СНАР. ХХІ THE BILL IN COMMITTEE 197 Bell withdrew his amendment, and the bill was read a second time without a division.1 In committee, the opposition to the bill practically centred itself on three points. Mr. Adderley moved the rejection of the clause retaining the provisions of former statutes on the subject of the royal veto. He explained that he did not wish to interfere with the power of the Governor to assent to, refuse, or reserve bills, but he objected to the power of the Home government to annul bills which had received the Governor's assent, and he desired to leave full discretion to the latter. Mr. Adderley was, however, opposed by Mr. Scott, the agent for New South Wales, and, as the Government was also against him, his amendment was lost by seventy-two votes.2 3 Mr. Miall then proposed to omit so much of the fourth section of the bill as enacted that the restraining provisions of the colonial statute in respect of alterations in certain parts of the constitution should remain in force until formally repealed by the colonial legislature. This section was really unnecessary, but Mr. Miall hoped to turn it into a clause prohibiting the enforcement of the restraining provisions which the colonists themselves had passed, hoping the more easily to get rid of his aversion, the religious grants. Sir John Pakington, on the other hand, objected to the section as destroying the very safeguards which the colonial Act set up. But both objections were overruled. A little fighting over the Civil List, in which no successes were gained by the opposition, concluded the work in committee, the bill was reported without amendment, and read a third time without debate. In the House of Lords the only sign of interest was a moderate speech by Lord Mounteagle, who deprecated the manner in which the Government had seen fit to give effect to the wishes of the colonists. The bill received the royal assent on the 16th July 1855.8 5 1 Report of debate in Hansard, cxxxviii. pp. 1956-1989. 2 Hansard, cxxxix. p. 87. 3 The 60th section of the colonial Act as finally passed. It requires that the second and third readings of bills to alter the constitution of Parliament or the grants in schedule D (Civil List) shall be passed by absolute majorities of both Houses, and reserved for the royal assent. It will be observed that these provisions may be altered by Act in the usual way. 4 Hansard, cxxxix. pp. 90-95. 6 Ibid. p. 297. 7 Ibid. p. 653. 5 Ibid. p. 100. 8 Ibid. p. 873. Meanwhile the bill to repeal the Crown Land Acts had been passing through Parliament, and, in fact, received the royal assent on the same day.1 It will be remembered that one of the most important terms of the new arrangement had been that the control of the Land fund should be surrendered to the colonial legislature, in return for which the latter would vote a liberal Civil List. In fact, by the terms of the colonial Act, the coming into force of the new constitution had been held contingent on the repeal of the 5 & 6 Vic. c. 36, and the 9 & 10 Vic. c. 104. Although it is doubtful whether the colonial legislature was within its powers in enacting this provision, there can be no question that it would have been a gross breach of faith on the part of the Imperial Parliament to sever the two subjects. The Waste Lands Repeal Bill was brought in by Lord John Russell in company with the New South Wales Constitution Bill, and on that occasion discussion was confined almost entirely to the latter measure.3 Neither did the bill provoke any comment on other occasions, passing through all its stages without discussion. It applied to all the Australian colonies, but in Victoria it was not to take effect till the proclamation of the Constitution Statute, and the powers of the repealed statutes with regard to the application of funds received in England from the colonial Land revenues were expressly reserved from the repeal. The legislature of any colony in respect whereof the 5 & 6 Vic. c. 36 is repealed may repeal the Orders in Council made under it, subject only to existing engagements; but until otherwise provided, the existing Land Regulations are to be deemed in force in the four colonies about to obtain Responsible Government.8 All past appropriations are placed beyond the scope of inquiry.9 These enactments, and the assent of Her Majesty in pursuance of the Constitution Statute,10 which was given on the 21st July 1855, completed the scheme of the framers of the CHAP. XXI DESPATCH OF LORD JOHN RUSSELL 199 Victorian measure. In forwarding the statute, Lord John Russell explained the reasons which had led him to make slight amendments in the colonial Act, instead of re-enacting the whole constitution by Imperial legislation. The clauses which attempted to control the relations between the Crown and the Governor have simply been omitted, but the Secretary of State takes the opportunity of explaining that the Instructions to the Governors on the subject of their assent to colonial measures are uniform throughout the Empire; and, though binding on the Governors, are in no way in the nature of conditions precedent to the validity of colonial legislation. They can be set aside at any time by the Crown, and, as between the latter and the colony, the Governor's action is the action of the Crown.1 Lord John Russell also states, that while Her Majesty's government recognise the liberality of the provision made for the Civil List, they have no wish to prevent its alteration in the future by the colonial legislature, and the Governor's instructions will only direct him to withhold the royal assent in the case of alterations in the emoluments of existing officials. Finally, the Imperial government have had under