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colonies to alter the provisions of the section by concurrent legislation, is equivalent to a permission given to the heir of an English estate to share his inheritance with his younger brother.

What is the explanation of the section? It is stated in the preamble that "Doubts have been entertained as to the true Meaning of the said Description of the Boundary of the said Colony." But this can hardly be intended as a serious explanation. The second section of the Act of 1850 made the two colonies riparian owners in the ordinary way, and the rights of riparian owners are settled by the common law. Still less can the operation of the new section be regarded as a bona-fide solution of any such difficulty. It is enactment, not explanation, as its own words practically admit. No reference was, apparently, made to the section in the course of its passage through the Imperial Parliament, and its origin remains a mystery which can only be solved by a search into the archives of the Colonial Office.

A rather interesting question presents itself when we attempt to ascertain the exact legal position of the Constitution of 1855. We have seen that the course of proceeding was thus. The legislature of Victoria framed a Constitution Act, which was reserved for the royal assent. On its arrival in England, certain of its clauses were struck out, and Parliament was asked to empower Her Majesty to assent to the measure as amended. This Parliament did, but, at the same time, imposed certain conditions of its own, which duly became law. But it did not expressly enact the colonial measure, even in its amended form. Finally, the royal assent, in terms of the Imperial statute, was given to the colonial measure as amended.

How far was this curious process in accordance with law? By the 14th section of the Constitution of 1850,1 the Governor of Victoria, with the advice and consent of the Legislative Council, was empowered to make laws for the colony, provided that such laws should not be repugnant to the laws of England, nor attempt to interfere with the management of the Crown lands or Land revenue. By the 32d section of the same statute, the same authority is empowered by any Act to alter the constitution of the legislative bodies, subject to the

1 13 & 14 Vic. c. 59.

СНАР. ХХІ THE LEGAL POSITION OF THE STATUTE

203

provision that such Act shall not only be reserved for Her Majesty's pleasure, but that, before Her Majesty's pleasure shall be signified, a copy of the measure shall be laid before the Imperial Parliament for at least thirty days. The following section expressly continues the operation of the older statutes1 with regard to bills reserved under the Act of 1850, and a reference to these measures is therefore necessary to secure an exact view of the question.

The 5 & 6 Vic. c. 762 provides that no bill which has been reserved for Her Majesty's pleasure shall have the force of law until the royal assent to the same has been signified by the Governor, and such signification must take place, if at all, within two years from the presentation of the bill to the Governor for assent. And the statute also provides that every bill altering the constituencies for the Legislative Council, or the number of members having seats therein, or the salaries of the Governor, Superintendent, or judges, shall be reserved for the royal assent. The 7 & 8 Vic. c. 74 is purely technical as regards this subject, merely obviating a possible construction of the older statute which might insist that the Governor was bound to reserve any bill falling under this head, even though he refused his assent to it.4

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This being the law of the case, let us see how the facts agree with it. The measure passed by the Council was clearly repugnant to the law of England." Moreover, it obviously interfered with the disposal of Crown lands, for it professed to hand them over to the colonial legislature, to say nothing of the fact that it affected to repeal half a dozen Imperial statutes."

It is clear, then, that not only did the Council, in passing the measure, greatly exceed the powers of legislation conferred upon it by the Constitution of 1850, but, by affecting to repeal Imperial statutes, it rendered it impossible for the Crown to assent to it without parliamentary sanction.

In any event, the measure was obviously one which the Governor was bound to reserve for the royal assent. And there can be little doubt that if the Imperial Parliament had chosen

2 § 33.

3

§ 31.

5 Cf. Sched. (2) of Constitution Act.

1 I.e. the 5 & 6 Vic. c. 76, and 7 & 8 Vic. c. 74. 4 Cf. 7 & 8 Vic. c. 74, § 7. "It is true that the repeal took the form of a postponement of the operation of the Colonial Act until the repeal of the Imperial statutes by the Imperial legislature, but the effect was obvious.

to empower Her Majesty to assent to the measure as it stood, they would have waived any right to object to it afterwards as conflicting with Imperial interests, and that, though not in precise terms complying with the requirements of the enabling section,1 it would have been regarded as good law.

