himself senior member of the court, even this step left him with an overwhelming power. Not till the year 1823 was passed the first Constitutional Statute which operated in Australia. And even the 4 Geo. IV. c. 96 is not primarily concerned with government in the full sense of the term, but with the administration of justice, a matter which, as we have seen, had been dealt with for New South Wales so far back as 1785. It is interesting to note the order in which the functions of government develope. In Australia by far the earliest function was the administration of justice.

But the 4 Geo. IV. c. 96 marked a great advance. Not only was the old military court of 1787 to be entirely superseded by the erection of a Supreme Court and Court of Appeals somewhat on the English model,1 but the Crown was empowered to create by warrant a Council, consisting of five, six, or seven persons, with considerable legislative power. The members of the Council were to hold their places entirely at the discretion of the Crown, and even a majority of them could not overrule the Governor in matters of legislation, in which the ChiefJustice was also to have an independent position;3 but still the statute marked a great advance on the old state of things. It is noteworthy that it specially required that all laws and ordinances made under it in the colony, as well as the English Orders in Council issued in pursuance of it, should be laid before the English Parliament.

4

The 4 Geo. IV. c. 96 was carried into execution by Royal Charter, dated the 13th October 1823,5 creating a Supreme Court of Justice, and by the appointment, under warrant of the 1st December 1823,6 of five members of Council. These members were simply the five chief government officials-the Lieutenant-Governor, the Chief-Justice, the Colonial Secretary, the Principal Surgeon, and the Surveyor-General-and their official connection with the Council is proved by the fact that the warrant appointing them directs that in case any of them die before the warrant reaches the colony, their successors in office are to take their places in the Council. But Lord Bathurst's letter, which accompanied the warrant, explained

14 Geo. IV. c. 96, §§ 1-18.
4 Ibid. § 31.

2 Ibid. § 24.
3 Ibid. § 29.
5 Callaghan, ii. p. 1435.

6 Copy in Votes and Proceedings of Council (N. S. W.), vol. i. p. 1.

CHAP. II

SEPARATION OF VAN DIEMEN'S LAND

13

that this policy was only to prevail until the English government had been made aware of the names of suitable local aspirants.1 In pursuance of this pledge the Council was reconstituted by warrant of the 17th July 1825,2 which appointed the full number of members, including amongst them the names of three private individuals.

But meanwhile a very important step had been taken. The 44th section of the Act of 1823 had empowered the Crown to constitute and erect the island of Van Diemen's Land 4 (which had formerly been part of the colony of New South Wales)," and any Islands, Territories, or Places thereto adjacent, into a separate Colony, independent of New South Wales." The Crown did not avail itself to the full of the powers of the section, but it made Van Diemen's Land a Lieutenant-Governorship under the Governor of New South Wales, whose somewhat peculiar relationship with the new Lieutenant-Governor of Van Diemen's Land was defined at length in Lord Bathurst's letter to Sir Thomas Brisbane of the 28th August 1823.5 The importance of the step was twofold, for not only did it give the first form of separate existence to the present colony of Tasmania, but it practically deprived the settlers in Van Diemen's Land of the constitutional advantages granted by the 4 Geo. IV. c. 96 to the inhabitants of New South Wales.

The growing wealth and development of the Australian colonies after the Act of 1823 is marked by the fact that in the year 1827 the Home government ceased to provide funds for the carrying on of the civil governments of Australia," leaving them to the support of the local treasuries; and in the year 1829 the 4 Geo. IV. c. 96, originally framed as a temporary statute, but prolonged by a continuing Act, was super

1 Letter in Votes and Proceedings (N. S. W.), vol. i. p. 1. 2 Warrant, ibid. p. 20.

3 4 Geo. IV. c. 96.

4 Norfolk Island had already been constituted a lieutenant-governorship by letters-patent of 28th January 1790 (Barton, i. p. 526). The Instructions of the lieutenant-governor were from Governor Phillip (ibid. p. 527).

5 Votes and Proceedings (N. S. W.), vol. i. p. 12. There had practically been a separate local government before this date in Van Diemen's Land (cf. Hobart Town Gazette from 1820 onwards). A distinct Supreme Court was constituted for Van Diemen's Land by Letters-Patent in 1823 (cf. 9 Geo. IV. c. 83, § 2).

6 Letter, dated 23d September 1834, from the Secretary of the Treasury to Sir George Grey. (Quoted in House of Commons Sessional Papers, 1840, vii. p. 559.)

seded by the important statute 9 Geo. IV. c. 83, the basis of constitutional rights in New South Wales at the time of the founding of Port Phillip.

3

The new statute, like its predecessor, was primarily concerned with the administration of justice. In the first place, the existing Supreme Court, or any new creation which might replace it, was to be a Court of Record,' and to have complete civil and criminal jurisdiction in New South Wales and its dependencies, with all the powers of the three common-law courts at Westminster; to be at all times a Court of Oyer and Terminer and Gaol Delivery 2 in and for New South Wales and its dependencies; to be a Court of Equity in the same places, with all the equitable and common-law jurisdiction of the Lord High Chancellor in England; and to have such ecclesiastical jurisdiction as had been or should be given by the LettersPatent of constitution. The Crown was further empowered to institute circuit courts, to be served by judges of the Supreme Court, on the English model," and to allow, under such regulations as it should think fit, an appeal from the decisions of the Supreme Court to His Majesty in Council. Criminal issues were to be tried before a judge or judges of the Supreme Court, assisted by seven assessors chosen from commissioned officers of the army or navy, and civil issues by a judge or judges with two magistrates acting as assessors; but upon special authority by Order in Council the legislature of the colony was to be entitled to apply the jury system to any issues of fact permitted by the order."

