CHAP. II THE NEW LEGISLATIVE COUNCIL 17 The actual extent of the legislative powers conferred on the council has been before alluded to. It is "to make Laws and Ordinances for the Peace, Welfare, and good Government of the said Colonies respectively,' such Laws and Ordinances not being repugnant to this Act, or to any Charter, or Letters-Patent, or Order in Council which may be issued in pursuance hereof, or to the Laws of England." The power of imposing new taxation is also strictly limited to taxes required for local purposes, but the power, already vested in the governor by previous statutes,* of levying certain customs and excise duties, is made exercisable for the future with the advice of the Council.5 3 These were the chief constitutional powers of the local government of New South Wales at the time of the founding of Port Phillip. It will be seen that, while they mark a distinct advance on the old constitution of 1823, inasmuch as the Governor can no longer overrule the majority of the Council in matters of legislation, they still fall far short of a true system of Parliamentary government. The members of the Legislative Council still hold their seats at the pleasure of the Crown, and the Council has absolutely no control over the executive, which is directly responsible to the Home authorities. Such criticism of the executive as appears upon the minutes of the Legislative Council is strictly limited to protests regarding the expenditure of the colonial revenue, in which matter the Legislative Council has a statutory position, but even here the expenditure is finally subject to the control of the Commissioners of the English Treasury.7 But The separation of the executive from the constitutional side of the government, and the fact that the records of the proceedings of the executive have not been published, render it somewhat difficult to give any account of its methods. we gather from the official documents that at this period there was in New South Wales an official staff consisting of a ChiefJustice, an Archdeacon, a Colonial Secretary, an Attorney-General, a Collector of Customs, an Auditor-General, a Principal Surgeon, 1 It must be remembered that the 4 Geo. IV. c. 96 was a constitutional statute also for Van Diemen's Land. 2 § 21. 3 § 25. 59 Geo. III. c. 114; 1 & 2 Geo. IV. c. 8; and 3 Geo. IV. c. 96. The latter statute empowers the governor to levy customs duties of 10s. a gallon on British and 15s. a gallon on foreign spirits, 4s. a pound on tobacco, and 15 per cent ad valorem on non-British manufactures imported direct from British ports. 5 9 Geo. IV. c. 83, § 27. 6 Ibid. 7 Ibid. and a Surveyor-General.1 These officials were all appointed and paid by the Home government, and some of them at least met as an Executive Council under the directions by this time introduced into the Governor's Commission.2 The Executive Council is, of course, the direct ancestor of the modern Colonial Cabinet, the legal title of which body is still The Executive Council. Occasionally non-official persons sat in the old Executive Council of New South Wales, and the practice is still rarely followed. But primarily the Executive Council is a body of officials charged with the actual administration of the country, and meeting to discuss matters of common policy.* The titles of the offices which they hold usually explain their principal functions. The Colonial Secretary, or the "Chief" Secretary, as he is sometimes called, was the general political official; he was responsible for everything not specially allotted to another department. To the Surveyor-General fell the important task of extending the frontiers of the settled land of the colony, of superintending the making and repair of the roads, and of reporting upon applications for Crown grants. Some of the old offices are still in existence. The Chief-Justice and the Auditor-General are no longer political officials, the dignitaries of the Church have ceased to be officials at all, the Principal Surgeon has naturally disappeared. The Collector of Customs and the Surveyor-General have become the Commissioner of Customs and the Minister or Commissioner of Crown 1 The office of Lieutenant-Governor of New South Wales (as a permanent appointment) seems to have ceased with the separation of Van Diemen's Land in 1829. (Cf. Minutes of the Council, N. S. W., 1826-1830.) 