 17, 28

Simon's Bay Incident 148

State and Federal Constitution of Australia 71

Stawell, William Foster 28, 73, 74, 76, 78, 80

Summary of Executive Council 84

Summary of Members and Electorates in 1851 . . . . 105

Supplies, Refusal of 35

Surrender of Gold Revenue 134

Surrender of Unappropriated Moiety, Part . . . . 136, 137

Survey Department 130

"Sydney Gazette" 20

"Sydney Morning Herald" 24

Territorial Revenue 32, 136

Trade and Foreign Plantation Committee 26

Transportation 96, 119, 120, 147, 151

Triumph of Legislature 146

Turner, G. H 76

Unappropriated Moiety 130, 138, 139

Upper House, Elective 46, 47, 49

Vagrancy Act 158

Veto. Double 59

Victoria, An Independent Province 49

Victorian Constitution, Proposed Alteration of 39

Victorian Constitution, Its Arrival 55

Victorian Constitution, Validity of the 67

Victorian Electoral Bill 67

Van Diemen's Land, 95, 101, 102, 113, 119, 120, 146, 147,

149, 150, 151, 152

Wakefield, Edward Gibbon 54

'•Want of Confidence" Motion, The 76, 140, 141, 142, 143, 144

Waste Lands Act 130, 139

Wentworth, W. C 24, 30, 33

Westgarth, Mr 119. 141

Yaldwin. Mr 19. 21

RoHD )i SON, I'riiilerK. l'»rltoii. Melbourne (147tf3)

189

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