THE BILL FOR FRAMING A NEW CONSTITUTION
FOR THE COLONY.

EDITED BY

EDWARD KENNES SILVESTER,

CHIEF REPORTER OF THE SYDNEY MORNING HERALD.

FEB

STATE LIBRA

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PRINTED BY THOMAS DANIEL, YORK STREET, AND SOLD BY

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1853.

REPRINTED BY CHARLES POTTER, GOVERNMENT PRINTER.-1896.

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INTRODUCTION

In the second Session of the first Representative Legislative Council of New South Wales, it began to be felt by the leading members of the House, that certain grievances existed in the Constitution of the colony, the redress of which were essential to its political freedom.

Although then there was little apparent chance of the immediate redress of such grievances, a firm, grave, and resolute demand for what the Council considered the rights of the colony commenced.

These grievances naturally divided themselves into two classes : the first class relating to the sale, and disposal otherwise, of waste lands of the colony, and the control and distribution of the revenue arising therefrom; and the second, to those restrictions on constitutional freedom, enjoyed by the subjects at home, but denied to the colonists.

The work of reform, for both these classes of grievances, commenced almost simultaneously; and accordingly, on the 3rd of May, 1844, Mr. Cowper, member for the metropolitan county of Cumberland, moved, "That a Select Committee be appointed to inquire into, and report upon, all grievances connected with the lands of the territory; and that it be an instruction to the Committee to distinguish between the grievances which can be redressed in the colony, and those which cannot."

The motion having been carried, a Committee was appointed, consisting of Charles Nicholson, William Bradley, Robert Lowe, George Phelps Robinson, Major Wentworth, and Richard Windeyer; which brought up an elaborate report, in which the following recommendations are made as to the land grievances existing, which could not be redressed in the colony.

The Committee recommended, first, the total and immediate repeal of the 5th and 6th Victoria; being an Act to regulate the sale of Crown lands, and fixing the minimum price of all Crown lands at one pound sterling per acre. Second, the repeal of that part of the 29th section of 5th and 6th Victoria, cap. 76, which excludes the Council from interfering in any manner with the sale or other appropriation of the lands belonging to the Crown, within the said colony, or with the revenues thence arising. Third, the investiture in the Governor and Legislative Council of the colony with the management of Crown lands, and the revenue arising therefrom, by an Act of the Imperial Parliament.

On Friday, the 21st of June, 1844, Mr. W. C. Wentworth, senior member for the City, moved, "That a Select Committee, consisting of ten members, be appointed to inquire into, and report upon, all grievances not connected with the lands of the territory; and that it be an instruction to such Committee to distinguish between those grievances which can be redressed in the colony, and those which cannot."

The motion was carried, and a Committee appointed, consisting of W. C. Wentworth, Dr. Lang, William Bradley, Captain Dumaresq, William Lawson, Francis Lord, Sir T. L. Mitchell, W. H. Suttor, Richard Windeyer, and the Attorney-General.

The recommendations in the report of the Committee, in respect to the grievances requiring redress from the Crown, or from the Imperial Legislature, were as follows:

First. That the schedules annexed to the 5th & 6th Vic., cap. 76, be repealed, and the whole control of the General Revenue placed in conformity with the provisions of the Declaratory Act, 18 Geo. 3, cap. 12, sec. I, under the control of the Governor and Legislative Council.

Or, if those schedules be persisted in, that the Act 5 and 6 Vic., cap. 76, be amended, so that the whole of the hereditary revenues of the Crown be surrendered as an equivalent for the Civil List, and placed at the disposal of the Local Legislature in like manner as they have been in Canada.

Second. That so much of the same Act, 5 & 6 Vic., cap. 76, as relates to the establishment of District Councils, be repealed.

That the grievance connected with the Police, Gaol, and Judical Expenditure be adjusted on the terms prayed for in the Address to Her Majesty, and the Petitions to both Houses of Parliament, prepared by your committee, and recommended to your adoption.

Fourth. That an humble Address be presented to Her Majesty, beseeching Her Majesty to direct that the Government of this Colony be henceforth conducted on the same principle of responsibility, as to Legislative control, which has been conceded in the Canadas, and that a tribunal for impeachments be established by law.

Fifth. That an Act be introduced to enable persons having claims of any description against the Local Government to sue the Colonial Treasurer, or other public officer, as a nominal defendant, under such limitations as may be necessary to prevent frivolous and vexatious suits.

Sixth. That an humble address be presented to Her Majesty, praying that Her Majesty will be graciously pleased to place the Judges of the Supreme Court on the same tenure of office, and security of salary, as belong to the Judges in the Mother Country, and thus effectually prevent the purity of the administration of justice from being hereafter subjected to any suspicions or doubts in the minds of Her Majesty's subjects in these Colonies.