2 E.g. into that of Sir Richard Bourke, 25th June 1831. possession of government of New South Wales.) (Original in 3 E.g. Colonel Lindesay, 1827-1831. He was an official, but not a colonial official. (Cf. Votes and Proceedings, N. S. W., 1831, p. 89.) It appears likely that at this period the Executive Council was rarely summoned, except on special occasions, such as the examination of Captain Robinson in the case of Sudds and Thompson, under General Darling in 1829. (Parl. Report, 1st Sept. 1835, evidence, p. 5.) Through the kindness of the Premier of New South Wales (Sir Henry Parkes), the author has been allowed to reproduce (see Appendix A) a page of the Minute-Book of the Executive Council for 1837. From this specimen it seems probable that at this time in ordinary cases the Governor issued his instructions, which were merely communicated to the officials concerned. The office of Auditor-General was abolished in Victoria under the 21 Vic. No. 24, following the provision of the Constitution Act (19 Vic.), and the position is filled by three non-political "Commissioners of Audit." (22 Vic. No. 86.) CHAP. II THE COLONIAL OFFICIALS 19 Lands respectively. The Colonial Secretary and the AttorneyGeneral retain their old titles. The exact position of these political officials at the present day is a matter of some difficulty, which will have to be considered. But there can be no doubt that, at the time of which we are speaking, they were simply paid administrative agents of the Crown, holding their posts on the same terms as the permanent officials in Downing Street or Somerset House. Some of them sat in the Legislative Council, and, doubtless, there expressed the Government policy; but as officials they were entirely unfettered by the views of the legislature. Some considerable progress had been made in the developement of the scheme of government contemplated by the Act of 1828 before the year 1835. There was a system of "common and "special" juries for civil cases, and the principle of trial by jury had been slightly applied to criminal matters.3 Courts of General Quarter-Sessions and Courts of Requests had been constituted. Police courts and Courts of petty sessions had been organised, and the fees chargeable in them regulated by statute." The Customs had been placed on a regular and statutory footing.7 But especially important in the early history of Port Phillip was the Act passed in the year 1833 "for protecting the Crown Lands of this Colony from Encroachment, Intrusion, and Trespass." This Act, with its amendment of 1834,9 authorised the appointment of "Commissioners of Crown Lands in the Colony of New South Wales," who should have power to take all necessary steps to protect the Crown Lands from trespass, and especially from trespass which might ultimately be used to ground a claim of title by occupation. These officials were invested with considerable authority, and were entitled to call on all justices of the peace and constables to aid them in the performance of their duty. 8 1 The office of Surveyor-General has been reconstituted as a non-political office in Victoria. 2 Perhaps one of the best ways of realising the extent of the executive machinery at this period is to glance through the estimates printed in the Votes and Proceedings of the Leg. Councils. 32 Will. IV. No. 3; and 4 Will. IV. No. 12 (N. S. W.) 43 Will. IV. Nos. 2 & 3 (N. S. W.) 5 4 Will. IV. No. 7; and 5 Will. IV. No. 22 (N. S. W.) 64 Will. IV. No. 5 (N. S. W.) 8 4 Will. IV. No. 10 (N. S. W.) 7 11 Geo. IV. No. 6 (N. S. W.) 95 Will. IV. No. 12 (N. S. W.) 2 It now only remains, to complete our view of the political horizon of Australia in 1835, to point out that the colony of Van Diemen's Land had been separated, for purposes of local government, from the colony of New South Wales, by royal warrant under the 44th section of the Act of 1823;1 that the "province" of South Australia was just being organised on the most approved principles under the English Act 4 & 5 Will. IV. c. 95; and that the Swan River settlement (afterwards known as "Western Australia") had been begun by Captain Stirling under Colonial office Regulations in the year 1829, and was now suffering from the untoward circumstances of its early history. Queensland had, at the time, no separate existence, but was the Moreton Bay District of New South Wales. New Zealand was a subordinate settlement, barely organised, under the control of the Governor at Sydney. 14 Geo. IV. c. 96. 2 See, for full account, Sessional Papers (House of Lords), 1841, vol. iv. |