their serious consideration the question of introducing into the constitution clauses leading up to a federal union, but they have decided that the present is not a time to bring forward such measures, although they will be ready to give the best attention to proposals in that direction emanating from the colonies themselves. It is somewhat significant of the confusion created in official circles in England by the Crimean War, that no less than three changes occurred in the tenure of the seals of the Colonial Office during the progress of these measures through Parliament, and that the despatch enclosing Her Majesty's assent to the Constitution Act, though only one day later than that covering the Imperial statute, was signed by a different Secretary of State for the Colonies. In the year 1854, on the outbreak of the war, the old union between the War and Colonial Offices, which had existed since 1800, was severed, 2 1 Copy of despatch in V. and P., 1854-5, ii. p. 529. This rule has since been made statutory by the 28 & 29 Vic. c. 63, § 4. 2 Sir William Molesworth, V. and P., 1854-5, ii. p. 562. Sir George Grey receiving the seals of the Colonies, and the Duke of Newcastle taking the War department. On the resignation of Lord John Russell's ministry, in January 1855, Sir George Grey had been succeeded by Mr. Sidney Herbert; but when the latter deserted Lord Palmerston in the same year, Lord John Russell came to the rescue, only to resign again over the Vienna negotiations, and to be replaced by Sir William Molesworth. But there had been one other enactment during the session of 1854-5 which seriously, though indirectly, affected the interests of Victoria. Simultaneously with the Victorian Constitution Statute and the Waste Lands Repeal Act there had passed the New South Wales Constitution Statute. Ever since the year 1842, the boundary between Port Phillip District and New South Wales proper had been recognised as lying along the course of the Murray from the boundary of South Australia to its source, and thence by a straight line to Cape How. The words of the Act of 1842 are explicit. "Provided also, that for the Purposes of this Act the Boundary of the District of Port Phillip on the North and North-east shall be a straight Line drawn from Cape How to the nearest source of the river Murray, and thence the Course of that River to the Eastern Boundary of the Province of South Australia."1 This boundary, which was far less favourable to Victoria than that drawn by the Land Regulations of 5th December 1840, had been maintained ever since the Act of 1842, and had been repeated in the Constitution of 1850.2 No alteration was made in the boundary thus appointed by the new Victorian Constitution Statute, nor by the colonial enactment contained in its schedule. On the contrary, the Colonial Office expunged from the bill sent home a section (the 51st) which would have enabled the Crown, with the consent of two adjoining colonies, to alter the boundaries. The power reserved to the Crown, by the Act of 1850,3 of altering the dividing line upon petition of the legislature of either colony, therefore remained, being unaffected by the repealing clauses of the statute of 1855, but there is no trace of it having been exercised. And the Constitution Act framed by the Legislative 1 5 & 6 Vic. c. 76, § 2. 2 13 & 14 Vic. c. 59, § 1. See wording of 18 & 19 Vic. c. 55, § 2. CHAP. XXI THE NEW SOUTH WALES STATUTE 201 Council of New South Wales apparently contemplated no immediate alteration, for it provided that the boundaries of New South Wales should be (certain lines of latitude and longitude), "save and except the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria as at present established.” 1 This enactment passed the legislature of New South Wales on the 21st December 1853.2 But when the Imperial statute sanctioning this latter enactment appeared, it was found to contain a section which substantially altered the territorial rights of Victoria under the former constitution. The operative part of the section is as follows: 3 hereby declared and enacted, That the whole watercourse of the said River Murray, from its source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales: Provided nevertheless, that it shall be lawful for the Legislatures and for the proper Officers of Customs of both the said Colonies of New South Wales and Victoria to make Regulations for the Levying of Customs Duties on Articles imported into the said Two Colonies respectively by way of the River Murray, and for the Punishment of Offences against the Customs Laws of the said Two Colonies respectively committed on the said River, and for the Regulation of the Navigation of the said River by Vessels belonging to the said Two Colonies respectively: Provided also, that it shall be . competent for the Legislatures of the said Two Colonies, by Laws passed in concurrence with each other, to define in any different Manner the Boundary Line of the said Two Colonies along the Course of the River Murray, and to alter the other Provisions of this Section." In other words, the colony of Victoria is deprived of her whole territorial interest in the bed of the river Murray, and, by a well-known rule of law, her officials and inhabitants commit a trespass every time they sail upon its waters, except so far as their acts may be held to be impliedly justified by the acquiescence of the Government of the sister colony, and by the jurisdictional powers conferred on Victorian officials by the section. The final permission to the legislatures of the two 4 116 & 17 Vic. (N. S. W.), No. 41. 2 Cf. Sched. (1) to 18 & 19 Vic. c. 54. 3 I.e. In the 13 & 14 Vic. c. 59, § 1. 4 18 & 19 Vic. c. 54, § 5. |