These recommendations were embodied in resolutions, which were assented to by the Council, and were forwarded home in addresses to the Queen and both Houses of Parliament.

They received, however, little attention from the Minister of the day up to the year 1850, when the Act, conferring the present Constitution, was passed by the Imperial Parliament, containing a clause empowering the Legislative Council of the colony to make such alterations in the Constitution (subject to the assent of Her Majesty in Council) as might seem meet.

On the proclamation in the colony of this Act, the Council was dissolved; but previously to its dissolution, Mr. Wentworth moved petitions to Her Majesty and both Houses of Parliament, which had been prepared by a Select Committee, protesting, insisting, and declaring as follows:

We, the Legislative Council of New South Wales, do accordingly hereby solemnly protest, insist, and declare as follows::-

1st-That the Imperial Parliament has not, nor of right ought to have, any power to tax the people of this Colony, or to appropriate any of the moneys levied by authority of the Colonial Legislature;-that this power can only be lawfully exercised by the Colonial Legislature ;—and that the Imperial Parliament has solemnly disclaimed this power by the 18 Geo. III., cap. 12, sec. 1, which Act remains unrepealed.

2nd--That the Revenue arising from the Public Lands, derived, as it is, mainly
from the value imparted to them by the labour and capital of the people of
this Colony, is as much their property as the Ordinary Revenue, and ought
therefore to be subject only to the like control and appropriation.
3rd-That the Customs and all other Departments should be subject to the direct
supervision and control of the Colonial Legislature, which should have the
appropriation of the gross Revenues of the Colony, from whatever source
arising; and as a necessary incident to this authority, the regulation of the
salaries of all Colonial Officers.

4th-That offices of trust and emolument should be conferred only on the settled
inhabitants, the office of Governor alone excepted; that this Officer should
be appointed and paid by the Crown; and that the whole patronage of the
Colony should be vested in him and the Executive Council, unfettered by
Instructions from the Minister for the Colonies.

5th-That plenary powers of Legislation should be conferred upon, and exercised by, the Colonial Legislature for the time being; and that no Bills should be reserved for the signification of Her Majesty's Pleasure, unless they affect the Prerogatives of the Crown, or the general interest of the Empire.

In the first Session of the new Legislative Council, on the 5th December, 1851, this Petition and Remonstrance was formally adopted in the following terms:

Solemnly protesting against these wrongs, and insisting upon these our undoubted rights, we leave the redress of the former, and the assertion of the latter, to the people whom we represent, and the Legislature which shall follow us.

That we, the succeeding Legislative Council, do accordingly present, to your Honorable House, our affirmation of the same grievances: all of which, with a slight modification in the patronage of the Customs Department, by no means commensurate with the rights in the said protest and declaration insisted upon, remain unredressed.

That these grievances having formed the subject of repeated representations and complaints from the former Legislative Council, all of which have met with neglect or disregard from Her Majesty's Colonial Minister, we owe it to ourselves and our constituents, to denounce to your Honorable House, as the chief grievance to which the people of this Colony are subjected, the systematic and mischievous interference which is exercised by that Minister even in matters of purely local concernment.

That whilst we are most anxious to strengthen and perpetuate the connexion which still happily subsists with our Fatherland, we feel it a solemn duty to our Sovereign and our fellow Countrymen in the United Kingdom, to warn them that it will be impossible much longer to maintain the authority of a Local Executive which is obliged, by its instructions, to refer all measures of importance, no matter how great the urgency for their immediate adoption, for the decision of an inexperienced, remote, and irresponsible Department.

That in order, however, that Her Majesty's Confidential Advisers may have no excuse for the continuance of these abuses, we unhesitatingly declare that we are prepared-upon the surrender to the Colonial Legislature of the entire management of all our Revenues, Territorial as well as General, in which we include Mines of every description, and upon the establishment of a Constitution among us similar in its outline to that of Canada-to assume and provide for the whole cost of our Internal Government, whether Civil or Military, the salary of the Governor-General only excepted, and to grant to Her Majesty an adequate Civil List, on the same terms as in Canada, instead of the sums appropriated in the Schedules to the Imperial Act 13 and 14 Victoria, chap. 59.

In the first Session of the New Legislature, this petition and remonstrance was again adopted; and, in forwarding it to the Secretary of State, His Excellency the Governor-General writes:

2. Your Lordship will observe that the Petition commences by adopting the Declaration and Remonstrance entered on the Minutes of the Proceedings of the late Legislative Council on the eve of being dissolved, a copy of which was transmitted in my Despatch, No. 105, of the 18th June last. It states that the complaints therein referred to, and which have formed the subject of repeated representations from the former Legislative Council, remain unredressed, and it proceeds to declare that, in order to afford no excuse for the continuance of these complaints the Council "are prepared, upon the