8

Provision was also made for the establishment of inferior tribunals by empowering the local legislature to institute courts of General and Quarter sessions, and to give them power to take cognisance in a summary way of all offences, not of a capital nature, committed by convicts, and of all matters cognisable by similar courts in England, subject, in the case of free offenders, to the rules laid down by the Act for the guidance of the Supreme Court.10 A similar power was given to establish inferior courts of civil jurisdiction, to be known as "Courts of

1 I.e. a court whose records are received in all proceedings, without further proof, as conclusive evidence of the truth of the statements they contain. 2 For the exact meaning of these terms cf. Blackstone (ed. 1769), iv. pp. 266-8. 39 Geo. IV. c. 83, § 11.

4 § 12.
9 § 10.

5 § 13.

6 § 14.

CHAP. II COURTS OF JUSTICE IN NEW SOUTH WALES 15

Requests," presided over by " Commissioners" appointed by the Crown, with jurisdiction in cases of debt and damage up to the value of ten pounds. Another most important section enacts "That all Laws and Statutes in force within the Realm of England at the Time of the passing of this Act (not being inconsistent herewith, or with any Charter or Letters-Patent or Order in Council which may be issued in pursuance hereof) shall be applied in the Administration of Justice in the courts of New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said Colonies," but in case of any doubt as to this applicability the colonial legislature is empowered to declare whether or not they do apply, or to establish any modification or limitation of them within the colony. This section, which is still in force, leaves the position of the colonial courts and legislatures, with regard to the laws of England existing before 25th July 1828,3 extremely doubtful. Of course it is obvious that the colonial courts are bound to recognise any of such laws which are clearly unrepealed. It is equally plain that the colonial courts would be obliged to weigh any argument directed to show that an express or implied repeal or limitation by a colonial legislature was ultra vires. But it is submitted that no authoritative decision on the point could be pronounced by any court save the ultimate Court of Appeal, the Judicial Committee of the Privy Council. And it is clear that the 24th section of the Act of 1828 only intended to confer amending powers in cases of genuine doubt, whilst the actual enabling words both of that statute and the previous statute of 18235 distinctly limit the legislative power of the Governor and Council to laws and ordinances not repugnant to the Laws of England. Nevertheless, the power of the colonial legislature to alter the English law for the colony appears to have been recognised by Lord Chelmsford in the case of Rolfe v. Flower Salting Co., decided in the year 1865, though the 19 Geo. IV. c. 83, § 18. 2 § 24.

3 It will be noticed that this section speaks expressly from the passing of the Act. The other provisions, generally speaking, date from the 1st March 1829 (§ 39).

4 § 21.

5 4 Geo. IV. c. 96, § 24.

¤ L.R. 1, P.C. at p. 48. The colonial Act in question was the 5 Vic. No. 17 (N. S. W.) See also discussion of the same subject in Webb, Imperial Law and Statutes, pp. 61-68; also an elaborate early judgment on the same point in the case of Macdonald v. Levy (Votes and Proceedings, N. S. W., 1833, p. 175).

point was not actually necessary to the decision. Later Constitutional statutes have placed the matter on a different footing.

After making these elaborate provisions for the administration of justice, the 9 Geo. IV. c. 83 goes on to authorise the creation of a Legislative Council. Its members are to occupy their seats by the same tenure as before, but their numbers are increased to a minimum of ten and a maximum of fifteen.1 The Council cannot act unless at least two-thirds of its members, exclusive of the chairman, are present.2 All legislation (following strictly the English precedent) is to proceed in the Governor's name, but, except in cases of emergency, he is not to legislate until the proposed measure has been laid before the Council, and a disapproval thereof by the majority present at any meeting is to be fatal to the proposal, the objectors being, however, bound to state their reasons on the Council minutes. No law can be proposed by any one but the Governor, but he is likewise bound to record his reasons for refusing to introduce a particular measure. The Governor is also to preside at all meetings of the Council unless specially prevented.3

All laws and ordinances made by the Council are to be submitted at once to the Supreme Court, whose members may within fourteen days of their passing represent to the Governor that they are ultra vires, whereupon the Governor is to suspend their operation (which otherwise begins at the expiration of the fourteen days) until the representation has been brought before the Council. The Council may, if it pleases, overrule the remonstrance, but it must be transmitted by the Governor to the Home authorities. Moreover, all colonial laws are to be so transmitted within six months of their passing, and may be disallowed by the Crown at any time within four years.5 They are also to be laid at once before both Houses of the English Parliament.6

4

19 Geo. IV. c. 83, § 21.

2 § 22. Such an essential proportion of a public body is usual spoken of, though somewhat inaccurately, as a quorum." The word attained its present meaning from the old Latin forms of commissions to the justices of the peace in England. The commission would empower a certain number of them to hear certain cases, but specify names of some of the justices, the presence of one of whom should be necessary. So the wording would run: "With power for you, or any three of you, of whom (quorum) X to be one.' There is an amusing reference to the practice in Sheridan's Scheming Lieutenant, Act II. Scene 4.

3 § 23.

4 § 22.

5 § 28.

6 § 29.