CHAPTER VIII THE NEW CONSTITUTION It THE Act for the Government of New South Wales and Van Diemen's Land (5 & 7 Vic. c. 76) seems to have passed the Imperial Parliament without exciting the smallest interest. is with difficulty that we can trace its progress in the pages of Hansard. What small amount of attention was in 1842 given to colonial matters seems to have been divided between the Crown lands question, the financial embarrassments of South Australia, and the grievances of Newfoundland. The English public had other matters to think of. The great Corn Law agitation was preluding to its final triumph. The ever-present Irish question was in a particularly acute state. A war with China was just over, a war in North-western India was raging, and a war in South Africa was impending. There was much industrial distress. Sir Robert Peel was just about to revive the unpopular income-tax. In Scotland the great theological convulsion which resulted in the secession of the Free Church was agitating the country. Nevertheless, unnoticed as it was in England, the Constitution Statute of 1842 was of great importance in the history of Australia. Its chief claim to distinction, from a constitutional point of view, is that it introduced into Australia the principle of representation for purposes of central government. But it was in other respects also a very important statute. It begins by providing for a Legislative Council of thirtysix members, twenty-four to be elected in the colony of New South Wales, and the remaining twelve to be appointed by the 1 By the 53d section the old form of government is continued for Van Diemen's Land. Crown.1 The local legislature may increase the total numbers of the Council, but the proportion between elective and nominee members is always to be preserved.2 In the same way, the distribution of the representatives and the boundaries of the electoral districts are to be settled by the existing Council, but the District of Port Phillip, and the towns of Sydney and Melbourne, are each to be an electoral district. For the purposes of the Act, the boundary of the District of Port Phillip on the north and north-east is to 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." 3 The electoral boundaries of Sydney and Melbourne, and of all other towns which may be made electoral districts under section 2, are to be fixed by the Governor, by letters-patent or proclamation.1 The electoral franchises are two; first, the ownership in possession of a freehold estate within the electoral district of the clear value of two hundred pounds, second, the occupancy of a dwelling-house within the district of the clear annual value of twenty pounds. The qualification must be of six months' standing, and all rates and taxes payable in respect of such ownership or occupancy, except such as have accrued within three months, must have been paid. 5 The elected candidates must be qualified by the seisin (legal or equitable) of a freehold estate, within the colony, of the annual value of one hundred pounds, or the capital value of two thousand pounds, clear in both cases." Both electors and candidates must be males of full age, natural-born or naturalised subjects, and no person who is undergoing a sentence for attaint or conviction of treason, felony, or infamous crime within British Dominions, is entitled to vote.9 The nominee members of the Council may be appointed either by royal warrant, countersigned by a Secretary of State, 2 § 4. 1 § 1. 3 § 2. Note the difference between this boundary and that fixed by the Land Regulations of 5th December 1840 (ante, p. 40). The change was evidently due to remonstrance from Sydney. (Cf. corresponded in V. and P. (Victoria), 1853-54, vol. ii. p. 735, etc.) 4 § 3. 5 § 5. 6 $ 7. 8 An elector is qualified also if he is a denizen (§ 6). 7 § 8. CHAP. VIII THE LEGISLATIVE COUNCIL 71 and this warrant may either describe them by their names or by their official titles, or the Crown may delegate the power of making the appointments to the Governor, to be exercised in like manner, but the Governor's appointments are to be only provisional, and are not to be made until the return of all the elective writs.1 Not more than half of the nominee members may hold paid office under the Crown in the colony. The grounds upon which a seat becomes vacant are as follow 1. Resignation (by letter addressed to the Governor).2 2. Failure to attend for two sessions without permission of the Governor signified to the Council. 3. Adherence to or becoming a subject of any foreign state or power. 3 4. Bankruptcy, or insolvency. 5. Attaint of treason or conviction of felony or other infamous crime. 6. Insanity. 4 7. Vacation of office (by a nominee member nominated as the holder of such office).5 All questions as to the existence of vacancies are to be settled by the Council itself." The places and times of holding the meetings of the Council are to be fixed by the Governor, but there is to be a session at least once every year, with an interval of not more than twelve months between any two, and each Council is to continue for five years unless sooner dissolved by the Governor.7 The Council is to elect a Speaker (subject to the Governor's disallowance), and to adopt Standing Orders which, upon the approval of the Governor, will become binding on the Council, subject to disallowance by the Crown in the same way as other legislation. The Council cannot transact business unless onethird of its members are present, exclusive of the Speaker; all matters are to be decided by a majority of those present, the Speaker having a casting, but not an ordinary vote.10 The Governor, with the advice and consent of the Legislative Council, is to have authority to "make laws for the peace, 1 § 12. 2 § 15. 3 This is almost the same thing as alienage, but not quite. It leaves the question of the right in the Crown to claim the allegiance of the person in question undecided. 7 §§ 20, 21. 10 § 24. 4 § 16. 5 § 17. 8 § 23. 6 § 18. 9 § 27. It was afterwards provided (by 6 Vic. No. 16, § 57, p. N. S. W.) that the Council might proceed to business after an election, notwithstanding the |