But, as we have seen, Her Majesty's advisers objected strongly to one or two of the clauses contained in the colonial bill, and did not ask Parliament to authorise her assent to the measure as it stood. They altered the wording of the measure, and then asked Parliament to empower Her Majesty to assent to a measure which the Victorian legislature had not submitted. And Parliament itself, while granting the authority, took the opportunity of making one or two alterations on its own account, not by further amending the text of the colonial bill, but by including new sections in the enabling statute. In fact, then, Her Majesty did not assent to the bill passed by the colonial legislature, but to a draft approved by the Colonial Office.2

There is another alternative. Had the Imperial Parliament chosen to enact the terms of the amended draft, there can be no doubt that, though in form violating the spirit of the concessions made to the Australian colonies, the measure would have been valid as an Imperial statute. The Parliament did in fact take this course with regard to the provisions for the transfer of the Land fund, and the repeal of the older statutes, and there can be no doubt, therefore, that these provisions are good law. But it expressly declined to take this step with regard to the general provisions of the measure. The constitution cannot, therefore, be accepted as an Imperial statute.

One other alternative remains. In old times the constitutional rights of the colonies had been granted by Crown charters. The practice had disappeared before the advance of self-government, but it had never been formally abandoned. If Her Majesty chose to grant and the colony of Victoria to accept a constitutional charter, and the Imperial Parliament expressly sanctioned the scheme, who could object? It is possible that the Constitution Act may be supported on this ground.

The question was actually raised in the colony, soon after

1 13 & 14 Vic. c. 59, § 14.

2 The same practice has been since followed, to a very slight extent, in the Western Australia Constitution Act of 1890 (53 & 54 Vic. c. 26).

3 18 & 19 Vic. c. 55, §§ 2-4.

CHAP. XXI

THE QUESTION RAISED

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its arrival, by Mr. Grant, who on the 15th February 1856 succeeded in carrying a motion for an Address to the Governor, requesting him to take the advice of the law officers as to "the validity of the New Constitution Bill for this colony, by reason of its having undergone alterations and amendments in Parliament, without the concurrence or sanction of this House." The Governor promised assent, and on the 18th March laid the opinion of the law officers on the table of the Council.3 The opinion, which was signed by both the Attorney and Solicitor-General, while upholding the legality of the Act, said, "we attribute its efficacy, not to the power of the Colonial but of the Imperial Legislature, and the assent given by Her Majesty in Council to the Bill as above amended."5 It is difficult to discover precisely what this opinion means.

1 V. and P., sub date. 2 Ibid. 26th February 1856. 3 Ibid. sub date. 4 Mr. Stawell and Mr. Molesworth. 5 V. and P., 1855-6, ii. p. 783.

CHAPTER XXII

THE CHANGE TO RESPONSIBLE GOVERNMENT

PERHAPS few people foresaw the difficulties which would attend the introduction of the new scheme of government. But then few people were aware, few are yet aware, of the peculiarities of the Cabinet system. That system has grown up so unconsciously in English politics, that its full intricacy and peculiarity are rarely recognised. Till Mr. Bagehot published his famous essay, in the year 1867, scarcely any writer had explained the idiosyncrasies of the position. In a dim way, English statesmen and English writers had felt that the system under which they lived was essentially different, on the one hand, from the bureaucratic monarchy, such as Prussia, where the Crown was everything and the Parliament merely an appendage; and, on the other hand, from the true republic, such as ancient Rome or modern Switzerland, where the assemblies actually and formally appointed the executive for a limited period, and where executive and legislature remained largely independent in action. But although the difference was felt, it was hardly expressed, and there were some conservative theorists who still held to the view that Cabinet and Premier were anomalies which had no true place in the British constitution, that the real head of the government was the Lord President of the Council, carrying out the personal views of the Crown, and dependent actually on the Crown's pleasure for his continuance in office.

Reserving for a future chapter the statement of the true nature of "Cabinet" or "Responsible" government, we may turn here to examine its genesis in Victoria. And the first thing we notice is the strange lack of allusion to the impend

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